No. 143 AUTUMN 2008
Re-opening of Court 4
WELCOMES AND FAREWELLS OPENING OF THE LEGAL YEAR BUILDING CASES – A NEW APPROACH THE SECOND BITE OF THE CHERRY
ISSN 0159-3285 0159-3285 ISSN WOMEN AT THE BAR PIZER’S THIRD EDITION LAUNCHED ESSOIGN CLUB CHRISTMAS PARTY WIGS AND GOWNS REGATTA
VICTORIAN BAR NEWS Autumn 2008 1 VICTORIAN BAR COUNCIL VICTORIAN BAR NEWS
*Executive Committee Clerks Chairs of Standing Committees Editors A *Peter Riordan SC, M.W. (Chairman) of the Bar Gerard Nash QC, Paul Elliott QC D *Paul Lacava SC, P.J. (Senior Vice-Chairman) Applications Review Committee and Judy Benson G *John Digby QC., P.G. (Junior Vice-Chairman) G Digby QC, G.J. Editorial Board G Michael J Colbran QC, (Honorary Treasurer) Charitable and Sporting Donations Julian Burnside QC, Graeme Thompson D Kate Anderson (Assistant Honorary Treasurer) Committee D *Fajgenbaum QC, J.I. D Riordan SC, P.J. Editorial Secretary G Digby QC, G.J. John Stevens Conciliators for Sexual Harassment H Tobin SC, T. and Vilification Editorial Committee D McLeod SC, F.M. B Curtain QC, D.E. John Kaufman QC, Ian Freckelton SC, H McGarvie SC, R. William F. Gillies, Carolyn Sparke, W *Neal SC, D.J. Council Committee Georgina Schoff, Paul Duggan, Richard Brear, G Judd, K.E. G Colbran QC, M.J. Carmela Ben-Simon, Catherine Button, D Moshinsky, M.K. Editorial Committee for In Brief and Jennifer Digby, Noam Shifrin and L Hannebery, P.J. Website News Section Peter Lithgow (Book Reviews) R Fairfield, C.G. D McLeod SC, Ms FM D *Shaw, C.E. Equal Opportunity Committee Design/production G Anderson, K.J.D. D McLeod SC, Ms FM Ron Hampton D Burns, A.G. David Johns (Photography) Ethics Committee R Harrison, D.C. Published by The Victorian Bar Inc. G Lacava SC, P.G. B Sharpe, M.R. Owen Dixon Chambers G *Penny A Neskovcin (Honorary Secretary) Human Rights Committee 205 William Street, Melbourne 3000. B * Simon T Pitt (Assistant Honorary Secretary) D Fajgenbaum QC, J.I. Registration No. A 0034304 S Indigenous Lawyers Committee Ethics Committee G Golvan SC, C.D. Opinons expressed are not necessarily D Davies SC, J. (Chairman) Legal Assistance Committee those of the Bar Council or the Bar or C Meagher ED, QC, D.R. of any person other than the author. G&J Willee RFD, QC, P.A. A Macaw QC, R.C. G&J Santamaria QC, J.G. Legal Education and Training Continuing Printed by Impact Printing D Titshall QC, M.R. Education Committee 69 –79 Fallon Street, Brunswick Vic. 3056 F Gobbo QC, J.H. D Ruskin QC, J. This publication may be cited as A Manly SC, R.J. Legal Education and Training Readers’ (2007) 142 Vic B.N. H McGarvie SC, R. Course Committee G&J Shwartz, A. B Hill QC, I.D. Advertising P Williams, I.S. Mal de Silva New Barristers’ Standing Committee D Kirton, C.E. The Victorian Bar Inc. B Pitt, S.T. F Shiff, P.L. 205 William Street D Moshinsky, M.K. Past Practising Chairmen’s Committee Melbourne 3000 D Shaw, C.E. F Costigan QC, F.X. Telephone: (03) 9225 8681 Professional Indemnity Insurance Committee H Mc Garvie SC, R.W. Professional Standards Education Committee G&J Willee RFD, QC, P.A. Victorian Bar Dispute Resolution Committee C Maxted, R.G.
2 VICTORIAN BAR NEWS Autumn 2008 ISSN 0159-3285 No. 143 AUTUMN 2008
EDITOR’S BACKSHEET THE OPENING OF THE LEGAL YEAR 78 Raising the Bar 4 Rights of victims 24 St Paul’s Anglican Cathedral 82 Restorative justice 29 St Patrick’s Roman Catholic Cathedral 83 Farewell dinner, Captain Paul Willee CHAIRMAN’S CUPBOARD 34 Temple Beth Israel 85 The strange case of Andrea Yates and Dr Park Dietz 6 Change is constant… 37 Buddhist Ceremony 86 Unveiling of Douglas Ian Menzies portrait change…is inevitable 39 ICJ Opening of the Legal Year 41 A time for renewal 87 The Essoign Club Christmas party ATTORNEY-GENERAL’S COLUMN 42 Legal Laneway Breakfast SPORT 8 Justice Statement II 88 Sir Edmund Herring Trophy NEWS AND VIEWS WELCOMES 89 Wigs and Gowns Regatta 44 Judgment Day 91 The Bar retains sodden tennis trophies 9 Justice James Judd 44 Pizer’s third edition launched 11 Judge Katherine Bourke 45 Court 4 in the Supreme Court re-opens LAWYER’S BOOKSHELF 13 Judge Philip Misso 48 Building cases – a new approach 93 Book reviews 51 The second bite at the cherry FAREWELLS 56 Verbatim 15 Justice Alex Chernov 57 Does the Bar matter? 17 Justice Bernard Teague 62 Humbugging with the mob 20 Justice Joseph Kay 66 A bit about words 67 Farewell Ross Macaw QC OBITUARIES 68 Duty Barristers Scheme launch 22 David Roy Cross 72 New silks ceremonies Cover: The restored Court 4 in the Supreme 23 David Maclean SC 73 Women at the Bar Court, which re-opened on 7 April
Welcome: Justice Welcome: Judge Welcome: Judge Farewell: Justice Opening of the Legal Year James Judd Katherine Bourke Philip Misso Alex Chernov
New silks ceremonies Raising the bar Wigs and Gowns Regatta Essoign Club Christmas Party
VICTORIAN BAR NEWS Autumn 2008 3 EDITORS’ BACKSHEET
Rights of victims
The ‘cab rank rule’ and the existence of Those who talk about sentences being Legal Aid – and in former times the role too lenient are persons who on the whole of the Public Solicitor – have ensured that know little of prisons or of how they are persons charged with criminal offences run. More importantly they do not know have the opportunity of being legally – or worse still do not care – that prisons represented. Often the result of such are not safe. representation causes unhappiness to the It is one thing to argue for increased victims or, in the case of alleged homicide, periods of confinement, which consists to the relatives of the deceased victim. merely of deprivation of liberty. It is an- The unhappiness is caused sometimes other thing to argue for increased periods by the acquittal of a person of whose guilt of confinement in conditions which pro- the jury has not been satisfied beyond vide no adequate safety against assault, reasonable doubt but, more commonly, rape and even murder. by the imposition of a sentence which Those who argue for increased prison the victim (or the relatives of the victim) sentences should consider how much consider is inadequate. process it is the rights of the person being money they want the state to spend on The use of victim impact statements to sentenced – having proper regard to the our prisons. If sentences are increased aid in the sentencing process has become protection of the community – that are in by, say 20%, it automatically increases the commonplace. The views of the victim issue. prison population by 20%. That requires or of the victim’s relatives are commonly Victims understandably want retribu- an increase in prison accommodation, sought by the media after sentencing has tion and in few cases will they see the ret- and should require an increase in prison occurred, and, sometimes, even after ribution imposed by the state as being staff, of 20%. acquittal. adequate. However, the rights of victims Our prisons are already inadequately In some jurisdictions mandatory sen- do not include a right to retribution. When staffed (or alternatively the quality of the tencing has been imposed to ensure that we come to sentencing we are dealing not staff is inadequate); they are unsafe – espe- ‘soft’ judges will not be able to impose what with the rights of the victim, but with the cially for the young and vulnerable. the community may regard as inadequate rights of the person being sentenced. We Few of those who seek harsher penalties sentences. Even in Victoria, which in this are concerned with a decision which will are aware of the dilemma that confronts respect is not the most benighted jurisdic- deprive him or her of many of his or her the County Court Judge faced with the tion in the country, there has been talk of rights. prospect of sentencing a young man or setting standards which will ensure that To talk of the rights of criminals involves woman to prison. Judges know our prisons the ‘tariff’ in respect of offences of violence a misconception. There is no ‘criminal are not safe; that prison inmates who are is increased. class’ to which specific rights or disabilities young and vulnerable (and even those All of this agitation is concerned with, attach. All members of the community are who are not so young) are liable to be or stems from, a concern with the rights potentially criminals. All members of the raped by older and more vicious criminals of victims. All members of the community community have rights as such. To quote who in every sense of the term cohabit have rights. Victims are members of the Robert Richter QC: ‘It is nonsense for with them in prison. community and as such they do have people to talk about the rights of criminals. There have been many complaints about rights. But those rights are not relevant to Criminals have no rights. Citizens have the dangers of unmanned railway stations the sentencing process. In the sentencing rights.’ and of railway trains without guards or
4 VICTORIAN BAR NEWS Autumn 2008 conductors. No one complains, however, where the State could guarantee his or her GAY WHALES of inadequate supervision of our prisons, safety, judges might then be less reluctant to even though they are much less safe than impose immediate prison sentences and The word ‘gay’ in its popular sense today our unmanned railway stations. from this might flow a higher sentencing means something different from the true It is hard to believe that a community ‘tariff’. meaning of the word ‘happy, joyful’. can describe itself as civilised if it locks Our system is not perfect. Innocent The whales in the Southern Ocean have people up and then takes inadequate steps people are convicted and sentenced to no cause to be gay at the moment. The to ensure that the incarcerated are safe. Yet prison. In most cases it is not possible to Australian Government has protested; it this is precisely our society today. identify which are the innocent. But clear- has taken photos of what is described as No sentence imposed in our courts ly it does happen – and there are many ‘indiscriminate killing’ by the Japanese reads ‘I sentence you to eight years impris- well publicized examples. But they are only whaling fleet but it seems that the killing of onment, to a 15% chance of being seri- examples. It is hard enough to lose one’s whales in the Southern Ocean continues. ously assaulted during those eight years, a liberty for something one has not done. Surprisingly, although most Australians 5% chance of being raped during those How much worse is it to be imprisoned in are opposed to the Japanese whaling, there eight years and a 1% chance of being the inadequate safety of Victoria’s prisons, has been no spontaneous reaction, such murdered during those years, in one of even though they are not ‘bad’ by national as there was in the case of French nuclear the State’s prisons’. Perhaps the victims of or international standards. testing in the Pacific some years ago. There crime would be happier if that reality were It appears that no government is pre- has been no boycott of Japanese products. spelled out in the sentence. pared to spend the money required to make It may be that if such a spontaneous There is insufficient money, manpower prisons safe. How then can our community reaction were to develop, it might be and concern available in respect of our pris- or our politicians complain that the judici- followed in other countries. If so, this on system. We need to spend the money ary impose ‘inadequate’ or ‘soft’ sentences. might have some effect on the determina- and supply the manpower to make them It is time for those who criticise the judici- tion of the Japanese to persist. Worth safe. If a sentencing judge knew that the ary for lenient sentences to put their money considering? offender was to be incarcerated in a place where their mouths are. THE EDITORS
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VICTORIAN BAR NEWS Autumn 2008 5 CHAIRMAN’S CUPBOARD
‘Change is constant… change…is inevitable’
The full text of this passage from Benjamin is the only Australian city that can compete Disraeli’s Edinburgh speech after passage with Hong Kong, Singapore and Shanghai. of the Second Reform Act (1867) is: ‘In a If we try to spread the work around Aus- progressive country, change is constant; tralia, no one will get anything’. and the great question is not whether you The opportunity and vision for Victoria should resist change which is inevitable, but outlined in the Reform of the Civil Justice whether that change should be carried out System Report does not depend on any sort in deference to the manners, the customs, of sympathetic spreading of commercial the laws, the traditions of the people, or work around Australia. in deference to abstract principles and The Report sees a key reason for the arbitrary and general doctrines’. success of the Woolf reforms in England in Allowing for the partisan political rhet- significant changes in culture and practice oric in Disraeli’s dichotomy between the across the whole profession, and that is national and the philosophical, there is what is needed here in Victoria from every contemporary resonance in the competi- member of this Bar, from every solicitor, tion policy theories that underlie criti- and from our Judges, Masters, Judicial cisms of the institutional framework of the Registrars and Magistrates. independent Bars over the last more than I have no doubt that Victoria has the 15 years. resources and potential. We certainly have Rooted in the firm foundation of the role I spoke in my last ‘Cupboard’ of the the foundations and tradition of excellence and traditions of the independent Bar in Bar Council 30 November 2007 report, at the Bar, in the Courts, in the wider legal the administration of justice, we have Reform of the Civil Justice System: A Major profession, and in the legal academy. In grown and developed through the various Opportunity to Improve Justice and Boost this latter regard, Professor Tim Lindsey, a legislative changes in Victoria, from the the Victorian Economy, for which the Bar practising member of this Bar, is Director Legal Profession Practice Act 1891 (the engaged McKinsey & Co as consultants of the Asian Law Centre and on the Amalgamation Act) through, most recent- (‘the Reform of the Civil Justice System academic staff of the Centre for Corporate ly, the Legal Practice Act 1996 and the Legal Report’ or ‘the Report’). That Report adds and Securities Law at the Melbourne Law Profession Act 2004. an economic perspective and analysis and School. Governments are driven by their per- rationale for reform in connection with The Report focuses on reform of the ceptions of societal stresses and by what the Civil Justice Review. I spoke also of the Civil Justice System. The Bar continues to they judge to be economic and political co-operative work of the Bar involving and work with the Victorian Justice Statement imperatives. engaging with the Legal Services Board, Criminal Law Advisory Group on reforms The Bar brings to the process of reform the Victoria Law Reform Commission, in Criminal Law and Procedure – working our professional experience and expertise, the Chief Justice and the Courts, the Law now on the draft of a very substantial our understanding of processes involved Institute and, of course, the Government. Criminal Procedure Bill. in the administration of justice, not only In his Opening of the Law Term address An important part of the overall strategy in the courts of law, but in the developing this year, New South Wales Chief Justice for the Bar in relation to Criminal Law fields of alternative dispute resolution and Spigelman claimed pre-eminence for practice, and now also Family Law prac- their place as, not only alternatives, but also Sydney in commercial legal practice and tice, is the seemingly intractable problem adjuncts to the processes in the courts. dispute resolution: ‘In this regard, Sydney of Legal Aid funding.
6 VICTORIAN BAR NEWS Autumn 2008 A major update of the landmark 1997 National Mediation Accreditation Com- (‘CPD’) in the practice of law in Victoria Bar Council Review of Barristers’ Fees mittee on 5 March in Canberra – which comes into force. The current Bar Com- Scales in Criminal Matters, prepared by Committee had been established by pulsory Continuing Legal Education Rules Price Waterhouse Urwick, is near comple- NADRAC. 2007 continue to regulate obligations for tion. The Bar has two representatives on that the 2007–08 CLE year and the declaration On 12 March, I wrote to the Common- Committee. Other legal professional bod- in practising certificate renewal applica- wealth Attorney, Treasurer and Finance ies on the Committee include the Law tions due by 30 April. Minister on the February cuts by VLA to Council of Australia, the New South Wales The major shift is that there will now its Family Law funding – in particular, Bar and New South Wales Law Society, the be three sets of CPD Rules – head rules of funding for Independent Children’s Law- Queensland Bar and Queensland Law the Legal Services Board over the Rules of yers and for instructing solicitors attend- Society, the Law Societies of South Aus- the Bar and Law Institute. The Board will ing court across the board in Family Law tralia and Tasmania, and the Law Institute delegate its functions under the head rules, matters. That letter was copied to all Victo- of Victoria – and the Federal Court of which govern compliance, to the Bar and rian Senators and Members of the House Australia is represented by its Principal Law Institute. of Representatives. Senior Vice-Chairman Registrar. I thank Jeremy Ruskin QC and the Paul Lacava SC spoke on these matters at The National Committee resolved that members of his CLE Committee. Ruskin the media conference co-sponsored by the only RMABs fully functioning as such QC met with policy officers of the Legal Bar with the Law Institute the next day. by 1 August 2008 would be eligible for Services Board, explained the Bar Scheme Another area of change is in the seats at the next meeting of the National to a meeting of the LSB Continuing establishment of national accreditation Committee in September. Education Committee, and guided the and practice standards in mediation. Based The Bar’s continuing participation Bar’s contribution to the process of change on the unanimous recommendation of the on the National Committee, and on the which has preserved the integrity of the Bar Dispute Resolution Committee, the National Committee working groups to Bar Scheme, consistently with the shift to Bar Council has declared the Bar to be a be established by NADRAC, is important the national model of CPD. Recognized Mediator Accreditation Body because that Committee is to review and I have mentioned some of Chief Justice (‘RMAB’) under the National Mediator develop the National System and to estab- Spigelman’s remarks at the Opening of the Accreditation System (‘the National lish the National Mediator Accreditation Law Term in Sydney. It would be remiss System’) and accordingly is phasing out the Body that is to operate from 2010. not to mention the Opening of the Legal Bar’s independent Mediator Accreditation The National System will be the Year observances in Melbourne. The Vic- Scheme. standard, in particular for court-connected torian Branch of the International Com- NADRAC, the National Alternative mediation with its statutory immunity mission of Jurists added a Community Dispute Resolution Advisory Committee, based, in Victoria, on the immunity of a Ceremony at Queen’s Hall, Parliament which advises the Commonwealth Gov- Supreme Court Judge, long before then – House to the rich variety of religious ernment and Commonwealth Courts on and the Bar needs to accredit its mediators observances at St Paul’s Cathedral, St Alternative Dispute Resolution, has been to that standard. It needs also to participate Patrick’s Cathedral, Temple Beth Israel and working towards a national system for in shaping that system and the national the Buddhist Observance – and, of course, many years. The Victorian Parliament Law regulation envisaged from 2010. the Victoria Law Foundation’s Legal Lane- Reform Committee has been working on The dates fixed for the Bar’s transition to way Breakfast. an Inquiry into ADR and its regulation by the National System will meet the 1 August Judges, magistrates, barristers, solicitors Government in Victoria since its March 2008 deadline, with accreditations under and members of the community support 2007 reference on that subject. the Bar’s independent system continuing these observances, and the Bar is pleased The Law Council of Australia, on behalf only until 30 June 2008. to publish addresses from them in this of the Australian legal profession as a whole, I thank Michael Heaton QC, who chairs edition of Bar News. and this Bar independently on our own the Bar Dispute Resolution Committee, and This was the last Opening of the Legal behalf made submissions on the proposed Danielle Huntersmith, Vice-Chair of the Year service for the Anglican Dean of National System. We also made substantial Committee, who chairs the Accreditation Melbourne, the Very Reverend David written and oral submissions to the Vic- Sub-Committee for their extraordinary Richardson, who was part of the revival of torian Parliament Law Reform Committee work in connection with the complexities the ecumenical observance brought about opposing government regulation. and hard decisions involved – and, of by the efforts of Justices Nettle and Dodds- Despite a number of concerns with its course, the members of their Committee Streeton these last three years. Fittingly, form, by the end of last year it became and Sub-Committee – in particular Henry heads of other churches attended, and clear the National System would proceed, Jolson QC who also attended the National the Most Reverend Bishop Peter Elliott, and that the responsible course was to par- Committee meeting in Canberra, and who Auxilliary Bishop of the Roman Catholic ticipate in that change and to work within chaired the recent CLE session to explain Archdiocese of Melbourne, preached a it to address the outstanding issues. the changes and transition to the National powerful sermon on Truth and the Law. The Honourable Justice Kellam of the System. Victorian Court of Appeal, as President On 1 April, the new framework for CONTINUED ON PAGE 92 of NADRAC, opened the meeting of the Continuing Professional Development
VICTORIAN BAR NEWS Autumn 2008 7 ATTORNEY-GENERAL’S COLUMN
Justice Statement II
Nearly four years ago I released the Justice resolution and it will continue to be a very Statement which provided a blueprint of high priority. the Government’s program of reform for We will also be looking at the reform of Victoria’s justice system. civil procedure in the courts. The Victori- The Justice Statement outlines the an Law Reform Commission is preparing various ways in which the legal system a number of recommendations relating to needs to be modernised and the rights of cost management, discovery, pre-litiga- individuals protected. It provides a ten- tion processes, rules for class actions and year vision with a work agenda for the first ADR. We must turn our minds to the four to five years. creation of an efficient and effective civil We have achieved much but there is justice system in Victoria. more to do. It is time to develop a new Under the Justice Statement II we will work program so the vision of the Justice continue reforms to modernise our courts. Statement can be fully realised. I want to It is my view we need to continue to work refresh the reform agenda with the aim towards a unified court system – one of further developing new ways of doing that engages with the community and is things that will make our justice system responsive to legal needs without effecting more accessible and affordable. impartiality and independence. Work has already begun on looking at An important reform being considered new initiatives and ideas that build on the is an overhaul of courts legislation. Cur- work of the first Statement. rently legislation regarding the Supreme The Justice Statement II will continue with a fist-thumping and last-person-left Court and the County Court is unclear the themes of modernising justice and -standing mentality. and confusing, and while the Magistrates addressing disadvantage but will also As we enter a new era, where the public Court Act is much more comprehensive, it introduce two sub-themes: reducing the demand more accessible and affordable has become too unwieldy. cost of justice and creating a unified justice, the adversarial system is not It is proposed to consolidate these Acts and engaged court system that will be necessarily the answer to all problems and which would provide for each of the three more responsive to public needs and we have to find new and innovative ways jurisdictions but would have common expectations. of doing things. provisions for common functions. It is One of the major initiatives I am keen This is why an Alternative Dispute important that we have a unified justice to explore, as part of the Justice Statement Resolution strategy, including justice-led system, at the cornerstone of which is a II, is the development of alternative or mediation, is central to reducing the cost single piece of courts legislation. complementary processes to the current of justice and is at the heart of the Justice We are also considering mental health adversarial system. Statement II. issues as they impact on the justice system. While the adversarial system of justice We aim to strengthen ADR in Victoria About one-third of defendants who enter has generally served us well, in some both in relation to courts-based mediation the courts and corrections systems have cases it can lead to lengthy and costly and community and business oriented some history of mental illness. court proceedings. In such a system, the ADR. There is no doubt in my mind that problem-solving nature of justice is often Victoria has not done all that it could to CONTINUED ON PAGE 92 lost to the theatrics of court melodrama, promote this effective form of dispute
8 VICTORIAN BAR NEWS Autumn 2008 WELCOME Supreme Court
Justice James Judd
Address by Peter Riordan SC, Chairman of the Victorian Bar Council on Wednesday 12 March 2008
I appear on behalf of the Victorian Bar at what fell to hand in South Australia. to welcome your Honour’s appointment to For example, you worked as a builder’s this Court. labourer – and you re-built Sturt’s Cottage The defining quality of a judge is surely – the cottage, not of Charles Sturt the that he or she cares deeply about justice. explorer, but of his young brother who You do and have demonstrated – in 27 rejoiced in the Christian names ‘Evelyn years practice at the Bar – qualities of in- Pitfield Shirley’ – even in the 1800s that tegrity, calm, sound judgment, and a mas- must surely have been a challenge. tery of law, tactics and strategy in the most Sturt’s cottage is in Willunga, on the difficult and complex cases. edge of the McLaren Valley. As Senior Counsel assisting the Com- More significantly for the future, you missioner, Sir Daryl Dawson, in the Long- also worked at the Coriole Vineyards ford Royal Commission – his Honour said in McLaren Vale. Significant, of course, that the efficiency and smooth running because of your own activity in growing of that Commission was, in no small grapes and olives on the Mornington measure, due to your efforts. Peninsula. His Honour commented particularly You re-enrolled at Monash in 1977. On on your sensitive management of witnesses fire to make up lost time, you completed deeply affected and traumatised by the the LLB in 18 months, working through explosion. vacations. Your late father was a Seventh Day You served articles with Stephen Rosten Adventist Pastor in Papua New Guinea, so who had his own firm in Sunshine. you began your schooling at the European Towards the end of your articles year, Peter Buchanan (now Justice Buchanan of school in Madang on the north-eastern you married and began your long and con- the Court of Appeal). coast of Papua New Guinea. tinuing relationship with St Hilda’s College You were in one of the very early Read- In your youth in Papua New Guinea, within the University of Melbourne – ers’ Courses – the first was in March 1980, you learned skills that would hold you in beginning as a resident tutor, and later and you were in the March 1981 course, good stead at the Bar, such as the art of senior tutor. with Sue Kenny (now Justice Kenny), fishing …With a stick of gelignite. Your continuing service to St Hilda’s Felicity Foster (now Judge Hampel) and When the family returned to Australia, has been recognized in you being made a Kate McMillan (Now SC and former Bar you completed your schooling at the Fellow of the College in 1997, and being Chairman). Adventist school in Warburton, and at the appointed to the Council of the College in You began at the Bar, like everyone else, Lilydale Academy. October 2007. taking whatever came. You began the Law/Jurisprudence com- Within a few months of admission Quite early in your time at the Bar, you bined course at Monash, but lost your way to practice, you became associate to Mr were involved in a case which received in the wilderness of political science. Justice Alfred King of this Court. attention on the front page of the Truth You completed just the Bachelor of In your 18 months with the Judge, you newspaper – not quite in the way a young Jurisprudence degree, and then headed also completed a Master of Laws degree at barrister might choose. An offender having off to South Australia. the University of Melbourne. committed some offence of indecency For more than five years, you worked You came to the Bar, and read with Dr had kindly given his name as James Judd,
VICTORIAN BAR NEWS Autumn 2008 9 barrister. You were informed of this when leaders but not one of them actually taking silk, your juniors – speak most you received a visit in chambers from a appeared. highly of all they learned from you. The couple of policemen who asked you to That commission found former West- immediate common description they each accompany them to the station. ern Australian Premier Brian Burke (and give is of the calm, master strategist and It was all quickly sorted but it may have other former Premiers) had acted improp- tactician. been then that you decided that crime was erly. The Commission’s first report was Your on-going wise counsel to your too vexing and you very soon established described in the press as ‘a chronicle of readers, your juniors and to others – legal, yourself as a commercial and revenue corruption and deceit in high places’. strategic, ethical and moral – has been barrister. Your honour had five readers: Peter highly valued. In your time at the Bar, you have devel- Hanks (now QC), Albert Koolmees (now On behalf of the Victorian Bar, I wish oped a close and productive association, in-house corporate counsel in Sydney), your Honour long and satisfying service as with John Walker QC. David Gilbertson, Norman O’Bryan (now a Judge of this Court. John Walker remembers very clearly SC) and Danielle Huntersmith. your first meeting. He was doing a compli- Also while a senior-junior, you and cated tax fraud committal with Julian your brother-in-law began the business Burnside as his junior. You were opposed of Bioproperties, which manufactures to him as junior to Ron Merkel QC. and supplies live vaccines to the worldwide There had been some submissions food-animals industry. from your side – but nothing that worried It all began with a vaccine for chronic Walker. respiratory disease in chickens – in com- Came the luncheon adjournment, and mon parlance, coughing chooks. ��������� Merkel advised the Court that he would It’s now a significant worldwide busi- � � ������������������������� not be back – that his junior would close. ness, engaged in research and develop- John Walker smiled. He took his junior, ment, and employing highly qualified � � �������������������������� Burnside, to a pleasant lunch, and told staff, many with PhDs in their respective ������� Burnside there was nothing much more to specialties. � � ���������������������� do – nothing to worry about. Your commercial practice in the law A big mistake to underestimate Judd. is therefore also informed by your own � � ���������������������� Walker and Burnside’s contented post- personal business experience. � � ������������������������� prandial smiles fell away as your arguments Like most successful barristers you have unfolded. Their pens flew across the page also achieved that very difficult balance taking notes. between work and family. One junior Walker asked the Court to adjourn the recalls being in conference with you when ���������������� matter so he could consider overnight the word came that your house was on fire. arguments you’d raised – the new slant You helpfully suggested to your wife that ��������������������������� ������������������� you’d put on the case. she should get out of the house and leave it �������������� You also appeared, absent your leader, to the fire brigade. In fairness you did for State Government agencies in the interrupt the conference and had your ��������� substantial ‘WA Inc’ Royal Commission. junior drive you home. �������������� In fact you were meant to have had three Both your readers – and, since your
10 VICTORIAN BAR NEWS Autumn 2008 WELCOME County Court
Judge Katherine Bourke
Address by Peter Riordan SC, Chairman of the Victorian Bar Council on Tuesday 18 December 2007
I appear on behalf of the Victorian Bar to major thesis. Your thesis was on crimes offer our warm congratulations to your compensation. Honour Judge Katherine Bourke on your Your Honour played competitive soccer appointment to this Court. at the University of Melbourne. You were Your Honour was educated by the Pres- a foundation member in establishing the entation Sisters first at O’Neill College, and University Women’s Soccer Club, which is then at the Presentation Convent. still very strong. Your Honour practised as a solicitor The University has you and your friends before coming to the Bar. to thank for that. And you have soccer You’ve practised as a barrister for more to thank for major knee reconstruction than 18 years, and contributed signifi- surgery. cantly to the Bar and the Common Law There’s nothing very good about that Bar Association. The Bar welcomes your sort of surgery – other than that not having appointment to this Court. it is worse. That was the welcome that Your Honour But, at least in your Honour’s line of ordered; but it leaves out so much detail from work, it was part of the bank of personal the fabric of such a rich career – I might fill experience you were able to draw on. in just a little colour to the canvas. You served articles with Andrew Lumb Your Honour was one of five girls. It’s a of the firm Ford & Co – now Nevett Ford little late for brothers to be of any use of Melbourne and Ballarat. to you now – however, perhaps better late You continued with that firm after than never – and as a Judge of this Court, admission, first as an employee solicitor, You never let family relationships inter- your Honour has a positive abundance of and then as an associate of the firm. fere with your work as a barrister. judicial brothers – as well as a few extra You came to the Bar in 1989 and read Offered a junior brief with Tobin SC, in sisters of the judicial variety. with John Monahan. a case in which your uncle David, as VRC Your Honour did very well under the Your Honour had one reader, Rebecca Chairman, was the named defendant, you tuition of the nuns and we wonder if, in Boyce. could smell a winning brief and you didn’t your younger days, you were something In May 2000, your Honour was hesitate. No room for sentiment. of a nerd. You played cello in the school appointed Chair of the Bookmakers and Your Honour has had interests with Tim orchestra, and in the State Catholic Bookmakers’ Clerks Registration Com- Tobin in a number of horses. You give them Schools Orchestra. You were Dux of the mittee – succeeding Mr Don Hammond, their names: Bold Litigator, Tortfeasor and School and completed your year 12 in the a former Stipendiary Magistrate. Malfeasance are a few. top 100 students in the State of Victoria It would be fair to say that racing is in You had intended the last to be Mis- overall. the blood. Your Honour’s father, Dr John feasance, but the mare turned out to be a You studied law at the University of Bourke, served for many years as the Chief colt – hence the increase in turpitude to Melbourne, and graduated with a Bachelor Veterinary Surgeon for the Victoria Racing Malfeasance. of Arts and a Bachelor of Laws. Club, and for Racing Victoria Limited. You have some idiosyncratic methods You have since completed the Master of Your uncle, David Bourke CBE, served of picking bets. You consult with an octo- Laws degree at Melbourne, not by course- nearly 20 years on the Committee of the genarian trackman which, I’m informed, is work, but the serious research degree by VRC – seven of those years as Chairman. about as reliable as reading tea-leaves.
VICTORIAN BAR NEWS Autumn 2008 11 Your other system is that you’ll go for behind on an inner-tube. The details are and walked to the Bench, and bowed to anything trained by Gai Waterhouse, sketchy but it seems that your Honour was the Deputy President, and thanked her for combined with an intuitive ‘feel’ for able to maintain your poise while being her attendance! jockeys’ names. This system has not fared thrown around on the wake of the boat – Similar good times await your Honour much better although it did result in a good even after there was, what Jennifer Hawkins – and for the next 24 years. Trifecta win recently – sort of. The system would call, a wardrobe malfunction. You served as a member of the Victorian indicated a loser; but as vanity intervened A transcript you may remember is from Bar Council for two years, in 2000 through and you refused to be seen in glasses, you the Wangaratta circuit in a case before 2002. During that time you were a mem- misread the number and – bingo – you Deputy President Coghlan. ber of the Counsel Committee of the Bar accidentally got the Trifecta. The luck of Your Honour had to cross-examine Council and, with Jack Rush QC and James the Irish. an 80-year-old medical witness, whose Gorton, constituted the Common Law and In July 2004, you were elected to the temper had not improved with age. He was Compensation Bar Portfolio of the Bar VRC Committee, and you were recently deaf, and came to the Tribunal without his Council. You were also on the Pro Bono re-elected for another term. hearing aid – probably just to be difficult. and Major Events Portfolios. Following the tradition of Mr Justice I shall call him John Smith. You served on the Executive of the Crockett and Justice Peter Young of the Plaintiff’s counsel: ‘Your name is John Common Law Bar Association for six Family Court, your Honour is being per- Smith’? years, and on that Association’s Litigation mitted to retain your place on the Racing Witness: ‘Well, sort of.’ Procedure Review Committee. Club Committee. Plaintiff’s counsel: ‘What do you mean, You served a year on the Bar Equality In your practice, your Honour has been “sort of”????’ Before the Law Committee. a circuiteer par excellence. Witness: ‘It’s Dr John Henry Smith.’ You were a Director of the Essoign for I have practised in a circuit town and I All this shouted so Dr Smith could hear three years. But you have, single-handedly, know what goes on on circuit. without his hearing aid. And things went established and run the Calcutta at the However, you have very loyal friends. downhill from there. Essoign for about ten years – and to this Called upon for anecdotes, they’ve shel- Given permission to refer to his day the legendary Jack Styring still does tered under the defence that what occurs voluminous handwritten notes, Dr Smith the phantom race call. on circuit stays on circuit – hence so many complained loudly that: ‘There are pages The acid test of any advocate is what stories about racing. and pages and pages… [this] will take me those who have been opposed to them say. However, it’s premature for your Honour forever!’ Your Honour passes with flying colours. to relax. I do have some – and I’m only a Asked by plaintiff’s counsel to remain Those who have been regularly opposed little intimidated by your Honour’s threat in the witness box for cross-examination to you say you have been a strong advocate of a citation for contempt in the face of the by your Honour, the good doctor looked – both effective and pleasant – and an Court. at your Honour and responded ‘This is honourable opponent whose word is her There was the circuit in Mildura when nonsense!’ bond. the circuiteers found time to escape the After you completed cross-examination, On behalf of the Victorian Bar, I wish incessant strain of circuit work, and took Dr Smith wouldn’t even go until, after your Honour long and satisfying service as out a fast-moving houseboat on the river. being told three times that he could now a Judge of this Court. Your Honour was a good sport and rode leave, the witness stood up, turned around,
12 VICTORIAN BAR NEWS Autumn 2008 WELCOME County Court
Judge Philip Misso
Address by Peter Riordan SC, Chairman of the Victorian Bar Council on Monday 17 December 2007
I appear on behalf of the Victorian Bar to Xavierians Field Hockey team. You also offer our warm congratulations to your served as President of the Old Xavierians Honour Judge Misso on your appointment Association. to this Court. You served articles with the late Vaughan As junior counsel, your Honour Kiessling, a sole practitioner. appeared in the case that has been called You came to the Bar immediately after the Donoghue v Stevenson of the serious admission, being admitted on 2 April and injury jurisdiction: the 1991 decision of commencing your reading the very next the Full Court in Humphries v Poljak. day, on 3 April. You also appeared in the Court of You read with Bill Gillard who, of course, Appeal in Barwon Spinners v Podolak, the later became a Supreme Court Judge and other seminal decision in this area of law. is now retired from the Court. Having contributed to making the law in Not only did you have an excellent Mas- that area, your Honour now joins the Court ter, but you had also another extraordinary that hears most serious injury cases. resource and support, particularly in the Your Honour was educated at Xavier critical first five years or so of starting off College and at Monash University, grad- at the Bar – your father, Ivor Misso. uating Bachelor of Jurisprudence and Sadly Ivor died a little over a year ago. Bachelor of Laws. Ivor Misso was a highly respected and At Burke Hall and Xavier, you played very-well-liked member of the Victorian football and cricket. Indeed, it’s said that Bar. He’d been an Advocate of the Supreme you were up for any sport – not only Court of Ceylon. He had his Bachelor of of a barrister being a good all-rounder football and cricket, but baseball, tennis, Arts and Bachelor of Laws (with honours) with a wide, rather than narrow and spe- rowing, athletics and golf as well – and degrees from the University of London, cialised, practice. later in life, field hockey. and was a Barrister of the Honourable So it was that, particularly in your first You were a pennant tennis player for Society of the Middle Temple in London, seven years at the Bar, you did everything. about 15 years, and have a golf handicap of tracing the origins of its site to the Knights You were mostly in the Magistrates’ Court 14. We are expecting that to go out, under Templar. He was for many years an Exam- and in the Family Court, but you did the tough regime of the Chief Judge. iner to the Council of Legal Education in everything: crime, family law, and the full You describe yourself as having been Ceylon. range of civil work. ‘an ordinary student’ at Xavier – but Ivor came to Australia, and signed And whatever came in, and however the Jesuits obviously got through to you the Roll of Counsel here in 1959. He late in the afternoon or evening before the because you took first-year Latin as part practised until December 1983. He was a appearance, it came to you, you had the of your Bachelor of Jurisprudence course gentleman. extraordinary resource of your father to – very likely the first student of that course Your father encouraged you never to coach and advise you. to do so. refuse any brief – following not only the It is an uncommon privilege of knowing Your Honour has also been a loyal cab-rank rule that is the foundation of the a parent in the practice of the parent’s old boy. You were one of the founders, independent Bar, but more than that. It profession – both of you adults – in this and substantial supporters, of the Old was also in the Anglo-Australian tradition case, brothers in the law working together.
