VICTORIAN BAR NEWS
No. 133 ISSN 0159-3285 WINTER 2005
Retirement of Commander The Honourable John Winneke AC RFD RANR
Legal Profession Act 2004 Disclosure Requirements and Cost Agreements Under the Legal Profession Act 2004 Farewell Anna Whitney Obituaries: James Anthony Logan, Carl Price and Brian Thomson QC Junior Silk’s Bar Dinner Speech Reply on Behalf of the Honoured Guests to the Speech of Mr Junior Silk The Thin End of the Wedge Opening of the Refurbished Owen Dixon Chambers East The Revolution of 1952 — Or the Origins of ODC Of Stuff and Silk Peter Rosenberg Congratulates the Prince on His Marriage The Ways of a Jury Bar Legal Assistance Committee A Much Speaking Judge is like an Ill-tuned Cymbal March 1985 Readers’ Group 20th Anniversary Dinner Aboriginal Law Students Mentoring Committee Court Network’s 25th Anniversary Au Revoir, Hartog Modern Future for Victoria’s Historic Legal Precinct Preparation for Mediation: Playing the Devil’s Advocate Is It ’Cos I Is Black (Or Is It ’Cos I Is Well Fit For It)? What you do with the time you’ll save is your business
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No. 133 WINTER 2005
Contents EDITORS’ BACKSHEET 5 Life Imitating Art CORRESPONDENCE 6 Letters to the Editors CHAIRMAN’S CUPBOARD 13 Rendering Unto Caesar ATTORNEY-GENERAL’S COLUMN 15 Bringing the Crimes Act into the 21st Century NOTES ON PRACTICE 17 Legal Profession Act 2004 Junior Silk’s Bar Dinner Speech Reply on Behalf of the Honoured 20 Disclosure Requirements and Cost Agreements Guests Under the Legal Profession Act 2004 FAREWELL 24 Farewell Anna Whitney OBITUARIES 25 James Anthony Logan 26 Carl Price 26 Brian Thomson QC NEWS AND VIEWS 28 Retirement of Commander The Honourable John Winneke AC RFD RANR Opening of the Refurbished Owen Aboriginal Law Students 32 Junior Silk’s Bar Dinner Speech Dixon Chambers East Mentoring Commitee 37 Reply on Behalf of the Honoured Guests to the Speech of Mr Junior Silk 41 The Thin End of the Wedge 44 Opening of the Refurbished Owen Dixon Chambers East 49 The Revolution of 1952 — Or the Origins of ODC 52 Of Stuff and Silk 57 Peter Rosenberg Congratulates the Prince on His Marriage 58 A Bit About Words/Idle Rubbish 59 The Ways of a Jury 60 Bar Legal Assistance Committee 61 A Much Speaking Judge is like an Ill-tuned Cymbal March 1985 Readers’ Group 20th Anniversary Dinner 62 March 1985 Readers’ Group 20th Anniversary Dinner 64 Aboriginal Law Students Mentoring Committee 65 The Essoign Wine Report 66 Verbatim 67 Court Network’s 25th Anniversary 68 Au Revoir, Hartog 69 Modern Future for Victoria’s Historic Legal Precinct Au Revoir, Hartog Bar Legal Assistance Committee 70 Preparation for Mediation: Playing the Devil’s Advocate Cover: The Royal Australian Navy Reserve Legal Panel Dinner in recognition of 71 Is It ’Cos I Is Black (Or Is It ’Cos I Is Well Fit For the retirement as President of the Court of Appeal of Commander The Honourable It)? Justice John S. Winneke AO RFD RANR (seated). Standing (L to R): Captain His Honour Judge Tim Wood RFD QC RANR, His LAWYER’S BOOKSHELF Honour Judge Michael Kelly QC, Wing Commander His Honour Judge David 73 Books Reviewed Morrow RFD, Colonel Richard Tracey RFD QC, Sir Daryl Dawson AC KBE CB, Captain Warwick D.K. Teasdale OAM RFD ADC RANR, Major General Greg Garde 74 CONFERENCE UPDATE AO RFD and Captain Paul A. Willee RFD QC RANR. (Reviewed on pages 28–31). 3 Victorian Bar Council
VICTORIAN BAR COUNCIL Chairs of Standing Committees of the Bar Council for the year 2004/2005 Aboriginal Law Students Mentoring Committee *Executive Committee G Golvan S.C., C.D. Clerks: Applications Review Committee B *Ray QC, W.R. (Chairman) G Digby QC, G.J. B *McMillan S.C., Ms C.F. (Senior Vice-Chairman) Charitable and Sporting Donations Committee A *Shand QC, M.W. (Junior Vice-Chairman) D Riordan S.C., P.J. D *Fajgenbaum QC, J.I. Conciliators for Sexual Harassment and Vilifi cation F *Dunn QC, P.A. B Curtain QC, D.E. F *Dreyfus QC, M.A. G *Lacava S.C., P.G. Counsel Committee G *Crennan S.C., M.J. G Crennan S.C., M.J. D *Beach S.C., D.F.R. (Honorary Treasurer) Editorial Committee for In Brief and Website News F *Quigley S.C., Ms M.L. Section D *Riordan S.C., P.J. D McLeod S.C., Ms F.M. D *Jones, I.R. Equality Before the Law Committee A *Townshend, C.J. A Richards QC, Ms A. W *Neal D.J. R *Doyle, Ms R.M. Ethics Committee D *Duggan, Ms A.E. B McMillan S.C., Ms C.F. L Hannebery, P.J. (Assistant Honorary Treasurer) Human Rights Committee D *Connor, P.X. D Fajgenbaum QC, J.I. F *Knights, Ms K.J. Legal Assistance Committee R *Fairfi eld, C.G. A Macaw QC, R.C. D *Shaw, C.E. Readers’ Course Committee G *Anderson, Ms K.J.D. (Honorary Secretary) G Santamaria S.C., P.D. G *Neskovcin, Ms P.A. (Assistant Honorary Secretary) Continuing Legal Education Committee Ethics Committee B Young QC, N.J. B McMillan S.C., Ms C.F. (Chair) Accreditation and Dispensation Sub-Committee H Merralls AM, QC, J.D. B Young QC, N.J. C Meagher ED, QC, D.R. S Willee QC, RFD, P.A. New Barristers’ Standing Committee S Lally QC, W.F. G Bingham, Ms S.L. F Gobbo QC, J.H. Past Practising Chairmen’s Committee G Lacava S.C., P.G. G Berkeley QC, H.C. A Macaulay S.C., C.C. Professional Indemnity Insurance Committee G Gordon S.C., Ms M.M. A Shand QC, M.W. R Batten, J.L. Professional Standards Education Committee P Williams, I.S. S Willee QC, RFD, P.A. D Kirton. Ms C.E. L Lane, D.J. Victorian Bar Dispute Resolution Committee F Shiff, Ms P.L. B Levin QC, D.S. D Duggan, Ms A.E.
VICTORIAN BAR NEWS Paul Duggan, Peter A. Clarke, Printed by: Impact Printing Editors Victoria Lambropoulos, Richard Brear 69–79 Fallon Street, Gerard Nash QC, Paul Elliott QC and (Editorial Assistant) and Peter Lithgow Brunswick Vic. 3056 (Book Reviews) Judy Benson This publication may be cited as Editorial Board David Johns (Photography) (2004) 133 Vic B.N. Julian Burnside QC Published by The Victorian Bar Inc. Graeme Thompson Owen Dixon Chambers, Advertising 205 William Street, Melbourne 3000. Publications Management Pty Ltd Editorial Consultant 38 Essex Road, Surrey Hills, David Wilken Registration No. A 0034304 S Victoria 3127 Editorial Committee Opinions expressed are not necessarily Telephone: (03) 9888 5977 John Kaufman QC, William F. Gillies, those of the Bar Council or the Bar or Facsimile: (03) 9888 5919 Carolyn Sparke, Georgina Schoff, of any person other than the author. E-mail: [email protected]
4 Editors’ Backsheet Life Imitating Art
NE hundred and thirty years ago the only opera devoted entirely Oto an episode of legal life opened (to wild acclaim) in London. Gilbert and Sullivan, whose long, lucrative and entre- preneurial partnership began with this beguiling collaboration, originally created the one act “Trial by Jury” as a postlude, but in more recent times it has assumed a life of its own and concluded a similarly successful run as part of Opera Australia’s Melbourne season in June. What was conservatively described as a “dramatic cantata” encompassing “witty plot, char- acterisations and lyrics” in 1875 has been transformed by modern production values and direction into a delicious satire on the process of the law and its seeming inter- dependence with the media. The whole action takes place in a British courtroom (the Court of Exchequer) and centres on a breach of promise case. While the jury is being sworn in, the The alluring plaintiff does not rely on The 12 gentlemen of the jury have each court is a hive of activity. People come her barrister to work his magic in words. come prepared for a degree of tedium in and go, conversations continue, even the She works the courtroom herself, dart- the proceeding — which becomes evi- judge is engaged in making newspaper cut ing into the jury box to cajole the jurors dent when for example they are being outs on the bench. The learned judge, who or teasing the court staff, titillating them addressed by the defendant and they each after his arrival in court proceeds to robe all with her antics of posture and exces- produce their tabloid newspapers and and tell everyone how he came to assume sive emotion. As the proceeding wends read them en masse. Counterbalanced on his position, looks as though he has its way to its hilarious and improbable the other side of the court, the ladies of already had a tot too many of port. Later, denouement, we enter into the mêlée the press are represented by 12 women. a plastic bag of (empty) bottles falls out with laughter because belief is suspended. Irrespective of who is speaking or what is from under the bench. Around half way We are carried away not just by the music happening, they are variously engaged in through the proceeding the learned judge and the comedy-laden lyrics, but by how taking any number of fl ash photographs is asleep, spreadeagled out on the bench. wildly impossible is this depiction of the in court, sending SMS messages, making workings of the law and the courts and or receiving calls on their mobile phones, because we just know that such goings chatting up the defendant (or the plain- on are unknown in real life. Lawyers and tiff’s junior counsel); talking to each other, That suffi cient numbers the public really know how to behave, this wandering around the Court, taking notes of practitioners should was all just a romp, high jinks, a send up, and passing them around. be so ignorant of what a farce. The defendant arrives in Court dressed Or was it? in a fl uorescent purple suit and sunglasses to do in what order, and The following observations perhaps and has the hairdo and nonchalant atti- be unfamiliar with what fall short of a complete G & S treatment tude captured frequently on our television etiquette requires would (though they are, admittedly, replete with evening news bulletins. His entrance and possibilities). the obvious relish over being the centre of normally be cause for 1. Prominently displayed in large type attention is only exceeded by the arrival of concern. No need to worry, on the Bar Table in the County Court the plaintiff, complete with La Dolce Vita though. All those articled Directions Hearing court are the attire and carrying a miniature puppy. The clerks appearing at following signs: “PRACTITIONERS press frenzy and attention is taken up and PLEASE NOTE. When your matter reinforced by the jury, the court ushers Directions Hearings will no is called the Plaintiff should address and everyone else, and general mayhem doubt be well instructed. the Judge fi rst. When your matter is ensures. fi nished please stay at the Bar Table
5 Letters to the Editors
until the next practitioner is at the Bar journalists’ union for a decade and clearly Table.” Grumpiness or Satire? sit on the other side of the fence. Members That suffi cient numbers of practi- The Editors of the journalists’ trade union enjoy little tioners should be so ignorant of what or no legislative control over their market. to do in what order, and be unfamiliar Dear Editors In turn, their employers operate in an with what etiquette requires would intensely competitive market. If journal- normally be cause for concern. No need hile horrifi ed to be accused of ists don’t perform, they won’t be rewarded to worry, though. All those articled Wgrumpiness by the Victorian Bar by their employer. If a newspaper doesn’t clerks appearing at Directions Hearings News (The Grumpy Old Australian perform, it will lose readers. If it attracts will no doubt be well instructed newspaper, Autumn 2005), I am delighted more readers, it will be able to employ by their superiors and in any case to accept the invitation, or even the more and better-paid journalists. In the they now have the benefi t of the help- demand, to explain the difference Adam Smith sense, the market provides ful sign on the Bar Table for their edi- between a guild and a trade union. both disciplines and rewards to promote fi cation. Today, the legal profession echoes the productivity in the interests of both share- 2. On the website of the Australian pre-capitalist and closed-shop guilds of holders and the public. In today’s demo- Industrial Relations Commission, there artisans and craftsman which controlled cratic capitalism, the working journalists is a very helpful guide prepared by the the market for their services or manufac- may also be mini-capitalists by virtue of Commission to assist those preparing tured wares. In this sense, the judiciary, their superannuation investments in the for hearings (especially the self-rep- barristers and solicitors are all part of a share market. resented). Under the heading “More legal guild. Protected by legislative fi at, And, rather than grumpiness, surely tips on court procedure” the following it controls its own market, in large part the Victorian Bar Association editors advice in point form is given: “Do not by being the licensed agents of the state mean satire. What could be better than to speak when a witness is taking an oath with responsibility for running the public reveal to taxpayers and readers a ruddy or an affi rmation. Do not interrupt the monopoly of the administration of justice. High Court judge wearing a panama hat as other party or the Commission member The profession retains many of the cul- he wanders around the delightful street when they are speaking. Do not eat or tural and social trappings of a pre-capital- markets of Florence after a session at the chew while in court.” ist guild, including a sense of answering to leisurely Australian Bar Association con- One does wonder what those dread- a higher calling, intricate internal rules of ference? Vigorous media scrutiny of such fully uncivilized self-represented per- courtesy and aggrieved solidarity in the escapades allows taxpayers, including sons must be thinking (or have been face of outside criticism. The royal col- those barristers who pay tax, to at least caught doing, over and over) if such leges of medical specialists are another know what they are paying for. advice has to be rendered into writ- modern-day guild phenomenon. ing. No legal practitioner, certainly no Big law fi rms are a modern adaptation Sincerely member of counsel, would ever have that adopts a partnership model to more Michael Stutchbury need of such prescriptions. effi ciently service the demands of its busi- Editor 3. Recently over the names of the ness clients, while retaining close working The Australian Chairman of the Victorian Bar Council contact with the monopoly guild. and the Chairman of the Essoign Club, The question here is this. How can the a circular notice was sent out to all public can be confi dent that the profes- members of the Bar reminding them sion which controls the administration Grants of Silk “Archaic that “The Essoign Club is a private of justice is vigorously rewarding best and Inappropriate” members’ club. In the past few months practice and curbing poor performance in there has been a high rate of non- a way that continually improves the deliv- Ross Ray QC members in the club either coming in ery of justice? Vigorous media coverage is Chairman on their own after being referred by a one way of providing the public scrutiny Victorian Bar Council member or being left in the club after required to maintain public confi dence in a member has left. All Essoign Club the administration of justice. Dear Ross, members should be aware and adhere The journalists’ collective is in a far dif- to the following guidelines to ensure ferent position. The industrial revolution write regarding the practice of the the ‘privacy’ of the Essoign is main- produced capitalists, who accumulated I grant of silk to pre-eminent counsel in tained.” Members of the Essoign were capital in the means of production, in the Victoria. I write to the Bar Council as I then urged to be aware of and adhere process becoming a more productive form understand that the Chief Justice under- to various guidelines including the of economic organisation than the guilds. took that task last year at the request of necessity for members to sign in non- As the guilds lost market share, artisans the Council. My concern is that the prac- members. In particular “Club by-laws and craftsman who once would have been tice is an archaic and inappropriate one, prohibit members from entertaining members of a guild found themselves inconsistent with modern principles and current litigants or clients currently being employed by capitalists. Typically, legislation. It ignores the need for com- appearing before the courts in The they formed trade unions to represent petition and is not in the interests of the Essoign Club”. their members’ interests in dealings with consumer. I appreciate that my concern Now wouldn’t Gilbert and Sullivan their employers. will be labelled “sour grapes”. In my have had a little fun with that (tra la). Hence, the journalists’ collective is a defence, I have long been of the view and, trade union, not a guild. As an editor and as a result, did not apply for silk for many The Editors manager, I have not been a member of the years.
6 My following comments question the to levy fees well in excess of those com- legal profession is a common criterion in validity of “any justifi cation” for the sys- monly rendered. That increase occurs many jurisdictions. An appeal process has tem and, if it is to be retained, “the suf- overnight. There is no corresponding ben- been instituted. fi ciency” of the process. efi t to the consumer. Upon appointment, The appropriateness of the use of a I note that the system has long enjoyed silks are put under intense pressure not quota should be considered. One obtains currency in Australia and is supported by only to increase fees but also to appear the impression from the limited number judges and barristers alike. It has recently with a junior, considerably infl ating total of silks appointed in 2004 that a quota was been substantially reviewed but main- fees. imposed. However, the question arises tained in England. It was abolished by Appearance with a junior is a universal whether the only prerequisite is meeting Quebec in 1976, by Ontario in 1955 and by practice reinforced by intense pressure to the prescribed standards, rather than the Canadian Government in 1993. New conform. This two counsel practice might also fi tting within a quota. It is instructive Zealand is in the process of its abolition. be seen as a natural consequence follow- that, in England, a quota for the selec- However, the practice remains in many ing upon the increase in the complexity of tion of silks is regarded as inappropriate common law countries but is not repli- matters undertaken. In practice, this is by and inconsistent with the nature of the cated in non-common law jurisdictions, no means universally so. Obviously, much process. Silk is awarded to all those who nor in other professions. work does require two counsel. However, satisfy the criteria. There is no limit upon many silks appear in matters which could the number and no quantitative factors JUSTIFICATION not be said to justify two counsel. Some applied. In considering the justifi cation for the are mundane or minor matters. I will not process, it has to be borne in mind that we detail the nature of these matters but they CONCLUSION are dealing with a long-entrenched tradi- are well known. The cost of employing By defi nition, the process must be an tion to which many in the profession are two counsel, where inappropriate, falls on unreliable one. Once one deals with the greatly attached. The origins of the proc- the consumer. careers of counsel, it is inevitable that ess relate back to the 17th century when injustices will arise. lawyers were retained by the monarch to PROCEDURAL FAIRNESS My comments are made in the knowl- act in matters of State. Of course, this jus- A total lack of transparency has been a edge that the traditions, as historical tifi cation has long passed and is no longer feature of awards of silk for a long time. features, are attractive to most barristers relevant. As a result, there is now only a This is despite the fact that it constitutes and judges. vestigial connection between the present a signifi cant achievement for any counsel. I write this letter in the hope it might system and its origins. It determines the careers of not only those excite some consideration. I have for- Justifi cation for the present system is who succeed but also those who fail. warded a letter in the same form to the often said to lie in its recognition of the In Victoria, the application is made Chief Justice. expertise of advocates. It is said that, as in about August. The application is not a result, clients are able to identify and acknowledged. The results are simply Yours faithfully, retain counsel with appropriate expert published through the medium of a clerk’s skills. It has also been said that “silks” e-mail in December. No explanation is John A. Riordan provide leadership, integrity and courage. given for a lack of success. No advice cc Council members One might think that these attributes will is given regarding any enquiries made exist irrespective of the imprimatur of the or other steps taken. No advice is given Court. By the time of appointment, suc- regarding the results of enquiries. There Mr John Riordan cessful applicants have already obtained is no provision for an appeal. Dear John that degree of expertise and, as a result, No criteria for selection have been the necessary high reputation. Solicitors promulgated in Victoria. No details have refer to your letter of 7 February 2005. will be aware of their capacity. Their pro- been promulgated regarding the standard IYou have obviously given deep consid- motion is unnecessary. of excellence required. We are not told eration to the matters you raise, and they The system offends modern precepts whether the standard of advocacy is the deserve a serious reply. of fair competition. An award not only rec- sole determinant of an award or whether The fi rst part of your letter ques- ognises talent but also ensures better and other matters are relevant. For instance, tions the existence of the institution of more remunerative work. As such, It dis- we are not told whether the only criterion Senior Counsel. As you probably know, torts the market. The elevation of counsel is that of advocacy or whether matters the Bar Council spent much time last to the rank of silk immediately provides a such as excellence in mediation or the year considering an appropriate method considerable advantage over competitors. compilation of outstanding legal works for appointing Senior Counsel, as the Of itself, the elevation provides new silks are relevant. Attorney-General had indicated that he with the advantage of more signifi cant By way of contrast, in the United would no longer take any part in it. In the cases. The Chief Justice has observed Kingdom, there is total transparency. course of this consideration, the ques- that appointment “ought mark a change The criteria for an award are published. tion of whether the institution should be in your practice such that you assume the Reference must be made during the proc- retained at all was raised. more diffi cult and complex cases”. This all ess to referees nominated. As part of the It is fair to say that little time was follows from the fact that silks are labelled process, an interview is carried out. After spent on this question, because, as you by the Court as outstanding. the promulgation of selections, unsuc- point out in your letter, the institution is A considerable increase in fees is cessful applicants receive a further inter- strongly supported by the profession as a brought about by the process. Senior view regarding the shortcomings of their whole, including the judiciary. In England, counsel are expected, upon appointment, applications. Exceptional service to the the decision to retain it was made after an
7 extensive inquiry and very detailed con- of a successful applicant. It is true that extent of that debate is not demon- sideration. I believe it is also supported those qualities are not measurable on any strated. by the general community; there is very numerical scale; but this does, not mean 2. Whatever enquiry was carried out by little evidence one way or the other, but that they are not real or not recognizable. the Council last year was clearly inad- perhaps the strongest evidence of public As for the absence of reasons, it is diffi cult equate. It appears to have been made support is the absence of any signifi cant to see what reasons could be given other by a committee of barristers, presum- call for abolition from the media, even in than that particular applicants were, and ably committed to the institution. the “lawyer-bashing” or “barrister-bash- others were not, considered to display There does not appear to have been ing” stories that are unfortunately all too the necessary qualities to the appropriate any outside enquiry. It is not clear to common. With this strong general sup- degree. me that even the Bar was consulted. port, the Bar Council did not feel the need You mention a quota. I do not believe As you refer to the English approach, to justify the institution. there is a quota. it should be appreciated that an However, some of the points you You do not refer to the consultation extremely broad range of opinion was make in the “justifi cation” section of your that takes place before appointments sought in that enquiry. Any enquiry letter are true. Senior Counsel are no are made. I believe that this is one of the here could hardly be entitled to bear longer retained by the monarch; indeed, great strengths of the system. The Chief that description in face of the scru- they have not been for some centuries Justice consults not only other Justices pulous enquiry undertaken there. It in England and never in Victoria. It of the Supreme Court and the Court of was carried out over a lengthy period. may well be the case that leaders of the Appeal, but also the Judges of all other Relevant Government departments profession would emerge even if the insti- relevant courts, the leaders of the profes- were consulted. They provided com- tution were abolished. But these things, I sional associations and other persons she prehensive reports. Solicitor bodies think, do not constitute reasons for aboli- considers appropriate. This ensures that and the full range of professional insti- tion. although the decision is ultimately the tutions were involved. Community I disagree with your statement that the Chief Justice’s alone, she makes it with legal services, the Trades Hall and system is anti-competitive, and I think that the knowledge of the profession and the the Confederation of British Industry the prevailing view is that it is not. I do not judiciary as a whole. were consulted. Community opin- agree that appointment ensures better I realize that views may differ about ion was canvassed. The view of the and more remunerative work; I suspect it these matters, but I hope that this let- Consumer Association was obtained. may do the exact opposite. The practice ter answers some of your concerns. Your Many hundreds of submissions were of briefi ng two counsel discourages the letter and this response (in draft) were received. briefi ng of as many Senior Counsel as noted by the Bar Council as its meeting on 3. One result of the English enquiry it encourages; probably more. The two 3 March 2005. was that a good deal of dissent was counsel rule has of course been abolished, identifi ed. The Offi ce of Fair Trading and certainly in criminal work, advice Yours sincerely opposed the maintenance of silk. One work and non-trial commercial work, W. Ross Ray QC of its concerns was that the system did Senior Counsel frequently appear with- Chairman not identify areas of specialisation. In out juniors. As for fees, the gap between New Zealand, the decision has been the fees charged by newly appointed made to abolish silk. You mention Senior Counsel and senior junior counsel Ross Ray QC none of these matters. It does make is not great, even comparing counsel in Chairman sense that the Council was unable to similar areas of practice. If one compares Dear Ross, identify critical comment if none of counsel practising in different jurisdic- these enquiries were made. tions, some senior juniors charge more HANK you for your letter of 15 March 4. One remarkable assertion in your let- — often substantially more — than some T2005. However, I fi nd it disappointing. ter is that you believe that the process silks. It demonstrates that the abolition of a is “supported by the general commu- You strongly criticize the method of conservative historical decoration such as nity”. In saying that, you rely upon the appointment. I disagree with your criti- the appointment of silk cannot be effected absence of critical media comment. cisms. from within. The tenor of your comments Your conclusion is said to be reinforced You fi rst mention the method by which makes it clear that only outside interven- by the fact that this silence exists in a appointments are announced. I do not see tion can bring about a real review of the media which is critical of lawyers and that this is very important; but the suc- institution. engages in “barrister-bashing” stories. cessful and unsuccessful applicants are It seems that the issue is essentially As a result, the Council “did not feel notifi ed by letters from the Chief Justice, an emotional one — intellectual rigour is the need to justify the institution”. It and there are the formal ceremonies with replaced by assertion. Let me deal with is diffi cult to believe that this view which you are familiar. No more is neces- some of the matters you have raised: could be held. That community and sary. 1. It appears that the Council was so media opinion should be the touch- You say that no criteria for selection confi dent of the worth of the institu- stone for the determination of the are published and no reasons are given for tion that it devoted little time to the appropriateness of Court and Bar the decisions that are made. I do not think question last year. This is unfortunate practices is remarkable. There is noth- you are right in saying that no criteria are as other jurisdictions have given the ing more sure than that the media, if published. The Chief Justice’s notice in issue exhaustive consideration. You scratched, would be critical not only September last year describes in its open- call in aid the results of the English of silk but also of the Bar in general. ing section the qualities that are required enquiry. However, an awareness of the It is an illusion to claim support from
8 that area. However, if the Bar Council nothing is known of the process of Your letter has achieved its task. It is places such stock on media comment, selection from the time of application clear to me that internal debate cannot I imagine that critical comment could until the time of appointment. That change an historical and conservative easily be arranged. is a critical matter which received a feature of the Bar, whatever the merits. 5. You disagree with me that the system great deal of consideration in England. It is apparent to me that only external is anti-competitive. You say that your It was considered that the selection pressure from a body such as the ACCC or view is the “prevailing view”. Whose process should be open and wholly media pressure can change the situation. prevailing view? Is it the prevailing transparent. I have no heart for any of these. I have the view of the ACCC? You disagree that 10. You say that there are criteria for greatest affection for the Bar where I have the system leads to increased fees. selection set out. I am wholly unaware spent my working life. I do not intend to You disagree that the appointment of the requirements for appointment. take the matter any further. The only of senior counsel leads to a benefi t Does it include an outstanding advice further steps I will take is to provide the to them in terms of their work and practice? Does it include outstand- correspondence to the Bar News for pub- in terms of fees rendered. The argu- ing work for the profession? Does it lication if the Editors see fi t. I do not seek ments mounted in favour of these include the learned writing of the law? any response to this letter. conclusions can only be described Does it include an excellent mediation Yours faithfully as surprising. The submissions of the practice? In England, the criteria, Department of Constitutional Affairs which you consider intuitive, are spelt John A. Riordan to the English enquiry acknowledged out in detail. cc: The Honourable Justice Marilyn that the institution, of itself, enhances 11. You say you do not believe there is Warren, Chief Justice the earning power and competitive a quota. On what basis do you not The Honourable R. Hulls, Attorney- position of silks. believe there is a quota? When the General 6. You go on to assert that fees charged number of barristers appointed is The Honourable Justice Michael by senior counsel are not much more than halved by a newly incum- Black, Chief Justice, Federal Court greater than those of junior counsel. bent Chief Justice, what does that The Honourable Judge Rozenes, All barristers, taxing masters and mean? Does it mean that unsuit- Chief Judge, County Court solicitors know that senior counsel able candidates had been appointed Chief Magistrate Ian Gray, Magistrates’ charge considerably higher fees. The before? Does it mean that there are Court reference to some juniors charging now fewer suitable candidates? As a Victoria Strong, President, Law more than senior counsel in another matter of common sense, it is clear Institute jurisdiction does not assist. that the present Chief Justice applied The Editors, Bar News. 7. You contend that an appointment does a more rigorous standard, which in not ensure better and more complex many ways must be thought desirable. work. Rather, you claim, it may result However, does that mean that there A Matter of Taste? in the depressing prospect of lesser were only I1 candidates who met the and reduced remunerative work. You criteria? On your statement, it must be Dear Editors are in confl ict with the Chief Justice so. Clearly, there are many people who on this point. In her welcome to the met the standard, meaning a quota T is with much reluctance that I enter successful candidates last year, she was applied. Ithe fray re the disputed usage wherein made it clear that they could expect 12. I note your comments regarding con- the editors altered the prose in Master to be engaged in more diffi cult and sultation. I have no doubt that the Patkin’s article (“Standing corrected”, complex litigation by reason of the Chief Justice laboured mightily to Autumn 2005 Bar News 10). My reluc- appointment. It is inherent in that achieve appropriate results. However, tance is borne of the observations over proposition that the work would be it might be said to be an impossible many years that those purporting to lay more remunerative. task for one person. It was said to be down the correct grammar in a public 8. You contend that the two counsel so in England. forum invariably commit a more horren- practice does not result in higher fees It must clearly be so. One person dous boo-boo than that they are seeking to clients generally. That is a remark- could not possibly make the necessary to correct. Thus, while I have disclosed my able proposition. The two counsel rule enquiries, even having regard to the identity to you I would prefer to remain was abolished as anti-competitive. resort to the various Judges referred anonymous should you decide to publish You state that senior counsel do not to. What is more, obviously Judges are this letter. appear with junior counsel in limited not the only reference. Consideration Patkin fi lle is to be commended for her areas. That is so. However, in trial should be given to a selection panel patrial loyalty. However, the texts cited work, senior counsel invariably appear with lay members, as in England. by her do not support her conclusion as with junior counsel. When they are 13. You have not addressed the question asserted. They merely describe the prob- fi rst appointed, they are enjoined by of the treatment of failed candidates, lem and the editors could equally claim Judges and senior practitioners not to except to assert that no treatment is their position to be supported by the same appear alone to maintain tradition. necessary. In England, it is accepted texts. May I refer your readers to Fowler’s 9. You do not mention the word “trans- that a detailed feedback should be (Modern English Usage, third edition parency” in your letter. It was a par- provided to unsuccessful candidates. 1996 by the late Robert Burchfi eld). I do ticularly signifi cant part of my letter. They are allowed an appeal. You are not suggest this to be the only authority or You disagree with my criticism of the particularly sanguine regarding their even to be the most authoritative of many. process. I criticised a system where situation. However, it is a highly persuasive guide.
