Victorian Bar News
COLBRAN’S CABINET No. 148 No. 0159-3285 ISSN SUMMER Golvan QC: Vale:
2010 Developing your case The Honourable John
as an advocate HarberVICTORIAN BARPhilips NEWS Summer AC 2010 QC 1 VICTORIAN BAR COUNCIL ViCtorian Bar news
Clerk Editors Published by The Victorian Bar Inc. G colbran QC, M.J. (Chairman) Georgina Schoff, Paul J Hayes Owen Dixon Chambers 205 William Street, D Moshinsky SC, M.K. (Senior Vice-Chairman) contributors Melbourne 3000. A Macaulay SC, C.C. (Junior Vice-Chairman) The Honourable Alistair Nicholson AO D Fajgenbaum QC, J.I. RFD QC, his Honour Judge Tony Howard, Registration No. A 0034304 S W Murphy QC, B.A. Julian Burnside AO QC, George Golvan QC, This publication may be cited as H tobin SC, P.T. Ron Meldrum QC, Jeremy Ruskin QC, (2009) 147 Vic B.N. d sloss SC, M. Jane Dixon SC, Ian Freckelton SC, D McLeod SC, F.M. Mark Robins, Kevin Lyons, Jan Maclean, Opinons expressed are not necessarily H McGarvie SC, R. Michael Gronow, David Gibson, those of the Bar Council or the Bar or of D caleo SC, C.M. Susan Borg, Samantha Marks, Tom Pikusa, any person other than the author. D Alstergren, E.W. (Honorary Treasurer) Renee Enbom. D Hinchey S.L. (Assistant Honorary Treasurer) Printed by Impact Printing Design/production F Walsh M.J. 69 –79 Fallon Street, Brunswick Ron Hampton B Hannebery P.J. Vic. 3056 d connor P.X. David Johns (Photography) Contributions to VBN Boilerplate should F Knights K.J. Cartoons be in Word format and strictly limited to G Anderson K.J.D. Patrick Cook d strahan A.T. 400 words. Advertising B Pitt S.T. Contributors photographs will be accepted Miriam Sved d stanley R.H. in high resolution JPEG or PDF format. F southey K.M. The Victorian Bar Inc. 205 William Street, Melbourne 3000 Telephone: (03) 9225 7943 Fax: (03) 9225 6068
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2 VICTORIAN BAR NEWS Summer 2010 Victorian
ISSN 0159-3285 No. 148 Summer 2010
Editorial 4 The value of independence
Chairman’s BRIEF 106 20 5 The year ahead News and views 6 Ten essential tools and techniques for preparing and developing your case as an advocate 10 The acquisition of odcw 10 Inaugural Commercial Court conference 11 Still firing: the erratic diary of PortiaW oods – barrister 33 13 Victorian Bar Council 2010 14 New silks 2010 15 New silks: What they said 17 Readers’ Course 2010
Around town 18 The Honourable Mr John Harber Philips AC QC State Funeral 19 Victorian Bar Council farewell dinner 20 Lord Neuberger visits the Victorian Bar
VBN boilerplate 21 Quarterly counsel 22 Going up 22 Silence, all stand! 24 Adjourned sine die 28 Decree absolute 31 Ethics Committee Bulletin 31 Celebrating female judiciary in Victoria, WBA 32 Soccer: Real Vicbar United Athletico Wanderers FC 32 Masai Barefoot Technology competition 33 Verbatim 35 Habitat 36 A bit about words 38 Dear Themis 38 Wine report
Lawyer’s Bookshelf Cover: Michael Colbran QC, Cameron Macaulay SC and 40 Bars and Benches Mark Moshinsky SC 41 Maverick Litigants
VICTORIAN BAR NEWS Summer 2010 3 EditorIAL ED PHOTO The value of independence
One of the most important attributes of Regrettably, however, it seems that the we carry a duty to our client, but being a member of the judiciary, or for importance of judicial independence and significantly, we also carry an overriding that matter the Bar, is independence. It is the inherent nature of its characteristics duty to the court, the discharge of which one of the hallmarks of the Australian are sometimes lost on the spreadsheet- as officers of the court requires us, too, to legal system. driven executive arm of government. be independent. Ironically, the topic of This point was powerfully made by In Australia, we are fortunate enough to the Chief Justice’s paper delivered at the Chief Justice Warren AC in a speech reap the benefits and freedoms which ever JCA colloquium, which followed her delivered to the Judicial Conference so lightly, but critically, permeate our response to the Attorney-General, was of Australia (‘JCA’) colloquium in society as a consequence of a vigilant, entitled ‘The Duty Owed to the Court’. Melbourne on 9 October 2009, in dutiful, capable and independent Independence cannot be controlled or response to media reports of a speech judiciary, in all jurisdictions. One does not directed. The independence of our legal made by the Attorney-General for the need to look too far beyond our shores to system in Victoria, and particularly our State of Victoria, Rob Hulls MP, opening observe citizens of other states who are judiciary, should be zealously guarded the colloquium, but released in advance not as fortunate. Trite as it is, it is because and embraced by everyone in our to the media the previous day. of our honourable and long-standing community and especially by those Addressing the Attorney-General’s tradition of judicial independence (which serving within the executive arm of remarks equating judges to ‘especially includes security of tenure for our judges) government. well-remunerated public servants’, the that we in Australia are not subjected to While on the topic of independence, the Chief Justice referred to one of the pillars entrenched judicial corruption and acquisition of Owen Dixon Chambers of the Westminster system of government political show trials and that as citizens, if West, finalised in December 2009, is a which operates in the state of Victoria, in we so choose, we are able to take legal timely, important and impressive which they both serve. ‘The judiciary is a action against our government, confident development for the Victorian Bar, separate arm of government and not part that such a cause will receive a fair thereby assuring the future of an of the executive of which public servants hearing. independent Bar in this State. The are. It is a fundamental constitutional The Australian legal system is widely 2008–2009 Victorian Bar Council under principle upon which our democracy is considered to be one of the best in the John Digby QC’s leadership and Barristers built’, the Chief Justice stated. world. The public’s confidence in our Chambers Limited chaired by Mark In ensuring that the state of Victoria judiciary would not exist to the extent Derham QC, are to be congratulated for continues to thrive as a functioning and that it does, were it not for the their foresight and resolve in driving this robust democracy, it is vital that the independence of Australian courts and project to its successful outcome. Attorney-General fully appreciates this judges. A sound and independent legal Finally, we welcome the new Chairman distinction. system and the stable society it promotes of the Victorian Bar Council, Michael The judiciary in Victoria has long been figures among the reasons why people Colbran QC, who publishes his first alert to the issue of judicial independence. choose to live and invest in Australia. The ‘Chairman’s Brief’ in this edition of One need not look any further than the imperatives of ‘sustainable population Victorian Bar News. In leading the Bar remarks of the Honourable Justice Smith growth’ and ‘foreign investment’ both over the coming year, Colbran will be ably (who features in this edition of Victorian feature prominently amid the current assisted by Mark Moshinsky SC and Bar News in VBN Boilerplate) who in political challenges which Australia must Cameron Macaulay SC, as senior and 2006 warned that the tendency of address if it is to prosper in the years junior Vice-Chairmen respectively, who executive control of the administration ahead. In meeting these challenges comprise what we have named on our of the courts in Victoria has the effect of though, our politicians should not cover of this edition, ‘Colbran’s Cabinet’! undermining the independence of our overlook the understated but critical role As can be seen, the continued prosperity courts. Public confidence in the court that ‘judicial independence’ plays in the and independence of the Victorian Bar system is critical to acceptance of the rule pursuit of these objectives. remains in good hands. of law. That confidence depends upon Additionally, the proper functioning The Editors the reality and appearance of the of our courts is heavily dependent upon independence of the courts. the honesty, candour and capability of The views expressed in the Editorials of the Independence by its very nature is counsel and our independence. As Victorian Bar News are those of the Editors and do difficult to quantify. It is often not fully barristers we play a crucial role in the not necessarily reflect the views of the Victorian Bar appreciated or understood until it is gone. administration of justice. Not only do Council and the members of the Victorian Bar.
4 VICTORIAN BAR NEWS Summer 2010 CHAIRMAN’S BRIEF The year ahead
Welcome back and Happy New Year! I hope which will continue to be at the Accommodation at the Bar you enjoyed a happy festive season and a forefront of our attention in 2010. • The purchase in December of Owen refreshing break – however long it was. • A marketing officer has been engaged, Dixon Chambers West ensures the con- The year ahead promises several our new website will be launched very tinued strength and growth of BCL into developments (and possibly some soon and our media relations consult- the future with greater protection from controversy) which hopefully will keep ant has already proved invaluable in the often very challenging effects of you interested in the Bar Council’s efforts assisting the Bar in its relationship with unpredictable and unwelcome increases on your collective behalf. print and electronic media. in rent payable to external landlords. The team of officers elected by the • As well as better representing what the • The Council and BCL recognize the Council comprises Mark Moshinsky SC Bar as an institution does and can offer need for expansion of the number of and Cameron Macaulay SC as Senior and to the community, the launch of our chambers available to meet the needs of Junior Vice-chairman respectively, Will updated website in February should current and future members of the Bar Alstergren and Sara Hinchey as Treasurer provide a much more effective means and are constantly on the look out for and Assistant Treasurer, and Stewart for promoting individual service suitable opportunities to take more Maiden and Sam Hopper as Secretary and offerings and linking with the Bar’s space on a leasehold basis where Assistant Secretary. primary users. It will also improve necessary. Areas in which we expect to see communication from the Bar Council. • The technology review now under way significant discussion and development Marketing and Bar Associations will set a path for the Bar’s provision of include: • The job description for the important telephony and data services and ensure Readers Course new position of Marketing Officer can that the Bar is keeping pace with • A review working group chaired by be seen on the website and gives some developments. An essential part of the Peter Riordan SC will be delivering its indication of the areas in which it is implementation will be making these report and recommendations in the hoped this appointment will be of real services available to all those members next month or so. Reform proposals will value to the Bar as a whole and to each of the Bar in independent chambers be published by the Bar Council for of us individually. who wish to avail themselves of the general comment. • The review undertaken a couple of opportunity. Budgeting and financial planning years ago, together with the work of the Bar Committees and reporting Strategic Planning Committee chaired In the last weeks of 2009, Mark Cameron • The Treasurer, with a newly established by Mark Moshinsky SC, identified the and I spent considerable time revising Finance and Audit Committee, will be importance of the Associations to the and populating the committees of the Bar. working with the General Manager to promotion of the work of members of It was very impressive to see that almost a develop a revised approach to budgeting the Bar. The Bar Council is keen to third of the Bar expressed interest in one and reporting for management purposes support the Bar Associations over the way or another in serving on committees. having clearly in mind the consolidation coming years and the appointment of This generous offer of time and energy of the Bar and BCL’ s accounting obliga- the Marketing Officer is a part of this in the service of the general good is tions and the synergistic opportunities resolve. invaluable to the work of the Bar in its for savings to be achieved. Legal aid efforts to serve its members and the Equality and diversity • Funding for legal aid is in a parlous community as the representatives of a • It has been ten years since the Victorian state. The Victorian Bar (through the responsible serving profession. Bar’s ground-breaking study of gender great contribution of David Neal SC) In concluding I would like to thank the based inequality. It is timely to review recently initiated and managed a many members whose work last year was progress against the issues identified by comprehensive analytical review of of such great assistance to the Council. the report. Work is also under way on funding arrangements for legal aid. The remarks I made at the traditional the development of a general diversity This initiative led to a combined dinner held to thank outgoing members and equality policy for the Bar approach to government by a coalition of the Bar Council and some of the others extending beyond gender-based issues. of the Law Council of Australia, the who had assisted the Council and the Bar Communications Australian Bar Association and the in other important ways can be found on • A great deal of work was done last year LIV. The issue will remain a principal the website. by the communications committee focus of the Bar Council this coming Again, welcome back to what I hope will chaired by Sara Hinchey. This is an area year. be a busy and productive year for you all.
VICTORIAN BAR NEWS Summer 2010 5 NEWS AND VIEWS
essential tools and techniques for preparing and developing 10your case as an advocate George Golvan QC
I think that I am uniquely qualified to write on the subject of RULE NO. 2: Your aim as an advocate is to persuade the tribu- advocacy skills. Shortly after I came to the Victorian Bar in 1972 nal by the use of effective intellectual and communication I had the opportunity to study law in the United States and skills both written and oral. enrolled in a subject called ‘Techniques of Advocacy’. This was Good advocacy is 90% preparation and 10% inspiration. When- well before George and Felicity Hampel realised that advocacy ever I have worked with great advocates such as Cliff Pannam was a practice in search of a theory, and no law school in Aus- QC, I never cease to be surprised by the extent of preparation tralia taught advocacy skills. In any event, I managed to pass the that they undertake outside court. According to Pannam, the course and armed with my newly acquired and unique knowl- key to success is meticulous preparation of the law and a com- edge I returned to the Victorian Bar anxious to try out what prehensive understanding of the facts. If that is the approach I had been taught. One of my first cases was a County Court adopted by a naturally brilliant advocate then it has even more civil jury trial as counsel for the plaintiff in a personal injury application to the rest of us. On one occasion I was Junior to the matter, which was a perfect opportunity use my new skills of late and great Neil McPhee QC, regarded as one of the most persuasion. The presiding judge happened to be a fairly conserv- naturally gifted and brilliant advocates at the Victorian Bar. The ative judge of the ‘old-school’. extent of preparation he undertook before the trial was quite One of the American advocacy theories which striking. He would actually conduct mock cross- I had been taught was that you should always examinations with important witnesses before a try to personalise your client and de-personalise trial. On one occasion he had me conduct a mock the other party. One suggested means of cross-examination of an important witness. In doing this was to refer to your client by his or her the second or third question I enquired how long first name and to the other party impersonally as, he had been working in his current position. I for instance, the defendant. It seemed like a good knew we were in trouble when after a lengthy idea at the time. So I commenced my opening pause he answered, ‘That’s a curly one!’ He did address before the jury explaining how my client turn out to be a terrible witness, but we won the ‘Sheila’ had suffered due to the personal injuries case anyway on the basis that he was such a bad she had sustained, all as a result of the negligent witness he must have been telling the truth! conduct of ‘the defendant’, and that it was only fair that Sheila should be fairly compensated for RULE NO. 3: Preparation is of critical impor- what ‘the defendant’ had done. I could see the tance, no matter how eloquent or brilliant Judge grimacing in my direction, which did not you are. suggest total approval of what I was saying. Even- The aim of preparation is the development of a tually, he stopped my opening address, case theory on which to found your case. The requested the Jury to leave and stated in a rather emphatic tone: ability to select and focus upon the points that ‘Mr Golvan I don’t care what you call your client, it can be “my have a real chance of success is the hallmark of a good advocate. client,” “the plaintiff” or “Mrs Brown” but I will not have her A case theory can be described simply as the essential thesis called “Sheila” in my Court’. or theme on which your case will be focused. It is a positive explanation of the relevant circumstances and the applicable law RULE NO. 1: Not all good theory makes for good practice, so which explains why your client should succeed in its case. Your don’t forget about the personality of your tribunal. case theory should form the basis of your closing submissions Advocacy is the technique of persuasion. To quote Professor and should have as many of the following features as is possible George Hampel, ‘Persuasion involves affecting the decision- in the circumstances:2 maker’s intellectual and emotional responses towards the • It must be consistent with your instructions and the desired end’.1 Which is hopefully in support of your client’s case! evidence.
