Commbar Celebrates Its First Decade

VICTORIAN No. 131 ISSN 0159-3285BAR NEWS SUMMER 2004

CommBar Celebrates Its First Decade

Welcomes: Judge Sandra Davis and Judge Morgan-Payler Farewells: Judge Warren Fagan and Judge William Michael Raymond Kelly If Hedda Met Hamlet — Would They Still be Bored? The Twilight of Liberal Democracy Indian Rope Trick BCL: The Open Door to the Bar Chief Justices Warren and Black Address Senior Counsel The Heirs of Howe and Hummel Launch of the Trust for Young Australians Photographic Exhibition Mother’s Passion The Bar’s Children’s Christmas Party Here There Be Dragons ... Victorian Bar Superannuation Fund: Chairman’s Report The Readers’ Course Wigs on Wheels Around the Bay Verbatim Wine Report Sport/Bar Hockey 2004 Advanced and High Performance Driving ��

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�� 3 �� VICTORIAN BAR NEWS No. 131 SUMMER 2004 �� Contents EDITORS’ BACKSHEET 5 Issues Raised by Victorian Government’s Proposal to Appoint Acting Judges CHAIRMAN’S CUPBOARD 7 Bar Council’s Role in Legislation ATTORNEY-GENERAL’S COLUMN �� 11 Human Rights: the Direction for Victoria Welcome Judge Davis Welcome Judge Farewell Judge CORRESPONDENCE Morgan-Payler Fagan 12 Letters to the Editors WELCOMES �� 14 Judge Sandra Davis 15 Judge Morgan-Payler FAREWELLS 17 Judge Warren Fagan 19 Judge William Michael Raymond Kelly �� ARTICLE �� 21 If Hedda Met Hamlet — Would They Still be Bored? 24 The Twilight of Liberal Democracy Farewell Judge Kelly Indian Rope Trick 28 Indian Rope Trick �� NEWS AND VIEWS 30 CommBar Celebrates its First Decade �� 34 BCL: The Open Door to the Bar �� 36 Chief Justices Warren and Black Address Senior �� Counsel �� 39 The Heirs of Howe and Hummel �� 42 Launch of the Trust for Young Australians Photographic Exhibition �� 44 A Bit About Words/Mother’s Passion �� 46 The Bar’s Children’s Christmas Party Launch of the Trust for Young Australians Let There be Dragons 48 Here There Be Dragons ... Photographic Exhibition �� 50 Victorian Bar Superannuation Fund: Chairman’s �� Report �� 51 The Readers’ Course �� 52 Wigs on Wheels Around the Bay �� 53 Verbatim 53 Wine Report �� 54 Sport/Bar Hockey 2004 56 Advanced and High Performance Driving �� LAWYER’S BOOKSHELF �� 57 Books Reviewed �� Children’s Christmas Party �� 58 CONFERENCE UPDATE �� Cover: �� On 10 November 2004, the Commercial Bar �� Association celebrated its 10th anniversary with a reception within the Supreme Court Library — report page 30. �� Bar Hockey 2004 �� 3 Victorian Bar Council

VICTORIAN BAR COUNCIL Chairs of Standing Committees of the Bar Council for the year 2004/2005 Aboriginal Law Students Mentoring Committee *Executive Committee G Golvan S.C., C.D. Clerks: Applications Review Committee B *Ray QC, W.R. (Chairman) G Howard QC, A.J. B *McMillan S.C., Ms C.F. (Senior Vice-Chairman) Charitable and Sporting Donations Committee A *Shand QC, M.W. (Junior Vice-Chairman) D Riordan S.C., P.J. D *Fajgenbaum QC, J.I. Conciliators for Sexual Harassment and Vilification F *Dunn QC, P.A. B Curtain QC, D.E. F *Dreyfus QC, M.A. G *Lacava S.C., P.G. Counsel Committee G *Crennan S.C., M.J. G Crennan S.C., M.J. D *Beach S.C., D.F.R. (Honorary Treasurer) Equality Before the Law Committee F *Quigley S.C., Ms M.L. A Richards QC, Ms A. D *Riordan S.C., P.J. Ethics Committee D *Jones, I.R. B McMillan S.C., Ms C.F. A *Townshend, C.J. W *Neal D.J. Human Rights Committee R *Doyle, Ms R.M. D Fajgenbaum QC, J.I. D *Duggan, Ms A.E. Legal Assistance Committee L Hannebery, P.J. (Assistant Honorary Treasurer) G Howard QC, A. J. D *Connor, P.X. Legal Education and Training Committee F *Knights, Ms K.J. B Ray QC, W.R. R *Fairfield, C.G. Continuing Legal Education Committee D *Shaw, C.E. — Nettle, The Honourable Justice G *Anderson, Ms K.J.D. (Honorary Secretary) G *Neskovcin, Ms P.A. (Assistant Honorary Secretary) Accreditation and Dispensation Sub-Committee B Young QC, N.J. Ethics Committee Readers’ Course Sub-Committee B McMillan S.C., Ms C.F. (Chair) G Santamaria S.C., P.D. H Merralls AM, QC, J.D. S Willee QC, P.A. New Barristers’ Standing Committee S Lally QC, W.F. B Serpell, Ms C.J. P Bartfeld QC, M. Past Practising Chairmen’s Committee F Gobbo QC, J.H. G Berkeley QC, H.C. F Dreyfus QC, M.A. Professional Indemnity Insurance Committee G Lacava S.C., P.G. A Shand QC, M.W. H Lewis S.C., G.A. Professional Standards Education Committee A Macaulay S.C., C.C. S Willee QC, P.A. M Clelland S.C., N.J. G Gordon S.C., Ms M.M. Victorian Bar Dispute Resolution Committee R Batten, J.L. S Martin QC, W.J. L Lane, D.J. Victorian Bar Theatre Company Steering Committee F Shiff, Ms P.L. H Wilson QC, S.K.

VICTORIAN BAR NEWS Paul Duggan, Peter A. Clarke, Printed by: Impact Printing Editors Victoria Lambropoulos, Richard Brear 69–79 Fallon Street, Gerard Nash QC, Paul Elliott QC and and Peter Lithgow (Book Reviews) Brunswick Vic. 3056 Judy Benson David Johns (Photography) This publication may be cited as Editorial Board Published by The Victorian Bar Inc. (2004) 131 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 Issues Raised by Victorian Government’s Proposal to Appoint Acting Judges

ACTING JUDGES HE Victorian Government has introduced legislation (The Courts TLegislation (Judicial Appointments and Other Amendments) Bill 2004) to make provision for the appointment of acting judges. The Bill proposes that acting judges may be appointed for a period of up to five years and are eligible for re-appointment. Acting judges who have previously served as members of the judiciary may be appointed up to the age of 75. Other practitioners may be appointed up to the age of 70. We have expressed concern in these pages on earlier occasions as to the problems, whether perceptual or real, of appointing judges whose continued tenure of office depends upon the goodwill of the executive. A litigant, whose challenge to the valid- Faine on the ABC about a month ago can ity of legislation, or the interpretation have any doubts as to the flaws in the gov- placed on it by the executive, is dismissed The proposal has been ernment’s proposal. by a person whose tenure as an acting attacked, both eloquently MEASURING THE ILL WIND judge is to expire within 12 months but and with concise logic by who may be re-appointed at the discre- In the last issue of Bar News we observed tion of Cabinet, must necessarily have the Australian Council of that in Victoria, at least, “a barrister’s lot some doubt as to whether justice has Judges. Few who heard is not a happy one”. It is unlikely that the been done. the comments of Justice appointment of acting judges will have A similar doubt must necessarily be Sackville, the Chairman of much effect on the availability of work — engendered in the mind of a person except insofar as it may remove some of convicted by an acting Magistrate or by the Council, to John Faine our competitors, at least temporarily, from an acting Judge of the County Court in on the ABC about a month the market. David Denton in his interest- circumstances where the Magistrate or ago can have any doubts ing analysis which appears in these pages, Judge is “up for re-appointment”, the quotes statistics which would indicate executive is lamenting a breakdown in law as to the unwisdom of the that while the number of barristers need- and order and the verdict depends upon government’s proposal. ing to be fed by commercial litigation in resolving a straight conflict of evidence this State has increased significantly over between two people. It must also be manifest that justice has the last ten years, the size of the pie to It is unlikely, because of their train- been done. feed them has declined dramatically. If ing, conditioning and the general ethos The proposal has been attacked, both his statistics have any significance — and of the profession, that acting judges and eloquently and with concise logic by the they must — and if they can be extrapo- magistrates will behave otherwise than Australian Council of Judges. Few who lated over the Bar as a whole, the picture with the utmost propriety. But procedural heard the comments of Justice Sackville, is indeed a grim one. fairness involves not only doing justice. the Chairman of the Council, to John We need more judges, an efficient

4 5 docket system, shorter turnaround times from the prosecution witnesses in cross- ceedings should be open to the public in and firm commitments for starting dates. examination. In other words, the evidence accordance with the general common law Unless they can be achieved litigants does not give a rounded picture of events, principle of open justice. It is many centu- who can choose will litigate in New South but rather presents, basically, one side of ries since the Court of Star Chamber was Wales rather than in Victoria. the case. abolished, and open justice does require That the judiciary are aware of this fact Jurors are (probably fortunately) that committal proceedings not be closed and are doing what they can — without human beings, who bring their own life’s to the public. additional judges — to cope with the experience, prejudices, passions and sym- There is another reason apart from problem is indicated by the fact that with pathies with them into the jury box. It is the general public interest criteria for less than one month to go of her first year the function of the trial judge to ensure by conducting such proceedings in public of office, Chief Justice Warren can point careful directions that the impact of the and for allowing the proceedings to be to the fact that no case in the Supreme prejudices, passions and sympathies is reported. Occasionally, a potential witness Court this year has been marked but not minimised. However, when a high profile knows nothing of the proceedings until he reached. case obtains high profile publicity at the or she reads the Crown evidence which he committal stage, potential jurors will often or she knows to be mistaken. Occasions PUBLICISING COMMITTAL form very clear views as to the merits of have occurred when the publication of PROCEEDINGS the prosecution long before they are cho- committal proceedings has resulted in The publicity given to the recent com- sen for the relevant jury panel. fresh witnesses coming forward to assist mittal proceedings concerning the death It is true, of course, that the juror is the defence. of David Hookes has raised once again a bound by oath to take his directions as The dilemma is not an easy one to concern which we have felt in relation to to the law (including the fact that he or solve. But it is one that requires a solu- other high profile prosecutions. she can act only on evidence presented at tion. It may be that there should be an In the case of the Hookes’ inquest the the trial) from the trial judge. But jurors option to a defendant to have committal prosecution expressed concern at the are reluctant to acquit those whom they proceedings conducted in camera. publicity and has supported an applica- “know” to be guilty. A juror is unlikely to This is a matter that goes to the heart tion to repress the publication of any be happy to acquit where the juror recalls of our system of criminal justice and raises photos of the accused. But the committal damning evidence given at the committal an issue much more fundamental than proceeding continued to be reported and proceeding (as printed in the newspaper) that of how to save money by appointing reports of the evidence given appeared in which evidence, because it is inadmissible, acting judges. news items on television and radio and in is not before the jury at the trial. the newspapers. The reporting of committal proceed- A BIT ABOUT WORDS The problem associated with the ings can, at least in the case of high profile For many years now Julian Burnside has publication (pre-trial) of evidence given cases, result in a potential juror being provided us with an entertaining analysis against an accused is not new. There have presented with half or three-quarters of of the use of the English language. Those been occasions where the pre-trial public- the evidence in the newspaper and to his readers who have enjoyed what he has ity has been such as to require a change or her reaching a firm conclusion as to written in these pages over that time will of venue and even to render it doubtful guilt or innocence long before he or she be delighted to know that they can obtain whether a fair trial could be obtained. is summoned for jury service. This can a collected version of “A Bit About Words” In normal circumstances, evidence at lead to convictions which are unsafe and which is being published by Scribe under a committal proceeding is limited to pros- unsatisfactory. the title “Wordwatching”. ecution evidence and evidence obtained On the other hand, committal pro- The Editors

6 7 Chairman’s Cupboard Bar Council’s Role in Legislation

HERE have been a number of signif- pendently from the legal profession and icant developments in the last three government”, and from the Legal Services Tmonths which impact on our Bar’s Board itself, in relation to complaints and members and which warrant detailed investigations of, and prosecutions for, reporting. professional misconduct. The Bill does give the Commissioner LEGAL PROFESSION BILL 2004 extremely wide power to delegate “any The Legal Profession Bill 2004 passed function of the Commissioner” to “a quickly through the Legislative Assembly person who is, or is a member of a class in early December. This was the culmina- that is, prescribed by the regulations”. tion of a four-and-a-half year review of the There are only a few “key” functions the Legal Practice Act 1996, initiated by the Commissioner is not permitted to del- Attorney-General in June 2000. At every egate. These are precisely defined and stage of the process, the Bar was involved include those of receiving complaints, and made full and detailed submissions. summarily dismissing a complaint under On a strictly limited confidential basis, clause 4.2.10 (on the ground, for example, we and the Law Institute, and other parties that the complaint is “vexatious, miscon- considered by the Government to have an ceived, frivolous or lacking in substance”) interest, were given in September 2004 an without investigation, and the function of exposure draft of the Bill, and the oppor- investigating disciplinary complaints. tunity to discuss it in the Implementation Although not able to delegate investi- Committee before it was introduced into gating disciplinary complaints generally, the Parliament. claims of pecuniary loss as a result of the Commissioner is explicitly empow- The Bill is long — 538 pages, with an an act or omission by a “law practice” or ered to refer a disciplinary complaint explanatory memorandum of 147 pages. “Australian legal practitioner”, and “any to “a prescribed investigatory body” for According to the Shadow Attorney- other genuine dispute … arising out of, investigation, recommendation and report General, it is the second largest Bill or in relation to, the provision of legal to the Commissioner. Such investigatory brought into the Victorian Parliament, services”. A barrister is an Australian legal bodies are to be prescribed by regulation “pipped at the post by some 20 pages by practitioner who engages in legal practice and, until regulations are made, the tran- the Gambling Bill”. and who practises solely as a barrister. sition provisions in Schedule 2 of the Bill, The Bar commends the Attorney- A “disciplinary complaint” relates to clause 8.14, provide that the Law Institute General and the Government for the full, conduct “to the extent that conduct, if and the Bar are taken to be “prescribed thorough and timely advance consultation established, would amount to unsatisfac- persons” for the purpose of delegation by process leading up to the preparation of tory professional conduct or professional the Commissioner under clause 6.3.12(2) the Bill. misconduct”. and “prescribed investigatory bodies” As long announced, the major struc- required for there to be the referral of an tural changes are in the establishment INVESTIGATION OF COMPLAINTS investigation. of a new Legal Services Board and Legal The power of the professional asso- Under the present Legal Practice Services Commissioner, and the vest- ciations, the Bar and the Law Institute, Act 1996, the Bar, as a Recognised ing of jurisdiction in the Victorian Civil in relation to disciplinary complaints is Professional Association (RPA), is author- and Administrative Tribunal in relation significantly reduced. It is not merely that ised to receive disciplinary complaints; to to the hearing of what are termed “civil the Legal Services Commissioner is to be summarily dismiss a complaint as frivo- complaints” and “disciplinary com- the “single point of entry” for all com- lous, vexatious, misconceived or lacking plaints”. Significantly, the Legal Services plaints about legal practitioners — a “one in substance; to investigate complaints; Commissioner is not only the Chief stop shop for complaints against lawyers” and, after investigation, either to bring a Executive Officer of the Board, but is — as had been previously announced, and charge in the Tribunal or, in relation to independent from the Board in relation to was reiterated in the Attorney-General’s unsatisfactory conduct (as distinct from complaints. 16 November 2004 media release. Rather, misconduct), subject to certain defined A “civil complaint” covers a dispute as the Attorney’s media release states, limitations, to administer a reprimand or in relation to legal costs up to $25,000, “The Commissioner will operate inde- caution, or take no further action. The Bar

6 7 is authorised to delegate these powers, ciplinary complaints — it should be noted ards and discipline. Under the present and has done so to the Ethics Committee. that there is no provision for any review Act, the Bar is responsible for this as an Under the new Bill, and regulations of the Commissioner’s decision summarily RPA. Under the new Bill, those functions yet to be made, the Bar and its officers, to dismiss any complaint (civil or discipli- are assigned to the Legal Services Board. employees and committee members (the nary) under clause 4.2.10. However, as with the power of del- latter presumably intended to cover in Under the equivalent provision in the egation by the Commissioner, the Board particular the Ethics Committee, though Legal Practice Act, section 141, summary is given wide power to delegate “any it refers to committee members), will pre- dismissal by a Recognised Professional function of the Board” to “a person … sumably be confirmed in their transitional Association or, indeed, by the Legal prescribed by the regulations”. Also, as in status as a “prescribed person” to whom Practice Board itself, of a complaint on the case of the Commissioner, the excep- the Commissioner may delegate any func- the ground that it was found “frivolous, tions to the Board’s power to delegate are tion other than the precisely defined, vexatious, misconceived or lacking in limited to a few precisely defined “key” non-delegable, key functions and a “pre- substance” had to be notified to the Legal functions. The Board’s power to delegate, scribed investigatory body” to which the Ombudsman as soon as practicable by and the exceptions thereto, are set out in Commissioner may refer the investigation the RPA or Board, section 141(3). Also, clause 6.2.19. There is no exclusion relat- of particular disciplinary complaints. ing to the issue, suspension or cancella- The Commissioner therefore will be tion of practising certificates. able to refer disciplinary complaints to As with referrals and delegation in the Bar or Ethics Committee for investiga- As in the case of the relation to disciplinary complaints by the tion, recommendation and report. It will Commissioner, the Commissioner, the vital question will be be at the discretion of the Commissioner whether the Board will delegate its func- as to which disciplinary complaints are exceptions to the Board’s tions in relation to practising certificates referred, and whether some, most or even power to delegate are to the Bar. all disciplinary complaints are so referred. limited to a few precisely The Bar has constantly stressed the Although the Bill forbids delegation of the defined “key” functions. importance of its role and that of the function of investigating disciplinary com- Ethics Committee in the framework of plaints, there is no limitation on the refer- The Board’s power professional regulation. Together the ral of such complaints for investigation. to delegate, and the Bar and the Ethics Committee establish, Similarly, in relation to the disposition exceptions thereto, are set explain and amend rules of conduct and of complaints, the exception to the gen- maintain and enforce high standards of eral power of delegation is precisely lim- out in clause 6.2.19. There professional conduct by barristers for ited to “summarily dismissing a complaint is no exclusion relating to the benefit of the public and the proper under section 4.2.10”. the issue, suspension or administration of justice. The quality and Properly construed, the Bill does not cancellation of practising cost effectiveness of the Bar’s present role forbid the delegation of the Commissioner’s in professional regulation was confirmed in powers under clause 4.4.13. That clause certificates. an independent audit and report obtained provides for what is to happen after an by the Attorney-General in 2003. investigation has been completed — “the Both the New South Wales Legal Commissioner must deal with the matter the complainant was empowered to refer Profession Act 1987 and, more signifi- in accordance with this section”. Clause summary dismissal by the RPA or Board to cantly, the very recent Queensland Legal 4.4.13 is in Division 3 of Part 4.4 of the the Legal Ombudsman. Profession Act 2004, explicitly provide Bill, but it is only “investigating discipli- Similarly, there is, under the Legal for the issue of practising certificates by nary complaints under Division 3 of Part Profession Bill, no review of a deci- the bar associations. Investigation of disci- 4.4” that is non-delegable. Clause 4.4.13 sion by the Commissioner under clause plinary complaints is by referral to the two relates to the Commissioner’s functions 4.4.13(3)(b) or (c) to decline to pros- professional associations. Significantly, “after an investigation has been com- ecute where the Commissioner is satis- the Queensland Act was largely derived pleted”. fied that the Tribunal would reasonably from the April 2004 model provisions It is not possible in this column to pro- likely find unsatisfactory conduct and, in endorsed by the Standing Committee of vide members with a detailed analysis of defined circumstances, to administer a Attorneys-General. The Victorian Bar had the entire provisions of the Bill relating reprimand or caution or take no further hoped for similar explicit provisions in the to complaints investigation. Suffice to action. Under the Legal Practice Act, sec- Legal Profession Bill. say, that the issue will be whether and to tions 152(1)(b) and 153–156, the Legal what extent the Commissioner, who is to Ombudsman has to be given notice of any COSTS DISCLOSURE be, in relation to disciplinary complaints, decision by an RPA or the Board, the com- Members of the Bar will need to examine independent of both Government and the plainant can then apply for review of the closely the provisions concerning costs Legal Services Board, will delegate func- decision, and the Legal Ombudsman has disclosure and review in Part 3.4 of the tions or refer investigations to the Bar or then to review it. Bill. The fundamental obligation of costs Ethics Committee. disclosure is set out in clause 3.4.9. The In connection with the Legal Service PRACTISING CERTIFICATES matters required to be disclosed to the cli- Commissioner’s independence from both Responsibility for the issue, suspension ent are numerous, detailed and onerous. the Government and the Legal Services and cancellation of practising certificates The obligation on a barrister retained Board — his or her position of, in some is a vital part of professional regulation, by a solicitor is, in some respects, less respects, absolute power in relation to dis- with obvious links to professional stand- onerous and is set out in clause 3.4.10. In

