VICTORIANVICTORIAN BARBAR NEWSNEWS No. 117 ISSN 0150-3285 WINTER 2001

MAJOR GENERAL GREG GARDE AM, RFD, QC

Welcome: Ian Gray, Chief Magistrate Farewell: Mr Justice Tadgell Obituaries: Judge Kent and Hubert Theodore Frederico Junior Silk’s Bar Dinner Speech Jack Cullity A Practical Way to Early Resolution of the Head od State Issue Celebrating Federation and Networking Constitutional Law ASIC Chairman Reviews HIH Collapse in Corporate Governance Address Hong Kong: After the Change Over Actual Hypothetical VICTORIAN BAR NEWS No. 117 WINTER 2001

Contents EDITORS’ BACKSHEET 5 Political Correctness and the Victorian Bar CHAIRMAN’S CUPBOARD 7 On Reviews, Discussions, Issues, Fees, and Rules ATTORNEY-GENERAL’S COLUMN 10 Attorney-General’s Job “Exceeding Expectations” LEGAL PRACTICE NOTES 12 Legal Profession Tribunal: Publication of Welcome: Ian Gray, Farewell: Mr Justice Obituary: Judge Kent Orders Chief Magistrate Tadgell 12 Federal Magistrates Court Rules CORRESPONDENCE 14 Letters to the Editors WELCOME 15 Ian Gray, Chief Magistrate FAREWELL 16 Mr Justice Tadgell OBITUARIES 18 Judge Kent 19 Life and Times: Hubert Theodore (Freddie) Frederico — Lawyer ARTICLES 20 Major General Greg Garde AM, RFD, QC NEWS AND VIEWS 24 Madam Junior Silk’s Bar Dinner Speech Bar Dinner Speech 29 Response to Bar Dinner Speech 34 Verbatim 35 Jack Cullity 37 Mediation Centre Function 38 A Practical Way to Early Resolution of the Head of State Issue 42 Celebrating Federation and Networking Constitutional Law 44 ASIC Chairman Reviews HIH Collapse in Corporate Governance Address 46 After the Change Over 49 Actual Hypothetical 51 Indian Summer Holiday to Chennai Courts and Bar ASIC Chairman reviews HIH Barrister’s holiday in Chennai 53 Speakers Outnumber the Delegates at the International Law Congress in Nicosia 55 All’s Well That Ends -al 57 The Stefan Kiszko Case 59 Exhibition of Paintings LAWYER’S BOOKSHELF 60 Books Reviewed 58 CONFERENCE UPDATE

Cover: Major-General Greg Garde QC, receiving his Marmaluke Sword from Chief of Army General Cosgrove. See pages 20–23. Mediation Centre Function International Law Congress in Nicosia

3 Victorian Bar Council

VICTORIAN BAR COUNCIL Chair of Standing Committees of the Bar Council for the year 2000/2001 Aboriginal Law Students Mentoring Committee *Executive Committee B Kaye QC, S.W. Clerks: Applications Review Committee A *Derham QC, D.M.B. (Chairman) W Brett QC, R.A. R *Redlich QC, R.F. (Senior Vice-Chairman) Bar Constitution Committee H *Rush RFD, QC, J.T. (Junior Vice-Chairman) G Colbran QC, M.J. L *Ross QC, D.J. Child Care Facilities Committee F *Dunn QC, P.A. D McLeod Ms F.M. B *Ray QC, W.R. Conciliators for Sexual Harassment and Vilifi cation W *Brett QC, R.A. (Honorary Treasurer) F Rozenes QC, M A *Pagone QC, G.T. Continuing Legal Education Committee R *Houghton QC, W.T. A Pagone QC, G.T. A *Shand QC, M.W. Counsel Committee B *McMillan S.C., Ms C.F. H Rush QC, J.T. H *McGarvie R.W. (Assistant Honorary Treasurer) Equality Before the Law Committee A *Richards Ms J.E. W Brett QC, R.A. H *Bourke Ms K.L. A *Moloney G.J. Ethics Committee D *Riordan P.J. A Wright QC, H.McM. W *Neal D.J. Human Rights Committee F *Nugent P.T. D Fajgenbaum QC, J.I. G *Hinchey Ms S.L. Legal Assistance Committee D *Gorton J.P. A Moloney G.J. D *Gronow M.G.R. Litigation Procedure Review Committees D *Attiwill R.H.M. (Honorary Secretary) • Commercial Law D *Moore Ms S.E. (Assistant Honorary Secretary) A Derham QC, D.M.B. • Common Law Ethics Committee H Rush QC, RFD, J.T.R. A *Wright QC, H.McM. (Chairman) • Criminal Law D *Lyons QC, J.F. F Dunn QC, P.A. A *Pagone QC, G.T. • Family Law H *Young QC, P.C. R Redlich QC, R.F. B *Hill QC, I.D. Past Practising Chairmen’s Committee P *Bartfeld QC, M. D Francis QC, C.H. F *Dreyfus QC, M.A. Professional Indemnity Insurance Committee G *Lacava SC, P.G. A Shand QC, M.W. B *McMillan S.C., Ms C.F. Readers’ Course Committee H *Lewis G.A. B Ray QC, W.R. B *Maidment R.J.H. Strategic and Planning Committee A *Macaulay C.C. G Crennan QC, Mrs S.M. A *Delany C.J. (Secretary) Victorian Bar Dispute Resolution Committee D *Riordan P.J. S Martin QC, W.J. F *Johns S.L. Victorian Bar Theatre Company Steering Committee R Houghton QC, W.T.

VICTORIAN BAR NEWS Editorial Committee Printed by: Impact Printing Editors John Kaufman QC, Peter Lithgow (Book 69–79 Fallon Street, Gerard Nash QC and Paul Elliott QC Reviews), Richard Brear (Assistant to Brunswick Vic. 3056 the Editors), Carolyn Sparke, Peter This publication may be cited as Editorial Board Nugent, William Gillies, Nicola Gobbo (2000) 117 Vic B.N. David Bennett QC David Johns (Photography) Advertising Julian Burnside QC Published by The Victorian Bar Inc. Publications Management Pty Ltd Graeme Thompson Owen Dixon Chambers, 38 Essex Road, Surrey Hills, Editorial Consultant 205 William Street, Melbourne 3000. Victoria 3127 David Wilken Registration No. A 0034304 S Telephone: (03) 9888 5977 Opinions expressed are not necessarily Facsimile: (03) 9888 5919 those of the Bar Council or the Bar. E-mail: [email protected]

4 Editors’ Backsheet Political Correctness and the Victorian Bar

N the past most barristers were con- sidered to be advocates. People whose Ijob was to argue cases in the courts. Professionals who followed the cab rank rule, who would vigorously argue a case, regardless of its merits, and regardless of their personal opinions of the client and the moral worth of the client’s case. By this process of advocacy barristers became used to exchanging confl icting views with fellow barristers and judges. Advocacy is the art of putting forward a case with precision and vigour but without emotion. Therefore to those in the court, exchanges between barristers could be seen to be quite robust, especially when addressing a jury. Robust comments were made concerning the manner in which the opponent’s case had been argued and pre- sented. Proper points of advocacy were taken. After these exchanges clients and those not involved were often surprised script. Occasionally there is a great need when they heard gales of laughter coming to photocopy authorities. out from the robing room, from the very Political correctness is the This new class has no concept of the two barristers who had been at each oth- traditions of the Victorian Bar. Those who er’s throats a few minutes earlier. terminator of all humour. practise in the criminal law are considered Of course robust advocates were not Most jest can be analysed, insane. After all, most get paid a pittance the sole component of the Bar. There in the cold light of day, by that funny outfi t called Legal Aid and were those who excelled in submissions have to, God forbid, represent criminals to Courts of Appeal and whose opinions to be offensive, sexist, sometimes. The common law is regarded were extremely learned. The naked light racist or ageist. It offends as a minor vulgar sideshow of broken bulbs and brown linoleum of Selborne the prevailing ideology of bones and funny Acts. As for Family Law Chambers provided a monk-like environ- — is that really law at all? I mean you’d ment for those who had a true love of the political correctness. And have to be mad to earn a living by actually law. so this new breed of the cross-examining witnesses. Things are a bit different nowadays. A politically correct is having This new breed has no time for jovi- new breed of barrister has arisen. THE ality. Life is a very serious business. TIP TAP VARIETY. This new breed is per- a profound infl uence on the Self-promotion is an overwhelming pre- manently fi xed to a screen. Most of their Victorian Bar. occupation of every waking hour. Hand in time is spent in their chambers tip tap- hand with this lack of humour is an all ping away at a laptop primed and over- tip, tap, tip all the way. Head down, into consuming love affair with political cor- fl owing with megabytes galore. On the odd the screen, tipping and tapping to one’s rectness. occasions that they go to court they do heart’s content. A request to take a sub- Political correctness is the terminator not go alone. There is normally a posse poena is met with horror. Requesting an of all humour. Most satire or jest can be headed by an experienced male Queen’s adjournment is a “no can do”. These things analysed, in the cold light of day, to be Counsel, followed by a gaggle of these do not involve tip tapping and are ver- offensive, sexist, racist or ageist. It offends folk with numerous gelled, power dressed, boten. the prevailing ideology of political correct- and bespectacled young solicitors bring- And so this breed can continue rising to ness. And so this new breed of the politi- ing up the rear, pushing trolleys of folders the top without ever asking a question in cally correct is having a profound infl uence resplendent with top-end-of-the-town fi rm anger. It is a world of further, further, fur- on the Victorian Bar. names. ther, further and better particulars. Fifth There is a fear of open discussion. Many Once inside the courtroom there is no amended cross claims of the sixteenth of the Bar do not participate in Bar activi- question of rising onto one’s hind legs. It’s respondent and endless reviewing of tran- ties because of fear of saying the wrong

5 thing, or simply because most things are entertainment was deemed to be sexist There must be some trust and faith in so correct and boring. and would set the Bar back twenty years. people to perform at a function in a non Recently the tip tap class showed its If it proceeded there were threats of walk- sexist or offensive manner. power. The Victorian Bar Council at the outs at the dinner. Certain types of barris- In future years will all speakers have to urging of these folk passed a motion ters were to vilifi ed. It was all going to be submit the draft of their speeches to this enforcing censorship and toeing the politi- a dreadful sexist romp. This was despite committee? Such behaviour only causes cal correctness party line. the fact that not a word of script had been the Bar to move away from any collegiate The problem was some proposed enter- written. spirit that it once had. But perhaps the tainment at the 2001 Victorian Bar Dinner. And so the Bar Council was lobbied at term “collegiate spirit” is not acceptable? For many years the Bar Dinner had a meeting before the Bar Dinner. A motion And what does the future hold? A Bar become rather a dull affair. Attendances was passed that a censorship committee Dinner attended by fi fty or so persons were dropping. Many people said they should be set up. This would consist of a all tip tapping away while a computer would not attend because of the pre- Queen’s Counsel, a middle ranged barris- screen mouths platitudes about the hon- scribed format of the evening, whereby ter and a very, very junior barrister. They oured guests — but oh so correct plati- sometimes dozens of guests had to be in their wisdom would vet a proposed tudes, oh so correct . . . mentioned in a speech by the current script to make sure that it was not sexist. Junior Silk. Naturally there were varia- The proposed Queens’ Counsel could not THE EDITORS tions in quality depending on the after be trusted, even though invited to perform dinner oratorial skills of the speakers. by the chairman. So the idea was hatched to make the Therefore the fundamental principles evening a little more fun. The venue was of the law were followed. The Queens’ moved from Leonda to the Plaza Ballroom. Counsel were convicted without trial, TA I LO R I N G The Chairman of the Bar approached two without full particulars, upon no written Queens Counsel to provide some humor- evidence. The concepts of freedom of ous entertainment and it was decided that expression, and the traditions of the Bar Suits tailored to measure a brass band could appear as a surprise went out the door. Vague allegations from Alterations and invisible musical event to brighten things up some- anonymous persons were enough for our what. The idea was for a little bit of governing body. mending humour and satire to be injected around Of course requiring speakers at the Quality off-rack suits the formal speeches. Nothing particularly Bar Dinner to have their proposed scripts extraordinary. censored was totally intolerable. Naturally Repairs to legal robes Both the Queens Counsel, who agreed that was the end of the entertainment Bar jackets made to order to provide the entertainment, had written part of the evening. The conditions were and produced successful Bar shows over rejected and no performance took place. a long period of time beginning with the The tip tap class had prevailed. Victorian Bar Review in 1984. Some ideas Many people did not attend the Bar had been tossed about but no script writ- Dinner in protest at these restrictions. The LES LEES TAILORS ten. attendance was one of the lowest in years. Shop 8, 121 William Street, However, alarm soon swept through The highlight of the night was an excellent the politically correct members of the speech by Judge Bowman. Although there Melbourne, Vic 3000 Victorian Bar! One of the Queen’s Counsel were murmurings that his speech was a Tel: 9629 2249 had mooted a few ideas about what he little bit too “blokie”, as he used the anal- Frankston proposed to say. Alarm, Alarm! The tip ogy of a cricket team. Te l : 97 8 3 5 37 2 tap class went into action. E-mails fl ooded Censorship of this nature goes against into the Chairman of the Bar Council. The the fundamentals of the Victorian Bar.

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6 Chairman’s Cupboard On Reviews, Discussions, Issues, Fees, and Rules

REVIEW OF THE The operation of the Bar’s Ethics LEGAL PRACTICE ACT Committee complements the wider duty HE “Reviewers” appointed by the owed to the Court. The Committee is Attorney-General of Victoria in June comprised of practitioners who are expe- T2000 to review the key features of rienced in, and subject to, the same the Legal Practice Act 1996 recently duties as members who seek their advice. issued a Discussion Paper. Last year they Accordingly, members of the Committee put out an Issues Paper. All of the main are able to provide informed advice upon institutions involved in the regulation of request, or to determine formal complaints, the legal profession had made submis- by standards that are informed by direct sions in response to the Issues Paper. practical experience. The Committee oper- The Discussion Paper provided a synop- ates by reference to the same ultimate sis of the submissions and details of the goals as the Courts. When viewed from this responses made on certain issues. The perspective, the work of the Committee comments and suggestions appear to have enhances the integrity and independence been as diverse as the range of com- of the Courts because it ensures that mentators themselves. While the ultimate the general duties owed to the Court are direction of the review has not been deter- maintained in the everyday problems of mined, the Discussion Paper noted wide practice with which the Courts cannot, agreement on several issues. There was practically, be concerned. At the same general agreement that the current regu- time the experience of members of the latory structure is unnecessarily complex regulatory roles. The Bar suggested that Ethics Committee enables the Committee and expensive. In particular, the legisla- if professional standards are to be both and the Bar Council to remain attuned to tive device of registered professional asso- accepted and applied within a professional the state of the profession and, therefore, ciations (RPAs) was universally criticised group, they must be drawn from principles able to develop and maintain rules of con- as a complex legislative experiment that determined by reference to the knowledge duct that refl ect the needs of the profes- had not succeeded. and experience of that group. The best sion, the public and the Courts. In response to the Issues Paper, both the means of determining what is, or is not, The submission of the Bar also high- Bar and the Law Institute submitted that appropriate professional conduct, or what lighted the point that there is a low number professional regulation could only be suc- may constitute misconduct, is to draw of complaints against barristers in abso- cessful if the profession, through its main from the standards of members of the pro- lute terms, and also, proportionately, when representative organisations, remained fession by reference to their own knowl- compared with complaints against solici- strongly involved in the regulatory process. edge and experience. tors. The Discussion Paper, and the ear- The Bar argued that the profession was The submission of the Bar also drew lier Issues Paper, stressed the apparent well placed to provide cost-effective and attention to the particular role of the legal problems arising from the current oper- responsive regulation, subject to appro- profession. It is relevant to note that when ation of the regulatory system. In the priate independent review by external legal practitioners are admitted to prac- view of the Bar Council, the continued bodies. Other submissions advocated the tise law, they are admitted to such prac- low level of complaints against barristers complete removal, or signifi cant lessen- tise within a certain State or Territory. The provides clear support for the view that ing, of the continued involvement of the inherent supervisory jurisdiction retained the current arrangements for the profes- professional associations in the regulatory by a Supreme Court over practitioners sional regulation of barristers by the Ethics process. within its jurisdiction imposes direct pro- Committee, subject to the scrutiny of the The response of the Bar to the fessional obligations on practitioners, par- Legal Ombudsman, is generally working Discussion Paper suggested that the con- ticularly barristers. Members of the Bar well. There was compelling statistical evi- tinued involvement of the profession in who are involved in the conduct of pro- dence in support of this aspect of the sub- the regulatory process was essential to ceedings commenced in a Court are sub- mission. It is my view that the low level maintaining high professional standards. ject to a professional duty to that Court. of complaints against barristers is due The Bar and the Law Institute were criti- Most of our professional obligations are to the effective operation of the Ethics cised by some commentators as self-inter- ultimately explicable by the continuing Committee, particularly the great ease ested, or unable to recognise an apparent duty owed to the Court and through it to with which members may seek prompt confl ict between their “trade union” and the administration of justice. and authoritative advice. The other reason

7 is the commitment of members of the Bar rule, under which barristers’ fees were ter would result in a contract between the to the rules of conduct and the principles a matter of honour and not recoverable barrister and the solicitor. [100] upon which they rest. in the Court, was altered by the Legal Profession Practice Act 1891. That Act The application of this reasoning to the RECOVERING BARRISTERS’ COSTS enabled barristers to sue both instructing claims in issue was instructive. In one case FROM SOLICITORS: DIMOS’ CASE solicitors and clients for unpaid fees. the barrister was retained through deliv- All practitioners should be aware of the Subsequent cases established that the Act ery of a brief with a back sheet. There recent case of Dimos v Hanos & Egan was regarded as having created a contract was nothing on the back sheet, which was [2001] VSC 173 (29 May 2001). The deci- between barristers and solicitors and bar- endorsed with the name and address of sion of Gillard J provides useful guidance risters and clients. His Honour concluded the instructing solicitor, suggesting that on the circumstances in which a barrister that this law, as amended and remade in the retainer was between the barrister might be able to recover his or her fees subsequent Acts, remained in force until and the client, nor was there any evi- from a solicitor, and also the effect of the passing of the Legal Practice Act dence of any discussion between the bar- several relevant provisions of the Legal 1996. rister and the instructor to that effect. Practice Act. Much attention was given to ss93 and Nor was there any evidence that the client The facts of the case were as follows. 96 of that Act. Gillard J noted that ss93 expressly authorised the solicitor to brief A solicitor (Dimos) operated a small legal and 96 establish that, contrary to common the barrister and to bring into existence practice. Egan worked at the fi rm as an law, a barrister may sue to recover unpaid any contract between the barrister and employee solicitor. On several occasions fees but, importantly, the sections do not the client. Gillard J held that on facts over- Egan briefed counsel, Hanos, to appear establish any form of statutory contract. all the conclusion was “overwhelming” for various clients of the fi rm. Hanos Accordingly, the identity of the parties that the contract was between the barris- was not paid for his services. He sub- to a contract for legal services depends ter and solicitor. Other dealings revealed sequently sought to recover his outstand- on the circumstances of each case. His a similar lack of evidence to suggest an ing fees in the Magistrates’ Court. Dimos Honour rejected the proposition that the intention to establish anything other than lodged a defence that alleged that he was Act placed a solicitor in the position of an a contract arising from the normal com- not responsible for the outstanding fees agent for his or her client as a disclosed mercial dealings between counsel and his because there was no fee agreement as principal. instructing solicitor. required by s.96 of the Act. Dimos joined Gillard J observed that the parties to Gillard J did not determine the remain- Egan as a third party, alleging that Egan a contract for legal services were free ing questions stated by the Master, essen- had been instructed that he could not to negotiate the contract as they wished, tially because they raised questions that engage counsel for any client of the fi rm subject only to the particular limitations were wider or different from the issues unless suffi cient monies were held in trust. within the Act (practitioners should recall before the Magistrate. Dimos alleged that if liability for the out- that any agreement that contravenes the standing fees occurred by reason of Egan Act is void: s.102(1)). His Honour sug- PROPOSED CHANGES TO RULES OF acting contrary Dimos’ instructions as gested it would be unwise for a barrister CONDUCT his employer, Dimos could recover those to perform work on the basis of a contract The Bar Council is currently considering monies from Egan. with the client, under which the client two changes to the rules of conduct. First, The Magistrate found for the barrister alone bore responsibility for the barrister’s the rules of conduct concerning barristers’ and made three main fi ndings. First, the fees, but acknowledged that the solicitor dealings with the media are being exam- relevant provisions of the Act were not could negotiate such a contract on behalf ined with a view to providing clearer guid- helpful in identifying the parties to a con- of a client. ance in this diffi cult area. Secondly, draft tract for a barrister’s services. Secondly, If each case depends on its facts, and rules of conduct concerning barristers where a solicitor engaged a barrister, as a the parties are free to negotiate as they acting as mediators are being developed general rule, there is a contract between choose, subject to the restrictions of the for discussion. The growth of mediation in the solicitor and the barrister. The facts Act, it may be diffi cult to decide how recent years has led to an increase in the of this case did not displace this general any case should be determined. Gillard J number of barristers acting as mediators. rule. Thirdly, any requirement or instruc- suggested that the normal arrangements The current Rules are not, in the main, apt tion made by Hanos to Egan was not a between barristers and solicitors would to the role of a barrister acting as a media- term of Egan’s contract of employment. give rise to a contract between the two. tor. When the draft Rules are in a more Accordingly, the third party proceeding He stated: developed state, I anticipate that they will was dismissed. be exposed for general comment. Hanos appealed to the Supreme Court In the normal course of events, a client who under s.109(3) of the Magistrates’ Court retains the services of a solicitor engages Mark Derham Act 1989. Master Wheeler stated the the solicitor to provide professional serv- Chairman three questions for determination. The ices for him. In providing those services, fi rst question, which was considered in the solicitor may advise the client that it detail, was as follows: if a solicitor engages is necessary to brief a barrister to provide a barrister to perform work on behalf of specialist services. For example, it may be the solicitor’s client, is there a contract to necessary to retain a barrister to appear in perform that work between the solicitor court. Retention of a barrister is, in part, and the barrister, or between the barrister satisfaction of the provision of legal services and the client? by the solicitor. In the absence of any con- Gillard J noted that the common law trary evidence, the retention of the barris-

8

Attorney-General’s Column Attorney-General’s Job “Exceeding Expectations”

am often asked whether becoming Coupled with the Government’s com- Attorney-General for the State of mitment to progressive briefi ng practices IVictoria has proved as satisfying as I for work done within Government, it is had anticipated. The answer is always that my hope that these simple initiatives will it continues to exceed my expectations. ensure not only that more women receive As Attorney-General, I am in a unique legal work, but that they also receive a position to encourage the provision of better quality of work. access to justice to all Victorians, through It is stating the obvious to say that the reduction of discrimination, and there are plenty of women at the Bar with through ensuring that our legal system is the skills and confi dence to tackle high more available and relevant to all mem- profi le cases. However, too often, the abil- bers of the community. ity of these women is not highlighted or This commitment can be exercised in is hidden behind male senior counsel. We a number of ways. The last parliamentary all know the talent is there. The challenge session saw the passage of the Statute now is to make sure it is used. Law Amendment (Relationships) Act, a You will all be aware of my commitment piece of legislation of which I am particu- to making Victoria’s Bench refl ect the larly proud, and which eliminates discrim- diversity of its community. Since coming to ination against same-sex couples through offi ce I have been able to improve the pro- the amendment of 43 other Acts. portion of women on the Victorian Bench I was delighted to celebrate the proc- particularly pleased that our fi rm stand on substantially. However, we still have a long lamation of 24 of these amendments with this issue, sometimes in the face of fairly way to go, and part of the challenge is members of the gay, lesbian and trans- virulent pressure, has been vindicated and ensuring that the work of women at the gender community on the eve of the that the independent future of CLCs has Bar, and in the private profession, is visible 32nd anniversary of the Stonewall riots been assured. and duly acknowledged. It is all too easy on 28 June. Gay, lesbian and transgender Many of you will also be aware that, for those in senior positions to perpetuate Victorians have campaigned tirelessly for after almost two years of struggle, Victoria the status quo by appointing people that the recognition of their relationships, and will now be $4 million better off under a mirror their own particular paths to suc- I felt privileged to be able to provide a three-year legal aid agreement, allowing cess. This process is usually unconscious, mechanism for this to occur, in what I con- more access to accumulated funds and and it takes a deliberate effort to look sider to be a simple refl ection of a genu- increasing the overall pool of funds for beyond the usual suspects and outside the inely democratic society. VLA. customary career paths. Of course, this commitment to access Sometimes, however, a commitment to Despite every politician’s love of a good to justice has also been demonstrated access to justice can be demonstrated story, I want to reach the stage where through our determination to maintain the through simple policy initiatives. The senior female appointments in the legal independence and viability of Community Victorian Bar, and in particular the Women profession are no longer news but are par Legal Centres and our legal aid system. Barristers Association, have done much for the course. I would like to reach the Recently I announced an additional to improve the briefi ng practices of the stage where the terms “women barristers”, $1.05 million for State-funded CLCs. This private profession since the release of or “women lawyers” become obsolete — increased funding includes a $500,000 the report on Equal Opportunity at the where practitioners are not identifi ed by injection in capital, and brings CLCs back Victorian Bar. the fact that they do not choose grey pin- from the brink of the crisis in which However, the Government must take stripe, but by their demonstrated skills they were left under the previous State the lead on this issue. As well as briefi ng and capacity. Government. practitioners directly, the Government So I conclude where I started. The posi- The infamous IAG Review of CLCs, contracts out approximately $40 million tion of Attorney-General is exciting and implemented by the previous State worth of work each year to Victorian law invigorating and can be used as an agent Government and the Commonwealth fi rms. Firms vying for a piece of this pie for change. Whether it be change in legis- Government, has come to a conclusion will now have to demonstrate three things lation to end discrimination, a change in with no calls for the closure of any CLCs, — that they are a model litigant; that they funding to improve access to justice, or and in fact with an endorsement of existing have a commitment to pro bono work; and a change in culture to promote women CLCs by the Federal Attorney-General. that they have a demonstrable commit- within the profession, the job continues to The Bracks Government came to offi ce ment to the briefi ng of women barristers exceed my expectations. with a commitment that no CLC would be and to the equitable distribution of work Rob Hulls forced to close or amalgamate, and I am to women within fi rms. Attorney-General