VICTORIAN BAR NEWS Autumn 2008 13 Your Honour built your practice into Warm and engaging with your clients, Your Honour is also a keen bushwalker this Court and the Supreme Court, and you were, however, well capable of showing – walking the Victorian Alps, Cradle also the Industrial Relations Commission a degree of flint and steel towards the other Mountain, and the far South Coast of and the Federal Court. side. Tasmania – and visiting the 1891 light- Your Honour’s first appearance in the After a particularly heated exchange in house on Maatsuyker Island, Australia’s High Court was with Don Ryan QC (now one case, your leader, McGrath QC said Southern-most lighthouse, in nearly-con- Justice Ryan) in the Argyll Diamond Mine quietly ‘Put away the six-gun, Cisco.’ Those stant rain and gale-force winds. case in Perth. of us who remember the black and white Your Honour will be missed by col- Most recently, you have become the gunslinger TV Series ‘The Cisco Kid’ have leagues, by clients, and certainly by those junior counsel of choice for many in just dated ourselves. senior counsel who have had you as their plaintiff’s personal injury work. Your Honour has had other eccentric senior-junior. You have also done a lot of circuit work leaders. You are known for the ability to cut – about 11 years on the Geelong circuit, Arthur Adams QC, asked for humorous through a morass of papers and identify and about four years on the Bairnsdale anecdotes about your Honour, responded the core issues. circuit. immediately: ‘There are none. He wasn’t You have also been able to take carriage Your Honour had six readers: Michael allowed to be funny – that was my role.’ of the case in which you’re being led, as Tinney, John Sutherland, Linden Wood- Your Honour has a deep and mellifluous required. fall, Andrew Field, Bianca Dukic and Rima voice. You’ve even been described as In the landmark case of Barwon Spin- Newman. ‘charismatic’. ners v Podolak, you were being led by You were just short of the required ten You enjoy discourse, as does also your Chris Maxwell QC (now Justice Maxwell, years’ call when Michael Tinney asked to wife, Jane. On being told of your appoint- President of the Court of Appeal). Un- read with you on the recommendation ment, one of your sons commented: ‘So expectedly, your leader had, in the middle of his father’s clerk, Kevin Foley. The Dad, they’ve given you a job where you can of argument, to go to Canberra; but you Bar Council gave leave for you to take a talk and no one can interrupt.’ were more than capable of taking over reader. Your Honour is fond of electronic leadership of the team. Your popularity as a mentor continued gadgetry: Ipods, Blackberries, and the like. Your Honour is two-thirds of the way until, it is said that to quell the tide, you You were one of the first at the Bar to have through your 29th year at the Bar. You have crashed into your last reader’s parked car. a state-of-the-art, voice-activated Black- substantial experience in a wide range of I understand that your Honour says that berry mobile telephone. law, both prosecuting and defending it was an accident and that you were not In the Geelong Court foyer, this was a in crime; and representing civil plaintiffs aware it was Ms Newman’s car – I am not problem. and defendants. You have appeared in briefed to cross-examine. The booming Misso voice spoke to the every level of every Victorian court and Your readers and your neighbours voice-activated Blackberry to get a phone tribunal. This experience you bring to this in chambers all speak of your Honour’s number: ‘Ryan Carlisle’. Court. skill of engaging with, and relating to, This created general confusion as On behalf of the Victorian Bar, I wish clients as individual human beings. several solicitors from that firm came run- your Honour long and satisfying service as There was a constant stream of serious- ning from different corners of the court, a Judge of this Court. injury clients. You won the trust of each thinking they were being summoned by one of them. the Tipstaff.
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14 VICTORIAN BAR NEWS Autumn 2008 FAREWELL Court of Appeal
Justice Alex Chernov JA
The legal profession gathered on 28 Lecturer in Equity in the Council of Legal February 2008 to farewell Justice Alex Education law course at what is now RMIT Chernov, in the presence of his family, University. In 1966 he married Elizabeth upon his retirement from the Court of Hopkins; they had three children, Caro- Appeal. The range of people attending line, Andrew and Michael. The Chernov the Banco Court reflected the diversity of home was delightful to visit, a measure of Alex Chernov’s interests throughout his the warmth of the hospitality of Elizabeth impressive career as barrister, academic, and Alex. judge, university chancellor and Collins Chernov served articles with the late Street farmer. Brendan McGuinness at his office in Col- Alex Chernov was born on 12 May 1938, lins Street. He was admitted to practice to Russian parents, in Lithuania, a country and signed the Roll of Counsel in March which was exposed to the Soviet Union, 1968. He was appointed Queen’s Counsel especially after the conclusion of the Nazi– in 1980. He was Chairman of the Victorian Soviet pact in August 1939. Within 12 Bar Council from April 1985 to September months, the Soviet Union had annexed 1986. He was Vice-President of the Aus- Lithuania, together with her northern tralian Bar Association in 1986–87; and neighbours, Latvia and Estonia. President of the Law Council of Australia Chernov began school in Salzburg, in 1990–91. where his parents lived during the war. He Chernov co-authored Tenancy Law and lost his father early in the war. His widowed Practice Victoria with the Honourable mother brought her two sons to Australia Robert Brooking AO (now retired from Federal Court) as Honorary Secretary, he in 1949. They began life in Australia at the the Court of Appeal) in 1972, and took served two years in that position, 1971–3. Bonegilla Migrant Hostel. Chernov spoke sole responsibility for the second edition Chernov was elected to the Victorian no English when he began his schooling in in 1980. That book has remained one of Bar Council in September 1971, and served Australia. He was educated at Camberwell the leading legal texts – a very substantial on the Council for 14 years (1971–86). His and Caulfield North State Schools, and work of some 760 pages in its first edition Honour served as Assistant Honorary won merit selection entry to Melbourne and 600 pages in its second edition. It was Treasurer for eight years (1974–82) and High School. The pattern of remarkable pleasing to see Justice Brooking among the Honorary Treasurer for two years (1982– achievement had begun. several retired judges who attended the 84). He first studied Commerce, graduating farewell in the Banco Court. Chernov was a Director of Barristers’ Bachelor of Commerce from the Univer- Only a few barristers in the history of Chambers Limited for five years (1982–86) sity of Melbourne in 1961. He taught the Victorian Bar could match Chernov’s and on the Management Committee of the as a senior geography master at two contribution to the Victorian Bar from the Barristers’ Benevolent Association for five Melbourne secondary schools to support time he signed the Roll of Counsel to his years (1981–85). He was also on the Com- himself through law school, and graduated elevation to the Bench. He had been at the mittee that brought about the establish- with an Honours Degree in Law in 1968. Bar three years when he became Assistant ment of Owen Dixon Chambers West. He After graduation, Chernov tutored in Honorary Secretary of the Victorian Bar served on that committee for five years, law in the Melbourne University Colleges Council. Working with Peter Heerey (who through its evolution from an Accom- For five years (1971–75), he was then was himself appointed subsequently to the modation Policy Committee to the Owen
VICTORIAN BAR NEWS Autumn 2008 15 Dusk, dawn and daylight dency of the Victorian Court of Appeal of Winneke P, the fact remains that before From eight miles high, dusk was a two-tone ribbon of orange and grainy black, the appointments were announced by the wrapped round the earth’s girth. government the blackboard above the bar in the old Essoign Club on 13th Floor Five minutes on, the ribbon was all black. East quoted similar odds for Winneke and Chernov to become the first President of that Court. The blackboard tote reflected The stars appeared and held centre stage until ‘put to flight by the pale sign traced the esteem in which the Bar held these two above the curtains by the raised finger of dawn’. lifelong friends. This short acknowledgement of the The vaulted ceiling displayed a cloudless sky of azure retired judge’s career is not the place in while a zephyr brushed the cheek of vertical mortals. which to discuss his contribution as a
*Proust A la recherche du temps perdu judge to the jurisprudence of Victorian NIGEL LEICHHARDT law, but it was substantial; he more than honoured the promise he made at his Welcome to the Court in May 1997 that Dixon Chambers West Development Chernov would often see a new angle in a he would work hard as a judge. Moreover, Committee (1981–86). case at about 1am and take to preparation he was a popular judge: with his peers, Chernov served on numerous other Bar with renewed enthusiasm for the case. As because of his propensity for hard work Committees including, for example, six he gathered a second wind, he resembled and wise counsel; with the Bar, because years on the Ethics Committee (1972–73 a precocious golden retriever finding a of his unfailing courtesy to those who and 1975–80) – an onerous task, and one buried bone, while his juniors were a spent appeared before him, his mastery of the perhaps, insufficiently appreciated by the force gazing at the antique clock on the papers and his solicitude of inexperienced wider Bar community to the present day. mantelpiece. No one was more capable of counsel who were briefed to appear in his Chernov’s clients were the ones that losing his own passport, wallet or Mont Honour’s Court. ultimately benefited most from his metic- Blanc fountain pen. The taxi drivers of The notion of Chernov sitting still in ulous preparation, his skilful and persua- Melbourne were accustomed to being retirement is fanciful. While it is true that sive style of advocacy and his wisdom and asked to check their taxis for lost goods his Honour’s favourite tailors and chefs in experience. But he was a natural teacher to with Chernov’s name on them. The Paris may expect to see somewhat more his readers (of whom he had eight) and his mechanics of Melbourne delighted in of him in the years to come, Chernov will numerous juniors. Working with Chernov Chernov’s love of his Alfa Romeo. direct his energies towards the University on a case was always a pleasure because he Chernov became one of Australia’s lead- of Melbourne and those other institutions could combine leadership and responsibil- ing commercial silks and was retained in with which he has been closely connected. ity for the brief with much good fun and, all the big commercial trials in Victoria He has been a member of the Melbourne at times, mischief. It was always easy to and elsewhere throughout the 1980s and University Council since 1992. Since 2004, attend to the list of tasks he would set 1990s. While all this was going on, Alex’s he has been Deputy Chancellor at the because of the guidance, encouragement influence and energies were brought University of Melbourne. There is also the and good humour that would accompany to bear in several forums beyond the Vic- suggestion that he may return to earn ‘a delivery of the list. He was the master of torian Bar. real buck’ as a mediator and arbitrator in ‘esprit de corps’: conferences would take Chernov was Vice President of LawAsia spare moments. place in chambers and out – at Jimmy in 1997. This was a substantial commitment. In reviewing a professional life which Watson’s, his den at his home in Hawthorn LawAsia works to promote the rule of law culminated in the conferral of an AO and even watching training on a Thursday in a diverse range of political, cultural, for service to the law and to education, afternoon at Princes’ Park. Chernov’s social and economic contexts throughout it is futile to fasten upon any particular preferences in the arts, restaurants and the region, and to foster professional and achievement because there have been so football club were all sound. business relations between lawyers, with many. In days when we hear continued The late night/early morning confer- the Economic and Social Council of the references to ‘work/life balance’, perhaps ences at his home in Hawthorn were both United Nations observer status with the his greatest achievement, in the light of legendary and exhausting in equal meas- World Intellectual Property Organization, all that he has given to the Bar and to the ure. One would be told ‘Don’t turn up until and operational relations status with Victorian community, with the inevitable around 10.00pm’. When one dutifully UNESCO (United Nations Educational, sacrifices and absence from family, is the arrived at the appointed time, the scene Scientific and Cultural Organization). love and admiration of his family so plain resembled the changing of the Guard at Alex Chernov was appointed a Judge of to see when they were sitting in the jury Buckingham Palace with one set of juniors the Supreme Court of Victoria in May box at his farewell. They just adore him. and solicitors leaving as one arrived. For- 1997, and elevated to the Court of Appeal The Victorian Bar wishes Alex Chernov tune had favoured the early conferees. in October 1998. Though no one would well in his retirement. What was most disconcerting was that gainsay the formidable inaugural Presi-
16 VICTORIAN BAR NEWS Autumn 2008 FAREWELL Supreme Court
Justice Bernard Teague
At the Farewell to Justice Bernard Teague A measure of the affection and respect (hereinafter sometimes referred to as that the then partners at Corrs have for ‘Bernie’) on 14 February 2008, it became Bernie is indicated by the number who apparent from the speeches that his life attended his Farewell. Sadly the partner divides conveniently into pre- and post- with whom he served his articles, John Bench. Born in St Kilda on 16 February Lewis, died some months ago. The decision 1938 into a nurturing family which to join Corrs was a happy one and he focussed on education, Bernie was a pre- remained there until his appointment to cocious student who attended De La Salle, the Supreme Court on 13 October 1987. Malvern, where he matriculated at the age The period 1963–1987 is a tribute to of 15. He was school captain and dux of both Bernie’s intellectual capacity and his his final year. work ethic. As a practising solicitor he Too young to attend university, he specialized in litigation, but at Corrs he was worked for a year before undertaking his afforded the opportunity to concentrate National Service at the age of 17. As he had on media law. In that period of 24 years, aspirations of a career in the diplomatic he built up a national and international corps he commenced a Political Science reputation for his expertise in that area of (Honours) Arts course at the University of the law. Melbourne. It quickly became apparent to He was the solicitor to both the Herald him that this was not where his future lay and Sun newspapers when they were sepa- and, accordingly, he decided to switch to rate entities, Channel 7 and Melbourne law. On announcing this decision, his University Press. These retainers were on mother Eileen, showed remarkable presci- an at-call basis and involved guiding those exciting times. He found himself sur- ence. Opposing the idea, she remarked, clients through difficult, delicate and, rounded by a group of younger lawyers ‘You can’t do law, you will only finish up potentially, very expensive problems. who were, effectively, the movers and mixing with criminals’. These included the litigation by Ralph shakers in the profession in Victoria. Law- After completing an Honours Law Nader in 1972, Wilfred Burchett affair in yers including the late John Richards, the degree and a Bachelor of Arts, he obtained 1974, and the infamous Khemlani affair late Tony Smith (later Judge Smith), David articles at what was then Corr & Corr. It was which was, ultimately, a major contributor Jones (later Judge Jones), David Miles, his original intention to go to the Bar and, to the 1975 dismissal of the Whitlam Gov- Matt Walsh and Alan Comell were all in this regard, he had made arrangements ernment. prepared to challenge the status quo. What to read with Robert Brooking (later The late ED ‘Woods’ Lloyd once - ob had formerly been regarded as a respected, Brooking JA). However, at this time he served to me, ‘Bernie is a wonderful com- but rather stodgy men’s club, took on a faced the dilemma which confronts many promise between the pragmatic and the new life. young lawyers. He had married the love legalistic. After all, unless you are prepared Bernie was a participant in many of his life, Patrice, in 1963, and the lack to take a robust approach sometimes, the exciting changes, although these did not of income if he went to the Bar, combined truth would never be published.’ include the burning down of the old Law with the likely inroads into his family In 1974 Bernie was elected to the LIV Institute building in Little Bourke Street life, persuaded him to accept a partnership Council where he was to remain until his by an obliging, but unknown, arsonist offer at Corrs that same year. appointment to the Bench. They were in 1978. Only four weeks before, at the
VICTORIAN BAR NEWS Autumn 2008 17 instigation of Alan Comell, the insurance was a toothless tiger, with little to show Attorney’s break from tradition. However, cover over the building had been trebled. for the considerable amount of money the in the eyes of many members of the Victo- This incident caused great interest on Law Institute poured into its continuing rian Bar, Jim Kennan had lost his marbles the part of the Bar Council who sent a existence. – a practising solicitor indeed?! What deputation to the Institute to find out how Although Bernie had a massive dual would be next? Academics, women, they could achieve something similar. commitment to Corrs and the Law Insti- homosexuals, or Aborigines?! Senior mem- Reforms during the Teague years tute of Victoria for 13 years, and although bers of the Bar who had for long coveted included: he served as President of the Law Institute the ultimate reward of a judicial appoint- • The streamlining of the disciplinary in 1978 and 1986, Corrs never suffered ment, saw one window of opportunity procedures to include lay involvement. any financial detriment because of his closed. There was a discussion of a boycott • The formation of sections to represent absences. of his Honour’s Welcome, but wiser heads solicitors practising in specialized areas. Indeed, due to his legendary work prevailed. • The appointment of a Lay Observer hours, in both years that he was President What followed at Justice Teague’s formal who was the predecessor of the Legal he still recorded more than 2000 billable Welcome was a disgrace, and involved Ombudsman. hours at Corrs. behaviour by the then Acting Chairman • The introduction of a compulsory Those who know him well will respond of the Victorian Bar Council which, at professional indemnity scheme which immediately by pointing to the fact that he best, was ill-mannered and, at worst, inex- became the envy of all other States. spent very little time in bed. That, however, cusable. The transcript of the Acting • The introduction of certified specialist cannot be the case, because at last count Chairman’s speech of ‘welcome’ (so-called) status for solicitors. he had fathered seven children. occupied two typed pages and the latter • The organization of on-going legal Rather the truth is about early arrivals. half consisted of a condescending remind- education for solicitors. As a partner at Corrs it was his habit to er of the complexity of legislation and the • The creation of a Management Advice catch the first tram into the City shortly need for judges to eschew administrative Service which visited practices on after 5.00 am. Frequently, he worked a matters and to decide cases: request to assist with problems. seven-day week. His responsibilities at the • The upgrading of theLaw Institute Jour- Law Institute, particularly when President, The role of judges is not and cannot be nal to bring it into the 20th century. virtually guaranteed that he did not return administrative. It involves essentially • A free legal advice service to members home until late at night. Because he felt deciding cases in accordance with the law of the public. that he needed more exercise he, ultimate- and thereby dispensing justice. Those • The organization of international law ly, gave up the first tram and switched to before the Courts must be entitled to put conferences in Melbourne. the railways. He began to catch the first all their arguments and to have those • The successful campaign to force banks train into the City shortly after 5.00am. arguments dealt with fully and justly. If to pay interest on trust moneys. This habit of an early arrival and a seven- ever judges became regarded as adminis- This latter achievement which was headed day working week continued throughout trators who decided cases in accordance by Alan Comell and called The Westpac the years that he has been on the Bench, with convenience or the wishes of the Deal, meant the provision of millions although his means of transport changed State, far-reaching inroads would be made of dollars for legal aid, legal education to bicycle some ten years ago. It was then, into the liberty of the individuals who and proper supervision of trust funds. in search of even more exercise, he gave comprise our society. It represented a break through a defiant up public transport for good and rode his wall of non-cooperation on the part of the bicycle to Court each weekday arriving at These passages were more appropriate banks and brought about similar changes about 5.30 am. He did, however, afford for a form III legal studies class, rather in all other states. himself the luxury of driving to the Court than a Welcome to an appointee to the While Bernie recognized the profession’s on Saturdays and Sundays because of the highest Court in our State. It represented impatience with the artificial restrictions reduced traffic. a black day for the Victorian Bar and was placed upon solicitors’ entitlement to At the time of his appointment to the contrary to what I had always understood advertise, and pressed for liberalisation, Supreme Court in 1987 Bernie enjoyed a the Victorian Bar stood for. In particular personally he regarded the freeing up of national and international reputation as the references to administration and the advertising restrictions as something a common lawyer generally and a media the judicial process, at best displayed of a Pandora’s box. However, it was typical law specialist in particular, which was at a monumental ignorance of the Court of him that as President of the Institute, its height. experience of the new appointee and he argued forcefully for a change about When in October 1987, Attorney- the national and international regard in which he personally was ambivalent. General, Jim Kennan, announced the which he was held. He was (and is), however, an ardent appointment to the Supreme Court of a More than twenty years later, on 14 Feb- advocate of a national profession with practising solicitor, Bernard Teague, there ruary (the anniversary of the St Valentine’s total reciprocity of admission from state was a mixed reception from the profes- Day massacre) Justice Bernard Teague to state. The corollary was his concern sion. Those who knew Bernard Teague retired. during his time on the Law Institute well, whether as practising barristers or Contrary to the concerns of the Acting Council that the Law Council of Australia solicitors, enthusiastically endorsed the Chairman of the Bar Council who had
18 VICTORIAN BAR NEWS Autumn 2008 spoken at his Welcome, little of his time in the establishment of the Australia-wide organizations, his facility for innovation had been spent in administration and Judicial Orientation Program. He was and reform and his unfailing service to indeed even in the eyes of his most carping the convenor of the AIJA Technology for the people of Victoria. All of those matters critics, he had demonstrated that he had Justice Conference in 1998. In 2004 he were fairly dealt with in the affectionate a pretty handy grip on the concept that was made a life member of the AIJA. He and appreciative speeches made at his being a judge ‘involves essentially deciding was a member of the International Bar Farewell. What, however, I hope I have cases in accordance with the law and Association for more than 20 years and done is to demonstrate that the Victorian thereby dispensing justice’. on its organizing committee for its 1999 Bar in 1987, through its Acting Chairman, After his infamous Welcome, Justice Melbourne Convention, the first IBA got it hopelessly wrong. Teague’s first case was a matter of PJ biennial conference held in Australia. There is no better way to sum up this Constructions (Vic) Pty Ltd (in liquidation) He played a key role on the organizing tribute than by repeating the words of v TM Burke Pty Ltd which involved the committee of the 2003 Commonwealth Peter Riordan QC, Chairman of the concept of unjust enrichment. Now, even Law Association conference in Melbourne Victorian Bar Council, when he addressed at the Essoign Club, ‘unjust enrichment’ and, was responsible for persuading many the Court at Judge Teague’s Farewell. On was not a common topic for conversation senior overseas judges to make the trip that occasion he said: at lunch. There were some of us (support- to Melbourne. Of course, all of this was ers of the Teague appointment) who were over and above more than a full-time Your Honour responded to the challenge sufficiently paranoid that we believed that commitment to the Supreme Court. of being the first and only practising so- the allocation of this matter involving an In Court Bernie continued to display licitor to be appointed as a judge of this obscure area of the law, was just a continu- the courage to innovate and experiment, court in your own inimitable way. Your ation of his ‘Welcome’ to the Bench. and his sentence in the matter of R v Avent Honour was one of the most experienced In the early months, Justice Teague sat in 1995 was the first televised in this state. and highly regarded litigation lawyers in predominantly in the Civil Jurisdiction, Occasionally his early arrival at Court the state, particularly in the areas of defa- and quickly gained the confidence of most still caused some problems. On one mation and personal injury. However, it of his original detractors. However, the real occasion on his arrival at Court in the could be said that Your Honour did not milestone in his judicial career came about early hours of the morning, he found a have a great deal of experience in the in a most unexpected way. In 1988, he broken glass panel in the first floor door criminal law. In fact Your Honour has requested he be listed in crime, an area in into Judges’ Chambers and a trail of remarked that the first time you set foot in which even his most outspoken supporters blood. Quite properly he rang the police a criminal court was to see a murder trial, believed ‘he dare not go’. Not only was his and when they responded he showed and you were the judge. However, there first participation in a criminal hearing them where the break-in had occurred. was never any doubt that Your Honour’s at the age of 50, but it was to preside Everything was going swimmingly until work ethic, intelligence, not to mention over a murder trial! The rest is history. one police officer, unaccustomed to find- your pragmatism and deep concern for He found the subtleties of the criminal ing anybody occupying a Court at 6.00am, fairness, would ensure that you met the law fascinating and during the last ten was prompted to ask ‘And who the bloody challenges that were presented to you by years he sat almost exclusively in crime, hell are you?’ this court. In fact, as has been mentioned and by the date of his retirement, he had On another occasion, while riding by the Solicitor-General, since 2001 you presided over more than 90 murder trials. a tandem to work with Patrice behind have been the Principal Judge of the These included the trials of Edwin Lewis, him (as many Supreme Court Judges Criminal Division of this Court. Peter Knight and Keith Faure. At the time do), he allowed the front wheel to catch It would be remiss of me not to men- of his retirement. Justice Teague was the in a tram track and suffered a heavy fall. tion that the Bar is very grateful for principal Judge in the Criminal Division He dislocated his shoulder and it was Your Honour’s tireless work in ensuring and had responsibility for allocating eight necessary to go to St Vincent’s to have it that our Supreme Court has adopted the judges to particular matters. put back into place under anaesthetic. reforms and efficiencies to ensure that it Appointment to the Bench did nothing However, as he was conducting a murder remains the pre-eminent Supreme Court to make him one dimensional. He had trial at the time, he felt that he should in this country. served on the Board of Examiners, before persevere and, in any event, after medical On behalf of the Victorian Bar, I would moving to the Council of Legal Education. treatment, he still arrived at Court by 9.00 very much like to thank you for your great He served as Chairman or Deputy am. His only concern was that he might contribution to the legal profession and to Chairman of the Adult Parole Board for fall asleep on the Bench as a result of the this court. 17 years, and Chairman of the Forensic after-effects of the general anaesthetic. He Leave Panel and Forensicare for nine warned his Associate and his Tipstaff to years. keep an eye on him for the first signs of He was on the Council and Board him passing out! of the Australian Institute of Judicial I am aware that this tribute to Bernard Administration for six years. He was Teague does not do full justice to his the inaugural Chairman of the AIJA wry humour, his love of his family, Education Committee: playing a key role his involvement in international legal
VICTORIAN BAR NEWS Autumn 2008 19 FAREWELL Family Court
Justice Joseph Kay
Address by Peter Riordan SC, Chairman of the Victorian Bar Council, on Friday 15 February 2008
I appear on behalf of the Australian Bar I sat down to dinner between the Chief Association – in particular, of course, on Justice and the Governor-General. Only in behalf of the Victorian Bar. Australia… .’ Your Honour has served as a Judge of But you never took on airs and graces. this Court for nearly 22 years – more than Shortly after your appointment a barrister 14 of those years assigned to the Appellate greeted you in Domino’s ‘Hello, Judge’. You Division of the Court. responded ‘Hello, Barrister’ – and there- Your Honour came to the Bar, almost after you both returned to first-name immediately after admission, and read terms. with Rod Joske – later Mr Justice Joske Particularly in early days on the Court, of this Court. You quickly developed a the mercurial side of your nature flashed strong general practice, but the insistent through from time to time. demands of your Matrimonial Causes On one occasion, you came down clients steered you to exclusive practice in from the Bench alongside counsel at the that field. Bar table: ‘Look!’ You pointed to parts of You were recognized as a leader and the document from which counsel was gave much time and energy to family law addressing you. ‘This is how you read a policy and law reform. You served on balance sheet!’ every family law committee there was at Another favourite is your final clincher the Bar and, as Mr Kennedy will tell us, after a heated exchange with counsel: ‘Let through the Law Council of Australia and the transcript record that counsel threw the Government’s Family Law Council. down the document I had ruled irrelevant of Melbourne, your classmates were You chaired the Family Law Bar Asso- onto the Bar table in a fit of pique!’ nervous. You were relaxed, languorously ciation and formulated the Bar’s responses But such flashes were no more than that. sucking at a pipe. ‘Did you know that to Government and Law Reform agencies When you later asked for a document, and Rylands v Fletcher was disapproved in the on Family Law matters. You were a Bar ap- were politely advised that it was the very Canadian Court of Appeal?’ you quipped. pointee of the Council of Legal Education, document you had ruled irrelevant, you The mercurial and competitive side and a member of the Bar Fees Committee. smiled, and the air was cleared. of your nature also manifested itself in You had four readers. And even the most heated exchange in your driving. One day you sped through You took pleasure in the distinction of court stayed in court. a roundabout. You turned around to look your appointment to this Court. The intense concentration and competi- behind you – and saw that Bumper, the Movingly, you spoke at your Welcome tive edge we have all seen in your Honour family dog, was no longer on the back seat. of your parents’ migration from Poland at the Bar and on the Bench have deep An open window, a small dog, and Your in the Great Depression to escape bigotry, roots: in the Coca Cola Yo-Yo Champion- Honour’s emulation of Stirling Moss were and of their joy in your achievements in ships – to say nothing of your having de- not a good combination. this country. veloped a distinct partiality to Diet Coke. There is a quaint symmetry in appoint- Even as you achieved greater seniority More competition, and a mastery of ments between you and Justice Dessau. and distinction on the Court, you never words, have roots in the Moomba Scrabble In June 1986 you were appointed to lost the simple delight in that distinction. Championships – and you were a fiercely this Court; and in July that year, she was You once said to a friend: ‘My parents competitive Table Tennis Champion. appointed to the Victorian Magistrates’ came to Australia with nothing. Last night, Before the Torts exam at the University Court.
20 VICTORIAN BAR NEWS Autumn 2008 You wrote to congratulate her, and added that you looked forward to hearing appeals from her decisions. High altitude By June 1995, when she was appointed for the late Ian Bowditch to this Court, you were on the Appellate Division. Your congratulations repeated that you looked forward to hearing appeals from Your deft touch defused exploding egoes. her decisions. You have been the Liaison Judge for Your gentle ways merited the title of gentleman. the whole of Australia under the Hague Convention. One of your roles as such Me, I remember you as a man of unfailing decency. has been to assist other judges world- wide. Domestically, you liaised with the Your lastborn has honoured you in a song whose airplay Commonwealth and the State Central evokes and prolongs Authorities. the memory of a man You have been the Australian judicial whom neither death nor disease shall conquer. representative at the Special Commission Meetings every four years, and at the NIGEL LEICHARDT Judges’ meetings. You have been a regular contributor to the Judges’ newsletter on the Convention, published out of the Permanent Bureau of the Hague Conference. You are a national and international delegate at the Hague Convention Special Although it was only with some effort authority on the Convention – amongst Commission Meeting and at the Common that they put it into words, your friends three or four judges who have led the way Law Judicial Conference on International at the Family Bar Association say you in its development and application. Child Custody in Washington, your Hon- will be really missed on the Court. Your Mr Kym Duggan, the Assistant Sec- our has presented papers on family law attendance at Family Law Bar Association retary of the Family Law Branch of the related topics in London, Bath, New York, functions during your time in office has Commonwealth Attorney-General’s De- Washington, Kansas City, New Orleans, been much appreciated – and they hope to partment, who is the leading Govern- San Francisco, Vancouver, Quebec, Jerusa- see a lot more of you. mental officer in relation to the Hague lem, Capetown, Auckland and, of course, On behalf of the Australian Bar Convention, came from Canberra yester- throughout Australia. Association, and all the independent Bars day so as to be here in your honour. He is Your friends hope you and your wife of Australia – in particular, the Victorian in court today. Yvonne will enjoy using the frequent flyer Bar – I wish Your Honour and Yvonne a In addition to being the Australian miles in your retirement. long and satisfying retirement.
