VICTORIAN No. 139 ISSN 0159-3285BAR NEWS SUMMER 2006

Appointment of Senior Counsel

Welcomes: Justice Elizabeth Curtain, Judge Anthony Howard, Judge David Parsons, Judge Damien Murphy, Judge Lisa Hannon and Magistrate Frank Turner Farewell: Judge Barton Stott Charles Francis Talks of County Court Judges of Yesteryear Postcard from New York City Bar Welcomes Readers Class of 2006 Milestone for the Victorian Bar 2006–2007 Victorian Bar Council Appointment and Retirement of Barfund Board Directors Celebrating Excellence Retiring Chairman’s Dinner Women’s Legal Service Victoria Celebrates 25 Years Fratricide in Labassa Launch of the Good Conduct Guide Extending the Boundary of Right Council of Legal Education Dinner Women Barristers Association Anniversary Dinner A Cricket Story The Essoign Wine Report A Bit About Words/The King’s English Bar Hockey 3

���������������������������������� �������������������� VICTORIAN BAR NEWS No. 139 SUMMER 2006

Contents EDITORS’ BACKSHEET 5 Something Lost, Something Gained 6 Appointment of Senior Counsel CHAIRMAN’S CUPBOARD 7 The Bar — What Should We be About? ATTORNEY-GENERAL’S COLUMN 9 Taking the Legal System to Even Stronger Ground Welcome: Justice Welcome: Judge Anthony Welcome: Judge David WELCOMES Elizabeth Curtain Howard Parsons 10 Justice Elizabeth Curtain 11 Judge Anthony Howard 12 Judge David Parsons 13 Judge Damien Murphy 14 Judge Lisa Hannon 15 Magistrate Frank Turner FAREWELL 16 Judge Barton Stott NEWS AND VIEWS 17 Charles Francis Talks of County Court Judges Welcome: Judge Damien Welcome: Judge Lisa Welcome: Federal of Yesteryear Murphy Hannon Magistrate Frank Turner 22 Postcard from New York City 23 Verbatim 24 Bar Welcomes Readers Class of 2006 27 Board of Examiners 28 Milestone for the Victorian Bar Mediation Centre 32 2006–2007 Victorian Bar Council 33 Appointment and Retirement of Barfund Board Directors 34 Celebrating Excellence 37 Retiring Chairman’s Dinner Farwell: Judge Barton Charles Francis Talks of Postcard from New York 40 Women’s Legal Service Victoria Celebrates 25 Stott County Court Judges of City Years Yesteryear 43 Fratricide in Labassa 46 Launch of the Good Conduct Guide 48 Extending the Boundary of Right 56 Conference Updates 57 Council of Legal Education Dinner 59 Women Barristers Association Anniversary Dinner 62 A Cricket Story 64 The Essoign Wine Report 65 A Bit About Words/The King’s English Launch of the Good Celebrating Excellence SPORT/Hockey Conduct Guide 67 Bar Hockey LAWYER’S BOOKSHELF 69 Books Reviewed Cover: Victorian Senior Counsel 2006, photographed on the steps of the Victorian Supreme Court shortly before the ceremonial sitting on Tuesday 5 December 2006 (Anthony John Kelly absent overseas). See text on page 6. Milestone for the Victorian Bar Mediation Centre WBA Anniversary Dinner

3 Victorian Bar Council

VICTORIAN BAR COUNCIL Chairs of Standing Committees of the Bar Council for the year 2006/2007 Indigenous Lawyers Committee *Executive Committee G *Golvan S.C., C.D. Clerks: Applications Review Committee A *Shand QC, M.W. (Chairman) G *Digby QC, G.J. D *Riordan S.C., P.J. (Senior Vice-Chairman) Charitable and Sporting Donations Committee G *Lacava S.C., P.G. (Junior Vice-Chairman) D *Riordan S.C., P.J. G *Colbran QC, M.J. (Honorary Treasurer) Conciliators for Sexual Harassment and Vilification D Alstergren W. (Assistant Honorary Treasurer) B *Curtain QC, D.E. D *Fajgenbaum QC, J.I. G *Digby QC, G.J. Counsel Committee A Pagone QC, T. G *Colbran QC, M.J. H Tobin S.C., T. Editorial Committee for In Brief and Website News D *McLeod S.C., F.M. Section H McGarvie S.C., R. D *McLeod S.C., Ms F.M. W *Neal S.C., D.J. Equality Before the Law Committee G *Judd, K.E. A *Richards QC, Ms A. D Moshinsky M. L Hannebery, P.J. Ethics Committee R *Fairfield, C.G. G *Lacava S.C., P.G. D *Shaw, C.E. Human Rights Committee G *Anderson, K.J.D. D *Fajgenbaum QC, J.I. D Burns A. Legal Assistance Committee R Harrison D. A *Macaw QC, R.C. B Sharpe Ms, M. Readers’ Course Committee G *Neskovcin Ms, P.A. (Honorary Secretary) B *Hill QC, I.D. B Pitt S. (Assistant Honorary Secretary) Continuing Legal Education Committee Ethics Committee G *Gordon S.C., Ms M.M. G *Lacava S.C., P.G. (Chair) New Barristers’ Standing Committee H *Merralls AM, QC, J.D. G *Bingham, Ms S.L. C *Meagher ED, QC, D.R. S *Willee RFD, QC, P.A. Past Practising Chairmen’s Committee S *Lally QC, W.F. F *Costigan QC, F.X. S Santamaria QC, J. Professional Indemnity Insurance Committee F *Gobbo QC, J.H. H *McGarvie S.C., R. A Manly S.C., R. Professional Standards Education Committee D Davies S.C., J. S *Willee RFD, QC, P.A. P *Williams, I.S. Victorian Bar Dispute Resolution Committee D *Kirton. Ms C.E. C *Maxted R. F *Shiff, Ms P.L. D Moshinsky M. D *Duggan, Ms A.E. D Shaw C.

VICTORIAN BAR NEWS Paul Duggan, John Stevens, Richard Printed by: Impact Printing Editors Brear and Peter Lithgow (Book 69–79 Fallon Street, Gerard Nash QC, Paul Elliott QC and Reviews) Brunswick Vic. 3056 Judy Benson David Johns (Photography) This publication may be cited as Editorial Board Published by The Victorian Bar Inc. (2006) 139 Vic B.N. Julian Burnside QC Owen Dixon Chambers, Graeme Thompson 205 William Street, Melbourne 3000. Advertising Publications Management Pty Ltd Editorial Consultant Registration No. A 0034304 S 38 Essex Road, Surrey Hills, David Wilken Opinions expressed are not necessarily Victoria 3127 Editorial Committee those of the Bar Council or the Bar or Telephone: (03) 9888 5977 John Kaufman QC, William F. Gillies, of any person other than the author. Facsimile: (03) 9888 5919 Carolyn Sparke, Georgina Schoff, E-mail: [email protected]

4 5 Editors’ Backsheet Something Lost, Something Gained

S summer approaches and simul- taneously the calendar year draws Ato a close, it is timely to review our collective report card for 2006 before the new year with all its myriad problems has to be dealt with. How have we fared as a profession? What remains to be done? Have we achieved closure where it was meet and right to do so or is there still unfinished business? LOST CONFIDENCE? One challenging perspective was pro- vided by the Reverend Tim Costello, chief executive of World Vision, when he posed the question “Have Lawyers Lost Their Confidence?” Speaking at a breakfast at the Essoign Club in October, jointly sponsored by the Melbourne Catholic Lawyers Association and the Christian Lawyers Society at which about 100 solici- tors and barristers attended, Reverend Costello drew on the biblical story of the life in order to answer the big questions. In concluding, the speaker exhorted young lawyer who, living in a Civil Code Similarly the law — which deals princi- lawyers to seek out that authenticity society and yet steeped in deeply religious pally with relationships with each other which demonstrated that they cared theocratic Mosaic law, asked what he had — has much to teach by way of analogy about their neighbours — whether each to do to inherit eternal life. Although it about faith and relationships with the other as colleagues, or clients, or the was a spiritual question it emanated from spiritual. Further, any sort of relationship greater system they served. the law surrounding that young man in between humankind and their God was In echoes of that sentiment, the his daily life and practice. In the ensuing impossible without meaningful and rich President of the Court of Appeal, Justice dialogue with Jesus, he was asked what relationships with each other, whether Chris Maxwell, presiding at admissions the law taught on the point. “Love the this be on the personal, professional, soci- ceremonies in November for new entrants Lord your God, and love your neighbour etal, national or sovereign plane. as officers, barristers and solicitors of the as yourself,” he replied. “Then go and do Reverend Costello went on to draw a Supreme Court of Victoria, bestowed on likewise. But the lawyer persisted and, parallel between the position of Islam in the enthusiastic throng in the Banco Court seeking to justify himself, asked “who is the contemporary world and the concept some words of wisdom. He invited the my neighbour?” There follows one of the of the separation of Church and State, recent admissions in particular to try to most famous parables in all of the Bible, which was still a novel concept in the remember in future years why essentially arguably in literature: the story of the early twentieth century. For much of the they had chosen to enter the profession Good Samaritan. This very story became past 2000 years (he said) religion had of being a lawyer in the first place; and one of the central ideas in the speech of been poured onto disputes like “oil onto he encouraged them to engage in ‘activ- Lord Atkins in Donoghue v Stevenson fire”, whether those disputes centred on ism’, not in the narrowly party political or [1932] AC 562 when the English House land, resources or opportunities. The law demagoguery sense of that expression, of Lords laid down the principles of the enabled those disputes to flourish (as but in the sense of committing themselves law of negligence in tort, finding a new Dickens expanded upon in Bleak House), to ‘making a difference’. While clearly this duty which arose not from contractual to an inter-generational art form. While is excellent advice at any time, and above relations but in terms of an intrinsic rela- it took the West two millennia to resolve all inspiring to hear on the day of one’s tionship between those bound together by that tension, Islam has only just embarked admission to an ancient and honourable the owing of duty and those to whom it is on that same quest, and so it follows that profession, it was also something of a owed. Reverend Costello concluded that it will inevitably take time for that resolu- clarion call on the desirability and even faith — like law — must address all of tion to occur. necessity of returning to basics.

4 5 RIGHTS GAINED be learned from considering the United of operation to determine inter alia Generations of law students have been Kingdom experience of its Human Rights whether additional human rights should invited, as part of their studies in con- Act. What are we to make of this legisla- be included in the Charter; and whether stitutional and administrative law, to tion in circumstances where the President further provision should be made as to ponder whether — in either the federal of the Court of Appeal is reported to have “remedies” that may be awarded for a or the State spheres — there should be said that every case potentially raises breach of the Charter. And there’s the rub. an entrenched bill of rights. (Discuss.) questions of human rights? Not a great deal appears to flow from the That question has now been answered The first striking feature of note which Charter by way of remedy for any breach resoundingly in the affirmative in Victoria. is obvious from the title of the legislation of it other than a declaration. While that On 25 July 2006 the Victorian Charter itself is that the concept of “rights” is is a start, it could legitimately be asked, of Human Rights and Responsibilities counterbalanced with that of “responsibil- what next? Clearly it will be necessary to 2006 was assented to and passed into ities”. Section 1(2)(a) of the Charter pro- watch this space. law. The Charter comes into force in two vides that one of its main purposes is to phases. From 1 January 2007 all statutory set out the human rights that Parliament WE WERE WRONG provisions (primary and delegated leg- specifically seeks to protect and promote. In the previous edition of Bar News we islation) must comply with the Charter; These are enunciated in Part 2 (sections referred to Commander Tim Wood in from 1 January 2008 all policy and all 8–27). Some rights, such as freedom of the article concerning his welcome on decisions of public authorities must com- expression (section 15(3)), specifically being appointed Deputy Judge Advocate ply with it. provide that special duties and responsi- General for the navy, and his promotion to In preparation for this brave new bilities attach to the right, and may also the rank of Commodore. world, members of the Bar will have be subject to lawful restriction. Other Of course we should have referred to noticed that, in some quarters, seminars rights (sections 26 and 13) declare rights His Honour as Commodore rather than are being offered in the new year to dis- against double jeopardy and a right to Commander. We apologise for this mis- cuss what impact the Charter may have privacy and reputation respectively which take and thank the numerous souls who on practice, procedure, and jurisprudence are expressed in absolute terms. pointed out our error. in Victoria, what its impact may be among In Part 5, section 44(2)(a) provides for the judiciary, and whether any lessons can a review of the Charter after four years The Editors

Appointment of Senior Counsel in and for the State of Victoria and Ceremonial Sittings of Full Courts of the Supreme Court Court of Victoria and the Federal Court of Australia on Tuesday 5 December 2006

HE Honourable Chief Justice A Full Court of the Supreme Court Court of Australia, the ceremonial court- Marilyn Warren AC did, on 28 of Victoria was constituted by the Chief room. TNovember 2006, appoint as Senior Justice, the Honourable Marilyn Warren The Chairman of the Bar Council, Counsel for the State of Victoria the per- AC, the President of the Court of Appeal, Michael Shand QC presented the new sons listed below, in order of precedence: the Honourable Chris Maxwell, and the silks to the Full Court of the Supreme James Damien Montgomery Principal Judges of the three Divisions of Court, and spoke briefly at the sitting Richard Hunter Smith the Court: the Honourable Justice Teague of the Full Federal Court of Australia, Andrew Konstantine Panna of the Criminal Division, the Honourable expressing the Bar’s great pride in the Ian Douglas Martindale Justice Byrne of the Commercial and appointments. Timothy John Margetts Equity Division, and the Honourable All the new silks attended both sittings, Anthony John Kelly Justice Gillard of the Common Law except for Anthony John Kelly S.C., who James Harold Mighell Division. This was the last day of sitting was overseas. Numerous family, friends, Jane Alison Dixon in the Banco Court before it closed for and other counsel and judges attended Mark Andrew Gamble renovations which will extend well into both sittings, and the generous morning Iain Ronald Jones the new year. tea in the grand Library of the Supreme Matthew Neil Connock A Full Court of the Federal Court of Court. Philip Mark Taft Australia was constituted by the Chief The cover photograph for this edi- Christopher Mark Caleo Justice, the Honourable Michael Black AC, tion of Bar News was taken by David Ceremonial Sittings of both the and the Honourable Justices Gray, Ryan, Johns on the steps of the Supreme Supreme Court of Victoria, and of the North, Finkelstein, Weinberg, Kenny, Court shortly before the first ceremonial Federal Court of Australia took place on Young, Tracey RFD, and Middleton. The sitting. Tuesday 5 December 2006. sitting was in Court One of the Federal

6 7 Chairman’s Cupboard The Bar — What Should We be About?

HE Bar Council has begun a proc- provides: “to promote the administration ess of settling on a strategy for the of justice”. Tfuture of the Victorian Bar. Strategy The distinguishing feature of all the documents can sometimes be pious state- above professional associations is that ments of good intention, but short in the public interest informs the principal specific insightful analysis of where an objects of the association, and that the organization should be heading, and for rules that bind its members, in each case, what purpose. Without a strategy, the are intended to further that public inter- organization can drift, buffeted by the est. winds of change this way and that, and None of this is to diminish the signifi- react to events rather than head with a cance of the duty each barrister owes to sense of purpose in a particular direction. his or her client to seek to advance and Another way of approaching the issue protect the client’s interests to the best is ask who we are and what are we about. of the barrister’s skill and ability. It is, That at least informs the starting point of though, understandable that while indi- our journey and may help answer what vidual barristers must necessarily look we should be about. The question is more to their client’s interests their collective challenging than first meets the eye. The association should have a wider focus. Victorian Bar is an association of more The strength of numbers makes possible than 1,600 independent barristers – an what an individual cannot achieve. In the immensely diverse and talented group of end the question is what matters to the people. collective body. Recent comments by the Federal interest a strong and independent Bar in As Chief Justice Murray Gleeson Attorney-General have raised the ques- the State of Victoria”. recently observed, the idea of the rule tion of the proper role of a professional The second is to promote, foster and of law in a liberal democracy is a core association of lawyers — should the asso- develop within the executive and legisla- Australian value; it is bound up with indi- ciation focus on their particular profes- tive arms of the Government of Victoria vidual autonomy — the freedom to make sion rather than on social policy to avoid and within the general community, an choices — “it is only if people know, in what he calls the risk of “the professional understanding and appreciation that a advance, the rules by which conduct is equivalent of imperial overreach”? The strong and independent Bar is indispensa- permitted or forbidden, and the rights and Attorney also distinguishes what he calls ble to the rule of law and to the continua- obligations that flow from their conduct, “fashionable issues” that are “issues of tion of a democratic society. that they are free to set their personal personal political conviction not profes- The object first stated in the consti- goals and decide how to pursue them”. sional solidarity”. tution of the Law Council is just as out- It is hardly surprising then that our The question is when should the mem- wardly focused: “to promote and defend legal professional associations have as bers of a professional association, through the rule of law in the public interest”. their primary objects the promotion and their association, act with one voice in The New South Wales Bar’s constitution defence of the rule of law. taking a position on an issue of public When the Executive Government interest. criticizes an association’s emphasis in its There is no doubting that each profes- public activities on issues of social policy sional association has an important “trade The question is when or public interest, the members of the union” role. The Bar’s constitution lists as association will be a good judge of their one of its purposes “to seek to promote should the members of a association’s conduct. At the Law Council the welfare of members of the Victorian professional association, of Australia summit of constituent bodies Bar”. That is number 16 in a list of 18 pur- through their association, held in Canberra on Saturday 2 December, poses. If an association fails in this regard, act with one voice in there was unanimous support for the work the members have their remedy at the that the Law Council had done. next election of the governing body. taking a position on an Criticism from government may in fact The purpose first named in the Bar’s issue of public interest. bespeak the effectiveness of the asso- constitution is “to maintain in the public ciation’s work in the public interest. That

6 7 engagement with government on issues the value of evidence adduced at trial; it after the service. Legal Studies students of social policy and public interest can be may prejudice the accused’s capacity to from various schools, both State and both constructive and healthy to a demo- present their case and the capacity of the private, have also been invited to attend. cratic society governed by the rule of law. Tribunal to provide a fair judgment in the The preacher will be the new Anglican The legal profession has strongly case. Archbishop of Melbourne, the Most pressed the issue of the delay in bringing It is timely for the Federal Government Reverend Dr Philip Freier. The Governor David Hicks to trial. to revisit this issue. of Victoria, Professor David de Kretser In December 2001, having previously AC, has advised that he will attend this trained with Al Qaeda training camps, BEST WISHES FOR THE FESTIVE service. David Hicks was captured near Baglan, SEASON AND COMING VACATION There is also the Red Mass at St Alfghanistan, fi ghting with Taliban govern- On my own behalf and on behalf of the Patrick’s Cathedral; a Jewish service at the ment forces. He was taken in January 2002 Bar Council, I wish members of the Bar all East Melbourne Hebrew Congregation; to the US military base at Guantanamo the best for the festive season and coming and a Buddhist observance at the Fo Bay, Cuba, where he still remains in legal vacation. May the new legal year fi nd Guang Yuan Art Gallery. There is no Greek detention. No time frame has been set for you refreshed and renewed in energy. Orthodox service in 2007. Complete Hicks’ trial as the fi fth anniversary of his Many of you will have resumed practice details of times and places appear else- imprisonment comes nigh. in January. I invite you all to attend the where in Bar News. The right to a fair trial without undue religious services to mark the formal com- delay is fundamental to a society gov- mencement of the legal year on Monday Michael Shand erned by the rule of law. The touchstone 29 January 2007. Each service with its Chairman of the common law in safeguarding the own unique liturgy offers spiritual nour- accused in criminal proceedings is fair- ishment, fellowship and space for quiet ness.1 Gladstone’s maxim “justice delayed refl ection. is justice denied” rings as true today as it There is an ecumenical service at St Note did when fi rst spoken. An Australian citi- Paul’s Anglican Cathedral followed by 1. Jago v District Court of New South Wales zen deserves no less. Undue delay affects morning tea in the narthex immediately (1989) 168 CLR 23

8 9 Attorney-General’s Column Taking the Legal System to Even Stronger Ground

feel thrilled and privileged to begin Meanwhile, the face of the judiciary is another term as Victoria’s Attorney- evolving. With new heads at the helm of IGeneral. every jurisdiction and diversity increas- Over the last seven years a quiet revo- ingly reflected on the Bench, Victorians lution has taken place in our justice sys- have more reason than ever to be con- tem — reinvigorated, modernised, more fident in those making decisions about open and transparent, it has undergone a them. wholesale transformation and I’m excited In fact, just under 50 per cent of our to remain involved as the momentum judicial appointments have been women, continues. with Victoria’s first female Solicitor- This momentum exists because the General and the first female Chief Justice Bracks Government has had a vision for leading the way; while the Sentencing the legal system — a vision articulated in Advisory Council and Judicial College are our Justice Statement and upon which we connecting the community to the law and now have an historic opportunity to build. bolstering faith in an independent judici- We have this vision because we know ary. I am pleased, however, that we can that a properly functioning justice system now strengthen the work of the Judicial is integral to strong and healthy com- College, having committed funds to ena- munities. We also know that justice is ble it to provide continuing professional meaningless unless it is accessible, which development to all judicial officers upon is why we have increased funding to VLA the direction of the heads of jurisdiction. and CLCs almost every year we’ve been the law in relation to both sexual assault Much has been done. Following early in office and opened two new Legal Aid and family violence and are implementing moves to re-establish the Law Reform offices and five new Community Legal sweeping reform. Commission and enshrine the independ- Centres throughout the State. We have implemented these reforms ence of the DPP, more recently the I’m pleased to say that we can now because the Bracks Government believes Government enacted a Charter of Rights take this incredibly important invest- that all governments have a responsibility, and Responsibilities. Despite the oppo- ment a step further, having committed on behalf of the community, to acknowl- sition it met from the other side of the to an $8.8m package in partnership with edge the experiences of victims of crime. Parliament, our third term in office will VLA, which will, amongst other things, I am delighted, then, that in addition to now enable us to cement the Charter in deliver 17.5 new legal positions to the these undeniable improvements, further the everyday workings of government, as CLC sector across the state. The Justice acknowledgement will be made through a well as to expand the role of the Equal Policy we took to the recent election also 30 per cent increase in pain and suffering Opportunity Commission to address committed to establishing a Homeless compensation payments. issues of systemic discrimination. Persons’ Liaison Officer at the Melbourne There are, of course, a great many Of course, while every aspect of the Magistrates’ Court, a position which will other reforms on which we will be build- legal system has been revolutionised work within existing services to assist and ing. The Bracks Government believes in under the Bracks Government, we should support the myriad needs of homeless smarter justice, justice that tackles the not think that the work has all been done. court users and which, in time, I hope we causes of crime and steers people away Our vision, our intention, is to do a lot more will be able to extend to other locations. from its vicious cycle. — to do more for alternative dispute reso- Of course, the last seven years have This is marked by the success of the lution, to do more for Legal Aid, including also seen a shift in the way the legal sys- Drug Court in Dandenong; by the extra- lobbying the Commonwealth to loosen its tem responds to victims of crime. Pain ordinary reduction in recidivism sparked stranglehold on funds, to do more for our and suffering compensation has been by our Koori Courts; and by the enthu- courts, to do more for legal consumers reintroduced while a new, statewide siasm with which locals have embraced and victims of crime. I feel enormously Victims Support Agency and Helpline has the groundbreaking Neighbourhood proud that we have been given the oppor- been established and a Victim’s Charter Justice Centre in Collingwood which com- tunity to act on these intentions and I look enacted to enshrine the rights of these mences operation in January, despite the forward to continuing to work with the vulnerable Victorians. Family Violence Opposition branding this innovative pro- profession as we take the legal system to Divisions of the Magistrates’ Court now posal as ‘apartheid justice’! I look forward even better and stronger ground. operate at Heidelberg and Ballarat, while to exploring more avenues for therapeutic Rob Hulls we have recognised the wider failings of justice as the opportunities arise. Attorney-Genernal

8 9 Welcomes Supreme Court Justice Elizabeth Curtain

which conducts a range of diverse com- Her Honour is also closely associated munity social service programs providing with the Essendon Football Club and in assistance to those in need. Since her edu- particular was a Member of the Essendon cation at Mandeville Hall, Loreto Convent, Football Club Womens’ Network. At her her Honour has had a close relationship Honour’s Welcome Michael Shand QC, with the Loreto Sisters. Her Honour Chairman of the Bar, made reference to was a Member of the School Council of many other Essendon supporters who Mandeville Hall from 2000 to 2002. She find themselves on the Bench. He made also assisted the Sisters in their work in reference to his Honour Judge Howard the Loreto Vietnam Australia Program at being the natural successor on the County the Phy My Orphanage in Ho Chi Minh city Court and to Justices Eames and Coldrey in 2001 which assisted young Vietnamese as Essendon supporters. The omission of students in rural and inter city areas. Justice Gillard was quickly rectified by an After graduating from Melbourne outcry amongst the many barristers and University, she completed her articles at solicitors present in the Banco Court. Cole and O’Heare. Her Honour made particular reference Her Honour came to the Bar in in her speech, in reply, to her long-term October 1978 and read with Ms Lyn Opas partner Bruce Houston and her family QC (later Judge Shiftan of the County with whom she has always had close ties. T is hard to believe that her Honour Court). After practising at the Bar for nine In particular she referred to her mother IJustice Elizabeth Curtain was first wel- years her Honour was appointed to the and father who were the licencees of the comed to the County Court 13 years ago. Administrative Appeals Tribunal (from Beaconsfield Hotel and her happy- back At her Honour’s Welcome to the County its inception) in 1985 to July 1987, and ground growing up in St Kilda. Court in 1993 she told of having read in was also a Member of the Motor Accidents After her Honour’s Welcome, a cocktail The Age a reference to “Justice Elizabeth Tribunal. Her Honour was appointed a party was held at her home for eighty or so Curtain”. It was speculated whether the Prosecutor for the Queen for the State of her closest friends and relatives. It was Solicitor-General, Douglas Graham QC of Victoria from 1987 to 1993 when she a great evening that reflected the many may have told the reporter more than was appointed to the County Court. Her and varied aspects of Elizabeth Curtain’s he had told her about future prospects. Honour also taught advocacy in the Bar’s life and it was thoroughly enjoyed to Thirteen years later the Justice Elizabeth 1999 Trial Advocacy Workshop in Dhaka, the hilt by all present. We trust that her Curtain, as reported in The Age, has now Bangladesh, and the 2005 Advocacy Honour’s appointment will be a great suc- come to pass. Course, Port Moresby. cess. The only thing missing is when and Her Honour’s time as a Judge on the But life has not always been all that where will be the third Welcome. County Court was extremely fruitful. She serious for Elizabeth Helen Curtain. heard cases mainly in the criminal area, During her time at the Bar she formed and naturally during these years heard a many close friendships and thoroughly wide variety of cases, in all areas of the enjoyed the collegiate spirit of the Bar. Court. Her hobbies include theatre and acting, As well as serving the Court, Her and she had a memorable role in the 1984 Honour has sat on many committees and Victorian Bar Review particularly playing served the community in a wide variety the bombshell-blonde Barrel Girl, Debbie, of roles. These included being a member to the lecherous compere, “Fabulous of the Executive of the County Court Phil”, played by Paul Elliott QC. It was of Victoria, a member of the Executive of great regret to many present at her of Australian Judicial Conference, the Honour’s Welcome in the Supreme Court Youth Parole Board and a member of the that her close friend Douglas Salek QC Victorian Criminal Trials, Charge Book was not there, having passed away some Committee. Her Honour was also Deputy five years earlier. Douglas was responsible Chairman of the Victorian Racing Appeals for many of the scripts in the Bar Review Tribunal, the Alternative Chairman of and often claimed credit for writing many the Youth Parole Board and Alternative of the lines uttered by her Honour, not Chairman of the Youth Residential Board. only on stage but in Court. Of course Away from the law she was also Director Fabulous Phil had no connection with one of the Jesuit Social Services Limited, of her, now fellow, brother Judges.