8 9 general terms, it amounts to information Clause 3.4.39, in terms of costs review which will enable the solicitor to make the by one law practice retaining another, pro- necessary disclosures. However, the oner- vides for solicitors to apply for taxation of ous requirements of clause 3.4.9 would the whole or any part of a barrister’s bill. apply with full force in the case of direct Once the Legal Services Commissioner access briefs. has given notice to a practitioner of a civil Clause 3.4.13 requires additional costs complaint about conduct, no proceed- disclosure where a law practice (which ings may be commenced in relation to by definition includes a barrister) nego- the subject matter of the civil dispute tiates the settlement of a litigious mat- involved until the complaint is determined ter. Barristers are excepted from this or dismissed and any appeal rights are requirement only if they are instructed exhausted — clause 4.3.2. This may cause by a solicitor and the solicitor makes dis- considerable delay in collection of fees. closure. Curiously, clause 3.4.13 requires Although clause 4.3.3 requires that where such additional disclosure “before the there is a costs dispute, the unpaid costs settlement is executed”, not before the must be lodged with the Commissioner, settlement is agreed or concluded. that is subject to reduction or waiver if the Clause 3.4.11 requires that initial Commissioner is satisfied it would cause costs disclosure under clause 3.4.9, undue hardship. which applies to solicitors, and only to barristers in direct access cases, be in PROFESSIONAL INDEMNITY writing. It also requires disclosure by the INSURANCE solicitor retaining a barrister to be in Clauses 3.5.2(4) & (5) of the Legal writing. Clause 3.4.15 in relation to the Profession Bill provide that professional additional disclosure required where indemnity insurance “must be with a settlement is negotiated, seems to the Liability Committee unless the law assume, but does not explicitly say, that practice is a barrister” and that “A bar- must be in writing. rister may choose to apply for insurance The additional disclosure required with the Liability Committee and that where a settlement is negotiated is a rea- Committee may provide, or refuse to pro- sonable estimate of the amount of legal vide, the insurance”. costs payable by the client (including However, those clauses are subject to costs of another party the client is to pay), clause 3.5.2(7) which provides that “The and a reasonable estimate of the contri- Victorian Bar Council may, on or before 28 butions towards those costs likely to be February 2005, resolve that all barristers received from another party. This may be are to insure with the Liability Committee of particular relevance in mediations. and, if the Victorian Bar Council so The effect of failure to make any of resolves, the insurance for a barrister these required costs disclosures is that must be with that Committee despite sub- the client is not required to pay the legal section (4)”. costs unless they have been reviewed The Bar Council has made no deci- by the Supreme Court Taxing Master. sion yet on whether to resolve that all Further, any such non-disclosure is a fac- barristers are to insure with the Liability tor to be taken account of by the Tribunal Committee. in determining whether a costs agreement This will be a decision for the Council is fair, just or reasonable on application by once the legislation has been passed and the client to have it set aside. received the Royal assent, and after the The provisions requiring service of Council has carefully considered all avail- a signed bill of costs before legal pro- able options. As at the time of writing, the ceedings to recover those costs may be Bill is before the Legislative Council. It is commenced are almost identical to the expected to be passed, and may receive equivalent provisions in section 106 of the Royal assent before the Christmas break. Legal Practice Act. The only significant The issue may therefore come before the addition appears to be that the Bill must Bar Council, at the earliest, at its sched- include or be accompanied by a written uled meeting on 16 December. statement setting out various avenues The Bar welcomes the option in the open to the client to have the costs taxed, Bill to enable barristers to insure with the to have any costs agreement set aside, and LPLC because it would appear to offer our to make a complaint to the Legal Services members future certainty and continuity Commissioner in relation to the costs, and with professional indemnity insurance. At the relevant time limits. This requirement the same time, the Bar has enjoyed good in clause 3.4.35 appears to apply to barris- relations with the commercial insurance ters’ bills as well as to solicitors’ bills. market and therefore intends to make a

8 9 decision only after careful consideration It passed all remaining stages in the progress of the Bill. It is hoped that we will of all available options. Assembly on 4 November and was first have an opportunity to at least raise these The Bar Council has invited the read in the Council on that day, passing issues of concern with the Government, Liability Committee to place before it a all remaining stages in the Council on 11 before the Bill is passed. proposal for insurance by that Committee November and receiving Royal Assent on The failure to consult and the rapid and to that end we have made available 16 November. passage of legislation must also impact our claims history data base for inspec- The Major Crime (Seizure of Assets) on the Opposition. The Shadow Attorney- tion by the Committee on a confidential Bill 2004 was second read and first became General had only two weeks, within which basis. The Council has also invited both available the same day as the Investigative to review the complex, 538-page Legal Great Lakes and Suncorp Metway to place Powers Bill, and was similarly rushed Profession Bill and 147-page Explanatory before it any proposals they may wish to into law, passing the final stages in the Memorandum that effect sweeping make in support of the Bar continuing to Parliament on 11 November and receiving changes to the regulation of the legal place its professional indemnity insurance Royal Assent on 23 November 2004. profession in Victoria. The apparently with the commercial market. We will keep The Bar, the Criminal Bar Association, substantial briefing he had from the members informed of developments. the Law Institute and Liberty Victoria Government is no substitute for sufficient held a media conference on 29 October time to examine the Bill and to allow the CONSULTATION ON PROPOSED and issued a joint media release calling on Opposition to consult with interested LEGISLATION the Government to refer the Investigative parties. Until recently, the Government has regu- Powers and Seizure of Assets Bills to a The Government’s recent failure to larly consulted the legal profession on Parliamentary Committee to allow genu- consult appears inconsistent with the legislation throughout the process — in ine public debate and consultation. Government’s 2002 election promise the early policy development, before the The Investigative Powers Bill was 177 of democracy and accountability. The draft Bill goes to Cabinet, and before the pages of complex and far-reaching provi- Premier’s statement on democracy final Bill goes into Parliament. sions, involving the Supreme Court in the and accountability claimed that the Good examples of effective consulta- criminal investigative process, authorising Government had made Victoria a leader tion are the Legal Profession Bill (as out- a “Chief Examiner” to conduct secret in open and accountable government lined above) and the Crimes (Dangerous investigations, with no right to silence and promised that a Bracks Government Driving) Act 2004. With the latter, we or right against self incrimination in the would continue the restoration of democ- were involved in development of policy person being interrogated, and indefinite racy in Victoria and to improve the oppor- through a discussion paper and, on a con- and unlimited imprisonment for failure to tunities for all Victorians to be heard fidential basis, given the draft Bill before it attend or co-operate. and to have a say on issues that matter was finalised and went to Cabinet. Despite our request for consultation to them. Moreover, consistent with this Unfortunately, this process is not being and careful consideration, the Government approach, in 2002 the Department of replicated with some very significant leg- proceeded, as summarised above. Justice advised the Bar that consultation islation. The Occupational Health and Safety with the profession would be routine as a Both the Bar Council and the Law Bill 2004 presently before the Parliament matter of policy. Institute Council are seriously concerned is following a similar course, becoming We look forward to a return to effective at the Government’s failure to consult the available only upon second reading on 18 consultation on all significant legislation. profession in relation to the Major Crime November, with debate adjourned to early (Investigative Powers) Act 2004. It was December. BEST WISHES FOR THE HOLIDAY hastily passed into law with only a little Although certainly there was con- SEASON AND SUPREME COURT over four weeks between first release of sultation in the Review and Report on VACATION the Bill when it became a public document the Occupational Health and Safety May I, in this last Chairman’s Cupboard upon second reading in the Legislative Act 1985 by Chris Maxwell QC, the for the year, thank each member of the Assembly on 5 October and final debate in Victorian Bar was not involved or con- Bar who has contributed to the work of the Assembly on 3 November 2004. sulted about the Government’s proposed the Bar and the Bar Council over the past The Bar and Law Institute read about legislative response. We had understood year. I particularly thank all members of the Investigative Powers legislation in The there were to be amendments to the 81- the Bar Council and our retired Executive Age newspaper. After “first reading” in the page Occupational Health & Safety Act Director, David Bremner, and our new Legislative Assembly on 16 September 1985. Only after second reading on 18 Chief Executive Officer, Christine Harvey, 2004, at which the Bill is neither read nor November were we able to access the for their strong and effective support and made available to Members of Parliament entirely re-written 171-page Occupational for the seamless transition. I extend best or anyone else, the Bar contacted the Health & Safety Bill 2004. wishes to all members of the Bar and Bar Department of Justice, but was not able Neither the Bar nor the Law Institute is Administration for the holiday season and to obtain a copy of the Bill. Only when aware of any urgency, practical or politi- the Supreme Court vacation. it was second read, and was in the public cal, in the passage of the Occupational I have found the few months that I arena, were we able to access it on the Health & Safety Bill 2004. There are have been Chairman immensely reward- Parliamentary Documents website. a number of very significant issues that, ing. I look forward to the year ahead, The second reading was on 5 October in the public interest, must be worked which I know will present us with many 2004, in the final week before the Federal through before the legislation is passed. challenges. election. The Bill was brought on for The two associations made joint represen- debate on 3 November with a Government tations to the Premier in late November, Ross Ray QC Business Program guillotine on debate. urging his Government to defer the Chairman

10 11 Attorney-General’s Column Human Rights: the Direction for Victoria

EADERS of this journal will know sary, we will in fact have only completed that, earlier this year, I released a one very small step in the process. In Rgroundbreaking document called grappling with the possibility of legal the Justice Statement, our vision for a recognition, we must tackle the further legal system founded in a conviction that and myriad queries that arise from such the law should be a vehicle for equality. a proposition. What form should such an As I have canvassed in previous editions, instrument take? What powers should the Statement signals myriad possibilities the judiciary have in respect of it? What within the existing civic and legal frame- rights should be recognised? Should cor- work to make the law more accessible and responding responsibilities be included? meaningful for every Victorian. I am con- What role should an Attorney-General vinced, however, that we will only ever be have in the process? What remedies might partially successful while we fail to grap- be available to complainants? Should ple properly with the broader concept of there be exceptions? human rights. These are just some of the pieces in Many readers will be part of the the puzzle that we must reconcile. We momentum that is gathering in legal must be clear, however, that legislative sectors around the nation for a greater acknowledgment of people’s rights does focus on human rights. As a profession, not automatically create utopia. We must though, we need to explain to the wider ensure that we do not create a system community that human rights are simply in which those at the margins continue the international extension of the “fair and freedoms we cherish and on what to be excluded by the mysteries of legal go”, that iconic concept that Australians duties we owe each other. It will also machinery. have historically embraced but wrestled depend on whether we believe that they I believe that every member of the legal with less successfully in reality. It is time are adequately protected by the complex profession has a particular duty to grap- to put the fair go back on the agenda and array of machinery already in place, from ple with these questions, and to lead the talk about the place of rights in Australian international law, the Constitution, to an debate with a humility and pragmatism society — what they are, how they’re evolving legislative process and body of that helps some sectors of the community experienced, and how they might be rec- common law; even the scrutiny of the overcome the suspicion with which they ognised and protected. media and, of course, the ballot box. have come to regard these supposedly Together, we must find a way for the If our answer to these fundamental “big picture” issues. language of rights to be heard again in questions nevertheless leads us to con- It is an exhilarating time as we get circles where the discourse of political clude that a formal instrument is neces- ready to embark on this crucial discussion. expedience has prevailed. We must do At the time of writing, the Government our part by making this language com- favours a 12-month community consulta- mon parlance in Victoria, marking out the tion process, led by a panel of eminent shared values that we wish to protect, and As a profession, we need Victorians, and I expect it to begin early in the Justice Statement therefore calls for to explain to the wider the New Year. As practitioners, you are the a community discussion about the best community that human ones that will challenge, enforce and live way to uphold rights within the Victorian out the community’s decision and I invite context. rights are simply the you to be at the frontline of the debate. Australia is the last developed nation international extension of It is only in a community that recognises to tackle the concept of human rights in the “fair go”, that iconic that human rights lie at the heart of every any structured way. Whether they are concept that Australians properly functioning society, that we have best recognised through a formalised legal any chance of making the promise of the document, such as an entrenched Charter have historically embraced law a reality. or a Statute, or through less proscriptive but wrestled with less mechanisms, will depend on whether we successfully in reality. Rob Hulls, MP can develop a consensus on what rights Attorney-General

10 11 Letters to the Editors

of the Law Lords were published on in particular. Even if it were relevant, which Misplaced Reference 3 November 1941, little more than 12 it is not, there is no absurdity, or no such Editors months after the Battle of Britain had degree of public mischief as would lead to a been fought over the skies of England, non-natural construction. Dear Editors at a time when naval battles raged in the I know of only one authority which T has come as a pleasant surprise to North Sea and North Atlantic, Australian might justify the suggested method of Ime that whether mathematicians are troops held Tobruk, which was besieged construction: “‘When I use a word,’ Humpty humourous is apparently open to ques- by Rommel’s forces in North Africa, Dumpty said in rather a scornful tone, ‘it tion. However, whether they are pedantic and Hitler’s armies were advancing on means just what I choose it to mean, neither is not. Therefore I write to point out a Moscow. Ten days later, on 13 November more nor less.’ ‘The question is,’ said Alice, misprint in your report of my toast made 1941, the Ark Royal would be sunk off ‘whether you can make words mean differ- at the Bar Dinner. Gibraltar by a U-boat. ent things.’ ‘The question is,’ said Humpty The word “counsel” has unaccountably The majority upheld the decisions Dumpty, ‘which is to be master — that’s replaced the pronoun “he” at the start of below that on the detention order being all.’” (Through The Looking Glass, c. vi) the fifth line of the third stanza, to the proved, the onus was on the appellant to After all this long discussion, the question is detriment of both sense and scansion. show that the order was invalid. whether the words “If a man has” can mean The reference should be, of course, to The crescendo of Lord Atkin’s dissent- “If a man thinks he has”. I am of opinion the Attorney, the subject of the preceding ing opinion still resonates: that they cannot, and that the case should stanza. be decided accordingly. I view with apprehension the attitude of If it be true (as, for the foregoing rea- Yours faithfully, judges who on a mere question of construc- sons, I am profoundly convinced that it Kristine Hanscombe tion when face to face with claims involving is) that the Home Secretary has not been the liberty of the subject show themselves given an unconditional authority to detain, more executive-minded than the executive. the true decision in the two cases before Atkin’s Dissent Their function is to give words their natural us ought not to be difficult to make. In the meaning, not, perhaps, in war time leaning Liversidge case, the plaintiff has delivered Editors towards liberty, but following the dictum of a statement of claim averring that he was Pollock C.B., in Bowditch v Baichin, cited wrongly imprisoned by the respondent, Dear Editors, with approval by my noble and learned the Secretary of State. The respondent read recently the editorial in the friend Lord Wright in Barnard v Gorman: traverses the wrongful imprisonment, and Autumn 2004 edition of the Bar News contents himself with the admission that I In a case in which the liberty of the sub- entitled, “The New Despotism”, in which he ordered the appellant to be detained ject is concerned, we cannot go beyond you expressed concern at the erosion at a under the regulation. The appellant asked the natural construction of the statute. national and international level of the rule for particulars of his reasonable cause to of law in the name of freedom and national In this country, amid the clash of believe (a) as to hostile associations, (b) as security. Such encroachments are not arms, the laws are not silent. They may be to necessity to control him. In my opinion, new; nor are the criticisms of them. changed, but they speak the same language the appellant is not bound to rely on the I was reminded by your editorial of in war as in peace. It has always been one of traverse, though as a matter of pleading the dissenting opinion of Lord Atkin in the pillars of freedom, one of the principles that, in my opinion, amounts to a positive Liversidge v Anderson 9942 AC 206. The of liberty for which on recent authority we allegation of authority to detain for which case was an action for false imprisonment are now fighting, that the judges are no particulars may be asked. The appellant’s by the appellant, who had been detained respecters of persons and stand between right to particulars, however, is based on without trial under Regulation 18B of the the subject and any attempted encroach- a much broader ground, a principle which Defence (General) Regulations 1939. ments on his liberty by the executive, alert again is one of the pillars of liberty, in that The Regulations provided for the deten- to see that any coercive action is justified in English law every imprisonment is prima tion of persons of hostile associations. The in law. In this case, I have listened to argu- facie unlawful and that it is for a person material words of the Regulation were as ments which might have been addressed directing imprisonment to justify his act. follows: acceptably to the Court of King’s Bench in The only exception is in respect of impris- the time of Charles 1. onment ordered by a judge, who from the If the Secretary of State has reasonable I protest, even if I do it alone, against a nature of his office cannot be sued, and cause to believe any person to be of hostile strained construction put upon words, with the validity of whose judicial decisions can- origin or associations and that by reason the effect of giving an uncontrolled power not in such proceedings as the present be thereof it is necessary to exercise control of imprisonment to the Minister. To reca- questioned. over him he may make an order against that pitulate, the words have only one meaning. person directing that he be detained. They are used with that meaning in state- Subsequently, Liversidge v Anderson ments of the common law and in statutes. was described by Lord Reid in Ridge v The appellant sought to throw onto the They have never been used in the sense Baldwin as a “very peculiar decision.” respondent, the Home Secretary, the onus now imputed to them. They are used in the In IRC v Rossminster Ltd [1980] AC 952 of supporting the detention, and sought Defence Regulations in the natural mean- Lord Diplock said: particulars of the reasonable grounds for ing, and, when it is intended to express directing that the appellant be detained. the meaning now imputed to them, differ- For my part I think the time has come to The case was heard by the House of ent and apt words are used in the Defence acknowledge openly that the majority of Lords in September 1941. The opinions Regulations generally and in this regulation this House in Liversidge v Anderson were

