VICTORIAN No. 121 ISSN 0150-3285BAR NEWS WINTER 2002

Launch of the New County Court

Welcome: Justice Robert Osborn Farewell: The Honourable Professor Robert Brooking QC Allayne Kiddle: Victoria’s Third Woman Barrister’s Refl ections on Her Life at the Bar Mr Junior Silk’s Speech to the Annual Bar Dinner Response to Junior Silk on Behalf of Judiciary at Bar Dinner Justice Sally Brown Unveiled R v Ryan ReprieveAustralia’s US Mission Revisited The Zucchini Flower of Queen Street Annual Box Trophy 3 VICTORIAN BAR NEWS No. 121 WINTER 2002

Contents

EDITORS’ BACKSHEET 5 A New County Court and New Insurance Premiums ACTING CHAIRMAN’S CUPBOARD 7 Laws of Negligence — Where to Now? ATTORNEY-GENERAL’S COLUMN 9 Autumn Session Reforms PRACTICE PAGE 11 Amendment to the Rules of Conduct 13 Professional Indemnity Insurance for Former Barristers CORRESPONDENCE 14 Letter to the Editors Welcome: Justice Robert Osborn Farewell: The Honourable Professor Robert Brooking QC WELCOME 15 Justice Robert Osborn FAREWELL 16 The Honourable Professor Robert Brooking QC ARTICLES 21 Launch of the New County Court of Victoria 32 Allayne Kiddle: Victoria’s Third Women Barrister’s Reflections on Her Life at the Bar NEWS AND VIEWS 40 Verbatim 41 Mr Junior Silk’s Speech to the Annual Bar Mr Junior Silk’s Speech to the Dinner Annual Bar Dinner 48 Response to Junior Silk on Behalf of Judiciary at Bar Dinner 50 R v Ryan 51 Justice Sally Brown Unveiled 52 ReprieveAustralia’s US Mission Revisited 52 Lethal Lawyers 55 Union Confidence Justice 56 Angola 56 Choosing Death 58 The Gift of Time 59 A Bit About Words/Doublespeak 61 Lunch/Caterina’s Cucina: The Zucchini Flower Allayne Kiddle Justice Sally Brown Unveiled of Queen Street SPORT 62 Royal Tennis/Annual Box Trophy LAWYER’S BOOKSHELF 63 Books Reviewed 66 CONFERENCE UPDATE

Cover: The new County Court building — the new face of justice. The launch ceremony addresses follow at pages 21–30. Annual Box Trophy

3 Victorian Bar Council

VICTORIAN BAR COUNCIL Chair of Standing Committees of the Bar Council for the year 2001/2002 Aboriginal Law Students Mentoring Committee *Executive Committee B Kaye QC, S.W. Clerks: Applications Review Committee R *Redlich QC, R.F. (Chairman) W Brett QC, R.A. H *Rush QC, J.T. (Senior Vice-Chairman) Child Care Facilities Committee W *Brett QC, R.A. (Junior Vice-Chairman) D McLeod Ms F.M. B *Zichy-Woinarski QC, W.B. Conciliators for Sexual Harassment and Vilification G *Howard QC, A.J. F Rozenes QC, M. F *Dunn QC, P.A. B *Ray QC, W.R. Counsel Committee A *Shand QC, M.W. H Rush QC, J.T. F *Dreyfus QC, M.A. Equality Before the Law Committee B *McMillan S.C., Ms C.F. W Brett QC, R.A. A *Delany C.J. Ethics Committee G *O’Bryan J. B McMillan S.C., Ms C.F. H *McGarvie R.W. (Assistant Honorary Treasurer) A *Richards Ms J.E. Human Rights Committee H *Bourke Ms K.L. D Fajgenbaum QC, J.I. D *Riordan P.J. Legal Assistance Committee W *Neal D.J. G Howard QC, Anthony J. S *Duggan P.T. Legal Education and Training Committee D *Gorton J.P. B Ray QC, W.R. D *Gronow M.G.R. Past Practising Chairmen’s Committee S *Clarke P.A. D Francis QC, C.H. D *Attiwill R.H.M. (Honorary Secretary) D *Moore Ms S.E. (Assistant Honorary Secretary) Professional Indemnity Insurance Committee A Shand QC, M.W. Ethics Committee Victorian Bar Dispute Resolution Committee B McMillan S.C., Ms C.F. (Chair) S Martin QC, W.J. S Willee QC, P.A. Victorian Bar Theatre Company Steering Committee S Lally QC, W.F. A Derham QC, D.M.B. H Young QC, P.C. B Hill QC, I.D. P Bartfeld QC, M. F Dreyfus QC, M.A. G Lacava S.C., P.G. H Lewis G.A. A Macaulay C.C. A Delany C.J. (Secretary) F Quigley, Ms M.L. G Judd, Ms K.E. D Riordan P.J. F Johns Ms S.L.

VICTORIAN BAR NEWS Editorial Committee Printed by: Impact Printing Editors John Kaufman QC, Olyvia Nikou SC, 69–79 Fallon Street, Gerard Nash QC and Paul Elliott QC Carolyn Sparke, Georgina Schoff, Paul Brunswick Vic. 3056 Duggan, Judy Benson, Nicola Gobbo This publication may be cited as Editorial Board David Johns (Photography) (2001) 121 Vic B.N. Julian Burnside QC Advertising Graeme Thompson Published by The Victorian Bar Inc. Owen Dixon Chambers, Publications Management Pty Ltd Editorial Consultant 205 William Street, Melbourne 3000. 38 Essex Road, Surrey Hills, David Wilken Victoria 3127 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 5 Editors’ Backsheet A New County Court and New Insurance Premiums

HE new County Court building was officially opened on 31 May 2002. TAfter the official opening by the Premier in the morning, there followed a ceremonial sitting of the Court in the afternoon and a reception in the Grand Hall. The opening of the new Court is the culmination of many years of hard work by Chief Judge Waldron together with his supporting committee headed by Judge Michael Strong. As the Chief Judge pointed out in his address to the ceremonial sitting, the original Court built in 1969 did not meet the demands of the Court from its very opening. The Court was too small, the lifts too few and the design public and lawyer unfriendly. Over the years the building on the corner of William and Lonsdale Streets had to be augmented by other temporary premises. Those who practise in the County Court will not have fond memo- the most judges by their first names. conference breaks in April and the four- ries of the temporary premises in the old Results of the competition have been sup- week July vacation. Corporate Affairs building in Little Bourke pressed. Street. Aptly named “whiplash valley” The photographs and speeches in this PROFESSIONAL INDEMNITY these temporary premises were even edition of Bar News testify to what is INSURANCE more inhospitable than the 1969 building. hoped to be a great improvement in the The withdrawal of Suncorp Metway from There followed the move to 565 Lonsdale functioning of the Court. It is to be hoped the provision of professional indemnity for the civil Courts. This building housed that with a move to new premises there insurance to barristers caused quite both the offices of the DPP and civil, jury will be an improvement in the listing of a kerfuffle. Initially Suncorp Metway and Workcover Courts. Again, the design cases in the Court. Despite many efforts decided that it was not in the company’s left much to be desired. Thronging about to improve listings, the general consensus commercial interest to continue profes- the dull corridors of this Court, whilst of barristers is that it is still very difficult sional indemnity insurance. This caused a attempting to “get on”, was never one of to get a civil or criminal case on. great problem as it appeared that no other the most exhilarating experiences in life The sight of a reserve civil Court insurance company really wanted to take for barristers, solicitors and clients. crowded with enough barristers to fill up the slack. Then Suncorp Metway had Early opinions of the new Courts are fourteen reserve cases should be avoided. a change of heart and decided to re-enter glowing. Certainly the judges are happy Criminal barristers complain that even the market. At first this all appeared too with their new chambers. Although there with the new manner of listings, having late. Only one insurance company was are some minor quibbles about toilet set much time aside to prepare a long approved by the Legal Practice Board facilities. The entrance and the Great Hall criminal case, often that case is adjourned to provide professional indemnity insur- together with the ceremonial Court are or is unable to be reached. ance. This gave Affinity Risk Partners a excellent additions. The Court has been The task of moving the Court was a monopoly of the market. designed with an eye to security, with the mammoth one. Hundreds of boxes of files Much shock and horror was caused judges’ chambers being protected from together with much of the paraphernalia when that company’s application form the public. and belongings of judges and staff alike was delivered to barristers. To begin with The Court has grown from humble needed to be moved across from one Parliament had to extend the period for beginnings to now boast fifty-five sitting corner of Lonsdale Street to the other. It insurance because of the difficulties in judges. Perusing the assembled judiciary is obvious that the move and the reloca- getting insurance companies to provide at the ceremonial opening provided quite tion program was a difficult one as it was cover. When that cover was to be pro- a spectacle in purple. Those barristers necessary to close the Court down for two vided, many were surprised at the enor- lucky enough to be invited held a com- weeks. It certainly gave many barristers a mous increase in premiums which were petition to see who could claim to know tax break especially coupled together with linked to income, together with the fact

4 5 that the insurance pool was to be limited ple the bad risks? It could be argued that for after dinner speech skills. In the future to $15 million with a maximum insurance those who earn larger incomes are more our Bar could allow Mr Junior Silk to make of $1.5 million before top-up cover was skilled and competent and should not be a speech which is not necessarily the needed as extra cost. penalised. An argument is put that the entertainment of the evening. Whatever Luckily, after strong representations premiums should be based on past claims the case it is imperative that the speeches by certain members of the Bar, the Legal history rather than income. Whatever the at the Bar dinner remain to be seen as Practice Board had a rethink. Suncorp merits of the argument it appears that the entertainment or else the numbers will Metway was allowed back to compete present system of a sliding scale is here continue to drop. with Risk Affinity Partners. Many who to stay. were already insured with Suncorp WE WERE WRONG Metway were happy with this arrange- BAR DINNER Sometimes it is difficult to decipher pho- ment. Affinity Risk Partners then with- The Bar dinner was an excellent occa- tographs, especially when not viewing the drew its facility from the market; leaving sion this year. However, there is a general original. The Editors apologise for some those who insured with the new company rethink going on about its format. Numbers misnomers in the last edition. At page in a strange situation. fell again this year. Mr Junior Silk John 45 we made an understandable mistake However, the question remains as to Langmead SC, whose speech is included when we confused the President of the why there has been such a hefty rise in in this issue, was asked not to follow the Court with Justice P.D. Phillips of the premiums, in some cases being two to usual format of referring to each guest in Court of Appeal. The photograph appear- four times the size of last year’s premium. his speech. Instead he was asked to speak ing on that page should refer to President Is the rise in professional indemnity about a learned legal topic. Luckily John Winneke rather than Justice Phillips. premiums linked to the overall rise in saw the error of this approach and gave Further, at page 61 of the prior edition insurance premiums caused by the public a witty speech not upon a learned legal we mistakenly stated that Peter Rattray liability insurance disaster? According topic. Perhaps our Bar could follow the was presenting the Neil McPhee perpetual to certain federal government ministers, example of Sydney which recently staged trophy for yachting. As the photograph on greedy lawyers were responsible for the its centenary Bar dinner with a 900 person that page testifies the trophy was actually increase in this area of insurance by mak- turn up. The Sydney Bar does not depend presented by Melanie Sloss. We apologise ing scurrilous and unfair claims. Therefore upon Mr Junior Silk as the main speaker for such errors. indirectly have the greedy lawyers caused but chooses a person who is well known The Editors their own premiums to increase? Or have the increases been caused by greedy insurance companies using these reasons as a pretext? The Chartered Institute of Arbitrators It was interesting to see the views Australian Branch of Channel 9’s television program “60 (ABN 65 931 837 789) Minutes”. Initially that magnificently fair program blamed greedy lawyers for ENTRY COURSE — MELBOURNE the increase in premiums. Their com- Thursday 7 November to Friday 8 November 2002 mentators trotted out their usual array of clichés attacking the legal profession The Branch will conduct an Entry Course, leading to Associate Membership (ACIArb). and then bleated on about public liability The two-day program, to be held at the Victorian Bar Mediation Centre, consists of a and medical claims being abolished or written assignment, lectures and tutorials and concludes with a written examination. severely capped. Course fee: $1500 (incl. GST) Then there appeared to be a change of heart. A recent program had a rethink FAST TRACK PROGRAM TO FELLOWSHIP ASSESSMENT and interviewed some of the lawyers to put the other side of things. Perhaps it WORKSHOPS FOR LAWYERS — MELBOURNE was the insurance industry through its Saturday 9 November to Sunday 10 November 2002 own mismanagement in the HIH and FAI The Branch will conduct Assessment Workshops for suitably qualified candidates who disasters that have brought this situation are lawyers with at least 10 years litigation experience and who otherwise have sufficient about. It is clear that the statistics do not experience in arbitration. The two-day program consists of small discussion groups, in support the claims of the insurance com- which candidates will be expected to demonstrate knowledge and skill in arbitration. panies that increased claims and pay-outs Those who pass the Assessment will qualify for Membership (MCIArb). Qualified candi- are the cause of increased premiums. The dates who subsequently pass the Award Writing examination and have completed and commentators then got stuck into repre- passed the Institute’s Personal Assessment for Fellowship to the satisfaction of the sentatives of the insurance companies. Council may apply for Fellowship (FCIArb). It was pointed out that many insurance companies profits have increased dramat- Course fee: $1500 (incl. GST) ically even in the light of 11 September  and the collapse of HIH. But what is the rationale behind link- Further details from Executive Officer: ing premiums to the size of a barrister’s Tel. (02) 9988 3563 Fax. (02) 9988 3571 E-mail: [email protected] income? Those earning larger incomes pay larger premiums. But are these peo-

6 7 Acting Chairman’s Cupboard Laws of Negligence — Where to Now?

N 1988, in a trial lasting some eight his curriculum vitae. Councillor McIntosh months, Daryl Williams QC appeared was reported (Financial Review, 3/7/02) Ion behalf of Messrs Peter Heyes and as putting much of the blame for the so- Tim Barrow in the Supreme Court of called public liability crisis with the legal Western Australia. Both men had con- profession: tracted mesothelioma as a consequence of exposure to asbestos at the notorious There is extraordinary opposition in a cov- Wittenoom Mine. Peter Heyes was to die ert way, from the legal profession because before the completion of the trial. Tim we are talking about money . . . They are Barrow died within two months of the denying the legal profession should bear judgment. any responsibility. The majority of people Justice David Ashley (then Ashley out there in lawnmower land regard that as QC), who appeared with Williams QC for complete nonsense. the plaintiffs, later described this trial as the most difficult he had appeared How can the profession or the commu- in. Two previous cases taken on behalf nity be expected to accept recommenda- of Wittenoom workers had failed in the tions of a panel when its members express Western Australian Supreme Court. Every such prejudiced and illogical views? point was disputed. The comprehensive Another member of the panel is NSW submissions on behalf of the plaintiffs surgeon, Don Sheldon. He is referred to in covered content of duty of care, foresee- the Financial Review as: ability, causation — every element of the tort of negligence. . . . an outspoken member of stricken Justice Rowland, in a 223-page judg- As if all this were not enough, the insurer United Medical Protection [who] ment, found for the plaintiffs. The analy- reference also includes professional favours limiting liability, capping damages, sis and details of the judgment, including negligence, including specifically medi- reducing the statute of limitations, and the examination of the development of cal negligence; the exemption or limita- putting in place a more narrow definition the law of negligence, remains a valuable tion of liability of eligible not-for-profit of negligence. exposition. organisations from negligence clams, Now Williams as Federal Attorney- the interaction of the Trade Practices Unfortunately the terms of reference General is part of a government that has Act, and proposed amendments thereto; do not require any investigation of the selected a New South Wales based panel the imposition of a three-year limitation insurance practices of the NSW-based of so-called “eminent persons” to review period, with protections for minors and UMP. For years UMP has been the subject the laws of negligence. The terms of refer- the disabled; quantum of damages; limita- of criticism over the prudential manage- ence are such that one can readily assume tion of the liability of public authorities; ment of its fund. Its collapse is a disaster, that the basis of the submissions relied and proposals to replace joint and several but not the fault of lawyers. Australian upon by Williams in 1988 concerning neg- liability with proportionate liability in rela- taxpayers apparently are to bear the ligence, and accepted by Justice Rowland, tion to personal injury and death. UMP burden. It is relevant to note that will be decimated, along with High Court No doubt the Federal Attorney and the a Victorian fund responsible for insur- authority painstakingly developed since Minister for Revenue, who announced the ing Victorian doctors recently increased 1988. panel and terms of reference, have great premiums, not because of any increase The panel is to: confidence in those appointed to the in litigation or damages but because of panel who, in the space of less than three the state of the insurance market after . . . enquire into the application, effective- months, must re-write what the common 11 September 2001 and problems with ness and operation of common law princi- law courts have developed in Australia reinsurance. ples applied in negligence to limit liability over a century. Mr Sheldon would appreciate the man- arising from personal injury or death includ- One of the four “eminent persons” is a datory direction of the terms of reference ing: the formulation of duties and standards Mr McIntosh, the Mayor of Bathurst, NSW. that the panel: of care, causation, the foreseeability of His qualifications for eminence in rela- harm, the remoteness of risk, contributory tion to the mammoth task have not been . . . must develop and evaluate options negligence, and allowing individuals to disclosed. Qualities of an open mind and for a requirement that the standard of assume risk. impartial approach would not form part of care in professional negligence matters

6 7 (including medical negligence) accords Justice Mason (Financial Review, 30/5/ January 1999] on the High Court decision with the generally accepted practice of the 02). Sir Anthony urged governments: in Chappel v Hart he stated: relevant profession at the time of the negli- . . . to think more carefully about pro- gent act or omission. posed changes to the legal system that he The legitimacy of the common law does described as a dangerous, knee jerk reac- not rest on the way the judges who make One may well ask why “enquire” at all? tion. it are chosen, nor on political ideas of The medical profession has never accountability and responsibility, but on the accepted, and has consistently misrepre- Sir Anthony referred to the risk of strength of the reasoning by which common sented, the High Court decision in Rogers rushing to adopt solutions that would law rules are supported. v Whitaker (1992) 175 CLR 479. The ratio introduce greater uncertainty into the law is hardly alarming. In deciding the appro- of negligence. When one appreciates that The common law has that legitimacy priate duty of care, professional opinion by the terms of reference, the “eminent in Australia. Now Cane must participate in medical practice will be influential and persons” must also look into joint and sev- in this peremptory attack on the frame- often decisive. But it is not determinative, eral liability, proportionate liability, and work, concepts and principles of the law particularly on the issue of whether the voluntary assumption of risk, the task, of negligence contained in the terms of patient has been given relevant informa- the time and the lack of expertise are the reference. tion, because what accords with practices cause of grave concern. The Victorian Bar along with the Law of the profession may not conform with The premise justifying the existence Council of Australia, over the course of the standard of reasonable care demanded of the panel has never been properly 2002, has clearly demonstrated that litiga- by the law. The Commonwealth’s terms of enquired into, let alone established. tion cannot be blamed for premium explo- reference seemingly demand a return to The preamble to the terms of reference sion. The so-called “reform of common the opinions of “medical men” and the states: law” is no solution. Bolam principle. The legal profession is concerned with Justice D. Ipp is to chair the panel. He The award of damages for personal injury the hardship caused by extraordinary is now an acting judge of the New South has become unaffordable and unsustainable premium increases. The Bar remains com- Wales Court of Appeal. The magnitude of as the principal source of compensation for mitted to a constructive and reasonable the task set by the terms of reference that those injured through the fault of another dialogue on all these issues. The Bar will have predetermined the basis for chang- . . . work with every other legal professional ing the laws of negligence, the reporting body in the Law Council to prepare full date of less than three months, and the In other words, litigation and the law and detailed submissions to this enquiry. public statements of fellow panel mem- of negligence are responsible for the However, the terms of reference for the bers, apparently cause no embarrassment sudden and massive increase in insur- review, the composition of the panel, and for the acting judge. The public assurance ance premiums. The premise has never the predetermined result, leave little pros- of Ipp, J concerning consulting “as widely been substantiated. Insurers, through pect for dialogue that is reasonable, much as possible” is hardly convincing when, in the Insurance Council of Australia, still less constructive. the same breath, he can state the prede- refuse to validate claims as to the role of This three-month enquiry is a travesty termined outcome: litigation in premium rises by “opening the of process. It is merely part of a federal books”. government strategy in the ongoing media It’s very apparent from the first paragraph The fourth member of the panel, circus which, per usual, puts polls and [of the terms of reference] what the govern- Professor Cane, has written extensively votes ahead of leadership and rights. ment has in mind. in academic texts on the theory of the law of negligence. How he will cope with Jack Rush QC Why bother with submissions? the task set by the federal government Acting Chairman Not for Justice Ipp the cautions rec- is difficult to comprehend. In a case note ommended by former High Court Chief in the Law Quarterly Review [Vol 115,

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8 9 Attorney-General’s Column Autumn Session Reforms

HE Bracks Government has con- Furthering the Government’s deter- tinued to deliver on its promises mination to explore new ways of seeing Tto restore the justice system, and justice done, I opened Victoria’s first drug indeed democracy, from the shackles of court in May. My column in last season’s the Kennett years. Initiatives such as the Bar News detailed this exciting and mod- construction of the new County Court, ern initiative to reduce drug dependency the creation of Koori and Drug Courts, the and its destructive effects in our com- measured review into street prostitution munity. in St Kilda, and the introduction of the It demonstrates the State Government’s Crimes (Workplace Deaths and Serious strong commitment to be tough on crime Injuries) Bill, demonstrate our continued while identifying and responding to the commitment to creating a fair, accessible causes of crime in our society. As a gov- and understandable justice system for all. ernment, we recognise that traditional Such reform can only be achieved by sentencing approaches are simply not broad consultation, and I continue to wel- working to break the cycle of drug use come and encourage the valuable input of and offending, and we are keen to tackle the legal profession. Broad consultation drug problems up-front. undoubtedly involves both favourable and It may be tempting to appeal to com- critical responses from various sectors of munity concerns of drug-related crime the public. But searching for a balance by advocating harsh punishment and of community expectations provides the ogy offers. Some of these opportunities mandatory sentencing. However, it is necessary impetus for effective and rel- will also flow from the Criminal Justice my view that mandatory sentencing, in evant reform. Enhancement Project which will provide whatever guise, breaches the separation For me and many others of the legal a more efficient technology system for of powers, judicial discretion and denies profession the opening of the County access to an electronic document man- absolutely the ability of courts to treat the Court in May was a momentous occasion agement system. causes of crime. Unlike the Opposition, on the judicial calendar. It was both a Beyond new buildings and greater this Government accepts the challenge proud and honourable day for all involved technology, I remain dedicated to mak- to balance the need between punishment and I encourage all those who have not ing the justice system more responsive and deterrence on the one hand and on yet done so to wander through the mag- to the needs of Aboriginal people in the other, a system which is fair and offers nificent new building. order to address the discrimination and hope for rehabilitation and integration The building itself symbolises in disadvantage experienced by indigenous back into the community. many ways the important role of the Victorians. Another area where the State justice system to the people of Victoria. Currently Aboriginal people are 11 Government has been prepared to take It encourages courts to be viewed by the times are more likely to be imprisoned up the challenge for reform is the issue of community as modern and accessible. than non-Aboriginal people, and the Koori street prostitution in St Kilda. The previ- This is a critical objective of the Bracks Court will seek to tackle such dispro- ous Government put this issue into the Government and is absolutely essential portionate figures by providing a forum ‘too hard’ basket, despite numerous calls if we are to maintain public confidence in where the Aboriginal community has for action from the Port Phillip Council, the judicial system. input into the sentencing process through local residents, and welfare agencies. The construction of the County Court is an Aboriginal elder/respected person and In establishing the Street Prostitution but part of a major commitment to restore an Aboriginal justice worker. Advisory Group, I asked that it develop a access to modern and efficient court infra- Input by the offender’s community is package of workable measures to address structure throughout Victoria, stripped both a more appropriate and more effec- the issue of street prostitution in the City away by the Kennett Government. Indeed tive method of decision making than tra- of Port Phillip. I am pleased to say that we are currently ditional judicial decision making. Indeed The State Government’s commitment constructing new courts at La Trobe the courts and the community must to developing law reform in consultation Valley, Mildura and Warrnambool. recognise that present sentencing prac- with the community is amply demon- By providing modern courts, the tices are doing little to reduce the rate strated by this Group’s work and I am Government is seeking to ensure access to of offending and that more creative uses delighted that their efforts have produced justice for all Victorians. The Government of the sentencing process are needed to a very workable local solution for a local is also keen for all courts to take full enable indigenous communities to exer- problem. advantage, as the new County Court cise greater ownership and control over The Group’s final report accepts that does, of the new opportunities technol- sentencing outcomes. street prostitution cannot be eradicated

8 9 and adopts harm minimisation and do not care about workplace health and Parties indicating that they are prepared increased community safety as its pri- safety and are grossly negligent in the to go soft on crime in the workplace. orities. It sets a comprehensive package of workplace. It addresses behaviour that Unlike the Opposition, this Government measures to effectively manage street sex is so reprehensible that any Victorian, does not intend to stand by while further work in St Kilda and minimise the harm including the Liberal and National Party workplace deaths and serious injuries caused to street sex workers, residents, members, should be appalled to see it go occur, and we remain committed to imple- traders and other community members. unpunished. menting our promise for all Victorians to The Opposition again demonstrated While the Bill successfully passed enjoy a safe workplace. The legislation their zero understanding on critical social through Parliament’s Legislative Assembly, was developed after an extensive consul- issues by advocating zero tolerance for it has since been blocked in the Legislative tation process and it refl ects community street workers. Indeed Denis Napthine’s Council with the Liberal and National expectations. I am determined to continue “solution” of having police lock up street the fi ght for the right of every Victorian to workers and the naming and blaming head to work and return home safely that publicly of clients appears to me to be a In the various stages night. throwback to the days when sinners were More generally, I remain dedicated to publicly stoned. of review, consultation, reforming and improving the justice sys- Somewhat ironically though, the legislation and tem throughout the State. In the various Opposition is not prepared to lock up implementation, I seek stages of review, consultation, legislation corporate criminals nor even charge those and implementation, I seek your ongoing companies and individuals responsible for your ongoing assistance assistance and I welcome any of your sug- causing deaths and serious injuries in the and I welcome any of your gestions for ensuring access to justice for workplace. suggestions for ensuring all Victorians. The Crimes (Workplace Deaths and Serious Injuries) Bill is targeted spe- access to justice for all Rob Hulls MP cifi cally at those rogue employers who Victorians. Attorney-General

10 11 Practice Page Victorian Bar News Supplement: Amendment to the Rules of Conduct

HE Victorian Bar News is the publication of material concerning cur- “Conditional Fee Agreement” official publication of the Victorian rent or potential proceedings. The term means an agreement whereby a brief is TBar and is used to inform members of “current proceedings” is already defined accepted on the basis that the barris- the Bar and other practitioners regulated in Rule 9. The amendment introduces a ter will not be paid any fee unless the by the Victorian Bar RPA of professional definition of “potential proceeding” and client succeeds to an extent set forth practice matters. From time-to-time it that definition is published together with in the agreement being an agreement may be necessary to issue a supplement the amending Rules. In effect, the purpose that conforms with the requirements to Bar News in order to comply with the behind the new provisions is to prevent of the Legal Practice Act 1996 relat- notification requirements of the Legal counsel seeking to use the media, in any ing to conditional fee agreements. Practice Act 1996 (Vic). On 30 May way, to advance, directly or indirectly, the 2002, Victorian Bar News Supplement cause of his or her client. Rules of Conduct re Mediators 07/2002 was issued to advise regulated (1) Insert Rule 5A to “Part 1 — practitioners of the Bar of a change to the Disclosure Rule Preliminary, Application of Rules” Rules of Conduct (practice rules) of the The current Rule provides that a “dis- “5A. The following rules do not apply Victorian Bar to take effect on 1 July 2002. closable event” includes a conviction or to a barrister when acting as a Details of the changes follow. finding an offence is proved against the mediator: barrister “where the maximum penalty . . . (a) Rules 10-73; CHANGES TO THE PRACTICE RULES is a term of imprisonment of more than 12 (b) Rules 84-112; Recently the Bar Council made a number months . . .” The amendment alters those (c) Rules 126-192.” of amendments to the Practice Rules. words to a “maximum penalty . . . is a term (2) Insert Rules 198 and 199 as Part XI These will all take effect from 1 July of imprisonment of 12 months or more.” — Rules Regulating Barristers as 2002. This is a significant alteration. Mediators: “198. A mediator must disclose to all Mediators Conditional Fee Agreement parties to the mediation any For some time there has been concern The Legal Practice Act 1996 provides for interest or association, personal, expressed as to the extent, if at all, that additional costs agreements: s.97. Counsel professional or commercial, the Rules apply to mediators. After seek- have for quite some time been briefed on which he or she has or may have ing advice, it was determined that the such a basis. Accordingly, it was thought in or with: appropriate course was to specify those appropriate to include in the Rules provi- (a) the outcome of the dispute Rules which do not apply to a barrister sions concerning conditional fee agree- the subject of the media- when acting as a mediator. Further, it ments. tion; or was also thought appropriate to require a (b) the parties to the media- mediator to disclose any interest he or she AMENDMENTS TO THE PRACTICE tion. may have in the mediation. Similarly, the RULES OF THE VICTORIAN BAR 199. A mediator has the same obli- amendments make it clear that a media- EFFECTIVE 1 JULY 2002 gations of confidentiality, with tor is required to maintain confidentiality respect to communications concerning the mediation. Interpretations made in the course of a media- (1) Insert definitions of “Potential tion, as he or she would have if Media Rules Proceeding” and “Confidential Fee such communications had been The Media Rules have been under review Agreement” to Part I — Preliminary, made by a client to him or her as for quite some time. The existing Media Interpretation, Rule 9(f) — a barrister.” Rules had caused some problems both for “Potential proceeding” means the Ethics Committee and counsel. Draft proceedings which have not been Media Rules Rules were prepared and circulated by the commenced but where there is infor- (1) Repeal Rules 58 to 61 (both inclusive) Australian Bar Association. The new Rules mation which has been publicised that and in lieu insert new Rules 58 and 59 are based on the Rules as settled by the such process is imminent or where “58. (a) A barrister must not Australian Bar Association. In essence, there is a very real likelihood that publish or take any step they provide limitations with respect to process will be instigated. towards the publication of