9 Under the heading “Agreement” some consistency between the disparate singular subjects, and plural verbs go with Fowler suggests that British English styles? plural subjects) and to ask herself the equally accepts either a singular or plu- The equivocal conclusion offered right question (what is the subject that ral verb for collective nouns. [Is “variety here reminds one of the client seeking goes with the verb). Yet she still managed of problems” a collective noun?] For to engage a one-armed lawyer because to get the wrong answer — much like American English Fowler tends to support he was fed up with his legal advice being the administrative decision-maker whose the editors with the caveat that some col- couched in terms of “on the other hand”. decision is immune from judicial review, lective nouns (especially those of the type What would the editors make of “a because the correct test was applied and “a + noun + of + plural noun”) option- variety of problems present themselves the correct question was asked, even ally govern a plural verb [Sub-head 5, …”? Would they alter it to read “a variety though the wrong answer was reached. “Collective nouns”]. As an aside perhaps of problems presents itself …”? I had the good fortune to receive my Burnside could be commissioned by the primary education at a one-teacher school editors to address the issue of whether Yours etc., where the syllabus included “parsing” American English will ultimately prevail Anonymous — a quaintly old-fashioned word which over British English. is probably meaningless to anyone (even Under sub-heading 9, “Attraction” the school teachers) of Ruth Trytell’s genera- problem is as described by both sides. Giving Way to the Right tion. Sadly, in order to determine a verb’s We must determine which is the subject: Dear Editors, subject, one needs to know how to parse “problems” [per the Patkins] or “a variety a sentence. of problems” [per the editors]. This usage UTH Trytell’s letter (“Standing In the sentence “There is/are a variety is consistent with the separate heading RCorrected”, Autumn 2005 issue, page of schools in Melbourne”, the subject is “Collective noun”. Although sub-heading 10) surprises me at three levels: that a per- clearly the singular noun “variety”. It is 4 of that entry leans towards the pat- son who professes to be a school teacher perfectly elementary that the subject can- kinesque: [w]hen a collective noun is fol- is capable of displaying such ignorance of not be the plural noun “schools”, because lowed by of + a plural noun or pronoun, grammar; that, to redress her ignorance, “schools” forms part of an adverbial the choice between a singular and a plural she could not fi nd a more authoritative phrase — “of schools” — and an adverbial verb remains open, but in practice a plural answer than those provided by “a US phrase cannot be the subject of a verb. So verb is somewhat more common. book entitled English Made Simple” and the correct verb has to be the singular “is” May I suggest the principle enunciated “the Reader’s Digest book entitled How to rather than the plural “are”. under sub-heading 2 of “Collective noun” Write and Speak Better” (one is tempted Of course, like most rules of grammar where reference is made to whether the to ask — better than whom?); and that the and syntax, this rule must sometimes collective noun may be thought of as a learned editors consider that the question give way to what “sounds” right. It may unit. Thus a fl eet of identical helicopters discussed in her letter is suffi ciently con- be strictly correct to say “A number of fl ying in formation would attract a singu- tentious to warrant “further comment”. people is present”, but even the most lar verb while a fl eet made up of a wide Had Ruth Trytell commenced her extreme pedant would not speak or write variety of different helicopters (differing research in the obvious place, with that way. in colours, shapes, confi gurations, and Fowler’s Modern English Usage — and Alternatively, had Ruth Trytell chosen purpose) and buzzing about in all differ- if she had had the good fortune to have to consult the third edition of Fowler, ent directions may require a plural verb. access to either the fi rst or the second edited by the New Zealander R.W. This suggestion favours Master Patkin’s edition, rather than the execrable third Burchfi eld, she would have found that, construction so long as there are indeed a — she would have encountered a com- on this point (as most other points), what number of different distinct problems. plete answer to her problem under the was once the touchstone of grammatical What may we conclude? That correct entry “number” and the sub-heading “Red perfection now offers virtually unlimited usage is a fi endish problem? That neither herrings”: licence to speak and write as one fancies. the Patkins nor the editors are in error and Everything is now permitted, including it is really only a matter of taste or choice Some writers are as easily drawn off the split infi nitives; sentences beginning with in the utilization of one of two equally scent as young hounds. They start with prepositions; the use of a comparative correct solutions? If that be the case then a singular subject; before they reach the adjective where a superlative adjective is perhaps the Master’s prose should have verb, a plural noun attached to an of or appropriate (and vice versa); the use of been left undisturbed and without inter- some other similar distraction happens to gender-neutral plural pronouns, instead ference even though another writer (or cross, and off they go in the plural; or vice of gender-specifi c singular pronouns, to editor) would have opted for the alterna- versa. This is a matter of carelessness or stand in place of a singular noun; the mix- tive usage. On the other hand, the editors inexperience only, and needs no discussion; ing of transitive and intransitive verbs; the are the current custodians of the “house but it is so common as to call for a few illus- use of comparative nouns (like “quality” style” for the Bar News and may alter the trations: ... The results of the recognition of and “value”) as if they were absolutes; contributions of their correspondents to this truth is ... / The foundation of politics the use of the subjunctive mood where conform to that style. Consider, for exam- are in the letter only. / ... the indicative mood is called for; even the ple, the problem posed by a hypothetical abandonment of the possessive apostro- article in the same issue written by a spe- Even with no better guidance than that phe prior to a gerund. cialist in, say, the drafting of wills. That afforded by English Made Simple and Presumably, Ruth Trytell is one of the author chooses the construction “There is How to Write and Speak Better, Ruth ever-diminishing group of school teach- a variety of problems …”. Surely the edi- Trytell was still able to identify the right ers who is (note the singular verb for the tors are entitled (or required) to impose principle (that singular verbs go with singular noun, “group”) convinced that
10 there must be a single “correct” way to quite simply by reference to the classic Accordingly, the phrase “There are a speak and write, and that everything else text The King’s English (1908) by H.W. variety of problems…” is incorrect. is therefore incorrect — after all, the pur- Fowler, particularly Chapter 2 — Syntax pose of her letter is to determine which of — Number. P.S. I note that my spellchecker in Word two alternatives is correct, rather than to The word “[t]here” functions as a pro- disagrees with Fowler and me (not I)! contend that both are permissible. If there noun in apposition to the noun “variety”. can only be one “correct” answer, it must The copula (in this case, “is”) should Sincerely be the answer reached by the learned edi- always agree with the subject, not the Simon Matters tors. complement, but in this case the number Still, it is not easy being right. Every signifi ed by the subject (“[t]here”) is time that I type the sentence “A variety determined by the complement (“vari- of schools is available in Melbourne”, the ety”). The word “variety” is a singular Plural the Better Syntax inbuilt “grammar checker” which Mr. collective noun. Gates helpfully supplies with Microsoft The words “of problems” merely form The Editors, Word insists that “is” should be “are”. Who an adjectival phrase qualifying the word Dear Sirs and Madam, am I to argue with the world’s richest man “variety”. That is, they describe what sort or the world’s biggest software company ? of variety is being discussed. In this case, HE question of collective nouns the fact that the word “problems” is also a Tand the verb which follows them is Yours faithfully, noun is irrelevant to the question of agree- a diffi cult one to resolve. I agreed with Anthony J.H. Morris QC ment in number. the grammatical decision enshrined in Fowler gives several examples of sen- the published text of Patkin’s article, ® tences exhibiting incorrect agreement in namely, that “variety” in the phrase Word v Fowler number, including the following analogous “a variety of” is a singular collective Dear Editors example: noun which requires a singular verb. Patkin’s letter taking issue with the HE matter regarding the grammati- “I failed to pass in the small amount of clas- Editors (BN Summer 2004) was Tcal correctness of the phrase “There sics which are still held to be necessary” followed by one from his daughter, Ruth is a variety of problems…” is solved Trytell (BN Autumn 2005). Further
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11 enquiries lead me to alter my original English, on the topic of collective nouns, Modern English Usage4 under the entry view. the authors write: “number”, the author deals with several Surely, I thought, OED would have the issues. Under the issue of nouns of multi- defi nitive answer. However, under “vari- Some nouns, like committee, clergy, tude the author states: ety” OED has a specifi c subheading enemy, group, family, and team, refer to a When the word “number” is itself the sub- “d. With a plural verb.” group but are singular in form. These nouns ject it is a safe rule to treat it as singular Under this subheading it includes are called “collective nouns”. In American when it has a defi nite article and as plural quotations from Lady Montagu (1718), usage, a collective noun takes a singular when it has an indefi nite. The number of Jeremy Bentham (1780) and Alison verb when it refers to the collection con- people present was large, but a large (1849–50) each using a verb in the plural sidered as a whole, as in The family was number of people were present. In after “a variety of” …, specifi cally “pros- united on this question or The enemy Before the conclave begins in a fort- pects”, “nations” and “false attacks”. is suing for peace. It takes a plural verb night’s time a number of details has to The inclusion of the entry under this when it refers to the members of the group be settled singular is clearly wrong; it is subheading, with no warning that it is considered as individuals, as in My family the details that have to be settled not a ancient or otherwise suspect, strongly are always fi ghting among themselves or number; a number of details is a compos- suggests that the usage is, at the least, The enemy were showing up in groups ite subject equivalent to numerous details. permitted. of three or four to turn in their weapons. This use of a number of in the sense of In The Guide to Grammar and In British usage, collective nouns are more more than one is idiosyncratic, but the Writing sponsored by the Capital often treated as plurals: The government almost absurd vagueness of the expression Community College Foundation of have not announced a new policy. The if interpreted literally makes careful writers Hartford, Connecticut, the authors note team are playing in the test matches next prefer an adjective such as some, several, on the subject of collective nouns words week. many, numerous; this has the advantage “which are singular when we think of them too leaving no doubt that the verb must be as groups and plural when we think of the But what of British rather than North plural. individuals acting within the whole”. They American texts? In an article on the provide a number of examples: audience, topic on the British Council website,1 the In the Patkin text a variety of prob- band, class, committee, crowd, dozen, author regards the above explanation as lems is a composite subject with an indefi - family, fl ock, group, heap, herd, jury, indicative of American usage. It approves nite article akin to various problems, in kind, lot, [the] number, public, staff and the usage described in Swan’s Practical which case, had the text read “… a vari- team. English Usage,2 to the effect that “… in ety of problems has to be resolved by the In the discussion explaining the con- British English, singular words like family, Court” Fowler’s would apparently contend cept they state: team, government, which refer to groups that singular is clearly wrong. Whether of people, can be used with either singular the plurality of the verb is affected by Thus, if we’re talking about eggs, we could or plural verbs and pronouns”. Perhaps the fact that the verb precedes the com- say “A dozen is probably not enough.” But “variety” is a further example of such posite subject is a further moot point on if we’re talking partying with our friends, usage, notwithstanding that it does not which Fowler has some interesting views. we could say, “A dozen are coming over this necessarily refer to a group of people? However, having considered the matter afternoon.” The jury delivers its verdict. Cambridge University Press appears, at at some length I now regard the plural as [But] The jury came in and took their seats. fi rst sight, to support the Editors of BN. In the better syntax, although I concede that We could say the Tokyo String Quartet is The Cambridge Grammar of the English either usage as permissible. one of the best string ensembles in the Language the authors write: Yours sincerely, world, but we could say the Beatles were some of the most famous singers in history. The number of differences in grammar David Levin Generally, band names and musical groups between different varieties of Standard take singular or plural verbs depending on English is very small indeed relative to the Notes the form of their names: “The Mamas and full range of syntactic constructions and 1. http://www.learnenglish.org.uk/grammar/ the Papas were one of the best groups morphological word-forms.3 archive/collective_nouns.html of the 70s” and “Metallica is my favorite 2. New Edition, Oxford University Press, band.” Surely tacit support for the view that 1997. the singular verb should follow the singu- 3. The Cambridge Grammar of the English Similarly, in The American Heritage® lar collective noun “number”. Language, Huddleston & Pullum, Cam- Book of English Usage: A Practical and So what of Fowler, arguably the bridge University Press 2002. Authoritative Guide to Contemporary defi nitive syntactic primer? In Fowler’s 4. 2nd Edition, Oxford, 1965. 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12 Chairman’s Cupboard Rendering Unto Caesar
HE financial year having recently with the responsibility of suspending the drawn to a close, it is that time of practising certifi cate of a regulated practi- Tthe year again in which we must tioner if that practitioner, in its opinion, is each render unto Caesar, in the person unfi t to engage in legal practice. of the Deputy Commissioner, that which Rule 197(a)(i) of the Bar Practice Rules is Caesar’s. (Rules of Conduct) requires disclosure of Over the last couple of months, there a sequestration order against a barrister, has been some newspaper publicity about or the fi ling of a debtor’s petition by a bar- the failure of some barristers, solicitors, rister. It is in the context of bankruptcy judges and magistrates to lodge their tax in which there have been signifi cant tax returns on time. National fi gures attrib- debts that barristers in other jurisdictions uted to the Australian Taxation Offi ce have been struck off. (“the ATO”) indicate that, in 2003, 239 Rule 197(a)(iv) requires disclosure of barristers, 2352 solicitors and 26 judges a conviction, or fi nding that an offence or magistrates, failed to lodge a tax return has been proved, where the maximum on time. penalty is a term of imprisonment for 12 The Law Council of Australia has months or more. This would include an established a specialist working group to offence of failing to comply with an order report on the development and monitor- under section 8G(1) of the Taxation ing of strategies to assist legal practition- Administration Act 1953 (Cth) that a ers in meeting their taxation obligations. I person comply with a requirement made chair that working group. under or pursuant to a tax law. Solicitors, even those who practise as role of practitioners. Such failures may Both these discloseable events are, sole practitioners rather than in fi rms, indicate that a person is not a fi t and proper however, well down the track of non-com- are better, I think, at accepting that the person to discharge the duties owed by an pliance beyond the failure to fi le a return conduct of their profession involves the advocate to the court and to lay clients. on time and what might be described as an running of a small business. Barristers, There can be few other professions, if any, initial failure to pay tax. most of whom have clerks to attend to a where such failures bring a professional Signifi cantly, the new Legal large part of the “small business” aspect of career to an end. Profession Act 2004, now scheduled to their practice, are often less focussed on, come into operation on 1 October 2005, and less systematic about, their business, singles out tax offences as capable per and for that matter personal, business and se of constituting unsatisfactory profes- taxation responsibilities. We are concerned that a sional conduct or professional miscon- We are concerned that a small number duct, section 4.4.4(b)(ii). “Tax offence” of Victorian barristers are amongst those small number of Victorian is widely defi ned in section 1.2.1 to who have not lodged annual returns barristers are amongst mean any offence under the Taxation perhaps for more than one year, and are those who have not lodged Administration Act 1953 (Cth), and amongst those who have signifi cant levels so will cover even comparatively minor of outstanding tax debts. annual returns perhaps for offences, such as failure to comply with a In D’Orta Ekenaike v Victoria more than one year, and notice under section 8C, punishable only Legal Aid [2005] HCA 12 at paragraph are amongst those who by a fi ne. Moreover, the general defi nition [107] (10 March 2005), Justice McHugh have signifi cant levels of of “unsatisfactory professional conduct”, identifi ed failure to fi le tax returns and the lesser degree of disciplinary offence, to pay taxes as relevant matters in con- outstanding tax debts. is limited to “conduct occurring in con- sidering whether an advocate is a fi t and nection with the practice of law”, section proper person to practise before the 4.4.2, and it is only the higher degree of courts: Accordingly, these matters must be disciplinary offence, “professional mis- of concern to the Bar as the Recognised conduct”, that, at least in the general [A]dvocates who neglect to fi le income tax Professional Association charged under defi nition, extends to conduct outside the returns or pay taxes may be struck off the section 38 of the Legal Practice Act 1996 practice of law, section 4.4.3.
13 This legislative provision refl ects an The Bar Council has introduced ses- Compliance”. That CLE seminar was at a expectation on the part of the community sions on barristers’ tax obligations into fairly basic level. The next CLE seminar, that members of the legal profession have the Readers’ Course and into the Bar which will be some time during the next a particular responsibility to comply with Compulsory Continuing Legal Education Readers’ Course beginning in September, the law, and that a failure to do so refl ects program. The ATO is assisting with these, will be more advanced. on that person’s fi tness to practise law, and conducted a session on tax compli- I and our Chief Executive Offi cer, even if that failure is in the lawyer’s private ance by barristers in the Readers’ Course Christine Harvey, have met with the capacity and in no way connected to his or Clerks to discuss ways in which the Bar her practice. and the Clerks may be able to assist and Consistent with these provisions in the support members in diffi culty. Obviously, new Legal Profession Act, the Bar will need It is important that any any contact with me or any member of to amend Rule 197 to include proof of any Victorian barristers who the Bar Council, with Christine Harvey, or offence under the Taxation Administration with your clerk will be kept in confi dence. Act as a discloseable event. are in arrears, or their But members in diffi culty need to con- Representatives of the ATO have met accountants, contact the tact one of us. We can help, but we can’t with the Bar Council and stressed that, as ATO without delay so that, contact you because we don’t know who with any other member of the community, hopefully, the contact you are. You may do your own tax. You or group, the fi rst aim of the ATO is educa- may have your own accountant. If you tion to inform members of the profession will be made before the do not, we can give you the names of a about their particular obligations as bar- initiation of enforcement number of accountants for your consid- risters, and to encourage and facilitate proceedings, while it is eration who have advised other barristers compliance. Once the ATO has initiated and are familiar with the particular issues court proceedings to enforce compliance, still possible to come to relevant to tax obligations in a barrister’s those proceedings must take their course, terms about a reasonable practice. If you are in arrears, I urge you and options are limited. schedule for late fi ling and to seek assistance, and to do so without Accordingly, it is important that any reasonable arrangements delay. Victorian barristers who are in arrears, This is my last Chairman’s Cupboard. or their accountants, contact the ATO for payment of outstanding I thank you for the privilege of serving without delay so that, hopefully, the con- amounts. on the Bar Council over the years and, in tact will be made before the initiation of particular, this year as Chairman. I shall enforcement proceedings, while it is still continue to serve as a Director and mem- possible to come to terms about a reason- on 11 May 2005. This will now be a regular ber of the Executive of the Law Council able schedule for late fi ling and reasonable component of that course. of Australia and am, as some of you may arrangements for payment of outstanding Also that day, the ATO conducted a know, Treasurer of the LCA this year. amounts. Compliance action is taken as a Continuing Legal Education seminar, matter of routine. It is inevitable, although “Barrister’s Obligation in Relation to Ross Ray QC the timing is fortuitous. GST Income Tax Record Keeping Tax Chairman
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14 Attorney-General’s Column Bringing the Crimes Act into the 21st Century
’M pleased to inform readers that work the subject of substantive policy reform. is underway on the most signifi cant Proposed areas are homicide (includ- Icriminal law reform project in 50 ing defences), committal proceedings, years. In my view, the criminal law is the indictable offences triable summarily, cornerstone of any justice system — a geographical jurisdiction, and theft, fraud measure of our capacity for integrity and and related offences. compassion. When an individual’s liberty Make no mistake, this is a major is at stake it is essential that our criminal project. It will benefi t both the profession law functions fairly, effectively and con- and the community by rectifying areas of sistently, and therefore one of the major the criminal law which have long been projects in the sweeping agenda set by confusing, anachronistic and inconsist- last year’s Justice Statement included the ent. It will, of course, mean a signifi cant reform and replacement of the legislative amount of change for those working in the framework that surrounds the criminal criminal jurisdiction and the contribution law. of those practitioners to the project will be As readers will be aware, the invaluable, as it is an opportunity for the Government has commissioned refer- profession to help shape the framework of ences from the Victorian Law Reform the criminal law. Commission concerning the Evidence An advisory group of senior personnel Act 1958 and the Bail Act 1977, while working in the criminal justice system a specialised unit within the Department has been convened to provide advice on of Justice has started work on an over- such as “estreat” and “rasure”. It is there- the reforms. The group includes senior haul of the Crimes Act 1958. This unit is fore time to bring the language, as well as representatives from the courts, the DPP examining the entirety of this Act, as well the policy, into the 21st century. and the OPP, the Victorian Bar Council, as provisions in the Summary Offences While the primary purpose of the the Criminal Bar Association, the Law Act 1966, Part 5 of the Drugs, Poisons Department’s work is to consolidate and Institute, Victoria Legal Aid and Victoria and Controlled Substances Act 1981, clarify the existing law, rather than rede- Police. In addition, working parties are the Crimes (Criminal Trials Act) 1999 fi ne or codify principles, some aspects likely to be used to gather information and and some common law principles, rules of the Crimes Act will be nevertheless ideas from others working in the jurisdic- and offences. tion. The project will focus on rationalisation All recommendations will of course of and consistency between provisions. be developed in accordance with funda- More than 1,500 changes have been made Some aspects of the mental principles of the criminal justice over the last 47 years to a piece of legisla- Crimes Act will be system, i.e., laws creating offences must tion that is now crying out for a compre- nevertheless the subject be consistent, transparent, fair and cer- hensive overhaul. Every provision will also tain; the defendant must be presumed to be studied from a drafting perspective of substantive policy be innocent, the prosecution must prove and, where necessary, provisions will be reform. Proposed areas the offence beyond reasonable doubt and re-drafted in contemporary and accessible are homicide (including punishment must be fair. language. This is critical, as the Act was Powers must also be justifi ed in the last consolidated in 1958, although the defences), committal public interest following consideration of history of some provisions dates further, proceedings, indictable the nature of the harm sought to be dealt with offences such as treason and piracy offences triable summarily, with and its effects on individuals and the being drawn from centuries-old laws. The geographical jurisdiction, community; the degree of intrusion on average Victorian — dare I suggest, even citizens’ rights involved in the exercise of the average practitioner not conversant in and theft, fraud and the power; and ensuring that those who olde English — is unlikely to be comfort- related offences. are granted powers must be accountable able getting their tongue around terms for the exercise of those powers.
15 The three elements of the legislation • Ways to improve trial procedure. attempts have been made to improve which shape the tripartite project are The average length of hearings has case management techniques through “investigation powers”, “offences” and increased in recent years. Several the Crimes (Criminal Trials) Acts of “criminal procedure”. “Procedure” is the 1993 and 1999, and the County Court fi rst cab off the rank and this sub-project has been making signifi cant adminis- will work on: trative changes over the last two to • Rationalisation and clarifi cation of An advisory group three years. provisions, as well as identifi cation of of senior personnel • Appeals to the Court of Appeal: Seeking opportunities to improve archaic pro- to identify whether any improvements cedures and practices; working in the criminal can be made to the current proce- • Identifi cation of ways to improve the justice system has been dures. committal process. The number of convened to provide I encourage all readers to engage with contested committal hearings has advice on the reforms. the overhaul of the Crimes Act, as well as increased in recent years. This project with the broader reform of the criminal will seek to identify whether improve- The group includes senior legislative framework. Those interested ments can be made to the current representatives from the can contact the relevant unit within my system to increase effi ciency without courts, the DPP and the Department on [email protected]. I prejudicing the rights of the accused. hope you will be as excited by the pos- Abolishing committals is not being con- OPP, the Victorian Bar sibilities ahead as I am. sidered. Council, the Criminal • Consideration of whether more indict- Bar Association, the Law able offences should be made triable Institute, Victoria Legal Rob Hulls MP summarily to ensure the lowest most Attorney-General appropriate jurisdiction is used for Aid and Victoria Police. hearings.
16 Notes on Practice Legal Profession Act 2004 Fran O’Brien S.C. explains how the new Legal Profession Act 2004 impacts upon barristers.
LL members of the Bar should be defi nition of discipline, that is, the level aware of the new Legal Profession of competence, diligence, fi tness and/or AAct 2004 (the Act) which is now proprietary to engage in legal practice is set to be proclaimed in October 2005. surely a matter for professional associa- Specifi cally, chapter 4 of that Act pro- tions. vides for a new system of complaints and Sexist, racist etc. behaviour in the discipline for members of the profession. delivery of services is adequately pro- vided for in the Equal Opportunity Act THE LEGAL SERVICES 1995 and applies to all service providers. COMMISSIONER The singling out of one profession to The Act creates the “Legal Services enforce conduct by this method lacks Commissioner”. This is the “one stop shop- cogency. ping” regime which is said to avoid “confu- This scheme provides a statutory char- sion” on the part of consumers as to how ter for the mad, the bad and the vexatious. to complain. Under the current system, It risks being a very signifi cant administra- complaints could be made to the Bar, the tive burden on barristers in particular as Law Institute or the Legal Ombudsman. sole practitioners. The new regime is contrary to current Of course costs do not follow the event approaches to so-called “consumer inter- in a civil complaint. Costs are payable ests” which would prescribe more choice where the Tribunal fi nds in a discipline not less: see page 2 of the second reading complaint, unsatisfactory conduct or pro- speech dated 16 November 2004. Fran O’Brien S.C. fessional misconduct unless exceptional The Legal Services Commissioner is circumstances exist, otherwise costs are charged under the Act with responsibility discretionary in discipline matters. S109 for administering and in part enforcing CIVIL COMPLAINTS of the VCAT Act applies to civil complaints the scheme of civil complaints and disci- A civil complaint is defi ned widely to and do not follow the event. pline. The scheme is structured much as include: The complainant is the party to a civil complaints of discrimination under the 1. A legal costs dispute to $25,000.00. This complaint notifi ed to the VCAT. The Legal Equal Opportunity Act 1995. Broadly, was formerly $15,000 and excluded Services Commissioner is the prosecuting any civil and/or discipline complaint family law costs. This exception does party to a disciplinary complaint before must be lodged with the Commissioner. not appear to have been preserved. the VCAT. The Commissioner has certain powers to 2. Any “pecuniary loss” suffered as a The Commissioner does have the deal with complaints both civil and disci- result of an act or omission of a prac- power to summarily dismiss any com- plinary. titioner. This was formerly $15,000 plaint. However, the structure of the The Legal Services Commissioner is excluding wills and probate matters. Act requires the Commissioner to notify also the CEO of the Legal Practice Board. This exception does not appear to have the practitioner of the complaint. The The Legal Practice Board’s responsibilities been preserved. practical effect of this will be that the remain essentially the same as under the 3. Any other “genuine dispute” between a practitioner will have to request the com- Legal Profession Practice Act 1996. Part client and a provider of legal services; missioner to exercise these powers of 5 of the Act provides for the additional and summary dismissal. responsibility of external administration 4. The “conduct” of a provider of legal Additionally the Commissioner has to of practices and inspection and supervi- services. give written reasons to the complainant if sion of trust accounts. The breadth and depth of this defi ni- a complaint is dismissed. No such obliga- However, the civil and discipline com- tion raises very signifi cant concerns for tion exists if there is refusal to exercise plaints system is wholly the responsibility the profession. the power. of the Legal Services Commissioner. The It is diffi cult to see why the administra- Given the nature of the summary dis- Legal Ombudsman is abolished. The staff tion of justice should concern itself with missal power, review pursuant to Order of the legal ombudsman will by operation matters of “conduct” by a legal services 56 of the Supreme Court Rules and poten- of law become the employees of the Legal provider. tially the Administrative Law Act 1978 Services Commissioner. “Conduct” which falls short of the would be open.
17 Should the commissioner exercise THE ORDERS OF THE VCAT IN CIVIL to settle for sums larger than the Tribunal the summary dismissal powers, unlike COMPLAINTS could in fact order. the Equal Opportunity Act 1995 the The jurisdiction of VCAT (matters will The Commissioner may receive and complainant cannot nevertheless require be heard in the “Legal Practice List”) in attempt to resolve “pecuniary loss” claims that the complaint be referred to VCAT a civil complaint only arises if the com- without limit. But the Tribunal may order for hearing. plaint lodged with the Commissioner is “compensation” not exceeding $25,000.00. If the Commissioner does not dismiss notifi ed by the Commissioner to VCAT This appears to mean a complainant may the complaint the Commissioner must as “unlikely” or “unable” to be resolved have to abandon the part of a civil dispute attempt to resolve any civil complaint or “not suitable” for resolution by the compensation claim over $25,000 at VCAT and “may take any action” considered Commissioner. The transitional provi- despite lodging such a claim with the necessary to assist the parties to reach sions in Chapter 8 provides for the former Legal Services Commissioner. an agreement. This includes requiring the members of the Legal Profession Tribunal Under the current system an award of parties to attend mediation, requiring sup- to become members of VCAT. Page 4 of a “pecuniary loss” up to $15,000 was pay- ply of documents or information. This has the Second Reading speech refers to mat- able where loss occurred as a result of a the potential for a heavy administrative ters being heard in the Legal Practice list dispute between the legal practitioner and burden upon barristers. The mediation of VCAT. the client. “Compensation” up to $15,000 provisions in Division 3 largely follow the Should the civil complaint be referred was payable where a disciplinary com- usual format. to VCAT for hearing with the neces- plaint led to fi nancial loss. However, in relation to mediation, there sary notice from the Commissioner the Presumably this distinction between is a provision that the mediator “must pre- Tribunal may make: “pecuniary loss” and “compensation” has pare a written record of the agreement, 1. “compensation” orders up to the value been made to allow the Tribunal to award signed by the parties and the mediator of $25,000.00; loss arising from the complaint about legal and give a copy to the Commissioner”. 2. an order in relation to a legal costs dis- work performed and any “conduct” com- The agreement is the document by which pute without limit; plained of. Thus it appears the total of the the enforcement of the agreement in the 3. an order that legal costs be waived or amount able to be ordered for either or Magistrates’ Court is affected. The section repaid; both types of civil complaint is $25,000. is drafted in such a way that it suggests 4. an order that the legal service provider However, if two separate complaints this is the only method by which agree- provide services free of charge, or were brought, one about the pecuniary ment could be reached and appears to any other order as the Tribunal “sees loss and a second about the “conduct” two exclude agreement on terms or by a fi t”. awards could be made up to $25,000 each. signed release. The differences in the jurisdiction Nevertheless the Commissioner could The Commissioner is also charged between what may be lodged with the receive and endeavour to mediate a reso- with assisting complainants to formulate Commissioner as a civil complaint and lution of a civil (not a costs complaint) their complaints. My experience at the that which VCAT may order presents complaint worth millions. Equal Opportunity Commission over some diffi culties. Additionally the Tribunal may order many years is that the necessary level The Commissioner has a limit in deal- the delivering up of documents, the pro- of expertise to do this in discrimination ing with complaints as to legal costs up vision of specifi ed legal services and the matters is often lacking at the Equal to $25,000.00. There is no limit on what repayment of costs without limit. Opportunity Commission. The global the VCAT may order in relation to such a nature of complaints that often character- dispute. DISCIPLINE COMPLAINTS ise complaints against the legal profession The jurisdiction of the Tribunal only “Discipline” is defi ned by two familiar make the likelihood of such expertise arises where “the complaint” notifi ed concepts. being available at the Legal Services to it by the Commissioner has not been First, unsatisfactory professional con- Commission even less likely. The kind resolved or dismissed. duct: This is defi ned as including conduct of assistance both the Law Institute It is diffi cult to see how the Tribunal occurring in connection with the practice and the Ethics Committee of the Bar could use this wider power. Should the of law that falls short of the standard of gave to complainants for this purpose Tribunal do so, it could potentially deal competence and diligence that a member is now completely lost (potentially) with matters not within “the Complaint” of the public is entitled to expect of a rea- by this new system. The handful of that had been before the Commissioner. sonably competent practitioner. complaints the Legal Ombudsman made Hence its jurisdiction would be in doubt. Second, professional misconduct to the Legal Profession Tribunal since Whether the Tribunal is bound by the includes: its inception could well indicate the “complaint” or can deal with issues “aris- 1. Conduct which involves a substantial or complexity of the skill and experience ing from the matter” is an issue of some consistent failure to reach or maintain necessary to delineate a well-founded controversy in the Discrimination List. a reasonable standard of competence complaint. Respondents are rightly concerned to and diligence; or Once the complaint has been made know the complaint against them and to 2. Conduct whether occurring in connec- and the legal practitioner has been noti- use the opportunity to deal with all mat- tion with the practice of law or not that fi ed, neither the complainant or the legal ters under the (effectively compulsory) would justify a fi nding that the practi- practitioner can commence proceedings mediation provisions. tioner is not a fi t or proper person to in relation to the subject matter of the Further, the very policy purpose of engage in legal practice. complaint until the complaint is dis- this structure — to require (in a practical Sections 4.4.4, 5 and 6 defi ne what missed, determined and any appeal rights sense) parties to mediate their disputes is capable of constituting unsatisfactory are exhausted. — means there could often be little reason professional conduct or professional mis-
18 conduct. It specifi cally defi nes what is Tribunal for the relevant orders, the Under the current Legal Practice unsatisfactory professional conduct and Commissioner’s role is that of prosecutor Act the small civil claims mechanism professional misconduct without limiting in discipline matters and is akin to the worked effi ciently. Disciplinary matters the general defi nition. DDP in criminal trials. appear to have been dealt with fairly and The Commissioner is required to inves- Clearly such decision-making on the impartially. The structure gave all parties tigate any disciplinary complaint lodged part of the Commissioner requires con- an appeal mechanism with the unpur- with it. siderable skill, expertise, experience and chaseable expertise and experience of a It is not necessary for a complaint resources. former Supreme or County Court Judge. to have been made for an investigation In the case of unsatisfactory pro- This hearing structure was in line with to be conducted by the Legal Services fessional conduct, in addition, the all other professional regulation where Commissioner. Commissioner may, with the consent of the statutorily enacted and professionally The Commissioner may refer a com- the practitioner, reprimand or caution the constituted boards hear complaints at fi rst plaint to a prescribed investigatory body. practitioner, and/or require the payment instance with appeal rights to VCAT. This This is where the Ethics Committee of of compensation as a condition of not two-tier arrangement is abolished under the Bar and the Law Institute could con- making an application to the Tribunal, or the new Act. tinue to be involved in the investigation take no further action. This is in line with of disciplinary complaints. This is not a current practice. PUBLICATION OF DISCIPLINARY delegation of the power to investigate. It Nevertheless, written notice must be ACTION is merely a referral and the “prescribed given to the complainant of the decision A register of disciplinary action is to be set body” makes a recommendation only. of the Commissioner if the decision of the up. This is to be kept by the Legal Practice The mere fact that a reference has been Commissioner is to take no further action. Board. The Act provides that the register made to such a body does not prevent the The Commissioner must “dismiss the dis- only applies in relation to disciplinary Commissioner from further investigating cipline complaint”. action taken after the commencement of the complaint after the report has been the section, but details relating to earlier received from the investigating body. THE POWERS OF THE TRIBUNAL ON disciplinary action may be included in the The Commissioner may summarily A DISCIPLINE COMPLAINT register. The register must be made avail- dismiss a disciplinary complaint but must HEARING able to the public on the Board’s internet give written reason to the complainant. These are set out in ss.4.4.17, 18 and 19 site and the Board may publicise the disci- The powers of the Commissioner and and are extensive, including the usual plinary action in any other way it sees fi t. the prescribed investigatory body are as removal from the Supreme Court Roll, These powers of publication are limited you would expect. They can require a full Interstate Roll, fi nes, conditional prac- only by prohibition against publication written explanation and any other infor- tice, reprimands and any other orders the until the expiry of all rights and where mation or documents. Tribunal thinks fi t. disciplinary action has been taken against Once the investigation is completed, The Tribunal has all of the powers under an infi rm person. the Commissioner may apply to the the Victorian Civil & Administrative These are consistent with the broader Tribunal for the relevant orders if there is Tribunal Act 1998 which includes objects of the Act and the rights vested in a “reasonable likelihood that the Tribunal injunctions, inter injunctions, declara- the Commissioner to enter into protocols would fi nd a practitioner guilty of pro- tions, further orders and the imposition of with corresponding authorities in other fessional misconduct”. This is the test conditions on orders and orders for costs. States to publicise the discipline register, currently in use for the reference of com- Section 75 of the VCAT Act includes sum- to conduct investigations of complaints plaints to the Legal Profession Tribunal. mary power of dismissal at any time dur- and to share information with the corre- As the Commissioner must apply to the ing the course of the hearing. sponding interstate authorities.
19 Notes on Practice Disclosure Requirements and Cost Agreements Under the Legal Profession Act 2004 Elizabeth Harris reports on the statutory changes to barristers’ disclosure requirements and cost agreements under the new legal regime.