6 VICTORIAN BAR NEWS Summer 2010 • It must be comprehensive, in the sense that it establishes the case. This requires, I suggest, conferring with witnesses, cause of action or defence that you are pursuing. examining relevant documents and if appropriate conducting • It must be simple and focused, in the sense that it focuses a site view; on the key contentions that have a real prospect of success. • Thoroughly evaluate the available and anticipated material There are some barristers who take the approach that every from your opponent’s case. This requires reviewing pleadings point should be argued with equal intensity. By the time they and discovered documents; have annoyed the Judge with their bad points, the Judge is • Thoroughly assess the factual and legal foundations for each not paying attention to their good points. It has been side’s case. What are the possible case theories and defence suggested that an important military maxim can be called in theories? aid: ‘concentrate all available forces at the decisive point.’ 3 • Consider the likely evidentiary issues that will need to be • It must be credible and realistic and not fanciful, in that, established. to use the words of Hampel’s – Advocacy Manual it ‘makes • Assess the strengths and weaknesses of each side’s case. sense in the light of accepted human knowledge and Having done that you need to ask: What is my plan of action? experience.4 What is going to be my objective in this case? • It must be balanced, in that it addresses both the strengths and weaknesses of your case. RULE NO. 5: The case theory is a developing process which • It should be empathetic. It should hopefully seek to persuade gets continually refined as the factual and legal issues become the court that your client has justice on his side, and if not clearer and new evidence and issues emerge. But it is essential justice then at least the law. that before you go into court your case theory is clear and well • It is generally expressed in positive propositional form. developed. Its structure is usually chronological, but it is not simply a Professor Hampel suggests that the best case theory is one that narrative of the events. provides the easiest and most consistent path through the vari- For example, say that you were briefed in an adverse possession ous factual and legal issues, and is one which conflicts with the case. The law on what constitutes adverse possession is fairly probable opposing case theory as little as possible. clear cut, namely, whether for a continuous period of 15 years That means that your objective is generally not to destroy the the claimant has exercised exclusive occupation and control of entire fabric of the opposing case, although some clients may the disputed land, with the intention to exclude others, including demand that, but to justify your case theory within the frame- the registered proprietor. It may become apparent in the prepa- work of the opposing case. You need to ask yourself: What part ration of the case that no unequivocal single act or acts can or parts of the case do I need to challenge? be relied upon, such as the construction of a fence around previ- ously unfenced land. Instead, the focus of the case will need to RULE NO. 6: The best case theory is one that is most realistic, be on a number of acts over the years which collectively amount easiest to justify and fits in as much as possible with the op- to evidence of requisite intention. So the case theory will build posing case. on the central proposition that continuously over a period of at Having reviewed the case and the relevant law and worked out least 15 years by a series of activities, perhaps equivocal on their what you need to prove, you will need to identify the potential own, but unequivocal when viewed together, the claimant witnesses to be called and the evidence to be tendered. This is an in-corporated the disputed land into his or her own land to the exercise that should be done at the outset, not halfway through extent that there was a demonstrated intention to possess the the case, or just before the trial. land to the exclusion of the proper owner. Or to use a colloquial- ism, the land became effectively ‘part of the backyard’ of the RULE NO. 7: You need to start mapping out from an early claimant. stage not just the possible case theory but also the possible It may be that the initial case theory will need to rebut a witnesses and evidence that will need to be called or tendered defence case that the acts relied upon were merely casual acts of to justify it. trespass insufficient to establish either factual possession or an Again this can be described as a ‘work in progress’ which takes intention to exclusively possess. So the development of the case into account the changing nature of the case, the availability and theory will need to include the further proposition that had suitability of witnesses and the admissibility of the evidence. there been a single owner of the claimant’s property and the It is important that full instructions and proofs of evidence disputed property, in all the relevant circumstances, the single in writing are taken at an early stage well before the hearing. owner would have made the same use of the land as the claimant, Remarkably, it is not unusual for even very complicated cases to to justify the conclusion that the conduct of the claimant is be prepared on the basis of the most general instructions, with- therefore sufficient to establish an adverse possession claim. out witnesses being formally proofed until a late stage in the proceeding; sometimes just before the hearing. If an early wit- RULE NO. 4: Preparation of your case invariably involves ness statement is prepared and new documents or issues emerge, working towards the development of a persuasive and coher- witnesses can be seen again and witness statements can be ent case theory. expanded or amended as required, but the obtaining of proofs of Hampel’s ‘Advocacy Manual’ 5 suggests, and I agree, that to evidence at the earliest possible time is invaluable. develop a case theory you must: As Senior Counsel, I like to proof key witnesses and settle • Thoroughly evaluate the available factual material in your draft witness statements myself. I prefer to form an early impres-
VICTORIAN BAR NEWS Summer 2010 7 sion of the character and likely demeanor of key witnesses if they persuasive and interesting. That means they should be well writ- are likely to give evidence and to identify for myself what rele- ten and easily read, comprehensive but concise, engaging and vant information they are able to provide. I think that that it is logically constructed in chronological order, with the use of sub- a task requiring considerable skill and expertise. For example, headings to provide a ready guide to what the witness statement I have sometimes formed the opinion after interviewing a wit- seeks to cover. In longer Witness Statements you can even ness that a witness who may be in a position to give evidence on prepare an index of the various issues covered by the witness a relevant matter would otherwise be dangerous to call because statement. the witness has very poor recollection of the events, or is unpre- I like to include something of the background, experience and dictable. A judgment call will need to be made whether to cull qualifications of the witness. I think that it is a good idea to per- the potential witnesses from the list of witnesses and how best to sonalise a witness by including some key details of a witness’s substitute the evidence that the witness might have given. background, experience and qualifications in the body of the It is also important that the instructions that are obtained are witness statement, even though a witness may have an extensive relevant to the development of the case theory and cause of CV which can be attached as an exhibit. A court perusing a action or defence that will need to be established and are com- formal CV may tend to overlook important qualifications and prehensive. So it is vital to familiarize yourself with the law and experience which can be emphasized in the body of the witness have an appreciation of what aspects of the case you will be seek- statement. ing to establish or corroborate through each witness. It is not Do not dictate or write the witness statement as the witness a bad idea, as an aid before proofing a witness, to prepare a road- is giving instructions but rather take notes which can later be map of headings as a guide to the various issues that you propose converted into a witness statement after giving consideration to develop with a witness and also a roadmap of the various as to what issues the witness statement should deal with, the components of the cause of ac- appropriate order and what ad- tion or defence that you propose missible evidence the witness is to prove through the available able to give. witnesses, to ensure that they are What you should endeavor to adequately covered. do is prepare the witness state- A witness needs to come to the ment, or proof of evidence, in conference equipped with the the language of the witness us- potential documents relevant to ing as far as possible the words the witness’s evidence, i.e. corre- and explanations of the witness. spondence and relevant business After all, a witness statement is records. These will often need to intended to be the witness state- be organized by the solicitor and/ ment of the witness, not the or the witness before the confer- lawyer preparing the witness ence. I like documents to be or- statement. It is not unusual in a ganised chronologically in a ring binder. If a witness refers to a witness statement to see terminology, which is obviously not the document in conference that has not been provided, make sure language of the witness but can only be the language of the legal that you get it. adviser. That impacts on the credibility of the whole witness I also ask witnesses before the conference to prepare and bring statement. a chronology of relevant events as an aid to recollection, particu- On occasions in more complex technical cases request a wit- larly in more complex matters. ness to prepare a drawing or diagram or provide photographs to I think that it is important that witnesses are interviewed sep- more readily illustrate some point of explanation. If appropriate, arately rather than in the presence of other witnesses, to over- the diagram or photographs can be included in the witness state- come any inference that their evidence may have been influenced ment. Drawings, diagrams and photographs can be very helpful in some way by what they heard another witness say. to assist a court to understand technical aspects of the evidence It is not appropriate to coach a witness or suggest answers that or even to provide some emotional context. a witness should give. But of course there is nothing wrong with If I think that a particular document is of relevance to the case seeking to clarify the memory of a witness concerning his or her and can be admitted through a witness, I transfer the document recollection of the events or probing a witness to expand or ex- into a folder of relevant exhibits relating to that witness in the plain his or her evidence on a particular issue. Nor is it wrong to order in which the document is referred to in the witness state- probe and question assertions that seem unclear, improbable or ment and identify the document as an exhibit to the witness unlikely having regard to other evidence in the case. In the end statement. So that what is ultimately prepared is a witness the witness statement has to be accurate, relevant and credible. statement together with all the documents that are proposed to be tendered through the witness, referred to as attachments, in RULE NO. 8: It is highly desirable to take relevant and com- the order in which the documents are referred to in the prehensive witness statements from clients and key witnesses witness statement. at the earliest opportunity. When referring to documents or letters it is often desirable to It is critical that written witness statements, which are now include an explanation as to why certain letters were written or invariably used in civil courts in lieu of examination in chief, are documents prepared, whether particular documents or letters
8 VICTORIAN BAR NEWS Summer 2010 (and these days more often emails) were received by a witness and is the overwhelmingly important part of advocacy. I and what the response was to letters or documents that were conclude by quoting Sir David Napley who, I consider, received. It may be necessary to make reference to and explain summarises the essential theme or concept of this article:8 other documents and correspondence referred to in letters. Obviously it is important to form a judgment when interview- The real basis for presentation of a case – and the gravamen ing a witness concerning whether relevant evidence and relevant of the technique of persuasion – is not so much the way in documents can be given or tendered in admissible form through which the case is presented at the hearing in terms of style that witness or whether some other witness will need to be called and experience. The decisive factor lies in the initial prepara- for the purpose of giving the evidence or of tendering a relevant tion; the material which is so disclosed; the incontrovertible document. For example, a letter is best tendered through a facts which are marshaled; and the care and patience which witness who wrote or received the letter and can confirm its go into ensuring that no stone is left unturned. These are by accuracy, or challenge the accuracy of its contents. far the most significant factors in the proper presentation of After I settle the witness statement I provide a copy of the the case for any client. witness statement to the witness for consideration and review. I Your task as an advocate in preparation of the case is from the also see the witness again in conference for essentially three outset to ascertain the greatest possible amount of information purposes: first, to go over the witness statement again and con- about your own and your opponent’s case for the purpose of firm its accuracy and credibility; second, to fill in any gaps that developing a winning case theory. And in everything you do may become apparent as a result of other evidence or allegations as an advocate, if there is such a thing as a universal rule of in a pleading by the opposing party; and third, to give the wit- advocacy, you should be guided by the advice of the King to the ness the opportunity to reconcile, if possible, the version of the white rabbit:9 witness with the version of events of other witnesses or disclosed in documents, if they are inconsistent and can be reconciled. RULE NO. 10: Follow the advice of the King to the white It is important that witness statements that are provided rabbit in Lewis Carroll’s Alice’s Adventures in Wonderland: to a Court or Tribunal are in admissible form and focus on ‘Where shall I begin please your Majesty?’ asked the White admissible and relevant facts. Too often these days witness state- Rabbit. ‘Begin at the beginning’, the King said gravely, ‘and ments also contain a range of assertions, conjecture and opinion go on till you come to the end: then stop.’ which the witness is neither permitted or qualified to give and will only result in an application to strike out the offending parts. NOTES 1 Hampel: Advocacy Manual (with Brimer & Kune) RULE NO. 9: Witness statements need to be relevant, admis- 2008-Australian Advocacy Institute. sible and engaging. 2 Hampel: Advocacy Manual supra, at p. 24. I recently came across in an interesting book called The 3 Napley: The Technique of Persuasion 3rd ed 1983 Technique of Persuasion by Sir David Napley ,6 an experienced Sweet & Maxwell, p. 86. English advocate, which I found in the lending section of the 4 Hampel: Advocacy Manual supra, p. 24. 5 Hampel: Advocacy Manual supra, pp. 24–25. Supreme Court Library (and noted that it had last been 6 Napley: supra. borrowed in 2005). The author concludes that the essential func- 7 Napley: supra, p.187 tion of an advocate is to present to the court what his or her cli- 8 Napley: supra, pp.15–16. ent should say if he or she possessed the requisite skill and 9 Richard Du Cann: The Art of the Advocate 1965 knowledge.7 The objective of preparation is to make that possible MacGibbon & Kee Ltd, p. 9.
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VICTORIAN BAR NEWS Summer 2010 9 The acquisition of ODCW Great news for the Victorian Bar, now and for the future
After about 23 years, the Victorian Bar, Property Group which included the late July 2009 and that after much further though its accommodation company Chairman John Digby QC; Michael careful consideration by the Bar Council Barristers Chambers Limited, has Colbran QC; Paul Anastassiou SC; Daryl and BCL, in particular on the part of BCL acquired Owen Dixon Chambers West Collins (former BCL Director and CEO); by Mark Derham QC and Ed Gill, in (525 Lonsdale Street, Melbourne) for Stephen Hare, the Bar’s General Manager; about September 2009, the Bar Council, $54M, plus GST. As all barristers will Will Alstergren and Scott Stuckey, BCL under John Digby QC’s chairmanship, appreciate, ODCW is the Victorian Bar’s Directors; Mark Derham QC, the took the decision to attempt to acquire key accommodation asset, housing Chairman of BCL; and Ed Gill, BCL’s ODCW. Negotiations then ensued and the approximately 460 barristers and seven Managing Director (after his appointment Bar News understands that the ultimately barristers’ clerks since 1986. in early 2009). The Executive Property successful Bar offer of $54M was made in BCL purchased 525 Lonsdale Street in Group undertook the tasks of evaluating about late September 2009 and the 1979 for $1.85M, with a view to owning property acquisition opportunities for the contract of sale was signed in the first ODCW. As part of an arrangement which accommodation of barristers of the week of December 2009. enabled the desired special purpose Victorian Bar and advising the Bar Recognition and congratulations must barristers accommodation to be built on Council as to how any such acquisition go to all members of the 2008/2009 Bar that site, in 1986 BCL signed a 40-year might be achieved. Council under the Chairmanship of John sublease, with an option to purchase Between about the end of 2008 and Digby QC, the Executive Property Group ODCW 2026. early 2009 the Executive Property Group members and also to Mark Derham QC, Unfortunately, by about 1995, market developed criteria for the consideration of Chairman of BCL and Edwin Gill, conditions created unexpected pressures potential buildings of interest and Managing Director of BCL, and the BCL and forced BCL and the Bar to forfeit the developed and sophisticated its views as Board for making the these momentous opportunity to complete its planned to how the BCL and the Bar might be able commercial decisions and pursuing and acquisition. to fund and acquire a new building to securing the goal of the acquisition of BCL then became a tenant of ODCW accommodate barristers, if a suitable Owen Dixon Chambers West, the long for the next 14 years. property became available. envisaged jewel in the Victorian Bar’s However, in about December 2008 the Bar News understands that the possible accommodation portfolio. Bar Council established an Executive acquisition of ODCW emerged in about
Inaugural Commercial Court conference Current Issues in Commercial Law
On Thursday 12 November 2009, over economy by litigation, especially company directors’ and officers’ conflicts, 200 legal practitioners gathered at the commercial litigation, and to the fact that noting his view that the recent rise Supreme Court for the inaugural Melbourne is a centre for commercial in numbers of non-executive directors in Commercial Court conference: Current excellence. Australia may not be positive for Issues in Commercial Law. Next up was Professor Ian Ramsay, the companies. At 2pm people started to stream into Harold Ford Professor of Commercial Law The Honourable Justice Pagone then the Banco Court. Judges, silks, juniors, in the Melbourne Law School at the Uni- talked about the role of the new partners of litigation and commercial versity of Melbourne. He gave an engaging commercial court, and how the rapid departments of major and smaller firms, speech about the differences between the growth of technology in recent years has government and corporate lawyers, and traditional remedy of the minority altered the conduct of litigation. He said academics: there were representatives of a shareholder (Foss v Harbottle) and the new that the community ‘needs commercial wide cross-section of those practising in Statutory Derivative Action regime set up disputes to be resolved quickly, or interested in commercial law. in 2000 by the Corporations Act. predictably, consistently and The Honourable Chief Justice Marilyn Jon Webster, a partner of Allen Arthur economically’, and said that our system of Warren opened the proceedings. She Robinson then gave a topical discussion of dispute resolution ‘must be moulded to welcomed everyone devoted to some issues in Insolvent Managed Invest- business needs and exigencies.’ commercial litigation, referring to ment Schemes that have arisen in the recent Mark Moschinsky SC spoke on future research which reveals that over $700m Timbercorp and Great Southern cases. possibilities for the court. per annum is contributed to the Victorian Later, Allan Myers QC spoke on SLM
10 VICTORIAN BAR NEWS Summer 2010 Still firing The erratic diary of Portia Woods – barrister
24 August 2009 I spend the rest of the day looking at places to stay. V Weight 80.4 – needs work; RACV gym visits: 1; Illia free coffees 7 depressed at the calibre of the motor inns on offer. And there (oh dear!) are no good food guide restaurants either. I look into staying at the Royal Mail in Dunkeld. Too far away, I’m told. And too I was destined for a life in the law. My father, an avid watcher of expensive. Apparently Myers QC owns the Royal Mail, together Rumpole, named me after the Portia character in the series. I with pretty much the rest of Dunkeld. Hmm, this may not be think he was in love with her. He was very proud of me when I the best thing after all. How can I impress Alan when we have signed the Bar Roll. I remember that he told me: ‘Portia, I’m to go to the pub for dinner? very proud of you – just don’t stuff it up’. Today, I watched Legally Blonde which I thought was a very poignant movie. I really liked the main character. How freaky is 13 September 2009 it that she shares my last name? Was this a sign? Two great Weight 79.9kg (hoorah!); RACV gym visits 3 (better); Facebook fictional careers intertwined with my own. I go to bed feeling friends: still 0! confident about my future at the Bar. I am packing my 1984 blue Corolla for my drive to Horsham. I am having a lot of trouble getting the four boxes of hearing 30 August 2009 books into the back seat. I have to practically remove the back Weight 79.9kg (hoorah!); RACV gym visits 3 (better); Illia free seat to get them in. How is a woman supposed to take some coffees 7 (oh dear!) clothes to wear? I get a call from Alan. He’s left two hours ago and I spent the weekend setting up a Facebook account. Some of my is asking about dinner. I had better get a move on. I throw some friends are on it. I hope that I get lots of friends from the Bar. clothes together on the bed, bundle them up in my overnight Apparently it’s a great way to stay in touch when I’m at bag, grab some toiletries and I’m off. Frankston. I wonder if I can do Facebook status updates from When I arrive and check into the Koala Motor Inn, I almost my mobile phone while I’m away? cry when I realise that I have bought mis-matching suits and stockings and the wrong shoes. I make the best of a bad lot, do 7 September 2009 my hair and head off to see Alan at Moe’s Mexican Bar and Weight 80.5kg (ok); RACV gym visits: nil (v bad); Facebook Grill. This continues to be a very stressful brief. friends: 0 The chicken chimachunga at Moe’s is the specialty of the house and is rated three chillies on the spiciness factor. I snap It is 7.45am. I sit up in bed. I am sweating bullets. I’ve slept in the menu shut and feeling like Carmen, with a flourish of the and I have to be at the Royal Commission by 9.30. It is a hand, I order the chicken chimachunga with Spanish flair. I shocking time to start. And it is such a long walk up to 222 think Alan is impressed. Either that or he is much more relaxed, Exhibition St from chambers. Especially in high heels. My hair or docile, after five margheritas. The chicken chimachunga is usually in a mess when I arrive. More often than not I’ve arrives and hola! It is huge! The plate it arrives on is big enough caught my heel or twisted an ankle getting past the bins of rank to also double as a roof to a bus shelter. chicken heads left outside one of the many restaurants in Little I eventually arrive home falling into the exposed brick wall Bourke Street. next to my bed at the Koala Motor Inn. Yes, perhaps one I arrive just before 9.30am. Damn. Someone’s taken my spot. margherita too many. It’s all Alan’s fault. Suddenly I feel the It’s some solicitor watching for a government department, no need to go to the loo. One of many painful visits throughout the doubt. I confront them and say that their spot is in the third night… row of the Bar table. They move just before the commissioners arrive. Today, the commission announced that it is going to take 16 September 2009 evidence in regional Victoria. A frantic series of emails with Weight 81.2kg (horrid – result of too many tacos at Moe’s); RACV Alan, my instructor, eventually confirms that I am to go to gym visits nil (no gym to visit); Illia coffees nil: still no Facebook Horsham. I am very excited to be going on circuit. friends.