10

Legal Practice Notes Legal Profession Tribunal: Publication of Orders

NDER section 166 of the Legal (3) The orders of the Tribunal were as duct as defi ned by paragraph (b) Practice Act 1996, the Victorian Bar follows: of the defi nition of “unsatisfac- UInc., as a Recognised Professional (a) The practitioner shall on or before tory conduct” in section 137 of Association, is required to provide the fol- 19 April 2001 pay to the Legal the Legal Practice Act 1996 in lowing information in relation to orders Practice Board a fi ne of $2000. that he contravened rule 74(b) made by the Legal Profession Tribunal (b) The practitioner shall pay to the of the Rules of Conduct of the (“the Tribunal”) against two of its regu- Legal Ombudsman her costs of Victorian Bar Incorporated by lated practitioners. and incidental to the hearing failing to reply to correspondence First Matter in the sum and by the instal- from its Ethics Committee within (1) Name of practitioner: Trevor J. ments (if any) agreed between the time allowed. McLean (“the practitioner”) the practitioner and the Legal (b) Nature of Offence (2) Tribunal Findings and the Nature of Ombudsman and in default of The practitioner failed to reply to the Offence agreement in a sum to be assessed correspondence from the Ethics (a) Findings by a Registrar. Committee of the Victorian Bar The Tribunal found the practi- (c) This order shall not take effect within the time allowed. tioner guilty of misconduct at until 11 April 2001 so that any (3) The orders of the Tribunal were as common law, and guilty of mis- time fi xed for appealing from this follows: conduct by reckless breach of order shall not start to run until (a) The practitioner is to pay a fi ne of Rules 4(a) and 4(c) of the Bar that date. $500 to the Legal Practice Board Rules (in effect from 2 February (4) As at the date of publication no notice by 8 June 2001. 1998), in that the practitioner of appeal against the orders of the (b) The practitioner is to pay to The engaged in conduct which was Tribunal has been lodged, the time Victorian Bar Incorporated by 8 discreditable to a barrister and for service of such notice having June 2001 its costs of these pro- was likely to diminish public con- expired. ceedings, agreed at $1573. fi dence in the profession and (4) As at the date of publication no likely to bring the profession into Second Matter notice of appeal against the orders disrepute. (1) Name of practitioner: David Munro of the Tribunal has been lodged. The (b) Nature of Offence (“the practitioner”) time for service of such notice having The practitioner swore at, threat- (2) Tribunal Findings and the Nature of expired. ened and assaulted another the Offence member of Counsel when they (a) Findings were waiting in Court to appear The Tribunal’s fi nding was that in a directions hearing in the the practitioner admitted that he Corporations List. was guilty of unsatisfactory con- Federal Magistrates Court Rules

HE Federal Magistrates Court grateful for the submissions, and a number sible, streamlined and less formal, and the (FMC) has released its rules, which of changes were made following sugges- rules will play a vital role in achieving this Twill take effect from Monday, 30 tions from the profession. aim. July, 2001. She said the FMC was mindful of the The FMC will apply the rules of court The FMC consulted widely with the unique opportunity offered to it of starting fl exibly and with the objective of simpli- legal industry about the rules and received afresh and creating new rules consistent fying procedure to the greatest possible many submissions. Chief Federal Mag- with its objectives. It is the intention of the extent. istrate Diana Bryant said the FMC was FMC that its proceedings should be acces- This article highlights some of the key

12 differences between the FMC rules and the of court appearances to a minimum. In provisions of the Family Law Rules rules of the Federal and Family Courts. most cases, the only appearance will be or Federal Court Rules. However, the For a full copy of the rules and the on the fi rst court date and, if the matter applicant must exceed the amount that explanatory memorandum, see the web- has not resolved earlier, the fi nal hear- would be provided under the event- site at www.fms.gov.au. ing. based cost regime by at least 20 per • The Federal Magistrates Act provides cent before he or she will be awarded FORMS that discovery and interrogatories will costs of the taxation. • The FMC has eight prescribed forms: not be used in the FMC unless the court • Costs may be awarded against a lawyer application, response, reply, notice of requires them. Orders for discovery or if costs have been incurred as a result address for service, notice of discon- interrogatories will be made on the fi rst of delay or misconduct. tinuance, subpoena, notice to admit court date when the timetable for pre- • Existing cost rules in relation to divorce facts or documents, and notice for paring the proceedings for a fi nal hear- and bankruptcy have been repeated in review. While not prescribed, there is ing will be established. the FMC rules. an approved information sheet and affi - • The Federal Magistrates Court aims • The scale of events-based costs is dif- davit. to hear all cases within six months of ferent in the general federal law and • Forms for divorce and bankruptcy are fi ling. family law jurisdictions. The differences the same as those prescribed by the • The court operates a docket system in refl ect the variations in the amount of Family Law Rules and Federal Court which there is control by the federal work that it is estimated the practition- Rules. magistrate of the conduct of proceed- ers will be required to do to prepare a • There are two basic forms common to ings between the fi rst court date and matter for hearing. all proceedings (other than divorce and the resolution of the proceedings by bankruptcy). These are an application judgement or otherwise. SUBPOENA RULES and response. Family Law • In addition, an information sheet is Procedure in Family Law matters • There is a prescribed form in the FMC required in family law and human rights • In children’s matters pre fi rst court date rules which is similar to the form pre- matters when applications for fi nal counselling will be ordered by the reg- scribed in the Family Law rules. orders are sought. istry. Orders for conciliation and prop- • The FMC rules limit the issue of sub- • An application and response must be erty matters will be made at the fi rst poenas to not more than fi ve in a pro- supported by an affi davit. There is no court date. ceeding (without leave) but enable a pro forma affi davit but the website will • The FMC has made contractual arrange- subpoena to be issued at any time in provide examples of particular types ments with community-based providers the proceedings. of applications. An affi davit is to be of primary dispute resolution services, • The FMC rules also provide that a sub- fi led with an application or response, and some proceedings may be referred poena must not be served less than whether seeking fi nal, interim or proce- to a community-based provider for seven days before attendance or pro- dural orders, unless the evidence relied mediation. duction. on is in affi davits already fi led in pend- ing proceedings. Proceedings in Bankruptcy matters General Federal Law • Substantial compliance is suffi cient, and • The FMC rules repeat the bankruptcy The Federal Court must give leave to issue the court will accept a document if it is rules of the Federal Court. For any subpoena. This will not be the case in in a form used for a similar purpose in proceedings in other general federal the FMC. the Family Court or Federal Court. law matters, the FMC rules repeat, • In certain family law proceedings, a with minor modifi cation, the rules Service Rules fi nancial statement is required (Form of the Federal Court in relation to The key difference in family law is that 17 of the Family Law Rules will suf- Administrative Appeals Tribunal the FMC rules provide that a change of fi ce) or an affi davit of fi nancial circum- appeals, Administrative Decisions address of service must be fi led within stances. The fi ling of a response or (Judicial Review) matters, Trade seven days. There is no time limit in the reply must generally be within 14 days Practices Act matters and applications Family Court rules. of service. This differs from the Family in which unlawful discrimination is In general federal law matters, the serv- Law Rule (08r16) which requires a alleged. ice rules are broadly similar to those apply- response to an application to be fi led at • There are no pleadings in the Federal ing in the Federal Court, although rather least seven days before the date fi xed Magistrates Court unless the court spe- less prescriptive. In bankruptcy proceed- for the case conference or directions cifi cally orders that proceedings be con- ings, they are the same. The FMC may hearing. ducted by pleadings. adopt additional rules for electronic fi ling in the future, depending on developments CONDUCT OF PROCEEDINGS COSTS in the Federal and Family Courts. The Federal Magistrates Act 1999 has • The FMC rules do not apply to solic- the objective of reducing the complexity itor–client costs. Solicitor–client costs of court proceedings. To this end, there are governed by the relevant State or are signifi cant differences between pro- Territory law. cedure rules of the Family Court or the • The FMC rules provide an events-based Federal Court and those operating in the cost regime for party–party costs. The FMC. court may, alternatively, refer a bill of • The court aims to reduce the number costs for taxation under the relevant

13 Correspondance

It appears that Sir James McCay was an France (Armentieres, Fromelles, Somme); Missing General unfortunate omission from the list of bar- 16.12.16 invalided to England; 1.5.17 to The Editors risters who have held the rank of Major 10.3.19 G.O.C., A.I.F. Training Depots General. His career was an interesting in U.K.; 1915 C.B., Commandeur Legion Dear Sirs one but its military aspect occupied a d’Honneur; 1918 K.C.M.G.; 1919 K.B.E.; General offi cers at the Victorian Bar period of his life when he was a member of Despatches 12.6.15 and 26.8.15 (Gallipoli), the “other branch” of the profession. He 1.7.16 (Egypt), 13.11.16 (France), 12.2.18 AY I suggest the name of Sir James signed the Roll of Counsel in 1925 some (England). Demob. 19.8.19; Major-General MWhiteside McCay as an addition to fi ve years before his death at the age of C.M.F. January 1920. your list (Autumn 2001, p. 5) of general 66. The extract from the University of offi cers at the Victorian Bar? Melbourne, Melbourne Record of Active Details of Sir James’s career are set Service in the European War 1914–18 West Meets East out in (1986) 10 Australian Dictionary is set out below. The Editor of Biography 224–7 (copy enclosed). It The Editors does not actually say there that he was Dear Sir a member of the Bar, but you will have your own means of checking that. I am McCAY, JAMES WHITESIDE. 1881 HILST entering Owen Dixon relying on my copy of The Law List of S.C.; Ormond; M.A., LL.M.; 1877 S.S. WChambers from William Street today Australia and New Zealand 1926, which Exhibition; 1881 Classical Exhibition at I recalled your editorial comment in the at p. 143 lists him as having been admit- Matric., and divided Exhibition in Maths.; Autumn 2001 edition of the Victorian Bar ted to the Bar on 8 October 1925. Next Exhibition in Classics 1st year Arts, and News re “Owen Dixon Chambers East” to him is listed his daughter Miss B.W. in 2nd year Arts (divided); 1893 1st class seemingly to have been turned into a McCay (‘Bixie’), admitted ahead of him and Exhibition 1st year Law; 1895 fi rst quiet backwater and the mainstream of on 10 June 1925. She subsequently mar- class, Final Scholarship, and Supreme traffi c “hurries along from the William ried [Sir] George Reid, Attorney-General Court Prize; called to the bar; 1895 Street entrance en route to Owen Dixon of Victoria 1967–73. M.L.A. for Castlemaine, re-elected 1897; Chambers West”. The entry in the ADB does not make 1899 Minister of Customs and Education; It is true that upon entering the build- clear the rank(s) held by Sir James 1901–6 M.H.R. Corinella, Vic.; 1904–5 ing all one sees is the sign up ahead “Owen between his appointment as temporary Minister of State for Defence; 1886 Lieut. Dixon Chambers West”. Poor old “East’s” major-general in November 1915 and his Vic. Infantry; 1896 Major; 1900–7 signage, being along the way and on the retirement as honorary lieutenant-general Lieut.-Col. commanding btn.; 1907–13 side, is not clearly seen until one in adja- in 1926. I enclose a copy of p. 200 of Colonel commanding Aust. Intelligence cent to it. H.W. Allen, The University of Melbourne Corps, C.M.F.; awarded V.D. 1907; 4th– It appears to me that the problem Record of Active Service . . . in the 11th August 1914 Chief Censor for could be substantially solved by the not European War, 1914–18, evidently pub- Australia. overly expensive exercise of angling the lished in 1926. This suggests that he was 15.8.14 Colonel, commanding 2nd Inf. “Owen Dixon Chambers East” sign out a substantive major-general by 1916 and Bde. Egypt, Anzac landing, 25.4.15; battle about 40 degrees so that both “East” and states that he held that rank in the CMF of Krithia 8.5.15; wounded and to hos- “West” could be equally seen by persons from January 1920. pital at Alexandria; returned to Gallipoli as they enter the main doors of the build- It is interesting to note that McCay won 8.6.15; Brig.-General July 1915; disabled ing. the Supreme Court Prize for 1894 and that 11.7.15, invalided home, and reached I trust that you will pass this excellent he was Minister for Defence in 1904–05. Australia 11.11.15; 28.11.15 Temp. idea along to the appropriate authorities, Major-General, Inspector-General A.I.F. Yours sincerely Yours faithfully Australia; 22.2.16 re-embarked as Major- Peter Balmford General commanding 5th Div.; Egypt and Paul E. Bennett

14 Welcome Ian Gray, Chief Magistrate

HE community of istration and industrial law Victoria is fortunate to and as a mediator. Perhaps Thave Ian Gray appointed one of His Worship’s most as its Chief Magistrate. After notable cases as a mediator completing an Arts/Law was his role as co-mediator degree at Monash University in the resolution of the fi rst he was admitted to practice in stage of the long running 1975. He fi rst worked at the inter-indigenous land dispute fi rm of Schilling, Missen and in the Halls Creek area on Impey, and then as a commu- behalf of the Department of nity lawyer at the Nunawading Aboriginal Affairs of Western Legal Service and a solicitor Australia. for the Victorian Aboriginal In June last year His Legal Service. Worship assumed the posi- In 1982 His Worship came tion as head of the Land to the Bar and practised and Property Unit of the mainly in criminal defence United Nations Transitional work. He developed a repu- Administration in East Timor. tation as a careful and skilful The Land and Property Unit advocate with a strong aware- was charged with the diffi - ness of the needs of his cli- cult task of restoring the land ents. registration system of East In 1987 His Worship left the Timor, and resolving the large Victorian Bar and went to work number of land disputes exist- with indigenous Australians ing in the new nation. in the Northern Territory. He The Magistrates Court is became the principal legal one of the most important advisor to the Northern Land Courts in the State of Victoria. Council in Darwin. While hold- It is often the fi rst and only ing that position he acted point of contact between the for the Land Council in a public and the justice system. number of diverse areas such Accordingly the experiences as advising on contractual and impressions people have matters, issues of access to of it will determine their views its lands for commercial pur- of the justice system as a poses, and negotiating with whole. There are almost 100 mining companies that were magistrates in Victoria. They seeking to conduct explora- Ian Gray, Chief Magistrate are assisted by many hun- tion and mining work on land dreds of Court staff. The great controlled by the Council. He size of the Court refl ects a was also involved in litigation concerning opment of alternative dispute resolution jurisdiction that extends to every aspect all aspects of land claims. His work involved within the court, and also a reorganization of society. Over 100,000 criminal cases are appearances in a range of forums includ- of case management systems. As Chief initiated in the Court each year. It also ing the Supreme Court of the Northern Magistrate his work was characterized by exercises a large and varied civil jurisdic- Territory, the Federal Court and the High effective and consultative leadership. He tion in family law matters and all forms of Court. His work with the Land Council set earned great respect within the legal pro- civil claims. To administer such a complex a benchmark in an area that is well known fession and the wider community. As a system with its large case load it requires to be complex and diffi cult. judicial offi cer he was a strong defender a Chief Magistrate who has a wide experi- In 1990, in recognition of his pro- of the integrity and independence of the ence of human nature, a vision as to the fessional standing, he was appointed a Court and the individual during what were needs of the community and a quality and Magistrate of the Northern Territory and sometimes diffi cult times. depth of legal experience. These are all then in 1992 the Chief Magistrate of the In 1998 His Worship returned to the attributes that Ian Gray brings to the offi ce Northern Territory. During this time he Victorian Bar and reestablished his prac- of Chief Magistrate. instituted many reforms to the operation tice largely in native title law, occupational The Victorian Bar warmly welcomes his of the Court. He supported the devel- health and safety, personal injuries, admin- appointment.

15 Farewell Mr Justice Tadgell

HE Honourable Robert Clive Tadgell’s most enduring Tadgell resigned his com- contributions to the law Tmission as a Judge of Appeal as a judge should be in of the Supreme Court at the end of his own fi eld of the May, almost fi ve years before it was law of corporations. His due to expire. He was a member of judgment in the National the Supreme Court from 4 March Safety Council case 1980 until the establishment of (Commonwealth Bank the Court of Appeal on 7 June of Australia v Fried- 1995 when he was appointed as rich) did much to a Judge of Appeal. He was one establish the standards of three of the original Judges of of duty required of Appeal who had graduated in law non-executive directors with honours from the University of trading companies; of Melbourne in 1958, having com- and his judgment for pleted the course the previous the Appeal Division year. After graduation he spent a in the Pyramid Building year as Associate to Mr Justice Society case (Victoria v Sholl, of the Supreme Court, and Hodgson) underlay the he was later articled to Sir James High Court’s reasons for Forrest at the fi rm of Hedderwick, dismissing an appeal in Fookes & Alston. He was admit- that case. His judgments ted to practise in March 1960 and in criminal appeals were came to the Bar at once, reading in regarded by trial judges the chambers of J. McI. Young. He as disclosing familiarity joined two other of Young’s pupils, with the trial process and Robert Todd and Richard Searby, understanding of legal as an assistant in the compilation principles and providing of Wallace & Young’s Australian guidance in their diffi cult Company Law and Practice, which work. became the standard annotation His seniority often led to the Companies Acts until they to his presiding over were superseded by national laws. hearings of the Court He soon established a substantial of Appeal. He did so practice in company law. When with courtesy and good Young took silk in 1961 he was humour. In a Court which regarded by many solicitors as one The Honourable Robert Clive Tadgell works under pressure not of his natural successors for junior to deny justice by delay, work in that fi eld. He had early he has not been averse success in litigation concerning the pro- tomary at the time he sat in all juris- to the demands of judgment-writing. This motion of vending machine companies. dictions, and he was one of the original sense of responsibility may have contrib- He took silk in November 1974. The members of the Court of Appeal who had uted to his decision to resign while still highlight of his career as senior counsel presided over both criminal and civil trials capable of bearing the burden. perhaps was not in court but in conduct- by jury. His judgments were notable for Beyond the Court Mr Justice Tadgell ing a board of inquiry into the affairs of the their clarity of expression, and he looked has contributed to the affairs of many Sunshine Council. He conducted a diffi - for that quality in others, especially those organizations both public and private. cult inquiry with such equanimity and skill charged with the drafting of statutes and While of the Bar he was one of its nominees that it was no surprise that he was offered subordinate legislation. Another charac- on the Faculty of Law at the University appointment to the Supreme Court at the teristic of his judgments, vigour, was per- of Melbourne. He was a member of the age of 46. haps derived from one of the two idols Council of Monash University from 1981 As a judge he was conscious of the dig- of his youth, the great commercial lawyer until 1995, and since 1998 he has been a nity of the Court as an essential attribute Lord Macnaghten (the other, F.E. Smith, member of the governing body of Trinity of the rule of law. No litigant should have being more notable for the bite of his oral College of which he was a resident stu- left his court without the belief that his expression). dent in 1956 and 1957 and was appointed cause had been fairly heard. As was cus- It is not surprising that Mr Justice a Fellow in 1993. He was also President

16 of the Medico-Legal Society of Victoria less warmth but more heat, of changes enthusiasm for the imposition of the new in 1990 and 1991. But it is with the in the tax treatment of judicial pensions tax regime. affairs of the Anglican Church that he which had affected those appointed to the He leaves the Court with the affection- has been particularly associated. He was bench in recent years and of what he con- ate regards of those who appeared before appointed Chancellor of the Diocese of sidered to be the failure of the federal him there. Melbourne in 1981 and Deputy President Attorney-General to dampen bureaucratic of the Appellate Tribunal of the Anglican Church of Australia in that year, becom- ing President in 1995. Since 1998 he has been a Lay Canon of St Paul’s Cathedral, a position once held by one of his pred- ecessors on the bench, Sir Oliver Gillard. As a member of the Appellate Tribunal he sat in the hearing of cases involving the The Chartered Institute of Arbitrators validity of canons (church legislation) for Australian Branch the ordination of women as deacons and (ABN 65 931 837 789) priests. He was a member of the majority, upholding validity, in each case. ENTRY COURSE — SYDNEY From September he will indulge his Sunday 28 October to Monday 29 October 2001 interests in language, the church and the law as an Honorary Scholar of Oriel The Branch will conduct an Entry Course, leading to Associate Membership (ACIArb). The two-day program, at a Sydney CBD venue, College, Oxford, where he will study eccle- consists of a written assignment, lectures and tutorials and concludes with siastical and legal usage of the English lan- a written examination. Course fee: $1,000 (plus GST). guage in the late Tudor and early Stuart period. The Scottish connection is apt, for FAST TRACK PROGRAM TO FELLOWSHIP he has developed an affi nity over the years ASSESSMENT WORKSHOPS FOR LAWYERS — with his wife’s home country. When he SYDNEY was welcomed as a judge in 1980 he spoke Friday 26 October to Saturday 27 October 2001 with gratitude of those who had been his The Branch will conduct Assessment Workshops for suitably qualifi ed teachers at the University of Melbourne. candidates who are lawyers and who otherwise have suffi cient experience The Dean of the Faculty at the time was in arbitration. The two-day program consists of small discussion groups, Professor Cowen and so it is appropriate in which candidates will be expected to demonstrate knowledge and skill that he will be joining High Table at the in arbitration. Attendance at the Workshops will qualify candidates for Associate Membership (ACIArb) and those who pass the Assessment College of which Sir Zelman was subse- will qualify for Membership (MCIArb). Qualifi ed candidates who subse- quently Provost. quently pass the Award Writing examination and any practical training When farewelled from the Bench by the may apply for Fellowship (FCIArb). Fee: $1,000 (plus GST) barristers’ and solicitors’ professions on 30 ------May, Mr Justice Tadgell spoke warmly of Further details from Executive Offi cer: his colleagues in the Court of Appeal and Tel. (02) 9988 3563 Fax . (02) 9988 3571 especially of the contribution to its success e-mail: [email protected] of the President. He spoke, with perhaps

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17 Obituary Judge Kent This appreciation of “Bob Kent” was written as a “farewell”, only weeks before his sudden and tragic death on 15 July 2001. It is unfortunate that because his return to the Bar was so short, we did not have time to savour the “inestimable gain” of which Geoff Steward writes. His caring and contributing personality will be sorely missed. The Editors

UDGE Kent’s resignation from the times. “Madam forelady”, was his assid- in the minority. Those who wrote to him County Court last month saddened uous and continual form of address. His or for him, gave evidence on his behalf, Jmany. His appointment had been her- Honour dealt with the inaccurate estimate or implored him to remain on the Bench, alded. Perhaps more importantly was the, of the trial’s duration and form of address came from every conceivable echelon of justice, intellect, common sense and com- to the foreman with patience and good the judiciary, profession and community passion he exercised during his at large. all too brief tenure. The cross-section of support The Bar is richer for the was indicative of the man. His return of one of its most able, Honour was, is, and shall remain courageous and decent mem- very grateful to those innumer- bers. It is unfortunate in the able supporters. His resignation extreme, however, that the judi- was motivated by concern for ciary is very much the poorer the best interests of the court for his departure. of which he was a member. During His Honour’s 18 It is expected by all those months on the Bench he sat who know him that the excel- in the civil and criminal juris- lence of his advocacy shall again dictions both on circuit and in be seen in the highest jurisdic- Melbourne. The feedback from tions in the land. One envisages practitioners, litigants and even that “Bradman-like” passing on some accused was that the man of information to soon resound presiding over their hearing was around the corridors of cham- a person of rare qualities. It bers. Instead of, “he’s in”, it will was a wonderful experience to be, “Bob’s doing a murder trial”. appear before Judge Kent, he Readers and practitioners gen- played no favourites and treated erally will learn so much more everyone with respect and dig- from seeing Kent on his feet nity. Anyone whose matter was than by reading every chapter presided over by Judge Kent of “Halsbury” tenfold. knew that they had received The circumstances of His the fairest of hearings. Honour’s return to the Bar are Brian Cash was the fi rst less than ideal. He will remain advocate to appear in a criminal unaltered as the man and advo- trial before His Honour. He esti- cate that he is. However, those mated to His Honour that the close to him merely hope that Judge Kent trial’s duration would be about for the fi rst time in his profes- four days. It lasted closer to sional life his prodigious talent four weeks. Acutely aware of both soci- humour. Alas, the male foreman was none is at least balanced by a modicum of caring etal and courtroom “political correctness,” too pleased! about himself to the same extent as he has and being a devotee of it, Brian knew that His Honour endured some excruciat- endlessly cared for others. the days of referring to female witnesses ingly diffi cult times in his last couple of The judiciary’s abject loss is the Bar’s as “darling”, were long gone. So as not to months on the Bench. Those critical of inestimable gain. We wish him the very be rebuked by His Honour, he was mind- him for reasons of sanctimony, cowardice, good fortune he richly deserves. ful to address the foreman of the jury in disloyalty, ignorance, or self-interest, be it the appropriate gender terminology of the political or professional, were very much Geoffrey Steward

18 Obituary Life and Times: Hubert Theodore (Freddie) Frederico — Lawyer 15 July 1904–6 February 2001

John Tidey

E was a distinguished County Court of abruptness, it was always tempered by judge and a familiar face at the Mel- that dry, even at times sardonic, wit, for Hbourne Savage Club. which many of us remember him most’’. It might have been the Australian pen- Freddie was community-oriented. He chant for levelling that resulted in Hubert became president of the Old Xavierians’ Theodore Frederico being known univer- Association, Newman College Old Boys sally as Freddie on all but formal occa- and the Melbourne University Boat Club. sions. A more likely explanation is the He was national president of the Knights great affection with which he was regarded of the Southern Cross, active in the St by friends and colleagues during his long Vincent de Paul Society and commodore life. of the Point Leo Boat Club. Born in Melbourne when the Probably the greatest of Freddie’s Commonwealth of Australia was in its interests outside the law and his family infancy, Freddie died in Melbourne, in his was the Melbourne Savage Club. Indeed, 97th year. As his friend and eulogist Sir as its president in the mid-1970s, he is Daryl Dawson put it: “To go back along credited with bringing the club through that life is to engage a considerable part of a diffi cult period and ensuring that it our history in this city, this State and this became once again a vigorous, stimulat- country.’’ ing and entertaining place. Here it was Much loved himself, Freddie was in that he could be found — invariably with turn devoted to his family, his religion, his Hubert Frederico QC (Photo courtesy John Tidey) a Cuban cigar in hand — until just two friends, the law, his farm, his books and weeks before his death. the Melbourne Savage Club. Long before Sir Daryl Dawson recalled that, as a To a younger generation of cigar smok- the habit became fashionable again, he barrister, Freddie had a self-deprecatory ers at the Savage, Freddie was something was a connoisseur of cigars. approach: “allowing his opponent to pir- of an inspiration. It is said that he smoked Freddie was educated at Xavier College ouette before the jury placing all his tal- his fi rst cigar at the age of 10 and that and enjoyed an association for the rest ents on display. Then Freddie, with that his mother used to “smuggle’’ some of his of his life with the school and the Jesuit incisiveness which was always there when father’s supplies to her son at school and order. In 1925 he began his law degree, needed, would deal a mortal blow which later at Newman College. and his record suggests sporting rather the jury, particularly a country jury, never Freddie is survived by three daugh- than academic priorities. A resident at failed to appreciate.’’ ters, two sons, six grandchildren and six Newman College, he took a serious inter- Freddie’s particular interests in reading great-grandchildren. est in rowing, and in 1927 was appointed were history and biography. It was a matter His great devotion to his family was the fi rst Newman captain of boats. of great pride to him that his beloved repaid in his later years when, as he often Freddie was admitted to the Bar room in Selbourne Chambers had previ- acknowledged, his children’s devotion to in 1930, his admission being moved by ously been occupied by Alfred Deakin, him meant he was able to live a comfort- Norman (later Sir Norman) O’Bryan and L.B. Cussen, Sir Robert Menzies and Sir able and happy life to the very end. the legendary Gratton Gunson. In 1930 he Henry Winneke. married Marjorie Sherlock. Freddie had He took silk in 1955, and in 1962 was John Tidey is a Melbourne journalist met his future wife while he was still at appointed to the County Court, retiring and drew on Sir Daryl Dawson’s eulogy school, and their marriage was a long and in 1976. Sir Daryl remembered that “on and information supplied by the happy one, lasting until Marjorie died in the Bench His Honour Judge Frederico Frederico family for this obituary, 1981. was a kind man and if there was a hint which fi rst appeared in The Age.