10 11 any material concerning in open court, if per- client’s own position for publica- any current or potential mitted by copyright tion.” proceeding which: and clearly marked (i) is inaccurate; so as to show any Disclosure Rule (ii) discloses any confi - corrections agreed (1) Amend Rule 197(a) (iv) by replacing dential information; by the other parties the words “more than 12 months” with (iii) appears to or does or directed by the the words “12 months or more”. express the opinion court; of the barrister on the (iv) copies of exhibits Conditional Fee Agreements merits of the current admitted in open (1) In Rule 98 insert at the start of sub- or potential proceed- court and without para (b): “subject to para (d)”. ing or on any issue restriction on access; (2) In Rule 98 insert: arising in the pro- (v) answers to unsolic- “(d) the provisions of rule 200 ceeding, other than in ited questions con- relating to Conditional Fee the course of genuine cerning the current Agreements applies” educational or aca- proceeding and the (3) By the addition of Part XII “Conditional demic discussion on answers are limited Fee Agreements” matters of law. to information as to (4) By the addition of rule 200: (b) Subject to sub-rule (a) and the identity of the “A barrister may return a brief any court rule or order to parties or of any wit- accepted under a conditional fee the contrary a barrister ness already called, agreement if: may publish or assist the the nature of the (a) the barrister and instructing publishing of material con- issues in the case, the solicitor, if any, consider on cerning a current proceed- nature of the orders reasonable grounds that the cli- ing by supplying only: made or judgment ent has unreasonably rejected (i) copies of pleadings given including any a reasonable offer of compro- or court documents reasons given by the mise contrary to the barrister’s in their current form, court and the client’s advice; which have been fi led intentions as to any (b) the client has refused to pay and which have been further steps in the the barrister a reasonable fee served in accord- case; for all work done or to be done ance with the court’s provided that where the after the client’s rejection of the requirements; barrister is engaged in the offer; (ii) copies of affi davits current proceeding, the (c) the client was informed before or witness state- barrister does so only with the barrister accepted the brief ments, which have the consent of the client of the effect of this rule; and been read, tendered fi rst obtained.” (d) the barrister has the fi rm view or verifi ed in open (2) Amend Rule 59. that the client has no reason- court, clearly marked “59. A barrister will not have able prospect of success or of so as to show any breached Rule 58 simply by achieving a better result than parts which have not advising the client about whom the offer. been read, tendered there has been published a (5) By the addition of rule 201: or verifi ed or which report relating to the case, “Nothing in this Part entitles the bar- have been disallowed and who has sought the bar- rister to enter into a Conditional Fee on objection; rister’s advice in relation to that Agreement in criminal proceedings or (iii) copies of transcript of report, that the client may take proceedings under the Family Law evidence given appropriate steps to present the Act 1975.”

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12 13 Practice Page Professional Indemnity Insurance for Former Barristers

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12 13 Correspondence

power and the administration of justice? — and this is part of the problem — wit- Bigger War Games Apart from the constitutional impera- ness statements, and even issues relating The Editors tive, members of the Bench have by to discovery and court books. The only the creation of their own rules of court justification for procedures before the Dear Sirs assumed responsibility for the way tri- trial is to improve the procedure of the N the course of his interesting observa- als are prepared and conducted. They trial, and in matters of substance counsel Itions (in his letter of 12 February 2002) have now expressly accepted managerial assume responsibility for most if not all Mr Greenwood SC says that a major prob- responsibility for the way in which their those procedures. lem with current litigation is the appalling lists or dockets are managed. Justices of It is therefore difficult to lay too much failure of some solicitors to bring any superior courts do not say that they are responsibility on solicitors for the way proper critical legal judgment to bear on impotent to deal with the professional that the trial lawyers run trials. In truth, the instructions they are given. There forces interfering with the due adminis- it is hard to sustain the notion that a court has apparently been a “dumbing down” tration of the law. Who would have dared cannot rise any higher than the solicitors of one branch of the profession over the to say to Mr Justice Crockett that things who instruct in it. But if Mr Greenwood past twenty years as some solicitors have had got so bad with the standards of local is saying that budgetary pressures on become preoccupied with business. solicitors that it would be hopeless for His some solicitors are adversely affecting For the purpose of this discussion, Honour to try to get on top of his Geelong the way they approach litigation, I agree and only for that purpose, I will accept list for that month? For that matter, how with him. The big firms have economic the suggestion that solicitors have been would you like to turn up in front of any imperatives that are awful and inexorable. subject to a generational slide (that other Magistrate and say that the court would The problem is that the judges are play- branches of the profession have presum- not be able to get under way on time ing into their hands by giving them bigger ably been immune to), but, even so, the because your solicitor was late back from war games to play with, and bill for. That question remains — are trial lawyers lunch? It is the job of the judges to keep is the big change, as I see it, over the last responsible for the proper running of order in their courts and they could not, twenty years. trials? By trial lawyers, I mean the Bench and would not, cop out by claiming some I should add that I am speaking only of and the Bar. lawyers have got dumber. Melbourne, and that the little experience Under our constitutional dispensation, As a matter of law, members of the that I have had, on either side of the pro- State or Federal, the judges are responsi- Bar are responsible for the conduct of fession, with practice in Sydney suggests ble for the proper running of the courts the trial in which they are briefed. As a that it is different — deeply and insolubly (or, at least, such courts as government matter of the rules of court, counsel have different — up there. allows them). Can you imagine telling responsibility for the pleadings they sign. a Chapter III justice — say, Sir William As a matter of practice, their retainer in Yours sincerely Deane — that it is not the judiciary, but the proceedings means that they assume Geoffrey Gibson the parliament or the executive, that is responsibility for the conduct of the pro- responsible for the due exercise of judicial ceeding from beginning to end, including

14 15 Welcome Supreme Court Justice Robert Osborn

the Rural School at the University of Robert took silk in 1994 by which time Melbourne, a school for the children of he had developed a specialist practice in resident academics who included among planning and environmental law, local their number His Honour’s father, the government law, and valuation and rat- Reverend Doctor Eric Osborn, the distin- ing cases. At the time of his appointment guished theologian and stalwart of Queen’s His Honour was one of the leaders of the College. Robert attended classes with the Bar in these areas. He also represented singer and film star Olivia Newton-John, the Murray Darling Basin Commission in whose talents inspired His Honour to the long running claim by the Yorta Yorta nothing more than a spirited rendition Aboriginal group for declarations under of “Good Old Collingwood Forever” on the Native Title Act over the waters of the rare occasions that have justified that the Murray and Goulburn Rivers and the irritating tune. Crown lands of the river valleys, master- After the succession of schools pre- ing in the course of the case complex viously referred to His Honour ended questions of water law. In this task His up at Wesley College, from which he Honour was initially assisted as junior matriculated with honours in Greek and counsel by Justice Warren until her Roman History and Latin. From there he appointment to the Supreme Court. Briefs went into residence at Queen’s College, for the MDBC are now understandably and graduated from the University of much in demand. Melbourne with honours degrees in both His Honour did much pro bono work Arts and Law, later completing a Masters for the Environmental Defenders Office of Laws Degree. He won the Goethe Prize ranging from defending the rugged east- USTICE Robert Osborn was wel- and the Wilson Prize as the top graduate ern coastline of Phillip Island to protecting comed to the Supreme Court by a in German. His language skills served him rare (if little known) species like the Mable Jlarge gathering of practitioners, fam- well on later occasions, such as the IBA Gully Daisy Bush and the Kilsyth Spider ily and friends on 15 May 2002. Conference in Melbourne some years Orchid. His Honour also represented the The Chairman observed that His ago when he was called on to assist with Kew Cottage Parents Association during Honour shares with Lord Nelson the the entertainment of guests from Vienna the coronial inquest into the tragic fire dubious distinction of being the son of a whose propensity for partying lead to at Kew Cottages that claimed the lives of parson. This in fact was the excuse prof- severe depredations upon their host’s nine disabled residents. fered by Robert to a succession of loyal cellar. His Honour has been supported but baffled secretaries as the reason for After serving articles with Oswald Burt throughout his career by his wife Jane, his totally illegible handwriting. It appears & Co His Honour signed the Bar Roll in who is a professional planner and a mem- that in his formative years Robert was 1975. He read with Graeme Crossley, ber of VCAT, and the two apples of his moved through a succession of parishes in now Judge Crossley of the County Court, eyes, his daughters Sophie and Genevieve. country Victoria, necessitating a change under whose tutelage he mastered a His Honour will bring to the Supreme of school on each occasion and the con- system of quality assessment by means Court qualities of learning, patience and sequent loss of consistent attention to of animal stamps, the highest accolade common sense. His Honour is to be con- the three Rs that might otherwise have being the elephant stamp. This system gratulated on attaining the ultimate produced a fine scripted hand. was administered to a succession of elephant stamp. Robert’s religious inheritance nowadays readers, Michael Hennessy, Christopher manifests itself in the spirit rather than Smale, Arnold Dix, Trevor Cohen and the teachings and practices of the church. Christopher Townshend, and thereafter He is a communicant with nature, and is to a number of juniors. never more at one with himself than when His Honour developed an early practice trekking the foothills of the Himalayas, or in personal injury cases. In his first jury the Andes, or his own beloved Australian trial he represented the employer defend- bush. Robert’s peak in Darien is a rock in ant. Counsel for the plaintiff, known for the Great Dividing Range overlooking the his robust advocacy, introduced the dra- Alps towards Mount Baw Baw, where on matis personae of the case to the jury by occasions he has been known to munch on describing counsel for the employer as a heavy north eastern Victorian red. “that rather studious looking young man His Honour’s early education was at at the other end of the Bar table”.

14 15 Farewell The Honourable Professor Robert Brooking QC

speeches and in other places about his Court to which His Honour was appointed judicial career. Rightly, those who spoke was then a Court comprised of great judges on the subject were unanimous in their and thus that the expectation of those praise. Frequently, the detail was dif- who appointed him was that he would be ferent, but in each case the substance one of them. It was a Court preceding by was the same. Whatever the abilities of years the advent of divisions and the crea- the judges who follow, and it is to be tion of the Court of Appeal. Therefore, assumed that they will be significant, few those who were appointed to it were are likely to match in total or eclipse in expected and able to judge all manner of many respects the contribution of Justice matters at first instance and on appeal at a Brooking to the work of the Court. level of competence which was not always It is not practical in a note such as this replicated in later years. Justice Brooking to record all that can or should be said fitted the mould admirably. He had proved about the work of such a judge. To begin himself just as competent in common law with, it is not possible to gather together juries as he had in equity, and the criminal in a limited space reference to all or even jurisdiction held nothing in store of which a significant number of His Honour’s he would not prove master. He took up important decisions. It is also difficult his role as a judge of the Court with all adequately to convey the profound effect of the ability and enthusiasm for the task which the man has had on those with that one would expect to flow from such a whom he worked and over whom he pre- background. sided. Some of it can be gleaned from the Moreover, once on the Court Justice law reports in which his judgments are Brooking’s capacity for work was sensa- recorded. Some of it is evident in the vari- tional, and it never varied throughout the T is sometimes said of men that none ous curial and administrative structures 25 years of judicial service that followed. is irreplaceable. And, in the sense in he helped shape or to which he otherwise Whether at first instance or on appeal, the Iwhich that is true, it is as true of judges added. But so much of it was also in the approach was always the same. An appar- as it is of other men. When a judge reaches way in which he conducted his Court or ent degree of preparation which could the age of retirement and steps down, otherwise applied himself to whatever only be the consequence of many hours of other judges follow to do the work he did. task was at hand that a proper appre- work, the direction of the trial or debate The Honourable Mr Justice Brooking is a ciation of this judge’s work will remain in a way which reflected a thorough case in point. On 7 March 2002 he reached confined to those who witnessed at least understanding of the issues and, rapidly, the age of 72 years and stood down after something of it at first hand. the production of a judgment which more 25 years of continuous judicial service. It may be noted that Justice Brooking often than not bound skill and hard work Now, other judges have followed to do the was appointed to the Court on 22 February together in a seamless solution to the work he used to do. 1977 at the relatively early age of 46 years problem. It is also sometimes said of some men and that by the time of his appointment Many at the Bar have experienced that their achievements stand out from he had achieved pre-eminence in diverse first hand the effects of that approach. others. Paradoxically, however, that tends areas of practice, including landlord and Sometimes indeed it was so forceful as to to be said less often of judges than it does tenant law, vendor and purchaser law, seem that the result of a case would be the of other men. The qualities of their peers building contracts, trustees and execu- same regardless of any efforts which could and the hierarchy in which judges operate tors, equity, common law, commercial law have been made to persuade. But to reach make the exercise of comparison difficult. and occasionally crime. He was renowned that conclusion would be a mistake. No It is only the most exceptional judges for his scholarship and capacity for hard doubt it is a fine line that divides predispo- whose achievements stand out from the work, and his force of personality and sition from prejudgment. But it is one that rest. Mr Justice Brooking is again a case strength of persuasion as an advocate this judge is most unlikely ever to have in point. His achievements stand out, for were widely admired and respected. crossed. His allegiance to the institutions he has been one of the most exceptional There is no doubt that his appointment of the common law would have rendered judges of the Supreme Court of Victoria. left a significant gap in the ranks of the such a crossing anathema. If a barrister’s At the time of the Justice Brooking’s inner Bar. efforts did not produce a result different retirement, much was said in farewell It is also worthwhile to recall that the to the judge’s predisposition, it was likely

16 17 to be because the predisposition was cor- is vast. It was not exceeded by any of his Ltd (In Liq) [1982] VR 989, where the rect or at least because the efforts were peers and it is of a level to which most question was whether an all moneys mort- inadequate. present day judicial appointees could only gage given to A to secure advances made For most barristers, however, and on hope to aspire. It was the horsepower that by A should be taken to secure other most occasions, it was a treat to appear drove the unflagging engine of his decision debts assigned by B to A, and the decision before this judge. With him, the assump- making from the beginning to the end of was that it did not. The result accords tion that the Court had read the material his judicial career in all jurisdictions, at with commonsense, and thus with what was a reality; not just a line in a mission first instance and on appeals. And it is a one may hope would be the outcome. statement. With him, the presumption mark of its extent and excellence that in But it is the technique of judicial method that the judge knows all the law closely the course of his 25 years judicial serv- employed to achieve the result that makes approximated to reality. One knew that he ice Justice Brooking delivered close to the case remarkable. It begins with an knew what he was doing and in turn that a thousand judgments of which a record assessment of the matter by reference allowed one to get on with the job at hand remains, ranging in subject matter across to mainstream notions of decency and in a way which is not always the case in every facet of the law, and many still stand commonsense. That is followed by a rigor- other places. It was not necessary to say as authoritative precedents. ous analysis of the problem according to things more than once because whatever One early example, in the field of com- legal principle. Finally, there is produced was said was comprehended and consid- pany law, in Re Haughton & Co [1978] VR a result which seemingly as a matter of ered, even if it were not always accepted. 233, is remarkable not only for its quality, course is made to accord not only with That is not to say that Justice Brooking but also as evidence of His Honour’s ability decency and commonsense but also to was without critics. On the contrary, he to achieve in a day or two in the Supreme legal precepts. In later years, the same was as capable as any judge of producing Court the sorts of results which today are technique or something close to it appears occasional forceful criticism from those not always matched in other courts even in many of His Honour’s decisions. The who appeared before him and from those after several months of case management, analysis employed in Spincode, above at with whom he served. But the bulk of that piles of paper, days of debate and months [41] to [59] is but one recent example. criticism was transient and any of it which of reservation of decision. Contrastingly, A third and closely related reason why ever mattered tended to come from those in the law relating to the sale of land, in Justice Brooking will be remembered as who most admired him and then only Nund v McWaters [1982] VR 575, Justice one of the great judges of the Court is concerning matters about which people of Brooking as the junior judge of the Full that he was the sort of judge who saw ability may legitimately, even if emotion- Court produced in the space of just over the value of institutions in the protections ally, sometimes disagree. 10 pages a comprehensive and compre- which they afford to all members of soci- Justice Brooking’s contribution to the hensible synthesis of an array of difficult ety, regardless of their place in society, work of the Court was not confined to legal conceptions which had to that point rather than the privilege which institu- the realm of judging. He was a tireless defied complete exposition. In the crimi- tions sometimes create for the few; and worker and leader of judicial committees. nal law, Justice Brooking as a member of he shaped his judgments accordingly. His His abilities as an administrator were sig- the Court of Criminal Appeal and later of Honour’s judgment in Magistrates’ Court nificant. He served upon and at various the Court of Appeal delivered more than of Victoria at Heidelberg v Robinson times led the Rules Committee and the 300 judgments containing incisive exposi- (2000) 2 VR 233 is an inspirational exam- Library Committee, and he was active on tions of legal principle. For a recent, pow- ple of the worth that he placed upon insti- the Court’s Executive. He managed the erful example, see R v Franklin (2001) 3 tutions. His observations in Shelmerdine Commercial List at a time of great volume VR 9, especially at [66]. In equity, Justice v Ringen Pty Ltd [1993] 1 VR 315 at p. and challenge and, until the establishment Brooking time and again demonstrated a 321 might be thought to provide an exam- of the Court of Appeal in 1995, he led the level of competence which far surpasses ple of his intolerance of their excesses. Appeal Division. In the days when the vol- the merely memorable: see, but only for As much as anything, however, Justice ume of business in the Practice Court was example, Pioneer Concrete Services Ltd Brooking will be remembered as one of still vast, he was among the most accom- v Galli [1985] VR 675; Costa & Duppe the great judges of the Court because plished judges in the management of its Properties Pty Ltd v Duppe [1986] VR of his work as a founding member of the workload. When a judge was required to 90; Moffett v Dillon [1999] 2 VR 480; Victorian Court of Appeal. In the seven manage a Court project, he was naturally Swanston Mortgage Pty Ltd v Trepan years in which he sat on that Court the regarded as among the first to be chosen. [1994] 1 VR 672; Flinn v Flinn [1999] volume and quality of his judicial writing And in all of this, he maintained a stand- 3 VR 712; and Spincode Pty Ltd v Look was in aggregate unmatched by any other ard of bearing and courtesy that invariably Software [2001] VSCA 248. member of the Court. Sometimes whimsi- reflected favourably on the high standing Justice Brooking will also be remem- cal, sometimes censorious and sometimes and reputation of the Court. bered as a great judge of the Court sagacious, it was always disciplined and It is, however, Justice Brooking’s because of his ability and unashamed dedicated to the rigorous application of abilities as a judge — his ability to judge inclination to apply the high technique authoritative precedent. It was also fre- — that most mark out the contribution of judicial method in ways calculated quently polemical, in ways that extended which he made to the Court. “to meet the demands which changing the law to limits beyond which only the Justice Brooking will be remembered conceptions of justice and convenience High Court could take it. Then, when the as a great judge, with a great ability to make”.1 The results are to be seen in any occasion demanded, it was constrained judge, because he is an exceptional law- number of his decisions, beginning in the by the sort of conservatism necessary to yer. He knows the law like few others, and earliest years of his judicial career. arrest a trend advancing too far or too thus he judged according to law like few One of the early reported examples is fast. In each case that came before him, he others. The extent of his legal knowledge Re Clark’s Refrigerated Transport Pty wrote for the benefit of the parties. In the

16 17 totality of the cases that came before him, Mr Justice Brooking was appointed, it NOTES: he left much for the benefit of posterity. was said of another great judge that it was 1. “Concerning Judicial Method”, in Jesting In the result he contributed fundamen- impossible to overestimate the contribu- Pilate 152 at p. 165. tally to the establishment of the Victorian tion which he had made to the work of 2. [1977] VR at p. ix, per Young CJ. Court of Appeal as the leader of its type in the Court.2 Of Justice Brooking it must this country. now be said that the same is undoubtedly In the year in which the Honourable true.

The Commercial Bar Association paid tribute to Justice Brooking at a dinner held on 18 April 2002 After the introduction for the evening by David Denton SC, President of the Commercial Bar Association, John Digby QC was invited to propose a toast to the life and times of Robert Brooking to the 120 members of the Bar and Bench attending the dinner. The words of that text are reproduced below.

HE arrangement of this dinner, is so precious, and revealing as to require difficult to visualise, with the subject, only the third such event since the re-telling. some 63 years older, and sitting before Testablishment of the Commercial Robert Brooking was transported to you. But imagine Robert Brooking, a Bar Association in 1994, and our special these shores, together with his parents sweet little blond-haired boy wearing guest’s recent retirement, are no coinci- and brother, in the late 1930s. Apparently, a gorgeous leotard of green crêpe paper, dence. The Commercial Bar Association the dye, which ultimately set in a rela- and delicately dancing the role of a sea- has arranged this evening’s soiree as an tively stern and most dignified forensic horse with the Bodenweisser Ballet. opportunity to acknowledge the enormous bearing and countenance, had not been Many of you will be speculating as to contribution and significance of Robert caste back then, and an impartial onlooker what emotional and psychological damage Brooking to the Victorian Supreme Court. could have been forgiven for predicting such an experience might have inflicted. We were delighted when His Honour, as that the subject lad looked forward to a For my part, I expect that as a result of he then was, agreed to be the focus of career in the Arts. these events, our guest made a decision, tonight’s event. there and then, some 60 plus years ago, to It is widely appreciated that the ensure that he pursued a vocation in later attributes which guaranteed our life which did not compromise his dignity, Honoured Guest success at the highest Young Brooking’s smiling but nevertheless, allowed him to masquer- level in his careers at the Bar, and on the ade in costume. Bench, included remarkable intellect, face once adorned the The third of the ages of man identified an extraordinary capacity for work, and front page of The Age by Shakespeare in “As You Like It” is the in the result, a profound depth of legal taken with a 15-year-old adolescent. scholarship. As to Brooking the young man, in In a little while, I wish to return to some female Ukranian chess the years before the burden of practice, facts which appear to exemplify the legal, prodigy with whom he there is very little insightful information and judicial colossus our Honoured Guest was competing. by which to plot what appears to be the has come to represent. However, I would disappearance of the artistic, the romantic like to commence our brief journey start- and the more sensitive aspects of his per- ing at the second of the seven ages of this The basis for this insight occurred sonality, although smatterings of informa- man, drawing on Shakespeare’s definition during young Master Brooking’s voyage tion do exist. of those ages in “As you like it”. to Australia. As circumstance would have It appears that at school, and later The first of Shakespeare’s seven ages of it, on board the good ship Monterey was University, our subject was still something man is infancy and nothing is known of the Madame Gertrude Bodenweisser’s Ballet of an actor, with a penchant for romantic infant Brooking. Group from Vienna. As part of the P & O roles. However, regretfully, the detail has The second stage is youth. celebration on the crossing of the equator, been judicially suppressed over the years, Brooking the youth is said to have instead of, or perhaps as a supplement to, and only snippets survive. Such a morsel is exhibited signs of sweet sensitivity, the traditional dunking of the children by our Honoured Guest’s famed role as Henry romance and artistic revelry. King Neptune, the Bodenweisser Ballet Lawson in the Wesley College school play, The earliest recorded example of Group performed a ballet which enlisted and his participation in a radio series con- these attributes was recently mentioned the more attractive youngsters on board ducted by one Hedley Bryant, debating by Douglas Graham QC at our Honoured as performers. the case for popular, as against classical, Guest’s farewell, and although some may I appreciate that the image which I am music. be familiar with the relevant vignette, it about to ask you to conjure up is extremely Other information which I have come

18 19 by, in relation to this period of Brooking’s In relation to the young man at uni- Shakespeare’s fourth age, of lover and life, is clearly not correct, for example, the versity, again only scant information is soldier will be combined in our case study. suggestion that as a school boy at Wesley available. There is talk of some frivolity, Further, adaptation to modern times College, Brooking had ready access to and occasional visits to Naughton Hotel requires barrister to be read for soldier. a large store and variety of cigarettes in Parkville, but, nothing specific enough Barrister fits closely enough. (through some family business), and to stick. The 2002 edition of Who’s Who tells us was known to distribute them to fellow It would, however, be remiss not that our Honoured Guest married in 1955, students for profit. None of us could to record that during this period our and the Commercial Bar Association is accept that this rumour would stand up Honoured Guest’s well known enthusiasm delighted that Mrs Joan Brooking is also to scrutiny. for chess developed into a passion. our guest tonight. In retrospect, one can readily see the I have little to place before you on attraction of the game to young Brooking. domestic matters, but can say that all The rules were rigid, and well understood enquiries confirm our Honoured Guest (at least by him), the essence of the game as a devoted father of his two sons and had to do with logic and tactics, and the daughter, and have also established it as opportunity to intellectually overpower abundantly clear that Joan has, through- another was limitless. out her husband’s remarkable career, What is probably not so well known is been a stalwart wife and partner. that the Melbourne Chess Club, of which As to the barrister, in 1954 our our Honoured Guest was President for Honoured Guest signed the Roll of a record 13 years, is an institution older Counsel, and took silk some 15 years later. than the State of Victoria, and that young Brooking the barrister practised in many Brooking’s smiling face once adorned the fields. Briefs were happily received in R. Hugh Foxcroft QC; Chris Connor; front page of The Age taken with a 15- areas as diverse as crime and defamation, John Digby QC (gave speech at year-old female Ukranian chess prodigy as well as equity and commercial matters. function); and MC on the night and with whom he was competing. Not uncommonly, Brooking the bar- organiser David Denton SC. Consistent with his uncompromising rister accepted personal injuries briefs diligence for work, our Honoured Guest for the Victorian Railways. Folklore has it attempted to prevent his incessant desire that many an opponent, in that jurisdic- to play chess from distracting him from tion, left for Court with papers underarm, other obligations. This end was largely optimistic about the prospect of early set- achieved by engaging in chess games by tlement and lunch, only to return to cham- correspondence. Chess boards littered his bers shocked, exhausted and defeated, home, and some of these games took up having unexpectedly come up against to two years to complete. Occasionally, Brooking’s well-prepared determination passion got the better of him, and it was to run the case, in all its detail, or settle not unknown for Brooking to arise early only on extremely advantageous terms to enough on the weekends to demolish an his client. opponent or two at the Melbourne Chess Similar stories abound in relation to our John Bingeman QC, The Hon. Robert Club, before returning to legal studies or Honoured Guest’s commercial practice. Brooking QC and Patrick Tehan QC. preparations. For instance, not long before appoint- ment to the Supreme Court, Brooking QC was briefed in a case in the area which, perhaps, he most loved and enjoyed. This was a building and engineering case in Tasmania, for Baulderstone Hornibrook. As I understand it, the issues involved the design, construction and performance of a woodchipping and pulping plant. The chipping and pulping operations were at Triabunna on the east coast of Tasmania, and ultimately the engagement lasted for months. Brooking QC toiled in Tasmania, away from hearth and home, Monday to Friday. The case was made even more difficult because, at the time, the Hobart Bridge was down, senior counsel being ferried to and from the battlefield by helicopter. Apparently, Brooking QC, at the height of his powers, was not just a formida- ble, but by now, a terrifying opponent. The Hon. Robert Brooking QC, Mrs Joan Brooking and Craig Porter. Picture if you will at frequent on site