VICTORIAN BAR NEWS Summer 2010 11 Trivia night at the Horsham Sports and Community Club. Alan improving my wardrobe. After so long at the Royal and I decide to go. There are six other groups there. We lose by Commission I’m starting to look like a public servant. I a country mile. The captain of the team who wins is wearing a commence my submission to the bored and disengaged stripey skull T-shirt. I must be missing something. Plainly the Magistrate while unpacking my briefcase. He allows me to winning table have bugger all to do with their miserable complete my submission and then finds in favour of the local-yokel lives but watch Discovery Channel 24/7. unrepresented applicant, without calling on her to address him. Last day of the Horsham Commission hearings tomorrow. It wouldn’t have been too bad, but the costs order against my Can’t wait to get back to Melbourne. client really tipped me over the edge. I think I may now need to seek an intervention order against said client. He was not 17 October 2009 happy. Warren was last seen leaving the court loudly saying Weight 82 kg (catastrophic due to McDonalds for last few days); something about the registration number of my 1984 Toyota RACV gym visits: nil; Illia coffees nil (beyond hope); Rejected one Corolla and how I should ‘be careful about the brakes’ and even Facebook friend. more careful when walking back to ‘The Mint’ carpark at night. I’m depressed because my role in the Royal Commission has Good thing Warren paid my fee up front and my clerk has my dried up. I find myself in the Magistrates’ Court at Dandenong brief fee, $330 including GST, safely tucked away in his trust appearing for the respondent (an unusual man) on an account. On the train back to town I put my head between my intervention order. Connex are running true to form and the knees and say over and over what a bad barrister I am and train ride out is delayed 20 minutes and I run to the Court. I get think about calling Phillip Dunne QC to see if I can persuade there only to find I am number 47 in the list. My client wants to him to go out to Dandenong tomorrow, and represent me contest the orders. We wait for hours. At 12.45, the Magistrate seeking an intervention order against said former client. I was has two more to go before my case. I pop out to the loo. When I Phillip’s junior once, but haven’t heard from him for sometime. get back, the Magistrate is waiting for me. As I walked in, he I wonder if he’ll still remember me. initially thought I was the defendant in the matter which was It has been a difficult few months. Must confess to feeling due to commence after mine. I must do something about more like Elle than Portia.
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12 VICTORIAN BAR NEWS Summer 2010 victorian bar council 2010
Back row: Sam Hay, Justin Hannebery, Stewart Maiden, Matthew Walsh, Will Alstergren, Richard Stanley, Paul Connor, Anthony Strahan, Sara Hinchey, Kim Knights Middle row: Jack Fajgenbaum QC, Brendan Murphy QC, Kate Anderson, Richard McGarvie SC, Kim Southey, Simon Pitt Front row: Melanie Sloss SC, Mark Moshinsky SC, Michael Colbran QC, Cameron Macaulay SC, Fiona McLeod SC
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VICTORIAN BAR NEWS Summer 2010 13 New silks 2010
BACK ROW Andrew John Keogh, Simon Harry Steward, Peter James Morrissey, Philip David Crutchfield MiDDLE ROW Andrew James Tinney, Nicholas Papas, Michael Damian Wyles, Michael Damien Wilson, Francis James Tiernan FRONT ROW Rachel Marie Doyle, Kirsty Marion Macmillan, David Leslie Brustman, Mary Anne Hartley
14 VICTORIAN BAR NEWS Summer 2010 whatwhat they saidthey said
Andrew John Keogh First, being granted the right of audience in Is there something our readers might be Date signed Bar Roll Australian courts; secondly, being trusted surprised to know about you? 19 November 1998. with briefs in significant cases here and No. Who did you read with? abroad; finally, sharing the career journey with my co-practitioners. Timothy P. Tobin SC. David Leslie Brustman Where do you buy your coffee? Who were your readers? Date signed Bar Roll John Valiotis. Wheat, Victoria Market, Degani, Tin Pot, Via Verona. 13 February 1975. Areas of practice Who did you read with? Common law. Should the Victorian Bar Council invite Ms Junior Silk to give a speech at next The late Mr (later His Hon. Judge) J.G. Reason for applying for silk (Jim) Howden. To progress, run more juries and do more year’s bar dinner? Yes, she is a super speaker and is not to be Who were your readers? appeal work. Martin Bartfeld QC – 1986, John Arthur – Career highlight to date allowed off the hook. Is there something our readers might be Sept 1989, Daniel Khoury – March 1990, Being appointed silk. Ann Graham, Graham Berkovitch – Where do you buy your coffee? surprised to know about you? I was a bit late coming to the law, and I March 1991, Mark Howden – Sept 1995, Chintaroma. David Bliss – March 1997, Should the Victorian Bar Council invite have been a history teacher, welfare worker, lead guitarist, barman and children’s Mary McNamee – Sept 1998. Ms Junior Silk to give a speech at next Areas of practice year’s bar dinner? playwright. However, it will shock no-one to find another criminal silk who is Crime. Yes. Reason for applying for silk Is there something our readers might be Catholic, Kew-dwelling and Collingwood- supporting. Wondering what it is like to be the new kid surprised to know about you? on the block at my age. Despite years of shattered dreams, I still Mary Anne Hartley Career highlight to date follow the (once) mighty Tigers [Richmond The murders, the terrorists and getting silk. Football Club]. Date signed Bar Roll May 1997 Where do you buy your coffee? Who did you read with? Nicks in Queen Street, Dundas and Peter James Morrissey David Beach (now the Hon. Justice Beach). Faussett in Albert Park and the Essoign. Should the Victorian Bar Council invite Date signed Bar Roll Who were your readers? Ms Junior Silk to give a speech at next 29 November 1994. Munya Andrews and Mary Milsom. year’s bar dinner? Who did you read with? Areas of practice Most definitely yes. Tony Cavanough. Common law. Is there something our readers might be Who were your readers? Reason for applying for silk surprised to know about you? Con Mylonas, Clive Patrickson, Terrence The challenge of a new direction. Some say I’m not a bad modern jazz Guthridge, Nadia Kaddeche, Fotini Career highlight to date pianist. Others say I’m not a bad glider Panagiotidis, Peta Murphy, Christine Surviving thus far. pilot. Most would think that I cannot shut Mellas. Where do you buy your coffee? up when discussing books. Areas of practice Anywhere it is excellent. Crime, human rights law, public Should the Victorian Bar Council invite international law. Ms Junior Silk to give a speech at next Nicholas Papas Reason for applying for silk year’s bar dinner? Date signed Bar Roll Desire to assume more responsibility within Definitely – I would love to hear another 18 November 1982. our justice system. speech like the fabulous one she gave in a Who did you read with? Career highlight to date Bar debate a while ago. David Perkins.
VICTORIAN BAR NEWS Summer 2010 15 Who were your readers? Cafe Pieroni. Peter Triandos, Fraser Cameron and Should the Victorian Bar Council invite Moya O’Brien. tailo r i ng Ms junior silk to give a speech at next Areas of practice year’s bar dinner? Criminal law, occupational health and Suits tailored to measure Yes. safety prosecutions. alterations and invisible Is there something our readers might be Reason for applying for silk surprised to know about you? To take the next step. mending Yes. Career highlight to date Quality off-rack suits Simon Harry Steward Beljajev trial. Formal suit hire Where do you buy your coffee? Date signed Bar Roll Kafae in William Street. Bar jackets made to order 18 November 1999. Should the Victorian Bar Council invite Who did you read with? Ms Junior Silk to give a speech at next Peter Cawthorn SC. year’s bar dinner? Who were your readers? Sure, why not? Especially because I’m not leS leeS tailorS Ms Lisa Hespe. the junior silk. level 2, 535 Bourke Street, Areas of practice Is there something our readers might be Melbourne, Vic 3000 Revenue Law. surprised to know about you? tel: 9629 2249 Where do you buy your coffee? About 20 kilos and 20 years ago I was an Frankston Spek. aerobics instructor! tel: 9783 5378 Should the Victorian Bar Council invite Ms Junior Silk to give a speech at next Francis James Tiernan year’s bar dinner? Date signed Bar Roll Yes. 19 November 1981. Supreme Court and Federal Court Is there something our readers might be Who did you read with? commercial trials and appeals. surprised to know about you? Martin Shannon QC. Reason for applying for silk Most unlikely. Who were your readers? When I came to the Bar that is what you Martin Pirrie, Eric Riegler, worked to achieve. Rachel Marie Doyle Chris Moshidis and Alan Gray. Career highlight to date Date signed Bar Roll Areas of practice Receipt of an encouraging letter from the May 1996. Construction law, product liability, Chief Justice of the High Court. Who did you read with? professional negligence, arbitration. Where do you buy your coffee? Bob Hinkley. Reason for applying for silk Budan. Who were your readers? It is something that most of us seek to Should the Victorian Bar Council invite James McKenna, Rudi Cohrssen, accomplish in our career as barristers. Ms Junior Silk to give a speech at next Adam Bandt. Career highlight to date year’s bar dinner? Areas of practice Taking silk. Yes. Industrial Law, Administrative Law, Equal Where do you buy your coffee? Is there something our readers might be Opportunity Law, Constitutional Law, I don’t drink coffee. surprised to know about you? Common Law. Should the Victorian Bar Council invite That notwithstanding my shape I am a Reason for applying for silk Ms Junior Silk to give a speech at next quite committed cyclist!! So that I could give the Ms Junior Silk year’s bar dinner? speech at the bar dinner in 2010. Yes, definitely. Philip David Crutchfield Career highlight to date Is there something our readers might be Date signed Bar Roll A litigant in person inviting the courtroom surprised to know about you? 19 November 2008. to applaud my submissions made in That I am one of 11 children (6 girls and Who did you read with? support of an application to strike out 5 boys) with 37 nephews and nieces and 3 Tim North. his discrimination claim against Victoria children of our own. Who were your readers? Police. Sam Rosewarne, Christopher Brown, Where do you buy your coffee? Michael Damian Wyles Luke Merrick. Demi Tasse. Date signed Bar Roll Areas of practice Should the Victorian Bar Council invite 31 May 1990. Commercial Law. Ms Junior Silk to give a speech at next Who did you read with? Reason for applying for silk year’s bar dinner? Marc Bevan-John. The time seemed right. Obviously. Who were your readers? Career highlight to date Is there something our readers might be None. Obtaining articles. surprised to know about you? Areas of practice Where do you buy your coffee? Yes, just ask Nick Frenkel.
16 VICTORIAN BAR NEWS Summer 2010 1 2 16 3 4 13 15 6 7 14 17 5 9 11 12 26 8 10 Readers’ 27 28 29 31 19 30 18 20 21 24 42 43 32 22 23 41 45 33 25 44 46 34 35 36 47 48 49 38 40 37 39 Course 2010
1 luke MERRICK 14 Michael SEELIG 27 Priya CAREY 40 Hugo de KOCK 2 huw ROBERTS 15 Thomas BEVAN 28 Victoria WHITELAW 41 Elizabeth BOROS 3 keir DERNELLEY 16 Banjo McLACHLAN 29 Rodrigo PINTOS-LOPEZ 42 Anna FORSYTH 4 stephen JURICA 17 Raymond SMITH 30 Nigel LESLIE 43 Kathryn HAMILL 5 david DELLER 18 John VALIOTIS 31 Perry HERZFELD 44 Eloise DIAS 6 Bill SWANNIE 19 Holly VAN DEN HEUVEL 32 Henzler VIRA 45 Charlotte DUCKETT 7 James McKAY 20 Kate BOWSHELL 33 Felicity COCKRAM 46 Sharon HAIHAVU 8 robin SMITH 21 robyn HARPER 34 Hayley LUSCOTT 47 Vivianne LAUMAE 9 Carolyn WELSH 22 Morgan McLAY 35 Kristie CHURCHILL 48 Jacob KANTOR 10 Andrew CHISLETT 23 Megan CASEY 36 Miranda BALL 49 Roderick TAN 11 Angela MORAN 24 Vanessa NICHOLSON 37 Mary MILSOM 12 Christopher DUNLOP 25 Peter HARRISON 38 Rebecca BREZZI 13 Mark HOLDEN 26 Lee RISTIVOJEVIC 39 David KIM
VICTORIAN BAR NEWS Summer 2010 17 n 18 August 2009 a State Funeral was held at oSt Pauls Cathedral for the former Chief Justice of the Supreme Court of Victoria, the Honourable Mr John Harber Philips AC QC.
RIGHT Grandchildren BELOW Kevin Lyons, his Honour Judge Tony Howard and granddaughter.
ABOVE The Honourable Justice Vincent LEFT Daughter Andrea Philips.
ABOVE The Premier Mr Brumby and Mrs Philips.
LEFT Judge Tony Howard.
ABOVE The Honourable Chief Justice Marilyn Warren.
LEFT Mourners leaving church (including the Honourable Mr Brooking QC and Jim Kennan SC).