19 Articles Major General Greg Garde AM, RFD, QC

CMDR Paul Willee RFD, QC

In the Supreme Court’s Banco Court, on Friday 18 May 2001, a large contingent of Victorian practitioners, most of whom were or had been members of the Defence Force Reserves, recognised the promotion of yet another member of our Bar to high rank in the Armed Forces.

N 10 March 2001 Greg Garde QC quences. Before the Battle of Fromelles, given it. He ordered the arrest of a British became a Major General and was where his Brigade suffered dreadful cas- offi cer found looting wine. He refused to Oappointed Chief of Reserves of the ualties, he vehemently protested to his accept incompetents posted to his Brigade. Australian Defence Force (ADF). There superiors at the hopelessness of the task . . . Elliott also wrote reports highly critical is no more senior position available to a reservist, in the ADF. The attached photographs show Greg receiving his Marmaluke Sword — the badge of Offi ce of General rank, from Chief of Army-General Cosgrove; while his justifi ably proud and devoted PA Chris (also his spouse) looks on. It was typical of General Garde’s gen- erous approach to his military colleagues that he turned the occasion into a cele- bration of the total military reserve force, rather than of his own high achievement. Even so, the remarks of Chief Justice John Phillips who conducted the cere- mony (which is fast becoming a custom) invested proceedings with the requisite degree of recognition for General Garde’s attainments. His Honour has a remark- able talent for bringing about a sense of occasion refl ecting his understanding and approbation of the fusion of two such apparently incongruent professions as those of the law and of arms, in a mean- ingful and satisfying way. After acknowledging the presence of the Deputy Chief of the Defence force, General Mueller and his wife Gweny Mueller, the Chief Justice went on to make due acknowledgment of other members of the Victorian legal profession who have attained General rank. This is not the place to repeat all of the fascinating detail to which we were treated but some inter- esting tidbits bear mention. Of our fi rst Major-General, one Harold Edward Elliott, His Honour remarked that he “did what Major-General Greg Garde QC, receiving his Marmaluke Sword from Chief of he thought right regardless of the conse- Army General Cosgrove.

20 of senior commanders when he thought associate, who passed it to the tipstaff, they were warranted.” In the current cli- who passed it to Greg’s instructing solici- mate of a heightened interest in the fate tor, who passed it to Greg. By this time of the monarchy in this country, his ref- the attention of everybody present was erence to the next offi cer Sir Edmund fi rmly focussed on him. Greg read the Herring’s remark as a devoted monarchist note and scribbled a reply before passing was fairly telling. The Chief Justice said of it back to Sir John, through the same him that “Such was his attachment to the chain of receipt. The Chief Justice care- Crown that when the late Ted Laurie, who fully unfolded and read it before nodding was a communist (but a rather benign sagely to Greg. By this time the client one) applied to be appointed Queen’s was convinced that the case was in the Counsel in 1961, Sir Edmund refused to bag. Actually, the original note simply said: recommend him and allegedly said, ‘You “How is the regiment?” to which Greg had know, Laurie, the thing I can’t forgive you replied: “Sir, the regiment is in very good communists is that you murdered a rela- shape”. tive of The Queen’, which was, perhaps, In 1986 he was awarded the Reserve taking things back a rather long way.” He Forces Decoration. In 1987, Greg Garde also mentioned the distinguished careers was promoted to the rank of Colonel of “Norman Alfred Vickery, . . . who died serving as the Chief Instructor Reserve in 1998 after a brave struggle with pro- Major General Greg Garde and Chief of Command and Staff College. He was pro- tracted illness, Kevin George Cooke and Army-General Cosgrove. moted to Brigadier in 1990 and appointed the Commander of the Third Training Advanced Constitutional Law and Confl ict Group. He was appointed the Commander of Laws. His other discipline was math- of the 4th Brigade in 1992. The 4th Brigade Greg Garde is responsible ematics for which he won the Dixon is located in Victoria and consists of two for the strategic Scholarship in Applied Mathematics Part infantry battalions, one armoured regi- development of the 1. He left University with honours degrees ment, an artillery regiment, as well as in both Arts and Law and later completed medical and logistic elements. Greg was Reserves and he is a Master of Laws. He joined the Victorian then appointed the Assistant Commander the leader of some 30,000 Bar in 1974 reading with Mr E. W. Gillard, of Land Command based in Sydney. In Reservists. now Justice Gillard. He was appointed this capacity, he was responsible for Queen’s Counsel in 1989. Major-General NORFORCE, 51, Far North Queensland His extraordinary Greg Garde enlisted in the Melbourne Regiment and the Pilbara Regiment. In achievement comes after University Regiment in 1967 as a fi rst- 1996 he was made a Member of the Order of 30 years of commissioned year law student and rose through the Australia for service to the Army Reserve. ranks to Corporal. He was commissioned From 1998 he was appointed the Director, service, and we draw great in 1970 and posted to Monash University General Reserves and a member of the pleasure in congratulating Regiment. His service soon included a Chief of Army’s Senior Advisory Group. him on that service, his period of full-time duty with the 2nd His responsibilities had now become very Battalion, Pacifi c Island Regiment. In 1978, considerable and included budget review, promotion and Garde, then a Major, successively com- a review of the Defence Act and advice appointment. manded the Sunshine and Footscray Rifl e on future military development. Major Companies of the 1st Battalion, Royal General Garde is the principal architect Major-General Kevin Murray, who signed Victoria Regiment. He won the Blamey and author of the two defence bills. These our Bar Roll as an Interstate member in Award on the military operations course bills overhaul the Defence Act 1903 (Cth) 1964 . . .” before inviting Major General for promotion to Lieutenant Colonel con- amongst other things constituting each Garde to speak. ducted at Land Warfare Centre, Canungra, of the services of the Australian Defence Like so many quiet and unassuming in 1981, and returned to Monash University Force (the Navy, Army and the Air Force) people, Gregory Howard Garde AM, RFD, Regiment as its Commanding Offi cer from as consisting as Permanent and Reserve QC has a reputation built on an enormous 1982 to 1984. From 1984 to 1986 Greg components, empowering Government to bulwark of hard work and application commanded 4th/19th Prince of Wales Light call out Reserves for peacekeeping duties to detail. Electronic database searching Horse Regiment. Both Sir John Young and for the provision of humanitarian aid makes it easier these days to winkle out (during 1978–1998) and Sir John Norris and disaster relief, providing protection the wealth of cases in which he has (during 1964–1972) served as Honorary to the civilian interests of Reservists, and appeared in the higher courts. None of Colonels of this Regiment. supporting employers of Reservists. these would necessarily excite the inter- General Garde told us how seriously Sir Greg Garde is responsible for the stra- est of the public at large, but they dem- John Young took that duty. He described tegic development of the Reserves and he onstrate a facility with his legal profession an occasion when he was appearing for a is the leader of some 30,000 Reservists. His belied by the time he must have spent very anxious respondent during a particu- extraordinary achievement comes after in military service — and none of that larly turgid afternoon session in the Full 30 years of commissioned service, and comfortably as a legal offi cer. From early Court. Sir John wrote a note. After tap- we draw great pleasure in congratulating days as a student Greg showed great ping the bench in front of him in the time- him on that service, his promotion and promise, refl ected in exhibitions in Equity, honoured fashion he passed it to his appointment.

21 Speech for Ceremony for Major-General Garde

ENERAL Mueller and Mrs Gweny Mueller, other distinguished Gguests, friends and colleagues from the services and the law. We meet here this afternoon to do honour to our respected colleague Greg Garde QC upon his promotion to the rank of Major-Gen- eral. May I say how pleased I am to pro- vide this beautiful court room for this auspicious occasion. It is also, of course, a place of history. As we are currently celebrating the Centenary of Federation we should recall that Alfred Deakin, who was admitted to legal practice at the old Supreme Court in La Trobe Street in 1877, often appeared here as counsel. Not only was Deakin a fi ne lawyer and one of our founding fathers, but, to the best of my knowledge, he is the only Aus- tralian Prime Minister to have received a summons for riding his bicycle on the footpath. To this room on 2 May 1917 Chief Justice Phillips congratulates Greg Garde QC on his promotion. Robert Gordon Menzies also came to be admitted; Owen Dixon had preceded him on 1 March 1910. Indeed, this room was men, who affectionately reconciled his the home of the High Court during the outstanding qualities of leadership with fi rst twenty years of its existence. his very bad temper, christened him It is proper on this It is proper on this occasion, and on “Pompey”, a nickname of which he was occasion, and on behalf of behalf of all present, that I make due not enamoured. Idolised by his troops, all present, that I make acknowledgment, not only of Greg, but Elliott was not, however, popular with his also of other members of the Victorian superiors and various injustices were vis- due acknowledgment, not legal profession who have attained ited on him. After Lone Pine he received only of Greg, but also General rank, and of the valued contri- no decoration, although his name headed of other members of the butions they have made to the Army of the list of recommendations. He saw offi c- our country. ers of less ability promoted over his Victorian legal profession The fi rst of these is Harold Edward head and no knighthood, or promotion to who have attained General Elliott, the Supreme Court Prize winner Major-General, came his way during the rank, and of the valued of 1905. When admitted he practised as a war years. solicitor in Melbourne. But, even before Elliott did what he thought right contributions they have the completion of his law course, Elliott regardless of the consequences. Before made to the Army of our had served in the Victorian contingent the Battle of Fromelles, where his Brigade country. at the Boer War where he was awarded suffered dreadful casualties, he vehe- the Distinguished Conduct Medal. On mently protested to his superiors at the Edmund Francis Herring served with his return to legal studies at the hopelessness of the task given it. He the Royal Field Artillery during the First University of Melbourne, he kept up ordered the arrest of a British offi cer World War in France and Macedonia and his interest in the militia, rising to the found looting wine. He refused to accept was awarded the Distinguished Service rank of Lieutenant-Colonel in 1913. On incompetents posted to his Brigade. I Order and the Military Cross. He signed the outbreak of war he was appointed to confess I am not sure whether I should the Roll of Counsel of the Victorian Bar command the 7th Battalion and was pro- mention this next matter in the presence in June 1921 and was appointed Queen’s gressively promoted to Brigadier-General of such distinguished company, but Elliott Counsel in 1936. He combined legal prac- and Commander of the 15th Brigade. also wrote reports highly critical of senior tice with an interest in the militia and then Elliott was wounded on the day of the commanders when he thought they were served in the 2nd AIF from 1939 to Gallipoli landing and again in France, warranted. 1944 when he was appointed from the but remained on duty. He was awarded After the war Elliott returned to the wilds of New Guinea, Chief Justice of the Distinguished Service Order and militia and was promoted to Major-General Victoria. Variously, he commanded 6th the French Croix de Guerre, and men- in August 1927. Harold “Pompey” Elliott, Australian Division and 1 and 2 Australian tioned in despatches several times. His a remarkable lawyer/soldier. Corps. For his service he was awarded the

22 Greek Military Cross in 1941 and knighted until his retirement in 1985. His judicial Murray, who signed our Bar Roll as an two years later. He departed the Army work included terms at the Police Service interstate member in 1964, but main- with the Rank of Lieutenant-General. He Board and the Workers’ Compensation tained chambers in Sydney where he was remained Chief Justice until 1964 over Board. General Vickery died in 1998 after an outstanding advocate in criminal mat- which period the Court expanded from a brave struggle with protracted illness. ters and a Queen’s Counsel. Our Bar has six to 14 judges. He was a devoted mon- Kevin George Cooke was admitted to no record of him practising in Victoria. archist. Such was his attachment to the legal practice in 1953 and practised in Major-General Greg Garde enlisted in Crown that when the late Ted Laurie, who Melbourne as a solicitor, becoming senior the Melbourne University Regiment in was a communist (but a rather benign partner at the fi rm of Cooke and Cousin 1967. He was then a fi rst-year law stu- one) applied to be appointed Queen’s from 1975 to 1986. He enlisted in the dent. He was commissioned in 1970 and Counsel in 1961, Sir Edmund refused to Citizen Military Forces in 1950 and was posted to Monash University Regiment. recommend him and allegedly said, “You commissioned. By 1965 he had risen His service soon included a period of know, Laurie, the thing I can’t forgive you full-time duty with the 2nd Battalion, communists is that you murdered a rela- Pacifi c Island Regiment. He joined the tive of The Queen”, which was, perhaps, Major-General Greg Victorian Bar in 1974 reading with Mr taking things back a rather long way. E. W. Gillard, now Justice Gillard. He Norman Alfred Vickery, then a recently Garde enlisted in the was appointed Queen’s Counsel in 1989. commissioned militia Lieutenant, enlisted Melbourne University By 1978 he had attained Field rank and at the outbreak of World War II. His Regiment in 1967. He Company Command in the 1st Battalion active service number was a very low one, Royal Victoria Regiment. From 1982 to NX130. His initial service was in the 2/1st was then a fi rst-year law 1984 he was Commanding Offi cer Monash Australian Field Regiment in the Middle student. He was University Regiment and from 1984 to East. In January 1941 he so distinguished commissioned in 1970 and 1986 Commanding Offi cer 4th/19th Prince himself during the battle of Bardia that of Wales Light Horse Regiment. Promotion he was awarded the Military Cross. His posted to Monash to Colonel followed in 1987 and the conduct amounted to a very successful University Regiment. His Command of the 4th Brigade in 1992. bluff in which he convinced a substantial service soon included a In 1996 he was made a Member of enemy force that his Bren gun carrier the Order of Australia for service to with its complement of four men was period of full-time duty the Army Reserve. From 1998 he was the forerunner of an Australian divisional with the 2nd Battalion, appointed the Director, General Reserves attack. In fact it was simply a lone vehi- Pacifi c Island Regiment. and a member of the Chief of Army’s cle conducting a patrol. He was promoted Senior Advisory Group. His responsi- to Captain later that year and saw service to the rank of Lieutenant Colonel and bilities had now become very consid- in the Middle East, Ceylon, New Guinea, was Commanding Offi cer of the 1st erable and included budget review, a Borneo and the Philippines. Appointment Battalion, Royal Victorian Regiment. A review of the Defence Act and advice to Field rank followed in 1942. At the number of senior appointments followed, on future military development. General end of hostilities he was awarded the including Chief Instructing Offi cer of the Garde was promoted to Major-General MBE for his services in the South West Cadet Training Unit, Chief of Staff of 3 by the Chief of Army on 10 March last. Pacifi c area. In the post war years he Division, Commander 1st Support Group He is appointed Chief of Reserves of the commanded the Melbourne University and Brigade Commander 3rd Training Australian Defence Force and Head of Regiment and I had the honour to Group. Reserve Policy. He is responsible for the serve under him. Subsequent commands In 1980 he was promoted to Major- strategic development of the Reserves included the 31st Medium Regiment, General and Assistant Commander of and he is the leader of some 30,000 Royal Australian Artillery, and the 3rd Logistic Command. From 1981 to 1985 Reservists. His achievement comes after Infantry Division which followed his he commanded the 3rd Division and was 30 years of commissioned service. appointment as Major-General. He was Chief of the Army Reserve from 1985 to On behalf of all present, Greg, I con- a member of the Military Board for the 1988. gratulate you. Your profession of the law Citizen Military Forces from 1966 till In 1985 he was appointed an Offi cer is very, very proud of you, as it is of Air 1970. General Vickery graduated in law of the Order of Australia for his lengthy Commodore Kirkham who is present this at Melbourne University in 1950 and later and distinguished contribution to our evening and for whom a similar ceremony read in the Chambers of Mr Reginald Citizen Army. He now lives in retirement was held last year. May I also offer, Greg, Smithers. His practice became wide rang- in Queensland where he has the evoca- our best wishes to your wife, Chris, and ing and included many substantial crimi- tive address of Admiralty Drive, Paradise to your children and family members who nal cases. He was the distinguished author Waters. are here on this occasion. Their presence of Vickery’s Motor and Traffi c Law. At I intend no disrespect to another adds greatly to our enjoyment of this cer- the age of 44 he was appointed a judge lawyer Major-General, if I mention him emony as, I am sure, it adds to yours. I of the County Court where he served but shortly. He is Major-General Kevin now invite

23 News and Views

Madam Junior Silk’s Bar Dinner Speech Presented at the 2001 Bar Dinner held at the Plaza Ballroom on Saturday 2 June 2001.

Madam Junior Silk Jennifer Batrouney.

R Chairman, distinguished guests, Suffi ce to say that he has served the Bar he was entitled to a day off with full pay, a ladies and gentlemen, my task this and the community well. He has worked free ticket to Melbourne, and a free meal Mevening is to say a few things about particularly hard for the Italian commu- in the railway canteen. our 14 honoured guests. nity. In his own words, he has spent a lot of Not bad for a young chap — an all They are an eclectic bunch and, as time on Italian affairs although he hasn’t expenses paid adventure! The downside far as I am able to determine, their only been lucky enough to have one yet! was that he was convicted and fi ned 10 commonality is that they are members, or The young Bongiorno worked on the shillings. former members, of our great Bar. railways in Geelong during his University Bonge might forgive but he has not for- However, both Gareth Evans and Les holidays. He was a goods trucker second gotten. In his Chambers at the Supreme Kaufman read with Justice Don Ryan, class — that’s goods trucker. He worked the Court sitting proudly centre stage of his who is with us tonight. While this no doubt night shift and happily misconsigned truck mantelpiece is — yes, you guessed it — fi lls Justice Ryan with a certain amount of loads of superphosphate all over the coun- a transistor radio! And just in case any pride, it also does somewhat date him. In tryside. Those that were meant for Terang one was thinking of charging him with the fact, Justice Ryan turns 60 tomorrow and ended up in Kerang and those destined for same offence, he has strategically placed we wish him many happy returns! Yarroweyah ended up in Yarrawonga. This (right next to that radio) the Sicilian of the The Honourable Justice Bongiorno was all in a night’s work and didn’t seem to Year award — presented to him by “The has been appointed to the Supreme cause the railways any concern. Family” in recognition of their Godfather – Court. But he crossed the line when he was Bernie Bongiorno. He has had more welcomes than Nellie caught playing a transmitter radio on gov- Your other family welcomes you most Melba had farewells and, in the course ernment property. He was charged and warmly to the Bench. of those, his numerous achievements and summonsed to appear before the Railways Her Honour Judge Coate has been good work have been well and truly cat- Disciplinary Tribunal in Melbourne. As a appointed the inaugural President of the alogued. I will not repeat them again card-carrying member of the Australian Children’s Court and a judge of the County tonight. Railways Union, on the day of the hearing Court.

24 Prior to her appointment, she worked a good little junior silk, I attended Judge would chew everything in sight, rush tirelessly for the community on many Bowman’s welcome. Mark Derham told about all over the place and generally committees and boards. I am told that the assembled throng about his Honour’s cause mayhem and destruction wherever her career has been characterised by a reputation for ducking and weaving so as he went. Bogart was sentenced to a three- determination to help others and by a very to avoid starting diffi cult cases. While on month course of obedience classes. And real sense of justice. In her current posi- circuit in Ballarat this strategy involved so, every Sunday morning, Her Honour tion, she is in her element. However, she hiding out in the ladies’ toilet. But when would drag Bogart off to school, so that has not always chosen her vocation so his colleagues woke up to this tactic, he he could learn to be a good canine citizen. well. was forced to employ the more sophisti- Week after week Bogart learnt . . . noth- When she was young girl, Her Honour cated and extreme measure of hiding in ing. showed some promise as a swimmer, but the ladies toilet in another building! At the end of the three months her despite this, she was determined to be Now his desk is up for sale! Honour was duly presented with a certifi - a ballerina. She dutifully pliéd and pir- Does this mean, friends, that Bowman cate attesting to the fact that she had suc- ouetted through her classes until it was has no need of a desk? Has he taken up cessfully completed the obedience course. time for the end of year ballet concert. Her proud mother sat through the concert and afterwards was heard to say, “That was lovely dear — would you like to learn swimming?” Her Honour is well suited to her posi- tion as President of the Children’s Court, given that she commenced her working life as a primary school teacher. In that capacity she learned a few tricks that could serve her well in the courtroom. When everyone is talking at once she could yell: “Hands on heads!” She could declare: “No-one is leaving the room until I fi nd out the truth.” And she could say: “I’ll have that note you are passing around.” We welcome M’am to the Bench. His Honour Judge Bowman has been appointed to the County Court. He had previously been appointed a judge of the Accident Compensation Maurice Phipps FM. Justice Bongiorno. Tribunal but returned to the Bar after the dissolution of that Tribunal in December chambers in the ladies toilet of the County No mention of Bogart! While that cer- 1992. His fi rst words upon entering his Court? Will his judgments be carefully tifi cate was proudly kept and cherished, court were: “As I was saying before I was written on her Majesty’s best Sorbent? I Bogart was shipped off to Her Honour’s so rudely interrupted . . .” think we’ll just have to sit on that one for a mother — where he instantly became a I am told by my common law colleagues while. We welcome Judge Bowman to the model companion and, I’m told, a more that Bowman is a lovely chap. Now that’s Bench! valued member of the family than Her hardly surprising, given that he is a prod- Her Honour Judge Lewitan has been Honour was. uct of the inimitable Latham Chambers appointed to the County Court. Her Honour will no doubt be a very (as am I). But Latham Chambers are a bit Her Honour started her career at Corrs, valued member of the County Court and of a backwater so far as chambers are con- where she was made an associate partner we welcome her to the Bench. cerned. There is none of the hurly burly of in 1975. When she came to the Bar, she Master Michael Dowling QC has the Owen Dixon, the glitz of Aickin or the read with the late great Ron Castan and been appointed a Master of the Supreme sexy fi t outs of Rosanove. Peter Jordan. She was the fi rst woman Court. In Latham, we have been deemed unfi t elected to the Bar Council and the inau- Michael has been a fi xture in Owen to receive the lift notices that are con- gural convenor of the Women Barristers’ Dixon East since 1961. He was prised out stantly being defaced by some idiot in Association. She has been an inspiration of his room in 1965 when a further four Owen Dixon. We make up for this neglect for many young women at the Bar. fl oors were added to the East but he imme- by littering the notice boards in Latham However, her skills with women are diately returned and ensconced himself in with our own missives: counterbalanced by a complete incompe- the 10th fl oor for a further 35 years. Some “Who’s nicked my copy of 1999 VRs?”; tence when it comes to animals. A few lesser lights joined him over the years: “Car for sale cheap — won in a raffl e” years ago Her Honour decided that it might Sir Ninian Stephen, Woodsy Lloyd, Neil Riveting stuff . . . But one notice in par- be nice to have a Labrador puppy. Now, the McPhee, Hartog Berkeley, Jack Winneke, ticular caught my eye last month “Judge thing about Labrador puppies is that they Stewart Campbell, Tim Wood, Jack Keenan, Bowman’s desk for sale . . .” are completely mad. And Her Honour’s and Arthur Adams, to name a few. Now, this is a far more interesting puppy, Bogart, was no exception. It was Adams who recently coined the notice than one might at fi rst think. Being He was completely uncontrollable. He phrase “10th Florians” — no doubt they