10 11 County Court Judge Anthony Howard

by three of his leaders, Sue Crennan QC conspicuous contributions to the Bar (now Justice Crennan of the High Court), are his role in the redevelopment of the John H Phillips QC (later Chief Justice Essoign Club as part of the renovation Phillips of the Supreme Court) and Peter of Owen Dixon East and his sustained O’Callaghan QC. His Honour took silk in promotion of equal opportunity briefing 1992. Throughout his career at the Bar policies for women barristers. he practised principally in crime, appear- In 2002 the Bar Council gave his ing on both prosecution and the defence Honour the task of chairing the commit- briefs. tee that designed and established the His Honour was always popular and Essoign in its current premises. The club’s widely respected among his colleagues at success today in many ways embodies his the Bar but his Honour’s relationship with Honour’s vision for it at a time when its Linda Dessau of Counsel (now Justice future was being widely questioned. Dessau of the Family Court) was surely Even at his Welcome ceremony his his most productive. The pair met at the Honour touched upon the need to pro- Bar in 1979, married and produced sons mote equal opportunity for women bar- Ollie and Josh. Replying to the profes- risters. This has long been a cause dear to sion’s Welcome, his Honour paid generous his Honour. In 1998 he was a member of tribute to many of his family, friends and the steering committee that produced the former Bar colleagues. Needless to say landmark report “Equality of Opportunity is Honour Judge Tony Howard QC that Justice Dessau filling all three catego- for Women at the Victorian Bar”. He car- was sworn in as a Judge of the ries was singled out for particular thanks. ried his interest in the issue forward, HCounty Court on 9 October 2006. More conventional milestones in his ensuring the adoption of an Equal His elevation marks the latest evolu- Honour’s barristerial career included Opportunity Briefing Policy in Victoria tion of an interest in law that dates back three years in Hong Kong as a Crown and later nationally through the Law to the hanging of Ronald Ryan in February counsel and senior Crown counsel and Council of Australia. 1967. His Honour was then a 17-year-old appearing in the Sandline Commission After 31 years at Bar — and almost school boy living and working part-time of Inquiry in Papua New Guinea in 1998. 14 of those as silk — his Honour had not near Pentridge Prison. On the eve of the Closer to home, his Honour was senior been contemplating a career change when execution he joined the 3000-odd demon- counsel assisting, for a limited part, at the the Attorney-General phoned. His Honour strators holding vigil outside the jail. He Metropolitan Ambulance Service Royal said that only two days earlier he had later described the electric atmosphere Commission in 2002. He also appeared ordered and paid for 1000 new business of that protest and said that, although in the Stewart Royal Commission in 1985 cards. he probably hadn’t realised it at the time, regarding phone-tapping, the Aboriginal As the Victorian Bar’s Chairman Michael that event was a seminal moment in his Deaths in Custody Royal Commission in Shand QC said in his Welcome speech, so life which led him to the practice of crimi- 1988–90 and the Tricontinental Royal much achieved to such good effect in the nal law. Commission in 1990–92. course of Tony Howard’s career at the Bar That path saw him complete school at Judge Howard’s contributions to the augurs well for the County Court. Xavier College before enrolling at Monash Bar and to the wider community have The Bar wishes his Honour a long University (B Juris 1971; LLB 1973) and been rich and varied. Among other things, and fulfilling career on the County Court later obtaining a diploma in criminology he has served as a member of the Victorian Bench. from the University of Melbourne (1975). Bar Council (and also as a member of its At Monash his Honour was a president executive committee), a trustee of the of the Law Students’ Society and a staff Royal Melbourne Hospital Neuroscience member of the student newspaper Lot’s Foundation and founder (in 1999) sub- Wife. Following university and still sport- sequently chair of Lawdons, a 300-strong ing a Ho Chi Minh-style beard and mous- group of lawyers supporting the Essendon tache he was articled to Frank Galbally Football Club and been involved in vari- at Galbally & O’Bryan. Post-admission ous kindergarten and school groups. He he practised as a solicitor for 18 months has also been heavily involved in pro bono before coming to the Bar where he read work through the Bar’s Legal Assistance with John Walker QC. Committee and the Public Interest Legal He signed the Bar Roll in 1975. As Clearing House (PILCH). a junior his Honour was given red bags Probably Judge Howard’s two most

10 11 County Court Judge David Parsons

third lawyer employed there after James a film starring his Honour that is still used Montgomery and Peter Faris. There was to help teach how to relate to Aboriginal much laughter in Alice when he turned up people. An earlier edition of the Bar News for work in the colonial rig of shorts and contains the speech by Jeff Sher with his long white socks. Thereafter his Honour Honour’s introduction of Sher to their sported jeans plus R.M. Williams boots joint clients in the Nitmiluk (Katherine and shirts. Gorge) land claim. his Honour’s open, His Honour’s first day as the duty law- bright-eyed, infectious and sometimes yer in the Alice Springs Magistrates’ Court mischievous good humour instantly dis- was a rite of passage. It was the day after armed his clients. the Show Day long weekend. Aboriginal Solicitors who instructed his Honour in people had come from far and wide for Land Claims in the often trying conditions the festivities. His Honour acted for 127 of of the Territory speak of how His Honour them facing charges from drunk and dis- made hard work fun. orderly to aggravated assault. It was a long In a more recent native title case day but his Honour dealt with every case. on Mornington Island in the Gulf of His Honour appeared many times Carpentaria His Honour had to drive a before local magistrate Bob “Scrubby” big mob of traditional owner witnesses in Hall. Scrubby once convicted a wit- a bus from the north to the south of the IS Honour’s primary school edu- ness, mistakenly believing him to be the island. His Honour led the singing: cation began at Bairnsdale West defendant. One trusts this was a learning Telephone to glory HPrimary and then Ringwood experience for his Honour. At the time he Oh what joy divine Primary School. His family moved to possessed only one bright red tie. One I can feel the glory Sydney where His Honour attended Manly morning his Honour fronted Scrubby in Moving down the line… Primary and Epping Boys High. NSW gave the said tie together with a brand new At the end of the bus trip they were all his Honour a love of the game they play in satin cowboy shirt of a different shade of having such a good time that they kept on heaven. He continued to play rugby when red. Scrubby’s eyebrows rose as he looked singing. No one wanted to go home. his family moved back to Melbourne where down from the Bench in amazement. His His Honour returned to Melbourne and he did his HSC at Melbourne Grammar. Honour responded “It’s my birthday, your signed the Bar Roll in 1982, reading with There his Honour starred in both the Worship!” Robert Richter QC. His Honour had six swimming team and the1st XV. Justice Eames joined CAALAS soon readers, Campbell Thomson, Reg Marron, His Honour then attended Trinity after his Honour. Apparently he was much Angela Bolger, Garry Livermore, Irene College for two years before completing taller than the other prospective appli- Bolger and Mark Champion. his law degree with honours while living cant. The football team needed a new His Honour has contributed to the in various digs in Carlton. His Honour ruckman. His Honour and Justice Eames Bar by his service on many committees played in a Victorian U20 Rugby team became great friends and played for the and his contribution to the Bar Readers’ that achieved the rare distinction of beat- mostly Aboriginal Pioneers football team Course. His Honour has also generously ing NSW in Sydney in a curtain raiser for in the Alice Springs A grade competition. and enthusiastically taught advocacy in an Australia-Ireland international. His His Honour was a robust full forward. One Vanuatu and Papua New Guinea. Honour kicked a field goal that was the of His Honour’s most prized souvenirs is His Honour developed a practice as a final difference between the sides. While a photograph of the two young and long- leading advocate in Aboriginal land claims his Honour was an enthusiastic player he haired lawyers with Prime Minister Gough and native title cases around the country. found training less than exciting. He could Whitlam visiting the Legal Service in Alice His Honour took silk in 2001. His Honour be heard to say, half way through a session Springs. also defended and prosecuted in major with the University club, “I’m off to prac- After two-and-a-half years in Alice, his criminal trials, most recently that of Tony tise my kicking.” His Honour would put up Honour made the obligatory round the Mokbel. He suggested to Justice Gillard a few spiral punts at the side of the spotlit world trip before returning to work for the that it might be a good idea to cancel Mr oval. He would next be seen by his team Aboriginal Legal Service in Darwin. After Mokbel’s bail… mates at their local, the Gresham Hotel. 18 months His Honour went to the Darwin His Honour has contributed to the After completing articles at Weigall and Bar, appearing for Aboriginal people in Aboriginal community in many ways out- Crowther whle volunteering at the Fitzroy criminal cases and Aboriginal land claims. side his legal practice. He is a long-time Legal Service, his Honour travelled to Alice His Honour’s communication skills Board member and was Secretary of the Springs to work at the Central Australian with Aboriginal people are legendary. Koorie Heritage Trust. He was an organ- Aboriginal Legal Aid Service. He was the The Institute of Aboriginal Studies made izer for the Michael Long “Long Walk” to

12 13 raise awareness of Aboriginal disadvan- purposes. The committee meetings are have also worked for Aboriginal people in tage and raise money for Aboriginal lead- well attended. His Honour always pro- the Territory and been part of the same ership programs. vides good wine. book club before preceding him to the His Honour has been a board member His Honour is married to Christine Bench. The Bar wishes him every success of the Melbourne Community Foundation Nathan and they have three children, one sure in the knowledge that he will con- for nine years. He chairs the governance of whom is studying law at Monash. tinue to contribute in this fine tradition. committee of this philanthropic trust, His Honour was a long-time member of which raises money for diverse charitable Aickin Chambers, many of whose number County Court Judge Damien Murphy

Laws in 1995. After Articles at Oakley first County Court appointment from that Thompson, His Honour then became group. Reading with Judge Strong, His Associate to The Honourable Justice Honour commenced practice in a wide Michael Kirby, then Deputy President area with particular expertise in employ- of the Commonwealth Conciliation and ment law and industrial relations. His Arbitration Committee and Chairman of Honour’s ability to understand research the Australian Law Reform Commission. promptly, helped by experience in Law Two further years were spent at opposite Reform, enabled His Honour to undertake extremes of legal practice with the black a wide-ranging cross-section of work. hats and the white hats depending on In 1994, His Honour was appointed your point of view and then to Ministerial to Judicial Registrar in the Industrial Advisor to The Honourable Jim Kennan Relations Court. Appealed in only his first SC, then Attorney-General of the State case and, undaunted, His Honour went of Victoria. ahead and wrote over 200 Judgements, On His Honour’s own admission, his many reported and none appealed further career in the law came about as a result than the Federal Court (there were few of the Dean of the Faculty of Economics appeals at all). His Honour was the Judicial at Monash declining to accept him into Registrar mentioned in Bill Gibbs and its Honour’s year. Whilst travelling after McAllion Lloyd Pty Ltd v Kinna (1998) finishing as a financial analyst, he viewed VSCA 52, a decision on Anshun estoppel. UDGE Murphy’s journey to the County the criminal trial in Los Angeles of Daniel One hopes that His Honour’s judgements Court bench has been one marked by Ellsberg, the leaker of the Pentagon will not become more familiar in the Court Ja wide variety of legal experience and papers, and thus began his Honour’s of Appeal. When the IRC’s functions were commitment to legal reform. strong beliefs in the freedom of informa- taken over by the Federal Court, and after From the family dairy farm at tion and the need for members of the a short time in the Federal Court, His Leongatha, His Honour was one of eight judiciary to play an important role in the Honour returned to the Bar. children and was sent to the Marist balancing exercises under the FOI Act. His Honour was heavily involved with Fathers’ Chanel College in Geelong at His Honour has retained a strong con- Labour lawyers being both President of the Lovely Banks,(it closed in the early 1970s nection with the Law Faculty at Melbourne Victorian and Australian Labour Lawyers. and is now an international school) where University where he lectured and first met During his time with the Labour Lawyers he was Dux and Peter Chanel Scholar in the late Justice Richard McGarvie; he he was involved, unsuccessfully, in the 1968. His Honour is the second former kept in contact with him and attended campaign to reinstate The Honourable student appointed to judicial office after the Corowa People’s Conference in 2001 Justice Staples, Deputy President of the Judge Mulvaney. His school experience where Justice McGarvie advocated the Conciliation and Arbitration Commission, also left him barracking for Geelong and minimalist republican model (shortly who remains a firm friend of his Honour’s, led to a committed football career, which after His Honour had sworn an oath to and opposed the ID Card. was highlighted by one quarter in the the Queen). His Honour has kept in close Returning to the Bar in 1997, His University Blues Firsts and many seasons touch with Dean Michael Crommelin and Honour recommenced a busy practice, in the Monash University Whites. Professor Cheryl Saunders, and Justice being involved in a number of leading Then, from Chanel College to Monash Weinberg of the Federal Court. cases, in particular Collie v Merlaw to study Economics and a short-lived In 1996, his Honour was in the first Nominees Pty Ltd (in Liquidation) career at a large petroleum company Reader’s intake of that year. That intake (2003) VSCA 40 in which His Honour as a financial analyst, then to study law featured such luminaries as Hardingham appeared for the appellant also Nolan at Melbourne University, graduating QC, Serry QC, Bartfield QC, Williams v Collie (2003) VSCA and in Rankin v Bachelor of Laws in 1977 and Master of S.C. and Marks S.C. His Honour is the Marine Power International Pty Ltd

12 13 (2001) VSC 50, a leading case on common Committee, the Law Reform Committee, to the Review of the Evidence Act 1958 law wrongful dismissal. and the Legal Assistance Committee on his Honours own behalf and on behalf His Honour has made a great con- together with the Committee of the of the Bar. tribution to the wider legal community, Industrial Bar Association and Labour His Honour is the proud father of having been involved in the Collingwood Lawyers. As well, His Honour has made Julian, who is just completing his school- Community Legal Service and as many submissions to Parliamentary ing and is Captain of Trinity Grammar, and Commonwealth Nominee on the Legal Committees and other bodies on every- Georgia in year ten. We wish His Honour Aid Commission, Bar Human Rights thing from the Privacy Discussion Paper well in his appointment. County Court Judge Lisa Hannon

Victims of Crimes Assistance Tribunal; one side to present argument. The Cabal before the Mental Health Review Board case involved two Victorian Supreme and also in equal opportunity hearings Court judgments, one Court of Appeal and civil work. judgment, 22 Federal and Full Court In addition to a busy practice her judgments and three High Court judg- Honour made time to contribute to the ments. There is also a determination of common good of the Bar serving on many the Human Rights Committee established committees: The Bar Equality before the under the international covenant on civil Law Committee, The Women Barristers and political rights. It is a testament to her Association Committee, The Dever’s List Honour’s legal acumen that her decisions Committee, and Criminal Bar Association were never upset in any of the appeals. Committee. Finally, after all conceivable avenues of Earlier in Her Honour’s time at the Bar appeal were exhausted, Mr Cabal was she was an instructor at the Leo Cussen extradited. Institute, the Bar Reader’s Course, the When her Honour had been on the Bail Justice’s training program and the Magistrates’ Bench a little over three Department of Human Services training years, she was appointed State Supervising program for Children’s Court advocates. Magistrate for the criminal jurisdiction. After ten years in practice her Honour His Honour the Chief Magistrate describes N 10 October 2006 the legal profes- was appointed to the Magistrates’ Court her Honour’s work as head of the criminal sion, family and friends welcomed where she has served for the past eight division as “superb”. OLisa Hannan as a Judge of the years. While serving as a magistrate her Most recently her Honour was one of County Court. Her Honour was educated Honour was a member of the Magistrates’ the adjudicators at the Bar’s Great Debate, at Presentation Convent in Windsor and CLE Committee, and became editor of the the topic of which was “Are Judges at Monash University graduating Bachelor Magistrates’ Penalty Book and co-editor of human?”. Her Honour opened the adju- of Arts and Bachelor of Laws. While at the Magistrates’ Bench Book. dicator’s remarks with “I’m the only unbi- university she worked at the Springvale Her Honour is no stranger to long ased judge, because I’m not one — I’m Legal Service. She was articled to Peter and complex cases. Six months after her a magistrate. And there’s overwhelming O’Bryan of the firm of Galbally & O’Bryan appointment to the Magistrates’ Court she evidence that magistrates are human”. and admitted to practice in 1987. Her was appointed to hear the Carlos Cabal David Curtain QC spoke for the nega- Honour developed a strong criminal prac- and Marco Pasina extradition hearing, tive — arguing that judges are not human. tice with particular emphasis in sexual which is the longest running and most In her Honour’s summary she agreed with offence cases. She appeared both for the complex extradition hearing in Australian fellow adjudicators about Curtain’s argu- defence and prosecution. Her Honour also legal history. Her Honour heard argu- ments saying, “I have no idea what he said regularly appeared at the medical practi- ment from Sue Crennan QC (now Justice …” tioner’s board, the Administrative Appeals Crennan of the High Court), Ron Meldrum Her Honour’s appointment to the Tribunal, both Freedom of Information QC, Tony Pagone QC, Remy van de Wiel County Court Bench is warmly welcomed. and Administrative Review Applications, QC, Robert Richter QC and David Galbally The Bar wishes you a long and satisfying and in coronial inquests for families for QC. The extradition issues were so com- career serving as a Judge of the County government and agencies and private plex that at one stage counsel Professor Court. organisations. At times her Honour also Edmund Aughterson of the Queensland practiced in the Children’s Court in both Bar (the author of the leading Australian Criminal and Family divisions, before the text on extradition) was brought in by

14 15 Federal Magistrates Court Magistrate Frank Turner

His Honour read with Pat Dalton QC years working extremely hard. His Honour and very quickly became a practitioner then returned to the Bar. in the byzantine area of industrial law. His His Honour is a very hands-on person Honour appeared in many proceedings and could be described as an all-round before the Australian Industrial Relations mechanical renaissance man. He welded Commission, the Federal Court, the State an enormous rose arbour at his previous Industrial Relations Commissions and the house and he always likes to fi x things with Supreme Court of Victoria. His Honour’s his welding equipment and handyman practice, as is often common with indus- gear. Being very mechanical, his Honour is trial relations, led him all over Australia also very mechanically minded. He enjoys and much of his time was spent in Sydney, four-wheel driving, fi shing and other tradi- and his Honour is one of few people who tional pursuits. His garage is huge and full really appreciate how diffi cult it is to travel of tools. His Honour is a more than useful and master the complexities of the law. campfi re cook, oil painter and owner of Pat Dalton QC was a good teacher and a well-stocked cellar He often travels up his Honour a good learner. His Honour north with his friends and goes four-wheel represented the State of Victoria in many driving with his Honour David Morrow, a national wage cases as Pat Dalton’s junior long-time friend. and appeared for many large corporations His Honour met his wife Helen, who RANK Turner was educated at Scotch including Normandy Resources and other was a secretary to Richard Seaby QC, as FCollege, where he represented the large corporations, particularly in the min- they worked together on the same fl oor. school in rugby and fi rst broke his nose. ing area. His Honour would often travel Of his three children, Richard, Andrew Before university, his Honour was a musi- to remote locations for wage cases. His and Caroline, Richard has studied law and cian. His Honour studied law at Melbourne Honour developed a reputation for indus- Andrew works with lawyers. Although the University and signed the Roll of Counsel try ability, clarity and thoroughness. Bar welcomes his Honour’s appointment to on 16 October 1975, less than three His Honour’s expertise was such that the Federal Magistrates’ Court, it regrets months after he was admitted to prac- for a time during the 1980s, his Honour that the appointment is to Sydney, for ten tice on 1 August 1975. His Honour had was poached by Allens Arthur Robinson years, as his Honour’s legal expertise and come late to the law and was keen to go to strengthen and head up their industrial talent will be missed in Melbourne. promptly to the Bar. law practice and remained there for fi ve

������������������

�������������������� �������� ������������������� ���������������������������������� ����������������������� �������������������������� ���������������������������� ������� ������ ��������������������� ��� ����������������� ����������������������������������������������������

14 15 Farewell News and Views County Court Judge Barton Stott

retains to this day a love of all things nau- course, fairly and thoroughly with the tical, Stott commenced his legal career as evidence and issues) in strong support for a Clerk of Petty Sessions. Part of Stott’s the underdog (as one of the leading four early training took place in the Victorian banks could attest in relation to one piece Crown Solicitor’s Offi ce, which exposed of litigation). His industry is emphasised Stott to a serious amount of old law title by the fact that those familiar with his work which (and this will be no surprise Honour’s work in the Defamation List cal- to those familiar with his Honour’s meticu- culate that Stott dealt with a substantial lous attention to detail) Stott actually list every fortnight for 15 years and gave enjoyed. After serving as a law clerk at no fewer than 900 rulings/judgments, Hedderwicks, Fookes & Alston (including expeditiously resolving sometimes com- his period of articles), Stott was admitted plex legal arguments and issues with great to partnership but later went to the Bar precision. where he read with Alec Southwell, later To truly know a man he must be QC, and later still a Judge of both the observed where he is most comfortable, County and Supreme Courts. that is, in his own habitat. To visit Stott Stott learnt well under the renowned at his Peninsula home was a revelation eagle eye of his Master, including the dis- which underlined his love of and knowl- cipline of using time well. This was later edge of nature, his belief in hospitality, put into good effect when His Honour his genial manner and love of fellowship. developed a very substantial paperwork It is not widely known that Stott had to NE’S first impression of his Honour practice. Readers were amazed at Stott’s deal with considerable personal hardship OJudge Barton Harold Stott (barrister ability to return at lunchtime after doing towards the end of his judicial career but and QC between 1967 and December 1989 battle in court and then be in a position all these obstacles were confronted and and distinguished Judge of the County to dictate a number of Statements of overcome with his customary determina- Court for nearly 17 years) may have been Claim before returning to court in the tion, with the help of his family and that of a man of reserved, perhaps even dis- afternoon. of his network of good friends. To be at tant, temperament. If that was one’s fi rst As a barrister, Stott developed a his Farewell and observe the weight lifted impression (reinforced by references to deserved reputation as a great “all- from his shoulders as he stood (in actions a “Towering Iceberg” as compared with rounder” which suited him perfectly for without precedent at legal farewells) and the perhaps better known “Towering the demands of circuit practice, particu- blew kisses in the direction of the well of Inferno”) it would be quite wrong, as then larly in Ballarat where His Honour spent the court room and the jury box was to fellow occupants of Seabrook Chambers a number of years on the Supreme Court make all present realise that whilst a great (that Mecca of Bar hospitality) could circuit for four months of the year, carry- career had come to an end, a wonderful attest. Although a private man, Stott was ing out very competently both jury and and doubtless fulfi lling retirement was well able to enjoy a good time and was a causes work in the Ballarat list. about to commence. person of great good humour who inspired It is fair to say that Stott enjoyed the We wish him and his family joy and long and loyal friendships. conviviality of circuit life and he retains good health in retirement. His family was the fi rst priority in his many friendships from those days in both life and he was supported whole-heart- branches of the profession. edly in his long and illustrious career by As a barrister and judge, Stott was his wife Kay, his loyal secretary and asso- tough, independent, hard working and ciate Kath Lambert as well as his trusted professionally competent in a quiet and tipstaff Ken. dignifi ed way and in a tradition quite The details of his background and pro- removed from the tendency for self-pro- fessional career were accurately and thor- motion so endemic in these more busi- oughly set out in the Farewell Address by ness-orientated times of the law. As a Peter Reardon SC at Judge Stott’s retire- barrister and judge, he was fair, concise ment on Thursday 19 October 2006. Some and focused on solving a problem rather of the salient facts are incorporated in than exacerbating it. His Honour regarded what follows. prolixity as a grievous misdemeanour. After a brief but stimulating career in Beneath his quiet and reserved manner the Royal Australian Navy where Stott a very strong sense of justice lurked and achieved the rank of Able Seaman and sometimes emerged (having dealt, of

16 17 News and Views Charles Francis Talks of County Court Judges of Yesteryear

Court which looked out east into the lane between the Supreme Court and the old High Court. They also had a room at the back of the library which was set up as a conference room and as a court. All the County Courts were in the Supreme Court building and the judges’ chambers were in the Supreme Court building too. They were up on the fi rst fl oor on the east side of the building. Those chambers in general were not as good as the main chambers at the front. The second and I think quite signifi cant difference was that County Court judges had no associates. When they were sit- ting one of the clerks from the County Court offi ce would act as what they called a Bench clerk. But often the clerk would disappear for quite a lengthy period to go to the County Court offi ce to do his duties there. So from time to time the judge had to swear the witness in. The fact that they had no associates was, I think, something that a number of the County Court judges Charles Francis. very much resented. The gap between the County Court at Charles Francis served in the Royal Australian Air Force during that time and the Supreme Court was very World War II. He signed the Roll of Counsel in February 1949 marked. The maximum jurisdiction of the and retired from the Bar on 11 November 2002. He is one of the County Court was £500. So they didn’t hear any very big claims. It was clear they few remaining people who remember the County Court as it was were signifi cantly inferior in status to the during the fi rst half of the 1950s, when judges were fewer and more Supreme Court and I think the gap was idiosyncratic. In this interview with Bar News Charles talks about wider then than it is now. the County Court as it was when he came to the Bar. BN: And the numbers were different. Charles: Oh yes, at that time there were nine County Court judges only and today Bar News: Charles, you signed the Roll Charles: Well, fi rst of all there was no I believe there are 57 and a few reserve of Counsel, I suppose, in the fi rst half of County Court building. judges. So there’s a big difference in the the last century? Certain courts in the Supreme Court numbers. Charles: I signed it in February 1949, building were allocated to the County BN: And you say they resented their and so what you’re saying is unfortunately Court. They were mainly on the south side position. How did this show? correct. of the building adjacent to Little Bourke Charles: Well, if you inadvertently BN: Have things changed much in Street, and the important courts were referred to a Bench clerk as an “associate”, those years? the tenth, eleventh and twelveth courts which some of us did mistakenly, you were Charles: Enormously. which then were the fi rst, second and always greeted with a fairly hostile remark BN: And, in respect of the County Court, third County Court. They also sat in the and would be told that they had no associ- how have things changed? small court which I think now is a Master’s ate, I think there was obvious resentment

16 17 when those remarks were made by some think the judges then were in many ways But always about 11.30 in the morning of the judges. more forceful personalities than they are he’d have a break and he’d have tea and BN: Did this reveal itself in their tem- today. There was a wide variety of per- biscuits and he would invite the barristers peraments at all — unhappiness? sonalities and some of them were very to join him and they would have conversa- Charles: I think most of them were reason- colourful. tions about what was happening at the Bar ably happy but there were several, and I’ll BN: And of course you’d see more of and what was happening in the judiciary. speak about this later, who obviously were them and know them better: with only Stretton was always very interested in the not happy being County Court judges and a small number you come into more Bar and what was happening at the Bar. that’s partly by reason of what happened personal contact with the individual Sitting as Chairman on the Workers’ historically at the Bar. When the war ended judges. Compensation Board, theoretically that in 1945 and everybody came back from the Charles: I got to know all of them pretty was a magistrate’s position although for a war, there were many barristers who just well. long time they had a County Court judge had no idea what was going to happen. BN: Who were they? as the Chairman. There were suggestions Now some of those barristers were offered Charles: Well, I’ll talk about them in order that as they were sitting in what was a positions on the County Court and I think of seniority. At that time they didn’t have magistrate’s position they should be called a few years later when they saw how suc- any chief judge. They had a senior judge “Your Worship”. But the view of the judges cessful some of these contemporaries was that as they were judges they should were in what was a golden era, they must be called “Your Honour”. have wished that they were still at the Bar On one occasion Maurice Ashkanasy, earning big money, whereas County Court County Court judges were who tended to be cheeky, went down judges were only paid £1,500 a year. That only paid £1,500 a year. before Stretton and at an early stage £1,500 a year, in 1949, would translate into That £1,500 a year, in in the proceedings he called him “Your approximately in value $150,000 today 1949, would translate into Worship” and was mildly reproved. He did but then there was rapid inflation and the it a second time, again Stretton indicated value of their salaries probably dropped approximately in value some objection. Then a little later, Maurice to below $100,000 today and I think they $150,000 today. Ashkanasy did it quite deliberately to were not happy about that. cheek Stretton and then having done it, BN: And was there a catch up in terms elaborately apologised. Stretton said to of income do you know? and the senior judge was ordinarily the him, “Oh Mr Ashkanasy, there’s no need Charles: There was a catch up but it was judge who was most senior in terms of to apologise, I realise how difficult it is for slow in coming and the catch ups were not appointment. you to get over the habits of a lifetime.” as much as they would have hoped. When I came to the Bar the senior Stretton had been, when he was at the BN: You mentioned the Bench clerk. Did judge was Len Stretton who had been university, a great scholar of English and the Bench clerk also operate in General appointed in 1937 and became senior he wrote beautiful English. He was also in Sessions? judge in 1946. He was a very interesting his young days quite a good poet. In 1939 Charles: Yes. The Bench clerk did operate man. His family were steeped in the law. he was appointed to sit on the inquiry into in General Sessions. There was no associ- He had recollections as a small boy of the Black Friday fires, of January 1939. ate either in General Sessions or in the being taken up Goldsborough Mort Lane They were very severe bushfires, and County Court. You know General Sessions, by his father to visit the Law Courts and, when he wrote his report the opening part of course, was the criminal branch, as it as they were going up there, there was a of the report was in such beautiful English were, of the County Court. The County water pump beside the building on the that at a later stage it was prescribed as Court had no criminal jurisdiction and south-western corner of Goldsborough compulsory reading for VCE students so the County Court judges alternatively sat Mort Lane and Little Bourke Street. That that they could see just how well English in what was termed General Sessions but building subsequently became O’Donohue could be expressed. they were treated as judges just as they & Lynch’s office, but at that time it was a One other thing I remember about would be in any criminal court with a building in which barristers lived. As they Stretton — and I remember this with joy judge. were walking up the lane, there was a — I was appearing for a young man who BN: And theoretically, of course, they barrister outside dousing himself. He had was charged with theft and he alleged that were merely Chairmen of General some clothing on but he was dousing him- the confession that had been obtained Sessions. Theoretically, they could sit self under the pump and Stretton’s father from him was only obtained after he was with Justices of the Peace. turned to the boy and said, “He must be an knocked about by the police. In his evi- Charles: Yes. There were some debates equity lawyer because they have to come dence in chief on the voire dire he went about whether as Chairman of General to court with clean hands.” very well, and then in cross-examination Sessions they were entitled to the title of BN: I take it this would have been in late he handled things reasonably comfortably “Your Honour”. Some people contended 19th century, early 20th century. until suddenly the Crown Prosecutor, as that, as they were only Chairmen of Charles: It would have been around his master stroke, produced the police General Sessions, they should be called 1900. records. In the police records used at the “Your Worship” but the judges made it BN: Yes. police station there was a column for him pretty clear that they were not going to Charles: Stretton I found a very friendly to write in any complaints and he had not accept that. man and I got on well with him. A lot of written anything in this. BN: Apart from the personnel, what the time he sat in workers’ compensation, He was tackled on this by the Crown other changes do you see? and sitting in workers’ compensation he Prosecutor, and at that stage he stumbled Charles: Those are the main changes. I was to some extent away from the Bar. and I was troubled. I didn’t know where I

18 19 was heading. I wasn’t very experienced at litigation in the way he thought it should application for prohibition and certiorari that stage. Then Stretton sent the accused be conducted. This probably reached its came on for hearing. a magnificent lifeline. He said, “Young peak in 1958 in a case at Hamilton. The Full Court came to the conclusion man, when you’re bitten by a lion, do you This was a husband and wife mainte- that Jimmy had interfered unreasonably complain to another lion about it?” nance case. In the Magistrate’s Court the and that there’d been no fair trial. They Anyway we were successful on the husband had won and there was then set his judgment aside. Jimmy was very voire dire. He was acquitted and he went an appeal under the provisions of the hurt by that determination but the Bar on to a distinguished career. He was a suc- Maintenance Act to General Sessions. were overjoyed. The case was referred to cessful businessman and later he became They had the misfortune to draw Jimmy in the newspapers in big headlines as the mayor of the city where he lived. At that as the judge. The respondent husband, case of the interfering judge. time if he had been convicted that would whose name was Tom Atterby, was a Murray McInerney as senior counsel have been an enormous stumbling block farmer and his wife alleged against him conducted the application for prohibition to his career. that he knocked her about and that there and certiorari. Murray hadn’t been a silk The next judge I wanted to talk about was cruelty. very long and I was his junior at the time. was Cliffy Book. Cliff had been a Crown One feature of this case was that We made a careful analysis of it all and, Prosecutor for most of his life at the Bar. Mrs Atterby’s parents had come out on the basis of our analysis, there was, on He became a judge in 1943. Although he’d from England. Until they came out from average, an interruption every 1 minute been a prosecutor there were no signs of England there was apparently no trouble 47 seconds. On Jimmy’s figures it was not that when he came to be a judge. between them. But her parents did not very much different. The Full Court were He was always quiet and courteous and want her living on a farm, they wanted her very scathing about Jimmy’s behaviour very fair and most of us thought he was a living in the town of Hamilton. during the course of the hearing, although very good judge. He was also very active The husband claimed that he hadn’t when they came to deliver their judg- within his own church but he was not a been cruel, that there’d been no knock- ments they treated him more kindly whilst colourful person in the same way that ing about and that she had ulterior issuing a writ of certiorari against him. Stretton and some of the others were. motives for making those allegations. Tom Ian Gray (later Mr Justice Gray), always Now, the third most senior judge was Atterby’s counsel Gillespie-Jones wanted known as Sam Gray, appeared for the wife the infamous Jimmy Moore who was to cross-examine to establish those and in effect was Jimmy’s counsel. It was regarded as a “bad man judge”, probably ulterior motives and Jimmy wouldn’t let often said of Sam Gray that he provided the worst of the 20th century. him cross-examine along those lines. the copy book answer to the cocktail party Jimmy was a real problem for all of us Jimmy said, “Look. The case that’s been question, “What do you do when you know in the fifties. Unless you had had a fight made against you is that you were cruel your client is guilty?” He conducted the with Jimmy Moore I don’t think you really and that you knocked her about, and case very ably and did all he could, but the were considered to be a barrister. It was you’ve simply got to deal with that case.” judge’s position was unsalvageable. part of the training of a barrister to have Gillespie-Jones didn’t agree with this and Many people used to try to get away a fight with Jimmy Moore; and it wasn’t in the first half hour there were at least 15 from Jimmy’s court under one pretext or hard to do. interruptions to his cross-examination by another. On one occasion when he was There was one young barrister. I won’t the judge. junior counsel, John Starke wanted to mention his name (but I’ll call him the Eventually Gillespie-Jones came to get away from Jimmy and he went over flamboyant barrister because he was the conclusion that it was impossible for to make an application for an adjourn- flamboyant) who was appearing in his first him to conduct the litigation properly ment. Jimmy said to him rather tersely, criminal trial. He made what I think was and he staged what was a famous walk- “Mr Starke, my court is not here simply a very bad mistake. He asked a number out. He complained that as counsel he for your convenience. My court is here of his relatives to come and watch him in was not being treated properly; that he for the convenience of the public” to action and he drew Jimmy Moore as the was not allowed to put his case. He and which Starke replied, “I’m aware that your trial judge. the instructing solicitor and the client all Honour’s court is a public convenience.” At the start of the trial the flamboy- walked out of the Court. The judge then I had fairly rough treatment from ant barrister stood up addressing Jimmy simply proceeded and made an order for Jimmy on a number of occasions, but very Moore with his hands in his pockets and the wife. As a result of that the husband late in his career I had my revenge. Jimmy said, “Young man, take your hands sought writs of prohibition and certiorari I went up to Shepparton to appear for out of your pockets when you’re speaking against the judge and a long affidavit was a woman who’d been injured in a railway to me.” Instead of doing this the barrister filed dealing with the judge’s behaviour. accident. At the relevant time she was sit- argued that he had a constitutional right Jimmy did what was not very wise. ting in the toilet in the train. The train ran to keep his hands in his pockets. So for Before the wife had any opportunity to into another train which was stationary nearly 20 minutes there was a heated put in an answering affidavit, he himself on the line and she was thrown forward argument between him and Jimmy Moore. put in his own affidavit as to what had against the door of the toilet and received (I’m sure the client wondered what on happened in the Court. In his own affida- back and head injuries. Interestingly, the earth was going on.) But eventually he vit Jimmy admitted that there had been railways pleaded against us contributory took his hands out of his pockets and 15 interruptions to the cross-examina- negligence which included the particular obeyed the direction of the judge. tion in the first half hour. There were a “sitting too far forward on the toilet seat”. Jimmy was very much an interrupting lot of matters set out in Jimmy’s affidavit Where they got that information I don’t judge. He thought all litigation should be explaining why he had done particular know, but that was one of the particulars conducted as he thought fit, and he was things and those matters were very much of contributory negligence. fairly critical if you weren’t conducting the used against Jimmy by counsel when the Now there were three things operat-