18 19 Articles views, a brooding 6ft 2" of statuesque Victorian Court of Appeal, established in Honoured Guest found it convenient, and senior counsel, topped off by another mid 1995. effective, to lengthen the normal working four to six inches of white hard hat, It is well recognised that our Honoured day to ensure that his preparations were and on other occasions Brooking QC, Guest’s superhuman industry and pro- complete. entering the Supreme Court in Hobart, found knowledge of the law enabled It was his habit to leave his home in in black on black silk, like a former day him to perform, I say with respect, as a Canterbury each morning, in time to Darth Vader. top, if not a super, judge. The reports of catch the first train to the city which left At the end of the case, Brooking hav- our Supreme Court from 1977 are pep- Canterbury station at 5.18 a.m. ing pulped his opponents, his client gave pered with a disproportionate number of The journey was a solitary and conspic- him the white hard hat with Baulderstone excellent judgments produced by Justice uous one, because the virtuous barrister Hornibrook logo, and threw in an engi- Brooking. was the only person on the 5.18 a.m. who neer’s magnifying glass designed to assist There is no doubt, in any quarter, did not have a Gladstone bag, and who in reading drawings. Counsel was also that the contribution made by Justice was dressed in collar and tie. Apparently, given a woodchip caste in a perspex block, Brooking to the Court, the jurisprudence, his fellow travellers treated him with for good measure. and thereby directly to the community, grave suspicion, and one can only imagine Apparently after appointment to the has been enormous. the anticipation every morning, in his pre- Victorian Supreme Court our guest was There is also, no doubt that the judg- ferred carriage, as the train approached occasionally sighted in his imposing home ments which were produced in the last Canterbury Station, where inevitably one study at Maling Road, Canterbury, nostal- 25 years have increasingly manifested towering and solemn gentleman would gically sporting the white hard hat, with that theatrical element of our Honoured board with a briefcase. magnifying glass in hand, scrutinising Guest’s personality, which was so dis- This journey had our Honourable Guest submissions, and in more recent years the cernible in his youth. Apparently, this arriving at chambers well before 6.00 a.m. judgments of his brother Nathan. is in keeping with a trend in the latter These odd hours in chambers created Notwithstanding Robert Brooking QC’s Shakespeare “ages”, to return to type. their own difficulties. In the early days extremely busy and intense practice as Of the many examples of entertaining of his untimely arrival, a lady from the counsel, somehow he found time to write, passages in Justice Brooking’s judgments, cleaning staff noticed lights on behind the or contribute to, a large number of legal I proffer only the following: closed doors of Brooking’s chambers. At textbooks, including one with his former this dark and inhospitable hour, she sus- master Kevin Anderson, as he then was, In FAI Traders Insurance Company Ltd v pected an intruder and alerted the secu- concerning landlord and tenant law in Savoy Plaza Pty Ltd His Honour stated: rity staff. Their enquiries revealed nothing Victoria. Again in the early 70s in conjunc- The lease of the Savoy Tavern in Spencer more sinister than a remarkably zealous tion with Alex Chernov QC, as he then Street suffers from the corpulence which practitioner, but I am told that after this was, Brooking wrote the new edition of seems to afflict all hotel leases. It runs for incident the same cleaning lady was in the Tenancy Law in Victoria, and in about some 60 pages. When we open it, the lease habit of making the young barrister a cup the mid 1970s produced a text in the exudes the faintly musty smell we have of tea on his arrival at chambers. building and engineering area still known come to associate with leases of hotels. The real point of my story is, however, as Brooking on Building Contracts, Cesspools and distemper, graining and not apparent until I add, that every morn- which every serious construction lawyer varnishing, are preserved in its covenants ing before Brooking closed the front door, has read cover to cover. This publication is as reminders of a bygone age. at Mailing Road, for the 5.18 a.m. train, in its third edition. Other works included Joan Brooking had arisen in sufficient a work in conjunction with Justice And in Mountain Cattlemen’s Associa- time to cook him breakfast before his Percy Joske entitled Insurance Law in tion of Victoria Inc. v. Barron His Honour departure. Australia and New Zealand in the mid described a meeting of the Omeo Branch of The answer to the question I posed is, 70s. There are probably others, as well as the Mountain Cattlemen’s Association of I suggest, that behind the super perform- numerous learned articles. Victoria Inc., as follows: ance of the special guest this evening, and Our Honoured Guest’s appointment The get-together was to last for the week- enabling it, has been the super support of to the Bench coincides nicely with end, and there were to be horse events, a remarkable wife and partner. Shakespeare’s fifth age: “And then the together with whip cracking, dog high Happily, for our Honoured Guest, the justice . . . good capon lined . . ., with jumps, the tug-of-war, a ladies’ saucepan sixth and seventh of Shakespearian ages eyes severe, full of wise saws and modern throwing competition, and other entertain- lie far ahead. instances.” ments. We wish our special guest well in Robert Brooking was appointed as a his retirement and, in his new role as judge of the Supreme Court of Victoria on A question I expect in the minds of Professor Brooking, Director of Judicial 22 February 1977, and served the Court all acquainted with our Honoured Guest Studies at the Victoria University Sir and the community with conspicuous is: “How did he achieve all this, these Zelman Cowen Centre for Continuing distinction for more than 25 years, a fact extraordinary feats, year after year, and Legal Education. that distinguishes the judge as the long- over such a very long period of time?” I I ask that you all rise and join me in a est serving member of a Supreme Court have come to the last anecdote which I toast to our special guest, the Honourable in Australia. Our Honoured Guest was think provides the answers. Robert Brooking QC. also one of the original members of the During much of his practice our

20 21 Articles

Launch of the New County Court of

Chief Judge Victoria Waldron launches the 31 May 2002 new County Court on an “historic day for the administration of justice in the State of Victoria”

20 21 “The judges and all members of the County Court accept, w the truly splendid attributes of this great edifi ce to telling ef

OVERNOR John Landy; Mr Attorney the Honourable Rob Hulls; r Premier the Honourable Steve GMr Robert Redlich QC, Chairman of MBracks, Mr Attorney the Honourable the Victorian Bar Council; Mr David Faram, Rob Hulls, Joy Murphy Wandin, Aboriginal President of the Law Institute of Victoria; Your Honours; distinguished guests; ladies Elder of the Wurundjeri people, Your and gentlemen.

newspaper Honours, distinguished guests, ladies and The opening of this splendid new Court gentlemen. complex, which, by happy coincidence, takes place only 51⁄2 months before the

Herald Sun This is indeed an historic day for the sesquicentenary anniversary date of the administration of justice in the State of establishment of the County Court in Victoria. November 1852, represents an historic The construction of this truly magnifi - moment in the administration of justice in the State of Victoria. That being so, the cent building — magnifi cent architectur- judges of the County Court have deemed ally and functionally — will enable the it appropriate to conduct this sitting, both County Court of Victoria, the principal to ceremoniously mark that opening, and also to recognise and express our thanks

Image by David Caird, courtesy of the Image by David Caird, trial Court of Victoria, to carry out its to a number of persons whose endeavours responsibilities to the full. Thus, bearing have, over a lengthy period of time, com- in mind the vital place which the County Court occupies in the Courts’ bined to achieve the commissioning, the hierarchy, the due functioning of the administration of justice will be construction and fi nally the completion of this outstanding public building. palpably enhanced — to the benefi t of all Victorians. Although to do that will take a little Speaking for the judges of the County Court, may I say that we are time, we believe that both for the present mightily enthused by the prospect of henceforth having the opportunity and the future it is most appropriate that to carry out our judicial function to the optimum in such an excellent such recognition be made and recorded. However, before embarking on that environment. Speaking for the Court in its entirety, both the physical exercise, may we say that we are sin- attributes of this building, and also the sophisticated and comprehen- gularly honoured by the presence here sive IT and other types of technological support which are provided in today of Governor John Landy and Mrs it, will likewise enable all Court offi cers to operate with full effi ciency. The judges and all members of Court staff are very much in the Government’s debt for having shown such foresight and will, in fi rst approving and then undertaking this novel but most creative project, namely having the building built, owned, and serviced by the private sector, with the Government leasing the building for occupancy and use by the County Court. The partnership thus created between building owner on the one hand, and the Government and the County Court on the other, has had a very strong and effective existence already during the construction period, and will, I am confi dent, continue to be an effective and produc- tive relationship in the future. This new Court complex ushers in, I believe, a new era for the administration of justice in this State. The judges and all members of the County Court accept, with both humility and not a little pride, the role of putting the truly splendid attributes of this great edifi ce to telling effect. Chief Judge Glenn Waldron Judges at the opening of the new County Court

22 23 “The judges and all members of the County Court accept, w ith both humility and not a little pride, the role of putting the truly splendid attributes of this great edifice to telling ef fect.”

Landy; the Chief Justice of Victoria, the serving, and many former County Court the proceedings in those various circuit Honourable Justice John Harber Phillips; judges. locations. the President of the Court of Appeal, the Although it is unfortunate that this To all those well-wishers both within Honourable Mr Justice Winneke; the Chief splendid ceremonial court, spacious and beyond the Court who are thus view- Justice of the Federal Court of Australia, though it is, could not accommodate all ing these proceedings, we thank them for the Honourable Chief Justice Black; and those whom we would have wished to be so doing and bid them a warm welcome. Sir Daryl Dawson, former Justice of the in it, we have endeavoured, with the help This Court building is, of course, very High Court. Additionally, we welcome of video technology, to be as inclusive as much the focal point of the Court’s func- with pleasure Chief Magistrate Ian Gray; we could be concerning the County Court tioning. Nevertheless, as is demonstrated Federal Magistrate Maurice Phipps, repre- community and the profession generally. today, with the aid of modern technology senting Chief Federal Magistrate Bryant; Thus we record with pleasure that in the Court is now ever-more “Victoria-wide” Mr James Syme, Victorian Government an early demonstration of the powerful in its operation. Therefore, if we may coin Solicitor; Chief Judges Blanch, Hammond, technology with which the Court is sup- a theatrical allusion, we are, to our great Wolfe and Worthington, respectively Chief ported in this, its superlative new home, satisfaction, “playing” to the whole of the Judge of the District Court of New South these proceedings are being simultane- County Court community and to the prac- Wales, Western Australia, Queensland and ously viewed by means of video-link at five titioners, metropolitan and country, who South Australia; along with a number of locations within the building, as well as at avail themselves of our services. their interstate judicial colleagues. We the Ballarat, Bendigo, Geelong, Hamilton, So again, to all, near and far, we bid a note with pleasure the presence at the Bar Mildura, Morwell, Sale, Shepparton, warm welcome. table of Mr Coghlan QC, State Director of Wangaratta, Warrnambool and Wodonga As long ago as July 1985 a spatial Public Prosecutions; Mr Morgan-Payler circuit courts. audit of the former County Court building QC, Chief Crown Counsel; Mr Punshon Amongst those who are viewing these demonstrated that its capacity was a stag- QC, Chairman of the Victorian Criminal proceedings by way of video-link within gering 79 per cent less than was required. Bar Association; Mr Cain, Executive the building, we warmly welcome spouses Since that time, a succession of initiatives Director of the Law Institute; along of serving judges, reserve judges, retired were either investigated or undertaken with members of the Executives of both judges, widows of deceased judges, and with the aim of relieving that inadequacy the Victorian Bar Council and the Law spouses of interstate judges, along with of the Court’s accommodation. A number Institute of Victoria. We also welcome Mr many members of the County Court staff, of proposals for the relocation of the Court Pedley, Commonwealth Deputy Director judicial and otherwise, and members of were entertained, the more significant of of Public Prosecutions. the legal profession. We trust that country which were, first, to establish a central We also most warmly welcome a practitioners and their staff, along with criminal court on the site now occupied by number of reserve judges not presently County Court circuit staff, are viewing the Melbourne Magistrates’ Court; next,

Judges at the opening of the new County Court complex. (Image by David Caird, courtesy of the Herald Sun newspaper)

22 23 to refurbish the Melbourne Metropolitan initiative until, when close to the point to the Court’s needs, also deserve special Board of Works building in Spencer Street of final approval, there was a change of commendation. to wholly accommodate the Court; and, Government. Most of the others within the Court finally, to establish a new Court building Very shortly thereafter, acting with who have contributed so conscientiously on the Royal Mint site. None came to frui- more than commendable speed and and diligently must, by reason of time tion. decisiveness, the Bracks Government constraints, remain “unsung heroes”. I In the interim, additional courts were endorsed the initiative, and thus, approxi- trust that they will pardon me in not nam- established in the former County Court mately 21⁄2 years later, the dream has ing them. building; judges’ chambers were estab- become reality. The judges, indeed all at Beyond the Court, we at the Court lished in three floors of Owen Dixon the County Court, along with the Victorian wish to recognise, with our sincere thanks Chambers West and linked to the County community at large, are very much in the and gratitude, the sterling work done first Court building; temporary civil courts debt of the Bracks Government in general, by the initial project director, Mr Tony were established first at 471 Little Bourke and the present Attorney, the Honourable Wilson, and, following his unfortunate Street; then at 565 Lonsdale Street; and Rob Hulls, in particular, for endorsing, illness, by Mr Tim Cave, who, as project finally and additionally at 436 Lonsdale undertaking and achieving this noble director, with the aid of his dedicated Street. enterprise. staff, has driven the project on behalf of Thus, in varying degrees, the Court It is perhaps potentially invidious to the Government to such a successful and has operated for the past 16 years in recognise particular persons, when, with timely conclusion. We are likewise most fragmented, constricted, and far from a venture as large as this, so many, many grateful to Mr Jim Cox, who has overseen adequate accommodation. It has been people have played important roles in its the construction of the building for The to the great credit of the judges and all Liberty Group (TLG), the building own- County Court staff that the best was ers; to Mr Jim Berry, the project manager made of that less than satisfactory situ- for Multiplex, that highly efficient very ation. Thus, in varying degrees, much “master” builder of the complex, Throughout that time, the “impossible which has delivered it on time, within dream” of finally coming to a modern, the Court has operated budget, and with the avoidance of any large, well-equipped building continued for the past 16 years in serious accident; and to Mr Glenn Hay, to be cherished by the optimists amongst fragmented, constricted, who, throughout the course of the project, us. And may I say that the indefatigable first ably assisted the project directors, efforts of Judge John Hassett over all and far from adequate and more latterly has been an essential those years, from 1985 onwards, gave a accommodation. It has participant for TLG, and henceforth will semblance of attainability to that dream, been to the great credit of represent the building owner in the opera- or, as some might have described it, that tion of the building. rash hope. the judges and all County Additionally, we thank and commend Over recent years the Court has had a Court staff that the best the many building workers and tradesmen role to play in the planning and construc- was made of that less than whose skill and dedication has produced tion of the new Geelong, Ballarat and this excellent edifice. Wodonga Court complexes, and the addi- satisfactory situation. Special recognition is to be made of tional Criminal Court at Bendigo. Judge Ms Judith Watson, indigenous artist, who Michael Strong has represented the Court achievement. Nevertheless, as has already designed the extensive zinc mural in the in those endeavours. been said, both for the present and the ground-floor foyer which Joy Murphy Thus, when, in 1999, the former future we believe that it is most fit and Wandin, an Aboriginal elder of the Kennett Government set the processes in proper that such recognition be made. Wurundjeri people, has named “Ngarrn- motion for the construction of this Court As already stated, Judges Hassett Gi” (meaning “to know”), and Ms Anne complex, it was both natural and obvious and Strong — the “building” or “design” Virgo and her colleagues at the Australian that Judges Hassett and Strong should judges, as they have been described Print Workshop who turned that design play a pivotal role on behalf of the Court — deserve particular mention. Their into reality; Mr Colin Lanceley, the cel- in that initiative, albeit that a number of most effective and dedicated commitment ebrated artist, who designed the moulded other judges have assisted in it. to detail in this vast undertaking has coloured-glass artwork entitled “Quality of As we believe is now generally under- been extraordinary — and extraordinarily Mercy” which hangs in the Great Hall; and stood, the basis of this proposal was for effective. Judge David Jones has played a finally Mr William Eicholtz, who designed the building to be built and owned by likewise invaluable role in overseeing both and created the aluminium cast sculpture the private sector, and, when operational, the extension of the video linkages, which, of “Lady of Justice” which, along with the serviced by the building owner, with the prior to the move to this Court, had made depiction of the Southern Cross, is posi- State of Victoria being the lessee on behalf the County Court a leader in that regard, tioned on the southern exterior wall of the of the County Court. It was a novel and, in and also the establishment of a sophisti- building beneath the canopy. Those works the eyes of some, a somewhat adventur- cated integrated intelligent civil and crim- of art, separately and together, provide a ous basis on which to achieve the provi- inal Case and List Management IT System splendid enhancement to the building. sion of a new Court building. (“CLMS”, as it is known), which likewise, They significantly contribute to it being The Kennett Government in general, when completed, will give the Court a a truly marvellous public building. At one and the previous Attorney-General, the leadership role in that area. In that regard, and the same time they both soften it and Honourable Jan Wade, in particular, are Ms Ann Crouch and her team, who have materially add dignity to it. to be commended for their pursuit of that adapted the American SCT CLMS system Finally, our unalloyed congratulations,

24 25 thanks and praise go to the architects: ini- have been adopted by the Court, as evi- The judges are most grateful to all tially and primarily Mr Bob Sinclair, whose denced both by the Civil Initiative and also of them. In particular, in that regard, genius produced this architectural gem; by the criminal pre-trial procedures under the judges note with gratitude the deci- Mr Daryl Jackson and others of his staff, both the Crimes (Criminal Trials) Act sive role which jointly and severally has who complemented Bob Sinclair’s endeav- 1999 and the accompanying additional been performed by Mr James Hartnett, ours; and finally Mr Cameron Lyon, who measures fashioned by the Court. Then, the Court’s Chief Executive Officer, and was responsible for courtroom design. on the endorsement of the Council of Mr Findlay McRae, the Registrar of the Returning then to our primary theme, Judges, the Court has gone on to approve County Court. it should not be overlooked that the con- most significant reforms both to the con- In conclusion, and by way of summa- comitant challenge to the creation of the stitution of the Registry and to judicial tion, we believe that it is appropriate to building itself has been, of course, to suc- support structures, along with the adop- repeat the remarks which I made this cessfully move the Court from its previous tion of the previously-mentioned sophis- morning, when the building was officially many inadequate locations into these ticated, comprehensive and intelligent opened by the Honourable the Premier. splendid new premises. Such an enter- computerised Case and List Management They were as follows: prise has been of gargantuan proportions, System which, when fully operational, will “The construction of this truly magnifi- and has required extraordinarily detailed cater for and support all jurisdictions of cent building — magnificent architectur- pre-planning and subsequent execution. the Court. ally and functionally — will enable the In that regard, all of us at the County It may be that in 20 years’ time at the County Court of Victoria, the principal Court are very much in the debt of expiration of the lease of this building, trial Court of Victoria, to carry out its the joint efforts of Ms Jennifer Troy of knowing the speed at which technology responsibilities to the full. Thus, bearing Multiplex and Ms Karol Hill of the County — particularly computerised technology in mind the vital place which the County Court, who in turn have been so ably sup- — evolves, our successors will look at our Court occupies in the Courts’ hierarchy, ported by Mr Steve Malaiman, County present pride in, and satisfaction with, the the due functioning of the Administration Court engineer, Mr Ian Edwards, Court advanced state of our technological sup- of Justice will be palpably enhanced — to librarian, and the many members of staff port in this building with tolerant amuse- the benefit of all Victorians. — judicial, registry, and administrative ment. Nevertheless, at this time, that “Speaking for the judges of the County — who, as co-ordinators, have ensured support, when completed in its entirety, Court, may I say that we are mightily that the meticulously planned transition will literally make this Court a world enthused by the prospect of henceforth has become a happily successful reality. leader in Court support technology. That having the opportunity to carry out our Additionally it should be understood being so, the establishment of CLMS has judicial function to the optimum in such that the move to this Court building has entailed much construction work, much an excellent environment. Speaking for had much wider implications over and pre-planning, and much training of all the Court in its entirety, both the physi- beyond the actual physical move. Court staff who will, in the performance of cal attributes of this building, and also Over the past few years, well appreciat- their duties, operate it. the sophisticated and comprehensive IT ing the need to take full advantage of this Although, as has been observed, those and other types of technological support new environment with its sophisticated changes, those reforms, are not yet fully in which are provided in it, will likewise technology, IT and otherwise, the Court place, all County Court staff, judicial, reg- enable all Court officers to operate with has heavily concentrated on improving istry and administrative, have had to bear, full efficiency. its administrative processes, both judicial and, much to their credit, have willingly “The judges and all members of Court and quasi-judicial. borne, significant workloads additional staff are very much in the Government’s First, very significant, and, I must say, to their normal duties in order to achieve debt for having shown such foresight and successful judicial procedural reforms these goals. will, in first approving and then undertak- ing this novel but most creative project, namely having the building built, owned, and serviced by the private sector, with the Government leasing the building for occupancy and use by the County Court. “The partnership thus created between building owner on the one hand, and the Government and the County Court on the other, has had a very strong and effective existence already during the construction period, and will, I am confident, continue to be an effective and productive relation- ship in the future. “This new Court complex ushers in, I believe, a new era for the administration of justice in this State. The judges and all members of the County Court accept, with both humility and not a little pride, the role of putting the truly splendid Judges at the opening of the new County Court complex. attributes of this great edifice to telling (Image by David Caird, courtesy of the Herald Sun newspaper) effect.”

24 25 “The Victorian Bar is honoured to participate with the Court magnificent court building which coincides with the Court’s Robert Redlich QC, Chairman of the Victorian Bar Council

AY it please the Court. The It is a building designed for the people Victorian Bar is honoured to it serves, having highly functional court- Mparticipate with the Court and so rooms with state-of-the-art technology, many of the Court’s distinguished guests and befitting the critically important role in this ceremonial sitting to mark the performed by the judges of this Court. opening of this magnificent court building One of the Bar’s greatest members, Sir which coincides with the Court’s 150th Robert Menzies, records that he looked anniversary. upon his times in this Court as his most Within Victoria’s judicial system this enjoyable at the Bar, and he did not have a Court has traditionally borne a heavy workplace such as this. workload of cases. Early records show that The first known location of the County in 1901 the six judges of the County Court Court was on the present RMIT site, until presided over 572 trials. By mid-century the County Court shared the Law Courts the nine judges of this Court heard 1576 building, now the present Supreme Court trials, and by the end of the last century building. The Lonsdale Street side of the the judges sitting in Melbourne alone Law Courts was the Supreme Court; and heard 2900 trials — an average, over the the Little Bourke Street side, the County last century, of 100 trials per annum per Court. judge. In a case argued on the Little Bourke This Court has provided access to Street side of the building, counsel for justice for Victorians for over one and a Robert Redlich QC the defendant had the effrontery to want half centuries in most important areas of to pursue a point of law. The presiding disputation between its citizens. The civil The first County Court building in County Court Judge, one Judge Billy jurisdiction of the Court has increased Melbourne was described as a “dirty, Williams, said, “If you want to argue law, from £50 at the time of the Court’s incep- dusty, uninhabited-looking house”. you go over on the other side of the court tion to the present unlimited jurisdiction Entry was through a narrow, dingy hall house. The man over there is paid more in personal injuries, and $200,000 in other which was papered-over, above shoul- than I am.” civil suits. der-line height, by Causes Lists, Notices Effective 1969, General Sessions was The predecessor of this Court in its of Sale under Decrees of the Court, and abolished and its jurisdiction was given civil jurisdiction was known as the Court Schedules of General Rules with daily to the County Court, so that from then on of Requests. That Court had no building of interpolations. the County Court exercised both civil and its own. Mr Redmond Barry of counsel, as The court was small. The body of the criminal jurisdiction. he then was before his appointment to the court was the full width of the house, Supreme Court, was Commissioner of that which was only 16 feet, and only 5 feet court. The absence of any adequate place long. A rough and ready railing marked to conduct a hearing was reflected in the off the further 12 feet of length for the The first County Court headline of January 1842: “Mr Barry in the Bar table and up to the Bench. There was building in Melbourne Watchhouse”. For three days court had no ventilation and, as a visitor said of it, “I been held in the cells of the Eastern Hill had not the patience to remain many min- was described as a “dirty, Watchhouse. Ned Kelly was to later wish utes in this rancid, vapour bath.” dusty, uninhabited-looking that Sir Redmond had remained there. The location of that place has long house”. Entry was through The first judges of the County Court been forgotten. But compare the lofty, held joint appointments as judges of the well-lit and airy entrance hall to this mag- a narrow, dingy hall which County Court and chairmen of the Court nificent building, with its many courts, was papered-over, above of General Sessions in its criminal juris- a roof garden for public use, and an “al shoulder-line height, by diction. For over a century from 1852, fresco” terrace outside the judges’ com- the Court sat as regional Courts of Civil mon room. The entrance hall is three Causes Lists, Notices of Jurisdiction. For example, in 1864, the six storeys high in parts, and is flooded with Sale under Decrees of the judges of the County Court sat in 64 places natural light. Likewise, the public areas Court, and Schedules of out of Melbourne. It was not until 1957 outside the courtrooms are pleasing to that the regional County Courts became the eye, often with windows or skylights General Rules with daily the single County Court of Victoria. giving natural light. interpolations.

26 27 and in this ceremonial sitting to mark the opening of this 150th anniversary.”

The old County Court building across judges served in the armed services during Hassett (indictable offences); Judge the road was opened on Friday 30 May World War I. In World War II, the majority Neesham (County Court practice); 1969, 33 years ago almost to the day. of the Court served in branches of the Judge Jenkins (VCAT Domestic Building There were then 21 judges. Now there are armed forces. His Honour Judge Vickery Legislation Service); and Judge Mullaly 55 judges, and 10 reserve judges. There was highly decorated and was awarded a (The Victorian Trial Manual and The was simply not enough room in the old wartime military MBE. After the war His Victorian Sentencing Manual). Judge County Court building, to say nothing Hewitt has written two books of biogra- of the lifts, which were commonly relied phies of County Court judges, from which upon by counsel to explain their late Whatever affectionate I have drawn in preparing these remarks. arrival in court. name it acquires, this It is, of course, impossible to make refer- On this sesquicentenary of the Court’s ence to the many great judges who have formation we should also remember that magnificent court served in this Court. the Court has long been a court for the house will stand as a The question is naturally asked: how people, presided over by judges of diverse monument to the Court’s are judges of such an inspiring and pres- experience and background. tigious court house to be addressed? They The first County Court judge and service to the people of have been accorded a variety of titles over Chairman of General Sessions, Judge Victoria since 1852 and time. Sir Redmond Barry, when he was Robert Williams Pohlman, was a squat- will provide a powerful acting governor of the colony, thought ter, but apparently not suited to bush life. that the judges of this Court should not When tending his flock, His Honour took symbol of the strength be addressed as “Your Honour”. He asked Blackstone’s Commentaries with him, and and independence of the Judge Wrixon, who had been the second would become so engrossed in his reading judiciary. judge to be appointed to this Court, how he would forget about his sheep. Judge he was addressed. Casey, who served the Court from 1884 Honour rose to the rank of Major General, Barry’s enquiry was on a large sheet of until 1900, had worked as a gaol warder being known in the military as “The foolscap with a large seal. Judge Wrixon’s in America and as a clerk on a Mississippi Judge” and in the legal profession as “The response was on an even larger sheet, steamboat. General”. Present members of this Court with an even larger seal. “I am sometimes Modern-day illustrations of the Court’s continue to serve in the armed services. addressed as ‘Your Worship’, sometimes breadth of experience are also illuminat- The appointment in 1986 of Judge ‘Your Lordship’, and I can recall one ing. The former Chairman, Judge Leo Jones from the ranks of solicitors was occasion where I was addressed as ‘Your Dethridge, was an estate agent before the first of 11 solicitors appointed to Reverence’”, to which His Honour Judge studying law. Judge Fagan worked as a this Court. By their presence they have Hewitt could add from his experience, barber, distinguishing himself in 1956 as immeasurably enriched this Court. Judge “Your Majesty”. the outstanding apprentice of the year in Lynette Shiftan was the first woman judge No title matches the following self- hairdressing. Judge Crossley, after com- appointed in 1985. And, in 1996, the first proclamation by Judge Gaunt, who served pleting articles, went to London, where woman appointed to the Supreme Court, on this Court late last century. He was he delivered caviar, smoked salmon and Justice Rosemary Balmford, was elevated sent to restore order after European kangaroo tail soup to establishments such from this Court. Fifteen of the current 55 miners had attacked a party of Chinese as Harrods. Judge Francis Lewis, after County Court judges are women. This at the Buckland River diggings. His serving his articles, returned to London Court is appropriately representative of Honour’s proclamation, issued in Chinese and taught in the East End for two years. the community it serves. Since the time characters, concluded: “W.H. Gaunt, Your Judge Ross and Judge Higgins both left of Justice Barber’s elevation in 1965, there Protector. Tremble and obey”. school early, and completed matriculation have been a further eight County Court The Victorian Bar congratulates the at night school. Judge Ross worked as a judges elevated to the Supreme Court. Government, the Challenger Group, and slaughterman and labourer. Judge Higgins Judges of this Court have authored the Court on the timely completion of worked at the Singer Sewing Machine leading texts in almost every branch of this superb court house. The strong, Company. Judge Gordon Lewis not only legal practice, including Judge Vickery clean lines of this beautifully proportioned practised as a solicitor, but was film critic (motor and traffic law), later edited building reflect a Court with vision and for the ABC, reviewing some 800 films by Judge Ostrowski; Judge O’Driscoll purpose, and say much about its Chief before his appointment. (licensing law); Judge Rendit (workers Judge’s leadership and the collegial The judges of this Court have served compensation); Judge Fricke (trusts atmosphere fostered by His Honour Judge Australia both in peace and in war. Five and compulsory acquisition); Judge Waldron.