18 VICTORIAN BAR NEWS Summer 2010 Victorian Bar Council farewell dinner 2 December 2009
Clockwise from top left Dr Michelle Sharpe and William Lye; Samantha Burchell, Martin Scott, Jane Hider and Albert Monichino; Phil Priest QC, Sara Hinchey and Tom Pikusa; Retiring Chairman John Digby QC and his wife Kirsten; Kim Southey and her fiancé Ed Clark.
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VICTORIAN BAR NEWS Summer 2010 19 Lord Neuberger visits the Victorian Bar
n 24 August 2009, the Victorian Bar (Commbar Inter- national Law Section) and the Anglo-Australasian Lawyers Society were privileged to host Lord Neuberger Oof Abbotsbury MR, formerly of the Judicial Committee of the House of Lords and now the new Master of the Rolls. Lord Neuberger, in a very well attended and well received lecture held in the Neil McPhee Room, addressed those present on the topic, ‘The New United Kingdom Supreme Court and Developments in Equitable Estoppel’, which highlighted key aspects of the historic commencement of the new United King- dom Supreme Court and also important recent developments in the field of equity.
Above Lord Neuberger addressing members of the Victorian Bar. Left Justice Hollingworth in attendance at AALS Annual Dinner at the Essoign. BELOW LEFT Dr Rebecca French and Stephen Moloney. BELOW Chris Young, Aaron Weinstock and Frances Gordon.
Following the address, Lord and Lady Neuberger attended the Anglo-Australasian Lawyers Society Annual Dinner as guests of the society, which was hosted by Victorian chapter President Rodney Garratt QC and held at the Essoign Club. Also attending and representing the Victorian Bar were the then Chairman John Digby QC, Michael Colbran QC and Mark Moshinsky SC. The evening was one of robust good humour with Justice Elizabeth Hollingworth deliv- ering an enormously witty and entertaining after-dinner speech, which was thoroughly enjoyed by all in attendance and especially by the guests of honour. Of course, the food and wine served ‘in hall’ continued to uphold the AALS’s finest traditions and thanks is extended to Sion Turner and his team at the Essoign Club for ensuring the evening ran so smoothly and so well. By maintaining links with the English Bar and judiciary, the AALS continues to play an important role in the development and celebration of our shared legal heritage. For more informa- tion about the AALS visit
20 VICTORIAN BAR NEWS Summer 2010 Victorian Bar N ews
QUARTERLY COUNSEL
Clarinda Molyneux QC Clarinda Eleanor Molyneux QC completed her law degree and companionship, and those with whom I practice family at the University of Melbourne in 1978. She is the most law work diligently and responsibly to try and resolve family senior female member of the Victorian Bar and was law disputes’. appointed one of Her Majesty’s Counsel for the State of ‘My favourite pastime is spending time with one particu- Victoria 13 years ago. larly marvellous member of the Victorian Bar, my husband Clarinda says ‘I cannot imagine a more interesting Hugh Fraser, and working together on making our garden profession and a better environment to practise in, than on the Mornington Peninsula part of the Open Garden the Victorian Bar. Members give each other great support Scheme of Victoria.’
VICTORIAN BAR NEWS Summer 2010 21 many as “Mr Frank”, himself an Tribunal – that indeed he had the going uP… outstanding advocate, described by a winning point, whether or not he had it, if modest contemporary of Terry as, in his you’ll excuse the paradox. He was always day, ‘the greatest advocate in the western charming, witty and incisive and a master Federal Court of Australia world’. That contemporary described the of infusing submissions with sporting or The Honourable Justice Dodds-Streeton pivotal moment when articled clerk Terry racing analogies or references, an ability of the Supreme Court of Victoria has Forrest greeted Mr Frank upon the that proved just as helpful before judges been appointed a Judge of the Federal acquittal of two members of the Krope and juries. Court of Australia. family of all charges relating to the His Honour will prove to be a judge of shooting death of the father of the then great ability and insight, immune from reigning Miss Australia: ‘judgitis’, committed to the rule of law but Supreme Court of Victoria Court of Appeal with a real sympathy for the plight of The Honourable Justices Mandie, The enthusiastic articled clerk, Terry Forrest those who appear before him. Bongiorno and Harper have all been (now the famous Terry Forrest QC) raced We wish his Honour well. appointed to the Court of Appeal of the up to Mr Frank. ‘Congratulations’, he said. JR Supreme Court of Victoria. ‘Thank you, Tony’. ‘Terry, Mr Frank’. ‘Of course, Terry. Now Terry, listen carefully. Supreme Court of Victoria Bill Krope, his mother, Gloria, John Walker QC and I are now going to walk down Supreme Court of Victoria The Honourable Justice Iain Ross of the Lonsdale Street to St Francis Church to pray County Court of Victoria has been and to thank God for what he … and I… appointed as a Judge of the Supreme The Honourable have achieved. And Terry… for Christ’s Court of Victoria sake, tell the press! Justice Karin Emerton County Court of Victoria Unsurprisingly therefore, the On 22 October 2009 the Honourable Associate Justice Kathy Kings of the experience of working with Mr Frank Justice Karin Emerton was welcomed as a Supreme Court of Victoria has been over the years profoundly influenced judge of the Supreme Court in a court appointed a Judge of the County Court and helped to develop Terry’s very filled with colleagues, friends and family, of Victoria considerable ability, which as the years including her husband Chris and her sons progressed from junior barrister to Jack and Marcus. eminent silk was demonstrated in many Colbran QC spoke of the ‘breadth and high-profile cases. depth of intellectual scholarship well Those cases included: beyond professional qualifications and SILENCE, ALL STAND! • The bouncer (Zdravco Misevic) charged more’ that her Honour brings to the with and acquitted of the manslaughter Court. He outlined key elements of her of cricket identity David Hooks history: her Honour was born in Geneva, following an incident outside a night and commenced secondary school in Supreme Court of Victoria club; Germany before her family returned to • The Oil for Food Inquiry where he Canberra. She began Arts/Law at the The Honourable appeared for several AWB employees University of Sydney, and after taking a and had the unique experience of first class Honours Arts degree was Justice Terry Forrest cross-examining Alexander Downer; awarded a post-graduate scholarship. She • The truck driver (Christien Scholl) then obtained a doctorate at the University A carefully undertaken human genome of charged with and acquitted of killing by of Paris at the Sorbonne. Later, on her Terry Forrest QC who has just taken his culpable driving eleven train return to Australia she completed her judicial seat on the Supreme Court of passengers in the Kerang Rail Crossing law degree and began at Blake Dawson Victoria, would reveal a fundamental incident; in July 1989. Less than a year later, she legal structure, despite an outward • The show business identity (Gavan was seconded to the policy and research appearance of chaos. His Honour’s father Disney) creator of ‘Hey Hey its division of the Attorney-General’s was a County Court Judge, regarded by Saturday’ charged with and acquitted of Department, where she was involved many as one of the finest judges ever to sit sexual offences alleged to have in developing the rescue scheme to on that court, and his uncle a solicitor. occurred in his time at a country TV compensate those who lost their savings Terry has joined on the Supreme Court of station in the 1980s. in the collapse of the Pyramid Building Victoria, his older brother, Jack, a smaller Terry was a brilliant advocate. He was Society. Her Honour came to the Bar in version of Terry but with even less able very quickly to see the potential 1993, reading with Justice Hargrave. She sitzfleisch. winning point in a case and was expert at had three readers, Dr Jennifer Beard, Terry commenced his legal career in persuading the trier of fact or law – Rachael Ellyard and Dr Vicki Priscitch. In 1978 articled to Frank Galbally known to whether a judge or jury or some other May 2007 she was appointed Crown
22 VICTORIAN BAR NEWS Summer 2010 Consul advising for a three year term, and passionate and lifelong supporter of the to Mr Ross Nankivell for permitting him in November 2007 she took silk. St Kilda Football Club. His Honour also to borrow extensively from the Chairman Mr Barlow spoke on behalf of the became a keen and able basketball player of the Bar Council’s welcome speech. solicitors of the State. He referred in and proficient in the clarinet, tenor MGRG particular to her Honour’s ‘human saxophone and drums. passion for justice’ and her ‘uncanny After school, His Honour studied law County Court of Victoria ability to see through peripheral issues to and commerce at the University of the heart of any situation.’ On a lighter Melbourne. He was active in the Law note, he mentioned her family involve- Student’s Society and was the music critic Judge Timothy ment with Australian Rules Football, and for the student magazine Farrago. her recent ‘extraordinarily well informed His Honour did his articles at Ginnane and robust cross-examination of an Middletons Oswald Burt & Co (as it was expert on the history of the Australian then known). He came to the Bar shortly It was apparent to the many members of Football League’ in a case involving after his admission, and read with Peter the Bar, solicitors and friends and family Waverley Park. Clark SC. who attended his Honour Judge Tim Justice Emerton gave a very interesting His Honour developed a strong Ginnane’s welcome on 18 September 2009 and personal speech by way of reply. She practice in energy and resources cases, that the appointment of his Honour was a explained that it was because of her which involved interstate and popular one and that he is a person experience studying the history of ideas international travel. This included widely respected and much admired. in France that she finally decided to disputes concerning the Ranger uranium His Honour was admitted to practice become a lawyer in Australia. She said mine, the Jabiluka uranium mine as well in 1977 and was Associate to the that for all the admiration and affection as dealing with native title rights, Honourable Justice Reginald Smithers of she felt for the French, she did not feel Aboriginal culture and relations between the Federal Court of Australia. After especially responsible for what went on the Commonwealth and the Northern reading with Alex Chernov, his Honour there. In contrast she felt involved in and Territory. signed the Bar Roll in October 1979. responsible for what went on in Australia His Honour had five readers. The first Over the course of his time at the Bar, and that the law offered the best oppor- was Michelle Gordon (now Justice his Honour appeared in many leading tunities to participate and contribute to Gordon of the Federal Court), Annette cases in the commercial, industrial and the discussion about how we create a fair Eastman, Trischa Mann, Michael Gronow administrative law fields. His Honour and just society. Her Honour referred to and Dr Colin Campbell. His Honour took appeared as counsel assisting, with others, the special opportunity to be of service to silk in 1999. His Honour also helped with the Cole Royal Commission into the the community that becoming a judge the teaching in the Bar Readers’ Course building and construction industry. provides. Given her Honour’s history and has contributed to the Bar in other His Honour was generous with his there seems no doubt that she will ways too numerous to mention. time. Over the course of his practise at the provide such service to the highest level. His Honour is regarded by colleagues Bar he had eight readers, and gave to each SLM as being ‘straight as a gun barrel’. His of them the great benefit of his Honour is unfailingly polite, courteous experience, patience and courtesy. and helpful to all. He was and is held in His Honour is a person with deep roots Supreme Court of Victoria great affection and esteem by everyone in the Western suburbs of Melbourne – who has had the pleasure of being with growing up and beginning school in The Honourable His Honour on level 14 of Owen Dixon Footscray – and is, as all who know him Chambers West. are well aware, a passionate Western Associate Justice He also has a dry but impish sense of Bulldogs supporter. His Honour, with humour. This was illustrated by a dinner others, was instrumental in the campaign Nemeer Mukhtar party conversation when others at the to save the Bulldogs when debt and the table were speaking of their Scottish machinations of the VFL threatened the His Honour is the first person directly ancestry. His Honour asked in a thick club’s existence – raising close to $2 appointed as an Associate Justice of the Scottish accent whether they had not million with the ‘Save the Dogs’ campaign Supreme Court of Victoria. The previous heard of the clan ‘McTarr’. His Honour is in just three short weeks . The Bulldogs Associate Justices were all Masters married to Catherine Mukhtar, herself an lived to fight another day. All that was immediately prior to their appointment. Associate to another Associate Justice, missing on the morning of his Honour’s His Honour was born in Iraq in 1958 and they have two sons named Michael welcome was the Bulldogs’ club song as and came with his parents to live in and Matthew. he came into court. Australia in 1965 at the age of 6½. The Victorian Bar welcomes and His Honour has a long standing He was educated at Ripponlea State applauds his Honour’s appointment as an commitment to the community, School, Mentone Park Primary School Associate Justice of the Supreme Court. particularly those who are vulnerable and and Mentone Boys’ Grammar School. in need. His Honour has been a volunteer During his childhood, he became a NOTE: The author expresses his gratitude with the St Vincent de Paul Society for
VICTORIAN BAR NEWS Summer 2010 23 many years, and for some ten years was common touch. In the 1980s as a trial has presided over the trials of some of our Chairman of St Mary’s House of Welcome judge he had quite a following among the most infamous criminals, including – a day centre for the homeless operated aptly named alternate jury. This casual Camilleri, Dupas, and Denyer. by the Daughters of Charity. bunch of jury trial spectators vied for His Honour chaired the Adult Parole His Honour’s family joined with him to seats in the big cases and were said to Board from 1988 until 2001 when he was celebrate his welcome and his Honour admire his Honour’s unflappable calm, elevated to the Court of Appeal. He spoke warmly and very movingly of the and his penchant for eloquent pauses derived considerable mirth from stoushes influence of both his parents on his life, while peering over the top of his glasses. with disgruntled parole applicants such as and of the great support and joy that he His Honour was a ‘Port Boy’, the son of Mark ‘Chopper’ Read, who sent regular has found since his marriage to Jo and the a wharfie, Frank Vincent Senior. He was tongue-in-cheek Christmas cards. Not arrival of their son John. taught to tap-dance by his hardworking content to direct all his energy towards As Digby QC said in closing his mother and no doubt garnered skills from the law, he became Chancellor of Victoria welcome remarks, ‘Your Honour is a good both parents for use in later life. He University and patron of Western lawyer, and a generous and compassionate learned a little about oratory through Chances – an organisation seeking to man. You have in your work and your life helping his father prepare speeches to be broaden the reach of educational shown the attributes of a good judge.’ delivered at Trades Hall, and the tap- opportunity in the Western region. He All those who know his Honour, and dancing lessons came in handy in defence was awarded the Order of Australia in those who will come to know him during of many a client in Supreme Court Four. 2007. his time on the bench, will have no When studying at Melbourne University, In the Court of Appeal, his Honour difficulty in agreeing with that his Honour stole time away from the never undervalued the importance of due description. books to absorb some of the stellar process. Their Honours Coldrey and JM performances of the inimitable Frank Vincent JJ are sometimes caught Galbally. reminiscing about early battles for After signing the Bar Roll in 1961, his Aboriginal clients in cases such as the Honour fielded daily inquiries from his Huckitta Station murder trial. From the proud father demanding tales of forensic seeds of that early work one can trace his triumphs. The pressure to succeed must Honour’s contribution in the Court of Adjourned sine die have had an effect, because his Honour Appeal to cases such as Jack ‘Jihad’ successfully appeared in his first murder Thomas. His Honour had a keen Supreme Court of Victoria trial in 1964. In those death penalty days, appreciation of the fact that a confession beating a charge of murder was no small obtained by blandishment or oppression matter. His Honour combined a rare is in truth no confession at all. The Honourable mix of talents: he was a brilliant cross- We wish his Honour well in his examiner, a captivating jury advocate and retirement. Justice Frank a fine lawyer, and was equally comfortable JAD addressing the sharpest judge or speaking Supreme Court of Victoria Vincent AO to clients of few words and modest means. The Honourable Justice Vincent’s His Honour’s commitment to equal The Honourable reputation in Victoria’s criminal justice drew him to the Northern jurisdiction is perhaps unparalleled. Territory, where he bunked in with the Justice Thomas During his years at the Bar he appeared as likes of Coldrey, Hore-Lacy, Dee and counsel in a vast number of murder trials, Parsons. Pleas of not guilty for Aboriginal Harrison Smith taking silk in 1980. He went on to preside clients were almost unheard of in the over many more trials as a judge, and Territory until then. On Friday 31 July 2009, in a packed took his career to its logical conclusion His Honour was appointed to the Ceremonial Court, the law bid farewell to when he became a member of the Supreme Court by Attorney-General Jim the Honourable Justice Thomas Harrison Victorian Court of Appeal. While his Kennan in 1985. Sir John Young was Smith. Tim Smith, as he was fondly contributions in common law can’t be Chief Justice and the Full Court known to the Bar, was so called no doubt disregarded, his Honour literally left his included Crockett, Starke and their to differ him from his distinguished dabs all over the major criminal trials of contemporaries. father, the Honourable Mr Tom Smith the recent decades. His retirement marks His Honour has publicly decried the QC who was an equally loved and a generational change for criminal notion of capital punishment. His stand admired member of the Bar and the practitioners, especially in the wake of the on the issue gains special credence since Supreme Court Bench. retirement of Justices Coldrey and no one could accuse his Honour of His Honour came to the Bar in Cummins. coming from an ivory tower, nor of February 1965 and as junior counsel Coming from proud but humble lacking an appreciation of the depths of developed a reputation for being an all beginnings, his Honour never lost the human depravity. After all, his Honour round lawyer and advocate. He was