18 19 ing against me in that trial. First of all, clear indications by his facial expressions Dick repeated, “I’m very grateful for what the woman was a German and Jimmy of exactly what he was thinking. Often drops from your Honour”. Norman very had fought in the First World War and you would receive a summing up for an elaborately looked down under his chair hated all Germans. Secondly, she was accused which didn’t read too badly, but at that remark. Roman Catholic — that emerged during the judge’s expressions as he was sum- On another occasion, (it was Dick the course of the trial — and he disliked ming up to the jury made it extremely again appearing before him) Dick read Roman Catholics, not quite as much plain that he didn’t believe the defence an extract from the Third Edition of as he disliked Jews, but they carried, I that was being raised. Halsbury. At that time we had the Third think, about a 7lb penalty. Thirdly, he was On one occasion he got into somewhat Edition of Halsbury and the Third Edition always on the side of statutory authorities. of a fight with Alec Southwell (later Mr of Halsbury was bound in green. The He laboured very hard on the railways’ Justice Southwell) in a case before a jury. Second Edition had been blue. The Third behalf. There was no shorthand writer and in Edition, I think, had probably been com- We were before a jury and we sat until the midst of the argument the judge said ing out for nearly 10 years. Norman said, 5.30 p.m. I had had a pretty rough day but that he wished what was being said by “What book is that Mr Griffith?”. Dick I was determined that no matter what Southwell was being recorded, to which Griffith said “It’s Halsbury, your Honour”. happened, I’d be polite to the judge. At Southwell replied that he wished the case Norman said “But that’s a green book”. So 5.30 Jimmy adjourned and announced was being televised so that the Full Court in 10 years he never apparently looked at that he’d continue at 7.30 that night. could see how his Honour looked dur- Halsbury and was surprised to find that Just before 7.30 p.m. my opponent, ing the course of the trial. It was a fairly the Third Edition had come out bound in Norman O’Bryan, and I walked in and famous interjection. green. sat down at the Bar table. The jury were The next judge I want to mention is Norman could be quite witty and brought in and, as they walked past me, Norman Mitchell. make very appropriate remarks. One of the foreman turned to me and said, “How Norman had been a good cricketer. the people who was not exactly an orna- do you ever manage to remain pleasant to He had on occasions opened the batting ment to the Bar was Dave Sonenberg. a bastard like that?” Well, that encouraged for Victoria but he had the misfortune to Dave associated with ladies who today me and I was able to remain calm during live in one of the great eras of Victorian would be referred to as “escorts” and was the remainder of the case. cricket. Victoria at that time had two very known for this behaviour. He was conduct- We were hoping for a reasonably big good openers, Woodfull and Ponsford, so ing a criminal trial for an accused where award of damages and we thought that that Norman very rarely got into the team a sexual assault was alleged and, rather the maximum damages we were likely to unless Woodfull and Ponsford were away. unfairly, he attacked the woman who get at that time in relation to her injuries I think in ordinary circumstances Norman alleged that she’d been assaulted. He put was £5,000. The jury, to our delight and would have been a regular member of the it to her that she had deliberately dressed slight worry, came back with a verdict for team. herself to look innocent. Amongst other £5,100 which we were able to hold 2/1 on Norman was a bit of a larrikin but he things, Sonenberg suggested to her that appeal. I felt at that stage that for most had great experience of life and a great she hadn’t put much makeup on, to which of the things that Jimmy had done to me knowledge of people. the judge interjected, “Mr. Sonenberg, I I’d got my own back. He was rather horri- One day in 1946 he was standing out- appreciate that she may not have as much fied that this German woman got this very side his chambers when Mr A. E. Hocking makeup on as the women to whom you are large verdict. walked past. Mr Hocking was very promi- accustomed.” The next judge, and I’ll only speak nent in the National Party, which was in The next judge on the Court I wanted about him briefly, was Len Reid. Len had power at the time. As he went past he to mention was Leo Dethridge. Leo was been in the 1914–18 war. He’d served in said to Norman “How would you like to be also appointed in 1946 and he was a great the A.I.E. with some distinction but was a County Court judge?” to which Norman man for the underdog. He always tried to left with some permanent disabilities replied “That’ll be the bloody day”. About a work out who was insured and who wasn’t as a result of the war. He had a very big week later he was appointed to the County insured. At that time there were many car running down practice at the Bar act- Court Bench. accidents in which one of the drivers was ing mainly for defendants and insurance After he went to the Bench Norman insured and one was not insured and Leo companies. He also did some inquiries. He hardly ever read another law report or law would almost invariably find for the driver was counsel assisting the inquiry on the book. He relied on his experience and his whom he thought was uninsured. Once or “Pyjama Girl” which was quite a famous knowledge of people to achieve what was twice that led to disasters. He picked the case. The Pyjama Girl’s body was found almost invariably a correct result but his wrong one. He was a friendly judge and in a drain near Albury in 1934. Nobody behaviour on the Bench was a source of he very much enjoyed hospitality when identified her at the time. But 10 years amusement from time to time. he was on circuit. He was a judge who was later she was identified as Linda Agostini On one occasion, Dick Griffith (who was well liked by the Bar. by means of the dental work done on her later Mr Justice Griffith of the Supreme The other judge appointed in 1946 teeth. There was then a coroner’s inquiry Court) was appearing before Norman. (there were a string of them appointed into her death and Len was counsel Dick was very proper in his phraseology that year) — was Freddie Gamble. Of all assisting. There was still argument as to and on one occasion when Norman made a the judges on the County Court at that whether the Pyjama Girl was in fact Linda comment which was helpful to Dick’s argu- time, I think undoubtedly Freddie had the Agostini as was claimed. The Coroner ment, Dick said “I’m very grateful for what most brilliant mind. He was interested in found that she was Linda Agostini. drops from your Honour”, Norman looked all sorts of areas which most members of One unfortunate thing about Judge at him in amazement. A little later Norman the Bar were not particularly interested in Reid was his facial expressions. He gave again made comments which were helpful. at that time. He was very interested in psy-

20 21 chology, psychiatry and all sorts of medi- that day.” Bill Patterson said “Why not?” Whilst they were out there, unfor- cal matters, and his knowledge was very and the strapper replied, “Well, he’d been tunately for them, Stafford had a heart wide. gelded only a fortnight before.” Bill said attack and they were entirely forgotten. Freddie had come to the Bar in 1924 “What difference would that make?”, to They kept telling the prison authorities and he had a brilliant start to his career. which the strapper said, “I’d like to see you that they should be brought to the court He was reputed to have earned 1,000 guin- running a fortnight after you were gelded.” and the prison authorities kept telling eas in his first year at the Bar. Certainly he Gamble, with great dignity, turned to the them that they went to the court when the got off to a great start. He had a very quick strapper and said, “You larrikin, how dare judge thought fit. brain and very quickly grasped an argu- you speak to counsel like that.” After about seven or eight months it ment or grasped the facts of a case. He On one occasion the flamboyant barris- was finally realised what had happened also had a rich variety of other talents. He ter who I mentioned had his hands in his and they were eventually brought before was an extremely good artist (he painted pockets before Jimmy Moore was appear- a court. They were then given a sentence in oils) he was quite a good pianist; and he ing before Judge Gamble and they were which covered the period they had already was also extremely good with his lathe. He going at it hammer and tongs. Eventually served out at Pentridge. did a lot of woodwork of very high quality. the barrister said to his Honour “I’m only Those are the nine judges who were Unfortunately, when he got on to the trying to do the best for my client, your on the Court when I first came to the Bar Bench Freddie rather lost interest in life Honour”, to which Gamble replied, “Yes and they were the only judges until 1954. on the Bench. Very possibly he wished that’s what worries me.” In 1954 Archie Fraser, who was known as he was back at the Bar where with his Gamble had a great ability to charge a “Golden Throated Archie” because of his particular talents he would have made jury. He was extremely persuasive and if rasping voice, was appointed a County a fortune in the post-war period, which he charged your way, you almost invariably Court judge and became Chairman of the turned out to be a much better time for won but if he charged for the other party, Licensing Court. the Bar than everyone expected. But as you lost. He was in fact a brilliant jury Then, in the mid 50s, you had the a judge Freddie began to drink far too advocate. Juries obviously liked him and appointments of Judge Norris, Judge much in public, and often he appeared he was pleasant to them and they were Nelson and Judge Dunn. They were all in restaurants and other places in a fairly readily persuaded by what he said. So he fairly outstanding judges and a little drunken condition. This became a matter was a very important man in any jury trial. different from the then existing mem- of concern to his brother judges and they The remaining judges were Judge bers of the court. Their calibre is indi- met to discuss it. Finally they appointed Mulvany and Judge Stafford. Judge cated by the fact that all three of them one of their number as a delegate to go Mulvany had been a silk and had been a were later elevated to the Supreme to see him and complain about his behav- very able counsel. He was probably one of Court. iour. The delegate went down and said he the most clever of the judges at that time Judge Norris was probably the most was a delegate appointed by his brother but he tended to be cold and unapproach- interesting of the three. He had very judges to tell Gamble that they were very able and he also tended to be very rigid. He prominent teeth and SEK Hulme said perturbed by his behaviour off the Bench. had a hearing defect in his right ear, and, of him, rather wittily, that he was the Gamble promptly replied, “I’m appointing in order to hear the evidence, he always only man he knew who could eat apples you a delegate to go back to my brother sat side on, which was a little disconcert- through a picket fence. This was because judges and tell them I’m very disturbed by ing because it was as if he wasn’t listening of his prominent teeth. One year at the Bar their behaviour on the Bench.” to you, but in fact that was how he heard Art Exhibition where there were very seri- Freddie always wore a morning suit better. ous works of art, SEK contributed a not so and earlier on in the day he was always He used language which even at that serious work of art. It was Norris eating extremely dignified. He was very dignified time was becoming archaic and he was very apples through a picket fence. in his court and he would run a good court. rigid in what he had to say. I remember on BN: Was it because there were so few On one occasion there was a racehorse one occasion, I was appearing against a judges at the time that these men made which was injured in an accident when the young man in a breach of promise case such an impression or impact on the float ran into a train. The owners of the and Mulvaney referred to him as a “cad”. Bar or was it because they really were racehorse suggested this would have been That was I think one of the last times I ever characters? a great horse but for the train accident heard that word used in court. Charles: I think the answer to that is and the accident had ruined what was a Judge Stafford came to the Bench in that they really were diverse characters. champion racehorse. The solicitor for the 1948. Stafford tended to be very slow, and Most of the judges in the County Court railways had done a lot of preparation. He was also extremely thorough and he was later seemed to me to fit far more into a had traced out the racing history of the a good lawyer, but he was greatly trou- similar mould. They did not have marked horse and he gave that to Bill Patterson bled by ill-health. He had heart problems personal characteristics which you who was conducting the case on behalf almost from the moment he came to the remember, whereas these men certainly of the railways. Bill said to one of the Bench and that sometimes created dif- were characters. I think there is a variety strappers who was in the box eulogising ficulties. of reasons for that. Some of them were the horse, “Now you say this horse never On one occasion he had two accused moulded by the First World War. A number had a chance to show his true colours.” Bill before him and was minded to let them of them, of course, had practised during then nominated a race in which the horse have a short taste of Pentridge before the Depression which was a very hard time had run at Rutherglen not long before the he released them on a bond, so that they for the Bar. They’d had lives of hardship accident and said that in a field of 19 he would be warned as to what would hap- and adversity that had moulded their char- came 15th. The strapper said, “Well, you pen in the future. They were sent out to acters in a way different to how so many of wouldn’t have expected him to run well Pentridge to await sentencing. us are moulded today.

20 21 News and Views Postcard from New York City

Georgina Costello

HIS morning, a Monday morning, I went to work. Rugged up in a coat Tand scarf, umbrella in hand, laptop over my shoulder, a brown-bag of toast pegged under my elbow, I walked rapidly around the pavement puddles, bought my takeaway coffee from Joe’s, swooped past the newspaper stand for a New York Times and tumbled into the subway for the daily commute to my downtown office - a screeching lurch of metal train on scratchy tracks. Having arrived in my office in New York Plaza (about 100 metres from Wall Street), I hung up my coat, dropped everything else on the floor, next to the lawyerly floor-piles of folders and - bull dog-clipped pages, and logged into my computer. Today’s work started with legal research. Unlike the Butterworth’s subscription many of us are used to, an online case search here is typically billed by the search. For example, Aa key word search for federal cases in, for example in Massachusetts, costs the client $100. A thousand dollars later, I found one case. Next, I went to a meeting with a pro bono client, in a conference room looking out at the Statue of Liberty. My client, Georgina Costello outside the UN building. a Tibetan asylum seeker, had arrived at JFK six months ago, around when I did. first eight weeks here were spent- cram an extra exam on legal ethics. You have to He paid a Chinese people smuggler to ming for this test. Studying for the Bar memorise all these subjects for a closed- arrange the journey. I came here on one exam is about as interesting as reading book exam that takes 15 hours over three of 10,5000 E-3 visas annually allocated to cases on taxing legal costs. To pass, you days. Just marking the exams takes the qualified Australians. After seeing my cli- must learn the following New York law examiners four months. ent off, I logged reluctantly into an on-line subjects: Agency, Commercial Paper, The exam itself takes place in a large database of millions of pages of scanned- Conflict of Laws, Corporations, Domestic convention centre in mid-town Manhattan in documents, to continue searching for Relations, Equity, Federal Jurisdiction, and in a couple of other, smaller locations. things relevant and useful to our case. Future Interests, Insurance, Mortgages, Each year, about 10,000 candidates sit the Fifty pages in, eyes weary from doing this New York Practice & Procedure, New York exam. About 6,000 or 7,000 pass. When all the prior day (day Sunday), but know- Professional Responsibility, Partnership, you enter the exam room, you look around ing that the sooner I finished it, the sooner Personal Property, Secured Transactions, at thousands of pallid would-be New York I could go home, I was interrupted by an Trusts, Wills, Workers’ Compensation, lawyers sitting ready to write, chewing on email telling me that the Bar exam results Constitutional Law, Contracts/Sales, their pencils and tapping their fingers on would arrive tomorrow. Criminal Law/Procedure, Evidence, Real laminated desks. Two giant roller doors The reminder of the New York Bar Property and Torts. Then there are a fur- slowly close behind you as you set your exam made me feel despondent. My ther 6 multi-state subjects. Not to mention watch to exam time, say a final prayer/

22 23 News and Views News and Views

expletive/mnemonic and eye the queue for the loo (already 30 people long five minutes into the exam). On the third day of the exam, runners registered at the Verbatim same convention centre for the New York marathon. As a group, they were thinner than the Bar examinees. I wasn’t sure Cosi Fan Tutti? your Honour, but — the court seems to be which queue was least appealing. saying that whilst you cannot take it, it is The Bar exam is a popular hurdle, Coram: Byrne J the subjective knowledge of the plaintiff. perhaps because admission to practice in Premier v Spotless & ors However, where the medical reports are New York is lucrative. Starting salaries at His Honour: Why should I restrain him similar to the knowledge of the plaintiff, large Manhattan firms are US$150,000.006 [Mr Dreyfus] from asking leading ques- the knowledge that he had, it confirms the figure US, plus the bonus. Many US law tions unless I was persuaded in that fact knowledge of the plaintiff. graduates face significant college debts this is a witness in his camp? I note he and Her Honour: Are you sure? (often more than US$100,000), and Mr Burnside have been fairly cosy about Mr Hore-Lacy: Am I sure? Well, that’s a are hungry for these jobs. The typical this witness and that troubles me a little very elastic word, your Honour. I’m never big firm attorney here bills 2,000 hours bit. It well may be Mr Dreyfus is a — I sure of anything, I might say. Yes? a year, often eats breakfast lunch and won’t say a mere creature. dinner at the firm and takes a chauffeur- Mr Dreyfus: As I pointed out to Your Filipino ‘Dwarf’ Judge driven car home each day after 8pm. On Honour in opening, we have got a partial the weekends, and late at night, lawyers alliance with every other party in this case Loses Case check their BlackBerry for emails, like a on one issue or another, which of course A Philippines judge who said he consulted crack addict focused on a hit. If you miss gives rise to some complexities in the con- that message, who knows what will hap- imaginary mystic dwarves has failed to duct of the case. convince the Supreme Court to allow him pen? As to my cosiness with Mr Burnside, Some differences I have noticed prac- to keep his job. I read with Mr Burnside; I would be dis- Florentino Floro was appealing against ticing law here: no wigs, wordier written appointed to think we didn’t have some submissions, more female commercial a three-year inquiry which led to his degree of closeness. removal due to incompetence and bias. He litigators running big matters, a significant Mr Burnside: After sales service. commitment to pro bono work by very told investigators three mystic dwarves successful commercial firms, movie stars — Armand, Luis and Angel — had helped in local shops … I mean stores, and the Thumbs Up him to carry out healing sessions during need to put “R”s in words like “car” to be 24 October 2006 breaks in his chambers. understood. Premier v Spotless The court said psychic phenomena had It is now 8 pm and I’m about to go home no place in the judiciary. for the day. Writing this has meant putting Mr Dreyfus: Just in relation to that, Mr The Bench backed a medical finding off some document review to tomorrow. Devcic, Mr Goss was the primary building that the judge was suffering from psy- Not to worry, it will still be there. It has contractor for this project, that is, for the chosis. been six months since I arrived in New construction of the 49 units? The Manila trial judge had asked the York, and in that time I have sat the NY Mr Devcic: That’s what I was told, yes. Supreme Court to dismiss the complaint Bar exam, found an apartment to rent Mr Dreyfus: You spoke to him after and return him to the Bench, after being (that’s another story, almost as hard as August of 2005? sacked in April. the Bar exam, because Manhattan’s rental Mr Devcic: Yes, I did. “They should not have dismissed me vacancy rates are less than 1 per cent) and Mr Dreyfus: How many times did you for what I believed,” Mr Floro told report- seen Mr Big, a former star of Sex And The speak to him? ers after filing his appeal in May. City twice in the street. He now appears Mr Devcic: The exact number I’m not The judge said he had made a covenant in Law & Order, which they film around sure but I would be able to count it on one with his dwarf friends that he could write the corner from where I live. Tomorrow, hand. Probably half a dozen times. while in a trance and that he had been if I find out that I have failed the exam, I Mr Dreyfus: You’ve got six fingers, do seen by several people in two places at guess I’ll have to study for it again. I sup- you? the same time. Judge Floro reportedly pose it will be like losing a trial. Begin Mr Devcic: Sorry. I will put the thumb up changed from blue court robes to black again, hoping you learned something last with the other hand and then I do, yes. each Friday “to recharge his psychic pow- time. If I pass, maybe I’ll run the New York ers”. marathon next year. Elastic In a letter to the court he said: “From obscurity, my name and the three mystic Coram: Judge Gaynor Georgina Costello was a Melbourne dwarves became immortal.” However, Hore-Lacy S.C. and D. Gibson for Plaintiff the Supreme Court said dalliance with barrister until moving to New York B. McTaggart for Defendant City to work as a trial attorney at Fried dwarves would gradually erode the pub- Frank Harris Shriver & Jacobson LLP Hore-Lacy in his closing address: lic’s acceptance of the judiciary as the in May this year. Her Honour: No. It’s not that I’m being guardian of the law, if not make it an dense, I don’t understand what you’re say- object of ridicule. P.S. The next morning, Georgina found ing, Mr Hore-Lacy. out she passed the New York Bar exam. Mr Hore-Lacy: No, well, neither do I,

22 23 News and Views Bar Welcomes Readers Class of September 2006

Signing of the Bar Roll by the September 2006 Readers on Thursday 9 November 2006 at 5 pm in the Library of the Supreme Court of Victoria.

HIS was the first occasion on which the signing of the Bar Roll took place Tin the grand setting of the Supreme Court Library, and with the mentors and representative family and friends of those signing the Roll able to be present. What follows is the text of the Chairman’s remarks. On behalf of the Bar Council, I extend a warm welcome to you all to this ceremony for signing the Bar Roll. The Bar very much appreciates being able to hold this ceremony in this beautiful Library of the Supreme Court. Our sincere thanks to the Chief Justice; to the Court, and its Chief Executive Offi cer, Michael McGarvie (who is here today); and to the Librarian, James Butler. The Court and its Library date back to 1884. The oldest series of law reports in the Library dates back to 1220 AD, and the oldest textbook is Statham’s Abridgement, printed in 1490. I am sure you will agree that this mag- All the Readers after the signing. nifi cent building, with the former Chief Justices of the Court looking down on us, is a memorable setting for this ceremony. September 1900. Twenty-three barristers Supreme Court); and Mr Justice Dethridge This is the fi rst time we have held this signed the Roll on that day. (appointed fi rst to the County Court, and ceremony here. In the recent past, the The fi rst person to sign the Roll was then Chief Judge of the Commonwealth Roll has been signed in the Bar Council John Burnett Box. He was the fi rst Court of Conciliation & Arbitration). Chamber — with only the Council and Chairman of the Bar Council. He was In other words, more than a third of those signing the Roll present. admitted in Victoria in 1869, and had prac- the 23 barristers who signed the Roll that Signing the Roll marks the beginning tised as a barrister here since then. He day became Judges: three on the High of a unique professional career. Today, was appointed to the County Court in Court; three on the Supreme Court; one each one of the readers who signs the Roll 1905. on the Court of Conciliation & Arbitration; becomes a barrister. Others who signed the Roll that day and one on the County Court. I wish the Holding the ceremony here, we are include: Sir Frank Gavan Duffy (later Chief September 2006 new barristers even bet- able to include each reader’s mentor, and Justice of the High Court of Australia); Sir ter prospects of advancement! representative family and friends. We’re Henry Higgins and Sir Hayden Starke In any event, since 21 September 1900, delighted you can all join us this after- (both Justices of the High Court); Sir Leo every Victorian Barrister, including Sir noon. Cussen, Mr Justice Schutt and Sir James Robert Menzies and Sir Owen Dixon, has The Bar Roll was established on 21 Macfarlan (all Judges of the Victorian signed the Bar Roll.

24 25 News and Views Bar Welcomes Readers Class of September 2006

Simon Pitt (Assistant Honourary Secretary) standing while Bar Reader Christopher Young signs the Roll.

Michael Shand about to shake hands with Bar Reader Sascha Dawson.

The fi rst woman to do so was the late Victorian Bar has provided places in each complete the Victorian Bar Readers’ Joan Rosanove QC, who signed as number Readers’ Course to lawyers in the South Course. Congratulations! 207 on 10 September 1923. Pacifi c Region — from Papua New Guinea; I understand that you both participated Of the 42 Victorian practitioners who Vanuatu; the Solomon Islands; and from in the week-long Advocacy Skills Training are about to sign the Roll this evening, 14 Indonesia. Workshop for Government lawyers in are women. They join the 326 women on Jacob Kausiama and Florence Williams, Vanuatu in January. the practising list (20 per cent) out of a both from Vanuatu, are the one-hun- We’re delighted that you came here to total of 1,631. dredth and one-hundred-and-fi rst South Melbourne for the full Readers’ Course. I now call upon the Honorary Secretary Pacifi c readers to complete this course. I Those conducting the course have noted of the Bar Council, Penny Neskovcin, to now call upon them to step forward and your active and conscientious participa- call each Victorian practitioner who has sign the Roll of Overseas Counsel. [The tion throughout the course — and that successfully completed the September Vanuatu Readers then signed the Roll of you have both made many friends here. 2006 Bar Readers’ Course to sign the Roll. Overseas Counsel.] Our fi rst course in Vanuatu was in [The Victorian Readers then signed the Jacob and Florence, you are, as I’ve February 1995. It was led by the late Roll.] said, the one-hundredth and one-hun- Robert Kent QC. He was then a Judge of For almost 20 years, since 1987, the dred-and-fi rst South Pacifi c lawyers to the Supreme Court of Vanuatu, and was

24 25 Michael Shand shaking hands with Bar Reader Tony Elder.

Readers from Vanuatu, Jacob Kausiama and Florence Williams, are presented Michael Shand shaking hands with with gifts by the Chairman, Michael Shand QC,after signing the Roll of Overseas Bar Reader Georgia King-Siem. Counsel.

Jennifer La’au — the Vanuatu lawyer who attended the Bar Readers’ Course in 2000. That hangs in pride of place in the foyer of Owen Dixon Chambers West. It is much admired; and is an ongoing symbol of our friendship and professional connections with Vanuatu. Jacob Kausiama is an Assistant Legal Offi cer. He represents the needy in Vanuatu community in both civil and criminal proceedings. Florence Williams is State Counsel in the Offi ce of the Solicitor- General. I have great pleasure in giving you each a small token of remembrance of your participation in the Readers’ Course; of friendships here; and of your connection with the Victorian Bar. Congratulations again and best wishes for your future practice of the law. I now address all of you who have today signed the Bar Roll. On behalf of the Bar Council, I extend our warmest congratulations on becoming members of the Bar. We wish each one of you a long and satisfying career as a bar- rister. As part of the application to sign the Chairman of the Bar Council Michael Shand QC addresses the gathering. Roll, you each gave a written undertaking not to practise “otherwise than exclusively the founder of the Bar’s South Pacifi c yers have now completed the Bar Readers’ as counsel”. program. Course. That undertaking was conditional on In addition to our Advocacy Skills The magnifi cent Tapa Cloth from the the Council granting your application. Courses in Vanuatu, 15 ni Vanuatu law- Kingdom of Tonga was presented to us by Your signing the Roll today perfects your

26 27 undertaking, and makes you a member of Our Bar has a proud tradition of serv- ticipants; mentors; and most important of the Victorian Bar. ice. I would encourage you to get involved all, our staff — Barb Walsh and Deborah We are an independent Bar. We are in the life of the Bar. Join a committee, vol- Burns. each self employed. None of us can unteer to help, stand for the Bar Council. Finally, congratulations on your suc- employ another barrister, or go into part- There is so much going on and much that cessful completion of the Readers’ Course nership, or work for a firm. you can contribute. and joining the Bar. All the best for your We act for our clients without fear or I would like to take this opportunity, future careers! favour. We observe the cab rank principle on behalf of the Bar Council, of pub- To family members and friends of our with briefs which come to us. licly thanking those who have made the new barristers, thank you for joining us at We owe a paramount duty not to mis- Readers Course a success: the Chairman this ceremony. We are sorry we could not lead the Court. We also have a duty to of the Readers Course Committee, Ian Hill invite you to the dinner. Numbers do not advance our client’s interests to the best QC; the members of the Readers Course permit — but we hope you have enjoyed of our skill and diligence. Committee; our guest speakers and par- being part of this ceremony. We aim to observe the highest stand- ards of ethics and competency, not as lofty ideals, but from day to day, from one brief to the next. Although each of us is independent, we are not alone. There are now 1,673 of us. Board of Examiners There is camaraderie at the Bar. Please feel free to talk to your fellow barristers, HE Board of Examiners for Legal became a principal Board member and in particular more senior members of the Practitioners approves candi- served as Chairman of the Board in Bar. Talk to us about your cases, and ask Tdates for admission to practice 2005. Bill has served on the Board with for help if you need it. We have a long tra- as barristers and solicitors in Victoria. distinction and has made an outstand- dition of our doors being open – so long as Practitioners from both the sides of the ing contribution to its work. we’re not on the other side! profession are appointed to the Board On 29 November 2006, a dinner Our Bar has a proud tradition of pro by the Council of Legal Education. The was held at the RACV for four retiring bono work, that is to say, working for no members of the Board provide their members of the Board — Bill Lally, fee or a reduced fee. You all know of the services on a voluntary basis. Gail Owen OAM, Tina Millar and Simon Nguyen case in Singapore — the young For the most part the work of the Begg. Those at the dinner acknowl- man who was hanged. Board is done out of hours with hear- edged the enormous contribution that That case was done pro bono. Lex ings at night time, sometimes going late the four of them have made during their Lasry QC and Julian McMahon appeared into the night. The Board sit at least combined 40 plus years of service on without fee. The case came into the public 20 times a year with judgments to be the Board. spotlight towards the end — but Lex and written and delivered, appeals to be It was a tribute to the importance Julian were involved in that case for three contended with and, on one occasion, a of their work that the President of the years! special sitting of a Full Court. Court of Appeal, Justice Maxwell, was More than a quarter of the Bar On 31 December 2005, Bill Lally QC present at the dinner. On behalf of have volunteered to participate in the retired as a member of the Board of the Supreme Court, Justice Maxwell Victorian Bar Legal Assistance Scheme, Examiners. Bill has been a member of delivered a witty and engaging speech administered by PILCH — the Public the Board of Examiners since January as well as thanking the retiring Board Interest Law Clearing House. Well over 1998 when he became a deputy mem- members for their unstinting and volun- half of last year’s readers volunteered for ber of the Board. In January 2002, Bill tary service to the profession. that.