26 27 I have been prevailed upon by a Judges Strong, Jones and Hassett were ment to the Court’s service to the people number of Your Honour’s colleagues to pay leaders in the design of this inspirational of Victoria since 1852 and will provide a special tribute to Your Honour’s role in the environment. powerful symbol of the strength and inde- initiation and completion of this massive The new court could be called “Palazzo pendence of the judiciary. Above all, the project. Your Honour has passionately and Populi” on account of the care taken in the complex creates a warm, light and spa- resolutely worked through every conceiv- design to make it a pleasant environment cious environment within which judges, able disappointment to see this wonder- for the people it serves. Equally aptly staff, and members of the profession can ful new court complex come to fruition. might it be called “Palazzo Waldron” in work with enthusiasm to provide access Other members of the Court, both judges recognition of Your Honour’s inspiring to justice for all Victorians. May it please and staff, have worked on the project and leadership of the entire project. Whatever the Court. designs — a reflection of Your Honour’s affectionate name it acquires, this mag- inclusive style of leadership. In particular, nificent court house will stand as a monu-

“This new County Court building is a magnificent example of the potential for the court to embrace a modern and progressive approach to the administration of justice.” Attorney-General Rob Hulls MP

ODAY is indeed a historic day diminution of public confidence in the for the County Court of Victoria. courts and is a dereliction of duty. T This new County Court building As important is the preservation of is symbolic in many ways of the important judicial discretion. role of the justice system and the judiciary This week is Reconciliation Week and it to the people of Victoria. is a timely reminder of the findings of the In a democratic society, the justice sys- Royal Commission into Aboriginal Deaths tem performs the dual role of providing in Custody. an avenue to establish and enforce rights, Two years ago, the death of a young while at the same time determining the Aboriginal man in custody brought the rules of social order. Northern Territory regime of mandatory This is a balance which carries great sentencing into the centre of national and responsibility and for which members international condemnation. of the judiciary are rightly held in high At that time, Federal and State politi- esteem. cians, regardless of political persuasion, It is a reality that today’s Australian decried that discriminatory practice. courts face a number of challenges. Mandatory sentencing, in whatever First among those challenges is the guise, breaches the separation of powers, intense scrutiny of the courts and indi- Rob Hulls MP judicial discretion and denies absolutely vidual judicial officers by the media, politi- the ability of courts to treat the causes cians or the public at large. It is by reason of this independence of crime. We should, of course, all start from the that the judiciary can make decisions, Courts also face the perception in some basis that the courts are public fora in which can deeply affect people’s lives, quarters that they do not move with the that their role is to administer the justice without political interference. times. Courts are often portrayed as staid, system for the good of every individual It is a natural consequence then that formal environments, shrouded in the who appears before them. The courts are, courts do not, in turn, enter into the trappings of tradition. therefore, open and accountable to every political fray. Quite rightly, judicial offic- In Victoria, this could not be further member of our community. ers cannot publicly defend themselves from the truth. Our system of democracy places great, against criticism which may be levelled The Victorian judiciary supports life- and justifiable, weight on the doctrine of against them. long learning for judicial officers and has the separation of powers. This doctrine I hold very strongly to the view that it warmly welcomed the establishment of provides that the judiciary is, as an arm is the role of the Chief Legal Officer of any the Judicial College of Victoria to deliver of Government, independent, and, let me State, Territory or the Commonwealth to ongoing professional development, train- repeat that, independent, of the legisla- defend the judiciary against attack. ing and education. ture and the executive. The abdication of that role leads to the The Victorian judiciary is also working

28 29 hand-in-hand with this Government in the dealing with people, and this is the most the judiciary and the private sector, this development of a 10-year strategic direc- crucial interaction of all. state-of-the-art facility, with its state-of- tion plan for all of the courts. The Courts For this reason, the courts and commu- the-art technology, will provide 21st cen- Strategic Directions Project will bring nity are best served when judicial officers tury state-of-the-art access to justice. courts together to better plan and man- are possessed of the highest merit, integ- The County Court of Victoria has a age for the future. This will include better rity and ability. very proud, 150-year history of fairness, ways of using resources, information tech- I am absolutely committed to ensuring impartiality and independence in the nology and new business, operational and that the judiciary is representative of the delivery of just outcomes for the people administrative reforms. broader community, particularly in the of Victoria. As a result, the Courts will also be area of gender and ethnic diversity. To Chief Judge Glenn Waldron, the better able to adopt the cultural changes Victoria can be rightly proud and is judges of the Court and the staff of the which are emerging in justice systems well served by each and every one of its Court: thank you for your hard work in throughout the world. These include the judicial officers. the development of this magnificent court increased use of alternative dispute reso- This new County Court building is a building. lution, technology and the new concepts magnificent example of the potential for Thank you also, on behalf of the peo- of therapeutic jurisprudence and restora- the court to embrace a modern and pro- ple of Victoria, for your commitment and tive justice. gressive approach to the administration unswerving service to the cause of justice But when you really pare it back to of justice. in Victoria basics, the court system is about people Designed and built in partnership with

“This is a wonderful building that will rightfully take pride of place in Melbourne’s legal precinct and set a new standard for courts throughout Australia.” David Faram, President of the Law Institute of Victoria

AY it please the Court. Sir Redmond Barry, the founder of the I am very pleased and hon- University of Melbourne and the public Moured to represent the solicitors library, who later served with great dis- of this state and to participate in this cer- tinction on the bench of the Supreme emonial sitting to mark the opening of this Court of Victoria. new building. In 1852, the jurisdiction of the County At the outset I would like to formally Court was limited to $50 unless the par- retract the comments that I made about ties agreed in writing to the court dealing this building at a speech of welcome I with a higher amount. gave last year for one of Your Honour’s Your Honour will undoubtably be new judges. Adopting the words of others pleased by the fact that the near-complete sometimes comes at a price — something picture gallery of County Court judges has Your Honour has not let me forget on any taken up residence in the new building. occasion that we have met since then. For The gallery provides a fascinating pot- the record may I say that I think this is ted legal history of Melbourne. a wonderful building that will rightfully The honour board of judges, which now take pride of place in Melbourne’s legal hangs on the wall of judges’ chambers, precinct and set a new standard for courts shows the gradual growth of the Court throughout Australia. from a single judge in 1852; to six judges Your Honour has indicated that the in the early 1900s; to eleven judges by the move has “gone brilliantly”. Of the 10,000 David Faram. 1950s; to 22 judges in 1969 when the old boxes moved, only four or five have gone (Photo courtesy of the Law Institute of Victoria) County Court building was opened; to 55 astray. The phones are working and staff judges today. are responding to emails. ute in 1852, shortly after Victoria became The photographs include Judge Michael We congratulate you on the smooth- a colony. Francis Macoboy who was held up by a ness of the transition period — though not Before separation, its functions were highwayman. The judge was immortalised far, nonetheless of herculean proportions. exercised by the Court of Requests, which in the song “The Wild Colonial Boy” part of The County Court of Victoria has had a was presided over by a commissioner. which runs: “He held the Beechworth mail fascinating history. It was created by stat- One of the first commissioners was coach up, and robbed Judge Macoboy,

28 29 who trembled and gave up his gold to the a great deal has been said about the old tion that was not well received by Your wild colonial boy.” Court, mostly in relation to the slowness Honour. There are photos of Judge James of the lifts. Stretching back to the beginning of Langton Clarke, the father of Marcus When the former building with its 19 recorded history, there have been gods Clarke, author of For the Term of His courtrooms was opened in 1969, those whose province was justice. It is a fact Natural Life; and Judge Samuel Henry responsible believed it was insufficient to that both the Greeks and the ancient Bindon, whose son Henry, appearing in meet the needs to the year 2000. Egyptians have chosen to personify this his first Supreme Court trial, unsuccess- In fact, a survey carried out in 1985 god as a woman. fully defended Ned Kelly. This was not a established that the bulding could then The idea of a goddess representing good case for the defence, and Kelly was, Justice originated with the mythical Greek of course, convicted and hanged. figure Themis. The trial was presided over by Sir The daughter of Uranus (heaven) Redmond Barry who had previously sen- As Your Honour rightly and Gaea (earth), Themis is depicted in tenced Kelly’s mother to three years for observed, the old homeric poems as the personification of assaulting a policeman. She was reported the order of things established by law, to have said then that if her son had been building was hopefully custom and equity. She is not a decision- before the court, he would have made an the last great example of maker, but rather she maintains the order example of him. “deciduous” or “autumnal” of society and oversees the conservation I am reliably informed, Your Honour, of tradition. that the portrait of Judge James Forrest architecture in this By the eighteenth and early nineteenth came from a Herald photograph taken State. century, a blindfolded statue appears to outside a racing tribunal hearing. have been the common representation It wasn’t the first time that a judge of only provide two-thirds of what was of justice throughout Europe. In the the Court was photographed partaking in required. United States, the concept of blind justice a sporting activity. The main defects were the lack of suf- became popular as a reflection that the Another photograph shows Judge ficient courtrooms and nearly all the jury courts would judge all equally without Alexander Donaldson Ellis marking his rooms, which were only 15 square metres prejudice. golf card. in size, were unnecessarily cramped for 12 It is understood that Your Honour is The first of the Winneke family of men and women to spend long periods of not exactly misty-eyed at the thought of judges was Judge Henry Christian deliberation. leaving behind the nooks and crannies of Winneke, father of Sir Henry Winneke, a Windows are a feature of the new jury the old building. former Chief Justice and grandfather of rooms in the court but the question must In a recent article published on the His Honour, Justice John Winneke. be asked — how do we expect juries to front page of The Age, Your Honour Judge Quinlan had come from Ireland, make a decision when they can bask in described the process of moving into a originally to work at the goldfields at rays of sunlight? new court building as a little like child- Dunolly, and later completed his law Judge John Barnett made some inter- birth. course at the University of Melbourne. esting observations in a recent edition of Your Honour was quoted as saying: He also founded a weekly newspaper, the Law Institute Journal. His Honour “Maybe in time you forget the troubles and stood twice, unsuccessfully, for parlia- said that in the early years of the Court, and there will be nostalgic memories, but ment. As a judge, he wrote a County Court video evidence was given by a television in the immediate future there is a happy practice book, believed to be the first in with a video player brought into the court- comparison between what was and what Victoria. room and placed where a jury could see will be.” The colour photographs that now have it. Audio was provided by way of a cheap As Your Honour rightly observed, the a new home reflect the modern Court, portable tape recorder. old building was hopefully the last great including Judge Lynne Schiftan, the first As we can see of those standing outside example of “deciduous” or “autumnal” woman appointed as a judge to a Victorian this Court today watching these proceed- architecture in this State. Its fate remains court. ings on television, the technology here is unclear but as has been suggested in the Three portraits are still missing but state-of-the-art. media, perhaps it will be converted into Your Honour is ever hopeful of whittling One of the most striking figures in the apartments. After all, it offers all the ben- down the number of judges missing in new Court is the giant cast-aluminium efits of a good location and a view of Lady action. sculture of Lady Justice, her eyes blind- Justice. But even the renewed vigor created folded, her robes flowing and scales in Those responsible for this great build- by the move into a new building might motion. ing are to be congratulated and Your make it difficult to find a portrait of Judge On the Supreme Court, she is seated, Honour’s long-term commitment to this Joseph Henry Dunne, who was born in and not blindfolded; here, she is standing, project must be acknowledged. Dublin, and appointed in 1872. and she is blindfolded. The Law Institute is honored to par- The judge was known for his fond- We are reliably informed that it was ticipate in the opening of the new County ness for the drink and died suddenly in pointed out to Your Honour recently that Court. May it take pride of place in the Fitzroy. the scales of the new Lady Justice were proud legal history of this State. Your Honour would appreciate that not evenly balanced. It was an observa- May it please the Court.

30 31 30 31 Articles

Allayne Kiddle: Victoria’s Third Woman Barrister’s Reflections on Her Life at the Bar

32 33 Articles

applied for admission to the go into Court in wig and gown. Victorian Supreme Court as A Most Peculiar Child is the title which Allayne Whereas, in Victoria, those who wished practise solely as barris- Ia barrister and a solicitor of Kiddle, the third woman to sign the Victorian Bar ters, gave up their right to prac- that Court. On the due date I Roll, gave to her autobiography of which she said: appeared before the board of tice as solicitors for as long as examiners and was told that This narrative is not intended to be an historical their name remained on the Bar they were still awaiting certain record. Nor does it pretend to resemble the actual Roll. I believe Joan was admitted particulars in relation to my events to which it refers. For, although we speak to practise in the Supreme Court application from England. I of recollecting the past, all we really remember is in 1919, so she had a great deal must reappear before them next our perception of former happenings at the time of experience as a divorce barris- February. of their recall. Once we censor those moments by ter, if not at the Bar, certainly as While I was still waiting to deleting them from our memory, or transforming a solicitor, when she signed the Bar Roll in 1948. see the board of examiners I them in such a way that they no longer bear any I liked Mrs Rosanove very met a fellow aspirant for admis- relationship to past events we embark, whether sion. His name, I learnt, was much, but I did not want to we realise it or not, on the writing of fi ction. Ivor Misso. Misso was from the read with her, for two reasons. Ceylon Bar, and a member of Kiddle, as she preferred to be known, was born in I did not want the women to be the Middle Temple. He, like Sydney and educated at the University of Sydney and separate part of the Bar from the me, was deferred to reapplying at Kings College Law School in London. She then sat men and also I was not a divorce in February. Still it was nice to for the Bar fi nals and joined the English Bar. practitioner. Although as a com- know someone whom I would In 1959 she was admitted in Victoria and signed the mon law barrister matrimonial know when my admittance Roll of Counsel. At the time, because she came from matters fell within the ambit of common law, I did not want to fi nally took place. the English Bar, most of us assumed that she was specialise in that fi eld as Mrs The big day fi nally arrived for English. seeing the board of examiners Rosanove had done. again and this time I was issued What follows are extracts of her reminiscences of the By and large being at the with a certifi cate from them Victorian Bar, from A Most Peculiar Child. Victorian Bar was a lonely that enabled me to apply to experience in the days when I the Supreme Court on the next was doing my reading. I did not admission day. go to court with my master as I I was fortunate in obtaining the serv- ferently from, yet somehow the same as, had done in London; during conferences, ices of Mr Eugene Gorman QC to move my the UK. It was as though the two were although I remained in the room with my admission in Court. He had as his junior concentric circles, but the circles were master when these were taking place, not Mr Hazledon Ball (“Hasy”). Gorman had made from different material. only did I not speak, but also there was known Mr Wilbur Ham KC, Geoffrey’s I had forgotten that at the English Bar very little discussion with my master when uncle, very well. When the ceremony was the practising Bar in England consisted for his clients had left. For the most part my over I was a barrister and colicitor of the the most part of Englishmen and women. work consisted of writing opinions for my Supreme Court of Victoria. In Victoria, it consisted of some men who master, statements of claim and other Gorman invited Geoffrey, Ball and were English in descent, some who were matters relevant thereto. I spent endless me to lunch with him at Menzies. In the Scots, some who were Jewish and many hours sitting and listening to applications meantime he said I must run upstairs and more who were of Irish descent, the latter in the Practice Court, with a copy of the quickly sign the Supreme Court Roll. It if not a largest group were certainly the Annual Practice before me, so that I could was on that he said and not my Bar Roll most vocal. follow what was taking place. seniority, that I would gain my Court sen- Of women barristers there was only Thanks to my master I was briefed on iority. He advised me to sign the Bar Roll one, Mrs Joan Rosanove. Joan had been at several occasions. These were mostly at as quickly as possible. the Bar practising exclusively as a barris- outlandish suburban Magistrates’ courts. I I had succeeded in obtaining Mr ter for ten years when I appeared. Before shall always remember the fi rst brief I had William Kaye, as he then was, as my that time she had been a solicitor and in Melbourne. I believe it was at the North master and Mr Dever as my clerk. Kaye practised chiefl y in the fi eld of divorce. Melbourne Magistrates’ Court. The matter had a large running down practice. He Having been admitted as a barrister and consisted of an application in chambers. did some cases outside that but the bulk solicitor of the Court and not having I arrived at the court in plenty of time. I of his practice was in the former fi eld. I signed the Bar Roll she had been able to remember the clerk appeared very sur- also applied to sign the Bar Roll when that prised that I arrived so early. He asked me time came. It surprised me that I should to wait outside on the verandah. be required to read again but that was the The courthouse was just an ordinary rule that applied at the time. All persons I had succeeded in weatherboard house sitting on the side of who signed the Bar Roll must read with a a hill with a verandah running along the junior barrister for six months. obtaining Mr William Kaye, front. As I sat and waited for the magis- Although in theory the Bar had been as he then was, as my trate, I looked across the road towards founded on the English Bar and although master and Mr Dever as an open paddock. A motley mob of sheep the Victorian Bar wore English wigs and was grazing in it. As I watched I thought robes, not only was the law slightly dif- my clerk. Kaye had a large to myself, the High Court was nothing like ferent, but also everything else ran dif- running down practice. this. While I was thus dreaming the clerk

32 33 emerged from inside the courthouse and said I was, he very kindly offered to escort “But why?” I said, “I am a member of told me that the magistrate would now see me. He called for me at Bill’s chambers the Bar and the meeting is for members me. I followed him into a large room, in and as we were walking out of Selbourne of the Bar.” which there was a kitchen-like table, with he was called by another chap for a quick “Nevertheless,” he said, “you cannot a man sitting at one end, swinging back word. He came back very amused and I go. You may go as a representative of the on his chair. There were several other asked him what was so amusing. He then Winkle Weekly, or the Jiving Journal, men lounging around on different chairs. informed me that the person who had but you cannot go as a member of the I thought I was in some sort of ante room called him was the Chairman of the Bar Bar.” where I must wait until the magistrate who had told him that he couldn’t take his “That is monstrous nonsense,” I replied. could see me. But no! A voice suddenly wife to this particular function. Brussey “I have no intention of going as something emerged from the man swinging on the explained to the chap that I was not his I am not, when there is no reason why I back of his chair. He asked me when I wife but a member of the Bar. cannot go as a member of the Bar.” was going to begin my application. I was The meeting opened with the usual, He then said “I believe the reason is so surprised to learn that this was the “Gentlemen”. My presence at the function that it has something to do with Barwick’s magistrate that I almost forgot why I had was completely ignored. At the party I met language.” come to this outlandish place. I succeeded a very nice man who informed me he was “He is supposed to be one of the best in what I had to do and departed. It was speakers in Australia,” I replied. I deliber- certainly different from London! ately misunderstood what he was trying to At another time, at yet another Of women barristers convey, so that he would come out with Magistrates’ Court, I was offered a lift the truth. “Ah,” he intoned, “I, aha . . . back to chambers by the barrister I was there was only one, Mrs intended to say his language is not all that opposing. He said he must call into his Joan Rosanove. Joan had it might be.” home first to collect a few things. I asked been at the Bar practising “You mean he swears,” I suggested. him if he had a telephone and he said yes “Well, something like that,” he answered. he did. He was curious as to why I wanted exclusively as a barrister “And because of that I am to be treated to use his phone. for ten years when I like a nineteenth century woman, even “I must telephone my clerk,” I said, appeared. Before that time though I am a member of the Bar?” “and tell him the results of the case and “Well you can tell the Bar Council that I am returning with you to cham- she had been a solicitor I intend to go. I am not some delicate bers.” and practised chiefly in swooning type to be protected by the Bar. “Do you always do that?” he ques- the field of divorce. In fact I find the whole thing amusing.” tioned. “Well, if you insist, then go.” “Oh yes,” I said. “Don’t you?” a judge and that he was going to England “I most certainly will,” I said. “No” he said, “I shall tell him when I within the next couple of days. He had to I did go and I enjoyed hearing Barwick see him.” see someone there in chambers. speak. His speech was exemplary. I really I rang my clerk who, from his response “The sister of this chap lives next door believe that it is possible that the club to my message, was just as mystified by to me and I promised her that I would look may have objected to having a woman my call as my learned colleague. This was her brother up. Perhaps you know him?” on the premises because the place where the first thing we had to do in London so he asked. “Well there are many sets of Barwick was supposed to speak was later that our clerk could notify us if there were chambers in London,” I said, “I really only changed. any important messages that we should know the men in my own set. Who is the The news quickly filtered around the attend to straight away. Life was certainly barrister whom you have to see?” I asked. Bar that I intended to go to the Bar dinner. different down under. I was learning fast “I cannot recall,” he said. Nor could This caused a goodly amount of gossip at how things were done the Aussie way. he remember whose chambers he was the Bar. When I was first interviewed by Mr in, or where he had to go. It was all writ- “You don’t really mean to say you are Kaye he said, “My name’s Bill”, and then ten down at home! In spite of this lack of going to the Bar dinner, Kiddle?” asked me what my name was. The clerk communication on chambers in London, “I most certainly am. It is the Bar din- on the other hand, called me “Snooks” we enjoyed a long chat on other mat- ner is it not and I am a member of the or anything else he fancied at the time. ters. I discovered he was a judge on the Bar?” So that took care of what we called each Workers Compensation Board. He said he “Y-e-s but”. other. I thought this all very peculiar. My would tell me who his friend was when he “There are no buts about it. I shall see colleagues at the Bar, I am sure, thought I returned. His name was Judge Dethridge. you there.” was very peculiar as well. Before he returned, however, another, In the end there were two women Apart from Misso and a chap called to me, strange event occurred at the Bar. present at the dinner. Mrs Rosanove, Brussey from England, I knew no one. There was a notice on the notice board when she heard I was going said that she Brussey had been a solicitor in England that Garfield Barwick was going to speak would call and pick me up. I thought it and when he came to Victoria, after a at a club in the city and any members of very nice of her to come with me. In those short time in a solicitor’s office, he decided the Bar wishing to attend were to notify days we sat at dinner in order of seniority; he would come to the Bar. Very early in such and such a barrister. I notified this we were, therefore, unable to sit together. the piece, while I was still reading, there gentleman that I intended to go. I thought Joan didn’t come again after the first time. was to be a large cocktail party at Menzies, that was all I had to do. I was called to I thought that a pity; these men really did given by the Bar, for two American judges. Stuart Collie’s chambers and told very need teaching a lesson or two. I even took Brussey asked me if I was going and when I politely that I could not go. a cigar that night when one was offered to

34 35 me, but did not smoke it, I took it home fashion I proceeded very well with my To make matters worse when one did get and gave it to Geoffrey instead. typing. I also learnt how to do Australian in the lift, one was probably struggling By this time I had ended my pupillage. pleadings. In the summer vacation I went with the loaves of bread trying to get to Normally I should have left my master and to Stotts each afternoon and studied the 9th floor. Never was there so much gone in to my own chambers. However, speed writing. I was well equipped for the wailing and gnashing of teeth. In time there was a shortage of chambers at change over by the time we moved into it was found we all did get in and out of Selbourne. I stayed with Kaye until the Owen Dixon Chambers. Owen Dixon chambers. The problem of Bar had found alternative accommodation As for the public house on the cor- the bread was solved. At last it was time to for me in other premises. ner next door, we should buy it, as we consider the opening of the building. When I did move, I moved into a might want to expand at sometime. It In the meantime I received a most suite of four rooms in a building, more was decided that the Bar could not pos- delightful note from Judge Dethridge, or less opposite Selbourne, in Chancery sibly run a hotel and so the County Court the man who had to meet a barrister in Lane. There was already one barrister ultimately bought the corner block and London and couldn’t remember his name. ensconced. The other two rooms were later the building went shooting skyward, He did find his instructions and did find empty. The chap who was in residence demolishing as it did so a wonderful view his way to chambers. He not only found was a nice fellow. His name was Garrick that I had from my window before the the man he was searching for, but also Gray. We didn’t see a great deal of each building was erected. he found his friend was a member of my other. Shortly we were joined by two oth- The change was a great deal more old chambers. All the members of my old ers, Berkeley and Nash. They shared a humorous and more complicated than we chambers wanted to know about, once room. Later we were all joined by a fourth thought. There were those that said there they heard he was from the Melbourne man, who would begin most of the trials were not sufficient lifts for the building. It Bar, was their friend, Kiddle. The barris- he was in with four or five preliminary would never do to have the baker coming ter he was looking for was my very dear points (Garth Buckner). In its own way in the front door as he did with the name friend, Roger Davies. our group of five people resembled a small Dixon on top of his baker’s cart. Then In his note the judge said he was guilty set of chambers in London, but we had no there were those who wanted rooms on of having said he knew me, when he really clerk with us and had no direct telephone the first and second floors because it could not claim such a privilege. Could he line to him. Most of the barristers had wouldn’t be so far to walk up or down if meet me for lunch one day to rectify the their own secretaries. To cap everything the lifts failed. We were too far from our situation? else we were cut off from a direct line clerks; we should have a clerk on each The two of us met shortly after and telephone to our clerks, whom we physi- floor like they did at Wentworth Chambers we had a most delightful lunch and he cally had to walk to see. in Sydney. In fact it seemed there was very was able to pass onto me all sorts of news I decided that I would like to change little that was correct about the building. about all my friends in my former cham- my clerk from Dever to Foley, and with We only went to nine storeys, and the bers. It was so good to have first-hand that in mind I asked Misso, who was on top floor was the barristers’ common room news of them. None of them ever wrote. Foley’s list, to ask Mr Foley to call and and dining room. We did not have a Bar He told me that they were all obviously see me. Foley came but Foley could do dinner there, but we did have smaller din- fond of me, and wished me well here in nothing because he said, “It wouldn’t be ners from time to time and we honoured Australia. etiquette.” Sir Charles Lowe at a dinner, for presid- And so, back to the opening of the Very soon, most of us in those cham- ing on the Bench for such a long period building. I did not expect to do anything bers had very little work. We had expe- of time. Subsequently, he retired from for the opening at all, except attend with rienced one Bar meeting in which it was the Bench. At the time of his retirement the rest of the crowd. In that happy frame decided that we should have more clerks. in 1964 he was 84. When we moved into of mind I floated along for a short time. We had also been invited to say how many Owen Dixon Chambers we were all most Then one day the axe fell. I was invited to of us would be prepared to change clerks curious to see the other barristers’ rooms. see a man whom I called “Mr Pickwick”, if this became a reality. There were no My chambers were called Kiddle’s boudoir, in his rooms. His name was Sir Reginald clerks present, but clearly the clerks because I had curtains on my windows. Smithers. He had another barrister with heard the names of those barristers that Trouble soon loomed. It seems that the him whom he introduced as O’Driscoll. were changing clerks if this happened. architects and builders and the wise men The two of them looked at me and Three of us in our little set decided to in charge of operations at the Bar had all change and from then until the time we failed to ask, or failed to remember, that did so, we received very little work from barristers are not like people in business our present clerks. We were obviously on firms, all coming to work at the same hour I arranged with Stott’s a freeze list. and going at the same hour. We were like I spent a great deal of time trudging will-o’-the-wisps. We came and went as we for full-time tuition up and down Little Collins Street, deter- pleased. There was only one master key (mornings only) in typing mined that no clerk was going to put me for the front door and this was securely . . . After lunch I practised out of business. Instead I arranged with locked. In front of that was a huge grill. No Stott’s for full-time tuition (mornings one could get in or out without disturbing in chambers on my own only) in typing, on the clear understand- the caretaker, Mr Brown. Pandemonium typewriter . . . In the ing that if for any reason I couldn’t come, ran riot. Things must be fixed and quickly. summer vacation I went to then that was that. After lunch I practised Failing that something dire would happen. in chambers on my own typewriter. I did No one was exactly sure what would hap- Stotts each afternoon and pleadings and papers for friends. In this pen, but it was dreadful, diabolic almost. studied speed writing.