24 VICTORIAN BAR NEWS Summer 2010 understated and penetrating as an resigned from the Bar and took up a full- committee of the Bar that was ultimately advocate and learned as a lawyer. time position as a Commissioner on the successful in urging the then government The quiet understated manner Australian Law Reform Commission. The to improve functioning and facilities of successfully hid from most of his work of this Commission was far-reaching the courts, a subject that remained dear colleagues and instructing solicitors an and his Honour played a pivotal role in to his Honour’s heart when he was a uncharacteristic love affair with Porche the work of dragging the law into the 20th member of the County and Supreme motor cars. It also hid the fact that he was century, a role that in his later judicial Courts and experienced at first hand the an accomplished field athlete, having been career he quietly continued to perform. cautious approach of successive a champion shotputter at school and As lecturer in the RMIT course in governments to funding the judicial university intercollegiate level. Evidence, his Honour developed what system. Upon appointment to the Upon the retirement of his father in became a life-long interest in this area of Supreme Court his Honour continued his 1973, his Honour inherited an extensive the law. When appointed in 1980 as a interest in judicial administration and law library which was the envy of the Commissioner of the Australian Law education and was a tireless contributor entire Junior Bar. He had come to the Bar Reform Commission, his Honour was to court governance. when it was almost compulsory for baby placed in charge of the reference relating On 1 May 1990 his Honour was barristers to cut their adversarial teeth in to the law of evidence and the committee appointed a Justice of the Supreme Court a wide range of Magistrate Court cases for led by him drafted the report which of Victoria. Thereafter, until his some years. As time passed, the growing became the Commonwealth Evidence Act retirement in July of 2009, his Honour reputation of his Honour as a lawyer was 1995, upon which the uniform Evidence became a highly regarded and much loved in part reflected in the significant Act of all the Australian States and member of the Court. His industry, commercial and administrative law Territories is now based. His Honour patience and learning combined to make practice which he developed in all courts. remained on the Commission until 1984 his Court a pleasure in which to appear. His Honour’s deep interest in the when he returned to the Bar and took silk Whilst the adversarial nature of litigation teaching of and the development of the in 1985. inevitably means that one side is law was nurtured by his appointments to No doubt it was only the time away disappointed to lose the case, no litigant Monash University and the Council of with the Law Reform Commission that whose case was decided by his Honour Legal Education Article Clerk’s course at delayed his Honour’s appointment as silk was ever entitled to complain that all their RMIT where for over a decade he earned because his standing and reputation at the arguments had not been heard and given the reputation as a distinguished law Bar meant that but for his time away he a thorough analysis. The courtesy lecturer in Evidence. was expected to have taken silk earlier extended by his Honour to all who found With this background it is no surprise than 1985. themselves in his Court was exemplary. that his Honour was in strong demand for His busy role as a leader came to an At the time of his retirement his the role of what was then called ‘Master’ end when on 11 July 1988 his Honour was Honour was the Principal Judge of the to five readers. In order they were Ian appointed to the County Court. In this Common Law Division and it was an Henry, the late Ian Sutherland QC, Bruce Court he quickly established a reputation appropriate Division for his Honour, Millar, Peter Bick QC and Pieter Tomaz. of being an industrious Judge. given that he acknowledged that in the It must have been in his Master’s At the time of his appointment to the first County Court trial over which he chambers that the quiet and County Court his Honour worked on the had presided for a claim in personal undemonstrative Bick QC caught the Legal Systems Committee. Perhaps it was injuries, he had earned the nickname bug of driving flashy cars. no surprise given his judicial parentage ‘Tattslotto Tim’. However, what is usually While still junior counsel, his Honour that his Honour was keen to work on a ignored about this nickname is that
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VICTORIAN BAR NEWS Summer 2010 25 successful appeals against judgments by appointed as counsel assisting the first floor. As I was dialling the numbers I his Honour were exceedingly rare. This National Crime Authority. He served on stared straight at an advertisement for the was a tribute to his industry, learning and the Bar Council for ten years, was a position of Associate to the Honourable judgment. In his speech at his farewell his member of the Readers Practice Course Justice Cummins of the Supreme Court of Honour rightly pointed out that the Committee and became Chairman of the Victoria. Of course I applied. The dispute which rages between those who Bar in 1986 and then Vice-Chairman of interview was unlike any I had previously describe themselves as ‘black letter the Australian Bar Association in 1987. experienced. HH did most of the talking. lawyers’ and those they derisorily define But these significant achievements don’t He asked me some questions that had as judicial activists is an illusory dispute capture the impact His Honour had on nothing to do with the law; they were as the common law has always grown and our profession and on those who had the about my migrant background, my developed to meet new needs and new privilege and pleasure of working with western suburbs upbringing, my time at understandings. His Honour played a him. university and my views on matters that leading role in this growth and What follows then is my personal would reveal my opinions and how I development, hence the enormous regard tribute to the brilliant and complex man I thought. It was a very relaxed meeting. in which he was held by all who practised came to know. After the pleasant goodbye a week passed before him. Having finished my degree interstate in and I heard nothing. Being young and RM 1988 I attended Summer School at brash I telephone HH. He answered the Melbourne University as I needed to phone and I could hear that he was complete the component called ‘Ethics’ so surprised at my call but I could also hear Supreme Court of Victoria that I could practice in Victoria. The him smiling. So I asked as one does at lecture was to be given by the Honourable that age, and with the level of impatience Justice Cummins who I will now refer to the young often carry: ‘Your Honour, it’s The Honourable Justice as ‘HH’ (His Honour), of whom I had no been a week and quite frankly I need you previous knowledge at all. to put me out of my misery. Did I get the Philip Damien HH took his place at the lectern and job?’ I heard him laugh that throaty and began his lecture on ethics. From the slightly high-pitched laugh that he has Cummins moment he uttered the first few words and he said, ‘Yes, my girl, [he always from the perspective of a former until the lecture ended, I and the other called his associates ‘my girl,’ or ‘my boy’] students were silent, perched forward in You have the job, I’ve just been busy and Associate our seats listening, hanging onto every we haven’t sent out the rejection letters word. It was clear exactly why he was a yet, so keep it to yourself.’ Needless to say, Philip Damien Cummins was educated at successful advocate and had become a I was ecstatic. Xavier College and then Melbourne successful judge. I remember thinking as I recall that some time after I was made University where he graduated Master of I left the lecture theatre, ‘I could work for his associate, HH was hearing a matter in Laws with first class honours followed by that man’. Little did I know that I would the practice court where a young barrister a Diploma in Criminology and a double be lucky enough to get that opportunity a was struggling. His arguments were not major in psychology. He was articled at year later. very well formulated and although it was Cleary Ross & Doherty, read with Abe What is clear when I look back on that obvious what he was trying to argue, his Monester and was trial counsel in many event, with the knowledge I have now, is newness at the Bar robbed him of the notorious cases. He became Queen’s why in 1986 he was elected to be eloquence we all hope to achieve one day. Counsel in 1978 at the age of 39 and was chairman of the Young Barristers His opponent on the other hand was well Committee and why when Four Courts seasoned but for some reason was making Chambers opened (mainly for the benefit a bit of a mess of his submissions. HH was of young barristers), he was the only extremely forgiving of the young barrister, Queens Counsel to choose to be housed helping him whenever he could. However, there. It was not a very prestigious towards the more seasoned barrister HH building at that time and HH occupied was quite unforgiving yet always polite, very comfortable chambers on the top questioning every sentence and throwing floor of the Owen Dixon Chambers, in a hypothetical or two. After an together with Billy Sneddon, James exhausting hour (and I was only Gobbo, Brian Shaw, Glen Waldron, observing), we adjourned to the ante- Norman O’Bryan and others. HH always room. HH plonked himself into a chair felt a need to look after, guide and protect and looked at me. It was an invitation to young advocates, hence his move to Four speak, so I did. I asked him why the Courts Chambers. difference in the way he treated counsel. A year later when I was at the Leo His response was, ‘The more seasoned Cussen Institute, I had occasion to make a advocate should know better,’ and he phone call on the public phone on the smiled. I understood, even as a 24 year
26 VICTORIAN BAR NEWS Summer 2010 old, that in our experience we should care I asked HH once during a bit of court became a challenge and what I didn’t for and assist young advocates to increase down time why he gave up such a realise was that he was pushing me to their skill level and not crush them when lucrative practice to become a judge at the push myself and I witnessed him doing they try but get it wrong. young age of 49. He said that as much as this to young advocates all the time. Once There was another poignant moment he loved the Bar he was being asked to he introduced me as his reader, having during my time as his associate where we perform a very important public service realised his error, he turned to me and were called back from Christmas and felt that he couldn’t say no. I felt said ‘it’s a bit like that isn’t it,’ and he was holidays. HH was to preside over an overwhelmed by that response. right, you always learned from the things anti-discrimination case at a time where During short lunch breaks and as part he said and did. the public transport authorities had of an associate’s normal job, I would have I recall once we were on circuit and introduced bus and railway tickets which to go out and get HH something to eat. I the government body responsible for required the user to scratch the ticket’s remember going in one day and asking reimbursing us for expenses incurred on silver coating (quite precisely), to reveal HH what he wanted for lunch. He said, circuit overpaid him by $5. He wrote a the date and month of travel. For people ‘My girl, in the words of Lord Tennyson…’ cheque and asked me to post it back, with disabilities like muscular dystrophy to which I interrupted, ‘For goodness explaining. I commented that the labour this was an impossible task. At the end of sakes, your Honour, I only have an hour!’ involved in writing the letter, and the the case HH handed down his decision in He laughed and put in his order. That’s postage would cost HH and the favour of the disabled plaintiff and retired one of the things I liked about working government more than the initial to the ante-room. There was a vent for HH: his ability to treat you as though overpayment (remember I was only 24). between the ante-room and the court. We you could say anything to him without HH said, ‘In this job you must be above could hear cheers coming from the court fear of a curt response Whether it was a reproach, remember that.’ It was barely a room, high 5s being struck and lots of joke or an opinion, he always listened. year later that various politicians got into laughter and relief. HH looked at me and He would often ask my opinion as trouble over travel rorts. said, ‘Wasn’t that worth coming back though I knew as much as he did (which In 1989 I threw HH a 50th birthday from leave for?’ Of course it was a we both knew was not the case). I initially party. It was in a venue in town below rhetorical question. struggled to formulate answers but then it ground. About 100 people were there and
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bar_news_advert.indd 1 19/11/2009 3:21:21 PM VICTORIAN BAR NEWS Summer 2010 27 I ordered a large cake. When it came time it is not – partly your fault, I guess), your signed the Bar Roll in 1959 when there to blow out the candles, HH who had a methods, knowledge and kindness to all, were only 200 barristers and everyone bad leg at the time and was having a bit would epitomise it. knew each other. He practised criminal of difficulty walking, raised said leg in a Farewell and best wishes from us all. law for 25 years. He took silk in 1975, the round house kick (that would have made Susan Borg first specialist in criminal law to be so Bruce Lee proud), and travelling Former associate, Crown Prosecutor appointed. He served the Bar tirelessly centimetres above and across the length and devoted friend and with distinction and was a member of the cake, put all the candles out of the Bar Council from 1974 to 1984. instantly. The room cheered – HH could ‘Criminal Jack’, as he came to be always take you by surprise. Ask anyone known, appeared in many major and who learned from or appeared in front notorious cases, including 150 murder of him. DECREE ABSOLUTE trials. It was a different era of criminal HH often acted like a proud father practice within which to excel – the death when one of his protégés achieved a goal penalty was imposed upon those or did something he thought would be The Honourable John convicted of murder, although usually good for their advocacy skills and so he commuted; there was no pre-trial beamed like a proud father the day I ran Harber Phillips AC QC prosecutorial disclosure of the kind into him in the street in 2007 and known today; the defence lost the right of announced that I was about to take my John Harber Phillips died on 7 August reply if it introduced any evidence at all, place amongst the crown prosecutors at 2009, aged 75. The passing of the tenth including the tender of an exhibit; the Lonsdale Street. I swear I heard him click Chief Justice of the Supreme Court of police verbal was an entrenched practice; his heels as he walked back to court. Victoria marked the end of a lifetime and the judiciary was comprised of men I have to say that appearing in front of of service to the community and alone, largely from a different era. There HH for the first time was not daunting. I conspicuous achievement in and outside were no excuses. Young criminal knew he would challenge me but that he the law. John Phillips was a renaissance barristers were compelled to hone their would always be fair and polite. At the man of many parts, of deep passions, of advocacy skills, to prepare thoroughly end of every appearance he would always concern for others, particularly the fragile and present their cases with precision and say ‘I thank you, Ms Borg, for your and disadvantaged, a charming and skill. John Phillips did all this naturally. assistance as always, and you too, Mr…,’ elegant person who was devoted to the He was the consummate advocate, one and he would give me a fatherly smile. I law and all it might achieve to benefit who gave real meaning to the expression always felt proud leaving his court room society. ‘the iron fist in the velvet glove’. Once at all I’d learned under his watchful eyes. His Honour came to the law from a described as an ‘elegant street fighter’, his The last thing HH said to me when I humble and modest background. He was style was quiet, measured and deadly. It left his service as an associate and was lucky enough to win scholarships that was said that to be cross-examined by about to go to the Bar was, ‘My girl, you took him to the De La Salle Brothers and Phillips was to know cross-examination. have crossed the Rubicon. You may now later to the University of Melbourne. He In all this, he brought to criminal practice call me Philip.’ The Rubicon was of course a dignity and respect which was long the street between the Supreme Court and overdue. Today, much can be learned by the Bar. the Criminal Bar from his example. So having crossed the Rubicon, Philip, His Honour was appointed the may I say that like many I am finding it inaugural Chairman of the Criminal Bar hard to come to terms with your Association in 1982 and the Bar witnessed retirement. No doubt you will make a the emergence of its largest practice splash back on the scene with some plan group. Today, its members comprise that will allow you to continue to turn almost one quarter of those practising at young inexperienced advocates into well the Bar, and the CBA vitally and seasoned ones. In the meantime, know effectively supports criminal practitioners that all who have had the honour of your and criminal law reform. knowledge, friendship and assistance are In 1982, with Andrew Kirkham as his grateful to you, that those you’ve junior, his Honour appeared for Michael represented in your time as defence and Lindy Chamberlain in the most counsel were fortunate to have the benefit famous criminal trial in modern of your advocacy and that the community Australian legal history. While the media is grateful for your devoted service. savaged Mrs Chamberlain, it dealt kindly We are often told that the law is not with her senior counsel whose about justice, it’s about a legal process, ‘…impressive performance vindicated his however, I must say that if it was about reputation as one of the best criminal justice (and I am yet to be convinced that lawyers in Australia’.