The Haymarket Boutique Hotel An exclusive, corporate accommodation experience in central Geelong. Special introductory packages available. haymarkethotel.com.au 244 Moorabool Street, Geelong. Telephone 03 5221 1174 Winner Best Accommodation ‘Geelong Business Excellence Awards’ 2005

26 27

PDF created with pdfFactory trial version www.pdffactory.com News and Views Milestone for the Victorian Bar Mediation Centre

The Victorian Bar Mediation Centre celebrated its tenth anniversary on 12 October 2006 at the Essoign Club. The evening was to mark this signifi cant milestone and to highlight the involvement of a number of special people in the success of the Centre. In attendance were invited guests from the State courts and VCAT, users and staff of the Centre, and mediators from the Victorian Bar. Unfortunately members of the Victorian Bar Council, including the Chairman, Michael Shand QC, were unable to attend due to a clash with the Bar Council meeting. David Levin QC, the outgoing Chair of the Dispute Resolution Standing Committee, commenced the formal part of the celebration by acknowledging the involvement of Bill Martin QC, George Golvan QC and Henry Jolson QC as three of the leading supporters of mediation at the Victorian Bar and noted an apology from Henry Jolson QC who was unable to attend but wished the Helen Henry, Tim McFarlane, Frances O’Halloran, Pauline Hannon, David Levin QC and Pauline Adams. celebration well. David thanked the staff of the Centre for their dedication over the years which had contributed signifi cantly to the success of the Centre. David welcomed Professors Boulle and Wade from Bond University who have done so much to assist in the establishment of mediation as a recognised subject for study and invited Ross Maxted, Chair of the Dispute Resolution Committee Standing Committee, to address the gathering. Margaret Lothian, Anthony Nolan S.C., Julian Ireland and Judge Damien Murphy. Ross Maxted, Chair of the Dispute Resolution Committee, Victorian Bar

HANK you David, and also for of the Bar Council Michael Shand QC to door and he hopes to join us shortly. the superb stewardship of the apologise for his absence. Michael who is On 9 October 1996, John Middleton QC, TCommittee in your capacity as a great supporter of ADR in all its forms is then merely the Chair of the Victorian Chair since late 2004 until last week. I otherwise engaged until a little later this Bar Council, opened the refurbished Bar have also been asked by the Chairman evening in a Bar Council meeting next Mediation Centre. It was then known

28 29 News and Views Milestone for the Victorian Bar Mediation Centre

Michael Heaton QC, Peter Lauritsen, Peter Lithgow and Louis Vatousios.

Elizabeth Brophy, Gerald Hardy, Martin Randall, Beatrice Mellita and Cary Nichol.

Ross Maxted, chair of the Dispute David Levin QC. Dr Laurence J. Boulle, Bond Resolution Standing Committee. University.

before refurbishment as Four Courts was identifi ed by the Victorian Bar in Centre only this year has also undergone Chambers. The centre came about after association with Barristers Chambers Ltd extensive further electronic upgrade for the Supreme Courts mediation “Spring and hence the Centre was established. clients’ use and to improve communica- Offensive” campaign and other dedicated Ten years on and the Mediation Centre tion to the Centre and to assist in the bet- mediation court initiatives in the early to now located in Douglas Menzies Chambers ter operation of the centre. mid 1990s. A need for a dedicated forum has seen thousands of disputants pass We have been fortunate to have had a for conducting mediations away from through its doors and has, without doubt, dedicated body of mediation centre staff barristers’ chambers and their corridors been the venue for hundreds of successful for many years. Helen Henry and Pauline and into a neutral dedicated facility settlements of troublesome disputes. The Hannon are the longest-serving original

28 29 members of staff who commenced in October and November of 1996. We all wish to thank the staff for their unstinting dedication, professionalism and consid- eration in the management of the Centre and all who have had contact with it. It is sometimes forgotten how the mediation process requires both persons and facilities conducive to confi dence, confi dentiality and care. It is always much more than providing space, tables and chairs. The work of the staff does much to build upon such an environment, conducive to dispute resolution where clients can feel comfortable and confi dent in a supported and safe environment and invariably where the parties are often making fi nal and lasting decisions. The Bar now also employs a full-time Disputes Manager, Liz Rhodes, who does an excellent job in assisting enquirers from outside the Bar and with court staff in fi nding a range of mediators or allocat- ing mediators in the rotation systems. The Bar Council also in April this year altered the accreditation processes for mediators in order to reinforce that Ross Maxted and Danielle Huntersmith. the Bar provides in this State some of the most pre-eminent mediators. The are participating in the Magistrates’ Court profi le of mediation in Victoria including Bar implemented a new accreditation mediation scheme since its increased the staff of the centre are also honoured scheme for approval for accreditation of jurisdiction. guests. It is a great pity that Bill Martin QC mediators, and also for the advancement It is therefore a genuine occasion who for most of these ten years who was of those current practising mediators to to mark the tenth anniversary of the the Chair of the Bar’s Dispute Resolution the advanced level, providing confi dence Mediation Centre and the growth of Committee is unable to attend – he is sail- to both the courts and the parties that mediation services. ing somewhere between Tahiti and Fiji, no these persons are highly capable individu- We have an array of honoured guests doubt enjoying himself after many years’ als who can be confi dently entrusted with — individuals from the local legal com- hard work. the responsibility of attempting to settle munity. We have representatives from Laurence Boulle has been invited by matters that for whatever reason have the State Magistrates Court, VCAT, the the Committee to speak on the National reached litigation. County Court and the Supreme Court, Mediator Accreditation Proposals cur- All this change in accreditation is people who have done so much to encour- rently before the Federal government, occurring at a time when governments age mediated outcomes as a quicker, cost- Laurence had a major role in the out- of ALL persuasions and politics seem effective and emotionally less challenged comes and he will provide details of the for once curiously united in the com- environment than a court and its trap- progress of this. The actual funding to mitment to ADR. This is I hope not seen pings for resolving disputes. Mediation facilitate a discussion on what might be by the public service or its governments can allow the parties the opportunity considered suitable standards for media- fi nance departments as an opportunity or (provided they are shown how it can tion in Australia was made available by chance to not properly fund the proper be achieved), to produce a result which the Federal Attorney-General in 2004. and necessary operation of either the often goes beyond the immediate dispute The funding was to be disbursed by courts and tribunals in order to do their and one which is more far reaching than National Mediation Conference Pty Ltd. job, nor to not properly fund the proper that which could be ordered by a court That organisation established a nation- and respected methods of mediation with or tribunal in any formal proceedings and wide committee to consider what should properly dedicated and resourced facili- is much more likely to be in keeping with be done and it appointed Professor Boulle ties and to provide well trained and caring the parties’ needs, deep non-disclosed in late 2005 as the facilitator. His exten- staff with appropriately experienced and desires and their own respective inter- sive work led to a draft proposal which properly remunerated mediators. ests. was passed unanimously by the Eighth The Victorian Bar now has 384 accred- Professor Laurence Boulle and National Mediation Conference in Hobart ited mediators, including more than Professor John Wade of Bond University, in May 2006 and has now moved into the a dozen who have been accredited as who have done so much to promote implementation phase. advanced mediators, more than 50 who mediation in Australia and raise the stand- Laurence needs little introduction, nominated to undertake pro bono media- ards of mediation in Victoria, are present however, briefl y, Laurence Boulle joined tions for recent sporting events and asso- tonight. Various other persons who have Bond University as a foundation staff ciated disputes, and more than 150 who had a signifi cant role to play in raising the member in 1988. He served as Chair

30 31 of the Federal Government’s National accredited as a mediator of the Supreme of the ADR Bulletin since 1997. He has Alternative Dispute Resolution Advisory Court of Queensland and conducts a written on constitutional law, employment Council 1999–2003 and in 2004 was private mediation practice. For many law, mediation and dispute resolution. appointed to the National Native Title years he and Professor John Wade, also His latest book, Mediation Principles, Tribunal (the specialist mediating body for from Bond, conducted mediation courses Process and Practice, published in 2005, Native Title matters operating independ- for the Victorian Bar. I did my course in is a highly recommended text. ently of the Federal Court’s native title 1993 along with many others at the Bar. I ask you to welcome Professor jurisdiction) as a part-time member. He is Laurence Boulle has also been the editor Boulle.

Laurence Boulle, Professor of Law, Bond University

T is a great pleasure to congratulate tionalised and accepted within the legal allow for significant “grand-parenting” you on the occasion of the tenth anni- culture and by prospective clients, and, into the new scheme. Iversary of the Victorian Bar Mediation sadly some might say, it has become more However, if we look globally at the Centre. It is particularly flattering that respectable. For some lawyers and other mediation field, developments are occur- you have invited an academic to talk to professionals practice has boomed, and ring at a frenetic pace. While we have a group of practitioners. You well know become relentless and demanding. In the in the past looked to North America for that the Centre has worked very well in past there has been a syndrome of “recov- inspiration, in recent years the countries practice, but as academics we always say, ering lawyers”, there is now a syndrome of of Europe, including the United Kingdom, “it may work in practice but does it work “recovering mediators”, though there are have taken significant steps in the devel- in theory?” also frustrations among private mediators opment of mediation as a profession. In All anniversaries coincide with others. about the lack of consistent demand for a number of European countries there is This is the very day on which the Northern their services. now legislation or other forms of regula- Territory’s voluntary euthanasia scheme There has in recent years been an tion for mediator standards, quality and came into being. That scheme suffered an increasing emphasis on standards and accountability. While in this country we early demise, so to speak; yours is merely codes of conduct, and I was delighted have opted for a self-regulation model in its robust adolescence. that your outgoing chair David Levin QC there is little doubt that European devel- It is also fitting to acknowledge the pio- played a prominent part in the develop- opments have much to teach us. Certainly neers of mediation amongst the ranks of ment of the proposal for accreditation to our practice of four or five days’ media- Melbourne barristers. This includes Henry a National Mediation Standard. The Law tion training does not even compare with Jolsen QC, Bill Martin QC, George Golvan Institute of Victoria, VADRA and several some civil law countries which require QC, Mark Hebblewhite, David Levin QC, individual Victorian mediators were also between 150–600 hours of education and many others who in the late 1980s involved in the extensive consultation and training over extended periods of and early 1990s were pioneers in shift- process underlying the initiative. As with time. ing the legal culture in the direction of the ADR Standards document produced As regards the future there is no doubt dispute resolution. I turned to Google to by NADRAC some years ago, there has mediation will survive both within the discover who in Melbourne might be the been an attempt to balance the need for legal culture and outside it. It will never be best mediator of them all — I obtained some degree of consistency in mediation completely dominated by one profession. 526,000 hits in .29 of a second. As practice with the value of diversity in It will be modified and transformed by usual so much information but so few forms and styles of mediation throughout innovation, consumer demands, competi- answers. the country. I hope it has succeeded in tive marketing and lessons from abroad. The Bond Dispute Resolution Centre this objective. It is important to empha- Already med-arb has become an accepted has thoroughly enjoyed its long associa- sise, for those who have heard inaccurate feature of the ADR landscape and in due tion with the Victorian Bar. This goes back rumours, that the proposed scheme is course one can anticipate customers to the early 1990s when we conducted the an entirely voluntary one and does not demanding the services of lawyer-media- first mediation workshops for Melbourne constitute a licensing system for current tors without any legal representation. barristers and has continued ever since. or prospective mediators. There are cur- However, the process-based model taught Each year we welcome a number of bar- rently committees working on the details in training workshops has tremendous risters to our mediation workshops on the of the scheme, for example in relation to potential value in terms of its ability to Gold Coast and to our advanced work- training, the code of conduct, the national assist parties to communicate, negotiate shops in Noosa. We are also delighted register of mediators accredited according and generate interest-based solutions. It to note that your incoming chair, Ross to the standard, and so on. The real effec- will remain the start-up kit for mediators Maxted, is a “graduate” of one of the early tiveness of the system will be determined for generations to come. Bond mediation workshops. by which institutions, public and private, The Bond Dispute Resolution Centre Much has happened in terms of buy into it once it is established. sends fraternal greetings to you and looks mediation developments over the past It is worth noting in passing that your forward to a fruitful continuing association decade. Back then, as they say, there own recently revised Bar accreditation with the Victoria Bar Mediation Scheme. were no iPods, Big Brother or Virgin Blue. scheme for mediators is in some respects Hopefully, weather permitting, we shall be Simultaneously with those developments, even more advanced than the national together again in ten years’ time to reflect mediation has become more institu- standard. I have no doubt that this will on another decade of achievement.

30 31 News and Views 2006–2007 Victorian Bar Council

Front row: Middle row: Back row: Michael Colbran QC (Honourary Richard McGarvie S.C. Fiona McLeod S.C. Treasurer) Charles Shaw Tony Burns Peter Riordan S.C. (Senior Vice- Simon Pitt (Assistant Honourary Justin Hannebery Chairman) Secretary) John Digby QC Michael Shand QC (Chairman) Mark Moshinsky David Neal S.C. Paul Lacava S.C. (Junior Vice-Chairman) Kate Anderson Daniel Harrison Jack Fajgenbaum QC Tony Pagone QC

32 33 News and Views News and Views 2006–2007 Victorian Bar Council Victorian Bar Superannuation Fund Appointment and Retirement of Barfund Board Directors An extract from an address to the Barfund Board on 2 October 2006 by the Chairman, Philip Kennon QC

OLLOWING the recent board the appointment of our investment election I would like to wel- advisors, the introduction of member Fcome our two new directors, investment choice, unitisation and an previously alternate directors, David allocated pension and the recent grant, Collins and Stephen McLeish. They after much effort by all, of our APRA replace Jonathan Beach and Melanie Licence. Sloss. Melanie became Jonathan and a director in 2001. Melanie have Her dedication retired after a and attention to combined 18 years detail were always of remarkable well beyond service. the call of duty. Jonathan was Melanie was the appointed as a major contributor trustee in 1993 Jonathan Beach QC Melanie Sloss S.C. to many complex before Barfund was incorporated. Ever and never-ending compliance issues. since, Jonathan has made a magnificent Her efforts in relation to Barfund’s suc- contribution to Barfund’s development, cessful APRA Licence application were standing and service. His views on any enormous. issue were always highly valued. Major On behalf of the board I thank them developments over this time include very much.

John Larkins furniture individually crafted Desks, tables (conference, dining, coffee, side and hall). Folder stands for briefs and other items

Absent: in timber for chambers and home. Timothy Tobin S.C. Kerri Judd Cahal Fairfield Workshop: William Alstergren (Assistant 2 Alfred Street, Honourary Treasurer) North Fitzroy 3068 Michelle Sharpe Penny Neskovcin (Honourary Phone/Fax: 9486 4341 Secretary) Email: [email protected]

32 33 News and Views Celebrating Excellence Australian Women Lawyers’ Inaugural Conference, Sydney 29–30 September 2006

ITH about 200 attendees, the theme of the inaugural Australian WWomen Lawyers conference at the Sheraton Sydney, “Celebrating Excellence”, brought together an array of women lawyers who have all excelled in their various specialities. Although all but one of the speakers, were female judges, lawyers, or academics from around Australia (with the exception of His Honour Chief Justice Spigelman who opened the Conference on Thursday evening) the substantive issues raised in the papers were equally applicable to men and women alike. The conference offered papers on various aspects of the three streams, Property, Litigation and Corporate Governance. In addition there were three joint Human Rights Plenary sessions. Each speaker gave a personal anecdote during their speech. Nicola Roxon, Shadow Attorney-General, related how on leaving the High Court as Associate to join a Trade Union, Mary Gaudron had Present High Court Justice Susan Crennan and former Justice Mary Gaudron. presented her with a silver hippo, say- ing “where you are going you will need encouraged diners to take to the dance what she knew from personal experience a thick hide”. Professor Kim Rubenstein fl oor. Excellence in dance was enthusi- would inevitable be a lonely and demand- told of running for Prime Minister at astically undertaken with judicial diners ing role, and acknowledgment of the diffi - school mock-elections where her party leading the way. cult and often lonely task ahead, followed was successful but she herself failed to With so much to choose from it is hard by Her Honour Justice Susan Crennan QC win her seat. Which taught her the lesson to focus on any one highlight but perhaps leading the standing ovation at the end of that if you are not for yourself who are it was Mary Gaudron QC’s entertaining, Mary Gaudron QC’s speech. you for? Professor Hilary Charlesworth informative and challenging speech about Special thanks to then President of encouraged us with her successful career, the rule of law, followed by the warm pub- AWL, Caroline Kirton, and the AWL com- notwithstanding her spectacular failure at lic congratulation and best wishes to Her mittee for all their hard work and efforts Articles and in private practice. Mary-Jane Honour Justice Susan Crennan QC on her in organising this outstanding inaugural Crabtree commented that one’s career can appointment to the High Court Bench for conference. be a success even if it doesn’t go to plan; she had always planned to become a vet. The conference closed with a Gala Dinner with the speaker, June McPhie, In opening the conference, the Honourable Justice Mary President of the Law Society of NSW, who Gaudron said: is based in Cooma, explaining how she had warned the local newspaper of the ADAM President, Your Honours, lawyers, albeit, perhaps belatedly, that potential danger to the public after being Friends, Ladies and Gentlemen, I they are different and [also] an assertion bitten by a disease-infected bat, only to Mcannot tell you what a thrill it is of their right to be so.” be rewarded with the headline “Bat Bites to be here at the Inaugural Conference I added that: “I welcomed it because it Lawyer and Dies”. of Australian Women Lawyers. When I [also] seemed to me to have implicit in it After two solid days of papers, Saturday spoke at its launch in Melbourne on 19 a demand that the legal profession take night was for relaxation, catching up and September 1997, I said that I welcomed stock of itself and of those practices which cementing new friendships. The enter- the formation of Australian Women ha[d] resulted in the under-representa- tainment was provided by a female comic Lawyers because: “it seem[ed] to me that tion of women in important areas of legal trio of singers The Chandeliers who it [was] an acknowledgement by women practice and in the judiciary, not because

34 35 News and Views

women should have a larger share of the text, the pursuit of excellence necessarily But the principle of equality allows only spoils of legal practice, but because they entails the pursuit of just legal outcomes. of relevant difference. It does not permit ha[d] the potential to improve the law and Fundamental to the notion of a just legal of distinctions based on differences which the administration of justice. outcome is the principle of equality. I are of no consequence, which is generally The holding of this conference on the call it “the principle of equality” because the case with respect to race, religion, or theme “The Pursuit of Excellence” seems it is so described in international law. sex. I say “generally the case” because to me to indicate a real determination on However, in truth, it is probably incorrect those differences may give rise to differ- the part of the women lawyers of Australia to assert the existence of such a principle ent needs which must be acknowledged if to improve the law and the administration in the Australian context. True it is that there is to be real equality. of justice. we have State and Federal anti-discrimi- Because the principle of equality allows It is, I suppose, a truism that law—more nation laws. We also have a limited con- for individuality, it does not permit of ster- particularly, the rule of law — is indispen- stitutional guarantee with respect to the eotypes. Thus, for example, it does not sable to social welfare, and to economic equal application of State laws to persons permit of views such as those expressed and commercial activity. There was a resident in other States — a guarantee by Jeremy Bentham in his Principles time, not so very long ago, when we could and Morals of Legislation — views comfortably think of social, economic and which were influential in Anglo-Australian commercial welfare in terms of the body jurisprudence well past their use-by date. politic constituting the nation state. Our The holding of this Thus, he could claim that men were enti- tendency was to think in terms of our own conference on the theme tled to superior legal rights because they nation state. In the face of the geopoliti- had physical power, whereas women were cal changes wrought in the past twenty or “The Pursuit of Excellence” “delicate, inferior in strength and hardi- thirty years and the consequential glo- seems to me to indicate a ness of body, in point of knowledge, intel- balisation of commerce and industry, we real determination on the lectual powers and fairness of mind”. Of can no longer afford such insularity. The part of the women lawyers course, no-one would say that to-day — at absence of or a breakdown in the rule of least no-one whose name one would care law in any nation state inevitably has con- of Australia to improve the to mention at the inaugural conference of sequences for us all. law and the administration Australian Women Lawyers. That is not to The absence of or a breakdown in the of justice. say, however, that similar generalisations rule of law is usually first indicated by the are not said — or worse, in a legal context, absence of equality — by the oppression thought but not articulated — of people of ethnic or religious minorities, for exam- which has benefited barristers who wish to of different faiths or cultures and, even, of ple, or the suppression of political dissi- practice interstate but, I think, few other our indigenous Australians. dence or, as often as not, by the unequal Australians. And, of course, we glibly boast If there are to be just legal outcomes, treatment of women. that we are an egalitarian society. But we it is imperative that our lawyers and There is nothing pretty about a society do not accept the principle of equality as member of the judiciary be sensitive to that lacks the rule of law. The opposite a yardstick by which to measure whether the question whether, in any particular of the rule of law is not, as you might laws are good or bad; or to inform as to case, there are relevant differences which suppose, anarchy. It is coercion and cor- the meaning of laws that are ambiguous or should be taken into account or whether ruption. It is the rule of might, of armed uncertain; or as to the application of laws there are differences which, being irrel- militias and, sometimes, of religious fun- or the exercise of discretion. Moreover, evant, should be ignored. Particularly is damentalists. Its consequences are pov- we do not have a well-developed idea of this so in areas, of which there are many, erty, ill health, dislocation, refugee camps what is meant by “equality”. And although where the outcome depends on personal and, even, terrorism. we repeat the mantra that “all are equal evaluation, such as the assessment of Fortunately, our own nation state is before and under the law” we often do not credit or the exercise of discretion. It is one based, in large part, on respect for fully understand what that entails. not unusual in some quarters to scoff at the rule of law. Indeed, the rule of law Equality is not uniformity; it is not notions such as “cultural and gender sen- cannot exist without respect for and con- sameness. How could it be when we are sitivity”. Whatever one might think of that fidence in our laws, our lawyers and our all different with different talents, differ- expression, it does refer to matters which legal institutions. Ironically, that respect ent intellectual abilities, different needs, are essential if the principle of equality is depends, in part, on openness to criticism different interests, different priorities and to be implemented. Indeed, one is entitled — criticism of our laws, our lawyers and different personalities. Equality is the rec- to wonder to what extent lack of cultural our legal institutions. Not all criticism is ognition of relevant difference and, where sensitivity has resulted in the unequal either fair or informed; and from time to there is relevant difference, adaptation treatment of Aboriginal Australians by our time, its purpose is short-term political or appropriate to that difference. Thus it is legal system commercial advantage, rather than ensur- that equality allows for individual talent For want of a better expression, let ing just legal outcomes. Such criticism has or, as was said in the French Declaration me say something about “cultural and the potential to undermine confidence in of Human Rights in 1789: gender sensitivity”. Doubtless, these are our judicial institutions and, ultimately, in attributes much to be desired in judicial the rule of law. The only effective counter all ... are equally eligible for all honours, officers — particularly those engaged in to criticism of that kind is the pursuit of places and employments according to their trial and first instance work. But, in truth, excellence. different abilities, without any other dis- they are qualities necessary for any good It probably does not advance the dis- tinction than that created by their virtues litigation or trial lawyer. They are neces- cussion very far to say that, in a legal con- and talents. sary to enable the lawyer to put the client’s

34 35 News and Views

real case and to make a fair and informed try’s laws should determine the outcome hardly expect other countries to respect evaluation of the witnesses and their evi- or, even, whether there was some interna- international law and treaty obligations if dence. Few, if any, lawyers receive train- tional treaty that should be applied. The we do not do the same. The time has come ing in these matters; and, by and large, it past quarter of a century has seen these when, if only for reasons of enlightened would be naïve to expect these qualities to issues rise to the fore in several areas of self-interest, we must respect interna- develop in the normal workplaces of busy legal practice. In the main, these issues tional law in the same way that we respect barristers and solicitors. Perhaps more still remain to be determined by national our national laws. disturbing, is the fact that these quali- courts. Indeed, even the recently cre- The final matter I wish to raise con- ties are not usually taken into account in ated International Criminal Court has cerns the wisdom or otherwise of leaving assessing whether the person concerned jurisdiction only when national courts the application of so much international is or is not a good lawyer. fail to act. However, I think a number of law to domestic tribunals. In the field of I know that I run the risk of being issues emerge as critical for the rule of international commercial law, the decision accused of thinking in stereotypes or of law. seems to have been made that, to a large using over broad generalisations, but I The first issue relates to the content of extent, international arbitration is prefer- have long thought that there was a good international law that is to be applied in able to resort to national courts. This is chance that women lawyers might be more our own courts. To take an example which, an area of which I am largely ignorant sensitive to genuine difference and more I am sure, will be familiar to many of you, but one of my former associates, Lucy alert to reasoning based on irrelevant dis- it is sufficient to refer to the International Martinez, is going to talk about tomorrow. tinctions than most of their male counter- Treaty with respect to the Abduction of However, there is a real possibility that in parts. It is for this reason that in launching Children, which is often the subject of liti- areas governed by international treaties, the Australian Women Lawyers I spoke gation in our Family Court. And there are different national courts will take a differ- of the hope that women would make a other areas of the law in which the rights ent course, whether in interpretation or significant difference to the administra- and obligations of the parties depend, in application. It may be that it is time for tion of justice and regretted their under ultimately, on the terms of treaties nego- consideration to be given to the establish- representation in important areas of legal tiated at an international level. And I do ment of specialist international appellate practice and in the judiciary. not think that there is any real prospect bodies to ensure uniformity. That would Although not ten years have passed of a diminution in the importance of be an important step towards an interna- since the launch of Australian Women international treaties to legal outcomes in tional rule of law. Lawyers, there seems to have been sig- Australia any time in the near future. I do It may seem that, in these last remarks, nificant improvement in the position of not criticise this development: I think it is I have strayed somewhat from my topic. women within the legal profession and inevitable. But as lawyers, we are all con- However, I have mentioned them not just within the judiciary. That is not to say cerned to ensure just outcomes and those because I think the pursuit of excellence that the present position is ideal but outcomes depend not only on the way the in the law is necessarily going to require there has been a growing involvement of law is applied but on the content of that an understanding of international law women in the professional organizations law. Thus, I would encourage those of you but because I think equal justice truly and a noticeable presence in important who are involved in specialist professional requires the development of an interna- commercial litigation in all States. Women bodies where international law has a role tional rule of law. have been appointed to high judicial to play to think seriously as to how best to As I have said many times, I believe office in significant numbers, particularly have an input into its content. women lawyers make and will continue in Victoria and Queensland. There have The second matter relates to the courts to make an important and distinctive con- been appointments to the Federal Court of other countries. It is inevitable that the tribution to the law and the administra- and, of course, we were all thrilled by the rights of Australians will, from time to tion of justice. I believe that you are well appointment of Sue Crennan to the High time, fall for determination by reference placed to ensure equal justice and thereby Court. I am sure you will permit me as to international law as applied in other maintain what, I think, is Australia’s great- Patron of Australian Women Lawyers to countries. I can assure you that we can est asset, the rule of law. use this occasion to offer Sue our warmest congratulations and best wishes for what, I can assure you, is, inevitably, a lonely and demanding life As I said, the position of women in the ������������������������������������������������� legal profession may not yet be perfect ����������������������������� but developments in the past decade do provide grounds for optimism. They do, I ����������������������������������������� think, give us reason to look to the fixture ������������������������������������������ rather than dwell on past events. And so, what of the future? Earlier on, I said that ��������������������������������������������� we could no longer comfortably think of ��������������������������������������������������������� the rule of law solely in term of nation ������������� �������������������� states or, indeed, our own nation state. There has long been an international ��������������������������� aspect to the practice of law whether in ��������������������� terms of ascertaining the country in which a matter should be litigated, which coun-

36 37 News and Views Retiring Chairman’s Dinner

Chairman Michael Shand QC and Retiring Chairman Kate McMillan S.C.

HE Retiring Chairman’s Dinner was held in the Essoign on Thursday T26 October 2006. This is always a very special occasion, hosted by the new Chairman in honour of the Retiring Chairman, Bar Councillors and others who have rendered exceptional service. At this dinner, the Bar recognises and celebrates those who have served and, in many cases, continue to serve the Bar on various Boards and Committees, and in working on submissions to Government and Law Reform agencies. Fittingly, at this dinner, there is also recognition of the support, the sacrifices, and the affection of partners and spouses Wendy Kennon, Diana Sher, Jeff Sher QC and Philip Kennon QC. which free and enable the Bar members to do all they’ve done for the Bar. It is Kate McMillan’s year as Chairman saw December 2005, a few months into Kate’s the only regular dinner in the Bar year to a number of major initiatives, not least the term as Chairman. which partners and spouses are invited. much postponed commencement of the Former Associate Professor Susan The Chairman, Michael Shand QC, remainder of the Legal Profession Act Campbell conducted her review of legal said of Kate McMillan S.C. that she 2004 on 12 December 2005. education and training services in Victoria “served with distinction as Chairman. Only a very few sub-sections of the during Kate’s year — including review of She was assiduous in her duties and Act1 came into force nearly a year earlier, the Bar Readers’ Course and the Bar CLE always looked after the best interests of on 15 December 2004. The whole of the Program. the Bar.” rest of the Act only came into force on 12 Work on the Professional Standards

36 37 Melanie Sloss S.C. & Kate McMillan Paul Cosgrove S.C. and Michelle Cathryn Wheelahan and Michael S.C. Gordon S.C. Wheelahan S.C.

Ian Hill QC, Denise Bennet and Ian Fleur Forsyth, Simon Pitt and David Kate McMillan S.C. and Paul Lacava Matthews. Neal S.C. S.C.

Scheme continued, and the decision was taken to prepare an application to the Professional Standards Council. The Council approved an Anti-Discrimination Policy for the Bar. There were increases in a number of Legal Aid fees, and there was agreement with Victoria Legal Aid to establish a scheme for briefing both senior counsel and a junior in a wider range of criminal cases than the previous VLA Handbook had permitted. Mark Dreyfus QC. Michael Colbran S.C. There were major submissions on mat- ters such as Advocates’ Immunity and the came to the Bar; and went on to include: The Chairman spoke of grand occasions Federal Bill (ultimately withdrawn) that 12 years on that Committee; 11 years on in the Essoign master-minded by Kate would have extended offshore detention the Bar Council; a remarkable eight years McMillan: the sell-out dinner to celebrate and processing of refugee claims by per- on the Ethics Committee — Chairman of Susan Crennan’s appointment to the High sons arriving in Australia unlawfully by sea. that Committee for four of those years; Court; the wildly successful Great Debate; Other significant submissions addressed three years on the Counsel Committee; and the second Living Legends dinner in proposed increases in the jurisdictions and six years on the Supreme Court Board August 2003. of the County Court and Magistrates’ of Examiners. Beyond the Bar, the Chairman Court; and the Victorian Associations He spoke of the lasting legacy of por- spoke of Kate’s membership of the Incorporation Act and Coroners Act, both traits in Owen Dixon Chambers, in respect 13th Commonwealth Law Conference under intensive review. There was also the of which Kate has played a significant role Committee, which worked for two years ongoing review of the Crimes Act. in their commissioning, acquisition or organising the very large and very suc- The new Bar website came online, acceptance — and their unveiling: the cessful conference here in Melbourne in and was launched by the President of portrait of Sir Ninian Stephen; portraits of April 2003. the Court of Appeal. The first fruits of the 10 Supreme Court Judges spanning years All six other retiring members of the Oral History Project became accessible on from the appointment of Sir Charles Lowe Bar Council attended the Dinner: Mark the new website: interviews with Charles in 1927 to the retirement of Sir Alistair Dreyfus QC, David Beach S.C., Philip Francis AM RFD QC, Philip Opas OBE QC, Adam and Sir Douglas Little in 1974, the Dunn QC, Iain Jones S.C., Rachel Doyle Judge Liz Gaynor and Brian Bourke. gift of the family of the late Garrick Gray; and Liza Powderly. The Chairman spoke of Kate McMillan’s the portrait of Mr Justice Crockett; and The Chairman said that Mark Dreyfus 23 years service to the Bar which the Images of Women in the Law series “brought to Council deliberations a per- began with her joining the Bar Library including, most recently, the portrait of spective beyond that of the Bar. His keen Committee only a couple of years after she Chief Justice Warren. intellect and experience will be missed.”