HE Legal Profession Act 2004 • Establish procedures to document (“the Act”) is expected to com- decisions to waive disclosure require- Tmence operation on 1 October ments if appropriate. 2005. It will automatically come into effect • If fees are marked on the basis of time on 1 January 2006, if not proclaimed prior spent, consider how time is recorded to that date. The Act establishes a new to ensure maximum recoverability of regulatory system for the legal profes- costs should fees be challenged. sion and comes into being as part of the move towards a national profession. New DISCLOSURE REQUIREMENTS South Wales and Queensland have passed As a preliminary matter, it is important to equivalent Acts. note two common misconceptions regard- This article concentrates on the provi- ing disclosure. The fi rst misconception is sions relating to the disclosure require- that a disclosure statement can, but often ments under the Act which are likely to does not, constitute a cost agreement. For have an immediate impact on day to day a number of reasons, it is far preferable practice. It does not cover all aspects of that the disclosure statement be quite the Act. separate to the cost agreement: The Act will affect legal practice on a • The disclosure statement has to notify day to day basis in the following areas: the client of the right of the client to • The ongoing disclosure requirements. negotiate a cost agreement. Query how • Review of bills pursuant to cost agree- this provision sits with the disclosure ments. Elizabeth Harris LLB. statement itself constituting the agree- • Requirements re notices on bills. ment. • Changes to recovery time limits and • It is preferable that some matters procedures. required in the disclosure statement • Review the cost agreement(s) to (e.g. cost estimates) are not contrac- SUMMARY OF CHANGES: ensure it is enforceable, and covers tually enforceable against the practi- WHAT COUNSEL SHOULD BE matters such as the ability to charge tioner as part of the cost agreement. DOING NOW interest and increase rates. • The terms of a disclosure statement The principal matters counsel should be • Review engagement procedures of itself are not generally suffi cient to attending to prior to the commencement to ensure disclosure requirements establish a proper basis on which to of the Act are: are met, and any cost agreement is charge other than scale fees. • Update the present section 86 letters enforceable. • A cost agreement can be set aside on to comply with the Disclosure require- • Review practice management proce- the grounds that it is not fair, reason- ments in Division 3 of Part 3. dures to ensure continuing disclosure able or just. An inaccurate disclosure • If counsel are briefed in jurisdic- obligations are met, including updates (e.g. cost estimates) could found such tions where a scale applies, consider of estimates, and changes to hourly a ground. whether a cost agreement is required. and daily rates. • The client may have rights under the
20 Trade Practices Act 1974 in relation practice, (typically counsel engaged by substantial changes to anything included in to inaccurate matters in the disclosure a solicitor), must disclose the following a disclosure under this Division … statement, and it is preferable that matters to enable disclosure by the fi rst these are not available to the client in law practice to the client: Arguably, this requires counsel to make relation to a dispute about the terms of • Basis of calculation of costs and disclosure of any change to the original the cost agreement. whether/which scale applies. disclosure statement to the client, rather The second misconception relates • Estimate of — than to the solicitor to whom the original to the exceptions to disclosure require- Total costs OR disclosure was made. If this is the case, ments. Range of costs and explanation of then the non-disclosure consequences of S.3.4.19 provides three bases on which variables. s.3.4.17 will apply to counsel given that legal costs are recoverable: • Billing intervals. this section operates when a law practice 1. Pursuant to a cost agreement. Where counsel is retained by another fails to disclose a matter to the client. No 2. Pursuant to the relevant scale or prac- law practice, s.3.4.9 specifi cally provides reference is made in this section to failure titioner remuneration order (“PRO”). that counsel is not required to make dis- to disclose to another law practice. 3. If neither 1 nor 2 applies, on the fair closure to the client and limits the matters It would seem to be against the spirit of and reasonable value of the costs, which must be disclosed to the law prac- the legislation if there is no obligation on taking into account such matters as tice to those set out above. counsel to advise the solicitor of matters disclosures made, skill, labour and required for the solicitor to meet his or responsibility, complexity, novelty and Settlement of litigious matters her continuing obligation to the client to diffi culty of the matter, and the quality Prior to settlement in litigious matters, update the estimate of costs. of the work. unless counsel is aware that the solicitor The fact that the disclosure excep- has already advised the client of same, Consequences of failure to disclose tion provisions apply does not exclude counsel must disclose the following to The consequences of non-disclosure the requirement for a cost agreement, if the client (not the other law practice) depend on the nature of the non-disclo- the practitioner wishes to charge on any (s.3.4.13): sure. basis other than that provided by the Act • Reasonable estimate of costs payable If the failure is to provide the relevant (e.g. scale or PRO or reasonable charge). (including costs payable to another information to another law practice pur- If a practitioner proposes to charge on any party). suant to s.3.4.10, the consequences are: other basis, the practitioner MUST have a • Reasonable estimate of costs to be • Failure to disclose is a matter to be cost agreement with the client. This is rel- received from another party (i.e. party/ taken into account by VCAT on an evant to both counsel and solicitors. party costs recoverable). application to set aside a cost agree- In particular, where counsel is briefed ment (s.3.4.32). in jurisdictions where a scale of fees for Uplift fees and conditional cost • Failure to comply with the disclosure counsel applies, fees will only be recover- agreements provisions can constitute unsatisfac- able pursuant to the scale, unless a cost Where an uplift fee is to be charged, the tory professional conduct or miscon- agreement is in place. The obvious juris- practitioner must make the following dis- duct (s.3.4.17(4)). dictions in this regard are the Magistrates’ closure to the client in writing before the • The practitioner must pay the costs of Court, the County Court the Family cost agreement is entered into (s.3.4.14): a review (taxation) of costs (s.3.4.45). Court and the Federal Magistrates’ Court. • The law practice’s usual fees. • Disclosures made, or the failure to There may also be certain Tribunal mat- • The uplift fee as a percentage of usual make disclosures required are factors ters where a scale will apply to counsel’s fees which the Taxing Master can take fees. Further, in the Federal Court, the • The reasons why the uplift fee is war- account of in a review of solicitor/client Court publishes a recommended scale of ranted. costs (s.3.4.44(b)). counsel’s fees, which, although not strictly The provision appears to apply irre- As has been noted, there are certain part of the Rules, would be a point of ref- spective of whether the cost agreement is disclosures which must be made to the erence for the “reasonableness” of fees between counsel and solicitor or counsel client, rather than to another law practice, marked in that jurisdiction. and client. even if counsel is retained by the law prac- tice on behalf of the client. Failure to make DISCLOSURE REQUIREMENTS Ongoing obligation (s.3.4.16) disclosure to a client attracts the following For counsel, there are different disclo- This section imposes an ongoing obliga- additional consequences (s.3.4.17): sure requirements depending on whether tion to advise the client as soon as the • The client does not have to pay the the retainer is with a solicitor, with the practitioner becomes aware of a substan- costs until they have been reviewed solicitor as agent for the client, or with tial change to a matter disclosed. (taxed). the client directly. Therefore, as a start- There is doubt as to whether the ongo- • The client may apply to set aside a cost ing point, the basis of the retainer must be ing obligations apply to law practices agreement. ascertained. engaged by another law practice (i.e. • The practitioner cannot maintain a counsel/agent). A law practice engaged recovery proceeding unless the costs Counsel retained by another law by another law practice must make dis- have been reviewed. practice (i.e. a solicitor) closure to the fi rst law practice to enable Where counsel is retained by a solici- them to make disclosure to the client. EXEMPTIONS FROM DISCLOSURE tor, on behalf of a client, the disclosure However, s.3.4.16 provides that: (S.3.4.12) requirements are detailed in s.3.4.10. Generally, the disclosure provisions retain A law practice engaged by another law a law practice must notify the client of any the exemptions in the Legal Practice
21 Act 1996. The changes to categories of to charge in accordance with the relevant • Cannot exclude the review provisions exempted clients/matters are: scale or Practitioners Remuneration Order of the Act. • Accountancy practices and trustees or, if these are not applicable, at a fair and • May be between: are no longer included in exempted reasonable value for services provided — a law practice and a client; clients. (s.3.4.19). A potentially diffi cult aspect is — a client and a second law practice; • Matters where the legal costs will be that a cost agreement can only be made — a law practice and another law calculated or have been agreed as part with a “client” or other law practice. practice. of tender process are now exempted. Part 3.4 of the Act (of which Division A cost agreement is enforce- • Pro bono matters are now exempted. 5 if part), defi nes “the client” as “a person able like any other contract (s.3.4.30(1)). The most substantial change is where to or for whom legal services are pro- Cost agreements which contravene the client has received one or more dis- vided, and includes a prospective client”. Division 5 are void, the consequence being closure statements in the previous 12 However, it is not uncommon for a prac- that costs are only recoverable under months. Now, a positive decision must titioner to be retained by a person other scale, PRO or on the fair and reasonable be made by a principal of a law practice than the person to or for whom the legal basis, and the practitioner must repay the that no further disclosure is required. services are provided. For example, a excess of any fees paid. Such decision must be made on reason- parent may engage a practitioner on behalf Contingency fees continue to be pro- able grounds and documented on the fi le. of a child, and clearly agree to be respon- hibited, and a practice entering into a If no reasonable grounds can be estab- sible for payment of costs. Arguably, the contingency agreement is prevented from lished, the principal may be found guilty cost agreement cannot be made with recovering any costs for services rendered of unsatisfactory professional conduct or the parent, but must be made with the and must repay any monies received for misconduct. Further, the non-disclosure child. An even more common example is costs (s.3.4.31(5)). consequences would apply. where an insurance company instructs a Conditional cost agreements practitioner. In this instance it is arguable PROGRESS REPORTS (S.3.4.18) There are further specifi c provisions that the “client” is the insured, not the regarding conditional cost agreements A client may request written reports on insurer. (s.3.4.27): both the progress of the matter and the • Cannot relate to Criminal or Family costs incurred to date, or incurred since Requirements of a cost agreement Law matters. the last bill. A practitioner must provide (s.3.4.26) • Must specify what constitutes “suc- such a report and can charge for prepara- • Must be in writing or evidenced in writ- cess”. tion of a report as to progress but not for a ing. • May provide that disbursements are report on costs. • May consist of a written offer which payable in any event. A second law practice (counsel/agent) is capable of acceptance by conduct • Must be in clear plain language. does not have to provide a progress report If it is a written offer it must also state: • Must be signed by the client. on the request of the client but does have — that it is an offer; This provision is not applicable to to provide information to the fi rst law — that it can be accepted in writing conditional agreements between law practice to enable it to comply with the or by conduct; practices. client’s request. — what type of conduct constitutes • Must advise the client of his or her acceptance (typically this will be COST AGREEMENTS right to seek independent legal continuing to provide instructions, advice before signing the agreement. Division 5 of Part 3.4 of the Legal and/or payment of accounts ren- This provision is not applicable to Profession Act 2004 governs Cost dered). conditional agreements between law Agreements. It is important to note that a practices. In the absence of an enforceable cost conditional cost agreement must be • Must have a cooling-off period of agreement, a law practice is only entitled accepted in writing. at least fi ve clear business days. Termination of the agreement by the cli- ent within this time must be in writing. This provision is not applicable to conditional agreements between law RII practices. ZKHQ\RXVSHQGRU Uplift fees A conditional cost agreement may provide PRUH for uplift fees, being a premium on both 2IIHUYDOLGZLWK9LFWRULDQ%DU$VVRFLDWLRQ&DUG fees and paid disbursements. 'LVFRXQWDSSOLHVWR553RQO\ 'LVFRXQWDSSOLHVWR553RQO\ Where an uplift fee is to be charged, the practitioner must make the following disclosure before the cost agreement is %RRNZRUP%RRNV entered into (s.3.4.14): ZULJJOHLQIRU $%1 :LOOLDP6WUHHW FQU%RXUNH6WUHHW • The law practice’s usual fees. 0HOERXUQH9LFWRULD$XVWUDOLD 7 , Q W¶O7HO • The uplift fee as a percentage of usual DJUHDWUHDG ) ,QW¶O7HO fees. ( LQIR#ERRNZRUPERRNVFRPDX : ERRNZRUPERRNVFRPDX • The reasons why the uplift fee is war- ranted.
22 The further specifi c requirements tigate the personal circumstances of the Application to set aside is made to relating to uplift fees are: client to ensure the agreement is “just”? VCAT. • The proposed uplift must be expressed By whose moral standards is an agree- In considering whether an agreement as a percentage of legal costs (and paid ment judged to be “just”? is fair, just or reasonable, the Tribunal may disbursements) and must be identifi ed “Fairness” has been held to relate to take into account such matters as fraud or separately. the circumstances in which an agreement misrepresentation by the law practice at • In litigious matters, the percent- is entered into. “Reasonableness” relates the time the agreement was entered into, age must not exceed 25 per cent. to the terms of the agreement itself. a fi nding of unsatisfactory professional By implication, there is no maximum The application to set aside can only be conduct or misconduct, and failure to uplift in non-litigious matters, which made by the client, which is inconsistent make proper disclosure. gives scope for alternative billing with the possibility of an agreement being If an agreement is set aside, the arrangements in commercial transac- made between two law practices. Whilst Tribunal may make an order regarding tions. it is accepted that a law practice enter- payment of the legal costs, applying the • The law practice must have a reason- ing into an agreement with a second law relevant scale or PRO, or otherwise deter- able belief in the likely successful out- practice is far more knowledgeable and mining the fair and reasonable legal costs, come of the matter. capable of negotiating a proper agree- in the latter instance, taking various mat- ment than a client, there is no capacity to ters into account. Review of fees under a costs set aside the agreement even if there was agreement fraud or misrepresentation on the part of Elizabeth Harris LLB is Director of The new Act allows bills which are ren- the second law practice. Harris Costing Pty Ltd dered pursuant to cost agreements to be reviewed by the Taxing Master. As part of the review, the Taxing Master will consider the terms of the cost agreement, (although it is interesting to note that a costs agreement is only one of the crite- ria to be considered on a review of costs New Living Will Form (s.3.4.44)). Previously, bills pursuant to a costs agreement were not subject , ______, being Under no circumstances shall any to review, and there is little Victorian law Iof sound mind and body, do not wish politicians butt into this case. I don’t relating to cost agreements. However, to be kept alive indefi nitely by artifi cial care how many fundamentalist votes there is a large body of law from other means. Under no circumstances should they’re trying to scrounge for their run for jurisdictions, and the overriding princi- my fate be put in the hands of pecker the presidency in 2006, it is my wish that ple is that the practitioner has a fi duci- wood politicians who couldn’t pass ninth they play politics with someone else’s life ary duty to a client, therefore care must grade biology if their lives depended on and leave me die in peace. I couldn’t care be taken both as to the terms of a cost it. less if a hundred religious zealots send agreement, and the circumstances in If a reasonable amount of time passes e-mails to legislators in which they pre- which it is entered into. An agreement and I fail to sit up and ask for a cold beer, tend to care about me. I don’t know these cannot seek to oust the review provisions it should be presumed that I won’t ever people, and I certainly haven’t authorised (s.3.4.36(5)). get better. them to preach and crusade on my behalf. When such a determination is reached, They should mind their own business, Application to set aside an agreement I hereby instruct my spouse, children and too. A cost agreement can be set aside, if it attending physicians to pull the plug, reel If any of my family goes against my is not fair, just or reasonable (s.3.4.42). in the tubes and call it a day. wishes and turns my case into a political The concept of a cost agreement being Under no circumstances shall the mem- cause, I hereby promise to come back “just” is not one previously encompassed bers of the Legislature enact a special law from the grave and make his or her exist- in Australia by either common law, or leg- to keep me on life support machinery. It ence a living hell. islation. The Oxford English Dictionary is my wish that these boneheads mind ______Date: ______defi nes “just” as “morally right and fair” their own damn business, and pay atten- — which creates a potential minefi eld tion instead to the health, education and Witness: ______Date: ______for practitioners entering into cost agree- future of the millions of Americans who Witness: ______Date: ______ments. Is a practitioner obligated to inves- aren’t in a permanent coma.
THE ESSOIGN Open daily for lunch See blackboards for daily specials Happy hour every Friday night: 5.00–7.00 p.m. Half-price drinks Great Food • Quick Service • Take-away food and alcohol. Ask about our catering.
23 Farewell Farewell Anna Whitney
Those of us who have been at the Bar for many, many years remember the days when Dorothy Brennan played mother to the Bar Council. In those days, there was very little administrative or clerical support for the Bar Council. Effectively, she was “it”.
XPANSION began nearly a quar- ter of a century ago and it was Eat that time that Anna Whitney joined the Bar administration, initially as a receptionist/personal assistant to Dorothy. Anna’s resignation, which took effect on 4 June this year, has triggered memories of that time which are perhaps artifi cially “rose coloured”. But it was a time (at least in retrospect) to which the words of Andrew Marvell seem to apply:
When all the world is young, lad, And all the trees are green And every horse a winner, lad, And every lass a queen.
Over the years Anna took responsibil- ity for running the Readers’ Course, for the Ethics Committee, for organising and minuting Bar Council meetings. As Executive Offi cer of the Bar, she effec- tively ran the Bar administration. She knew how all the committees worked, the membership of the committees and the best way to get matters to and through those committees. As an administrator hers was a “hands on” role. She knew what was happening, what had happened and what was likely to happen in the relatively uncomplex world of the then Bar admin- istration. The relatively unstructured Bar administration then seemed much more user-friendly. This was partly a product of size, but it was also a product of Anna Whitney. When one recalls those earlier years Anna Whitney. of the Bar administration, one is led to remember the words spoken of the pilots of the sentiment is clearly applicable. A the Bar. Her departure leaves a major gap, of the Battle of Britain “Never in the his- shining star among the few was Anna not only in the Bar’s corporate memory, tory of man have so many owed so much Whitney. but in the hearts of those of us who came to so few”. In the context of the closed Anna had a phenomenal memory to equate Anna with the Bar as a function- world of the Bar, this may in some ways which embraced all aspects of the Bar’s ing entity. be an overstatement; but the substance history over the 23 years that she served We will miss you, Anna.
24 Obituaries James Anthony Logan
had been saving for a much grander months in his chambers learning the rudi- occasion. Thus began a long-lasting hard- ments of life at the Victorian Bar and the drinking relationship. enjoyment of the Essoign Club. After I commenced studying law In his later private life, he was not so full-time, Jim remained in the insur- successful. After his divorce from Eunice ance industry, ultimately working for the and the break-up of his family, he met, Bankers and Traders Insurance Company and married, Liz Hilton. Between the two Ltd in Geelong where he met, and mar- of them, they arranged many parties, din- ried, Eunice. They had two children, Ben ners and other functions at the houses and Eva, with both of whom I am still on they occupied over a period. The parties speaking terms. at Ivanhoe were particularly splendid and After Geelong Jim became an employee memorable, not the least because of the of AFCO Financial Services Ltd, a com- many things which could be observed in pany which he later described to me in the almost mirror-like windows of that no uncertain and non-endearing terms. house. Fine food and good wine were He spent a number of years working for par for the course. Jim generally fi nished them in Newcastle and then returned to entertaining his guests singing Irish Melbourne. songs. We re-established our relationship. When compensation work dried up at Jim, uncertain of what to do asked me the Bar, Jim decided on a change of life for help. I offered him articles at Ellison, and applied for the position as associate to Hewison and Whitehead if he were to his Honour F. Davies J. Jim liked VCAT and commence legal studies at the new law its personnel. Together with now Judge IM Logan was my friend. course at RMIT. He accepted and for four Jenkins and Dr Damian Cremean, they I met him about three weeks after years, he was my articled clerk. It was wrote and edited the ANSTAT publica- Jhe, and his family, disembarked from often a question of who led whom astray. tion Victorian Administrative Tribunal the MV Streathaird. He applied for the Upon fi nishing in 1979 he applied to be Laws and Procedure. After ceasing to post of junior clerk with Leslie N Allan a reader with the Victorian Bar and later be Davies J’s associate he set-up practice Pty Ltd, an insurance broker in Collins signed the Bar Roll, becoming a barrister as solicitor specialising in VCAT work. At Street where I was working. He got the on the Dever’s list. fi rst, he was successful in this endeavour, job because he told the then manager that He enjoyed life as a barrister and fully but later regretted having lost the inti- he had a college education. The manager participated in all the pastimes available in macy of the Bar. Towards the end of his failed to note that the institution named, the 1980s, horticultural percussion being life, he was taking steps to return to the although bearing a name similar to a well- one of them. He also established a long- Bar. Alas, death intervened. known Victorian institution, was actually lasting friendship with Peter Berman and There are many tales which I could located near Liverpool. Ken Liversidge. Many and long were the tell about Jim, but this is not the place Over the next three years our friend- lunchtimes spent with them, especially at for that. I want to remember him as the ship developed. I met his parents and, the Bank Place Cricket Club. jovial, bon-vivant Irish boy he was when I much to the disgust of his father but to When I wished to come to the Bar, I fi rst met him. Jim’s delight, we set about destroying a could not think of another person with Vale Jim, in paradisum perducat te bottle of Irish whiskey, which his father whom to read but Jim. I spent nine happy angelis.
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25 Carl Price
appearing before his good friend, His Chambers, and he had many genuine last- Worship Mr Goldberg. It was 12.20 pm. ing friends who appreciated his wicked His Worship requested some guidance and and subversive sense of humour. Upon asked Carl if he had any cases to support being asked “How are you?” he would his bold submission. Carl said: “I actually inevitably reply “All the better for seeing have the leading case on my desk in cham- you, comrade”. A drinks gathering to cele- bers. What I suggest is that you adjourn brate his life in Equity Chambers was over the court now and I will drive to the city, fl owing with solicitors, Bench and Bar and pick up the case, have lunch and return reminiscences, many of which cannot be here. You could resume at about 2.30 pm.” repeated here. As one of the speakers said His Worship said: “Last time I looked, it their lives were all the better for knowing was the co-ordinator who fi xed the court’s him. Divorced, with no children, our sym- sitting times, not members of counsel.” pathy goes to Carl’s family. “Ah, your Worship”, said Carl, “I’m only tap-dancing here!” On another occasion, Carl was attempting to seek costs on a higher scale than he was apparently enti- tled to. The Magistrate said: “Why should you get costs on the next scale? You get Brian Thomson costs pursuant to the amount of the claim.” “Usually, yes, your Worship. In this QC case, however, my client has a claim for interest, which, if successful, would take ARL Price died suddenly on 3 him to the next scale. I therefore have a November 2003. He was born on claim ‘in futuro’.” “Mr Price, it sounds to C13 April 1950 and educated by me like a claim ‘in bullshitto’ to me.” the Jesuits at St Patrick’s East Melbourne, Admittedly he did not expect a witness now demolished, then at Melbourne to agree with him during cross-examina- University where he graduated with tion that he “probably didn’t know” the a Bachelor of Laws. This degree was noise of two cars colliding as he had said obtained, and his stay at university length- in examination-in-chief but said he had ened, as he worked as a truck driver, in been a panel beater for 30 years. advertising and commenced his life long At the same time Carl combined his passion of theatre, fi lm work and stand up passion for theatre and fi lm work with his comedy. career at the Bar. Many Australian movies After Articles at Dunn Ting & Byrne he or TV series of the last 30 years or so will was admitted to practice to the Supreme often have a walk-on role with Carl Price Court of Victoria on 3 April 1978. He in it. He had small roles in fi lms as diverse signed the Bar Roll on 8 June 1978, Bar as the Hollywood blockbuster “Wild Geese Roll No 1407. Graciously he allowed 2” and Australian art house fi lms such as Christopher Johnson (no, after you I “With Love To The Person Next To Me”, insist) Bar Roll No 1406 to come to the and “Chopper”, which starred Eric Bana, Bar immediately before him. He read with and in the TV Series “Janus”. As David Bernard Bongiorno as His Honour then Brown he appeared as a stand up comic in was, with whom he was a diligent pupil the TV series “The Small Room”. and learnt the mysteries of common law In the last 10 years he had established RIAN Keith Canale Thomson was trials. a broad genera! practice in insurance born in Melbourne on 20 September Carl’s practice was originally in the work, chamber work and general property B1923 and died on 21 February 2005, Magistrates’ Court jurisdiction and he was damage claims. Unfortunately, he had suf- aged 81. For over 50 years he was a prac- a leader of the Bar that practiced in motor fered from degeneration of his eyesight tising member of the Victorian Bar. vehicle collisions whose heyday came to which caused him constant pain and left He was educated at St Patrick’s College, an end in the mid 1990s. A capable and him with irreversible visual impairment. East Melbourne and on leaving school well regarded opponent, his adept cross- That he managed to keep a practice with became a Clerk of Courts. During World examination and theatrical style meant the acute pain that he suffered is a tribute War II he served in the army and on being that he was regularly briefed in motor to his determination. demobilised did a law course at Melbourne vehicle matters, and was never short of Although outwardly Carl could seem University under the Commonwealth work. Carl often included his stand-up severe, he had many warm friendships Reconstruction Training Scheme. He was shtick in his court appearances. On one with the very many people he knew at the admitted to practice in 1948 and signed occasion at Heidelberg Court, he was Bar, especially his colleagues in Equity the Bar Roll shortly afterwards.
26 Brian read with Jack O’Driscoll in He liked circuit work and had a big fol- further court battles until eventually the Equity chambers. After completing read- lowing of solicitors in country Victoria. He Commonwealth conceded that all survi- ing he stayed in Equity and shared a clerk also appeared in Sydney and Wentworth vors of the sunken vessel were entitled (Dave Calnin), with such well-known in NSW, the Northern Territory and in to have their claims assessed and paid names as Eugene Gorman, Rob Monahan, New Guinea in the 1980s. He once told me without any further stress. Charles Sweeney, Jack Cullity, Tom Doyle, he was about to cross-examine the Prime Outside the law Brian had many John Minogue, Murray McInerney, Lou Minister of New Guinea. interests. He enjoyed his golf and tennis. Voumard and Jack O’Driscoll, to name One day in 1983 Jim Taylor, a He was a member of the Kooyong Lawn just a few. They were only “in Equity” Myrtleford solicitor, sent Brian a brief Tennis Club and the Royal Melbourne Golf geographically as many were leaders of to advise whether a survivor of the 1964 Club. He helped set up the annual tennis the Bar in all jurisdictions. Their favour- disaster, when HMAS Melbourne collided match between the Bench and the Bar ite watering hole was the Beaufort Hotel with and sank HMAS Voyager, could bring and the Law Institute for the J. O’Driscoll on the corner of Queen Street and Little an action against the Commonwealth for Trophy. He was a country delegate for the Bourke Street in the far-off days of “6 damages for his injuries. He was a mem- Victorian Tennis Association and in the o’clock closing”. ber of the Voyager crew and had nearly DOXA Foundation for underprivileged Brian and his contemporary Jim died in the collision and had suffered what children. He was President of the Celtic Gorman became good friends and both appeared to be an extreme psychological Club for 19 years between 1968 and 1987. later excelled, particularly in the personal reaction resulting in him ceasing employ- He acquired a small farm on Flinders injuries jurisdiction. Jim Gorman leading ment and retreating to a life as a hermit in Island where he liked to visit and relax Brian Thomson was a powerful combina- the remote north east of Victoria. There and play the Collins Street Farmer. tion indeed. were many diffi culties, not the least being He was a devoted husband and fam- When the Bar built Owen Dixon the Statute of Limitations. Brian recom- ily man. On 4 July 1953 he married his Chambers in 1960 Brian and Jim moved mended writing to the Commonwealth wife Betty, who was secretary to Jack there, although their clerk did not, and Government requesting that it waive O’Driscoll and with whom Brian had read. they were largely instrumental in per- the Statute of Limitations in the circum- She has been ever a great support for suading Jack Hyland to leave the State stances. This the Commonwealth did, him. They celebrated their golden wed- Insurance Offi ce, where he worked, and due to the acknowledged absence of ding Anniversary in 2003. They had seven become their new clerk. And history prejudice. The assessment of damages in children and 13 grandchildren. Their son, shows how sensible they were to do so. that case attracted considerable publicity, Chris, is at the Victorian Bar. Although best known as a common and it emerged that many other survivors Brian had an innate sense of justice. He lawyer Brian not infrequently practised of the tragedy were living broken lives was a champion of the underdog and tena- in other areas, including serious criminal with little support. Brian took on their ciously fought many diffi cult plaintiff’s cases, commercial and administrative cases also, and when the Government of cases. When he perceived an injustice cases, licensing cases, property and pro- the day reneged on its previous promises without an apparent remedy, his intuition bate cases. that all similar survivors would be justly told him there must be a way, and often, He frequently appeared in the Full compensated, Brian was outraged. He when he looked, he found one. Court and often in the High Court. And fought the case all the way to the High Ave atque vale Brian. he appears as counsel in a number of Court, where his intuitive sense of “That reported cases. can’t be right” was vindicated. There were
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27 News and Views Retirement Honourabl RANR
Captain Teasdale OAM RFD ADC and members of the reserve legal panel of the Royal Australian Navy, together with offi cers of the Army and Royal Australian Air Force, farewelled Commander Winneke at the Essoign Club on 16 June 2005. On this occasion the Essoign Club assumed the status of a naval wardroom (or mess to our Army and Air Force colleagues). Thus, Queen Victoria’s direction that when the loyal toast is proposed in a wardroom, the diners were to remain seated applied for the evening.
UESTS included Major General Garde AO RFD QC, Group Captain GDi Bates, Colonel Garry Hevey, Colonel Richard Tracey RFD QC, Wing Commander His Honour Judge Morrow RFD, Wing Commander Frank Healey, Lieutenant Commander The Honourable Sir Daryl Dawson AC KBE CB, Lieutenant Her Honour Judge Lewitan AM, His Honour Judge Kelly (a press gang member of the RAN legal reserve) and Mr Michael Winneke (a former sailor and current Associate to His Honour). Captain His Honour Judge Tim Wood RFD proposed the toast to Commander The Royal Australian Navy Reserve Legal Panel Dinner in recognition of the Winneke and noted it was appropriate retirement as President of the Court of Appeal of Commander The Honourable that the function was held on a Thursday Justice John S Winneke AO RFD RANR. evening because the traditional Navy
28 t of Commander The le John Winneke AC RFD
Colonel Gary Hevey RFD, Captain Warwick D. K. Teasdale OAM RFD ADC RANR Captain His Honour Judge Tim Wood and Colonel Richard Tracey RFD QC. RFD QC RANR.
toast for that evening was “a bloody war Advocate at a court martial to which His and rose to the rank of Group Captain as and quick promotion”. Captain Wood Honour replied, “I’d love to be part of Director General Personal Services. He observed that the guest of honour had that”. Subsequently Lieutenant Dawson suggested to his sons, Michael and Jack, indeed enjoyed a quick promotion, rising presented his recruit to a naval selection that they undergo national service in the from the rank of sailor, wearing bellbot- board comprised of Captain Robertson, Navy, rather than the Air Force. Whether tom trousers, to the rank of Commander. Director of Naval Legal Services, and His Sir Henry’s reasons for doing so were out Thus, Commander Winneke, Captain Honour Judge Trevor Rapke, then Judge of benefi cence to the senior service or Wood observed, was a graduate of the Advocate General of the Royal Australian protection of the junior service, one does lower deck and, as such, “a special Navy. Captain Robertson enquired of His not know. duties offi cer” (a term given to such a Honour as to whether he had any naval Accordingly, Able Seaman Winneke promotee). Such a person’s qualifi cations experience, which met an affi rmative reported to HMAS Lonsdale in Port for promotion were those of outstanding response, whereupon Captain Robertson Melbourne as a sailor and fell under the naval service and “offi cer-like qualities”. said that he would look into His Honour’s command of Lieutenant Commander Naval records, regrettably, do not reveal in fi le in Canberra. His Honour said “Not to Denis Cordner, the Commanding Offi cer what measure of abundance Commander bother”, presumably knowing full well that of Reserves. At that time, Denis Cordner Winneke possessed either or both of these if the inquiry was made, the seeds of the was a distinguished ruckman with the qualities. imminent commission, carefully sewn by Melbourne Football Club. His Honour His Honour’s elevation was in part due Sir Daryl for His Honour, would not germi- was later to become a distinguished to the efforts of Sir Daryl Dawson, then nate. Judge Rapke thereupon usurped the ruckman with the Hawthorn Football Lieutenant Dawson, Royal Australian powers of the Chief of Naval Staff and the Club and, indeed, as such became a Navy Volunteer Reserve. Sir Daryl was Governor-General by offering His Honour commando, notably one of “Kennedy’s briefed, together with the then Mr a commission instantly with the words commandos”. Winneke, in the Westgate Bridge Inquiry. “Welcome aboard, Winneke”. The Commanding Offi cer of HMAS Sir Daryl let it slip that he was shortly to His Honour’s father, Sir Henry Winneke, Lonsdale at that time was Lieutenant depart for Singapore to preside as Judge served with distinction in World War II Commander Gordon Henry, who later
29 Chris and Major General Greg Garde AO RFD, Sir Daryl Dawson AC KBE CB, His Honour Judge Michael Kelly QC, Lady Dawson and Mrs Margaret Wood.
Kate Hart-Smith, Lieutenant Tim de Uray RANR and Lieutenant Arthur Athanasiou RANR.