25 We wish him well. His Worship Ian Gray has been appointed Victoria’s Chief Magistrate. His Worship is a native of the Victorian Bar but he moved to Darwin to work with the Northern Land Council in 1987. He subsequently worked as a magistrate and then Chief Magistrate in the Northern Territory until he returned to the Victorian Bar in 1997. After a stint with the United Nations in East Timor he was appointed our Chief Magistrate. Ian has done so much good work for the community that what was left of his hair has been replaced by a halo. Why is it then, that — back in 1987 — he was Mark Derham QC, Chairman of the deported to Darwin? Bar, addressing the Bar Dinner. Well, my friends, it’s because when he was at the Bar, he fatally annoyed the Melbourne Establishment. You may remember that, some time ago, the Melbourne Club was attacked by a pack of Trotskyites. These alleged people stormed the entrance, rushed in without so much as signing the guest book and then proceeded to rampage about in total disregard of the dress code! Not only did Gray not rush up to the other end of Collins Street and lay down his life for the Club as any chap worth his salt would — he defended these hooli- gans! Being a forgiving bunch, the chaps could have overlooked this sort of sedi- tious behavior by Gray. But when, after a Ruth McCall addressing the Bar six-week trial he got these blaggards off Dinner. . . . scot-free! This . . . THIS, the chaps he was sent off into the Queensland hin- could not forget. terland with a map and a compass and told will soon create their own fl ag and national Off to Darwin he went! to fi nd his way from point A to point B. anthem. The Victorian Bar, at least, is pleased Days later a search party was sent out to Michael was declared to be a legend of that you are back. fi nd him. Find him they did, and off he the Bar in 1998. No doubt this was, in part, The Honourable Brian Lacy has went to Vietnam, despite failing this most because he was the heart and soul of the been appointed a Senior Deputy President basic of training. 10th Floor social club. The club opened of the Industrial Relations Commission. Things didn’t improve. While in Vietnam, for business at 6 o’clock every night for He was part of the Industrial Relations His Honour was in the Intellig-ence Corps. 38 years. There would always be someone lair in the 9th Floor of Latham Chambers, One night, the aerials utilised at his post around to listen to your tale of victory and which included his brother Les Kaufman were subjected to an enemy rocket attack. to confi rm or deny the latest rumour cir- in concert with Douglas, Spicer and Parry. The deafening sirens went off and all his culating around chambers. It is said that His Honour was trying to colleagues fl ed into the weapons pit. It All jokes aside, I am reliably informed establish an appellant practice at the Bar was only then that it was discovered that that Michael Dowling has one of the fi nest by appealing against every unfavourable His Honour was not there — he had slept legal minds the Victorian Bar has ever decision handed down to his hapless cli- soundly through the whole shebang! been graced with, and that over the last 40 ents. This gamble paid off and His Honour No doubt these skills will equip His years he has been inexhaustibly kind and became the leader of the unfair dismissal Honour well for life on the bench and we generous in sharing that knowledge with Bar in Victoria. welcome him there. his colleagues. We are very lucky to have His Honour The Honourable Les Kaufman has It is said that when the on-line legal here with us tonight. By that, I mean that also been appointed a Senior Deputy research database AUSTLII was created, we are lucky that he found his way here at President of the Industrial Relations they simply downloaded it from Dowling’s all. His Honour is not very good at reading Commission. mind. Now, he himself has been down- maps. As part of his army training in prep- His Honour started out his legal career loaded from the lofty heights of the 10th aration for service in Vietnam, His Honour as associate to Sir Richard Kirby and has Floor to his new position “over the road”. was required to do “jungle training”. Thus, maintained a close friendship with him

26 and was nabbed for jay walking! Jay walking! Well, that simply would not do. Kaufman was not going to pay the fi ne — he would fi ght these trumped up charges, all the way to the High Court if necessary. So off he went to the Melbourne Magistrates Court. He was ably represented by his now Brother, Brian Lacy. Under astute cross examination by Lacy, the policeman had to admit, that no — he did not actually have his eye on BOTH his Honour and where his feet were at the same time! The charges were thrown out and His Honour was free to roam the streets once more. We welcome His Honour, and his feet, to the Commission! The Honourable Gareth Evans QC was awarded an AO in the General Division of the Australia Day Honours List for serv- ices to the Australian Parliament. Gareth won the Supreme Court Prize in 1966, lectured in law at the University of Melbourne for fi ve years and came to the Bar in 1977. He was a member of Parliament for 21 years and a minister for 13 of those. He is a Labor Party legend. But he was a legendette well before his parliamentary days. I am told that Gareth used to stride, Christ-like, around the University in his capacity as President of the Student Union. The only difference was that, in those days, he was known as Garry. But “Garry” had to go. “Garry Garry” does not have the same je ne sais quoi as does “Gareth Gareth”! At the end of his political career Gareth Gareth has staved off his “relevance dep- rivation syndrome” by taking up a position as the President of the International Crisis Group — a sort of a cross between a vet- eran lethal weapon and a raiders of the lost junket. Lets hope that, in this position Gareth loses not his quick wit and silver tongue. These talents were trotted out recently in Hong Kong where Gareth mentioned that he had heard that China’s paramount leader, Deng Xiaoping, liked to eat four puppies a day. Although one is tempted to think that these sorts of gaffes are the reason that Gareth didn’t ever get the top job, he himself denies this. He recently said to Chief Justice Barry Connell. Justice Don Ryan. The Age: for over 30 years. He also had a superb He was a pillar of society, a man to be If I’d really, really wanted to make that working relationship with Ian Douglas QC reckoned with. last rung on the ladder years ago, I would and together they were a formidable team. Which makes it all the more remark- have changed my whole political style and In the early ’90s he undoubtedly had the able that one morning, on his way up become much more of a schmoozer rather best High Court practice of any junior in to the Commission he walked across than someone who was obsessed with try- Australia. Bourke Street allegedly against the lights ing to get things right . . . I think that would

27 During the course of cross-examination on his tax returns, the hapless public serv- ant cried out in desperation that he had not understated his income. “Hang on a minute,” McInnis said — “I haven’t got to your income yet — that’s next!” At which time the public servant promptly dropped dead of a heart attack. Unfazed, McInnis immediately called on his next witness — who happened to be a cardiologist! We trust Your Honour will always be this well prepared on the bench! The Honourable Norah Hartnett has been appointed a Federal Magistrate. Her Honour has worked in private prac- tice and as a corporate counsel. In her spare time she has completed a Masters of Law and an MBA. During her 10 years at the Bar, she served on the ethics commit- tee, the equality before the law commit- Mark Derham QC, Chairman of the Bar, and Attorney-General Rob Hulls. tee and the alternative dispute resolution committee. have required a personality transplant to If your concern is distant, with a tropi- If she was tempted to think that her life have pulled it off. cal climate and fi ve star hotels, please press had become a little boring and predicta- hash for the Royal Australian Air Force ble, this all changed when she took up her Well, he’s pulled off an AO without the Reserves. Please note that this service is appointment. Her fi rst six weeks on the need for a personality transplant and for not available after 1630 hours, or at week- Bench were full of thrills and spills. Her that we congratulate him. ends. Honour was hearing a marital matter that Greg Garde QC has been promoted If your enquiry is not urgent, please involved a husband who was a debt col- from the position of Brigadier to that of press 2 for the State Emergency Service. lector bikie from Ballarat. He looked tough Major-General and has been appointed If you are in real, hot trouble, please and the proceedings were not improving Assistant Chief of the Defence Force press 3, and your call will be directed to his thunderous demeanor. (Reserves). Sandline International. While Her Honour was delivering her Now, for those of you who are not If your enquiry concerns a situation judgment he put his leather jacket on, military types, this is fairly impressive. which can be resolved by a posse of fi lled up two glasses of water at the Bar It is the highest position available to armoured vehicles, lots of fl ag waving and table, picked one up and threw it over his a reserve offi cer within the Australian a really good marching band, please write, wife, smashed the second glass on the Bar Defence Force. In this capacity he heads well in advance, to Greg Garde, AM RFD, table and attempted to stab his wife in the an offi ce staff of six in Melbourne, 11 in QC, Chief of Everything, Canberra. stomach with the broken glass. Canberra and is in command of 30,000 All this activity fi nally roused the secu- reservists in Australia. Greg Garde, the Victorian Bar salutes rity door-mice into action. They ran into I have to admit, I was terrifi ed at the you. the court and jumped on the bikie. The prospect of approaching such a formidable The Honourable Murray McInnis wife’s counsel, David Whitchurch, gallantly fi gure. The fact that he was born on April has been appointed a Federal Magistrate. assumed a statue-like composure. The fool’s day and that every single person I His Honour had a broad practice at the court transcriber fl ed out the door never consulted assured me that he was a thor- Bar covering family, criminal and admin- to be seen again and Her Honour was oughly nice bloke did not quell my fear. istrative law. He was often briefed by the escorted, shaken but not stirred, out of I wimped out and rang him instead. This AGS in Comcare matters. One of these the court. was the recorded message on his phone: Comcare cases involved a public servant We wish Your Honour many long and Thank you for calling the Defence Force who was making a stress claim — things at peaceful years on the Bench. Reserves. I’m sorry, but all of our units the department were so stressful that he The Honourable Maurice Phipps are out at the moment, or are otherwise had to take time off as he was not able to has been appointed a Federal Magistrate. engaged. Please leave a message and as work. His Honour has previously been a faith- soon as we have fi nished fl ouncing around Hound dog McInnis had discovered that ful servant of the Bar, having served on at the endless Centenary of Federation do’s, the public servant had been running a mas- the Bar Council and as Chairman of List A. we will return your call. sage business on the side. He was seeking He also endured seven years as a director Please speak after the tone, or if you to prove this by an examination of the of BCL (now — that was one mirror you require more options, please make your expenses the public servant had claimed shouldn’t have broken!). selection from the following numbers. in his tax return. One of these expenses His Honour was prepared for his posi- If your crisis is small, and close to the was for employing a locum masseuse on tion on the Bench by years of gentle nur- sea, press 1 for the Royal Australian Navy the odd day that the public servant actu- turing by Allan Myers QC in the course Reserves. ally went to work in the department. of endless BCL meetings. Myers would

28 say: “I’m not interested in what you think Maurice, I just need to know if you are for or against the proposal.” This training has served him well. In the fi rst week on the job, Maurice was overturned by the Full Court for a denial of natural justice! Not content with that, the litigant in question has lodged an application to the High Court claiming that the rehearing should be before any court in the land other than the Federal Magistrates Court. We welcome His Honour to the bench and look forward to the next installment. The Honourable Barry Connell has been appointed Chief Justice of the Supreme Court of Nauru. His Honour is a well respected, if a touch elusive, member of the Victorian Bar. He taught Stephen Charles as a schoolboy at Geelong Grammar, he tutored the Solicitor-General in political science at Trinity College and was a winning doubles bowls player with Jim Merralls. Now that is a mean pedigree! He describes himself as “something of an international wanderer” and is described by others as “one who always combined the respectability of the Bar with forays out into foreign affairs of one sort or another”. In his capacity as Response to Bar the Scarlet Pimpernel of the Bar, his adventures have taken him to many remote and exotic places — Lesotho in Southern Africa, the International Court Dinner Speech of Justice in the Hague and Monash University. He presides over a court which is Judge John Bowman responds on behalf unique: it being the only non Australian court from which an appeal lies to the of the honoured guests High Court of Australia — a device which the leaders of our Bar describe as “legally imaginative”. ISTINGUISHED guests, ladies and to the judgment. The honoured guests And yea, though Your Honour walks gentlemen. could constitute a team. I could respond through the valleys of phosphate, we are D It’s not easy responding on behalf on behalf of the diverse guests in one fell proud that you still call the Victorian Bar of such a diverse group. This is hardly a swoop if I could group them as a sporting home! class action. Unless, given that we took team. I said earlier that our honoured guests these jobs, it’s for faulty brain implants. I should say by way of factual back- did not have much in common. On refl ec- For a while I was completely bereft ground — that’s judgespeak. I’ve learnt tion, I realised that I was wrong. Each and of inspiration, particularly as I had mis- some already — that in my early Bar days, every one of them has given back to the laid my rib-tickling, knee-slapping speech more consent adjournments ago than I community. Each of them has given hours about the County Court rules in relation to care to remember, Kevin Mahoney, George of their own time for the welfare of others. bonds in replevin of cattle. But then, sur- McGrath and I had neighbouring cells on This generosity permeates throughout the prisingly, I had an idea — a landmark event the eighth fl oor of Owen Dixon, and we whole of the Victorian Bar, whether it be in itself. This idea sprang fully formed into spent a great deal of our productive time helping out a colleague, service to the my mind as I sat labouring at a judgment, composing football teams out of names community, or service to the Bar itself. after a modest chinese meal which had of solicitors fi rms. This was in the era of It is this spirit of giving that is the hall- been accompanied by the merest drop of the famous TV show when Lou Richards, mark of our great Bar. white wine. Jack Dyer and Bob Davis would read out Ladies and Gentlemen, will you please What provoked this idea, apart from the league teams, and some fi rms of solic- charge your glasses and be upstanding for the tea-smoked duck and the sauvignon itors sounded just like lines from those the toast to our Honoured guests. blanc, was a football discussion which took teams. So, as Kevin, George and I toiled Our honoured guests. place as I gave my undivided attention away industriously, writing birthday cards

29 On Parade at the Plaza

Steven Tudor, Elizabeth Brophy, Romould Andrew and Peter Nugent, Rachel Doyle and David Forbes. Richard Thompson.

Caroline Burnside, Attorney-General Rob Hulls, Murray Justice Linda Dessau, Judge Elisabeth Curtain and Justice McInnes FM, and Lesley Fleming M. Sally Brown.

Peter Nicholas, Sarah Fregon and Brad Newton. David Starvaggi, Simon Lee and Chris Sievers.

30 Justice Murray Kellam, Sue Winneke, David Habersberger Clarke Grainger, Aileen Ryan and Jeremy Twigg. QC and Fiona Connor.

Jane Gabelich, Gina Reyntjes and Jason Pennell. Arthur Adams QC, Michael McDonald and John Richards.

At the Bar Dinner.

31 Murray McInnes (Federal Magistrate), Erin Gardner, Elspeth Strong and Richard McGarvie. for paperwork briefs, one of us might suddenly call out “the forward line is Dugdale, Dimmick and Stephens” — a distinctly North Melbourne sounding line. Or “the centre is Warming, Hayes, and Goulopolos”, which had a Carlton ring to it. And, at a time when Geelong had B. and I. Nankervis, and Collingwood had W. and M. Richardson. There was only one choice for the reserves — “the 19 and 20 men are Corr and Corr”. I have gone on with this drivel so as to explain that, lurking in my past, has been this hobby of converting lawyers’ names into sporting teams. But, were the names of the honoured guests suffi ciently sug- gestive of sporting prowess so as to enable this team response? Because there were originally eleven and the name at the top of the list was the Honourable Justice Bongiorno, I must admit my fi rst thought was of soccer. At right, Master Michael Dowling QC. Bongiorno. The name simply conjures up visions of Mediterranean footballing idola- keeper, Kennett. And then Bongiorno did forwards’ ankles out from under them. Not tory. One can almost hear the BBC com- a handstand, showing off his navel to the that Les would do that. He’s a lovely man. mentataor summarising after a world cup ladies in the adoring crowd”. Marvellous. This whole exercise is about the names, semi-fi nal — “the highlight was when the But the rest of the names didn’t have not their owners, although if I occasionally great Italian striker Bongiorno, slammed much of a soccer feel. Possibly Kaufman. merge the names, their roles, and their the ball past the hapless Scottish goal- One of those grim defenders that hacks real personalities, that’s entirely acciden-

32 tal. Anyway, the names didn’t suggest a middle order, Scottish batsman. sure where. So if the troops are turbulent, soccer team. Pugnacious, tenacious, and hard to there’s one ideal experienced man ready Then it struck me. A cricket team. And, remove. A Scot, but with a surprisingly to take charge. Chief Magistrate Ian Gray. when the number expanded to fourteen, large number of Irish fans. Because they Not only does the name, Ian Gray, suggest a touring squad. Some of the names liter- think his name is actually “marry my solid batting, reliability and stability, but ally scream out “cricket”. Others are more guiness”. Which they’d like to do. In fact he’s been fi lling this take-over role since diffi cult. So I will respond on behalf of the his name is derived from the way ancient Adams was a boy. honoured guests touring cricket squad. Scottish bowlers used appeal to umpires - Kaufman is an unusual cricketing name. And so to the players. Just look at these “Mcout or Mcinn is he?” And Mcinn he cer- At fi rst I was tempted to group him with names. From Nauru, Barry Connell. Has tainly is. Garde of trousers fame. Why? Cough-man. to be a tropical fast bowler. Mich-ael Hol- Rachel Lewitan is not a name that Cough-man. Sounds like a West Indian doc- ding, Mal-colm Mar-shall, An-dy Rob-erts, immediately suggests cricket. Until you tor’s instruction at a hernia examination. Char-lie Griff-iths, Bar-ry Con-nell. Barry analyse it. And call her Rach or Rachey. But cricket-wise? Perhaps the Christian Connell, express fast bowler, getting that Then its apparent that we have a medium name “Les” provides the clue. A batsman. extra lift out of the Nauru track when the -to- fast bowler. Terry Ald-er-man, Rachey There’s been Les Favell and Les Stillman. ball hits the guano. Connell, the scourge Lew-i-tan. Rach Lew-i-tan, Carl Rack-er- And the famous French openers, the pain- of batsmen, causing more than bird drop- mann. And if our touring squad visits Hong fully slow Les Cargo, and the doleful and pings to be left on the pitch. Kong, as touring teams often do, who peculiarly double named, Les Miserab Les. The wicketkeeper picks himself — who could be a better guide than Lewi tan. And the amnesiac, Les we forget. It is else but G.Evans? It was said that the great Indeed, continuing our game of putting a Christian name associated with batting English keeper, Godfrey Evans, could talk the empharsis on the wrong syllable, for greatness, although I appreciate that it opposing batsmen into the turf. A novice Flower Drum fans, Lew i tan, Gil bert may not be politically correct to say that compared with our Gareth. After all, he’s lau. Not just a deceptively quick bowler, cricket has had some famous Les’s. just given one of the Alfred Deakin lec- Rachey is a truly cosmopolitan addition to Now what about where we started, the tures. He’s a constitutional expert. Imagine our squad. famous Bongiorno. I see him as one of batsmen trying to concentrate with Gareth Jennifer Coate might also seem a dif- those fl amboyant, temperamental, fl owing- squatting behind them, babbling at them fi cult cricketing name, but run title and locked, glaring fast bowlers. The Roman about free intercourse between the States. name together and what do you get? showman. But Bongiorno, in cricket, is I mean, they’d be familiar with the concept, Erronna jennicoate. Clearly a Sri Lankan a name of pure malice. Lightning fast, but the terminology would slay them. spinner. Perhaps a distant relative of that erratic, and nearly decapitating the enemy. And what a wonderful name is Brian famous Indian property steward whose And when he gets one on the pitch, spread- Lacy. Obviously an English slow bowler. name has gone down into joke lore, eagling the stumps, giving the departing Lacy. Somewhere between Lock and Laker. Mahatma Coate. In addition, as a slow batsman the two-fi nger salute, and growl- Brian Lacy, tweaking the ball through the bowler, her name is a commentator’s ing “arriverderci”. mist from the gasometer end, turning it dream. Those deliveries smashed back for Suddenly, when the squad is assem- a mile on the doctored pitch, beating the six could be descibed as over coate. Those bled, there’s a last-minute addition. Master bat, and the commentator saying, “Oh, bashed between her ankles as under coate. Dowling. Master Dowling. We’re just about that was an unfair dismissal”. And a sharply turning pitch should — suit to board the jumbo, and we get someone And whilst we’re on the English, the coate. I might say that , had Jennifer been from the under twelves. And wasn’t one name Maurice Phipps suggests to me an with us at the Accident Compensation M. Dowling the captain of New Zealand? English opening batsman. Phipps. Upright Tribunal in 1992, she too would have been Just what we need. A kiwi in short pants. and unfl inching. Ultimately to be “Sir cut down from a coate — to a Bar jacket. I’m afraid I see Master Dowling’s role as Maurice Phipps”. Driving the bowlers to Major General Gregory Garde. Well, the mascot. Or, in the team photo, sitting despair. Indeed, giving them the pip. Which here’s our skipper. Has to be at least cap- on the ground in front, with legs crossed is almost what his name woud be. If only tain of this outfi t. But what cricketing and holding the blackboard. the “h” were silent. Like the “p” in mixed image comes from the name? Garde! Easy! On reviewing the squad, I detected a bathing. Something you shove down your trousers. defi ciency. Powerful bowling, great keeper, But who’s to open the batting with Not that I’m saying Greg would be happy even a mascot. But the batting! No pizzazz. the redoubtable Phipps. I think Norah about that. Although he does have a mili- Solid, reliable, courageous. But no batting Hartnett. I think that’s a Springbok name. tary background. I see him as one of those brilliance. Then I remembered there was A South African star with the bat. Kepler fearless right-on-top-of-the-bat fi eldsmen one more name. I hope you realise that the Wessels. Norah Hartnett. Dare one say it, for the sharp, short catches. Garde, in very name “Bowman” is just three letters away Norah Hartnett, Hanse Cronje. And she’s close, in case of rising balls. From the pace from — Bradman! Nothing more need be a fed. Ideally placed to take calls from attack of course. said. Indian bookmakers. But I can tell the Bar We might as well immediately deal with So, Jenny Batrouney, Mark Derham, that the honoured guests are also hon- the vice-captaincy, because, if the experts members of the Bar, here is your hon- ourable guests. We’re not into case fi xing. are to be believed, skipper Garde’s pop- oured guests touring squad, ready to play We don’t give away legal information or ularity waxes and wanes, and also he’s throughout the common law world. We are knowledge for money. In fact, I can assure not always available. Because the com- heading off to spark statutory scrutiny; you that we have absolutely no knowl- mentators are sometimes saying the play- burn brightly at bars and in banco; fan the edge, so there. ers are on guard, but other times the fl ame of forensic furore; and, hopefully, Where was I? Who’s next? Murray players are completely off guard. And fre- bring home the ashes. McInnis. McInnis. Sounds like a dour, quently they are taking guard, but I’m not Thank you very much!