34 35 Smithers said, “Kiddle, we would like you to do the flowers for the opening.” “Oh no,” I said, “I am very sorry, I Some of Ms Kiddle’s contemporaries at the couldn’t possibly do what you want. I can’t arrange flowers at all.” “Of course, you can,” he said again. “All women can arrange flowers. My wife does them excellently, but unfortunately she is overseas at the moment.” “What your wife can do and what I can do are two totally different things,” I replied. “I really am hopeless at arranging flowers. Can’t you ask the secretaries to do the flowers?” I urged “No. We definitely want you to be responsible for the flowers.” “O’Driscoll will see that everyone at the Bar will bring vases to your room, with their names on the base. He will also organise the flowers. That way it will Hartog Berkeley (1960). William Kay (1960). really be a Bar function.” I left for my home that night quite dis- turbed about the entire matter. I cannot really arrange flowers, although I certainly know when flowers are well done and when they are not. When I arrived home I told Geoffrey what had happened that day. “Can you imagine how awful they will be if I do them?” I moaned. That little out- burst was no good at all. “I have never known you do anything badly, Vicky. So you just have to set your mind to it and get cracking.” I was doomed to be the laughing stock of the Bar. That I was determined not to be, so I had a wonderful idea. If I cannot do it myself, then I must organise a group of people, not from the Bar, whom I will supervise and I know can do them well. I can’t tell you how I felt during the next few weeks when a motley collection of vases arrived in my chambers. Then as the day grew closer, a miscellaneous col- Ivan Franich and Barry Beach (1960). lection of flowers arrived. There was really nothing wrong with the flowers but people brought what was in their gardens with The great day dawned. Mrs Rosanove, we mingled with both the artists and our- no idea what vases they were going into. as the most senior woman barrister, selves. O’Driscoll came to our home and took lilac was asked to make the presentation to Prior to the opening at one of these from our tree. He gave the tree such a the guest of honour. My friends who events, I was standing next to a man whom good prune while he was about it, that for had scarcely noticed me in Selbourne I found very entertaining and exceedingly sometime I really thought he had killed it. Chambers now thought that “Their handsome. I had no idea who he was. My crew of willing helpers and I worked Kiddle” should have been the one chosen. Included in the art, in addition to those until very late the night before the open- It had taken a long time, but I had finally along more classical lines, there were a ing and in the end the result wasn’t too won most of them over. number of very modern paintings. I pointed bad at all. We sprayed the blossom with Each year at that time, there was to one of the modern ones and asked him hair spray and put aspirin in the water and an art show, called the Myrniong, which what he thought about it. He was non- then we stood off and looked at our work was held at the Athenaeum Gallery. The committal in his reply. Then I asked him if again. A touch here and a touch there and artists, for the most part, were either he had contributed any work to the exhibi- it was as near perfection as any collection Doctors or barristers. Invitations were tion to which he said, yes, as an invitational of assorted flowers and vases could be. I sent to each member of the Bar. We all exhibitor. Further questioning elicited the thanked my friends and went home to bed tried to attend if we were not otherwise information that the painting I questioned and to sleep. engaged. They were pleasant affairs and him about was his exhibit. It was not for

36 37 look at Freddie’s painting please, Kiddle?” Then each in turn, pulled out their hand- Bar, as she captured them with her camera kerchiefs and wept profusely into them, muttering as they did so, “Poor Freddie, poor Freddie.” Then they left. It had quite a contrary effect on my clients. They would walk in, sit down and then, as clients do, look around at all the “books”; when they saw the painting they would look extremely startled. At least it took their minds off their problems. Hazledon Ball, apart from the fact that he was the same Hasy who had appeared as junior counsel for me at my admission, I had also met subsequently in Gibby’s coffee lounge in the pre Owen Dixon Days. In these early morning dis- cussions I learnt, over a period of time, that he had always wanted to be an art- ist. His father, so he told me, said to him when he left school, “Here is one hundred pounds. Do anything you wish for the next twelve months. I am not going to pay uni- John Phillips and Jack Lazarus (1959). versity fees for you in that time. If at the end of twelve months you still wish to be an artist, fair enough. If, on the other hand you want to go to the university and train for a career, then I shall pay for that.” For the next twelve months he took off as an ordinary able seaman on a steamer and had the time of his life. At the end of the year he returned to his father and said, “I would like to go to the university to do law.” He did law and he was a very good lawyer, but he still painted in his spare time. Each year at the Bar cocktail party they had in those days an art show in Selbourne, in which all the work was done by members of the Bar. Over our many cups of coffee Hasy tried to encourage me in submitting some work towards the art show. Gerry Nash (1960). “But Hasy,” I replied, “I am no artist. I cannot paint, or draw.” “Rubbish,” said Hasy, “anyone can sale. I had no idea of purchasing it as my Then I remembered. Oh, what would I do paint that puts their mind to it.” home was not one that could be described with it? Then I looked around my cham- So I tried and took these works of art as modern and I had absolutely nowhere bers and thought well it could go in here, into Hasy and said, “There, are you satis- to put it. Sometime after that we parted, all the other furniture is modern. There is fied? I really can’t paint.” but not before he told me his name. He was a place above my brief cupboard where it Much to my surprise he said, “We must a judge, he said, in the County Court. His would probably look very nice. really have these in the show.” name was Judge Gamble. First it was necessary to have it framed. “Are you mad?” I retorted. “They That was not the end of the painting. The painting had not been done on can- are dreadful, you know it, I know it and About a month later when I was sitting vas. It appeared to have been painted on Geoffrey knows it.” in chambers and working on a brief, the to three-ply wood. It had no frame at all. “Not at all,” he replied, “they are very Chairman of the Bar came to my chambers It was, I was later to learn, an example of good.” and said, that His Honour Judge Gamble dribble painting. When framed it looked He then took the couple of paintings would be delighted to make me a gift of his much better. and ultimately they were submitted as painting, however, I must collect it from Shortly after that, His Honour died. part of our annual art exhibition. the gallery. Two of his fellow judges from the County Geoffrey and I were at the cocktail Painting, I thought. I was completely Court came to my room on their way to party and we had a great deal of fun at a loss. I had forgotten about Myrniong. the common room, and said, “May we watching the people suddenly come upon

36 37 these “great works” of mine. At first they Test that’s why.” “Oh,” I said, “but I’m not not feel well, or for changing their clothes, didn’t know what to make of them, then English. I am an Australian.” if they were going somewhere after work, they wondered who had done them. Then “I thought you came from the Pommy etc. A common room for the secretarial finally they commenced discussing them, Bar.” staff was what they required. Such a thing there was no sense in anything they were “Well, yes I do. But that doesn’t make sounded reasonable to me and I said I saying. But they believed it, or thought me English. I just happened to study law would use my best endeavours to see that they did. I do not think I have ever had there.” they obtained what they wanted. such an amusing time. Nor did I submit “Oh,” they said. “Well don’t worry, we It was not at all simple to the Bar any work in the future. Geoffrey and I had will soon teach you how to conduct a Council. They raised objection after a good laugh about the entire evening. I cross-examination here. English barris- objection. This was not an ordinary office saw Hasy many years later. Again it was ters have no idea how to cross-examine.” building I was told. Each barrister was at a Bar cocktail party. He had a wonder- “Really, I’m surprised to hear that,” I self-employed. Furthermore each bar- ful set of paintings along one wall of the replied, “since they invented the system.” rister employed his own secretary. The Owen Dixon Chambers common room. He I have an idea that after that discussion Bar Council did not have to supply such a died shortly after the party. the word trickled around the Bar that I room to the secretaries. The Bar was not However, I shall never forget him. He was an Australian. In any event, my luck the Shell Oil Company. was a kind man and a gentleman. with the men at the Bar changed from I pleaded with them for some weeks; The barristers were not surprised now, then on. they finally said I could have a room for if I came to the Bar dinner; they would say A short time later at a dinner given to the secretaries provided the secretaries to me before the event, “Coming to the Barwick by the Victorian Bar to honour themselves furnished the room. Bar dinner Kiddle?” and I would reply, his appointment as Chief Justice of the I informed the secretaries of this suc- “Wouldn’t miss it for quids.” High Court of Australia, the Chairman of cess and the Bar Council ruling, and they Master Collie was there and still wor- the Victorian Bar again said “Gentlemen” were as delighted as they were agreeable ried. He came to me at the Bar dinner when addressing the members of the Bar. to the ruling. We then had a number of and said, “Allayne, would you please tell I was there and admittedly I could not see meetings in my chambers setting up a me what you are wearing, my wife likes why the Chairman could not say “mem- committee etc. and furnishing the room. to know. Last year I told her you looked bers of the Bar”. However, I did not bother I was taken to see it once it was finished. I very nice and your dress was made from to say anything. After the dinner, before remember the committee gave me a very crêpe de chine. She told me I was silly and the speeches were given, it seems that nice silver filigree brooch to thank me for said, “Crêpe de chine is only worn under one of the barristers present complained my efforts. It was not necessary, but I dresses.” to the chairman about his lapse of normal certainly appreciated them thanking me So I told him that this year I was wear- good manners. the way that they did. I understand that ing a long black figure-fitting dinner gown When we all reassembled for the today the room no longer exists. It was in guipure lace and that the year before I speeches the Chairman rose to his feet. still flourishing when I left the Bar. I can had been in a dress made from pale yellow Before introducing the next speaker, he only wonder why it disappeared. It was, I chiffon. He carefully wrote all that I said said that a complaint had been made thought at the time and I still do now, a down. to him that I had been ignored in the necessity. The members of the Bar were much address. He apologised for overlooking my All in all, I was much happier at the Bar more friendly towards me in Owen Dixon presence. The next speaker he introduced by this time than I had been when I first Chambers than they were at Selbourne. I was His Honour Mr Justice Barry, who went there. I still found life at the Bar very think it was Owen Dixon Chambers that commenced his address to Barwick, after lonely compared with life at the English brought about this change. We were all the formal announcements, with Members Bar. As for the men of the Victorian Bar, on different floors which meant that we of the Bar. Then Barwick rose to respond. however, I found them a “good bunch of rubbed shoulders with each other in the He followed Mr Justice Barry’s normal guys”. Those whom I approached for help lifts and we had a common room. Many spiel, and followed it with “Gentlemen” all gave it freely. Some members of the Bar of us met there for morning tea and cof- pause, at which there was a gasp, “and were exceptionally good to me. They will fee, we also had lunch there. So we were My Fair Lady.” For the latter salutation he know who they are. I value their friend- not as isolated from each other as we had received a round of applause. I suppose ship to me as much today as I did at the been at Selbourne Chambers. today the feminists would object to that time. Also, I believe that the real change by saying it was prejudiced and he was There has been much talk in recent came about for me in the common room trying to put me down. He happened to years of prejudice against the women. at Owen Dixon Chambers. I was sitting be a most charming man and I didn’t mind I can only say that I did not find either there, one afternoon, having a cup of cof- at all. He then followed that by saying “I the Benchers or the members of the Bar fee. I was sitting at the same table as the know all the best Chief Justices of the prejudiced. In fact I found them the very men, but not of them. They were discuss- High Court come from Victoria.” (He was reverse. If the solicitors were prejudiced, ing the cricket. I was at the time mentally from the New South Wales Bar.) There I do not know. I did not find them so. But lost in a case of my own, which was caus- was an audible gasp from the audience, then I do not look for prejudice and I do ing me some difficulty. Suddenly one of when he said that. All in all the evening not find it. If they had been, I would not them said, “You must be pleased with the was a great success. I couldn’t wait to rush have blamed them, because, by and large, results Kiddle?” home and tell Geoffrey all about it. they had no women when I went to the “The results. What results? And why I was approached by one of the sec- Bar, except Joan Rosanove, and she had should I be pleased?” retaries and asked if I would help to get a very specialised practice. It is quite “Why? Because England is winning the them a room for resting in when they did clear that she herself did not suffer from

38 39 prejudice insofar as matrimonial matters because he argued most persuasively in again at the front of the air letter, and were concerned. Having had nothing but Phil’s favour. saw that I had opened by mistake a letter men to brief, in all other matters, for years “Oh well,” I finally said, “since it is addressed to Geoffrey, who was en route and years, I would say they were just slow a question of the liberty of the subject, by ship to London at this time. to change over to the fact that they now tell Opas to find out if it is okay for me to By now we had reached the Privy had a choice. appear with him, or do I have to transfer Council and I put it away to attend to at In 1966 my daughter Anne was mar- back to the practising list? If the latter you a later moment. I had been instructed ried. I was very run down myself with the had better attend to that for me. I cannot by Opas to obtain certain law reports for constant drain on my health caused by appear as a member of the English Bar him from the Privy Council library. None Geoffrey’s frequent illnesses, and Anne because I am not in chambers here. In the of them was there. I was in quite a flap with her late teenage traumas. I knew that meantime I shall seek permission from my about this, until I saw Opas, and explained if I didn’t do something and do it soon, I College. I cannot do anything until tomor- to him. would become very ill. Geoffrey agreed row morning.” “Oh,” he said, “the usher has taken with me that I should return to London them into court for me.” where I could do a Master of Laws. He Mr B.L. Murray, the Solicitor-General, would follow me later, when I had found a for Victoria was appearing for the prose- flat and settled down to life in London. There has been much cution. He was already in the robing room My college was again the LSE. Geoffrey talk in recent years of with his junior when I arrived. I said good joined me in London later. His health was prejudice against the morning to them both. now much worse and he had retired Later my clerk arrived. I was very from the estate agency business that he women. I can only say that pleased to see Donald. I handed him had gone into after selling Steam Plains. I did not find either the my brief, and in due course he followed Geoffrey arrived in London some six Benchers or the members me into the Privy Council Chamber and months after I left Australia. placed my brief on the table. I found academic law a little strange of the Bar prejudiced. In It is a very strange feeling appearing after life at the Bar. However, I had too fact I found them the very before this particular tribunal. It is not much to do to worry about the differences reverse. a court but the judicial appeals commit- for long. It was a two-year course. If we tee of the Privy Council. There were five were University of London law graduates I was beginning to wake up now, and judges sitting on this application for leave with an Honours degree at LLB standard, trying hard to remember what I could to appeal to the Privy Council. Sitting we could try and attempt to do it one year. about Ryan. I couldn’t remember a great there and looking at them, I was reminded That was my aim. deal except that he together with another of Bowen J’s dissertation, that a man’s I found a small flat in Knightsbridge, fellow had broken out of Pentridge indigestion, in an action, was as much a which was admirable for my purposes gaol and had finally been recaptured. I question of fact as any other. I couldn’t until Geoffrey arrived. The block had a obtained permission from the University help wondering whether these gentlemen gem of a housekeeper who serviced all to accept the brief and within the week had come up from the country that morn- the flats. Apart from its size it would I had received a letter from Opas that ing or, was London their normal home? have been ideal for the two of us. When it was okay for me to appear with him. I particularly mused as to the condition Geoffrey arrived in London, it so hap- Instructions from his solicitor quickly fol- of their indigestion. What did they know pened that a very small flat became lowed. about our judges, particularly those being vacant on the top floor. We rented that for I was expecting Opas to arrive in quoted in the Ryan trial? Had it been an my study, and lived in the lower flat on the London on a Monday and he changed his English trial they would have known all ground floor. plans, without informing me, to escape the judges. Known the good from the not Before Geoffrey arrived, I was awak- the press in Melbourne. While I was work- so good, etc. ened by a sharp ring on the telephone one ing on my views of the Ryan case on the I had been told by Opas that although morning. I was surprised because it was Saturday, before the date of his arrival, it was only a petition for leave to appeal about two or three a.m. It was Geoffrey Opas telephoned me from London to sometimes their lordships decided that telephoning from Melbourne to tell me say that he had arrived. I mention this they would hear the appeal at the same that Mr Opas, one of our silks at the to scotch the rumours that I raced out time. Prior to the proceedings commenc- Victorian Bar, with whom I had appeared to the airport to meet him and flung my ing their Lordships sent a message that as his junior, twice or three times before, arms around him. A TV film was shown of they would not be doing so on this occa- wanted to know if I would appear with him me supposedly doing this. I am not in the sion. I thought that a somewhat ominous in an action to appeal for a hearing before habit of flinging my arms around anyone statement. the Privy Council at the Privy Council in in public, let alone a silk, whom I scarcely There are several accounts of what the Queen and Ryan. I can remember say- knew. Opas said other than the press reports. ing to Geoffrey, “Who is Ryan?” He then The day of the application for the Those wanting to learn what the argu- refreshed my memory about Ryan and I appeal arrived. Although overcast it was ments were could do no better than to said, “I don’t know. First I am doing this warm. I decided to catch a taxi to the read the account written by Opas him- degree, second I am flat out doing it, third Privy Council where I was to meet Opas. self, in his autobiography Throw Away I am on the non-practising list, and fourth On the way to the front door I grabbed a My Wig. Another book that fully covers I cannot do any other work unless I have letter, which I thought was for me on the the Ryan trial and the petition for leave the permission of my College.” Geoffrey hall stand. This I read in the taxi. I didn’t to appeal is Patrick Tennison’s Defence should have been at the Bar himself understand what I was reading, I looked Counsel.

38 39 News and Views News and Views Verbatim

in the garden apart from the possibility of Amad: So you’ve got a good memory? Stranger Than . . . sweeping on the one occasion, pulling out Witness: Yes. Supreme Court of Western the weed on one occasion? Amad: And you’ve got great eyes? Witness: Nothing since — my husband Witness: Thank you. Australia usually does the gardening and the mow- His Worship: He might well have added 18 January 2001 ing of the lawns. “sweetheart”. El Ansary v El Raghy and Ors Gillies:Yes. I’m sure he does usually but Coram: Templeman J I’m asking about what you’ve done? M. Zilko SC for Plaintiff Witness: None — Well it’s all I can afford Subtle Duress R.E.Birmingham QC and L. Tsaknis for doing. Defendant Gillies: No digging at all? 18 March 2002 Witness being cross-examined about Witness: Yes, there was one occasion. Hesse v 3AW whether a debt was payable by the com- Just in case it’s on video, I bought a couple Dr Pannam: If Your Honour has the first pany. of little plants, a little thing and I just did a volume of the Appeal Book, it appears at Zilko SC: Do you know anything about it? couple of turns and put some little plants p. 45. Witness: I certainly do. in the soil. It was about half a dozen or so. His Honour: We haven’t got to that yet, Zilko SC: Are you able to say that in June His Honour: What do you mean when we’ll get to the Appeal Book later. 1996 that debt need not be paid if Pharaoh you say ‘just in case it’s on video’? That Dr Pannam: I’m sorry, the Court Book. did not have the means to pay it? gives me the impression you think you His Honour: Always gives a judge a Witness: It’s a strange question but I should own up to that one because it degree of assurance when the opening of think the answer’s going to be no, but I’m might have been seen? the appeal is being talked about. not quite sure. It might be yes. Can I have Witness: No. It’s just something I said. I it again? shouldn’t have said it, I’m sorry. Zilko SC: All right. That is a strange answer. The Good Life Witness: If you ask a strange question, The Eye of the Beholder The following is an extract from an you will get a strange answer. amended notice of appeal filed by a litigant Melbourne Magistrates’ Court in person seeking to appeal to the Court of 5 March 2002 Appeal from a decision of Judge Dove: Dig That Video Coram: Mr. R. Crisp M. Police v Austin Gilday The trial judge erred, acted with bias County Court Marc Sargent for the Police and malice toward the plaintiff Weston 21 June 2002 Martin Amad for the Defendant by failing to disclose his obsession with Coram: Judge G.D. Lewis the food and wines of the Rutherglen Buttigieg v Eldridge Glen Pty Ltd Martin Amad was cross-examining a male district, which led him to reside in a com- V.W.A. Dalton QC and Waugh for Plaintiff eyewitness to an armed robbery. The wit- munity that had made the false heinous Gillies QC and Noonan for Defendant. ness had earlier deposed to having a good allegations, that the plaintiff Weston had memory and good eyesight. In summing deliberately attempted to kill his own son Plaintiff being cross-examined by Gillies. up the witness’s position, the following during the trial and disqualify himself Gillies: What other things have you done exchange took place. from hearing the trial.

40 41 News and Views News and Views

The Junior Silk making his address. Mr Junior Silk’s Speech to the Annual Bar Dinner Held at the Plaza Ballroom on Saturday 1 June 2002 John Langmead

R Chairman, Your Honours, dis- appropriately qualified people. The obvi- tonight been denied the pleasure of hear- tinguished guests and members ous choice of advisors was Paul Elliott QC ing from the most junior barrister to be Mof the Bar. and Simon Wilson QC who are of course appointed silk last year. That title belongs It is my privilege to propose a toast widely known and respected for their wis- to Julie Dodds-Streeton SC who came to to the newly appointed members of the dom and good judgment in such matters. the Bar in the same year as I did, but some judiciary. But I have a few comments and However, I didn’t contact them. I must six months later. I understand that Julie observations to make first. take complete responsibility for this supports the calculation of juniority for The Junior Silk speech is of course a speech. But in doing so I remind potential this purpose based curiously on date of considerable responsibility, and there are plaintiffs and habitual complainers of the admission to practice rather than the date many pitfalls as I consider the numer- recently expanded defence of qualified of signing the Bar Roll. ous sensitivities, taboos, special interest privilege, the possible application of an But given that I was born in the same groups and protocols. The time allotted to innovative reading of Giannarelli, and year that Charles Francis QC came to the me is probably not sufficient to accurately if those are not sufficient deterrent, my Bar, I am of course grateful for any title, target each one of them. uninsured status in relation to this brief however temporary, which includes the Anyone invited to speak at a Bar (indeed, possibly as we speak, in relation word “Junior”. Dinner should probably take advice in to any brief). In making this speech I also have the relation to such matters, from senior and I would like to record that you have support of Geoff McArthur SC who by

40 41 reason of his date of admission to practice would have been making this speech had I not been available. McArthur has been most solicitous as to my health over the past few months, a concern I suspect will evaporate after tonight. You are all well aware of the basic premise of the Junior Silk Speech which is that you are to be entertained by watch- ing the spectacle of the Junior Silk flirting with self-destruction with the various methods placed at his disposal for that purpose. I have discovered in recent months that robust encouragement in this peril- ous venture comes readily and entirely unsolicited from a variety of sources, some of whom are present tonight. However, tonight is the occasion of a significant change to the traditional- for mat of this speech. Indeed, there have been a number of such changes over the years. Originally the toast was given by the Maurice Phipps FM, Maia Carroll, Erin Gardner, Carrie Rome-Sievers, Elspeth most junior member of the Bar, not the Strong and Richard McGarvie. most junior silk. However, a series of indis- cretions and an epidemic of umbrage saw that tradition abandoned, and in the early 1970s, the task fell to the Junior Silk. The traditional implement placed at the disposal of the Junior Silk was a brief to recklessly and irreverently lampoon the recently appointed members of the judiciary. But the Bar Council recently resolved to remove from the Junior Silk this tra- ditional weapon of self-destruction. The newly appointed judges have been granted immunity, and in writing as I understand it. I have been directed by the Bar Council to toast them but not to roast them. Given their number, even if I had allo- cated only two or three minutes to each judge, it is no doubt a relief to all present that the interruption between your main course and coffee will now be consider- ably shorter. Indeed, that was a further directive of the Bar Council, to keep the speech short — about 15 minutes. A further factor I have had to consider is the considerable volume of unsolicited requests from fellow barristers that after a Graeme Hicks, David Curtain QC who addressed the dinner (briefly) as Bar dinner at 9 p.m. on a Saturday night, president of the ABA and Duncan Reynolds. a dissertation on anything too serious is to be avoided like a Friday afternoon men- Did Justice Pagone fear that I would revelation? My researches in this direc- tion at Bairnsdale. reveal his closely guarded secret that tion simply revealed that His Honour has So what could have triggered this aban- during the period he was at the Bar, there apparently spent his life making only good donment of long tradition as to the con- was in fact one committee upon which he friends and leaving only good impres- tent of this speech? Did Judge Smallwood, did not serve? His secret was always safe sions. known for his loathing of publicity, fear with me. Was Judge Hicks concerned that I that I might let the cat out of the bag Was it the fact that appointments like would reveal that his love for animals about his soon to be released video, “A Justice Habersberger represent such found opportunity for spontaneous and Day in the Life of Judge Smallwood”? infertile ground for satire and startling generous expression in his provision of

42 43 financial and moral support for a disadvan- Justice” within 100 words of the phrases Of course I am not precluded from talk- taged and homeless horse. This support is “most entertaining” and “that was a good ing about judges who are not new. Some revealed as all the more generous when night”. The result was “your search did years ago a Supreme Court judge who has you learn that the horse was not much of a not match any documents”. It was at this since retired was interviewed on a radio pet, it didn’t tolerate children much at all, point that I became suspicious of the Bar show which was an experiment in bring- and had never done anything so useful as Council’s suggestion. ing to the public entertaining facets of the pulling a milk cart, rounding up cattle or The suggested topic was a weapon of law, including the regular segment “Beak even serving as a pony club hack. In fact, of the Week”. His Honour was told (appar- the only endearing quality of this benefici- ently without notice) that he was to be ary of the philanthropy of Judge Hicks and tested on his knowledge of Latin maxims. five other caring souls was its habit of win- His Honour rapidly back- He was asked to listen to three phrases, ning virtually every race it ever entered to pedalled, explaining how and to pick the odd one out. As many of the tune, some say, of over $700,000. Of Latin plays only a very us would have done, His Honour rapidly course those not familiar with the horse back-pedalled, explaining how Latin plays racing game will think this was a great minor role in the law, and only a very minor role in the law, and that windfall to the syndicate, but those in the that plain English has plain English has taken over. But to no know understand what inroads into such taken over. But to no avail. avail. The three phrases were then read gross winnings hay and fresh water twice to him: daily can make. The three phrases were Save for such observations in pass- then read to him: Res ipsa loquitur ing, my researches about the recently Res ipsa loquitur Res judicata appointed members of the judiciary will Ray’s Tent City forever remain in draft form. Res judicata But the Bar Council, having removed Ray’s Tent City There was a brief silence. His Honour, obviously flustered at this persistence in the face of his contra-indication, tersely answered that he could not pick the odd one out, stating as his reason that it had been a long time since he had studied Latin. But just as certain language usages in the law go out of fashion, others emerge. The evolving concept of “document reten- tion” is a very recent development and illustrates well that technical legal terms are quite dynamic. A client was provid- ing me with instructions recently (and I have his permission to mention this), and when I inquired as to the whereabouts of a significant number of documents which were once in his possession, but appeared no longer to be so, he said: “Well I haven’t got a document retention policy.” At first I thought he was stating the obvious and recognising my point, but then I realised that here was a pristine example of the emergence of new legal terminology. He was telling me he hadn’t destroyed the documents. Traditionally of course we have simply accused each other of not having a shred Chief Justice The Hon. J. Phillips and Elspeth Strong. of evidence. But recent developments in the law relating to document retention policies have made clear that there are the traditional subject matter from me, self-destruction which gave me no chance circumstances in which the possession has placed at my disposal an alternative at all to even take any others with me. It of a shred or shreds of evidence can be weapon with possibly greater potential was a sword upon which I could fall in a forensically significant. Commentators for self-destruction. The Bar Council sug- solitary and final way before you. Despite have suggested that a document reten- gested that I might consider addressing the entertainment value of that spectacle tion policy which results in the possession you on “The Administration of Justice”. I and tantalised though you may have been of sufficient quantities of shreds of- evi had a quick browse on the internet, enter- by the prospect, I formally decline the dence can lead to shorter trials. It has ing in the search engine “find all sites con- invitation to address you on the adminis- also been noted that it can lead to more taining the words “The Administration of tration of justice. of them.

42 43 Shawn Ginsberg, Yusef Zaman, Mark Frank Dyett, Barry Dove and Adrian Peter Couzens, Charles Gunst QC and Campbell and Liz Gaynor. Smithers. Paul Elliott QC.