VICTORIAN BAR NEWS Autumn 2008 21 OBITUARY
David Roy Cross
David Cross was a country boy from NSW civil juries. David Cross enthusiastically Bar, he had retired during legal vacations who grew up in the bush just north of Syd- followed suit, mainly appearing for de- to relax and bird-watch. ney and with a love of the bush and the fendants. He was soon regularly briefed by After his retirement Dawn and I enjoyed ballads of Henry Lawson and Banjo Pater- the big names in the insurance field in an annual lunch with him at which we son. He graduated in Arts at Sydney Uni- those days, such as Bernie Teague, David had great fun recalling our Bar life and versity and for a time was a teacher in Jones, Frank Whelahan, Neville Lane, Alan experiences and the characters at the Bar English. He then repaired to Melbourne Douglas, Brian McCarthy, Geoff Durham, and on the Bench. He always presented me and graduated in law at Melbourne Uni- Peter Coldbeck, David Lewis, Jack Lewis, with a bottle of liqueur (French of course) versity in the 1950s. He did his articles John Bell, Bruce Millar, Austin Parnell, which he maintained was a reading fee in with Dan Condon, whose office was in Tony Harold, John Richards, George Kef- addition to the original 50 guineas which Chancery Lane (Little Collins Street) ford, Paul O’Connor, John Clements and was the traditional reading fee way back almost opposite the entrance to Selborne Roy Lidgerwood. then. Chambers. In those days as you entered David also developed a circuit practice, He composed and illustrated his own Selborne Chambers from Chancery Lane, particularly in Ballarat where his Christmas cards of which we have a on your right were the chambers of Bob redoubtable opponent was usually Ted complete set. Menzies and on your left were those of Laurie. In July this year, quite out of the blue, Harry Wolf – known as ‘the wolf at the As well as his legal practice David was I received a letter from a friend and door’. Then just inside the door were the a prolific author. His better-known books neighbour as follows – chambers of Hubert Frederico with whom (all of which bear reading) are: I read in 1950. Dan Condon used to brief George and the Widda-Woman Dear Mr and Mrs Colman, Hubert Frederico and then, fortunately, The Mug Gardener’s Handbook It is with great sadness I am writing today his reader and thus David Cross’s and my Kill all the Judges (beautifully illustrated to inform you of the death of David Cross paths crossed for what was to be a long by George Luke) on Tuesday 3rd July, following a long association and friendship. I’ll Plead Insanity. illness. David remained as a solicitor with Dan He received an award at the Adelaide Following David’s wishes there was to be Condon until 1962 when he came to the Festival Writers’ Week for George and no funeral or memorial service. He there- Bar and read with me in Room 504 in the Widda-Woman which he read on the fore asked that I write personally to each of Owen Dixon Chambers and adopted Jack ABC on weekdays at 10am when our his friends to inform them of his death. Hyland as his Clerk as I had done when conferences came to an abrupt halt after David has been a great friend and the Bar moved from Selborne Chambers which we had to race across William Street neighbour to many people, and I know that in 1961. to Court by 10.30. we will all miss his wit, raconteur skills and I had inherited Room 504 from Oliver David was a francophile. He taught his many kindnesses over the years. Gillard when he was elevated to the Bench. himself to read French. He resided in Paris It was a lovely sunny room overlooking for some time and frequently attended the So typical of David. He always said William Street and about level with the Halls of Justice there. He was a member of ‘I never ask anyone how they are. They statue of justice on the law courts. She and frequent visitor to the premises of the always tell you and in great detail.’ was not blindfolded as was traditional for Alliance Française de Melbourne. He was a great believer in a strong inde- statues of justice, as Harry Winneke CJ David retired from the Bar in 1991 and pendent Bar and, I believe, a great credit insisted that justice was not blind. thereafter lived in Canterbury. He had to it. At that time my practice at the Bar was earlier disposed of his house in the Blue GEOFFREY COLMAN QC mainly common law and particularly in Mountains to which, during his life at the
22 VICTORIAN BAR NEWS Autumn 2008 OBITUARY
David Maclean SC
After an illness of 13 months, David Maclean Cowen, supplied the Foreword. Sir Zelman huge library of equity and property texts, died on 23 January 2008. A requiem mass made the prescient observation that Trusts which he generously made available to and funeral were held on 29 January 2008 & Powers would establish David as a legal colleagues throughout chambers. He was a at Newman College. scholar. good and loyal member of his chambers David’s interest in equity led to further on the first floor of Owen Dixon West; he David was born on 17 July 1957 at Sey- publications: he contributed the chapters co-employed the same secretary, Lena mour, the elder son of Allan and Marjorie. on injunctions, delivery up and cancella- Sokolois, for 20 years. Between August At the time, his father Allan was serving tion of documents to The Principles of 2000 and October 2003, he was a director at Puckapunyal as Officer in Charge of Equity and the chapter on injunctions in of the Bar Superannuation Fund. the RAEME Trade Repair Workshop The Laws of Australia. Between 1991 and David’s range of interests outside the (Electronics). David spent several years 2003, David was the Book Review Editor law was nothing less than vast. There in the UK, when his father was posted to and New Books Editor of The Australian was nothing that did not interest him, The Royal Military College of Science at Law Journal, as well as being an author of and few things upon which he could not Shrivenham and The Royal Radar Estab- articles and a regular contributor to the knowledgeably speak. He was an avid lishment at Great Malvern. David’s educa- Trusts and Equity column in that journal. reader and collector of books, anxious to tion was that of a family in the services: he He was an industrious law reporter. He tell of what he was reading and to hear of attended 13 schools in all. He completed reported for the Victorian Reports from what there was to be read. Apart from his his secondary education at Mazenod 1985 to 1990 and for the Federal Court books, he loved his wine, his collection of College in Melbourne. Reports during the 1990s. In 2006, he was antique and rare watches and his vintage David studied law and arts at Melbourne. appointed editor of the Victorian Reports. cars: an MG, a Jensen and a Lamborghini. He was a resident student both at Newman David’s particular expertise was in He greatly enjoyed dining with friends and at Trinity. David graduated BA LLB superannuation, trusts (including discre- and colleagues. He would head off most (Honours) in 1981. From 1981 to 1983, he tionary trusts, unit trusts, charitable Fridays either to the Florentino or the served articles with Conlan & Leishman at trusts), injunctions, rectification and other more demotic Pellegrinis where he would Port Fairy. After a short stint as a solicitor equitable remedies. In recent years, he was join in the banter generated by Sisto with Moules, David signed the Roll of junior counsel in the complex proceedings Malaspina, and tease patrons associated Counsel on 19 May 1983. He built up a concerning the Ansett superannuation with teams other than the Saints. Less well practice in the commercial and equity funds following the collapse of the airline known, but no less seriously held, were his jurisdiction. He took silk in November in 2001 (2001–2003), and long-running love of soccer and a love/hate relationship 2004. superannuation fund litigation in the oil with the England football team. David developed a strong interest in industry from 2001. He advised widely in Despite his quiet and droll manner, equity and, with the encouragement of both litigious and non-litigious matters: David was gregarious. The catholicity of Frank Callaway QC and Ross Sundberg superannuation funds (including dealings his interests was matched by the range QC, with whom he shared chambers, with APRA and ASIC), banks and other of his friendships. Rupert Myer, a friend and Ian Spry QC, he took a sabbatical financial institutions, insurance compa- from Trinity days, and Andrew Fairley, a in 1987 at Oriel College, Oxford, and nies, religious and charitable bodies of colleague in superannuation, both gave made significant progress towards the all kinds. His working life was somewhat beautiful eulogies at Newman. completion of Trusts & Powers, which was monastic. He would spend long and published in Australia by the Law Book solitary hours in his chambers, poring over CONTINUED ON PAGE 92 Company and in the UK by Sweet and texts, handwriting every pleading and ad- Maxwell. The Provost of Oriel, Sir Zelman vice before having it typed. He possessed a
VICTORIAN BAR NEWS Autumn 2008 23 THE OPENING OF THE
Legal Year Truth and the Law
Most Reverend Peter J Elliott Titular Bishop of Manaccenser, Auxiliary Bishop of Melbourne
Ecumenical service to mark the Opening of the Legal Year St Paul’s Cathedral, Melbourne, Tuesday, 29 January 2008
et me first express our gratitude to Dean David Richardson for wel- coming us to St Paul’s Cathedral for Lthis ecumenical service. As many know, the Dean is preparing to leave us. When I first heard that he was ‘going to Rome’ my heart leapt, but then I was informed that this is a geographical, not a spiritual, move. He will take up the prestigious office of Director of the Anglican Centre, housed in the Palazzo Doria Pamphili on the Via del Corso, ‘deep in the panting heart of Rome’. As we congratulate him on his appoint- ment, so we rejoice to behold his lasting achievement, that which surrounds us this morning, the restoration of Butterfield’s The congregation magnificent cathedral.
24 VICTORIAN BAR NEWS Autumn 2008 Secularists assert that religion is a ‘private At the heart of the sixteenth century, in remaining true to the higher principles of matter’, for they are radical individualists. the England of Henry VIII, two Christian an ethic grounded in our very nature as Moreover, they assume that everyone is lawyers rose to the highest office in the moral beings, derived from what may be naturally an atheist, that they represent land and both of them ended up on the called ‘the truth of the person’. what is normal. This secularist illusion gets scaffold at the Tower – Sir Thomas More Legal positivism, by contrast, separates to us, particularly through the media, and and Sir Thomas Cromwell. In my tradi- morality from law. There are many ways we may even absorb that false assumption. tion, the former is revered as a canonised of attempting to define this dualism, this But anyone who makes a stopover on a saint, the patron of your noble profession, self-verifying theory of law. The autonomy flight to Europe can enter cultures where while the latter is reviled as a toady and of law was articulated by the utilitarian life is communal and religion is normal. If plunderer of monasteries. But Thomas Jeremy Bentham, an atheist, who in my you observe the world beyond our narrow Cromwell was no monster. A flawed but world view, represents the shadowy side horizons, assertive individualism and brilliant man, he also died courageously of the Enlightenment. A brighter side of atheism find no place in the lives of most and prayerfully. Yet he represents some- that ambiguous movement held to the of the people who inhabit this planet. thing else that, I would argue, undermines natural law tradition, as in the founding This is why a communal religious ob- truth in the practice of the law. He is one fathers of the United States. This natural servance is a normal way of marking the of the remote fathers of legal positivism. law tradition ultimately flowered in the Opening of the Legal Year. What gathers By acceding to the dictates of a tyrant, he 1947 Universal Declaration of Human us here today for this specific ecumenical divorced morality from law. Rights, which, for the record, was partly influenced by the Catholic lay philosopher, Jacques Maritain. At least in its extreme form, legal positivism offers no guarantee of protecting human rights from tyranny. At that stage we can no longer find truth in the law. Law now depends on the dictates of the State, or is determined by the more forceful opinions of individuals or factions, or law making may be driven by ideology, such as the push for a so-called ‘right’ to abortion. In our society such trends are justified by appealing to an undefinable authority, ‘community values’ or ‘community stand- ards’, so right or wrong is replaced by approximate consensus. In this decadent context we have great and urgent responsibilities. We now face the challenge of social engineering, that is, attempts to use legislation and subsequent laws to change the way people act and Bishop Peter Elliott delivers the sermon think. Ethical, hence legal, issues arise, concerning the value of human life, the observance is our shared Christianity. We St Thomas More remained faithful right to life, the integrity of marriage, even do not apologise for that; on the other to an older and richer tradition, to the the nature of parenthood and the family. hand, we do not impose it on others. In natural law. The Judaeo-Christian ethic Many people are concerned about these a democratic pluralist society we freely rests on this natural law: that good is to matters. As we gather in this cathedral, choose to commence the Legal Year by be done and evil avoided, that there are in East Melbourne at the John Paul II placing ourselves under the care of God, objective moral standards, moral truths. Institute for Marriage and Family, of the Holy Trinity, who is revealed in the Throughout the Hebrew and Christian which I am Director, the annual National words and deeds of Jesus of Nazareth. Scriptures, in the highest literature and the Colloquium on Bioethics is in progress. In the Gospel we have just heard, he best popular culture, we find a fascination Experts from all over Australia and be- promised his disciples that he would send with the human struggle to discern right yond and from different denominations the Spirit of Truth, the Holy Spirit, to guide from wrong, to identify good and evil, are working on the theme ‘Conscience in his people into all truth. Christians are questions requiring a moral judgement Professional Life: Doctors, Lawyers and called to be open to this Spirit of Truth. All we call ‘conscience’. The natural law posits Legislators’. Today doctors, lawyers, legis- men and women who serve in the honour- that these realities are knowable through lators and bio-ethicists are discussing the able profession of the law should seek, reason, indeed written into the very nature question of the jurist and conscience. welcome and serve truth. Yet this has not of the human person. Hence the making You may not agree with, or know much always been so. and application of good laws is assured by about, Catholic social ethics. But I would
VICTORIAN BAR NEWS Autumn 2008 25 Dean David Richardson
Bishop Elliott and Dean Richardson lead the procession
Bishop Elliott with his brother, Paul Elliott Judge Duckett and Judge Robertson
26 VICTORIAN BAR NEWS Autumn 2008 hope that at least you admit that the tradition I represent is carefully thought out, reasoned, coherent, based not on blind faith, as secularists imagine, but on the natural law tradition together with the spiritual and moral wisdom and experience of many people across four millennia. Your prudent advice to legislators is crit- ical, if the good of society is to be promoted and harm avoided. In the brutal twentieth century, calculated social engineering destroyed life and liberty. Today it entices legislators and those who advise them ‘to make a name for themselves’. Those tempt- ed in this way should beware. They will leave a name for themselves, but in the annals of infamy, held responsible for con- sequences of human suffering, deaths and social fragmentation. In any social context we also see that the law is a great teacher. The pedagogy of the Rod Smith, Simon Wilson QC and Paul Elliott QC law raises another dimension of truth and the law. Law not only maintains justice, with equity and impartiality, but can edu- sters, abortionists, teenage delinquents Note, however, that in such decisions, great cate people to respect human rights and and con men. Judges are lambasted for jurists do not hesitate to have recourse to dignity. being too severe or too soft. Ethical think- the concept of ‘natural justice’. Nevertheless, in the estimation of the ing is befuddled by sentimental political I want to return to what gathers us to- masses, what is legal is what is moral. There- correctness. The only fumbling attempt at gether this morning, religion, in particular fore changing law may well change moral ethical discourse is the use of safe relativis- Christianity. perception. This possibility obviously tic terms, ‘appropriate’ or ‘inappropriate’, To what I propose, secularists may complicates debates on legalising drugs. never ‘right’ or ‘wrong’, for those words reply that natural law involves specific It is relevant in the conversation on decrim- express objective morality and suggest that religious beliefs, that is, faith, and for this inalising abortion. But there have been there is moral truth. Yet our legal system reason it can have no part in the making more sinister possibilities. In an authoritar- rises or falls on its fidelity to moral truth. and practice of the law in secular society. ian society people may accept something In some universities and on the fringe Yet nowhere have I appealed to faith. that is immoral, for example racism, of popular culture, the fashion is ‘post- The principles of the natural law and because it has been legalised by the state. modernism’. Its radical individualism tells their interpretation and application as That happened through the Nuremberg us that there is no truth, only ‘your truth’ natural justice rest on reason. Certainly laws of 1935. Eleven years later, after and ‘my truth’. Culture wars are reduced reason often needs the illumination of unspeakable horrors, in that same city the to power struggles. All values are human revealed religion, yet even that is received political criminals responsible for those constructs to be ‘deconstructed’, prefer- best through a reasoned faith, brilliantly debased laws were held to account. But ably by cynical comedians posturing at articulated by the late Pope John Paul II in if you think the Nuremberg Trials, and ‘comedy festivals’. Postmodernism echoes his letter, Fides et Ratio, Faith and Reason, current international cases against geno- the empty words of Pontius Pilate: ‘truth – further developed by Pope Benedict in cide and war crimes, can be justified by what’s that?’ But even as he spoke, there his amazingly controversial Regensberg anything but natural law principles, then was the truth, standing in front of him, Lecture. think again. staring him in the eyes, scourged and Undaunted secularists go on to warn us You are called to serve society through crowned with thorns. To serve the truth against ‘imposing religious values’ on this pedagogy of the law. In a different, but is to serve Him and be prepared to suffer society. So we have yet another phobia or related, way I share your responsibility. But for it. prejudice on our hands! Some call it ‘theo- let us all do a reality check. We function in At the same time, amidst all the moral phobia’, fear of God, or ‘christophobia’, an ethically confused society, where nice confusion and cant, there is a beautiful fear of Christians. But Christians cannot people do nasty things, driven by greed. In simplicity and tranquillity about the truth and do not want to turn Australia into the work of your profession and mine we we find in the practice of the law. This is a theocracy. If one tries to identify the are encountering more of this ‘respectable’ evident in some of the great decisions engines driving social engineering, it is the criminality. of our legal tradition, those magisterial secularists who are trying to impose their Hypocrisy is evident. Sectors of the me- precedents that benefit both individuals values on our society, strange values in- dia make celebrities out of terrorists, gang- and the common good, and do no harm. deed: a ‘toleration’ that breeds intolerance,
VICTORIAN BAR NEWS Autumn 2008 27 Professor Cheryl Saunders and John Glover Justices Osborn, Ashley and Nettle
‘choice’ that kills the innocent, ‘dying with dignity’ that could unleash terror and also ruin another noble profession. In this context, just before Christmas, in an aggressive article in The Australian, a secularist journalist invoked ‘the separa- tion of church and state’. Now he could have been reminded that this is Australia, not the United States. Even there, several centuries ago this ‘separation of church and state’ expressed the wish of religious people to be free from any established church, and that is in our own constitu- tion. Only later, in the last century, was the separation of church and state reinterpret- ed by the US Supreme Court in dogmatic secularist terms, leading to the silliness of banning Christmas cribs in public places. Judicial perambulations Such foolish trends are evident in this country. However, my final consideration is how natural law and our own Christian tradi- tions open a more personal dimension of By contrast, service rests on commit- May this personal truth in the practice truth and the law, what we might call ‘the ment to seek whatever sustains and of the law shine forth in your lives. But truth of service’. Here the practice of the protects people, for their human flourish- keep asking for the spirit of truth. Pray for law is understood as a service to society ing and liberty. The values of the natural that spirit. Try to rediscover and value and individuals, especially the poor, the law are behind those goals. Only through what really lies behind the marvellous most vulnerable and dysfunctional. service can your noble profession be edifice of the law. But, above all, offer Unfortunately, in our times there is a understood as a vocation, rather than a people the best service you can. We are a temptation to replace service with exper- skilled and frenzied quest for money, flawed humanity on a common journey, tise, to slide into an impersonal mech- power or prestige, noting St Paul’s warn- or should I say in the light of Christ the anical functionalism. But that is not ing in our second reading today. Service Truth, we are on an adventure, a pilgrim- impartiality. It only reduces judges, magis- has an attractive integrity of its own, con- age where life has form, a plan, meaning, trates, barristers and solicitors to techni- stantly reforming and cleansing our work- purpose and a destiny. cians, under the tyranny of the laptop. ing lives.
28 VICTORIAN BAR NEWS Autumn 2008 THE OPENING OF THE
Legal Year
The Red Mass
Mass celebrated by Archbishop Denis Hart at Saint Patrick’s Cathedral, Melbourne, for the Opening of the Legal Year, 29 January 2008
VICTORIAN BAR NEWS Autumn 2008 29 INTRODUCTION administrators and practitioners in a Dear Brothers and Sisters, secular state when he says: ‘The Church has The Red Mass is an ancient tradition, often spoken on the subject of the nature invoking God’s blessings and guidance and function of law: the juridic norm on the administration of justice under the which regulates relationships between power of the Holy Spirit. individuals, disciplines external conduct On the first Pentecost the tongues of and established penalties for offenders, fire transformed the apostles from fearful and has as its criterion the moral norm people into men filled with the Holy Spirit, grounded in nature itself. Human reason totally committed to truth, and courageous is capable of discerning this moral norm, in the service they would render to at least in its fundamental requirements deepening and extending the faith in Jesus and thus ascending to the creative reason Christ which we have received from them. of God, which is at the origin of all things. In extending you a warm personal wel- The moral norm must be the rule for the come, I recognise especially the presence of decisions of conscience and the guide for representatives of government, judges and all human behaviour.’ magistrates, barristers and solicitors, mem- He asks: ‘Do juridic norms exist for bers of legal staffs, families and friends. relationships between the nations which The Holy Spirit is powerful to make weak make up the human family? And if they things strong, to bind up hearts that are exist, are they operative? The answer is, broken, to bring justice and integrity to our yes, such norms exist – but to ensure that people. As we call to mind our sins, let us Archbishop Dennis Hart they are truly operative it is necessary to ask that the Spirit of God will grant us the go back to the natural moral norm as the life we need in our chosen profession and basis of the juridic norm. Otherwise, the in the service that we render to society. Regularly in their messages for the latter constantly remains at the mercy of a World Day of Peace on 1st January, the fragile and provisional consensus.’ Popes have stressed that peace within indi- In our administration and service of HOMILY vidual families in societies arises ‘in that law, despite our hesitation and doubts, we Dear Brothers and Sisters they should be built on solid foundations must realise that we are capable of discov- The earliest evidence of a celebration of shared spiritual and ethical values’. ering at least in essential lines the common of the Red Mass was in Paris during the Pope Benedict said this year: ‘It must be moral law, which over and above cultural thirteenth century. Successively it spread to added that the family experiences authen- differences, enables human beings to come other European countries within a period tic peace when no one lacks what is needed to a common understanding regarding the of 50 years. In Australia it has been cele- and when the family patrimony is well most important aspects of good and evil, brated since 1931. It is a Red Mass because managed in a spirit of solidarity without justice and injustice. It is essential, then, to it is the Mass of the Holy Spirit. The red extravagance and without waste. The peace go back to this fundamental law commit- vestments that are worn are symbolic of of the family requires an openness to a ting our finest intellectual energies to this the fire, light and guidance of the Holy transcendent patrimony of values and at quest and not letting ourselves be discour- Spirit sought for the members of the pro- the same time a concern for the prudent aged by mistakes and misunderstandings. fession and for the service that you render management of both material goods and The Pope says: ‘Values grounded in to our society. It is a moment of apprecia- interpersonal relationships.’ (John Paul II, the natural law are indeed present, albeit in tion on behalf of the Church, and from me WDP 2008, 9) a fragmentary and not always consistent personally as archbishop, for your genuine Pope Benedict goes back further to way, in universally recognised forms of service of justice and the search for truth. the fundamental challenge of lawmakers, authority, in the principles of humanitarian
30 VICTORIAN BAR NEWS Autumn 2008 Judge Philip Misso, Caroline Andrews and Federal Magistrate Maurice Phipps Judge Damien Murphy with Associate and Judge Marie Kennedy
Archbishop Hart leads the procession into the cathedral
Justice Curtain, Justice Marshall and Justice Tracey Fr Jim Clarke, Justice Susan Crennan, Justice Paul Coghlan and Fr Tony Kieran
VICTORIAN BAR NEWS Autumn 2008 31 The judicial procession
law incorporated in the legislation of indi- vidual states: Mankind is not lawless. All the same there is an urgent need to perse- vere in dialogue about these issues and to encourage the legislation of individual states towards a recognition of fundamen- tal human rights.’ Justice Bongiorno, Justice Ryan, Alan Myers QC and Justice Heerey There is a specific matter that I wish to place before you as men and women concerned with the law and its application, and that is my concern about proposals to give legal recognition to couples in a relationship who are not married, includ- ing providing marriage-like legitimacy to same sex intimacy. Two issues arise from these proposals. The first is with the proposals - them selves, which I emphasise are emphatically opposed by the Church. The Church’s position on this matter is quite clearly stated in the paper published by the Congregation for the Doctrine of the Faith in 2003, and which is publicly available on the Vatican website, titled Considerations regarding proposals to give legal recognition to unions between homosexual persons. The publication quite rightfully points Patrice Teague, Justice Teague, Justice Vincent, Judge Walsh and Mrs Walsh out that society owes its continued survival
32 VICTORIAN BAR NEWS Autumn 2008 Justice Cathy Williams, Justice Bernard Teague, Archbishop Hart, Justice Susan Crennan, Justice Frank Vincent and solicitor Tim Mc Farlane
to the family, founded on marriage. The The legal registration of relationships the realisation that human powers of inevitable consequence of legal recogni- between same sex couples on the other hand intellect and will are limited and require tion of same sex unions would be the is a radical departure from the principle of the divine to make them complete is the redefinition of marriage, which would tolerance and must be opposed. source of our continuing search and become, in its legal status, an institution The second issue arises from the Church’s reflection. devoid of essential reference to factors obligation to act always in conformity with As you exercise your magnificent linked to heterosexuality; for example, its doctrines, beliefs and principles. service to society, let none of us forget procreation and raising children. Should such proposals become law, the the importance of natural law and natural If, from the legal standpoint, marriage Church would have to assess its ability to justice. We can make a very real difference between a man and a woman were to cooperate in their application. in advocating and discerning the causes be considered just one possible form of The question that would then arise is of those with whom we work. We value marriage, the concept of marriage would how to ensure that Church bodies are the magnificent contribution which the undergo a radical transformation, with not directly or indirectly discriminated legal profession makes for the common grave detriment to the common good. against or subject to sanction when they good. Even in the most difficult of cases, A state which gives legal standing to act accordingly. we as people of faith are provided with the such unions fails in its duty to promote Other religious leaders may have similar natural law, the divine positive law and and defend marriage as an institution concerns. the grace of the Holy Spirit to reflect on essential to the common good and will Therefore, I invite you all to examine what we must do as people of faith and result in changes to the entire organisation proposals of this kind closely and con- goodness. of society, contrary to the common good. sider their moral, ethical and other May the Holy Spirit fill your hearts with The Church teaches that men and consequences. his light and guide you now and always on women with same sex tendencies must In your practice of law and in my teach- your journey this year. be accepted with respect, compassion ing and leadership, an ever deepening DENIS J. HART and sensitivity and not subject to unjust awareness of the natural law of our Archbishop of Melbourne discrimination. humanity, of the search for truth and of
VICTORIAN BAR NEWS Autumn 2008 33 THE OPENING OF THE
Legal YearAlien or Citizen: Law as Story in Judaism and in Australia
Sermon for the Opening of the Legal Year Rabbi Fred Morgan,Senior Rabbi, Temple Beth Israel 29 January 2008
hen I first came to Australia The congregation at Temple Beth Israel ten years ago from Britain, one of the differences that struck Wme related to elections. In Britain, as in America, there is no compulsion to vote under the law; whereas here in Australia, it is an infraction not to vote in elections. When someone fails to vote, he is sent an official form requesting a detailed explana- tion. The form states, ‘If the reason is con- sidered valid and sufficient, no further action will be taken… If the reason is NOT considered valid and sufficient, an Infringement Notice will be sent to you.’ Recently I saw a copy of one such explanation, which I would like to share with you:
I had every intention of voting in the elec- tion, however, my recollection of the dates 24, 25th November are a little bit hazy… . I strongly suspect that I was abducted by Aliens, and was unable to attend a voting Government provides names and locations law is at the heart of Torah and Jewish booth due to my absence from the planet of people to the Aliens, for a Abduction. tradition, and it also seems very appropri- Earth. All I remember from that weekend ate to highlight this theme in the service is waking up on the Sunday morning I must say, I would not like to be the for the opening of the Australian Legal with an extremely sore anus and a strange person who has to judge whether this Year 2008. hard lump in my arm which I suspect is an reason is ‘valid and sufficient’ in law! This week’s synagogue reading from Alien tracking device of some kind that However, this response and its context, Torah is a section from the Book of they have implanted in my wrist under the the Australian election, do lead me to Exodus called Mishpatim, a Hebrew word skin. I can provide pictures of this but reflect on one meaning of the law, the role that means ‘Laws’. Many scholars identify I am sure you are fully aware of this kind that the law plays in creating a coherent Mishpatim as the core legal document of device, as I am led to believe that the and effective society. This meaning of the within the Torah, the original stratum of
34 VICTORIAN BAR NEWS Autumn 2008 Justice Kaye reading during the service
Justice Goldberg, Justice Dessau and Mark Dreyfus QC Rabbi Morgan and Mark Dreyfus QC law that will govern the Jewish people once and carrying the Torah they have completed their trek through the wilderness and settled in the Promised Land. Last week’s Torah portion, Yitro, described how the Jewish people received the ‘Ten Commandments’ at Mount Sinai after their Exodus from bondage in the land of Egypt. In Jewish understanding the ‘Ten Commandments’ are not in fact ‘commandments’ but rather a general statement of principles that underlie the legal code of Mishpatim. It is this code of laws, Mishpatim, that provides the framework for Jewish living. The code opens, perhaps unexpectedly, with laws that hearken back to the situa- tion of the Jews in Egypt: if you have slaves, then you must release your slaves in the seventh (sabbatical) year. But if a slave refuses to go free, for whatever reason, then you should mark him by piercing his ear on the doorpost of the house and he remains a slave forever. At the conclusion of the portion Mishpatim, the Torah returns to the subject of slaves: if a slave is harmed, for example, if he loses an eye or a tooth, then he is entitled to go free. The
VICTORIAN BAR NEWS Autumn 2008 35 Deborah Mandie, Justice Mandie and Mrs Marilyn Mandie Mark Dreyfus QC
As it is with Jewish law, so it is with Aus- tralian law. Australian law also tells a story, the story of civic virtue and social justice as envisioned by those who framed the legal norms of this country. That is why it is so important that there is coherence between the social narratives that we tell our chil- dren and the laws that express the endur- ing values of Australian society. They are not separate domains of life. To live life as Justices Kaye and Mandie with Rabbi Morgan Australians is to live life in accordance with the laws of this country and to appreciate thrust of these laws is clear. Even slaves are As slaves in Egypt, a land of bondage, the story that our laws encapsulate, for human beings, deserving of dignified we Jews know what it is like to be treated example, by voting in elections that tell the treatment under the law. as less than human, as subhuman, as story of our democratic roots. Even without these laws regarding the possessions devoid of any divine spark or Life lived deliberately outside the law is, dignity of slaves, we would know this intrinsic meaning. The laws of Mishpatim in effect, life lived outside the society in from the story of Creation which opens that require us to treat slaves with dignity which we dwell – being in the community the Book of Genesis. In this story we read because, despite their situation, they are but not of the community, rejecting the that God created man and woman in the still children of God, created in God’s conjunction between society’s story and divine image (in Hebrew, b’tzelem Elohim, image, reiterate our story and keep it alive our own story. This is perhaps what Rabbi ‘in the image of God’): all humankind for generations far into the future. Jewish Tzadok meant when he used to teach, ‘Do is included in this characterization, no law provides the Jewish community with not set yourself apart from the community group is excluded, not even slaves who its ongoing story by reminding us, again (al tifrosh min hatzibbur)’ (‘Sayings of the occupy the lowest rung in society. and again, that we are created in God’s Fathers’ 4:7). In short, life lived deliber- The Creation story in Genesis is just that image, that we were slaves but now we ately outside the law is life lived as an alien – a story. What transforms the Creation are free, that God expects us to live lives – or, if you will, as someone abducted by story into a social reality is the framework of virtue by treating others with the aliens. Without acknowledging the stories of law in Mishpatim. Through the law about dignity that is their right. When we read that underwrite our values as a communi- slaves, we live out the meaning of God’s Mishpatim in synagogue this Sabbath, ty, by ‘setting ourselves apart from the creation of humanity b’tzelem Elohim, ‘in this is the story that you will hear, in the community’, we make ourselves strangers, the divine image.’ In other words, it is the form of legal obligations and norms for aliens, to society – whether as Jews, or as law – the legal code of Mishpatim – that the Jewish people. In this way, the law gives Australians. transforms the Creation story into our us our story by defining the norms which How our lives under the law are judged story, the story of the Jewish people. The enable us to participate most effectively and to be ‘valid and sufficient’, however, I must law breathes life into the story of Creation. coherently in the life of our community. leave to others to decide.