33 News and Views Verbatim

whether or not NMA should have fi led a Houghton: I am going to ask you a general Degrees of Relevance statement of material facts pursuant to question, and no doubt everyone at the Toomey v Scolard’s Concrete Rule 56.1 or not, whether the court has Bar Table knows about this concept, but 14th day of hearing granted plaintiffs’ motion for leave to fi le I think my learned junior thinks it’s some Coram: Eames J supplemental authority or not, whether form of sexual bondage, but what is this Saccardo (with Curtain QC) for 8th the Court’s own previous order is “author- concept “golden handcuffs”, Mr Robinson? Defendant ity” or not, etc., betrays a startling lack (Later) of sense of humour, or sense of propor- Connock: Our junior silk, Mr. Houghton, Cross-examining a movement analyst Mr tion, or both, especially since it appears to has released me from the golden hand- Meikle. be agreed that the facts relevant to this cuffs of which he speaks and has allowed His Honour: So you are putting a prop- case are all in the administrative record. It me to address on this matter. osition to the witness that the person is is this 21st day of May, 2001, ORDERED leaning against the rail, absent any other that NMA’s rule 56.1 statement is not forces at all? “rejected”, that it will remain of record, Wobbly Case Mr Saccardo: Yes. and that it may remain as “context” NMA’s His Honour: Is it more or less likely that arguments. And it is FURTHER ORDERED In the United States District he’ll go over the rail? that the parties lighten up. Mr Saccardo: Is it, I am asking in which Court for the District of category is the fall very unlikely, very Maryland likely, or somewhere in between. Kevin Potter v Marguerite Potter, et al., His Honour: I would like to know whether Windmills of the Mind Civil Action No. MJG-00-63 it is very irrelevant, extremely irrelevant Federal Court of Australia or just barely irrelevant; how is it relevant As presented in the voluminous papers to me, if that’s the proposition that you’re 1 May 2001 fi led by the parties, this case has been asking the witness to comment on? Timar v The Minister for Justice and portrayed as a great shaggy beast requir- Customs ing titanic effort to subdue. Yet, using the Coram: Marshall J approach familiar to those on the great Not For Solicitors Mr John Kaufman QC with Mr G. Thomas sheep stations of Victoria, Queensland and for Applicant New South Wales, one can shear away Michael Crennan noticed a sign on the Bar Mr G. Livermore for the Respondent. the hysteria, exaggeration and hyperbole. Table in the Supreme Court of New South What is then left is no more than a huge Wales last year. He copied the wording His Honour: This is your submission to the effect that the decision was so mound of fur scattered around a scrawny, verbatim: and very ordinary, little creature whimper- “Please note that carafes and water are unreasonable that no minister would have decided it that way. ing and peering forlornly as it is led, on supplied for the Bar Table only, and not for wobbly legs, out of the shed. solicitors or the general public. Of course, Mr Kaufman: Yes, Your Honour, if I can take you through those. I have noted . . . The Court has before it: use your discretion if someone has a per- 1. Nationwide’s and Christine Parks’ sistent cough or has to take a tablet, etc. His Honour: I have to warn you that the last time I upheld a submission of that Motion to Dismiss and/or for Summary There are bubblers located on each fl oor Judgment and Motion for Sanctions so please direct the public and solicitors kind I was kicked to death by a Full Court in Betkhoshabeh. Against Kevin Potter [Paper 28]; to them. 2. Nationwide’s Motion for Summary Senior Court Offi cer” Mr Kaufman: Your Honour, be brave. I shall protect you . . . Judgment, and for Sanctions against Mr & Mrs Harry Potter on Nationwide’s Cross-Claim [Paper 29]; Lighten Up Order Silken Bondage United States District Court for Industrial Relations Commission the District of Columbia of New South Wales Citizens Coal Council, et al., Plaintiffs v Bruce Babbitt, Secretary of the Coram: Justice Boland Interior, Defendant and National Mining Gough and Gilmour v Caterpillar Association, Intervenor-Defendant (Day 14) Houghton QC (with Hall QC and The recent heated exchange between M. Connock for the respondents) cross- plaintiffs and intervenor on the subject of examining:

34 News and Views Jack Cullity Based on a speech given at the Criminal Bar dinner on 30 November 2000

Professor George Hampel QC

ESSAMINE Avenue runs off Dande- strong criminal advocates in this state in nong Road, Windsor. As a law student his heyday. He had the universal respect of JI lived nearby and often cut through every judge, an almost impossible task for Jessamine Avenue. I did not realise then any advocate to achieve, and they envied how much three men who lived within a his ability. The police admired and feared few metres of each other in that unas- him. Many policemen have told me they will suming suburban street would mould my never forget being cross-examined by him, professional life and help to give the prac- they often referred to his fairness and the tice of criminal law the respectability it fi ght he put up for his clients. The same was, deserved. and still frequently is, mentioned by tutors The fi rst of them was Ray Dunn. He in law schools and police academies. But he was an outstanding solicitor advocate with always remained a very humble man. a large criminal practice who, unlike Frank Galbally, limited his appearances to the An obituary in the Victorian Bar News magistrates’ courts. He was also a col- in 1975 read: ourful teacher of criminal procedure at Melbourne University for many years. The death of John Michael Cullity was When at the end of my law course I remarked on widely in the legal profession saw David Derham and told him that I Jack Cullity as marking the end of an era. Jack Cullity wanted to go to the Bar, he rang Ray Dunn was a legend in his own time. The central and arranged articles for me in fi ve min- the courtroom where the trial was to take feature of his life was his service to the utes. That is how easy it was in those days place. I found that it was closed. “Sorry,” people and his outstanding integrity as a although I had an advantage because I was said Trevor later “I didn’t tell you that human being. a volunteer in the moots which Ray Dunn we had settled but I thought that the No matter what was said against his cli- organised for the Justices of the Peace. research would be good for you anyway.” ent Cullity would always fi nd good in him. But this is not a talk about Ray Dunn When Trevor Rapke was appointed to the The daily press spoke of his greatness as a although I owe him much. When I fi nally County Court Bench he become known as trial advocate. They were correct. He was went to the Bar Ray gave me my fi rst brief one of those good judges who gave rea- an advocate in the old tradition, a master but then said, “You’re not learning at the sonable doubt a real meaning. I always tactician capable of dominating any court expense of my clients, I’ll see how you get had a good run in his court. I think he and commanding the course of the trial. on.” felt that I would have been a lot better He knew his law, he knew human beings, Then there was Trevor Rapke who lived had I been his reader. But Trevor is also he knew life. He spoke the language of the on the corner of Dandenong Road. He not the person I want to speak about this common people and had a profound con- was a senior well-regarded barrister with evening. tempt for anything in the way of preten- a good general civil practice and a room The third man of Jessamine Avenue sion. above the cellars at Selborne Chambers. whose infl uence was most profound was Every barrister could learn much from a Trevor was well known for his command Jack Cullity. Black Jack as he was known. study of Jack Cullity. He had been very close of the English language, his forceful advo- Ray Dunn who briefed him constantly had to Leo Cussen to whom he attributed much cacy and his regular afternoon catnaps in talked about him as the ultimate advocate. of the success he himself had. He said that his chambers. We briefed Trevor in civil So did all his contemporaries. if the proper points could not be made to a cases and I got to know him well. When Jack Cullity was born in 1893 and died jury or judge or in cross-examination in 20 articles were nearly over I arranged to in 1975. After his father’s death Eugene to 30 minutes they were probably not worth read with Trevor but he took silk on me. I Cullity wrote to his sister: making. To hear a trial conducted by him think he realised that he had disappointed was a lesson. It is sometimes thought that me and so I found myself with a junior We were literally overwhelmed by tributes Jack Cullity confi ned himself to the criminal brief to him in a negligence case against to Dad from all sections of the community. courts. In fact, he practised widely in many The Royal Melbourne Hospital. But Trevor He was often referred to in legal circles jurisdictions and had a mastery of general had a mischievous streak. On the morning as a legend in his own lifetime, and he legal problems. One of the outstanding char- of the trial he sent me off to the library was known, admired and respected by the acters of the Bar and of Australia has left us. to do some research. Just before lunch, legal profession throughout Australia. He His work enriched the Bar and life. It will armed with lots of authorities, I went to led and dominated an era of particularly not be forgotten.

35 In the centenary edition of the nifi cant trial just before addresses, I lost walked Jack Starke QC. Many of you here Victorian News the tribute to Jack Cullity him. He wasn’t in chambers and I couldn’t probably recall Sir John Starke either as as a great advocate said: fi nd him anywhere. It was about half an a barrister or as a judge. Starke was one hour before the court started as I passed of the leaders of the Common Law Bar, Cullity was probably the ablest cross-exam- our courtroom. a tough, abrupt, aggressive, larger than iner this Bar has seen. The door was open but the court was life advocate. You can imagine how I felt. still in darkness. I saw Jack sitting at the But then what happened was even worse. The writer added: Bar table calmly looking ahead as if in a I think you can guess. Behind Starke trance. I wondered what he was doing but walked his junior, my idol, Black Jack I personally never saw Cullity do a bad at the time gave it not much thought. I Cullity. The case was a charge against cross-examination, and I don’t think anyone have since realised that he was probably a local Frankston chemist of dangerous else did. I can confi dently add that I have meditating. That is the only conclusion driving. It was, I thought, an overwhelm- never seen a better cross-examiner or a bet- that can be drawn from his amazing calm ing case of very bad driving. However, ter trial advocate. and composure when the proceedings when those two fi nished with the judge, started. with the witnesses and with me, the driv- As the tradition has now developed In the presence of the jury, Jack Cullity ing was not dangerous at all. It was a at these dinners of speaking about great never spoke to the prosecutor. He took the great lesson. I don’t think I remember characters and advocates of the past I view that would give the wrong impres- much about the proceedings themselves suppose I could stop here as no greater sion and would be inconsistent with the because I suspect I have repressed the praise can be given to any advocate. But I contest that was going on. Comments and trauma that I experienced. I remember, want to refl ect briefl y on some of my own exchanges between Counsel at the Bar however, something very important. It fortunate experiences of Jack Cullity, and table were his pet hate. Sledging and bick- was Cullity who was given the job by although he was described as an advocate ering he thought was indicative of a loss of Starke of cross-examining the main wit- in the old tradition I see him also as the control and confi dence. He calmly waited ness. That says a lot about Cullity but also ultimate modern advocate. for his turn and when his turn came he about John Starke. I fi rst saw Jack Cullity in Equity was deadly. Cullity practised for a few years after I Chambers in a conference with one of our Jack never joked or laughed in court started before he became ill. I used to go clients. He had the poor man standing in and did not respond to those who did, and watch him in court whenever I could the corner being subjected to an aggres- whether it was his opponent or the judge. and sometimes consulted him. Sometimes sive bullying cross-examination. I was agog He looked at the jury in a way that made I went to see him on a pretext just to because even in those days I realised that it clear that what he was doing was too hear him talk about the case. I am sure he that could not have been a good cross- important to be made light of. It always sensed that I admired him and was always examination. But I soon realised that Jack surprised me that one of the favourite receptive and helpful. was putting the client through what he sports of this gentle sensitive man was I described Jack Cullity earlier as may experience at the hands of some of boxing. the ultimate modern advocate. Many of the bad prosecutors of the day. Jack Cullity had a quiet whimsical sense Cullity’s contemporaries, even the good The many cross-examinations I saw of humour. He had a calm gentle face with ones, were much more verbose and took a him do were immaculate. He could be fi rm that little smile which can be seen in his lot longer to do that which Cullity did so but quiet, never fl ustered, always relaxed photographs. I have some copies, which I effi ciently. Good advocacy today demands and composed. Most noticeable was his will pass around so you may have an image great focus and brevity. Jack Cullity under- brevity. There was the famous one ques- of the man who was so highly regarded. stood even then that those were the quali- tion cross-examination of a pathologist, Dr I don’t know who the man with him is. I ties of a good advocate. Bowden. It was a case in which there was a don’t think he is a client but he may be a I see Cullity as the beginning of the difference of opinion between the doctors very satisfi ed instructing solicitor. change in the attitude by the rest of who treated a man who was still alive for When I knew Jack he travelled once the profession towards criminal practice. a wound and a pathologist who expressed a year but only to one place which he Those of us who followed, who had seen an opinion as a consultant. Jack asked explored thoroughly. I recall his stories and were infl uenced by Jack Cullity, real- the pathologist pensively “Dr Bowden, it about his visit to the courts in China and ised the need for the pursuit of excel- must be about 20 years ago that you last his horror at the practice of the prosecu- lence. This was the way the practice of saw a live patient.” “Yes” said the witness, tor having the last say on sentence. criminal law would gain respectability. My and Jack sat down slowly, allowing the The last thing I want to describe is a only regret is that in those early years I answer to resound in the courtroom before traumatic experience of my own. Early didn’t understand enough about advocacy anyone spoke. in my career I did, as did others, County to be able to learn more from Jack Cullity. He had a special ability to capture the Court appeals for the Crown. Typically, As I have thought about advocacy over the moment and create the right atmosphere. there were half a dozen briefs which years I have always used Jack Cullity as Juries loved him. The fi rst time I instructed one would get the night before. Most of my point of reference. Jack Cullity he told me that I wasn’t much them were not complicated and they were The tradition of speaking about great use as I just sat there and took no notes. then, as they are now, re-hearings. My advocates of the past is I think important That was true because I was mesmerised. opponents were usually counsel of about because it gives us inspiration, goals and I sensed that I was seeing something dif- my own vintage, sometimes more experi- role models. ferent and special without really appreci- enced. You can imagine my horror when I have, since those days, slowed down ating how and why it was so good. one day, halfway through the morning respectfully and pensively as I pass One morning towards the end of a sig- just before the next appeal was called, in Jessamine Ave.

36 News and Views Mediation Centre Function Patronage by fi rms of solicitors and mediators is crucial to the continuing of success and operation of Victorian Bar’s Mediation Centre at Level 3, 180 William Street.

N May 2001 the Alternative Dispute Bill Martin QC speaking Resolution Committee held a drinks at Mediation Centre Ifunction to acknowledge those fi rms Function. and mediators who have supported the Centre and contributed to its success to date. (The occasion was notable for the absence of Kirby J as guest speaker but, presumably in anticipation, the CJ left — another commitment — before he realised that Kirby J was not speaking). The Bar needs to be as innovative as possible in the mediation area, and the Centre has been a practical exhibition of its progressive thinking. As far as it is known the Bar’s facility is the only media- tion centre run by a professionally organ- Many thanks are also extended to the ised Bar. It is important to remember Bar staff, David Bremner, Wendy McPhee that its viability depends on recommenda- and Tania Giannakenas for coping with tions for its use on every possible occasion the invitations and the usual numbers by our members. You are urged to bear chaos. this in mind. To promote the Centre excel- The Centre’s main feature is of course lent graphic brochures are available from its staff, Helen Henry, Pauline Hannan, the 12th Floor Administration which show Robyn Cran and Kay Kelly, who with the layout and facilities. You are encour- aplomb have dealt with every situation aged to send them to solicitors and to par- and have done so over the 1500 mediations ties. which have occurred since the Centre Gerald Lewis and Julie Nicholson opened. are sincerely thanked for organising Gavin Francis, John Lewisohn and the function with unsurpassed catering. Bill Martin QC Geoff Gronow.

David Levin QC, Julie Nicholson and Chief Justice Phillips and Bill Martin Chief Federal Magistrate Diana Bryant Justice Kellam. QC. and Gerald Lewis.

37 News and Views A Practical Way to Early Resolution of the Head of State Issue Richard McGarvie previews the Conference to be hosted by the Corowa Shire Council on 1 and 2 December 2001, as the endpiece of the federation year. The conference aims to perform the same function as the Corowa Conference of 1893, which recommended the process that was followed to resolve the issue of whether Australia should federate.

UR strong and stable federal democ- WHAT IS THE ISSUE? our federal democracy has endured mainly racy is a priceless community asset The issue is whether we have reached the because the law of its constitutions, and Owhich belongs to the people. So stage of history where we should cast off the operating constitutional system devel- does the responsibility for keeping it the legacy of colonial times, which gave us oped on that, between them leave power- strong and ensuring that whenever it is a head of state in a foreign country on the holders no real option but to exercise their adapted to fi t changing circumstances, other side of the world, and fi nally attain powers consistently with the continuation this is done in a way that preserves or entire constitutional autonomy. of democracy and its safeguards. They improves it. Since 1788 we have moved so far in have that effect because they combine to that direction that only a slim residue provide incentives and disincentives and IS EARLY RESOLUTION NECESSARY? of constitutional dependence on Britain to bind powerholders to act in that way. A Newspoll in September 1999 showed remains. For years the operative or de Particularly important are the constitu- 95 per cent agreeing that the head of facto heads of state, the Governor-General, tional conventions which are made binding state should be an Australian, 88 per cent Governors and Administrator of the on powerholders by the way the constitu- strongly agreeing. In the referendum two Northern Territory, have performed virtu- tional system actually works and the non- months later only 45 per cent voted for ally all the head of state responsibilities legal penalties it imposes for their breach. the package offered and no State gave for the Australian federation. They oper- The main diffi culty in moving to com- majority support. This indicates that over ate as advised by their Australian minis- plete constitutional autonomy is to ensure 40 per cent of voters were not satisfi ed ters and are entirely free of any control that a model which replaces the monar- they were offered an acceptable package by the Queen. Our only remaining con- chy would not reduce the incentives and and voted “no” despite their desire for stitutional dependence is that whoever is disincentives provided by the operation of an Australian head of state. A later study monarch of the United Kingdom is mon- the constitutional system and would not shows 89 per cent agreeing an Australian arch of Australia and the formal head lead it to work in a way that would weaken should be head of state, 70 per cent agree- of state of the Commonwealth and each or destroy the binding power of those ing strongly. state and territory. The only constitutional conventions. Avoiding these unintended This shows a latent instability in our function the Queen now performs is the consequences depends very little on a constitutional system. Constant wrangling fairly mechanical and infrequent one of knowledge of law but on a knowledge of over basic features of the constitution has complying with the binding convention to humans and their behaviour within organ- a destabilising effect in a federal democ- appoint or dismiss the Governor-General, isations, particularly when infl uenced by racy. That has been the experience of the state Governors or Administrator of the the impulsive attractions of obtaining or long-running series of constitutional dis- Northern Territory as advised by the Prime retaining power. putes in Canada since the late 1970s. It Minister, State Premier or Chief Minister. would not be responsible for the Australian The issue which faces us is whether we WHAT IS NEEDED FOR EFFECTIVE people to leave the body politic unhealthy, have reached the stage where the whole RESOLUTION? with a constitutional running sore where federation should separate from the mon- The experience of resolving the issue of about 90 per cent do not identify with archy. whether Australia should become a feder- a central feature close to national senti- While that would be a relatively small ation, and of the 1999 referendum, show ment. change, it is a diffi cult one. The quality of what will and what will not resolve the

38 head of state issue. It must be resolved DIDN’T THE 1999 REFERENDUM showed in the Newspoll of voting intention in a constitutional way which makes RESOLVE THE ISSUE? taken a week before the referendum. It full use of the resources of people, par- The package rejected at the 1999 refer- indicated 53 per cent of ALP voters voting liaments and governments in working out endum lacked a number of the attributes “yes” but 63 per cent of coalition voters the proposal ultimately put to referen- which are essential if a referendum vote is voting “no”. dum. to resolve the issue. I refer only to some of Although it was put together as we The issue will be resolved only by a ref- them. approached the centenary of federation, erendum vote upon a proposal that can paradoxically the designers and promoters genuinely be presented so as to catch the of the referendum package hardly looked public imagination and vision, and where at and never seriously considered a res- people can vote free of partisan political The referendum was olution of the issue for the whole feder- impulse and secure in the knowledge that confi ned to the ation. The referendum was confi ned to whichever way the vote goes our democ- Commonwealth unit of the the Commonwealth unit of the federa- racy and federation will be safe for future tion. People could not vote secure in the generations. federation. People could knowledge that whichever way the vote In practice the issue will be resolved not vote secure in the went our federation would have been safe only in two events: if a referendum passes; knowledge that whichever for future generations. The destabilising or if a sound and acceptable proposal for effect if the referendum had succeeded change is strongly put and voters reject it way the vote went our with one or two States strongly dissent- because of a genuine preference against federation would have ing would have been considerable. The making the change at the present stage. been safe for future majority in the dissenting States would Both those events depend on there being have been forced into a system of gov- a sound and acceptable proposal. generations. ernment for the Commonwealth in which The effective resolution of the issue is they lacked confi dence. Although the- retarded by loose thinking. Regarding or The package was not developed in the oretically possible for them to remain describing the issue in the vague terms of constitutional way, in which the resources monarchies, circumstance and ridicule whether Australia becomes a republic is of people, parliaments and governments would have forced the dissenting States to an instance of this. The word “republic” are fully utilised in working out the pro- become republics at State level. This would distracts attention from the realities and posal put to referendum. In reality, the have produced a destabilising factor in rouses confl icting responses based on people, parliaments and governments had the federation, unequalled since Western emotion. Use of the word has led many very little involvement in putting the pack- Australia voted in 1933 almost two to one to concentrate on copying the constitu- age together. Instead we sought to resolve to secede from the federation. tional structures of very different overseas the issue in a privatised way. The main The referendum package could not be republics rather than on how best to main- infl uence on the form it took was a private presented so as to catch the imagination tain the strengths of the federal democracy organisation, the Australian Republican and vision of Australians. A referendum that has been evolved to suit Australia’s Movement. The main critic of the pack- to separate the whole federation from the history, tradition and culture. In some, the age was another private organisation, monarchy could be presented as com- word evokes utopian ecstasy which con- Australians for Constitutional Monarchy. pleting the long sweep of evolution from vinces them that if we become a republic The process by which the package was being totally dependent on Britain in 1788 our trade will automatically increase and determined was not one which led people to becoming fi nally totally self-suffi cient. all our problems become easier to solve. to vote free of partisan political impulse. That was not open to the advocates of In others it has the opposite effect. Within The process was designed and operated change in 1999. If the referendum had living memory we have seen republics so as to suit the purposes of the govern- succeeded, most of the federation — all of which produce good democracy, such as ment of the day. John Button has observed the States — would still have been monar- the United States and Ireland. But we that Paul Keating woke up republican sen- chies. The advocates had to content them- have also seen the republics that pro- timent in 1993 and understood its sym- selves with extolling the virtues of novel duced the tyrannies of Hitler, Stalin, Mao bolic power. “He held it in his hand like the fi ttings and fi xtures in the package. Tse Tung, Idi Amin, Pinochet and Robert Welcome Stranger gold nugget. Then he Mugabe. This predisposes people, partic- dropped it in the murky waters of acrimo- WHAT IS THE AIM OF THE COROWA ularly those who or whose families came nious partisan politics.” What he did was PEOPLE’S CONFERENCE 2001? to this country to escape the tyrannies to brand the model as the one endorsed The Conference to be hosted by the of such republics, to regard all republics and promoted by his party. To brand it Corowa Shire Council on 1 and 2 December with repugnance. It is better to use tight that way and use it in extracting political 2001 as the endpiece of the federation and objective words which do not distort advantage from his party’s opponents was year, aims to perform the same function clear thinking and which convey what is to brand it a referendum reject. To negate as the Corowa Conference of 1893. It rec- actually proposed. Since the 1999 ref- the political advantage over the Coalition ommended the process that was followed erendum the issue is increasingly being that Keating and his party were deriving, to restart the stalled move to resolve the described as the “head of state issue” and John Howard undertook to hold a conven- issue whether Australia should federate it is recognised that the real question is tion and put to referendum a model with and to progress it to resolution. whether the Australian federation fi nally clear support, and the 1999 referendum This year’s Conference will confi ne itself separates from the monarchy and attains was the result. to recommending a process for early reso- the constitutional self-suffi ciency of a Resolution of the issue became to lution of the head of state issue. It will not nation state. a large extent politically partisan. This consider whether the Australian federal-

39 tion should separate from the monarchy state; current Australian presidents of the lead was given by the early agreement nor the merits of models to replace the main political parties, leaders of parlia- of Australian presidents of political par- monarchy in that event. It will consider a mentary parties, independent members of ties, Shane Stone (Liberal), Greg Sword process that will empower the people to parliament, presiding offi cers of the par- (Labor) and Michael Macklin (Democrats) decide those questions in an informed, fair liaments and councillors holding offi ce in to attend the Conference. Showing sim- and effective way. the main local government organisation ilar leadership, Greg Barns, Australian It will have the advantages of the les- in Australia. The other members will be Republican Movement Chairman, and sons that come from the experiences of people of all views who have experience David Flint, National Convenor of federation and the 1999 referendum. or knowledge relevant to recommending Australians for Constitutional Monarchy, a process for consideration of a constitu- are attending. So is ACTU President, WHY IS IT A PEOPLE’S CONFERENCE? tional change. They include people hold- Sharan Burrow, and business leader, Stella It is designed to enable the Conference ing the various positions held on the head Axarlis. Former Governors, Michael Jeffrey members to make recommendations in of state issue and those with experience in (WA) and Gordon Samuels (NSW), former exercise of their responsibility to ensure business, unions or other organisations. Chief Justice, Sir Gerard Brennan, and that if Australia separates from the mon- Any Australian wishing to attend may former High Court Justice, Sir Daryl archy, it is done in a way which preserves write to The Mayor, Corowa Shire Council, Dawson, will be there. Seldom, if ever, or improves the strength of our federal at PO Box 77, Corowa NSW 2646, asking to has a Conference been convened which democracy. The infl uence of the people is be placed on the Reserve List, and giving combines in a national task members of essential if the stalled move to resolve the postal and e-mail addresses and phone the public and community leaders of all head of state issue is to be restarted. and fax numbers. Selections for individ- viewpoints. Seldom has there been such a The reality at present is that the main ual invitations are made from that list and political parties share a strong interest in those not invited will receive notifi cation retarding resolution of the issue. They of when and where the advertised invita- all had their fi ngers badly burnt in the tions will appear. That will give them every Every Australian, whatever referendum and naturally do not wish opportunity of registering in that way. their political preference to repeat the experience. Apart from An innovative feature of the and whatever their enduring the strains of permitted disa- Conference, likely to set the pattern for greement between party members, the consideration of constitutional change in position on the head of Prime Minister, who favoured a “no” vote, the electronic age, is that the debate on state issue, shares an carried only 65 per cent of the Liberal the process the Conference should recom- identical interest in Party’s most recent electoral constituency mend is already well under way. It is open that way. The Nationals opposed the pack- to every Australian, whether attending the identifying and following age but a number of senior members broke conference or not. More than six months the best process. It is not rank and supported it, and the party car- before the Conference, the Conference an occasion for partisan ried only 80 per cent of its constituency to website www.corowaconference.com.au a “no” vote. Labor supported a “yes” vote started displaying drafts of the detailed voting on the dictates of a but carried only 57 per cent of its most process which the Conference will con- party, group or faction. recent electoral constituency that way. sider with a view to recommending that or The Coalition is treating the issue as a varied or substituted process. The web- prospect of non-partisan approach to the having disappeared with the referendum. site has papers on the process and invites recommendation of process. Labor’s approach is fi rst a plebiscite on any Australian to e-mail their comments whether we desire an Australian head of or alternative proposals on the process, HOW DID THE CONFERENCE state, then another plebiscite on the pre- to the Mayor, Corowa Shire Council, at ORIGINATE? ferred model and ultimately a referendum [email protected] John Lahey asked me to launch his book, on whether to change the constitution. for display on the website. Faces of Federation: An Illustrated That seems only the start, as it does not History. On reading it I saw how much the appear to encompass resolving the issue CAN THE CONFERENCE WORK IN A experience of federation confi rmed the for the States. If that process eventually NON-PARTISAN WAY? practicality of the process advanced by a resolved the issue, it would take many For a Conference to recommend the best Working Group at the 1998 Constitutional many years. process for resolving the head of state Convention and in my book, Democracy, Fortunately many within all parties see issue, Australians expect the membership to resolve the head of state issue for that the national interest demands an early to include people of all viewpoints, and the whole federation. I said so in my resolution of the issue. that each will vote according to what they launch speech. Sir Zelman Cowen read the About half the Corowa Conference individually think best for our community speech and, in his notable lecture to the will be self selecting. They will be mem- and future generations. Every Australian, St James Ethics Centre in Melbourne on bers of the public who respond to adver- whatever their political preference and 31 October 2000, urged Australia to follow tised invitations to register. Up to a whatever their position on the head of that process, which he saw as combining quarter are automatically invited because state issue, shares an identical interest in “political realism with expert advice”. Jack they have constitutional experience from identifying and following the best process. Hammond QC read the speech and the lec- holding offi ce related to government. It is not an occasion for partisan voting on ture and came up with the idea of Corowa They include current and former Prime the dictates of a party, group or faction. again taking the initiative. He put it to the Ministers, Premiers and Leaders of the The response from all community sec- Mayor, Cr Gary Poidevin, who responded Opposition; former operative heads of tors has been magnifi cent. A crucial “Sure it can be done”. Jack Hammond and

