THE JOURNAL OF THE NSW BAR ASSOCIATION | AUTUMN 2018 barTHE JOURNAL OFnews THE NSW BAR ASSOCIATION | AUTUMN 2018 news THE JOURNAL OF NSW BAR ASSOCIATION | AUTUMN 2018 bar First Nations and the NSW Bar PLUS Implied terms of fact: counsel’s last resort Robert Stephen Toner (1951-2018) CONTENTS THE JOURNAL OF THE NSW BAR ASSOCIATION | AUTUMN 2018 2 EDITOR’S NOTE 4 PRESIDENT’S COLUMN 6 NEWS ABA-High Court Dinner & High Court silks bows ceremony John Shaw - 50 years at the NSW Bar EDITORIAL COMMITTEE 9 LETTERS TO THE EDITOR Ingmar Taylor SC (chair) 10 OPINION Anthony Cheshire SC Intersectionality at the NSW Bar Dominic Villa Mr Dutton and the ‘lily-livered judges’ Christopher Withers Nicolas Kirby 14 RECENT DEVELOPMENTS Daniel Klineberg Catherine Gleeson 26 ADDRESSES Victoria Brigden Advocacy and unthinkable challenges Caroline Dobraszczyk Talitha Fishburn The people are not instruments Juliet Curtin The Ninian Stephen Lecture Radhika Withana David Robertson 36 FEATURES Kevin Tang First Nations and the NSW Bar Alexander Edwards Memories of the Liberation of Walgett Charles Gregory Bar Association staff member: The Uluru Statement Chris Winslow Sol Bellear: Memories of the Redfern Speech ISSN 0817-0002 Native title compensation claims 56 PRACTICE Views expressed by contributors to Bar News are not necessarily A different seat in the courtroom those of the New South Wales Practising at the London Bar Bar Association. Genderfluidity and the law Contributions are welcome and Paperless trials should be addressed to the editor: Ingmar Taylor SC Implied terms of fact: counsel’s last resort Greenway Chambers 76 LEGAL HISTORY L10 99 Elizabeth Street Sydney 2000 The Doctor’s Commons DX 165 Sydney 79 PROFILES Contributions may be subject to editing prior to publication, at the 84 WHO IS A BARRISTER? discretion of the editor. Anne Gibbons Cover: The Hon Justice Rares of the 85 OBITUARIES Federal Court at a ceremonial Jose Crespo welcome before the determination of His Honour Judge Robert Toner SC the Yindjibarndi People claim. Photo: By Tina Jowett 88 APPOINTMENTS The Hon Justice Thomas Thawley Her Honour Judge Julia Baird SC Magistrates Peter Thompson, Stuart Devine, Daniel Covington Jonathan Hyde Bar News is published under a 90 BOOK REVIEWS Creative Commons ‘free advertising’ 95 BAR SPORTS license. You are free to share, copy and redistribute the material in any The Great Bar Boat Race medium or format. You must give Golf Day appropriate credit, provide a link to the license and indicate if changes 96 BULLFRY were made. You may do so in any Bullfry and ‘Son of the Jackal’ reasonable manner, but not in any way that suggests the licensor 97 ARCHON’S VIEW endorses you or your use. You may not use the material for commercial 98 ADVOCATUS purposes. If you remix, transform or 99 THE FURIES build upon the material, you may not distribute the modified material. 100 POETRY The Journal of the NSW Bar Association [2018] (Autumn) Bar News 1 EDITOR’S NOTE What the Bar was, is and can be Australia is indeed the lucky country, for most. have on her [or him]. Known types of coun- Yet the tyranny of the majority has cast its sel are identified, such as the LOD (light on stains here too. detail) counsel, who ‘work on the assumption One such stain is the treatment of our Indig- that facts are like truffles, an expensive delicacy enous peoples. Massacred, dispossessed of their not to be consumed in substantial qualities; land, deprived of citizenship, and treated with also that judges were truffle pigs. And, just in disdain or worse for decades, the descendants the case of the poor truffle pig, the judge never of our First Nations unsurprisingly remain got the good end of the deal.’ largely disadvantaged. For those who have been meaning to take This edition of Bar News focuses on the up gentle exercise to help address the stresses rights of First Nations people and the law. of the Bar, there is a review of Supreme Court In August 2001 the Bar Association estab- Justice Ruth Bader Ginsberg’s exercise regime. lished the Indigenous Barristers’ Trust – The Vance Hughston SC and Tina Jowett This edition also contains a typically en- Mum Shirl Fund. Established and carried on provide an analysis of the developing law in tertaining piece by David Ash, packed full of in large part by the sheer force and determi- respect of native title compensation claims, amusing asides, on the development of the law nation of Chris Ronalds, with the support of where Courts are being asked to put a mon- on implied terms in a contract. It reveals the Ruth McColl, Bret Walker, Mullenjaiwakka etary figure on the loss of the connection Ab- rich history that underlies