36 VICTORIAN BAR NEWS Autumn 2008 THE OPENING OF THE
Legal Year
Buddhist Ceremony
A service was held at the Fo Yuan Art Gallery on 29 January 2008
VICTORIAN BAR NEWS Autumn 2008 37 Justice Kellam and Judge Julie Nicholson Abraham Cheong
The ceremony in progress
The ‘Gift-giving’ceremony Michael Wells
38 VICTORIAN BAR NEWS Autumn 2008 THE OPENING OF THE
Legal Year International Commission of Jurists Opening of the Legal Year
29 January 2008
n behalf of the ICJ, I have great pleasure in beginning this morn- ing by acknowledging the tradi- Otional owners of the land on which we stand, the Wurundjeri people. We pay our respects to their elders and ancestors and are especially honoured by the presence of Ms Joy Murphy. Professor David de Kretser, Governor Justice Tony Pagone of Victoria, Mrs de Kretser, Chief Justice Warren, Your Honours, Joy Murphy, rep- resentatives of various community groups, ladies and gentlemen. It is my role, and great pleasure, on be- half of the ICJ, to welcome all of you here today and to thank you for your participa- tion and presence. Some form of event to mark the begin- ning of the legal year has taken place in Melbourne since at least 1938. An article in the 1993 Autumn issue of the Victorian Bar News, records that some time in 1937 some young lawyers were discussing, over drinks at a hotel, a colour film of the open- ing of the legal year in Westminster. They were impressed by the pageantry of the occasion and decided to implement some- thing similar in Melbourne. Audience
VICTORIAN BAR NEWS Autumn 2008 39 The service in Westminster is of much longer tradition than the one in Mel- bourne. The website of the Judiciary of England and Wales, formerly that of the Lord Chancellor’s Department, records that the current service to mark the begin- ning of the legal year dates back to the Middle Ages, when judges prayed for guid- ance at the start of the legal term. The serv- ices which have taken place in Melbourne to date, and others which are taking place today, have followed that tradition. I am pleased to report that there are also similar services in other parts of the world, includ- ing, as I recently discovered, in Italy. Last year the Executive of the ICJ thought that there was merit in extending that tradition as a symbolic public reminder of the importance in our legal system of the rule of law and of equality before the law in a diverse community. What this event here today has sought to do is to focus upon the diversity of our community as a reminder Speakers: Tasneem Chopra, Rev Prof Robert Gribben, Justice Pagone and Glenn McGowan SC of the importance of the rule of law, equal- ity before the law, and of the common public commitment to those core values in a diverse and complex community. To that end, we have invited judges, lawyers, law makers and administrators, together with as broad a cross-section of the community as we could think of, to reflect its diversity and difference. A public event to mark the beginning of the legal year, and your presence here this morning, are important reminders of the relationship between a diverse community and those who administer its laws. The start of the legal year provides an opportu- nity for community representatives and those charged with the administration of its laws to meet together and to reaffirm the common core values which are essen- tial to a healthy legal system in a liberal democracy. Public confidence in the administration of the law is, we think, enhanced by public reminders of the core values of the rule of law and of equality before the law in a diverse community. We thank you for coming and in extend- ing an important tradition more broadly into the community. GLENN McGOWAN SC Chief Justice Marilyn Warren and Judge Graeme Anderson
40 VICTORIAN BAR NEWS Autumn 2008 THE OPENING OF THE
Legal Year A time for renewal
Address by the Honourable Marilyn Warren AC, Chief Justice of the Supreme Court of Victoria delivered at the opening by the International Commission of Jurists, Queens Hall, Parliament House, Victoria, 29 January 2008
he Opening of the Legal Year is a flourish peacefully in the harmony yielded employees and all who add to the protec- special time when all those com- by the law. tive and enabling capacity of the law as we mitted to the law renew and refresh On these occasions the spectre of the rule know it. Ttheir commitment. of law is promoted with great emphasis. To participate within and benefit from The law is about much more than its When those committed to the law enforce the law is a privilege which must be cele- lawyers, judges, magistrates and tribunals. the law they mostly do it without reflection brated on this day. The certainty, comfort It is about everyone who participates in on the rule of law. When the police quell and harmony provided by the law means the certainty, comfort and harmony that disputes, control the citizenry and arrest we are not threatened by military coups, the law brings to our society. and charge miscreants under the law they rebellions, riots, the imprisonment of dis- The citizen and government function add thread to the fabric that becomes sidents, seizure of property, censorship, and thrive in the relative certainty that the the law. religious, racial or gender discrimination, law will protect and enforce their rights and So, too, when those helping the homeless persecution or social harm. obligations. Those rights and obligations facilitate the identification and protection The law is a growing, changing, amor- may relate to fundamental human rights – of the human rights of the homeless they phous concept. We reach out to touch, the right to speak, to be protected from the act under the law. They attempt to bring understand and know it. It is always there. immoral conduct of discrimination and to social balance and fairness to all. The law grows and changes to meet the religious and political freedoms. Those Judges, magistrates, tribunals, court growth and change of society as it evolves. rights and obligations will bring order administrators, jury keepers, judicial Those committed to the law take the when government sets about the acts of educators, teachers of the law, the builders Opening of the Legal Year as the time to governing, when commerce interacts and of court buildings, the drafters of the law recommit to fairness and impartiality and when the citizen is called to answer for and the lawmakers and the media who tell revive their courage to maintain and apply conduct that threatens our society. the story of how the law is played out, all the law. The citizens and government take com- participate in commitment to the law. In reality, there is no opening of the fort in that the law will blanket and protect No one works for the law as an island. legal year. The law is always open. The them as individuals and institutions, in Actions have consequences for others. opening is merely a temporal marker to all they cherish and represent. The law They are part of a whole system of the rule pause momentarily to consider what the enables the citizen and government to do of law. Courts are one part of the rule of law is about and our individual roles in it. what must be done in society. law that add to the certainty, comfort and The Opening of the Legal Year is but a The law is the best tool available to harmony the law gives to our society. So time for renewal and recommitment. enable and protect social function and too are parts formed by the police, correc- Let all of us within the law do that now. interaction. The citizen and government tions personnel, court and government
VICTORIAN BAR NEWS Autumn 2008 41 THE OPENING OF THE
Legal Year Legal Laneway Breakfast
Brilliant sunshine and hot cups ages and backgrounds from so many fields celebration before gearing up for the year of practice and organizations.’ ahead.’ of coffee greeted more than 400 Victoria Law Foundation, supported by Besides being a secular celebration of the City of Melbourne, hosted the success- the Opening of the Legal Year the Break- people in Hardware Lane on an ful event with Australian Women Lawyers, fast also proves a major legal networking early Wednesday morning (30 Victorian Equal Opportunity and Human opportunity with a notable cross-section Rights Commission, Judicial College of of the legal community in attendence January) at a celebration to mark Victoria, Legal Services Board, Leo Cussen including most heads of jurisdiction, Institute, LIV Young Lawyers’ Section, members of all courts, heads of legal sector the Opening of the Legal Year. Sentencing Advisory Council, Victorian agencies, judges, solicitors, barristers, Law Reform Commission, Victorian community legal centre workers and Women Lawyers, Women Barristers’ academics. he Legal Laneway Breakfast, Association and Women’s Legal Service Guest speaker Alexandra Richards QC formerly ‘Portia’s Breakfast’, also Victoria. Co-host and CEO of the Judicial recognized Victoria Law Foundation’s stood up to its status as the biggest College of Victoria Lyn Slade said, ‘The pioneering work in making law access- Tand most inclusive networking event on Judicial College is very pleased to be one ible for 40 years and highlighted the the legal calendar. Noted professor and of the sponsors, and it’s great that the significance of 2008 as the centenary of former Victorian Supreme Court Justice breakfast brings all sections of the profes- women’s right to vote. She also acknowl- George Hampel QC commented that, ‘The sion together so that judges, barristers, edged another significant upcoming event occasion provided an opportunity to mix solicitors, support staff and others can on the legal calendar; Law Week 2008 with a wide range of lawyers of different mingle informally and enjoy a relaxed (12–18 May), which takes on the theme of
42 VICTORIAN BAR NEWS Autumn 2008 Gabrielle Deal, Meenal Kashyap and Christine Alexandra Richards QC, Victoria Law Foundation Petering from the State Revenue Office Board Member ‘Reaching Out’ this year with a focus on people with special needs, and others who may not otherwise find easy access to legal information and services. With guests wholeheartedly supporting the fundraising raffle that was held during the breakfast, over $1000 was raised to support the Women’s Legal Service Victoria (WLSV) who provide women with vital legal advice on violence and relationship breakdown. ‘The money will enable WLSV, as a not-for-profit organization, to mark Mardi Jarvis, Family Court of Australia, Tracey Jones, Tim Bloxsome, John Dossis, and Mike Donelly, the beginning of the legal year on a very Federal Magistrates Court, Ilana Katz and Sally from Essendon Community Legal Centre, and positive note!’ said Gillian Dallwitz, CEO Field, Family Court of Australia Maciek Krymski, Judicial College of Victoria of the WLSV. The featured prizes were generously donated by local businesses, including a night for two at the Sebel Hotel with breakfast at Treasury Restaurant. We thank our major sponsor the City of Melbourne and all the local businesses that were part of the Legal Laneway Breakfast for their involvement and cooperation including: Café Max Wine Dine and Unwind Mick Francis, Department of Justice, Knife Fork Bottle and Cork Laura Racky, Maddocks Lawyers, Prue Elletson, Victorian Law Reform Commission, Claire Downey, Chief Magistrate Ian Gray and Her Honour Judge Raffle prizes were kindly donated by: Supreme Court of Victoria, and Justine Lau, Coate, Coroner’s Court The Sebel Hotel Victorian Women Lawyers Crumpler Rap Products Discurio Supreme Court Building & Services Unit Also, a special thanks to the following for their support: Caffe Alfresco (mobile coffee service) Brunetti of Carlton Pink Noise ISS Security Thanks once again to our City of Mel- Ben Keller, Kliger Partners, Michael Brett Young, Maria McGarvie, previous Victoria Law Foundation bourne for sponsorship and the Legal Law Institute of Victoria, and Aitan Schmideg, staff member, Melanie Szydzik, Supreme Court of Laneway! Kliger Partners Victoria, Margaret Fried, Department of Justice
VICTORIAN BAR NEWS Autumn 2008 43 NEWS AND VIEWS
seldom receive honest and helpful feed- ness, courtesy, listening skills and verbal Judgment Day back. The 360 degree feedback survey will and non-verbal communication – as they provide both. It is a powerful professional performed their judicial functions. and personal development opportunity.’ ‘It can seem a little confronting at the Victoria’s top judges put themselves ‘The 360 degree pilot program for judicial start but it is a tremendously invigorat- under scrutiny officers is ground-breaking. Until now ing exercise, especially for longer serving lawyers and judges had little opportunity judges,’ College Board member Chief to provide constructive feedback, and Judge Rozenes said. Victoria’s top judges want to know what judges little opportunity to receive it. Now Once the survey data is collated, the others think about how the judiciary per- each year through this project, judges can. judicial leaders will each have a lengthy forms its roles. I expect it will help us greatly.’ one-on-one individual debrief, to gain Putting themselves on the line, senior Two College Board members, Chief insights into how they are perceived by judges are participating in the Judicial Col- Magistrate Ian Gray and new VCAT Presi- others, what their strengths are, what lege of Victoria’s ‘world-first’ 360 degree dent Justice Kevin Bell, pioneered the challenges they face, and develop some judicial feedback process. pilot. Both said they found the experience strategies to work on. Supreme Court Chief Justice Marilyn invaluable. This innovative concept is attracting Warren, Court of Appeal President, Justice Chief Justice Warren, Justice Maxwell, national and international attention. The Chris Maxwell, County Court Chief Judge Chief Judge Rozenes and other participants New South Wales Judicial Commission Michael Rozenes and other judicial officers have each identified a group of ‘raters’ to has visited the Victorian College to learn are asking their colleagues, court staff and provide feedback. about the project so they can run a pilot the legal profession what they think of CEO of the Judicial College, Lyn Slade, for their judges. The National Judicial their professional skills. said the raters complete an anonymous College and judges in the Family Court Chief Justice Warren, chair of the Victo- online questionnaire focussing on the are also interested. rian Judicial College, said, ‘As judges we judges’ work-related behaviours – timeli-
Pizer’s third edition Exporting Pizer’s to an anonymous now such a book. And – as textbooks go – island beyond the jurisdiction of VCAT it’s a good read.’ launched might seem unexpected but President Judge Bowman noted that since the Maxwell stood by his choice. previous edition of Pizer’s was published in Suppose you have just been appointed to ‘It is more than simply a VCAT text. As 2004 legislation as diverse as the Private the Supreme Court of a remote desert an administrative law text it holds its own Security Act and the Geothermal Energy island. The appointment is on the basis of with the best on topics of broad applica- Resources Act have conferred a further 18 BYO library (your new jurisdiction has no tion like natural justice and want of juris- statutory jurisdictions on VCAT. legal texts) and your air freight weight diction or power. He said that although the general popu- allowance is miserly. Which books would ‘It is a marvellous book. It is phenome- lation perceived VCAT as chiefly a town you pack? nally detailed without planning tribunal, such work had account- According to Court of Ap- being complicated.’ ed for less than 5 per cent of the 90,000 peal President Maxwell the Earlier in the evening VCAT applications filed last financial year. obvious candidates include VCAT’s Acting President, Although most VCAT cases settle, thou- Fleming’s Law of Torts, Aronson Judge Bowman had for- sands still progress through to final deter- et al’s Judicial Review of Admin- mally launched the latest mination each year. istrative Action, Miller’s Anno- edition of the self-pub- ‘Pizer’s sifts through those decisions in tated Trade Practices Act and lished work. what really is an astonishing piece of Pizer’s Annotated VCAT Act. Judge Bowman was also research.’ His Honour volunteered his lavish with his praise of the PAUL DUGGAN desert island legal references book. when speaking in July at the ‘A legal text is approach- Pizer’s Annotated VCAT Act (3rd edition) is launch of the 3rd edition of ing iconic status when it is published by JNL Nominees Pty Ltd. It is avail- Jason Pizer’s Pizer’s Annotated referred to only by its able for $130 from VCAT and the author direct VCAT Act. author’s name. Pizer’s is c/ Clerk A
44 VICTORIAN BAR NEWS Autumn 2008 Court 4 in the Supreme Court re-opens
By Justice Frank Vincent, Court of Appeal, Supreme Court of Victoria, 7 April 2008
hank you, Chief Justice, for the It was in June 1964 at the age of 26, and opportunity to contribute to this a barrister for three years, that I first took occasion. For a number of reasons, my place at the Bar table here, appearing Tthis court holds particular significance on behalf of one of two men charged with for me, and it is wonderful to see it so murder. The trial judge, Monahan J, was a splendidly restored and adapted for use in great criminal lawyer and judge. I am rea- a new century. sonably confident that he was even more My connection with this room began terrified by my lack of experience than I over half a century ago when, as a second- was. A wily prosecutor named Bill Fazio or third-year law student, I sat in the pub- leading a young Michael Kelly represented lic gallery and watched the charismatic the Crown and the legendary Jack Lazarus appeared for the co-accused. I remember telling my client, who I recall was known, and not inappropriately, by the nickname ‘Lard head’, that I had not appeared in a trial of that kind before. He responded that that was all right and that he was similarly inexperienced. Somehow or other we both managed to negotiate the process successfully. However I often wondered whether even Lard head’s equanimity was shaken at the commencement of the hearing. In an endeavour to present myself as totally at ease, indeed something of a cross between ‘the Fonze’ and Bobby Darrin, I had practised getting to my feet, shrugging my gown casually around my shoulders and announcing my appearance. It all went quite well until I indicated that I appeared for the wrong person. Counsel appearing in those trials were forbidden to refer to the death penalty. Justice Frank Vincent addresses the gathering Frank Galbally, who was then at the height Of course, and particularly in cases in of his powers, successfully defend a police- which there was concern that it might be man charged with the murder of his wife. imposed, it was almost irresistible not to Obviously attributing his success in some make some comment obliquely alluding small part to divine intervention, immedi- to it. When this was done, judges generally ately after the verdict, Galbally and his would let the breach pass without anything client walked down the street to St Francis being said. Church to pray. Their piety was observed In that trial however, my reference could by a passing newspaper photographer who, hardly be described as a passing allusion. by chance it seems, was in the vicinity and I concluded in my final address with the with his camera ready. statement that:
VICTORIAN BAR NEWS Autumn 2008 45 officers, arising out of the death of a man named Gary Abdullah, the first murder trial of Peter Dupas, the plea hearing for Beckett and the trial of Camilleri for the killing of two Bega school girls, the plea hearing in relation to the serial killer, Paul Denyer, and a vast number of less well known proceedings were all conducted in this room. The first hearing in what was then called the Central Criminal Court commenced on 14 February 1884. It was, the Argus of the following day reported, the real opening of the newly constructed building and, the newspaper recorded that the court was ‘thronged’ with people:
At ten minutes past 10 o’clock, amidst a silence which the voice of the crier was not needed to produce, his Honour entered the bench from a little door at the The ‘new’ look back. The bar rose, and a compact row of wigged heads bowed deferentially, the judge responding in like manner to the salute. A moment’s pause occurred, while In one sense, it can be said not to matter there were only two possible sentences in expectation was on tip-toe to hear the first whether this trial ends with the day of a those cases – the death penalty which was official words which should agitate the yet gaol gate or the snap of a gallows rope. abolished at the end of 1974 and imprison- unsanctified air of the Court. His Honour Each is a terrible sound and I pray to God ment for life. For practical purposes, all made no sign, and the bar had no nerve to that it will not be in such a moment of cases were fully contested. It was unclear speak. The associate was the only man silence that you discovered the meaning whether a plea of guilty could be lawfully equal to the occasion, and his first memo- of reasonable doubt. entered in a death penalty case, although I rable words were, ‘Bring William George am aware of one occasion on which it was Clamp to the bar!’ An officer in the dock I think that all I need to say of the trial accepted. As both sentences were manda- dived down into the bowels of the earth by judge’s response is that it has remained tory, there were no plea proceedings and way of the stone staircase, and presently clear in my memory. save for asking whether the convicted brought up from the underground dun- Waiting for the jury in cases of that person had anything further to say about geon, a prisoner. But his name was not kind was very stressful. In that matter, the verdict, the sentence was handed down William George Clamp, and he was igno- the jury returned quite late on a Friday immediately. On four occasions, I sat at miniously dismissed to the regions below, night. The prosecution and the defence the Bar table, devastated, as I heard my amidst the unchecked titter of the specta- team, which included a young law clerk client sentenced to death. On one of them, tors. The real William George forthwith named Ian McIvor, had been waiting in the judge, after imposing sentence on the appeared, and the business proceeded as a nearby watering hole and it is probably co-accused, realized that he had not asked smoothly as if the first event in the Court sufficient to state that it was good for all whether that man had anything to say. had not been a bungle. concerned that they were not out any Accordingly, his Honour, sensitive to such longer. When they returned a verdict of matters, had him brought back to the guilty of manslaughter, Jack Lazarus stated court, apologized profusely and then made The Age journalist who reported on helpfully, I think, in relation to his client’s the enquiry. Unsurprisingly, the deeply this courtroom, a few days later, in an position, ‘It’s the drink, your Honour.’ shocked individual muttered ‘no’ and his article entitled ‘New Law Courts Blunders Monahan J responded, ‘Quite so, we will Honour sentenced him to death again, – Poor Arrangements in Central Criminal adjourn till Monday.’ once more apologizing for his omission. Court’ was singularly unimpressed by this As both a member of counsel and a As a trial judge for 17 years, I presided courtroom. He stated: judge I have spent a remarkably large part in a very large number of cases here. The of my working life in this room. As a bar- Russell Street Bombing trial, that of the The great bête noir of the new structure rister, I appeared regularly in Court 4 over persons accused of the murder of the police appears to be the Central Criminal Court, more than 20 years. Once, I appeared in officers in Walsh Street, the eight police which in the first place is difficult to find, four murder trials in immediate succes- officers charged in relation to the death of a and which when found is seen to be defec- sion in this court. Throughout that period, man named Jensen, the trial, also of police tive in the last degree.
46 VICTORIAN BAR NEWS Autumn 2008 community and our legal system has con- fronted and been confronted with an extraordinary range of human problems and interactions for over 124 years. It was here, for example, that Colin Ross was tried and convicted in 1922 in relation to what became known as the Gun Alley murder of a little girl. Ross was later executed. As Weinberg J pointed out in a paper concerned with the problem of delay in the criminal trial process:
Ross was charged on 12 January 1922, and committed for trial on 26 January. His trial commenced on 20 February with a verdict on 25 February. His appeal to the Full Court was denied on 20 March and an application for leave to appeal to the High Court was refused a little over a fort- night later. Ross was then hanged on 24 April. A bird’s eye view The process appears to have been highly efficient as it was completed in a He was critical of what he described as appearance could hold its own with some little over three months but I observed in the ‘utter absence of acoustic properties’ of the halls of the Inquisition. In this dock, quite recent newspaper reports that, as a and continued: designed in such a humane and genial consequence of doubts raised in relation style, no seat is provided for the prisoner, to that conviction, you Mr Attorney, have Another difficulty is presented by the who, it must always be remembered, has sought the advice of three members of the peculiar principle on which the different not yet been proved guilty, and it is en- Court concerning the possibility that there persons are located, the jury being to the closed with an iron railing, surmounted may have been a miscarriage of justice. left of the bar, the witness to the right and by cruel barbarous spikes, an ingenious Within my personal memory, William the prisoner immediately behind. A zeal- invention intended to prevent the uncon- John O’Meally was convicted of murder in ous counsel, therefore, who desired to victed prisoner from even leaning upon this room. Later, a man named Taylor and keep all parties before him would require the railing, no matter how many dreary he were the last persons in Victoria ordered to be perpetually revolving so as to face all hours the case may last. to be whipped. Twice in this building but corners – an operation which could only not in this room, I was required to present be gracefully performed on a piano stool There was also considerable criticism of submissions for men who were at risk of the or some similar piece of mechanism. … the straight-backed throne-like chairs with imposition of that barbaric punishment. which the court was equipped but were In this room were conducted the trials He pointed out that it would not be still in general use when I first came here of Lee, Clayton and Andrews and Ronald pleasant or even comfortable experience and are still littered around the building. Ryan. Jean Lee was the last woman and to be tried in this court: One of them I noted was in the Banco Ronald Ryan the last man to be hanged in Court and used for Justice John Coldrey’s this State. In a British court, where every man is sup- farewell last Thursday. They were certainly Great judges and advocates and some posed to be innocent till he is proved of solid construction. who were not so great have occupied the guilty, it seems somewhat incongruous For the major part of its history, Court 4 bench and bar of this courtroom over the that a prisoner whose guilt has not been has been used for the most serious crimi- last 124 years. established should be compelled to nal trials conducted in the Supreme Court. Acknowledging the force of some of traverse an underground tunnel, which However, due to the changing character the criticism of this courtroom that were leads into an underground cell, where he and complexity of proceedings over recent initially made in 1884, I have always been is exposed to the utmost discomfort, till years, it is not always suitable. It was also proud to enter it. his time for trial arrives; and when that used from time to time for hearings by the It is said that there is a ghost in Court 4. eventful epoch has come he is sent up a Old Court of Criminal Appeal. Generally If there is, I’m sure that it knows me well. flight of stairs into the prisoners dock – a referred to for many years simply as Perhaps the time will come when we’ll get place which for barbaric and repulsive the Criminal Court, within its walls our together and compare notes.
VICTORIAN BAR NEWS Autumn 2008 47 Building cases – a new approach
he Supreme Court proposes to the law. What might be considered as good introduce on a trial basis a new enough for a lesser dispute is not accepted approach to the management and here. This produces detailed analyses of Ttrial of construction litigation. A copy of fact and law by all involved and lengthy the Practice Note explaining this is on the judgments by the Court. The time and Court website at
48 VICTORIAN BAR NEWS Autumn 2008 in this Court disclose an attitude in a reluctance to abandon a weak argu- litigation by the litigants, by the lawyers litigants that they would, of course, like ment or an improbable factual conten- and also by the Court. At this conference to win their case, but that a very great tion in the interests of the litigation as a the general framework for the conduct importance is given to obtaining a whole. of the interlocutory and trial process will result, any result, and that as quickly be laid down and consideration given and cheaply as possible. to procedures, including information ● From its early tentative steps in the THE NEW APPROACH technology procedures, which may 1970s, the judge management of civil advance the resolution of the litigation. The philosophy behind the new approach litigation has grown apace. And the The parties will be required to address the is to proceed cautiously, using the existing more it is provided the more is it financial outcome of the litigation on all powers of the Court and the considerable requested. This has led to a drastic shift likely outcomes. Parts of this conference expertise of the Commercial and Equity in the relationship of the judge and the may, with the approval of the Master, be Division judges, to introduce what I have litigation. No longer is he (no ‘she’ in conducted on a without prejudice basis. called a culture of professional detachment those days) a silent spectator to the Communications at such times will be and co-operation1 which will focus upon adversarial conflict conducted by hired confidential. Following this conference, the the core issues in the case. The Court gladiators; he or she is now expected to Master will prepare a report (not including accepts that litigation at the beginning of take an active, even a pro-active part in privileged matters) which may be used by the twenty-first century is conducted in an the process. In short there has been a the Court and the parties for the purposes environment which differs greatly from shift away from the adversarial and in of charting the progress of the litigation that in preceding decades. It acknowledges the direction of the inquisitorial proc- and for costs purposes. that the cost of litigation is a function of ess. This has had an effect upon the rela- A second and novel procedure, adopted professional time invested in the litigation tionship between the Bench and the from the Technology and Construction and the cost of that professional time. lawyers. Lawyers must reconcile their Court in London, is a requirement that the Given the limitations of its power to obligations to their client with their lawyers for the parties complete a detailed impose limits upon the charges of lawyers obligation to assist the judge to perform questionnaire regarding the dispute and to their clients, the focus must be directed this new managerial role. the litigation. This is a document for to reducing, as far as possible, the profes- ● There has also been a progressive change whose accuracy and continuing accuracy sional time involved. This, in turn, requires in the relationship between the public they must accept responsibility. all involved to address only the essential and the Court. They expect the Court to The third administrative feature will issues in the case and to put aside periph- provide a dispute resolution service, and be the docketing of construction cases to eral issues as well as those with little pros- judges in recent years see their function individual judges within the Commercial pect of success and those whose outcome as providing that service. Mediation, and Equity Division. This will have the will not affect the major objective of the even Court-annexed mediation, is now consequence that the judge will commence litigation. The theme of the Court’s the norm. It is no longer, if it ever was, the trial having had an intimate knowledge approach is that the litigation of construc- the case of judges doing the litigants a of the progress of the litigation and a tion disputes should be approached by favour in hearing their case. consequent ability to identify the positions the parties, the lawyers and the Court in a ● Construction litigants, after all, have a of the parties before the trial commences. way that resembles the building project choice as to the forum in which they itself – with attention to time and cost bring their claims. In addition to this and to the budgeting of both. To this end, PROCEDURAL MATTERS Court, the Federal Court and arbitra- the New Approach addresses administra- tion, the enlargement of the jurisdiction The new approach does not involve an tive as well as procedural aspects of the of the County Court provides for them enlargement of the powers of the manag- litigation. a state-based alternative for their claims. ing judge or the trial judge; rather a greater If they want to conduct their construc- readiness to give effect to the existing tion litigation in this Court they do so ADMINISTRATIVE MATTERS powers of the Court in managing and under the new approach regime. trying construction litigation. The judges ● Aspects of this new approach anticipate A principal feature of the new approach will be ready to fix times for the perform- the publication and implementation will be the convening of an early meeting ance of various procedural steps and of the recommendations of Professor of the lawyers and the litigants themselves to determine preliminary issues for trial Cashman’s Civil Justice Review. chaired by a Master of the Court, which is where this will assist the resolution of ● My impression is that a particular char- concerned to identify the resources of all to the whole dispute. At trial judges will be acteristic of lawyers who practice in this be applied to the litigation. This resources more ready to exercise the powers of the area is that they have a capacity for ad- conference will be held after the close of Court to direct the way the trial is present- dressing detailed facts and for coping pleadings so that issues have been identified ed and, where appropriate, to impose time with large numbers of documents. This and will be conducted on an informal and, limits for the performance of various is their strength and also their weak- where necessary, confidential basis. The aspects of the trial. To the extent that this ness. It is a weakness because their focus purpose of the conference is to identify might seem novel, or even unpalatable, it on the detail means that they may have what resources should be applied to the will be one of the factors that will weigh in
VICTORIAN BAR NEWS Autumn 2008 49 the decision to select the appropriate court yers and their clients that the days of true clients and instructing counsel, they will for the litigation. adversarial litigation have now gone – days be conscious of the objectives of the new where the fundamental objective was to approach. They must be cooperative in win. That this will raise delicate ethical their dealings with other solicitors and A NEW ATTITUDE TO LITIGATION questions and will confront lawyers with with the Court. Machismo for its own Experience has shown that the new conflicts of loyalty cannot be doubted. sake is to be avoided in correspondence as approach, like anything new in litigation, Prosecutors and expert witnesses face this elsewhere. They will be expected to address will not succeed unless it has the support every day. This will demand of lawyers a questions such as the ambit of discovery of the profession and of litigants to the degree of professional detachment – a rec- and the compilation of court books with leadership shown by the judges. The powers ognition that they have a dual obligation a more than usually critical approach. As that will be exercised in the management and that their client’s fee purchases only is the case with barristers, they must ask and trial of the litigation are not new one of them. themselves at every stage why it is that a powers, and judges in the past have sought What is required here is a new attitude procedural step is to be taken and what to exercise them. The new approach will on the part of lawyers and an acceptance might be its utility in the scheme of the not be successful unless the profession by litigants that there is a limit to the litigation. They will bring to all of this and the litigants themselves respond to resources that the state should be expected their own special contribution because of the initiative. to provide to them free of charge for the the close relationship they enjoy with the What is required of the profession is resolution of non-important issues. The lay client. that barristers and those responsible will lawyers should continually ask them- selves why a particular procedural step is cooperate with the work of the judge in CONCLUSION identifying the real issues and the most necessary for the purposes of advancing efficient way of resolving them, bearing the litigation as a whole and whether it The profession and the wider community always in mind that this is a court of law has a reasonable prospect of success. The must accept that the continuing viability of and not a commercial institution; effi- litigants, for their part, must, respect the litigation as a technique of dispute resolu- ciency must always yield to the demands decision of their lawyers that not every tion in the construction industry cannot of justice. They will not needlessly raise conceivable issue should be placed in continue as at present. If those presently issues of fact and law or promote argu- the arena. The temptation to engage in a involved in the litigation do not acknowl- ments which have little prospect of success procedural step or to pursue a particular edge this and take a constructive step in or which, if successful, will have little bear- issue simply because it is theoretically open the direction appointed by the new ing upon the outcome of the litigation as or even, perhaps, because the enlargement approach there is every prospect that the a whole. They will assume a responsibility of the litigation will be productive of future in the Supreme Court for construc- to inform and to keep informed the judge more costs, must be resisted. The tedious tion litigation will be very much reduced of matters which he or she must know feature of modern adversarial litigation of or even disappear. This would be an out- in order properly to manage the case, to resisting any suggestion or application by come which I, for one, would not like to cooperate with other parties and with the one’s opponent lest cooperation be seen as contemplate. Court in connection with the conduct of a sign of weakness, will cease. JUSTICE DAVID BYRNE SC the proceeding, to take reasonable steps to All of this will impact particularly upon resolve issues as may be resolved by agree- counsel, for it is often their role to deter- ment and to narrow the remaining issues. mine tactics and to advise on procedures. Barristers will be expected to consider Judges will not tolerate evasive pleading; ENDNOTE the pursuit of issues over amounts which with greater care the matters contained in are small in comparison to the costs in- pleadings and witness statements. Are they 1 See my article, ‘The Future of Litigation in volved in determining them. Judges will necessary? Are they cost effective? How Construction Law Disputes’ in 23 Building not countenance lengthy cross-examina- will they advance the objectives of the liti- and Construction Law 398 at 408. tion regarding the detail at the periphery gation? Barristers will have a particularly of the litigation. Judges will be ready to important role also because an important impose time limits. reason for their existence as a separate As any lawyer will know, these objec- branch of the profession in litigation is tives will not be achieved unless the law- that they are lawyers who are one step yers and their clients are prepared to act removed from the clients and, therefore, co-operatively to achieve them. Professor more able and expected to bring to their Cashman proposes that such matters as task a degree of detachment which may be these be included in legislation which will more difficult for a solicitor to achieve. set out a series of overriding obligations of Barristers will be expected to apply this litigants and their lawyers and will provide detachment, as well as their professional penalties for non-observance. The new skill, to construction litigation. approach seeks to achieve this objective by Solicitors, too, will be expected to an acknowledgement on the part of law- look hard at their role. In advising their
50 VICTORIAN BAR NEWS Autumn 2008 The second bite at the cherry Further evidence on appeal
Ian Freckelton SC
[P]arties who are involved in litigation are expected to put before the court all the issues relevant to that litigation. If they do not, they will not normally be permitted to have a second bite at the cherry. Taylor v Lawrence [2002] EWCA Civ 90 at [6] per Lord Woolf CJ
Robin Oig saw what had happened with regret, and hastened to offer to his English friend to share with him the disputed possession. But Wakefield’s pride was severely hurt, and he answered disdainfully, ‘Take it all, man – take it all; never make two bites of a cherry.’ SIR WALTER SCOTT, Chronicles of the Cannongate, 1827
INTRODUCTION TERMINOLOGY requirement of the exercise of ‘reasonable diligence’ in this context is demanding, it is Cherries are not easily amenable to An important distinction exists between does not demand perfection on the part of more than one attempt at consumption; ‘fresh evidence’ and ‘new evidence’. ‘New litigants or their legal representatives. It is multiple bites at them can be problematic evidence’ is evidence additional to that a question to be asked in the context of the in a variety of ways. Notwithstanding which was adduced at first instance but case. If ‘exceptional efforts and some good the pronouncement of Lord Woolf CJ in which with reasonable diligence could fortune to obtain’ the evidence would have Taylor v Lawrence [2002] EWCA Civ 90 at have been discovered. ‘Fresh evidence’, been necessary, the evidence will not be [6] (above), it is the desire of a percentage by contrast, is evidence that either did regarded as having been able to be found of unsuccessful parties to litigation to not exist at the time of trial or which with reasonable diligence (R v Rozynski have a ‘second bite at the cherry’ by could not have been discovered with [1996] NSWSC 19). It is incumbent on the introducing, on appeal, evidence that was reasonable diligence. ‘Further evidence’ party seeking to adduce further evidence not adduced at trial, whether for justifiable is a compendious term that includes both to show the reasonableness of the efforts or indefensible reasons. ‘new evidence’ and ‘fresh evidence’. On a made at and before the hearing at first In recent years, particularly in Western number of occasions in the decided cases, instance or the unreasonableness of what Australia during and after the Mickelberg the terms are confusingly interchanged. would have been required to obtain the saga, attempts to re-open cases on the basis evidence. of ‘further evidence’ have been made with Historically ‘great latitude’ is extended REASONABLE DILIGENCE increasing frequency, although with only to an accused in this context and it is modest levels of success. A consequence In both the criminal and civil contexts, only in the exceptional case that evidence has been the evolution of a substantial reasonable diligence must have been which was not actually available to jurisprudence in relation to adducing ‘fresh exercised before fresh evidence or new him will be denied the quality of ‘fresh evidence’ and ‘new evidence’ on appeal. evidence is permitted to be adduced on evidence’ (Ratten v The Queen (1974) This article reviews the principles emerging appeal. This is subject to the overriding 131 CLR 510 at 517 per Barwick CJ) on from that case law, with a particular focus discretion to admit such evidence to the basis that an accused will often be upon how it affects Victorian litigation. prevent a miscarriage of justice. While the disadvantaged in intellectual terms, or in
VICTORIAN BAR NEWS Autumn 2008 51 terms of financial and legal resources in For instance, under s. 574 of the Crimes than in civil appeals (see Mickelberg v The the conduct of their case. Act 1958 (Vic), the Court of Appeal may Queen (1989) 167 CLR 259 at 301). There ‘if it thinks necessary or expedient in the is something of a circularity of reasoning interest of justice…order any witnesses often engaged in, though – if the evidence REASONS FOR COURT who would have been compellable would establish a miscarriage of justice, DISINCLINATION TO ALLOW witnesses at the trial to attend and be it will be received. If not, especially if it FURTHER EVIDENCE examined before the Court whether they is ‘only’ new evidence, criminal courts Further evidence is only permitted by were or were not called at the trial or order are loathe to receive it, lest they open the appellate courts ‘in the most exceptional the examination of any such witnesses’. door unduly to a proliferation of litigants circumstances’ (University of Wollongong Where further evidence is permitted to endeavouring to take further nibbles at the v Metwally (No 2) (1985) 59 ALJR 481 at be adduced, there is a flow-on effect – the proverbial cherry. 483) in the interests of justice and subject appellate court is entitled to receive evi- Barwick CJ in Ratten v The Queen to a number of restrictions. This is because dence ‘which tends to support, contradict (1974) 131 CLR 510 at 516 held there it is generally contrary to the principle of or weaken the new evidence or the infer- to be a miscarriage of justice if on the finality in litigation for appellate courts ences which might be drawn therefrom material before an appellate court the to reopen cases because of additional contradicting, qualifying or otherwise appellant is shown to be innocent or there information not adduced at trial. One bearing upon that evidence’ (Ratten v The is such a doubt about his or her guilt that the verdict should not be permitted to stand. When material placed before an In determining whether there is a significant possibility appellate court satisfies it of a miscarriage of a miscarriage of justice on the basis of fresh evidence, of justice in this sense, it will not matter whether the further material or some the appellate court requires to be satisfied that the part of it is not technically ‘fresh’. If the evidence has ‘cogency, plausibility and relevance’ (Lawless court finds that guilt beyond reasonable v The Queen (1979) 142 CLR 659). To this end fresh evidence doubt is not established, to maintain a verdict of guilt would be a miscarriage has to be credible in the sense that a reasonable jury of justice so the verdict of guilt will be could accept it as true but it is not necessary that the quashed and the appellant discharged. appellate court concludes that it is likely that a reasonable It will not matter that the trial was fair and without blemish. On occasions, the jury would believe it (Mickelberg v The Queen (1989) further evidence ground of appeal is 167 CLR 259 at 302). described in terms of ‘a residual discretion in exceptional cases to receive on appeal new or further evidence which is not fresh aspect of the finality principle is that Queen (1974) 131 CLR 510 at 517; Mick- evidence if to refuse to do so would lead to litigants are required to bring forward elberg v The Queen (1989) 167 CLR 259 a miscarriage of justice’ (see for example their whole case at the one time and not to at 301). This can enable the Crown to R v Katsidis; Ex parte Attorney-General develop it in staccato fashion. If a second answer or place in context the further [2005] QCA 229 at [3]). For ‘new evidence’ chance were readily available, litigants evidence. to be admitted on criminal appeals it must might put forward what they conceived Although this is attended by a degree be such that its absence at the time of the to be their best case first, then should that of circularity, case law has tended to trial involved a miscarriage of justice in fail, they might try another tack on appeal. suggest that the decision to receive further that there is a significant possibility that On the basis of parties being responsi- evidence (especially in criminal appeals) is the jury, acting reasonably, would have ble for determining how to run their own intimately bound up with whether a first acquitted the appellant if the new evidence cases, appellate courts extend more lati- instance decision should be set aside on had been before it at trial (Gallagher v tude to arguments on appeal based on the basis of the absence of the evidence. The Queen (1986) 160 CLR 392 at 399; fresh evidence. The courts are even less The overriding test in criminal appeals is Mickelberg v The Queen (1989) 167 CLR inclined to permit evidence that does not the interests of justice. 259 at 273, 275 and 302). satisfy the criteria for being fresh. The distinction between ‘new’ and An appellate court will receive ‘fresh ‘fresh’ evidence continues to be recognised evidence’ if it can be clearly shown that the in criminal cases (see for example Beamish failure to receive it might have the result NEW EVIDENCE AND FRESH v The Queen [2005] WASCA 62 at [13]; that an unjust conviction is permitted to EVIDENCE IN CRIMINAL APPEALS Mickelberg v The Queen [2004] WASCA stand (see R v McIntee (1985) 38 SASR 432 Adducing of further evidence in criminal 145 at [415]; Mallard v The Queen [2003] at 435 per King CJ; R v AHK [2001] VSCA matters on appeal arises from provisions WASCA 296 at [12] and [13]), although 220 at [8]; cp R v Ford [2007] VSCA 221 at permitting such appeals and providing somewhat variably. Recent authority [84]). In determining whether there is a latitude to appellate courts as to the establishes that the ‘freshness’ of evidence significant possibility of a miscarriage of evidence that they can take into account. may be less significant in criminal appeals justice on the basis of fresh evidence, the
52 VICTORIAN BAR NEWS Autumn 2008 appellate court requires to be satisfied that If the evidence is ‘fresh evidence’, then the available at first instance (see for example the evidence has ‘cogency, plausibility and court only has to reach a conclusion that Leach v The Queen (2005) 159 A Crim R relevance’ (Lawless v The Queen (1979) 142 there would have been an increased 183 at 195; R v Cheatham [2000] NSWCCA CLR 659). To this end fresh evidence has chance of acquittal in order to decide that 282) or a new hypothesis (see for example to be credible in the sense that a reasonable there was a miscarriage of justice. It must Saunders v R [2004] TASSC 95). How- jury could accept it as true but it is not nec- be shown that the jury would have been ever, where expert evidence is such as to essary that the appellate court concludes ‘likely’ to have entertained a reasonable constitute a significant or real possibility that it is likely that a reasonable jury would doubt; or ‘might’ have; or there was a ‘sig- that a reasonable jury would have acquitted believe it (Mickelberg v The Queen (1989) nificant possibility’ of that being so. the appellant, expert evidence that is ‘new’ 167 CLR 259 at 302). However, if the evidence is ‘new’ evi- rather than ‘fresh’ may be admitted. Thus There are two main formulations of dence, then it is not enough merely to in R v AW [2005] QCA 152 at [14] the the requirement. The first is that found show an increased chance of acquittal. The Queensland Court of Appeal permitted in the judgment of Rich and Dixon JJ in ‘new’ evidence must be strong enough to evidence from a colorectal surgeon that Craig v The King (1933) 49 CLR 429 at 439, show that the appellant is innocent or it was ‘extraordinary’ and ‘fanciful’ to which was applied by Menzies J in Ratten raises such a doubt that the Court con- contemplate that a fork in the rectal canal (1974) 131 CLR 510 at 526 and by Mason cludes that the accused ‘should not have of an intellectually disabled victim would J and Aickin J in Lawless (1979) 142 CLR been convicted’. have been present for more than a week, 659 at 676-677, 686. It required the ‘fresh let alone for four months, as alleged by evidence’ to: Fresh evidence was permitted by the New the Crown at trial. By contrast, evidence Zealand Court of Appeal in R v Dougherty proffered by an appellant that he had be of such a character that, if considered [1996] 3 NZLR 257 when evidence of DNA undergone a polygraph examination was in combination with the evidence already testing using a new technique, discovered found by the Western Australian Court of given upon the trial the result ought in the after the date of the trial, established that Criminal Appeal in Mallard v The Queen minds of reasonable men to be affected. there was no scientific evidence to support [2003] WASCA 263 at [368]–[369] to be Such evidence should be calculated at the identification of the appellant as the ‘entirely unscientific and worthless’ and least to remove the certainty of the prison- assailant. Accordingly, the Court held that thus its absence was not such as to have er’s guilt which the former evidence pro- the evidence was admissible and concluded led to a miscarriage of justice. duced. that a miscarriage of justice had taken place Further, in R v JH (Childhood Amnesia) because, had the evidence been available at [2006] 1 Cr App R 10 the English Court The second is that contained in the trial, its cogency was such that it might of Appeal permitted new evidence from judgment of Barwick CJ (with whom reasonably have led the jury to return a a cognitive psychologist about the risks McTiernan, Stephen and Jacobs JJ different verdict. Another instance deter- of memories said to relate to very early concurred) in Ratten v The Queen (1974) mined to be fresh evidence was a gallows phases of a person’s life. It found (at [38]) 131 CLR 510 at 519–520. It required the confession by another person to a homi- that the evidence was credible, relevant and court to consider the ‘fresh evidence’ in cide for which the appellant was convicted capable of affording a ground of appeal. order to determine whether, when the (Beamish v The Queen [2005] WASCA 62 If evidence of an expert area is unknown fresh evidence, if believed by the jury, is at [422]). A further example was informa- or hardly known at the time of trial, failure taken with the evidence given at the trial in tion derived from investigations by the to adduce it will not be regarded as a breach the sense most favourable to the accused: New South Wales Police Integrity Com- of the requirement by legal representatives it is likely that a verdict of guilty would not mission but unknown at the time of a trial to exercise ‘reasonable diligence’ (R v have been returned. In considering the about the propensity of a police officer to Rozynski [1996] NSWSC 19). material before it for this purpose, the ele- verbal suspects, plant evidence, prepare and use false statements for use in judicial ment of credibility will be satisfied if the FURTHER EVIDENCE AT proceedings, and commit perjury. The New court is of opinion that the evidence is ca- SENTENCING pable of belief and likely to be believed by South Wales Court of Appeal held that ‘the a jury. …[I]f there is fresh evidence which effect of this new material would have been To be admissible on appeal, further in the court’s view is properly capable of to permit a very powerful challenge to evidence in relation to re-sentencing acceptance and likely to be accepted by a the police evidence’ (R v Heuston [2003] needs to shed a new light on matters jury, and which is so cogent in the opinion NSWCCA 172 at [41]). considered by the sentencing judge which of the court that, being believed, it is likely would ‘very probably have altered the sentence imposed’ (Anderson v The Queen to produce a different verdict, a new trial EXPERT EVIDENCE will be ordered. (1997) 18 WAR 244 at 253–254.) It is The law as to further evidence in the incumbent on the appellant to establish The Western Australian Court of Appeal form of expert evidence is a subset of the the true significance of such matters. in De La Espriella Velasco v The Queen general law. It has been held on a number An example occurred in Eliasen v The [2006] WASCA 31 at [157] (citations of occasions that there must be more Queen (1991) 53 A Crim R 391 where, omitted) summarised an aspect of the than additional expert opinions which unbeknown to the appellant, he was HIV- relevant distinctions as follows: substantially overlap with expert opinions positive at the time of sentencing. In that
VICTORIAN BAR NEWS Autumn 2008 53 case Crockett J (McGarvie and Phillips JJ even though the applicant did not refer It has been emphatically stated on many agreeing) observed that the court accedes to the pre-existing state of affairs in the occasions that verdicts in civil cases which ‘very sparingly’ to such applications. course of the plea; have been regularly obtained should However, in an appropriate case, the court (v) upon the admission of the new evidence, not be disturbed without ‘some insistent may permit evidence of matters or events it is unnecessary to determine whether demand of justice’ (see for example that have occurred since the date of the the original sentence was vitiated by Council of the City of Greater Wollongong passing of the sentence to be placed before error, or whether it was manifestly v Cowan (1955) 93 CLR 435 at 444). In the court with a view to reconsidering the excessive; and Commonwealth Bank of Australia v Quade matter in light of the additional evidence (vi) the question is whether, on all of the (1931) 178 CLR 134 at 141–142 the High or to show the true significance of the material now before the Court, any Court observed that the high bar against facts which were in existence at the time different sentence should be substituted reception of further evidence on appeal is of sentence (R v Holland [2002] VSCA to avoid a miscarriage of justice. supported by considerations of justice and 118 at [35]). In R v WEF [1998] 2 VR 385 public interest. at 388–389 Winneke P (Charles JA and The discovery of further evidence is Hampel AJA agreeing) said: FURTHER EVIDENCE IN rarely a ground for a new trial unless: CIVIL APPEALS In normal circumstances, if it is suggested (a) it is reasonably clear that if such evidence that subsequent events have made or made The principles on which further evidence had been available at first instance at the to appear a sentence, appropriate when can be admitted are known as the first trial and had been adduced, there passed, manifestly excessive, then that is a principles derived from Ladd v Marshall would have been an opposite result; matter for the consideration of the Execu- [1954] 1 WLR 1491: (b) if it is not reasonably clear that such tive in the exercise of the prerogative of would have been the outcome, it must mercy and not a matter for an appellate [F]irst, it must be shown that the evidence have been so highly likely as to make it court. …this court has recognised that could not have been obtained with reason- unreasonable to suppose otherwise; and
Different considerations arise depending on whether the evidence that is sought to be adduced is of matters that were in existence before (or at the time of) the trial, or whether it relates to matters that arose after the trial.