12 13 expediently and, at that time, perhaps, the holder of a Star of Courage, the post Or maybe, The Competition between excusably, wrong and the dissenting speech nominals would be SC, AM. Be very care- the Editors and the Master. of Lord Atkin was right. ful with the comma! Who is correct? The Editors of the Sad to say that the post nominal associ- Victorian Bar News or the Master? Minds will differ now, as they did in ated with being Senior Counsel does not This competition should be open to November 1941, as to what encroach- rate a mention and, therefore, comes after all readers of the Bar News. So I call on ments on liberty are reasonable in the all. Bloggs RFD SC, you are safe. With or all fellow pedantic members of the Bar to interests of national security. The issue, without your punctuation, you could only consider this matter for after all English however, is well travelled. be Senior Counsel. grammar is an important aspect in our The only solution to the problem of SC/ profession as lawyers. Yours faithfully, S.C. is to change title altogether. Perhaps Now I have another problem. Many of Michael Wheelahan Victorian Counsel. the readers do not believe me when I say the editors altered my draft of the paper. Gerry Butcher RFD (Not R.F.D.) So I need an admission by the editors that my draft of the paper did use the word Pedants’ Picnic Fruitful “are” in those sentences. Dear Editors Editors v Masters Now what about the prize for the competition! I challenge the editors to put up HANK you for the opportunity to Dear Sirs, the prize of a bottle of wine for consump- share in such a fruitful pedants’ picnic. T Re : A Competition, or The Editor’s tion at the Essoign Club to the three best There are so many delicious morsels upon Competition or The Master’s Competition. entries submitted to the Bar News in this which one can chew whilst debating the competition if they were wrong, If I was propriety of S.C. or SC. refer to your recent publication of my incorrect to use the word “are” then I First of all, let us examine the danger Ipaper “The Relevance of Merits When will provide the prizes to the three best of the door to Senior Counsels’ chambers Extending Time” in the Spring edition at entries in the competition. Thus I am being broken down by military police and page 39. I appreciate the fact that you assuming the use of the word “is” in these the hapless barrister being carted away to have published the paper and I thank you sentences can be categorised as correct or indefinite detention for failing to punctu- and I hope the paper contributes to some incorrect. ate their post nominals. David H. Denton understanding of the law. I thank you again for publishing the RFD, S.C. (Victorian Bar News No.130 However there is a problem. On page paper and I hope to continue research p.13) quite correctly points out that it 41 the following statements are1 made: into areas of the law that may be relevant is an offence under section 80B of the 1. In the middle column line 2, “What to members of the Bar in their daily work Defence Act 1903 (Cth) for a person to must be appreciated is that there “is” in the Practice Court. falsely represent oneself as being the per- a variety of methods to deal with the son upon whom a service decoration has hopeless case.” Yours Sincerely, been conferred. Denton then goes on to 2. In the third column about 14 lines Rex Patkin state that the Star of Courage is a service from the bottom, “There “is” a variety decoration. of problems in terminating a proceed- Notes: The problem is that the Star of Courage ing on the grounds that it lacks mer- 1. Note the word is “are” for the subject of the is not a service decoration as such. The its.” sentence is “statements” and that is plural. Australian Honours system contains 3. Then on page 42 in the first column it 2. I must admit I am having trouble with the within it a group of Australian Bravery is said about 19 lines from the bottom two ises. Is it, ises, is’ or is’s? Decorations. They are the Cross of Valour, of the page, “There “is” a variety of the Star of Courage, the Bravery Medal, problems for the court to determine if the Commendation for Brave Conduct a proceeding gives rise to an arguable The Editors admit that one of them did and Group Citations. Whilst the Star of case.” alter the text as provided by the former Courage has been awarded to members Now I have received a multitude of Master, and did so in what he or she of the Australian Defence Force, it, and calls from barristers, magistrates, judges regards as a very masterly way. The other decorations within that group, have and masters of the courts admonishing Editors regretfully but firmly adhere to and may be awarded to anyone in the me for my bad grammar. Little comment their view that the appropriate verb in Australian community for acts of bravery. has been made on the merits of the article; the context of both sentences was “is”. Rest easy, good silks! You are safe from Maybe the readers are of the opinion my We take the view that there are many the clutches of the Military Police. article lacks merit? problems but there is only one variety. Secondly, “Bloggs RFD SC” could The editors, or one of them, have or We would, however, welcome criticism not possibly be the holder of the Star of has, altered my draft of the paper which of our action either as “high handed” Courage. The Governor General has by uses the word “are” to “is”, in each of or as erroneous. Order dated 4 April 2002 directed the these sentences. I have placed the rele- order of wearing Australian Honours and vant word “is” in brackets just to eliminate The Editors Awards. The Star of Courage comes well any dispute as to the particular word “is” before the Reserve Force Decoration. It in the sentence with two is’.2 even comes before Member of the Order So I suggest a Competition or The of Australia. Therefore, if a Member of Editor’s Competition or The Masters’ the Order of Australia were also to be Competition.

12 13 Welcomes County Court Judge Sandra Davis

University in 1978; a Master of Science VCAT (Economics) from the London School of Presaging her penultimate port of call, Economics and Political Science in 1980, Her Honour sat as a legal member of the with distinctions in international law Department of Infrastructure Review and her thesis; a Master of Arts in com- Panel from 1997 to 1998 and was a ses- parative and international politics from sional member of the Guardianship and Brandeis University (USA) in 1986, and a Administration Board of Victoria for second class honours degree in Law from three years from 1995 until her full-time Melbourne University in 1988. appointment to VCAT. Just a month before Her Honour also pursued her love of the AAT became VCAT, Her Honour was languages by studying Russian, French, appointed a Deputy President of the AAT, Italian and Hebrew at universities in then moved through senior member of the Paris from 1974 to 1976 and at Melbourne VCAT sitting extensively in the General University, where she studied Japanese List (FoI and TAC cases) to become in 1989. Her Honour speaks French and Deputy President of the Guardianship Hebrew, knows some Italian and Japanese, List in 1999, then Deputy President of and is currently learning Spanish. She has the Occupational & Business Regulation a “list” of top 10 languages she would love List in 2000, hearing appeals from dis- to master, a terrifying thought for any ciplinary and occupational decisions of interpreter trying to pull the wool over Her a wide variety of bodies including the Honour’s eyes in court, or for any witness Medical Practitioners Board, the Racing or litigant tempted to break out into any Appeals Tribunal, the Business Licensing N 26 October 2004 the Attorney- tirades of non-English invective. Beware. Authority and the Director of Liquor General the Honourable Rob Hulls Licensing. Her Honour recalls while she Oannounced the appointment of WORK AND LAW was acting in this latter capacity, Justice two new County Court judges, Judge As a graduate student, Her Honour taught Merkel of the Federal Court of Australia Sandra Davis and Judge William Morgan- at Brandeis University and at Monash. appeared before her at the Tribunal in a Payler. Both declined a formal welcome. Her launch into the law occurred in 1990 liquor licensing application. Her Honour However, in this article Bar News — hav- when she was articled to Tom Yuncken at had to hold on tightly to her chair to ing interviewed Judge Sandra Davis on Arthur Robinson & Hedderwicks where resist the temptation to stand up every the eve of her embarking on the Serious she obtained a thorough grounding in liti- time Justice Merkel moved. From 2004 Injury List — discovered a modern ren- gation and trade practices. The following Her Honour was also head of the Human aissance woman appointed to the Bench year she was Associate to Justice George Rights Division of VCAT and Deputy and spills the beans on what makes Her Hampel in the Supreme Court and must President of the Anti- Discrimination List Honour tick. have liked what she saw and experienced and was active in that capacity amongst because in 1993 she was called to the other things in utilizing her qualification EDUCATION Victorian Bar. and extensive experience as a mediator to Her Honour was born in Melbourne and Her Honour’s practice at the Bar resolve disputes. was educated at Mount Scopus College. encompassed administrative, employ- Her Honour counts it as one of the She completed her VCE in 1973, attaining ment, equal opportunity and com- great privileges of her working life to have distinctions in English, English Literature mercial law. She appeared in all courts been part of the transformation and tran- and General Excellence, in addition to from Magistrates to High as well as the sition from the Victorian AAT to the model taking out the college prizes in English Commonwealth and Victorian AATs and tribunal under its first President, Justice Literature, French and the Principal’s also appeared as counsel assisting boards Kellam and now its current President, prize. Her Honour was school captain, and tribunals including the Dental Board Justice Morris. Her Honour found at house captain and participated in debat- of Victoria and the Criminal Injuries VCAT the culmination of an intense inter- ing, but recalls that her performance in the Compensation Tribunal. Her Honour est she had developed at the Bar in the college musical mercifully did not require remembers with particular gratitude the process of decision-making exemplified her to sing a single note. Proving herself experience she gained from junior briefs in administrative law. Her Honour admits early on to be a well-balanced all-rounder, to various senior counsel including Julian she often found it frustrating at the Bar to Her Honour played hockey and softball Burnside QC, Anthony Howard QC, and only be able to advocate for one side (so within and outside school, winning best Douglas Graham QC, and with affection early did her judicial temperament obvi- and fairest awards in both fields. the camaraderie with friends and col- ously manifest itself). Her experiences Her Honour gained a BA with first leagues at the Bar. They were clearly at VCAT afforded her the opportunity to class honours in politics from Monash formative and influential days. gain a good grounding in timely decision

14 15 making (and Her Honour prepares all her A PERSONAL NOTE exception. All were palpably thrilled. own decisions and even word processes Her Honour regularly jogs, walks and goes A few mornings after her appointment, them herself, one suspects with lightning to gym. She also enjoys tennis and skiing. her son greeted her with : “Good morn- speed). Her Honour has been married since ing Judge, can you make me a bagel?” Her Honour pays warm tribute to her 1976 to Dr Stephen Davis, Professor of Lessons in humility and perspective from colleagues at VCAT, for their skill and Neurology at Royal Melbourne Hospital one’s family are sure to keep Her Honour’s professionalism. She recalls that every and they have a son, who is completing feet on the ground even when her ideas day brought personal and professional commerce at Melbourne University, and a and ideals are intent on taking flight. rewards: the satisfaction of having con- daughter, who has just finished VCE. They Bar News wishes Her Honour a long, ducted a fair hearing, the satisfaction of have all been supportive of Her Honour’s satisfying and rewarding tenure on the people feeling they had been fairly and career throughout and their reaction to County Court Bench. courteously dealt with (even when they Her Honour’s recent elevation was no were unsuccessful) and the ongoing attempt to empower the disenfranchised in the “little picture” which became in essence the unfolding of a much bigger picture — of valuing individual struggles and aspirations. CAREER HIGHLIGHTS County Court Her Honour counts her work in the Guardianship and Anti-Discrimination Lists as a particular privilege, demonstrat- Judge Morgan-Payler ing amply the part played by the administration of justice in a democracy, as well dents together with his immediate former as the importance of not making assump- colleagues at the OPP, McArdle, Horgan tions about people from their appear- and Leckie. His colourful university career ance, background or circumstances. Her included what by all accounts was his Honour’s own background as a child of first brilliant plea, an entreaty on his own post-war multi-lingual immigrants from behalf to the unsatisfactory progress com- Egypt has given her a personal perspec- mittee. In addition, he taught taxation law tive to bring to bear in this regard. Her to students at Prahran Tech concurrently Honour has also greatly enjoyed the cases with studying the subject at university, involving the intersection of law and medi- giving rise to his quip that he could never cine, such as those relating to withdrawal afford a week’s sickness as he was just one of treatment or consent to participation in step ahead of his own students. medical research. His Honour, like many, was involved in political activities in the heady days of the OTHER INTERESTS AND late 60s and brings to his new job a long ACTIVITIES held concern for the underdog. In 1972, Her Honour has been involved in a wide he commenced articles at J N Zigouras & range of extra-curricular activities. She Co, Solicitors, where he remained until has written a chapter on the summary 1974 practising in most areas of law. In criminal jurisdiction in Victorian for 1974 he commenced reading with John the Laws of Australia series; delivered Walker and remained at the Bar until 1994 numerous lectures to community groups, with a four-year interlude between 1977 research institutes and aged care provid- HE Bar welcomes the appoint- and 1981 working for Aboriginal Legal ers as well as specialist medical practi- ment to the County Court of Judge Services in Victoria and Darwin. He had tioners in relation to the amendments to TMorgan-Payler, former Chief Crown five readers, Reg Keating, Steve Russell, the Guardianship and Administration Prosecutor for the State of Victoria. By John Lavery, Caroline Burnside and Jane Act 1986 (in force 1 January 2000); and this appointment, the County Court gains Gibson, and took silk while Senior Crown sat on a number of committees, includ- a man of unbounded talent and experi- Prosecutor in 1996. His practice for the ing Royal Melbourne Hospital Research ence who over the years will greatly most part was defence work, and it is and Ethics Committee from 1997–2001. enhance the justice system in Victoria. probably a great compliment paid to him Most recently in 2004 she was a member His Honour is an interesting man who in his latter years at the Bar that the OPP of the Implementation Committee for the brings to the position a broad range of actively sought his services knowing what transfer of the Legal Profession Tribunal experiences in the law going back three a formidable opponent he had been. to VCAT, the Bill for which was intro- decades. In the years leading up to his appoint- duced into parliament in mid-November His Honour was born in 1946 and raised ment, His Honour appeared in notable this year. on a farm at Phillip Island. He was edu- High Court cases including Thompson Her Honour also maintains a keen cated at Cowes State School and Caulfield (1999), Palmer (1998), Pavic (1998) interest in politics, international relations, Grammar, after which he entered Monash and in the Supreme Court the well known ethics and ethnic and indigenous affairs. University in its first intake of law stu- murder trial of Domisevic. Another nota-

14 15 ble case of His Honour of more distant the sensitivity and intelligence which His His Honour has had a fruitful marriage times involved a plea by Morgan-Payler Honour has always clearly displayed. He for many years now to Tina, whose wit on behalf of his client charged with will be sorely missed by all those at the and intelligence is every bit his equal. offensive behaviour arising out of public OPP with whom he worked. They have two grown sons and graze cat- masturbation, when His Honour told the In recent times, an unrepresented tle on their Otways property under the late Jack Maloney SM that the defendant (deliberate) accused made a final address full blast of the southerly winds. had changed his ways and now had his before Justice Teague and a Jury consid- His Honour has an attraction for cooler problem firmly in hand. Of perhaps more ering his murder trial. He said: climes and when time allows enjoys noth- significance, His Honour successfully ing better than trout fishing in the moun- argued in the Northern Territory Court of ... There are really only two things that tain streams of Tasmania, with his fisher Criminal Appeal that the principle that a 1 have need of for this trial. The first of friend Philbrick. It is said that on previ- subjective belief as to consent constituted these was a list of depositions and evidence ous trips Philbrick has brought along his a defence to rape applied to the criminal confirming just how poor and just how own chef, the proprietor of Jean-Jacques. code of the Northern Territory. ridiculous the prosecution’s case would be. Recently, in lieu of the chef, Morgan- In 1994, and to the surprise of some, His This was obligingly supplied by the Office of Payler invited Dr Lester Walton to fish Honour had a change of career direction, Public Prosecutions. The other thing I had for trout, leading to the conclusion that if becoming Senior Crown Prosecutor at the need of was a prosecution barrister with no Philbrick can bring his own chef, Morgan- OPP. His steady rise within that organisa- brains at all, and hereto once again the OPP Payler can bring his own psychiatrist. His tion over the next 10 years ends with his has come to the fore and generously sup- Honour is the current President of the current appointment, and was charac- plied the solution. What the hell would 1 Victorian Fly Fishing Association. terised by a sense of dedication coupled need to have a barrister for when it is plain The County Court by this appointment with fairness. His Honour more recently and obvious that the prosecution one has gains a Judge of great talent, intelligence had the increasingly common and diffi- gotten all the evidence 1 needed anyway. and experience. We wish His Honour cult task of explaining the decisions and many years of happy service to it. actions of the OPP to family members of The accused was convicted. Morgan- the victims of crime, a task which required Payler prosecuted the trial.

People Over 35 Should be Dead. Here’s Why …

CCORDING to today’s regulators and when the street lights came on. the bell or just walked in and talked to Abureaucrats, those of us who were No one was able to reach us all day. NO them. Little League had tryouts and not kids in the 40s, 50s, 60s, or even maybe MOBILE PHONES! everyone made the team. Those who the early 70s probably shouldn’t have Unthinkable! didn’t had to learn to deal with disappoint- survived. We did not have Playstations, Nintendo ment. Some students weren’t as smart as Our baby cots were covered with bright 64, X-Boxes, no video games at all, no others, so they failed a grade and were coloured lead-based paint. multi channels on cable, video DVD mov- held back to repeat the same grade. We had no childproof lids on medicine ies, surround sound, personal mobile Horrors! bottles, doors or cabinets, and when we phones, personal computers, or Internet Tests were not adjusted for any reason. rode our bikes, we had no helmets. (Not to chat rooms. Our actions were our own. Consequences mention the risks we took hitchhiking.) We had friends! were expected. As children, we would ride in cars with We went outside and found them. The idea of a parent bailing us out if we no seatbelts or air bags. We drank water We played brandy, and sometimes, broke a law was unheard of. from the garden hose and not from a bot- the ball would really hurt. We fell out of They actually sided with the law. tle. Horrors! trees, got cut and broke bones and teeth, Imagine that! We ate cake, bread and butter, and and there were no lawsuits from these This generation has produced some of drank soft drink with sugar in it, but we accidents. the best risk-takers and problem solvers were never overweight because we were They were accidents. and inventors, ever. always outside playing. No one was to blame but us. Remember The past 50 years have been an explo- We shared one soft drink with four accidents? sion of innovation and new ideas. friends, from one bottle, and no one actu- We had fights and punched each other We had freedom, failure, success and ally died from this. and got black and blue and learned to get responsibility, and we learned how to We would spend hours building our over it. deal with it all. And you’re one of them! go-carts out of scraps and then rode down We made up games with sticks and ten- Congratulations! the hill, only to find out we forgot the nis balls and ate worms, and although we Please pass this on to others who have brakes. were told it would happen, we did not put had the luck to grow up as kids, before After running into the bushes a few out very many eyes, nor did the worms lawyers and government regulated our times, we learned to solve the problem. live inside us forever. lives, for our own good! We would leave home in the morning We rode bikes or walked to a friend’s People under 30 are WIMPS! and play all day, as long as we were back home and knocked on the door, or rang

16 17 Farewell County Court Judge Warren Fagan

injunction to prevent Collingwood from cigarette smoke (Camels without filters playing in the Grand Final the following in a never-ending chain), surrounded by day. books and papers that seemed in total You both belonged to a supporters’ disarray. group within the Collingwood Football They very soon saw the intense con- Club, one of the advertised benefits of centration you brought to every case. which was a guarantee of tickets in the They did not see, but saw the results of, event of Collingwood making the Grand your working till two and three in the Final — a repugnant concept for many morning on the next day’s brief. of us. The intensity of your concentration You alleged your contract with was in marked contrast to the style of Collingwood and a contract between one of your leaders. You were junior to Collingwood and the League to give effect Philip Opas in a number of murders. Opas to the guarantee. Obstinately, the then QC gathered his thoughts while strum- President and General Manager of the ming a guitar — a practice which, in your VFL refused to honour the alleged prom- customary state of intense concentration, ise. You said you’d see them in Court on you did not find soothing or stimulating of Friday — and, true to your word, you and productive thought. Garth Buckner were both in the Practice Your Honour is also known for your Court that morning. directness, both as an advocate and on One shudders at the enormity of the Bench. Again, in contrast, a certain the undertaking as to damages, had Sir Queen’s Counsel, then prominent in Town AY it please the Court, I appear on George been minded to grant the injunc- Planning and Local Government law, was behalf of the Victorian Bar to pay tion. However, the VFL representative renowned for his circumlocution in con- Mtribute to Your Honour’s career of detected a gleam of interest in the Judge’s ferences. The learned leader would regale over 20 years at the Bar, and over 20 years eye, and feared he just might. The matter his client, instructor and junior at length as a Judge of this Court. was stood down, and two fine tickets were about past triumphs. You graduated Bachelor of Laws from miraculously produced. On one occasion, you were the jun- the University of Melbourne and served Those were the days when Collingwood ior. After about an hour of white rabbit articles at Pavey, Wilson, Cohen & Carter regularly made the Grand Final, but also anecdotes, you excused yourself from the with Mr Godfrey Alexander Carter. You regularly lost as, to your dismay and to conference. You were the hero of the town were Mr Carter’s third articled clerk, fol- Buckner’s habitually unconcealed fury planning and local government junior Bar. lowing Judge John Campton of this Court and frustration, they did that year. You served on no fewer than 10 stand- and the late Neil McPhee QC. You were Your Honour’s chambers are in what ing committees, representing the Bar admitted to practise on 1 March 1962, and others describe as “Collingwood Corner” — including 10 years on the County Court signed the Bar Roll on 21 June that year. — Judges Fagan, Hanlon, Bowman and Practice Committee and Bar/Law Institute You have the distinction of having had Hicks. You yourselves call it the Barwick County Court Practice and Procedure two masters — first William Crockett (later Wing — not in honour of the former Committee. Justice Crockett) and, when Crockett Chief Justice, Sir Garfield Barwick, but of The Solicitor-General has already men- took silk, you completed your pupillage “Dougy” Barwick, the Collingwood half- tioned the “Fagan Report”. As Chairman with John Somerville (later Somerville QC forward in the 1990 premiership team of the Criminal Bar Association County and Judge Somerville of this Court). that won by eight goals, no less. Court Listing Committee, you took a lead- The breadth of your practice was You came straight to the Bar after ing role in the preparation of a substantial remarkable, even in those days of the admission. Apart from your year’s arti- report on delays in the criminal law. Its all-rounders. Administrative law was your cles at Paveys, you had no contacts in comprehensive examination of the admin- particular specialty, and you practised practice. A brief to appear before the istration of the criminal law won universal extensively in town planning and local Board of Enquiry into Scientology on applause. That report was submitted to government law. You also practised in behalf of an organisation concerned about the Bar Council, and became the submis- personal injuries, crime, commercial and the practices of that cult enabled you to sion of the Bar to State Government. The equity, and in family law. demonstrate your skill — and you never Government of the day adopted some of You even appeared in the Supreme looked back. its proposals, and the next Government Court as a litigant in person. One Friday, Many an instructing solicitor recalls the adopted the Fagan Report as policy. the late Garth Buckner and Your Honour first visit to your chambers — a slightly You had five readers, Peter Fox, Robert appeared in the Practice Court before the dishevelled, sometimes absentminded- Mackay, Clive Sharkey, Ralph Greenberger Honourable Sir George Pape seeking an looking, bespectacled smile from a fog of and Michael Stiffe. Fox, Greenberger and