Graeme Hicks, Greg Garde and Romauld Andrew, Elizabeth Brophy Rowena Orr, Matthew Bromley, Graeme Crossley. and Simon Steward. Jacqueline Robertson, Paul Vout and Lisa Sarmons.

Peter Pascone, Richard McGarvie and Danielle Hunter-Smith, Ed Larkin and Dennis Baker and Geoff Herbert. Graeme Hellyer. Chris Clough.

Michael Dowling, Judy Benson and Jane Dixon, Maya Rozner and Rachel John Simpson, Ross Mankivell and Judge Frank Walsh. Doyle. Ron Meldrum QC.

44 45 Gavin Tellefson, Clair Quin, Richard Niall, Katherine Bourke and Tony Cavanough QC.

Judge Lewitan, Judge Wood, Mark Dean SC and Michael Rozenes QC.

Bill Baarini, Allana Goldsworthy, Roland Anthony, Helen Rofe, Glen Pauline, Lisa Hannan and Samantha Cipriano.

David Neal, Tony Neal and Garrie Moloney.

Robert Redlich QC addressing the Bar Robert Redlich QC, Caroline Burnside and Attorney-General the Hon. Rob Hulls. Dinner.

44 45 One can only hope that the inventors of such euphemistic phrases as “document retention policy” will not abandon their mission of redefining legal concepts and processes with that solitary effort.

I recall my first experience of a “negative rate of climb” as a barrister, when early in my career I was making an application to a master of the Supreme Court which involved examining the relationship between confidential information and the discovery process.

For example, the sentencing process is ripe for their attention. Those daunt- ing and discouraging words, “I sentence you to 25 years . . .” can be replaced by something a little more encouraging along these lines:

You have been found guilty of a heinous crime, but I am pleased to announce that you have been selected to participate in Anna Whitney is presented with a gift in recognition of her long service to the the “Prisoner Release Program”. In your Bar from Chairman of the Bar Council Robert Redlich QC. case the date for your participation is the year 2027. retracted and so on. Should one engine I recall my first experience of a “nega- fail before these steps can be taken, some tive rate of climb” as a barrister, when The process of disguising the unpalat- manufacturers have gone into print stat- early in my career I was making an appli- able in euphemistic terms has for years ing that the aircraft will experience a cation to a master of the Supreme Court been employed by manufacturers of light “negative rate of climb”. which involved examining the relationship twin-engine aircraft. Immediately after The optimistic phraseology of the between confidential information and the takeoff, if one engine fails it is desirable manufacturer is to be admired, but if you discovery process. After presenting my that the aircraft maintain a positive rate of are an occupant of an aircraft experienc- laboriously prepared and carefully crafted climb on the remaining engine. Many light ing a negative rate of climb shortly after submissions, I resumed my seat. It felt like twin-engine aircraft will only do this when takeoff, it is to be admired for only a very that enjoyable moment during a takeoff the landing gear is retracted, flaps are short time. when the aircraft first leaves the ground and starts to fly. All is going well, and the flight appears to have sound prospects of success. The master having listening patiently and without any interruption whatso- ever thanked me and without pausing turned to my opponent and his junior and said: “I won’t need to hear from you Mr Harper. The application is dismissed with costs.” I didn’t even have time to get the Mayday call out. That I have been prevented tonight from talking about the newly appoint- Federal Magistrates Maurice Phipps The crowd reacts to the Junior Silk’s ed judges in anything but glowing and McInness with Gina Reyntjes. address. terms, does not of course preclude me

46 47 from mentioning members of the Bar solitary letter to the editor on page 4. The less, no doubt on long odds, enjoy their Council. relevant portions read: winnings. The present Chairman many years Dear Sir, And so I move to the real reason I am ago was junior to a senior silk, who was The Bar Council should negotiate cheaper on my feet tonight, which is to toast our on his feet waxing lyrical and educating professional negligence insurance for bar- honoured guests on their fine achieve- the Bench on the finer points of law. He risters. At present the cost of insurance is ments. authoritatively asserted a legal proposi- prohibitive. Without further ado ladies and gentle- tion and cited an authority supporting men, I invite you to be upstanding to toast it. The authority cited had not been dis- The writer would never have hoped or our Honoured Guests. cussed with his junior. The silk was imme- dreamed that the Bar Council would dili- To our Honoured Guests. diately met with a short response from the gently pursue his request for 30 years. Bench, “But hasn’t that been overruled by It is of note that the number of silks the High Court?” typically appointed each year, and indeed Without missing a beat he responded, the number of judges appointed each ADVERTISEMENT “Thank you, Your Honour. I should have year, is more than double the original size known better than to rely on my junior for of the Victorian Bar. BYRON BAY this point.” The Victorian Bar had its origins on Two apartments for holiday I had a similar experience early in my 12 April 1841 when the apparently iras- rental — each 100 metres time at the Bar, when I was being led. cible Justice Willas in the newly opened from beach I was doing my best to hand up useful Supreme Court admitted six barristers notes in a style later glorified by Denis in the region known as the Port Phillip “Bayvilla” — two storey villa on De Nuto in “The Castle”. Each note or District of NSW. One of these was the Belongil side, nestled in bush- comment would be ignored or rejected by Honourable James Murray, an Englishman land. Sleeps six. Spa, study and my leader. I persisted, and on handing up with a fondness for conducting expedi- PC access. a carefully worded question to my leader tions to wild and unexplored regions. I am “Surfside” — ground floor unit in for his consideration to put to the witness informed that regrettably he was eaten by Lawson Street directly opposite under cross-examination, he stopped cannibals in Borneo on his last such expe- Main Beach. Sleeps five. proceedings, gave an apologetic eyes-sky- dition (an occasion some have tastelessly ward look to the Bench, impatiently read referred to as the first Bar dinner). That Both units an easy walk to town. the note for a moment or two, and then left a total of five barristers at the Bar, and screwed the piece of paper up and threw this number did not increase until 1851. Check website: it on the table in front of me. As he did so Apparently it was a golden era. www.edsilk.com.au ID 13.1 and he gave an unnecessarily protracted dis- In 1900 the Bar boasted 63 members. 32 or phone (02) 6685 7000. missive gesture with his hand, appearing By 1968 it had only increased to 367. most annoyed at this needless interrup- Today there are 1420 practising mem- tion . . . then proceeded to ask the exact bers. question I had proffered using the exact But whilst competition at the Bar words I had suggested. may be a little more intense in 2002, the Victorian Bar remains an independent, robust and vital institution. TAILORING A feature of the new judicial appoint- ments is that while they come from a vari- It is of note that the Suits tailored to measure number of silks typically ety of backgrounds and while they bring a variety of life experience to their new role, Alterations and invisible appointed each year, and without exception they have substantial mending indeed the number of relevant legal experience. Plainly, such qualifications can be obtained in a variety Quality off-rack suits judges appointed each of contexts. year, is more than double Each of the members of the judiciary Repairs to legal robes the original size of the appointed during the past 12 months is to Bar jackets made to order be heartily congratulated. Victorian Bar. That the newly appointed judges have been let off the hook this evening is possi- The new silks will of course refrain bly a matter of some relief to them — the from any such behaviour. level of relief being in direct proportion to LES LEES TAILORS The life of the Bar in general, and the richness of the tapestry of their vari- Shop 8, 121 William Street, ous lives. the achievements of the Bar Council Melbourne, Vic 3000 in particular have for many years now So having shown restraint in that Tel: 9629 2249 been chronicled in the pages of the Bar regard as requested, I must now accom- News. These archives present a useful modate the other request that this speech Frankston benchmark of progress we have made. In be short. Tel: 9783 5372 Volume No. 4 of the Victorian Bar News, I trust that those who placed bets on the September 1972 edition, there was a the length of this speech at 20 minutes or

46 47 I cannot actually recall agreeing to speak at all tonight, but I did receive a let- ter from Robert Redlich saying:

I am delighted that you have agreed to respond to the toast this year by John Langmead SC. I know that preparing yet another speech adds to your already signifi- cant workload, but I am confident that your speech will make this a memorable night.

I skip over the dubious note of concern about my workload. The speeches at these dinners have sometimes made them truly memorable. One appears to have been the speech by Merralls QC in 1975. He decided not to speak about the honoured guests but proceeded to give his impression of wines: “Six bottles uncorked for sampling: one looked at before the others new.” The thought that Langmead SC might liken the honoured guests tonight with some part of the menu produced its own anxi- Response ety. Would any of us be described as: Equable, individual, well-balanced . . . makes good drinking now, and has just a suggestion of fullness in the middle pal- to Junior Silk ate to indicate that it will develop further subtleties of flavour when it settles in its new cellars after ten years in government on Behalf of bondage. But what if we were not likened to the wine? Just imagine if each were selected for description as if we were the meal to Judiciary at be eaten. And why stop at that? Perhaps I might conjure in Langmead’s mind a variety of pizza sprinkled with hot chillies; another could be a winsome capricciosa; a third a meatless vegetarian; and so on. Bar Dinner How should I respond with thanks if that occurred? Justice Tony Pagone replies to the Junior Silk’s address on behalf of the Amongst my concerns for this response honoured guests. is that I speak on behalf of others for whom I have no authority to be thankful. I thought last week, therefore, that I should R Chairman, Junior Silk, distin- be prepared before knowing whether he consult with those honoured guests who guished guests, Your Honours, might have said anything that I could feel (a) were located physically close to me Mmembers of the Bar and anyone thankful for. This is not an idle concern. and (b) might have an interest in my not else who may care to listen. It is said that after one of these events, failing to show up tonight in case this task It is my daunting task now to respond Sir Frank Gavin Duffy’s response to the might fall upon them. to the junior silk on behalf of the honoured speaker was to say: My first request for help was to ask guests. The task is daunting for a number Justice Habersberger — a seasoned pub- I am not acquainted with Mr Junior, but I of reasons. One is my own uninteresting lic speaker. He said,”Gee, it’s hard.” There sincerely hope that he will never appear in disposition which was once likened to a was then a pause and a change of expres- my court. footnote in a pension plan. Another rea- sion on His Honour’s face consistent with son is that my remarks in response had Thoughts along these lines were a variety of possibilities, including deep to be prepared before having heard what encouraged by my own recollection of thought. Eventually His Honour said: John Langmead had to say. It is custom- the memorable speech by Robert Redlich ary for a response to express some thanks QC as the junior silk in 1985: my first Bar I remember one Bar dinner meeting, Jack to the speaker, but my remarks had to dinner. Starke in the loo after the speech, and Jack

48 49 the grains. I have often been tempted to throw a bowl of rice into a fish pond, and other places for that matter, but never realised its possibilities! In antiquity, it seems, the Romans would immediately break the shells of eggs and snails which had been eaten in order to prevent enemies from making magic with them.3 The practice, however, was plainly not enough to protect the empire itself from its decline and subsequent collapse. In any event, the same superstitious fear, it seems, is the ancient cause of us being here tonight. The fear of the use of leftovers is said by Fraser to be the cause of the sanitary habit of destroying leftovers (and thereby avoiding disease), as well as the cause of the practice of “strengthen- ing the moral bonds of hospitality, honour, and good faith” among those who have the fear.4 The theory seems to be that “no Justice Winneke and Justice Osborn. one who intends to harm a man by work- ing magic on the refuse of his food would Justice Osborn, or rather, attempted to do himself partake of that food”, because the so, but my calls were to no avail. Perhaps harm caused to the refuse would affect all he thought I was calling to put this task who had eaten from the same source. It is where it should be, namely on him. this idea “which in primitive society lends I know that I am all that stands between sanctity to the bond produced by eating you and your beds and, therefore, I shall together; by participation in the same be brief. I am sure that I do speak on food two men give, as it were, hostages behalf of us all when I thank the Bar for for their good behaviour; each guarantees having us here tonight as your guests. The the other that he will devise no mischief honour to Sir Edward Woodward reflects against him, . . .”5 well on all of us, and his own work is a What more appropriate task could we model for us all to follow. For those of us be engaging in tonight as lawyers than one Paul Lawrie, Gina Reyntjes and on one or other Bench, we are grateful to of sharing our meal together in harmony Christopher Hanson. the support of the Bar and to the public and goodwill. Lawyers are intensely rival- gesture on this occasion. The occasion ous and our constant task is to find fault was going on with: “Bloody commercial of this dinner has led me to reflect upon with one another’s work. We compete lawyers, hopeless speech, they don’t know the origins of dinners like these which, with each other at every level of work, a f.... thing.” in turn, caused me to look up that rich and we make it our life’s vocation to find source of anthropological treasures, The fault with each other’s arguments, submis- With these helpful comments I was Golden Bough by Sir George Fraser. You sions, opinions, trial decisions, first level reminded that both Justice Habersberger may be interested to know that the shar- appellate decisions, and so on. Those of and I are in the Commercial Division of the ing of meals by hostile parties is an ancient us who were recently appointed may still Court and that, therefore, I might do bet- custom based upon what Sir George called feel some residual curiosity about how the ter seeking guidance elsewhere. “The Principles of Sympathetic Magic”.1 It announcement of our own appointment From Justice Habersberger I turned seems that amongst some primitive tribes was greeted in lifts by you, our peers, and to my brother Flatman — not one readily there is a fear that magical evil that can be our most immediate public. For us it was thought of as an equity whisperer. Indeed, done to others through food, including the not that long ago when we too stood in a he was very helpful. It seems that his leftovers of a meal. The principle seems lift with our friends and exchanged views former position has given him access to to be that a real connection continues to about the then last announced appoint- interesting aspects of the lives of many exist between the food which a person ment to a Bench. For us, being asked to be here tonight. Unfortunately, he has since has in his or her stomach and the refuse your guests tonight is something for which withdrawn permission for me to use any which remains uneaten.2 Some primitive we are pleased. of the information he had seemed so keen tribes feared that by injuring the refuse to give me at first, and has threatened you could also simultaneously cause NOTES: to sue me if I do. It seems that he has injury to the eater. Fraser reports that an 1. G. Fraser, The Golden Bough, Taboo Part II, received certain advice about the limits of ancient Indian way of injuring an enemy p. 130. the freedom of political communication as was to offer a meal of rice, and afterwards 2. Fraser, at 126. it may apply to judicial officers, and may to throw the remains of the rice into a fish 3. Fraser, at 129. have offered to write some key passages pond. The enemy’s fate was sealed if the 4. Fraser, at 130. of any subsequent decision. I next tried fish swam up in large numbers to devour 5. Fraser, at 130.

48 49 News and Views News and Views R v Ryan

HE hanging of Ronald Ryan polar- shot at all. He denied the so-called confes- pulped the issue of the Bulletin due to be ised Victoria and focussed national sions said to have been made by him. published on 31 January 1967. This dras- Tattention on the issue of capital But the jury convicted him of murder tic step was taken because of a cartoon by punishment. and, after coming back to ask a question Les Tanner and an editorial on capital pun- For anyone 50 years or older the broad about acting in concert, convicted Walker ishment. Packer also interfered at GTV-9: outline of the case is still familiar. Ronald of manslaughter. he forced the last minute withdrawal of a Ryan and Peter Walker, both small-time Mr Justice Starke pronounced the widely publicised BBC documentary on criminals, broke out of Pentridge Gaol death sentence. It must have been a hard capital punishment. in December 1965. During the escape, moment for him: he had been a lifelong Ultimately the struggle to save Ronald Warder George Hodson was killed. It opponent of capital punishment. Ryan was to no avail. Through all of the was widely believed that Ryan had fired Then followed an intense political legal and political skirmishing, Ryan the fatal shot, with an M1 carbine he had struggle in which the prize was Ryan’s remained stoical. At the final hour he taken in the course of the break-out. life. Many present and former members admitted having fired his carbine, but A huge manhunt began. Ryan and of the Victorian Bar distinguished them- denied intending to kill Hodson. He Walker were recaptured in Sydney and selves in the struggle to save Ryan from remained calm while the sheriff who read arrived back in Pentridge 19 days after the gallows: Opas QC and Brian Bourke the death warrant faltered and broke their escape. Whilst at large they had held appealed to the Court of Criminal Appeal down. up a branch of the ANZ Bank, and Walker and then unsuccessfully sought leave to Bruce Dawe wrote a fine poem about had shot a man dead in an execution-style appeal to the High Court. Later, Opas QC the execution (“A Victorian hangman tells killing in a toilet block. and Allayne Kiddle appeared in the Privy his love”): The trial before Starke J began on Council on Ryan’s application for leave 15 March 1966. Tony Murray SG QC, to appeal. Ralph Freadman, and his then . . . the journalists are ready with the flash- with Geoff Byrne, prosecuted. Ryan was junior solicitor Paul Guest, came across bulbs of their eyes defended by Phil Opas QC and Brian new evidence and worked furiously to get raised to the simple altar, the doctor Bourke; Jack Lazarus appeared for it before Starke J just hours before Ryan twitches like a stethoscope Walker. was due to be executed. This resulted in a — you have been given a clean bill of The trial turned largely on whether the last minute stay of execution health, like any fatal shot had been fired by Ryan or by Meanwhile, the anti-hanging commit- modern bride. Prison Warder Paterson. Eleven eyewit- tee, led by Barry Jones, had enlisted the nesses said that they had heard only one help of church leaders and the Labor Party With this spring of mine shot fired. They said that they saw Ryan in an attempt to pressure the Government from the trap, hitting the door lever, you fire the shot. When interviewed immedi- to commute Ryan’s sentence. The com- will go forth ately after the shooting, Paterson had said mittee included Maurice Ashkenasy QC, into a new life which I, alas, am not yet fit he heard no shot other than the one he Zelman Cowen and Richard McGarvie QC. to share. fired himself. However, in his second state- The Government had commuted every Be assured, you will sink into the generous ment, a few weeks later, he said he did death sentence passed since 1951 when pool of public feeling hear a shot before he fired. He repeated Jean Lee, Norman Andrews and Robert as gently as a leaf — accept your role, this at the inquest and at the trial. Clayton had been executed for the murder feel chosen . . . Paterson gave evidence that he had of Pop Kent. The Cabinet was not unified taken aim at Ryan and had taken first on whether Ryan should hang. At least Four minutes after the hangman pressure on the trigger when, as he said, a four Cabinet members strongly opposed (faceless, anonymous for the shame of woman walked into his sights and he fired capital punishment. But the Premier, it) pulled the lever, Ryan’s heart stopped into the air to avoid hitting her. Ryan’s Henry Bolte, wanted to hang Ryan in beating. With that last heartbeat, capital counsel had already satisfied themselves order to reassert his leadership: just a few punishment ended in Australia. It was that the M1 carbine had no first pressure years earlier he had been prevented from abolished progressively in each of the on the trigger; and no witness had heard hanging Peter Tait in the dramatic circum- States over the next 17 years, but no-one more than a single shot. stances recorded at 108 CLR 620. was executed during that time. Nevertheless, Paterson gave evidence The press was largely against Bolte. Ryan’s conviction, we now know, at the trial that he had heard another shot The Age, The Herald and The Sun all ran was right; his death was wrong. But the before he fired. His various statements strong campaigns against executing Ryan. controversy sparked by his sentence show significant differences in several Bolte went so far as to put pressure on the and execution brought an end to capi- important respects, and bring to mind the chairman of David Syme Limited to have tal punishment in Australia. His life and changing evidence of Constable McIntyre its editorial line softened. To their great death were a tragedy in miniature but he at Ned Kelly’s trial. credit, Ranald McDonald and Graham achieved a far greater good than he had Ryan gave evidence. He swore that he Perkin resisted the pressure. Sir Frank ever intended or dreamed of. did not fire at Hodson. He denied firing a Packer was more obliging: he recalled and Julian Burnside

50 51 News and Views News and Views Justice Sally Brown Unveiled

N 11 June 2002 the Attorney- General, the Honourable Rob Hulls OMP, unveiled a portrait of Her Honour Justice Sally Brown. Her portrait is the first portrait of a woman- com missioned by the Victorian Bar and the Women Barristers’ Association to hang with the numerous portraits of notable lawyers displayed in the main corridors of barristers’ chambers. It is the first portrait of a woman in the series — “Women and the Law”. Late last year the Bar Council agreed to support an initiative of the Women Barristers’ Association to establish a series of images which would, through art, acknowledge the achievements of women in the law. The series does this by Rob Hulls unveils the portrait. recognising both a woman’s excellence in her field and her contribution to the advancement of the interests of women in the law. Through the display of images of women the series seeks to enhance the visibility of women as members of the legal profession, to affirm their status in the law and, in the case of the Victorian Bar and the Women Barristers’ Association, to provide us with an opportunity to honour the many women who have been and are contributors to the law. Rob Hulls, Justice Brown, the artist Amongst her many achievements Her Josephine Kuperholz, chair of the Honour has the distinction of being the Women Barristers’ Association first woman to lead a Victorian court. This Frances Millane and Chairman of the she did as Chief Magistrate from 1990 Bar Council Robert Redlich QC. Justice Brown and the artist Josephine before her elevation to the Family Court Kuperholz. of Australia in 1993. Justice Brown is also panels by adapting a 19th century non- acknowledged for her strong commitment silver photographic process, the Gum A committee consisting of representa- to establishing gender and cross-cultural Bichromate process. In the past this proc- tives from the Bar Council, the Women awareness in the law, her commitment to ess has been applied to paper surfaces Barristers’ Association and the Equality equality of opportunity for women and the and, according to the artist, her adaptation Before the Law Committee will recom- personal and professional support she has of the process and its application to glass mend future candidates for the series. given to other women pursuing careers in is unique. The colour and translucency of the law. the work was achieved by adding layers of Frances Millane The artist, Josephine Kuperholz, water-colour pigments mixed with light- Convenor, printed the images used on the two glass sensitive chemicals. Women Barristers’ Association

50 51 News and Views ReprieveAustralia’s US Mission Revisited

Recent decisions in the United States banning Mr Stafford Smith in New Orleans. The issues the execution of the mentally retarded and that confronted him and the first-hand prohibiting a judge alone to determine the fate observations he made are detailed in the articles of a defendant found guilty of a capital crime below. means that many lives may be spared. Many Lethal Lawyers deals with the standard of legal applaud the decision, including representation in the Southern death penalty ReprieveAustralia. belt. Union Confidence Justice followed by Some readers will recall the launching of the Angola, crystallize Ashley’s first observations of organization by His Honour Justice Michael court proceedings and death row respectively. Kirby on 17 May 2001 followed by the address Choosing Death discusses the ethical given by Mr Clive Stafford Smith, Director of the obligations facing a lawyer when a client wishes Louisiana Crisis Assistance Centre. (See Spring to plead guilty or abandon appeal rights. The 2001 edition pp. 34–42.) final article, The Gift of Time, reflects on the Ashley Halphen recently returned from often emotionally intense nature of death the United States, having worked with penalty work.

Lethal Lawyers

In the United States, one need go no Every time he opened his eyes, a lover in an alcohol sodden rage was the further than the South to find some different prosecution witness was on first person in the US to be executed by of the most notorious examples of the stand describing another aspect electricity on 6 August 1890. incompetent legal representation. of the . . . robbery killing of grocer Following the publication of Beccaria’s classic essay On Crime and Punishment, Tragically, it is in circumstances where Kenneth Kwan. public sentiment continued to swing clients’ lives are at stake. When state District judge Doug between abolition and retention of the Shaver finally called a recess, Benn death penalty. George McFarland was sentenced to During the 1930s and 1940s executions death in Houston in August 1992 for was asked if he truly had fallen reached their highest levels, most likely killing Kenneth Kwan, a convenience asleep during a capital murder trial. as a consequence of public anxiety over store owner. The Houston Chronicle “It’s boring,” the 72 year old, the crime wave generated by the Great described what happened as McFarland Depression (1929–1940) and Prohibition longtime Houston lawyer explained stood on trial for his life: (1916–1932). . . . In Nevada in 1923, lethal gas was first Seated beside his client . . . defence authorized as a humane improvement on HISTORICALLY attorney John Benn spent much both hanging and the electric chair. of Thursday afternoon’s trial in APITAL punishment arrived on There was a complete cessation of executions from 1968 to 1976 while the apparent deep sleep. North American shores with the Cvery first British colonists. In 1608 constitutionality of the death penalty was His mouth kept falling open and his the colonists carried out their first hang- being tested in the courts. The judicial head lolled back on his shoulders, ing. moratorium on execution ended in 1977 By 1835, laws were enacted to bring when Gary Gilmore was executed by firing and then he awakened just long the hangman behind a wall or fence or squad in Utah. enough to catch himself and sit within the prison yard. In 1972 the Supreme Court decided the upright. Then it happened again. William Kemmler, an illiterate who case of Furman v Georgia and by a 5–4 And again. And again. confessed to the axe murder killing of his margin found the death penalty as then

52 53 News and Views

practised, rife with discrimination, making charged with a crime would be capably jail, the trial resumed, and the death pen- it an unconstitutionally cruel and arbitrary defended no matter what his/her eco- alty was imposed a few days later. punishment. nomic circumstance, without resentment In another case, defence counsel cross- After just four years, the Supreme at any unfair burden arising but proudly examined a witness whose direct testi- Court in Gregg v Georgia changed course and to the best of a lawyer’s ability. mony counsel missed because he was in a 7–2 decision, finding that the punish- More than 60 years since the Scottsboro parking his car. ment of death does not invariably violate case, what was hoped remains unrealized. John Young was represented at his the constitution. The case heralded the The situation has variously been described capital trial by an attorney who was introduction of a two-stage or bifurcated as a “crisis” and “scandal”. Justice Sandra dependent on amphetamines and dis- trial that involved a guilt phase and pen- Day O’Connor of the Supreme Court says tracted from his law practice because of a alty phase. The new rules were suppos- the problem is one troubling feature of a number of personal problems. The lawyer edly designed to prevent arbitrary justice capital punishment system that may well as a result was inadequately prepared and and discrimination by requiring courts at be allowing some innocent defendants to his performance inept. A few weeks after the sentencing phase to consider aggra- be executed. trial, Young met his lawyer at the prison vating and mitigating factors. In fact studies reveal that as many as yards after pleading guilty to both State The expiration of the moratorium in two out of three appealed death sentences and Federal drug charges. 1976 marked the beginning of a new death are set aside because of errors by defence A Georgian lawyer conceded his client’s penalty era by the introduction of execu- lawyers at trial or because of prosecuto- guilt and arguing for a life sentence at the tion by lethal injection, first used in Texas guilt phase, had not even read the State’s in 1982. death penalty statute nor realized that a capital trial was bifurcated into separate THE STATISTICS determinations of guilt and punishment. Over the course of the twentieth century A court-appointed lawyer, when asked more than 7000 men and woman have by the trial judge to name criminal law been lawfully executed. There are more decisions from any court with which he than 3700 people on death row. Since was familiar, could only name two, one of the reinstatement of capital punishment which was not a criminal case. in 1976, approximately 749 people have During a penalty phase a court- been executed, of those 66 were executed appointed lawyer said about his client to in 2001. the jury, “you have got a little ole nigger There are currently 38 States in man over there that doesn’t weigh over America that regard the death penalty as 135 pounds. He is poor and he is broke. a lawful criminal sanction. As such, their He’s got an appointed lawyer . . .” standing in the western world is unique. Another court-appointed lawyer, a sole Since 1973, approximately 98 people practitioner who had never tried a capital have been exonerated and released from case, was struggling with financial prob- death row. This amounts to a complete lems and a divorce and being paid at a rate exoneration for about every seven execu- of about $20.00 an hour. Under the stress tions or an average of 3.9 individuals being of it all his closing argument amassed a freed each year. Ashley Halphen total of 255 words. Seven-hundred-and-sixty-one years of James Brewer was sentenced to death lives have been lost on death row! rial misconduct. George McFarland’s case in circumstances where his attorney spent Wrongful convictions can be explained was not, however, set aside on review. a couple of hours preparing the sentenc- by the failings in the adversarial system Astonishingly, in February 1996 the Texas ing phase. He waived the opportunity to — corrupt law enforcement, prosecutorial Court of Appeals by a 7–2 margin agreed make an opening argument and presented misconduct, judicial bias and racism. This that sleeping John Benn was no reason to neither character evidence nor evidence article however, focuses on counsel’s inef- reopen McFarland’s conviction or recon- of his client’s severe mental illness. fectiveness as a contributing factor. sider his death sentence. One attorney told a jury that his client, “can’t live with that beast from within any THE PROMISE ANECDOTAL SUPPORT longer”, and that a death sentence might The Sixth Amendment of the United There are a number of illustrations that be, “the gift of life”. States Constitution provides that in lend themselves to the notion that truth is An article in the Tennessee Bar Journal all criminal prosecutions, the accused often far stranger than fiction. revealed that some attorneys are spend- shall . . . have the right of counsel . . . After years in which she and her ing 20 hours or less preparing for a death The famous trial of the Scottsboro boys children were abused by her adulterous penalty trial. This results in representa- where Clarence Durrow defended nine husband, a woman in Talladega County, tion like that afforded Keith Messiah. African-Americans accused of raping two Alabama, arranged to have him killed. Messiah was convicted of capital murder white women gave the Sixth Amendment The woman was ultimately sentenced to in a one-day trial in Louisiana. His attor- practical utility. The case established that death. Her court-appointed lawyer was so ney then merely stipulated to his client’s any person facing capital punishment, too drunk that the trial had to be delayed for age at the time of the offence and rested poor to afford an attorney, has the right to a day after he was held in contempt and his case. The entire penalty phase took 20 have an attorney assigned to him. sentenced to jail. The next morning, he minutes. It was foreshadowed that every person and his client were both produced from One study found that one-fourth

