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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.