16 17 Stiffe are still in practice at the Victorian the Court. There were 13 accused. The The fi rst trial had been aborted due Bar, and are all in Court today. You were a trial lasted some 70 days — at the time, to the publication in a certain Melbourne conscientious and generous master, both the longest criminal trial in the County daily newspaper of inadmissable matter in chambers, and in hospitality in your Court. Judge Douglas prosecuted and that had come out in the absence of the shared ski lodge at Falls Creek. Terry Forrest QC, Pat Tehan QC, Doug jury. You were determined that neither Your Honour was a friend to the Salek QC and Federal Magistrate McInnes this outrageous conduct, nor anything caretaker of Owen Dixon Chambers, Bill (as none of them then were) were among else, would abort the second trial. The Brown, and used occasionally to join him the defenders. Court of Appeal ordered new trials, and at the Great Western Hotel in King Street, McInnes told Your Honour that his cli- at those trials, the convicted accused along with Justices Fogarty and Frederico ent wished to give sworn evidence, but pleaded guilty to the original charges of of the Family Court (as they then were that Forrest’s client had threatened to kill intentionally causing serious injury on not), Eugene Cullity, Neil McPhee, John him if he did. You asked Mr McInnes what which they had been convicted by the jury Monahan and others. Bill Brown had his he wished you to do. McInnes said simply at the trial before Your Honour. own special glass at the Great Western, that he thought Your Honour should be Notably, for their outrageous conduct and always had his beer in that glass. apprised of the fact. at the trial before Your Honour, Justice Although you and the rest of that com- Forrest, on instructions, stated that his Osborn sentenced them for their con- pany achieved much at the Bar, not one of client would never have said that — but tempts to imprisonment of 12 months, 14 you achieved the distinction of your own this defensive submission was immedi- months and four years respectively, to be individual glass at the Great Western. ately undercut by Forrest’s client who served cumulatively. On the Bench, Your Honour is a cour- said darkly, and clearly audibly, from the Perhaps in retirement, you may be able teous, sound and compassionate judge. dock: “Your Honour, the only box he’ll be to work on your golf. When attending the The Solicitor-General has spoken of getting into is a pine box.” Your Honour Australian Bar Association conference your service, both on this Court and as thought that might be a convenient time with the English and Scottish Bars in the Deputy President and President of the to adjourn. early nineties, you had the opportunity to Administrative Appeals Tribunal, and of Mr McInnes’s client, on more mature play a round at St Andrew’s — the home your staunch judicial independence and consideration, elected to make an un- of golf since the 1400s, and of the Royal impartiality in often highly political cases. sworn statement. One of the accused, and Ancient Golf Club, the governing In this Court, you took the tough who had the bends, had been dismissed body of golf throughout the world (except assignments such as, for example, the from the trial. Eleven of the accused were in the United States of America). cigarette handling case. Something in convicted. The one accused who was The night before your visit to St the order of $1 million worth of cigarettes acquitted was neither Mr McInnes’s nor Andrew’s, there had been a ceremonial were being transported in a pantechnicon Mr Forrest’s client. dinner at Hopetoun House — the ances- that was hijacked somewhere near Violet More recently, Your Honour presided tral home of Australia’s fi rst Governor- Town. The accused were caught unload- over the Brazel assault trial. I wish today General — with pipers, haggis and rare ing the cigarettes in Flemington. to record the Bar’s admiration of Your and choice single malt, all in abundance. It They claimed to have been hired casu- Honour’s conduct of that diffi cult trial in is said that the Australian contingent that ally to do the unloading by a man in the dealing fi rmly with outrageous conduct made it to St Andrews the next day were pub where they all happened to be drink- on the part of the accused. One accused not in as good form as they might have ing, whom they didn’t know and hadn’t “propelled an article [a bag of excrement] been. One disreputable hearsay account met before. Remarkably, none of them into the jury box”, striking a juror, who has Your Honour’s club going further from really thought about the signifi cance of then applied to be excused, and was. You the tee than the ball. the surgical rubber gloves they were had the accused removed to another court On behalf of the Victorian Bar, I wish asked to wear during the unloading. with video link. The accused then bared Your Honour a long, satisfying and happy The trial was in July 1985, less than a their bottoms to the camera. They were retirement. year since Your Honour’s appointment to then given only audio link. May it please the Court.

18 19 Farewell County Court Judge William Michael Raymond Kelly

Kelly was a born barrister. Perhaps be competition in this area at a senior level, inherited some of his aptitude from his His appellate work flourished and led to father, Sir Raymond Kelly, who was Chief a number of notable appearances in the Judge of the Commonwealth Court of High Court. In 1979, Kelly argued two Conciliation and Arbitration. But the main landmark cases in that court. The first thing that Kelly seems to have inherited was Ward v The Queen which concerned from that lineage was a determination a murder on the bank of the Murray River not to practice in the industrial jurisdic- and raised the question of the true bound- tion. He began his practice at the Bar in ary between Victoria and New South Petty Sessions, as most young barristers Wales. The second was O’Connor’s Case did then. They were happy times, There which questioned the defence of intoxica- were fewer than 200 practising barristers tion at common law. Before O’Connor’s and they all knew one another. The annual Case was heard, Kelly had accepted the intake was about half a dozen. The work offer of an appointment to the County was not arduous, but it did develop real Court, but that was not generally known. skill in advocacy at an all too basic level. Somehow the then Chief Justice, Sir And it left plenty of time to relish one’s Garfield Barwick, heard about it. At the successes and to lament one’s failures in conclusion of argument, he summoned congenial company while waiting around Kelly to his chambers and tried to dis- at court or afterwards in Gibby’s coffee suade him from wasting his outstanding lounge. talents as an advocate by going on the Chambers were in short supply and bench. Kelly was unpersuaded and so ILLIAM Michael Raymond Kelly to avoid junior barristers practising from began a long and distinguished career as retired as a judge of the County the corridors of Selborne Chambers, the a County Court judge. WCourt of Victoria on 30 June 2004, Bar rented space in Saxon House (now Kelly says that it was difficulty with after 24 years of service on the bench. He demolished) a couple of doors down in provisional tax that dictated his decision did so, without a formal farewell, to con- Little Collins Street, There, in what was to join the court, but in truth the County tinue looking after his terminally ill wife, known as the bargain basement, Kelly Court appealed to him. He had always Michelle. She died some months later. shared chambers with Hampel, Segal, enjoyed the fellowship of the Bar and Kelly, as he has always been known by Tolhurst, Williamson, Magennis, Dyett and there was a good deal more of that in the his friends, is one of the more memorable Dawson. When the shift came to Owen County Court than in the other courts. members of the Victorian Bar. If nothing Dixon Chambers in 1961, the new cham- He could indulge his interest in the else, his dress has always marked him out bers seemed incomparably luxurious. criminal law without having to justify his in a profession not noted for its reticence. Kelly’s practice developed and, as existence by writing interminable judg- If a black jacket and waistcoat, striped he moved out of Petty Sessions, crime ments. And there was a security in being trousers and a Homberg or Bowler hat began to overtake civil work. He began a judge of that court which would enable didn’t invite attention, a monocle and by prosecuting for the Crown and those him to enjoy his family life in a way that a watch-chain with a Hunter at its end briefs were supplemented by others from practice as a criminal barrister, however certainly did. Kelly maintains that he the Public Solicitor. In the end, Kelly was successful, could never do. dressed in this way because he could buy doing mainly, although never exclusively, Although Kelly didn’t relinquish his two or more pairs of trousers for every criminal work. This was something he individuality as a judge, his application of one jacket and because he didn’t have enjoyed. His interest lay in the criminal the law was careful and accurate. There to think about what he would wear. The law, not only in its practice, but also in its may have been an element of intuition in real reason, which he expressed one day theoretical and historical underpinnings. this, but it was more likely the scholarship in an expansive moment, was that in this And he was fascinated by the challenges with which he always uncovered the fun- world, which was grim, grey and dreary to it presented to an advocate and by the damentals of a doctrine before applying it many, he had a duty to add a little colour insight it gave into the human condition to the circumstances at hand. As the years to brighten their day. which so starkly reveals itself in the crimi- wore on, Kelly was constantly sought out Having served his articles at Weigall & nal courts. by his fellow judges with the problems Crowther, Kelly came to the Bar in 1958. In 1977 Kelly took silk. This was seen which they inevitably encountered. He He believes that the staff at the Titles at that time as a brave move for one who never stinted in the advice he gave (some- Office held a champagne party upon being practised in the criminal law, but it wasn’t times at length) freely and enthusiasti- relieved of his efforts as an articled clerk really so for Kelly. By this time he had also cally. By dint of learning and experience to master the intricacies of the Torrens developed a healthy appellate practice it was invariably correct. Kelly’s departure System. He read with John Mornane. in criminal law and there wasn’t much will leave a large gap in the resources of

18 19 Articles the court. His innate respect for the law fession and the judge which harked back if there had been proper references ready did not, however, prevent him from occa- to the camaraderie of the Bar. Perhaps it at hand when preparing a charge. The sionally tilting at the Court of Criminal was the opportunity to indulge in those result was a loose leaf folder containing Appeal in a provocative ruling. It may be things such as good food and wine, which standard directions upon most matters that these were practically the only occa- were restricted (for good health reasons) that were likely to occur in the ordinary sions on which he was overturned by that at home. Whatever it was, Kelly relished trial. This Charge Book, as it became court. circuit life and he will long be remem- known, was resisted at first by judges who During the 24 years that Kelly was on bered in many a circuit town. wouldn’t admit that they needed it and the bench, the County Court grew very Notwithstanding his undeniably strong by others who feared that charges would much larger. Its administration became personality, Kelly was probably a lenient become mechanical. Some even thought more complex and procedures needed to judge. He had a tolerance for the miscre- that a departure from the standard charge be put in place. Kelly regarded many of the ants appearing in his court and even a would become a ground of appeal. Those innovations as a threat to his independ- liking for many. He believed that it was fears were never realised and the Charge ence, which he took very seriously indeed, his duty if possible to keep people from Book, kept up to date by Kelly, became He resisted the new managerialism (as he gaol rather than putting them there. And standard equipment for trial judges. called it). Computerism as an end in itself, despite occasional expostulations about His Honour Judge Kelly is one of the particularly the internal website, was an the state of the law, the profession or most widely known and respected mem- anathema to him. But he was forced to things in general, he treated counsel with bers of the legal profession, He is still succumb and was even forced (eventu- tact, understanding and humour. The remembered by many as a friend and ally) to give up smoking cigars in cham- guidance he gave was unobstrusive and worthy colleague at the Bar. He is cer- bers, but only after threatening to join, sympathetic. Counsel enjoyed appearing tainly known to many both from within fully robed, the gaggle of smokers out on in his court. and outside the profession from their the footpath. His individualism may have Kelly’s concern for the law had a practi- appearances in his court. He is known to placed some strain on a Chief Judge suf- cal application in the Charge Book which generations of barristers from his partici- fering increasing administrative burdens, he compiled. It’s now used by all the judges pation in the Bar Readers’ Course. He is but forgiveness was inevitable because of on the court. It arose from a conversation known for his good company on circuit the enormous contribution Kelly made to between the Solicitor-General and Kelly in and in the Essoign Club. He retires with the real work of the court. which the Solicitor-General complained the goodwill of all. They know that judges Perhaps it was the freedom to run that he had frequently to defend trial of his calibre are becoming harder and his own court in his own way that made judges in the Court of Criminal Appeal harder to replace. circuit work appealing to Kelly, Perhaps it against errors or omissions (particularly was the closer contact between the pro- on circuit) which would not have occurred

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20 21 Articles If Hedda Met Hamlet — Would They Still be Bored? [To the tune of the Beatles’ song When I’m Sixty-Four]

Geoffrey Gibson A Christmas Message from that other Stage

Hamlet and Hedda Gabler are the two best known plays of their authors on the stage. Their characters are still raising hell around the world. What do they have in common?

OTH are Scandinavian. Denmark On any view they come from a privi- ruled Norway for a long time politi- leged background and they have too much Bcally and for longer culturally. The time on their hands. Hedda probably is Norwegians felt inferior to the Danes, who more used to getting her way than Hamlet in turn felt inferior to the Germans. The and might be the paradigm spoilt child. Geoffrey Gibson. dying Hamlet gave the nod to Fortinbras, (You could divert yourself by discussing the Norwegian adventurer and man of which of the local schools for girls could of them look to us like common garden action. Whether Hedda was the model of have offered Hedda the best way of finish- neurotics. (It was a big problem up north Scandinavian womanhood of her time is ing.) They certainly have enough time at the end of the nineteenth century — at unlikely. What is certain is that Hamlet is to mope and feel sorry for themselves. the beginning of Uncle Vanya, the doctor about as unlike a Viking as you could get They think too much — partly because says “life here is so dreary and stupid and — until he gets deported and turns into they have nothing else to do. The son of sordid”; only about six years separated the Errol Flynn. Before that he is a dedicated a soldier would not have hesitated if it two plays.) quietist. We might add that by the time the was proved that his uncle had grabbed Each is self-centred. They are not ego- creator of Hedda got round to describing the throne and mounted his mother after tists, but egoists, the chip-on-the-shoul- the Norse, the last traces of the Vikings topping his father. The daughter of a der, the-world-owes-me-a-living type. had been extirpated leaving a most grimly maid would not be fixated on two pistols They think they have something to give to prosaic people to confront the elements. to the point where she asks someone to the world and because of that self belief Both heroes have distinguished sires. kill himself “beautifully” with one of them. they may give nothing. It is impossible to Hamlet is the son of a king. Hedda is the Working people have neither the time nor think what Hedda may have been like as daughter of a general. Norway was not the inclination to play dice with God like the mother of the child she was carrying then a martial entity and probably did these two heroes. when she terminated both. It is not easy not have many generals, but there was Each repudiates their lover. (Since for to see Hamlet as a father either, although something elective about the office of king Hamlet this has included Jean Simmons, he must have been capable of giving in the in Denmark. Marianne Faithfull and Kate Winslet, this past because of the loyalty shown to him They are both relatively young. Hedda is a significant sacrifice, if not prima facie by others later. is 29 and Hamlet 30. A knowledgeable evidence of genuine insanity; on the other Their emptiness drives each to con- Greek taxi driver told me that most girls hand, Hedda could cut through her hus- template suicide. Hamlet thinks about it a level out by 28. (A Greek taxi driver may band like a knife through butter). lot and does not go through with it (which not have felt the need to comment on the Each is bored — terminally. The word must be at least one advantage of being position with the boys.) Both of these is I think ennui. Hedda could have uttered slow on the uptake); Hedda thinks about people should be in their flowering time. those words — all of the ways of the world it once and does it immediately. Neither is. On the contrary, both are wilt- seem “weary, stale, flat and unprofitable”. They each represent the central prob- ing. It is this characteristic which makes each lem of our age, the death of God. (The

20 21 reverse problem is those who think that ing this will break him; while he is going in his defence that he was ordered to do God is alive and appropriate to determine on his bender, Hedda tells his current so by a jumpy ghost. (Just think how that the fate of nations.) Both Hamlet and mistress, Thea, whom she has already version of the superior orders defence Hedda give the impression that for them put under her power, that her lover will would have gone down in Nuremburg.) God is dead. They lack a moral bedrock come back wearing vine leaves; Hedda is For Hamlet to have done anything other to guide them in a crunch. Hamlet is all still talking of his coming back with vine than pause would have been to take him intellect and no faith; it is the lack of con- leaves after he has been arrested for back across the line that is supposed to viction that inhibits him. With Hedda it is resisting arrest while drunk in a brothel; separate us from the lions and the tigers the opposite — there is nothing to restrain when Hedda burns his life work, she tells (and the Texans). Hamlet was not built her — it is as if she existed before Moses an imaginary Thea that she is burning for this. Not many of us are, thank heav- had pronounced the injunction against their child and is reminded of how she ens. It may be as well to remember that in murder. Hedda is morally sterile; Hamlet used to pull the hair of Thea and threaten the most blood-soaked play of the lot, the is intellectually pregnant. to burn it when they were at school; then hero was driven to describe the Eternal The conventional call is that Hamlet has she seeks to procure a beautiful suicide. City as “a wilderness of tigers”. too much conscience and Hedda too little. The reason? “For once in my life I want to How would they have taken it all back This is misleading. To say that Hamlet is feel that I control human destiny.” If that at the university of Wittenberg? How inhibited by his conscience is simply to re- does not represent at least moral insanity, would the uppity champions of Protestant state the question — why does he fear the you would not want to get too close to too European civilisation have received an consequences of his actions? In his terms, many others as sane as Hedda. avenging Scandinavian Prince with blood why does conscience make him a coward? What I have just said is based on the on his hands? Hamlet is the intellectual lost soul; Hedda traditional view of Hamlet. My own view is “Sounds like a good way to spend the is the moral lost soul. What makes Hedda that people have been very unfair in criti- vac for a sweet little Danish boy like you, a coward, and it is the only thing, is her cising Hamlet for not acting more quickly. H. What took you so long? You planted fear of scandal — her fear that her veneer He obviously has a fine mind. He has a your uncle for popping your dad and might fall. You wonder if history may have philosophical disposition. He is finishing giving it to your mum, and then you sent been different if Hamlet had had more his education at Wittenberg — then called your mum off to the same convent that Sunday school and Hedda had had less. a learned seminary of the arts, where that you wanted to commit your girlfriend They are both students of and studies suave German exponent of liberal love to before she went bonkers and topped in power. Hamlet sees himself acted on and confession, Martin Luther, nailed his herself. This was after you had shafted the by others. Hedda wants the power of life theses to the door — for the reason that Prime Minister (Polonius) by mistake but and death over others — and gets it at the it is only in Europe proper that you can before you put away his son in a rigged cost of her own life. Eventually Hamlet get a decent education. (Laertes is shoot- duel after he saddled up a mount in the loses his life to forces out of his control. ing back to France as fast as he can.) The Blood Feud Handicap by setting his own There is a sense of chaos — “time is out north is backward and Hamlet knows that odds. (Your rough mates probably told of joint; these things do not happen” – but its “swinish” customs are revolting to you that he would be a pansy because he Hamlet’s condition is the result of the Europe. Hamlet is not I think a religious was working out with the Frogs.) chaos; Hedda causes it. man but obviously has what any civilised “Now you are contemplating some deal Each is articulate but unable to articu- person in the west has, a basic subscrip- with the Norsemen who are even madder late their position. Each is revolted by a tion to the Mosaic law. than you or the Swedes. No wonder there rotten world but cannot find anything in He is at a difficult time in his life — he is so much ‘angst’ lying around up there, their own emptiness that enables them to loses his father and the succession; his up North. If you keep going like this, peo- go the distance. mother marries too fast and beneath ple will go screaming mad, and a Norse The difference is that Hedda does not herself, and too close; and the family artist will paint someone screaming and just have contempt for the world, but an of his girl, two of the most waspish and claim the painting as a work of art. Then, indifference to life. The Mosaic code has boring people in Elsinore, are putting the H, your lot will have redefined what it is to gone west. A woman who can do what she frighteners on her. It is then that he gets be civilised. did to a former lover –— destroy his life an absolute supernatural injunction to “We gather you dispatched your uncle work and then invite him to kill himself exact revenge — but in no way to hurt his with a one-man hat trick — a chandelier, a beautifully: that is, for her gratification mother. The ghost wants Hamlet to be the sword and poison. Have they not yet heard — is evil. The difference between Hedda instrument of a “vendetta”. of gunpowder up there, H? But we sup- and someone like Hitler may to some It is no wonder that he “pauses” — and pose that he did send you off to England be just one of arithmetic. That is not so pauses long enough to let events intervene to get the Poms to put you away — ‘Do for Hamlet. He can give; Hedda can only and relieve him of having to make a deci- it, England’ he said, possibly because take. sion. Such as killing his King and pleading there is a dude over there who does not Hamlet and Hedda may in truth rep- hesitate to top a wife who does not come resent the difference between building up to scratch in the Sires Production castles in the air and living in them. For Stakes. (The Poms, by the way, H, are whatever reason, Hamlet pretends to The conventional call is no relation to us.) Anyway, you thwarted be mad. He is not mad at all; he is just that Hamlet has too much the Poms by putting Rosencrantz and another stress case. But there must be a Guildenstern, not main players I might real risk that Hedda was in truth mad. She conscience and Hedda too say, away in straight sets. tries to bring a former lover back under little. This is misleading. “We do not think your uncle can add her power by driving him to drink, know- your mum to his score-line — that has