Christine Lawton, Wing Commander Frank Healy, Commander Jim Unkles RAN, Lieutenant Commander Lou Vatsousios RANR, Toula and Captain Nick Dragoljlovic . became an Associate to Monahan and so. Unbeknown to Lieutenant Commander Anderson JJ. It transpires that Lieutenant Henry, those activities included the deco- Commander Henry’s daughter had ration of the hall. Able Seaman Winneke, no offer to escort her to the Sailors’ with his colleague, Able Seaman “Basher” and Offi cers’ Ball at HMAS Lonsdale. Hill (also a member of Kennedy’s com- Lieutenant Commander Henry implored mandos), resolved to fi ll the balloons, Lisa Lewis and Lieutenant Richard Able Seaman Winneke to alleviate his which were to be suspended by the white Udovenya RANR. daughter’s distress and, for that matter, ensign above the dance fl oor with H2O his own by inviting her to the Ball as his a circumstance which His Honour thought rather than CO2. When the evening was to partner. His Honour declined on the pre- close, the ensign was to be released, thus was one best avoided. text that Lieutenant Commander Cordner drenching the participants. Clearly, the His Honour’s advocacy in Naval Courts had imposed upon him such onerous prospect of taking a drenched daughter Martial was exemplifi ed in two trials. duties that evening that he could not do home to meet daddy in such a state was Firstly, that of Lieutenant Scott, who was
30 Alice Willee, Commander Gerald Purcell RANR and Claire Purcell.
Melinda and Captain Warwick D. K. Teasdale OAM RFD ADC RANR, Lieutenant Commander Bill Weston RANR and Robyn Weston.
rooms of the Navy, as it was thought to be rine and the seabed at the time of the exceedingly lenient. Not so felt the then order. Known to Fayle was the fact that Lieutenant Peter Billings, Kate Lieutenant Winneke, as he explained to the Admiral’s deputy was on-board and Morrow, Lieutenant Her Honour Judge the Court that it was a greater offence to sleeping in one of the for’ard cabins of the Lewitan AM QC RANR, and Wing be absent without leave at a cocktail party, submarine. The vessel struck the seabed, Commander His Honour Judge David and whatever measures one took to avoid waking the Commodore abruptly. Fayle, Morrow RFD. that circumstance were minor. With this like Scott, was charged with hazarding in mind, the Court sentenced Scott to be his ship. The no-case submission made serving as a patrol boat captain in Papua reprimanded. Scott rose to greater things by His Honour to Lieutenant Commander New Guinea. At the end of an exercise, some months later when he was appointed Dawson, the Judge Advocate, was upheld Lieutenant Scott was running late for a a Member of the British Empire, a recog- on the grounds that these things do hap- cocktail party which was to be hosted by nition of honour greater than that of a pen from time to time and do not neces- a distinguished planter. Scott broke the verdict of honourable acquittal at court sarily involve negligence. golden rule for navigating offi cers because martial. Captain Wood acknowledged the deep he cut the corner and ran across a reef, A second example of His Honour’s advo- debt of gratitude which the Navy owes rather than proceed along the channel. cacy was his appearance for Lieutenant to His Honour. For a period in excess of He was charged with hazarding his ship. Fayle (not Fail), one-time Commander 25 years His Honour appeared at courts Sir Daryl Dawson, by this time Lieutenant of the submarine HMAS Otway. During martial, as Prosecutor or Defence Counsel Dawson, was the Judge Advocate, and exercises off the east coast of Australia, or Judge Advocate. He was appointed a His Honour, then Lieutenant Winneke, Fayle, whose vessel was then submerged, Defence Force Magistrate and offi ciated appeared for Scott. Scott was found guilty gave the order “take it down 30 fathoms”. in those proceedings for many years. and reprimanded. This was a penalty Unbeknown to Fayle, there was only 10 His Honour held an appointment as a which caused some comment in the ward- fathoms of water between the subma- Reviewing Offi cer under the Defence Force Discipline Act, which called upon him to review proceedings before Defence Force Magistrates and before courts mar- tial and, in doing so, to advise whether the conviction ought to be upheld or quashed and the sentence affi rmed, modifi ed or quashed. It was the verdict of His Honour’s brother and sister offi cers that notwith- standing early misdemeanours commit- ted whilst a member of the lower deck, that nevertheless he was entitled to an honourable discharge and His Honour was entrusted to the care and supervision of his wife, Sue. In doing so, Captain Wood noted the naval service which she had provided in supporting her husband.
31 News and Views Junior Silk’s Bar Dinner Speech
Presented by James Elliott S.C. at the 2005 Bar Dinner held at Zinc, at Federation Square, on 4 June 2005
R Chairman, honoured guests, other distinguished guests, and Mmy colleagues. I am delighted this evening to honour the newly appointed members of the judiciary, together with those who have received offi cial honours for their outstanding contribution to the community … well sort of. Once it had dawned upon me that I had been given the dubious distinction of being the junior silk this year (last year’s junior silk described it to me as a “poisoned chal- ice”), I decided it was appropriate to seek advice from our present Chairman, Ross Ray, on exactly what role it was that I was to perform tonight. Some of you may recall that the junior silk for 2002 informed those at the Bar Dinner that he had been directed by the Bar Council to toast the honoured guests rather than roast them. This was said to be a change in position of the role to be played out by the junior silk at the annual Bar Dinner. So I spoke to Ross Ray and sought to confi rm that my role was to toast, rather than roast. In his usual decisive manner, Ross informed me that he wouldn’t say that it was one or the other. He thought it should be somewhere in between and basically he would leave it to my better judgment. Being far wiser than to take the treacherous course of relying on my own judgment, I decided that I would turn to senior members of the judiciary for some guidance. As the fi rst person listed on the list of honoured guests was his Honour Justice Winneke, I thought it appropriate to speak to members of his Court. I duly did so and raised my uncertainty as to how I was to pitch this speech. For reasons that will become apparent, the judges I spoke to shall remain nameless. In raising the issue I also stated to their Junior Silk, Honours that Justice Winneke had been James Elliott S.C. bestowed with accolades at almost every
32 turn of his life and I thought it would be happens to be his brother Michael, passed Registrar learnt that “Jack” was in town extremely diffi cult to say anything differ- by one of the more senior members of the for the weekend he asked Justice Winneke ent or original about him. Court and greeted his Honour with: “Good on a fi shing expedition in the Arafura Much to my surprise, in response one morning, Bob.” Sea. of the judges said: “Just rubbish him.” This judge was somewhat taken aback The Registrar of the Court was promis- The other member of the Court of by such informality. Shortly thereafter he ing a big weekend. His Honour mentioned Appeal present did not dissent from this arranged to meet with the President to the fact that he had a junior with him and view. Accordingly, I decided that the situ- discuss the matter. Having had the rel- asked whether he could come along. The ation must have been one of those where evant circumstances brought to his atten- Registrar was reluctant. His intentions for two appeal judges constituted the Court tion, Justice Winneke responded without the weekend were clear. There was to be of Appeal, and that until the High Court hesitation. Allowing me to modify some- a lot of drinking and everyone was to par- said otherwise I had the authority to stand what the conspicuous departure from take. Given these concerns the Registrar before you all tonight with considerable the Queen’s language, Justice Winneke asked Justice Winneke if Justice Kaye licence. simply said: “Well, it is your f…ing name, could drink. Again, without hesitation isn’t it?” Justice Winneke replied: “Stephen Kaye is JUSTICE JOHN SPENCE WINNEKE the drinking champion of the south.” AC RFD In order to get to this remote fi shing Armed with such authority, I set about spot it was necessary to fl y on a small making enquiries as to how I might be plane. The plane was piloted by the wife able to belittle the President in some form of a friend of the Registrar. Upon arriving or another. As part of my investigation, I at the tarmac Justices Winneke and Kaye spoke to a former member of the Court were greeted by the Registrar who was of Appeal. I was informed by that person carrying a gigantic esky that was stacked that he regarded Justice Winneke as the full of beer. It was with some considerable greatest leader of men that he had ever diffi culty that the Registrar and Justice come across. Kaye managed to fi t the esky on the plane. I was unsure whether the word “men” The Registrar and Justice Kaye got in the in that statement was the use of a some- back of the plane, with Justice Winneke what outdated term to refer to both sitting alongside the pilot. men and women, or alternatively whether Something concerned Justice Kaye the speaker was choosing his words about the pilot. She was wearing what very carefully in light of the fact that Justice Winneke AC RFD. might be described as coke bottle glasses. Justice Kaye describes them as the thick- est glasses he had ever seen. Concerns were heightened when the pilot looked at the dashboard and asked Justice Winneke whether the number on the dial was a 6 or a 9. In response Justice Winneke went slightly pale and responded, “It’s actually a 4.” Undaunted, the intrepid adventurers remained in the plane. The small plane seemed to take an endless period of time to take off from the runway, given that the rear of the plane was weighed down heav- ily by the esky. A sense of relief was felt when the plane fi nally got off the ground until, at about 100 feet, Justice Winneke’s door suddenly fl ew wide open. Justice Elizabeth Hollingworth. Sue Winneke. Cool in a crisis Justice Winneke imme- diately reached for the door and desper- the one woman on the Bench of the Apparently, that was end of the mat- ately tried to hold it shut. The Registrar Court of Appeal in the 10 years under ter. of the Court yelled out to Justice Kaye: his Honour’s presidency only lasted Another indication of leadership is “Hold onto the esky.” Again leaving 12 months before leaving the Court. I how one responds in a crisis. There is expletives to one side, Justice Winneke’s thought it prudent not to ask any further no greater crisis to deal with than a life- response was to tell Justice Kaye to questions. threatening situation. forget about the esky and to hold onto Perhaps his Honour’s style of lead- I wish to take you all back to the late him. Apparently Justice Kaye wasn’t ership can be best demonstrated by 1980s when his Honour was leading concerned about the weekend’s supplies recounting an event that occurred within Justice Kaye, who was then a junior at our or Justice Winneke and simply held on for the Chambers of the Court of Appeal. Bar, in a case being conducted in Darwin. his own dear life. Sometime ago, at the start of a working Justice Winneke knew the Registrar Notwithstanding this near catastrophe, day, the Associate to Justice Winneke, who of the Court in Darwin well. When the Justice Winneke insisted that the fi shing
33 trip proceed, which it duly did with the knew that when you said it had to be done, was once called, has contributed to the copious supplies being consumed, appar- it really had to be done! law in Victoria as we know it. In a less ently without much of a contribution from conventional sense, Justice Hollingworth Justice Kaye. HIS HONOUR JUDGE EUGENE represents yet a further contribution that Returning to matters more closely at JOHN CULLITY AM England has made to our judicial system hand, the Court of Appeal has now been His Honour Judge Cullity retired on 6 in Victoria. Although born a Pom, her in existence for just shy of 10 years. For March 2002 after nearly a quarter of a Honour now has spent the best part of most litigants, the Court is now the high- century of service on the Bench. His her life living in Australia and is embraced est appellate court available, and has Honour also received an AM in the 2004 with much pride in both Western Australia already become an integral part of our Queen’s Birthday Honours. That award no and Victoria. justice system. Naturally, the fi rst decade doubt has some connection with the out- The appointment of Justice Holling- of the existence of this Court has provided standing contribution his Honour made as worth gives me the opportunity to address the foundation stone upon which it will be a Judge of the County Court, but surely an issue of discrimination which has been built for many years to come. This State also relates to the many other aspects of ongoing for some time. I know this is not has been greatly privileged to have, in my his Honour’s career and public life. the forum for political statements, but personal view, such an outstanding leader However, a great source of pride and something must be said. and fundamentally decent person as the achievement has been derived from his It has not been since 1979, when Justice fi rst President of the Court of Appeal. long and happy marriage, accompanied by Alec “Ginger” Southwell was appointed, That this is so is refl ected by the fact that plentiful progeny. that a redhead has been appointed to the his Honour recently received the highest As his Honour has learnt in the past, Supreme Court. Finally with the appoint- of all Queen’s birthday awards. the number of children one has can ment of her Honour, we have hopefully attract comment. The Junior Silk from seen an end to the discrimination against THE HONOURABLE KENNETH HENRY 1983, Michael Kelly, known to us younger redheads. MARKS AM QC members of the Bar as Judge Kelly of the I can hear some of you say Justice The next honoured guest gives me the County Court as he later became, was so Whelan was a redhead. You are right he opportunity to demonstrate how times impressed by the proliferation of the name was a redhead. But at the time of his have changed. Cullity that he suggested that name may appointment what little hair he still had The Honourable Ken Marks is to cel- well be linked in future with the introduc- was well and truly grey — well, there ebrate his 80th birthday in September this tion of rabbits into Australia. might be a bit of red there. year and has achieved more than most Again, on the occasion of his Honour’s In all seriousness, Justice Hollingworth would ever dream of. Due recognition for farewell the then Chairman of the Bar, has had a unique preparation for her time these achievements was given when his David Curtain QC, recorded that his on the Bench. Not only has she lived in Honour was recently awarded an AM. Honour had seven children, spanning an Canberra, Perth and Melbourne, but she But I wish to turn the clock back to age difference of 17 years. On the same has also travelled the world extensively. his Honour’s time in the Commercial List. occasion, Ms Provis, on behalf of the Law This is in part due to the fact that she was Justice Marks was largely responsible for Institute of Victoria, suggested his Honour the fi rst Australian woman lawyer to be setting up the List, over which he was its had eight children, rather than seven. elected a Rhodes Scholar. I understand it fi rst presiding judge. Rather cryptically, in response, his is also because her Honour enjoyed tak- In those days his Honour seemed to Honour stated: “I think I will leave you to ing 12 weeks vacation every year to travel take great delight in extracting from coun- decide who is more accurate in relation to to various parts of the world. One can sel a basis for throwing the matter out of the number of children who have had to only hope the travel bug doesn’t bite too the list. be supported.” fi ercely now that her Honour’s holidays • If the trial was to last longer than 10 Given the events of early this year, I are more confi ned. days; thought it appropriate to avoid a Tony • If the matter couldn’t be ready for trial Abbott-type saga by stating for the record THE HONOURABLE JUSTICE in six weeks; that his Honour has eight children. It also KEVIN BELL • If the issue was not truly a commercial gives me the pleasure of being able to His Honour Justice Bell has brought to the matter; point out in front of such a large gathering Supreme Court a diverse range of skills • If a party had failed to comply with an that David Curtain was wrong. and experiences from his dynamic career order of the Court (sometimes even by On the topic of children, another one to date. Indeed, I suggest that his Honour the barest of margins). of our honoured guests tonight, Judge may have a special role to perform at the Out it would be thrown with great Hampel, learnt during the Readers’ Course Court from which his brothers and sisters alacrity. in March 1990 that my wife had just given will greatly benefi t. For your Honour’s information, today’s birth to our fourth child in the space of As a conscientious member of our Commercial List is a much more “touchy four-and-a half years. Her Honour con- community, his Honour was instrumental feely” world. It seems the sensitive new fronted me with this piece of information in establishing in Footscray an organisa- age world of the Federal Court has meant and exclaimed: “You big brute.” One shud- tion known as “Poverty Law Practice”. that if the Supreme Court wants any busi- ders to think what her Honour would call This organisation was founded to assist ness it has to accommodate all sorts of Judge Cullity. less fi nancial members of the community behaviour your Honour would have found who needed legal assistance, but were intolerable. THE HONOURABLE JUSTICE unable to meet the rigorous criteria of I say bring back “the good old days”. At ELIZABETH HOLLINGWORTH Legal Aid. His Honour was able for a least in those days a solicitor or a client In many ways the mother country, as it number of years to assist those of lesser
34 means in dealing with the issues that con- Honour brings a great deal of experience at all, and hereto once again the OPP has fronted them. from both sides of the criminal justice come to the fore and generously supplied As we all know, there are always some system. the solution.” Judges crying poor. Perhaps his Honour That is not all his Honour brings by Notwithstanding the accus-ed’s rather can use his skills to help our Judges cope way of experience to the Court. For bet- dim view of his Honour, he was duly con- with being on a guaranteed six-fi gure sal- ter or for worse, his Honour shared a fl at victed. ary. I didn’t think that would get much of with Dyson Hore-Lacy in Darwin back His Honour is currently President a laugh. of the Victorian Fly Fishing His Honour also has an Association and we trust that interest in wine and wine his appointment will not inter- making. As was noted at his fere with the more important Honour’s welcome, when asked things in life. by a journalist about these activities, his Honour stated: HER HONOUR JUDGE “The highs are moments when SANDRA DAVIS I am working in the vineyard From time to time one comes where I have an epiphanous across a person whose capac- connection.” ity and achievements are The only epiphany that his overwhelming to the extent Honour might look forward that it makes you feel quite to on the Bench will be the inadequate. Prior to prepar- realisation of his own divinity. Graham Fricke QC and Adrian Smithers QC, formerly ing for tonight, I knew very In my experience at the Bar, judges of the County Court and Family Court. little about our next Honoured after a relatively short time guest, Judge Davis. This is on the Bench, this manifestation is almost in the 1970s. The fl at was located in in part explained, no doubt, by my own universal amongst superior court Judges. Bougainvillea Street, which soon became ignorance. But it is also explained by the known as Bougainvillea Chambers because fact that, like Judge Morgan-Payler, her THE HONOURABLE JUSTICE KIM of its august occupiers. In a city still suf- Honour chose not to have a formal wel- WILLIAM SPENCER HARGRAVE fering from the effects of Cyclone Tracey, come upon her appointment. In relation to the next honoured guest, both his Honour and Hore-Lacy scratched I understand that her Honour took Justice Hargrave, I want to say as little out a living in Darwin, but this period was this course because she considered such about him as possible. This is not out of not without its moments. a public parading of her past would be a any sense of self-preservation, but rather On one occasion his Honour was source of embarrassment and discomfort. a desire for revenge. enjoying a cold beer with Hore-Lacy at I hasten to add that this is not because her His Honour was considered by most a bar known as the Hot and Cold Bar. Honour has anything to hide. But regret- at the Commercial Bar as the leading There were quite a few people in the bar. tably for her Honour, there is no escaping commercial junior immediately before he Without warning someone stormed in and tonight. took silk in 1995. However, his reputation discharged a fi rearm. Both his Honour and In the limited time I have to speak about amongst his peers took a pounding at Hore-Lacy had no desire to make heroes each of the honoured guests, it is not pos- the Bar Dinner for that year. His Honour of themselves. They dived for cover. sible to touch on much of what they have delivered the junior silk speech for the One would expect someone of his achieved. This is particularly the case with inordinate length of 42 minutes. Honour’s background to have acute foren- Judge Davis whose list of achievements Some may think with my lineage that I sic skills and be able to give a detailed appears to be endless. Having done a bit would be intent on trying to break records. account of the events that unfolded of research I decided not to focus on the But you will all be relieved to know I have before him. Nothing could be further from fact she was school captain, had various no intention of standing here for three- the truth. honours and masters degrees from vari- quarters of an hour. The bad news is that When the smoke settled his Honour ous universities, nor her skills in languages Justice Hargrave will be responding on raised his head only to fi nd that the Bar including French, Italian, Hebrew, Russian, behalf of the honoured guests. was completely empty. When asked later Arabic, Japanese and Spanish. So you may all wish to adopt the prac- what he could say he had witnessed, his It seemed to me that the obvious tice prevalent in the sporting world at the Honour meekly proffered that all he saw choice for the focus of tonight ought to moment and take your “No-Doz” caffeine was a row of thongs where all the other be the fact that her Honour read with tablets before his Honour gets to his feet. drinkers had once been. one of our other honoured guests, Judge Returning to matters curial, undoubt- Hampel. It follows from the fact that I am HIS HONOUR JUDGE WILLIAM edly the highlight of his Honour’s career talking about Judge Davis before Judge MORGAN-PAYLER was in a murder case where the accused Hampel, that Judge Davis was audacious The fi rst of the County Court Judges we had chosen to represent himself and his enough to accept an appointment to the are to honour tonight is Judge Morgan- Honour was prosecuting for the Crown. County Court before her former mentor. Payler. His Honour is the former Chief In his fi nal address, the accused stated The more timid of those amongst us may Crown Prosecutor for the State of that he only wanted two things. Having not have been willing to take such a step. Victoria. However, before taking this identifi ed the fi rst of them, the accused Perhaps her Honour’s courage was forti- appointment his practice had been pre- continued. “The other thing I had need of fi ed by the fact that she also happens to be dominantly defence work. Accordingly his was a prosecution barrister with no brains an expert in the martial arts.
35 An article in the Bar News published shortly after her appointment described her Honour as “a modern renaissance woman”. To the extent that the law might still be said to be in the Middle Ages, her Honour is abundantly qualifi ed to bring it into the 21st century. HER HONOUR JUDGE FELICITY HAMPEL Her Honour Judge Hampel needs no introduction. Her personal publicist has no doubt already taken care of that. The Vic Bar Allstars entertained. Her Honour has chosen a career in the law, but this was not always her intention. has been the boss of one Court and now knows that he is a very measured person, No doubt her Honour will be a model fi nds herself the boss of another Court. and not easily excited. Indeed, the level of judge, but as a 15-year-old she was intent This has given me the unique opportunity excitement that Greg experienced about on becoming a model. So sure was she that to canvass some of her former colleagues being one of the honoured guests tonight this was her vocation in life that she had on her Honour’s performance in the is refl ected in the fact that he decided not photos professionally taken and assem- Federal Magistrates’ Court for the pur- to come. bled in a portfolio, which she showed to pose of advising her Honour on how she As no doubt most of you would be her friends with much enthusiasm. might improve in her new role. aware, Greg Garde became a Major We are all very grateful she chose the If I may be so bold, I have some tips for General in March 2001, the highest law as her career. As, I am sure, is Elle her Honour based on the feedback I have position available to a reservist in the Macpherson. received. Australian Defence Force. If he were here, Having made this choice of career she The fi rst tip I have is for her Honour to no doubt he would like us all to stand to signed the Bar Roll in 1980. Early in her change her nocturnal habits. Apparently attention in his honour. Accordingly I time at the Bar she accepted a brief as as Chief Magistrate her Honour was noto- invite you all to be upstanding, but, in so junior to George Hampel QC (as he then rious for sending emails in the wee hours doing, toast all our honoured guests. was). of the morning, sometimes as late as To our Honoured Guests. As we all know they were married four 2.00 am. If her Honour could refrain from years later, and remain happily so. sending the emails until fi rst thing the fol- Only a few weeks ago I was travelling lowing morning then the other members to Sydney and bumped into Professor of the Court would not have to feel guilty Hampel (as he now is). We boarded about sleeping at night time. Editors’ Note the plane together, so the fl ight attend- The next tip is that as Chief of the his speech is an edited version of ant rearranged the seating so we sat Court, you do not have to win at every- Tthe speech delivered at the Bar together. thing. My sources tell me that at social Dinner held on 4 June 2005 by the I happened to mention to Professor tennis matches against fellow Magistrates, Junior Silk, James Elliott S.C. In the Hampel that I would be speaking about her Honour often played with gritted course of his speech, Mr Elliott made her Honour at the Bar Dinner and asked teeth. Indeed her Honour took these certain other comments about one him if he had anything that might be games against her colleagues so seriously of the honoured guests, Her Honour of particular interest. After listening to that one time she was heard to say, whilst Judge Felicity Hampel. George for over 20 minutes, I did not serving for a set: “This is more pressure In a letter dated 6 June 2005, Mr have the heart to tell him that I could than a Newcastle Duty List.” Elliott S.C. advised Her Honour that only speak for two or three minutes. Her Honour also fancies herself as a there was no intent on his part to Needless to say, he was full of praise for singer and enjoys standing around a piano cause professional or personal harm her Honour. Anyone who attended her with her colleagues singing songs from to Her Honour. He gave an unquali- welcome, and listened to the recounting famous musicals. It has been suggested fi ed public apology to Her Honour, of her many achievements, would know to me that her Honour should ensure that which was accepted unreservedly by his praise is fully justifi ed. those partaking are primed with more of Her Honour. her Honour’s beloved Margaret River reds In a letter dated 6 June 2005, the THE HONOURABLE CHIEF JUSTICE before her Honour’s vocal cords are called Chairman of the Bar Council, Ross DIANA BRYANT into action. Ray QC, apologised to Her Honour The last occasion upon which our next My enquiries have also confi rmed what for some of the comments made by guest was honoured at our Bar Dinner was already well known about her Honour, James Elliott and for the offence they was in June 2000 when she had been namely her unwavering dedication and caused. The Chairman apologised to appointed the fi rst Chief Magistrate of commitment to the job at hand. Her Honour as an invited honoured the Federal Magistrates’ Court. I now guest and expressed his personal have the pleasure of congratulating Chief MAJOR GENERAL GREGORY HOWARD regret that the night became one of Justice Bryant on her appointment as GARDE AO RFD QC distress for her, rather than one of Chief Justice of the Family Court. The last of the honoured guests is Greg celebration. Her Honour is in a rare position. She Garde QC. Anyone who knows Greg
36 News and Views Reply on Behalf of the Honoured Guests to the Speech of Mr Junior Silk by Justice Kim Hargrave
R Chairman, members of the Bar, other honoured guests. M James. … more than half the time. Less than half the guests! However, I cannot say that “Time Is On My Side”, so I will move on. Popular music is a vital part of our everyday lives. It expresses, in accessible language, and with the help of catchy tunes, the way we live our lives. Some of us associate popular music with particular events, for example, the song we couldn’t get out of our head dur- ing some memorable time. But our favourite songs do not come burdened with associations. Nick Hornby is a popular writer who may not be known to all of you. He is obsessed with popular music (and also soccer). His writings are littered with references to popular music and the effect that it has on our lives. He has written that a favourite song is one you love enough to accompany you throughout the different stages of your life — good, bad and ordinary. Any spe- cifi c memory is rubbed away by use. The love of the song induces a narcotic need to hear it again. Popular music is a great leveller. It brings all manner of people together — much the same as barracking in the outer at a football match. What’s all this got to do with a reply on behalf of the honoured guests? You might well ask! Well, nothing really, except that, as a bunch, we are as diverse as a top 40 from any time over the past 40 years. We are a mix of, on the one hand, old- ies, or classics, who have travelled “The Long And Winding Road”, “Yesterday’s
Justice Hargrave gave the response on behalf of the honoured guests.
37 Justice Dyson Heydon,Tim McEvoy Lydia Kuda, Paul Vout, Ian Brian Lacy, Michael Roberts and and David Bailey. Hardingham QC and Stewart McNab. Fiona Connor.
Michelle Quigley S.C. and Samantha Marks.
John Noonan QC, Phil Corbett, James Elliott S.C. and Sharon Keeling.
Simon Pitt and Penny Nescovcin.
The Honourable Alistair Nicholson AO, Judge Frank Dyett and Justice Linda Tony Cavanough QC, Julian Burnside Dessau. QC and James Barber.
38 Heroes” if you like. On the other hand, we enormous contributions to the Bar, par- formidable barrister and, in particular, a are “The Young Ones” — new talent who ticularly the Readers’ Course. It cannot great cross-examiner. On the day he was might be rising stars or might be one-hit be said that Felicity Hampel is “As Shy As appointed a judge of the Supreme Court, wonders. So that’s as good a reason as any A Violet”. More a combination of “Uptown the number one hit was Rod Stewart’s to link us. Oh, and I know “It’s Only Rock Girl”, “Dedicated Follower of Fashion” “I Don’t Want To Talk About It” on the A- And Roll (But I Like It)”. and “Hard-Headed Woman”. Together side and “The First Cut Is The Deepest” When Ross Ray rang and asked me to with her husband George, Felicity has on the B-side. give this speech, he told me to be quick, toured the world on teaching junkets sing- Both song titles are apposite to uncontroversial and to try and be mildly ing syrupy duets such as “The Two Of Us” describe the way in which Ken would amusing if I could. In other words “Try and “Islands In The Stream”. As a solo per- approach a witness who was reluctant to And Keep The Customer Satisfi ed”. The former, Felicity prefers “Love Me Do” and disclose the truth. He would cut him or way he said it, he didn’t sound very confi - “These Boots Are Made For Walking” and, her up into little pieces, beginning with dent at any level. about George, the broken record of how his fi rst question. Keeping this particular customer satis- he is “The Wind Beneath My Wings”. fi ed is a hard gig. I know, I tried with obvi- Although Felicity is now a judge, and THE HONOURABLE EUGENE CULLITY ously little success for 42 minutes in 1996. will of course reduce her public profi le Like Jack Winneke, Eugene Cullity is the So, here goes. accordingly, I am sure that Felicity will “Fortunate Son” of a great “Father and I fully recognise that the Bar, being “Not Fade Away”. Son” team. He is also a mad keen surfer. such a diverse group of people, will con- As with all things in life, Eugene carried tain a fair section of you who are already THE HONOURABLE MR JUSTICE this passion through to the pinnacle of sitting there saying to yourselves “I Can’t JOHN WINNEKE success, becoming the President of the Get No Satisfaction” from this. To those of Unfortunately for the whole community, Torquay Lifesavers Club. So what has you I say “You Can’t Always Get What You there is one honoured guest who is about that well-known “Beach Boy” been doing Want” — although “Wouldn’t It Be Nice” if to fade away. Indeed, I suspect he has since he retired in 2000? No doubt he has you could! reached the stage where he is “Running been getting around on a “Surfi n’ Safari” By now you will have gathered that On Empty” and hums to himself “I Want and having “Fun Fun Fun” with his many song titles are the order of this speech. To Break Free”, “Release Me” and “Hit offspring and grandchildren. We can well Hopefully those I have chosen will say The Road, Jack”. Together with his imagine this vital man standing on the something about each of us honoured brother Michael they sing in unison “We beach, still dripping wet from an exhila- guests. Gotta Get Out Of This Place”. rating surf, enthusiastically exhorting his Most of the songs I will mention come Yes it’s true, “Another One Bites The tired grandchildren to get back in the from the 1960s and 1970s. As Bob Seeger Dust”, our President Jack Winneke is to water with him and “Do It Again”. memorably sang “Today’s music ain’t got retire in a matter of weeks. the same soul, (I like that) old time rock James Elliott has spoken eloquently THE HONOURABLE JUSTICE and roll”. about Jack’s leadership qualities. These KEVIN BELL are no doubt due, in part, to the fact that Kevin Bell is partial to a “Bottle Of Wine”. ME he is the “Fortunate Son” of that great Not “Cheap Wine”. He grows expensive I’ll get myself out of the way fi rst. When “Father and Son” team of Henry and pinot noir at his Mornington Peninsula Ross Ray telephoned me, I went “A Whiter Jack. vineyard. Most critics say he grows it very Shade Of Pale”. “Don’t Let Me Be Just as importantly, Jack learned lead- well. Misunderstood”, it was an honour, and not ership on the sporting fi eld. His descrip- Kevin’s passion for Aboriginal rights a poisoned chalice, to be asked. However, tion of the philosophical legacy of the and culture is well known. I can well imag- having given the junior silk speech nine Hawthorn coach John Kennedy has been ine him working in the vineyard with his years ago, I would have hoped to avoid the often quoted. Jack said about Kennedy: i-pod listening to songs such as Goanna’s burden of the junior judge speech. “He gave us an understanding of the posi- “Solid Rock”, Midnight Oil’s “Beds Are So, as the “New Kid In Town” what are tion one really ought to take in life. You Burning” and Yothu Yindi’s “Treaty”. my aspirations for judicial life. First, to have to realise all the time that you are Good luck to anyone who is briefed for avoid the “Lonely Days” of judicial life. I only a cog in the wheel, you don’t hap- a defendant in a land rights claim listed will try to maintain my friendships at the pen to be the wheel. That every person in before Kevin! Bar and not retreat to my chambers feel- the team was playing for something quite ing “Alone Again, Naturally”. larger than himself.” THE HONOURABLE JUSTICE Second, I will seek “Help”. There is So, very soon now, Jack, you can cease ELIZABETH HOLLINGWORTH plenty of it on offer I am pleased to say being a cog in that large wheel known as Liz Hollingworth is the only honoured — from the Chief Justice down through the Court of Appeal. You have well and guest born in the 60s. She is the fi rst judge my fellow judges, the associates and tip- truly earned the right to sit and look from appointed to the Supreme Court born in staves. I look forward to getting by “With afar “Watching The Wheels” turn round that decade. In respect of her appoint- A Little Help From My Friends”. I am sure and round. ment it can truly be said that “The Times that together “We Can Work It Out”. They Are A Changing”. THE HONOURABLE KENNETH MARKS Liz is an intrepid traveller. This must HER HONOUR JUDGE Ken Marks has been watching the wheels have started from an early stage, because FELICITY HAMPEL for some time. He was farewelled as a she was born in England, educated in We all know of Felicity Hampel’s extraor- judge of the Supreme Court in January Canberra and Geelong, and went to uni- dinary breadth of achievements and of her 1994. In his heyday, however, Ken was a versity in Perth and England.
39 Table 25 was singled out for special mention by Ross Ray QC. Occupants were Gordon Spence QC, Adrian Smithers QC, Leo Lazarus QC, Xavier Connor QC, Geoffrey Colman QC, Justice Ryan, Graham Fricke QC, William Kaye AO QC, Norman O’Bryan QC and Glenn Waldron AO QC.
Each year brings a new “Magical can be seen searching “River Deep And Mystery Tour” to an exotic destination. Mountain High” for “The River Of Dreams” Liz can’t wait for the next holiday to full of big fat trout. Success is not always be “Up, Up And Away” and experience guaranteed. On “These Days” Bill hums delights such as “Viva Las Vegas” and “Cry Me A River” (full of trout please) as many a “Hotel California”. he gazes into the camp-fi re pondering the Many of her travels involve walking. one that got away. Liz has been known to “Walk On” despite harsh conditions in the Himalayas and HER HONOUR JUDGE SANDRA DAVIS “Walk Away”, or even “Run Through The We have heard of the extraordinary mul- Jungle”, when confronted with the wild- tilingual skills of Sandra Davis. No doubt life in Kenya and Zimbabwe. She has been this infl uences her taste in music. One can seen “Walking On Sunshine” in all manner well imagine Sandra’s i-pod containing an of places, including Zanzibar; and taking a Ross Ray QC Chairman of the eclectic mix of multilingual songs, or songs “Walk On The Wild Side” in New York. Victorian Bar Council. about the places where the languages It is not just holidays which cause she speaks are spoken. A walk or jog Liz to fl ee chambers as soon as she can. Instead, as any good Eagles fan should around the block might be accompanied On Mondays she laments “I Don’t Like do, “Take It Easy” and delegate wherever by an international smorgasbord such as Mondays” and by Wednesday it’s all you can. If you do this, you will achieve, “Cherchez La Femme”, “Quando, Quando, “Friday On My Mind”. Of course, she has a “In The Long Run”, that “Peaceful Easy Quando”, “By The Rivers of Babylon”, study at her Daylesford retreat which is in Feeling” of knowing you will be on time, “Back in the USSR”, “Rock The Kasbah”, constant use over weekends. “Time After Time”. “Turning Japanese” and “La Bamba”. THE HONOURABLE CHIEF JUSTICE HIS HONOUR JUDGE WILLIAM MAJOR GENERAL GREGORY GARDE DIANA BRYANT MORGAN-PAYLER James Elliott has said that Greg Garde is Like Liz Hollingworth, Diana Bryant spent We have heard of Bill Morgan-Payler’s pas- a very measured man who is not easily a great deal of time in Perth. During this sion for fl y fi shing. As with many of us, our excited. Having been opposed to Greg, I time, Diana developed the habits of a hobby or passion dictates our holiday des- agree. Instead of being “Born To Be Wild”, workaholic, a resulting reputation for tinations. In Bill’s case, this means fi nding Greg was born to be mild. always being late and became a West an appropriate body of water full of trout. Anyway, “Congratulations” Greg on Coast Eagles fan. When Bill had young children, it was another gong. You said you were “Sorry” Diana, as a Chief Justice, there is now off to “Indian Lake” with the little ones. and didn’t come to hear what James or I no need to continue to “Take It To The Now that young children are not an had to say about you. So, it’s the “Sounds Limit” and “Live Life In The Fast Lane”. issue, Bill can be more adventurous. He Of Silence” for you, and from me.