52 53 of those under sentence of death in even contemporary practice . . . for find- The remuneration is so minimal that few Kentucky were represented at trial by ing in the Constitution a right to demand accomplished lawyers can be enticed to attorneys who since have been disbarred judicial consideration of newly discovered capital cases. Those who do take a capi- or resigned to avoid disbarment. information brought forward after convic- tal case rarely have the time to defend it Defence counsel’s failure to present tion.” properly. As a result individuals are rep- evidence available at the time of trial has It has been noted that courts some- resented by lawyers who lack experience, preceded the imposition of numerous times review and decide capital cases on expertise and resources. Offices preoc- death sentences. the basis of appellate briefs that would be cupied with capital defence work must The failure of defence counsel to rejected in a first-year legal writing course get used to the high burn-out rate which present critical information helps to at law school. results in more experienced attorneys account for the death sentence imposed The Georgia Supreme Court affirmed being replaced by young, inexperienced on Jerome Holloway who has an IQ of 49 the death sentence after receiving a brief lawyers who are even less able to deal and intellectual capacity of a seven year that contained only five pages of argument with the overwhelming workloads. old and William Smith who has an IQ of 65. and was filed only in response to threat of The situation has further deteriorated It also helps explain why Donald Thomas, sanctions against the lawyer. in recent years because of the increased a schizophrenic, was sentenced to death. In many instances, it’s not just a ques- complexity in the law and termination in In each case the jury knew nothing of tion of inadequate lawyers: there simply 1995 of federal moneys for local death the defendant’s respective impairments are no lawyers available, especially for penalty centres that previously provided because lawyers failed to present a scin- appeals. local firms with capital expertise and tilla of evidence of those conditions. In 1995, half of California’s death row investigative assistance. When a lawyer in El Paso, paid only inmates awaiting their first appeals had no Less than one-quarter of the 38 death $11.84 per hour, failed to present an lawyers. In Pennsylvania, with the excep- penalty States have set any standards available alibi witness, the Fifth Circuit tion of a handful, none of the 190 inmates for competency of counsel and in those Appeals Court remarked that the justice on death row at the time had representa- few States, the standards were set only system only got what it paid for. tion after the direct appeal stage. recently. In most States, any person who A Tennessee appellate court cited 17 passes a Bar examination, even if that cases in which attorneys offered no miti- THE REASONS attorney has never represented a client in gation evidence whatsoever during the The reasons belying the poor quality of any type of case, may represent a client in penalty phase of the trial. representation in capital cases are readily a death penalty case. Are more able attorneys on appeal able identifiable. Many State court judges, instead to somehow rescue the situation? Where In many jurisdictions, judges simply of correcting the situation, foster it by counsel at first instant fails to preserve an appoint members of the Bar in private intentionally appointing inexperienced issue by an objection made to the court, practice to defend indigent accused. and incapable lawyers to defend capital opportunity on appeal to argue the point These lawyers may not want the case, cases. Judges have appointed to capital is lost. Increasingly, strict procedural doc- may receive little or no compensation cases lawyers who have never tried a case trines developed by the Supreme Court for handling them, may lack any inter- before. For instance, a newly admitted since 1977 means that failure to preserve est in criminal law and may not have the member of the Georgia Bar was surprised an issue will bar review of that issue. skill to defend those accused. As a result, to be appointed to handle the appeal of a This leads to the entirely unsatisfactory individuals are often represented by inex- capital case on her fifth day of practice in situation that innocence is not generally perienced lawyers who view their respon- Colombus, Georgia. reviewed. sibilities as unwanted burdens, have no The system almost invariably leads to Lionell Herrera of Texas had accumu- inclination to help their clients and no many inexperienced and ill-prepared law- lated considerable exculpatory evidence incentive to develop criminal trial skills. yers available or appointed to handle capi- that was not available at trial but was Some jurisdictions employ a contract tal cases. At the Terrell Unit in Livingston, unable to persuade the Supreme Court to system in which a county contracts with Texas, inmates and death penalty lawyers reconsider his case. Justice Scalia joined an attorney in private practice to handle refer sardonically to a place they call the by Justice Thomas took the view that, all of the indigent cases for a specified Mock Wing. This metaphorical prison “there is no basis in text, tradition, or amount. Often contracts are awarded enclave has housed at least a dozen death to the lawyer or group of lawyers who row inmates, who shared the same lawyer, bids the lowest. The lawyer is still free Ronald G. Mock. to generate other income through private Like so many lawyers, Mr Mock has Where counsel at first practice. Any money spent on investiga- been accused of inadequate factual inves- tion or experts comes out of the amount tigation and an inability to keep abreast of instant fails to preserve an the lawyer receives. These programs are complex and ever-changing legal princi- issue by an objection made well known for the lack of expenditure in ples and doctrines. to the court, opportunity these areas. A third system is the public defender STANDARDS OF COMPETENCY on appeal to argue the system. Some of these offices employ This sorry state of affairs is tolerated in point is lost. This leads to remarkably dedicated attorneys whose part because the Supreme Court has said the entirely unsatisfactory jobs are nonetheless made almost impos- the purpose of the Sixth Amendment’s sible by overwhelming caseloads and low guarantee of counsel is not to improve the situation that innocence is funding. These programs have never been quality of legal representation. not generally reviewed. properly funded in many jurisdictions. The court in Strickland v Washington

54 55 adopted a standard that is highly defer- Larry Gene Heath, executed on March 20, injustice are not so easily confined . . . The ential to the performance of counsel. To 1992, consisted of only one page of argu- way in which we choose those who will die prevail on a claim of ineffective assistance ment and cited only one case. reveals the depth of moral commitment of counsel, a defendant must show that In essence the minimal standard for among the living.” the attorney’s representation fell below an attorney competence employed in death People are able to help, by contacting objective standard of reasonableness and penalty cases offers little protection to ReprieveAustralia, a non-profit organisa- also establish a reasonable probability that an indigent defendant. The test has been tion established in Melbourne, Australia, counsel’s errors affected the outcome. described as the “mirror test” — you put a with the aim of supporting the provision of It appears that rather mediocre assist- mirror under the court-appointed lawyer’s effective legal representation and humani- ance passes muster under the Strickland nose, and if the mirror clouds up, then the tarian assistance to indigent defendants standard. Often what are clearly mistakes lawyer is considered adequate counsel! facing the death penalty. As a key part and errors in judgement are characterized of its program ReprieveAustralia has as strategy and thus beyond review. A VOLUNTEER SUPPORT established a volunteer internship pro- defence lawyer in one Texas case failed to The best hope for those facing the death gram, allowing Australians to donate produce any evidence in mitigation at the penalty is that capable lawyers volunteer three months or more of their time as penalty phase of the trial and his entire to take capital cases and provide proper volunteers in death penalty law offices closing argument regarding sentencing representation regardless of whether they representing impoverished accused. was: “You are an extremely intelligent are paid adequately or at all. jury. You’ve got the man’s life in your As a Justice of the Supreme Court, Ashley Halphen hands. You can take it or not. That’s all I once a supporter of the death penalty have to say.” The Fifth Circuit character- but now an ardent opponent noted, “It is Ashley recently worked for an organi- ized counsel’s non-argument as a dramatic tempting to pretend that those on death zation based in New Orleans, where ploy and found the attorney’s performance row share a fate that is in no way con- attorneys act for indigent defendants satisfied Strickland. nected to our own, that our treatment of either charged with a capital offence or The same ineptitude is tolerated on them sounds echoes beyond the chambers on death row pending appeal. appeal. The brief on direct appeal to the in which they die. Such an illusion is ulti- For further information write to Alabama Supreme Court in the case of mately corrosive, for the reverberations of [email protected]

Union Confidence Justice

OME sat at the Bar table. Others whis- added security but also symptomatic of ance was called. The man with the differ- Spered almost mischievously by the his unique status. ent handcuffs rose to his feet and shuffled bench with the judge. Prisoners sat dog- His father sat with immense dignity to the Bar table where he took a seat. gedly in “the box”. One amongst them sat and read over the motions that might save In December 1996, at just 16 years upright and alert. He is on death row. his son’s life, or at least prolong his death. of age, he had been indicted for capital Section H of the 24th District in When introduced, I was greeted with a murder following the fatal shooting of Jefferson Parish is the judge’s court. There forced smile. I understood. a 45-year-old man and his 70-year- is even a portrait of him on the wall. A name was called. A man automatically old mother. In April 1996 the jury All persons present in court were white stood. The prosecutor asked to revoke the returned a verdict of guilty. At the pen- except the prisoners and their families. man’s probation then continued chewing alty phase he was sentenced to death. The latter scattered across the body of mercilessly on his gum. The man said his The Louisiana Supreme Court on direct the court. attorney was outside. The hearing contin- appeal reversed both conviction and The bright orange overalls captured my ued anyway. sentence. The case was remanded for a immediate attention. Then I noticed the Shortly after that the public defender new trial. handcuffs. The shackles became apparent requested a continuance on behalf of her The motions before the court sought only when the bailiff removed the prison- client who had been charged with murder. a recusal of the Judge and the quashing ers. They were chained to one another. She stressed that no police report was yet of the indictment because of the dis- Silence was broken by the chatter at forthcoming. Her client had been wearing crimination in the selection of grand jury the Bench. I reminded myself that pro- his orange overalls almost four months. I forepersons and because of the improper ceedings were conducted in open court. awaited the court’s expression of dissatis- exclusion of jurors from the grand jury Cases were called in rapid succession faction. There was none. process. whilst informal exchanges criss-crossed In another case a man was reprimanded In all, over the preceding three weeks, the room. for failing to attend by the scheduled time. six people had worked around the clock My gaze settled on the only individual He was handcuffed and placed in “the preparing these motions. We all sat rest- who might some day know the precise box”. Having fallen asleep as well clearly lessly in our seats. time and location of his own death. His inflamed the Judge. The motion to recuse was denied for handcuffs were different, perhaps for Finally the case that begged my attend- reasons not stipulated and without resort

54 55 to oral argument. The hearing was over his face escorted our client away. “Thank words inscribed on the emblem resting within moments. y’all for your hard work”, was all he had between the United States and Louisiana His Honour left the Bench. Tension dis- time to say as he passed. flags . . . “Union Confidence Justice”. sipated. The guard with a chin too big for As I left the courtroom I read the three I drew a wry smile.

Angola

HE arch at the entrance reads, had been convicted of the murder of a In 1995 a jury sentenced him to death TLOUISIANA STATE PENITENTIARY, child. for first degree murder. The district or otherwise known as Angola. With 3461 Where does one begin a conversa- attorney’s case was that two people were prisoners serving life sentences, almost tion in such a predicament with so many gunned down outside a highway bank in 100 prisoners on death row and 1800 staff, taboo topics to avoid? The initial moments a well planned ambush. Only one of the Angola is the largest prison in the United passed of their own accord. I soon found women survived. The other left children States. Formerly a plantation, slaves were Q.K. to be intelligent, articulate and to fend for themselves. sent from an African country also known highly opinionated. Conversation ranged My purpose was to simply introduce as Angola. Says one prisoner, “the only from genealogy to turtle soup. I became myself as the person who would be difference between now and 1860 is the so absorbed I did not realize that his wrists working on his appeal. Once the formali- year.” Not a dramatic thought as one were chained to his waist! ties were exhausted, G.A. chatted about observes guards patrolling on horseback Before appeal avenues finally exhaust, his love of music. We listed a number with shotguns in hand, overseeing chain prisoners can spend in excess of ten of mutual favorites then we sang them. gangs working the land. years on death row. I learnt that death Whether it was singing punctuated by On the immediate right of the entrance, row inmates spend 23 hours of each day laughter or laughter punctuated by sing- through cyclone fences and swirls of locked in their cells. They are allowed 1 ing I can’t be sure. The medley eventually barbed wire, I saw a two-tiered building hour in exercise that is spent alone in a broken by his revelation that he hadn’t that the world knows as death row. Once caged yard. Breakfast is at 5 a.m., lunch is “heard laughter in a long time”. my identification was verified and the pat at 10:30 a.m. and supper is at 3 p.m. Visits On my way home I remembered these down complete, I found myself walking are not commonplace — not for want of words together with those of another without escort through immaculately kept care but for want of money. inmate on death row who said, “We’re grounds towards the building. Imagine your life without human touch. supposed to be vicious and cruel but this Steel bars in a variety of permutations Without laughter. Where each day is the (death row) goes beyond anything anyone filled my eyeshot. My attention focused mirror image of the day before. Imagine could do.” on the oppressively clean passageways. your life without the moon or the stars. My overwhelming feeling was one of Washed and re-washed, polished and Imagine your life without dreams. Imagine shame. Shame that I expected to be con- re-polished, I could eat from the floor the only sounds being rattling chains fronted by inarticulate, lifeless and feared without hesitation whilst peering at my and slamming steel doors. Imagine being characters who had been shadowed and reflection on the tiled walls. watched each time you use the toilet... defeated by both the physical and psy- There were six different secured I had all the stereotypical preconcep- chological brutality of their environment. points that I passed before reaching my tions of death row as projected by the As such I completely overlooked the for- ultimate destination. I was briefly intro- media. That was so until I met my second midable strength of the human spirit that duced to my first client, Q.K. We sat fac- client, G.A. He is 30-something. He forgets can indeed rise above the bleak futility of ing each other in a cubicle the size of a exactly how old. He thinks it has been an existence. telephone box that was partitioned by a eight years since he last took his liberty It is this spirit that monopolizes my wire mesh type material. I knew that he for granted. memories.

Choosing Death

was just a young ’un when I got raped equally merciless. In the oppressive heat, mustered the courage and left him. “Iby Daddy.” her parents left the children for a time, Tragically, this history is not uncommon She threw her arms up in utter exas- “me, I was so thirsty, I sucked my sister’s for many of the woman on death row. peration. Only one reached into the air, li’l ole lip.” Since the death of the man who had the other remained chained to the table. Her physical integrity was again vio- stalked and harassed her when she She was raised on a remote property lated as a teenager. She was beaten by her refused his approaches, she had been in in the deep South, in circumstances of husband on their wedding night when he custody 14 years, eight of those on death extreme poverty. There was neither elec- discovered she was not a virgin. row. “I feel safe in here and I sleep better tricity nor running water. “In winter, it was Summers came and winters passed and than I ever did on the streets,” she says so cold, we would pee in the bed to keep the marriage continued with abuse and without hesitation. ourselves warm some.” Summer was as violence. Finally, almost 20 years later, she Of the 3717 people on death row in

56 57 the United States, there are 54 woman penalty phase considers evidence relevant The third phase is the appellate proc- (1.45 per cent of the death row popula- to sentencing. ess. There are three levels within this tion). The first woman executed in the US At the pre-trial stage, negotiations process. The first stage is the automatic, was in 1632. There are 561 documented between the district attorney and defence direct appeal where argument is heard instances of the execution of female lawyer might save the client’s life. Where as to whether there has been any errors offenders. These 561 executions consti- a client wants to plead guilty at this stage, made on the face of the record. The sec- tute less than 3 per cent of all confirmed the ethical guidelines allow the attorney ond stage involves a post conviction hear- executions in the US since 1608. to still enter negotiations. The authority ing where new evidence is introduced. Though 14 years henceforth, there was to make decisions is left exclusively with Finally, after State appeal courts have a retrial approaching. This explained my the client. The lawyer’s role at this point is been exhausted, challenges can be made attendance at the local county jail. During primarily one of informing the client of all in the federal jurisdiction. discussions, my client expressed the options. The decision to accept a plea thus Should a defendant decide to aban- desire to abandon all her prevailing legal rests entirely with the client. don the appeal process, it would not be rights. “Let it be God’s will,” she explained If the client completely rejects all plea improper for a lawyer to encourage the without reservation. bargains and elects to go to trial, there is client to take another course of conduct. To comply with her request was poten- no conflict for the lawyer. If the client, In certain instances it may be prudent tially tantamount to judicial suicide! for a lawyer to pursue a declaration of Consider that when an individual is on incompetency, mental retardation or death row, one of the most traumatic feel- insanity. A “next friend” motion is the ings is the sense of powerlessness — the When an individual is on mechanism that allows the lawyer to uncertainty as to the precise time when death row, one of the most seek the appointment of a guardian or the execution is scheduled. Laborious traumatic feelings is the take other protective action with respect appeals prolong the agony of uncertainty. to a client when the lawyer reasonably Consider also the conditions on death sense of powerlessness believes that the client cannot adequately row; inmates are isolated in minuscule — the uncertainty as to give effect to his or her own best inter- cells, their lifestyles marked by immobility the precise time when the ests. Where the declaration sought is and lack of stimulation, there is a general ultimately made, the likelihood of execu- indifference to basic human needs, there execution is scheduled. tion becomes more remote so long as the are few visits and no comforts. There is Laborious appeals condition prevails. nothing to do but ponder fate. prolong the agony of Where the declaration is not made To end the suffering associated with and the lawyer believes that the course being on death row, to put an end to a uncertainty. of action chosen by the client is immoral family’s grief or to salvage a measure of or otherwise repugnant, the lawyer does grace and dignity a defendant may elect however, rejects even a trial, ethical guide- have the option to withdraw. However, a for execution. lines allow for intervention by the lawyer lawyer who continues through the appeal Capital defendants often express a where there are reasonable grounds for process, contrary to instruction, is not desire to concede to the State at some doubting the client’s competency due to without at least some ethical foundation. point during the criminal proceedings. Of any physical or mental condition. The issues that come into play here focus the 302 inmates executed between 1973 During the penalty phase, the jury, on the state’s overall interest to preserve and 1995, 37 (or 12 per cent) gave up which is the same body that convicted life, avoid cruel and unusual punishment their appeals. the defendant in the guilt phase, hears and prevent the possibility of suicide. The case law on the right to waive mitigating and aggravating evidence. The The lawyer has both a legal and ethi- representation or appeal is well settled. only possible outcomes are a sentence of cal backbone to intervene where a client A defendant may do so if the choice is life in prison (without parole) or death. has surrendered further legal challenge. made knowingly, voluntarily and intelli- Issues arise where a defendant does not Moreover, courts have the power to gently. Once these criterion are met, the want to present any mitigating evidence limit a defendant’s desire to expedite Supreme Court has made it clear that it during this phase. proceedings unless the defendant can will not stand in the way of an individual The consideration of mitigating factors demonstrate the requisite competency to who chooses to expedite their own execu- is constitutionally required by the Eighth establish that the choice has been made tion. Amendment. Thus a lawyer has a legal knowingly, voluntarily and intelligently. What are the obligations on the lawyer basis for exceeding the duty owed to the Where a competent defendant does in these circumstances? Where a defend- client who does not wish to present to the choose death, the lawyer’s option is lim- ant wants to plead guilty to a capital court any mitigatory evidence. ited to withdrawing from the case as con- offence, offer no mitigatory evidence Acting contrary to a client’s instruc- siderations of human dignity and the right or waive all appeals, should the lawyer tions will, however, violate ethical to self-determination take precedence. adhere to instructions? requirements. Such concern is evaded by The woman on death row, left chained Considerations differ depending on the the appointment of independent counsel, to a table when expressing her judicial stage reached in litigation. A defendant thereby allowing for mitigating evidence surrender, ultimately recanted her stated must have a bifurcated trial, including to be placed on the record. This is essen- intention. Whether she is sentenced to guilt and penalty phases. The guilt phase tial for a carefully balanced penalty deter- death or released remains unknown. considers the merits of the case, while the mination.

56 57 The Gift of Time

IGURES taken between 1989 and 1993 scattered in the surrounding area. I was instantly brought on a steady flow of per- Findicate guns are used in approxi- somehow reminded of a plantation, only spiration. He advised that only commer- mately seven out of every ten homicides glossed over by the import of industriali- cially sealed products were permitted. — handguns being the weapon of choice zation. I politely listened while Earl went on since they can be easily concealed. As my car came to a halt, I was greeted to detail the infinite threats to security In 1998, a security guard was shot by the menacing looks of a number of local resulting from a breach of this rule. The with one such handgun. A small amount youths. When they saw a co-tenant smile others strategically took his soliloquy as of money was obtained. The victim was at me with familiarity, they quickly lost an opportunity to hurry off and embrace on the phone to his wife at the time. She interest. their moment. I finally left Earl in mid heard four distinctive pops before the I had come to pick up the young man’s sentence to purchase a rule compliant phone dropped. family and transport them to the secured birthday cake. A number of men were arrested includ- forensic unit to celebrate his 21st birth- Miraculously, the cake was able to ing a teenager. day. With no public transport available and withstand the veracity of Earl’s inspection. The courthouse was the most impres- with little money to spare, they had not Another officer was especially dispatched sive structure in this particular rural seen him since his arrest, four years ago. to deliver the cake. He was but 20, too county. It was surrounded by only broken, A hint of their general isolation first young to drink in bars, but old enough to makeshift abodes, barely standing yet surfaced as we drove through the capital. supervise troubled adults suffering seri- allowing some protection for many from My passengers sat silently, fixated by their ous mental illness. the elements. surroundings. The capital was only 30 Five people plus a soft drink vending The judge in courtroom 1 busied miles into the drive and I wondered if they machine cluttered floor space a queen- herself with the daily list, rife with mis- had ever been there before. I did not seek sized mattress could cover. The waiting demeanors — the sort of mischief that to absolve my curiosity. room in the unit had never experienced got you into trouble at the time but later the occasion of a 21st birthday party. looked upon it without regret. Conversation was caged: there were A relatively young man sat shackled four uniformed guards in a window- and handcuffed with a social worker, stoi- A number of experts gave fronted office immediately across the hall- cally by his side. His competency hearing way, peering curiously into the room. The was the final matter called for the day. detailed and technical request for a knife to cut the cake brought Was he able to properly instruct his legal evidence. Even the Judge the staring to an abrupt halt. representatives in relation to the charge of failed to understand a There were no streamers, balloons, first degree murder of a security guard? candles or birthday songs. Just five people A number of experts gave detailed and number of the responses. solemnly eating cake. I left the room. technical evidence. Even the judge failed After careful consideration I was met a short time later by the fam- to understand a number of the responses. of the evidence, the judge ily. They carried the remainder of the cake After careful consideration of the — a remnant of an afternoon that had evidence, the judge found the defendant found the defendant quickly transformed into a memory. incompetent to stand trial. The case was incompetent to stand trial. Outside, under a big, old oak tree, I was continued for 12 months. The case was continued only able to muster forced smiles for the I don’t know whether the defendant family portrait that I promised I would for- had understood what went on, I don’t for 12 months. ward to the brother, sister and child they know whether he understood why he was had left behind. at court, I don’t even know whether he En route to the hospital conversation knew where he was. But one thing was was strained. Whatever came to mind certain, tomorrow he would not be spend- seemed so trivial in comparison to the ing his 21st birthday on death row. subject of their anticipation. The radio I took a right turn off Interstate 10, countered the silence until our arrival. APPEAL BOOKS then a left turn on Highway 61. There We met Earl, a security officer at the COURT BOOKS were a series of tight turns that I care- front gate. His chin hung like a necklace APPLICATION BOOKS fully negotiated before reaching my and his belly battled to stay above his Personalised confidential service ultimate destination. In just 30 minutes waistline. He moved with effort. Over the Professional attention to detail I had travelled from the vibrance of the course of our induction, I noticed a com- Urgent instructions accepted French Quarter to a weary and depleted pelling mix of stress and excitement over- town, divorced from the promises of the whelm him. It became apparent that he Mobile: 0412 227 675 American Dream. was slowly losing control — his sedentary E-mail: [email protected] An oil refinery was the epicentre of existence not accustomed to this level of THE APPEAL BOOK COMPANY numerous trailers and project houses activity. A query regarding a birthday cake

58 59 News and Views/A Bit About Words Doublespeak

utside the realm of high art, entertaining. By contrast, doublespeak is Australia, the Department of Immigration language is intended to convey dishonest and dangerous. and Multicultural and Indigenous Affairs Omeaning. Ideally, it should do so In his closing address at Nuremberg, US made a submission. That submission was accurately. Some writers and speakers prosecutor Robert Jackson said: stored on the Department’s website. The betray these ideals, and use language as full web address of the submission showed Nor is the lie direct the only means of false- a sham to mask an intellectual void; or that it was held in a sub-directory called hood. They [the Defendants] all speak with worse, as a stalking horse for quite differ- “illegals”. a Nazi double talk with which to deceive the ent ideas they dare not acknowledge. Like all doublespeak, “illegals” is used unwary. In the Nazi dictionary of sardonic The world is awash with examples of for a purpose: these people are immedi- euphemisms “final solution” of the Jewish the first sort — empty rhetoric dressed up ately locked up without trial. No doubt it problem was a phrase which meant exter- in the finery of Rococo elegance, or vacu- seems less offensive to lock up “illegals” mination; “special treatment” of prisoners ous new-Age gush, or the yawning post- than to lock up innocent, traumatised of war meant killing; “protective custody” modern fashion of abstraction piled on human beings. meant concentration camp; “duty labor” abstraction — all devoid of real content. They are also disparaged as “queue meant slave labor; and an order to “take a These are the empty calories, the fast food jumpers”: a neat device which falsely firm attitude” or “take positive measures” of modern discourse. They are the staple suggests two things. First that there is a meant to act with unrestrained savagery. of cheap magazines, talk-back radio and queue, and second that it is in some way art criticism. The war in Vietnam produced such appropriate to stand in line when your life More interesting is the second sort: doublespeak expressions as: is at risk. speech which serves to disguise the thing When the “illegals/queue jumpers” Collateral damage (killing innocent civil- described. Depending on circumstances, it arrive, they are “detained” in “Immigration ians) may be called tact, or diplomacy or dou- Reception and Processing Centres”. This Removal with extreme prejudice (assas- blespeak or lying. The proper description description is false in every detail. They sination) depends on the speaker’s purpose. are locked up without trial, for an indefi- Energetic disassembly (nuclear explosion) Tact sets out to avoid giving offence. It nite period — typically months or years Limited duration protective reaction air suppresses or disguises an unhappy truth — in desert camps which are as remote strikes (bombing villages in Vietnam) to spare the feelings of another. It is a from civilisation as it is possible to be. Incontinent ordnance (bombs which hit down-payment on future favour. It is false- They are held behind razor wire, they are schools and hospitals by mistake) hood in the service of kindness. When tact addressed not by name but by number, Active defence (invasion). is lifted from the personal to the national and they slowly sink into hopelessness and scale, it is called diplomacy. When Jimmy Carter’s attempt to rescue despair. Euphemism does not directly suppress American hostages in Iran — a catastrophic When the new prison for asylum seek- the truth, but disguises it by substituting strategic blunder — he described it as “an ers at Port Augusta is completed it will gentle words for harsher ones. Its suc- incomplete success”. When Soviet tanks have, in addition to the usual layers of cess is limited in the long-term because invaded Prague in 1968, the manoeuvre razor wire, an electrified fence. But in the euphemism is readily identified with was described as “fraternal internationalist the doublespeak of the Department of the underlying idea and takes on the col- assistance to the Czechoslovak people”. Immigration, these are officially called our of that idea. This process is readily Doublespeak uses language to smug- “energised fences”. Wait for the energised seen in the progression of euphemisms gle uncomfortable ideas into comfortable cattle prods. regarding universal bodily functions, for minds. The Nazi regime were masters at it. When a “detainee” (doublespeak for example: water closet — WC — lavatory The Howard Government is an enthusias- prisoner) is removed from a detention — toilet — loo — the Ladies/Gents room tic apprentice. centre for deportation, the process is — restroom, etc. The victims of protective reaction air generally done in the dead of night and The intention of euphemism is benign, strikes, or incontinent ordnance, or active may involve forcibly tranquillising the if somewhat fey. Its excesses of delicacy defence, or fraternal internationalist assist- person; it is generally done by a squad of inspired Dr Bowdler to strip Shakespeare ance often flee for safety. A small number ACM guards in costumes reminiscent of of any questionable content. Bowdler’s of them arrive in Australia asking for help. Darth Vader. This alarming procedure is Shakespeare was published in 1818 They commit no offence under Australian sanitized as “an extraction”. — before the Victorian age, let it be noted or international law by arriving here, In the desert camps, dormitories are — and was probably influenced by the without invitation and without papers, regularly checked during the night: at 8.00 attitudes which spawned Mrs Grundy. In in order to seek protection. Nonetheless p.m., midnight and 4.00 a.m., by shining Morton’s play Speed the Plough (1798), the Australian Government refers to them a torch in the face of each detainee and Mrs Grundy was the neighbour whose nar- as “illegals”. This piece of doublespeak demanding to see their identification. This row and rigid views about propriety were a is not just for tabloid consumption: it is a “security check”. It also fits within one tyranny for her neighbours. is official. When the Human Rights and of the standard definitions of torture. Tact is kind; diplomacy is useful; Equal Opportunity Commission held If detainees are driven to the desperate euphemism is harmless and sometimes an inquiry into children in detention in extreme of suicide or self-harm, Minister