22 23 to go down as an own goal — he only got “The only concern we have is that you He interrupted me while I was taking the her because he was not prepared to back are not Fortinbras, and Hedda is certainly dog for a walk in Golden Square the other the son of the PM at the loaded odds on not the dainty Ophelia. We do not want you night. He said he had learnt the nocturnal offer in the fencing. And your old man, to be punching above your weight. One ghost trick from his dad. He did say that it seems, has to remain scoreless. (After thing Fortinbras did say was that Hedda he was still a bit dirty — and I can under- that ripping yarn about your dad getting it has a real thing about a pair of duelling stand why — that he was not invited to through the ear in the orchard, do you feel the big wedding in Denmark earlier this up to a second Apple Danish?) year. He is, after all, a prince of the blood “If this is the way the flower of Denmark Ever since those Norse royal, and members of the incoming fam- spend their weekends — one of your ily were people of an indeterminate class toffy mates referred to ‘carnal, bloody got out of their Viking invited from the other end of the earth and unnatural acts and casual slaughter’ phase, H, they have been (this is to put it politely) — and he thinks — some dude might write a book about it undergoing an extreme there comes a time, as surely as it must one day and call it Slaughterhouse Five. have by now, for bygones to be bygones. Christmas Dinner with the family must makeover, and trying He has had enough, he said, of the old be very cosy — your lot would make the to be nice to everyone, times past, the “auld lang syne” of those Borgias look like the Elsinore Girls Choir particularly the girls. other wild men across the sea. He gets jit- on a picnic. You would have to be sure that tery every Christmas because every time you were taking your White Lady from the he hears a Christmas carol or someone right goblet. All this slaughter within the pistols she got from her daddy. She goes lights a candle, he just waits to hear some- immediate family, H, does make those bonkers over them. (Settle down, H, we one say “may flights of angels sing thee to ancient Greek stories look very soft and know the time lines are a bit out of joint, thy rest” and off he goes again — that is tame — as weak as water. but we can tell you positively that Freud why he wants us to have a good Christmas “By the way, H, what did that old PM has not been born yet, and that if Ibsen and New Year. ever do to you? You got him, his daughter, does not exist, Freud will have to invent and his son — another hat trick. Now, we him.) So, H, if she pulls out her pistols, know the nights are long and cold up there, and gives you that old far away look, and old boy — they can get a bit brisk down says you are beautiful, just go and take a here — but do you not think it is time running jump into the nearest fiord — in to stop playing being Vikings again and the deep end. Pronto, Tonto. Capisce? contemplate entering the 14th century “Ever since those Norse got out of their while the rest of Europe cruises through Viking phase, H, they have been undergo- the 16th century? ‘Casual slaughters’ are ing an extreme makeover, and trying just not good enough. Down here, we take to be nice to everyone, particularly the the view that if something is worth doing, girls. Hedda has it all. She calls it being it is worth doing properly. That, H, is what ‘empowered’. The boys up there do not makes us civilised, and where we leave the like it much — I can assure you that it will others for dead. never be a goer down here, mate — but “Anyway, H, the boys here think they on reflection it could be just your go. Not may have found another girl for you up even you, H, could claim that you are a your way. There was a guy through here man’s man. Indeed, if we just put your TAILORING recently called Fortinbras. You would appetite for blood to one side, you could probably call him ‘a delicate and tender be history’s first sensitive new age guy. Suits tailored to measure prince’. He is in fact a hellraiser on the “But, H, Christmas is near, and we want loose while his uncle the king is crook in you to rise above the bestiality induced by Alterations and invisible bed. Fortinbras would rather have a fight a temporal ghost (we have mixed views mending than a feed. (He will probably knock off on holy ghosts just now); we implore you Quality off-rack suits Denmark some day.) He was just back to put the vendetta back into the time from his latest dust-up — against the poor and place you got it from and perhaps, Repairs to legal robes Poles over a piece of land the size of a pad- H, even give the law a chance. We know dock. If you had to cast someone to play that you have sounded off about ‘the law’s Bar jackets made to order him, you would probably go for someone delay and the insolence of office’ but they like Rufus Sewell — unshaven — threat- are just facts of bloody life — just ask the ening, but so beautifully spoken. He told lawyers — and just look at the body bags us he had been chasing a Norse girl called up there, H. LES LEES TAILORS Hedda. She is well bred, the same age as “At the very least, at this time of year, you, and unhappily married. He liked her can you join with us in resolving to try to Shop 8, 121 William Street, because she was feisty and her old man reduce the Rage Toll? Happy Christmas, Melbourne, Vic 3000 was a general. He was a bit coy about why H, and heaven knows that you would be Tel: 9629 2249 he went off her, but we Germans put a lot going bad for the next year to be worse, Frankston of store on discipline, and Hedda sounds Happy New Year.” Tel: 9783 5372 to us like just the girl to bring you into And Merry Christmas and a good New line, H. Year from me — and from Hamlet too. 22 23 Articles The Twilight of Liberal Democracy?

Gerard Nash QC

The strong line taken by the Australian Government in relation to “boat people” and the recent spate of legislation designed to protect the community against terrorists have both raised, in slightly differing ways, the question of how far the freedoms which are the hallmark of a “liberal democracy” should be curtailed in the interests of the common good.

HEN we talk of “democracy” or of immunity from arbitrary arrest or deten- “building and creating democracy tion. It provides: Win Iraq” we are talking of having a government freely elected. A liberal No freeman shall be taken [and/or] impris- democracy, however, requires more than oned or disseised or exiled or in any way free elections. A liberal democracy is one destroyed nor will we go upon him nor send which necessarily accepts and upholds upon him except by the lawful judgment of basic rights of the kind which the com- his peers or [and/or] by the law of the land. mon law has evolved. The fact that the government is freely elected has little or Subject to the ambiguity (represented no impact on such individual rights at the by “[and/or]”) created by the use of the coal face. It is essential that the courts Latin word “vel”, this clause seems to protect those rights and it is necessary for constitute an undertaking that, in today’s the community to recognise those rights terms, the ordinary citizen may be impris- as being fundamental to the system under oned only pursuant to a lawful judgment which we live. made in accordance with the law. There has always been a tension It must be remembered that, when between the interests of the community King John in 1215 agreed to abide by the and the rights of the individual. In feudal law, he was not agreeing to abide by such days the Crown saw itself as the arbiter law as he should promulgate, but rather to of the common good and the interests of abide by the law of the land, to which he Gerard Nash QC. the community tended to be equated to was subject. the interests of the King. The tension was In an absolute monarchy not subject been a tendency to rebel against or resist between the interests of the ruler and the to legal restraints, conflicts of interest are heavy-handed authority. This manifested existence of any rights in the subject. resolved in favour of the ruler. However, itself in the fiasco of the Eureka Stockade Magna Carta, which has come to be the development of a constitutional mon- and finds expression in the Ned Kelly treated as a charter of liberties, was archy changed that situation. Today the legend. This “agin the government” atti- designed or intended to inhibit the power tension between the interests of the com- tude, combined with the myth that we of the monarch by reference to the rights munity or of government and the rights of are an egalitarian society has led to the of his subjects (as represented primarily the individual is resolved by the judiciary philosophy that everyone should be given by the barons) rather than to be a general according to law. “a fair go”. charter of liberties. Despite its baronial The existence of a strong and inde- On the other hand, there has always source, Magna Carta has throughout the pendent judiciary has contributed sig- been an element of xenophobia in the centuries been seen as a symbol of the nificantly to the protection of individual Australian psyche, revealed starkly by freedom of the individual under the law freedoms. In a society where the execu- our treatment of the Chinese on the 19th and as a statement that the executive is tive de facto controls the legislature, it century goldfields and elsewhere and by subject to the law. is only the judiciary which inhibits the our treatment of the Aboriginal people There can be no doubt that Clause 39 absolute power of government. over two centuries. of the great charter purports to provide In Australia, there has historically However, in the 1950s and through

24 25 Articles

into the late 1970s, although there was a fined for years in detention centres, Kuwait or to Gaza. However, the receiv- tendency to resent migrants as a whole, requires us to forget that these people are ing countries refused to co-operate. we tended to approve of the migrants we human beings. It is probably important Consequently, attempts to remove him actually knew. The people we knew were to our peace of mind that they be only from Australia were unsuccessful. fellow human beings whom we accepted counters in a game. They can then be He sought a declaration that he was into our society. This is not the case treated harshly to discourage other peo- being unlawfully detained and sought today. ple from coming here without an invita- habeas corpus, mandamus, directing his Today we live in a narrow materialistic tion. Logically, the more harshly they are removal from Australia and an order pro- society which is not prepared to let new- treated the greater the general deterrent hibiting his continued detention. comers into the country merely on the on others. The issue before the High Court was ground that they are destitute, desperate A considerable time ago Gareth whether the relevant provisions of the and prepared to risk their lives to get here. Evans was proposing a Bill of Rights for Migration Act, when properly construed, This is not just a governmental policy; it is Australia. At that time, it seemed to many authorised the indefinite detention of an a policy endorsed by the electors of this of us that a Bill of Rights was unnecessary “unlawful non-citizen” in circumstances country. because we believed that the courts would where there was no real prospect of his Sociologists tell us that people born protect, in a much more flexible way, the removal from Australia. between the end of World War I and the rights of the individual without creating The majority of the court, McHugh, end of World War II are to be categorised what has sometimes been called a “rogues Hayne, Callinan and Heydon JJ held that as “traditionalists”. The characteristics of charter”. the relevant sections did authorise such the traditionalist is that he or she works indefinite detention and that the legisla- hard not for money but for status, has a tion was constitutionally valid. keen sense of obligation to the community Gleeson CJ, Gummow and Kirby JJ but is also very conscious of his individu- We have become a mean dissented. ality and his responsibility to himself and and niggardly people each Gleeson CJ (who dissented as to the others as human beings. of whom is preoccupied meaning of the legislation) enunciated the The “baby boomers”, born between philosophy which, with respect, should 1945 and 1960 or thereabouts, belong to with “me”. We have underpin all judicial reasoning in a liberal what is described as the “me” generation. approved and encouraged democracy. A baby boomer works for material gain the hard line policy of and does not have the same conscious- Courts do not impute to the legislature ness of community responsibility as the government in relation to an intention to abrogate or curtail cer- traditionalist. boat people. tain human rights or freedoms (of which The “X generation”, born between personal liberty is the most basic) unless about 1960 and 1980 are a group who such an intention is clearly manifested by “work to live” rather than “live to work” While the courts are required to apply unambiguous language, which indicates and are less concerned with the future the law as laid down by the legislature, that the legislature has directed its atten- than baby boomers or traditionalists. Like questions of policy and philosophy do tion to the rights or freedoms in question, the baby boomers they are egocentric and enter into the interpretation of ambiguous and has consciously decided upon abroga- generally have little sense of responsibility legislation. The judiciary have a major role tion or curtailment … A statement con- either for themselves or others. to play as a buffer between the state and cerning the improbability that Parliament The difference between the genera- the individual. For that reason, where two would abrogate fundamental rights by the tions is not, however, an explanation of interpretations of a legislative provision use of general or ambiguous words is not a the complete indifference which the are open, one of which favours the rights factual prediction, capable of being verified majority of people in this country have of the individual and the other imple- or falsified by a survey of public opinion. In to the plight of those who are held in ments a draconian government policy a free society, under the rule of law, it is an immigration detention. It would seem that which cuts across a “fundamental free- expression of a legal value respected by the that indifference is spread right across the dom”, one would expect a court imbued courts, and acknowledged by the courts to generations. with the common law traditions to lean in be respected by Parliament. We have become a mean and niggardly favour of protection of the individual. It is people, each of whom is preoccupied with the individual who needs protection in our Gummow and Kirby JJ dissented both “me”. We have approved and encouraged society, not the government. as to the meaning of the legislation and as the hard line policy of government in rela- The view which the majority of the to its constitutionality. They held that the tion to boat people. It is a policy akin to High Court appear to have taken in Al- relevant provisions in the Migration Act, if that adopted by Marshall Foch in World Kateb v Godwin (2004) 78 ALJR 1099 they had the meaning attributed to them War II when he executed deserters “pour has, with respect, undermined that faith by the majority, were unconstitutional. It encourager les autres”. A similar approach and defeated that expectation. was for the judiciary not for the execu- by the British military establishment was Al-Kateb was a stateless person born of tive to determine whether the detention made famous — at least in this country Palestinian parents in Kuwait. He arrived fell within the power pursuant to which it — by the film “Breaker Morant”. in Australia by boat without a visa. He purported to be exercised. For us to rest easy in our beds while applied for a protection visa and failed. Gummow J said: men, women and children, whose only An application for judicial review of that offence is that they have come to this refusal also failed. He requested that the The continued viability of the purpose of country without an invitation, are con- Minister remove him from Australia to deportation or expulsion cannot be treated

24 25 by the legislature as a matter purely for the Black’s American Constitutional Law, almost without comment by the com- opinion of the executive government. The 2nd Ed., that it was “within the necessary munity and — more alarmingly — by the reason is that it cannot be for the execu- power of the federal government to pro- legal profession. Whether necessary or tive government to determine the placing tect its own existence and the unhindered not, it constitutes another nail in the cof- from time to time of that boundary line play of its legitimate activities”. But his fi n of individual freedoms. which marks off a category of deprivation Honour went on to say (at 189): It is probably true that the individual of liberty from the reach of Ch. III. The at the bottom of the pecking order has The extent of the power which I would location of that boundary line itself is a always had very limited rights because imply cannot reach to the grant to the question arising under the Constitution or of the social and economic barriers to executive government of an authority the involving its interpretation … Nor can there full enjoyment of those rights. However, exercise of which is unexaminable, to apply be sustained laws for the segregation by in a liberal democracy of the kind which as the executive government thinks proper incarceration of aliens without the commis- we purport to have the individual does the vague formula of sub-ss.(2) relating to sion of any offence requiring adjudication, have rights — all individuals have rights prejudice to the maintenance and execu- and for a purpose unconnected with the — which are protected from governmen- tion of the Constitution and the laws, and entry, investigation, admission or deporta- tal or bureaucratic interference. by applying it to impose the consequences tion of aliens. The amendments to the Australian which under the Act would ensue. Security Intelligence Organisation Act Kirby J expressed himself somewhat Since that decision was handed down 1979 represent just one aspect of the anti- more succinctly: there has been a drift not only in Australia terrorist legislation. But they illustrate the but in other western “democratic” coun- erosion of fundamental rights. Indefi nite detention at the will of the Exec- tries towards a greater interference and Under sections 34D and 34F a person utive, and according to its opinions, actions control by government in and of the day- may be detained for questioning by ASIO and judgments, is alien to Australia’s Consti- to-day life of the people and a gradual pursuant to a warrant issued by a “pre- tutional arrangements. acceptance of that interference and con- scribed authority”. trol by the community. If a person is so detained and during the The approach adopted by the major- That acceptance, if accompanied by period for which the warrant is operative ity of the High Court accords with the the adoption by the courts of a narrow he or she discloses information indicating philosophy of the community and with the positivist and black letter approach to the that the warrant has been issued or a fact philosophy of the executive. It may or may law, will see us moving ever so slowly to relating to the content of the warrant or to not accord with the intention of the legis- a position similar to that of the German the questioning or detention of the person lature when the legislation was passed. jurists who found themselves helpless in in connection with the warrant he or she One cannot but conjecture that the the face of the laws imposed by the Nazi commits an offence: section 34VAA. probability is that Parliament just did state. The drift is a drift, however slight, Further he or she is also prohibited for not consider the possibility that a person, towards totalitarianism. a period of two years after the expiration whose visa had been cancelled or who had Every power conceded to, or abro- of the warrant from revealing any infor- no visa or whose deportation had been gated to itself by, government involves a mation which is “operational information” ordered, would not be removed from proportionate diminution in the rights of derived as a result of the issue of the war- the Australia in a relatively short time. the individual. rant or the doing of anything authorised There is certainly no basis for concluding I am not concerned to argue whether by the warrant: section 34VAA. that Parliament contemplated indefi nite the anti-terrorist legislation which has Under section 34VA the Minister may detention of “unlawful non-citizens” at the been enacted in this country over the by regulation prohibit or regulate access behest of the executive. last three years is necessary or desirable. to information, access to which is oth- As a reaction to the events which My concern is that it has been accepted erwise controlled or limited on security occurred in New York on 11 September grounds, by lawyers acting for a person in 2002 and the events which have occurred connection with proceedings for a remedy much closer in Bali and Jakarta, our leg- relating to a warrant issued under section islators have passed a plethora of legisla- 34D. tion which is directed to the protection Every power conceded The effect is that individuals may be of the community at the expense of the to, or abrogated to itself arrested and questioned by ASIO but may individual. by, government involves a not reveal to their legal advisers, in many During World War II individual rights circumstances, the facts which would sup- were curtailed in the interests of defence. proportionate diminution in port an allegation that ASIO had exceeded The executive, the legislature and the the rights of the individual. its powers, had acted improperly or oth- courts accepted that the state had the I am not concerned to erwise in its dealings with them had acted power to pass legislation and to make argue whether the anti- contrary to law. They may not tell their regulations to protect its own existence. lawyers everything that happened during After World War II, when we moved terrorist legislation which detention or while being taken into deten- into the era of the Cold War, the Menzies has been enacted in this tion until at least two years later because government introduced the Communist country over the last three it may reveal “operational information”. Party Dissolution Act. The High Court The Minister may prohibit their lawyers held that Act to be beyond power. years is necessary or from having access to information which Dixon J accepted as applicable to the desirable. may be vital to the question of whether Australian situation the statement in the detention was legal or illegal.

26 27 Further by section 34X a court of a state or territory does not have jurisdiction to provide any remedy relating to a warrant issued under section 34D or the CHIEF JUSTICE’S CHAMBERS treatment of a person in connection with SUPREME COURT MELBOURNE 3000 such a warrant at least so long as the warrant is in force. The rule of law, as we know it, — the right to prerogative and injunctive relief against bureaucrats exceeding their powers — is removed. A person detained pursuant to section 34D can seek relief Opening of the only from the High Court pursuant to s.75 of the Constitution in respect of any illegality associated with the detention or Legal Year the treatment while in detention. One suspects that the executive might well have preferred to remove recourse to section 75 if it had been possible. Monday 31 January 2005 The terrorist threat led to the invasion of Iraq, an invasion which, it appears to be accepted by a large percentage of The services for the Opening of the Legal Year are as follows: eminent international lawyers, was illegal. It has also resulted in what the military call “collateral damage”. The Australian St Paul’s Cathedral community as a whole seems to feel no Cnr Swanston and Flinders Streets, Melbourne responsibility for the dead and mutilated at 9.30 am non-combatants who have been injured in the Iraq war. We have not even bothered St Patrick’s Cathedral to “demonise” those people in order to desensitise ourselves. Our attitude refl ects Albert Street, East Melbourne a meanness in our society which does not at 9.00 am (Red Mass) sit well with our image as an open, warm hearted and hospitable people. Melbourne Hebrew Congregation Our treatment of illegal immigrants, Cnr Toorak Road and Arnold Street, South Yarra our lack of concern about the powers given to ASIO, our indifference to the “col- at 9.30 am lateral damage” involved in our invasion of Iraq, all refl ect a mean and narrow society St Eustathios Cathedral of greedy people. 21 Dorcas Street, South Melbourne We are also moved by fear, fear of terrorist outrages, fear of a recession, fear at 9.30 am of increasing interest rates, fear that our comfortable lives will be disrupted by physical or economic harm. Societies which are in fear move to the right and act ruthlessly. They generate zealots. Zealots generate crusades and jihads. Whether the enemy is a red under the bed or a Muslim terrorist, the fi ght against the enemy, whether we call it a crusade or a jihad, is clearly something that justifi es the abrogation of individual rights and even of individual lives. We live in a time and a society in which our freedoms are being eroded by fear and fundamentalism — not only Islamic fundamentalism. We should be aware of the zealot and the fundamentalist because the man or woman who knows that he or she is right can perform, and justify, the most horrifi c acts in pursuit of “the cause”.