38 39 Mark played a significant role in the Bar on Practising Certificate applications and Committee, and Deputy Chair of the insuring with the LPLC. He also served renewals, the work of the Applications Commercial Bar Association Section on four years on AAT Consultative (Heavy Review Committee has been very sub- Insurance & Professional Negligence. Users) Committee; four years on the stantial. The Chairman said: “It was Cameron’s Ethics Committee; and several years on Rachel Doyle served on the Council for hard work that ensured we have a Good the VCAT Consultative Users Groups and three years. She served three years on the Conduct Guide, the book we published the Equality Before the Law Committee. Bar/BCL Accommodation Committee, and the other day. Thank you Cameron for this Since November 2003, Mark has been the a year on each of the Counsel Committee work, and all you have done on the Ethics Bar’s Law Council of Australia Director. and the New Barristers’ Standing Committee.” David Beach served on the Bar Council Committee. “Jim Merralls has served on a number for a total of almost 14 years: three years Of her, the Chairman said: “I am sure of committees, but what stand out are his in the junior category; seven years in Rachel will return to the Council in the 13 years on the Law Reform Committee; the middle category; and the best part years to come, and be one of the future his 28, or so, years on the Council of Law of four years in the senior category. He leaders of this Bar.” Reporting in Victoria; and his Editorship was Assistant Honorary Treasurer for five Liza Powderly served on the Council of the Commonwealth Law Reports since years, from 1994 to 1999. Most recently, for a year. The Chairman said that in 1969 — some 37 years and still counting. he was Honorary Treasurer 2004–05 and that short time she made a real impact Jim is the elder statesman of the Bar.” 2005–06 and made a substantial contribution to Michelle Gordon made a significant Over the course of the years, David the organization of the ceremony for the contribution to the work of the Ethics served on many committees — and for signing of the Bar Roll by the September Committee. She continues to chair the significant terms of years: six years on the 2006 readers in the Supreme Court library Continuing Legal Education Committee Accident Compensation Bar/Law Institute in the presence of the Readers’ mentors, and her contribution in this area is invalu- Committee; five years on the Counsel family and friends. able. Committee; 15 years on the Common Bar Of the retiring Bar Council members, Michelle also organized the annual Association Committee; nine years on the the Chairman said: “All have contrib- Opening of the Legal Year breakfast in County Court Business Process Re-engi- uted to the work of the Council. All are the Chapter House at St Paul’s Cathedral. neering Committee; 10 years on LawAid; missed.” That breakfast was common to all the vari- 11 years on Melbourne Bar Pty Ltd; and In connection with Bar Council retire- ous observances marking the Opening of nine years on the Professional Indemnity ments, the Chairman also noted the the Legal Year. Michelle established the Insurance Committee — and these are retirement from the office of Honorary breakfast and was its sole organiser and only the stand-out examples of five or Secretary of Kate Anderson after “three driving force over many years. more years’ service. years distinguished service” first as Other notable retirements include The Chairman described David as an Assistant Honorary Secretary, then as Jonathan Beach QC as of 1 October 2006 outstanding Treasurer. Honorary Secretary of the Bar Council. He from some 13 years service variously as a David Beach continues as Chairman of expressed pleasure that “Kate is now an Director and Deputy Chairman of Barfund the Trustees of LawAid. He has also joined elected member of the Bar Council”. and Melanie Sloss S.C. from some five- the Indigenous Lawyers Committee, and The Chairman singled out for special and-a-half years service as a Director of the Working Group on the Civil Justice mention the three retiring members of Barfund. A tribute to their years of serv- Review. the Ethics Committee who were present ice by the Chairman of Barfund, Philip Philip Dunn served 11 years on the at the Dinner: Cameron Macaulay S.C. Kennon QC, appears elsewhere in this edi- Council. The Chairman said he would retiring from five years on the Committee; tion of Bar News. The Bar is indebted to be “greatly missed” from the Council: James Merralls AM QC, retiring from four both of them for their invaluable service. “For a very long time, you have been the years on the Committee; and Michelle On behalf of the Council, and of the leading criminal lawyer on the Council. It Gordon S.C. retiring from four years on Bar, the Chairman thanked everyone was your idea to record an oral history of the Committee. present. He thanked all who had served the Bar which we now see happening on It has been said that the work of the the Bar, and their partners and families. the Bar’s website. We will also miss your Ethics Committee is an enormous and He concluded: “Thank you all for com- unfailing good humour.” constant commitment; that members of ing this evening. This is always a very spe- Iain Jones, who was recently appointed that Committee are available to be called cial celebration — and a particular honour Senior Counsel, served on the Council for 24 hours a day, seven days a week. Legal for the new Chairman to thank the retiring three years. He had previously served vacations apart, the Committee meets Chairman and Council members, and all of for two years on the Bar Law Reform fortnightly, with substantial materials you who have done so much for the Bar.” Committee. requiring careful scrutiny before each The Chairman noted Iain’s three years meeting. Note on the Counsel Committee and two years The Chairman noted that, over and 1. Legal Profession Act 2004 ss. 3.5.2(7) & on the Applications Review Committee. above their extraordinary commitment (9) and 8.1.1(1) (provisions enabling the The Counsel Committee is one of only and service on the Ethics Committee, Bar to insure with the Legal Practitioners two Committees established in the Bar each one of them had also served on other Liability Committee; and those authorising Constitution (the Ethics Committee is the committees, and in other ways. funding of the establishment of the new other); and membership of the Counsel Cameron Macaulay had served five regulatory framework — the new Legal Committee is limited to the Bar Council. years on the Professional Indemnity Services Board, the Legal Services Com- Particularly in this first year of operation Insurance Committee, and is a member missioner and the transfer of jurisdiction to of the new Legal Profession Act 2004 of the Professional Standards Education VCAT).

38 39 News and Views Women’s Legal Service Victoria Celebrates 25 Years

Graeme Thompson

HE Women’s Legal Service of Victoria hosted a birthday party Tafter 25 years service to the Victorian community. It was definitely a party occasion and yes there was lots for present and past members of the board, staff and volunteers, guests and honoured dignitaries to celebrate after so much impressive service to women clients. There were toasts by Pamela Tate S.C. and the Honourable Justice Brown both of whom acknowledged the many talented and distinguished women and men lawyers who had contributed to the organisation. The chair of the Women’s Legal Service, Jennifer Dillon who has given such committed service to this organisation introduced the guest speaker Magistrate Di Fingleton. Ms Fingleton is a Magistrate at Caloundra Magistrates’ Court and former Chief Magistrate of Queensland. There is no doubt Magistrate Di Fingleton is an extraordinary human being. She spoke of Gillian Dallwitz, Manager, Women’s her experience as being a judicial officer Legal Service Victoria and Family Law and being sent to prison and then resum- Legal Service. ing her place on the bench. Her message for us all is, “Never give up, never give up, never ever ever give up ….” Amongst the in prison for six months, that I under- themes of her speech is that women need took reading in and around the topic to be constantly vigilant and to explore of “Resilience”, both as an intellectual and examine the systems. If they do not, exercise and as an attempt to see some their voice will not be heard but when all way through the mire which had become else fails her message was “make sure you my life! survive!” Here is an edited version of her At the half-way where I spent the last speech: four months of my sentence, life was eas- “Let’s face it! It is very unusual for a ier but still the loneliness, the wait. They judicial officer, who has been to prison, don’t call it “doing time”, for nothing! to resume their place on the bench. One As part of my sentence, I performed societies to label people as victims, and reason was so that I could be recognised community service at the Abused Child to focus on their problems, rather than as a person capable of putting the past Trust, an organization which, as the name working with the strengths and their behind her and showing resilience. suggests advocates for and provides resilience. Another reason was to that I could go up therapeutic treatment for abused children Resilience is not, on the face of it, a or down. Actually I love being a magistrate and, importantly, their families. My duties very complicated idea. Not a new idea, and administering justice, I believe, fairly, at the Trust involved researching the topic either. Seneca — the Greek philosopher humbly, with compassion and insight, but of Resilience. As part of my research, I said 2,000 years ago — “We must expect with toughness when required. read Anne Deveson’s book Resilience, anything” … “there is nothing which So, to the topic, then, of my speech published by Allen & Unwin. Fortune does not dare”. In less affluent — what is resilience and why women law- Ms Deveson’s book grew out of a dis- and comfortable times, life itself was yers need it. cussion she had with friends, when they tougher, every day and no-one survived It was when I was at my lowest point, were questioning the tendency in Western who was not tough. These days it has

40 41 News and Views

come to mean an ability to confront adver- The sort of humility I mean is that which It is indeed a huge compliment to be sity and still find hope and meaning in life. has come to me from experiencing love told that I can inspire people through my Put more simply, in the colloquial — “What and kindness at a time when I thought experiences and what I have learnt from doesn’t break you makes you strong”. I had lost so much, from people, espe- them and how I can articulate it into a Resilience can and needs to be found cially women, who had themselves never message of hope. I hope in some way I in communities dealing with disasters had much nor had much to look forward have done that tonight. — wars, floods, famine. We are all famil- to. However, a suggestion –— some iar with the resilience in nature — the Some of the women I met in prison, may consider a surprising suggestion. green growth after the bushfire. We are with so much pain in their past and cur- Until we have a sufficient network of also familiar with those people who stay rent lives, showed me great and small strong and more importantly, powerful women in positions of power, who feel free and secure enough to support us fully, I think it is a good idea to have a strong male mentor or two to help you through a career’s many hiccups and dif- ficulties, especially if you want to make a difference. That man can be a judge or magistrate, a senior barrister, or a senior partner in a law firm. The image I see of myself as the first female Chief Magistrate of Queensland, was as one of those female figureheads on the front of sailing ships in times gone by — fighting the huge seas, alone, vulnerable. Although I had some powerful friends in high places – male and female, (still do) — once the matter of the complaint against me got as far as an investigation by the CMC (said by the High Court to have been totally unnecessary), many of those powerful people were helpless to comment ... Somewhere along the line, some strong male men- tor may have been able to stave off the rollercoaster of disaster which lay in wait for me. So, my advice may be unexpected but I stand by it and many of you may have already worked that out. You will, how- ever, always get your strength from your feminist network. Back to our celebration tonight. Last year, I attended a function to launch the book A Woman’s Place, published by the Supreme Court Library of Queensland. I am honoured to be one of the entries in this book, which records 100 years of Queensland Women Lawyers. In the Foreword, The Honourable Mary Gaudron says something which I think is of great to rebuild after a bushfire, while others kindness. It is as significant to receive a relevance to the achievements of the leave. Or those who stay on the land, small gift of toiletries or stationery from Victorian Women’s Legal Service. She despite years and years of drought. a woman who receives a small amount of said: In the case of indigenous communi- money per week for meaningless work ties in Australia — violence, alcoholism in a prison, as it is just as wonderful Equality is fundamental to the maintenance and unemployment can lead to despair. to receive the gift of a wonderful book of the rule of law. It is the cornerstone of Noel Pearson, the Aboriginal leader from from a friend who has put much thought justice. Equal justice requires not only Hopevale has said that “with resilience into her choice. The gifts of humour and equal treatment by and under the law, but comes strength and action; without it being trusted with a woman’s story, were equal access to law. comes weakness and victimhood”. also of great significance to my ability to I should immediately add that the withstand the deprivation of the one thing Congratulations on 25 years of provid- greatest lesson for me out of the past few I always believe I was assured of in my life ing equal access to the law for so many years of adversity, has been “humility”. — my personal freedom. women.”

40 41 News and Views News and Views

OPENING OF THE LEGAL YEAR 2007

MONDAY 29 JANUARY 2007

Ecumenical Observance St Paul’s Anglican Cathedral Corner of Swanston and Flinders Streets, Melbourne, at 9:30 a.m.

Roman Catholic Observance (Red Mass) St Patrick’s Roman Catholic Cathedral Albert Street, East Melbourne, at 9 a.m.

Jewish Observance The East Melbourne Hebrew Congregation 488 Albert Street, East Melbourne at 9:30 a.m.

Buddhist Observance The Fo Guang Yuan Art Gallery 141 Queen Street, Melbourne at 9 a.m.

Please note: (1) Please note the different commencement times: 9 a.m. at St Patrick’s, and for the Buddhist observance; 9:30 am at St Paul’s and the Synagogue. (2) Customarily Judges and Counsel robe (with wigs) for the observances at St Paul’s Cathedral, St Patrick’s Cathedral and at the Synagogue. Also, decorations are worn. Robes are not worn at the Buddhist observ- ance. (3) All members of the profession are invited to join the processions. Marshalling for the processions occurs about 15 minutes before the service time. (4) The Governor of Victoria, Professor David de Kretser AC, will be attending the ecumenical observance at St Paul’s Cathedral. (5) Those attending the ecumenical observance at St Paul’s Cathedral are warmly invited to remain briefly after the service for tea, brewed coffee and biscuits immediately after the service in the Narthex at the rear of the Cathedral. This was a very successful addition last year — a good mix of junior and senior members of the profes- sion, academics, Magistrates and Judges socialised together briefly after the service. VCE Legal Studies students from a number of schools, both State and private, will be attending the service in 2007, and have also been invited to the morning tea and coffee. (6) There has, for many years, been a breakfast in the Chapter House of St Paul’s Anglican Cathedral, at 7: 45 a.m., common to all the observances and preceding them. The Chapter House common breakfast has been discontinued. (7) The Greek Orthodox Archbishop is unable to be in Melbourne on 29 January, so there will be no 2007 service at the Greek Orthodox Cathedral of St Eustathios.

42 43 News and Views News and Views Fratricide in Labassa Raymond Gibson

Our man in troubled Fiji files his latest report

HERE is an ambulance service throwing his shirt on a mosquito net, his in Labassa, a large sugar-cane wife Lomavata told him Meki had been Tbased town on Fiji’s second largest looking for Noa and complaining about island, Vanua Levu, but unless you are the stones. No matter. His bad mood a only a few kilometres out of town you would pass. will be struggling to find someone with a Twenty minutes later Meki was outside telephone. Very few village homes have his vale with a torch and swearing at him. a landline. Vodafone, Fiji’s only mobile He came out, he told police, and there was carrier, has managed to penetrate even Meki, with his cane knife and torch. After remote areas in ways that would make a heated exchange Meki, despite the supe- even Coca Cola envious, but reception is riority of arms also grabbed Noa’s fishing usually iffy. Even if you can’t ring anyone spear resting against the side of the house. it is common to see a cell-phone dangling They struggled over the spear, which from a teenager’s neck. Their forefathers snapped in two. Meki hit him with the wore a Tabua (whales tooth). Today’s sta- knife and he ran off, wounded, to avoid tus symbol is Nokia. further blows. As to how he got speared When Viliame Gauna “Meki” of Soasoa — he must have fallen on it, said Noa. He, settlement got speared in the midriff, on for one, did not see it. His brother’s death 29 November 2004, with his brother, Noa was a complete shock to him. Bukai’s four-metre long fishing spear, he Back at the Soasoa settlement, some- was doomed. His instinct was to pull the one must have seen episodes of CSI spear out even if it was buried deep inside Raymond Gibson because one alert villager told everyone it his large girth. Acting on it, it was a fatal was a crime scene and not to go tramping impulse. He stumbled down an embank- Noa had some cuts on his torso so around the place. ment to his own house “vale”, 20 metres before he could be interviewed he was The next day police found the alleged from his brother ’s vale and the site of the taken to the Labassa Hospital. There he murder weapon in two pieces. The spike confrontation he should have avoided. He was found to have five largish lacerations, was as long as a man’s forearm; the handle lay on the grass and complained of being all superficial, but requiring stitches none- made from a solid bough of a tree. The hot and tired. A few village women tried to theless. The Indian doctor’s opinion, in police also found a smashed torch and sit him up and fanned him with pot-lids. It doctor-speak, “… consistent with wounds some large pieces of soapstone. Again, no did no good. His eight children, distressed, inflicted from a sharp object”. Sharp one had a camera. gathered around him sucking up the oxy- object, my foot. Noa later that night told Nearly two years later Noa’s trial com- gen he so badly needed. Froth came from police in his interview with them how it menced in the High Court before Judge his mouth. He looked at his wife of 20 really happened. Gates, a British expatriate and long time years and said “Diula, I am dead”. He then Meki had attacked him with a cane resident of Fiji. Unlike many accused in bled to death on the grass. knife, he said, after accusing him of pitch- Fiji, even those on murder charges, Noa When the police finally arrived he lay ing soap stones on the tin roof of Meki’s was lucky to be represented. His sharp, on the same spot covered by a mat. It was vale and waking up the eight children. legal aid counsel, Ms Samanunu Vaniqi about 9 p.m. and no one had thought to Noa denied any such thing and he had was not yet 30. Having spent three years bring a torch much less a camera. It didn’t a good alibi too. He had intended to go in Labassa, as the only legal aid lawyer matter so much. All the villages told the fishing that fateful day but the boat was serving the whole island, she was keen for police that Noa Bukai had speared his being painted. He had wandered around a transfer. It is common for young prac- brother and Noa was lingering around the Labassa market and found a group around titioners to appear in murder trials. No crime scene, waiting for his arrest, having a Kava “grog” bowl. Of course, he joined counsel of choice for the poor, you take initially run off. With Noa safely in cus- them and topped it up with a few bottles what you can get. tody, and Meki going nowhere except to of beer with a friend under a Baka tree to Two days before the trial I flew into the local morgue, the police returned, at a escape the always-stifling afternoon heat. Labassa to meet the informant (investi- civilised hour the next day, for the crime After eating “some barbeque” he had got gating officer “I.O.”) and interview the scene search. a taxi home, arriving at about 8 p.m. After witnesses.

42 43 Meki’s house where he lived with his eight Children.

Where the incident took place at the rear of Noa’s house. Where Noa kept his large spear.

Labassa has one decent hotel, the Soasoa Settlement lies in some dry Grand Eastern, but a film crew, shooting but well forested foothills 10 kilometres a tropical island based reality television As there were no crime out of Labassa. The houses are generally show, had booked it out for weeks. Great. scene photos prepared I rudely built timber and iron one-room In the centre of town, the Takia Hotel, took my digital camera shacks. Having been informed that the above the Bounty nightclub, had rooms: accused and the deceased’s family had $30 per night with fan. I checked in. The to take some, later to moved on since the incident, there was faded Russell Drysdale prints in each become, in their entirety no way we could ring ahead to forewarn room brought the whole feeling down, if Exhibit P1. the present occupants. Such trifles that were possible. My room was directly are never a problem in Fiji and, once over the nightclub, but they promised an there, we were welcomed with friendly upgrade. At least it had an air conditioner smiles. that was loud enough to drown out every- Labassa Magistrates’ Court to adjourn As there were no crime scene photos thing. a case only there to find, outside court, prepared I took my digital camera to take Eating out was not a problem as the my I.O. Corporal Mosese and his five wit- some, later to become, in their entirety dozen Chinese and Indian restaurants (all nesses in tow. Exhibit P1. unlicensed) across the street had ample “Here are the witnesses you wanted On day one, the assessors were empan- fare so long as you were done by 7 p.m. Sir, but I have to go now because I must elled. Appointed, with some secrecy by None were listed in the directory and as rest at home.” As all the witnesses only the court registrar, no challenges are for a booking, you grabbed a table and if spoke Fijian, that presented an immediate allowed unless there is good cause, such one was unavailable there was always the problem. as a conflict of interest. The assessors same nondescript place next door with “Well I generally prefer the I.O. to be act like a jury giving an opinion on guilt, exactly the same fare on offer. Oh well. I present and I did want to see the crime rather than a verdict. They do not have had curried Walu (local Mackerel) on rice scene.” to be unanimous and the judge, who has and went over to the Bounty nightclub for He obliged my strange ways and so we the final say, is not bound by their opinion. a quiet one or two before retiring. As the all marched up the six flights of stairs to This gives rise to the curious scenario inside of the nightclub was almost in com- my office. that a judge will sometimes rule as inad- plete darkness my white face was conspic- Our star State witness was 13-year-old, missible, material, such as propensity uous. Rowdy groups, drinking Fiji Bitter illiterate, “S”. Although she had made evidence, yet, having heard it, he or she out of long necks, sat in cubicles along the an impressive statement, it seemed that will have to decide on guilt. Then, such walls. I felt safer back in my room with the rather than merely interpret Fijian into mental gymnastics are not unknown in air conditioner as my only friend. English, Corporal Mosese was more inter- the law. In Fiji, as in most developing countries, ested in giving me his version of events. I It is the way of children that they can people find you rather than the other way gave up and got our driver to take us to relate sometimes a tragic event more round. The next morning I went to the the crime scene. directly than an adult. In simple short

44 45 addressed him by his fi rst name. There not refer to the depth of the wound, the was ample room to attack him over an judge asked, “How do you know how deep unsatisfactory crime scene investigation the wound was?” “Rumour,” he replied. but the chance was missed. And then in Note to self: save this for the fi nal re-examination I put: “You found no cane- address. knife senior in your search.” Suddenly the After the demonstration and some judge was interested and began to probe. lacklustre cross-examination through The lack of torches and a somewhat dila- the court clerk acting as the interpreter tory approach to the investigation began (no professional interpreters in Fiji), we to emerge. Defence counsel jumped on adjourned for fi nal addresses. Back to the the bandwagon by asking further ques- Takia and more curry on rice. Noa’s house. tions but never with any hint of criticism The next morning defence counsel and always in the polite was she had con- addressed for 30 minutes; the summing ducted herself throughout. Courtesy is up lasting only 20 minutes. An hour later next to godliness in Fiji. the assessors were ready. “How say you, We adjourned for day two with defence assessor one?” His moment in the sun was counsel telling me there would be no not going to be robbed from him with a dock statement (still used in Fiji) and simple “guilty” or “not guilty”. He began. she would call her client. Noa approached “Having listened to all the evidence, and me as I was leaving and shook my hand in read the agreed statement of facts, and front of the assessors, who are not seques- the witness statements tendered, and tered during the trial, and are free to min- seen all the exhibits, and listened to gle outside court though they are warned counsels’ statements…” and on he went. not to speak to anyone. He then found Noa “guilty”. The other The day of Noa’s big moment he wore assessors followed suit. The judge agreed. View from Meki’s house. an overlarge white shirt with “Avis” Sentence immediately followed. printed above the pocket even though he Noa did not fl inch. He took the news, had never held down a job that involved and the mandatory life sentence that fol- sentences “S” told how she followed literacy. He began his testimony by hon- lowed, as though he had just been told his her father, who carried a torch, up the ouring the judge, defence counsel, the dinner had gone cold. embankment to see Noa. Holding his assessors, the public and “even Mr DPP When the judge left court, Noa came hand, her dad confronted Noa. A big lawyer”. Then, with leave, involving the down from the dock and went over to argument occurred and Noa smashed the court clerk to play himself and he, the the I.O. and resignedly shook his hand. torch, grabbed his fi shing spear, took a deceased, he re-enacted the scene com- Content with the result, Corporal Mossese step back and put it hard into Meki’s stom- plete with the spear, Exhibit P1. Where could not stop beaming. The assessors ach. In cross-examination she denied that were the rubber gloves, the anxious con- milled around this scene and shook hands Meki had a knife. cerns about HIV and hepatitis transmis- with everybody, including mine. I put out Meki’s wife followed but her weeping sion, the occupational health and safety my hand, but aware of the strictures in interfered with a coherent fl ow. Meki preoccupations, I wondered? As the play Australia in talking to jurors, it was an had no knife and her daughter was there. unfolded, one thing emerged: Noa han- awkward moment. Noa had his spear and in the darkness dled the spear as though it were an exten- I wrote the date and the letter “g” Meki yelled out, “I am injured. This boy sion of his body. next to my copy of the charge, slowly has struck me with the spear.” Pure res “If I speared Meki the point of the packed my papers, threw my wig and gestae. spear would have been deeper in him as gown into my robing bag and walked When the I.O. was called, defence this is a strong spear and I can kill a big out into the joyless, hot Labassa after- counsel wished him good morning and shark with this.” As the autopsy report did noon.

44 45 News and Views Launch of the Good Conduct Guide

On Wednesday 18 October 2006 before about 100 invited guests, the Good Conduct Guide was launched in the Neil McPhee room. An initiative of the Bar Council, the project was managed through the authorship and production phases by the Professional Standards Education Committee, chaired by Paul Willee QC. Every barrister on the Bar Roll received a complimentary copy of the book, which provides (inter alia) commentary and guidance on the application of the Bar Rules to everyday professional dilemmas. In launching the Guide Legal Services Commissioner, Victoria Marles said:

T is gratifying to see the culmination issues and the rights and obligations of the work that went into the Good that flow from the client-practitioner IConduct Guide, and to be asked to relationship. launch it on behalf of its authors and In order to do this, the staff of the Legal producers. It is even more gratifying to be Services Commissioner includes com- able to express the view that the finished plaints officers, enquiries officers and a work well justifies the funding provided by Mediation Manager and a Communications the Legal Practice Board. Manager. The Good Conduct Guide is of par- It is also worth noting (and emphasis- ticular significance to my role as Legal ing) that the Legal Services Commissioner Services Commissioner. may receive two types of complaints, and As you know, the office of the Legal unlike the Legal Ombudsman can deal Services Commissioner is new. The role with civil disputes. of the Legal Services Commissioner was The first type of complaint the Legal created by the Legal Profession Act 2004 Services Commissioner may receive is a (the new Act) to establish a “single gate- civil complaint involving a civil dispute. way” for the fair, independent and efficient A civil dispute is any of the following: handling of complaints about lawyers. • a costs dispute in relation to legal costs With respect to complaints, and also not exceeding $25,000; with respect to members of the Victorian • a claim that a person has suffered Bar, I can say that the number of com- pecuniary loss as a result of an act or plaints received about barristers is rela- omission by a law practice or a practi- tively low. tioner; and Receiving and processing com- • any other genuine dispute between a plaints is not all that the Legal Services person and a law practice or a practi- Commissioner is charged with doing. tioner arising out of, or in relation to, Róisín Annesley There are three statutory objectives of the provision of legal services. the Legal Services Commissioner. These The majority of civil complaints received are to: by the Legal Services Commissioner so far terms, different to those used in the old • ensure that complaints against prac- have been costs disputes. Legal Practice Act 1996 (the old Act). titioners and disputes between law The second type of complaint the Legal The number of disciplinary complaints practices or practitioners and clients Services Commissioner may receive is a received by the Commissioner so far is are dealt with in a timely and effective disciplinary complaint. almost double the number of civil com- manner; A disciplinary complaint is a complaint plaints. This is particularly relevant given • educate the legal profession about about conduct to the extent that the that the Good Conduct Guide is some- issues of concern to the profession and conduct, if established, would amount to thing of an educative tool, which may to consumers of legal services; and unsatisfactory professional conduct or maintain professional standards and pre- • educate the community about legal professional misconduct. These are new vent disciplinary complaints being made.

46 47 News and Views

this function. It is expected that this close and co-operative relationship between the Victorian Bar and the office of the Legal Services Commissioner will continue. The manner in which complaints against lawyers are managed and the profession is regulated is vital to con- sumer confidence in the system and to its effective operation. For this reason I am impressed by the proactive nature of the Good Conduct Guide. From my perspective as the Legal Services Commissioner, the Good Conduct Guide plays a very important role. It details the regulatory system and explains the legal practice rules (now called legal profession rules) with which each practitioner should become familiar. With regard to good conduct, I might emphasise that it is not necessarily intui- tive, and what is intuitive is not neces- Paul Willee QC, Kerri Judd, Gerard Meehan, Kate McMillan S.C., Melanie Sloss S.C. and sarily good professional conduct. It is Paul Lacava S.C. therefore critical that there is a formally documented explanation of what is stand-

Victoria Marles, Michael Shand QC Christine Harvey, Tony Parsons and Gerald Paul Elliott QC and Andrew Clemens. Chairman and Kate McMillan S.C. Lewis S.C.

Cora Annesley, Tim North S.C., the author Cameron MacAulay S.C., Justice Stuart Paul Willee QC, Doug Meagher and Chief and Brendan Annesley. Morris and Paul Lacava S.C. Judge Rozenes.