40 I presented a paper and spoke at Corowa. there would be a plebiscite in which the liament requested it under the Australia Two days later, on 19 December 2000, people would express their preference Acts, the whole federation would sepa- the Corowa Shire Council decided to host between the models supported by either rate from the monarchy at the same time, the Conference. Sir Zelman Cowen is its the majority or a minority in the report with each unit converting to the model it patron and will give the opening address. of the federal parliamentary committee. chose in the plebiscite. Otherwise there The people of each unit of the federation, would be no change. Either way the issue WHAT PROCESS WILL THE the Commonwealth and each State and would be resolved, at least for this stage of CONFERENCE CONSIDER? Territory, would choose the model they history. The referendum could be held in The Conference will consider recommend- would prefer for their unit if it separated about 2005. ing the process endorsed by Sir Zelman from the monarchy. Each Australian voter The potential of Australia Act powers Cowen and set out in some detail on its would mark a ballot paper showing their for resolving the issue for the whole fed- website. Although its recommendations preference of model for the Common- eration was perceived at an early stage could be for that or a varied or substi- wealth and another showing their prefer- by South Australian Solicitor-General, tuted process, it is useful to outline it as ence for their State or Territory. There is Brad Selway QC. That appears from the an example of how an early resolution of no constitutional necessity for each unit South Australian Constitutional Advisory the head of state issue could be achieved to have the same type of model, although Council report, South Australia and for the whole federation. Proposals for an Australian Republic, The plan to be considered proposes (Peter Howell, Chairman), Adelaide, 1996. that the Conference appoint a high level My book, Democracy, pp. 255–63, out- and non-partisan drafting committee to If supported by the overall lines constitutional mechanisms relying on prepare legislation to establish all-party majority of voters and a those new powers. committees within each of the parlia- majority in every state, and Every successful referendum after 1910 ments. First, the State and Territory com- has been carried with the support of an mittees would each investigate, listen to if every state parliament overall majority of voters and a majority their community and report on two ques- requested it under the in every State. The proposed process does tions: (1) Which head of state model would Australia Acts, the whole not require a level of support for consti- best preserve or improve our democracy tutional change that is signifi cantly higher if it replaced the monarchy? (2) Which federation would separate than that usually attained. If a majority method of deciding the head of state issue from the monarchy at the of a State’s voters vote for the change, would place least strain upon our federa- same time, with each unit in political reality, the State parliament tion? Then the all-party committee in the would have no option but to make the nec- federal Parliament, with a representative converting to the model essary request. from each State and Territory committee, it chose in the plebiscite. ARE THERE VALID OBJECTIONS TO would give a report on those questions Otherwise there would be and appended to it the State and Territory THE PROPOSED PROCESS? reports. That report would go to the pro- no change. It is said that December 2001 is far too posed coordinating authority, the Council early to start making decisions on rec- of Australian Governments (CoAG) and that is the most likely outcome. The tra- ommended process and much more time be widely publicised on the internet and ditions, culture and operating systems of should be left for discussions before that elsewhere. government within each unit are essen- is done. Whatever satisfactions come from All-party parliamentary committees tially the same as within each other unit, sessions of endless talk that lead only have a good record in Australia for their and it is diffi cult to see why a model con- to more talk and never to decisions or reports on questions where the political sidered best for one unit would not also be action, the need for Australians to move parties have no confl icts of interest. Much considered best for the others. The plebi- from theory and face up to taking practi- of our best legislation comes from them. scite could be held with the federal elec- cal steps must outweigh the temptations The proposed process would start with tion to be held not later than 2004. of serial postponement. Discussions have investigation and reports by committees Finally, all Australian electors would gone on since 1993, and if the propound- within the parliament closest to the people vote in the one referendum on the one ers of an alternative process cannot put of a State or Territory. This will come question of whether the whole federation it on the Conference website in as much immediately to people’s attention and — all its units — separate from the monar- detail as the one displayed since last May, begin to provide the information they chy. That method would enable the change and thus expose it to public scrutiny well need to make their decisions. The capac- to be made with political and constitu- before the Conference, it must have little ity of the process to provide the people tional legitimacy and without strain on the substance. with information and expert advice from federation. It is not only the deepening constitu- a variety of sources is one of its great No unit would separate from the monar- tional running sore mentioned earlier, that strengths. chy and substitute a self-suffi cient model should impart a sense of some urgency. It is proposed that on the second ques- for it, unless the majority of the unit’s We now have an opportunity we have not tion, the parliamentary committees con- voters had voted for that. All powers of had for years and which may not last for sider the following method of deciding the constitutional change would be relied on, long. At present no political party is iden- issue without strain on the federation. particularly the new powers created by tifying itself with a particular model and With the community informed by the the Australia Acts in 1986. If supported by promoting it. The fact that they are lick- work and reports of the parliamentary the overall majority of voters and a major- ing their referendum wounds is a great committees and media discussion of it, ity in every State, and if every State par- plus. This atypical situation gives the best

41 chance ever of resolving the issue free of held about thirteen years before the ess starting with parliamentary commit- partisan political impulses. We should not modern party system asserted itself in tees or an elected convention, the fi rst squander it through inertia. Australia. Today, if members of parlia- step should be a plebiscite on whether we Then it is said that instead of the fi rst ment stood for election to a constitu- desire an Australian head of state. step of the recommended process being tional convention on the head of state That has two obvious weaknesses. First, inquiries and reports by parliamentary issue, the parties would seek political however ready some 90 per cent of the committees, the process should go fi rst product differentiation by sponsoring dif- people are to reveal to an opinion poll their to a constitutional convention which is ferent models and processes. Political par- desire for an Australian head of state, many all or mainly elected. The precedent of tisanship would mar the second attempt of them would be reluctant to express the 1897–98 Constitutional Convention is to resolve the issue. As the election for the themselves in that way in a public pleb- relied on. That seems to overlook the real- 1998 Constitutional Convention showed, if iscite. Constitutional caution would pre- ities. Although politicians were about as parliamentarians were barred from stand- dispose against giving what many would unpopular then as they are today, voters ing, electors would tend to elect people regard as a blank cheque. They would knew who best understands how the con- they had heard of. Usually this would elect regard a “yes” vote as politically com- stitutional system actually works, and all celebrities who have little understanding mitting Australia to dispense with the but one member of the Convention were of the working of the constitutional system monarchy and would desire that no such parliamentarians. The Convention was, in rather than those who had that under- commitment be given until they were sat- effect, a large committee of parliamentar- standing but lacked the public recognition isfi ed that the substituted system would ians. of celebrities. be safe for the democracy and federation The elections for that Convention were It is also said that instead of the proc- of future generations.

Celebrating Federation and Networking Constitutional Law

The Australian Association of Constitutional Law is to hold a major national conference in Perth on 21, 22 and 23 September 2001. The conference is entitled “A Celebration of Federation — The Australian Constitution in Retrospect and Prospect”. The fi rst event of the conference, following a Vice-Regal reception on Friday, 21 September, will be a public oration to be delivered by Sir Anthony Mason, former Chief Justice of the High Court of Australia and the inaugural President of the Association.

Justice Robert French

HE conference will be offi cially Williams, John White and Leslie Zines. ence events. Conference enquiries may opened by the Federal Attorney- Prominent counsel speaking at the con- be directed to the Constitutional Centre TGeneral, the Honourable Daryl ference are the Commonwealth Solicitor- on 08 9222 6922. The registration fee is Williams AM QC MP, on Saturday, 22 General David Bennett QC, the South $250 for members and $275 for non-men- September, and has attracted a range of Australia Solicitor-General Brad Selway bers. high calibre speakers and commentators. QC, David Jackson QC of the Sydney This conference is the fi rst major They will cover topics ranging from the Bar, and Robert Orr QC of the Attorney- national conference organised by the historical context of the formation of the General’s Department. Association, which is a comparatively new Constitution to its interaction with con- On Saturday evening, 22 September, body. It is an independent, not-for-profi t temporary issues such as globalisation, there will be a conference dinner at organisation whose objectives include the international human rights norms and Parliament House in Perth which will development and promotion of the dis- science and technology. Prospects for its be addressed by the Premier of Western cipline of constitutional law in Australia. adaptation and change and comparisons Australia, the Honourable Dr Geoff Gallop It seeks to support teaching, research with other constitutions internationally MP. and the practice of constitutional law, will also be discussed. The conference is being staged by the and to provide a forum for the exchange Speakers and commentators include Australian Association of Constitutional of knowledge and information between Professors Geoffrey Bolton, Larissa Law in conjunction with the Constitut- practitioners, academics and other inter- Behrendt, Greg Craven, Geoffrey Lindell, ional Centre of Western Australia, which ested persons. Those who are eligible to Cheryl Saunders, Jeremy Weber, George provides the venue for most of the confer- be members of the Association include

42 Second, even if the result of such a desire an Australian head of state will be of political parties to do so. If it does, it plebiscite showed a majority desire to sep- put strongly. Other processes with other will not only have provided a signifi cant arate from the monarchy, we would have initial steps are likely to join the contest. endpiece for the year of celebrating fed- placed ourselves in the position where our The Conference decision on that contest eration. Corowa will again have served its declaration of no confi dence in a central will be very important. nation well. feature of our constitution would be likely to resonate for years. It would continue WHAT EFFECT COULD THE SOURCES to restate our position until we did the CONFERENCE HAVE? The information relied on in this article hard stuff necessary to resolve the issue As with the fi rst Corowa Conference, the is to be found in my papers on the through a referendum vote with the essen- effect of the recommendations of this www.corowaconference.com.au or www. tial qualities mentioned earlier. We would year’s Corowa Conference will depend on chilli.net.au/~mcgarvie websites or in my be most unwise to place ourselves in that the persuasive authority they carry with book, Democracy: Choosing Australia’s constitutional no-man’s land for many vital people, parliaments and governments. The republic, Melbourne University Press, years. Conference has the potential to initiate 1999. That book is also entirely on No doubt, in the pre-Conference debate an orderly exercise of the people power the www.mup.unimelb.edu/democracy/ upon the Conference website and at the which underlies our democracy. It could index.html website. Conference itself, the cases for and against bring the weight of public opinion upon the recommended process starting with parliaments and governments to take the parliamentary committees, an elected con- action necessary for early resolution of the vention or a plebiscite on whether we head of state issue, despite the hesitancy

academics in constitutional law and greater sensitivity to and awareness of related disciplines, judges, legal practi- constitutional issues will be of benefi t to tioners and government legal offi cers. practitioners across a variety of fi elds. The Chief Justice of the High Court, It intersects with politics, history and the Honourable Murray Gleeson, is political science in a way that makes patron of the Association. Its inaugural it a fascinating intellectual as well as President was Sir Anthony Mason. The practical discipline. All practitioners are Association presently has 167 members. encouraged to join the Association and The Governing Council comprises: to help in the development of its activi- President: ties and profi le in each of the States and Justice Robert French, Federal Territories of Australia. Court of Australia. In addition to the national conference Vice-President: planned for September, the Association Professor Cheryl Saunders, Centre proposes to conduct State-based col- for Comparative Constitutional loquia on the Australia Law Reform Studies, University of Melbourne. Commission’s Report in relation to alterations to the Judiciary Act. Other Treasurer: small informal seminars will be organ- Mr Brian Opeskin, Commissioner, ised through local membership. The Australian Law Reform Commission. Association also acts as a network Secretary: for information about visiting scholars, Professor Geoffrey Lindell, Faculty whether from overseas or visiting of Law, University of Melbourne. from one State to another in Australia, Council Members: so that all members can have the max- David Jackson QC, Barrister, Sydney. imum opportunity for participating in Dr Melissa Perry, Barrister, Adelaide. ongoing discourse about our fundamen- Dr John Williams, Senior Lecturer, tal law. Law School, University of Adelaide. Those who are interested in joining Professor George Winterton, Anthony the Association should direct enquiries Mason Professor, Faculty of Law, to: Stacey Watts: Telephone: 03 8344 University of Sydney. 0801; E-mail: [email protected] Brad Selway QC S-G, Solicitor-General Judy Sulcs: Telephone: 08 9268 7164; for South Australia. E-mail: [email protected]

Constitutional law impacts on many areas of practice in Australia and a

43 News and Views ASIC Chairman Reviews HIH Collapse in Corporate Governance Address

More than 40 members of the combined Commercial Bar and Corporate Lawyers Associations attended a Seminar on 16 May, 2001 to hear David Knott, Chairman of the Australian Securities and Investment Commission, address them on issues arising from the collapse of the HIH Insurance Group.

under the law, whether they be criminal, civil or administrative in nature; and that we will do this with a sense of priority commensurate with the enormity of this collapse. As you would know, we embarked upon this task in February. On 27 February this year, ASIC commenced an investigation of HIH Insurance and sought the suspen- sion of trading in its shares because we believed that the market was inadequately informed about the company’s fi nancial position. We made it clear to HIH that we would not allow them to recommence trading until their fi nancial position was made known to the market. HIH went into provisional liquidation on 15 March with- out seeking to re-list. Since that time, we have initiated an investigation strategy that clearly dif- ferentiates between prospective criminal and civil avenues of enquiry. We are well advanced in assembling a specialist team of investigators, drawing on both internal resources and external experts. These include specialist actuarial, audit- David Knott ing, claims management and insolvency skills. While the size and composition of the HE collapse of HIH is now clearly brought to account for offences under the investigating team will remain confi den- identifi ed as one of the largest and Corporations Law. tial, it promises to be the biggest ever Tmost signifi cant fi nancial failures in On behalf of the Commission I want assembled by ASIC. Australia’s history. It is understandable to assure the Australian public that We have also retained a team of senior in such circumstances that the public our investigation will be conducted with- and junior counsel in Australia, and are demand for answers and accountability is out regard to any vested interest; that in the process of retaining additional vocal and pressing. we will devote whatever fi nancial and counsel in the UK and USA on issues The Australian Securities and Invest- investigative resources are required to concerning the provisional liquidation. ments Commission now has the task of complete this task within the shortest We have retained Ferrier Hodgson to investigating this collapse to determine possible time; that we will explore provide us with specialist insolvency whether any person or persons should be all remedial avenues available to us advice.

44 Norman O’Bryan SC, David Denton and David Knott. We are consulting with the Common- tice. It is imperative that the work of In the meantime, it is critical that ASIC’s wealth Director of Public Prosecutions ASIC and the DPP be carried out with full investigations be conducted in confi dence to ensure maximum coordination of our regard to the requirements of law and the and with proper regard to the rights of resources. accepted standards of our judicial system. third parties to due process and natural I also want to acknowledge the strong The public desire for quick answers must justice. For these reasons ASIC will not support we have received from the be balanced against potential prejudice to comment after today on the progress of Commonwealth Government which has the ultimate accountability of responsible our investigations, other than to comment approved a special line of funding to help parties, which must rank as our foremost on signifi cant developments in the public underwrite this investigation. objective. In matters of such weight, there interest from time to time. Since this investigation commenced, are simply no shortcuts and this will be a we have begun the process of seizing and long and complex investigation. At the conclusion of this speech Mr reviewing relevant documents, and have We have noted recent calls for a Royal Knott addressed the subject matter of the carried out preliminary examinations of Commission or Judicial Enquiry. It is not advised seminar and took questions from some persons considered likely to assist appropriate for ASIC to express a view those in attendance on HIH and Dot Coms our enquiries. For reasons of security I will of such possibilities. However, if any such and gave candid and full answers to each not elaborate further on our planning or enquiry is commissioned it will be impor- of the questions. So much so that all in intentions. tant to take account of the work of ASIC attendance took away from the evening an However, I do need to counsel patience and the DPP so that the legal accountabil- understanding that corporate regulation and to emphasise the risks that calls for ity for any unlawful conduct is not com- under David Knott as Chairman of ASIC early accountability carry for ultimate jus- promised or delayed. was indeed in good hands.

Angela Edwards, Mahlab Recruitment; Monika Maedler, Phillip Morris; Angela Albert Monichino; Madelaine Denton, Anthony Loschiavo, Isis Clelland, Mahlab Recruitment; Gina Focus Capital Group; and Richard Communications; and Giles Hunt, Faba, CSIRO. Short. Chubb Insurance.

45 News and Views After the Change Over Paul Elliott QC interviewed Mr Justice Peter Nguyen of the High Court of Hong Kong on his recent visit to Melbourne. His comments on the judicial system, language, appeals, the future of Australian lawyers and Australian wines in Hong Kong are recorded below.

Elliott: Can you briefl y explain how that I sit in. In the old days it would the courts work in Hong Kong and, have been called the High Court. now that Hong Kong is part of China, Elliott: You said there was another how the courts and appeals operate court of appeal. What is the Court of between China and Hong Kong? Final Appeal how does that fi t into Nguyen J: The judicial system, pur- the judiciary? suant to the joint declaration between Nguyen J: Our Court of Final Appeal the United Kingdom and Peoples’ is the replacement for the Privy Republic of China has not changed at Council of London because before the all since the hand over. The courts are hand over we used to go to the Privy conducted in exactly the same way Council for our fi nal appeals. We’ve as they were before the hand over. stopped doing that since the hand But as a matter of practice, more over, and the Court of Final Appeal is Cantonese is used in the courts. In the our replacement. Magistrates Court, where the majority Elliott: So all appeals terminate with of our Magistrates are now Cantonese the Court of Final Appeal in Hong speaking local people, about 80 per Kong? cent of the cases are conducted Nguyen J: With each appeal there in Cantonese. In the District Court, will be four Hong Kong permanent which is the court one level above judges, the Chief Justice and three the Magistrates Court, there is an permanent Hong Kong judges, but even mix of non-Chinese and Chinese there is always a fi fth Judge who is judges, about 50 per cent of the cases invited by the Chief Justice to sit on are conducted in Cantonese. In the High a particular appeal and who is selected Court where I sit with a jury on criminal in Cantonese, and anything he says in from a panel of non-permanent judges. I trials, only about 10 per cent of the cases Cantonese is translated into English. forget now how many people there are are conducted in Cantonese. The rest of Elliott: Do you speak Cantonese? in the list of non-permanent judges, but the criminal cases are still conducted in Nguyen J: I do. And I’ve conducted at any one time we would have two from English. In the Court of Appeal, if an Magisterial appeals in Cantonese where England, two from New Zealand and two appeal is from a trial held in Cantonese the original trial before the Magistrate was from Australia. The present judges from then the appeal will be heard in Cantonese in Cantonese. Consequently the transcript Australia who are non-permanent judges by three Cantonese-speaking judges of I get from the trial is in Chinese so I have from the Court of Final Appeal are Sir the Court of Appeal. In the Court of fi nal to read that in Chinese and I conduct the Anthony Mason and Sir Gerard Brennan. appeal the majority of the cases are still proceedings in Cantonese and write my Elliott: Since the amalgamation in 1997, conducted in English except where the judgment in Chinese. is there any appeal or any way of going to applicant is acting in person, and if he’s Elliott: You sit in the High Court. Is that China or China coming in over the heads Cantonese speaking, then as far as possi- the equivalent to the Supreme Court here? of the courts in Hong Kong? ble the Chief Justice will convene a panel The Supreme Court of Victoria used to Nguyen J: There is no co-operation as of Cantonese-speaking judges and the pro- have an appeal division and a trial division. such between the courts of Hong Kong ceedings would be held in Cantonese. Now we have a separate Court of Appeal. and the courts in China simply because But otherwise everything is done in How does it work in Hong Kong? they have a different legal system from English. Nguyen J: The basic law stipulates us and the joint declaration doesn’t pro- Elliott: Does this mean that the serious that the High Court of the Special vide for such co-operation or collabora- criminals are English-speaking people? Administrative region of Hong Kong should tion. The only provision in the basic law Nguyen J: No, there is full interpretation be the name for what used to be the which allows for going to Beijing is that the of the proceedings as there was before Supreme Court, and our High Court now Court of Final Appeal, if it is so minded, the hand over so that anything said in comprises the Court of Appeal and the can refer particular provision of the basic English is translated back to the accused Court of First Instance, which is the Court law to the preparatory committee of the

46 National Peoples’ Congress for interpre- and they are still working in Hong Kong. Elliott: You actually come from a tation. So far that hasn’t happened yet, So the answer to your question is yes, Vietnamese background. Has that caused but on one occasion in 1999 the Secretary there are still Australian lawyers working any problems? for Administrative Justice, acting for as judges and prosecutors in Hong Kong. Nguyen J: I’m actually Vietnamese– the government of the Special region But these are people who were recruited Chinese and our family had been in of Hong Kong, referred particular pro- before the hand over. Vietnam for many generations. But I was vision in the basic law to the NPC for Elliott: And their future is not under brought up in Hong Kong so for all intents interpretation, which the NPC did inter- threat? and purposes I am a Hong Kong person. pret. The result of that was that the Nguyen J: No, their future is not under Elliott: For those people visiting Hong interpretation of the NPC in effect reversed threat at all. They will be allowed to stay Kong, what do you think is the best the whole of the judgment of the Court of until their retirement days. Insofar as pro- Chinese restaurant? Final Appeal. motional prospects are concerned, that Nguyen J: My favourite restaurant for Elliott: And in what circumstances can hasn’t been affected either because in the Cantonese food is the Sun Tong Lok Shark an individual appeal? Department of Justice now, of the fi ve law Fin restaurant in Causeway Bay which, as Nguyen J: It has to be referred either offi cers working under the Secretary for the name implies, is a restaurant which by the government or by the Court of Justice, only one is local Chinese and the specialises in shark fi n. I would highly rec- Final Appeal itself. There is no provision other four are still expat lawyers. ommend that restaurant to anyone visit- in the basic law for an individual to ask the Elliott: Do you think that English will be ing Hong Kong, not only for the shark fi n National Peoples’ Congress to interpret a eventually phased out as a language or do but for all its other Cantonese dishes particular provision. they still teach English in the schools and Elliott: Those of us who have visited Hong Elliott: Have you found that there are promote it? Kong have found that Australian wine is lawyers coming in from China to learn Nguyen J: English will continue to be very scarce and hasn’t broken the market, about the legal system in Hong Kong and used, I think, in Hong Kong because it is an and indeed a bottle of Jacobs Creek last vice versa, and do you think that there international language and Hong Kong, if time I was there was about $60 or $70 a will be a trend that those people will be it wishes to remain an international city, bottle. It’s probably gone up since then. appointed to the Bench from outside Hong will have to continue to use English. Why is it that Australian wines are not Kong? Insofar as the law is concerned, I think widely accepted? Nguyen J: We’ve had lawyers from the English will continue to be used for a Nguyen J: Australian wines have now PRC come into Hong Kong to work, either long, long time because all our precedents become very popular in Hong Kong as para-legals in solicitors’ fi rms or as in the common law are judgments which because a lot of people found perhaps para-legals in the Department of Justice. were written in English, and even if one with some justifi cation that the French But we haven’t had any lawyers from tries to translate all the thousands of judg- wines were costing far too much. And the PRC come into the judiciary. We’ve ments the meaning might be lost after the Australian wines are now accepted as a had Hong Kong lawyers being admitted translations. wine very much worth drinking. Australian to practice as lawyers in the PRC and Elliott: Judge Duckett on our County wines are getting some competition now recently they have opened the doors Court was the former Deputy Director of from Chilean and South African wines, but to Hong Kong lawyers to enable them Public Prosecutions. Did you work with speaking for myself I would always have a to not only practice but to start fi rms him in Hong Kong? bottle from Australia. within China, so some Hong Kong lawyers Nguyen J: His Honour Judge Duckett was Elliott: So if you went to a hotel or a res- have done that. Insofar as PRC lawyers a Deputy Director of Public Prosecutions taurant there would be Australian wine on coming to Hong Kong is concerned, there in Hong Kong. He worked with me after the menu. has only been a trickle of lawyers coming I was appointed the DPP in July 1994 Nguyen J: Oh yes, absolutely. Most of to Hong Kong to try and learn about our but it wasn’t for a long while because the popular vintages from Australia would system. shortly, I believe some time in l995, he be available in Hong Kong and, as I said Elliott: There was a tradition in Australia, was appointed to the County Court Bench earlier, the price for an Australian bottle in Melbourne, of people going and prose- here in Victoria. He was greatly admired would be far less than a bottle from France cuting. Is this still going on and are there in the years when he worked in Hong and also because of the quality a lot any Australian barristers left practising in Kong, both as prosecutor and also in his of Hong Kong people are now drinking Hong Kong? days as acting Solicitor-General, and he Australian wines. Nguyen J: I’m afraid the practice of was respected by both the Bench and the Elliott: I understand that you had lunch recruiting from overseas has stopped for Bar. with Mr Justice Vincent in Hong Kong and both the Department of Justice and for Elliott: Were you appointed Director of discussed some new programs and sem- the judiciary. Not so much because of the Public Prosecutions by Governor Patten? inars at Victorian University of which of hand over but probably because of the Nguyen J: Yes, I was one of the two course he is the Chancellor. Can you give hand over knowledge of Chinese has now local law offi cers who were appointed by us some details about what the plans are? become a requirement for people coming the Attorney-General in the days when Nguyen J: Mr Justice Vincent was to Hong Kong to work. Consequently since Governor Patten was the Governor of Hong appointed Chancellor of Victoria University the hand over we haven’t recruited anyone Kong. Governor Patten was very keen that in January 2001 and he and the Vice from overseas to either the Department at least some of the law offi cers should Chancellor were in Hong Kong in March of Justice or the judiciary but the lawyers be local people, and it was as a result of to attend a series of graduation ceremo- and the judges who were judges and that that I think I and the then Solicitor- nies held in Hong Kong by the Victoria lawyers who worked in Hong Kong before General, who was also a local barrister, University. The Victoria University will be hand over have not been asked to leave were appointed to be law offi cers. starting a School of Law and in conjunc-

47 tion with the University of Cambridge will come attending courses and lectures to are appointed from the Bar. In Hong Kong be conducting a course on judicial stud- be held as part of judicial studies here certainly these days, there is wide-spread ies. in Melbourne by the Victorian University. practice of appointing judges from the pri- The course for judicial studies will be We in Hong Kong do have a judicial stud- vate Bar and the idea is that judges should conducted at the Victoria University’s new ies board, but what we do in Hong Kong be people who are experienced at the Bar premises, which they originally acquired is mainly to have seminars on Saturday and should be able to utilise their knowl- from the State Government, which are mornings or invite visiting eminent judges edge of the law as a result of their years in the old record offi ce in Queen Street, or lawyers to give us talks. But we haven’t of practice at the Bar to hopefully become Melbourne. These premises are being got a course on continuing judicial edu- good judges. refurbished and will be ready some time cation such as Victoria University has in Elliott: How many female judges are next year. The course on judicial educa- mind. there in Hong Kong? tion will be conducted by the University of Elliott: In the present in Australia there Nguyen J: We have four lady judges out Cambridge in conjunction with the Victoria has been some criticism of the judiciary of of 25. In the District Court the proportion University. gender bias. Has this subject been raised is about the same. They will be holding their fi rst seminar in Hong Kong because some people in our Elliott: And are there any females in the to promote that course in September present day society think that judges must Court of Appeal? 2001. be trained in this subject? Nguyen J: I believe there is one. Elliott: As a judge, what are your views Nguyen J: I don’t think in our common Elliott: Thankyou very much Judge for about going to judge school to learn how law system there has always been the your time, and I hope to see you when you to be a judge? system of training judges to be judges, return on one of your visits. Nguyen J: I haven’t been a judge for too and the system that we’ve known in the long, so speaking personally I would wel- common law world is always that judges

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48 News and Views Actual Hypothetical David Bennett QC took a walk on Thursday 7 June 2001 across William Street to catch the vibes in an unusual meeting of minds at the Sixth Court of the Supreme Court. This is his report.