26 27 Articles Indian Rope Trick

Jim Shaw

N the Winter 2001 edition of this publication there appeared an article headed I“Indian Summer Holiday to Chennai Courts and Bar”. I wrote that piece, and entitled it simply “Indian Summer”. The editors, displaying the dislike of succinct- ness and the love of the prosaic that is habitual among members of our profession, decided in their wisdom to quadru- ple the number of words in the heading. Pleased, no doubt, with their efforts, and wishing to claim all credit for their flash of creative brilliance, they printed the article without a byline. In October 2004 I returned to the sub- continent. An Indian summer is defined in the Concise Oxford Dictionary as a “period of calm dry hazy weather in late autumn in northern US and elsewhere” or “(fig.) tranquil late period of life etc”. While October may indeed be fall [sic] in the United States, it is winter in India and spring in Australia. The ability to describe Indian cities as tranquil at any period of life would be a privilege reserved for the deaf or insane. I have therefore determined that this humble offering shall be enigmatically entitled “Indian Rope Trick” (“supposed Indian feat of climbing unsup- ported rope”) and leave things to Paul Ricky Ponting (captain), Damien Martin (player of the series) and Jim Shaw Elliot’s discretion. (hanger-on) savour the moment. I will not try to claim that the purpose of this, or the previous journey to India, Court. Mumbai was called Bombay until Construction of the Bombay High was to examine the workings of the Indian 1995. With a population of 16 million it is Court commenced in 1871 and was com- legal system. In fact this trip was for the the largest city in the country. It is also the pleted in 1879, taking about half the time purpose of examining the workings of the capital of the State of Maharashtra. It sits it took to remove the scaffolding from Australian cricket team. The team’s four on seven islands which, through a proc- the front of the old County Court build- Test tour was labelled the “Final Frontier”, ess of land reclamation, have been joined ing in Melbourne. Whether the builder as Australia had not won a series in India together to form an artificial isthmus. was faced with any claims for liquidated for 35 years. As many readers are doubt- Mumbai can claim as its own the prolific damages for late completion is not known. less aware, Australia won the series 2–l. Bollywood filmmaking studios, Sachin The main tower is 57 metres high and the Counsel was fortunate enough to see the Tendulkar, and a very great number of architectural style has been described as fourth and final Test at Wankhede Stadium, taxi drivers. It is believed to contain the Early English Gothic. Mumbai, in its entirety. The match lasted largest slum in Asia. It is a busy place, this Mumbai High only three days with all but 11 overs on Court. On the day of my visit several the first day lost to unseasonal persistent courtrooms were devoted to “chamber drizzle. Australia, chasing a modest total When not watching cricket, summonses”. There also appeared to be of 105 in the fourth innings, was bowled a phenomenal number of appeals listed. out for a mere 93. lying on the beach or One court room had at least 20 appellate When not watching cricket, lying on the eating, your correspondent matters listed on the one day. Perhaps beach or eating, your correspondent found found time to visit two of they were leave applications. Perhaps I time to visit two of India’s court houses. India’s court houses. misunderstood the court lists. Maybe they The first of these was the Mumbai High just get on with it.

28 29 Articles

In many respects the Mumbai High The Bhagwan ran into a few small car park which on this particular day Court resembled its counterpart in problems when he set up in Oregon, contained one car, two motorcycles and a Chennai (see “Indian Summer Holiday to USA, in the 1980s. He was accused of eve- wheelbarrow. On the walkway outside the Chennai Courts and Bar” (2000) 117 Vic rything from tax evasion to sexual assault. registry stand two wooden desks, side-by- Bar News 51). The Cantonment Court in This did not stop his followers, mostly side. On each sits a name plate announc- Pune did not resemble either. disaffected middle-class Westerners ing in gold letters the incumbent’s name Pune (or Poona as the British colonists known as the Orange People, from and the fact that he is an “Advocate & spelled it, presumably for ease of pronun- signing up by the score. He was event- Notary”. One of these men, one D.V. ciation) is a modern university city of 2.5 ually thrown out of America, and pro- Bhusari, greeted us warmly and insisted that we accompany him on a guided tour. He pointed to the car. “My car, my car,” he said proudly. No mention of who owned the wheelbarrow. Mr Bhusari showed us offices where the court staff laboured diligently and one room in which bun- dles of documents tied with string were piled from floor to ceiling. “Storage,” he said. The Advocates’ Association rooms, although modest, had nine full-length deck chairs (or were they chaises longues?), in a neat line against one wall. Something for the Essoign Club to consider. This was all pleasant and interesting The author’s sister, Fleur Shaw-Jones, enough. Then Mr Bhusari asked if I’d like with D.V. Bhusari, Advocate and to see the courtroom itself. OK, I thought, notary. no harm in that. Given that it was 5.30 on a Saturday afternoon, I thought it would be, to say the least, unlikely that the court would be sitting. However, one should take nothing for granted in India. “This is Jim Shaw, he is an advocate in Australia,” Mr Bhusari announced as we entered the courtroom. The magistrate, who to my alarm was seated on the bench, robed, blinked. Apart from his two clerks, sitting in front of and beside him, the room was empty. I was standing in the middle of it wearing shorts, a short-sleeved shirt and thongs. I had a small backpack over my Jim Shaw at the entrance to the High shoulder and had not shaved for several Court in Mumbai. days. I murmured something respectful but probably inaudible. His Honour (or do hibited from entering several other they still call magistrates Your Worship?) countries. murmured something less audible and I These days the devotees, still mostly fled in as dignified a fashion as was pos- disaffected middle-class Westerners, sible in the circumstances. swan about Pune in full-length burgundy- Not that the Australian cricketers didn’t coloured robes. The colour might be an have their fair share of indignities heaped attempt to distance the current crop from upon them. The crowd at the Wankhede their saffron-clad brethren of yesteryear. chanted “Ind-ia, Ind-ia” incessantly. They At night they wear white robes which only stopped to sing numerous impromptu would really show up the dirt, although versions of the national anthem (for which the street where the Commune is situated everyone rose spontaneously to their Storage at the Cantonment Court, Pune. is by my reckoning one of the cleanest in feet) and to insult the Australian play- all India. ers. Well, three of the Australian players. million inhabitants. It lies 184 km south- The Cantonment Court is a modest I’m not sure where they’re getting their east of Mumbai. It’s main claim to fame affair on MG (Mahatma Gandhi) Road, information but according to the throng these days is the presence of the Osho a retail thoroughfare in the heart of the assembled in the Sachin Tendulkar Stand Commune International. The Commune city. It’s a bit like having the Melbourne “Jason (Gillespie) is a bastard”, “Ponting was founded by the Bhagwan Rajneesh, Magistrates’ Court in the Bourke Street is a donkey” and “Clarke is a homo”. And or Osho (1931–1990). He is considered to Mall between HMV and the Pancake they reckon Australian crowds are tough. be legendary, infamous, controversial or Parlour. I don’t know what Sir Richard Hadlee was idiotic depending on whom you ask. One reaches the registry by way of a complaining about.

28 29 News and Views CommBar Celebrates its First Decade

On one of those marvellous spring evenings in Melbourne on 10 November 2004, in the presence of over 170 judges, masters, registrars and counsel, and in the uplifting surrounds of the Supreme Court Library, the Commercial Bar Association celebrated the 10th anniversary of its founding.

HE attendance of so many heads Whether Herbert was truly correct was of jurisdictions by Chief Justices of left open for banter over drinks and cana- Tthe Supreme Court and the Federal pes catered by the Essoign. Court and the Presidents of the Court During the course of the evening David of Appeal and VCAT, together with the Denton S.C., President of CommBar, wel- Federal and Supreme Court commercial comed those attending and recounted judges, was a key factor to the success of that the Commercial Bar Association the evening. was formally established at a meeting of It was a wonderful occasion for the approximately 100 members of counsel in Commercial Bar and Bench glitterati, ris- the Essoign Club on 24 November 1994. ing stars and supernovas to meet together The first President of the Association was away from the arena of the courtroom. Alan Goldberg QC, now a Judge of the Many of those attending extended their Federal Court, followed by Allan Myers appreciation to Chief Justice Warren for QC, now amongst many other things, her permission to use the Library and, as President of the NGV. He recalled that it turned out, the Court’s grand piano, for in Alan Goldberg’s inaugural address the function. he had said that the development of It was overheard in passing that with the law required, at times, the voices of so many judges representing all levels barristers to be heard and that this was no of appeal it was difficult not to recall, less true than in the area of commercial with utmost respect of course, the wit of law, which, by its nature, embraced many A.P. Herbert writing in Punch Magazine areas of practice. He had then stated that in 1933 in his case of Board of Inland it was the intention of CommBar to be an Revenue v Haddock that: “The institution advocate in the interests of commercial of one Court of Appeal may be considered barristers and to encourage the meeting a reasonable precaution; but two suggests of junior and senior members of coun- panic … the legal profession is the only sel in an informal manner. It was noted one in which the chances of error are with pleasure that the Honourable Justice admitted to be so high that an elaborate Goldberg was present on the evening to David Denton S.C., President CommBar. machinery has been provided for the cor- hear his mission statement of a decade rection of error … In other trades to be earlier being enthusiastically repeated a number of areas. It is the single larg- wrong is regarded as a matter of regret; in and reindorsed. est provider of continuing commercial the law alone it is regarded as a matter of As many will be aware, since its legal education to members of the Bar course…” inception CommBar has developed in generally and now formally comprises

30 31 News and Views

Chief Justice Marilyn Warren, Justice Garry Downes and Chief Justice Michael Black.

Justice Mark Weinberg, Justice Ron Sackville, Andrew Panna, Cornelia Fourfourkis-Mack.

The Commercial Bar and Bench “glitterati, rising stars and supernovas”. Glen McGowan, Justice John Winneke, Jocelyn Cole and John Bleechmore.

of all chairmen of the Bar since 1994. It also supplies the Bar’s representatives on the Supreme Court’s Commercial List Users’ Group under the chairmanship of Justice David Byrne. The President then turned attention to the perhaps gloomy but nevertheless provoking editorial of the Spring 2004 edition of Victorian Bar News dealing with diminishing workloads for counsel. This brought about a mischievous analysis of the state of the Bar and Bench over the past decade. It was revealed that in 1994 the Bar comprised 1261 members of counsel, including 118 silks, and in 2004 there were 1532 members of counsel, including 210 silks, which was a 22 per Albert Monichino, Chief Justice Michael Black and Simon Marks. cent increase in overall numbers. By comparison in 1994 there were 10 specialist commercial law practice counsel and currently 35 per cent of the 25 Supreme Court judges, including the sections. office holders of CommBar are women Chief Justice; in 2004 there was now a CommBar has been at the forefront members of counsel. It has prepared many standing Court of Appeal and a separate of ensuring equality of opportunity for responses to Government at the request Trial Division composed of 32 Supreme

30 31 Court judges comprising the Chief Justice, the President, 10 judges of Appeal and 20 Trial Division judges. The Victorian District Registry of Federal Court had also grown from nine judges, including Chief Justice Black, in 1994 to 14 judges in 2004. This was a combined courts increase of 35 per cent in judicial numbers. With that sort of growth in both the Bar and the Bench over the past decade it would have been expected that litigation must have also increased. However, the roguish review of the state of the Law List from 10 years ago to 2004 disclosed that on 4 November 1994 there were 34 commercial cases listed for Supreme Court directions supporting a Commercial Bar of about 550. This was contrasted to the Law List for 5 November 2004 which comprised a total of 26 commercial cases listed for directions supporting a Commercial Bar of about 850. This represented a 23 per cent decrease in listed work over a decade! On future projections the Commercial Bar Kate Anderson, Chief Justice Marilyn Warren, Stuart Anderson, Justice Alan Goldberg and Peter O’Callaghan QC.

COMMBAR THE COMMERCIAL BAR ASSOCIATION

2004 EXECUTIVE

President: Senior Vice-President Vice-President (Convenor): Treasurer: David Denton S.C. Melanie Sloss S.C. Albert Monichino John Dixon

SECTIONS

Environmental, Construction Law Corporations and Banking and Finance Planning and Local Insolvency Law Section Securities Law Law Section Government Law Section Section Section

Chair Chair Chair Chair Chair Peter Bick QC John Digby QC David Denton S.C. Jeremy Gobbo QC Nunzio Lucarelli QC Secretary Deputy Chair Deputy Chair Secretary Secretary Andrew Kirby Richard Manly S.C. John Dixon Susan Brennan Kim Knights Assistant Secretary Secretary Secretary Assistant Secretary Assistant Secretary Samantha Cipriano Andrew Kincaid Caroline Kenny Rebecca Leshinsky Andrew Hanak Assistant Secretary Assistant Secretary Caroline Kirton Dino Currao

Insurance and Intellectual Property Property and Revenue Law Professional Negligence and Trade Practices Probate Law Public Law Section Section Law Section Law Section Section

Chair Chair Chair Chair Chair Peter Riordan S.C. Dr John Emmerson QC Peter Best Richard Tracey, QC Alexandra Richards QC Deputy Chair Secretary Deputy Chair Secretary Secretary Cameron Macaulay S.C. Andrew Maryniak Robert Shepherd Stephen McLeish Simon Steward Secretary Assistant Secretary Secretary Assistant Secretary Assistant Secretary Wendy Harris Sara Hinchey David Batt Richard Wilson Chrissy Mavroudis Assistant Secretary Assistant Secretary Assistant Secretary Kate Anderson My Anh Tran Julianne Jacques

32 33 that the same joke works the other way for Melburnians as the highway links both cities. “The Melbourne–Sydney rivalry: we have been at it for the past one and a half centuries. Sydney is now feeling very confident about itself, especially since the 2000 Olympics. “The Melbourne and Sydney Bars are alike in many respects. They reflect the Pianist Matthew Toogood entertains rivalry between our two great cities. It guests. can be no secret that, throughout modern legal history, each Bar has vied for the title of being the nation’s best. “Mr Justice Young in his 2003 editorial in the Australian Law Journal entitled “I’m Proud to be a NSW Male Lawyer” said that the chances of the “best lawyers” emerging from NSW are greater owing to the fact that NSW is the busiest litigation State. “But what makes a successful commercial law barrister? Experience, as Mr Kate Anderson, Chief Justice Marilyn Warren, Stuart Anderson, Justice Alan Goldberg and Peter O’Callaghan QC. Jennifer Davies and Caroline Kirton. Justice Young pointed out, is certainly a factor. What else? Does it come down to how many lawyers there are in one State, the rivalry, the fight to get “on top”? The average barrister at the Commercial Bar in Melbourne is at least as busy as the average barrister practising commercial law in Sydney. The cases are also no more taxing in Sydney than they are in other States. “What about the legal education factor: the top Melbourne law schools? In a world- wide survey recently conducted by The Times newspaper in London, Melbourne decisively trumped Sydney in having the top-ranked schools overall. This is reflected in the quality of the Melbourne law schools and professors. Melbourne Albert Monichino (Vice-President and Convenor), Melanie Sloss S.C. (Senior commercial barristers and solicitors were Vice-President), David Denton S.C. and John Dixon (Treasurer). educated at those law schools. “As a judge who sat in the Commercial would grow to 1100 in 10 years time and been adopted and adapted widely. This List and the Corporations List of this all would depend on 20 commercial cases court heard through the 1980s and 1990s Court for three years, I believe I can say being listed for directions on 7 November the dominant commercial litigation in the from a very informed (and authoritative) 2014! nation. The judges who determined the position that Victoria has an outstanding Notwithstanding these light-hearted cases carved the commercial niche for Commercial Bar and (in the cross-juris- observations the mood of those attend- which this State was known. Some of the dictional sense) an outstanding and leading was not observed to be too adversely judges are still with the Court; one has ing commercial judiciary. affected, which was in no small part due gone to a higher court; many of the coun- “Let us remind ourselves, and others, to the rousing, eloquent and entertain- sel in those cases now adorn (judicially of that fact. Let us celebrate and toast ing address by Chief Justice Warren. The speaking) the Supreme Court and the an integral component of that excellence Chief Justice observed that all were there Federal Court (in Melbourne). on its 10th anniversary: the Victorian to celebrate and mark the excellence of “In a sense, the formation of the Commercial Bar Association.” commercial law advocacy in Victoria. The Commercial Bar Association ten years ago And so it was that an idea born of a text of Her Honour’s warmly received was a culmination of a golden commercial decade ago to promote the exchange speech follows: era in Victoria. Now, why do I focus on of ideas and the informal meeting of all “One only has to reflect on the impact Victoria and its excellence? levels of commercial barristers had been of the establishment of the Commercial “Sydneysiders often quip that “the only successfully sustained and it appears that List in the Supreme Court almost 25 years good thing to come out of Melbourne is CommBar is set for another triumphant ago. The style and format of the List has the Hume Highway”, without realising decade.

32 33 News and Views

BCL: The Open Door to the Bar

Paul Anastassiou, Chairman, Barristers’ Chambers Limited The Victorian Bar can be justifiably proud of its accessibility to all lawyers who wish to pursue a career at the Bar. This openness is fostered by the excellent Readers’ Course and by the mentor/reader tradition. The openness of the Bar is underpinned by the accommodation system managed on behalf of the Bar by BCL.

CL’s primary objective is to provide the approval of an incumbent group in a right of access to particular chambers. chambers for all barristers. BCL order to gain access to chambers. There This investment can only be recovered Baims to establish and maintain are no fees on entry and nobody is asked upon leaving the Bar if the goodwill of the chambers in a way that fosters the Bar as to commit to a long-term lease. The barri- chambers concerned is maintained so that a college. The benefits of this collegiate ers to entry to the Bar — both economic there are ready buyers. This economic environment should not be underesti- and, for want of a better description, reality leads to an exclusiveness in the mated. The close proximity of barristers to social — are removed. The Victorian Bar admission of new entrants and, aided in one another enables the sharing of knowl- is virtually unique in this regard. some jurisdictions by a floor based clerk- edge and experience and brings with it the In other places entry to the Bar requires ing system, a closely held approach to the obvious benefits of sharing resources. the new barrister to pay quite substantial allocation of work amongst barristers on a In the BCL system no one need seek sums of money to purchase chambers or particular floor.