Everyone (including the profession and Services Commissioner may refer a disci- ard acceptable practice. the public alike) benefits when profes- plinary complaint to a prescribed investi- I understand that the principal aim of sional standards are maintained. gatory body — of which the Victorian Bar the Good Conduct Guide is to provide a In handling complaints, the Legal is one — to investigate and then report to resource to members of the Victorian Bar Services Commissioner investigates disci- me. The Commissioner may also delegate — a place where they can look for the plinary complaints and attempts to resolve certain powers and functions with respect answers to the most frequently occurring civil complaints. This is where the profes- to civil complaints. Earlier this year, the ethical problems in actual practice. Its aim sional associations, and most relevantly the Legal Services Commissioner delegated to was to do so in a way which enabled the Victorian Bar and the Ethics Committee the Victorian Bar the function of resolv- problem and its remedy to be easily, and have a role. Under the new Act, the Legal ing civil complaints. My office also retains thus rapidly found in the text, and which

46 47 News and Views was fairly portable and so accessible in Court, or in chambers or at home. It was to do so in a way which both explained the ethical principles and rules of the profes- Extending the Boundary of Right sion and illuminated them by practical example and simple but interesting prose. There are a number of excellent exam- ples in relation to a barrister’s duty to Flos Greig, Joan Rosanove and Mary Gaudron – Three Australian the court and to the client in the Good Conduct Guide. Some of these are appropriately and relevantly drawn from Women Lawyers the family law and wills/probate context. These are two areas of law where my office receives a significant number of complaints. Pamela Tate S.C., Solicitor-General for Victoria, The 10 chapters of the Good Conduct delivered this address at the Tenth Ethel Benjamin Guide meet the aim of providing an instructive and readable manual suitable Commemorative Address, 22 September 2006, for everyday use. It also directs the busy practitioner to other resources — for in Dunedin, New Zealand those problems beyond its scope. The chapters of the Good Conduct Guide range across a considerable Ethel Benjamin was New Zealand’s first woman lawyer. Born in breadth including the regulatory regimes 1875 in Dunedin, she graduated in law from the University of relevant to barristers, independence, how Otago in 1897, and was admitted to practise in the same year, barristers are retained and their duties to each individual client, conflicts of duties giving effect to the recently passed Female Law Practitioners’ and interest, fees, the direct access rules, Act 1896 that enabled women to enter the profession. The Otago etiquette, general professionalism and District Law Society unsuccessfully sought to prevent Ethel relations with fellow practitioners, and the more common grounds of ethical Benjamin wearing the traditional wig and gown in court and complaints. excluded her from Bar dinners. Throughout her legal career, The compilation of such a compen- she was a fierce advocate for women’s rights, and took on many dium must have been a difficult task for an author working in the new regulatory cases involving wife abuse, the arranging of separations and context, with the (large) new Act that has divorces, and enforcing maintenance. For the past 10 years, the not yet been considered by the Courts. I Otago Women Lawyers’ Society (OWLS) has commemorated understand that the Bar is also currently reviewing the legal practice rules in light Ethel Benjamin by inviting speakers to give a Commemorative of the new Act. Address in her honour. This has been sponsored by the New I commend the work to you all as Zealand Law Foundation. Previous speakers have included the Rt. a well,-presented exploration of good conduct, and a most helpful book for the Honourable Dame Sian Elias, Chief Justice of New Zealand, the everyday practitioner. Rt. Honourable Beverley McLachlin PC, Chief Justice of Canada, It gives me great pleasure to launch this and Dame Sylvia Cartwright, former Governor-General of New Good Conduct Guide authored by Róisín Annesley, produced for the Victorian Bar, Zealand. under the direction and with the guidance of the Professional Standards Education T is a great privilege and honour ing today for such an auspicious occasion. committee. It is in all of our interests to have been invited to present the One of my earliest memories of — regulators and practitioners — that ITenth Ethel Benjamin Commemorative Dunedin was as a young girl, aged about the members of the Bar uphold the high- address, and I thank you for the opportu- five, accompanying my father to watch est standards of ethics and good conduct. nity. On a personal note, I am particularly the formal procession through the town, The Good Conduct Guide is an important delighted to deliver this address in the of members of the University Council and part of addressing that need. city in which I was born, Dunedin, and academic staff for the University gradua- In commending this work to you, I on a day, 22 September 2006, which, tion ceremony. Dunedin being rather cold, congratulate all of those involved in its in one of life’s happy coincidences, is I recall being dressed in a blue double- production. 27 years to the day on which I left New breasted coat of which I was particularly In her response, author Róisín Zealand to undertake postgraduate study proud, made of sturdy Scottish cloth. I Annesley paid generous tribute to her at Oxford University, 22 September 1979. stood hand-in-hand with my father as we mentors, her parents and those who I have enjoyed returning to Dunedin many watched the array of coloured hoods and had supported her through her creative times since, on one occasion staying for 18 gowns of the academics in the procession endeavours. months, and am very pleased to be return- and then, in an air of excitement, joined

48 49 Extending the Boundary of Right Flos Greig, Joan Rosanove and Mary Gaudron – Three Australian Women Lawyers

the gallery in the Town Hall to watch the ary of right, little by little narrowing the I want to look at the common themes of Pamela Tate S.C., Solicitor-General for Victoria, graduates being “capped”. My only other confines of wrong and crowding it out of these women’s lives, their experience of delivered this address at the Tenth Ethel Benjamin recollection of the event was that there existence.3 the legal profession and of law as an insti- was an eruption of applause at regular tution. I also wish to consider the chal- Commemorative Address, 22 September 2006, intervals although it was not clear to me What I wish to speak about today are lenge which remains to further narrow the at the time precisely what this was for. It three Australian women lawyers, rebels confines of wrong. in Dunedin, New Zealand also seemed, from where I stood, that the if you will, whose professional lives have ceremony went on rather longer than it extended the boundary of right. I have needed to. chosen to discuss the stories of three FLOS GREIG While a graduation ceremony was women who practised law at different Perhaps the closest Australian counter- perhaps an odd choice as an outing for historical stages over the last century in part to Ethel Benjamin is Flos Greig. Born a young girl, it had the effect, which no order to present what might be called “the Grata Matilda Flos Greig, she embarked doubt my father intended, of conveying Australian story”. on her law degree not knowing whether clearly to me that tertiary education was she would ever be admitted to practice, something to be prized. It conveyed to just like Ethel Benjamin, yet she had first me that an endorsement from this type of I have chosen to discuss determined to be a barrister and solicitor institution was something to aspire to and, the stories of three women from when she was “quite a child, a school perhaps subliminally, that being female girl”.4 She was known not for “the trouble would be no bar to its achievement. The who practised law at she caused”,5 as Dame Sylvia Cartwright ceremony caused me to share the view of different historical stages mentioned of Ethel Benjamin in the 1997 Flos Grieg, the first woman to be admitted over the last century in commemorative address, but rather as to legal practice in Australia, who asked “that girl with the Terrible Name”.6 rhetorically, “Who that once possessed it, order to present what She was not the first woman in would yield education for any bribe the might be called “the Australia to be intent on studying law. In universe could offer?”1 Australian story”. 1900 in Western Australia Edith Haynes’ The importance of tertiary education application as a student-at-law under arti- for women was clearly understood by The first woman whose life I wish to cles was accepted by the Barristers’ Board Ethel Benjamin, both for the intellectual discuss is Flos Greig, whom I mentioned (as it was called) but she was warned that fulfillment that it offered, and for the a moment ago, admitted to practice in her admission as a legal practitioner might opportunity it could provide to women to 1905, the second is Joan Rosanove, the not be approved. The Board wrote to become economically independent, inte- first woman in the State of Victoria to Edith Haynes in these terms: grated persons in “body, mind and soul” sign the Roll of Counsel in 1923 and later and autonomous moral agents.2 Otago to take silk (become Queen’s Counsel) in [t]he Board cannot guarantee … admission, University invited Ethel Benjamin to reply 1964, and the third is Mary Gaudron, the even if you comply with all of the provisions to the address of the Vice-Chancellor at first woman to be appointed Solicitor- of [the Legal Practitioners Act of 1893] and her graduation ceremony, as you well General in New South Wales and thus in of the regulations framed thereunder.7 know. This befitted an institution known Australia in 1981 and later the first woman for its encouragement of the education appointed as a Justice of Australia’s ulti- In order to ensure that its message was of women and for the value it accords to mate appellate and Constitutional Court, clear, the Board continued: academic excellence. In what must have the High Court of Australia, in 1987. I seemed at the time an extraordinarily wish to discuss the lives of these women, It must be distinctly understood by you that brave statement, she referred to Sarah their clear individual merit, and the pro- you accept all risk of the Court eventually Grand, the English 19th century feminist, fessional hostility and exclusion they refusing your application.8 and said: experienced despite that merit. I wish to consider these women not simply as The refusal came earlier than the stage For centuries women have submitted to the individuals but as representing stages of of admission to practise. When Edith old unjust order of things, but at last they acceptance for women within the legal Haynes sought to undertake the inter- have rebelled, and as Sarah Grand has it: profession in Australia, stages that you mediate law exams, the Board refused will not be surprised to learn have not in to permit her to do so. She obtained It is the rebels who extend the bound- all respects proceeded in a linear fashion. an order nisi for mandamus from the

48 49 Supreme Court of Western Australia to On his return, [the Dean] Professor Pitt University of Melbourne.25 The member compel the Board to allow her to sit the Cobbitt demanded to know: “Who is this of the Legislative Assembly who proposed exams. Her father, a silk, appeared for woman?” There followed a series of doors the Bill, John Mackey (also a lecturer in her on the return of the order nisi. He did slamming, chairs banging on floors and bells Equity at the University of Melbourne) not argue for any guarantee that Edith be ringing. Professor Pitt Cobbitt summoned said: admitted to practise. Admission was two Miss Evans to his presence and attempted years away and he argued only that she to dissuade her from continuing her course, If this House passes the Bill, it will remove be permitted to take the intermediate law pointing out in his own crisp manner that one of those anomalies, one of these inequi- exams, continuing to accept the risk that she did not have the physique [for law] and ties of the law that have given rise in the admission to practise might ultimately be suggesting Medicine as much more suit- minds of women to the belief that they refused. able.15 cannot get justice from a Parliament that is The Full Court of the Supreme Court composed solely of men.26 rejected the Haynes’ argument and dis- Ada Evans persisted with her stud- charged the order on the ground that to ies and graduated in law in 1902.16 She The Act was passed before women make it absolute would be futile, “the time was then required to be registered after achieved suffrage in the State of Victoria, and money which would be expended graduation as what was then called a “stu- New Zealand of course having led the would be quite wasted”.9 While the Legal dent-at-law” for two years. She applied to way yet again.27 Indeed, in the Victorian Practitioners Act permitted qualified “per- the Supreme Court of New South Wales Parliament, the passing of the Act was sons” to be admitted, the Court consid- for that registration and was rejected on urged by one Parliamentarian on the basis ered that it would be an extreme step to the ground of absence of precedent.17 She that it would show that, as he put it: consider that a woman was a person with- sought admission to the English Bar but out express legislative sanction. Counsel was again refused on the same basis of an it is not necessary for women to have the for the Board argued that “the fact that no absence of precedent.18 suffrage in order that we shall have a Parlia- woman has been admitted raises the very By contrast, Flos Greig did not take the ment that is prepared to do justice to them, strong presumption that they have no path of commencing litigation. We know and place them on an equality with men in right to be admitted”.10 Justice Burnside that she knew of Ethel Benjamin and pre- the occupations of life.28 agreed and said: sumably thus of the legislative option and the enactment of New Zealand’s Female So much perhaps attests to the some- I am not prepared to start making law.11 Law Practitioners Act in 1896. In an inter- what difficult relationship between those view she gave to The New Idea in 1905 women who sought entry to an otherwise Edith Haynes never completed her she referred to “Miss Ethel Benjamin, exclusively masculine profession and legal studies. who had been practising in Dunedin, New those who sought legal equality by means Reasoning of the same form, as you Zealand, since 1896 or 1897”.19 It may of the right to vote, a relationship the will know, was used elsewhere. Although have been that Ethel Benjamin provided complexity of which the North American the word “person” was governed by a for Flos Greig the necessary precedent, academic, Mary Jane Mossman, has rule of statutory interpretation to include not to persuade a court, but to support recently written.29 both men and women, that rule could be her efforts and those of her friends20 in The Victorian Parliamentary Debates displaced when the context revealed or lobbying for a legislative amendment to also record concern that, if the Bill were made manifest a contrary intention. The allow women to enter the legal profession to be passed, a women “might become Western Australian Supreme Court held in the State of Victoria.21 Crown Prosecutor, Chief Justice or Acting that because no woman had previously In April 1903 the Victorian Parliament Governor”.30 The concern expressed is been admitted to practise law under the passed the Women’s Disabilities Removal ironic because Victoria’s current Chief relevant legislation, the legislation made Bill,22 also known as the “Flos Greig Justice and Lieutenant-Governor is a manifest a contrary intention with the Enabling Act”,23 which amended the woman, viz. Justice Marilyn Warren. consequence that, in that context, the Legal Profession Practice Act. The However, there was no cause for immedi- word “person” referred only to men. In private members’ Bill was passed, as a ate panic as her Honour’s appointment as particular, this reasoning was adopted matter of “the very greatest urgency”24, Chief Justice took place in 2003, exactly in South Africa in the case against the five days after Flos Greig became the 100 years after the Flos Greig Enabling Incorporated Law Society in 190912 and first woman to graduate in law from the Act was passed. in the case of Mabel French in Canada Flos Greig expressed some comments in 190613 to exclude women from the of her own on the chop-logic of her time practice of law. As Margaret Thornton when she said: has argued, under the guise of neutral- The concern expressed is ity the courts endorsed the proposition ironic because Victoria’s I notice that most men, when it comes to an that a person’s gender was the “primary argument as to what women could or could determinant of whether a person should current Chief Justice not do, generally argue: “You have not, ergo, be permitted to practise law”.14 and Lieutenant-Governor you cannot.” Even those who have studied In New South Wales women fared is a woman, viz. Justice Whately and Mill. They will rarely make no better. In 1898 Ada Evans enrolled Marilyn Warren. However, allowance for the fact that men for genera- at Sydney University law school tions have been trained to do what women when the much-feared Dean was on there was no cause for are now doing for the first time. The best sabbatical leave. As Bek McPaul tells the immediate panic ... swimmers are those that have lived by the story: sea; the best axemen are those whose early

50 51 home was in primeval bush. Opportunity is New South Wales in 1921. This was now day.”47 Barristers’ chambers in Melbourne everything …31 19 years since she had graduated. She was are arranged rather like the Inns of Court soon offered briefs but refused them on in London, with barristers congregating Flos Greig thus became the first the ground, as Bek McPaul writes: together. woman to be admitted to practise law in Joan passed her compulsory university Australia on 1 August 1905, completing that [by then] she considered herself law exams in 1917 and was admitted in two years as an articled clerk after the incapable of handling them, not wishing 1919, at the age of 21, having completed passing of the enabling legislation. She women’s standing in the profession to her articled clerks’ course. She was used was soon retained as legal advisor to the be undermined by a show of incompe- to being inside courtrooms and made Australasian Women’s Association and tence.42 many successful court appearances early assisted in the drafting of the legislation in her career, including cross-examining which established the Children’s Court.32 At first sight this reaction to an offer the then Prime Minister in a libel case, However, her belief that “opportunity of work may seem extraordinary from with several members of the junior Bar is everything” is something which Mary someone who had made such protracted jealously watching.48 In 1923 she took Gaudron was later to challenge. efforts to participate — perhaps also a what she later described as the “blindly The other five States soon passed reaction that is disappointing. However, optimistic”49 step of signing the Roll of enabling legislation similar to Victoria’s: it seems to me that it is explicable if con- Counsel, undertaking to work exclusively Tasmania in 1904,33 Queensland in 1905,34 sidered in the then Australian context in as a barrister, and was the first woman in South Australia in 1911,35 New South which the standing of women within the Victoria to do so. Wales in 191836 and Western Australia legal profession was clearly fragile. This The local newspaper, the Evening in 1923.37 The status of Ethel Benjamin was not something to be risked, perhaps Sun, commented upon her and her dress, as precedent was a critical factor in the particularly so for someone who had had noting that: passing of this legislation as was the the courage to engage with the university consequential desire by Australia not to administration, the judiciary and the legis- [W]hen she argued her case … admiration be thought of as backward. In the South lature to achieve a degree of professional of her eminently legal mind was added to Australian Parliamentary debates, New acceptance for women. admiration of her appearance.50 Zealand was expressly referred to as a place in which there were female practi- The paper went on to say: tioners.38 As the Honourable Mr Duncan JOAN ROSANOVE said: Had Joan Rosanove been able to engage It was frankly admitted that she was there in conversation with Ada Evans, and on terms of equality — even superiority Regarding the Bill, if it obtained in other perhaps also with Flos Greig, she would in many cases — with members of the States, and particularly in New Zealand, have conveyed to them what her experi- stronger sex.51 they could not go far wrong in giving ladies ence of professional life taught her; as she here the same advantage.39 famously said: For the first three years at the Bar she had little work. She was unable to obtain Some of the members of the South To be a lawyer you must a room in the principal set of barristers’ Australian Parliament were more cyni- Have the stamina of an ox, and a hide chambers and rented a tiny backroom cal. Some considered allowing women to Like a rhinoceros, and when they office in a dilapidated building. She has practise law was a thing of no importance Kick you in the teeth you must been described as like “a fringe-dweller on – it would do neither good nor harm and Look as if you hadn’t noticed it.43 sufferance [and not as she wished to be, the legal profession as an institution occupying] a place among barristers on would remain impervious. That remained And kicked in the teeth she was. Like equal terms.”52 to be seen. In an off-hand remark, the Ethel Benjamin, she was also a member What work came she made the most Honourable Mr Moulden said the admis- of a cultural minority, born into a Jewish of, appearing in appeals as well as at sion of women to the legal profession family, the significance of which Chief first instance. On one matter, she took would be: Justice Beverly McLachlin spoke of in her her place at the elongated Bar table in Ethel Benjamin commemorative address the High Court, the first woman ever to Like chips in porridge, they won’t do much in 2003.44 According to Joan Rosanove’s appear there. As she did so, flanked by harm.40 biographer, Isabel Carter, Joan Rosanove male King’s Counsel and their juniors, herself attributed her determination to one of the most senior barristers rather As for Ada Evans in New South Wales, fight against entrenched prejudice, in patronizingly said: who had suffered the wrath of Professor order to establish herself as a woman bar- Pitt Cobbitt, she arranged a deputation rister, to be due to the tradition through- And with whom is my learned friend to the Attorney-General for legislative out history of the Jews’ battle against appearing? change and it was because of her efforts persecution.45 and the efforts of the Feminist Club of New Joan Rosanove attended court from Joan responded in her ebullient and South Wales in joining her in that deputa- the age of 17 as clerk to her father, a quick-witted way: tion that the Women’s Legal Status Act solicitor. Before that, at the age of 15, 1918 was passed.41 Ada Evans obtained she had walked with her father through I am appearing with myself. I am the leader the registration as a student-at-law she the “traditional Melbourne home”46 for of the female Bar.53 had sought and was admitted to practise barristers, Selborne Chambers, and had as a barrister of the Supreme Court of said to him: “I am going to be here some But those who wielded power within

50 51 the establishment did not welcome her been admitted on the same day back in Justice, Sir Edmund Herring, interviewed presence. She was to come face to face 1919.63 Almost immediately after their her and asked her for a record of her earn- with the brutality of professional exclu- renewed contest, he was appointed a ings for the previous year. The earnings sion. In 1925, a male colleague of hers, Supreme Court Judge.64 The contrast with were so high he assumed that it could not Philip Jacobs, was about to leave for Joan’s situation was great. She could still have been a typical year. The day after the London for a year and offered her the not secure a room in Selborne chambers interview he wrote asking her for a record temporary use of his room in Selborne and so decided to conduct her affairs in of all her yearly receipts since she had re- chambers. He made the offer, as he put the Supreme Court library. Somewhat signed the Bar Roll. She provided records it, “to get the fellows used to having a similar to Ethel Benjamin’s circumstances, for the previous six years which showed woman there”.54 Practising from Selborne the rest of the Bar considered that her use the earnings to be consistently high.67 would have been a symbol of unequivocal of the Supreme Court library should be The Chief Justice wrote to her in these professional acceptance. The male estab- restricted. She was eventually able to terms: lishment was to have none of it. A protest practise from Selborne Chambers but meeting was called and the directors of I have given very careful consideration to Selborne chambers told Philip Jacobs your application for Silk … The granting that if he allowed Joan Rosanove to use In 1954 Joan Rosanove of Silk is never a matter of course. It is his room, they would have no option but primarily the exercise of a judicial function to cancel his lease.55 While they could not applied to become a … Consequently personal considerations stop her appearing in court, the profes- Queen’s Counsel. The cannot enter the matter, and sex is immate- sion could ensure that within its social and Chief Justice, Sir Edmund rial. Nor can the duration of the applicant’s cultural practices it remained impervious practice or the income derived therefrom to her presence. Herring ... wrote to her in be regarded as in any way decisive. These Humiliated, Joan Rosanove left the these terms: ... I have very matters are proper to be considered, but Bar and worked as a solicitor from home, reluctantly come to the only with such important considerations and later a city office, not returning to the conclusion that it would be as the nature of the practice, the Courts Bar for more than another twenty years. I in which it is carried on, the importance of might add that the Victorian Bar has since wrong for me to grant your the cases handled by the applicant … [and sought to atone for the wrong it commit- application. so on]. I have very reluctantly come to the ted, and perhaps to narrow the confines of conclusion that it would be wrong for me to that wrong, by naming a new set of cham- grant your application.68 bers “Joan Rosanove chambers” which it only by purporting to “read” with a male opened in April 2000. Given that history, I barrister much her junior whose room she Joan had predicted such a rebuff when am especially proud to have my chambers remained in when he moved inter-state.65 she had given a talk to a meeting of the there. If this was to be her professional home she Legal Women’s Association some years In the years away from the Bar Joan was to make it to her liking by painting earlier. While she recognized that the Rosanove developed a hugely successful the walls in pink, mauve and yellow with Bench were courteous and unprejudiced, practice, dealing with some criminal mat- a blue ceiling and lace curtains. Her prac- she said: ters, including murder trials, but largely tice blossomed. with what were then called matrimonial Despite the success of her practice, [I]f any of you suffer any illusions that causes as “streams of women”56 sought her acceptance by the institutional agencies women lawyers receive any real recognition, advice on suing their husbands for mainte- of the law proved much more difficult, in whatever their ability and qualifications, it nance. She lobbied politically against the particular the taking of silk. is time those illusions were dispelled.69 inequalities for men and women in the I should perhaps digress for a moment divorce laws;57 at the time a woman could to explain, at least to the non-lawyers in Rumour had it that the Chief Justice be divorced in some States for one act of the audience, the process in Australia, considered Joan’s work too specialized. infidelity alone but a man could not be so and in Victoria in particular, of taking Eventually he retired and the new Chief divorced without the infidelity being cou- silk. Much like New Zealand, taking silk or Justice granted Joan’s repeated applica- pled by cruelty or desertion.58 She said she becoming a Queen’s Counsel, now Senior tion in 1964, ten years after she had first felt personally ashamed that in spite of all Counsel, is a milestone in a barrister’s applied.70 Eventually, her legal career her attempts to achieve parity she had career because it is seen as a recognition spanned 50 years and she acted in more never been able to alter the provision that of excellence and usually involves taking than 20,000 matrimonial cases.71 a woman might not sue for divorce after on only the more complex work where a During the course of the years in which one act of adultery by her husband.59 She second barrister or “junior” accompanies Joan’s application for silk was refused, wrote scholarly and exhaustively in favour and assists the silk. The application must another woman applied in South Australia of establishing uniformity of grounds for be supported by judges acting as referees. and was successful, Roma Mitchell (later divorce throughout Australia60 and, on While practice varies between the States, Dame Roma Mitchell).72 Indeed, Dame behalf of women, argued that they should where in some instances the granting of Roma was to become the first woman not lose their nationality when they mar- silk is now in the hands of the Bar alone, judge of a superior court in Australia.73 ried foreigners.61 The relevant legislation responsibility for appointment in Victoria The then South Australian Chief Justice, was changed.62 lies with the Chief Justice of the Supreme in his 80s, wanted all judges to be referred In 1949 Joan Rosanove re-signed the Court.66 to without distinction. He issued a direc- Bar Roll. She was opposed in a divorce In 1954 Joan Rosanove applied to tion that Roma Mitchell was to be known matter by another barrister who has also become a Queen’s Counsel. The Chief as “Mr Justice Mitchell.”74 Fortunately,

52 53 he was later persuaded of the absurdity substantial Constitutional cases.80 Mary said that she had checked the of this. Mary obtained a scholarship to the biography of all of the appointments in Dame Roma was later Acting Chief University of Sydney, and obtained the Who’s Who. She went on to say: Justice in the last few months of her University Medal at Sydney University judicial career75 and became Governor of Law School after studying part-time and That check … revealed that his appoint- the State of South Australia.76 She was while nine-and-a-half months’ pregnant ments all had a single common character- held in enormous esteem by the profes- when sitting her final exams.81 She com- istic. It was not their religion, their politics sion but there was clearly a friendly pleted her articles, lectured in Succession or their schooling but it was something so rivalry between Roma Mitchell and Joan at the University, signed the New South apparent that one should be able to use it to Rosanove. Wales Bar Roll and applied for member- predict future appointments.84 Joan was known for her rich but dry ship of a good floor of barristers’ chambers sense of humour. She was in San Fransisco at the Sydney Bar. While the room remained breathless, a when she heard of the announcement of Acceptance of that application would senior Judge from the New South Wales Roma Mitchell as the first female QC in have been symbolic — just as it would Supreme Court stormed out, declar- Australia; with the edge of sarcasm for have been for Joan Rosanove — of unam- ing noisily that he did “not propose to which she was noted, she quipped: biguous acceptance into the heart of the listen to any more of this rubbish”.85 legal profession. Between the time when Uncharacteristically, Mary was silenced I couldn’t have heard about it in a nicer Joan Rosanove faced hostility in 1925 and and did no more than propose a toast place.77 the time when Mary Gaudron, a medal- to the Attorney. On later inquiry it was winning student, was applying for cham- revealed that, with respect to each of Joan Rosanove’s husband, Mannie, bers in 1968, many more women were the new judicial appointments, Who’s must have shared her sense of humour studying law and much social and cultural Who had made mention of the appoint- for, in another incidental remark which is progress had been made generally in rela- ee’s father but there was no mention close to my heart, when asked what sort of tion to the status of women. Surely there of a mother. Mary had intended to say: cook Joan was, he replied, “As a cook, she would be no repeat of the exclusion Joan “Presumably, to be eligible for appoint- was a brilliant lawyer.” Rosanove experienced. ment to judicial office under this Attorney This time the humiliation of exclusion one needs to be motherless.” came with an attempted reassurance. Mary Gaudron continued to thrive MARY GAUDRON Mary Gaudron was told her application for despite the early hostility and built a The need for single-minded determina- chambers had been rejected but that she practice in which she appeared in all tion and pluck, together with a passion was to understand that her rejection was jurisdictions, with a focus upon indus- for the law and the encouragement of not based on “anything personal” — it was trial and defamation law. She appeared, law reform in the face of obvious injustice just that “she was a woman”. unled and successfully, before the High — “extending the boundaries of right”, as One might be tempted to explain the Court in her second year at the Bar86 Ethel Benjamin would have it — is illus- address she gave a few years later to and appeared before the Commonwealth trated also in the career of Mary Gaudron the annual Bar and Bench dinner, repre- Arbitration and Conciliation Commission in the context of a more recent stage of senting the junior Bar, as an example of in the major Equal Pay Case.87 This led to the participation of women in the legal revenge as a dish best served cold. The her appointment as a Deputy President of profession. Her career, while inspirational “junior” speech for the night is a brief to that Commission, where in particular she for all women in the law throughout amuse — I have myself had to deliver this contributed to a decision in a significant Australia, also illustrates the continuing form of address and it requires a toast and test case providing for maternity leave to imperviousness of the legal profession in a “roast” of the new judicial appointments, be included in an industrial award.88 its institutional character, even in contem- all to be done with unerring tact. In 1981 she was appointed the porary times. Mary began her speech82 by criticizing Solicitor-General for New South Wales Mary Gaudron was appointed to the the legislation recently introduced by the and appeared frequently in the major seven-member Bench of Justices of State Attorney-General on the grounds Constitutional cases of the day before the the High Court of Australia in 1987 and that it infringed civil liberties. She then High Court. She gained a reputation for retired in 2003. She learnt of the existence said that she was about to come to his “outstanding and ingenious advocacy”89 of Australia’s written federal Constitution appointments. I understand that the room and I now find, in also occupying the role at the age of eight at the time of the ref- was “deathly silent”.83 of a State Solicitor-General, that I often erendum to amend the Constitution to rely upon arguments she presented suc- ban the Communist Party. Doc Herbert cessfully to the Court which invariably Evatt (who was later to become a High Mary Gaudron was told her illustrate a depth of understanding of Court Judge, Federal Attorney-General application for chambers Australian federalism and the integrated and actively involved in the creation of system of federal and State courts.90 the United Nations78) was campaigning on had been rejected but that In 1987 Mary was appointed to the High the back of a truck through small country she was to understand Court at the age of 43, one of the young- 91 towns for the “No” vote which was ulti- that her rejection was est appointments to the Court. On the mately successful. Mary was growing up in Bench she became known for her towering just such a town. She asked him what this not based on “anything intellect, a formidable grasp of logic and “Constitution” was all about and he sent personal” — it was just an unremitting urge to make theoretical her a copy. 79 She was ultimately to deliver that “she was a woman”. sense of what lay before her. She insisted judgment in the High Court in about 115 on “the inalienable responsibility of courts

52 53 and their judges to maintain an open, free is ownership by men over the formal and Lawyers.104 Unless I am mistaken about and just society … [acting] in accordance informal symbols of acceptance within the the popularity of surfing, even in a place with the judicial process”92 — marked by profession which has restricted women’s like Sydney, the refusal cannot have been impartiality and independence from the lives. on the basis that it would be of interest legislature and the executive.93 Mary Gaudron once said that the trou- only to a minority. She delivered significant judgments ble with the women of her generation was As we have seen, the formal barriers to in the area of discrimination, direct and that they thought if they knocked the women’s practice of the law came down indirect.94 She developed more generally doors down, success would be inevitable.99 with the early enabling legislation. The a theory of discrimination based upon They thought that if the formal barriers to statutory obstacles or impediments to the recognition that discrimination can entering the legal profession were dis- opportunity were thus removed. As Flos arise in the uniform treatment of those mantled, it would only be a matter of time Greig thought “opportunity was every- who are not the same but who require, before women were properly represented thing”. because of their circumstances or his- in all fields of legal endeavour. However, The lives of Joan Rosanove and Mary tory, additional or special differential while women have been graduating from Gaudron demonstrate that the removal treatment; as she put it, discrimination the law schools in droves for some years, of formal legislative impediments, while “lies [not only] in the unequal treatment the decades which have followed Mary necessary, are not sufficient and indeed of equals but in the equal treatment of Gaudron’s entrance to the profession have do not go far in achieving acceptance for unequals”.95 She also contributed to the not seen, in Australia at least, proportion- women in the legal profession. recognition of an implied right under the ate representation of women in complex The focus of the enabling legislation federal Constitution to freedom of com- court matters nor in the decision-making may in this sense have been misconceived munication on political and governmental institutional roles. – might I suggest that the ideal should not matters,96 culminating in the decision I will spare you all of the statistics have been couched in terms of equality of in Lange v Australian Broadcasting but the most recent survey published by opportunity (as Flos Grieg thought, or as Corporation.97 Australian Women Lawyers in August of did Mary Gaudron and women of her gen- Might I say, parenthetically, that this year was revealing. Monitoring court eration early in their careers) but rather Australia is forced to rely upon an implied appearances by gender,100 it revealed dis- as equality of participation. constitutional right as there is no express proportionately low rates of appearances If the ideal for women lawyers is equal- right of freedom of expression at the fed- by women in the superior courts around ity of participation in the profession then eral level equivalent to s.14 of the New Australia when compared to their num- the forms of hostility and exclusion in the Zealand Bill of Rights Act 1990. The bers within the profession. The survey lives of the women I have described can be State of Victoria has sought to remedy revealed that women were not appearing seen not as merely incidental to the devel- that, in so far as it can, by the enactment in major trial work but rather in matters opment of the women’s professional lives of its own Charter of Human Rights and of short duration — for example, in the but as directly contradicting that par- Responsibilities, but that is another story. Federal Court the average length of a pro- ticipation. The symbolism attendant upon Since retiring from the High Court of ceeding for male senior counsel was 120 the refusal to be accepted into barristers’ Australia, Mary Gaudron sits as a Judge hours, whereas for female senior counsel chambers, the exclusion from the profes- of the Administrative Tribunal of the the average length of a proceeding was sional home, is thus not simply an annoy- International Labour Organisation in the three hours. ance or a hindrance to the development of Hague, and has continued to champion The survey also showed that women a professional career to which the women the rights of women. For the record, she were appearing much more frequently otherwise had an equality of opportunity. was replaced on the High Court by a male before Masters than in appeals.101 It is, rather, a direct repudiation of their Judge.98 However, during the course of the The explanation for under-represen- participation. last year, the second female Justice of the tation of women, viz. that it will only So too the repeated refusal to award High Court has been appointed, Justice be a question of time, has long since silk to a candidate of clear merit and Susan Crennan. been rejected as “dishonest”.102 As the proven practice also reflects an unwilling- Australian Women Lawyers put it, “the ness genuinely to accept female participa- INTERNAL REFORM OF THE ‘trickle up’ theory is not working”.103 tion in the profession. As a further instance of irony, when The site of hostility is not to be identi- PROFESSION the Australian Women Lawyers sought fied (or identified any longer) with the I have reflected on the individual circum- to advertise their Inaugural Conference legislature. Nor can it be identified with stances and achievements of each of these which is to be held in Sydney next week, to the modern executive. It is my view that three women, Flos Grieg, Joan Rosanove discuss why the trickle-up theory has not we should see the history of exclusion of and Mary Gaudron, to illustrate that Ethel worked, they were confronted by the very women from equality of participation as Benjamin and her successors in New resistance I’ve described in detail today. lying in the belief by the profession that Zealand have had their counterparts with The New South Wales Bar was happy as an institution the legal profession was, parallel lives in Australia. But I have also to transmit by email to all its members and should remain, impervious to women. sought to do more than this — by dem- information about the annual Bench and This view has it that women should be onstrating in detail both the professional Bar chess match, and the cancellation of permitted to practise law but that should capacity of these women and the hostility such an important event as the Australian not be seen as requiring any other change and exclusion which they faced despite Lawyers Surfing Association’s annual gen- by the profession — the profession should that capacity, I have sought to identify eral meeting. However, it refused to allow remain just as it was, something to which with some precision the particular site of its email service to be used to advertise men have an entitlement and in relation to that hostility. I have sought to show that it the conference of the Australian Women which women are naturally outsiders. The