58 59 Ruddock disparages this as “inappropriate Procedural Fairness Bill reduces to van- In Nazi Germany (before the con- behaviour” designed to “manipulate the ishing point the scope for judicial review of centration camps became death camps) Government”. By that doublespeak, the Tribunal decisions. The Migration Act now “undesirables” were “placed in protective victim becomes the offender. practically guarantees procedural unfair- custody” or “resettled”. In Australia “ille- On the last sitting day in June, ness in decisions which have life and death gals” are held in “Immigration Reception the Parliament passed the Migration consequences. and Processing Centres” behind “ener- Legislation Amendment (Procedural The truth of our treatment of refugees gised fences”, receiving regular “security Fairness) Bill 2002. The title is one of the is deeply shocking. Innocent people are checks” and occasional “extractions”. most audacious pieces of doublespeak locked up in dreadful conditions and for Their “inappropriate behaviours” are not ever to blight the pages of Hansard. The an indefinite period; they are deprived of allowed to “manipulate public policy”. measures affect the ability of courts to sleep and isolated from the outside world; In 1946, George Orwell wrote Politics review decisions of the Refugee Review they are forcibly removed as circumstances and Language, in which he exposed the Tribunal. The Tribunal does not afford a require. They live behind razor wire and deceits and devices of doublespeak. He right of legal representation, its members (soon) electric fences. Their powerful will might have thought that it would lose its are short-term appointees, its decision- to live is gradually eroded until — all hope power once its workings were revealed. making processes are often unfathom- lost — they are driven to self-harm. The But he would be disappointed. Language able except by reference to government truth is uncomfortable for the major politi- is as powerful now as in 1933: it can hide policy. Its proceedings are frequently not cal parties: they conceal it in doublespeak shocking truth, it can deceive a nation, it fair, nor are they calculated to be. The in the hope that it will be alright. can hand electoral victory to the morally requirements of natural justice have been See how we have emulated pre-war bankrupt. driven out by repeated amendment. The Germany, in both action and language. Julian Burnside

Asylum Seekers Detained Too Long

HE detention of asylum seekers priate checks on health, identity and concern, and the economic efficiency of Tcan only be justified for a defined security.” the policy, the Government is in breach purpose and a defined period according “Once these checks are satisfacto- of its own law. The Government has a to Tony Abbott, President of the Law rily completed, asylum seekers should long-standing protective duty to all chil- Council of Australia. be released into the community with dren in Australia, whether in detention Mr Abbott was commenting in the reporting requirements imposed to or not — the rights of children should be wake of concerns expressed by a United provide ongoing monitoring by offi- of paramount concern.” Nations working group, currently cials. Australia’s acceptance of the “The Law Council has welcomed the investigating Australia’s detention cen- ‘International Covenant on Civil and Government’s review of some aspects tres. He said, “Whilst the Law Council Political Rights’ endorses the rights of of their policy on mandatory detention accepts that the Government has a everyone in this country to be free of but doesn’t believe they have gone far responsibility to protect the people of arbitrary arrest or detention.” enough to meet the concerns that we’ve Australia within its borders, detention Mr Abbott stressed, “There is great expressed on a number of occasions,” without trial should only be necessary concern within the community that apart Mr Abbott concluded. for a limited period to carry out appro- from broader issues of humanitarian

Law Council Supports Federal Court’s Integrity HE Law Council of Australia has full migration laws. These questions clearly system being compromised in reaching Tconfidence in the integrity of the fall within the Federal Court’s jurisdic- its decisions. Federal Court of Australia to approach tion. The Law Council anticipates assur- its task of interpreting legislation and Protecting the judicial process is ance from the Government that the upholding the law. The Court has been of paramount importance to the Law integrity of the Court will be respected the subject of comment over migration Council and the Australian public. and public confidence in the Court will appeals by asylum seekers. The appeals External pressures should not be be reinforced. involve important questions about the exerted on any court of law, nor should meaning and constitutional validity of the public be concerned about our court

60 61 News and Views/Lunch Caterina’s Cucina: The Zucchini Flower of Queen Street

HOULD the male or female zucchini flower be stuffed? This was the Ssubject of conversation I had with Caterina at her subterranean Italian res- taurant in Queen Street. The traditional culinary creed decrees that only male flowers should be stuffed — the female should be left as plants which are deprived of their underdeveloped fruits, continue to flower for several months most profusely, each producing a great number of young gourds, which gathered in that state, are exceedingly tender and delicately fla- voured: (See Vilmorin-Andrieux 1883, English Edition p. 183). Incidentally the vegetable is more correctly called a zucchini, rather than a courgette as it was the Italians who intro- duced them to France. They only entered Anglo-Saxon culinary at a late stage and potato, a large crumbed pork cutlet excellent fare, service and ambience. It mainly through the writings of Elizabeth with velvety mash, or winter stews of veal, is a basement restaurant in Queen Street David in the 1950s. The English adopted lamb or shanks. All served with a different between Little Bourke and Lonsdale the French courgette. mix of vegetables for each dish which is Streets. It was formerly the Horse and Enough of such historical matters and a pleasant change from the new fangled Hounds, and some of the old English pub back to food. Caterina had announced that “add on” of extra chips, dull rocket salad, fittings remain. stuffed zucchini flowers were on the menu or spinach. It has been rather begrudgingly (they are now out of season) and that Some at my table (not hard to guess) reviewed by the Age Good Food Guide the chef Rita Macali had indeed stuffed complained that they could not retain so because it normally contains “suits” “in a the female variety with a delicious and much information at once — it all sounded club like atmosphere”. Therefore as The traditional concotion of mozarella and so good it was difficult to choose. It was Age doesn’t like it much, it should appeal anchovies. Male or female they were deli- suggested that there should be the ubiqui- to the majority of the Bar and Bench. It cious! tous blackboard. I disagree. To hear such seems that the latest food writing fad is If you lunch at Caterinas much of the a list recited without notes is a theatrical that restaurants must be “cutting edge” menu will be in the spoken form. Either experience which whets the appetite and places, full of concrete, stainless steel, Caterina or her young and talented causes discussion of food — and wine to noise, and suitless dot.com internet types off-sider Tanya will recite a very long match. on mobiles accompanied by anorexic list of specials which can range from There is a menu which in itself is long females wearing dull jeans and brown- soups such as stracciatella consisting of and contains the more traditional — such ish colours which were “in” in the early chicken, breadcrumbs and beaten egg as spaghetti marinara, steaks, veal scalop- 60s. Food must be “Pacific Rim”, or “East — the penicillin of the Italian Mamma pini and desserts. For those with waning meets West”, or “Anglo-Morrocan” which — a very thick cauliflower soup topped eyes, and considering the subdued light- means it must be stacked up, with the with blue cheese tortellini, many varied ing of the place, perhaps both food and spiced mash (now very, very much in) pastas, such as pigeon stuffed ravioli in wine menus could be printed in bolder on the bottom, with the drizzled eggplant a rich pigeon jus, two or three different type. next, some kind of protein, and much risotto, some with Italian sausage, other Caterina’s has been operating success- rocket, with perhaps little pieces of fried vegetarian, fish in simple and not so sim- fully for a number of years — it should some or other adorning this twin tower of ple form such as snapper fillets on a bed have been reviewed earlier — but for gastronomy. Noise and supercilious serv- of stewed capsicums, tomatoes, zucchini those who have not attended it provides ice must accompany this experience.

60 61 Sport/Royal Tennis

But this is not Caterina’s, although you can have the mash underneath if you want. The tables are well spaced with linen and Annual Box the atmosphere subdued and yes perhaps clubish in an Italian sort of way. There is a large bar which is well fre- quented from the late afternoon (late Trophy lunches) to early night (regular after work drinkers). Indeed famous members of the Family Law Bar can be viewed regularly at the bar, extolling thoughts on most things. N 8 December 2001 the annual J.B. At my most recent lunch the assem- Box Trophy was played between bled throng (including a judge) all agreed Othe Bar/Bench and the Solicitors that their lunches were excellent. A few at the Royal Melbourne Tennis Courts at strayed into the dessert menu where Richmond. J.B. Box had been a County the “semi-freddo”, semi-frozen Italian Court Judge and a devotee of Royal ice-cream was excellent. Also a cheese Tennis. Justice Murray Kellam donated platter is available. the Cup. Regrettably, save for one occa- The wine list is wide ranging. Good sion, the trophy has been won by the Italian food often brings a craving for good solicitors. Last year proved no exception. Italian wine. Excellent advice is always on However, some amongst their ranks have hand. A Pieropa Soave Veneto ’99 and a seen the light of day and are coming to the Castello di Farneltella Chianti ’99 went Bar, which may bring the trophy back. well with the assortment of pigeon, fish A fine lunch was had after the trophy, and pork. with much wine drunk whilst the finer It is good to see Italian food that is points of the game were discussed. The both rich and different. Many new Italian results were: Murray Kellam congratulates Alan restaurants claim they have moved away Murray Kellam d Stewart McNabb 6-4 Kirsner. from the “Lygon Street formula” of taste- Alan Kirsner d Howard Mason 6-2 less watery tomato sauces, and veal par- Jason Pennell d John Dixon 6-4 D. Stagg/A. Melville d J. Pennell/ migiana. They return to traditional pot Tony Melville d John Kaufman 6-4 C. Rome-Sievers 6-2 foods of regional Italy. Unfortunately this David Stagg d Carrie Rome-Sievers 6-2 S. McNabb/A. Kirsner d J. Kaufman/ often means “peasant” food in the form John Lewisohn d John Dixon 6-2 M. Kellam 6-4 of pasta scattered with breadcrumbs and H. Mason/M. Kellam d S. McNabb/ J. Dixon/A. Melville d J. Lewisohn/ pesto and no more, dull one-dimensional A. Kirsner 6-2 C. Rome-Sievers 6-3 stews, and bland fish and meat. Indeed — sacrilegious as it may sound, I have not had a really good meal in Rome which equals the food of Melbourne Italian res- taurants such as Caterina’s. Purists would say that our Italian food is created to suit our Australian tastes and that simple is better. I disagree. As for prices — they are not cheap but not expensive. You could just have a pasta and a glass of wine — on the other hand you could . . .

CATERINA’S CUCINA and BAR Chef: Rita Macali 221 Queen Street, Melbourne Open for lunch Monday to Friday Bar open until eightish Available for private functions and dinner by arrangement Telephone: 9679 8488 Prices — Entrees: $12–$18 Mains: $22–$26 Dessert: $9.50–$11.50 John Dixon, David Stagg, Tony Melville, Stewart McNabb, Alan Kirsner, John Lewisohn, Carrie Rome-Sievers, John Kaufman, Jason Pennell and Murray Paul Elliott QC Kellam.

62 63 Lawyer’s Bookshelf

Contract Law lives up to its name and limited company in the nature of partner- Principles of Contract provides an excellent resource. ships. The authors include, amongst other Law matters, a table of comparison between P.W. Lithgow the trust companies and partnerships by Peter Heffey, Jeannie Paterson which is very helpful. and Andrew Robertson In all the book is extremely helpful Law Book Company 2002 and a welcome addition to a practition- pp. i–xlv, 1–632, Index 633–655 Equity and Trusts in er’s library. For those who are practising in this difficult field, the book provides a RINCIPLES of Contract Law has Australia and New ready reference to a number of sources. Pbeen written as a text for students studying contract law as part of a law Zealand (2nd edn) degree. To that end it is not a general by G.E. Dal Pont and D.R.C. John V. Kaufman text on “business law” nor is it a “student Chalmers primer” providing a general coverage and Law Book Company gloss on contract law. It is a substantial pp. 1–xxiv; 1–1046 Understanding Company text dealing with the principles of con- Law (10th edn) tract law both from a theoretical (doctri- HIS book was first published in 1996 nal) and substantive viewpoint. Tand the second edition is very much by Phillip Lipton and Abe Herzberg Busy practitioners will no doubt be welcomed. There is always a difficulty Law Book Company, 2001 intrigued by the perspectives on the in reviewing the second edition, as the theoretical underpinnings of contract reviewer may tend to concentrate on HE authors inform us that this edition law — classical, economic and feminist, the changes in that edition rather than Tof Understanding Company Law to name but a few (see generally Chapter to consider the broad sweep of the book. represents what they hope to be an inno- 1). On the other hand, areas where there Equitable relief, in its various forms, has vative approach to teaching and learning is development and change such as an become increasingly important in provid- company law. It is part of a “mixed media implied duty of good faith, the current ing a remedy where the legislature has package” which integrates the text with and future status of Yerkey v Jones yet to catch up with economic and social on-line sources. (1940) 63 CLR 649 in light of Garcia v changes. As one may expect, the book deals with National Australia Bank Ltd (1998) The authors have organised the chap- the usual topics that one may expect to 194 CLR 395, estoppel and the quantifi- ters into various parts which readily assist be discussed in such a book. However, the cation of damages (including issues such the reader in being able to isolate the style and format of the book is accessible as Hungerfords damages and penalties v particular problem, without the neces- to the reader and is concise in the points genuine pre-estimates of damages) are sity to search through an index. To give that are made. subject to clear, concise and useful analy- an example, under Part 4 the heading is To take an example, Chapter 5 deals sis and commentary from both a practical “Unfair Outcomes”. Within that part the with the company’s relations with outsid- and theoretical standpoint. authors discuss part performance, relief ers. At the commencement of the chapter, There are also extremely useful chap- against forfeiture and penalty clauses, the contents of the chapter, together with ters dealing with construing the terms of subrogation contribution and marshalling, page references, are set out in tabular a contract which includes significant dis- and deceased’s estates. form. This enables the reader to go to the cussion in relation to the construction of Whilst much has been written in rela- particular section without the necessity of both express terms (including exclusion tion to the fiduciary relations, the authors trawling through the index to the book. clauses) and the recognition of implied discuss this difficult problem with preci- The authors have compiled, in bullet form, terms. sion and clarity. As may be expected a a list the key points. A useful tool, which This work (unusually perhaps for a director’s duties to the company and to they employed, is to highlight those points legal text) is written in an extremely the shareholder are discussed as well in grey. Similarly, important quotations clear and readable style. The text itself as the solicitor’s duty to his or her client from the authorities which appear in the is uncluttered and footnotes are relevant and a partner’s fiduciary duty towards the chapter are so highlighted. When dealing and concise, confined to the bottom of the other partner. What is of particular inter- with the statutory assumptions which are page, and do not contain the massed infor- est in the discussion is that the authors set out in section 129 of the Corporations mation and argument “overload” often provide an analysis of the fiduciary duties Law, the authors construct a table which found in the footnotes. The user-friendly that stem from joint ventures and the sets out each element together with sub- layout ensures the text is accessible, it is scope of that duty. Similarly, the authors section references. In a separate table they appropriately footnoted and broken down discuss the problems in relation to subro- set out the exceptions to the assumptions. within each chapter under relevant head- gation and in particular those that arise At the end of the chapter, a bibliography ings. The text, with its theoretical under- out of the debtor creditor relationship. appears which sets out the relevant text in pinnings may not be a concise resource, In a separate section, the nature of the relation to that chapter. This is extremely but if this be a shortcoming it is more than trust is well discussed. The nature and use helpful as it provides a selectivity, which is made up for by the stimulating perspec- of a unit trust is discussed at some length. absent from a general bibliography. tives and the clear and comprehensive The unit trust employed in a commercial Each of the chapters are dealt with prose. For any practitioner looking for context has become a trading vehicle and in a similar fashion. The language that is a substantial work providing insight and presents difficulties in terminating that employed by the authors is clear and eco- guidance in contract law, Principles of trust as opposed to a small proprietary nomical. It sets the reader on path which

62 63 opens the way for more detailed research, This book is a useful addition to the son over time and between different juris- if that is required. works already existing in this developing dictions (and legislative regimes) of cases Whilst this book has been designed for area. It has, however, two annoying fea- dealing with considerations as diverse as use by students, it does provide a ready tures: it lacks tables of cases and statutes the family farm, widows (including sepa- commencement point for the more expe- (so that you cannot find out where in the rated and de factos), children (including rienced practitioner. It is a very useful text some particular case or statutory pro- infants, unmarried/married daughters book. vision is referred to); and it has an undue and adult sons) and large estates. Care of John V. Kaufman emphasis on the law in New South Wales course must be taken in referring to these (and this automatically limits the value of tables as clearly the law and community the book in other jurisdictions). Those attitudes vary over the years and between Alternative Dispute aside, the book is a valuable resource for jurisdictions, and of course each case Resolution anyone wanting a practical guide on topics must be considered on its specific merits in the area. against the background of the applicable By T. Sourdin Damien J. Cremean State legislation. Nevertheless the tables Lawbook Company, 2002 provide an interesting background against pp. i–xiii, 1–295 which the merits of various claimants may ISBN 0 455 21820 X be considered. Family Provision in Family Provision in Australia is HIS book is one of a number now Australia (2nd edn) an excellent text and practical resource. Texisting on the topic of ADR and While succession law and practice may mediation in particular. In his foreword by J.K. de Groot and B.W. Nickel not be as fashionable as takeovers, as sexy to the book, Sir Laurence Street says Butterworths, 2001 as “sports law” or as exotic as “e-law” it that the “ADR evolution has progressed pp. i–xxxviii, 1–249, nevertheless remains an important and in recent decades to the point where Appendices 251–379, Index 381–390 technical area of practice for many prac- the letters ‘ADR’ have acquired a generic titioners. Family Provision in Australia significance”. Those letters, he considers, HE second edition of Family is commended to those practitioners. have masked the important distinction TProvision in Australia comes between deciding and resolving disputes. nearly a decade after the first edition. P.W. Lithgow He says, “Judges do not resolve disputes In that time there has been a continuing coming before their courts; they decide stream of important judicial decisions disputes or adjudicate on them.” relevant to “testator’s family mainte- Butterworths Tutorial The purpose of the book is described in nance” and legislative reforms including the preface as “to introduce concepts and in Victoria the important changes to Part Series: Equity and skills and to map issues that are occurring IV of the Administration & Probate within the ADR area”. Chapters 1 and 2 of Act 1958 introduced by the Wills Act Trusts the book deal respectively with “Conflict 1997. “Testator’s Family Maintenance” by P. Radan, C. Stewart and A. Lynch and Dispute Resolution” and “Processes in Victoria has now been replaced by Butterworths, 2001 and Practice”. Chapter 3 deals with “Skills” much broader category of persons who pp. i–xlii; 1–427; Index 429–450 such as so-called “foundation skills” of may have a claim on a deceased’s estate neutrality and impartiality and listening. subject to the considerations now set out HIS book unfolds as a tempting invita- Chapter 4 deals with “System Objectives”. particularly in s. 91 (4)(e) to (p) of the Ttion to readers to discover the myster- Chapter 5 deals with “Court-based Administration & Probate Act. ies and intricacies of equity and trusts. ADR”. I found this chapter to be far too Family Provision in Australia is This book adopts the same problem solv- generalized: there was only passing ref- designed for use by practitioners. To this ing approach that is used for all the titles erence, without more, to the fact that end it contains relevant family provision in the Butterworths Tutorial Series. The “the Victorian Civil and Administrative legislation in each state (Appendix III) equity chapters cover discrete topics, Tribunal makes use of mediation and con- together with forms and precedents and arranged in much the same way, as one ferencing processes”. Chapter 6 deals with a useful “checklist”, also on a State by would expect to find the development “Multi-option Civil Justice” which refers State basis. The forms and precedents of topics in an equity course synopsis or to multi-door systems in the one place of found in the Appendix are supplemented student reading guide. The collection of dealing with disputes involving adjudica- by Chapter 10 where there is discussion of abstract equitable rights and remedies tion and ADR processes. Chapter 7 deals relevant procedural matters in each State. covered in Chapters 1–16 take on a more with “ADR Outside the Litigation System”, No doubt as a reflection of the diversity of concrete form in the trusts component, while Chapter 8 deals with “System Design legislation, practice and procedure there which occupies the remaining eight chap- Issues” which relates to such things as are contributing editors for each State ters. Like the equity chapters, the titles of mediation standards. Chapter 9 deals other than the home State of the authors. these chapters also resemble a typical stu- with the interesting topic of “ADR and This State by State approach to legisla- dent reading guide for the study of trusts. Terminology”, while Chapter 10 deals tion and practice ensures that this work Each chapter is prefaced with a concise with “Future Trends”. Appendices A to F is not just a general text but provides coverage of the law that includes facts have helpful inclusions such as the NSW specific guidance to relevant law for prac- and excerpts from relevant authorities. Law Society Mediation and Evaluation titioners in each jurisdiction. Some basic material for tutorial discus- Information Kit and Dispute Resolution The authors have thoughtfully prepared sion, which takes the form of tutorial Clauses. a number of tables which enable compari- problems and suggested solutions, or

64 65 simply questions that test one’s level of to enquiries such as Royal Commissions understanding follows this. For readers Justice in Tribunals and Commissions of Enquiry. wanting more than the concise statement By J.R.S. Forbes Justice in Tribunals provides a of the law, a list of references and further Federation Press, 2002 thoughtful and comprehensive analysis reading is collected at the end of each pp. i–xlviii, 1–299, Index 301–318 of the intertwining of common law and chapter. statutory developments in this burgeon- The book is a well-written and well- USTICE in Tribunals is a revised ing field. There can be no doubt that more organised text designed to engage, edu- Jand rewritten version of Disciplinary and more traditionally private or domestic cate and encourage a student of equity Tribunals which appeared in two editions tribunals are subject to challenge and and trusts who must learn to identify in 1990 and 1996. Consequently, Justice review. The law requires many such tri- and apply some often fascinating and idi- in Tribunals is effectively the third edi- bunals to act fairly and to be seen to act osyncratic principles. In fact, any reader tion of the earlier work, albeit with an fairly, however, the scope of operation wanting a clear and comprehensive work extended scope and incorporating much and content of these requirements is still that includes reference to significant of the new and ongoing developments in evolving. Increasingly the courts provide authorities would find the book a useful administrative law. those affected by decisions of private supplement to their “equity and trusts” The text deals briefly with statutory tribunals with an avenue for review, and bookshelf. Where relevant, statutory tribunals. The main focus of the work consequently there is developing a sub- references are made to all Australian is on domestic or private tribunals. Of stantial body of administrative law princi- jurisdictions. course many tribunals are hybrid in ples applicable to such tribunals. Justice Chapter 1 appropriately traces the nature, often arising in a private context in Tribunals provides a significant guide development of the equitable jurisdiction but within a statutory regime. Examples into the development and application and the principles of equity. The histori- of hybrid tribunals are in areas such as of these principles. The author is to be cal backdrop, essential to understanding unions, universities, political parties and commended on this new text which fol- equitable concepts and principles, is sporting bodies. lows on and develops the excellent early continued in Chapter 2, with a review of The two principal aspects of natural work of Disciplinary Tribunals. The the relationship of law and equity and the justice — the hearing rule and the rule book provides clear guidance in the rap- judicature system. Subsequent chapters against bias are extensively discussed and idly developing area of the law applicable deal with basic aspects of equity and analysed. There is particular emphasis particularly to domestic tribunals, their trusts that one expects to find in a stand- on all the nuances relevant in applying practice and procedure. ard text. The extent and depth of analysis administrative law principles to the many P.W. Lithgow tends to vary according to the contempo- and varied forms of private tribunals rary relevance of the issue under discus- outside the regular court hierarchy. The sion. focus of the work is operating the disci- BRIMBANK COMMUNITY The fact that a considerable propor- plinary or “enforcement” aspect of these LEGAL CENTRE tion of the book is devoted to equitable tribunals’ jurisdiction, however, many of VOLUNTEER PROGRAM remedies acknowledges the diversity of the principles are of general applicability equitable applications. Equity’s mixture to tribunals whether public or private. LAWYERS REQUIRED of remedies based on flexible concepts Aspects of natural justice such as rimbank Community Legal of social justice, equality and discretion is the right to be heard, have notice of the BCentre is expanding its volunteer juxtaposed to the common law’s predict- allegations, to counsel, to be provided rea- program to incorporate an evening ability and non-discriminatory nature. sons and to an appeal are all extensively advice and referral service. We are The authors deserve praise for balancing discussed, as are all aspects of the rule currently seeking expression of inter- critical analysis with the need to provide against bias. est from Lawyers who are willing to a succinct package of basic and up-to- The remedies potentially available to an volunteer a portion of their time, date information. They contrast different aggrieved party such as prerogative writs, approximately one evening per remedies and link related concepts. They injunctions and declarations, damages have not avoided appropriate coverage of and statutory appeals and judicial review month, to assist with the running of contentious issues such as the application are also fully dealt with in a discrete chap- this project. of s.134 of the Property Law Act 1958 to ter. Of course private tribunals may not We anticipate that the program equitable interests or the priority rules for generally fall within the Administrative will commence late August and oper- competing equitable interests after Moffet Decisions (Judicial Review) Act or similar ate on a Monday or Wednesday v Dillon [1999] 2 VR 480. State legislation, nevertheless the courts evening from 6:30 pm to 8:30 pm. The book is inexpensive and provides have adapted and applied the common the reader with a basic book on equity law to make many private tribunals ame- For more information, and trusts which is current, compact and nable to judicial review. please contact Kirsty Leighton comprehensive. There is a separate chapter in relation to on 9363 1811. Joycey Tooher administrative law requirements reluctant

64 65 Conference Update

2–3 September 2002: Melbourne. Conference. Contact Lorenzo Boccabella. 20–22 October 2002: Sydney. IBA’s 2002 Current Issues in Regulation Enforcement Tel: (07) 3236 2601. Fax: (07) 3210 1555. Conference presented by ALIA. Contact and Compliance. Australian Institute E-mail: [email protected]. Conference Secretariat. Tel: (02) 9241 of Criminology. Contact Conference 30 September – 1 October 2002: 1478. Fax: (02) 9251 3552. E-mail: tech CoOrdinators. Tel: (02) 6292 9000. Melboume. Role of Schools in Crime [email protected]. Fax: (02) 6292 9002. E-mail: confco@ Prevention. Contact Conference 20–25 October 2002: Durbin, South austarmetro.com.au. Co-Ordinators. Tel: (02)6292 9000. Africa. Third AIJA Technology for Justice 12–13 September 2002: Sydney. Fax: (02) 6292 9002. E-mail: confco@ Conference. Contact International Bar Crime Prevention. Contact Conference austarmetro.com.au. Association. Tel: +44(0) 20 7629 1206. CoOrdinators. Tel: (02) 6292 9000. 4–7 October 2002: Brisbane. Biennial Fax: +44(0) 20 7409 0456. Fax: (02) 6292 9002. E-mail: confco@ Conference 2002: Reconstructing “The 26–31 October 2002: Melbourne. austarmetro.com.au. Public Interest” in a Globalising World: XVI World Congress 2002 presented by 13–14 September 2002: Brisbane. Business, the Professions and the Public International Association of Youth and Second AIJA Magistrates’ Conference. Sector. Contact Susan Lockwood-Lee. Family Judges and Magistrates. Contact Contact AIJA Secretariat. Tel: (07)38753563. Fax: (07)3875 6634. The Meeting Planners. Tel: (03) 9417 28 September–5 October 2002: E-mail:[email protected]. 0888. Fax: (03) 9417 0899. E-mail: Heron Island. Sixth Pacific Rim Legal edu.au. [email protected]

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