40 News and Views The Thin End of the Wedge
Alexandra Richards QC, Chair, Equality Before the Law Committee comments on the lack of appropriate behaviour at the Bar.
VENTS transpiring at the Annual Bar Dinner held on 4 June 2005 Ecause me considerable concern that sexist criticism of female members of the Bar by male members remains a sig- nifi cant adverse cultural hurdle that the Bar has yet to overcome. It is unfortunate that the leadership of the Victorian Bar Council over the past seven years seems to have failed to redress this issue as noted by Marcus Priest in the Australian Financial Review on 10 June 2005. The “Equality of Opportunity For Women at the Victorian Bar Report” by Rosemary Hunter and Helen McKelvie, which was commissioned and published by the Victorian Bar Council and launched in 1998, devotes a chapter (Chapter 3) to the subject of “Bar Culture and Organization”. The Report, itself, is instructive and sadly, in many respects, still highly rel- evant. On the topic of sexual criticism the authors, amongst many other things, had this to say:
3.3.7 While it seems that much of the sexist criticism of women takes place out- side their presence, the fact that some of it is said to their faces, and that it happens at all, creates an atmosphere that is unwelcoming to female barris- ters. 3.3.9 As noted earlier, attitudes and behav- iours of barristers are unregulated by easily enforceable rules or guidelines. The Bar Rules do contain a provision Alexandra Richards QC. that arguably applies to sexist criti- cism of female barristers and judges: the Bar. However, this form of criti- • That the Bar Council and senior mem- “A barrister shall not publish, cism is obviously viewed as accept- bers of the Bar take a leadership role in orally or in writing or otherwise, an able by at least a proportion of the actively discouraging sexist criticism of opinion of the professional charac- Bar. … female members, when it occurs within teristics of fellow barristers or any their earshot, and generally by their of them in a way or in such circum- Thus, the authors recommended: words and actions. stances as to impugn the dignity and high standing of the profession.” Recommendation 2: Rereading the 1998 Report also caused The sexist criticism described in • That the Bar Council consider ways that me to revisit a speech I prepared as then the interviews clearly denigrates the Rule 11.1, to prevent sexist criticism of President of Australian Women Lawyers professional credentials of those it is female members from undermining their partly in response to the fi ndings and directed at, and as the Rule suggests, professional credentials and thereby recommendations contained in the 1998 is damaging to the general image of damaging the image of the Bar; Report. This is reproduced below. The
41 sentiments expressed in it appear as I have a fear, however, that a signifi cant both from the Bench and one’s opponents. pressing and relevant now as they did problem does arise because, as women in My reaction to the Report was one of great seven years ago. our profession, we are made to feel that sadness: for those women who do not Despite the growth in the numbers we are outsiders — not of the mainstream. manage or are not lucky enough to fi nd a of women entering the legal profession Those few women who do achieve promi- supportive enclave it would be diffi cult to for some years now, it is clear (and the nence in the law provide no real challenge imagine longevity in their chosen career. Victorian Bar Equality of Opportunity to this notion — we are easily categorised One particular aspect of Bar culture report and other studies confi rm) that the as exceptions; we do not exist in suffi cient identifi ed in the Report is the high level matrix of discriminatory barriers which numbers to challenge stereotypes. of sexist criticism, jokes and comments form part of the professional culture There are, of course, other problems. which occurs in conversations between makes it diffi cult for women to participate Justice Gaudron, in the passage from her male barristers. The Report noted of a fully in the work, aspirations, rewards and recent speech from which I have quoted, study by Kanter that “tokens, highly vis- responsibilities of the legal profession. identifi ed some of them. Others, I expect ible because of their low numbers”, were Whereas it was once commonly thought fl ow from what has been described as sex- persecuted for “fl aunting success”, and that it was all a matter of time it is clear based stereotyping of traits. That is, that that there was an active backlash against that that view is wrong. The so-called men are generally perceived as naturally those who were seen to “advance too “trickle-up” effect is not working. possessing the competency cluster of traits fast” within an organization. Also noted At the launch of Australian Women — strength, toughness, assertion, responsi- is the observation of the sociologist, Lawyers on 19 September 1997, Justice bility, authoritativeness, credibility, whilst Cynthia Cockburn, that an undercurrent Mary Gaudron, in answering the question women are seen as naturally possessing the of male resentment towards women may she posed “Why a women lawyers’ asso- nurturing cluster — caring, vulnerability, prevail with some men feeling “damaged ciation?” said: passivity, indecisiveness. That is, men are by the equality movement and the infl ux assumed to be credible and competent, of women”. A further but related aspect It is, I think, a tribute to the women’s (i.e. likely to make good lawyers) until they identifi ed in the Report was the higher movement, generally, and to the growing demonstrated otherwise; women are seen as level of scrutiny experienced by women understanding that equality is a complex lacking in assertiveness and credibility, (i.e. from their peers, members of the judici- issue that membership of a women law- unlikely to make good lawyers) until they ary and the legal profession generally yers’ association, or even participation in demonstrate otherwise. Thus, even when (again, associated with increased visibility the activities of those associations, is now women remain in the profession, there is amongst the male-dominated popula- regarded as professionally acceptable. It a tendency for them to be easily siphoned tion). was not always so. Regrettably, it is not off into supportive, back-room roles whilst A Chief Justice of the Supreme Court universally so even now. their male colleagues are encouraged into of Victoria wrote: Certainly, 30 years ago in New South more prominent roles. Wales, many of the women then enter- A model woman according to a very preva- ing practice rejected membership of the Thus also found the Victorian Bar lent conception of the character is little bet- Women Lawyers’ Association saying, “I’m Equality of Opportunity Report. I com- ter than an amiable idiot; and any woman a lawyer not a woman lawyer and I have mend that Report to all who have not read who evinces strength of mind and vigour of no intention of being identifi ed as such.” It it as it does not only hold relevance for intellect becomes an object of derision and was an attitude born of the belief that I then the Victorian Bar. Any lawyer who reads a butt for the feeble sarcasm of the mentally shared, namely, that once the doors were it will immediately identify those tradi- destitute of the other sex. open, women would prove that they were tional traits and practices identifi ed in it every bit as good, and certainly no different as posing the most signifi cant hurdles for One wonders what that Chief Justice from, their male counterparts. Therein was women as being endemic throughout the meant by “mentally destitute”? Is that an an insidious untruth, the effects of which whole of the legal profession and which apt description of some if not many male are with us still. The truth is that, in some are, in the main, lauded by it. For all barristers? I fi nd it somewhat of a conun- respects, we are the same but in others practical purposes women are outsiders, drum, for if the description is not correct, we are different. And when we admit that not of the mainstream, and experience what motivates intelligent men to engage difference, when we assert our right to be feelings of isolation and consequent lack in such conduct? different, we are going to be signifi cantly of self-esteem. Some of you are no doubt wondering better lawyers. Moreover, the legal profes- That is not to say, however, that my who that Chief Justice of Victoria might sion is going to be a better profession and reading of the Report caused me to be? The answer is Chief Justice George the interests of justice are going to be much respond with outrage. Indeed, there are Higinbotham prior to his appointment better served. few references in the Report to overt acts to the Supreme Court and writing in the of discrimination. Rather, it is the matrix Argus in 1858 — more than 140 years In her speech delivered to NSW Women of numerous and subtle ways which oper- ago. I just hope not too many people still Lawyers’ Association on 15 October 1997, ate at the various interlocking planes of subscribe to the trickle-up theory. Justice Catherine Branson of the Federal life at the Bar which come together to Hillary Clinton, in her capacity as Court, having referred to the complex form a seemingly major hurdle for women Chair of the Commission on Women in forms in which discrimination may come in practice: those planes are the clerking the Profession commissioned by the and the degree of societal change that system, one’s peers, Bar culture and tradi- American Bar Association, reported to would be required before women and men tions, solicitors’ briefi ng practices, rules that Association in June of 1988. I quote would be equal participants in public life of seniority, attitudes towards parenting selected extracts: said: responsibilities, courtroom experiences
42 ... the Commission found ... that although their work styles. Many women who testi- to the voice of the “authoritative” male. the profession has made room for women fi ed before the Commission reported that Male mentors hold much sway with their at an entry level, certain attitudinal and they still have to work harder, do better and male pupils who tend to emulate their structural barriers exist which subtly limit make fewer mistakes in order to receive mentor’s conduct. Well respected men women’s opportunities for advancement. even the same degree of professional similarly hold much sway with their male Attitudinal barriers subject women to respect received by men of average skill, peers. And fi nally, men presently occupy pressures which lead to discomfort and competence and diligence. the most powerful positions within our often rejection in the workplace. An exam- Today, the structures and attitudes of legal community and are able to infl uence ple of the attitudinal barrier is the recurring the legal profession — developed in an era accordingly. testimony that women enter the legal arena that no longer is representative of American I am also conscious that the men and are faced with negative presumptions: society — pose great problems for women present tonight are in varying degrees women must prove their competence, lawyers. These cultural norms are not often “converts” (if I might use that word) while men must prove their incompetence. thought about by the group that has defi ned already, as is evidenced by your pres- Excessive scrutiny of women was a theme and most often fi ts them, but for women ence. In saying that, I do not disregard heard over and over again. The Commission lawyers, these norms represent the subtle the efforts that I know certain of you, also found that barriers exist in the very attitudinal and structural barriers encoun- in particular, have made to redress the structure of the profession which has not tered on a daily basis discussed throughout imbalance and I thank you for that. I do been altered to refl ect the emergence of this report. They are the problems that have ask of you tonight that you continue to women as members of the profession or the no name, yet most men do not even under- champion the women’s cause within the basic changes in society that have occurred stand the description of them as problems, legal profession. in the past 20 years. but rather perceive them as the inevitable One may ask why? The legal profession The Commission is concerned that some and necessary norms of the profession to is an extremely competitive arena. Men men apparently continue to have problems which all members must adapt. are presently well placed within it. Why separating the image of women as romantic should they make room for or do anything possibilities from the reality of women as One may perhaps understand why to relinquish that position? The reasons professionals. These men say they don’t a male lawyer may feel uncomfortable are simple. There is mounting evidence trust themselves working with young, accompanying a female practitioner to that disaffection with the legal profes- attractive women or claim their wives don’t lunch. At a recent gathering I attended sion and exodus from it is not peculiar to approve ... with eight women barristers present, all women. Both the accounting and the legal Witnesses also report biased treatment recounted having at one time or another professions are noticing that men too are within law fi rms and corporate counsel occupied a particular set of chambers rejecting the private profession for corpo- offi ces. Recurring testimony was received where their male neighbours routinely rate and other sectors of the marketplace. on the topic of mentoring — women’s dif- lunched together but never thought to But perhaps more importantly, to hold fi culty in establishing mentoring relation- include or invite that woman barrister relevance, respect and integrity there ships with senior male attorneys. A shortage who would be the only barrister left in are increasing demands upon the legal of mentors is particularly acute for minority the relevant area of chambers. Issues profession to refl ect community values women who rarely have any role models such as sexual overtones and innuendos and expectations of it. As Justice Mary and face additional sources of discrimina- one would have thought have little bear- Gaudron said, to allow for the difference tion from other lawyers. Some senior male ing in a crowd. One may ask why such an between men and women lawyers will attorneys’ discomfort in establishing men- exclusionary practice? make the legal profession a better profes- tor relationships with women may be due On behalf of Australian Women Lawyers sion and the interests of justice are going to fear of sexual overtones or unfamiliarity I attended the Australian Women’s Round to be much better served. Similarly, the with working with women. Table discussions in Canberra recently ABA Commission found that: Some women also report being frozen out where 52 peak women’s bodies were If the profession is to retain and attract of fi rm discussions and professional sociali- represented. No male was present but competent, well-rounded people — people zation. The exclusion may stem from dis- for a brief session in which the Treasurer who are interested in being more than 24- comfort or uncertainty about how to engage visited to promote the GST. It occurred to hour-a-day workaholics and people who in camaraderie with a woman, but acquiesc- me at that conference that women spend derive personal and professional growth ing in this behaviour only perpetuates the a not insignifi cant amount of time effec- from outside contacts — it is important that unfamiliarity and discomfort. Women law- tively preaching to the converted, namely, the American Bar Association, as the voice yers are often not included when colleagues other women. of the legal community, take a good hard go out for lunch or drinks after work where But who are in a better position to look at where the profession is headed. One business is going to be discussed. Male col- speak out against the attitudinal and witness noted that the issue here is simply leagues may conduct work discussions or structural barriers to which I have the survival and sanity of the legal profes- professional meetings in settings that are referred tonight than men? First, men are sion. likely to exclude women, such as clubs that able to penetrate those traditional male do not accept women as members. These bastions wherever occurring. Second, it is For a start, I invite the men here settings often provide the starting point for a natural and well recognised strategem to tonight to take up the gauntlet. Australian development of business contacts, profes- employ the use of an independent speaker Women Lawyers will assist you in any way sional trust and collegiality. to a cause where the listeners are them- we can. One subtle but signifi cant form of bias selves being subjected to potential criti- I conclude with the words of Alfred women experience concerns the greater cism. Thirdly, men are more accustomed Lord Tennyson: “The woman’s cause is degree of scrutiny given to their work and (unfortunately) to hearing and listening man’s; they rise or sink together.”
43 News and Views Opening of the Refurbished Owen Dixon Chambers East Some nostalgic remarks by SEK Hulme QC, on Wednesday 4 May 2005
FORTY-FOUR YEARS ON approaches to Owen Dixon Chambers UST on 44 years ago, on 16 October West, of the great judge for whom the 1961, this building was opened by a building is named. The connection Jman who had at an early age attained between Menzies and Dixon was of long- fame as a member of this Bar, before standing. When he went to the Bar in May R.G. MENZIES AT THE BAR gaining greater fame as Prime Minister of 1918, Menzies read with Dixon, at that The Australian zest for politics as a blood this country. At the time he opened this time the leading fi gure of Melbourne’s jun- sport should not be allowed to blind us, as building Mr (as he still was) RG Menzies ior Bar. (Hayden Starke was technically a members of the Victorian Bar, to Menzies’1 QC had been Prime Minister for just on junior, having for some years refused to quite extraordinary career as one of us. 12 years. He would serve for just over take silk because to do so might advan- In March 1920, in his second year at the another four years before announcing, one tage him at the expense of other barris- Bar, Menzies appeared on his own in the January morning, right out of the blue, his ters serving in World War I. But he was High Court, for the Federated Engine- own immediate retirement. The time was the recognised head of the Victorian Bar, Drivers and Firemen’s Association of entirely of his own choosing, something and was hardly thought of as a junior.) Australasia.2 I hope I may be permitted to I think not true of the retirement of any Throughout the 1920s Menzies and Dixon note the framed certifi cate, much prized by other Prime Minister this country has had. appeared together and against each other. my grandfather and now hanging on a wall Nor does it seem likely to be true of any Throughout the 1930s Menzies regularly of my home, recording his membership of Prime Minister in the near future. Some appeared before Dixon in the High Court. that union from 1886 until his retirement old friends got together and put up the In the course of all this Menzies had in 1929. How Menzies came to get the brief money to buy him a house, for there was formed a vast admiration for Dixon’s lumi- I am not aware. Young men (there were no little superannuation for parliamentarians nous intellect. When Dame Pattie Menzies young women) did not get High Court at that time, and Menzies had an old-fash- famously said to him, “Bob, you must briefs on their own in those days. The later ioned belief that a Prime Minister ought remember that Owen Dixon is not God”, Dr E.G. Coppel QC , who was to develop a not to leave the Lodge with more money his reply was instant: “No, my dear. But very large practice and was twice an act- than he entered it. Times have changed. only just.” In 1952, as Prime Minister, he ing judge of the Supreme Court of Victoria At his retirement in 1966, it was 27 years had appointed Dixon to be Chief Justice — a story for another day — told me once since, at the age of 44, he had fi rst become of the High Court, thereby putting forever that he had been at the Bar for ten years Prime Minister, and 34 years since his out of reach what many who knew him before he ran a Supreme Court trial on his engagement in private practice as a bar- best thought had been his own ultimate own. And there was Menzies in the High rister had largely ended, in 1932, when he ambition. Court on his own in his second year, not was aged 37. I want to say something today of these consenting or anything formal of that sort, Menzies had more to do that day than two famous fi gures, and something of a but appearing for the claimant in a very declare the new building open. He had third and less famous fi gure whose name serious case. His instructing solicitor was also to unveil the portrait by Mr A.D. is to be remembered with honour among H.H. Hoare, of whom I have found noth- Colquhoun, which today hangs in the barristers. ing save the description “discerning”.3 The
44 Opening of Owen Dixon East refurbishments.
Commonwealth to increase the range of young man. He had — as the world was to its control over industrial conditions. Not discover — a massive confi dence and per- everything changes. The union supported sonal presence of his own. He seemed not the increase of Commonwealth power. at all put out — might even have trailed Some things do change. It is said that his coat for such an intervention, with a Menzies appeared on his own because reply ready for it. For strong legend tells more senior counsel had advised that us that the reply came instantly: “Yes, your the case was hopeless. And certainly a Honour, the proposition is nonsense.” The long line of High Court and Privy Council admission did not betoken surrender. Far authority stood in his way. He was from it. Menzies continued straight on: “It opposed by a bevy of silk and experience, is nonsense that I am compelled to speak, SEK Hulme QC offi cially opening the Sir Edward Mitchell KC and Latham, and by the decisions of this court. If the court refurbished Owen Dixon East. the Sydney silk Flannery KC leading the will give me permission to attack those young Evatt. Present on the court was Mr decisions, I shall cease to speak non- young Menzies was opposed by the doyen Justice Starke, who had gone to the High sense.” Whatever precisely he said, the of the constitutional law Bar, Sir Edward Court still a junior: a fi erce and irascible court allowed him to mount his attack. Mitchell KC, with him the very senior jun- man of most powerful presence, a man The case ended on 2 August 1920. ior John Latham, later to be Chief Justice of whom Sir Owen Dixon said that “(He On 31 August the Court announced its of the High Court. Dixon appeared for the had) a forensic force as formidable as I decision. By a majority of 5 to 1, Menzies Commonwealth, intervening. At the end have seen”.4 had won. The earlier cases had been over- of the day no one had been entirely suc- It is of course always of assistance to ruled or distinguished out of existence or cessful, but Menzies had won more of the counsel to have some indication of how ignored. Provisions in the Constitution disputed points than anyone else. the court is thinking. At the same time, giving powers to the Commonwealth In July of the same year Menzies most young barristers would fi nd it of not were to be interpreted according to their appeared on his own in another case much assistance to put a proposition and terms, without any implication that there before the High Court, sitting in Sydney have Hayden Starke indicate fairly clearly were certain undefi ned reserved areas in this time. Again the solicitor was the the way he was thinking by the thunder- which State power was to prevail. Menzies discerning H.H. Hoare, this time acting ous interjection “That proposition is non- had won the Engineers Case,5 the great- for a different union. It was just over two sense.” Pretty powerful stuff to dish up to est constitutional case Australia has had, years since Menzies had begun to read. a young man who had been at the Bar for and now as then one of the fundaments The case concerned an attempt by the two years. But Menzies was no ordinary on which has rested the steady growth
45 of Commonwealth power at the expense Conduct. As a younger man, old Mr was probably more powerful than at any of the States. After two years at the Bar, Gubbins (as we knew him) had briefed Mr time before or since. Menzies was never a struggling junior Menzies regularly. Whenever he wished It has been found not altogether easy again. In addition to his constitutional work to illustrate the proper relationship to reconcile all these non-judicial activities he instantly developed a wide junior prac- between solicitor and barrister, he used with views expressed by Dixon from time tice. In 1922 Latham and Dixon took silk, an example involving Mr Menzies. To the to time as to the desirable limits on non- and in his fourth year at the Bar Menzies end of his days, whenever the fi rm had judicial activities of Justices of the High became fi rst choice in Melbourne as junior a brief suitable for Mr Menzies, the brief Court. In later years his always acute and in constitutional cases in Melbourne. His was prepared and taken by Mr Gubbins at times tortured conscience led Dixon to general practice became enormous. In to Jim Foley, Menzies’ clerk, to offer it say at a conference discussing extra-judi- 1925 Latham disappeared into full-time fi rst to Mr Menzies. Only after Foley had cial activity by judges, where his activities politics, and in 1929 Dixon went to the confi rmed that Mr Menzies’ responsibili- were being used as examples of what must High Court. Menzies promptly took silk ties in Canberra regrettably prevented his be seen as proper because they had been and overnight became Melbourne’s top accepting it, would Mr Gubbins inscribe done by Dixon, ”I should not like it to be constitutional Queen’s Counsel, with the the name of some other barrister, and thought that I necessarily approve of all aging Sir Edward Mitchell edged increas- hand the brief to Foley. that I did at that time.” War produces unu- ingly to one side. He was 34. As a silk, he Menzies loved the Bar. Even after he sual and stark situations, and can demand kept his wider practice effortlessly. became Prime Minister he retained his responses not appropriate in other condi- Menzies had already, in 1928, found chambers in Selborne Chambers, the prin- tions. Later he acted as Mediator for the time to become a member of Victoria’s cipal home of the Bar from 1882 until the United Nations in an attempt to resolve Legislative Council and an Honorary building of Owen Dixon Chambers. Large the impasse between India and Pakistan, Minister. His private practice continued. chambers they were, at the Chancery over Kashmir. He failed — but he and his In 1932 he became Deputy Premier, Lane (Little Collins Street) entrance to effort are remembered with honour in Attorney-General, and Minister for the building. Because of his very special both countries. I note that the attempt Railways. Thereafter, though he did from position as Prime Minister Menzies was, currently being made to at least amelio- time to time do some work in private highly unusually, given permission by the rate the dispute is proceeding along the practice, his private practice was largely Bar Council to sub-let them. The fi rst time lines that Dixon indicated as containing at an end; largely ended in 1932, when I met the now Sir John Young, formerly the greatest hope of success. he was 37, and had been at the Bar for a Chief Justice of the Supreme Court of Important though all these things total of 14 years. In 1934 he was Acting Victoria, was when I went to sign the Roll were, it is as lawyer and judge that Dixon Premier for some months. Not much of Counsel prior to going off to Oxford in is remembered. As barrister, he attained time for private practice there. And still 1953. I found him in Menzies’ chambers, in the 1920s a position of unrivalled less time from September 1934, when he of which he was the current sub-lessee. authority at not just the Victorian but the entered Federal politics as member for When on my return I fi rst met the now Australian Bar. Menzies’ summing-up may Kooyong, and at the age of 39 became Sir Ninian Stephen, later Justice of the suffi ce: Commonwealth Attorney-General and High Court and Governor-General, I found Minister for Industry immediately upon him in Menzies’ chambers, he having suc- his arrival in Canberra. For the rest of ceeded to the sub-lease when John Young the 1930s and early 1940s his court got chambers of his own. Dixon was a Justice of work was limited to appearances for the It may please or at least amuse an the High Court from 1929 Commonwealth in the High Court and the increasingly prevalent sector of the Bar Privy Council. In the years of opposition to note that the fi rst female to come to until his appointment as from 1941 to 1949, between his two Prime the Bar and actually proceed to read, Chief Justice in 1952. Ministerships, he did some occasional Miss Beatrix McCay (later Lady Reid, As to that appointment, private work, though his responsibilities wife of Victoria’s Attorney-General Sir let it suffi ce to record as Leader of the Opposition prevented George Reid) read with the young Mr RG his doing much. I remember his appear- Menzies. the cable received from ing for a jockey in a racing appeal about Justice Felix Frankfurter SIR OWEN DIXON 1946. Asked by a journalist why he was of the Supreme Court of appearing for the jockey, he said simply “I Sir Owen Dixon’s career was more largely could do with the money.” After becoming confi ned to the law, though with signifi cant the United States, saying Prime Minister again in 1949, he appeared forays into other realms. In the early years simply, “Law is enhanced.” in court only once more: in Melbourne, of World War II, while still a judge of the He remained Chief Justice in 1964, appearing as Prime Minister, High Court, he had a directing role in rela- until his retirement in unrobed, to speak in the High Court at tion to the Australian wool and shipping the retirement ceremony for Sir Owen and insurance industries, all done in out of April 1964. Throughout Dixon.6 court hours. In 1942, after Pearl Harbour, that long period he was Some of you — not many, I am afraid, he took leave from the court and accepted recognised in Australia for the years pass — may remember old Prime Minister John Curtin’s request to Mr Gubbins, of the old fi rm of Snowden represent Australia in Washington, as and throughout the Neave and Demaine. In my year as an arti- Minister Plenipotentionary in that criti- common law world as a cled clerk he lectured at Melbourne (there cal period. He had numerous contacts in judge without peer. was no other) University, in Professional Washington, and Australia’s voice there
46 Those who are of a newer generation will, I to the High Court of Australia brings lustre who attended the ceremonies for the think, never quite understand the absolute to their name. In the case of Owen Dixon, opening of Owen Dixon Chambers in 1961 dominance that your Honour exercised appointment to the High Court of Australia and the opening of the four-fl oor exten- at the Bar. Even at the Bar you were not shed his lustre on the Court. sion in 1964 will remember — making the only a point of reference, but also a voice most of those opportunities. of authority. To appear with you was a lib- It all sounds stifl ing. In fact Dixon was The cost of the land and building of eral education; to appear against you was the opposite. To the young especially he Owen Dixon Chambers had been esti- calculated to reduce any normal human was greatly kind, in his court and outside mated at £925,000. The cost turned out being like me to the depths of despair. I it. Laughter, including his own explosive at £787,466.9 For another £120,000 they have always said — and with due apologies, laugh — not a cackle, not a giggle, but could have installed air-conditioning, Sir, I repeat it — that in my time at the Bar with elements of both, and certainly high- but the extra cost was seen as perhaps a you were the greatest legal advocate I saw pitched — followed him everywhere, in bridge too far. In the end far more money either here or abroad.7 his court and outside it. Truly he was a was spent by tenants installing air-con- man for the ages. ditioning room by room, and producing Dixon was a Justice of the High Court It has been interesting to notice, in the a sadly pock-marked building. There from 1929 until his appointment as Chief forty years since Dixon retired, certain were at the time of opening nine fl oors Justice in 1952. As to that appointment, let later High Court judges and judges from (plus the car-parking basement). Initially it suffi ce to record the cable received from other courts (almost all Sydney-based, as some three fl oors were let out to tenants Justice Felix Frankfurter of the Supreme if looking south and unable to believe that including the Department of Justice and, Court of the United States, saying simply, anything good could come out of Israel) somewhat daringly for barristers, the head “Law is enhanced.” He remained Chief explaining matters along lines that “Yes offi ce of Vogue Australia. Some six fl oors Justice until his retirement in April 1964. he was of course very good for his era. were available for barristers; 194 rooms Throughout that long period he was We all recognise that. But nowadays we in all, of which 190 were let at the time of recognised in Australia and throughout know much more about judging, and we moving in. Tenants were coming both from the common law world as a judge with- have a wider range, so our wisdom and Selborne Chambers and from outposts out peer. He was honoured by Oxford, discernment exceeds what was possible in which the Bar had leased and was now by Harvard, by Yale, and by many other his time.” All very self-satisfying no doubt, giving up, in Saxon House and Eagle Star universities. He was awarded the Order of though the reader may be reminded of Chambers. Lest anyone think that four Merit, the only person ever so honoured the sardonic remark made to the High empty rooms made the fi nancial position for services only to the law. He could seem Court by one of its early prominent advo- perilous, the Report of Directors noted like someone from an earlier era: and then cates, Sir Julian Salomons: “It shows the the directors’ expectation “that these will deliver a judgment that showed him very advantage that a living mouse has over a be taken as new men start practice”. much someone of this era too. dead lion.” For next one sees later judges New as the building was, things were More than any person I have seen, again leaping over the soon-forgotten not to be too luxurious. Throughout the Dixon became in his later years a man successors, to look back and see Dixon’s building the corridors and lobbies were apart. He had been there so long, and with views on this or that, and Dixon’s manner fi nished in fl oor tiles. Not until — if I such distinction, that other men, even the of dealing with such matters. One may I remember the timing correctly — the very grand and important, deferred to him think feel a certain confi dence that when opening of the four further fl oors built in automatically, as if he were an honoured another Dixon does come along we will 1964 was it realised that carpeting them friend of their father. In a paper I once know because others, not the new Dixon was much more comfortable, added to the wrote on him, I noted that in Dixon’s later himself, will assume the role of John the appearance of the place, and would pay years a very few persons — Menzies, his Baptist and tell us so. I have not to date for itself in lower cleaning and mainte- fellow High Court judges, ex offi cio as it heard anyone making such an announce- nance costs. were, one or two others like his contempo- ment about anyone else. The shift took place in late June and raries Sir Edmund Herring and Sir Charles early July 1961. The main operation was Lowe — called him Dixon, while to the THE VISION AND THE SHIFT handled by Wilsons the Carriers, from rest of humanity he was “Sir Owen”. I said The whole idea of shifting from Selborne Malvern. That business was owned by that his wife Alice Brooksbank, whom he Chambers and building a new home for Ian Wilson, who later attained a dubious married in 1920, was at that time perhaps the Bar was a visionary one. Instrumental fame as President of Richmond Football the only person in the world who called in carrying it through were, giving them Club when that club was winning some him Owen. Sir John Young, who had been their later titles, Sir James Tait, Sir premierships around the early 1970s: his Associate, added a gloss for the care of Reginald Smithers, Sir Murray McInerney, and when the club was beaten so mag- which I have always been grateful: “I think and Sir Oliver Gillard (Can it true that nifi cently by Carlton in the Grand Final in there was also a cousin in Wales.”8 he left a son called Eugene, as the Press 1972. Octa, as the world called him, more Although — sadly — Dixon was never keeps telling me?). The continued thanks than once told me of the great amusement on comfortable terms with Sir Garfi eld of the Bar are due to these and others, his men had had in seeing the furniture Barwick, the pre-eminent High Court for their courage in embracing the vision, being shifted. His men were accustomed advocate in the later part of Dixon’s era and their fortitude and strength in tri- to shifting company head offi ces, and it is as a judge, and his successor as Chief umphantly realising the vision through well-known that the people who inhabit Justice, it was Barwick who best summed scepticism and diffi culties. It is pleasing company head offi ces are accustomed up the entire achievement: to remember that most of them had some to the company providing them with reward, in having opportunities to make new furniture when they shift into new In the case of other judges, appointment long speeches about it and — as those premises. If anything is shifted, it is only
47 the exceptionally good. Some new ten- allocation of rooms took place so peace- drunk indeed. He was the nicest of drunks ants of Owen Dixon Chambers did indeed fully. That this was so was due to one man. — indeed drunk or sober it seemed impos- buy new furniture, but that was not the Indeed for several years that one man sible to annoy Bob Gilbert. These very general way of the Bar. Most barristers handled all the administrative matters of rare occasions would normally conclude thought shifting into a new building quite BCL, in the midst of carrying on a highly with his refusing all aid to get home, and radical enough, without adding the extra successful practice. returning unsteadily to his own chambers dangers of new furniture. So off to the Those whose activities in their profes- and quietly passing out; no doubt waking new Owen Dixon Chambers went tired sion include reading the law reports will at some time or other during the night and old desks and chairs and carpets whose see in the 1950s and 1960s the frequent getting a taxi home. condition showed that they had rendered name R.L. Gilbert, mainly in cases to From the formation of BCL in 1959, such long and faithful service in Selborne do with constitutional law and revenue Bob Gilbert acted as Company Secretary, Chambers (perhaps even in its predeces- law (stamp duty, death duties, land tax, handling in the midst of a very large sor the old Temple Court) as to merit their income tax) though in other areas also practice, without a secretary, the entire passing to peaceful retirement rather than from time to time. In 1950 and 1951 one administration of the company. In the to further use. But for that release they of his tasks was preparing what became early part of 1961, there was added to had to wait a few years longer. the 1952 Rules of Court of the High Court, all this the handling of all applications I was at the time concerned in the which survived in use until last year. from those intending to go to Owen Dixon affairs of the Melbourne art gallery and Bob Gilbert had been equal dux of Chambers. He recorded the details in his design group and art school and offi ce fur- Melbourne Grammar School (they call it own handwriting, on his own little notes, niture manufacturer, all trading as Gallery Head at the Grammar School, but they with his own little charts, and worked out A, run by Max Hutchinson. Max was a per- mean Dux) in 1929 and 1930. He won the the allocations which would give as many son of considerable personality and force: Latin exhibition at Matriculation. At the people as possible precisely what they he would later sell Jackson Pollock’s Blue University he resided in Trinity College, had sought, or as close to it as could be Poles, for what was considered a sum so where he continued his school friendship achieved. He did it all on his own. When enormous as to be a political issue, to with the later war correspondent and crunch time came, to the best of my belief his former Gallery A employee Jimmy author Chester Wilmot. Reading Arts and the whole allocation passed without com- Mollison (a connection the commenta- Law, he won fi rst class honours in Classics plaint, as indeed did his entire handling of tors never got onto) as head of the newly and the Exhibitions in Constitutional Law all the company’s administrative matters. established National Gallery of Australia, and Jurisprudence. In World War II he It was a remarkable achievement, and it in Canberra. Max convinced me to let served in the AIF, reaching the rank of got the new building off to a very comfort- Gallery A organise my room, on the 6th Captain before being part of the doomed able start. fl oor. Thereafter plaintive bleats like “But force sent to a hopeless task in Greece Late in his career, in 1978, Gilbert Max, no barrister has ever had a white and then on to Crete, where he was cap- accepted appointment as the sole mem- carpet” were totally unavailing. So there, tured. He then spent four years in German ber of the Victorian Taxation Board of amid a world of old furniture of about prison camps. Review, deciding in a peaceful and quiet 1900 and earlier, was one room with eve- Gilbert returned to Australia physi- manner disputes in a fi eld that was so rything new, from the white carpet to the cally healthy, but certain aspects of his much his own. He held this position until abstract Janet Dawson on the wall to the four years incarceration had produced 1985. In his last years alcohol played a Gallery A desk and bookshelves and side demons deep inside. At the Bar he prac- larger part in his life than before, and cupboards, all of which Gallery A furniture tised very much in his own style. Almost his life went somewhat awry. Yes, indeed is now subject to honourable intention to certainly as a result of the war, he refused there were demons inside this very nice be passed in due course to the National to take any position where he would be man. His death in 1988 concluded a life Gallery of Victoria as part of its collection required to exercise authority over oth- of the greatest promise, impaired by the of Australian furniture. After the opening ers. He would not employ a secretary – or hazards of war, but lived with grace and ceremony people asked to visit the room even use a communal typist, which most dignity throughout. He was a true servant and look at it. The then arbiter of taste barristers were beginning to do. Every of the Bar. in Australia, the Women’s Weekly, even document he sent out went out in his own published a small article and a tasteful somewhat idiosyncratic handwriting. And THE FORMAL OPENING picture in colour. many documents there were, for he was Mr Chairman, it has long been the ambi- a highly competent barrister, with a very tion of the Victorian Bar, and a most A QUIETER MORE RETIRING MAN large practice. Ludicrously well qualifi ed honourable ambition, that no person shall So far I have spoken mainly of the high by ability and practice to take silk, he be prevented from coming to the Bar by and the mighty. I want next to recall refused to apply, and was perfectly happy being unable to produce, whether owned something of a quieter more retiring man. to be led by people who knew much less or borrowed, a capital sum to buy cham- It is well known that their individual about the fi eld than he did, and were not bers. That is only possible if the Bar can right to control their own individual as clever. He refused to consider judicial continue to play a part in the provision of lives makes organising barristers rather appointment. chambers for persons wishing to lease. I am like herding cats. Given that Barristers’ In his heyday as a barrister Bob nor- aware of obstacles which in recent years Chambers Ltd had at the relevant time mally did not drink at all. Then very occa- have been placed in the way of ensuring no staff of its own, and given the pro- sionally — perhaps in the Bar’s drinking this. This is not an occasion for pursuing pensity of barristers to defend the rights hole at the bar in Menzies Hotel on the last that matter, even if I were so minded. I of people, including themselves, it may day of the year — he would almost delib- say only this, that if the Bar is to fulfi l its be accounted remarkable that the whole erately drink until he became very very hoped-for role in this regard, it must offer
48 adequate and satisfying chambers. The Notes 3. Dean A Multitude of Counsellors (1968) at Bar will not, I hope, reach the full com- 1. There is no satisfactory answer to the p. 195. mercial stage of in-built goldfi sh tank and problem of where to put the possessive 4. Obituary following the death of Sir Hayden the column that does not quite reach the apostrophe on the name Menzies. It is a Starke, delivered in the High Court on ceiling. But a certain standard of comfort singular name, and a zealot might insist on 16 May 1958, and published in 97 CLR at and convenience and communication serv- Menzies’s, as with St James’s. In my view p. v. ices is required. This building, its creators’ the case is one where the ugliness of the 5. The Amalgamated Society of Engineers v pride of 1961, was no longer delivering it. triple z . . s . . s justifi es putting the apos- The Adelaide Steamship Co Ltd (1920) 28 It was getting tired. It needed revitalisa- trophe after the “s” of the name, just as CLR 129. tion. It has received it in full measure, and is done for the same reason with Jesus. 6. See 110 CLR at p. v. all who have planned and worked in the A good revivalist churchman, Menzies 7. 110 CLR at p. vi. project are greatly to be congratulated. would I am sure have appreciated the 8. I have since been informed that I was wrong, They deserve the thanks of the whole Bar. example. anyway. There remained one or two old I express the gratitude of all, I hope, to It has been pointed out to me that in school-friends who called him Owen, and those past and present who have served Scotland, where Menzies is pronounced two or three English lawyers including you in relation to this building. Mingiss, this triple ugliness would not arise Lord Pearce. Felix Frankfurter sometimes I record my deep gratitude at the invi- and the apostrophe would on normal rules addressed him as Judge, sometimes as tation to perform the role I have today. have its own “s”, as in Menzies’s. (Ming- Owen Dixon. But especially in the Aus- With great pleasure I declare open the isses). The curious result is that in this tralian context, the thrust of my remark refurbished version of the original Owen instance good English grammar seems to remains. Certainly I never “heard” anyone Dixon Chambers, latterly called Owen depend on whether one is talking to a Scots- address him as Owen. Dixon Chambers East. And if as I have man or an Australian. 9. See Report of Directors of Barristers Cham- been informed this little cord is the right 2. Federated Engine-Drivers and Fire- bers Ltd dated 9 November 1961, presented one to pull, I will now further reveal the men’s Association of Australia v Adelaide to the second annual general meeting of the plaque commemorating this very pleasant Chemical and Fertilizer Co Ltd (1920) 28 company held on 24 November 1961. occasion. CLR 1.