54 55 profession is thus seen as the property of 2. Carol Brown, “Ethel Benjamin — New Mackey). men. Zealand’s First Woman Lawyer” (BA 25. Linda Kirk, op. cit., 493–494. It is this attitude which was expressed (Hons) thesis, University of Otago) 26. Victoria, Parliamentary Debates, Legisla- in 1911 in the South Australian Parliament (1985), 20 (quoting from Ethel Ben- tive Assembly, 5 March 1903, 2821. by the Honourable Mr Moulden, that the jamin’s address in reply at the Graduation 27. In New Zealand women were afforded admission of women to the legal profes- Ceremony to the Otago Daily Times, (10 the right to vote in 1893. In Australia sion would be a matter of no consequence. July 1897), 6). the franchise was extended to women As you will remember, he said: 3. Ibid 21. in South Australia in 1894, Western Aus- 4. Ruth Campbell, op. cit., 502. tralia in 1899, New South Wales in 1902, Like chips in porridge, they won’t do much 5. Dame Sylvia Cartwright, “The Trouble Tasmania in 1903, Queensland in 1904 harm. She Caused”, (Speech delivered at and Victoria in 1908. The federal fran- the Ethel Benjamin Commemorative chise was extended to women in 1902. If the site of professional exclusion Address, Otago Women Lawyers’ Society, 28. Victoria, Parliamentary Debates, Legis- and hostility to women is seen as occur- Dunedin, New Zealand, 8 May 1997), 33. lative Assembly, 5 March 1903, 2821 (Mr ring within the internal cultural practices 6. Campbell, op. cit., 502. Mackey). Later Mr Mackey repeated (at of the profession — and the associated 7. In re Edith Haynes (1904) VI W.A.R. 2821): “I said it had nothing to do with symbols of formal and informal accept- 209, 211. the female franchise”. ance — then it is possible to see the array 8. Ibid 211–212. 29. See Mary Jane Mossman, op.cit., espe- of rejections suffered by all the women 9. Ibid 212 (Parker A.C.J.) (See also McMil- cially 24, 32–33. whose lives I have described as traceable lan J, 212). 30. Linda Kirk, op. cit., 493. to the same source. We should see those 10. Ibid 210 (argument of Pilkington). 31. Flos Greig, “The Law as a Profession for rejections for what they are — that is, 11. Ibid 214. Women”, (1909) 6 Commonwealth Law express or implied assertions of property 12. Schlesin v Incorporated Law Society Review 145, 150. rights by men over the symbols of profes- (1909) Transvaal Supreme Court Reports 32. Jill Ewing, “Laying the foundation stone sional acceptance and confirmation, with- 363 referred to by Mary Jane Mossman, for legal women” (1992) (Victorian) out moral justification. This is so whether The First Women Lawyers: A Com- Law Institute Journal 159, 160. the symbols take the form of appoint- parative Study of Gender, Law and 33. Legal Practitioners Act 1904. ments as senior counsel, presentation the Legal Professions (Hart Publishing) 34. Legal Practitioners Act 1905. of oral argument in courts and tribunals, (2006), 157–158. 35. Female Law Practitioners Act 1911. the taking of witnesses, the occupying of 13. Re French (1905) 37 New Brunswick 36. The Women’s Legal Status Act 1918. chambers, or the myriad of senior institu- Reports 359 referred to by Mossman, op. 37. Women’s Legal Status Act 1923. tional decision-making roles throughout cit., 156–157 and by Margaret Thornton, 38. South Australia, Parliamentary the legal profession. Dissonance and Distrust: Women in Debates, Legislative Council, November If the profession was to recognize the Legal Profession (OUP) (1996), 58, 16, 1911, 535. clearly that these symbols do not “belong” fn.67. 39. Ibid 536. to men, that there is no moral owner- 14. Margaret Thornton, op cit., 59. 40. For another example of the use of this ship of those symbols by men, then the 15. Bek McPaul, “A Woman Pioneer” (1948) expression see Dryden’s Limberham, latter-day successors of Flos Greig, Joan 22 (1) Australian Law Journal 1, 2. Act IV, Scene I: “[T]hat [a note] is a chip Rosanove and Mary Gaudron, will not be 16. See Ruth Campbell, op. cit., 503. in porridge; it is just nothing.” seen as dislodging men from that to which 17. McPaul, op. cit., 2; (see also Linda Kirk, 41. Linda Kirk, op. cit, 494–495, and see also they are entitled. They ought perforce “Sisters Down Under: Women Lawyers in 494, fn. 21. An earlier Bill had been intro- not be subject to the same rejections or Australia” (1996) 12 Georgia State Uni- duced in 1916 but was shelved after the resistance. versity Law Review 491, 494). Second Reading. Finally, might I say that Flos Greig, 18. McPaul, op. cit., 2. 42. Bek McPaul, op. cit., 2. See also Linda Joan Rosanove and Mary Gaudron and the 19. Ruth Campbell, op. cit., 503 (see also Kirk, op cit., 495. other Australian women I have mentioned 502, fn 1). 43. Isabel Carter, Woman in a Wig, have lived glorious and inspirational lives 20. Ibid 503. (Lansdowne Press) (1970). — as did Ethel Benjamin. They lived their 21. Ibid 503; Linda Kirk, op. cit., 493. In 44. “Building a Bridge to Equality: A Duty for lives in good grace with resilience, good 1894 an earlier attempt to amend the Lawyers”, (speech delivered at the Ethel humour and singled-minded determina- Legal Profession Practice Act had been Benjamin Commemorative Address, tion over extended periods. Their passion unsuccessful: see Linda Kirk, op. cit., Otago Women Lawyers’ Society, Dun- for the law and their respective efforts at 493. edin, New Zealand, 29 April 2003), 42. law reform extended, as Ethel Benjamin 22. Linda Kirk, op.cit., 493. 45. Isabel Carter, op. cit., 4. would have hoped, the boundaries of 23. Ibid 493; Ruth Campbell, op. cit., 503. 46. Ibid 125. right. We must trust that we, together The long title was An Act to remove 47. Ibid 125. with the profession which those women some Anomalies in the Law relating 48. Isabel Carter, op. cit., 20–22. chose to join, can crowd the wrongs out to Women. The short title was the Legal 49. Ibid 33. of existence. Profession Practice Act 1903 which was 50. As reported by Isabel Carter, op. cit., 34. to be “read and construed as one with the 51. Idem. Notes Legal Profession Practice Acts 1891 to 52. Isabel Carter, op. cit., 125. 1. Quoted by Ruth Campbell in “That Girl 1895”. 53. Ibid 36. with the Terrible Name” (1975) 49 (Vic- 24. Victoria, Parliamentary Debates, Legisla- 54. Ibid 42. toria) Law Institute Journal 502. tive Assembly, 5 March 1903, 2821 (Mr 55. Ibid 42. See also the Honourable Sir

54 55 News and Views

James Gobbo AC, Governor of Victoria, Ltd (1970) 125 CLR 166. “Official Opening of Joan Rosanove 87. In re State Equal Pay Case [1973] AR Chambers” (2000) 112 Victorian Bar 425. Conference News, 53. 88. FMWU v ACT Employers Federation 56. Isabel Carter, op. cit., 58. (Maternity Leave Case) (1979) 218 CAR 57. Ibid 65. 120. Updates 58. Ibid 146. 89. Blackshield, Coper and Williams (eds), 59. Ibid 146. op cit., 294. 60. Joan Rosanove, “Australian Divorce 90. See, for example, Forge v ASIC [2006] Laws”, (1954) 27 Australian Law Jour- HCA 44 at 22 which applied the reason- 8–15 January 2007, (held annu- nal 672. ing in The Commonwealth v Hospital ally) Cortina D’Ampezzo, Italy 61. Isabel Carter, op. cit., 65. See also 145. Contribution Fund (1980) 150 CLR 49 — Europe Pacific Legal Conference. 62. See the Nationality and Citizenship at 50 where the High Court had accepted 1–7 April 2007, (pre Easter Act 1948 (Cth). Mary Gaudron’s argument as State Solici- week) Cervinia Italy/Zermatt, 63. The barrister was Arthur Dean. See Isa- tor-General for New South Wales. Switzerland (The Matterhorn) bel Carter, op. cit., 126. 91. Blackshield, Coper and Williams (eds), — Europe Oceania Legal Conference 64. Isabel Carter, op. cit., 126. op. cit., 295. 65. Ibid 127. 92. Justice Susan Kenny, “Concepts of Judi- 9–16 April 2007, (post Easter 66. Until recently, the Attorney-General cial Responsibility: the Contribution of week) Venice/Verona, Italy — Pan made the announcement on the recom- the ‘One of Seven’”, (2004) 15 Public Europe Pacific Legal Conference mendation of the Chief Justice. This was Law Review 283, 284. 1–4 July 2007, New York, USA so in Joan Rosanove’s time: see Isabel 93. Ibid 7 (citing the Hindmarsh Island — USA Pacific Legal conference (Will Carter, op. cit., 152, 156. In Victoria Case (1996) 189 CLR 1 at 25 (Gaudron be scheduled to begin just after the responsibility now lies solely with the J.)). 2007 Australian Bar Association con- Chief Justice. 94. Australian Iron & Steel Pty Ltd v ference in Chicago) 67. Isabel Carter, op. cit., 153. Banovic (1989) 168 CLR 165. 6–13 July 2007, Lake Como, Italy 68. As reported by Isabel Carter, op. cit., 95. Castlemaine Tooheys v South Australia — Europe Asia Legal conference 154. (1990) 169 CLR 436, 480. See also Street 18–24 July 2007 St Petersburg, 69. Isabel Carter, op. cit., 155. v Queensland Bar Association (1989) Russia — East West Legal 70. The new Chief Justice was Sir Henry 168 CLR 461. Conference Winneke. 96. For example, Nationwide News v Willis 71. Isabel Carter, op. cit, 163. (1992) 177 CLR 1. 12–19 August 2007 (held annu- 72. In 1962. 97. (1997) 189 CLR 520. ally) Perisher Blue, NSW — 73. Susan Magarey (ed), Dame Roma: 98. The Honourable Justice Dyson Heydon Australasian Legal Conference Glimpses of a Glorious Life (Axiom AC. 21–27 September 2007, Taormina Publishing) (2002), 68 99. Mary Gaudron, “Speech to Launch Aus- (Sicily), Italy — Pan Europe Asia 74. Ibid 66. The Chief Justice was Sir Mellis tralian Women Lawyers”, (Speech deliv- Legal Conference Napier. ered at the Australian Women Lawyers 29 September–6 October 2007, 75. Ibid 83, 193–195. Launch, Grand Hyatt Hotel, Melbourne, (held annually) Heron Island, 76. Ibid 252–267. Victoria, 19 September 1997). Great Barrier Reef — Pacific Rim 77. Isabel Carter, op. cit., 156. 100. Australian Women Lawyers Gender Legal Conference 78. Tony Blackshield, Michael Coper and Appearance Survey (August 2006) (Gen- George Williams (eds), The Oxford Com- der Survey). 28 December 2007–3 January panion to the High Court of Australia 101. For example, in the New South Wales 2008 Khyber Pass, Peshawar (OUP, Melbourne) (2001), 253. Supreme Court 27.8 per cent of the Pakistan — Indus Pacific Legal 79. Ibid 293. appearances before a Master were by Conference 80. Cheryl Saunders, “Interpreting the Con- women, whereas only 9.9 per cent of the 29 June–5 July 2008 Positano, stitution” (2004) 15 Public Law Review appearances before the Court of Appeal Italy — Europe Asia Legal confer- 289, 289. were by women. ence (indicative dates) 81. David Bennett, “Mary Gaudron’s ‘Mr Jun- 102. Mary Gaudron, “Speech for Women Law- July 2009, Lipari, Sicily, Italy ior’ Speech and High Court debut”, Geoff yers Association of New South Wales” — Europe Asia Legal Conference Lindsay and Carol Webster (eds), No (Speech delivered at Women Lawyers July 2009, Stratford-upon-Avon Mere Mouthpiece: Servants of All, Yet of Association of New South Wales 50th and Oxford — Britain Pacific Legal None (Butterworths) (2002), 262–263. Anniversary Gala Dinner, New South Conference (dates to coincide with 82. This account of the speech is based Wales Parliament House, Sydney, New the first cricket test Australia– on the description given by David South Wales, 13 June 2002). England) Bennett QC, in No Mere Mouthprice: 103. Caroline Kirton, President, Australian Servants of All, Yet of None, op. cit., Women Lawyers, Explanatory Memoran- Conference Director: 263. dum to the Gender Survey, 6. Lorenzo Boccabella, email: 83. Ibid. 104. See Marcus Priest (ed), “Hearsay”, The [email protected] 84. Ibid. Financial Review (Sydney), 4 August www.conferences21.com. 85. Ibid. 2006. 86. O’Shaughnessy v Mirror Newspapers

56 57 News and Views Council of Legal Education Dinner Colin Galbraith served as Honorary Secretary to the Council of Legal Education for 21 years, from February 1985 to February 2006. On 31 October 2006 the Chief Justice hosted a Council of Legal Education dinner to thank him for his services to the Council. In his remarks that evening he made a number of comments of interest, some of them relating to the personnel of the Council, past and present, others relating to the more serious issue of the way in which the ethos of our profession has changed as “time costing” and “meeting budget” have replaced “service to the client” as the dominant factor in our working lives. At the request of the editors, Colin has kindly provided Bar News with a copy of the notes he used for his address that evening. Those notes are printed below (unedited). Colin Galbraith. would like to start by thanking the position for 25 years. Forrest Davies was Chief Justice for doing me the honour a well-known Melbourne lawyer and First and no longer have the pleasures of God Iof putting on this dinner and all of you World War veteran. (in God’s various forms) being invoked for coming along. The courtesy, patience He was succeeded by John Harper in by applicants to bless me, of being vari- and support each of you has extended 1946 and John held offi ce for an extraor- ously addressed including as “Honoured me over the years have made the role of dinary period of 40 years. John was a and Honourable Galbraith, Esteemed (or secretary to the Council a pleasure. Her brilliant lawyer who made a signifi cant Estimable) Secretary” and, rather worry- Honour has indicated that it is ok for me contribution to corporate Australia both ingly, as “Honorary Galbraith” before on to say a few words so, given the strong as a lawyer and as a leading non-execu- occasions being requested to indulge the judicial presence, I will obey the implicit tive director. John was a great teacher applicant in the circumstances of their command. and mentor and he brought to his role as “personal agony”. I will also miss the many I commenced my term as secretary in secretary a real empathy for all the appli- Christmas cards from successful appli- 1985 – and thus became the fourth sec- cants to the Council regardless of their cants who undoubtedly had been success- retary of the Council in its history with diverse backgrounds and circumstances. ful in putting something over me. the Council having been formed in 1904. He loved his role as secretary and felt hon- The task and the privilege of the adjec- The fi rst secretary, Sir Arthur Robinson, oured by his association with the judges tives have fallen to Anne Ferguson. At the combined the role with being a member whom he held in great esteem. John was risk of embarrassing her may I say that she of Federal Parliament (as member for also famous for his vagueness. I recall a has a great contribution to make — she is Wannon for a short period) and subse- time when, as a young lawyer at Arthur a wonderful lady, a fi ne lawyer with a bril- quently as a member of State Parliament. Robinson & Co, I sat across the desk from liant academic background and a wonder- During this time he held various ministe- John in his room with Ian Renard (now, ful ethical sense. If the recommendations rial portfolios, including Attorney-General. of course, the University of Melbourne’s made by Sue Campbell are adopted, her His term as Attorney-General included a Vice Chancellor) discussing a particu- role as secretary will cease; the challenge key role in relation to the famous Police larly diffi cult legal issue. John turned and is there in those circumstances to endeav- Strike in 1923 when he authorised the looked out the window apparently deep in our to capture Anne’s enduring contribu- appointment under Monash of a special thought then swivelled his chair so that he tion in some other form. constabulary to keep law and order and looked straight across the table at us and I hope you will indulge me by allowing presided over a cabinet meeting which said: “I know what we’ll do — we’ll get Ian me to make some brief comments in rela- resolved that the 636 sacked policemen Renard” and promptly started to dial Ian’s tion to the legal profession — please rec- would not be reinstated. They never were. offi ce. A rather bewildered Ian spluttered ognise that my comments are very much The strike included the unusual event of “But I’m here, Mr Harper” to which John made from the perspective of the narrow the picketing of a law fi rm’s offi ces — the replied “Yes, so you are, now where were confi nes of commercial legal practice. law fi rm being Arthur Robinson & Co. we?” When I started in the law a very long The second secretary of the Council As you know, I ceased to be Secretary time ago, the legal profession held a much was George Forrest Davies who held the of the Council at the start of this year more esteemed position in the business

56 57 News and Views and general community than it does today. Whilst both medium and large com- the maintenance of standards whilst being The Melbourne Bar was led by an eclec- mercial law practices have prospered meticulous in dealing fairly with the tic, intellectually gifted and charismatic in the context of a time of considerable applicants whose requests come before group whilst, amongst the “real lawyers” growth in Australian business and the it — applicants whose careers frequently in the commercial law firms (!!!), there Australian economy (the vast majority depend on the Council’s deliberations. was a group of iconic figures very broadly of practising lawyers have not, in their I think for the future more and more respected within the profession who drove working lives, experienced a recession), attention will be given by the Council to the practice of the law in their firms and they have done so on the back of a series the content and quality of law courses the wider profession with a daunting disci- of large transactions and essentially their and practical training programs with the pline, always from a strong, consistent and model depends very much on a transac- Council stressing the need for a sound, coherent ethical base. Many were general- tional flow (which allows them to throw principles based approach to academic ists acting as comfortably in dealing with large teams of lawyers at the task with courses and emphasising the jurispru- the problems of real people as with those the leverage this entails, coincidentally, dential underpinnings of law in society. of corporations. These great lawyers also producing an enhanced fee outcome). For my part, I firmly oppose the notion of moved in and out of boardrooms with ease This has sometimes meant that there is a university law courses becoming technical and frequently joined the boards them- loss of emphasis on servicing the client, on training institutions. selves. They were sought after by chair- developing the relationship. I mean no disrespect to the universi- men and senior executives alike for their Client loyalty has eroded; Clients ties in Victoria — indeed we have been dispassionate counsel — they defined the spread their work around and are increas- fortunate in the enduring quality of legal phrase “trusted adviser”. These were peo- ingly driven by price rather than quality. education in Victoria and are rightly proud ple who were prepared to step outside the This has been fuelled by hourly rate of each of our institutions. Nevertheless, restrictions of their legal brief and venture charging so that law firms have allowed given the extraordinary funding and principled commercial advice, sometimes themselves to become regarded as just competitive pressures and the increasing telling their client that whilst their pro- another set of commodity purveyors con- social equity issues (as illustrated by the posed course of action did not contravene tributing to a client perception that you socio-economic profile of law students), any law they should not embark on it. can shop around in the supermarket for a more activist role for the Council is Recognising the problems and excep- the best price. The frequency of tenders essential. tions which generalisations entail, called by clients for transactions based on May I close by thanking each of you for may I venture that we have seen over price alone bears this out. the courtesy and patience you have shown recent years a significant decline in the I think this has given rise to a danger- me. In particular may I comment on the Commercial Bar in Melbourne and, indeed, ous potential outcome. roles played by five people. in the reputation of commercial lawyers Corporations, their boards and their Many of you will know Lorraine generally. I think that there is a number of management need wise counsel, they Cornabe who has assisted me in my role reasons for this. First, obviously enough, need independent trusted advice — the for the Council ever since I was associ- are the facts that the legal profession has dispassionate hard-nosed trusted adviser ated with it — and who continues to grown significantly in size and that the — a person tuned not only to the com- assist Anne. Lorraine has been, for many roles which lawyers play have become con- mercial realities of the situation but with lawyer immigrants to Australia, their first siderably more diverse; frequently, the line a reliable legal and ethical perspective – a contact here and the face and voice of the between a lawyer acting as a lawyer and as person who is ultimately prepared to give Council. Lorraine is herself an immigrant a businessman or woman is blurred. The the tough, perhaps unwelcome, advice. from Calcutta and she has approached problems which this latter point invites are In the toughest of circumstances, where her role with considerable empathy and obviously particularly acute for that large is that advice to come from? There is an remarkable efficiency and precision. I number of commercial lawyers who are urgent need for lawyers to recapture this know that the Chief Justice has written to employed within businesses but are cer- trusted adviser role. I am confident the Lorraine to express the Council’s thanks tainly not restricted to them. Secondly, in cycle will turn. to Lorraine and I know this was deeply relation to the Commercial Bar, is the point But this means that the legal profession appreciated. that we are probably seeing generational must again earn its stripes. The Council Each of David Harper, Gail Owen and change where a considerable number of has its role to play. Obviously this entails Jack Fajgenbaum has been associated with really outstanding commercial barristers the Council continuing to be vigilant about this Council over a longer period than me. have moved to the Bench. The third issue, David’s role as chairman of the Academic obviously particularly affecting commer- Course Appraisal Committee has been cial litigators in the firms as well as the Bar, invaluable over many years. Jack’s service is that there is less significant commercial May I venture that we on many committees, his wise counsel litigation than in the past, partly due to have seen over recent and his ready good humour are greatly the cost of litigation and partly due to appreciated. Gail Owen’s contributions at alternative dispute methodologies and, in years a significant this Council and elsewhere in the law have the takeover arena, the emergence of the decline in the Commercial been wonderful over a very long time and Takeovers Panel. But the fourth issue as I Bar in Melbourne and, I have particularly enjoyed her willingness see it is part of a wider phenomenon which indeed, in the reputation to speak her mind! Last and certainly not has hit the business legal profession. least is Sandy Clark — his industry and That is that its stature and importance of commercial lawyers intellect have underpinned this Council in the community have been significantly generally. for over two decades and his contribution eroded. nationally is unparalleled in Australia.

58 59 News and Views Women Barristers Association Anniversary Dinner

Celebrating the 10th Anniversary of the appointment of the Honourable Rosemary Balmford to the Supreme Court of Victoria on 23 November 2006

ACH year, the WBA holds a dinner to celebrate new appointments. This Eyear, that dinner celebrated also the 10th anniversary year of the appointment of the fi rst woman to the Supreme Court of Victoria, the Honourable Rosemary Balmford. More than 100 people attended the dinner which was, this year, sponsored by E-Law. The Chairman of the Bar, Michael Shand QC, the CEO of the Bar, Christine Harvey, and the President of the Law Justice Balmford Council of Australia, Tim Bugg, were among the guests, which also included S.C. who was appointed Senior Counsel Honourable Rosemary Balmford to the Judges, Magistrates, barristers (both last November, was recently appointed a Supreme Court of Victoria in March 1996. males and females), and some solicitors. Senior Crown Prosecutor. We’re delighted that Rosemary Balmford Since last year’s dinner, 16 women Justice Marcia Neave spoke at the has been able to join us this evening. have been appointed to various courts: dinner. The text of Her Honour’s address, Rosemary’s appointment to the the Honourable Justice Susan Crennan Hearts and Minds — The Next Step, is Supreme Court was in March 1996. to the High Court; the Honourable Justice published on the Bar website and has However the judicial story began three Marcia Neave AO to the Court of Appeal, been distributed to all members of the years earlier, in July 1993, with Rosemary’s the Honourable Justice Elizabeth Curtain WBA. Regrettably space does not permit appointment to the County Court. and Masters Robyn Lansdowne and its inclusion here. Victoria got off to a slow start with judi- Melissa Daly all to the Supreme Court; What follows is the text of the Tribute cial appointments, with our fi rst woman and Their Honours Judges Lisa Hannan to Honourable Rosemary Balmford, the judicial offi cer appointed in only 1983 and Sue Pullen to the County Court; principal guest of honour at the din- – that was the appointment of Francine Federal Magistrates Kate Hughes and ner, delivered by Caroline Kirton, who McNiff to the Children’s Court. Heather Riley to the Federal Magistrates is Assistant Convenor of the Women In March 1985, Lynne Opas QC took her Court; and Magistrates Luisa Bassani, Barristers Association, and the Immediate place on the County Court Bench under Fiona Stewart, Carmen Randazzo, Past President of Australian Women her married name as Judge Shiftan. Pauline Spencer, Sarah Dawes and Lawyers. In September 1985, Judge Margaret Judicial Registrar Angela Soldani, all to Tonight, we celebrate the 10-year Rizkalla was the fi rst woman appointed the Magistrates’ Court. Michele Williams anniversary of the appointment of the to the Magistrates’ Court. Justice Sally

58 59 Brown was appointed to the Magistrates’ Court in October 1985. There were a number of appointments to the Magistrates’ Court in the 1980’s, including Justice Linda Dessau and Judge Wendy Wilmoth. However, since Judge Shiftan’s resigna- tion from the County Court in 1988, there had been no woman on the County Court, and, of course, never any woman on the Victorian Supreme Court. Tim Bugg President, Law Council When I signed the Roll of Counsel in Australia; Christine Harvey,CEO Vic November 1990, there was no woman on Bar, and Caroline Kirton. the Bench of either the County Court or the Supreme Court. Rosemary Balmford’s appointment as a Judge of the County Court in July 1993 began the modern era of judicial appoint- ments in Victoria. Justice Elizabeth Curtain’s appointment to the County Court followed in November 1993. Nineteen-nighty-three was a good year. Master Kathryn Kings was appointed a Master of the Supreme Court in March 1993. Rosemary Balmford was appointed to the County Court in July 1993. Justice Susan Crennan was elected Chairman of the Bar Council in September 1993. And Justice Elizabeth Curtain was appointed to the County Court in November 1993. In March 1996, Rosemary Balmford was appointed to the Bench of the Supreme Court. I well remember the delight of women at the Bar to at last have a woman on the Supreme Court Bench. In the decade or so since Rosemary Justice Neave Balmford’s appointment to the County Court, there has been significant progress Having served articles at Whiting & Byrne, in appointing women to the Benches of (now incorporated into Corrs Chambers Victorian Courts. Westgarth), and got admitted, she went We now have seven women Judges overseas for a year. on the Supreme Court, including the She then resumed at Whiting & Byrne Chief Justice. We also have three women as an employee solicitor. She was, at the Masters on the Supreme Court. There are same time, Resident Tutor in Law at Janet 20 women Judges on the County Court. Clarke Hall, and an Independent Lecturer There are 37 women Magistrates. at the University of Melbourne. In the County Court, that’s just over Her Conveyancing lectures were in a third of the Judges: 20 of 57. It’s also the early morning. She worked all day at close to half the Supreme Court Masters: Whiting & Byrne. Her JCH Tutorials were three of seven. It’s about a third of the in the evening. Magistrates: 37 of 108. Of the Supreme She made partner at Whiting & Byrne Judge Jane Campton and Judge Susan Court Judges, the proportion is only: in 1960, less than 4 years after admission. Pullen. seven of 35 — one-fifth of the Judges. And her son, Christopher was born in But Justice Marilyn Warren is the Chief November 1964. Association — and she was President in Justice. Those who remember those times 1965 and 1966. Rosemary Balmford is a shining exam- recall that very few of the large city firms In the 1960’s, generally, once you ple for women in the law. of solicitors had even a woman solicitor became a partner in a respected city firm She was admitted to practice on 1 — much less a woman partner. of solicitors, you stayed there. Rosemary March 1956 — the Olympic Games in All through this time, and beyond Balmford did not. In 1969, she left Whiting Melbourne were in November that year. — from 1958 when she returned to & Byrne and began part-time study for an Rosemary Balmford managed what is Whiting & Byrne, to 1967 — she was MBA. now called “work-life” balance brilliantly. on the Committee of the Legal Women’s She finished with a full-time year, and

60 61 nine-year-old son. He innocently asked me “Why are there all these pictures of old men?” In 2003, the Bar approached the five women who had been Judges of the Supreme Court — Justices Rosemary Balmford, Susan Kenny, Marilyn Warren, Julie Dodds-Streeton and Katherine Williams. They were asked to participate in a photographic portrait. The immediate and unanimous response of the other four Judges was to suggest a portrait of Justice Balmford

All her professional life, Rosemary Balmford has worked, and networked with, and supported others. She has been a friend and “more than a mentor” to fellow women Judges ...

alone — in recognition of her unique achievements. Characteristically, Justice Balmford preferred to be photographed with the group. Justice Balmford had been a friend and mentor to the women who followed her onto the Court — “more than a mentor”, Judge Lisa Hannan, Michele Williams S.C and Carman Randazzo S.C. one of them said. That portrait, which hangs in the foyer to Owen Dixon West, went straight from that into the Executive Then, in 1993, she was appointed a reflects the “more than a mentor” relation- Directorship of what became the Leo Judge of the County Court and, in 1996, a ship. It reflects also the collective strength Cussen Institute for Continuing Legal Judge of the Supreme Court. of the five appointments. Education. After retirement due to statutory Another powerful Image of Women in Rosemary Balmford established the Leo requirements, Rosemary served as a the Law is the wonderful photograph of Cussen Institute from scratch. She rented Reserve Judge for approximately another Justices Balmford, Warren and Dodds- some rooms. She took in an electric kettle two years. Streeton — the first sitting of the Full from home. The first files were kept in a One of the very good things this Bar Court constituted entirely of women cardboard box. She did everything: plan- has done these last few years is to estab- Judges. They are in ceremonial scarlet, ning, policy, budgeting, premises, staff lish the series of Images of Women in the and Justice Balmford is presiding. This and programs. Law. was for the admission ceremonies in By 1975, the Practical Training Course There have been women barristers August 2002. at the Leo Cussen Institute was not only for a very long time. Joan Rosanove All her professional life, Rosemary the best in Australia — it also had an QC signed the Roll in 1923. But all the Balmford has worked, and networked enviable reputation internationally in the “images” around chambers have been with, and supported others. She has been Common Law world. exclusively of men. a friend and “more than a mentor” to fel- In 1977, Rosemary Balmford resigned Inescapably, the image projected by the low women Judges. She has been a friend, from Leo Cussen, and spent a year writ- art work in Chambers was that of a profes- and mentor, and inspiration to the eight ing a book Learning about Australian sion engaged in by men — or at least in young people who served as her Associate Birds. which only men achieve eminence. on the Supreme Court. She has been, and There then followed Some five years as The significance of the image projected continues to be, a good friend and shining Assistant Solicitor for Special Projects at by the bar in artwork, was brought home example for women in the law. the University of Melbourne. This was fol- to me one day two years ago, when I We celebrate this 10-year anniversary lowed by 10 years as a Senior Member of walked through the foyer areas of Owen of Rosemary Balmford’s appointment to the Administrative Appeals Tribunal. Dixon Chambers East and West with my the Supreme Court.

60 61 News and Views A Cricket Story

Tony Radford

“I played against Don Bradman AC.” The proof. Two young men, one from Horsham (Vic.) and one from Bowral.