28 VICTORIAN BAR NEWS Summer 2010 Following the Chamberlain case, in In 1998, he was appointed a terribly. As he said when he farewelled the 1983, his Honour accepted appointment Companion of the Order of Australia for profession as Chief Justice: la comedia é as the first DPP for Victoria – also a first ‘services to the law, law reform, literature finita: the show is over. Now, it truly is. for Australia. He presided over a truly and the visual arts’. Vale John Harber Phillips. independent prosecution office and, in On the occasion of his Honour’s Judge Tony Howard his short time as DPP, he successfully retirement from the Bench on 17 October addressed the problem of significant 2003, the Bar Chairman noted his delays in bringing matters to trial and was stewardship as Chief Justice had seen recognised as a skilled administrator and significant expansion and re-organisation Anthony E Hooper QC law reformer. of the Court with the creation of the In 1984 his Honour was appointed a Court of Appeal and divisions in the trial Tony Hooper was born on 13 January Justice of the Supreme Court. Over the court, the acquisition of the old High 1938. He was educated at Scotch College next six years he proved to be an incisive, Court building, the substantial and matriculated at the age of 16. I shared hard-working and courteous trial and refurbishment of the Court buildings and a study with him in Ormond College in appellate judge. It was always a pleasure to facilities, the introduction of computer 1955 and we remained friends thereafter. appear in his court, particularly for the technology and the appointment of There are many good stories about young advocate. His elegant judgments women to the Court. The Attorney- Tony in his younger days. Despite living reflected intellectual rigour, a keen grasp General referred to his Honour’s life to the full, Tony passed his exams and of the law and much common sense, also ‘unflagging integrity in an era of graduated aged 20. He had a deep regard shown in his work as Chief Justice when unprecedented change for the Court’ and for Ormond College, which continued presiding in the Court of Appeal. to his commitment to open justice and for the rest of his life. He played an active His Honour had an enduring interest meaningful efforts to bring the law to the part in college and university life and in the forensic sciences. In 1985 he was people of Victoria. The President of the later took great pride in the fact that his appointed chair of the Victorian Institute Law Institute spoke of the Chief Justice solicitor father Cecil he and his son of Forensic Medicine. The Chamberlain throwing open the doors of the Court and Edward all represented Ormond in trial had pointed up the crucial need for engaging with the community ‘…as their athletics. such an institution, which has now Chief Justice – accessible, modest, After completing articles with become one of the outstanding compassionate, learned in the law – but Mallesons, he signed the Roll of Counsel establishments of its kind in the world. above all a man of the people.’ on 27 July 1961 as a member of Dever’s Importantly, its services are available to John Phillips’ work was not only list. He took silk on 24 November 1981 both the prosecution and defence. In confined to the law. He loved the and practised continuously thereafter 1991, he was appointed chair of the Collingwood Football Club and the until his death on 19 July 2009. He was National Institute of Forensic Science and classics. He delighted in a dinner and a of 71. he co-authored the text Forensic Science glass of wine with his friends. He was an Tony and his first wife, Beverly, were and the Expert Witness. acknowledged author and playwright, married in 1961. They had four children, In 1990 his Honour left the Bench to with a passionate interest in the Ned Kelly one of whom (Andrew) currently become chair of the National Crime saga. He had a lifelong interest in Italian, practises at the Bar. His second wife was Authority and a Justice of the Federal French and English opera. He trained as a Judy, with whom he had a further child. Court of Australia. The NCA was in singer and enchanted many with his rich He was a complex man who overcame troubled waters and over the next 15 baritone voice. a number of difficulties, including months he steadied the ship. He Having left the Bench, but not the law, alcohol, which affected his career for a introduced a major blueprint for the John spent his last six years as Provost at time during the early to mid 70s. To his future development of the NCA, which the Sir Zelman Cowen Centre, Victoria great credit he overcame this problem, involved a concerted attack on corporate University, where he continued his good and from that time ceased to consume crime and drug trafficking in Australia. work until he was struck down by illness. alcohol. In this regard and many others, In December 1991 his Honour was The Chief Justice delivered the I know that he would like me to mention appointed Chief Justice of Victoria and principal eulogy at a State Funeral held on the great support given to him by his served with distinction in that capacity 14 August 2009. In a moving speech on clerk, the late Percy Dever, and the for the next 12 years. Much was achieved that occasion, Andrea Phillips spoke of subsequent support that he received from by his Honour, including his leadership of her father as wonderful family man, of his John Dever. the courts and many professional and law deep devotion to his beautiful wife, Helen He accepted a permanent appointment reform bodies; his chairing of the Victoria and of the magical childhood she shared as a Chair of the Town Planning Appeals Law Foundation and the Judicial College with her brothers, Nick and Tim. Tribunal from 1976–1981 and was of Victoria; his special support and So much achievement. So much to be regarded by many as the most outstand- recognition of women lawyers in Victoria; proud of. Such a life. ing Chair that the Tribunal ever had. He and his active involvement in advocacy Those who knew John Phillips well had a deep knowledge of the area and an training and with a number of were indeed fortunate to have his exemplary capacity for objectivity and international legal associations. friendship and love and all will miss him fairness. He was also highly regarded by
VICTORIAN BAR NEWS Summer 2010 29 the non-lawyer members of the tribunal, from 1982. He was a member of the through one of the toughest periods of whom he respected in turn. Appeal Costs Board from 1978 to 2006 my life’. He returned to the Bar and took silk in and chaired it from 2000–2006 and was I first worked with Michael in 1995 on 1981. He was a fine barrister, who showed active in a number of other professional what became the longest running civil intelligence, competence, a fierce sense of committees. trial in the history of the Federal Court independence and a willingness to fight He will be greatly missed by his family sitting in Melbourne, Henderson and hard for his clients. He quickly became a and by his many friends on the Bar and Others v Amadio Pty Ltd and Another. leader of the Bar in the areas of Town Bench and in the wider community. This case involved a failed ‘tax effective Planning and Local Government law. The The Hon. Alastair Nicholson investment scheme’ as a result of which following summarises some of his notable AO RFD QC some 23 persons and firms were sued by achievements: aggrieved investors. Michael and I acted • In City of Nunawading v Harrington for the 22nd respondent, a small and Others [1985] V.R. 641, Tony accounting firm. persuaded a Full Court that a bakery This case was a Herculean struggle. located on land which had been sold Michael Rothschild Of the 20 counsel involved, five were and not used for a number of years still subsequently appointed to the Court of attracted non-conforming use rights. Shatin Qc Appeal, the Supreme Court or the Federal This decision was and still is the Court. During the six months of that case, leading Victorian case on non- On 2 November, 2009 Michael Shatin QC Michael and I virtually lived together. conforming or existing use rights. died after a long battle with lung cancer. Michael’s dedication was exhausting. • He developed a technique for running Shortly after Michael was diagnosed Some nights the only way I could sleep interference with shopping centre last December, he told me that he was on would be to unplug the phone, knowing developments by challenging the borrowed time and was retiring from the that if I forgot to do so, at some unholy legality of the planning scheme amend- Bar. Michael took the verdict with his time Michael would have a brainstorm ment or appointment of the panel usual grace and dry wit. He said that I was which he would have to share with me. hearing the matter. This inevitably briefed to write his obituary and deliver his Largely thanks to Michael’s skill and resulted in the panel deferring to the eulogy, but on condition that I say nothing diligence our client won the case, all of Supreme Court whilst the proceedings about how brilliant a barrister he was. the other respondents lost, and we were on foot. The reverse tactic if I responded that this seemed to me like obtained an order for our client’s acting for a proponent was to take another typical Shatin flick brief – whilst indemnity costs. We later successfully proceedings in the Supreme Court it involved work for a good cause there defeated appeals by several of the compelling the panel to proceed with were no fees up front and there was little respondents. Throughout it all Michael the hearing. Cases exemplifying one or prospect of ever being paid. But I added remained the true believer and the both tactics include Karco Nominees that his condition that I say nothing but courageous and canny barrister he always Pty Ltd v Diane Morrison & Ors (1984) lies about his skill as an advocate was was. 2 PABR 362 and Murragong Nominees otiose. Michael was a superb advocate. Over the 13 or 14 years that followed Pty Ltd and Ponte Properties Pty Ltd v Michael came from a family of lawyers, Henderson v Amadio, Michael and I MMBW & Ors (1985) 4 PABR 73. both his parents being solicitors. After worked on many more cases together, • Tony loved to act for sporting clubs Michael finished his schooling at Geelong always with good ultimate outcomes for that he supported. He won a long battle Grammar he studied law at Melbourne our clients. Michael’s wisdom and clarity for the development of the Carlton University. He graduated in 1966 and was of thought was something he freely Cricket and Football Social Club, admitted to practice on 1 March 1967. On shared with me and the many other including the introduction of gaming 18 May 1967 Michael signed the Roll of barristers who had the great good fortune machines – see RSL v Carlton Cricket Counsel of the Victorian Bar. Michael to know him. & Football Social Club Ltd [1998] became one of Her Majesty’s Counsel in I also had the honour of working with 2 VR 406. November 1993. Michael on his last case in November • Tony was instrumental in many cases Michael had a diverse practice which 2008, being BMW Australia Finance concerning local government had many highlights, including appearing Limited v Miller & Associates Insurance amalgamations or reform. His talents as senior counsel for the Commonwealth Broking Pty Ltd. Once again, largely for resisting abuse of natural justice Bank in the Tricontinental Royal thanks to Michael, the true believer, we and technical points assisted him in Commission. succeeded in persuading the Court of opposing major government initiatives In 2000 Michael successfully represent- Appeal to reverse what was found to be a to amalgamate municipalities ed the former Australian Test Cricketer, mistaken decision below. It was fitting attempted by the Cain Government. Mark Waugh, who was the subject of that Michael went out on a winning note. Tony was a member of the Legal Aid an investigation by the ACB. In Mark Michael will be deeply and sorely Committee (later the Commission) from Waugh’s personal note to his authorised missed. Michael Shatin QC was a fine 1979 to 1985. He was Acting Judge of the biography, Mark thanked Michael for his barrister and a splendid friend. Liquor Control Commission periodically ‘belief and confidence in me to get me Mark Robins
30 VICTORIAN BAR NEWS Summer 2010 ETHICS COMMITTEE BULLETIN
PRACTICE RULES REFERENCE “SOLICITOR”
Counsel will be aware that many of the Practice Rules refer to ‘solicitor’.
Counsel will also be aware that this description is not employed in the Legal Profession Act 2004.
Counsel are advised that the Ethics Committee have determined that a reference to a ‘solicitor’ in the Practice Rules should be interpreted as meaning an Australian Legal Practitioner who does not practice exclusively as a barrister.
That interpretation is applied in the exercise of all of its powers, whether it is investigating complaints referred to it by the Legal Services Commissioner, or in giving Rulings and Dispensations.
In consequence, the Ethics Committee interprets ‘solicitor’ to include, save for barristers, all Australian Legal Practitioners, irrespective of whether they are local or interstate, whether they hold full practising certificates or employee certificates, or are in independent practice or engaged by corporations.
Richard W McGarvie S.C. Acting Chairman
Celebrating female judiciary in Victoria, WBA
On Wednesday 14 October 2009 over 50 Marilyn Warren was the special guest (as them to ‘please mix and mingle.’ She also barristers and judges gathered at a Patron of the WBA). The purpose of the spoke of how hard her committee had cocktail party in the Essoign Club, for an event was generally to pay tribute to those worked in organising the event, and event entitled Celebrating Female many women who have over the years referred to her assistant co-convenors Judiciary in Victoria. It was organised by been appointed to the judiciary in Suzanne Kirton and Jan MacLean and the the Women Barristers’ Association, and Victoria, including current incumbents, ongoing work the WBA is doing. Over was open to all members of the Bar (male and to give female counsel and those drinks and nibbles the advertised purpose and female, members and non-members judges who attended the chance to get to of giving people ‘a chance to catch up of the WBA). All members of Victoria’s know each other better. Joy Elleray, the with each other’ was effected. judiciary from State and Federal current Convenor of the WBA, spoke SAMANTHA MARKS jurisdictions were invited. Chief Justice warmly welcoming everyone and asking
VICTORIAN BAR NEWS Summer 2010 31 Real Vicbar United Athletico Wanderers FC A barristerial celebration of camaraderie, sportsmanship and Brazilians…
hat is it about soccer that provokes such fanatical and unwavering devotion among fans and participants Walike? Is it the round ball? Could it be the unbridled manner of cele- Victorian Bar team members participating in the ‘Homeless Cup’ brations which follow the scoring of a goal? Perhaps it is a fasci- from L to R: James Fitzpatrick, Jim Doherty, Daz (Homeless Person’s Legal nation with the ongoing soap opera of Posh and Becks, or a love Clinic), Fiona (Homeless Person’s Legal Clinic), Miguel Belmar-Selas and of all things Brazilian, as Kaka, Adriano and Ronaldinho all seem Michael Katz. to inspire? Although soccer until recently has never really caught the im- for the Victorian Bar, Hamish Austen found the back of the net agination of the Australian public en masse, it maintains a stead- with a scorching shot to record Vicbar’s sole goal for the match. fast and enthusiastic following at the Victorian Bar. Impressive performances were also witnessed from Colin Magee, In continuity of the Victorian Bar’s fine sporting tradition, our Andrew Hanak, Tony Klotz and star captain-coach, Agardy. soccer players have now well and truly secured their place within In its third match for the year, although victories were record- the Bar’s great sporting pantheon. Their commitment, dedica- ed in two pool matches, overall success continued to be elusive tion and sportsmanship reflect the Bar’s finest ideals and they for Vicbar FC in the ‘Homeless Cup’, a community event that proudly represent us all when they play. 2009 was no exception. admirably attempts to engage and encourage the disenfran- Undeterred by a string of defeats, Vicbar FC regularly turned up chised and those living at the margins of our society. Our side in fine fettle and never flinched in giving its best. was captained and managed by Jim Doherty who organised the In their opening match for the year against the Law Institute’s Bar’s team to participate in the ‘Homeless Cup’ and best on solicitors, notwithstanding a brave effort on the part of counsel, ground was Fiona, transferred to Vicbar FC from the Homeless a 5–0 loss was recorded in the annual encounter with their Persons Legal Clinic for an undisclosed transfer fee. instructors. The team is currently in a rebuilding phase with some of its Next, it was the annual showdown against traditional rivals, leading players remaining under an injury cloud and captain- the New South Wales Bar to contest the Suncorp Cup (awarded coach Agardy is eagerly scouting for new recruits. to the victor of this annual stoush), which was played at Darebin Vicbar FC’s 2010 season will be commencing early in the year, International Sports Centre before a record crowd in chilly and which no doubt will be followed with great interest by players windy conditions. Although the game resulted in a 3–1 loss and fans alike.
Masai Barefoot Technology Competition! Yes, that’s right, Victorian Bar News has revived the good ol‘ competition. In what is the first competition inV ictorian Bar News for some time, we are fortunate to be able to give away one pair of Masai Barefoot Technology (‘MBT’) shoes (as worn by Justice Virginia Bell), valued at $389.00 per pair, to the lucky reader who can best tell us in 100 words or less ‘Why is it good for barristers and/or judges to walk in MBT shoes?’, courtesy of MBT Footwear Pty Limited, Australia.* the best response (as solely determined by the Editors, whose decision is final and no correspondence will be entered into) will not only receive a pair of the famous MBT shoes, but will also have their entry published in the next edition of Victorian Bar News. to enter simply email your shoe size and response (strictly limited to 100 words) to Miriam Sved at [email protected], before entries close at 5:00pm on Friday 26 March 2010. Emails should be headed ‘VBN Competition’. The winner will be announced in the autumn edition of Victorian Bar News. For more information about MBT Technology and where MBT Shoes are sold, visit: www.au.mbt.com
*The Editors of Victorian Bar News and the Victorian Bar Inc, make no warranty as to fitness for purpose of MBT Shoes.