The Revolution of 1952 — Or the Origins of ODC
By Old Anonymous
N 1947 the Committee of Counsel, as In 1950 it said that: sel’s chambers when the incumbents were it was then known, said in its Annual in Court or away on circuit. Clerks would IStatement that it: the question of accommodation for mem- allow the roomless to use their phone and bers of the Bar has been continuously under lucky readers might be allowed to over- has had continually before it the problem of the consideration of the Committee. stay their reading periods, but most liter- accommodation for members of the Bar. ally had nowhere to put a phone let alone In 1951 there was no mention of a table and chair. In 1948 it said that it: accommodation in the Annual Report. In By the time that elections were to be fact in those fi ve years when the number held in 1952 matters had come to a boil- has been gravely concerned at diffi culties of counsel was increasing substantially ing point and the young men of the Bar Counsel have experienced in obtaining as returned servicemen came back to or (unfortunately there was then only one accommodation. qualifi ed for the Bar the Committee failed woman at the Bar) took matters into their to fi nd accommodation for a single barris- own hands. They were satisfi ed that the In 1949 it said that it: ter. For the roomless counsel this meant Committee had no genuine intention in that they had to roam Selborne Chambers the foreseeable future of doing anything has been continuously concerned at the reading briefs and conducting confer- about accommodation. They held meet- shortage of accommodation for Counsel. ences on seats along its long corridor. At ings, consulted senior men who were sym- times they would get to use other coun- pathetic to their cause and ran a ticket
49 Owen Dixon Chambers East before refurbishment. for the Bar elections. Despite tutt-tutting erable measure of success, the Council did of a suitable building and the extent to from some ultra conservatives who said it not rest on it laurels. which fi nance could be obtained. An wasn’t cricket, old boy, the ticket was com- It reported: overwhelming majority of the members pletely successful. The reigning Chairman present expressed approval of the princi- and Vice-Chairman were thrown out, as The steady increase in accommodation ple that the Bar should be housed in one well as others, and there was a transfusion available during the year has just about building. of new blood in the persons of Ashkanasy kept pace with increased demand. The An incident occurred towards the end QC, Smithers QC, Norris QC, Mclnerney, accommodation position for the Bar gener- of the meeting. A young member of coun- Collie and Connor. ally, however, is still quite unsatisfactory. sel, who shall remain nameless, spoke and The result was startling. The new Practically all rooms in Saxon House are said, inter alia, that although it did not Committee formed an Accommodation being shared; in three rooms there are matter to him because he had independent Sub Committee consisting of Ashkanasy three Counsel. So long, therefore, as Coun- means he could see it might be of benefi t QC, Smithers QC, Anderson and Connor. sel desirous of separate rooms are forced to to others who did not. He referred to this A company styled Counsel’s Chambers share Chambers it cannot be said that the more than once. Shortly after, when the Ltd. was formed to control any accom- accommodation problem for the Bar has Chairman was trying to close the meeting, modation obtained. Initially some lim- been solved, and we can claim no more than Brusey (later Brusey QC), newly at the ited space was found and occupied in to have overcome the most acute aspects of Bar, sought to ask a question. Gillard QC, Saxon House in Little Collins Street near the matter. somewhat testily, “Oh, all right, what is Selborne Chambers. This space grew over it?” “Through you, Mr Chairman, I should the following years and more and more In 1956–57, through the good offi ces of like to ask the last speaker a question barristers found accommodation there, Eugene Gorman QC, Barristers’ Chambers — could he lend me a fi ver?” albeit accommodation shared by two or Limited secured a lease of consider- The report for 1958–59 predicted that three to a room. Building construction able space on the fourth fl oor of Equity the new building would be ready for occu- had virtually ceased during the war years. Chambers, providing accommodation for pation in about two years’ time. In the post-war period accommodation in 14 barristers, and some additional accom- In the next year, 1959–60, the Annual the city was extremely scarce, and regula- modation was obtained on other fl oors of Report of the Bar Council contained the tions made it very diffi cult to obtain pos- Saxon House. following: session of leased premises from existing But about this time the notion of “a tenants. Counsel’s Chambers Ltd obtained future home for the Bar” fi rst came under On 30 May 1958 a general meeting of the a concurrent lease of the 5th fl oor of the serious consideration, and during 1957 Bar resolved that an effort should be made Eagle Star Building at 473 Bourke Street and the early part of 1958 architects to provide a single home for the members and took proceedings for possession of the were engaged, sketch plans drawn up of the Bar. This resolution was re-affi rmed various rooms there. Over time 22 such and the fi nancial aspects of the proposed at a meeting held on 16 October 1959. rooms were made available. By the end of building were investigated. On the 30 In accordance with the policy thus laid 1954, in excess of fi fty Counsel had been May 1958 a special general meeting of down, the Council has proceeded to form found accommodation. the Bar was held at which the details a company known as Barristers’ Chambers By the time of the Annual Report of this planning were placed before Limited and it is a matter of satisfaction and of 1954–55 the Committee of Counsel the general membership of the Bar. A pride that those members of the Bar who had changed its name. It was now the hundred and fi fty attended and the promised support to the scheme for a new Victorian Bar Council, the same members Acting Chairman, Gillard QC, presented building have supplied the necessary initial being again re-elected. Despite its consid- a report covering the probable cost capital for this Company. The thanks of all
50 members of the Bar are extended to R.L. A full report on the activities of Barristers the Opening Ceremony and the addresses Gilbert Esq., for his work as Hon. Secretary Chambers Ltd was made by the Chairman of the Prime Minister and the Chief Justice in the formation of the Company. The Com- of Directors, J.B. Tait Esq. QC, to the fi rst have been published in the Law Institute pany has purchased a site in William Street annual meeting on 11 November 1960. His Journal for November 1961. and negotiations are proceeding at present report to shareholders may be summarised In the Common Room on the 9th fl oor between the Company, its fi nanciers and a by stating that the Company has been suc- there is a library area containing the law construction company for the erection of a cessfully fl oated and obtained the necessary reports and other references previously building on the site. It may be anticipated fi nance to erect a building as outlined in located in Saxon House and Eagle Star that within a month contracts will be exe- earlier circulars to members, that a build- Chambers, a dining room, a lounge area and cuted providing for the erection of suitable ing contract was executed in June 1960 a kiosk where sandwiches and incidentals chambers according to the requirements of and that demolition of the old building and may be purchased. the members of the Bar. erection of the new building commenced The Council, in choosing a. title for the on 4 July 1960, and the project is proceed- (Originally the 9th fl oor was the top new building, wished to pay a tribute to ing satisfactorily as a visual inspection will fl oor of the now Owen Dixon Chambers the Right Hon. Sir Owen Dixon PC, GCMG, reveal. East. Four further fl oors were added in Chief Justice of the High Court of Australia, The directors of the company, who are 1964). who has for many years, both as Barrister nominated by the Bar Council (which is Very few of the Counsel who took part and Judge, taken a keen interest in the the only ordinary shareholder) have made in these events are still with us and at this Association. Sir Owen has graciously con- arrangements for the letting of the lettable stage with the complete refurbishment of sented to the building being named “Owen space to outside interests. Owen Dixon Chambers (now called Owen Dixon Chambers”. At this stage indications are that tenants Dixon East in deference to its younger will be able to occupy the new chambers on and bigger brother West) it is thought it The following extracts from the Annual 30 June, 1961 ... Arrangements are being might do no harm to remind barristers of report of the Bar Council for the following made for the offi cial opening of Owen Dixon today of how it came to be built and of how year 1960–61 describe the bringing down Chambers probably on or about 17 October much is owed to the young revolutionar- of the curtain for most of the Bar’s tenan- 1961. ies of 1952 and to the Bar Councils of the cies and the ringing up of the curtain on decade to 1961. Whilst the trigger for the As at the closure of the Bar’s tem- the arrival of Owen Dixon Chambers: coup was the issue of accommodation, porary tenancies on the move to Owen those years saw a major change with the Dixon Chambers, it may be observed that Bar accepting a general responsibility to amongst the counsel who had either been facilitate as far as possible practice at the in the corridor of Selborne Chambers or Bar and to play a more prominent role in who had been tenants of Bar companies, society. This was refl ected, for example, in there were, in embryo, a Governor- Amongst the counsel the setting up of the Bar Superannuation General, a Governor of Victoria, three High Fund and the control exercised over the who had either been in Court Judges, a Chief Justice of Victoria, a clerking system and in the representation the corridor of Selborne Chief Justice of Papua New Guinea, two of the Bar on an increasingly large number Judges of the Federal Court of Australia, Chambers or who had been of bodies whose activities affected the nine Judges of the Supreme Court of practice of the law. More specifi cally as tenants of Bar companies, Victoria, two Judges of the Supreme Court to accommodation the Bar Council devel- there were, in embryo, of the Australian Capital Territory, seven oped the policy that it should be suitable, Judges of the County Court of Victoria, a Governor-General, a centralised and at reasonable rental on three Chairmen of the Bar Council, and a Governor of Victoria, three a monthly basis. It also instituted the Federal Attorney-General. system whereby the rental of newcom- High Court Judges, a In the following year 1961–62 the ers was subsidised through increased Chief Justice of Victoria, Annual Report shows Owen Dixon rentals for more established members. Chambers well on the way. a Chief Justice of Papua These initiatives were directed towards New Guinea, two Judges Occupation of Owen Dixon Chambers ensuring that no heavy initial fi nancial of the Federal Court of took place progressively during July 1961. investment or commitment was required The building was formally opened on 16 of those wishing to come to the Bar. It Australia, nine Judges October 1961 by the Right Hon. The Prime can fairly be claimed that these measures of the Supreme Court Minister Mr R.G. Menzies CH, QC, MNR. have played a signifi cant part in ensuring of Victoria, two Judges Those in attendance included the Right that over the last forty or more years the of the Supreme Court of Hon. Sir Owen Dixon GCMG, the Premier Bar has been continually renewed by the of Victoria, the Chief Justice of Victoria, the infl ux of young men and women of great the Australian Capital Commonwealth and State Attorneys-Gen- talent and aspiration drawn from all levels Territory, seven Judges eral, the Commonwealth and State Solici- of society. Foundations such as these have of the County Court of tor- General, and a wide representation of helped sustain the independence of the the judiciary of all jurisdictions, of the Bars Bar and therefore the value of the service Victoria, three Chairmen of New South Wales and Queensland, of the it provides to the community. of the Bar Council, and a Law Institute of Victoria, and of other pro- The question may now well be asked Federal Attorney-General. fessions and organisations. The Council has — what if there had been no revolution preserved a transcript of the proceedings of in 1952?
51 News and Views Of Stuff and Silk
A paper delivered by Dr C.L. Pannam QC, as part of the Bar Readers’ course on 9 May 2005.
joined the Bar in 1967. At that time Counsel 17 are female; and, of the 1354 Bar do not shake hands in Term time”! I the divide was between silks and junior counsel 279 are female. I take leave did not then, and do not know now, to what Istuff gownsmen (“men” rather than to think that most women at the Bar, if tradition he was referring. Why on earth “persons” and then regarded politically not all, now have wide-ranging practices would members of the Bar only shake correct). Today there are silks and jun- which extend far beyond matrimonial dis- hands out of Term time? At all events he iors, the word “stuff” not now much in putation. These simple statistics show a followed it up with: “And why you have- vogue; probably because the gowns are dramatic change in the gender balance of been briefed as my junior I do not know now made in China from polyester and not the Bar. The change in the ratio of junior as I assume you know nothing about Sales from “stuff”, whatever fabric that might to senior counsel is not as dramatic but Tax. Anyhow if you have read my Opinion have been. I suspect it was cotton. Silks, still is signifi cant — 1 to 10 in 1967; now a on the point to be argued what else can I hasten to add, have suffered the same little over 1 to 7. you possibly contribute?” I attempted to fate. Recently when listening to an oppo- The rules and conventions which gov- express some views I had formed on the nent’s argument I was fi ddling with my erned the relations between the junior point in issue which were quite contrary newly acquired silk gown from Ludlows and senior Bar were very, very, different to his. These were dismissed with an airy (the old one having frayed away) when I in 1967 to those that now apply. To begin wave of the hand accompanied by a look came upon a tag: “Made in China”! Is noth- with there was the “two counsel rule”. A of disdain modifi ed only by accompanying ing sacred in this rush to globalisation? silk could not appear alone; junior coun- pity. At some stage he added, “Of course, I In 1967 the number of Victorian coun- sel had to be jointly briefed. Then again will announce your appearance with me as sel practising at the Bar was 396. There there was the infamous “two-thirds” rule. Mr Pannam because your doctorate after were 39 Queen’s Counsel of whom only When briefed with a silk, junior counsel all is only from an American university.” one was female, Mrs Rosanove QC. She automatically charged two-thirds of the I think I am safe in saying to you that had a largely matrimonial practice. There leader’s fees. These rules operated until when you are briefed together with a silk were 357 members of the junior bar of comparatively recent times. each of you will not have to endure such an whom only two were female — Miss Members of the senior Bar can now experience. Things have much changed in Kingston and Miss Opas, who again at that appear alone, if that is considered to be the subsequent 37 or so years since then. time had largely matrimonial practices. appropriate; and, if junior counsel are Today I take leave to think we are not at Today there are 1569 Victorian practis- briefed with them then they make their all a bad lot at the senior Bar. Although I ing counsel. Of the 215 Queen’s or Senior own individually negotiated fee arrange- must add, in respect to his memory, that ments. This underscores the point that in later years Dr Coppell and I became if the retainer of junior counsel is not now not friends then joined by several com- a required luxury but their involvement in mon interests and together involved in appropriate cases with senior counsel is many interesting cases. He had one of the product of a decision that their serv- the fi nest legal minds I have ever encoun- ices are required for the proper conduct tered. I remember him with considerable of the particular case. affection despite that fi rst meeting. I vividly remember my fi rst junior brief Enough of this. You are not so much — as no doubt you will. It was in 1968. I interested in the past as in having drawn was briefed to appear as junior to a then to your attention what awaits you when formidable leader of the Bar, Dr Godfrey the junior briefs start to come rolling in, Elias Coppell QC. It was a sales tax case as I hope for your sake they do. I also hope involving the sales tax payable on locally that I can be of some assistance in advis- manufactured gold wedding rings under a ing you as to how to best handle the tasks Commonwealth Act, which I now can only required of you by such briefs. vaguely recall. I fancy it was the Sales Tax (Exemptions and Classifi cations) Act in LEGAL RELATIONSHIP force at the time. Let me fi rst deal with the legal rather than The fashion in those days was to only professional relationship between the use surnames. I introduced myself as Cliff senior and junior Bar. It seems to be clear Pannam and extended my hand to shake that no duty of care arises as between jun- his. He did not take it. I shall never forget ior and senior counsel for the purpose of Dr C.L. Pannam QC. his frosty reply: “Pannam, members of the professional negligence allegations made
52 by the one against the other. The legal ing counsel is retained. That does not mean otherwise loneliness of the professional duty of care that they both are obliged to that the role of junior counsel is diminished. task becomes a shared experience with fulfi l is to the duty owed to their client; On the contrary, as anyone who has prac- the opportunity of being able to bounce and, not to one another. See: O’Doherty v tised as leading counsel will know, senior ideas off one another; to have arguments Birrell (Court of Appeal) [2001] 3 VR 147 counsel places great reliance on junior and tactics mutually evaluated; and to especially at 166. The corollary is that is counsel for all aspects of the preparation of share from possibly (and hopefully) dif- no necessary defence to a claim of profes- the case for trial. ferent perspectives how an advice should sional negligence by a client against junior be formulated, pleadings structured, or a counsel that he or she relied upon the PROFESSIONAL RELATIONSHIP case conducted. views of senior counsel in relation to the Life at the Bar can sometimes be a very In my opinion the relationship between matter which is the subject of complaint; lonely experience. We are individually junior and senior counsel only works as and, for that matter, vice versa. See: Yates briefed to consider questions put to well as it should if four essential condi- Property Corporation v Boland (1998) us for advice; the general tactics to be tions are met. 85 FCR 84 (a Full Federal Court) at employed by the client in the attempted (a) First, a junior brief is not regarded 111–112; not dealt with by the High Court resolution of disputes; the determination as something of a free ride involving on appeal, (1999) 167 ALR 575. A possible of how a client’s case is to be conducted agreeing to or going along with every- contrary view expressed by O’Keefe J in on the pleadings; during the interlocutory thing senior counsel says and does. A.G. of NSW v. Spautz [2001] NSWSC 66 stages; at trial on appeal; and, so on and (b) Second, and the consequence of the is, with respect, incorrect. fi rst condition is that junior coun- The general principles to which I have sel must give independent detailed just referred are of course subject to consideration to each matter which modifi cation by the terms of the contrac- After having practised arises in connection with the carrying tual retainer of either or both senior and as a silk for almost 30 out of the joint retainer. junior counsel. For example, a junior may years now I take leave to (c) Third, senior counsel must give care- be retained on terms that some aspects ful consideration to whatever con- of the client’s case are to be his or her think that I can make the trary or other views junior counsel sole responsibility because of a particular following statement in might put forward and not expect expertise in the fi eld; or, the sole respon- the knowledge that it is that his or her views will inevitably sibility of senior counsel. The terms of the correct: there is no more prevail. retainer in question always provide the (d) Fourth, when senior and junior coun- basis for the existence of duties to the cli- satisfying experience and sel have determined upon a course to ent which arise out of that retainer. See: rewarding professional be followed in relation to any matter Henderson v Merrett Syndicates Ltd experience that junior and then, subject to expressing other [1995] 2 AC 145 at 194, applied in Astley views to one another for the purpose v Australia Pty Ltd (1991) 197 CLR 1 at senior counsel can enjoy of changing that course, they each 22 and 50. than working and arguing owe to one another a professional Before turning from the legal prin- and making decisions obligation of loyalty and mutual sup- ciples which govern the relationship together for the purpose of port in progressing that course. between junior and senior counsel I would To put the essential underpinning of like to draw your attention to a passage presenting and advancing these conditions differently can I refer in the Reasons of a Full Federal Court a client’s cause. you to the marvellous lines given to Sir (Drummond, Sundberg and Finkelstein Thomas More, who was a considerable JJ.) in Yates op. cit. at 111. The Court lawyer in his own right, by Robert Bolt is was dealing with an argument advanced on. We do not enjoy the Judge’s luxury, in his play A Man For All Seasons which if on behalf of junior counsel in a profes- most cases, of being able to consider the you have not you should all read. In the sional negligence case that he was under fi nal version of carefully prepared argu- relevant part just substitute a silk for no duty to give advice as to what valuers ments advanced on behalf of all parties. God — as all silks probably think they are should deal with in their expert reports Instead we are a part of that process. As — and substitute junior counsel as Man. to be used in a compulsory acquisition of advocates we have to anticipate possible land case because that was the responsi- legal and factual attacks which may be God made the angels to show him splen- bility of senior counsel. The members of made upon the client’s case and to evalu- dour — as he made animals for innocence the Court, each of whom had extensive ate those attacks as well as the strength of and plants for their simplicity. But Man he practices as silks, said: the client’s case. made to serve him wittily, in the tangle of After having practised as a silk for his mind! If we may say so, this is a remarkable asser- almost 30 years now I take leave to think tion, and one that shows a complete misun- that I can make the following statement I particularly like that concept. Juniors derstanding of the role of junior counsel. in the knowledge that it is correct: there exist to serve silks wittily in the tangle In our courts most cases are conducted by is no more satisfying experience and of their minds; and tangled their minds junior counsel. But when the case is a dif- rewarding professional experience that frequently are! And in that service wit is fi cult or complex one or where it involves a junior and senior counsel can enjoy than always appreciated. substantial sum of money, the client or the working and arguing and making deci- I now want to deal with some specifi c solicitor will form the view that it requires sions together for the purpose of present- matters which may be of assistance to you the attention of two counsel and then lead- ing and advancing a client’s cause. The in getting on well with your leaders.
53 DRAFTING PLEADINGS ignominious fate in relation to his prepa- Let me make this point. In most cases Prolixity in a pleading is to be eschewed. ration of a prolix Replication. You will a good junior should know more about the Before commencing the preparation of a fi nd the story told in Mylward v Weldon case for advice than senior counsel before draft pleading which is to be settled by (1596) 1 Spencer’s Equitable Jurisdiction the fi rst meeting between you both. This senior counsel an essential exercise is (1846) at 376. Richard Mylward, the son is not at all a counsel of perfection. My to fi rst draw up a plan or outline which of a plaintiff, had drawn a pleading of “… point is that the relationship between sets out the essential elements of either six score sheets of paper, and yet all the senior and junior counsel works well if the the causes of action in question, or the matters thereof which is pertinent may junior has worked up the case before fi rst available defences. Then it is necessary have been well contained in sixteen sheets contacting senior counsel to discuss, or to to identify the necessary factual allega- of paper”. The Court was so outraged that jointly confer with instructing solicitors, tions which are required to make good Richard Mylward was committed to the clients, witnesses, etc. the causes of action or defences. When Fleet Prison and the Warden of the Prison A junior brief is not, and should never that plan or outline is in place the draft- was ordered to take him to Westminster be regarded as, an easy brief. At the end ing exercise can be commenced but not Hall at 10 a.m. the following Saturday. The of the day senior counsel may conduct a before. If you go to the classic books order continued by directing the Warden case as he or she may see fi t, or to set- containing standard form precedents to: tle a pleading or a joint advice on the basis which may be very different to your (Bullen and Leake, Atkin etc.) you will be … then and there shall cut a hole in the drafts. That is the prerogative of the sen- amazed by their brevity. The golden rule midst of the same engrossed Replica- ior Bar. But however that may be, senior is enshrined in Order 13.02 of the Rules tion, which is delivered unto him for that counsel’s views should be informed, even of Court. purpose, and put the said Richard’s head challenged, but always assisted by the through the same hole, and so let the Rep- preliminary work of junior counsel. (1) Every pleading shall: lication hang about his shoulders with the (a) contain in a summary form a written side outward, and then, the same MARKING UP AUTHORITIES statement of all of the material so hanging shall lead the said Richard’s Effective advocacy these days rarely facts upon which the party relies, barehead and barefaced round about West- involves the reading of long passages from but not the evidence by which minster Hall, whilst the Courts are sitting cases or texts or other relevant academic those facts are to be proved … and shall show him at the Bar of the three literature. It is usually only necessary to Courts within the Hall … Indeed the whole of the rest of the present the Court with short concise pas- provisions of Order 13 should be carefully It would be fun to try to redraw this sages to support the submissions being considered in relation to what is required Order to attempt to make it conform to advanced. Senior counsel always fi nd it of to be contained in a conforming pleading. present conditions in our Court! considerable assistance for junior counsel In recent years, sadly enough, my to provide a clearly marked up copy of JOINT WRITTEN ADVICE OR the report which highlights the relevant experience has been that many members ADVICE IN CONFERENCE of the junior Bar seem to be drifting into passages. This prevents those seemingly the habit of ignoring the requirements of If you are briefed with a silk to provide endless pauses and consequent embar- Order 13, with the result that draft plead- such advice then it is essential that you rassment whilst attempts are made to ings put before me for settling are far too do at least these three things. First, read locate the passages to be read. and consider in detail the instructions lengthy. It should be remembered that as CASE SEARCHES long ago as 1596 a barrister suffered an from your instructing solicitor and all of the documents contained in your brief. Another useful exercise which is of con- Second, research and consider the rel- siderable assistance to senior counsel evant statutory provisions, the relevant is to carry out a case base search of the My experience has been legal principles, and relevant authorities principal authorities which are to be used that many members of relating to them. Third, contact your to support the submissions. By this I do leader in order to ascertain how he or not mean the carrying out of the task in the junior Bar seem to be she may be assisted; in particular enquire such a way that such a volume of paper drifting into the habit of as to whether a preliminary meeting is produced that our forests are still fur- ignoring the requirements between you both to generally discuss ther denuded. The exercise is certainly of Order 13, with the the matter might be a useful exercise — it not to ascertain and regurgitate every usually will be. subsequent citation of the authorities result that draft pleadings My essential point is this. Never be in question. It is instead to ascertain put before me for settling passive in the sense of waiting for the whether their status has been diminished are far too lengthy. It guidance or direction of your leader. That or enhanced by subsequent develop- may come. It may not. You must digest the ments, and whether or not they may have should be remembered brief, research the law, and then, and only been the subject of academic comment. In that as long ago as 1596 then, ask your leader as to how you may this context can I offer a warning? These a barrister suffered be of assistance. Of course in most cases searches usually throw up a large number an ignominious fate in you will be asked to produce a draft joint of unreported cases. The computer is advice, or a memorandum relating to the a wonderful aid but it is a literal beast. relation to his preparation issues to be discussed in conference. But Arguments should not be swamped with of a prolix Replication. do not wait to be asked. Be pro-active. copious citations of subsequent authori- Anticipate. ties where the case that provides a sound
54 foundation for a legal submission is simply and second year law student I would regu- vided to the Court or Tribunal hearing referred to for that very same purpose. larly come down from the University to the the matter. As Justice Hayne of the High It is only when the subsequent authority Supreme Court (usually Court no. 3 which Court said in a recent paper: adds something to the analysis that it may is a magical if tragic place) to hear Frank be useful to cite it. Galbally address juries in, usually but not … it seems inevitable that written argu- In passing it is interesting to observe always, murder cases. Let me tell you he ment will play a more prominent part in how technological developments impact was quite over-the-top marvellous. Frank proceedings of any kind in every court. on the traditions and usages of the Bar. In continued here in Victoria the tradition of my early days at the Bar there were things the great leaders of the English and Irish Let me focus upon the role of junior known as “purple gutsers”. These were Bar — Erskine, Curran, Marshall Hall, F.E. counsel in drafting such Outlines. In unreported decisions printed on fl imsy Smith and Sir Patrick Hastings. It is inter- essaying this task you should keep the fol- paper in a purple typeface. They were only esting to note that he never joined the Bar lowing matters in mind. ever produced in an attempt to destroy an but acted as an advocate as a solicitor as (a) In general an Outline should be just opponent’s argument. However, the ethi- was his right. that; it is not a substitute for oral cal rule was clear. If you wanted to rely Let me give an example from John argument. What it does is to provide upon such a “purple gutser” you were Philpot Curran in a case which involved in advance the outline of the way in required to provide your opponent with whether the common law recognized that which an oral argument is to be struc- a copy well prior to the argument where there could be property in a slave. tured. Outlines assist advocacy. They it may have been relevant. Not now. We are not substitutes for it. all have access to the computer-generated No matter in what language his doom (b) Relevant legal principles should be citations of seemingly all of the relevant may have been pronounced; no mat- stated succinctly with the leading unreported cases on a particular point. ter what complexion incompatible with authorities referred to, and, if rel- In my experience no opponent of mine English freedom an African or Indian evant, the particular passages relied in recent years has provided me with a sun may have burnt upon him; no matter on identifi ed. In addition helpful ref- copy of an unreported case upon which in what disastrous battle his liberty may erences to other authorities that are reliance is placed. have been cloven down; no matter with not to be specifi cally referred to can what solemnities he may have been devoted be collated. ASSISTANCE DURING ARGUMENT upon the altar of slavery, the fi rst moment (c) In an appropriate case the Outline Here the role of junior counsel is crucial. he touches the soil of Britain, the altar and can be used to collect together the There is nothing more helpful for senior the God sink together in the dust; his soul detail of the evidence upon which the counsel than to have the benefi t of a jun- walks abroad in his own majesty; his body Court is being asked to make particu- ior’s correction of an error in a submission swells beyond the measure of the chains lar fi ndings of fact. This saves a lot of being put to the Court; a comment as to that burst from round him, and he stands time in oral argument. how a question from the Bench might be redeemed, regenerated, and disenthralled (d) It is sometimes helpful to summarise better answered; the drawing attention by the irresistible genius of universal eman- the common ground between the par- to an oversight in the presentation of the cipation. ties. This too may save a lot of time in argument; and various other interven- argument. tions. Absolutely marvellous, but you would (e) If an Outline is to be accompanied However, let me make a fundamental be laughed out of Court if you attempted with a folder of authorities then, point — these contributions should be it today! Not even Phillip Dunn QC would if possible, only provide copies of made unobtrusively either by whispered dare, although he might! However, I urge the headnotes and the relevant comment, or, more helpfully on most you to read the old addresses. They are part of the Reasons for Judgment. occasions, by the passing of a legible note, the rich stuff — in quite another scene Remember the client is paying for stress legible! Of course in order to pro- — of our common law tradition. They the photocopying. Of course some- vide this assistance a complete familiarity might have nothing whatsoever to do with times it is necessary to reproduce with the case is required as well as close the way in which cases are conducted the entire case; but in most cases it attention being paid to the argument as it now, but they evidence the golden link- is not. unfolds. Gown tugging and loudly spoken ing thread between them and us — the interventions are to be avoided. client’s case must be put forcefully and CROSS-EXAMINATION A few years ago I had a junior appear- effectively to the very best of our abilities Senior counsel are always greatly assisted ing with me in a Federal Court proceeding but, of course, having regard to the stand- if junior counsel prepare notes outlining who was constantly tugging at my gown ards and styles of the times. points or approaches to be used in the and offering comments upon the short- Over the last few years it has become cross-examination of witnesses. A list of comings of my argument in a loud voice. increasingly common for parties to pro- the matters which must be put to avoid I leaned across the Bar table and asked vide the Court in advance of argument the dreaded rule in Brown v Dunn is my instructing solicitor to relieve him of with written Outlines of the arguments essential, but other suggested lines of his brief and remove him from the court- which will be put on behalf of the parties. questioning are helpful — e.g. points room, which she did. Still he is one of a It has come to be required by the Rules going to credit, probability, inconsistency, kind, and, for all of that, we are friends. of Appellate Courts. But it is far more and so on. widespread. I can tell you that, with very It is also necessary for junior counsel OUTLINES OF ARGUMENT few exceptions, over the last three years to closely follow the cross-examination of Modes and styles of advocacy have much I have not appeared in a case where an senior counsel so that further points may changed over the years. When I was a fi rst Outline of Argument has not been pro- be suggested or omissions made good.