IR Donald Bradman was born on 27 of this family story, but without success. August 1908. From Bowral teams he I had thought of a possible Country XI Sjoined St George Grade Club at 19; match at or near a border town such as was first selected in the NSW Shield XI Narracorte or Penola, Nhill, Wentworth, in its first match of the 1927–28 season; Corowa or Albury. picked in two Australian XIs, then the Another possible clue was an Army Australian Test side (v England) in 1928– match either either in Melbourne or 29; then rarely out of State and Australian Brisbane, as two massive WWII transit XIs before retirement. points for different war zones. Both men His personal life has been much written were in the army. about, his cricketing career and statistics There are no Victorian Teachers’ well documented, with a natural empha- College Cricket Sporting Records from sis on the major matches in which he the 1930–40 era. The Army HQ records for played. 1939–1948 of St Kilda Road, of Balcombe Until mid-2006 however, there had and Bandiana brought no return. been no comprehensive account nor one Librarians and other staff at the MCC published volume of records of the detail the VCA, the NSWCA, the Mortlock of most of the minor matches in which he Library (SA) and the Bradman Museum at played. Bowral have been kindly and prompt with The late Dr William (Bill) Cropley responses. Radford AO MBE (Milit)FACE (a former Tony Radford At least by January 1931, the Don had Director of the Australian Council for established a capacity for large scores with Educational Research and a part time- old, one home-cricket coaching ses- repeated success at all senior levels. On 16 lecturer in Measurement in Education sion along a long hard-earth driveway in January 1931 for the Australian Test XI v at University of Melbourne) was born at Balwyn was memorable, to a point. the West Indies ( on tour “down under”), Crowlands (near Ararat, Victoria) on 20 Discussion focussed on a proper grip he made 223; on 24 January 1931 for NSW May 1913. His primary and secondary of the bat. “Wrists behind the handle!” against Victoria, he made 33 and 220. school days were in Horsham, Victoria, “Why Dad ?” “More strength to hit the ball As was (and still is) a custom in crick- where his father was headmaster of and to defend. Don Bradman did!” “How eting countries, hospital staff occasionally Horsham State School. He wished to do you know that?” “I played against him arrange social sporting events, “ringing in” teach and on completing Leaving Honours once.” known sports people. (Year 12), spent 1930 and 1931 teaching I think we then went inside for a soft Such has been the critical link in the at Horsham State School. drink where he spoke of the match in information I received recently from Bill Radford played senior cricket with which he had played against the Don. interstate. Mercantiles in Horsham in the 1928–31 The Don had come in. The captain had In mid-June 2006, Alfred James, an years. From the age of 15, he usually (under protest from the hapless fields- Honorary Research Librarian with NSW opened the batting. He played in Country man) placed my father at silly mid-on. Cricket, published: The Don versus the week in Melbourne in season 1930–31. That fieldsman told me that Bradman Rest — The Scorecards of the Minor From the time he came to reside in hit the first two balls straight at him, for Matches played by Sir Donald Bradman Melbourne in 1932 to attend Teachers’ 4s. For the rest of the eight ball over, the 1920/1921 to 1962/63. College and University of Melbourne, he captain yielded and Radford fielded at The publication is a limited edition of played very few games of cricket. In 1933 deep square leg! only 100 copies. he started playing B Grade pennant ten- Apparently the Don made a large score. A short letter I received in mid nis with Parkville on Saturdays, a sport he Radford, later, just nudged the scorebook September 2006 came six years after continued until his late 1940s. He died in with the bat. earlier correspondence from the same late November 1977. For several decades, in a leisurely fash- friendly source, the NSW Cricket Head When the writer was about 10 years ion the writer has researched for proofs (Honorary) Research Librarian Colin

62 63 News and Views

Clowes. He had earlier sent me reports matches in which the Don had played, XI made 6/411. of matches in Holbrook and Albury circa where a “Radford” had also played. The Victorians played other matches in 1932–33 where the Don and others of a One of these involved a (most power- Sydney between 4 and 18 January 1931. NSWCA side played local (NSW) sides. ful) South Australian Cricket Association It is most pleasant to now have these NSWCA exhaustive searches were other- XI v Southern Districts at Strathalbyn records — for the nation — and for family wise fruitless. Showgrounds (SA) on 30 November reasons The recent short letter enclosed photo- 1938. It is just as pleasant also to now dispel copies of pages from the book of two minor That did not involve any relative of the “doubts” — and satisfy the skeptics mine. — of several decades, of the authenticity The other did. of the (Victorian) (W.) Radford/Bradman That was a match played on 4 January story. The Don was not a 1931 at Gladesville Mental Hospital. The Don was not a doubter, for he had doubter, for he had (NSW) The Hospital XI included the Don rightly denied playing in any match involv- and at least one other Bowral player, one ing a Victorian Country XI in Victoria. That rightly denied playing J.E. Culpitt, a friend of the Bradman fam- specifi c denial came in a response to a in any match involving a ily. letter I had written to him in 1999 seek- Victorian Country XI in A touring Victorian School Teachers’ ing, fi rst, copyright permission to use an Victoria. That specifi c XI, batted fi rst, making 132. extract from the fi nal edition of Farewell W. Radford at No 3 was out lbw to to Cricket for the front cover of a menu denial came in a response Nolan for 4. The Don took 2 for 3. for a Victorian Bar Cricket Dinner. (That to a letter I had written to Then the Hospital batted; the Don consent was granted.) I had raised also him in 1999 ... opened, making 202, with 30 fours and 7 the question of him having played a match fi ves. Radford took 0 for 24. The Hospital against a Victorian country XI in Victoria.

62 63 It is hoped that Alfred James book could be further reprinted to meet a demand. That demand would emanate not just The Essoign Wine Report from family members and friends of play- ers for and against the Don in one or more By Andrew N. Bristow of the 349 matches now reported. An index of those involved as players KIRRIHILL ESTATE CLARE VALLEY RIESLING 2005 — both in the sides with the Don and against with their nicknames — if known, irrihill Wines was established in The wine colour is a pale lime/yellow is included. 1999 and is located in the gently colour of brilliant clarity. The famous “honeymoon tour” matches Krolling hills of South Australia’s The palate is rich and concentrated, to Canada and the USA by Arthur Mailey’s famous Clare Valley wine region. The yet fine and delicate, with intensely Australian XI (with wives) in 1932 is winery was purpose built and is unique. focused fruit backed by mouthwater- chronicled. The open-air “winery without walls” ing acidity. The finish is clean but In late 1940 three matches were played provides an inspiring 360 degree view with astringency on the back palate. by the Defence Forces — Bradman for of the vineyards and hills. The cantilev- Although drinking well the Army Physical Education Instructor’s ered roof and sail-cloth provide shade now, this is a wine School at Frankston (Balcombe), — all for the stainless-steel fermentation with aging potential. played in Frankston and a fourth against tanks and allow an abundance of natural It has 12.0 per cent the MFB by that Army XI, at the Richmond light, creating a bright and open work- alcohol. It is ready to Cricket Ground. (This last match is ing environment. drink now and should referred to in Frank Tyson’s book on the The fruit for this wine came from two be drunk over the sum- Richmond CC.) blocks of old vines. The growing season mer months. It should The new book of the minor matches in Clare in 2005 was widely considered be drinking well for at played by the Don is a gem. to be almost perfect, with a warm spring least the next two to On a further personal note, when the and mild summer combining with regu- four years. It is avail- writer was about 14, he also learnt from lar rainfall to provide even and consist- able from the Essoign his father that in WWII amongst the Army ent vine growth and fruit ripening. The Club at $26.00 a bottle ranks at El Alamein in the 9th Division- grapes from each vineyard block were or $6.50 a glass (or was a logistics person with the nickname picked and processed separately, with $22.10 takeaway). “Braddles”. each being crushed and de-stemmed, I would rate this Where did that name come from, I then chilled prior to draining and wine as a mature-aged wonder? pressing. The free run juices were cool entry barrister, a bit My thanks for the lives of two great fermented in stainless-steel, and the unsure of itself, but men. resultant wines racked and stabilised. appropriate to be used This wine’s bouquet exhibits classic during the summer lemon zest and spiced lime aromas. vacation. TAILORING

Suits tailored to measure Alterations and invisible mending Quality off-rack suits Repairs to legal robes Bar jackets made to order

LES LEES TAILORS Shop 8, 121 William Street, Melbourne, Vic 3000 Tel: 9629 2249 Frankston Tel: 9783 5372

64 65 News and Views/A Bit Abour Words The King’s English

WO thousand and six marks the know the linguistic facts; … At sight of whole repertoire in a single newspaper let- hundredth anniversary of the first ere he is irresistibly reminded of that sad ter of 20 or 30 lines, and — what is worse Tedition of The King’s English. It spectacle, a mechanic wearing his Sunday — cannot live up to the splendours of which was written by Henry Watson Fowler clothes on a weekday. he is so lavish: charmed with the discovery and his brother Francis George Fowler. of some antique order of words, he selects It was immediately popular. The second And speaking of anent, they note: a modern slang phrase to operate upon; he edition was published just two years later, begins a sentence with ofttimes, and ends it in 1908. A third edition was published in The Oxford Dictionary says drily (of anent): with a grammatical blunder … 1930. It is still in print. “Common in Scotch law phraseology, and Metrical Prose: The novice who is con- My affection for this book began 50 affected by many English writers”; it might scious of a weakness for the high-flown and years ago, when my father decided that have gone further, and said ‘affected’ in any the inflated should watch narrowly for met- my English education needed to be sup- English writer”; such things are antiquarian rical snatches in his prose; they are a sure plemented. Coincidentally, it was the rubbish, Wardour-Street English. sign that the fit is on him. ouch( !) same year that My Fair Lady premiered: the first, and probably the only, celebra- Wardour Street English is so named It is interesting to see how, after 100 tion of philology in a Broadway musical. after the London street famous for its years, the simple principles of vocabulary The structure of the King’s English is antique shops. H.W. Fowler gave us more set out in The King’s English are as good that of a fairly orthodox grammar. Even so, about it in Modern English Usage: and serviceable now as when they were the chapter titled Airs & Graces includes written. Winston Churchill instinctively such sub-headings as: Elegant Variation, As Wardour Street itself offers to those followed the principles laid out in the Archaism, Trite Phrases and Cheap who live in modern houses the opportunity opening chapter of The King’s English. Originality. Part II collects together a wide of picking up an antique or two that will On 4 June 1940, he famously said in the range of examples selected by the Fowler be conspicuous for good or ill among their House of Commons: brothers to illustrate some of their pet surroundings, so this article offers to those subjects. These are drawn together under who write modern English a selection of We shall not flag nor fail. We shall go on to such teasing headings as Antics, Wens and oddments calculated to establish (in the the end. We shall fight in France and on the Hypertrophied Members, Omission of as, eyes of some readers) their claim to be seas and oceans; we shall fight with grow- Other Liberties Taken With as, Journalese, persons of taste and writers of beautiful ing confidence and growing strength in the and Commercialisms. English ... air. We shall defend our island whatever the On the first page of The King’s cost may be; we shall fight on beaches, land- English, the Fowler brothers laid out the The magnificent thing about The ing grounds, in fields, in streets and on the governing principles of English vocabulary King’s English is that the reader is never hills. We shall never surrender … as they saw them: left in doubt about the authors’ views on a subject. The idea of dinner or a glass of (It has often been suggested that the Prefer the familiar word to the far-fetched. wine with the authors is at once exciting speech consists only of Saxon words, Prefer the concrete word to the abstract. and terrifying. In their unblinking criti- except for surrender, which comes from Prefer the single word to the cism of the faults they find, the Fowler French, but the observation is not accu- circumlocution. brothers make only slight allowance for rate. Of course, as so often, context is eve- Prefer the short word to long. the fame and reputation of the author, but rything: the Belgians had surrendered the Prefer the Saxon word to the Romance. some of their sharpest barbs are reserved week before; the evacuation from Dunkirk These rules are given roughly in order of for the pretentious amateur: had ended earlier on the day of Churchill’s merit; the last is also the least. speech, and the French were on the brink Airs and Graces: Some of the more obvi- of capitulating (Romance word). In the In their discussion of the “Saxon not ous devices of humorous writers, being circumstances it would not have made Romance” principle, on the second page fatally easy to imitate, tend to outlive their quite the same political point to acknowl- of the book, they set the tone of what is natural term, and to become a part of the dege that defend and confidence come to to follow: injudicious novice’s stock-in-trade. Olfac- us from French.) tory organ, once no doubt an agreeable As well as providing a durable guide There are, moreover, innumerable pairs of substitute for “nose”, has ceased to be legal to good prose, The King’s English is synonyms about which the Saxon principle tender in literature, and is felt to mark a low a snapshot of the language 100 years gives us no help. The first to hand are ere level in conversation. ago, as it was seen by two very keen and before (both Saxon), save and except Elegant variation: An educated writer’s observers. They regard placate, tran- (both Romance), anent and about (both choice falls upon archaisms less hackneyed spire, and antagonize as unacceptable Saxon again). Here, if the “Saxon” rule has than the amateur’s; he uses them, too, with Americanisms which should be resisted. nothing to say, the “familiar” rule leaves no more discretion, limiting his favourites to They list a number of imported words they doubt. The intelligent reader whom our a strict allowance, say, of once in three regard as fully naturalised: tête-à-tête, writer has to consider will possibly not essays. The amateur indulges us with his ennui, status quo, raison d’être, and

64 65 négligé. Fair enough: they can probably This is an interesting mark of the treasured, or at least respected, by gener- be used without affectation. But the list way things have gone. Few Australian ations of readers and writers who choose also includes eirenicon which is not seen readers would recognise either word; to ignore or disregard the assessment of at all these days. It means a proposal no Australian newspaper is likely to use H.W. Fowler in the Oxford Companion to tending to make peace; an attempt to either. In fact, Australian newspapers the English Language: reconcile differences. (What a pity that rarely provoke the need for an English we apparently have no need of it.) They dictionary, let alone a French one. Fowler was a gifted amateur scholar ... doubt whether, in 1906, camaraderie is Other foreign words which attract their he remained essentially unaware of the naturalised English: but nowadays most criticism include epochmaking, to orient linguistic controversies sweeping through speakers would scarcely recognise it as a and morale: the Universities of Europe and the New foreign import. World. He did not read the learned jour- And consider this passage from the The French for what we call morale, writ- nals and books in which scholars ... were London Times, and their criticism of it: ing it in italics under the impression that propounding the doctrine of prescriptive it is French, is actually moral. The other linguistics. His models were the classical The two Special Correspondents in Berlin is so familiar, however, that it is doubtful languages of Greece and Rome, modified of the leading morning newspapers … whether it would not be better to drop the to suit the facts of the English language as report a marked détente in the situation. italics, keep the -e, and tell the French that he saw them. The responses of writers and — Times. they can spell their word as they please, and scholars to his work have varied, journalists we shall do the like with ours. tending towards praise and even adulation, Of this they say: academic linguists towards caution and We have done as they suggested. even reproof. Entente is comprehensible to every one; but It is interesting to see how prominent with détente many of us are in the humiliat- foreign expressions were, in those gilded Sadly, the Oxford Companion has ing position of not knowing whether to be Edwardian days: no entry for F.G. Fowler, but in dedicat- glad or sorry. ing Modern English Usage (1926) to To say distrait instead of absent or absent- the memory of his brother, H.W. Fowler Most readers today would not have the minded, bien entendu for of course, sans wrote: same difficulty:détente is widely used. for without … quand même for anyhow, Another bit of showing off by the penchant for liking or fancy, redaction I think of it as it should have been, with its Times attracts their attention: for editing or edition, coûte que coûte for prolixities docked, its dullness enlivened, at all costs, Schadenfreude for malicious its fads eliminated, its truths multiplied. It was he who by doctoring the Ems pleasure, oeuvre for work, alma mater He had a nimbler wit, a better sense of dispatch in 1870 converted a chamade (except with strong extenuating circum- proportion, and a more open mind, than his into a fanfaronnade and thus rendered stances) for University — is pretension twelve-year-older partner; and it is a matter the Franco-German war inevitable. — and nothing else … of regret that we had not, at a certain point, Times. arranged our understanding otherwise than Of that collection, penchant and we did … Of this they say: Schadenfreude are more or less common; alma mater and distrait are recognis- I am with those who praise the Fowler We can all make a shrewd guess at the able; redaction and its Anglo-participle brothers. In this book, preserved as in meaning of fanfaronnade: how many aver- redacted are only seen in technical usage. aspic, are the enduring treasures of our age readers have the remotest idea of what The others border on freakish, but they language; and the manners and disposi- a chamade is? and is the function of news- must have been common enough in use tion of a time which has gone forever. papers to force upon us against our will the 100 years ago to attract comment. buying of French dictionaries? A century on, The King’s English is Julian Burnside QC still an engaging and provoking book. It is

66 67 Sport/Hockey Bar Hockey Victorian Bar’s Miserable Failure to Beat the Law Institute Team

N Thursday 12 October 2006 the and as he might himself concede slightly scored another goal, but we were able Victorian Bar Hockey Team spec- heavier than in previous times, Goldberg to equalise following a superb run by Otacularly failed to obtain an appro- was playing very well. Tweedie and a crisp short from Robinson. priate result against the Law Institute of Against the run of play the LIV team Two all with fi ve minutes to go was Victoria (LIV) Hockey Team. The Bar side assembled as usual at the State Hockey Centre and we were pleased to see a superabundance of players. No less than 14 had turned up. We were even more pleased to see that the Law Institute team seemed bereft of numbers, muster- ing ultimately only eight. A call for volunteers to play for the opposition produced a positive response only from Brear whose decency shone through as ever. Starting therefore with 13 players against nine, I felt confi dent that we might do better than last year. We dominated play from the start, although the two State League One play- ers playing for the LIV Team remained a constant threat on the break, very ably assisted by a State League One woman’s player at centre forward. The defeated rabble: (rear) Riddell, Elden, Wood, Goldberg, Collinson, Sharpley, Despite missing numerous chances Robinson, Andrew Tinney and Gordon and (front) Clancy, Tweedie, Burchardt we went 1–0 up when Clancy (who had and Morgan. attended from Canberra for the game — an endeavour beyond the call of duty) pretty good going, but then collective scored off a short corner and we went to madness ensued. Riddell, who had played half time at 1–0. extremely well, and Wood pushed forward We were still 1–0 up with approximately leaving only — (gulp) — me at the back. twenty minutes to go when a short pass by A turnover lead to an attack in which the writer to Tweedie led to a tackle by the solicitors had 3 against 1, and easily one of the LIV stars who went through on bypassing me and with slightly greater dif- goal and obtained a penalty stroke which fi cultly Sharpley they were able to score was then converted by Schokman. The the winner. game continued in a predictable manner. The Bar forwards did manage to miss a The solicitors defended in-deep and we quite substantial number of chances dur- counter attacked. ing the game, but while that is so it is fair Their counter attacks were made the to say that scoring goals always looks a lot more dangerous by the relative lack of easier when you are in defence. Gordon, pace of Wood and myself on the back line, Morgan, Collinson, Robinson as well as although Sharpley played outstandingly Goldberg all did extremely well upfront. in goal. Tweedie and Clancy in particular While it was disappointing to see a were playing extremely well. game slip away that we might otherwise The Bar was particularly pleased to have won (Michael Tinney was much welcome back Philip Goldberg on this missed) the game was as ever played in occasion who had not played for eight a very good spirit. Everyone who played years. Despite being somewhat rusty, Schokman with the Rupert Balfe trophy. from the Bar Team did their best, and

66 67 beating a team with two players in their Schokman joining the Bar at some point, This fi xture has been running now for early twenties who are still playing at top in which case results are likely to change some years and it is pleasing that although grade is always going to be a big prob- dramatically. it is always a bit of a struggle for the away lem even if the other side was nominally For the fourth year in a row Schokman team to get the numbers, we have none- undermanned. won the Rupert Balfe Award for the Best theless been able to continue it. The game was extremely well umpired Player on the night. It was richly deserved. We owe a considerable debt to Andrew by Lou Cirillo and another appointee Rumours that the Bar Team has taken out Scotting who continues to organise the arranged by Tony Dalton from the a contract on Schokman’s knee to ensure NSW Team and venues and obviously to Mentone Club. his not playing next year are as defama- those who came up and took part. The game was well celebrated after tory as they are true. Richard Brear very kindly arranged for the event in the bar at the State Hockey the Rupert Balfe-Lycester Meares Cup to Centre and we looked forward to Philip Burchardt FM be engraved, and photographs will doubt- less accompany this article of its presenta- tion after the game. It was particularly pleasing to see that Peter Callaghan QC is still playing for Unexpected Victory in NSW the NSW Team. Peter’s energy, commit- ment and love of the game continue to be impressive given the fact that he is now AVING lost ignominiously to the tary reply but we held on for a comfort- somewhat over 21 years of age. solicitors, I was concerned as to able win. We look forward to seeing our NSW Hhow the Bar Hockey Team would The Kyeemah venue is from the colleagues down in Victoria next year but fare in its game against the NSW Bar in point of view of the visiting team abso- await with dread the continuing prospect Sydney. lutely ideal. It is close to the airport, that a current Australian International is We had a full side three or four days has a leagues club (with excellent due to sign the Bar Roll in the relatively before the game, but late cancellations food and drink facilities) literally right proximate future. meant that we had to borrow two players next door, and the surface itself is a good Those who took part in this very enjoy- from NSW. one. able and successful game were Sharpley, When we gathered at the Kyeemah The game was ably umpired, and our Wood, Burchardt, Thorburn, Clancy, Leagues Club ground, prettily situated two ring-ins both played extremely well Brear, Gordon, Morgan, Tinney, Robinson just opposite the International Airport, (a matter of some heartache to the NSW and Makin. it transpired that we had nine players. team) but they played no better than the All of those named played excellently. Simon Makin and Robbie Thorburn of the three players we gave them last year in Gordon Hockey Club very kindly made Melbourne. Philip Burchardt FM themselves available to play for us. Fears that the year had fi nally come when we would be overrun proved un- founded. We actually won the game 4 goals to 1, an astonishing form reversal. Having started cautiously (not aided by the writer’s fi rst four passes being superbly executed to the opposite team) we obtained a short corner which Clancy hit in and following a save Tinney scram- bled the ball home. By half time Clancy had scored off another short corner and we seemed to be doing fairly well. Fears that we would be overrun were well and truly put to rest when Ross Gordon scored early in the second half, and when Michael Tinney capped an out- standing performance with a superb shot we were 4–0 up with only a quarter of an hour to go. As is so often the way when numbers are down, everyone was playing very well, with John Morgan covering a lot of ground at right inner and Clancy as always excel- lent in central midfi eld. A moment of lack of concentration on our part allowed Andrew Scotting, who organises the NSW Team, to score a soli-

68 69 Lawyer’s Bookshelf

Australian Cases on Australian Cases on Contract are best and analysis with footnotes to relevant described as “abridgements” and in doing cases and legislation at the end of each Contract — 2006 so the editor seeks to retain the words section. (and meaning) of the original judgment, The book also contains cross referenc- Edition (7th Edn ) without (hopefully) affecting their sense, ing to other relevant parts or topics found style or meaning. Edited by M.P. Ellinghaus within the Laws of Australia encyclope- It is possible to establish the extent Code Press distributed by Lexis dia. of the abridgement by reference to the Nexis The work deals with contract under square brackets indicating the page Pp i–xii, 1–698, Index 699–713 the familiar headings of formation, par- number in the original report. Pages of ties, terms, performance and breach, etc. ustralian Cases on Contract began the original judgment are reduced to The section dealing with vitiating factors Alife in 1983 as The High Court of a paragraph or two, and paragraphs to includes discussion of the requirements Australia on Contract 1950–1980. In sentences. of the Statute of Frauds, mistake and the original format the book contained The work arranges the cases chrono- illegality. It should be noted that matters abridgements of judgments delivered in logically, however I would suggest that such as misrepresentation, duress, undue 160 cases on contract by the High Court each case could usefully have relevant influence and unconscionable conduct are in the period 1949–1980 together with catchwords referred to under the head- given relatively short exposition due to four Privy Council cases. ing in the text. It is possible to search the coverage of these specific topics more The work has now evolved to include for cases by topic or catchwords in the fully elsewhere in the Laws of Australia not just High Court cases but also a Index, however the Index unhelpfully encyclopedia. Similarly, special aspects of number of Federal Court and State then requires the Table of Cases to be contract law such as sale of goods, guar- Court decisions while the period covered consulted to ascertain the page number antees and insurance contracts are not extends from 1905 to 2005. for each case in the text. subject to detailed exposition in this text. Notably in the 2006 edition, cases Australian Cases on Contract will be For ease of reference, each section such as Esso Australia Resources Pty of interest to lawyers and students alike. is delineated by shading on the edge Ltd v Southern Pacific Petroleum NL It provides a ready access to a vast array of the pages, and at the beginning of and Vodaphone Pacific v MI Ltd (both of material from a number of jurisdictions each part a table of contents directs dealing with an implied term of good relevant to an understanding of Australian the user to particular sections (i.e. Part faith) (and see also Far Horizons Pty contract law. It is usefully updated with 7.1 — Formation — sections include Ltd v McDonalds Australia Ltd); FAI current cases. Negotiations, Intention, Offer and Traders Insurance v Savoy Plaza Pty The style of abridgement may not Acceptance, Options, Consideration and Ltd (subsequent conduct of parties as an please legal purists, but as a guide and Sufficiency of Agreement). The text use- aid to interpretation) and Ringrow Pty aide memoir to lawyers, students and to fully contains a very comprehensive table Ltd v BP Australia Pty Ltd (enforcement those interested in the development of of cases and index and a small but useful of penalties) amongst others have been Australian contract law this work is com- index of words and phrases. added. Eleven cases have been deleted mended. This single volume usefully combines from the previous edition. P.W. Lithgow comprehensive and scholarly treatment It is to be hoped that the author of the law with ample cross-referencing might consider including cases such as to cases and articles. Contract: General Baulkham Hills Private Hospital Pty Principles is sure to become one of the Ltd v GR Securities Pty Ltd (1986) Contract: General standard references for lawyers, students 40 NSWLR 622 and on appeal at 631; Principles — The Laws and others interested in Australian con- Abigroup Contractors Pty Ltd v ABB tract law. Service Pty Ltd [2004] NSWCA 181 of Australia P.W. Lithgow and Fletcher Challenge Energy Ltd v Edited by J.L.R. Davis Electricity Corp of New Zealand Ltd Published by Thomson LawBook Co, [2002] 2 NZLR 433 (all dealing with the 2006 formation of contracts and Masters v Pp i–cxlviii; 1–898; Index 899–944; The Constitution of Cameron) in the next edition. Word and Phrases 945–946; Professor Ellinghaus does not merely Bibliography 947–958 Victoria provide edited extracts of cases. The By Greg Taylor, (Chapter Seven by unique editing style reduces the text ONTRACT: General Principles Dr Nick Economou), Foreword by of judgments by the deletion of pages, —The Laws of Australia has previ- C the Hon Sir Daryl Dawson passages, phrases and single words. ously been published as part of the Laws The Federation Press, 2006 Occasionally some explanatory or link- of Australia encyclopedia. This book use- Pp i–xlii, 1–520, Bibliography ing text is inserted. The editor does not fully provides in a single volume a compre- 521–540, Index 541–550 hesitate to connect parts of sentences to hensive guide to contemporary contract form new sentences where this is possible. law in the Australian context. HE Constitution of Victoria provides All judgments in each case (including dis- The style of this volume follows the Ta scholarly and comprehensive excur- senting judgments) are reproduced in the format of the Laws of Australia ency- sion through the intricacies of the legal abridged form. clopedia. Each chapter contains section foundation of the political entity — the As the author acknowledges in his headings that set out a summary state- State of Victoria. While it is no doubt true opening, the judgments as presented in ment of the law followed by discussion to say that Constitutional Law is generally

68 69 thought of as the study or analysis of the disqualification of members of parliament, cepts of the misrepresentation, estoppel, Australian Federal Constitution, the posi- contempt, parliamentary privilege and the duress, undue influence and unconscion- tion of state constitutions in Australia as honourific titles of members. able dealing. Its sections are referenced to little understood and rarely studied docu- The final two chapters deal with the related titles and subtitles in the Laws ments will be challenged by this work. judicial power and questions relating to of Australia, Recent (further) rumblings about the amendment of the constitution (including I found the book easy to follow as it led Federal-State balance in light of the High possible “entrenchment” of a constitu- me through the various topics, and the Court decision in NSW v Commonwealth tional provision). format employed was designed to express [2006] HCA 52 has brought a level of This book published “as near as pos- in simple terms the un-simple. To give one renewed debate about the true meaning of sible to the sesquicentenary of Victoria’s example in relation to inducement the the federal nature of the Commonwealth/ Parliament” and is a valuable and schol- authors’ wrote [35.2.4x]: State relationship. Further, the changes in arly contribution to an important, but Victoria to the electoral system provided often underestimated area of public law The onus of proving the inducement is for by the Constitution (Parliamentary in Australia. The work is written in an on the recipient, his understanding of the Reform) Act 2003 which provided for, easy style and usefully concentrates on representation must be the subject of evi- amongst other things, fixed four-year the current Victorian constitutional posi- dence. This is ordinarily satisfied by calling terms for both the Victorian Legislative tion. Accordingly, this work is not some the representee or his servant or agent to Assembly and the Legislative Council, musty tome about arcane practices largely give direct oral evidence to the effect which and the reform of the Upper House rooted in a dim colonial past, but is a the representation had on his mind. provinces into eight regions, each elect- modern, up-to-date and scholarly work ing five legislative councillors, with the dealing with a Constitution of relevance That simple proposition is supported by consequent possibility of the election of and importance to all Victorians. This reference to a number of cases which are so-called minority, or special interest, relevance is highlighted by the significant cited in the footnotes. It is evident from members of Parliament, has shown that recent electoral changes that passed the footnotes that the authors have done State Constitutional law is relevant and their first test in the 2006 Victorian State much research. The propositions that are topical today. Election. The Constitution of Victoria developed are supported by reference to While The Constitution of Victoria should have a place on the bookshelves decided cases. For a practitioner, this is a usefully provides some historical back- of lawyers, parliamentarians and politi- very important starting point, whether it ground, the majority of the text and cians, judicial officers, public servants and be the writing of an opinion or the pres- discussion is of current Victorian constitu- those interested questions of public law entation of the case before the Court. A tional law. The chapters dealing with the in Australia generally and Victoria more further example may given in reference Crown and Executive Council and Cabinet particularly. to unconscionability, where in Chapter 3 include comprehensive discussion of the P.W. Lithgow they explore in detail the various notions power and position of the Crown, the of unconscionability such as the exploita- Governor, the Premier and Ministers in tion of vulnerability, the abuse of the posi- Victoria. There is also a useful discussion Unconscionable tion of trust or of confidence, the harsh on the position of the Attorney-General and oppressive exercise by one party of in light of some of the recent develop- Conduct, The Laws of his or her rights, the denial of obligation ments as to whether the Attorney-General and the unjust retention of property. should act so as to “defend the Courts”. Australia This is a book I would thoroughly rec- Two chapters are devoted to Parliament- Edited by Paul Vout ommend for any person whose practice Structure and Powers (Chapter 5) and Pp. 1–LXV1, 1–572 involve the application of commercial law. Workings and Practice (Chapter 6). The The views of the authors are expressed new mechanism for resolving a deadlock HE book originally appeared in the succinctly and are of valuable assistance. between the houses is extensively dis- Ttitle of Unfair Dealing In The Laws cussed. There are also interesting diver- Of Australia Encyclopaedia. It provides John V. Kaufman QC sions into topics such as qualification and a comprehensive analysis of the con-

Building a new home or investment property? Our Building and Construction team can assist with: à Building project advice à New home and renovation contracts à Building disputes — domestic and commercial à Off the plan sales advice à Warranty insurance disputes Level 13, 469 La Trobe Street, Melbourne 3000 Tel: (03) 9321 7836 Email: [email protected] www.rigbycooke.com.au

70 70 ���� ��������� �������

���������������������������������������������������������������������� ����������������������������������������������������������������������� �����������������������������

����������������������������������������������� ������������������������������ ������������������������������������������������� ��������� �������������������������������������������������������� �������������������� ������������������������������������������������� �������������������� ����������������������������� �����������������������

��������������������������������������������������� ��������������������������������������������������������

��������������������������������������������������������������������������������������������������������������

Financial advice FP ad rev_FA.in1 1 15/11/06 9:49:11 AM