Bar News Editor: (on the telephone) There is a case on before Hedigan with Geoffrey Robertson in it. You know, the silk in UK who does those “hypotheticals”. Can you write something on it? Bar News reporter: This is the one against Jeff Sher? BN Editor: Sher is for Joe Gutnick. Rob- ertson is for Dow Jones. The defendant Dow Jones is trying to get Gutnick’s defa- mation claim against it transferred to New Jersey. BN reporter thinks: Only last week, they were only trying to remove Gut- nick as President of Melbourne Football Club. This week, somebody is actually trying to go the whole hog and give him a “New Jersey”. BN reporter: (Looking at pile of paper and hungry PC screen waiting to be fed). Geoffrey Robertson QC Jeffrey Sher QC “I haven’t got time.” BN Editor: It’s just after three. Just go much excitement in its divorce emana- of absorption, just as on take-off. Every over for an hour until stumps and then tell tion. The high peak would have been the seat was full. Only the absence of seat- us what you see? faintest frisson when a well-known peti- belts and the spectators standing at the BN reporter thinks: (Reaching for tioner lodged a Discretion Statement con- back contradicted the airline image. Court notebook) I will be leaving this fessing to not having played an absolutely There was another evocative symbol job at the end of the month. This will be straight bat. that jet age law was in town. By the left their last request. I’ll give it a go. Today it was different. On the landing, wall, on the Robertson team side, there BN Editor: I believe Robertson called posted outside the court to direct the traf- was an enormous, very shiny, smoothly Hedigan, “Your Lordship”, and Hedigan fi c, was not one tipstaff, but two. They rounded aluminium container. It was like said, “Is that a promotion?”. were surprisingly helpful to BN reporter a spacecraft with a handle. The four BN reporter: That story has been done given that there were at least fi ve or six big rollers at its base easily could have to death. It was around the Bar in an hour. people also gathered around the court- served as launch pads. Barristers com- BN Editor: It’s in the Sixth Court; that room door. monly have papers in trundle bags, usu- funny court upstairs. It’s packed — stand- Opening the green baize door, eager ally covered in modest black fabric, but, ing room only. to see live The Man from Hypothetical, although now used for papers, the space- BN reporter: Who? Barristers? the international barrister and television craft could have begun life containing BN Editor: Reporters mostly. genius who Dow Jones fl ew across the circus equipment. world to take Joe Gutnick out — in every At the front of the passengers in their Across at the Supreme Court, Bar News sense of the phrase. aircraft seats was, in effect, their pilot. reporter makes his way up the 1950s ter- The striking fi rst impression was of a Leaning fi rmly on the bar table lectern, razzo stairs to the 1950s Sixth Court. truly 747 look about the courtroom. The creating a high-hunched back topped by Bar News reporter remembers the green, high-backed, material-covered indi- thick grey hair, was Geoffrey Robertson 1960s pre-Family Law Act days when this vidual seats (replacing the original elegant QC. He was well over on Sher’s side of the was the Divorce Court, run with an iron 1950s blonde wood benches) looked for table, in fact, right beside him. Robertson’s hand, by Barry J. (also a “Jack”, like all the world like rows of seats across a familiar and distinctive basso tones were Hedigan J). Boeing jumbo. Their occupants were sit- caressing to the ear as he addressed The Sixth Court did not generate ting, facing forward, with ranging degrees Hedigan J.

49 A quick look at the judge to get a sense tive”? It seemed that this case may be a The Court was closed. The judge left. of how he was taking things. sort of juridical snake oil brought to town Robertson seemed tired (no surprise) and No special occasion here — that was to be fl ogged for its general good effects? made communication arrangements with obvious. Hedigan J’s usual unimpression- Opposite Sher at the bar table sat Sher to try to negotiate the gap. able manner was unchanged. He sat in the Hugh Northam, the Clayton Utz solicitor BN reporter watched, intrigued, as same seat as had Barry J and obviously for Gutnick. Almost throughout, Northam Robertson’s junior taxied the spacecraft had the same control over proceedings. was, silently and unshakeably, reading. over to the bar table to be re-fuelled. The baton had passed. Jack Barry. Jack For all the impact that Robertson’s sub- BN reporter left to telephone the Bar Hedigan . . . the memory of the former missions were visibly making on him, News Editor’s desk. somewhat dimmed these days. A longer Northam could have been reading in a BN Editor: Did you get in okay? look at Robertson QC. There still was not garden summer house as, among nearby BN reporter: There were people stand- much visible to describe except his back. fl owers, a bee hummed. ing around the walls. Fitted on his leaning frame was a black Behind Sher sat Joe Gutnick. The fi rst BN Editor: Did you get anything? lightweight suit jacket that may have been, thing to notice was that, for these pro- BN reporter: Not much to see, really. and certainly shrieked, “smooth silk”. In ceedings, Gutnick had changed his yash- BN Editor: [Silence] West End style, its deep vents reached mak scull cap. For last week’s case about BN reporter: I’ll email you something in half way up the leanish back. A half moon the control of Melbourne Football Club, the morning. outline of a singlet top up near the suit’s Gutnick famously wore a yashmak striped collar was the price of padding up to allow in the Melbourne’s red and blue colours. summer fabric to meet Melbourne’s winter. Today, the cap was black velvet. Curiously, the left shoulder of the jacket Beside Gutnick, and virtually on top of was corded, crisp and fi rm, while the the opposing Clayton Utz fi les, languor- right shoulder was battered and uneven, ously lay Robertson’s black overcoat. It its padding sagging down the arm. This was open to display a drossy gold lining Lawyer in a Accident looked like the work of too many heavy that made a diagonal gold stripe against very successful lawyer parked his shoulder bags on and off aircraft. the black outer. A brand-new Lexus in front of his offi ce, Robertson’s junior sat well away on Not the Tigers! Robertson couldn’t be ready to show it off to his colleagues. As Robertson’s left. The visual contrast was trailing his coat in this way to seduce he got out, a truck passed too close and remarkable. The junior’s shining dark hair Gutnick into a New Jersey with them! completely tore off the door on the driv- was tied-back and reached as far down his Stretched out along the back of the er’s side. The lawyer immediately grabbed back as Robertson’s vents reached up his. seat of his companion beside him was his cell phone, dialled 000, and within min- The light glinted on a tortoiseshell hair Gutnick’s arm. It emerged from his suit, utes a policeman pulled up. clasp at the back of the junior’s head, and hairy and shirt-free, and displayed, on a Before the offi cer had a chance to ask brought out the mottling on his tortoise- gold bracelet, an expensively thin gold any questions, the lawyer started scream- shell spectacle frames. The junior’s suit watch. Gutnick checked around the court- ing hysterically. His Lexus, which he had stretched tight, very tight, across his bulky room occasionally in a friendly, uncon- just picked up the day before, was now frame. No West End fi t or shape there. cerned way. He seemed quite untouched completely ruined and would never be the Sher sat quietly, hardly moving as by the grave things being previewed for same, no matter what the body shop did Robertson intoned beside him. him by Robertson QC. Never did Gutnick to it. BN reporter was reminded of his lose the mien of a host who was giving When the lawyer fi nally wound down memory of Sher. Sher was sitting at a tiny (and paying for) a party and happy to see from his ranting and raving, the offi cer desk beside the fi replace in Voumard QCs that so many guests had come along to shook his head in disgust and disbelief. Selbourne Chambers room. Then, Sher enjoy it with him. “I can’t believe how materialistic you law- looked like a young blackbird ready to The Court day was at an end. Robertson yers are,” he said. “You are so focused snatch a worm. Today, he looked as though QC’s submissions continued. Hedigan J on your possessions that you didn’t notice he had eaten the worm, had developed a remarked on the time. There was a discus- anything else.” taste and was ready for more. sion about fi nishing. Robertson, it seemed, “How can you say such a thing?” asked What was it that Robertson kept had made it known that he had to jet out at the lawyer. saying? the earliest. The judge enquired whether The cop replied “Don’t you know that Robertson was dropping the name of a there was agreement as to admissions that your right arm is missing from the elbow case that he said was “dispositive”. It was could shorten proceedings. Robertson said down? It must have been torn off when the “dispositive” of this, “dispositive” of that that agreement was “close”. truck hit you.” . . . “dispositive” of everything, it seemed. “Not close enough!” Sher QC inter- “My God!” screamed the lawyer. Was it “dispositive”, or was it “supposi- jected. He was hungry for worms. “Where’s my Rolex?”

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50 News and Views

Jim Shaw with Mr G. Masilamani in the library of the Madras Bar Association. Indian Summer Holiday to Chennai Courts and Bar

HENNAI, formerly known as Association, and the inferior Court of Civil train ticket. Despite such economies, the Madras, is the capital of the State Claims. newspapers are fi lled daily with articles Cof Tamil Nadu and the fourth larg- Arriving unannounced at the Madras and letters to the editor bemoaning the est city in India. Home of the world’s Bar Association, I am welcomed by a def- enormous backlog of cases. largest fi lm production industry, scene of erential librarian and introduced to Mr G. All documents are typed on antedilu- the second only tied test match, world Masilamani, Senior Counsel. In a library vian typewriters. The absence of word headquarters of the Theosophical Society crammed with counsel working feverishly processors and a reliance on carbon paper and one-time residence of the apostle during lunch hour, he explained to me var- Doubting Thomas, the city is also the ious aspects of the Indian legal system. site of what is believed to be the second English cases are no longer cited, as largest functioning judicial building on Indian common law is now so “volumi- earth. nous”. He notes proudly that this is not The Madras High Court, the superior so in Australia. The Supreme Court of court of record in the State, was built in India (the equivalent of the High Court of 1892 of red brick in the Indo-Saracenic Australia) hears and decides 35,000 cases style. Set in expansive, shady grounds the each year! Juries were abolished in 1976. complex contains 30 courtrooms of the Cross-examination generally lasts about High Court, barristers’ chambers, the law 15 minutes and in a criminal trial, from school of the University of Madras, the committal to sentence, “a man’s whole fate offi ces and libraries of the rival Madras Bar is decided in one week”. This in a land Barristers’ chambers, Madras High Association and High Court Advocates’ where it can take an hour to purchase a Court.

51 is hearing “petitions”, something akin to applications or Practice Court business in Victoria. Counsel are crowded around a semi-circular bar table upon which sit piles of bundled documents several feet in height. Proceedings are in Tamil, with the occa- sional smattering of English. While matters appear to be conducted in an orderly fash- ion, counsel are not afraid to shout men- Barristers at the Madras High Court. Typists outside barristers’ chambers, acingly at the tiny, withered judge. The Madras High Court. language barrier prevents me from ascer- taining whether this bellowing constitutes in place of photocopiers reduces prolixity metropolis. Counsel are robed in all courts, effective advocacy or merely alienates the and frees the system from avalanches even those of summary jurisdiction. White Bench and ruins one’s case. In India people of discovered documents. Paradoxically, trousers appear to be de rigueur, useful if shout at each other incessantly, to express when you buy aspirin from a chemist shop you have to attend cricket training straight affection, hostility, joy, or sorrow, or simply or pick up your dry cleaning a receipt is after work. Given India’s reputation as a for no reason at all. I suppose there is no drawn up in triplicate. strongly patriarchal society, there are a reason why a courtroom should be immune All this typing has to be done by some- surprisingly large number of female bar- from this custom. one, and even on Sundays a bevy of risters. They wear gown and jabot (no bar Some days later, on the dilapidated local middle-aged women sit on the verandah jacket) over brightly coloured silk saris. bus from Chennai to the small sea-side outside barristers’ chambers pounding the The twelfth court is one of the more town of Mamallapuram, a man sits next to heavy keys. The chambers are, in short, ornate with its wood panelling and me reading. He is dressed in the habitual modest. Indeed, the unrenovated Owen stained-glass window. Slow-moving ceil- garb of the Indian urban working classes: Dixon East and the old Four Courts are ing fans fail to disturb the dust caught dhoti, long-sleeved collared shirt, thongs. palatial by comparison. in the shafts of sunlight entering through And what is he reading? The Contract Court dress is similar to our own. Wigs the coloured panes. Upon entering court, Labour (Regulation and Abolition) Act are not worn, perhaps as a concession one bows with the hands pressed together 1970. As Mr Masilamani wisely said — to the stifl ing heat of this sub-equatorial in a prayer-like attitude. Today the court “You must have it all at your fi ngertips.”

52 News and Views Speakers Outnumber the Delegates at the International Law Congress in Nicosia Between 10 and 14 April 2000 the Cyprus Bar Association played host to the International Law Congress in Nicosia, Cyprus, sponsored by bodies such as the International Bar Association. A.T. Artemi reports

YPRUS is an island located in the Mediterranean sea at the crossroads Cbetween Europe, Asia, Africa and the Middle East. Although the University of Cyprus does not offer law or medicine, there is still an overabundance of lawyers in Cyprus. It boasts a large fused legal pro- fession of over-qualifi ed lawyers who were compelled to go to the expense of studying law abroad, predominantly in the United Kingdom and Greece. As a result, the competition amongst lawyers in Cyprus is fi erce and they are often underpaid. Both common law (probably as a result of the British occupation) and modern civil law (being as a result of its Greek connection) is practised in Cyprus. The Congress was unique in many respects, particularly in terms of those present. There were more speakers than delegates, fewer delegates than confer- ence organisers (which probably accounts for the large registration fee of up to Kevin Zervos (Hong Kong); female (unknown, Cyprus); Mr Koshis, Minister for $US 1836, larger for the Australian del- Justice of Cyprus; Artemis Artemi and Ruta Olmane (Latvia). egates who attended when the $A was barely worth half of the $US) and fewer Karl Mackie, Centre for Dispute Elizabeth Wall, Group Director of Legal Scandinavians than you would normally Resolution (CEDR), UK. and Regulatory Affairs, Cable and fi nd there in July, being European mid- b) “Business, Banking and International Wireless PLC, UK. summer. Financial Services” — Chair: J.William h) “Biomedical and Pharmaceutical” — Catching a taxi from the airport to the Rowley QC, Chair, Section on Business Chair: Sotiris Fellios, President, Congress in Nicosia (LeEkosia) in April Law, (IBA). Council of the Bars and Law Societies is not dissimilar from driving a buggy c) “Environment, Tourism and Leisure”. of the European Community, (CCBE). through a large golf course — suprisingly d) “Ethics and Human Rights” — Chair: i) “Intellectual Property” — Chair: Susan the island is green and lush and the taxi Dr Uwe Kargel, President of the Flook, Chair, European Corporate driver tends to drive anywhere but on the Berlin Bar and Vice-President of the Counsel Association. road. One hand is holding the latest mobile Federation of German Bars, Germany. The Congress was attended by speakers phone and the other is busy lighting the e) “European Union” — Chair: The Hon. and delegates from all parts of the globe next cigarette. Janos Kranidiotis, Alternate Minister including Canada, Hong Kong, Latvia, The Congress offered a wide variety of of Foreign Affairs, Greece. Africa, Greece, the United Kingdom, commercial topics through nine sessions f) “Law Administration and Law Practice Bulgaria, Sweden, Switzerland and running concurrently each day. These Management” — Chair: The Hon. A. Monaco. The large proportion of Eastern included: Markides, Attorney-General of the block countries attending was important a) “Litigation Arbitration and Alternative Republic of Cyprus. for Cyprus which has recently been invited Dispute Resolution” — Chair: Professor g) “IT and Telecommunications” — Chair: to join the European Union.

53 was part of a workshop or an actual dis- pute that arose during the course of the session. Fortunately costs were not in issue. The Congress was a success on both the professional and social side, although the social aspect made a bigger impres- sion. It was a delight to see the Minister for Justice of Cyprus dancing Zembekika with delegates. The Cypriot hosts were warm and pro active, taking every opportunity to make the delegates feel welcome, often hosting cocktail functions at their offi ces and even organising gratuitous transpor- tation to the next function, often a Greek “night” with the entertainer performing his usual routine of placing 30 drinking Cyprus. glasses on his head while dancing. Personally, my highlight was the casual and impromptu visit to a genuine Greek restaurant with one of the hosts, a dingy dark taverna located metres from the green line with tables and chairs dating back to the year dot. Each table had a tambourine, and patrons were free to sing and dance on, or under, the tables while the two-piece band played tradi- tional Greek songs. The cuisine was simple — mezethes, appetisers — pickled octo- pus, dips, calamari, saganaki (fried sheep’s cheese), olives and a small bottle of ouzo, to begin with. Naturally the owner of the taverna insisted we stay on to watch a free display of plate breaking (not delib- erate I might add) and to hear his theory that Jimmy Hendrix was inspired by the Julie Owen (Canada); Christina Varnavides (Cyprus); Vaso Rousounides bouzouki to learn guitar. (Cyprus); Lucy Owen (Canada) and Ruta Olmane (Latvia). Cyprus is very much its own culture. Miss Universe hosted in Nicosia by the By far the most attended session was sessions to be the Litigation, Arbitration Americans in May 2000, Wooden Spoon at that of Human Rights. And why shouldn’t it and Alternative Dispute Resolution ses- last year’s Eurovision singing contest and have been? For Nicosia is possibly the only sion where at one stage I wasn’t sure the International Legal Congress where remaining divided capital in the world, whether the dispute between an American any Canadian can attend in April and still with the Turkish occupation of the north- attorney and a German lawyer mediated arrive home all tanned. Perhaps solariums ern part of Cyprus, having been a fact by an English Supreme Court Justice sell well in Cyprus after all. of Cypriot life since the summer of 1974. Occupation which has retained the long- est United Nations peacekeeping forces on the “green line” and still without a peaceful resolution in sight. The Turkish occupation of northern Cyprus is not rec- ognised as its own sovereign State by any country in the world other than Turkey itself. A retired lawlord from Scotland also discussed the Pinochet trial. There were also troubling and topical issues such as cloning of human beings where two Italian professors in favour of cloning invited some very thorny questions. Genetic engi- neering will no doubt attract litigation in one form or another. I found one of the more entertaining

54 News and Views/A Bit About Words All’s Well That Ends -al

OTS of English words end -al. Words als — but by depressing levers with the making); canal (refl ecting the Latin canal of this form generally fall into one of feet. -em); capital (from the Latin diminutive Lthree groups: There is a small group of nouns which of head capitulum); metal, from Latin 1. There are nouns which become adjec- end -al and which result from a parallel metallum: a mine; and pedestal, from the tives by adding the adjectival suffi x use of the suffi x. In all its glorious chaos, Italian pie di stallo: the foot of a stall or -al; this is very common. Some of this English can accommodate the use of the shed. fi rst group become nouns again with- suffi x not only to convert a noun into an Another example is admiral which out changing their form. adjective, but also for the quite different could, by its form, seem to be related to 2. There are verbs which become nouns task of converting a verb into a noun.There the verb admire. For a short time in the by adding the noun suffi x –al. There are about a dozen words in ordinary use 17th century it was in fact used as mean- are about a dozen common examples of which follow this pattern. It is uncommon, ing admirable. However, in its normal, this pattern. Some of these are subse- but easily recognised: commit — com- naval meaning it derives from the Arabic quently pressed into service as adjec- mittal, dismiss — dismissal; likewise amir al ma: commander of the sea. The tives without change of form. arrival, approval, recital, rehearsal, sur- amir from which it comes means a com- 3. Then there are words whose form sug- vival, trial and (less obviously) reprisal mander, and is the same word as emir, gests that they follow one or other pat- from the archaic meaning of reprise: to from which the United Arab Emirates get tern, but which turn out to be spurious retake property by force. Fowler (1926) their name. Emir is also a title of honour imitators. disparages the lazy use of this device borne by descendants of Mahommed. The adjectival suffi x –al generally to create new nouns where there is an means of the kind of, or pertaining to. available alternative. His list of bastard * * * * * * * It refl ects the Latin suffi x with the same nouns formed this way includes accusal, As bridal is something of a linguistic meaning -al, -alem. Added to many nouns, beheadal, revisal and refutal. It is dif- imposter, so bridegroom conveys a false it creates a convenient adjective for the fi cult to lament their early demise. But idea of its true origins. A groom is a associated noun, as for example: navy his list also includes appraisal, which person who tends to animals, especially — naval, norm — normal; vestige — is now indispensible to the antiques and horses, by currying and feeding them. It vestigial; tide — tidal, etc. There are real estate trades. The Gowers edition of comes from the Anglo-Saxon grome, a hundreds of examples of this from abdom- Fowler (1968) raises the white fl ag by boy or attendant. The original bridegroom inal to zonal. Woody Allen famously lam- dropping appraisal from the list of words was the Anglo-Saxon brydguma, that is pooned this pattern in his Eggs Benedict to be avoided. a bride man. It gradually shifted its form sketch, in which he complains of a pain “in Then come the impostors. Bridal and to brydgome and from there the infl uence the chestal area”. burial seem to fi t the fi rst and second of grome (attendant) caused a change A few of the adjectives formed this patterns respectively, but their origins of form without a concomitant change of way become nouns again, without further are quite different. Bridal was originally meaning. He does not groom the bride: change of form. Sometimes, the fact that bride-ale: quite literally the ale drunk at in fact the Anglo-Saxon tradition forbids the adjective was originally formed from the feast for a newly married bride. It was him to see her on the wedding day until a corresponding noun is obscure or for- a noun, not an adjective. Its meaning grad- the wedding ceremony begins and all the gotten. Examples of this progression from ually broadened to embrace the festivities grooming has fi nished. noun to adjective to noun again are: com- associated with a wedding, and then (as Another expression which suggests mercial, confessional, periodical, jour- the pattern of the Latin suffi x became grooming is curry favour. The curry- nal, paralegal, terminal, etc. Aboriginal stronger) it was taken for an adjective. It comb is used to groom a horse. The orig- is often enough used in place of aborigine is not used as a noun any more, although inal expression in French was estriller to be recognised as a noun, although pur- Scott and Tennyson used it as a noun, for fauvel meaning to curry a fauvel. A fauvel ists continue to protest; likewise oriental archaic effect. was a horse of brownish or reddish yellow. and continental for residents of the orient Burial is an Anglo-Saxon word (orig- But more than that, it was a specifi c horse or continental Europe, although these inally spelt biriel, beryel, buriel, etc.). in a 12th century French story: a horse are now disparaged as pejorative. Other, It originally meant a burying place, grave which represented fraud and deceit. In less obvious, examples are chemical, and or tomb and later came to mean the act the context of the story, the warning not somewhat differently pedal. Chemic was of burying. It appears to be, but is not, to curry fauvel was advice to avoid wast- another name for an alchemist, but seems formed on the verb bury with the noun ing care and effort on a deceiver. When to have faded from relevance before even suffi x. It serves both as a noun — the act the expression came to England, fauvel the alchemists themselves. Pedal comes or service of interment — and almost as an was misunderstood for favour and it was from Latin ped: foot. Pedal was originally adjective, in combinations such as burial so used by 1500. It is probably for this an adjective, but is only used as an adjec- chamber, burial feast, burial procession. reason that currying favour has a pejora- tive in the special case of the pedal pipes To these curios can be added; arsenal tive tinge, although it now speaks poorly of of a pipe organ. They are the pipes acti- (originally — and tortuously — from the the groom and not the horse. As adopted vated not from the keyboard — the manu- Arabic dar al cina ah: place of the and varied in English, it makes no literal

55 sense at all, but we understand it because The game we now call shuttlecock was we deem it to mean what it once meant in called battledore and shuttlecock until French. the end of the 19th century. The shut- The Spanish were not seeking to curry tlecock (or shuttlecork) was the piece of Eminence Grise favour when they coined the word fl a- cork or other light material with a crown menco. The word, which now stands for of feathers; the battledores were the bats a proud element of Spanish cultural tra- used to hit it across the net. In Pickwick dition, was once a disparaging term for Papers, Sam Weller says: “Battledore and natives of Flanders. Those whom we call shuttlecock’s a very good game, vhen you Flemings the Spanish called vlamingo an’t the shuttlecock and two lawyers the and then fl amenco. battledores, in which case it gets too exci- The Spanish also have the word bata- tin’ to be pleasant.” dor: a person who administers a beating, The name of the game has changed, but or the instrument used for the purpose. Weller’s sentiment is undimmed in appli- It refl ects the pattern of matador, pic- cation. Dickens probably did not intend it ador etc. It is useful for the Spaniards, as a compliment to barristers. He did not no doubt, but also left a small mark in like lawyers much, although his son Henry English. The Spanish batador came into was called to the Bar three years after English and became battledore: a paddle- Dickens died, and later became a leading shaped instrument once used for beating counsel and was knighted. If coincidence garments during the wash, or fl attening can be permitted to overtake irrelevance, them as they pass through the mangle; it happens that Sir Henry Dickens once also the fl at-ended instrument for placing tried a case in front of Hawkins J in which The man behind John Elliott? loaves in an oven, or taking them out his fi rst witness was a gentleman called Mr again, and a paddle for a canoe. (Despite Pickwick! John O’Bryan believes he has discovered the similarity of sound, paddle owes noth- the secret of John Elliott’s commercial ing to battledore). Julian Burnside QC success.