55 RED BAGS ing indeed I quickly gave it up for fear of as his or hers. You become joint partners I am, and confess at once, an unashamed provoking outrage from my colleagues in some one or other of the various tasks traditionalist — even though I shake hands at the senior Bar. The point is, however, of providing advice to the client; formulat- with fellow counsel in Term time — when an important one. You must try to adapt ing relevant pleadings; agreeing strategies it comes to observing the old customs yourself to the way the particular leader to be employed to advance the client’s operating as between the senior and the you are briefed with approaches the task case; and in putting the client’s case force- junior Bar. As a junior you may acquire a in hand. We are all different. It is only by fully and effectively whether in Court or blue bag in which to carry your wig, gown, moulding your assistance to your particu- in other confl ict resolution processes. It is jackets, etc. But you have no right at all lar leader’s needs that you will work well a team effort. It should involve both the to acquire a red bag for that purpose. The together as a team. silk and the junior making appropriate gift of a red bag (with your initials stitched The essence of what I want to say to contributions to the matters in hand. That on it) lays only in the grant of a silk. It is you comes down to this: when you are is, after all, what the client is paying for. a gift made to a junior in circumstances briefed with a silk it is as much your case Let me make this clear — a silk who leaves where, in the silks view, the junior has a junior out of the process is just as much rendered splendid professional service to in breach of his or her professional obliga- him or her in a particular case or matter. The gift of a red bag (with tion to the client as is the junior who does It is a wonderful tradition, and if you are not effectively involve him or herself in the recipient of a red bag, you should be your initials stitched on it) the process. There is a mutual obligation immensely proud. I fear, however, that it lays only in the grant of owed by both to the client and to no one is a tradition that has tended to be over- a silk. It is a gift made to else to properly and effectively conduct looked in recent years. the client’s case. a junior in circumstances This obligation applies as much to a where, in the silks view, pleading summons as it does to an appeal GENERAL the junior has rendered to the High Court. From both counsel’s In your professional careers you will be splendid professional point of view there never should be such briefed to appear with various silks who a thing as an unimportant or uninterest- each will have different characteristics service to him or her in a ing case. Every case or pleading, or advice and styles. I did toy with the idea of particular case or matter. or application, or anything else related attempting a classifi cation of the types of It is a wonderful tradition. to the conduct of each case, is of critical silks you might be briefed to appear with. importance to the client. Our shared task Although I found the exercise very amus- when briefed together as senior and junior counsel is to put our mutual client’s case, whatever it may be, clearly and to the best of our shared abilities. That is what the adversarial system demands of us, and that is why in my view it is the most effec- tive system for arriving at a just result. For my part I fi nd that there is noth- ing more interesting and challenging than John Larkins to work up a case in common with junior counsel, especially with a junior who has particular views about the matter in hand furniture whatever they might be. It is then that the client is best served by having both senior and junior counsel. Juniors whose sole contribution is to rubber stamp senior individually crafted counsel’s views without any independent examination should just return the brief. Desks, tables (conference, dining, They are of little or no use. A reasoned agreement with senior counsel’s views is a coffee, side and hall). very different matter. Folder stands for briefs and other items Let me conclude by repeating some- thing that I said earlier — junior briefs in timber for chambers and home. are not, and should never be regarded as, easy briefs. They are not, if the retainer is properly executed. Furthermore, in my Workshop: view, there is no better educational proc- 2 Alfred Street, ess for honing your own skills as a barris- ter than to work closely with, and to be North Fitzroy 3068 able to observe how a leader who has had Phone/Fax: 9486 4341 considerable experience in the adversarial Email: [email protected] process goes about, his or her task what- ever it might be.
56 News and Views Peter Rosenberg Congratulates the Prince on His Marriage
14 February 2005 15 February 2005 16 March, 2005 H.R.H. Prince Charles Sir Michael Peat, H.R.H. Prince Charles Private Secretary to St. James’s Palace St. James’s Palace London, Great Britain SW1A 1BA HRH The Prince of Wales, London, Great Britain SW1A 1Bs Clarence House, Dear Prince Charles, Dear Prince Charles, London SW1A 1BA Re: Request for a Royal Teapot Re: Congratulations on your Wedding Dear Sir Michael, Further to my letter I wrote yesterday, I Announcement & Renewal of Request Thank you for your letter of 9 March. for a “Royal Teapot” have just read in today’s Age newspaper that you will in fact tour Australia between I read with concern about the chronic Firstly, congratulations on the announce- 28 February and 5 March 2005. crockery shortages at Clarence House. ment of your wedding to Camilla. I wish It would appear therefore that there It seems only appropriate that I gift you both peace and every happiness for is only a very fi nite period to gird your His Royal Highness a teapot with an the future. servants into action to track down the Australian motif to redress the problem. Secondly, you may recall that I wrote required item. I have every confi dence However, it will take time to locate one to you some time ago seekling your assist- that they will be up to the task. that is suitable. Regrettably, it may not be ance in securing a “royal companion” for I remain hopeful of a satisfactory out- available for delivery until after the wed- my commemorative tea cup and saucer come to your searches. ding on the 8 April. as previous approaches to Buckingham Exploratio continuanda est! Yours sincerely, Palace had proved to be inconclusive. Peter Rosenberg I appreciate that you have to consider Peter Rosenberg weightier matters of state to generally occupy your time, and therefore may 24 March, 2005 not immediately recall the minutia of 9 March, 2005 my odyssey. I am therefore enclosing Clarence House Clarence House copies of the correspondence both with London SW1A 1BA London SW1A 1BA Buckingham Palace (eventnally published From: The Private Secretary to From: The Private Secretary to in the Victorian Bar News) and the sub- HRH The Prince of Wales HRH The Prince of Wales sequent correspondence with your own Dear Mr Rosenberg, Dear Mr Rosenberg Mrs Claudia Holloway (also enclosed). As you will be returning to Australia The Prince of Wales has asked me to The Australian teapot’s arrival is eagerly shortly before your marriage ceremony, thank you very much indeed for your kind awaited. With many thanks for the kind I have been prompted to again make congratulations on his forthcoming mar- thought. contact with you. Would you be able to riage, and to send you His Royal Highness’ send your staff on one further mission to very best wishes. Yours sincerely, secure the much desired item for me? If Your letter has, I am afraid, only Sir Michael Peat you were able to bring the teapot with you reached me today and as you will know when you visit, perhaps we could share a His Royal Highness has already left cup of tea together (or possibly something Australia after a very enjoyable visit. somewhat stronger). I am afraid that teapots and, indeed, cups and saucers are not really my area, I look forward to your reply, but I can say that being a small Household Peter Rosenberg we have very few teapots at Clarence House, all of which are needed, as far as I am aware, for daily use. Your sincerely, Sir Michael Peat
57 News and Views/A Bit About Words Idle Rubbish
Julian Burnside QC
T is notorious that English lacks words or idleness and rascality; a sluggard, Just as we have many more words for for some useful concepts, but has vagabond, ‘loafer’”. Its sound fi ts it well to idle talk than we can conveniently use, so Iwords for utterly obscure concepts. the task and it has been around since the we are richly endowed with words whose So, for example, English has had to 14th century, so it is surprising that it is central idea is rubbish. In Tom Stoppard’s import words such as savoir faire, déjà now so little heard. Similarly, a lusk is “an Artist Descending a Staircase, a vu, décolletage, faux pas, outré, de trop, idle or lazy fellow; a sluggard”. Cotgrave choleric old modernist painter offers a and l’esprit d’escalier because we lacked described someone as “…sottish, blockish terse appraisal of his colleague’s latest available English words for the same idea. … luske-like”. It could not be mistaken work, which comprises a layered sound Equally, we have words for some very odd for a friendly observation. Like lurdan, recording made in an empty room. This things: it dates back many centuries, but even as provokes the following exchange: apopetalous: having distinctly separate the number of people increases to whom DONNER: I think it is rubbish. petals. it could be fairly applied, it has fallen out BEAUCHAMP: Oh. You mean a sort of capes: grains of corn to which the husk of use. tonal debris, as it were? continues to adhere after threshing. Just as idleness of conduct or manner DONNER: No. Rubbish, general rubbish. spetch: a piece or strip of undressed is well-served by English vocabulary, so is In the sense of being worthless, leather, a trimming of hide, used in idleness of speech. Words denoting idle without value, rot, nonsense. Rubbish making glue or size. talk include babble, balderdash, bibble- in fact. wennish: of the nature of a wen. babble, bourd, braggadocio, cackling, BEAUCHAMP: Ah. The detritus of audible turdiform: having the form or appearance clatter, claver, fi ddle-faddle, fl im- existence, a sort of refuse heap of of a thrush. fl am, gossip, jangle, jaunder, labrish, sound … But for many ideas English provides palaver, prattle, prittle-prattle, tattle, DONNER: I mean rubbish. I’m sorry, copiously. Words around the concept of tittle-tattle, trattle, trittle-trattle, truff, Beauchamp, but you must come to being idle are provided in abundance: twattle, yap and yatter. terms with the fact that our paths approximately 500 English words have Most of these are self-explanatory; have diverged. I very much enjoyed idleness at the core of their meaning. some are obviously archaic. Jaunder is my years in that child’s garden of easy So, words which suggest idleness of simply idle talk. Claver is “idle garrulous victories known as the avant-garde, but character include: bumble, do-nothing, talk, to little purpose”. There is a Scottish I am now engaged in the infi nitely more dor, drone, fainéant, gongoozler, loon, saying: ‘Muckle claver and little corn,’ diffi cult task of painting what the eye lubber, lurdan, lusk, picktooth, quisby, (muckle = much) referring to eloquent actually sees. ragabash, rake, shack, sloth, slouch, preaching which uses many words Donner could also have described sluggard, toot, trombenik, vagrant and but has little substance. The pun is on Beauchamp’s work as bilge, bosh, bull, wastrel. claver, clover. A truff is “an idle tale or bullshit, crap, dung, fl im-fl am, horse, Some of these are obvious, but jest”. It is a 15th century word, which horseshit, jazz, moody, nonsense, nut, others deserve a closer look. A bumble seems to have disappeared in the 17th punk, ruck, skittle, skunk, slag, slop, is a blunderer or idler, also known as a century. slush, straw, stuff, toffee, tosh, toy, trash, batie bum. A gongoozler is originally Twattle (also twaddle, and in this form trumper or eyewash. “an idler who stares at length at activity commoner in Australian English) is idle The OED2 notes nearly 400 words on a canal; hence more widely, a person talk or chatter; and just as we now have whose central meaning is rubbish. Tosh who stares protractedly at anything”. A the expression chatter-box, in the 18th is not much heard these days. It was highly specialised word indeed, its fi rst century there was twattle-basket. invented in the late 19th century and recorded use is in that well-known organ Yatter is onomatapoeic and self- was much heard in cricketing circles. It Bradshaw’s Canals & Navigable Rivers evident, but not often heard although it is an interesting word, because it has a of England & Wales. In an attempt at is still in use. It is originally a Scottish number of other meanings apart from that survival its meaning broadened, but the dialectical word. OED2 gives a quotation which cricket conferred on it. It is a bath word remains obscure. from (of all places) the Brisbane Sunday or footpan; it is also those items of value A lubber is “a big, clumsy, stupid Mail: “No one in the Brisbane Valley any which may be retrieved from sewers and fellow; esp. one who lives in idleness; longer believes the tourist yatter given drains. As a contraction of tosheroon it a lout” and it became specialised as a out by Government … circles.” The means two shillings, or money generally sneering term used by sailors as meaning quotation dates from May 1978, when (compare Australian slang dosh); it “a clumsy seaman; an unseamanlike the Premier was the late lamented Sir Joh can also be used as a neutral, informal fellow” especially in the well-known Bjelke-Petersen. Given Sir Joh’s narrative mode of address, equivalent to guv’ or compound expression land-lubber. style, and his famous reference to press squire. Strangely, when tosh is used as an The OED2 defi nes lurdan as “a general conferences as “feeding the chooks”, adjective it takes on an entirely new set term of opprobrium, reproach, or abuse, yatter seems to be an apt word in the of meanings: neat, tidy, trim, comfortable, implying either dullness and incapacity, context. agreeable, familiar.
58 News and Views
Bilge is a very satisfactory word: short, luscious and stinking, it expresses its meaning well. Its primary meaning is the bottom of a ship’s hull, or the fi lth The Ways of a Jury which collects there. It is very often used in its metaphorical sense of rubbish or rot. Much less obvious is its use as a verb, The following decision in Buckley, which was meaning to stave in the hull of a ship, causing it to spring a leak. So Admiral the third trial to take place in the colony of Van Anson wrote in his account of his epic, Diemen’s Land in 1824, and the second murder four-year voyage around the world: “She struck on a sunken rock, and soon after trial, illustrates the various attempts to get the jury bilged.” And this use as a verb may also be metaphorical. In 1870 Lowell wrote: “On to return a proper verdict. which an heroic life … may bilge and go to pieces.” Daniel Aghion Bilge is interesting in another way. In the 625,000 words in the English language, only 11 end with the letters -lge. Three are well-known and obvious: R v BUCKLEY should exist — one conscientious doubt bulge, divulge and indulge. The rest are Supreme Court of Van Diemen’s Land of the prisoner’s guilt, it would be their very strange and rare: Pedder CJ, imperative and sacred duty to acquit him. bolge: the gulfs of the eighth circle of the 31 May 1824 The indictment charged murder, which inferno (also malebolge. Dante did not Source: Hobart Town Gazette, malice distinguished from manslaughter; think well of it). 4 June 1824 but our law contemplated two kinds of effulge: to shine forth brilliantly (hence malice, that which was premeditated, the coded proverb “all that shines with ONDAY, May 31. At an early hour and that which was impliable from the effulgence is not ipso facto aurous”). this morning, His Honour the Chief weapons used in a quarrel. emulge: To drain (secretory organs) of MJustice ascended the tribunal; He therefore who struck his fellow their contents. immediately after which, James Buckley creature with such a weapon as must in evulge: to disseminate among the people; was arraigned for the murder of Solomon probability destroy life was construed to make commonly known, hence to Booth. It will generally be remembered to bear malice; and if death resulted he divulge (e- + vulgare). that our report of the Coroner’s Inquest in would be a murderer. With respect also to milge: to dig round about. this case elucidated all the circumstances, intoxication, which in some instances was promulge: to promulgate (also provulge, and therefore now we shall not detail pleaded as an excuse for crime, His Honour and probably a corruption of it). them. But we may say that throughout argued with much feeling, and said, the thulge: to be patient. our experience of Courts we never heard being who would drink an empoisoned volge: the common crowd; the mob. (The a prosecution more dispassionately or beverage, until reason tottered from her mob is a contraction of mobile vul- more ably conducted than this was, by throne, and mercy left his bosom, and garis: literally “the common people in the Attorney-General; that the trial, which who should then commit a crime of blood, motion”.) lasted until evening, elicited from His appeared no less culpable in the eyes of While bilge is a good word, my Honour the Chief Justice as admirable a law, and was no less amenable to violated favourite word for expressing succinct charge as ever was addressed to a Jury; justice, than if at the time he was sober. condemnation is bullshit. It has the merit and that the whole proceedings were The Jury then retired, and on their return, of being terse, expressive and naughty equally honourable to law, humanity, and delivered the following verdict — Guilty, enough to shock without being beyond the justice. but not with premeditated malice. pale. It can be heard on ABC television, After recapitulating the evidence This of course could not be recorded; which is a fair substitute for a linguistic with much care, and pronouncing a for, as the Chief Justice stated, murder gold standard. It is at risk of becoming commentary on its most important and malice were inseparable, and polite, however, which would strip away bearings, the learned Judge said, the therefore such a verdict nullifi ed itself. much of its force. There was recently fi rst question to be decided was, had the The Jury again left the box, with some published a book titled On Bullshit by wounds and bruises described on the suitable instructions from the Court as to Harry G. Frankfurt (Princeton University deceased occasioned death? if so, had the manner of an especial verdict, and Press, 2005). Frankfurt is a philosopher, so they been infl icted by the prisoner? and again found the prisoner — Guilty, but not his take on this vital subject is useful but then, even supposing the affi rmative, had with malice. A third time, with renewed not obvious. He discusses the difference any equivalent provocation been given directions as to the form of verdicts, between bullshit and lying by reference him to either justify or extenuate them? the Jury withdrew; and, after remaining to an anecdote about Wittgenstein: he It was for the Jury to weigh, in the absent a considerable time, found him distinguishes between a “…statement … scales of impartiality, all that had been — “Guilty of manslaughter”.1 grounded neither in a belief that it is true, proved — it was for them to render nor, as a lie must be, in a belief that it is a due proportion of regard to every 1. Buckley was sentenced to transportation not true”. And that sounds very much like circumstance — and if then, after for life: Hobart Town Gazette, 6 August bullshit, but not rubbish. solemnly matured deliberation, one doubt 1824.
59 News and Views Bar Legal Assistance Committee Legal Aid Lawyers’ Function at Essoign
N 11 May 2005 the Victorian Bar to pro bono and access to justice by the Ross McCaw QC, Chairman of the Bar hosted a function at the Essoign Victorian Bar and the establishment of the Legal Assistance Committee. OClub to honour the contribution strong relationship with PILCH to create made by barristers to the Victorian Bar the one-stop shop for pro bono legal behalf of the Legal Assistance Committee and the Public Interest Law Clearing services in Victoria. and VBLAS. House (PILCH) Legal Assistance Schemes Mr Ross Macaw QC, Chairman of Ross noted that over the past year, and other pro bono work. the Legal Assistance Committee, also over 200 barristers have undertaken pro Over 100 members of the Bar who extended warm congratulations and bono work through VBLAS and PILCH have accepted briefs over the past year expressed appreciation to barristers who across all areas of law and all jurisdictions. to advise and appear without fee for had participated in pro bono work on Their work has included areas of practice, members of the community who would not otherwise have access to legal representation, attended the reception. Also present were members of the judiciary, court staff and members of PILCH who are actively involved in the Victorian Bar Legal Assistance Scheme (VBLAS). Ms Kate McMillan S.C., Senior Vice- Chairman of the Victorian Bar Council, welcomed and thanked all present on behalf of the Victorian Bar and confi rmed the Bar’s ongoing support for the work of Tony Howard QC, Alexandra Richards Ross Nankivell, Barbara Phelan, the VBLAS and PILCH. Kate McMillan QC, John Emerson AO and Susannah Maurice Phipps FM and Jamie Wood, acknowledged the history of commitment Sage-Jacobson. District Registrar of the Federal Court.
including those that are not traditionally considered pro bono practice areas such as corporate and commercial matters, property and planning cases, and appearing in the High Court and in the Coroner’s Court. Further, Ross Macaw QC pointed out that in addition to those who have been called on to undertake work, in fact more than a quarter of the members of the Victorian Bar have volunteered to participate in VBLAS. Of the new barristers who have signed the Bar Roll in the past year, well over half of them have signed up to participate and a great number have already contributed, Paula O’Brien, Jane Fricke, Susannah Sage-Jacobson, Sam Ure, Kristen Hilton, often by accepting briefs to appear Emma Hunt, Bernadette Segrave and Teresa Cianciosi. for community legal centres before
60 News and Views A Much Speaking Judge is Like an Ill-tuned Cymbal Further support for judicial restraint in ex curia public speaking
ONSERVATIVE US Supreme Court law student Eric Berndt further enquired suburban Magistrates Courts. In the past Associate Justice Antonin Scalia of the justice whether he sodomized his year 26 silk have accepted briefs from Cis renowned for his intellectual wife. (For completeness we note that Mrs VBLAS or PILCH, often in the process combativeness — Margaret Talbot likens Maureen Scalia was also in attendance.) also mentoring a junior barrister acting his public speeches to a rock concert and The justice responded that the question in the case. his verbal pyrotechnics as the “jurispru- was unworthy of an answer and Berndt’s On behalf of the Legal Assistance dential equivalent of smashing a guitar microphone was turned off. Committee, VBLAS and PILCH, Ross onstage”. (See “Supreme confi dence: the Thinking out loud we wonder whether jurisprudence of Justice Antonin Scalia”, (a) the justice is reconsidering his delight 81(6) New Yorker 39 (28 March, 2005) in vigorous public debate, and (b) young — the caricature accompanying the arti- Berndt is reconsidering his choice of a cle is captioned “Scalia’s certainty runs so legal career (he is unrepentant, see http: deep that he views detractors with mild //www.perspectives.com/forums/forum6/ amusement”, http://www.newamerica.net/ 37895.html viewed 24 May, 2005). templets/Documents/print.cfm?pg=articl You know, reading through the news e&DocID=2291&Prt=Yes viewed 21 May, reports again, we wonder whether this 2005.) piece should be headed: “Making sure Every year he hires at least one liberal your legal career is properly kick started clerk to give him somebody to spar with, by bringing yourself to the attention of the and the anti-death penalty campaigner big cheeses of the profession”. Bernadette Segrave, Nick Troy and Sister Helen Prejean recalls in her recent (The incident was reported in the Jane Fricke. book, The Death of Innocents, that campus newspaper, the Washington she approached Scalia once in the New Square News, 14 April, 2005, see http: Orleans Airport to advise him that she //www.nyunews.com/news/campus/ Macaw QC also thanked outgoing was intending to attack his views in print. 9405.html and http://www.thenation.com/ Chairman of the Legal Assistance His response — “I’ll be coming right back doc.mhtml?I=20050502&s=berndt viewed Committee Anthony Howard QC who at you,” he said, jabbing his fi st in the air. 24 April, 2005.) retired from the position after three (ibid pp. 41–2). Briefl ess years of service this year. Tony Howard Thus it is no surprise that he has been provided great leadership and energy to prepared to take on all comers in spirited VBLAS during his time with the Committee question and answer sessions after his and was instrumental in providing for the public speeches. He revels in the cut and substantial expansion of the capacity of thrust of argument with his critics and VBLAS in 2004. The Function is intended opponents. to continue as an annual event to recognize At a question and answer session A Contest and reward the pro bono practice of before a recent NYU Law School award members of the Victorian Bar. For any honouring the justice on 12 April, 2005 the ECENTLY some silks’ robes were enquiries or information concerning pro robustness got a little out of hand. After Rfound in a rubbish tin on one of the bono activities or opportunities, please do hearing Scalia’s response to his question higher, more rarifi ed fl oors of ODCW. not hesitate to contact VBLAS staff concerning the recent gay rights case, They looked to be in good condition. Susannah Sage Jacobson, Jane Fricke or Lawrence v Texas, 539 US 558 (2003), Readers are asked, in 200 words, to pro- Bernadette Segrave on 9225 6692. in which Scalia had dissented, gay NYU vide an explanation for that occurrence.
61 News and Views
March 1985 Readers’ Group 2
Wednesday 18 May 2005 at the Essoign Club
OUNDING wiser and looking not Supreme Court of Victoria, three have Darwin, where she works as a senior that much older, 29 of the 35 become Judges of the County Court solicitor in the Family Law Division of the Smembers of the March 1985 Readers of Victoria, three are in practice as Legal Aid Commission. Group gathered at the Essoign Club on senior counsel, two have become Crown The event was organised by a group Wednesday 18 May 2005 to celebrate the Prosecutors, one is the Shadow State led by Judge Meryl Sexton and Goldie twentieth anniversary of each of them Attorney-General and nine have left the Freedman. signing the Bar Roll. Three of the six Bar. (However, four of this latter group The ceremonial duties on the night fell absentees are current members of the Bar continue to be involved in legal practice). to Trevor McLean who performed them who were detained on work in Fiji, Sale The remaining members of that intake are with aplomb. and Tasmania. still in active practice at the Bar. It was a splendid occasion and it Of the 35 who signed the Bar Roll in Two came from some distance to attend was made all the more memorable by May 1985, one has become the Chief the dinner: Chris Priestley from America, a luminous after-dinner speech given Justice of the Supreme Court of Victoria, where he runs a successful computer by the self-styled “brilliant” Neville another has become a Justice of the software business, and Liz Harbour, from Bird. He spoke as if he were at the
62 0th Anniversary Dinner
Front row (seated) Julie Sutherland, Margot Brenton, Judge Gaynor, Goldie Freedman, Brendan Kissane, Judge Sexton, Jeanette Morrish QC, Chief Justice Warren and Liz Harbour. Back Row (standing) Neville Bird, David Robertson, Geoff Bloch, David McKenzie, John Murphy, Nunzio Lucarelli QC, Kim Baker, Andrew Mclntosh MP, Mark Settle, Joe Ferwerda, Justice Bell, Darryl Burnett, Kieran Gilligan, Trevor McLean, Peter Byrne, Shane Kennedy, Judge Smallwood, Joe Sala, Gary Sturgess and Chris Priestley.
30th reunion of the group and regaled slim and living on a diet of exercise, bland anniversary dinner and he will do so well all with a retrospective of the 20th food, mineral water and high powered after acceptances close with an advance anniversary dinner and of the vitamins supplied to him by Goldie payment in cash. developments that will have taken place Freedman. Dinners of this kind are an excellent in the lives of the group’s members since Judges Gaynor-Smallwood will still opportunity for members of an intake that dinner. be in the news and, on advice from — including those who have left the Chief Justice Bird penned the speech their media consultant, they will have Bar to pursue other careers or interests from his chambers overlooking Lake hyphenated their names and one will have — to look nostalgically at the years that Burley Griffi n. Apparently his chambers become the President of Collingwood. have passed since the “salad days” of the will be next to those of the future eminent But he assured us that some things will Readers’ Course and to look forward to jurist, Justice Shane Kennedy — a soon not change: Giuseppe (“Joe”) Sala will still what the next phase of life may bring — in to be reformed sybarite who will then be be the last person to register for the 30th or out of the legal profession.
63 News and Views Aboriginal Law Students Mentoring Committee A social function held on 10 June 2005
HE Bar has again hosted Aboriginal law students at an informal Treception in the Neil McPhee room. The purpose of the evening was to create an opportunity for networks to be built between barristers, indigenous law students, indigenous lawyers and representatives of university law schools which are attended by indigenous stu- dents. Melbourne’s universities have over 30 Aboriginal law students, a number of whom participate in the Bar’s mentoring program. The Bar scheme is available to all those students who wish to apply for Justice Sally Brown and Paula King. a mentor but sometimes some extra encouragement is needed for an application to be made, and functions such as the one held encourage students to join the mentoring program. Thus one of the main purposes of the event was to provide that encouragement and to attempt to break down the mystique of the Bar as an institution. Colin Golvan S.C. The greatest number of participants in the Victorian Bar Mentoring Scheme Gray), as well mentors and members so far have come from Deakin University of the Aboriginal legal community. which has at its Geelong campus the Representatives of Melbourne, Monash Institute of Legal Education, offering legal Michael Shand QC and Daniel Briggs. and Deakin Universities attended, education to Aboriginal students from all including Miranda Stewart and Sid Fry, co- over Australia. In addition to students, the function ordinators of Aboriginal studies programs Geographical issues have created was attended by members of the judiciary at Melbourne and Deakin Univerisities somewhat of a challenge for students and (Justices Kaye and Bongiorno of the respectively, who have been strong mentors in the past, but the increasing Supreme Court, Justices Gray and Merkel supporters of the mentoring program. accessibility of email has helped overcome of the Federal Court, Justice Browne of Although the event was designed to be some of the limitations of distance. the Family Court and Chief Magistrate a fairly informal occasion some low-key
64 The Essoign Wine Report By Andrew N. Bristow
Jenke Vineyard’s Barossa Shiraz 2000 HE ancestors of the wine- maker Kim Jenke fl ed TGermany as religious refu- gees and settled in the Barossa Valley in 1854. Kim is the sixth generation of his winemaking fam- ily and is the winemaker of the Jenke Vineyard’s Barossa Shiraz 2000. 2000 was a dry season in the Barossa Valley, which created good sugar levels with great intensity in the fl avour and fruit. The wine was barrel fermented in new and two- Louise Anderson, Ron Davis, Findlai McRae and Justice Ron Merkel. year-old American oak barriques where it matured for two years prior to bottling. The wine has a bouquet of plum and summer berries. The wine colour is a beautiful deep ruby. The wine is dry, complex and with full fruit. The wine is astringent on the front palette but exploding on the back palette with great intensity of the fruits that is almost overpowering. This Simone Bingham, Peggy Swindle, wine has the fi nesse and balance Justice Peter Gray and Frank to be confi dently cellared for 10 Guivarra. to 12 years. It is available from The Essoign Club at $28.00 a bottle ($23.80 takeaway). I would rate this wine as junior constitutional barrister, complex and full of him or herself and able Hans Bokelund. to continue on for a long time. speeches were made. Colin Golvan S.C. welcomed the participants and promoted the benefi ts of the scheme. Hans Bokelund, an Aboriginal lawyer, who has recently commenced in practice, spoke on behalf of the indigenous students and lawyers and gave an eloquent vote of Ann Collins and Louise Kyle. confi dence to his experience of mentoring and the benefi ts for students and mentors Bar last had an Aboriginal member. The alike. mentoring scheme means to redress this It has been over 20 years since the anomaly.