there is a rare exception to this other- able diligence for use at the trial; secondly, (c) reasonable diligence had been exercised wise fundamental rule. The court will the evidence must be such that, if given, it before the first trial to procure such receive evidence of events occurring after would probably have an important influ- evidence (Council of the City of Greater sentence, in appropriate circumstances, if ence on the result of the case, though Wollongong v Cowan (1955) 93 CLR 435 those events can be said to be relevant, not it need not be decisive; thirdly, the evi- at 444). so much per se, but because they throw dence must be such as is presumably to be a different light on circumstances which believed, or in other words, it must be However, there remains a degree of existed at the time of sentence. apparently credible, though it need not latitude, enabling flexibility to satisfy the be incontrovertible. overriding purpose of reconciling the In R v Nguyen [2006] VSCA 184 at [36] demands of justice with the policy in the the Victorian Court of Appeal summarised These principles have been held to be public interest of bringing civil actions to the relevant principles: ‘the starting point, but there is a discretion an end. to depart from them in exceptional Different considerations arise depend- (i) the new evidence must relate to events circumstances’ (E v Home Secretary [2004] ing on whether the evidence that is sought which have occurred since the sentence QB 1044 at [82]). The common law is to be adduced is of matters that were in ex- was imposed; restated but in some instances adjusted by istence before (or at the time of) the trial, (ii) the evidence must demonstrate the true statutory provisions. Thus, r 64.22(3) of the or whether it relates to matters that arose significance of facts in existence at the Supreme Court (General Civil Procedure) after the trial. Where the evidence in ques- time of the sentence; Rules (Vic) provides broadly that: tion relates to matters which occurred (iii) the evidence will not be admitted if before trial the court will ordinarily refuse it relates only to events which have The Court of Appeal shall have power to to admit such evidence unless it is satisfied occurred after sentence and which receive further evidence upon questions that it is sufficiently credible, that it could show that the sentence has turned out of fact, either by oral examination in court, not have been obtained with reasonable to be excessive; by affidavit, or by deposition taken before diligence for use at the trial and that there (iv) the new evidence may be admissible an examiner. is a high probability that the result would
54 VICTORIAN BAR NEWS Autumn 2008 have been different had it been received It is a matter of degree, but I am not pre- did, noting particularly that the provision at trial. Where the proposed evidence pared to say, using the words of Viscount enables the drawing of inferences of fact is of matters that have arisen after trial, Dilhorne and Lord Pearson in Mulhol- and the reception of ‘further evidence’, as the applicable principles governing the land, that the circumstances of this case against ‘fresh evidence’, ‘new evidence’ or exercise of the court’s discretion were are exceptional or (using the words of similar. McHugh, Gummow and Callinan epressed by Lord Wilberforce in Mulhol- Viscount Dilhorne) that the question was JJ (at [191]), giving the principal judgment, land v Mitchell [1971] AC 666 at 679–680 determined at the hearing on a basis which held that the common law cases ‘have as follows: events after it have falsified. Nor, using the nothing authoritative to say about the words of Lord Hodson, would I say that admissibility of further evidence in respect …the matter is one of discretion and de- the basis upon which the case was decided of a statutory power to admit evidence on gree. Negatively, fresh evidence ought not at the hearing was suddenly and materi- appeal’ (at [97]). They observed that the to be admitted when it bears upon matters ally falsified by a dramatic change of purpose of the power to admit further falling within the field or area of uncer- circumstances. In picking up these expres- evidence is to ensure that the proceedings tainty, in which the trial judge’s estimate sions I do not of course suggest that there do not ‘miscarry’. They noted too that the has previously been made. Positively, it is any ‘precise formula which gives a ready jurisdiction of the Full Court ‘is neither may be admitted if some basic assump- answer’, reminding myself of the caution purely appellate nor purely original’ (at tions, common to both sides, have clearly expressed by Lord Hodson. [111]) and emphasized that particular been falsified by subsequent events, par- considerations apply to cases dealing with ticularly if this has happened by the act Subsequently, Chernov JA in Foody v the welfare of children, as to which there of the defendant. Positively, too, it may be Horewood [2007] VSCA 130 at [66] has can, for instance, be additional insights expected that the Courts will allow fresh concluded that decided authority makes since the decision made at first instance. evidence where to refuse it would affront it apparent that, ordinarily, the discretion They found too that ‘in some exceptional common sense, or a sense of justice. All to receive evidence of events after trial is cases’, including those dealing with these are only non-exhaustive indications; exercised ‘only rarely’; allegations of physical and psychological the application of them, and their like, abuse of children: must be left to the Court of Appeal. The [G]enerally only if it bears upon matters exceptional character of cases in which falling within the field or area of uncer- [I]t might arguably be a proper exercise fresh evidence is allowed, is fully recog- tainty, in respect of which the trial court of discretion for the Full Court to admit nised by that court. had made an estimate on an assumption further evidence and order a new hearing that was then common to both parties and even though it is not reasonably satisfied that that assumption has clearly been that the evidence would have produced, Cases where a trial has miscarried through falsified by subsequent events, such that or at a new hearing would now produce, a misdirection, mis-reception of evidence, the refusal to admit the further evidence different result (at [149]). wrongful rejection of evidence, or would affront common sense. similar, or where there has been ‘surprise, In such cases, it may be enough that malpractice or fraud’ are technically not the court thinks that there is a very real cases of ‘fresh evidence’ (Commonwealth FAMILY LAW risk, although not a probability, that the Bank of Australia v Quade (1991) 178 Under s. 93A of the Family Law Act 1975 order on appeal may actually endanger the CLR 134 at 140) Nor is a case where the (Cth), subject to s. 96(2), in an appeal the child: material constituting the further evidence Family Court is obliged to confine itself to was unknown to the unsuccessful party evidence given at first instance but: [T]he consequences for the child may be by reason of misconduct on the part of so grave that arguably the best interests of the successful party, such as an admitted has power to draw inferences of fact the child might require the admission failure to comply with the requirements and, in its discretion, to receive further of the further evidence and a new hearing of the trial courts order for discovery of evidence upon questions of fact, which to investigate all the further evidence (at documents (Quade at 140–141; see also evidence may be given: [149]). Foody v Horewood [2007] VSCA 130). (a) by affidavit; or (b) by oral examination before the Fam- Alternatively, as Kirby J put it, the para- ASSESSMENT OF DAMAGES ily Court or a Judge; or mountcy principle may weigh heavily (c) as provided for in Division 2 of against the principle of finality. However, Assessment of damages is a ‘once and for Part XI. more is needed than ‘a real chance that the all’ award that takes into account an array order under appeal does not serve the best of inherent uncertainties and exigencies, In CDJ v VAJ (1998) 197 CLR 172 the interests of the child’ (at [151]). with the consequence that admission of High Court considered whether the (close) further evidence should only take place in predecessor to the current version of s CONCLUSION exceptional circumstances. Brooking CJ in 93A affected the exercise of the common Mobilio v Balliotis [1998] 3 VR 833 at 853 law principles concerning the reception There is no single unified principle that is observed: of fresh evidence. The court held that it applied across the appellate jurisdictions
VICTORIAN BAR NEWS Autumn 2008 55 in relation to the reception of further evidence. However, the burden is a substantial one for appellants seeking to adduce further evidence at trial. There is a Verbatim considerable overlap of principle between the criminal, civil and family law areas. Evidence is not generally received on R v Towie appeal which existed at first instance and before Cummins J. 4/2/08 which was either known to the party or could have been discovered with proper Mr Richter: I was going to… diligence. There must be a demonstrable His Honour: Is it about the clothing on the view? miscarriage of criminal or civil justice for such evidence to be admitted on appeal, Mr Richter: No. or in the family law context and particular His Honour: No, it’s not? That’s all right. consideration relating to the best interests of a child. Mr Richter: It’s about clothing more generally, your Honour. I was going to With evidence that could not have been ask for leave for counsel to remove their wigs too and I wanted to argue the discovered with reasonable diligence or that proposition. I know that your Honour has from time to time declined for that has subsequently come to light, the bar is to happen, but in my respectful submission if anyone is to wear a wig in court slightly lower. In the criminal jurisdiction, it ought to be your Honour, because your Honour, of course, is the ultimate the evidence must be credible, cogent binding authority in this court and as such needs to represent the majesty of the and convincing such that the jury would law. We are… have been ‘likely’ to have entertained a Your Honour: Which way is this argument going? reasonable doubt; or ‘might’ have; or there was a ‘significant possibility’ of that being Mr Richter: It starts off with flattery and ends up with the conclusion that the so. In the civil jurisdiction the distinction judge ought to wear a wig and not counsel, or nobody wears wigs. between new evidence and fresh evidence Your Honour: I think you’ve got a lot of logic on your side. appears no longer to be so firm. A new trial will not be ordered unless: Mr Richter: I have. Your Honour: And my associate keeps telling me that I haven’t got the logic (a) it is reasonably clear that if such evi- right. Number one, I can’t direct people what to wear in court under the statute. dence had been available at first That’s the first thing, so I don’t direct people. Number two, I don’t like wigs and instance at the first trial and had been I haven’t worn them for more than 15 years so I’m not going to start now with adduced, there would have been an two years to go, so I reject that. opposite result; (b) if it is not reasonably clear that such Mr Richter: If we unanimously… would have been the outcome, it must Your Honour: I’ve never had a complaint from anyone about my not wearing a have been so highly likely as to make wig. I’ve had a couple of complaints but never about that. Third, the reason I do it unreasonable to suppose otherwise; suggest counsel should wear wigs, without binding them, is I think everyone at and the Bar table should look the same. (c) reasonable diligence had been exer- cised before the first trial to procure Mr Richter: Yes. That part I agree with. such evidence. Your Honour: And my own view is I think that, therefore, counsel ought to wear wigs, but you can discuss it amongst yourselves. It is likely that the criminal and civil tests will continue to converge, save where Mr Richter: Do I take it that if we have a consensus amongst ourselves not to the interests of others, such as children or wear wigs your Honour will not override it? creditors, constitute additional reasons in Your Honour: I’m a democrat. the interests of justice as to why further evidence should be permitted. For the present, though, it is only in exceptional PS: the prosecutors declined to remove their wigs so that counsel are still all cases that appellants are allowed ‘a second bewigged. bite at the cherry’ by adducing further evidence on appeal. Ultimately, further mastication of what should have been completed at trial is permitted only on the basis of the importance of the further evidence to avoid a miscarriage of justice.
56 VICTORIAN BAR NEWS Autumn 2008 Does the Bar matter?
hen I did a course in wine not, apparently, taken seriously the lessons tasting many years ago, our learned by Don Quixote. It is true that Don tutor told us not to bother Quixote became a knight because he was Wbuying magazines about wine. He said all crazy, and not the other way around, but the wines were scored three stars or more in his madness, as was the case with King because the industry was small and the Lear, he acquired wisdom. He had the wit publishers were beholden to its members to observe (Don Quixote II, 3) that ‘the and their advertisers. It is like those wisest person in the comedy is the clown’. TV travel shows – inevitably bland, and Some of these reflections occurred to everything is just dreamy. You are as likely me after the publication of a piece I wrote to find an old Grange being described as on the suicide of Brendan Griffin that was cough syrup in a wine magazine as you headed ‘Surviving the Law’. I had written it not for general publication, but for the comfort of the immediate colleagues Geoff Gibson practised at the Bar for 15 years before going to a and family of Brendan Griffin. When the leading national firm as a partner in 1986. He returned to the Bar in editors of Bar News asked if they could publish it, we discussed it and with some 2002. In the article below he suggests that members of the Bar hesitation we decided that it could be made public. should take a little more responsibility for each other – not on a I am immensely glad that it was. I had not expected the response. It was entirely professional, but on a personal basis – that we all need the extraordinary. People – by the score assistance of our fellows to cope with the problems of sole practice. – wrote to me, called on me, emailed me, phoned me, and crossed the road to talk to me. It was as if people had been sitting are to find an agent describing his listed in a dark room and someone had jumped Toorak properties as lemons. You would out the window. It was as if barristers had not wish to thirst for truth. been forbidden to talk about these things Professional associations and their or they had been punished if they did. journals are likely to convey the same There were two themes in the response. impression. You are not going to read One was that we in the community at much about the dark side of union life from large are not open enough in talking about ACTU publications. You may not leam illness of the mind or suicide. The other all that much about medical malpractice was that we in the law just do not talk at from The Lancet. all, so people say, about the incidence of We lawyers have the same diffidence stress on this side of the profession or, about airing our dirty linen. We might for that matter, the other side. We just experience a frisson of gossip when some- preserve our heroes on their pedestals and thing goes wrong, but we are reluctant to pretend that nothing is wrong. After all, if discuss our real feelings on personal failure it could happen to one of those hot shots, in any depth, either publicly or at all. how could I expect to survive? It is, I think, worse at this end of town These messages were expressed to me than the other end of town. Among the repeatedly. I still get them. Not one person reasons for the difference are the greater has written to me to complain of what I institutionalized insecurity of barristers said. Not one. This, you might think, is a and their reluctance to cast off the mantle symptom of the sterile meekness of public or myth of the knight errant. They have discussion within this profession. I agree
VICTORIAN BAR NEWS Autumn 2008 57 – this lack of public discussion is, I think, I am not so interested for the moment in interest in trying to prevent aberrant part of the problem. any potential liability of lawyers to clients behaviour by its members causing damage You may get a different view of these for the faults of others. There is, however, to others or to its members. things at the other end of town. Most law- no doubt that law firms can suffer damage The main duty of barristers is to do what yers there are involved in a partnership as a result of inadequate or improper they can to ensure that their clients get good running a business. Cooperation is man- professional conduct. This extends far professional service. But the discharge datory there; here, it is for the most part beyond financial liability to disappointed of that duty will coincide with pursuing banned. clients. Their reputation can be badly hurt. the interests of the Bar in trying to keep If you spend fifteen years or so as the No firm wants to be accused of serial and intact the collective standing of barristers insurance partner for a large international serious over-charging, of suffering a culture as a whole. We need not kid ourselves. If law firm, you get a broad view of the range of discrimination against or harassment of a barrister misbehaves and is caught, and of human fallibility. As the confessor of women, of being too close to corporations the process is public, the result will be to first and sometimes last resort, you get to to discharge their obligations as officers of lessen, however slightly, the reputation of see how personal failings become manifest the court, or of having a partner sent to every other member of the Bar. in ways that may hurt others. gaol for dishonesty that occurred, it seems, I am not for the most part here talking After a while, the pattern can become just because he could not keep up with his about legal duties or legal liabilities. I am sickeningly familiar and predictable. You partners. Members of these firms have a talking of what I see as a moral duty and can see in some people, unhappily only keen interest in trying to spot any failing a professional interest that the Bar has in after the event for a lot of them, a sad, so that it can be dealt with, hopefully coming to the aid of barristers in trouble. downward progression that becomes a before anyone gets hurt. As time goes on, the difference between spiral. Not in any necessary order, you Another way to learn of the reach of the Bar and major law firms may become might see people out of their depth; people weakness in our profession is to give more apparent than real. When I joined who do not know what they are doing; character evidence for a senior lawyer who the Bar in 1971, there were about 400 of people stretched too far or worn out; anxi- has hit the fence. I have done it for a lawyer us. When I left the law firm I was a partner ety; harassment; alcohol or other drug on either side in the most responsible of in 2002, it had about 1,000 lawyers. abuse; serious illness – of the mind or position. Each had been a person and a This Bar now has about 1,600 members. body; dishonesty, violence or other crimes; lawyer beyond reproach. One was, and is, In the meantime, the ripe commercialism gaol; or in the end, death from stress or of towering professional and intellectual that was the hallmark of the other side is suicide. As, I said, there is no necessary standing. Each was looking at not just becoming more and more pervasive here. order of degree. The categories of misery disbarment but imprisonment, and the So, for that matter, is the concentration never close. complete ruin of a life. One of those cases on the dollar. On the plus side, the Bar You get to recognize some of the could, in my view, have been prevented offers better prospects for professional symptoms of risk to your clients, yourself by appropriate collegiate intervention. self-esteem and membership for life; and or your staff. A lot of the time you get no As you sit and listen to the proceedings a lot less of the internal knee-capping and warning at all. Some people who get into unfold, you cannot help reflecting on that throat-slitting. The Bar has also stayed true trouble, morally or mentally, become old saying about your being in their place to its central function of offering access to fiercely adept at hiding it. The ones who but for the grace of God – what others call all to the cream of the profession whose terrify you are those who most need the simply the luck of the draw. members are a collegiate body committed help and could most benefit from it, but As a professional association for lawyers, to giving the best legal advice and most who, for whatever reason, are determined the Bar is exposed to similar damage to its importantly, independent legal advice. not to ask for help. They will just keep it reputation if its members fail or fall in one This has been an aspiration abandoned to themselves although they know, in their or other of the ways that barristers can and at the other end of town for the most part hearts, that things can only end badly, and do fail and fall. But, at least until recently, if there is a government or major public that in the end they must get caught. You the Bar has not reacted to the symptoms of company in the field. recall the insight of Einstein: ‘A person trouble in the same way that members of What we need to think about, in my falling freely will not feel his own weight.’ law firms do. Some may think the problem view, is how we at the Bar can improve our The very worst are those who do not with the Bar is that it lacks maturity as a provision of what may otherwise be called know that something is wrong. ‘I may have body; others may take the contrary view pastoral care and what managers call risk omitted to mention to you that I forgot to that it gives too much credit and respect management for those who might need it. stamp that little debenture. The borrower for maturity and authority. The first thing to do is to scrap all this folded and, unhappily, the bank is looking The Bar, of course, is not a partnership claptrap about men being men; big boys to us for the missing one hundred million and its members do properly prize their don’t cry; if you don’t like the heat, stay dollars. I think you said our insurers are independence, but I would have thought out of the kitchen; this is a contact sport; good for $50 million. Would it square that most barristers see themselves as hav- and all the other inane slogans of the things up if I offered to kick in my share ing a moral duty to help, or try to help, a locker room or barracks room that went of a lean-to at the back of Venus Bay? Oh barrister who is in trouble. As a body of west with the relief of Mafeking, and my God, don’t tell me that this might affect barristers, the Bar also has what might also which are the first and last resort of people our Listing?’ be called a professional or even a political who have difficulties with the process of
58 VICTORIAN BAR NEWS Autumn 2008 rational thought. Educated adults in the reward, or arises because the informer is mixer. Should you stand by silently waiting year of 2008 know that people under stress a member of the Gestapo manque. We are for the laws of physics to do their work? can fail and become ill or turn to crime, not talking about this. (You reflect that the last time you showed and in either event become able to harm Let me give an example. I have only courtesy to a woman barrister you got a others as a result. This frequently occurs in once complained about a cab driver. This verbal backhander.) Or do you opine that circumstances where that harm could have is because I do not want to do anything the cure for this kind of behaviour is stiffer been avoided if the person under stress that might cost someone their job. But one penalties for jay walking? had got help quickly enough. night about fifteen years ago I had a driver Of course you would be subject to what Secondly, and relatedly, we need to stop who was very jumpy. When I politely I regard as an absolute moral duty to do beatifying our ancestors. Leave that proc- questioned him on his route, which was all that you can to prevent harm to this ess to a different kind of faith that knows bizarre, he jammed on the brakes and colleague, and short of moral insanity how to manage the process. It promotes a asked if I wanted to get out there and then every barrister would do just that. Indeed, culture of unreality if not dishonesty to – in the middle of very heavy traffic. I was in some jurisdictions, you might be look- refuse to tell or acknowledge the truth alarmed – enough to ring his depot and ing at your moral obligation as the subject about those who are no longer with us. say that I thought his condition made him of criminal sanctions. This is becoming something of a national a risk to others if not himself. I was not Take another example. (For the removal trait in Australia. It would be silly to thinking of the damage to the name of the of doubt, you should treat these examples pretend that anyone is without fault. No company (what we now call ‘the brand’) as hypotheticals, as a kind of optional mortal can claim immunity in death, not – just the risk that the driver posed. reality.) A colleague on your floor is having even a barrister. Even poor old Manning I thought then, and I think now, that a bad run. He has lost his main client. He Clark, who never seemed to me to do any refusing to do anything would not have has suffered a terrible divorce. (The wife, harm to anyone, gets routinely dug up to been morally right. (I doubt whether the he said, got custody of the money.) He has face allegations not put to him when he person at the depot who took the call had a child on hard drugs. He was knocked was with us, frequently by his friends, and the same view – she sounded like I may back – yet again – for silk. He is obviously frequently by people of the ilk who are the as well have been playing a part in Blue drinking too much – obviously because first to accuse others of not behaving like Hills.) In my view, we face similar issues you can see the effect of it every afternoon, gentlemen. in dealing with our colleagues more often and now on some mornings. You now Voltaire may not have got a lot right, but than we acknowledge or even realise. suspect he is on the grog when he gets he was in my view dead right when he said: Finally, and with more difficulty, we in to work. What support he had among ‘One owes respect to the living, but to the need to find a way of raising some kind of solicitors is evaporating quickly. There are dead one owes nothing but the truth.’ (That alert if that needs to be done. It is not just mutterings from them as well as from the observation was cited on the title page a matter of clearing away the outmoded Bar. Clients have been known to walk out of a biography of Nellie Melba. If people views of the kind I have described. Some pale-faced and wide-eyed. knew all the truth about a woman who of the unfortunate failings we see around This person who was once a reasonable was alleged to have abandoned her child us suggest that we may have a problem and courteous lawyer is now becoming to pursue her career, you wonder whether which, in the revolting argot of our time, at best a useless relic and at worst a dan- she might still have her picture on our may be described as truly ‘systemic’. gerous wreck. He is, as they say on the $100 note. To the unbeliever, beatification Barristers who do not believe that we have terraces, an accident waiting to happen, a will always entail falsehood.) this problem and that we are suffering train waiting to go off the rails. The only The next thing is to overcome our diffi- harm to our reputation as a result, are in people he gets on with are his colleagues dence in talking about these problems. If my view living in Fantasyland. on his floor. What are they to do? you are a lawyer and you have a heart There are not many lawyers at the Bar He regards as quite mad anyone who attack, all of the nursing staff will say, when who would want to be heard to boast that suggests that he might have a problem. they learn of your occupation, ‘Well, an- they have less interest in the character (His father smoked 50 Craven A and drank other stress case.’ This is for them a fact of or fate of lawyers in their group than a bottle of Bond 7 a day and he lived until life – it is just like a soiled sheet. But most do lawyers at, say, firms like Freehills or he was 90. He then got hit by a speeding victims will not have admitted it. Women, Allens Arthur Robinson. A requirement cement mixer.) for the most part, do not have the same of professional independence is not a pre- Another example. A barrister with a problem in talking about personal difficul- scription for moral blindness or commer- very good practice appears to be subject ties. They seem better placed to talk cial insanity. to mood swings. Those who know her, or through emotional problems. The problem Take an example of moral duty. You are who know something about this medical may not be so bad nowadays with younger tracking a robed barrister who is walking condition, suggest that she is bipolar. She men. The failing may be characterized, I to court down William Street to Lonsdale has a bluff way of dealing with the issue think as one of age and gender. Street. She is so preoccupied with reading (in the manner of some case hardened Fourthly, we are not talking about her brief and talking on her mobile that minorities who think that everybody else dobbing, or what is now fondly called ‘the she does not see that the traffic light has should just mind their own business). nanny state’. Nobody likes dobbing, but turned against her and that she is about Colleagues – barristers and solicitors – dobbing involves informing for spite or to step into the path of a speeding cement make slightly nervous jokes about whether
VICTORIAN BAR NEWS Autumn 2008 59 she is on green pills or yellow ones each because they, or most of them, are putting day. In truth there are occasions, even in FEDERALISM in the hours. The Bar is unhappy because court, when her behaviour appears to be AUSTRALIA this does not look good and fewer cases are nothing short of what ordinary people being dealt with. By and large the truth is would describe as manic. Part of her charm We live in an ‘indissoluble Federal kept from the clients and the press. Some is that she treats most of our protocols as Commonwealth under the Crown’. lawyers make a blokey attempt to cover nonsense; part of the problem is that she But, due to the actions of ‘unelected’ up the mess by saying that his Honour does not care. judges, that federalism is one in disposes of more cases in a morning This has been going on for some time. which: (a) the states are dependent than others do in a week. The judge Then you hear that a large, nasty case on the Commonwealth for funds to remains serenely impervious to criticism, which her client lost is now the subject of a balance their budgets (courtesy of the comment or direction. The problem, then, costs application against the solicitors who Second Uniform Tax Case); (b) the is intractable. instructed her. Someone has taken the Commonwealth, whose limited Eventually the alcohol gets to this judge view that she is immune as a barrister to powers are spelled out in the and he dies. The precise agent of death this sort of claim. That view is probably Constitution, can now legislate in does not matter. The normal obsequies wrong, because this is a disciplinary almost any field in reliance on the are performed. The ceremony of innocence procedure, but for all sorts of reasons – external affairs power or the is again drowned, and the breach of public professional, commercial, personal and corporations power (courtesy of the trust goes unremedied and unremarked. political – the solicitors are reticent to Tasmanian Dams Case, Richardson v On any defensible meaning of the word join her in the claim. (This reticence is The Forestry Commission and New ‘responsible’, can we say that we are running shared by an informed client who is a PI South Wales v the Commonwealth). this profession responsibly if that kind insurer – but the incident is doing nothing A federation? Who is kidding of behaviour at the top is tolerated? This to soften the attitude of this insurer to whom? Provided the Commonwealth problem, you may think, is just the logical lawyers.) frames its legislation correctly it can result of our failure to deal adequately with Now, if the liability of counsel came to interfere in any sphere of State the expressed failings of those climbing up be tested in a court, nice issues of law and activity. the ladder. The history that will be alleged causation would arise. But would any one We have not had a referendum to against us is our repeated, generational of us want it to come to that? alter the relative powers of State and failure to do enough to stop our failures Another example. It is not a simple Commonwealth. The judiciary has from hurting innocent people. It will thing to terminate the services of counsel enlarged the Commonwealth’s be said that we are guilty of culturally during a trial. A junior behaves so badly powers. But no one protests. permitted misbehaviour. How often does during a trial that senior counsel is One wonders, then, why there the Bar disqualify or even suspend one of professionally embarrassed. The junior is should be so much concern expressed its members? bullying a young solicitor. The bullying is that ‘unelected’ judges may be given There are some things to notice from subtle, but it is there. It is as if she cannot power, under a Charter of Human the last example. One is that because we help herself. The clients are by and large Rights and Responsibilities, to are talking of the Bench, there is a breach oblivious, or happy enough to pretend interfere with the impact of of public trust. It is not different for the that they are, because of the performance legislation on the fundamental rights Bar. Barristers are a privileged profession of both counsel in court. This is, as usual, of the individual. enjoying a statutory monopoly which at its both superb and assured. But outside Is it so important that the upper level is endorsed by a form of royal court, her behaviour is so bad that senior individual be subjugated to the will warrant (not quite in the same manner as counsel feels constrained to apologise of the majority? Benson & Hedges). So central is their im- formally to the solicitor. The trouble is that portance to the system that disappointed junior counsel has been manifesting these clients are not allowed to claim compensa- symptoms for some time, but no one has tion from them if they botch a job in court been able to manage the problem. the Bar, they have spent the whole of their – because, for example, of a hard night out Notice that this problem, as in the professional lives away from management, on the tiles. previous two, is not just an issue of conduct. at either end, and those who have the awful The professional obligations of us law- There is a real risk that the interests of the task of trying to manage them may suffer yers are, at least to my mind, much, much client are being adversely affected by the from a similar disability. more significant than those imposed by bad behaviour of counsel. Assuming that One hypothetical member of senior black letter law. But, for what it is worth, in this case senior counsel was not acting counsel, who enjoyed many good lunches the statute that purports to regulate the irrationally in apologising to the solicitor at the Bar, finds life on the Bench so boring profession in Victoria does impose an for the behaviour of her junior, is this in that he is driven to wind up proceedings obligation of candour on all barristers. not a serious problem for both counsel each day well before lunchtime so that If this case were not hypothetical, a and the solicitor, and above all the client? he can spend the rest of the day at leisure public discussion of it might upset the One final example, to move up one rung. lunching with his mates at a gentlemen’s family and friends of his Honour. But we Judges are difficult to manage because, at club. His judicial colleagues are unhappy no longer live in a world where sensitivities
60 VICTORIAN BAR NEWS Autumn 2008 can dictate that issues of public importance match party loaded on spirits or some- as an institution cannot assert irresponsi- be dealt with ‘in club’. How much more thing worse. He takes the view that he was bility for all of their failings outside of upset were all those litigants who were brought up on – what happens on the field court. denied their Magna Carta rights because stays on the field, and what happens off If we continue to insist that our heroes his Honour cared more for himself? And the field is none of their business. remain untouchable, and unexaminable, what about the eight hundred years’ spade- Well, that may have been the case in and if the Bar does not accept responsibility work put in by the professional ancestors the good old days, and some of us may for the conduct of its members out of of this devotee of the long lunch? mourn their passing, but they have passed. hours, where does that leave us with League The other matter to notice is the way a Those were the days, the good old days, footballers? Beneath them or above them? problem – in this case the abuse of alcohol when such women as there were at the Bar Which is worse? – may result in the termination of life. were liable to be treated as a commodity. When I have referred to a moral When I spoke in my previous note of the We have, I think, greatly improved here, obligation, I have done so on the footing suicide of a partner, I spoke of an event and I agree with those who believe that that our ideas of professional conduct that we could foresee but which we could alcoholism was a worse problem at the Bar presuppose such obligations. If authority do little to prevent. I had meant to refer to one or two generations ago. But it is simply is sought, I would claim it from the man another partner that we lost. silly to say that an organisation as big as the present Pope describes as having been Rod Bush was much younger than me. ours will have no members who have very of ‘undeniable greatness’, Immanuel Kant He frequently got in earlier than me. I used big problems. (Groundwork of the Metaphysics of Morals to arrive at about 6.45am and if Rod was May I say something about drugs other (1785) 77/434; 78/435). arriving then, he would be putting his tie than medicinal drugs or alcohol? I have on. If we left about thirteen hours later, he not seen any evidence of their being used In the kingdom of ends, everything has would come back that night. The cancer by barristers. I suppose in a group of 1600 either a price or a dignity… Skill and he died of did not therefore come from it is statistically inevitable that there will be diligence in work have a market price; wit, nowhere. some users, but I have not seen it. I have, lively imagination and humour have a fancy At the funeral, his brother told us – and though, seen it at the other end of town. price, but fidelity to promises and kindness his widow and his three children – how One young lawyer with a bright future based on principle, rather than instinct, Rod had just lived to be a partner of the succumbed to a habit. That led her to steal have an intrinsic worth, that is dignity. firm. Well, he left me with the clear convic- from us. She was very fortunate not to go tion that Rod died for the firm too, and to gaol. As it is, she just finished her career I am suggesting that we need to do that we his partners were morally com- and ruined her life. more to preserve our dignity, in the sense plicit in his death. It was too predictable a What I am not seeking here is a further that we use the word, and in the sense result of the way he was ruining his life, phalanx of people in grey, people who that Kant used the word. It may sound and we had not done enough to save him. have no knowledge of or sympathy for old fashioned, but I believe that dignity We, who knew more about these things, the profession, but who are very jealous matters for lawyers. It is like courtesy. A had not gone to help him. of those who do. If there are professional professional group that cannot conduct The lesson is, I suppose, that some problems, they should be dealt with by and itself with dignity and courtesy no longer exercises in self-destruction just take within the profession. One thousand years matters. longer than others – and they are therefore of legal history gives no comfort to those I raise these questions in the temper of so much more painful for others. That who say that change to the profession is the words uttered three lines from the end was, I had hoped, the point of my previous only of use if it is inflicted from above by of King Lear by one of the few survivors note. Whether you elect to kill yourself people who do not know what they are of that disaster in human relations: ‘Speak with a rope or a bottle may itself be the doing and, in the end, do not much care what we feel, not what we ought to say.’ result of an accident of history. one way or the other. Now, I acknowledge that Cordelia got Now, none of this will come as a surprise But while it may be the case that the rudely taken out of play by a silly old king to any member of the Bar, unless perhaps collegiate life and credit of this body are for doing just that, but the whole point of they have led a very sheltered or a very being leached out of it by life-deniers in the play – the whole cause of the tragedy – privileged life. The point of this note is to drab cardigans, this is not in itself a ground is that the king was both silly and nasty to raise for discussion whether we can and for reverting to a time when the whole Bar condemn his daughter for plain speaking. should be doing more to help colleagues at could be found in Selbourne Chambers; Kings, even kings – especially kings – the Bar who are showing signs of distress. when barristers charged in guineas; when can be both silly and nasty. People who do As I have indicated, you can look at it we got notified of the defrocking of a not wish to confront the truth are part of as pastoral care, or risk management, lawyer in a confidential pink slip; when the problem. If we as a professional body but look at it I think you should. At the the Bench was manned from the schools do not learn these lessons, and if we insist moment we are at risk of being compared of the Protestant Ascendancy or the Jesuits; on staying in the moral or intellectual to someone who has been selected to and when the pubs shut at 6 o’clock – as a equivalent of the mindless dreamtime of represent his country in Test cricket but matter of law. commercial television, we are at risk of who claims to be unexaminable about the Members of the Bar may claim immu- being hit by a speeding cement mixer. suggestion that he turns up to every after- nity for their failings in court but the Bar GEOFF GIBSON
VICTORIAN BAR NEWS Autumn 2008 61 Humbugging with the mob
Ashley Halphen spent three months last year working with the Northern Australian Aboriginal Justice Agency. This involved appearing on behalf of clients in the Supreme Court, the Darwin Court of Summary Justice and a number of ‘bush courts’ located in Arnhem Land and other remote parts of the Territory. He gives us a grass roots view on the clash of cultures and highlights the irrelevance, in many ways, of our laws to solving the problems of Australia’s oldest inhabitants.