34 35 News and Views

We are fortunate at the Victorian Bar the Bar. BCL chambers range from large that our predecessors had the foresight to chambers with substantial common areas arrange for the Bar as a whole to provide and fit-out to small chambers in the $600 chambers. In loyalty to that tradition, BCL to $800 per month range. BCL aims to has undertaken perhaps the most difficult have a mix of chambers which will meet task in its history by fully refurbishing the demands of barristers as their respec- Owen Dixon Chambers East. The refur- tive needs change. Private chambers, on bishment project took about seven years the other hand, are invariably established to plan and two years to execute. Despite by a core group who can set up and the difficulties of undertaking such a configure a particular set of chambers major refurbishment project while keeping tailored to the demands of the group. BCL Owen Dixon Chambers East operational, recognises the demand for group accom- the project has been a great success. The modation, and has endeavoured to meet refurbishment, save for some additional this demand, to some extent at least, by works in the basement and to the exterior offering chambers for group arrangements of the building, will be completed by early when new chambers become available. December. The project will be brought BCL also recognises this demand by allow- in on budget and pretty much on time, ing members of an already established notwithstanding that there was a delay of group priority for chambers allocation about six months in the commencement of where that is appropriate. the project. In short, BCL, with significant BCL cannot, however, immediately financial support from the Bar, will have meet demand for group accommodation secured for this and the next generation whenever a new group is formed. the core asset of the Bar bequeathed to us Barristers who wish to establish pri- by our predecessors. This means that the vate chambers can readily take advantage Bar can continue to be an open and acces- of ad hoc opportunities in the market sible institution in the years ahead. place to lease or buy premises. Again, We should not, however, take it for the premises and the standard of fit-out granted that the BCL system, which has can be selected to meet the demands always been there, will always continue. of a particular group. BCL, on the other It goes without saying that the contin- hand, must enter into long-term arrange- ued viability of BCL is dependent upon ments aimed at meeting demand for the a critical mass of barristers continuing mix of chambers required by the Bar as a within the BCL system. It is difficult to whole. This means that BCL is not in the be precise about what the critical mass same position as a small group might be is, as it depends on numerous variables to negotiate one-off arrangements when a including the number of chambers BCL favourable opportunity arises. has commitments to at any given time and There are other compromises, no less the demand for particular chambers that significant, for barristers in remaining might be vacated. within the BCL system. First, as a general Since the abolition of the rule that bar- rule chambers are allocated according risters must take chambers from BCL in to seniority. This rule, while arbitrary, 1994, numerous private chambers have is fundamental to the openness of BCL. been established. The ever-present threat The consequence of this rule is that often that a new set of private chambers may be barristers have to wait to get a room they established, without warning, places BCL want and they do not always get to pick in a very difficult position when it comes and choose their neighbours. These com- to deciding whether it should establish a promises are the price for maintaining a new set of chambers, or continue existing system which makes the Bar open and chambers. This threat diminishes BCL’s accessible. ability to carry vacant chambers. Ideally, tracts the less able it will be to meet the BCL will continue to do its best to there would be a small percentage of diverse needs of the Bar. earn the support of the Bar by providing vacant chambers to allow for flexibility It may be said that BCL, like any other chambers at competitive market rates within the BCL system. Unfortunately, company, is required to cope with the and by offering additional services such given BCL’s financial commitments, it forces of competition. That proposition as the phone system and the internet cannot prudently carry many vacant might be true but has to be viewed against system. However, BCL cannot match chambers. In part this is because the the purpose of BCL as a facilitator of low- every perceived advantage potentially establishment of private chambers could cost entry to the Victorian Bar. Further, available to those who wish to establish suddenly create an over-supply within the the Bar should be aware of what BCL is their own chambers. In the end BCL’s BCL system which it may not be able to competing against and of the limitations continued viability depends heavily upon carry. The simple reality is that the more upon its ability to do so. sufficient loyalty to the principle that the barristers leave BCL the more it will be BCL’s objective is to provide a range Bar should foster openness and accessibil- forced to contract, and the more BCL con- of chambers to meet the diverse needs of ity for all.

34 35 News and Views Chief Justices Warren and Black Address Senior Counsel

Chief Justice Warren, Supreme Court of Victoria.

HE appointment as Senior Counsel tion of justice across the State and in this an expectation that Senior Counsel will of and for the Supreme Court of Court, in particular. perform that role: that is to lead. Your TVictoria is a significant event. Judges look to the leaders of the pro- appointment ought mark a change in your This year there is an added signifi- fession to provide leadership. There is practice such that you assume the more cance because it is the first year that the difficult and complex cases. More often Chief Justice of the Supreme Court has than not, the cases in which you appear assumed the responsibility for appoint- should be of a calibre and difficulty that ment. Above all else, there is justify your retainer, your appearance as The significance for the Court and the Senior Counsel. occasion is marked by the constitution of an expectation that in There is, therefore, an expectation by the Court this morning and the represen- the performance of your the Court that you will perform the role tation of all jurisdictions. leadership role you will as signified by your new title, that you With the universal support of the fulfil the paramount duty of will be Senior Counsel and leaders of your judges of this Court I assumed the respon- profession. sibility of appointment of Senior Counsel the advocate to the Court. There is the additional expectation at the request of the Victorian Bar this The duty is that described that you will demonstrate the qualities of year. The judges of this Court urged me by Sir Gerard Brennan as integrity and courage in the performance to assume the burden of appointment of your role as Senior Counsel. because the Court regarded the appoint- the duty to assist the Court Above all else, there is an expectation ment of Senior Counsel as so important. in the doing of justice that in the performance of your leadership This is because Senior Counsel play according to law. role you will fulfil the paramount duty of a very important role in the administra- the advocate to the Court. The duty is

36 37 News and Views Chief Justices Warren and Black Address Senior Counsel

New Silks 2004 in Banco Court — from back row: Glenn McGowan, Susan Pullen, Richard W.McGarvie, Michael Wheelahan, James Elliott, Ray Elston, Frank Saccardo, Duncan Allen, Jennifer Davies, Peter William Collinson and David Mark Maclean.

N 30 November, 2004 The Ms Jennifer DAVIES S.C. Ms Susan Elizabeth PULLEN S.C. Honourable Chief Justice Warren C/- List D, Owen Dixon Chambers, Prosecutor for the Queen, Crown Oappointed as Senior Counsel the 205 William Street, Melbourne 3000 Prosecutors’ Chambers, 4th Floor, persons listed in order of precedence. Mr Peter William COLLINSON S.C. 565 Lonsdale Street, Melbourne 3000 Mr Richard Wallace McGARVIE S.C. Mr Raymond Alwyn ELSTON S.C. C/- List A, Owen Dixon Chambers, 205 William Street, Melbourne 3000 C/- List H, Owen Dixon Chambers, Prosecutor for the Queen, Crown 205 William Street, Melbourne 3000 Prosecutors’ Chambers, 4th Floor, Mr David Mark MACLEAN S.C. Mr Michael Francis WHEELAHAN 565 Lonsdale Street, Melbourne 3000 C/- List G, Owen Dixon Chambers, 205 William Street, Melbourne 3000 S.C. Mr Francis Dennis SACCARDO S.C. C/- List D, Owen Dixon Chambers, C/- List D, Owen Dixon Chambers, Mr Glenn Charles McGOWAN S.C. 205 William Street, Melbourne 3000 C/- List A, Owen Dixon Chambers, 205 William Street, Melbourne 3000 Mr James Dudley ELLIOTT S.C. 205 William Street, Melbourne 3000 Mr Duncan Leslie ALLEN S.C. C/- List A, Owen Dixon Chambers, C/- List P, Owen Dixon Chambers, 205 William Street, Melbourne 3000 205 William Street, Melbourne 3000

that described by Sir Gerard Brennan as significance for each of you. Justifiably, gratulates you upon your appointment the duty to assist the Court in the doing of it is a time of great celebration and joy as Senior Counsel of and for the Supreme justice according to law. for each new Senior Counsel and his or Court of Victoria. Your appointment is one of personal her family and friends. The Court con-

36 37 News and Views

Chief Justice Black, Federal Court of Australia.

HE Court congratulates each of there has not been any change in the independent profession have especially you upon your appointment as essential fact that appointments as Senior important responsibilities. TSenior Counsel in and for the Counsel in Victoria represent, here as History shows that Senior Counsel State of Victoria. I will say a little more elsewhere, a recognition of professional – like Queen’s Counsel before them – have about your appointments and the role of eminence at the Bar. Nothing in this a powerful leadership role in their profes- Senior Counsel in a moment but I would respect has changed. Moreover, it is sion. They have set, and continue to set, first like to extend a welcome to those recognition based upon your reputations the standards of independence, integrity members of your family – including the amongst your professional peers. Again and learning that others will follow. These very young – and your friends who are nothing has changed. Your appointments standards remain constant and of funda- present at this ceremonial sitting this are therefore rightly an occasion for con- mental importance. morning. We are all very pleased that they gratulation. Senior Counsel must also set, by exam- are able to be here. Your appointments come at an impor- ple, not only standards of excellence – that When the Court first received tant time in our legal history. We are now almost goes without saying – but standards announcements in this courtroom, they well into the second century of federation in other areas of great importance to the were announcements of appointment courts and to the community. These are as one of her Majesty’s Counsel for the standards in matters such as fair conduct, State of Victoria. As you may have seen courtesy to those whose business is in the in the notes about today’s ceremony, Your appointments come courts – not just to other barristers – and that title was used in colonial times. The at an important time in particularly high standards in managing early appointments in Victoria were of our legal history. We are litigation effectively and efficiently. course themselves an evolution of some- In these and in other matters the courts thing much older still. A few years later now well into the second and the community will rely upon you as we received the announcements of the century of federation and leaders of the profession. I suggest too appointment of Senior Counsel. The title we are beginning – in this that, of its nature, leadership carries with had changed, but the appointments were year – the second century it wider obligations to the community. still made by the Governor in Council on The Court is happy to recognise your the recommendation of the Chief Justice of federal courts created precedence as Senior Counsel in and for of Victoria. This year the appointments by the Parliament. the State of Victoria. We wish you well in have been made not by the Governor in your important roles as Senior Counsel Council – the Executive Government hav- and we are beginning – in this year – the and we wish you well in your continuing ing no role in the process any more – but second century of federal courts created careers as members of the Bar. by the Chief Justice of Victoria. by the Parliament. An uncertain world Thank you all for your courtesy in Although the foundation for the presents new challenges for everyone informing the Court of your appoint- appointments has changed from the concerned with the administration of ments. Executive Branch to the Judicial Branch, justice. In such a world, the leaders of an The Court will now adjourn.

38 39 News and Views The Heirs of Howe and Hummel

Brien Briefless Graduate scholar emeritus, Department of Geomatics, University of Melbourne

ITH the passage of a hundred magistrates and political riff-raff of all years since the heyday of their Richard Rovere, Howe and Hummel: sorts. Wlaw practice in New York during Their True and Scandalous Jeffrey O’Connell’s book is an attack on the late nineteenth and early twentieth History, Michael Joseph, London, the US system of common law tort litiga- centuries, the shenanigans of William 1947. tion with its heavy reliance on substantial Howe and Abraham Hummel permit us to Sydney Zion, The Autobiography of contingent fees. But it is not only the today view them as the Bar’s likeable vil- Roy Cohn, Lyle Stuart, Secaurus, plaintiff’s lawyers who are the successful lains whose tough or dirty tactics raise a 1988. showmen as shown by his description of smile whenever the legal profession meet Nicholas von Hoffman, Citizen Cohn, a leading insurance defence lawyer who for drinks after work. It may be that the Doubleday, New York, 1988. takes great pains to play down his afflu- distance of time permits us to derive some Jeffrey O’Connell, The Lawsuit ence and authority: amusement that was never appreciated by Lottery: Only the Lawyers Win, their immediate contemporaries: their fel- Free Press, New York, 1980. In court he wears a baggy tweed jacket with low practitioners and other victims. Not so James B. Stewart, The Partners: elbow patches and badly frayed sleeves. His their descendants whose close proximity Inside America’s Most Powerful shoes are scuffed, and one of them is com- and their manner of practising law should Law Firms, Simon and Schuster, ing apart at the seams. He carries a battered and does give us ulcers and turns our New York, 1983. briefcase. He carefully avoids smoking his hair white because we are more directly James B. Stewart, The Prosecutors: custom-made cigars in front of the jury and affected by their behaviour. Inside the Offices of the Govern- makes a point during the trial of eating in The reputations of Howe and Hummel ment’s Most Powerful Lawyers, the courtroom cafeteria, where the jurors can be briefly described thus: Francis Simon and Schuster, New York, eat, rather than at his usual luncheon place, Wellman, in his The Art of Cross- 1987. the baronial University Club. Speaking Examination describes William Howe Kim Eisler, Shark Tank: Greed, of such poses he asks with a smile, “Why as “one of the most successful lawyers of Politics, and the Collapse of Finley should the other side have a monopoly on Kumble, One of America’s Largest his time in criminal cases”, while Arthur sympathy?” Law Firms, St Martin’s Press, New Train’s description of him was as a cross York, 1991. between a Coney Island barker and a cos- Having dressed for the part, now con- termonger. sider the same lawyer’s performance. He It is of note that Rovere’s slim volume is defending a suit brought by a middle- of only 113 pages provides five (out of a and specialized in blackmail, judge and aged businessman whose wife was killed total of 364) entries chosen by the editor jury fixing, subornation of perjury and the in a car smash involving the defendant: of The Oxford Book of Legal Anecdotes. fabrication of evidence. Abraham Hummel [To put this in context, F.E. Smith (Lord was regarded as an accomplished pick- [Counsel] had his attractive blonde secre- Birkenhead) scores seven anecdotes pocket and, although wealthy, delighted tary come into the courtroom at the end sourced from three different books and in refusing to pay his creditors, believing of the trial and sit next to the plaintiff- Clarence Darrow also contributes five that the defence of cases brought against widower. Following counsel’s instructions, entries from the much thicker biography him was good training for the young she asked the man an innocent question, by Irving Stone. So far as batting averages apprentice lawyers in the office. Hummel’s smiled, patted his hand and quickly left. go, Howe and Hummel are heavy hitters.] fight against his second disbarment which “Just one look at the cold expressions on Howe and Hummel’s firm defended, lasted over four years and was prosecuted the lady jurors’ faces was enough to tell me over its 40-year life, more than a thousand by District Attorney Train is considered that we were home free,” counsel recalls people indicted for murder or manslaugh- a classic US legal struggle with Hummel with a smile. “When the jury came back with ter and William Howe appeared on behalf availing himself of all means, fair and foul, [their] verdict for the defence, the plaintiff’s of more than 650 of them. In the meantime to hold off by delay, and possibly defeat lawyer never knew what hit him. You see, their firm saw nothing untoward in repre- the ultimate result. the entire interchange took place while he senting both parties to a civil action (no They were perfectly suited to a time was facing the jury in the midst of his clos- suggestion of Chinese Walls back then!), when the criminal Bar consisted mainly of ing argument.” kept a stable of professional witnesses de-frocked priests, drunkards, ex-police

38 39 O’Connell relates an incident (also who is due to receive it has not yet done touch it. Cohn’s hackles rose and he stated covered in greater detail in Stewart’s The so. An alert lawyer will make that moment that he did not believe Columbia alumni Partners) wherein a partner in the pres- his own, possessing the treasure for a magic should be so rude. Buttenweiser was pre- tigious Donovan Leisure law firm perjured microsecond, taking a little of it, passing it pared for this and responded by quoting himself in an affidavit in the late 1970s and on. Oscar Wilde to the effect that a gentleman consequently was sentenced to a month in is never unintentionally rude. gaol. is Stewart’s “Not even the best, and On his deathbed, despite being dis- The format of both the Stewart books most expensive, lawyers can stop the barred he sought to put in the fix (legal or is to devote a chapter to a particular piece resolute flow of cash. As Kern himself political or both) for the benefit of friends of litigation. Thus in The Partners there concedes, they can only hope to be there and clients. Yet others were to say that it, is a chapter on the IBM-Telex case and when it changes hands.” AIDS, “couldn’t have happened to a nicer another on the Kodak-Polaroid case The ego of the criminal lawyer is guy, so there is a God after all”. (where the Donovan Leisure partner per- touched upon in The Prosecutors when a Even among the homosexual popula- jured himself). On the criminal side, The carefully crafted and painstakingly negoti- tion of New York where everybody had Prosecutors has chapters devoted to the ated plea bargain in the Hitachi sting case dying lovers and dead friends, there was Hitachi sting (involving industrial spying almost sank when counsel for one of the gloating over his dying and one man even against IBM), the McDonnell-Douglas co-defendants decided to needle the pros- boastingly claimed credit for arranging bribery scandal and the first of the Wall ecutor: “You’d better sign those papers for Roy to catch the disease by putting Street “insider trading” prosecutions. or you’ll lose at trial,” he taunted. The him together with an infected lover. Such The road to the top is described in The prosecutor’s response was to storm off was the hatred and loathing that Cohn Partners: with the plea bargain agreement until the attracted. cooler heads of the other defence counsel As the son of a politically appointed Associates at Cravath [Swaine and Moore] could persuade him to return. New York state judge, Cohn was wheel- are considered for partnerships in groups And it is not only the defence: US ing and dealing in his early teens — in based on their year of graduation from Attorney Rudi Guiliani’s desire for pub- high school, college and law school. It was law school, though there may be some licity (as a launching pad for a politi- political clout that enabled him to enter spillover from one year to the next. During cal career) saw him participating in an Columbia Law School despite his poor the period of frenzied discovery in 1974, undercover operation in 1986 in which college grades. With the passage of time the group of senior IBM team associates he decked himself out in an outrageous Cohn would recall that he was a straight-A were entering the last crucial year or two disguise and went to Harlem to purchase student. Similarly, his first job out of law before the fateful decision, and competition cocaine. Upon his successful return he school was in the US Attorney’s office among them reached a fever pitch. There called a press conference and posed for where in his words, he recalled that: was Mullen, from the law class of ’68, who photographs. Fortunately, no prosecution appeared to be on his way to an all-time resulted. Otherwise such prosecutions by then I had been in courtrooms for two record for billable hours logged; and there may have been challenged on the basis of and a half years on an almost daily basis were four associates from the class of ’69: the publicity stunt depriving any defend- as an assistant US attorney and had pros- Rolfe, Sahid, Saunders and John Cooper. ant of a fair trial. ecuted more than 200 defendants, with no Competition was especially fierce between Guiliani’s antics were but a faint echo losses, not one acquittal marked up against Rolfe and Sahid. The feeling was that prob- of those of an earlier US Attorney: the late me. ably only one or two out of the eligible Roy Cohn. Cohn — swindler, perjurer, tax group would actually be made a partner, evader on a grand scale, briber, political However, his then colleagues remem- and Sahid seemed to have had an edge ever fixer, hypocritical homosexual, betrayer ber it differently. Cohn’s technique was since his Telex counterclaim triumph. When of his clients, publicity hound and una- to indict somebody, issue a press release, Sahid scored another triumph by billing 24 shamed toady — was a true heir of Howe indict him again and issue another press hours in a single day, Rolfe — in a move that and Hummel. release on the superseding indictment. became the subject of legend in the firm There was no in-between with Cohn Each indictment in the file had its - cor — flew to California, worked on the plane — you either loved him or hated him. At responding press release clipped to it, and, by virtue of the change in time zones, the time of his dying from AIDS in 1986 each press release featuring Cohn’s name. managed to bill 27 hours in one day. one of his ex-clients, estranged from him Cohn was responsible for a lot of indict- since she’d been forced to sue him for the ments that never went anywhere, which Left unsaid by Stewart is the value return of a $100,000 loan, had a tearful were obtained primarily for the publicity provided to the firm’s client who was pay- reunion with him. She recollects, “And and later had to be dismissed for lack of ing top Cravath dollar for the 27th hour I said the strangest thing I’ve ever said, evidence. His contemporaries remem- billed by the presumably jet-lagged and I said ‘Don’t worry, Roy, the only thing I bered Cohn as an object of derision in the exhausted Rolfe. really care about is are you still my best US Attorney’s office, as a publicity hound Comparable to Kurt Vonnegut’s classic friend?’ This man had ruined my life some- who would indict anyone. description of the practice of law from (if times in 50 ways …” This method was followed in his later my memory serves me well) God Bless Conversely, at a Columbia alumni private practice. He would initiate suits You, Mr Rosewater (1965): gathering the columnist Leonard Lyons in a blaze of publicity and later, quietly offered to introduce Roy to the financier negotiate a settlement. To go to trial In every big transaction, there is a magic Benjamin Buttenweiser. Buttenweiser was a defeat for Cohn who was a fixer, a moment during which a man has surren- stared at Cohn’s proffered hand with dis- person who could not last the distance in dered a treasure and during which the man taste and announced he had no desire to extended litigation which interfered with