the usual one para- and Michael Slattery, amongst others, it has original peoples have with ‘country’ following graph excerpt from BP Refinery (Westernport), facilitated the pursuit of the practice of law by the extinguishment of their native title rights. the last Privy Council decision to be recorded Indigenous persons. A different stain caused by the tyranny of in the Commonwealth Law Reports. This edition carries profiles of four such First the majority is examined in a powerful speech There a number of other great pieces. David Nations lawyers: Teela Reid, previously tipstaff by a leader of our Bar, Bret Walker. His speech Robertson has written a fascinating account to Justice Lucy McCallum, and barristers Tony focusses on our nation’s decision to indefinite- of the first paperless trials being conducted by McAvoy, Leon Apostle and Damian Beaufils. ly detain refugees overseas. By reference to the Land and Environment Court. Michelle Teela speaks of the assistance provided by the German case law and the writings of Imma- Painter provides an insight into the tragedy Bar Association and the trust: ‘It’s not just the nuel Kant, he expounds on the fundamental and emotions that arise when ‘the whispering financial assistance – it’s the connections made proposition that it is impermissible to use the division’ hears matters in its Family Provision amongst law students, graduates and people in lives of others as a means to an end. List. Christopher Parkin of the NSW Bar, the profession such as judges, barristers and so- Bar News continues to examine the current and Duncan McCombe, chair of the Young licitors that are breaking down barriers. Young State of the Bar and its increasingly diverse Bar of England and Wales in 2017, tell us Aboriginal lawyers are now starting to believe membership. To that end there is a new what it is like to practise at the London Bar. that going to the Bar is possible…’. column, ‘Who is a barrister?’, under which title Alexander Rose writes about how the law is Michael Kirby has written a piece that ex- each edition will profile a barrister who is not slowly catching up with genderfluidity. Steven amines the everyday discrimination faced by one of the usual suspects. Berveling provides an insight of what it is like Aboriginals in the in the 60s. And Sol Bellear, The caricature of a barrister is a white, mid- to be a plaintiff in a personal injury matter. who recently died shortly before the 25 year dle-aged man practising out of wood-paneled Kevin Tang provides another of his entertain- anniversary of Paul Keating’s Redfern Speech, chambers adjoining the Supreme Court (yes, ing excursions into the history of the Bar, this speaks of its impact in a moving interview con- Bullfry, I am talking about you). They still time the history of the ‘Doctor’s Commons’ ducted by the NSW Aboriginal Land Council. make up a sizeable proportion of the Bar, but who practiced ecclesiastical law. And Poulos’ Looking forward, Professor Megan Davis, they are aging (about a third of the Bar are obituary of that titan of the Bar, Robert Toner Professor Rosalind Dixon, Associate Pro- men over 60yrs of age) and the make-up of the SC, is absolutely wonderful. fessor Gabrielle Appleby and Noel Pearson Bar is gradually changing. Did you know that Bar News, as the journal of the NSW Bar, is discuss how the First Nation’s people should more than 10% of the Bar are women over 50 a record what the Bar was, what it is, and what be recognised by our Constitution, and why yrs? The first ‘Who is a barrister?’ column pro- it can be. If you can contribute to that record, there should also be a mechanism created to files one of them – Anne Gibbons, who came please do so. acknowledge the wrongs of the past. As they to the Bar at the age of 52 yrs. In particular, if you have a strong view about explain, the Uluru Statement from the Heart Wellbeing at the Bar continues to be a an aspect of practice or the mores of the Bar provides the path to an important, indeed significant issue. Our President has written a then send me a piece that can be published necessary, step to true recognition and recon- powerful column on judicial bullying and the anonymously as Advocatus. ciliation. It is a shame that the human failings effect it has on practitioners. Or if you merely have questions, then send me of our national cricketers gave rise to more A view from the other side of the bar table is one, and let the Furies provide the answer. commentary and column inches than the fail- provided by our first Archon’s View column. ure of our leading politicians to embrace the An anonymous Superior Court judge writes Ingmar Taylor Uluru Statement.