Not that this story need be long, but it took be celebrating with stubby in hand up ‘one big long time’ to make it short. the street and be committing a summary I left the south many moons ago. From offence just down the road. Clans in four seasons a day to two seasons a year; ceremonial costume eat KFC in the mall; from shopaholics to storm chasers; and nowhere else does the clash of culture from long macchiatos to green cans, align so vividly. Darwin is so much further than a flight The steamy, aromatic Asian-like markets away. of Parap and Nightcliff are the epicentre Summer football and barramundi dom- of weekend social activity. If tropical fruit inate the long hot days. A dry shirt is hard isn’t enough then filleted fish the size of a to find. Cyclones are always a concern – baseball glove or the sizzling charcoaled Helen assaulted the city at a category sensations of skewered meat should satisfy two level one night when people were the most robust of appetites. These crowded going about their Friday night business. markets are the pulse of a community at The biting interest in crocodiles is seen the cusp of realizing the great potential of almost daily on front-page headlines. It is its distinctive Australian signature. said that the terrorist attack on the Twin Lest we forget, the darker side of the Towers managed only a page three cover social landscape. Many people, predomi- on 9/11. nantly Aboriginals, spend their days Third and fourth generation Asians say, watching television, gambling, drinking ‘have a good one,’ with an authenticity and fighting. Mainstream productive that would make Bob Hawke sound like engagement without numeracy or literacy a foreigner. Restricted areas are scattered skills is for some a fantasy. about causing some confusion. You can I have appeared in the architectural
62 VICTORIAN BAR NEWS Autumn 2008 splendors of the Supreme Court; taken it was imposed. One conversation above my ankles. Bush court had even less instructions under the shade of palm trees; many stays with me; it seems to stand for mercy. Instructions were taken on the and assisted many a ‘longrasser’ at the all the Aboriginal submission apparent in run as my wet shirt gripped itself to my Darwin Court of Summary Justice. the face of authority. I told Timmy that he chest. The busy list included gang riots, The city courts are a walking distance, was probably going to jail. I asked him if group bashings, liquor infringements and but the bush courts are not as easily he had any questions. He looked at me and drug trafficking. A five-headed committal, accessible. Oenpelli, for instance, is located asked me if he could have a cigarette. There numerous hearings, pleas and various beyond sealed roads and passed flooded it is; the fetchers fetch and the fetched go other applications passed through the dirt tracks. So remote are some courts, to jail. criminal justice process like a streak of only a chartered flight or a 4WD will get But then came Wadeye. It is one of the speed. you over or through crocodile-infested largest of Australia’s 1200 remote Aborigi- On the chartered plane, I peered out swamps, marshes and waterholes. When I nal communities. It is home to Johnny to find children climbing the nearby trees got out of the paddy wagon in Maningrida, Necktie. Yo! It is a community devoid of and became aware of a degree of cynicism I found myself in Arnhem Land; an oasis minerals, trade or artistic pursuit. A com- I had never before encountered. without postcode. I am grateful to the NT munity bereft of purpose or drive. The Finally there was Nauiye on the Daly police for the escort. heaviest burden is sometimes to have River…just 100 kilometres east of Wadeye. And then there was Nhulunbuy, situated nothing to carry. You see anomie in the A sanctuary of sorts: lush, tranquil, at the north eastern tip of Arnhem Land, excrement, the barbed wire, the graffiti perennial. Crime here is trifling – an utter once considered never-never land until and the aimless wanderings. It’s the reflection of social cohesion. My cynicism the discovery of bauxite. The subject of saddest place I’ve ever been, rather an was shortlived. the nation’s first protracted lands right ex-place. Wherever the venue, I generally dealt
Walkabout is a timeless syndrome. Cigarettes provide one effective means of ensuring clients, field officers and interpreters remain within a shout of the courthouse door.
challenge, it is now a red dusted laden Once there existed many rival clans. with people who signify divine softness yet mining town. Such was the animosity, the missionaries are accused of committing unspeakable The city centre is white; the nearby of the day permitted entry for supplies on acts of brutality. One defendant bit his communities are populated exclusively by a rotational basis only. The missionaries wife’s nose off when she refused him entry Aboriginals. It sounds like segregation, but are long gone and the clans have converged to her house; another defendant is said to is really a mutual convenience. Yirrkala, into one localized area. Today, the Evil have raped his girlfriend with a fishing Ski Beach and East Woodie communities Warriors and the Judas Priests use ancient knife ordinarily used to shell turtles; all lie on a spread of coastline along the clan conflict as an excuse to terrorize each another is alleged to have gutted a bloke Gove Peninsula that would make any other with all the instincts of a ghetto with a broken bottle as if he were a fish; property developer salivate. culture. There is no genuine basis for such and another beat someone to near death Walkabout is a timeless syndrome. Cig- hostility, other than some kind of raison with a steel bar – she awaits sentence. arettes provide one effective means of en- d’être in a place without soul. Allegations of sexual relationships with suring clients, field officers and interpreters Here, I called a donga without any amen- infants are all too frequent. This is the remain within a shout of the courthouse ities home. There was no privacy as people nightmare underbelly of those dysfunc- door. came and went at all hours to accommo- tional communities that have reached their Most Aboriginal clients do not answer date whatever immediate need it was. lowest ebb. bail. We locate clients at their communities Adults marched through and children sat Payback is a vexing issue. According and drive them to court. We pulled Timmy and watched television as they soothed to spiritual belief, every death is caused from his sleep. He was dressing himself as their scabby riddled bodies. by someone and requires recompense by he walked to the car. Timmy had breached a As I prepared my work, sweat dripped strict tradition exacted in the form of a suspended sentence only three weeks after from my brow and insects gnawed away spear thrust into the guilty party’s thigh.
VICTORIAN BAR NEWS Autumn 2008 63 If it doesn’t happen at the time required bend towards fairness. Further down the were very happy and loved their home. it can cause widespread social acrimony. humanitarian track things might be better. Every morning the fish woke up and went So inimical is the process to cohesion, After all, Australia is at an embryonic stage about their work. The mother and father there has been instances where cultural when compared to the timelines of other fish went off hunting for food, working sensitivity has allowed for supervised indigenous societies. hard all day. The young fish went with spearing with medical services and police In the face of adversity with only pen and them, learning everything they could on standby. paper in hand, the people at the Aboriginal from their parents about all aspects of life. Many Aboriginal clients speak little to legal service (NAAJA) have much to be The young ones listened in awe to their no English. The court system, despite best proud about. They are a random group wise counsel. endeavors, makes absolutely no sense. of people who share a common purpose In the evening the fish family came Perhaps this explains why I continued to with huge hearts in the right place. A dear together and shared the different types of scrape sleeping clients, due to appear in colleague of mine has this to share: food they had found during the day and court, from their cell floors. Gratuitous told stories about their activities. The fish concurrence is an occupational hazard. I find the daily occurrence as a NAAJA went to bed early, tired from their day’s Aboriginal people agree with everything. lawyer can often wash over me. Then I work. To obtain instructions or provide simple realize how privileged I am to advocate on The fish all shared responsibility for life advice is just about impossible. behalf of a client whose people, customs in the billabong. They lived well and were Academics assert that those dealing and spirituality are so deep and intricate very happy. They didn’t depend on anyone with Aboriginals should be sensitive to they form part of the world’s most oldest else or leave their work to others. cross-cultural issues and world perspective civilizations. I try hard never to lose sight Then one day at about four o’clock in differences. European concepts do not form of that duty and to execute it in a com- the afternoon, the fish saw a shadow fall
The overall situation is monopolized by frustration and despair for everyone. The legal system dispenses justice in the name of general deterrence to those who do not understand or subscribe to European law. The arc of the universe does not always bend towards fairness.
part of Aboriginal language. Interpreters passionate and sensitive fashion within a across the water. Something stood near only amplify the problems. The few that legal system that fails to accommodate the billabong. The shadow threw some- are available are often not able to assist Aboriginal people. thing white into the water. After a while a due to complex kinship structures linking couple of fish nibbled at it and then again them to either defendant or victim. There lies a checkered but courageous and again until there was none left. All the One by one, witnesses enter the witness history interwoven with the current fish then went back to their hunting and box, barefooted and in awe of their sur- futility of the Aboriginal plight. Alcohol, other work. roundings. Getting to know each and gambling, sexual abuse, domestic violence The shadow came again and again at four every idiosyncrasy, while cross-examining and petrol sniffing are all symptoms of a o’clock each day. Now the fish grabbed the an Aboriginal person, is a tough way to more complex cause, arising from pater- white stuff, trying to eat as much as they become acquainted with a 40,000 year old nalistic government policy. Missionaries, could because it was free for the taking. culture. Aboriginal people do not lie. I am assimilation and self-determination have Slowly the life of the fish started to not used to questioning honest people; failed the people. change. They waited for the shadow to I might just as well have left my armory of A simple story recited by Richard come every afternoon. They stopped hunt- adversarial techniques at home. Trudgen in his book, Why Warriors Lie ing because they didn’t need to anymore. The overall situation is monopolized by Down and Die, eclipses the historical lead The fish found themselves bored at night. frustration and despair for everyone. The up to today’s status quo. It goes something There were no more interesting stories legal system dispenses justice in the name like this: and the fish weren’t tired because they had of general deterrence to those who do not done no work. They stayed up and found understand or subscribe to European law. A long time ago there was a billabong. In other ways to take up their time like drink- The arc of the universe does not always the water lived some fish families. They ing and gambling and things like that.
64 VICTORIAN BAR NEWS Autumn 2008 Trouble began to brew when the fish ness and shame within the fish. They late a solution. I do think that a necessary started to fight over the white stuff. Some didn’t value or think about anything other starting point is for Aboriginals and main- fish got hurt which caused arguments than the white stuff. They lived badly and stream Australians to better understand between families. The old fish became unhappily. Their lives became powerless one another; think of strategies together; very sad because the young fish had no and meaningless. They got sick, had no and teach each other. That age old tool of respect anymore. It was all too hard to peace of mind and felt very insecure communication has a key role to play. deal with and many old fish became so because they did not know what to do During this defining experience, I felt sad they died. or where they belonged. so white, so unqualified, so unprepared to Then the shadow began to change. take on the challenges that confronted me. Sometimes it came later and sometimes it The natural state of Aboriginals as nomadic At the same time, I am proud of the tiny didn’t come at all. This made the fish very hunters and gatherers has been usurped contribution I made. I think of one case angry because they had been waiting all by the rotting grip of welfare – sit down and I revel in my decision to work in this day. They could not hurt the shadow money. What is left is a level of dependency region of the country. With all the obstacles because it was too powerful and lived out- tantamount to a total loss of control. Self- that only a course of history could dictate, side the billabong where no fish had lived esteem is a scarce resource to the mighty my client was acquitted of raping a ‘white and only the shadow knew the source warriors of the past. Many communities girl’. where the white stuff which they had have been struck with a form of societal The sun always shines after a morning come to depend on was from. depression. of fog… There was now a deep feeling of empti- I am not at all suitably placed to postu- ASHLEY HALPHEN
THE ROAD TO (OR FROM) FREEDOM
1 480BC – Greek Fleet defeats Persian Navy at the Battle of Salamis – laying the foundation for western civilisation, individual rights and freedom of the person.
2 1215AD – King John signs Magna Carta at Runnymede. No free man shall be taken or imprisoned or be seized or exiled or in any way destroyed nor will we go upon him nor send upon him except by the lawful judgment of his peers or by the law of the land.
3 1689 – Accession of William and Mary and Passage of the Bill of Rights limiting the powers of the Executive. 4 1943 – Pastor Niemann arrested in Nazi Germany. He survived the war and left us his penetrating analysis of apathy ending with the sentence ‘And then they came for me, and there was no one left to speak for me’.
5 1951 – High Court hands down its decision in the Australian Communist Party v The Commonwealth holding that the Communist Party Dissolution Act 1950 is invalid, because (inter alia) its provisions do not prescribe any rule of conduct or prohibit specific acts or omissions by way of attack or subversion, but deal directly with bodies and persons named and described, the Parliament itself purporting to determine, or empowering the Executive to determine, the very facts upon which the existence of the power depends.
6 2002 – The Commonwealth Parliament introduces new sections 34D to 34F into the Australian Security and Intelligence Act 1979, to permit (limited) detention without charge and placing significant inhibitions on the common law rights of persons detained.
7 2003 – The Victorian Parliament passes the Terrorism (Community Protection) Act 2003 authorising the making of preventative detention orders.
8 2004 – The High Court hands down its decision in Al-Kateb v Godwin, holding by a majority that the Executive may, pursuant to the provisions of the Migration Act 1958 properly detain indefinitely a person whose deportation has been ordered and whose deportation cannot be implemented.
9 2007 – The High Court hands down its decision in Thomas v Mowbray, holding by a majority that the ‘limited view’ of the defence power taken in the Communist Party case ‘is not reflected in the recent discussion in the joint judgment in New South Wales v Commonwealth...’ and indicating that the defence power may properly be used ‘against threats posed internally as well as by invasion from abroad by force of arms’.
VICTORIAN BAR NEWS Autumn 2008 65 A BIT ABOUT WORDS
deadline
he Winter 2007 edition of the Bar alike. After the war, he went to London in Perhaps appropriately, the US Civil War News did not contain a column pursuit of his literary interests and, whilst also produced the word skedaddle (1861) about words. For the first time in spending a late night in Lambeth, he shot a ‘to retreat or retire hastily or precipitately; T14 years I missed the deadline. More in man who (as he imagined) was a Fenian to flee’. Or as we would now say: to cut and despair than anger, I looked up deadline sympathizer out to harm him. In fact, the run. 1861 also saw the first recorded use of in the OED2. In its meaning relevant victim was just an ordinary shift-worker rampage, but in England rather than here: ‘a time by which material has to be on his way home to wife and family. America. Its first recorded use is from ready for inclusion in a particular issue Minor was found not guilty by reason Charles Dickens (Great Expectations). of a publication’, it is first recorded in of insanity and was sent to the newly 1861 was the first year of recorded use of 1920. The Chicago Herald & Examiner opened prison for the criminally insane some other useful words, including: bil- of 2 January that year notes a play called at Broadmoor. Whilst there, he read an lionaire, crappily, deceivability, dodgy, ‘Deadline at Eleven’ which was about to advertisement in the newspaper: one James headlight (on a train), malingering, prole- be produced. Not surprisingly, it was a Murray was calling for readers who could tarianism, and Queenslander (the style of play about a newspaper. Although this contribute examples of the use of various house rather than the type of person). meaning of deadline is so recent, The US Civil War (1861–65) threw it is now the commonest use of up a few other new words: Gatling the word. That is probably a good gun (named for its inventor, Richard thing, because an earlier American J Gatling: it was the first American use of the word was much more weapon of mass destruction), Grey- literal and threatening: during the back (a Confederate soldier), Ironclad American civil war, a deadline was (for the armoured ship), Jay-hawker a line drawn around the bounds of (irregulars around Kansas – freedom a military prison. Any prisoner fighters or guerrillas depending who crossed the deadline was liable on where you stood), moss-back to be shot. In 1868 B J Lossing’s (Southern draft dodgers). History of the Civil War noted that: The US Civil War is reckoned as a ‘Seventeen feet from the inner time when the technology of war stockade was the ‘dead-line’ over briefly outstripped the techniques of which no man could pass and live’. words in writings from the 11th to the 19th medicine. The fatalities from injuries and It is possible, perhaps likely, that this century, to assist his work in compiling a disease were horrific. In a rare display of usage of deadline was a contribution of new dictionary. Minor became a regular American understatement, the war was Colonel WC Minor. Minor had been a contributor. Murray did not know until later referred to as ‘the late unpleasantness’. surgeon in the Union army during the the verge of publication that his frequent A person who was not able to adjust to the American Civil War. He was a schizo- correspondent was in a prison for the changed circumstances after the war was phrenic who developed a paranoid delu- criminally insane. Murray’s work became described by the newly minted adjective sion that Irish patriots were out to get him. famous as the Oxford English Dictionary. unreconstructed: ‘not reconciled to the This view was helped along by the fact Minor was its most prolific contributor. outcome of the American Civil War; hence that he was required to brand Irish desert- WC Minor’s story is marvellously told generally not reconciled or converted to ers: this involved him burning a large D on by Simon Winchester in The Surgeon of the current political orthodoxy’. This the cheek of the deserters, a process which Crowthorn (published in America as The would be reckoned an understatement caused great distress to victim and surgeon Madman and the Professor). when applied to a secret group who were
66 VICTORIAN BAR NEWS Autumn 2008 not prepared to accept the abolition of its earliest received meanings are ‘A yokel, as rebels’. By 1679, according to OED2, it slavery which was the legacy of the civil country bumpkin’ (1645); then by 1657 was applied to the Exclusioners, who war. They took the Greek wordkuklos (cir- ‘An adherent of the Presbyterian cause in opposed the succession of James, Duke of cle) as their name, which they pronounced Scotland in the seventeenth century; York, on the ground of his being a Roman Ku Klux. applied originally to the Covenanters in Catholic. It was the Exclusioners who An earlier war, the English Civil War the West of Scotland who in 1648 wrested branded the wild Irishmen Tories as an (1642–49), gave us Ironsides (Cromwell’s the government from the Royalist party insult, and the exchange of insults between troopers – puritan warriors), red-coats and marched as rebels to Edinburgh’. Later Whigs and Tories continues to the present (parliamentary soldiers, also called round- it was applied to ‘the extreme section of day. heads), and (arguably) tory. Although tory the Covenanting party who were regarded JULIAN BURNSIDE is first recorded in use in 1646, it is not self-evidently a product of the war itself. It is from an Irish agent-noun tóraidhe, – aighe ‘pursuer’. The OED2 gives it as ‘one of the dispossessed Irish, who became out- laws, subsisting by plundering and killing the English settlers and soldiers; a bog- trotter, a rapparee; later, often applied to Farewell any Irish Papist or Royalist in arms’. A rap- paree was an Irish pikeman or irregular soldier (from rapaire the Irish word for a Ross Macaw QC short pike). The use of tory as a generally unfavour- able term for Irish rebels transfered itself Outgoing chair of the Legal Assistance Committee of the Victorian Bar (VBLAC), to those who favoured the idea of James, Ross Macaw QC, was farewelled at a lunch attended by members of the VBLAC and Duke of York (a Roman Catholic) succeed- the Board of the Public Interest Law Clearing House (PILCH) on 31 January 2008. ing to the Crown. In 1740 Roger North The lunch was hosted by David Krasnostein, Chair of the PILCH Board, Head of gave the history of the political use of the Global Equity and Group Corporate Counsel at National Australia Bank Ltd. David term in the Bill of Exclusion. He wrote: thanked Ross for his outstanding contribution to the VBLAC and reflected on the substantial pro bono commitment of the Victorian Bar generally. Newly appointed …led to a common Use of slighting and Chair Alexandra Richards QC, who has served on the VBLAC since 2003, was also opprobrious Words; such as Yorkist. That welcomed to her new role. did not scandalise or reflect enough. … Then, observing that the Duke favoured Irish Men, all his Friends, or those accounted such by appearing against the Exclusion, were straight become Irish, and so wild Irish, thence Bogtrotters, and in the Copia of the factious Language, the Word Tory was entertained, which signi- fied the most despicable Savages among the Wild Irish.
A strange origin indeed for the word that now describes the Conservatives in government. If we are to be true to language, the true Tories in government at present are Senator Heffernan and Wilson Tuckey, with honourable mentions for Tony Abbott and Eric Abetz. Perhaps the rest of them are wild in other ways. If Tory has insulting origins, Whig fares no better. It is thought to be a contraction of whiggamore: ‘One of a body of insur- gents of the West of Scotland who in 1648 marched on Edinburgh, their exped- ition being called the whiggamore raid’. LEFT TO RIGHT Susannah Sage Jacobson (Manager VBLAS), Alexandra Richards QC, Ross Macaw QC, Whether or not that connection is correct, Kristen Hilton (Executive Director PILCH), David Krasnostein (NAB)
VICTORIAN BAR NEWS Autumn 2008 67 Duty Barristers Scheme launch
On 16 November 2007 Chief Magistrate Ian Gray launched the Victorian Bar’s Duty Barristers Scheme. The Scheme has the support of all the heads of the Victorian Courts, including Chief Magistrate, the Chief Judge, the President of the Court of Appeal and the Chief Justices of Victoria.
ustice Maxwell attended the launch hosted by the Chief J Magistrate representing the Chief Justice of Victoria. The Attorney-General and Deputy Premier, the Honourable Robert Hulls, was represented by Mr Brian Tee. The County Court was represented by Judge Chettle. Chief Magistrate Ian Gray has been instrumental in the estab- lishment of the Scheme. He and Will Alstergren have met with the Chairman of the Readers’ Course Committee, Ian Hill QC, on a number of occasions to establish the framework for the Scheme, and have recruited the invaluable support and help of Magistrate Leslie Fleming, not only an esteemed former member of counsel but also a member of the Victorian Bar Readers’ Course Committee. The idea of a duty barristers scheme was put up to the Victorian Bar Council and was well supported. Thanks to General Manager of the Bar, Stephen Hare, a Victoria Law Foundation grant was obtained to fund a co-ordinator for the Scheme. Katie Spencer of the Victorian Bar Office was appointed. Ian Hill QC, Will Alstergren, Chief Magistrate Ian Gray and Magistrate Leslie Fleming had a number of meetings with Tony Parsons and Dominic Conidi of Victorian Legal Aid to ensure a well organized and cohesive partnership was formed. The Duty Barristers Scheme began operation on Monday, 12 November 2007. On that day, the first three duty barristers were all women. Amelia Macknay, Amanda Wynne and Elizabeth Ruddle represented the Bar with distinction on this first occasion, giving advice to witnesses in protection, appearing for co-accused in a drug trial where legal aid had a conflict and attending to an application for variance of bail. Since that time the Victorian Bar Duty Barristers Scheme has enjoyed a great deal of success. It has, during the first two months of its operation, provided six barristers a week to the Melbourne Magistrates’ Court, to appear on a pro bono basis for litigants who otherwise would not be represented.
68 VICTORIAN BAR NEWS Autumn 2008 FIRST DAY OF THE DUTY initiated in the Magistrates’ Court is know their rights and to be advised as BARRISTERS SCHEME almost 140,000. The number of cases final- to their options. It is a strategic benefit to by Amelia Macknay ized by that court is just over 130,000. In each litigant to receive that kind of advice any year there are at least 30,000 pending. early on the proceeding. It may be that, My first day as a duty barrister commenced However, 87.7 percent of criminal cases properly advised, a litigant is better off with assisting two witnesses who had been are finalized within the first six months adjourning the matter in order to seek summonsed to give evidence in a Work- and only 5.5 percent of criminal cases are further advice and/or to seek further Safe prosecution. The matter was quite pending for more than 12 months. During material for, let’s say, a plea. Alternatively, serious and involved a workplace death, that 12 month period the Court of the benefit of getting on-the-spot legal so the other duty barrister and I sought Infringements initiated almost 840,000, advice and representation may be to bring advice from a colleague who had expertise and 2,250, appeals lodged against convic- the matter to an early conclusion. in the area. tion or sentence. Having seen the Duty Barristers Scheme My next task was to speak to the victim As part of the protocols of the Magis- since its inception and speaking to the in a sexual assault matter who was giving trates’ Court Act 1989, Section 1(e) requires Magistrates who have been assisted by the evidence by remote video-link about a matter that occurred some 20 years ago. She needed advice about legal professional privilege in relation to family law proceed- ings that took place in the 70s when she was a teenager and had a children’s lawyer appointed to her. After that another duty barrister and I gave assistance to a self-represented man who was charged with various offences and had previously pleaded guilty to them. He wanted to change his plea to not guilty so we had to seek leave of the court and explain to the Magistrate why the accused wanted his pleas changed. My first day was a fantastic experience and I would recommend volunteering as a duty barrister to any junior member of the Bar. Will Alstergren interviews the Chief Magistrate IMPORTANCE OF THE DUTY BARRISTERS SCHEME the Magistrates’ Court to be managed in a Scheme I am delighted with its progress way that it will ensure: and fully support both its establishment by Chief Magistrate Ian Gray (i) fairness to all parties to court and its on-going existence in this court. Whilst the services of the Victorian proceedings; and I thank the efforts of the Victorian Bar Legal Aid, PILCH and other organization (ii) the prompt resolution of court Council, my fellow magistrates, members have been vital in the administration of proceedings; and of the court and particularly Magistrate justice in Victoria and have done a great (iii) the optional use made of a court’s Lesley Fleming, and the efforts of the job in providing many Victorians with resources. Victorian Bar Council, its chairman and representation that they would not other- It is because of those above protocols the Victorian Bar’s Duty Barristers Scheme wise receive, the Duty Barristers Scheme that the Court saw the establishment of the Committee chaired by Will Alstergren for provides another realm to this service. Duty Barristers Scheme as being vital to their efforts in establishing what I believe Despite the above organizations’ best the administration of justice in Victoria, to be a great scheme for the administration endeavours, there are still unrepresented particularly in the Magistrates’ Court. As of justice in Victoria. litigants attending court on a daily basis. Chief Magistrate, I saw it as beneficial to Those litigants are without resources and litigants who are considering sentencing their cases would, on many occasions, options, to the Court and the Court’s effi- PRO BONO LEGAL SERVICES have to be adjourned in circumstances ciency, having litigants properly represent- by Peter Riordan, Chairman of the where if they were given adequate legal ed in circumstances where they would Victorian Bar advice on the day could have been dis- otherwise not receive legal representation, posed of both to the benefit of the litigant and the litigant benefited from bringing The Victorian bar has for a long period of and of course to the court in its efficiency. forward pleas and crystallising legal issues time accepted responsibility for taking In the last 12 months and the last finan- early. It provides an opportunity for liti- work pro bono publico – for the public cial year, the number of criminal cases gants faced with the contest mention to good. Sir Anthony Mason described this
VICTORIAN BAR NEWS Autumn 2008 69 Listening attentively as rooted in our common humanity and representation. In the last financial year trate, needed advice and support were professional ideal of service to the com- VBLAS has delivered in excess of 11,500 looked after immediately. Victoria Legal munity. For a very long time barristers hours of pro bono work by barristers, Aid was able to refer some people to the have, on an individual case-by-case basis valued, very approximately at $4½million. additional resources of the three barristers often chosen to represent people in courts The Duty Barristers Scheme now pro- on the spot. without fee. vides another challenge. The formal launch In one sexual assault case the Magistrate The Duty Barristers Scheme launched and celebration is this afternoon, but the considered that the complainant, who today is the most recent and perhaps one Scheme began operations on Monday, and was giving evidence by video-link from a of the more significant additions to the was in operation again yesterday. On Mon- remote location, needed advice before she variety of ways in which the Victorian day morning at 9.30am three barristers should continue her testimony. One of the Bar’s commitment, and the commitment came to court with Will Alstergren, who duty barristers was able to give that advice of our members, to pro bono representa- chairs the committee that established the immediately, and the matter was then tion is now available. It does so to ensure scheme: Amelia Macknay, Elizabeth Rud- able to proceed – a benefit not only to the more effective access to justice for more dle and Amanda Wynne. The three duty individual witness, but also to the smooth Victorians. barristers announced their appearance to running of the business of the court in a Individual barristers still choose to the court and were very soon assigned to case with significant logistical difficulties. act without fee in individual cases. That advise and appear. All three barristers had In another case, Victoria Legal Aid is largely invisible because it is done experience as solicitors before coming represented one accused, and the addi- quietly and without fanfare, but it is still to the Bar. Amelia Macknay had, as an em- tional resources of the two duty barristers a major contribution to access to justice ployee solicitor, been seconded by Blake provided representation for each of the in Victoria. Dawson Waldron and worked for six two co-accused. For more than ten years, the Victorian months in a community legal centre, the We achieved a degree of gender-balance Bar Legal Assistance Scheme has offered Young People’s Legal Rights Centre, doing in yesterday’s duty barristers: two men, free representation in an organized way. appearance work as well as advising and Douglas Shirrefs and Adam Segal, and one Since 2000, VBLAS has been administered policy work. Elizabeth Ruddle had worked woman, Andrea Lawrence. by PILCH. PILCH has grown and devel- at Holding Redlich. Amanda Wynne had Victoria Legal Aid has, of course, been oped into a one-stop shop for pro bono practised on her own account for six years, providing duty solicitors in the Magis- legal assistance through the professional working primarily in the areas of family trates’ Court for many years. That Scheme associations and now administers both law, family violence, child abuse and crime. is well-established and working well. The the Victorian Bar and the Victorian Law They had literally hit the ground running Duty Barristers Scheme began only on Institute Schemes. PILCH is openly acces- and were all fully engaged for the day. Monday, and is in its initial three months’ sible to all and provides a framework for The Scheme we launched today has pilot stage. the fair, equitable and systematic channel- already proved its value. Unrepresented Will Alstergren and his committee will ling of pro bono assistance, advice and people who, in the opinion of the Magis- work to consolidate, develop and refine it.