32 VICTORIAN BAR NEWS Summer 2010 documents. It’s my case. My name is His Honour: Okay. Well, if you sit down Verbatim Slavica Zegarac. It’s my case. and listen … His Honour: I think you might be in the Ms Zegarac: No, no, I want to speak as wrong courtroom. well. I need to know what’s going on here, Australian Competition Tribunal so can you please let me know what’s Application by Fortescue Metal Group Ltd Ms Zegarac: No, I’m not. Are you going on in here, because I wasn’t told to Finkelstein J? Application by Robe River Mining Co Pty come. Ltd and Others His Honour: Yes, that’s me. The exchange continues in this Application by Hamersley Iron Pty Ltd Ms Zegarac: Yes, that’s my case. fashion for some time … and Others His Honour: I should have said no. Ms Zegarac: What it’s all about. I’m Application by BHP Billiton Iron Ore Pty asking you. Ltd and Another Ms Zegarac: That’s my case. His Honour: Okay. Well, it’s about trains. Mr Archibald: It would have been the Trains. Melbourne, 10.18 am, Wednesday, correct answer. 30 September 2009 Ms Zegarac: Trains. Yes, I know. You keep Continued from 29.9.09 Ms Zegarac: I have tried to tell the on changing the company’s name every Day three gentleman but … single time you have the hearing. I know. His Honour: This one here? [referring, it How many times has it been changed? Justice Finkelstein, President seems to Mr Archibald] His Honour: The name? No, no. Professor D. Round, Member Mr G. Latta, Member Ms Zegarac: … but he saw me and Ms Zegarac: Yes. ignored me, so he didn’t want to come to His Honour: But do you own any trains? Mr Archibald: If the tribunal please, talk to me. I’m sorry, this is my case. could I deal briefly with some aspects of Ms Zegarac: Excuse me, that’s your His Honour: Yes. Well, you might think the Fortescue infrastructure; their obstruct language – how? it’s your case, but … facilities … In June of this year, a joint His Honour: Locomotives. venture was announced between BC Iron Ms Zegarac: No, no, it is my case. and Fortescue. It’s not otherwise in the Ms Zegarac: It doesn’t matter. I His Honour: … but – but – I know, but evidence, but I will provide to the tribunal understand what you said; however, it is it’s not really. a copy of the June quarterly report, my case. All these companies, bogus published by BC Iron – June 2009. And Ms Zegarac: I’m sorry, it’s my case. companies that are created in my name, on the front page of that, the first item under my name, they don’t exist, and this His Honour: Yes. under Highlights. is all designed to get the money from the insurance from the government. Ms Zegarac: Excuse me, your Honours, Ms Zegarac: It’s my cases. this is my case so I would like to speak His Honour: More than one? His Honour: Yes, I don’t think they’re as well. after insurance in this case. Ms Zegarac: All of the four is my case. His Honour: Sorry? Ms Zegarac: Well, what is it in this case His Honour: Well, can I tell you that then? Ms Zegarac: This is my case. these people are paying a lot of money for His Honour: This is about trains. His Honour: This particular case? their barristers to do a lot of talking … Ms Zegarac: No, no, no, no. Ms Zegarac: Yes, this particular case is … Ms Zegarac: Yes, I know all about it. I know all about it … His Honour: Yes, yes. His Honour: Don’t think it is. His Honour: Do you? Ms Zegarac: No, no. Ms Zegarac: … my case – my case. Ms Zegarac: How the money goes and His Honour: I promise. His Honour: Okay. Well, you just sit – the insurance and all this stuff; I know all you just sit down at the back and have a about it. and continues until … listen. His Honour: Yes, yes. Security Officer: Sorry, your Honour. Ms Zegarac: No, I would like to speak as His Honour: Yes. well. It’s my case. Ms Zegarac: I’m sorry, this is my case. Security Officer: Mrs Zegarac … His Honour: You can speak later on. His Honour: Okay. Well, how about … Ms Zegarac: No, no, I’m talking for Ms Zegarac: No, during the hearing I Ms Zegarac: So I need to know what’s myself. want to speak and I want all of these going on here. Why I wasn’t let know to documents – discovery of all of these come here as well. Security Officer: Mrs Zegarac …
VICTORIAN BAR NEWS Summer 2010 33 Ms Zegarac: I have no representative in Ms Zegarac: Excuse me, are you saying and wait till the case is over, till you make here. this is not my case? a judgment in my presence and not to say anything. Security Officer: Mrs Zegarac, please His Honour: I am saying it is not your look at me. I have someone outside to talk case. Security Officer: You are making a to you. Please leave the courtroom. mistake, Ms Zegarac. Ms Zegarac: So that is not true. Right Ms Zegarac: I am talking to the now, right now, corruption is happening Ms Zegarac: I am not speaking to you, Honourable judge, and … right now. With all of these three judges, I’m speaking to the judge. Excuse me. it is all you here, this is corruption. Security Officer: Can you please come Security Officer: Ms Zegarac … outside with me? His Honour: It might be … Ms Zegarac: He has authority to say what Ms Zegarac: No. No, you have no right Ms Zegarac: This is corruption and I am he needs to say. You don’t have authority. to … going to go public, I am going to go Security Officer: Please leave the public about this, who are these people, Security Officer: You need to come premises. what are they doing? They getting money outside with me. from the government, from the taxpayer’s His Honour: I am just going to stand Ms Zegarac: No. You have no right to do money for what, for the bogus things that down for a few minutes. this to me. This is my case. So … don’t exist. Adjourned [10.38 am] Security Officer: It’s not your case, Mrs Security Officer: Ms Zegarac, you have to Resumed [11.57 am] Zegarac. You’re mistaken. Please leave … leave. You have to leave the court room. Mr Archibald: Before the … Ms Zegarac: … can you please tell me … Ms Zegarac: No, no, I am talking to the His Honour: We have to work out what judge. Security Officer: Mrs Zegarac, … we are going to do to make up some lost His Honour: That man is asking you to time. One of us has a meeting at quarter Ms Zegarac: … why I am not invited to go outside … past one. Is it possible to run through ’til my case. quarter past one, have only a 45-minute Ms Zegarac: Yes, it doesn’t matter what he His Honour: I will tell you why, because it break, so we get back half an hour … asks. Has he got authority to remove me is a different case. from my case, that’s the question. Mr Archibald: Yes. Ms Zegarac: It is not. His Honour: He does. His Honour: … and, if necessary, either His Honour: Yes, it is. with or without a break, sit a bit longer Ms Zegarac: He has no authority to into the afternoon, beyond 4.15, if that Ms Zegarac: I have the proof, it is not. remove me from my case. I have every suits? right to be heard. I have every right to be His Honour: Show me what proof you heard at my case. Mr Archibald: Yes. Well, we’ll see how have got. we’re going … His Honour: That is true. All right. Ms Zegarac: That is what everybody His Honour: Sure, absolutely. wants to know, how did I know. That part Ms Zegarac: That’s true. I will let you figure out yourself. Because Mr Archibald: … and then we can His Honour: What I might do, is that you know all these things, and you know perhaps catch up a bit more time man will talk to you. I am just going to go how you are doing things. It is so tomorrow. away for five minutes and just check a few impossible to get it. things. But the man over there will His Honour: We could do that. … and continues … explain to you – sorry, he won’t explain to Mr Archibald: Start a bit early, go a bit you anything. He will escort you out. Security Officer: Ms Zegarac, you have to later. leave the court room. Ms Zegarac: No. His Honour: We could do that. Ms Zegarac: Why I’m excluded, it is my His Honour: Because … Mr Archibald: Now, I was referring the case and I, as a party, am excluded. That is Ms Zegarac: Why? tribunal to the BC Iron quarterly activities corruption. report for the period to end June 2009… His Honour: Because … His Honour: At the moment I am going to ask you to leave, because … Ms Zegarac: Why, I tried to speak to this gentleman quietly and he saw me and he Ms Zegarac: You have … ignored me. I tried to get his attention His Honour: You are interrupting other quietly and he did not – he saw me, people and I – it is hard for me to looked at me, he saw I want to speak to concentrate when there is interruptions. I him and then he didn’t want to look at me can’t do it. any more. So I am not going to sit here
34 VICTORIAN BAR NEWS Summer 2010 Actually it’s more like a club where every member plays the same game but has Habitat their own separate clubhouse’, she explained. The young barrister was Virtually there… NextG Counsel, puzzled. Habitat had eventually found E-Chambers, Cyber-Clerks and Melbourne TEC Chambers. It was located in the place where Habitat had first Online Briefing looked. Donald Charrett. Melbourne TEC Chambers is an Following the last edition of Victorian Bar interesting and unique concept. It has It appeared that MTC was representing News, we at Habitat have spent some time been established by a group of Melbourne that its membership comprised the searching the Melbourne legal precinct barristers who specialize in the areas of fictional character Elastigirl from the film for the new Melbourne TEC Chambers. technology, engineering and construction The Incredibles, the Fonz from Happy Habitat has now located the new law. Habitat understands that it has been Days and movie star, Steve Martin. ‘chambers’ but not where some members established for the purpose of marketing However, having now made enquiries, of the Bar might have expected. its members internationally. Melbourne Habitat can confirm that there is no cause Habitat commenced its search by TEC Chambers was launched in for concern. The membership includes looking at the Melbourne TEC Chambers Melbourne in October by Justice Vickery. the respected and successful members of website. The website provided a telephone Below is a small part of his Honour’s our Bar Geraldine Gray (not Elastigirl), number and an email address, but no speech: Albert Monichino (not the Fonz) and postal or street address. Habitat then Donald Charrett (not Steve Martin). moved to the Victorian Bar website. …What does stand out from the brochure Habitat can also report that Melbourne We visited the part of the Victorian Bar [a brochure sent to solicitors] is the now has a virtual clerk, Lyus LeGal. website headed ‘chambers’ that lists ‘the extraordinary innovation and energy Veteran Sydney clerk Belinda Lyus address of each of the chambers at the reflected in these chambers. Indeed, they established her online list earlier this year. Bar, both leased by Barristers’ Chambers are not chambers at all in the traditional It is mainly comprised of Sydney counsel Limited and not’. Habitat found 22 sense. Those familiar with Rumpole’s but also includes two Melbourne chambers listed. Whilst Habitat was fireside chats with his clerk, cigar and rough barristers; David Denton SC and Geoffrey surprised by the existence of Gaudron red in hand, punctuated by amiable Slater. According to The Australian, Ms Chambers and Gorman Chambers, conversations with eccentric like-minded Lyus ‘handpicked’ the members of her Habitat was more surprised by the neighbours, will be disappointed. These are online chambers. Ms Lyus told The absence of Melbourne TEC Chambers. in every sense ‘virtual chambers’. That does Australian ‘I’ve clerked for the best and Habitat’s search continued. not mean however that its members are the worst and I can sniff it’. Habitat had read about threatened mere holograms or figments of a fertile legal action by Melbourne Chambers imagination. against Melbourne TEC Chambers. It was reported that the former was concerned Whilst the people at Habitat did not that the latter would be engaging in doubt his Honour, they decided to take a misleading and deceptive conduct and/or look at the membership for themselves. passing off as a result of the similar name. Habitat was initially shocked by what it So, undeterred Habitat continued its found: search for Melbourne TEC Chambers along Queen Street. The further search David Denton SC. Geoffrey Slater. failed to produce any results Habitat was losing hope. The answer was then unexpectedly found in the new sushi shop in Goldsborough Lane. While eating sushi, a young barrister was overheard asking an older barrister if Geraldine Gray. she had heard about Melbourne TEC Chambers. The older and wiser one explained that Melbourne TEC Chambers Belinda Lyus. are virtual chambers. ‘There is no By courageously embarking upon such building’, the barrister explained. ‘It is a new initiatives and boldly journeying group of barristers that exist in the forth into the outer limits of the parallel electronic world. You cannot locate the legal universe, success for Melbourne group in one physical place in Melbourne. TEC Chambers and Lyus LeGal is It’s like a club without a clubhouse. Albert Monichino. virtually guaranteed.
VICTORIAN BAR NEWS Summer 2010 35 A BIT ABOUT WORDS batman Julian Burnside AO QC
A recent Quarterly Essay, written by bât) was one which had a pack saddle, ation, etc.’ Sumptuosity means ‘lavishness Annabel Crabb, had Malcolm Turnbull and the French for pack saddle is bât. A or extravagance of expenditure; as its subject. According to the author, person skilled in etymology but untutored magnificence or luxuriousness of living, among Turnbull’s many interests is an in current culture would be forgiven for equipment, decoration, or the like.’ interest in language. Early in the essay, thinking that a batmobile was a truck. Sumptuousness and sumpture likewise Turnbull is fretting about the etymology Another name for the bat-horse is a signify magnificence or expense. All of of batman (in its military sense, not in its sumpter. Originally, a sumpter was the these words are related to the more modern Bruce Wayne sense). He guesses driver of a pack-horse; by the 17th familiar consumption and derive that ‘it must be French’. Not a bad guess, century its primary meaning was ‘a beast ultimately from the Latin sumare – to since English recognises bat as five of burden’, but it also signified a pack or consume or spend. different nouns with five different saddle bag; and it could also be used in Originally, consume signified the etymological roots. The bat, as the name combinations: sumpter man, sumpter completed destruction of the thing for the winged mammal in the order beast, sumpter ass, sumpter camel, etc. In consumed: we see this sense still when we Cheiroptera, comes from Scandinavian. King Lear (1605), Shakespeare has the speak of something being consumed by The bat, as the name for the wooden king say (as he points at Oswald) flames, or consumed by jealousy. implement used for hitting cricket balls is ‘…Persuade me rather to be slave and Pulmonary tuberculosis was colloquially of uncertain origin, but is thought to be sumpter to this detested groom’; and in called consumption until quite recently, from Gaelic, although it has also been Bold Robin Hood and his Outlaw Band and had the same connotation of the suggested as coming from French. Not (1912) Louis Rhead says ‘Following some destructive effects of a wasting disease. well-known in Australia, the bat, as distance behind was the King’s war-horse, Originally, to consume in the mercantile American slang for a spree or binge, is of fully caparisoned, together with some sense was ‘to spend (goods or money), unknown origin. Even less well-known is sumpter-horses under the care of his esp. wastefully; to waste, squander’. the bat, meaning the colloquial speech of squires’. The adjectivesumptery means ‘of The engines of commerce insist loudly a foreign country, especially in phrase to or pertaining to sumpter animals’, and in that we consume with extravagance and sling the bat, comes from Hindi. Kipling his 1620 translation of Don Quixote, enthusiasm: we do it on money which is used it several times, for example in Shelton rendered the Spanish reposteria borrowed or invented or hoped for. The Barrack-room Ballads (1892) ‘An’ ow they (baggage) as sumptry: ‘They alighted, and global financial crisis, and the increasing would admire for to hear us sling the bat.’ Sancho retired with his Sumptry into a signs that global warming is the result of So Turnbull did better than chance to Chamber of which the Oast gave him the our prodigal ways, bring consumption reckon that batman (in the sense of a Key’. back to its etymological origins, and military servant) comes from French. It is In the odd ways of English, we have a destruction is the result. unlikely that he would have known more number of other words apparently Like consumption, extravagance and of its obscure origins and development. A connected with sumpter but which are enthusiasm are words that have batman was originally ‘a man in charge of quite unrelated: sumptuous (also significantly shifted in meaning over their a bat-horse and its load; then, a military sumptious) means ‘made or produced at lives. Originally, extravagance and servant of a cavalry officer; now, an great cost; costly and (hence) magnificent enthusiasm would scarcely have fitted officer’s servant.’ A bat-horse (cheval de in workmanship, construction, decor- together in the same sentence.