65 News and Views Verbatim
is based. The Union has in response ment is to the oath, and the fact that I am To Robe or Not to Robe fi led four affi davits which differ in those under oath at all times in any event. Federal Court of Australia deponents’ recollection of the events. The Mr Langmead: We would ask you to resolution ... proceed in the manner in which you 6 April 2005 The Commissioner: And I found it very originally indicated, sir, which is to give Australian Competition and Consumer helpful. sworn evidence and be available for cross- Commission v Leahy Petroleum Pty Ltd Mr Langmead: The resolution of those examination. and Others differences between the deponents, The Commissioner: I am happy to Corum: Goldberg J including yourself, sir, becomes a matter swear an oath, but I am under oath, I am Ms E. Strong (instructed by the Australian of some diffi culty, in dealing with it, a under my oath of offi ce and I don’t con- Government Solicitor) appeared on behalf great diffi culty in our submission. In that sider it necessary, but it is up to you, Mr of the applicant it requires that you form a view about, Langmead. If you would like me to swear His Honour: I think I have been dis- with respect, your own sworn evidence, the oath on the Bible I am happy to do courteous to you. I didn’t realise you had and the sworn evidence of the other four so. robed. I would have robed if I had known deponents. That seems to us to put the Gareth Grainger sworn you had robed. I apologise. Commission in a position of such great dif- [Cross-examination] Ms Strong: I’ve been feeling the oppo- fi culty that almost inevitably of itself must Mr Grainger: Subsequently you are site, your Honour. I assumed, given that create an ... appearance of bias in that the recanting the remainder [of your previ- it was actually the fi nal orders being made Commissioner is about to pronounce on ous statement] and substituting what you in the matter, that it would be a pearls and his own evidence and the other deponents have just said? tiara affair. and make a judgment as to — in some way The Commissioner: Yes ... That’s the His Honour: It is, with long gloves as as to which one is correct. best deduction I can place on it, consider- well. But unfortunately I, due to a mis- The Commissioner: ... There are some ing all of the material before me. communication before I came in, I didn’t facts in dispute between the four UFU Mr Langmead: I think you can direct think anyone was robed. So my robes are members’ witness statements and my own yourself to leave the box, sir? on the other side of the door. witness statements. I don’t hesitate to The Commissioner: I will excuse myself Ms Strong: I did consider taking mine off look at those witness statements and my and resume my hearing of the matter. at the Bar table but then I thought that own witness statement with complete dis- might be a bridge too far. passion, and don’t hesitate to draw a con- The witness withdrew. His Honour: Thank you very much for clusion as to whether any of those witness Mr Langmead: The customary practice is that. statements is a better refl ection of what to invite the witness to leave the Court. Ms Strong: If your Honour pleases. actually occurred in any particular detail, The Commissioner: Well, I shall remain His Honour: Adjourn the court. than what I recollected ... But I can only as the presiding Commissioner... say, no, I have no hesitation in viewing it with complete dispassion and detach- Judge Thy Self ment, in order to reach a conclusion. Cognitive Problems Mr Langmead: Normally the way in The Australian Industrial which confl icts of evidence are resolved County Court Relations Commission is, of course, to make the deponents of 13 December 2002 3 March 2005 affi davits available for cross-examination Corum: Hanlon J Metropolitan Fire and Emergency ... which ... in our submission requires the Mohammed Feroz Ali v Luke O’Brien Services Board v United Firefi ghters’ Commissioner making yourself available and Transport Accident Commission Union Of Australia for cross-examination. Then that brings Mohammed Feroz Ali v Electom Pty Ltd Corum: Commissioner Grainger about that very extremely diffi cult, almost and Victorian Workcover Authority Mr Langmead for the Union impossible situation, as to how that could Mr B.M. Griffi n, with Mr I.D. McDonald The application is for the Commissioner possibly be done. (instructed by Herbert Geer and Rundle) to disqualify himself from further hearing The Commissioner: I am very happy for appeared on behalf of the Defendants the matter on account of (alleged) appre- you to question me from where you are hension of bias and from where I am, Mr Langmead. His Honour: This was going to be a com- Mr Langmead: I think the diffi culty is, sir, ment. I can feel it coming. Mr Langmead: If I may briefl y recap: that — it is the traverse from the sworn Mr Griffi n: I think I can feel it coming the thrust of that submission is that evidence to unsworn evidence. Clearly too, Your Honour. the Commission is now in a position I cannot see, with respect, how you can His Honour: What is Dr Miach’s spe- of you, sir, having provided a sworn affi da- give sworn evidence because you can’t cialty? vit as to factual matters upon which ... the administer the oath. Mr Griffi n: She’s a neuropsychologist. application we have fi led in admitted form The Commissioner: No, my commit- His Honour: At p.5 of her report I have
66 News and Views noted with some interest the cognitive problems which she was referring to. She could have been talking about me. Mr Griffi n: I don’t know how to respond Court Network’s to that, Your Honour. His Honour: Perhaps you’d better not. Mr Griffi n: I’ll just note it. I think that’s the safest way. … He describes his con- 25th Anniversary centration as “completely gone”. He can no longer follow a television program or a lecture, fi nding that his mind drifts off. His memory is so unreliable that he is con- stantly forgetting or leaving behind valu- VERY day in 24 courts across very long trial at the Supreme Court in rela- able items like his wallet or sunglasses. the state, Court Network tion to the murder of my brother Keith. You Recently he lost his valuable sunglasses, Evolunteers help victims, witnesses, made the trial so much easier to bear. leaving them somewhere but being unable respondents and distressed families. Name withheld to recall where. He frequently leaves his These volunteers — a team of over 300 wallet behind in taxis, and it has been — are fondly called “Networkers” by court Having to recount my story at court was returned to him on many occasions. At staff. Judges most familiar with their work more traumatising than the actual crime. home he is constantly misplacing things, will often not start a hearing until they I will not forget your support, you got me and he becomes very frustrated and dis- know a Networker is on hand to assist through it, thank you. tressed by his poor short-term memory. with the human aspect of rulings or court Name withheld, Sexual Abuse Victim He has not driven since the accident process. Networkers are referred diffi cult because of his reduced concentration. He cases by the Witness Assistance Program, Over the years, I have seen Court Net- is fearful he would hit someone or have an the police or the OPP. work become part of the fabric of the accident since he cannot concentrate for Last year, more than 72,000 Victorians court system but never lose sight of its any length of time. were assisted by Court Network. It also purpose — helping people who come He also reported slurring of speech provides assistance to the public through to the court in a compassionate, caring, which has improved considerably over a 1800 number and an information and non-judgmental way. As a Crown Pros- the two years, fi ve months since the acci- education service at the Supreme Court. ecutor I have seen Network staff assist dent. He still has mild slurring of speech The service is also operating an outreach the bereaved relatives of the deceased in at times. project at the Children’s Court, funded by murder trials, support victims in countless Continued on page 72 the Telstra Foundation. rape trials as well as the families of people Some heads of court have commented sent to prison. I frankly do not think the that if they hear nothing about Court system could survive without their wonder- Network, things must be going well! ful work. Court staff recognise Networkers for their Ray Gibson, Crown Prosecutor diligence and hard work, their discernment and their ability to minimize the human Court Network has provided invaluable toll of hearings and sentencing. assistance to unrepresented parties who TA I LO R I N G The Victorian community is fortunate have appeared before me in the civil and to have the services of Networkers, which criminal jurisdictions. They have also been Suits tailored to measure is made possible by fi nancial support from able to perform an important role in sup- the Departments of Justice and Human porting witnesses and family members in Alterations and invisible Services, The Federal Attorney-General’s criminal trials. During the year I have heard mending Department, the Telstra and Buckland numerous cases of culpable driving and Foundations, the Victorian Law Institute have had the benefi t of court networkers Quality off-rack suits and private donor’s contributions. providing a much-needed buffer between Repairs to legal robes In June 2005 the Court Network the accused and relatives of the deceased celebrates it’s 25th anniversary. Substantial victim. I am sure that other Judges have had Bar jackets made to order funding from The Helen MacPherson similar help. Smith Trust and the Buckland Foundation At all times, I have found the court net- will allow the Network to complete the workers to be professional and discreet. state-wide coverage of the courts that was At all times, they have provided a valuable envisaged when the service started in the service to this Court. LES LEES TAILORS Prahran Court a quarter of a century ago. Judge Rachelle Lewitan QC, AM Shop 8, 121 William Street, Prahran Court is no more, but the Network Melbourne, Vic 3000 has expanded to cover all of Victoria. As the Network marks and celebrates Tel: 9629 2249 This is what some of the users of Court its 25th anniversary, you might consid- Network have to say about its work: er participating in this milestone by Frankston becoming a Friend of the Network. Tel: 9783 5372 A very big thank you to everyone at Court Contact 9603 7420 for more information Network for your kind assistance during the or go to www.courtnetwork.com.au
67 News and Views Au Revoir, Hartog
On 19 May 2005 between 80 and 100 members of the Bar gathered in the Essoign Club to farewell one of the most colourful fi gures in the Bar’s recent history, Hartog Berkeley, who retired after almost 46 years at the Bar. The dinner was hosted by the members of the 16th Floor of Owen Dixon Chambers West, Hartog’s “neighbours”.
ARTOG’S wife, Margaret, who was present at the dinner, aptly Hremarked many years ago that “in order to be a member of the Bar, you really have to be a little eccentric”. It is hard to say to what extent her assessment of the Bar was coloured by her assessment of her husband. Hartog had the gift of being a non-conformist, if not an eccentric. It is not necessary in these pages to canvass the highlights of his successful career, which included service as Solicitor- General for the State of Victoria under the Cain Government. It is perhaps more apt to draw attention to his capacity to catch the attention of the court: by referring, for Mark Derham QC, Phillip Bing, Hartog and Justice Stephen Charles. example, in one High Court case to the concentric circles of power exercised by the State and the Commonwealth which give rise to the “doughnut theory of con- stitutional law”; or to his description of one of the plaintiffs in the ASIS case (A v Hayden) as “the Cockatoo”, and when the expression was queried by Brennan J, said: “Yes, your Honour. He was the nit keeper”. One story told at the dinner illustrates much of what makes up Hartog. Hartog and President John Winneke. Brendan Murphy QC, Kate McMillan Hartog was in a stream of traffi c in S.C., Judge Campbell and Tony Collins Street, when the driver in front of Howard QC. him stalled at an intersection. The driver behind Hartog started to sound his horn. Hartog got out of his car, walked back to the horn blower, opened the door and said: “Excuse me. You seem to be having a problem. Can I be of any assistance?” In an age when conformity appears to be the fashion, we who remain will miss you, Hartog.
(Right) The Berkeley family and Justice Susan Crennan on the left.
68 News and Views Homage to Hartog: An Ode Modern Future How shall we praise this Hartog? for Victoria’s Let us count the ways: We love thee fi rst for cheek Delivered meek and mild Historic Legal To judges. All innocence, you bat your eyes Affect surprise, Precinct And let them have it.
Then next, for penetrating wit, That’s just a little bit ICTORIA’S iconic, heritage-listed legal precinct, improve court administra- Risque. Supreme Court is set to continue tion and to optimise the delivery of court (Sometimes the things you say Vserving the community into the services,” he said. future with Attorney-General, Rob Hulls, The Melbourne Legal Precinct Can redden leather cheeks recently unveiling a blueprint for the Masterplan includes proposals such as: Of us, who’ve seen it all). redevelopment of the court and wider • A new single, entrance off Lonsdale Melbourne legal precinct. Street with airport style security “As an architectural and cultural icon, screening; And third we love your mind, the Supreme Court is instantly recognis- • A dedicated criminal division of the Of such a limpid kind not able to many Victorians as the physical Supreme Court in a new building at the representation of our legal system,” Mr rear of the historic court; Often met. Hulls said at the unveiling. • Consolidating the Supreme Court and A joy to watch its turns and twists “To meet the needs of a modern justice Court of Appeal in the one building; As rapiers slip right past system, this magnifi cent 121-year-old • Improved public access to and around building requires a major overhaul. the Supreme Court, particularly for The Other Side. “Today we have taken the fi rst step in people with disabilities; this process by developing a blueprint that • Introduction of state-of-the-art tech- provides a plan to guide future decisions nology in line with contemporary court But lastly, Hartog dear, regarding the building and its environ- design standards; We love you most ment. • Improved holding facilities and protec- Because you’re kind. “Existing facilities of the court need tion for persons in custody. updating and additional works are neces- However great the mind, sary to ensure the building is better inte- It’s warmth that draws us near. grated with its more recent neighbours,” he said. Your heart so large and generous, Mr Hulls said Melbourne’s centralised Your willing help legal precinct — on the intersection of To all that ask William and Lonsdale streets — is unique in Australia with the Magistrates’, County Is really sui generis. and Supreme Courts all situated opposite each other. “To preserve this precinct the Bracks We’re sad that you’re to go — Government has made an initial invest- THE (It’s been a splendid show) ment of $2.5 million to implement the Enjoy the peace, by the fi reside doze. blueprint, known as the Melbourne Legal ESSOIGN Precinct Master Plan. “This masterplan was fi rst identifi ed Open daily for lunch in last year’s Justice Statement which … But now and then, remember us, See blackboards for daily specials outlined a long-term strategic approach to Still chasing the Clapham omnibus. future reform of Victoria’s justice system. Happy hour every Friday night: “This high priority of the masterplan is 5.00–7.00 p.m. Half-price drinks Kristine Hanscombe S.C. to consolidate and enhance the role of the
69 News and Views Preparing for Mediation: Playing the Devil’s Advocate
Julian Ireland
HE adversarial nature of our legal A good mediator will acknowledge this and they have to take the advisor system conjures up notions of beat- the diffi culties in their opening state- and the client through the possible weak- Ting the other side, winning with ment and will indicate that the private nesses. smart points and assertions of “I’m right In proper preparation for a successful you’re wrong — I’ll see you in court”. mediation, it is helpful and possibly signifi - Litigants usually have friends and rela- cantly reduces the length of the mediation tives who sympathetically agree they have if the clients: a good case. They employ legal advisors • write (for their own use) a concise case who, on the instructions they receive, outline of the strengths and weaknesses bolster this view. Further, the history of of their own case, and then; perceived abuse or unfairness of most • put themselves in the shoes of the other litigants, both plaintiffs and defendants, side and write out what they think are is magnifi ed and reinforced by the strat- that side’s strengths and weaknesses; egies of the authors of the various court • undertake the same exercise with pleadings. experts’ opinions; In the pleadings there is an underly- • quantify their losses and the other ing contradictory “push-pull” attitude side’s; between disclosure and non-disclosure, • write a list of priorities and possible which competent lawyers use to advance concessions; their client’s claim. It is no wonder that • write a list of legitimate expectations in the mediation room parties look with and responsibilities of both sides’ cases scepticism when the mediator urges them that could apply to the problem to be to step into the other side’s shoes and view solved. the dispute from the opponent’s point of These aims may well overlap but it will view. Some people can’t do it, some people hopefully achieve the purpose of the cli- sham it. They are just not prepared for the ent appreciating that there are two sides quantum change that they are being asked to the debate. It is my experience that to perform. Yet a successful mediator with Julian Ireland parties who have prepared in this fashion a result that sticks usually requires that save time in mediation and can be more change to occur. sessions will assist the parties to come forthcoming in identifying underlying to an understanding. However, there are causes of the dispute and do not baulk at useful paradigms that can be utilised prior the concept of compromise and “cutting to mediation hearings to ease the shock of a deal”. There are useful parties becoming attuned to the apprecia- On the other hand, lack of preparation paradigms that can be tion that there is a contrary argument to can lead to a whole gaggle of issues and utilised prior to mediation their set position. These are steps that concerns being raised (often expressed can be put in place to assist the parties with emotionally charged rhetoric) that hearings to ease the to assess the strengths and weaknesses take time and expense to neutralise, shock of parties becoming of their own case and their opponents and sometimes notwithstanding the best attuned to the appreciation beforehand. efforts of the mediator the parties’ posi- that there is a contrary As practitioners, one of the most tions cannot be changed. sensitive exercises to be undertaken is to In summary, a proforma given to argument to their set alert the client to the weakness of their the parties to fi ll in and consider before- position. case and still retain their confi dence. hand is the fi rst step in a successful Mediators cannot rely on lawyers to do mediation.
70 News and Views Is It ’Cos I Is Black (Or Is It ’Cos I Is Well Fit For It)?
Ragunath Appudurai
ALCOLM Garner had just called- nonetheless, still troubled by whether he which required the involvement of a sen- in at his clerk’s offi ce when he was indeed “well fi t for it”. ior and junior counsel. Mnoticed his clerk motioning excit- He’d, of course, experienced both posi- He was aware that the Bar Rules had edly to him. Malcolm hadn’t, in his 13 tive and negative effects of the inescap- been relaxed but had there also been years at the Bar, ever seen his clerk so able fact that he was black. He had once, some accompanying edict requiring that animated. believing the spiel at the Readers’ Course the fundamentals which underpin the He handed Malcolm a note and, whis- about the mysterious cloak of anonymity quality of the Bar, and the legal system, pered, “It’s a ‘call’ from the Attorney. Well afforded by the wearing of a wig, failed also be jettisoned over time? done!” in his attempt to camoufl age himself in a In any event, he was of the view that Malcolm opened the note. It simply sticky situation. Malcolm, of course, had his independence as a barrister would read, “Please phone the Attorney.” It failed to read the fi ne print disclaimer on be compromised by an application to the could, of course, mean only one thing the wig — Conditions apply. head of the Judiciary, asking that the Chief — an appointment to the Bench. He’d been called a “black nigger” by Justice recommend to the Executive his After all, hadn’t the Attorney made it a misguided teenager and had had to appointment as senior counsel. The not clear that he was determined to be “Chief take the trouble to patiently explain to uncommon scenario of repeat applica- Law Offi cer of a State in which the diver- the unfortunate boy the ineffi cacy of tions without success did not assist in this sity of its population is refl ected in those redundancy. A Russo-German neo-Nazi regard. The change introduced in 2004 making decisions that affect it”?1 acquaintance at university had once did not alter this view. Reverting to his native Brixton ver- described Malcolm as a good bloke but, The central thesis of a recent article nacular, Malcolm muttered to himself, “Is with admirable candour, added “but, yer in the Bar News that Australians “had it ’cos I is black, or is it ’cos I is well fi t for black!” He’d been refused service but become a mean and niggardly people, it?” had never been asked to leave premises each of whom is preoccupied with ‘me’”, Apart from the Attorney’s proud provided he was accompanied by other thought Malcolm, could just as well have record of appointments along a roughly acceptable patrons. been a reference to the Bar.3 50–50 gender split,2 it couldn’t, thought On the positive side, he’d never had The business of being a barrister had, Malcolm, be properly said that in other a client walk into his chambers for the after all, moved a long way away from the respects such appointments had truly fi rst time and show any concern. Even thinking of Hayden Starke who “domi- refl ected the diversity otherwise found the “One Nation” sympathisers he once nated the Bar as a junior, and became the in the community. Was he to be at the represented were kind enough to tell him fi rst junior to be appointed a judge of the vanguard of the next phase? Could it be that they would not be seeking his depor- High Court.”4 Starke, it is said, refused to that the defi cit in gays/lesbians, Asians, tation; they promised to have a word with take silk (as he then could have) “because Balkans, Muslims, South Americans, Pauline. other barristers senior to him were away cross-dressers, state school alumni and Malcolm was routinely thrown the new at the War.”4 The man, of course, simply leather freaks will fi nally be addressed? ball and asked to bat fi rst-drop in cricket failed to appreciate the marketing oppor- He’d been keenly aware that women from matches. His captains soon realised that tunity. minority groups hadn’t exactly featured in the perfectly reasonable assumption, Regrettably, the relaxation of the Bar the appointments to date. “He’s black, therefore he must be athletic” Rules had in recent times resulted in the While in the lift, Malcolm recalled the didn’t always hold true. practice in some (if not all) jurisdictions many times he had seen announcements Malcolm was still troubled. of senior counsel appearing on a regular of judicial appointments alongside the He wasn’t silk. He wasn’t even rayon. basis without a junior or appearing with an odd death notice. He, however, couldn’t While he considered himself a more than instructing solicitor as the junior. but wonder whether the notion of a rep- competent barrister and prided himself Cashing-in on the relaxation of the Bar resentative judiciary was just rhetoric. in not having “carried the bags” as often Rules at the expense of the Junior Bar; a Would the next step be an announcement as others who’d been appointed senior manifestation of admirable commercial by the Health Minister that she would counsel, he didn’t consider that he could savvy or just base, self-interest (with just actively pursue the achievement of a truly satisfy the minimum standard which, he a dash of early on-set memory loss)? representative medical and specialist staff believed, was required for appointment as Malcolm reached for the phone but at public hospitals? senior counsel. After all, he could not be hesitated. Malcolm could see the signifi cance of confi dent that he would be able to com- He wondered whether he was being the appointment of a black judge but was, mand a practice based solely upon cases offered an appointment because of his
71 ground-breaking work as the inaugu- represented recognition (at last!) of the Attorney’s speech at the welcome extended ral Convener of the Black Barristers’ existence of diversity not otherwise lim- to Chief Justice Warren in 2003 — Bar Association (BBA) and in his role as ited to gender differences. News, Edition 127, p13: “It seems obvious to the BBA representative on the execu- The burden weighed heavily upon me that the diversity of a population should tive of the Australian Black Barristers’ Malcolm. But he could not bring himself be refl ected in those who adjudicate over Association (ABBA). Immediate Past- to be party to what he thought was change it.” Chairmen of the Bar had, until recently, by the numbers for the sake of change. He 2. Bar News edition No. 118, p. 11: “While been elevated to the Supreme Court as a wasn’t about to become a tick on someone equality of opportunity is not just about matter of course. Could it be that the BBA else’s checklist. numbers of judicial appointments, I’m proud was being embraced by the mainstream? After all, the BBA’s motto was “Keep it of the fact that 13 out of 22 judicial appoint- After all, hadn’t the BBA assisted many real”. He had to decline the appointment. ments have been women.” Media Release, minority groups, including several mem- “Oh, Mr Garner! This is the Attorney’s Attorney-General, 2 December 2003: “The bers of the Bar from otherwise privileged Senior Private Secretary,” the voice on the Bracks Government has made 53 judicial backgrounds, come to terms with their other end said. “Would you be prepared to appointments since 1999 — 26 of those lack of progress? Hadn’t he successfully represent the Attorney at the celebration appointments were female and 27 male.” orchestrated the election of BBA-sympa- of Bob Marley’s 16 birthday next week?” That balance has been maintained in subse- thisers on to the Bar Council? The net- “A black man’s work is indeed never quent appointments. works were starting to deliver. Malcolm, done,” refl ected Malcolm, as he dusted-off 3. Bar News, edition No. 131, p. 25: “The Twi- momentarily, congratulated himself. his dress Rasta-dread “tea cosie” in prepa- light of Liberal Democracy?” But, he knew better. The BBA’s agita- ration for the big event. 4. Bar News, Edition No. 124, p. 28: “Charac- tion on behalf of the many disenfran- But he couldn’t allow himself to even ters of Bench and Bar”. chised members of the Bar must, he temporarily rest on that crutch. Grandma 5. Courts legislation (Judicial Appoint- thought, have surely resulted in his fi le Garner’s oftrepeated mantra, “Bad dancer, ments) Act 2004 — with effect from 2 being marked “Never to be appointed”. blame de fl oor”, was prominent in his psy- June 2004, the qualifi cation for appoint- The BBA had been condemned as “un- che. ment to the County Court was reduced to Victorian” for its stand on many issues. There was no option but to continue to the minimum of fi ve years post-admission The BBA discussion paper, “What’s wrong “Keep it real”. then already prescribed (since 2003) with with an all-female High Court if appointed respect to the appointment of judges of the entirely on merit but drawn exclusively Notes Supreme Court. from NSW?”, would not have helped. 1. Bar News edition No. 118, p. 11: “Address to 6. Courts Legislation (Judicial Appoint- For a moment, he entertained the the Women Barristers’ Association Dinner”, ments and Other Amendments) Act 2005 idea that his name had been mentioned 23 August 2001. A position repeated in the — relevant parts in force from 1 May 2005. in despatches by well-meaning friends but that wasn’t likely. The BBA’s strong opposition to the Coalition/Labor bi-par- tisan approach to the Tampa and other Verbatim continued from page 67 refugee issues must, surely, have made [About one hour later] the rounds? Should he accept? Was he Judicial Abandonment? Dr Griffi th QC: Your Honour, there has under an obligation to accept? Supreme Court of Victoria been a common attempt, I think by the The call had indeed come. 9 November 2004 parties, I accept that my learned friends Was he obliged to stand up and be Victorian WorkCover Authority v — may, the same as I particularly ask counted for his gender, his race and for Commonwealth of Australia Your Honour to, identify exactly what is the good of the BBA, just because others Coram: Kaye J the issue and what seems to be the rather apparently considered that he was suitably D. Beach S.C. with W. Wheelham for thin, we can’t say signpost because we are qualifi ed? Did he not have an obligation to Plaintiff out at sea, aren’t we, but whatever, Your himself and the legal system to carry-out a Griffi th QC with McLeish for Defendant Honour, the buoys or whatever — Your brutally honest assessment of his suitabil- Honour there is a story that President ity for the appointment against the stand- Dr Griffi th QC: Your Honour, we seem to Reagan’s speechwriter left him once, he ards which he believed should apply? have reduced six days to 60 minutes. didn’t like him very much so he gave him Maybe not. His Honour: I think it might take a little the last speech and one of those that fl ash The Parliament had seen fi t recently longer. I am reminded of Mr Balfe who up on an idiot board, Your Honour, and to reduce the minimum qualifi cation for once said, “it’s a short point but it might the President got to the bottom of the appointment to the County Court to fi ve take a bit of time for me to get there”, I second page saying “now I tell you people 5 years post-admission. A new regime cov- don’t know about you gentlemen. of America my views on this issue” and the ering the appointment of acting judges Dr Griffi th QC: Your Honour, I think next page fl ashes up, “now, you’re on your 6 and magistrates is upon us. On one view, we have the advantage here that each own your (sic) bastard”. a kind of “try before you buy” scheme, in party on its exchange of submissions, His Honour: Three minutes ago I had the contrast to the current “fl y now, pay later” Your Honour, seems to have frankly gone same thought. approach. to the points and expressed them and Dr Griffi th QC: I have never called Was there then an over-riding duty to Your Honour has made it clear that Your a Judge that, Your Honour, and I never accept, lest there be no one else of his Honour has also advanced through them will ... ethno-cultural background suitably quali- prior to coming on to the bench which has fi ed for appointment? After all, the offer facilitated progress ...
72 Lawyer’s Bookshelf
be well served checking the looseleaf ver- Discrimination Act 1992 (C’th) which Ford’s Principles of sion before having recourse to alternative does not make victimisation unlawful. The Corporations Law secondary sources. Having said all that, victimisation cause of action in s.96 of the the authors are perhaps too dismissive of Equal Opportunity Act (Vic) 1995 has (12th edn) the practical utility of the bound volume, been an important part of the armoury which remains a portable, accessible and of the well advised complainant.3 The R.P. Austin and I.M. Ramsay eminently useful tool for practitioners. Anti Discrimination Tribunal of Victoria LexisNexis Butterworths, 2005 has been zealous protecting complain- Pp. v–x, Table of Cases xi–li, Stewart Maiden ants from victimisation. In a disability Table of Statutes liii–lxxxi, discrimination/victimisation case the deci- References and Abbreviations sion as to what jurisdiction a complainant lxxxiii–lxxxviii, 1–1374, might lodge a claim can become a matter Index 1375–1418 Discrimination Law and of considerable importance.4 HAT can be said about Ford’s Practice (2nd edn) In the critical area of discrimination on the ground of family responsibilities WPrinciples of Corporations Law By Chris Ronalds and Rachel Pepper the discussion in Chapter 4 lacks a criti- that hasn’t been said before? Since the Federation Press, 2004 publication of its fi rst edition in 1974, this cal edge. Some decisions of the Federal well regarded and widely referenced text HE preface of this book describes Magistrates’ Court lack solid jurispruden- has earned its place on the bookshelves Tdiscrimination law as an exciting and tial credibility. For example, Song v ANZ of thousands of Australian commercial continual evolving area of law. This is Game Technology Pty Ltd (2002) FMCA lawyers. undoubtedly correct.1 31 cannot be justifi ed on the basis of “a This twelfth edition of the work This is a good little book. It gives a good purposive and expansive construction of has been issued in response to further overview of how discrimination law works. provisions as to ‘dismissal’”. The decision changes to the legislative framework It is fairly comprehensive in delineating, lacks credibility in substance and because governing corporations, most notably the (in a set of appendices) the relationships of the way the question was approached latest instalment of the CLERP legislation, within which discrimination can be unlaw- in that case. The use of references to the Corporate Law Economic Reform ful, the grounds of unlawful discrimination “unfair” discrimination indicated a funda- Program (Audit Reform and Corporate and the exceptions across the country. mental misunderstanding of the nature of Disclosure) Act 2004 (C’th). Most of that There are pithy summaries of some of what is intended by discrimination Acts. legislation commenced on 1 July 2004. Its the more important of the High Court’s The provisions as to discrimination on the subject matter includes meeting proce- decisions. Purvis v New South Wales ground of family responsibilities under the dures, auditing, reporting and disclosure. [2003] HCA 62 (11 November 2003), Federal Sex Discrimination Act 1984 It also provides for proportionate civil which even for the initiated is a decision of specifi cally limit the detriment to “dis- liability for misleading and deceptive some complexity, is neatly summarised. missal”. This is unlike the other grounds conduct. The authors have also taken the The diffi culty about this book is its of discrimination where only “detriment” opportunity to revisit the commentary audience. If it is directed to the intelligent of some kind needs to be proved. There is about the Takeovers Panel. human resources adviser, the appendices also, in the federal cases,5 a ready resort Like its predecessors, the twelfth edi- lack comprehensiveness; for example, to the ground of sex as an alternative to tion deals with all facets of corporations prior convictions are not dealt with. This resolving the limitations in the “family law — from the theoretical basis of the is area about which employers often need responsibilities ground”. corporate entity, through the nature, ready information. If on the other had the Fundamental questions of statutory function and origins of companies, cor- book is directed to legal practitioners, this interpretation are at issue in this approach porate governance and liability, corporate book must be treated with caution in some but they appear not to have concerned the fi nance and restructuring to external important technical areas. decision makers in these cases. administration. For example, there is a reference on There are many decisions made by The authors specifi cally state that the page 42 to whether the identifi ed act of (now) leading members of the Federal bound volume of the work is directed unlawful discrimination needs to be the Court, when sitting as the Human towards undergraduate and postgradu- only reason, a substantial or dominant Rights and Equal Opportunity Enquiry ate students of company law. They refer reason or just a reason. The book asserts Commissioners dealing with these issues, practitioners to the larger two-volume this issue to have been resolved by the which comprehensively and cogently looseleaf version of the text. Helpfully, incorporation in all laws of the general address many matters that would appear the two versions use consistent paragraph proposition that the discriminatory reason from this book to have only recently been numbering, with the looseleaf containing need be just one of the reasons for the act. considered or decided in the Federal many further paragraphs interspersed This is not the case in Victoria. Section 6 Magistrates’ Court. Indirect discrimina- between those reproduced in the bound of the Equal Opportunity Act Victoria tion is a complex and sometimes diffi cult volume. Some paragraphs of the loose- 1995 specifi cally provides that the unlaw- area. The summary in this book is helpful. leaf service are “reduced and simplifi ed” ful reason must be the dominant reason But for a thorough understanding of indi- in the bound volume. Further, there are for the discrimination.2 rect discrimination, Rosemary Hunter’s topics (such as managed investment The book also asserts that the victimisa- books Indirect Discrimination, also a schemes) which have simply not found tion provisions of the Sex Discrimination publication of the Federation Press, is their way into the bound volume of the Act 1984 (C’th) are similar to all State undoubtedly the serious practitioner’s text. Those who fi nd the bound volume Acts. Whilst this is strictly true, the book handbook in this area, even though it is light on detail in any particular area would makes no reference to the Disability now quite old.
73 The Federal Age Discrimination Act or other party alleges contravention of the of other primary and secondary materials 2004 is not covered in this book because Trade Practices Act and I await with inter- useful to those who practice in the vari- it came after its publication. est the day when a charge of homicide is ous legal areas touched upon by that very So whilst I recommend this book for its met by a plea of misleading or deceptive broad statute. It reproduces the Trade case summaries, as a technical guide it is conduct.” His Honour’s comment is both Practices Regulations 1974 (C’th), Inter- to be treated with some caution. amusing and helpful: it diverts attention Governmental Agreements, The Australian from my frustrating inability to say very Competition and Consumer Commission’s Notes: much at all by way of review of a volume Merger Guidelines, the Competition 1. The enactment of the Equal Opportunity of annotated legislation. Policy Reform (New South Wales) Act Victoria 1995 signifi cantly increased This is one of two available annotations Act 1995 (NSW), the Trade Practices the grounds upon which discrimination of the TPA. The book is well structured. (Industry Codes — Franchising) Regu- is unlawful. Further amendments in 1997 The annotations are easily distinguished lations 1998 (C’th), the Australian extended these grounds. Victoria accord- from the text of the legislation by font Energy Market Act 2004 (C’th) and the ingly has one of the most comprehensive size, although the book does not adopt the Australian Energy Market Commission Discrimination Acts in the country. more obvious shaded background utilised Establishment Act 2004 (SA). Shaded 2. See also the recently enacted Age Discrimi- by its only competitor for that purpose. page tabs on the sides of the pages assist nation Act 2004 (C’th). Where extensive, annotations are grouped the reader to navigate quickly between 3. See McKenna v The State of Victoria [1998] according to headings. References to rel- different parts of the book, although the VADT 38 (8 December 1997) where the evant cases are plentiful, and the text Act itself appears under a single tab, ren- complainant in that case did not prove any is assisted by a comprehensive table of dering the page tabs of little use to those of the sexual harassment allegations made cases. who do not need to refer to the more eso- by her. She was nevertheless awarded a sub- One of the great advantages of anno- teric content. stantial sum ($100,000) for the victimisation, tated legislation is the provision of an For the most part, this work duplicates in the words of the judgment “for treatment index which enables the hurried reader the material in the Trade Practices volume of disciplinary kind “unheard of in Victoria to quickly link together sections of legisla- of Butterworths’ Practice and Procedure Police”, which she underwent as a result of tion which might not immediately appear High Court and Federal Court of making her complaint of sexual harassment. related. This volume is no exception. Australia. At somewhere under a tenth 4. Other considerations are also relevant here. Pleaders will be assisted by a table the price of that looseleaf service, prac- Costs follow the event under the Common- comparing the provisions of the TPA to titioners not in need of frequent updates wealth Acts. This is not the case under the its Fair Trading Act counterparts in the or the other three volumes of that work Victorian Equal Opportunity Act 1995. All States and Territories. are well advised to consider this bound the Commonweath Acts require the identi- In addition to its annotations to the alternative. fi ed act of discrimination to be the reason for TPA, the book provides a reproduction the discrimination . Under the Victorian Act the Complainant must prove the reason was the dominant reason. 5. See for example Thomson v Orica [2002] FCA 938. Frances O’Brien S.C. Conference Update Butterworths Annotated Trade Practices Act 29 June–2 July 2005: Dublin. The International Liaison Offi ce. Tel: 1-312- Australian Bar/Irish Bar Joint Conference. 988-5107. Fax: 1-312-988-6178. Email: 1974 (2005 Edn) Contact Dan O’Connor. Tel: (07) 3238 [email protected]. Ray Steinwall 5100. Fax: (07) 3235 11801. Email: 31 August–4 September 2005: Fez: LexisNexis Butterworths, 2005 [email protected]. Union Internationale Des Avocats 29th Pp. vii–xiii, Table of Cases 2 July–9 July 2005: Bali. Tenth Biennial Annual Congress. Contact website xiv–l, Pending Legislation li–lxiv, Conference of the Criminal Lawyers www.uianet.org. Comparative tables 1–10, 1–1074, Association of the Northern Territory. 15 September–22 September 2005: Index 1075–1121 Contact Lyn Wild. Tel: (08) 8981 1875. Rome. Pan Europe Asia Medico-Legal Fax: (08) 8941 1639. Email: info@thebest Conference. Contact Rosana Farfaglia. N a recent speech to the Second Biennial events.com.au. Tel: (07) 3236 2601. Fax: (07) 3210 1555. IConference on the Law of Obligations 3 July–9 July 2005: Amalfi Coast. Email: [email protected]. at the University of Melbourne, the Europe Asia Medico-Legal Conference. 7–9 October 2005: Museum of New Honourable Justice Hayne commented Contact Rosana Farfaglia. Tel: (07) 3236 Zealand, Te Papa Tongarewa, Wellington, on the ubiquitous action for misleading 2601. Fax: (07) 3210 1555. Email: confere New Zealand. 23rd AIJA Annual and deceptive conduct under the Trade [email protected]. Conference. Contact New Zealand Law Practices Act 1974 (C’th) (the “TPA”). 4 August–9 August 2005: Chicago, Society. Tel: 64 4 472 7837. Fax: 64 4 915 His Honour said: “No court proceeding is Illinois. 127th Annual Meeting of the 1286. Email: [email protected]. now thought to be respectable unless one American Bar Association. Contact ABA
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