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56 News and Views The Stefan Kiszko Case Julian Burnside QC

HE headnote in R v McKenzie [1993] Lesley Molseed was a small, frail 11 First, they did not seek an adjournment 1 WLR 453 reads: year old. She lived in Rochdale with her when the Crown delivered thousands of T mother and stepfather. On 5 October 1975, pages of additional unused material on Where the prosecution case depends wholly she agreed to go down to the shop to get the fi rst morning of the trial. Among the on confessions, the defendant suffers from some bread. Her body was found three additional material was a statement by a a signifi cant degree of mental handicap and days later, on the moors nearby. She had taxi driver who admitted being the person the confessions are unconvincing to a point been stabbed 12 times. Her clothing was who had (inadvertently) exposed himself where a jury properly directed could not undisturbed, but the killer had ejaculated in front of the two girls: it was the inci- properly convict on them, the judge should on her underwear. dent which had initially attracted police take the initiative at any stage of the case An enormous police investigation began attention to Kiszko; it was an incident to in the interests of justice and withdraw the when the body was found. The police which he had confessed in his statement case from the jury. took statements from over 6000 people, to police. It gave the clearest grounds for including girls in the Rochdale area who suspecting the reliability of Kiszko’s con- One of the cases cited in argument, but had seen a man indecently exposing him- fession. not referred to in the judgment, is R v self during the weeks immediately before Second, instead of seeking to exclude Kiszko (unreported) 18 February 1992, Lesley Molseed was killed; and people who the confession on a voir dire, they sought CA. had seen vehicles in the parking area near to impeach its voluntariness and veracity Stefan Kiszko was convicted of murder the place on the moors where the body in the course of the trial itself. This meant 25 years ago — on 21 July 1976. The was found. not only that the jury saw the confession, victim was 11-year-old Lesley Molseed. Two girls identifi ed Kiszko as the man but also that they heard all of Kiszko’s piti- She had been stabbed to death on the who had exposed himself to them. Police able frailties and shortcomings as a human Yorkshire moors. The killer had ejaculated quickly formed the view that Kiszko fi tted being. on her underclothes. the profi le of the person likely to have Third, and most diffi cult to understand, Kiszko spent the next 16 years in killed Lesley Molseed. They pursued evi- they ran inconsistent defences. Kiszko had prison. He was released in February 1992 dence which might incriminate him, and recently been put on a course of hormone after the decision of the Court of Appeal. ignored leads which would have taken treatment to deal with the consequences He had collapsed mentally and physically. their enquiries in other directions. of his immature testes. The scientifi c evi- Stefan Kiszko was innocent. Lesley The police questioned Kiszko closely. dence was that this could cause unchar- Molseed’s real killer has never been pros- They were convinced he was the mur- acteristic changes of mood, although even ecuted. derer, and they seized on inconsistencies here the defence put forward an exagger- between his various accounts of the rel- ated version of the likely effects. So the * * * * * * evant days as further demonstration of defence involved a denial that Kiszko com- Stefan Kiszko was the son of a German his guilt. They paid no attention to his mitted the murder, coupled with a defence mother and a Ukrainian father who had gross social backwardness; they did not of diminished responsibility: “If he did it, fl ed to England after the second world tell him of his right to have a solicitor it was because of the hormone treatment war. They were hard-working ordinary folk present; when he asked if he could have which turned him into a sex monster.” who lived in Rochdale in the north coun- his mother present when he was ques- It is hard to imagine how any jury could try and were proud of their son when he tioned, they refused; they did not caution exclude the effect of the second defence got a job in the tax-collector’s offi ce: he him until well after they had decided he from their consideration of the fi rst. In was the fi rst in the family to wear a suit was the prime suspect. any event, Kiszko’s endocrinologist would and tie to work. Kiszko made a confession, which he have said (if called) that the effect of the Stefan was a large child-man: although retracted shortly afterwards. He explained hormone treatment was only to exagger- apparently of average intelligence, he was that he had confessed because the police ate existing personality traits, and that the grossly immature because of hypogonad- had assured him he could go home to his effect of the hormones on Kiszko would ism — his testes were completely unde- mother if he told them what had hap- certainly not have caused him to commit veloped. This condition was not diagnosed pened. a crime so grotesquely at odds with his until he was 23. As a student, he had normal personality. been the butt of schoolyard jokes; when * * * * * * Kiszko appears not to have been con- he began work as a clerk, he became the The trial began on 7 July 1976. Kiszko was sulted about the second line of defence. butt of offi ce jokes. He had no friends, and defended by David Waddington QC and From fi rst to last (apart from the retracted no social life beyond his parents and his Philip Clegg. The prosecutor was Peter confession) Kiszko insisted that he had aunt Alfreda. Then his father died, and he Taylor QC (later Taylor LCJ) with Matthew never met Lesley Molseed, and did not kill had only his mother and aunt — but he Caswell. her. wanted nothing more. He was a lumber- The defence made three signifi cant He was convicted and sentenced to life ing, good-natured child in a man’s body. mistakes: imprisonment.

57 * * * * * * duct of the original trial was begun. fl awed and partial, and that vital evidence For a person convicted of sexually molest- Detective Superintendent Trevor had been withheld from the Court and ing and killing a child, life in gaol is hard. Wilkinson was assigned to the job. After a from the defence. Kiszko was frequently beaten by other great deal of painstaking work, Wilkinson’s These investigations culminated in an prisoners, and eventually retreated into a team of investigators discovered four vital application which was heard by the Court world of private delusion, in which he was things: of Appeal on 17 and 18 February 1992. the victim of an immense plot to incar- First, that the additional unused mate- At the conclusion of the argument, the cerate an innocent tax-offi ce employee in rial disclosed to the defence on the fi rst appeal was allowed. Lane LCJ said: order to test the effects of incarceration. day of the trial included crucial evidence, He ultimately came to believe that even but the late disclosure had made it impos- It has been shown that this man cannot pro- his mother was party to this elaborate con- sible for the defence team to pursue the duce sperm. This man cannot have been the spiracy. ramifi cations of that evidence; the evi- person responsible for ejaculating over the Meanwhile Kiszko’s mother was the dence, if pursued, would have cast doubt girl’s knickers and skirt, and consequently only person who clung tenaciously to a on the reliability of the confession. cannot have been the murderer. belief in his innocence. She pleaded his Second, the matter of the two girls who case to anyone who would listen. She was identifi ed Kiszko as the person who had On the same day, Peter Taylor QC was steadfast in her certainty that Stefan was exposed himself to them. Their statements appointed Lord Chief Justice. innocent. As her entreaties became more had been read to the Court; they were * * * * * * desperate and forlorn, so her audience not cross-examined. During the investiga- became less receptive. But eventually, in tion in 1990, the girls (by then they were Kiszko was released immediately. He 1987, Campbell Malone agreed to take a mature women) admitted that they had needed nine months rehabilitation before look at the case. He consulted Philip Clegg made up the story: they had simply seen he could go home to his mother. He (who had been Waddington’s junior at the the taxi driver urinating behind a bush. received 500,000 pounds in compensa- trial). Clegg expressed his own doubts Third, that the pathologist who exam- tion for his 16 years in prison. However about the confession and the conviction. ined Lesley Molseed’s clothing had found his physical and mental health had After lengthy investigations, they pre- sperm in the semen stains on the under- been destroyed. He died eighteen months pared a petition to the Home Secretary. wear. This fact had not been disclosed to later, aged 41. The date of his death was The draft was fi nally ready on 26 October the defence or the Court. 23 December 1992: exactly 18 years after 1989. On the same day, by the most remark- Fourth, that the police had taken a his arrest. His mother died six months able coincidence, a new Home Secretary sample of Kiszko’s semen at the time of later. was announced: David Waddington QC the investigation: it contained no sperm at The Court of Appeal decision by which MP. Despite (or perhaps because of) all. This fact had not been disclosed to the Kiszko was released is not reported. So far Waddington’s exquisitely delicate position defence or the Court. as the legal system is concerned, the life it in the matter, more than a year passed It therefore became apparent that the destroyed is nothing but a footnote in R v before a police investigation into the con- evidence led against Kiszko had been McKenzie. Conference Update 20–21 July 2001: Melbourne. AIJA Regulation” Mr Mark Sneddon, Partner, Innovators. Tel: 64 3379 0390. e-mail: Magistrates Conference. Contact AIJA e-Commerce, Information Technology and [email protected]. website at www.aija.org.au. Privacy Team, Clayton Utz, Melbourne. 8–9 October 2001: Best Practice in 2–3 August 2001: Townsville. Contact “Scams, Lies and Information: Investment Corrections for Indigenous Prisoners. Australian Institute of Criminology, e-mail: Advice and the Online Investor” Professor Contact. Julie Dixon. Tel: (02) 6260 9229. [email protected]. Tel: (02) 62 609 Dimity Kingsford Smith, CLiDE, Monash 11–14 October 2001: Canberra, 32nd 229. Law. Australian Legal Convention of the Law 9 August 2001: Centre for Law in For further information: www.law. Council of Australia. Contact Susan Burns. the Digital Economy (CLiDE) Inaugural monash.edu.au/clide Tel: (02) 62473788. e-mail: susan.burns Lecture and Afternoon Symposium. 12–19 August 2001: Thredbo, NSW. The @lawcouncil.asn.au. Inaugural Lecture: Winners and Losers: the Australasian Legal Conference. 25–26 October 2001: Brisbane. Police Internet Changes Everything or Nothing? 16–19 September 2001: Vancouver. and Partnerships in a Multi-Cultural Free. 6–8pm. Speaker: Professor Michael Australian Rules and Probate Conference Australia: Achievements and Challenges. Froomkin, School of Law, University of 2001. Contact Patricia Palman. Tel: 9602 Presented by the Australian Institute of Miami. Respondent: Mr John Rimmer, 3111. e-mail: [email protected]. Criminology. Contact Julie Dixon. Tel: (02) Chief Executive Offi cer, National Offi ce 20–26 September 2001: Rome, Italy, Pan 6260 9229. e-mail: [email protected]. for the Information Economy (NOIE) Europe Asia Legal Conference. au. Afternoon Symposium. $99 (including 21–23 September 2001: Hobart, 19th 2–5 July 2002: Prato, Tuscany. GST) 3pm–5.15 pm “Virtual Finance AIJA Annual Conference. Contact AIJA International Institute of Forensic Studies andActual Rules: Regulating Online Firms website. inaugural conference on Expert Evidence: and Financial Portals” Professor Caroline 4–8 October 2001: Christchurch. Law/ causation, proof and presentation. Contact: Bradley, School of Law, University of Asia and New Zealand Law Society Jenny Crofts Consulting on (03) 9429 Miami. “Electronic Banking and Payments Conference 2001. Contact Conference 2140.

58 News and Views Exhibition of Paintings The Australian Outback by Robert Fisher

OME weeks ago, on the one night, Robert Fisher was to be found in two Sbars at the same time, some 2000 kil- ometres apart, “as the crow fl ies”. Figuratively true that is, on the ceiling of the bar in the William Creek pub, and on the walls near the bar in the Essoign Club. Worldly wise at 16, Rob and a mate boarded the “Ghan”, aiming to ride an uncle’s camels outback across the desert, from the Alice. Floods stranded the Ghan at the William Creek train stop, where the mates’ cash soon ran dry at poker play. And there were no camels at the Alice, there was no uncle at the Alice, — but there was a pub or two, if you got a job, to get a bob or two. During the tough and tumble run of years that followed, Robert’s mind re- visited the vast dry, red landscapes, that Kerry and Michael Willis of Kallista with the artist Robert Fisher at the Essoign explosively grew green in a thundering big Club exhibition. wet, lightning-lit, where the next night’s moon loomed larger than the star-specked searing sun, have left a twisted, torn and space about it. worn terrain in Australia’s outback crust. One day Robert would return to William Vast areas are combed by gigantic run- Creek, ancient base for the Afghans nels or gutters that over countless time brought to labour on this remote Australian have conducted the run of northern fl ood rail track. waters towards the Lake Eyre sink, depos- One day he would show the way he saw ited silts forming the runnel walls, maps the limitless space and richness of place, showing these fl uted plains as “channel in this outback. country”. Four years ago, Robert Fisher found a Enspirited by this striking scenario, modern way to survey the timeless land. seeing it in all its seasons, Robert Fisher From an airstrip close by the venera- returns to his studios at Melbourne and at ble pub, Wrightsair fl ies Robert high above William Creek, and commits his measure Judge Michael McInerney, Judge Lake Eyre’s surrounds, aerially adventur- of the moment to canvas. Timothy Wood, artist Robert Fisher ing directly — “as the crow fl ies” — The dynamic rhythyms, sweeps, swirls and Don Fulton. to Mount Isa, Broken Hill, Leigh Creek, and colours of the land, in the wet, in Birdsville, Port Pirrie, Port Augusta, Roxby the dry, sun-shone and moon-lit, inspire Downs, with some-time touch-downs to Robert Fisher’s powerful paintings, they swim in a cooling creek, like the Cooper, tell us of this artist’s particular, personal and the Diamantina. and passionate response to the shaping Lake Eyre is the central outback “sink” forces of nature. for Australia’s northern river system, Fisher’s works are fast gaining inter- nature’s rugged patterns causing the lake national acclaim. This month in London to be salt-pan dry for some thirty years Marita Hayes-Brown shows Roberts’ “as past, Robert chancing to see last year’s the crow fl ies” series at the Australian high monsoonal fl oods fi lling it to seventy per- commission at Australia House, “depict- cent — since evaporated. ing the many moods of the Australian out- Millennia ago, fl ooding seas, stormy back”. deluge, volcanic thrusts, tearing winds and Don Hendry Fulton Michelle Williams and Denis Connell.

59 Lawyer’s Bookshelf

and Controlled Substances Act and to The second volume is completed by Criminal Law the Occupational, Health and Safety chapters on confi scation of assets, coro- Investigation and Act. nial investigations and victims of crime The second volume contains exten- assistance. Procedure Victoria sive material on the investigative proc- The third volume deals with sum- Edited by Ian Freckelton ess, in particular arrest, questioning, mary offences. It supersedes Paul’s LBC (now Lawbook Co.) identifi cation (both traditional and sci- Summary Offences. This volume con- Information Services, 2000 entifi c), search and seizure and elec- tains an overview of summary trials fol- Three volumes, loose-leaf tronic surveillance. The second volume lowed by annotated legislation in respect also covers the pre-trial procedure, the of summary offences, vagrancy, unlawful RIMINAL Law Investigation and trial procedure and post-trial issues. assemblies, crimes family violence, con- CProcedure Victoria is a three- The pre-trial issues covered are bail, trol of weapons, fi rearms, road safety, volume loose-leaf service con- domestic (feral and nuisance) sisting of legislation, commen- animals, prevention of cruelty to tary and legal analysis. It covers animals, fi sheries, classifi cation both indictable and summary (publications, fi lms and compu- offences and it contains a ter games) and lotteries, gaming detailed analysis of investigative and betting. powers, trial procedures and The Commonwealth Crimes post trial matters. The service Act and the Children and Young is edited by Dr Ian Freckelton, Persons Act will be included in who is supported by 15 talented the service in the near future. authors, all of whom have a very This service will be an high level of expertise both in extremely useful tool for all levels criminal law and its practical of practitioners of criminal law application in Victoria. and associated areas of law. It is The fi rst volume commences a service to which its authors and with an analysis of the general committal proceedings and nolle pros- editors have committed to updat- principles of criminal law. It then sets equis. The trial issues covered are pre- ing on a regular basis. It includes almost out the Victorian Crimes Act, followed sentment arraignment and pleas, mental all Victorian legislation (both Acts and by narrative chapters on homicide, impairment and unfi tness to be tried, Regulations) relevant to criminal law, violence offences, sex offences, dishon- mental health and intellectual disability, and it provides the most current and esty offences, property offences, public general trial issues, juries, trial on comprehensive coverage of criminal law, order offences and offences against indictment and the Evidence Act. Pos- investigation and procedure in Victoria justice. The fi rst volume concludes trial issues covered are sentencing and today. with annotations to the Drugs, Poisons appeals. Kerri Judd

Historic Court Houses of S the title to the book suggests, this graphs, but is a well-researched account Abook is written about the Court Houses of those Court Houses which fi rst admin- Victoria of Victoria. Michael Challinger has trav- istered justice in the colony and then later elled throughout Victoria and has pho- in the State. Together with the bank and Michael Challinger tographed and written about the various the town hall or shire offi ces, these were Palisade Press Court Houses, large and small, through- a major public building in any small com- pp. 1–231 out the State. This is not a book of photo- munity. Regrettably, a lot of those Court

60 Houses have been closed, but the build- book to fi nd all about that celebrated inci- ROFESSOR Vermeesch and (pres- ings have remained and are now being dent. There are similar examples from the Pently Justice) Lindgren fi rst published used for other public purposes. 158 Court Houses he has visited. Business Law in Australia in 1971. In Some three years ago, the author tells The author has included a map of keeping with earlier editions, the tenth us, he was driving through Minyip, which Victoria showing the Court Houses that he edition is still very much intended as a is found to the north-east of Horsham. He has visited. In particular he has included general guide to business law from a stu- was interested in fi nding the old timber detailed maps of the central goldfi elds dent or lay perspective. It nonetheless Court house that had been built there in where much court business was done in provides a comprehensive review of a wide 1886. Unfortunately it had been demol- the early days of the colony. He has also range of commercial law subjects suitable ished and, as he has written, “so was lost listed the heritage classifi cation of each for a practitioner in general practice. a small part of Victoria’s history — and of the Court Houses at the back of the The format and layout of the book is a large part of Minyip”. The idea for the book, and includes details of the sources simple and easy to understand; the liberal book sprang from that visit. on which he has relied, including exten- use of case references invites an explo- For those of us who are acquainted sive end notes. ration of relevant legal principles, which with the old courts of Petty Sessions This a thoroughly enjoyable book, well underlies its value as an adjunct to formal and later Magistrates’ Courts, reading the written and indexed, bound and pre- classes and lectures. The writing style is book is like a trip down memory lane. An sented. It will have an attraction to a wide direct, and students of gender neutrality example is the old Kilmore Court House. range of people, not only for those who will note the use of the female pronoun As with every example, a photograph of are concerned with the law, but also for employed in even-numbered chapters. the old bluestone building appears. The those who are interested in the historical Perhaps not only as a refl ection of its author tells us its address, where it was development of Victoria and its towns. subject matter but also of the immense built, who was known to be the architect changes in increasingly specialized areas and the cost of construction. In each John Kaufman of commercial law the tenth edition runs entry Michael Challinger provides a his- to 31 chapters. The learned authors are tory of the Court House and an anecdote now assisted by 12 contributors. of some event that occurred. With respect Business Law in Despite the book’s student or lay focus to the Kilmore Court House, he recounts Australia (10th edn) its use to practitioners lies in its successful in November 1905 it was the scene of the marshalling of a wide range of specialised so called “Kilmore fl ogging case”. I will not By R. B. Vermeesch and K. E. areas within a single volume. The previ- spoil the story so you will need to buy the Lindgren ous editions of this book enjoyed a well

The tenth edition incorporates Ford’s Principles of changes arising from the enactment of Corporations Law the Corporate Law Economic Reform Program Act 1999 in the areas of com- (10th edn) pany directors’ and offi cers’ obligations; accounting standards; the introduction By H.A.J Ford, R.P. Austin and of a statutory derivative action (cf. the I.M. Ramsay rule in Foss v Harbottle); amendments Butterworths 2001 to the takeover and compulsory acquisi- pp. i–ix, Table of Cases xi–lxic tion provisions; and changes to compa- Table of Statutes lxv–xciii, ny’s ability to raise funds by the issuing xciv–cvii, 1–1363, Index 1365–98 and sale of securities. t fi rst glance the tenth edition of While the Corporations Law pro- AFord’s Principles of Corporations vides the framework and text that regu- Law, appears smaller and slimmer than lates corporate entities, it is this work its predecessors. Somewhat anxiously (together with the loose-leaf version) I ventured into the text to fi nd out that provides insight and understand- whether desperate editors had achieved ing. The text is accessible and authorita- a miracle of slimming and downsizing tive. It provides explanation and analysis by wholesale excising and remodelling modest ambition for the fi rst edition) is whilst also enabling the reader to trans- this classic text. Fortunately this has not a text for students of law and commerce. late technical insight into practical appli- happened and the real explanation for Although there has been since the sev- cations. the slimmer text is fi ner paper (there enth edition a loose-leaf version of Ford’s This work while slimmer retains all are over 300 additional pages in the Principles of Corporations Law, the of the substance, style and scholarship tenth edition compared with the sev- book version remains the pre-eminent that has made it an indisputable legal enth edition) and what appears to be resource for lawyers, accountants, classic for students and practitioners slightly closer typesetting. government and business throughout alike. This book (in line with the author’s Australia. P.W. Lithgow

61 deserved reputation as a standard text in signifi cant that the table of VCAT retail contemporary issues, emphasise relation- business law; the tenth edition maintains tenancies decisions (found at Part G) can ships within the New South Wales criminal and enhances that reputation. be updated without charge via the Leo law system and provide provocative com- Neil Rattray Cussen Institute website. mentary. The Index contains a table of cases and This latest edition continues this table of legislation together with a com- approach with the result that practition- Retail Tenancies prehensive subject index that enable ease ers have a text of both reference for the of reference to those using this text. structure of the judicial system and the (3rd edn) Despite its somewhat daunting size various elements of criminal offences.. By Dr Clyde Croft SC (which is perhaps inevitably the result The authors use Chapter 1 to address Leo Cussen Institute of the technical and complex nature of various themes including general concepts the retail tenancies legislative regime) and principles. This chapter sets the tone r Clyde Croft SC’s excellent work on the work is available at a very moderate for the rest of the work and thus should be Dretail tenancies has expanded from cost. Further, Retail Tenancies ought be read with interest. the slim volumes constituting the fi rst and considered an indispensable resource and Chapters 2 and 3 deal with apprehens- second edition (and 1995 supplement) reference for those involved in advising ion of crime and the criminal process. into an excellent loose-leaf service pub- and implementing retail tenancy arrange- Chapters 4–11 address specifi c crimes lished by the Leo Cussen Institute. ments. and the elements thereof, whilst Chapter This work deals comprehensively with Dr Croft is to be commended on his 12 attempts the diffi cult task of explaining the Retail Tenancies Act 1986 and the scholarship and comprehensive coverage the background to sentencing and penalty. Retail Tenancies Reform Act 1998. To of this diffi cult area of the law. This work is The authors avoid discussion of innova- aid the work’s practical utility there is the sure to fi nd a niche on the bookshelves of tive sentencing options and this disap- inclusion of LIV standard form leases in all those whose practice is touched by the points given the contribution they could use since 1986 and the full text of the requirements of retail tenancy legislation. be expected to make. 1986 and 1998 Acts, together with the rel- The end result is a work that any prac- evant regulations. In addition, the work P.W. Lithgow titioner in the criminal law fi eld can gain- also deals with relevant trade practices fully read, and this is facilitated by the use legislation (including the Fair Trading of Commonwealth and other State legis- Act 1985) and dispute resolution focusing Criminal Laws lation and case law. No doubt a number on VCAT practice and procedure. Materials and Commentary on of the propositions can be challenged but As the author notes in his preface to overall it is an excellent reference written the 3rd edition there is and continues to Criminal Law and Process in in a stimulating fashion. be developments in terms of case law, New South Wales (3rd edn) arbitration awards and legislative changes Brown, Farrier, Neal and Weisbrot John L. Bushby which impact directly on the landlords and The Federation Press 2001 tenants operating under the retail tenan- cies regime. N the fi rst edition of this book in 1984 While it is generally intended that the Ithe authors decided upon a novel loose-leaf format will enable updating to approach for the presentation of material take place at appropriate intervals, it is that would challenge assumptions, stress

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