70 VICTORIAN BAR NEWS Autumn 2008 Will Alstergren, Magistrate Lesley Flemming, Chief Magistrate Ian Gray, Paul Elliott QC
about pro bono representation, one told to me by Judge Tony Howard. This was in the 1960s; Tony Howard looks young and dashing, but he knows stories from long ago. Three silks and four juniors finished a case on circuit in Geelong early. It had been expected to go for a week. They finished it in two days. The weather was glorious. They decided to go to Lorne for dinner to celebrate. The next morning, they dropped into the Lorne Magistrates’ Court just to have a look. Perhaps out of fellow feeling, after their own slap-up dinner the previous evening, they decided to offer pro bono representa- tion to an old lag charged with drunk and disorderly. A local solicitor was prepared to give them a backsheet, and communi- cated the offer to the old lag. Then seven suited samurai took their places at the small Bar table. The case was called. ‘May it please your Worship, I appear with my learned friends Mr Silk, Mr Silk, Mr Junior, Mr Junior and Mr Junior on behalf of the defendant. The local prosecuting sergeant of police all but fainted, and asked for the matter to be stood down. The Magistrate adjourned the court, and the prosecutor was seen going to the Magis- trates’ chambers. Upon the matter being called again, Peter Riordan QC Chief Magistrate Ian Gray the prosecutor advised the court that he would not be leading any evidence. The charge was dismissed to the bewilderment If its first two days of operation are any committee have made his idea and vision a of the old lag who was still decidedly worse indication, and I think they are, this will be reality. for wear. a valuable and significant addition that I thank them. I thank the 100 barrister Our duty barristers aren’t silks. They are, will serve Victorian and the administra- volunteers already committed to work in however, well qualified and experienced. tion of justice in Victoria courts well, the Scheme. I thank the members and staff Most, if not all, have experience as solici- complementing the excellent work already of the court who have worked with us. tors and have done appearance work. All done by Victoria Legal Aid. I also thank the Victoria Law Founda- have committed themselves to work as Extension to the County and Supreme tion, which made a grant to help fund barristers, and have completed the three- courts is in mind, and in the planning. I a co-ordinator for the Scheme. I also month intensive Bar Readers’ Course. hope it will not be too long before we are welcome Tarni Perkel and Lois Erickson All are committed to the Scheme, and to able to make a start in those courts. With, who are here representing the Foundation. serving people and the court. in particular, the encouragement and I also thank Tony Parsons, the Managing Your Honours, fellow members of the support of the Chief Magistrate, of Magis- Director of Victoria Legal Aid, for his Bar, ladies and gentlemen, I thank you all trate Leslie Fleming, who is a member of cooperation. for your attendance today at the launch of his committee, Will Alstergren and his Let me close with my favourite story the Duty Barristers Scheme.
VICTORIAN BAR NEWS Autumn 2008 71 The new silks announce their appearance in the Banco Court. NEW SILKS CEREMONIES
A full bench of Federal Court Justices receive the appearances of the new silks.
The new silks on the steps of the Supreme Court. BACK ROW: Gavin Silbert SC, The new silks – with Chairman of the Bar Council, Peter Riordan SC John Philbrick SC, John Dixon SC, David Brookes SC, Nicholas Robinson SC, Mark in the Federal Court. Moshinsky SC. MIDDLE ROW: Stephen McLeish SC, Peter Cawthorn SC, Jeffrey Gleeson SC, Ian Mawson SC. FRONT ROW: Ian Waller SC, Dr Ian Freckelton SC, Kerri Judd SC, Dr Karin Emerton SC.
72 VICTORIAN BAR NEWS Autumn 2008 Women at Th e Bar
Speech Night Celebrations, Report Cards and Doing Better Next Year
millennia. Tonight we celebrate that we can Julia Gillard, the fi rst Australian woman walk together into a shared future. to hold that role and a lawyer, graciously Refl ections on the past oft en provide and authoritatively spoke, despite political reasons for celebration, especially for diff erences, about former Prime Minister women barristers and judges. Remember Howard’s important contribution over 30 Address by the Honourable that in ancient Athens, widely considered years to Australian public life, praising his the birthplace of modern justice and leadership on limiting gun ownership and Justice Margaret McMurdo AC, democracy, women could litigate only its positive community eff ect. We should through guardians.1 Th e past provides celebrate tonight our good fortune to be President of the Court of Appeal, plenty of reasons for men barristers to cel- born Australians, not because of the ebrate the present, too. Remember that change of government, but because of our Queensland, to the Women until Pope Innocent III abandoned the fi ne electoral system and democratic insti- Barristers Association annual practice in 1215, trial was not by judge or tutions which eff ected that change so jury but by combat. English barrister, seamlessly. Celebratory Dinner, Thursday 29 Sadakat Kadri, explains in his fascinating An integral element of those democratic book, Th e Trial: institutions is that Australian citizens and, November 2007, The Essoign for the most part non-citizens, are subject Th e ritual required plaintiff and defendant to the rule of law, upheld by an independ- Club, Owen Dixon Chambers to prove that [God] would take their side ent legal profession and independent East. in a fi ght, and aft er weapons were blessed courts. For the last 100 years or so non- – to neutralize blade-blunting spells and Indigenous Australian women have had, the like – victory would go to whoever like non-Indigenous men, the right to vote reduced the other to submission or death. and to stand for election. Similar rights for Th ere were subtle variations. Women, Indigenous Australians have been a more hief Justice, the Honourable Mari- priests, and cripples generally had to hire recent development. For about the same lyn Warren AC and Mr Mick Hea- professional fi ghters. German jurisdic- period, women have also had the right to ley, Chief Judge Michael Rozenes, tions oft en found other ways to level the be part of the independent legal profession CChairman of the Bar Council, Mr Peter odds: a man might be buried waist-deep and to contribute the female jurispruden- Riordan SC, Convenor of the Women Bar- and armed with a mace, for example, and tial perspective to our democratic society. risters Association, Ms Caroline Kirton, his female opponent allowed to roam free More recently, women have been appoint- distinguished members of the legal profes- but given only a rock in a sack in which to ed in numbers to the judiciary. Th is has sion and guests. avenge her armed but handicapped male enriched not just the women in our com- How delightful to be with you at this opponent.2 munity but the community as a whole and Women Barristers Association (‘WBA’) the democracy in which it operates. Celebratory Dinner. We all, men as well as Tales like these make us grateful we We all, men and women, have good women, have a lot to celebrate tonight. live in 2007 Australia, not 1207 Germany. reason to celebrate that here in Victoria We meet on the traditional lands of Th ere is no longer trial by ordeal despite the legal profession is led by Chief Justice the Wurundjeri and Boonwurrung people the claims of some barristers about the Marilyn Warren. As Chief Justice and a of the Kulin, who for thousands of years behaviour of some judges. former barrister, she enthusiastically before British settlement, lived in this Last Saturday we exercised our demo- supports the WBA and its purposes. Th at place of plenty, holding celebratory feasts cratic vote in a federal election. Both past is not through some egotistical sense of not so very diff erent from this. We are and future Prime Ministers spoke courte- wanting to see her clones succeed in the enriched by their ancient culture which ously about the other in election night profession she loves. It is because she, like, they generously share with us and by their concession and acceptance speeches. Th e I am sure, Chief Judge Rozenes, the Chair- wise stewardship of this land over the newly elected Deputy Prime Minister, man of the Bar, Mr Peter Riordan SC, and
VICTORIAN BAR NEWS Autumn 2008 73 Judge Felicity Hampel QC, Magistrate Rosemary Carlin, Judge Irene Lawson and Michelle Williams SC
me, she wants the best for the courts, the by which to measure progress, or the lack of two school-age children. Even by Victorian legal profession and the community. A Bar it. They help establish to sceptics the need standards we are not doing too badly! where women barristers apprehend they for positive change. They provide a catalyst And then there’s the Queensland Bar. In belong and where they know their contri- for a conversation about developing strate- 2004–20054 there were 577 junior mem- bution is valued, allows them to give of gies to bring about change. They are an bers of the Bar, of whom 85 (14.7%) were their best intellectually and for the long anchor point against which to measure the women, and 71 silks of whom one or 1.4% term, to the benefit of the legal profession value of remedial strategies undertaken. was a woman. That’s what I call a super and the community. In Queensland, we do not have a woman woman! Overall 13.4% of the Queensland In an address in May last year, Justice Chief Justice. But we do have Premier Anna Bar were women. Presently, it has 899 Ruth McColl AO expressed cautious sup- Bligh and Governor, Ms Quentin Bryce members, 808 juniors of whom 145 port for a formal and thorough examina- AC, a great supporter of and advocate for (17.9%) are women and 91 silks, four tion of the process of judicial appointments women in the law. And this year, my old (4.4%) of whom are women. That means in Australia as a means of addressing the friend, Queensland Federal Court Justice that currently, the Queensland Bar is com- under-representation of women and other Susan Kiefel, joined Victoria’s Justice Susan prised of 16.6% women. In four years there non-traditional groups in the law. Her Crennan on the High Court of Australia. has been some, albeit slow, progress: 16.6% Honour observed that she did not want Thirty-three per cent of my wonderful up from 13.4%. Why, at this rate it will take her address to become ‘yet another recita- Supreme Court colleagues are women. only another three decades to reach rough- tion of indigestible and depressing statis- Eighteen point four per cent of District ly equal numbers of men and women at tics contrasting the number of women Court judges, including Chief Judge Patsy the Bar in Queensland. Reason to cele- graduating from law school with outstand- Wolfe, and 31% of magistrates, including brate? Well, I wouldn’t bring out the vin- ing academic qualifications with the former Chief Magistrate Di Fingleton, are tage French! number of women in the profession, let women. Leanne Clare SC is the Queensland But wait: there’s more! This year, there alone on the bench. …[We]…could recite Director of Public Prosecutions. The were no (that’s right, zero) women appli- these statistics in our sleep.’3 President of the Queensland Law Society cants for silk in Queensland. The Bar Whilst I empathize with those observa- is Ms Megan Mahon, a thirty-something Association of Queensland (‘BAQ’) consti- tions, statistics do provide some yardstick lawyer from country Toowoomba with tution requires that two of its Council
74 VICTORIAN BAR NEWS Autumn 2008 TOP LEFT Judge Susan Cohen with Justice Kevin Bell ABOVE Judge Tony Howard QC with Solicitor-General Pamela Tait SC LEFT Kerri Judd SC, Chief Judge Michael Rozenes QC, Judge Irene Lawson, Magistrate Rosemary Carlin
status of women at the Victorian Bar by Hunter and McKelvie:5 even when barriers to entry to the Bar for women are absent, solicitors’ briefing practices themselves present a variety of barriers to women’s advancement.6 Professor Rosemary Hunter explains: members must be women, two must be were by women barristers. That is a more Women barristers, like women lawyers silks, two must be regional members, two than 13% decrease in appearances by everywhere and in all branches of the must be members of between three and women barristers in Queensland’s highest profession, tend to find themselves in the ten years’ standing and one must be a court over the last four years. Nothing to less prestigious and less remunerative member of less than three years’ standing. celebrate here. courts, practice areas and cases (Schulz This year 40 barristers stood for election; One reason for this regression may and Shaw, 20037).8 six or 15% of the candidates were women. well be that the small number of senior Only two of the six were elected to the women at the Queensland Bar is regularly In 2004, the Law Council of Australia, Council, representing 11.8% of Council depleted through judicial appointments. recognising that this is a general pro- membership, an even smaller proportion Because they are so few, the depletion fessional problem, not a women’s issue, than the already small proportion of is proportionately high. But this is not a sought to address it through its Equal women at the Bar. Since I have been Presi- complete answer. There are simply too Opportunity Briefing Policy.9 The policy dent, the Queensland Court of Appeal few women at all levels of the Bar. For has been adopted by the Bar Association of keeps records of the percentage of women those of us old enough to remember TV’s Queensland, together with a commendable in the total number of appearances by first popular scientist, Professor Sumner- 20 point policy on equal opportunities barristers. In 2004 a little over 16% of Miller, I ask: why is this so? for women. It has also been adopted in appearances were by women barristers. Unquestionably, a major reason is that Queensland by government, by many legal This year, less than 3% of total appearances recognized in the seminal study of the firms and by government agencies. It does
VICTORIAN BAR NEWS Autumn 2008 75 not require women to be briefed but that participants consider briefing women and regularly report on their efforts. Professor Hunter notes that such model briefing policies remain tentative and incomplete.10 Anecdotally, reports to me from women at the Queensland Bar are that its widespread adoption has made little impact on the quality and quantity of work received. Too often, solicitors’ firms pay no more than lip service to the policy, simply to claim compliance. Professor Hunter argues that model briefing policies do not deal directly with homo-sociality (the way in which men network, socialise and feel most comfortable with male peers). She contends that this is a significant contributor to women not being briefed in proportion to their numbers at the Bar, particularly as male solicitors in private law firms remain the greatest source of Caroline Kirton, president and convenor of the WBA, addresses the dinner guests work for barristers. This, she contends, is the hardest factor to describe and to address. But she tentatively notes a cause for modest celebration: younger male as Joan Rosanove, who was admitted to Victoria University study of why bar- solicitors do not seem to exhibit the same the Bar here in 1923. I was inspired by her risters leave the Bar. The WBA has, over gender biases as their older colleagues.11 biography when I was a young lawyer. By many years now, nurtured and supported Like Professor Hunter, I am optimistic contrast, the first woman to practise at the women barristers and those who think about our young men lawyers. Queensland Bar, Naida Haxton, was not they may like to be. We rightly celebrate In a recent survey of Queensland wom- admitted until 1966. the work of WBA tonight. en barristers, the number one response as An even more significant factor behind Durham University’s Erika Rackley in a to why the proportion of women at the Bar the Victorian Bar’s leadership in providing recent article14 gives us cause for celebra- remained low was ‘children or family a woman-friendly environment, at least tion. She first asks: responsibilities’.12 In one sense this is sur- comparatively, was the Hunter and Mc- prising. Once a barrister’s practice is estab- Kelvie report.13 The report’s credibility and Did you hear about the Law Faculty who lished, the Bar offers a degree of flexibility, effectiveness was enhanced by the support refused a woman’s application to become a albeit tempered by unpredictability, well given to it by Justice Stephen Charles, then student because her presence would ‘dis- beyond that available to an employee. It is of the Victorian Court of Appeal. Justice tract the attention of the young men’? Or important that we show women law stu- Charles recognized that strong representa- about the attempt to challenge a planning dents and young women lawyers that the tion of women at the Victorian Bar was tribunal’s decision on the grounds that the Bar is also a woman’s place offering her a important for the strength and credibility tribunal was pregnant? …Surely you must challenging, exciting and in every sense of the profession generally and ultimately have heard about the US law student grad- rewarding life-long career. the community’s confidence in it. uated third in her class and was offered a I emphasize that solving the problem A third reason why the Victorian Bar is job in a top US law firm – as a legal secre- of low female membership of the Bar is seen as relatively woman-friendly is the tary? …What about the stories about the not a woman’s issue. Good-hearted, right- work of the WBA. This year’s activities justice minister who tried to introduce thinking men within the legal profession have included support of women in Timor quotas in order to ensure a gender balance and in the wider community, and there Leste; awareness-raising of the evil traf- within his judiciary because there were are a lot of them, want the issue resolved ficking of South-East Asian women and simply too many female judges? …Or and to be part of the solution. There is no girls into Australian prostitution; forging about the chief magistrate whose manage- easy or quick fix in making the Bar a place links with Melbourne women law students; ment style landed her in jail?15 Did you for women as well as men, and not just the seminars on general CLE and gender hear about the judge, who, on her appoint- pioneering minority of women who have issues, especially those affecting women ment to the bench, received the traditional so far done the trail-blazing. barristers; the oral history project of past honorary membership of the Tattersall’s The Victorian Bar has undoubtedly led convenors and the related soon-to-be- Club, Australia’s self-proclaimed premier the way in Australia in making women released e-film; the touring exhibition, private members’ club, only to find this more welcome. Perhaps this was because ‘Women Barristers in Victoria, Then and hastily withdrawn once they realized she of the early contribution of women such Now’; and the industry partnership with was a woman?16
76 VICTORIAN BAR NEWS Autumn 2008 Rackley, like most of us, prefers happy barristers undermines the effectiveness 7 Schultz, U & Shaw, G (Eds) Women in the endings, new beginnings and reasons for of an independent legal profession in a World’s Legal Professions, Oxford, Hart celebration. She concludes with: democracy, and community confidence Publishing, London, 2003, pp.103–121. in it, so that ultimately it is a community 8 Rosemary Hunter, ‘Discrimination Against Remember Belva Lockwood – the student concern. That is why the legislature is so Women Barristers: Evidence from a Study of Court Appearances and Briefing Prac- refused entry to the University of Colum- eager to ensure that women play their tices’, International Journal of the Legal Pro- bia’s law faculty because her presence appropriate role in the third arm of fession, Vol 12, No 1, March 2005, Griffith would distract the attention of young men government, the judiciary. That is also Law School, Griffith University, Australia, – she went on to become the first woman why leading male jurists, including Justice p. 3. to be admitted to practise before the US Michael McHugh18 and Justice Michael 9 Law Council of Australia, ‘Model Equal Supreme Court. And the top ranking stu- Kirby,19 have often addressed the issue Opportunity Briefing Policy for Female dent offered the job of legal secretary, that when speaking extra-curially. Barristers and Advocates’, Equal Opportu- was Sandra Day O’Connor, the first female My cursory report card of women nity, Law Council of Australia, Canberra, judge to sit on the US Supreme Court. You at the Bar in Queensland is broadly 20 March, 2004, can’t have forgotten about the female judge representative of the position throughout 10 Rosemary Hunter, ‘Discrimination Against asked to leave the room after dinner so Australia. Thanks to WBA and the Hunter- Women Barristers: Evidence from a Study of Court Appearances and Briefing Prac- that her male colleagues could enjoy their McKelvie report, the position is a little tices’, International Journal of the Legal port and cigars in peace – that was Brenda better here in Victoria. But all of us, men Profession, Vol 12, No 1, March 2005, Hale, and she refused to go. How about and women, recognize that we have plenty Griffith Law School, Griffith University, the… attempt… to disqualify a… female of work ahead to improve our profession Australia. judge… because [she was] pregnant… and our society by ensuring that women 11 Above, pp. 43–44. well, [it]… eventually failed as did the can and do participate equally at the Bar. 12 ‘Summary of Responses by Women Barris- attempt to introduce quotas to redress I congratulate the WBA on its stewardship ters and Judicial Officers to BAQ Question- the feminisation of the French judiciary. in this area to date and encourage it in naire, August 2006’, Bar Association Incidentally, Diane Fingleton has returned its efforts in 2008 and beyond. I remind Queensland, August 2006. to the legal profession as a magistrate the male leaders of the profession, those 13 R Hunter and H McKelvie, ‘Equality of in Caloundra, Queensland. … Finally, present and more especially those that Opportunity for Women at the Victorian Bar: A Report to the Victorian Bar Council’, remember Tattersall’s, the male members- are not, that this is not a women’s issue. (1998), Victorian Bar Council, Melbourne. only club who withdraw their invitation to The under-representation of women at 14 Erika Rackley, ‘Judicial Diversity, the a newly appointed judge on learning her the Bar diminishes the whole profession Woman Judge and Fairy Tale Endings’, 17 sex…well, some things never change. and the community it serves. I have an Legal Studies, Vol 27 No 1, March 2007 invitation for the men of the Australian pp. 74–94. Groucho Marx said two very funny legal profession. I invite you all to join 15 Above, pp. 74–75. things about clubs. One was, ‘I don’t care Justice Michael Kirby, and former justices 16 Above, p. 67. to belong to a club that accepts people Michael McHugh and Stephen Charles, 17 Above, pp. 91–92. like me as members.’ But perhaps more and to be part of the solution. 18 The Honourable Michael McHugh AC, apposite to the Tattersall’s story is, ‘I have a Speech delivered at a dinner to mark the mind to join a club and beat you over the occasion of the presentation of Senior Counsel at the High Court in Canberra in head with it.’ ENDNOTES January 2005, Provided by Mr Dan O’Connor, Rackley’s stories, and many of us here Chief Executive, Bar Association of Queens- have our own as good or better, remind 1 Kadri, Sadakat, The Trial, A History from land, 2005; The Honourable Michael us of how far the position of women, Socrates to OJ Simpson, Harper Perennial, McHugh AC, ‘Women Justices for the High especially the position of women lawyers London, 2006, p. 6. Court’, High Court Dinner Speech, Western and judges has improved in recent years 2 Above, pp. 27–28. Aust-ralia Law Society, 27 October 2004. and how much we, both men and women, 3 Justice Ruth McColl AO, ‘Women in the 19 The Honourable Justice Michael Kirby AC have cause to celebrate this tonight. Law’, Bar News, Winter, 2006, p. 38. CMG, ‘Women in Law – Doldrums or We are all grateful our society has 4 Figures provided by the Queensland Bar Progress?’, Women Lawyers of Western positively evolved since ancient Athens Association. Australia, Perth, 22 October 2003; The when women could litigate only through 5 R Hunter and H McKelvie, ‘Equality of Honourable Justice Michael Kirby AC CMG, ‘Women Lawyers – Making a Differ- guardians and from medieval Europe’s Opportunity for Women at the Victorian Bar: A Report to the Victorian Bar Council’, ence’, (1998) 10, Australian Feminist Law trial by combat. I guess I’ll just never know Journal, 125; The Honourable Justice how I would have gone with my rock in (1998), Victorian Bar Council, Melbourne. 6 Rosemary Hunter, ‘Discrimination Against Michael Kirby AC CMG, ‘Women in the the sack against David Jackson QC, buried Women Barristers: Evidence from a Study law – What next?’ (2002) 16, Australian waist-deep and armed with a mace. The of Court Appearances and Briefing Prac- Feminist Law Journal, 148. full participation of women in an effective tices’, International Journal of the Legal Pro- independent legal profession is to the fession, Vol 12, No 1, March 2005, Griffith benefit not only of women and girls but Law School, Griffith University, Australia, also of men and boys. A dearth of women pp. 5–7.
VICTORIAN BAR NEWS Autumn 2008 77 Raising the Bar
Victorian barristers Helen Rofe, Ian Horak, Lisa Di Farari, Elizabeth Brophy and coach Will Alstergren attended the ABA advocacy conference.
n the last week of the January vacation accommodation in the building next door. they could improve. Barristers were also 42 of Australia’s keenest and brightest After the initial coaches’ meeting, the treated to significant professional help young barristers attended the second first day of the course was taken up with from voice and stance coaches. IAustralian Bar Association Residential coaches working together to develop and The next exercise to be done during the Advocacy Course held at Macquarie practise the teaching methodology to be week was leading evidence-in-chief. The University in Sydney. The course was the utilized, and discuss the course materials. interesting thing about this exercise was initiative of Justice Glenn Martin with the The days were long, commencing at that so many barristers had had experi- help of Phil Greenwood SC. The aim was 8.30am and concluding at 6.00pm with ence in cross-examination but, because to provide advocates who had already coaches and barristers joining together for many had been part of the commercial established careers at their respective Bars lunch and in the evening for drinks and bar, which increasingly uses witness with the opportunity of a week’s intensive dinner. statements, many barristers had not had workshop, honing and tweaking their Almost all the barristers and coaches had the opportunity to lead evidence from a skills as advocates whilst at the same time an opportunity to work together, and the witness. The first morning was littered being part of great network of barristers high ratio of coaches to barristers made with leading questions and interjections around Australia. possible some of the unique features of to the Bench. However, by the time that The materials for the course were based the course, which were the repetition of part of the course was over each barrister on an English restraint of trade/breach critiqued performances by barristers and was able to hone their skills and establish of duty case. Each barrister was required lengthy one-on-one assessment demonstra- a deep understanding of evidence-in-chief. to spend at least four to five days prepar- tions by coaches as well as video reviews. Ian Temby QC showed all the grace and ing. The week began with the coaches Each of the exercises to be conducted charm of the direct advocacy approach to gathering at Phil Greenwood’s house in each day was demonstrated by a coach, evidence-in-chief in demonstration. He Sydney, followed on the Monday morning and then the barristers were split up into looked at his witness with the steely gaze, by a coaches’ workshop going through the groups and each group was assigned a court and then said, ‘Now, Witness, it is being exercises to be conducted for the following room. Each barrister had an opponent and put in the Statement of Claim against week. appeared before one of the coaches sitting you that you breached your employment Phil Greenwood SC and Edwin Glasgow as judge. There would be joint session and contract and divulged information to QC led an impressive team of coaches that then, not unlike our own Victorian Bar your future employer. What do you say?’ included former Commonwealth DPP Ian Readers’ Course, each barrister was then (again spoken in a firm and unequivocal Temby QC, Justice Glen Martin SC, ABA taken into a breakout room for individual manner). The witness replied somewhat President Stephen Eskcourt QC, David coaching on his or her style based on nervously, ‘I didn’t …’ ‘Thank you,’ replied Boddice SC, Gail Archer SC, Julia Baird, the performance that was being recorded Temby, ‘I have no further questions’. Ken Martin QC, Paul Menzies QC, Ian by video. When it came to cross-examination, the Robertson, Chris Shanahan SC, Patrick The importance of videoing perform- true characters of many barristers stood O’Neal, Bob Wensley QC and Victorian ances is paramount to this kind of exercise. out. Like many other things in the law, Will Alstergren. Perhaps the best critic of any barrister’s some barristers’ performances were short The course was conducted using a performance is the barrister him or her- and concise, others long and probative and number of lecture and seminar meeting self who is able to pick up on the manner- others simply aggressive. rooms at the Macquarie University with ism, an error, voice difficulty or stance Ian Glasgow QC said, when introducing
78 VICTORIAN BAR NEWS Autumn 2008 cross-examination: ‘Don’t be like Christo- Structure in advocacy particularly in whether I had bitten off more than I could pher Columbus and the early explorers cross-examination was of vital importance, chew, and in January, lying on the beach I when cross-examining. When they set off something I wished to display to the class. considered the idea of taking a week out they didn’t know where they were going, That morning after a light breakfast, heart of my holidays was not a good idea at all. when they got somewhere they didn’t palpitations and still experiencing slight However, after I arrived and saw the pro- know where they were, and when they perspiration for someone who expended fessionalism of the coaches and the level finished they didn’t know where they had more physical effort than was perhaps of teaching provided I knew I had made been.’ advisable, I judged a moot class. The vari- the right decision. This week has been fan- According to Phil Greenwood SC, who ety of cross-examination was startling, and tastic for all of us.’ runs the advocacy course in New South most were effective. It was gratifying to see Another barrister who specializes in Wales, control is essential to cross-exami- the coaching tips demonstrated the night commercial law said, ‘It was a great oppor- nation and thus keeping a witness guess- before being put into play by eager barris- tunity to improve one’s skills, particularly ing but also bringing the judge along with ters, despite the efforts of their class-mates in leading evidence-in-chief. I have a your case. I want a performance for the sitting as witnesses to try and get out of successful practice in commercial law but judge which is seamless, so that means I difficult questions. I am delighted to say court work has become less and less have to plan it so there are not going to be hiccups along the way that I can’t control. As you rise to your feet the witness is look- ing at you, watching and wondering what the hell is about to happen? You don’t want to disappoint them.’ Advocates were taught during the course that cross-examination was more about being a minimalist and creating a conver- sational style of communication between the witness and the judge. It is not a platform for the barristers to shine or pick argument or be obstructive. In cross- examination it is about coaxing the wit- ness to self-condemn with their own words and prove your client’s case, by asking short, direct and innocuous questions that lead them to a point from which they are unable to retreat, i.e. shutting the gate. After a relatively sleepless night consid- ering the devilishly clever points of cross- examination I was about to deliver in demonstration to be called upon the next day I was awoken at 5.45am by the rum- bling next door. It appeared that as the sun At the conference welcome was coming up over the green fields of Macquarie University, and the birds were waking, Ian Temby QC was intent on conducting the morning ritual, Temby’s that I only had to find one witness in con- frequent. To have a week on my feet being torture. Proving that his agility was not tempt of court for his actions and for the critiqued was invaluable’. just a rumour spread by junior advocates, most part witnesses were well handled and It is sometimes said that barristers are Temby led us up the hills towards the in some places discredited. born to the job, but in reality most learn hockey field where 20 or so participants Re-examination was again demon- their skills by in-depth preparation and were made to bend, twist and contort strated to the barristers, however, in the advocacy training. Once they leave the themselves in an effort to become more words of Stephen Escort QC, ‘If you have doors of readers’ courses many barristers flexible, all to the eloquent tones of Ian to re-examine you have probably lost the are left to their own devices. However, Temby’s vigorous instructions. I wasn’t case anyway.’ the Australian Bar Association provides sure whether it was the endorphins being That night one of the barristers said, opportunity for barristers to raise the raised by Temby’s activities or some of the inter alia, ‘When I first decided to put my bar again and improve their skills and clarity of the coaching had suddenly sunk name up for this course in October last receive invaluable help and experience in in but during my attempts to put my leg year it sounded like a good idea. As it got a sometimes punishing week before the behind my head a vital point in cross- to November I became increasingly enthu- start of the legal year. examination came to me. siastic. By December I was concerned We invest so much time and effort into
VICTORIAN BAR NEWS Autumn 2008 79 our practices, the very thing we desire to be good at is often left untested. To be able to have some of Australia’s best senior advocates and judges critique and have professional speech coaches provide assistance on voice projection and stance proved to be invaluable for the 42 young barristers who attended. The WA Bar Association’s president, Ken Martin QC, in an article in the WA Law Journal, said, ‘There are strong analogies between the role of the trial barrister and that of a stage actor. Both perform on the public stage. Both run on adrenalin. The performances are minutely and publicly scrutinized.’ However, unlike the actor who appears in the same play throughout the long session night after night, matinee after matinee, the barrister really only gets one performance and has to get it right. Ken Martin when on to say, ‘You ABOVE Edwin Glasgow QC and have to pick a style that is right for you… Phil Greenwood SC You have a former High Court judge, LEFT Lisa de Ferrari Michael McKew, who is tall imperious and BELOW Elizabeth Brophy (speaking) powerful; it is part of his physique. Or a Federal Court judge, Ray Finkelstein, who is a little bull terrier, who just went for the throat. Since I am small, I decided I would have to rely upon my charm.’ However, as I was to discover over the week the key attribute required is control. Whilst it is a performance it is a highly disciplined controlled one. In the same article Ken Martin said, ‘In the good old days you were in court every day. You went on to the Magistrates’ court, you did a bit of motor accidents, a bit of crime and you were beaten over the head by magistrates. They taught you the rules of evidence and procedure by simply bashing you. This has now stopped and in my view it is never going to come back.’ The ABA advocacy course reinforced three things. First, the value of preparation; second, the value of a clear understanding of your case; and third, how very lucky we are to be in such a great profession that allows the camaraderie and friendship it does. On the final night the coaches and barristers assembled at the Terry Hills Golf Course and were addressed by the guest of honour, the Chief Justice of the High Court, Sir Murray Gleeson. In Australia, advocacy training courses are becoming a key part of the readers’ course. The Victorian Bar is leading the way in this and has for many years. Many
80 VICTORIAN BAR NEWS Autumn 2008 Will Alstergren
Helen Rofe Stephen Eskcourt QC
of the coaches who attended the course However, such feelings quickly evapo- There was also the added bonus of meet- had been taught themselves by Professor rated once the course began and I found ing colleagues of similar seniority from George Hampel QC. myself in the midst of a challenging, but other bars around Australia and getting to The ability to be able to be critiqued and rewarding week wherein I had little time know them well through working in small sharpen one’s skills in the week prior to to think of anything but the cross-exami- groups and watching each other’s per- the opening of the legal year is perhaps the nation of the next witness. Each perform- formances, both good and bad. best preparation any barrister could have. ance was followed by the ‘fun’ of watching A huge thanks must go to the highly You come out of the gate full gallop after a each performance on video with a coach respected group of senior practitioners long and well deserved holiday.’ reviewing both content and presentation. who also gave up their vacation time to act Melbourne barrister, Helen Rofe attend- The course provided a unique forum as coaches on the course. ed the course and said: to practice court skills, and to try new approaches without detrimental effect to Trial preparation, cross-examination, ex- a client’s case. As hideous as I found the The next course will be held in Sydney amination in chief, case concept analysis video watching experience, it did enable in July 2008 and is highly recommended. If – hardly the way to spend the precious me to see improvement over the week, interested please contact Phil Greenwood summer vacation time. Such feelings and also to see how others would see me SC on
VICTORIAN BAR NEWS Autumn 2008 81 Restorative justice
Bringing justice and community together
Victim offender mediation and confer- ender and victim, but also their family an Association for Restorative Justice encing programs have emerged over the members and community representa- (VARJ) on Wednesday 14 May 2007. past 25 years as a dynamic alternative to tives. The Deputy Premier and Attorney- criminal justice practice. Most commonly • Victim–offender panels which bring General of Victoria, the Honourable Rob referred to as ‘restorative justice’ it is a together groups of unrelated victims Hulls MLA will open the conference and systematic response to wrongdoing that and offenders, linked by a common keynote speakers will include Dr Michael emphasizes healing the wounds of victims, kind of crime but not by the particular King, former magistrate and Senior offenders and communities caused or crimes that have involved the others. Research Fellow in the Faculty of Law at revealed by criminal behaviour. In the last • Victim assistance programs that provide Monash University; Margaret Thorsborne, decade these developments have morphed services to crime victims as they recover pioneer in the use of RJ in schools and the into processes that can be used in schools from the crime and proceed through Managing Director of Margaret Thorsborne and organizations. the criminal justice process. & Associates and Transformative Justice In the last decade considerable academic • Prison programs that provide services Australia (Qld) and; Paul Ban, Family interest has been generated in these proc- to offenders while they are in prison and Group Conference expert. There will be esses, giving rise to a burgeoning number on their release. a number of concurrent ‘streams’ in the of publications and websites. Like the alternative dispute resolution program including research and practice, A number of programs have become movement and other reform movements, legal systems, and schools. The conference associated with restorative justice because restorative justice has grown out of the in- will be held at Storey Hall, RMIT, in central of the processes they use to respond to and formal justice, victim and consumer rights Melbourne. repair the harm caused by crime. These and the restitution/diversion movements. Enquiries about the conference can include: As it has emerged and been put to greater be directed to VARJ President and • Victim–offender reconciliation/media- use it has raised a number of legal issues Conference Coordinator Peter Condliffe at tion programs using trained mediators related to its implementation. Among
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82 VICTORIAN BAR NEWS Autumn 2008 Captain Paul Andrew Willee rfd qc ranr Farewell dinner