36 VICTORIAN BAR NEWS Summer 2010 Extravagance originally signified ‘going In the 18th and 19th century, the language at any rate) probably explains out of the usual path; an excursion, meaning gradually lost its delusional why so many elders resent changes in digression’. In the early 17th century, an focus. The EO D gives it as: usage, and deplore the linguistic extravagant officer in the military was extravagances of succeeding generations. ‘one who had no fixed place or had a Fancied inspiration; ‘a vain confidence of If we account a generation as 25 years, the roving function’. Later in the 17th century divine favour or communication’. In 18th c. passing of two generations is a fair it meant ‘varying widely from what is often in vaguer sense: Ill-regulated or approximation of the half-life of the usual or proper; unusual, abnormal, misdirected religious emotion, extrava- meaning of many English words. While strange; unbecoming, unsuitable’ and gance of religious speculation. the process is uncertain and idiosyncratic, extravagance meant ‘exceeding just or it is common to see a word shift meaning prescribed limits, esp. those of decorum, It is said that Gladstone (1809–1898) significantly over a period of 50 to 100 probability, or truth’. Early in the 18th urged his cabinet to avoid enthusiasm. He years. When Gladstone was at school, century extravagance settled on its present was Prime Minister of Great Britain enthusiasm had a distinct sense of primary meaning: ‘excessive prodigality four-times: 1868–74, 1880–85, 1886 and undesirable religious delusion; 100 years or wastefulness in expenditure, household 1892–94. By the time of Gladstone’s first later, Joseph Conrad was using it with its management, etc’. cabinet, enthusiasm meant: current, much less intense, meaning. At the time when extravagant meant Likewise, the meaning of fulsome has ‘spreading or projecting beyond bounds; Rapturous intensity of feeling in favour of shifted progressively from abundant straggling’, enthusiastic meant ‘pertaining a person, principle, cause, etc.; passionate (1250–1583) or cloying, coarse, gross to, or of the nature of, possession by a eagerness in any pursuit, proceeding from (1410–1735), to offensively smelling, deity’. In Leviathan (1652) Hobbes wrote: an intense conviction of the worthiness of stinking (1583–1725), fat (1320–1628), the object abundant or rank in growth (1633), ‘Neither did the other prophets of the Old overfed (1642–1805), physically Testament pretend enthusiasm, or that God It may be that Gladstone was using the disgusting, foul, or loathsome (1579– spoke in them … word with its earlier connotations of 1720), offensive to normal tastes or religious zeal, because when he was at sensibilities (1532–1819); gross or there were some books in reputation in the Eton the word still signified ‘a vain excessive flattery (1663–1802). Nowadays, time of the Roman republic: sometimes in confidence of divine favour or although the ‘proper’ meaning is still the insignificant speeches of madmen, communication’, and we tend to think tainted by centuries of undesirable supposed to be possessed with a divine that the language has reached its ultimate, connections, fulsome is increasingly used spirit, which possession they called unchangeable form at around the time we to convey something like its original sense enthusiasm; and these kinds of foretelling end our secondary education. This little of fullness with no bad connotations. events were accounted theomancy, or vanity, which affects most people (well, Choir is another example. It comes prophecy… most people who are interested in the from Latin chorus – a company of dancers. Originally it is from the Greek choros – a company of singers or dancers. It is the root of choreography, and also of John Larkins Huntington’s Chorea, so called because the sufferer twitches and jumps. Generally these days it is understood as a body of furniture singers (not dancers), and also of the part of a church in which the singers sit or stand. Choir is also spelled quire and is so individually crafted spelled in Shakespeare, Milton and Byron, and also in the Book of Common Prayer. Desks, tables (conference, dining, It is distinct from the other word quire (an coffee, side and hall). unbound book) which comes from the Folder stands for briefs and other items French cahier – exercise book: the kind Malcolm Turnbull wrote in at school, as in timber for chambers and home. he formed his views (apparently with enthusiasm) about the ways and meanings of the English language. Workshop: 2 Alfred Street, North Fitzroy 3068 Phone/Fax: 9486 4341 Email: [email protected]
VICTORIAN BAR NEWS Summer 2010 37 Dear Themis
Dear Themis If one wishes to grovel, one may of course speech. This can be a very onerous I seem to be briefed in a number of refer to the mediator as ‘judge’ in private obligation in the circumstances identified. mediations where the mediator is often a session. But remember: in the uncommon law of former judge, sometimes a former High But it is worth remembering two things. etiquette (and unlike the Charter of Court judge. Some people call the First, there is nothing more ‘ex’ than an ‘ex’ Human Rights Act), for every obligation, meditator ‘Justice X’, some ‘judge’ and judge: just ask…Marcus Einfeld. Secondly, there is corresponding responsibility. Thus others ‘Mr X /Ms X’. What is the proper in light of the hefty judicial pension, the while the listener has the obligation to etiquette in referring to a mediator who is former judge is only mediating your case remain silent, each speaker has the a former judge? for one reason – GREED. And Themis says responsibility to keep his or her speech Pseudo Sycophant Amen to that! short, sharp and preferably witty. Alas speakers are rarely mindful of this responsibility. As a result, Themis has a Dear Pseudo Sycophant Dear Themis, practical solution to your problem. Fein the Of course the natural tendency is to flatter I have attended many Bar dinners and list need to go to the lavatory just before any such a mediator by referring to him or her dinners over the years. I have sat through speech commences and then stay near the by their former title ‘Justice’ in the hope a series of interminable and turgid doorway of the function room for the first that it improves the client’s prospects of a speeches from both the Bar and Bench. few moments of the speech. If the speech favourable settlement. Frank Galbally said Am I duty bound to remain silent and sounds dull, you can sneak outside with that it always assisted to ‘over qualify’ the seated throughout such speeches? other disgruntled guests without causing person you seek to persuade. He found it Disgruntled Attendee offence. But if the speech sounds funny and particularly useful when persuading a entertaining, you can make a great fuss of police officer to agree with propositions in Dear Disgruntled Attendee rushing back to your table. Rather than cross examination! A member of counsel For some reason, lawyers who make seeming rude, it will look like you have should never descend to such cheap tricks. speeches, particularly after a few drinks, been waiting excitedly for the speech all In my opinion, the proper etiquette is to consider that they should share their ‘bon night! refer to the mediator as Mr X or Ms X in mots’ for as long as possible. As we all There is only one caveat to this practical the formal sessions. It provides an even know, this can lead to disastrous suggestion: given the number of speeches at playing field for all at the mediation, consequences. the last Bar dinner, there were baseless particularly for clients who may not be But good manners dictate that one rumours circulating that Themis had accustomed to the niceties of legal address. should remain silent and seated during a acquired a nasty urinary tract infection!
Wine report Scotchmans Hill Pinot Noir 2008
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38 VICTORIAN BAR NEWS Summer 2010 Online Precedents and Publications.
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VICTORIAN BAR NEWS Summer 2010 39 of his psychological background that he Beach, John Phillips and Daryl Dawson in lawyer’s bookshelf brought with him to his career as a the early phases of their careers at the Bar. barrister. It is clear too that it left lasting He tells many tales of cases he scars. encountered involving both the unknown Dee writes of the period of the Second and the notorious. This is one of the Bars and Benches World War in inner-western Melbourne strengths of the book. Dee is a fine John Dee QC, and the poverty of its aftermath: ‘It was storyteller. He does it factually and in an John Dee, Melbourne, 2009, tough and the times were hard. Working- understated way which draws the reader hb 212pp, incl index, $40. class people worked hard and for not into accounts that are absorbing and often much money. Throughout though, there involve persons whom many in the John Dee QC’s Bars and Benches is a book was the wonderful togetherness – a criminal law will recall or readily by one of the Bar’s own about one of the feeling of people with a common goal.’ recognise. Bar’s own. It is an autobiography of one of (p.23) His escape from the Christian Interspersed with his autobiographical Victoria’s best known criminal barristers Brothers was to University High School in material, Dee writes of fellow travellers on and judges of the modern era, telling of 1950 where he describes his life turning his career at the Bar and on the Bench, his early life and of his career in the law. around, his move from Footscray to including Frank Vincent QC, Margaret Perhaps inevitably it is a very personal Collingwood and his embracing of Rizkalla and John Coldrey QC, all later, of account of Dee’s career, told at times in an football and cricket in the local area. course, appointed to the Bench. irreverent and always in an accessible way. With the end of school came National There is a good deal of self-revelation It starts with his early days in Footscray Service at Watsonia and Puckapunyal and in Dee’s accounts, including in relation to and includes his experience of polio and a successful foray into the art of boxing. his experience of stress and anxiety. He then his physical abuse by the Christian By 1955 Dee’s family had moved to East describes his first panic attack in 1962 and Brothers at St Augustine’s School in Preston and he started studies in his resort thereafter to alcohol: ‘From Yarraville. It was a school also attended by Medicine at the University of Melbourne. 1965 on, when I became a barrister, the Judge Ostrowski (as he was later to be) It proved not to his liking and in 1956 he anxiety really became worse. It increased and EJ Whitten but it holds few positive started work as an assistant clerk of courts with the level of stress. As the years went memories for Dee: ‘It is difficult to at Fitzroy, He describes the corruption of by and the level of complexity increased, describe the tension and depression that the day that he saw at close hand and the so did the stress’ (p.54). He describes existed… I learnt very quickly that being knowledge he acquired of the justice embracing a culture that existed (and still honest was the worst policy. You learned system in the form of Courts of Petty exists) of drinking as stress relief at the quickly that, in order to survive, you had Sessions presided over by police Criminal Bar both on the prosecution to be furtive, cunning and dishonest. … magistrates and justices of the peace, and defence sides. Among, what are The brutality rubbed off onto the boys. many of whom tended to drink with the sometimes painful disclosures, Dee tells a Fights were frequent, and you really had police, too often even during the recess variety of fine and humorous anecdotes, to be able to defend yourself.’ (p.11). He for lunch. However, the role gave Dee an incorporating many of the well-known describes the time at St Augustine’s as opportunity as well to observe some of members of the Criminal Bar, including having made him anxious and suspicious the fine advocates of the era – Frank Graham Thomas SC and colleagues in of the world around him, a fighter when Galbally, Jack Galbally QC, Ray Dunn arms in the Northern Territory. He tells of his disposition was not towards violence. and Jack Cullity. In that context he also many bars in which he has passed time; He observes that this was a formative part encountered his later master, Barry some of them he would recommend (in
40 VICTORIAN BAR NEWS Summer 2010 moderation, no doubt) and others he musings on changes he has seen in the does nothing to detract from that would not. He takes the reader into a law, including the phenomenon of reputation but it serves to humanise the previous era of the Bar in the 1960s and women’s involvement at the higher levels man under the wig and in that regard 1970s, relating his early career doing of the Bar and on the courts over the past enhances the tapestry of the Bar and our criminal cases and maintenance and two decades. He welcomes this, amongst system of justice. Stories of judges’ and paternity matters. other things, as an introduction of ‘reality’ barristers’ travails, triumphs and traumas Large parts of the book are dedicated to into the legal system, and bewails a in the law are not often enough formally significant briefs that Dee undertook as number of forms of prejudice which he recorded. Bars and Benches adds another counsel, early ones for the defence and encountered in the law – mostly not voice to the history of the Victorian Bar. It later mostly for the prosecution. As with directed toward himself. He welcomes the is the voice of a servant of the law that all barristers, certain cases particularly amendments to the Crimes Act that have deserves to be listened to and accorded in stick in the memory, some of them allowed victims of sexual abuse to have retirement the respect that it commanded because they were life-changing. Dee tells their cases heard in the one hearing, the as an advocate and long-serving judge. of his role in the Faraday kidnapping abolition of the unsworn statement, and Ian Freckelton SC trials of the early 1970s and then of his the replacement of the Viro self-defence period of seven years as a Crown rule by that in Zecevic. He argues for an Prosecutor between 1980 and 1987. Well entitlement to draw adverse inferences known trials that he prosecuted included from a suspect declining to answer Maverick Litigants: ‘Mr Stinky’ (Raymond Edmunds), questions at police interview and A history of vexatious litigants Malcolm Clarke and the Russell Street contends for judicial appointment being in Australia 1930–2008. bombing. After that Dee served as the via an independent non-political board, Deputy Director of Prosecutions for the overseeing selection by the Attorney- Simon Smith, Commonwealth in Canberra, working at General. He comments that there ‘has Maverick Publications, Melbourne, 2009 times closely with Paul Coghlan QC, now been the occasional man or woman of the Supreme Court, including on appointed who did not deserve to be a matters related to David Eastman, whose judge. These latter appointments have legal travails continue. During that period been made by both major State political he took silk. parties. The persons appointed, few in Dee was appointed a judge of the number thank heavens, have not had the County Court in 1990 at the age of 53. requisite background or skills. They have Although this is the contribution to the been mainly to the County Court, and the law for which most of us know him best, judges and the legal profession know who he devotes relatively little of Bars and they are.’ (p.191) He ends with reference Benches to this aspect of his career. to his role as Chairman of the Legal He candidly reveals the stress that he Profession Tribunal after his retirement experienced in his judicial role and the from the County Court in 2000 and measures that he took to enable himself to happy tales of support for the resurgent discharge his functions fairly and Bulldogs of the recent era. effectively. Dee has made the decision to Dee’s autobiography, Bars and Benches, reveal parts of himself in considerable is a candid and personal account of the detail. It is a courageous decision. career of a well known silk and judge. His However, other parts of Dee the person preparedness to air openly subjects that are self-censored; he says virtually are mostly hidden and not referred to, nothing about his personal life and his life even in whispers, including the stress and away from the law. Perhaps an insight into anxiety experienced by many at the Bar, the role of the law in his life is to be found and excessive recourse to alcohol, is in the following passage: ‘The work of a courageous. It is only when respected I remember as a junior officer in the judge is essentially a very difficult one. It practitioners like Dee speak openly of Department of Justice being handed a really consumes your whole life. This may their experiences that bodies such as the thick file full of long meticulously sound an exaggeration. The fact of the Bar’s Health and Wellbeing Committee handwritten documents written in matter is that there are frequently can formulate constructive measures to legalese, with references to King George, judgments or rulings waiting to be done. reduce unnecessary stressors and to full of capitalisation, underlining and There is an urgency to get onto the next provide support to our colleagues so that exclamation marks. The file was many case – an urgency which must be their journeys through the law are easier, years old and the petitioner was restrained. There always seems to be one healthier and more effective. threatening legal action for damage to the case, or the worry of it, over the judge’s Dee QC is highly respected within the family hotel – burnt down in the 1850s. head’ (p.177). criminal law as a fair, decent and talented This is the world of the vexatious Dee concludes his autobiography with advocate and judge. His autobiography litigant – the subject of Simon Smith’s
VICTORIAN BAR NEWS Summer 2010 41 book Maverick Litigants: A history of Smith writes well, with a poignant becoming a composer and radio vexatious litigants in Australia 1930–2008. sympathy for his subjects. The gentle and performer in the 1930s, with successes The book began life as a doctoral thesis courteous Millane is depicted shuffling that included King George’s Jubilee March. and the first 60-odd pages include a state the corridors of the Supreme Court in the With a downturn in her finances, she by state account of legislation relating 1960s, being given a patient hearing by married the elderly brother of Sir Isaac vexatious litigation – of interest to the the judges. Appearing before Justice Tom Isaacs in 1938. The marriage lasted 11 scholar or policy fan (or someone tearing Smith, Millane complained that he months, but led to nearly ten years their hair out trying to work out how to needed more time to file a statement of duelling in the courts with Sir Isaac deal with one). claim because he was going to be busy in (anxious to restore his brother’s honour) There is also a survey the psychiatric the High Court the next day and over issues such as her right to live in literature relating to ‘querelents’ including Heidelberg Magistrates Court in the the marital home and to get the ring some useful guidelines for judicial officers afternoon. Mr Justice Smith apparently returned, resulting in her being declared in dealing with vexatious litigants told him with a straight face, ‘Mr Millane, vexatious in 1941. But the litigation (‘maintain rigorous boundaries’). the trouble with you is that you have too continued (because the declaration did But the book really comes alive in broad a practice.’ not prevent her from defending following 200 pages with the stories of six Goldsmith Collins, an ex Fitzoy proceedings) only ending with the death ‘maverick’ litigants who were ultimately ruckman, developed his taste for litigation of Sir Isaac in 1948. declared vexatious – four of them fighting the Northcote City Council in the But she kept on litigating – using her Victorian. 1940s over a fence which he had built new husband to unsuccessfully sue Myer It begins with Rupert Millane who has without a permit. In contrast to the gentle over a leaking gas heater in the 60s and the honour of being the first person in Millane, he was an aggressive character taking the St Kilda Council to the County Australia to be declared vexatious in 1930. who ended up being banned from the court over a dog prosecution in the 1970s. He began his courtroom career in the Supreme Court library. He was described In 1988, she had her swansong when she 1920s challenging the Government bus by Charles Francis QC as the ‘leader of got leave to sue The Age for defamation licensing system, even winning an early the vexatious bar,’ helping other vexatious after it referred to her as an ‘ageless (and rare) victory against a young Owen litigants such as Millane and Constance eccentric.’ She lost after the court viewed Dixon KC. Bienvenu. footage of her performing on the Mike An inventor and entrepreneur, Millane Bienvenu was an animal activist who Walsh Show, singing at the piano with then developed and began to build a spent years fighting the establishment a dog. house out of kerosene and petrol cans in RSPCA in the courts which included a This book is full of such gems and it is Heidelberg, which was eventually notable victory in 1967, when Justice meticulously researched, down to street demolished, but not without a vigorous Starke declared that the RSPCA had been names and suburbs. One is ultimately left bout of legal challenges. without valid by-laws since 1895. But the with a sneaking admiration for these From then on, he had to seek leave victory was pyrrhic because it meant that larger than life, never-say-die characters from the Supreme Court before issuing there were no valid officer-bearers or who never knew when they were beat – proceedings. But it didn’t stop him – he contributors, meaning Bienvenu lost her and thankful never to be caught up in continued to seek leave and would locus standi to bring the action. their legal machinations. sometimes issue proceedings in the High Elsa Davies began her career as a David Gibson Court (where the declaration didn’t apply) teenage musical prodigy (‘Australia’s or even in the name of a co-operative champion xylophonist’) touring brother. nationally and internationally before
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