n 9 August 2007, members of the Australian Defence Force and friends gathered in the Essoign OClub to acknowledge the contribution of Captain Paul Willee RFD QC RANR to the Australian Defence Force, and in par- ticular to the Royal Australian Navy. At that time Paul Willee had been a member of the Naval Reserve for almost 44 years. During that time he had accumu- lated an impressive, operational career in the Navy. He joined as a Seaman Diver while studying at university, and progressed through the ranks to become Officer in Charge of Australian Naval Reserve Diving Team 6 from 1969 until 1976. During this period he obtained invaluable operational experience in diving searches and under- water explosive demolition. His naval duties have included service in HMA Ships Sydney, Melbourne, Vam- pire and Voyager. Seaman Willee enjoyed some considerable luck when he disem- LEFT TO RIGHT Brigadier the Honourable Richard Tracy, Lieutenant Commander John Winneke QC, barked from HMAS Voyager only some Captain Willee, Judge Michael Kelly, his Honour Commodore Tim Wood, Captain Warwick Teasdale and Sir Daryl Dawson four hours or so before the ship departed for its fateful final voyage on the night of 10 February 1964. Only his father, who a Defence Force Discipline Act Section Services. In this role he has led the devel- was an RN telegraphist in HMS Hood and 154 Reviewing Officer. The last appoint- opment of an ethics code for military posted off the ship a week before it was ment involves the review of trials before lawyers, and continued in this role until sunk with great loss of life in World War II, Navy, Army and Air Force courts martial his retirement. matched this impeccable timing. and Defence Force Magistrates. Commodore His Honour Judge Tim A graduate of the University of Mel- Captain Willee’s extensive legal and Wood spoke of Captain Willee’s contribu- bourne’s Bachelor of Laws and Master of military experience has resulted in him tion to the Defence Force in moving a Laws programs, Captain Willee has forged being involved in a number of important toast of thanks. In doing so, he referred to an equally impressive career as a naval Defence inquiries, and his advice has the praises of non-commissioned officers lawyer. His forensic legal skills have been been sought not only by his native service, in recognizing Captain Willee’s stature in great demand as an advocate in a Navy, but by the incumbents of the office both below and above decks. In short, number of trials, including the court mar- of Chief of Defence Force. Paul Willee is highly regarded by all, and tial of the ship’s company from HMAS Captain Willee has played a very impor- justifiably so. Adroit (1978) and the court martial tant role in the training of military lawyers, Mention has been made of various trials proceedings following the grounding of and was the founder of the Advocacy that Captain Willee was involved in, the HMAS Darwin in Hawaii in 1990. Course for Military Lawyers. In July 2001 most notable of which was that of Hem- He was awarded a Reserve Forces Deco- Captain Willee was promoted to his bury in which Captain Willee, before a ration in 1985, and appointed a Defence current rank, and in 2002 he commenced bench of five members of the High Court Force Judge Advocate in the same year. In his duties as Head of the Military Bar of Australia, persuaded their Honours that 1996 he was appointed a Defence Force under an appointment made by the then the Judge Advocate at the trial (who Magistrate, and in 2000 he was appointed Director-General of the Defence Legal equates to a Judge in a criminal trial before
VICTORIAN BAR NEWS Autumn 2008 83 TOP Gerald Purcell, Claire Purcell, Commodore Dacre Smyth and Jenny Smyth TOP RIGHT Captain Peter Callaghan, Fabian Dixon and Jack Rush QC a jury), the Courts Martial Appeals Tribu- nal (presided over by a member of the Federal Court), and the Full Court of the Federal Court, were all wrong in holding that it was immaterial in a court martial that members of the court (or jury) need not vote in inverse order of seniority. For his outstanding contribution to the service of the Royal Australian Navy, Vice Admiral Shalders, Chief of Navy, on 13 November 2006 on the eve of Captain Willee’s retirement, commended his service to our Navy in the following terms: legal advice to the Royal Australian Navy Lucinda and Richard Udovenya, Judge Michael Commendation and the Australian Defence Force through- Kelly QC, Paul Willee QC, Justice Richard Tracey Captain Paul Andrew Willee RFD QC RANR out your long career. You have also played Royal Australian Navy Reserve a substantial role in the development of I commend you for your outstanding military justice as an advocate. Defence service to the Royal Australian Navy. Force Judge Advocate, Defence Force You have been a member of the Royal Magistrate and more recently a Defence Australian Navy Reserve during a lengthy Force Discipline Act Section 154 Report- and highly successful career spanning ing Officer. Clear evidence of your strong nearly 44 years. The early part of your commitment to the practice of military career as a member of the diving commu- law is evidenced in your founding of the nity saw you progress through the ranks highly successful Advocacy Course for from Seaman Diver to become Officer in Military Lawyers, your leadership of the Charge of Naval Reserve Diving Team 6 Military Bar and your promotion of an from 1969 until 1976. The major part of ethics code for Defence lawyers. your career has been spent as a member of Your motivation, dedication and pro- the Melbourne Naval Reserve Legal Panel fessionalism are of the highest order and with you ultimately reaching your present are in keeping with the finest traditions rank in 2001. of the Royal Australian Navy and the Throughout your career you have Australian Defence Force. displayed professional excellence, inspira- 13 November 2006 tional leadership and outstanding initia- RE SHALDERS tive. In particular, I commend you for the Vice Admiral, RAN role you have played in the provision of Chief of Navy
84 VICTORIAN BAR NEWS Autumn 2008 The strange case of Andrea Yates and Dr Park Dietz
It’s not what he doesn’t know that bothers me. It’s what he knows for sure that just ain’t so. WILL ROGERS
ndrea Yates is the mentally Later it came to light that Dr Dietz his usual expertise demands a high stand- disturbed Texas woman who had ‘misremembered’ the Law & Order ard of care in discharging his duty to the drowned her five children (of episode, after the ‘guilty’ verdict but prior criminal justice system and providing Aages six months to seven years) in June to the sentencing phase of Yates’s trial. expert testimony. For a person who values 2001. Following her second trial she is The Texas Court of Appeals allowed her his expertise so highly, this observer currently detained at an institution for appeal in January, 2005 solely on the suggests we can require of him to fully the insane. Dr Park Dietz is the celebrity basis of the ‘mistestimony’ of Dr Dietz. investigate and research his conclusions expert witness who testified on behalf of The other 18 grounds of appeal were not rather than just ‘winging it’ in the witness the prosecution in Yates’s first trial and considered. It is an interesting comment box. After all, the time spent researching through a monumental ‘stuff up’ ensured on the Texas criminal justice system and and confirming his conclusions would a ‘guilty’ verdict when he testified that the prosecution mentality that the reversal have entailed the meter continuing to tick shortly before the murders, an episode of of her conviction and the ordering of a over at $500 per hour. the NBC Law & Order television series re-trial was appealed. Thereafter, at her In addition to the flaws exposed in the aired and the plot of the episode was of re-trial she was found not guilty by reason Texas criminal justice system, the case is a mother killing her children and using of insanity in July 2006. An episode of Law an indictment on the US medical health a postpartum psychosis defence to gain & Order: Criminal Intent titled ‘Magnif- insurance industry. Yates was no ‘trailer an acquittal. There never was such an icat’ and partly based upon the Yates case park trash’ mother; being married to a mid- episode. Dr Dietz also incorrectly testified was broadcast in 2004. level NASA engineer she had the benefit that Yates had informed him that she was a After their ‘guilty’ verdict the jurors of generous employer-funded health regular viewer of the program. Dr Dietz is were outraged to leam of Dr Dietz’s ‘error’ insurance benefits. But her prognosis was a consultant to the series and the character and perhaps, to the enlightenment of always subject to the bottom line. That she of Dr George Huang played by the actor the Texas citizenry who are required to had received so many hours of psychiatric BD Wong is supposedly based upon him. serve as jurors, the trial judge refused the consultation and counselling meant that Dr Dietz’s erroneous testimony was defence application to declare a mis-trial she was to have no more. It didn’t matter doubly damaging to the defendant Yates. when the true facts came out. Not to worry, that the health professionals in charge of Not only did it make the prosecution during the sentencing phase of the trial the her case were concerned. The meter had run case but it also damaged the credibility prosecutor magnanimously informed the out – too bad, Mother Yates! Perhaps her of the psychiatrist called by the defence: jurors that while he was not abandoning health insurer should have been criminally how incompetent was that witness, Dr the death penalty previously sought by prosecuted. I mean, the possibility of Lucy Puryear, who had failed to join the him he would accept their decision should such corporate criminal culpability has dots between the TV program broadcast they elect to bring in a lesser life sentence. never inhibited prosecuting attorney Jack shortly before the event and a mother’s One must consider the expertise of the McCoy of the original Law & Order TV cold-blooded and premeditated murder of witness in a ‘death penalty’ case of his ‘mis- series. Further, the parsimonious penny- her children with the intent of sheltering remembering’. That the President of the pinching by her health insurer may have behind a psychiatric illness? ‘If you’d US can commit such verbal monstrosities led to her condition being erroneously known that,’ prosecutor Joseph Owmby does not excuse the $500 per hour charged diagnosed, with the result that her asked of her in cross-examination, ‘… by Dr Dietz or the fact that the life of the prescribed medication exacerbated rather would you have investigated whether she criminal accused was wholly dependent than relieved her psychiatric problems. got the idea somehow she could do this on his expertise. Given the extreme conse- MMP and not suffer hell or prison?’ quences flowing from his failure to provide
VICTORIAN BAR NEWS Autumn 2008 85 oug Menzies, as all the Victorian Bar of my day knew him, was not only widely regarded as the out- Dstanding Australian barrister of his day but, not always a concomitant, also as a delightful individual whose wicked sense of humour could liven even the most tedi- ous legal debate. I first knew Douglas Ian Menzies when, as a very junior articled clerk at Arthur Robinson & Co, I delivered briefs to him, or more usually to his secretary, in Selborne Chambers in Little Collins Street, the then home of much of the Victorian Bar. That I knew him in any real sense in those early days is, of course, a gross exaggeration; rather, he was a familiar name and one to conjure with. Always in high demand, indeed in his day perhaps the most sought after of all Victorian counsel, he was at the Sir Ian Menzies, the Right Honourable Sir Ninian Stephen and Paul Lacava QC same time completely unostentatious, not an attribute then shared by all leading silks. If one was lucky enough to catch him in chambers and not in conference, he Unveiling of Douglas Ian Menzies portrait would discuss with even a very junior Address by the Right Honourable Sir Ninian Stephen on the occasion articled clerk whatever case one brought up to him and even ask what one thought of the unveiling of a portrait of Sir Douglas Ian Menzies KBE, QC, of its legal merits; something as terrifying Douglas Menzies Chambers, Thursday 14 February, 2008 as it was flattering. Born in 1907 in Ballarat, the son of a Congregational minister, he spent his the Australian Defence Committee and the had annual dinners with the judges of the schooldays in Tasmania and moved to Mel- Chiefs of Staff Committee and, on return- Supreme Courts, hosting these each alter- bourne in 1925 to study law at Melbourne ing to practice at the Bar at the end of the nate year, and it was Doug Menzies who University. There he had an outstanding war, for the next 29 years was a leading organized these occasions when it was the career, winning several scholarships and figure, first at the Bar and then, from 1958, High Court’s turn. He had a fine singing becoming the Supreme Court prize win- on the High Court Bench. voice and it was by no means unusual ner. He graduated Bachelor of Laws in The number of constitutional cases in for him to enliven proceedings at those 1928, went on to gain his masters degree the High Court in which Doug Menzies dinners by singing his favourite ballads the following year and admitted to practice played a leading part were innumerable, from Gilbert and Sullivan. in may 1930. He then read in the chambers indeed few if any have made a greater When sitting in Sydney, as we did three of Ted Hudson and, having signed the Bar imprint upon Australian consitutional law times a year, we both stayed at the Union Roll early in 1932, plunged into the life of than did Doug Menzies. He was as out- Club and would walk together from there the Bar and subsequently of the Bench, all standing at the Bar as he subsequently down through the Botanic Gardens to of which he lived, enjoyed and excelled in became on the Bench the Court in Darlinghurst. He knew all for the next 44 years. He took silk in 1949 In my own early days on the High Court the leading counsel and all the judges of and was appointed to the High Court on I had the opportunity of not only sitting the day in the various state courts so that the resignation of Webb J. In 1958. He sat with Doug Menzies but also of frequently for a very new member of the Court, as I as an outstanding member of the court for travelling with him to the various capital was, he was the ideal companion and the next 16 years and died towards the end cities of Australia for sittings of the Court. counsellor. of 1974, having lived life in the law In those days the High Court, having no He died, as he had lived, in the heart of to the full. seat in Canberra, sat in each capital city the law, at what I recall as a social gather- Menzies’ practice at the Bar was essen- in turn. So there was much travelling ing, the annual dinner of the New South tially in constitutional and commercial law involved and no more entertaining travel- Wales Bar Association in Sydney, where he and, appropriately enough, he became in ling companion than Doug Menzies with had been sitting on the High Court. 1939 joint editor of the then outstand- which to share it. Our visits on circuit to There can be no more appropriate ing Australian volume on corporate law, the various states were made much more name, in the now quite long history of the O’Dowd and Menzies. than mere sittings of the Court thanks to Victorian Bar, for a set of chambers than He spent the war years as secretary to him. In each of the six states we invariably that of Douglas Menzies.
86 VICTORIAN BAR NEWS Autumn 2008 The Essoign Club Christmas Party
December 2007
n a pleasant Wednesday afternoon in December about 100 members gathered in the Essoign club Anthea McTiernan, Julie Davis, Gunilla Hedberg and Colin Lovitt QC for the Essoign members’ Christmas party. The committee, management and staff were proud to Obe in a financial position to host a Christmas party for the members who loyally support the club. It was the first Christ- mas party given by the club since moving to the new venue in 2003. Chairman of The Essoign Club, Colin Lovitt QC, welcomed the members and more importantly thanked them for their ongoing support and patronage of the club. Colin also took the opportunity to thank and farewell our esteemed Bar Manager, Susie Bailey, who left our employ after three years at the helm on 29 February. We are lucky that we have been able to promote from within and she has been ably replaced by the popular waitress, Cassandra Bayldon. Please join me in farewelling Susie and congratulating Cassandra on her new appointment. All in attendance enjoyed a selection of canapés and fine wines whilst listening to the dulcet tones of the Matt Day trio. David Beach, Kathryn Rees, Graeme Clarke and Gerry Butcher With continued patronage we hope the Christmas party will become an annual event and encourage those members who were unable to attend last year to do so in coming years. NICHOLAS KALOGEROPOULOS
Clive Rosen, Shane Kennedy and Darryl Burnett
VICTORIAN BAR NEWS Autumn 2008 87 Michael Colbran QC and Ray Perry John Saunders, Andrew Jackson and Michelle Williams SC
Gavan Rice, John Goldberg and John Monoghan Colin Lovitt addresses the multitude
SPORT
Sir Edmund Herring Trophy The annual competition between the Bench and Bar and the Law Institute of Victoria was held at Kingston Heath Golf Club on 18 December 2007.
In fine sunny conditions the Law Institute and the Law Institute has again booked Peter Lennon of the Lennon List and team defeated the Bench and Bar team Kingston Heath for the afternoon of Tues- Tim Tobin SC won Nearest the Pin contests. and won the trophy for 2007. day, 16 December 2008 for the next com- Rex Wild QC visiting from Darwin also Twenty-six players contested the event. petition. represented the Bench and Bar. Over recent years the numbers have sig- Leading scores were Gavan Rice and The Bench and Bar team looks forward nificantly reduced due to various compet- Ron Willemsen with a score of +8, Ian to regaining the trophy in December 2008 ing golf events. Alternative dates have Glenister and Malcolm Howell with a and it is hoped that more players will com- been considered and rejected. A proposal score of +6 and Robert Sadler and Robert pete so that this event may continue. for the 2008 competition to be held in the Shepherd with a score of +3. morning was also considered. However, Perennial winners Bryan Keon-Cohen GAVAN RICE Kingston Heath Golf Club is not available QC and Robert Miller failed to produce Golf Coordinator for morning play for corporate golf days their usual form.
88 VICTORIAN BAR NEWS Autumn 2008 he 21st annual Wigs and Gowns cruise in company was held on Tthe waters of Hobsons Bay on 20 December, 2007. The regatta was held in pelting rain, however that did not stop the cream of the WAGS attending what has now become the pivotal fixture for the squadron. Yet again, the sailing committee, digni- taries and invited guests were catered for on Peter Rattray QC’s Lacco Carvel hulled motorboat Argo. Following on-water achievements, skippers, crews, dignitaries and others retired to the Royal Yacht Club of Victoria for a barbecue lunch. The fleet included Judge ECS Campbell’s Oughtred designed canoo-sterned ketch Rosa-Jean, John Digby QC’s mast-head sloop Aranui and Paul O’Dwyer SC and Julian Smibert in their 30ft Clansman sloop Coranto. The Thorsen Perpetual Trophy was awarded jointly to both Judge ECS Camp- bell and John Digby QC, with the Neil McPhee Perpetual Trophy going to Paul O’Dwyer SC and Julian Smibert. We hope to see you all on the waters later this year when for the first time motor boats will be invited to participate with the yachts. JAMES MIGHELL QC
Wigs and Gowns Regatta
20 December 2007 Aranui competing in Wigs and Gowns yacht race
VICTORIAN BAR NEWS Autumn 2008 89 The Rosa Jean ABOVE Julien Smibert and Paul O’Dwyer RIGHT Aranui competing in Wigs and Gowns competing in Coranto. yacht race. BELOW Organisers, Peter Rattray QC and James Mighell, SC, centre, holding trophies with some of the competitors.
90 VICTORIAN BAR NEWS Autumn 2008 The Bar retains sodden tennis trophies
With heavy rain falling on the morning of Fortunately, neither was necessary as the It might be said that the rain on this Thursday December 20, 2007, the chances rain did ease, but by this time the courts occasion was somewhat fortuitous, as for the annual contest between Bench & Bar were flooded and no further play was the Institute was building up a somewhat vs Law Institute in the afternoon appeared possible for the day. A wash out was called, concerning lead of 9 sets to 4 when play slim. There was a drying-out period at as not enough matches had been played to ceased. lunch time, so that we were clear to start enable either side to claim victory. John Price and Andrew White for the on the en tous cas courts at Kooyong with Accordingly, the Bar, by default, re- Institute had set a cracking pace, winning a slight, albeit very optimistic, chance that tained possession of the JX O’Driscoll three sets in no time flat, and leading in the grass court play may have been possible trophy, which it will be recalled, no doubt, fourth when rain mercifully intervened. later in the afternoon. However, such was had been won by the Bar in each of the Ted Fennessy and Ray Gibson started off not to be the case. Around mid afternoon three preceding years, and the Flatman/ in the same form that Ted had displayed the heavens opened, and there was a risk Smith trophy for the best performed pair, a year earlier when he won the Flatman/ that the players huddled in the shelter which had been won in 2006, in convinc- Smith trophy, and no doubt they would at the far end of the Kooyong Tennis ing fashion, by John Goetz and Ted have continued as a dynamic force for the complex may have needed to swim back to Fennessy. These trophies will remain in Bench & Bar had the weather not cramped the clubhouse, or at least require retrieval the possession of the Bar for one further their style. Peter Wallis was also showing by boats. year at least. some encouraging form prior to the rain, while Patrick Montgomery and Andrew Fraatz were very competitive against tough opposition. Hopefully this year in December we will get better weather and a similarly good turn up. Any keen players who would be interested in playing are welcome to contact me to discuss details. As always, despite the weather, the match was played in a friendly spirit, though still exhibiting the keen rivalry of previous contests. It is always a satisfying way to wind up a tough professional year, sweating the stress out on the tennis court against one’s professional brethren. CHRIS THOMSON
Patrick Montgomery in action. Andrew Fraatz in action.
Richard Smith in action at Kooyong. Christine Boyle competing at RIGHT TO LEFT Richard Smith and Christine Boyle shake hands with opponents Kooyong. William Mulholland and Glenn Egerton.
VICTORIAN BAR NEWS Autumn 2008 91 ‘Change is constant…change…is inevitable’
CONTINUED FROM PAGE 7
The Bar Council met in a weekend con- and provision of suitable chambers and have been ‘great changes.’ That is surely ference in April to work on the recom- clerking support); in striving for excel- true of the situation the Bar finds itself mendations of the Bar Strategy Committee lence in training, education and practice; now in. We must have a strategy; and chaired by Mark Moshinsky S.C. The over- in the position of the Bar in a competitive we must engage with change if we are to all objectives discussed included the Bar’s market; and in the Bar’s administrative influence the outcomes for the greater role: in working for access to justice and systems and processes. good. the better administration of justice; in Proust said in Remembrance of Things PETER RIORDAN contributing to the public conversation; in Past (A la recherché du temps perdu): ‘The Chairman meeting the needs of members (in partic- one thing that does not change is that at ular, a framework ensuring the availability any and every time it appears that there
Justice Statement II
CONTINUED FROM PAGE 8
Over the next few months we will be in the justice system, especially in relation Anyone wanting to make a submission for developing a model that incorporates what to young offenders. consideration in the Justice Statement II we have learnt from therapeutic app- The Justice Statement II will ensure should contact Mr Chris Humphreys on roaches that complement existing mental the momentum for reform does not stall. 8684 1305 at the Department of Justice, 121 health services and other problem-solving It will outline a range of new initiatives Exhibition Street, Melbourne 3000. approaches in the courts, to specifically that seek to address the problems faced ROB HULLS MP address the mental health challenges faced by the vulnerable and disadvantaged in Attorney-General by defendants. our society while at the same time making We are also exploring the potential for the justice system more accessible and greater use of restorative justice techniques affordable for ordinary Victorians.
David Maclean SC
CONTINUED FROM PAGE 23
David had four children: (with Lucille) David became ill at Christmas 2006. He ‘He was highly perceptive, companionable; Gillean and Archibald, and (with Jane) spent a good deal of time in hospital and a distinguished man who led a full, good Patrick and Sylvia. He was proud of their was never well enough to return to cham- and loving distinguished life.’ A perfect achievements. To be close to David was to bers. He bore his illness with singular description. know of his great love for Jane. He was in courage; he never complained. He rallied May David rest in peace. awe of her talents and proud of her deep to spend the last week of his life at the JOSEPH SANTAMARIA QC. and broad expertise in the arts, particularly Windsor, resting and welcoming friends. Australian art. He took great delight in the He died at home, cared for by Jane, sur- company of her colleagues. His chambers rounded by every member of his family. always contained several paintings which Rupert Myer completed his fine and she had drawn to his attention. affectionate eulogy of David as follows:
92 VICTORIAN BAR NEWS Autumn 2008 LAWYER’S BOOKSHELF
Court in the Middle tough lingo with his clients when in prac- paradox is that by his own admission his by Andrew Fraser tice, but he is obviously not in this camp. period inside the gaol system has reformed Hardie Grant Books, 2007 This, to his credit, he makes clear. In fact, him. Or, has he been reformed despite his Paperback 256 pages his fear and anxiety in prison brought on experience in custody? He is no longer a chronic panic attacks. rampant cocaine addict or casual trafficker The subtitle of Andrew Fraser’s book The tough-talking, long-lunching crim- to friends. His fall from grace has caused Court in the Middle declares it to be ‘A true inal lawyer is reduced by his experience him to reinvent himself as a self-styled story of cocaine, police, corruption and inside to be bent only on survival. This writer. prison.’ It is also sold in bookstores under he achieves in small degrees – having Judged as ‘A true story…’ , how does the ever-expanding ‘true crime’ genre. newspapers sent in, getting a job in the Fraser’s story rate? Although somewhat Perhaps not strictly of this genre, Fraser’s prison garden (with Dupas), observing a of a compulsive read, Fraser falls short book is a first-person account of his arrest regular running regime, and, like so many on a complete account of the facts for and subsequent imprisonment for drug prisoners before him, doing the obligatory which he was sentenced. The title and charges. push-ups in the cells. first chapter suggest he was lonely victim Andrew Fraser is well known to practi- Beyond his personal survival strategy, of circumstances both because of his tioners of the criminal law, not to mention Fraser has some strong words to say about addiction and the fact that he gave some many of those who transgress it. The latter, the utility of life behind bars. In a nutshell, advice to a mate who was going to import especially those able to pay (Dennis Allen, he says the system is a shambles. It is violent cocaine anyway. Additionally, he claims Alan Bond and the Moran family), rate (we know this), young prisoners can and police conspired against him because he more than a mention. do get raped (we know this too), and the chose to make a complaint to the National Fraser’s case in 2001 achieved wide- screws take out their little authority on the Crime Authority in 1999 about corrupt spread publicity. In December of that year prisoners in arbitrary and insensitive ways activities of the Drug Squad. Although Judge Leo Hart in the County Court in (we’ve all seen Prison Break). He does, made in confidence, word soon got out to Melbourne sentenced him, along with his however, make some strong points about those who he had named. co-accused Roberts, Mohr and Urbanec, rehabilitation or the lack thereof, and the Fraser seasons this specific account by to seven years’ imprisonment for being problem of drugs in gaol: emphasizing he was a constant thorn in knowingly concerned in the importation the side of the Victorian police. In acting of cocaine, trafficking in cocaine and Drugs in gaol are rampant. Anything you for Anthony Farrell in the Walsh Street possession of ecstasy, with a minimum of want you can have – provided you can pay murders of Constables Tynan and Eyre, five years to be served before being eligible for it. Officers bring drugs into gaol – end Fraser gave some advice to Farrell in the for parole. of story. City Watch House which was recorded by Fraser regarded his sentence as massive. listening device. The recording received He launched an appeal to the Victorian Fraser details how long-serving prison- publicity. Fraser recounts the conversation Court of Appeal. That court dismissed all ers would extract Immovane, a strong which reads (in part): of the numerous grounds of appeal relied sleeping tablet, from first timers who upon. That failure found Fraser, somewhat would be prescribed the drug to help them FRASER: Anthony, how are you mate? a connoisseur of the high life, if not the sleep. The attitude of some prisoners to FARRELL: Not bad. fast lane, spending the best part of five sleeping off their sentences raised no offi- FRASER: Bit of a silly question isn’t it? years in the Victorian prison system. A cial concern. When Fraser alerted a guard FRASER: Mate, you’ve said nothing have strong sense of being badly done by, if to one particular prisoner who was so you? not outright bitterness, pervades his story. loaded up with Immovane he crashed into FARRELL: No, just told them where I was This is a fault for reasons that will be later some steel stairs he was told to ‘Piss off’. when. explored. Fraser takes the issue further, arguing FRASER: That’s good, all right then. I Fraser’s life inside gaol and how he sur- that there is widespread ambivalence reckon the way to do it…is just whacking vived it makes up the bigger portion of about drugs in the community. If the use in an application to the Supreme Court the book. It makes for interesting reading. of narcotics is prohibited, the prohibition fucking straight away. Because these cunts Sadly, many long-term criminals would must be rigidly enforced, he argues. If it have got nothing on you. have amazing stories to tell from behind is a health issue, then the sanctions that FARRELL: Yeah I know. I know that, An- the walls but their tales will never be now apply must be removed. It seems, he drew. revealed due to a combination of illit- claims, to be a criminal offence for the FRASER: Yeah well, they’ve got nothing on eracy, and a world view that the barbaric poor and uneducated but only a health you so if we whomp a Supreme Court file nature of their lot is quite normal. Mark issue for league footballers. Perhaps he has application fucking straight in, we’ll flesh (Chopper) Reid, however, is a notable a point here. the cunts out. exception. Fraser might have talked the For all his criticisms of the system, the FARRELL: Yeah.
VICTORIAN BAR NEWS Autumn 2008 93 FRASER: They’ll have to come up with it points of Watergate burglar G. Gordon particularly useful when preparing for and they’ve got no fucking evidence. Liddy’s Will, nor does it have the black matters before the Tribunal. FARRELL: Yeah, because Jason…Appar- humour of the Chopper series. As a tell- This text is up to date and reflects the ently they said… all, Fraser cuts a few corners. As a genuine changes in the Act. It provides a road map FRASER: I don’t give a fuck what they said page turner, however, Court in the Middle for practitioners conducting matters about Jason either because if Jason’s succeeds as a great read. before the Tribunal and has a clear expla- turned…Fuckin’ dog… RAYMOND GIBSON nation of the jurisdictional issues. It is a FARRELL: Yeah, that’s right. Victor would useful companion text to the ‘Annotated have been pinched by now. Administrative Appeals Legislation’ by FRASER: Shhhh. Moshinsky and William, also published by LexisNexis Butterworths. Fraser suggests he was merely discussing Administrative Appeals Tribunal, CJ KING tactics and advising his client of his rights 2nd edition albeit in colourful terms. Few would see it By Dennis Pearce that way including the police, especially LexisNexis Butterworths, 2007 those investigating this horrible crime. If Pages iii– xivii; 1–274; Appendix 275–380; nothing else, this extract reveals how close Index 381-390 The Law of Rescission to the wind he sailed. By O’Sullivan, Elliott & Zakrzewski Fraser does not argue he was set up, Administrative Appeals Tribunal, 2nd Published by Oxford University Press 2008 rather he advances a conspiracy theory edition, by Dennis Pearce is an essential Pages i–lxxiii; 1– 678; Index 679–699 to explain why police ultimately targeted text on the Tribunal for practitioners and him in bugging his office in order to students alike. Rescission is strictly speaking, putting to obtain evidence. This does not hold up. The author’s format is easy to follow and an end a contract as if the contract had Fraser pleaded guilty after all and accepted provides a step by step explanation of the never existed (‘rescission ab initio’). A a detailed statement of facts presented functions, powers and procedures of the contract may also be brought to an end to the court. He also offered to give Tribunal with extensive reference to AAT for breach or repudiation (‘recission in evidence for the Crown against his co- and Federal Court decisions. The author futuro’). ‘Rescission’ is used (sometimes accused, two of whom pleaded not guilty. has conveniently added an appendix con- confusingly) to describe both these modes By his admission, too, his cocaine use was taining the Administrative Appeals Tribu- of contractual termination. rampant and hardly secretive. He regularly nal Act 1975 and Practice Directions. The Law of Rescission is only concerned trafficked to his professional colleague, the There is a comprehensive chapter on with ‘rescission’ in the first of these two psychologist Tim Watson-Munro, whom procedure at hearing, which includes gen- senses, that is, terminating a contract Fraser often briefed to prepare reports for eral and pre-hearing procedural issues, (or gift) ab initio. The grounds for such his criminal clients. How long could these guidance on evidentiary matters, publica- rescission are generally misrepresentation, practices have remained undetected? tion and disclosure and documents. It non disclosure, duress and undue influence, Perhaps most disappointing of all is considers the dichotomy between s.33 (1) and mistake, impaired capacity (non est that this account plays down the crimes (c) of the AAT Act, which directs that the factum) and unconscionable bargains. for which Fraser was sentenced. The only ‘Tribunal is not to be bound by the rules of Each of these grounds is discussed in evidence he claims against him was the evidence but may inform itself on any mat- separate chapters, along with conflict of content of a recorded conversation held ter in such a manner as it thinks appropri- interest and third party wrongdoing as in his office with Roberts. While not an ate’, and the rules of natural justice, which grounds for rescission. inaccurate claim, this conversation none require the parties to have a fair hearing, Central to the notion of rescission is the the less deeply implicated Fraser in the with reference to the way in which the restoration of the parties to their original importation of 3.7 kilograms of pure courts have restricted a wide interpreta- positions (restitutio in integrum). The cocaine from Benin using an unwitting tion of section 33 in such cases as R v War issues that arise in law and equity regarding ‘mule’ (Brand) in the process. Aggravating Pensions Entitlement Appeals Tribunal; Ex this requirement are amply discussed, his crime was the fact that he utilized his Parte Bott (1933) 50 CLR 228 at 256 and particularly in relation to the discretionary knowledge, gained as a criminal lawyer, Re Pochi and Minister for Ethnic Affairs nature of equity to allow a practically just to advise his co-accused how to do it to (1979) 2 ALD 33; 26 ALR 247 and their result, rather than exact restoration of avoid detection. Anyone interested in what consideration of the application of the rule the parties’ original position. There is Judge Hart found as the facts should read in Browne v Dunn (1893) R 67. substantial discussion of this ‘heretical’ the judgment in the Court of Appeal (R v The author has also summarized rulings approach in allowing practical justice to Fraser [2004] VSCA 147). on evidentiary matters such as privilege, be the yardstick in restoring the parties’ Some minor editing errors aside (Paul the parole evidence rule, the use of text- to their original position. This ‘heresy’ Coghlan QC, as he then was, has his name books, policy statements, the opinion rule includes several Australian decisions misspelt and his title is not given) this is in section 76 of the Evidence Act 1995 (Cth) where a more generous discretion in a book for those who love the fall-from- and the effects of findings in other judicial equity has prevailed in regard to the grace tale. It does not hit the literary high proceedings. Practitioners will find this requirement to restore the parties to their
94 VICTORIAN BAR NEWS Autumn 2008 precontractual position (see for instance Election. With the election of the Rudd ing differences in approach arising from JAD International Pty Ltd v International Labor Government, changes to the indus- the nature or ‘level’ of a person’s employ- Trucks Australia Ltd (1994) 50 FCR 378 trial relations regime have been promised ment. The current position in relation to and Vadasz v Pioneer Concrete (SA) Pty although both the detail and scope of the termination and remedies for wrongful or Ltd (1995) 184 CLR 102). changes and whether the changes will in unfair termination are comprehensively The Law of Rescission contains further fact become law in the foreseeable future dealt with, as are associated issues such as chapters dealing specifically with factors remain unclear. Despite these uncertain- discrimination and victimization, work- that may cause the right to rescind to be ties, Stewart’s Guide to Employment Law is place safety and industrial action. lost, such as affirmation of the contract an important contribution for practition- Of course, with changes mooted, specific (whether by words or conduct), delay ers and others interested in employment employment issues in the future will and estoppel, bankruptcy and contractual law and related issues. need to be analysed in the light of those terms that purport to limit or exclude a Much of the text is relevant whatever changes, particularly in the federal sphere. party’s right to rescind. the scope of changes that are made to the However, Stewart’s Guide to Employment The final chapter deals with gifts and AWA and federally administered statutory Law will provide a sound basis for those transactions effected by deed. One view, employment regime by the Rudd Labor seeking to get a general understanding disputed by the authors, is that deeds Government. Further, specific state-based of the principles, issues and practices of cannot generally be rescinded at common legislation is considered wherever relevant. employment law. law and therefore resort must be had to The text provides a general overview of The text is comprehensive, referring in equity. employment law and provides specific dis- short form to both cases and legislation in As the authors note in the Preface, cussion on aspects of employment relating the text (without footnotes) and providing rescission is complex, not least because it to contractors and special types of employ- by way of an end note to each chapter a list straddles the jurisdictional divide between ment relationships such as casual and out of selected further reading. This enables common law and equity and can involve workers, labour hire (agency) relationships the reader to clearly identify themes and both personal and proprietary rights. and public sector employment amongst trends in employment law while providing The authors attempt to state the law in others. Other aspects of the employment a base for further research by reference to England and Wales, however, frequent relationship, in particular the duties of the specific cases and the current text of and extensive reference is made to both the employee and the employer to relevant legislation. This book is sure to be cases decided in other Commonwealth each other, such as discipline, loyalty, con- of interest to lawyers, students, employers jurisdictions, particularly Australia and fidentiality, out of work hours behaviour, and employees and others with a general New Zealand. post-employment obligations and pre- interest in employment law issues. The Law of Rescission is a scholarly work employment matters are discussed, includ- P W LITHGOW providing a comprehensive analysis of the law of rescission. Footnotes are relatively confined and paragraphs are individually numbered (as cross references in the Table of Contents and in the Index) with the result that the text is both readable and accessible. While the work focuses on the � ������������ state of the law in England and Wales, The Law of Rescission will have an important place and be a valuable resource on the � � � ���������� shelves of commercial lawyers and legal scholars in Australia. P W LITHGOW ��������������������� ����������������������������������� ������������������������ STEWART’S GUIDE TO ����������������������������������������� EMPLOYMENT LAW �������������������������������� By Professor Andrew Stewart The Federation Press 2008 Pages i-xxx; 1–331; Index 332–354 ��������� ����������������� Industrial relations, and in particular the ������������������ issue of Australian Workplace Agreements �������������������� (AWAs), were at the forefront of political ����������������������������� debate leading up to the 2007 Federal
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