40 41 his jet setting and social celebrity life- always ensured there was somebody about The fear and loathing engendered by style. On the few occasions when he was to restrain him when he exploded. the firm was reflected internally. Andrew forced to trial the most common result was A common link between Roy Cohn and Heine was recruited specifically to head up a loss because of Cohn’s lack of prepara- the nationwide (and international) “meg- the firm’s litigation department. In his first tion and diligence or even by default. With afirm” Finley Kumble is that both were days at the firm he seemed particularly the passage of time these losses would be the subject of ongoing critical comments nervous. Partners informed him that they fondly remembered by Cohn as a rip-roar- in The American Lawyer which sought had a million-dollar “key man” insurance ing victory wherein Cohn had stomped all to bring to public attention the unethical policy on Kumble, lest anything happen over his opponents. His employee lawyers and illegal conduct of both firms and also to their primary rainmaker. Heine listened were similarly handicapped by an out-of- their common heritage of ex-employees with interest. But he was so accustomed date library resulting from Cohn’s refusal who were dismissed and now look back to being disliked that he began to tremble to pay his debts including those owing to on their subsequent periods of unemploy- when it was suggested that a similar policy the law publishers. Their legal research ment with satisfaction as the beginning of be taken out on him. “One of you bastards was conducted mainly in the Fordham their happiness and enlightened content- will push me out the window,” said Heine University law school library or the court’s ment. with no hint of joking. library. The demise of the firm Finley Kumble Prior to the firm’s collapse it was unable Not all of the employees’ experiences in the 1980s carries with it the truth of the to collect its debts and as a consequence were hard grind. One recalled: adage that one should be nice to people on its liabilities at the collapse blew out to your way up because you’re sure to meet $83 million. One of the partners had pre- One day I’m sitting with Tom when Roy them again on your way down. Certainly sciently observed, “When word gets out pops his head in the room and says, “Tom, there were no tears shed by their profes- that we are wounded, we’re going to have do you want to go to lunch with so-and-so?” sional colleagues, all of whom had been a hell of a time collecting our bills. People a well-known person, associated, I guess, victims of FK’s abrasive discourtesy and hate to pay their lawyers. What they with the criminal elements. Tom said, “No, hard-ball tactics. hate worse is to pay their ex-lawyers.” Roy, I’m busy ….” When he left, Tom looked Among their clients there was a Less than two years previously, when the at me and said, “I don’t want to go to lunch marked reluctance to pay outstanding firm was the second largest in America with ’em. These guys are always getting fees once the rumours of the fast-fading (behind Baker & McKenzie) it had shot in restaurants.” survival came to light and at this time splurged $11 million on renovating its the principals were negotiating their own New York office. Cohn’s fame (or notoriety) was gained futures seeking new positions elsewhere An opposing lawyer was to tell his in the early fifties where as a US Attorney while reassuring staff and other partners concurring client, “I don’t know what he participated in the prosecution of that all was well and issuing emphatic we’ll eventually get, but winning a dollar Julius and Ethel Rosenberg and then denials of the firm’s deep financial - trou from these bastards (Finley Kumble) will was appointed as counsel to the staff of bles. The message of closure of the newly- feel like a dollar and a half from anybody Senator Joseph McCarthy of Missouri. opened London office was delivered by else.” This period of about three years would the champagne-drinking Concorde-trav- While one can understand the schaden- shape his life and he would be forever elling partner who saw no reason to stint freude enjoyed by FK’s “victims” one must linked to the “Atom spy” trial and the while the firm was going down the gurgler. also feel some sympathy for partner Davis “commie hunting” Senator McCarthy. The headline in Steve Brill’s American Ellsworth who had paid $322,000 into FK During the Rosenberg trial it appears Lawyer said it all: “Bye-Bye FK — The to join the partnership in January 1987 that the prosecution (and particularly Firm Everyone Loves to Hate is Falling because his previous firm had “overbor- Cohn) enjoyed ex parte audiences with Apart.” rowed itself to death”. Thirteen months the trial judge Irving Kaufman. There are In their time both Finley and Kumble later his capital contribution was gone and suggestions of evidence fabrication during had screwed their employers, their part- he was jointly liable for the firm’s debts the Army-McCarthy congressional hear- ners, their adversaries, their employees, which, if apportioned equally, averaged ings with Cohn in the thick of it. their collegiate law firms (when acting on out at more than $415,000 for each of the After the Rosenberg trial Cohn, through the same side) and their clients. Kumble’s 200 partners. political influence, joined McCarthy as dictum regarding clients was to find In Eisler’s introduction to his book he his chief counsel, edging out the then its way into The Oxford Dictionary of summarised FK’s contribution with: young Bobby Kennedy who served on American Legal Quotations (1993): McCarthy’s staff subordinate to Cohn. It [t]heir concepts and practices transformed Praise the adversary. He is the catalyst by was the beginning of an enmity that saw law from a gentlemen’s profession into a which you bill your client. Damn the client. them come close to fisticuffs during the coldhearted business. But Finley Kumble’s He is your true enemy. public Senate hearings and was later to big-and-tough public image masked the result in Bobby, by then JFK’s Attorney And he reprimanded the firm’s Miami Keystone Cops manner in which the firm’s General, prosecuting Cohn on four sepa- partner for not insisting on a top dollar managers lurched from crisis to crisis. rate occasions which Cohn beat, in some minimum retainer from Kumble’s own cases narrowly, with some surreptitious aunt who had sought assistance on a I think it a fair conjecture that the assistance from FBI director J. Edgar minor problem: “Aunt, schmaunt,” said FK story, its successful growth and sub- Hoover. Kumble, “if she can’t pay her retainer, she sequent rapid failure spanning less than Cohn’s fisticuffs may have only been can go elsewhere.” Truly, FK was scru- two decades, would provide quite a few show — as with others, it made head- pulously fair — they screwed everybody entries for a later edition of the OBLA or lines but it has been suggested that Cohn equally without fear or favour. any other anthology of legal anecdotes.

40 41 News and Views Launch of the Trust for Young Australians Photographic Exhibition At the Federal Court on 22 November 2004

Chief Justice Black

ISTINGUISHED guests, includ- they travel forever across the Milky Way. ing my judicial colleagues, and They are Seven Sisters of the Milky Way. Dincluding of course the teacher at It is a very beautiful work. But what makes Warrego School, Mr Colin Baker, children the mosaic particularly memorable in my of Warrego, and the grandmother and mind is the memory of the dancing by great grandmother who are here with the men and women from Kormilda College children. at Darwin, some of them from the Roper May I invite you to accompany me for River country near Mataranka, and some the next 10 minutes or so on a journey. of them from south of Nhulunbuy. They To some extent it is a personal journey danced on, and over, the mosaic on that but it is the sort of journey that will be memorable day in December 1991. What familiar to you all. It is the journey that I is also memorable was the way in which will illustrate with events — with slides if the artist, Norah Napaljarri Nelson, from you will. It is a journey that arrives here in Yuendumu, spoke about her work. The the Commonwealth Law Courts building depth and beauty of the experience, and Caption. in Melbourne, but which I hope does not the way in which it was described by the end here. artist, was unforgettable. years ago, when I was at Yolgnu in north- The journey begins in a sultry day Tom Pauling, the Solicitor-General for eastern Arnhem Land as a speaker at the at Nowalangi when a sudden and vio- the Northern Territory, said to me after- Garma Festival. I was there as a Balanda lent rush of wind down the escarpment wards that it should be the beginning of “law man”. It was late in the afternoon and seemed to give a deep significance to a long journey. He also said that it would women from the remote Wessel Islands the stories I was being told about the never leave one the same. performed a dance that is traditionally rock paintings. Not long after that, I had I was reminded of that dancing and the performed in the evening, as the sun goes the privilege of being present, as a Chief singing some years later when, Mabo hav- down. It was a dance that reminded me of Justice, at the opening of the Supreme ing been decided, our Court began to hear a large flower slowly closing its petals as Court of the Northern Territory. Those of native title cases. In a step of which I am the daylight fades. The dance, was plainly you who know the building will have seen rather proud, and which we took collegi- deeply rooted in the history and culture a wonderful mosaic of Venetian glass that ally, the Court amended its Rules so as to of the dancers. It was immensely moving, forms the floor of the central part of the acknowledge that evidence might be taken and unforgettable. main hall. by way of dance, by way of song or by way Cross-cultural comparisons are very The mosaic depicts the dreamtime of telling stories. (We also amended our dangerous but permit me to say that it was legend of the seven Napaljarri sisters who Rules to make it clear that evidence could the equal of the dying swan in a perform- travelled through Wirlpiri country pur- be given by groups of people, according to ance of Swan Lake. Probably, it was more sued by a Jackamarra man. They eluded the Aboriginal way.) profound, for reasons that I think we will their pursuer by flying into the sky, where I thought of this later still, not many all readily appreciate.

42 43 News and Views

for? Is there some great vision? I suppose that people in public life, and perhaps particularly lawyers — and possibly scientists as well — are keen to find fundamental principles. The scientists search for a “theory of everything”. We search for principles which, if properly applied, will solve problems. I suppose we are all keen, too, to ask the experts — “You know all about this, what do you advise?” Then we get disillusioned when the answers are not simple. Or there may be no answers at all. These are, rightly, matters of the grav- est concern to all of us.

There is a functioning school in this community … It has exceptional rates of attendance. It has exceptional improvements in literacy and numeracy. It has wonderful children who are enthusiastic about going to school.

The photographer Josephine Let me show one or two other slides Kuperholz and children from Warrego And so it is that in this troubled state of before we come south again. who are the subject of the photographs mind, I was fortunate enough to have been This time we are on the edge of the show Chief Justice Black around the asked if the Court would host an exhibi- Great Victoria Desert where the evidence exhibition. tion of photographs by a distinguished is that the stories of the desert people photographer of whom I knew, Josephine reflect, as a form of mythologised- his ancy of the general Australian population Kuperholz, about a school of which I knew tory, the rising of the waters at the end is going up and is now something like 77 nothing except that it was a place where of the last Great Ice Age when the sea years at birth for males. I read that the life remarkable things had been done. encroached upon the Nullarbor Plain. expectancy of Aboriginal and Torres Strait I also knew that my friend and col- That was over 7000 years ago. Islander men is 56.3 years, a difference of league David Angel, had hosted an So one cannot but have wonder and 20.7 years, and an inequality gap that exhibition of great photographs, by respect for the people and the culture of is increasing per year. The figures for Josephine Kuperholz, in that building those indigenous Australians with whom females are better, but the inequality gap where our journey today began. In the we share this ancient land. is increasing at a faster rate. Supreme Court of the Northern Territory And then I come back to Melbourne. Infant mortality figures are 19.2, there are many fine works as well as the I open the newspaper and I read — as I per thousand infants in the Northern Seven Sisters mosaic, and the Court there read every year — that the life expect- Territory compared with eight for indig- sees itself as a place in which exhibitions enous Canadians and compared with 4.6 of art and other public purposes may be for non-indigenous Australians. Detention served. rates are quite appallingly disproportion- Dr Sykes may not have realised it at the The story that then ate. And so it goes on. time, but there was no way in which her unfolded about the I read figures of this nature every year. request could have failed. As I have mentioned, some of the fig- The story that then unfolded about Warrego Primary School, ures are getting worse. the Warrego Primary School, about its about its remarkable When one reads these figures and when remarkable Principal, Colin Baker, and his Principal, Colin Baker, and one is aware — as a practical person living wife Sandra, and about the local commu- in the real world, that there are dreadful nity was and is truly inspiring. his wife Sandra, and about problems — the natural reaction is to ask Through the work of these people and the local community was is there some great plan that can change the community, and with the support of and is truly inspiring. this? Is there some series of points and the Trust for Young Australians, quite policies that we can believe in and work remarkable things have happened.

42 43 News and Views/A Bit About Words

There is a functioning school in this community. It is tiny, but its story is wonderful. It has exceptional rates of attendance. It has exceptional improvements in Mother’s Passion literacy and numeracy. It has wonderful children who are enthusiastic about going to school. They are developing skills that have not been available to others. Suddenly one is reminded of the truth ECENTLY Australians (or a (Serbo-Croat), mat (Russian), mitera that a huge change for the good can come small sample of them) voted for (Greek) and muter (Yiddish). In Swahili about from small things. One is reminded RAustralia’s favourite words. In first the word is mama: thought to be the first too that an aggregation of small things can place, apparently, came mother, followed sound uttered by human infants, this is an change the world. In one sense, of course, by passion. It is a little surprising that informal alternative in many languages. the Warrego School is not a small thing people have favourite words: words, as Only Swahili is sensible enough to adopt it — it is a very big thing, just involving very Johnson observed “are the daughters as the formal word for mother. few people. But viewed as a small thing, of earth, while things are the sons of There are one or two less happy mean- based upon the goodwill of some and the heaven”. Words are simply the signifiers ings of the word. Francis Grose (1811) imaginative application of a charitable of things; they are groups of letters, marks recognizes mother as slang for a bawd fund, may we not see through the gloom on a page. They mean, as Humpty Dumpty and also for the owner of a bawdy house. something of the way for the future? We said, what we want them to mean (at Modern American slang uses mother as see the immense value of the work of indi- least, so long as enough of us agree what meaning mother fucker. This is gener- viduals even in circumstances that might we want them to mean). ally reckoned a harsh term. When saying otherwise bring about despair. While some words make nice shapes mother in America, context is everything. I had the pleasure of seeing the photo- on the page, and some words sound pleas- But there is another very odd mean- graphs at lunchtime today. I venture the ant, the idea that a word itself may be a ing of mother in standard English: suggestion that they are technically bril- subject of affection is interesting and a “Dregs, scum. In the 16th century liant and also very moving. I am delighted little curious. This is no criticism: I have the dregs or scum of oil; later applied that the photographer, the photographs, my own favourite words. But what is it chiefly to the scum rising to -the sur the Principal and children of the Warrego that appeals to us: the words themselves, face of fermenting liquors.” (OED2). School along with their grandmother and or the images, ideas and associations they Happily, this meaning seems to have died great grandmother have chosen to have carry? out in the mid-19th century. However, their exhibition “Leadership at Warrego” Most mothers I have met seem to be the same sense is still current in the in our wonderful Commonwealth Law very nice people, but I am not terribly compounds mother of vinegar: “a ropy Courts building, here in Melbourne. enthusiastic about the word itself. Mother mucilaginous substance produced in And what better title than “Leadership is not particularly attractive in sound or vinegar during the process of acetous at Warrego”. Surely this is leadership of appearance: but for most people, at most fermentation”, and mother of grapes: the most inspiring and important kind. times, it is a word highly charged with the solid mass of skins, etc., left But we must support it. meaning and association. Many other after the grapes have been pressed. Let there be hundreds of Warregos! words, such as brother, friend and love Eric Partridge speculates that these It is now my privilege and my pleasure have strong, evocative associations; like- meanings may have arisen from the early to declare the exhibition of photographs wise death, terrorist, and in a past age, similarity between mudder and mud. I do by Josephine Kuperholz “Leadership at Communist). not know whether this usage accounts for Warrego” open. The power and popularity of mother the recent expression “mother of all wars” is probably because, for most of etc. Still, the core signification of mother If you would like to assist the chil- us, it is a word whose powerful and seems secure, if the Australian vote is any dren at Warrego School please send favourable associations trace back to guide. donations to Dr Helen Sykes, Trust for our earliest years. After those early forma- Passion is a more interesting choice Young Australian, 5 St Vincent Place, tive years experience diverges. So, for as a favoured word. Its most commonly Albert Park 3206, T 96457977. All dona- example, Oedipus and Hamlet probably accepted primary meaning now is an over- tion are tax deductible. did not have identical views about moth- powering feeling or emotion, or strong ers. sexual affection. Dorothy Parker, sharp- From the 11th to the 16th century, eyed and bitter, wrote in 1937: mother was variously spelled modder or mudder or moder. Its primary meaning By the time you say you’re his, T H E has been stable always and its figurative Shivering and sighing extensions are obvious (mother country, And he vows his passion is ESSOIGN mother earth and mother church all carry Infinite, undying the sense of deep affection and nurturing Lady, make a note of this: Open daily for lunch associated with motherhood). The word One of you is lying. for mother has a similar sound and shape Happy hour every Friday night: in many languages: Mutter (German), Passion is comfortably at home in that 5.00–7.00 p.m. Half-price drinks moeder (Dutch), moder (Swedish and verse, but it only got there after a long Danish), matka (Polish and Czech, majka journey, and its siblings and cousins have

44 45 also travelled far on other, intersecting, Modern Painting, volume III: “All vio- symmetry, because patho- also gives us paths. lent feelings … produce … a falseness in pathology: knowledge of diseases, and Latin pati — pass- means to suffer. … impressions of external things, which the various disease-related words ending From this we get passion: originally a I would generally characterize as the –pathy, such as adenopathy (diseases painful affliction or suffering. It took on ‘Pathetic fallacy’”. The pathetic fallacy of the glandular system); arthropathy a primary association with the suffering is the error of attributing feelings to non- (disease of the joints: now ousted, linguis- of Christ on the Cross. Thus the Passion human objects. It is especially seen among tically, by arthritis etc.); homeopathy Plays tell of Christ’s suffering as the cen- owners of pets who attribute to their dog, (the theory of treatment by minuscule tral event of the Easter story, and that budgie or guppy the most sophisticated quantities of an active ingredient, for story is also the subject of some of the fin- and nuanced emotions, based on slim evi- example truth in politics); naturopathy est and purest of Bach’s music: the St John dence and great hopes. (the theory that disease can be cured by Passion, and the St Matthew Passion. Just as the primary meaning of pas- natural agents); osteopathy (disease of Pati- also led to patient which origi- sion has shifted whilst compassion the bones); and psychopathy (disease nally meant enduring pain, affliction etc. remains true to its origins, so pathetic has of the mind). The commonest form of without discontent or complaint. Later it slipped but sympathy still bears its origi- this derivation is in psychopath, which came to mean long-suffering, forbearing, nal sense at close to full value. Sympathy in lay terms means a person of deranged or calmly expectant. is, etymologically, an exact synonym for mind, but technically refers to a specific The passionfruit was once a common compassion: each means suffering with. cluster of mental symptoms which were and profligate ornament on garden sheds However, they are not interchangeable. described in detail in Hervey Cleckley’s and sunny fences. It is now an expensive Compassion is stronger, because it has book The Mask of Sanity. They centre seasonal fruit for all those in whose gar- only one meaning. Sympathy was weaker on a near-complete absence of emotional dens practicality has yielded to fashion. in its original sense, which is an affinity feeling: no ability to feel sympathy, empa- The passionfruit is so called because its between things by virtue of which they thy or eupathy (“a happy condition of the flower contains within it the shape of the are similarly affected by the same influ- soul”). cross. ence. So one person responds to another’s The psychopath derives virtually no The original sense of passion is pre- bereavement in like manner as the person emotional response from actions which served in compassion: literally suffering bereaved (a polite fiction, mostly). But would fill normal people with disgust, with. No-one would use compassion as equally, currencies can move in sympathy loathing or regret. Medea was probably a suggesting sexual affection, although that with interest rates or oil prices. Sympathy psychopath, and her children, if given the is a strong element of passion as it is com- is good, compassion is nobler and truer. It chance to vote for their favourite word, monly understood today. is out of favour today, as betokening the might have voted for passion or pathos The Greek patho- is almost identical bleeding heart. ahead of mother. in meaning with pati-. It means suffering Pati- gives us patient in its other or illness. Pathos has been naturalized sense: the person suffering a disease and Julian Burnside in English, meaning the characteristic receiving treatment. This presents a nice of speech, writing, music, or art which arouses a feeling of pity or sadness etc. It is not to be confused with bathos, which is a ludicrous descent from the sublime to the ridiculous. Bathos is a Greek word meaning deep: it is preserved in John Larkins bathysphere, a spherical vessel specially adapted to surviving at great depths in furniture the ocean. From the Greek patho- we also have pathetic which properly signifies something which affects the emotions, individually crafted especially producing a sense of sadness. However, pathetic has slipped in the world Desks, tables (conference, dining, and can now have an edge of derision or scorn: the sense of pitiability is present, coffee, side and hall). but so is the suggestion that the object Folder stands for briefs and other items of pity is responsible for their own plight. The observation that a footballer played a in timber for chambers and home. pathetic game or made a pathetic effort conveys no sense of sympathy. This use of pathetic is quite common and is dis- Workshop: placing its original sense, which is never 2 Alfred Street, scornful of the subject. The modern meanings of pathetic North Fitzroy 3068 have led to some confusion over the Phone/Fax: 9486 4341 expression pathetic fallacy. This was Email: [email protected] first coined in 1856 by John Ruskin, in

44 45 News and Views The Bar’s Children’s Christmas Party

The southern hemisphere is a contrary place, weather-wise at Christmas. It always turns on a hot and humid day for Santa’s special arrival at the Botanic Gardens. It is as if the gods want to make things hot and sweaty for Santa’s visit to

the offspring of the Victorian Bar. Santa Claus and the kids.

T was no different this year, hot and their very lazy holidays paid for by the tax sultry as usual. A pinkish Santa (under payer? In any case Mrs Claus had to drive Ihis splendid beard and hair, the prop- Rudolph and friends around and around erty of the Victorian Bar) was carted to the gardens until Santa was finished and the Rose Pavilion in the gardens by a free to give out presents to the solicitors’ youngish ranger who happened to lose her children. keys, but managed to start the cart with But nothing the media could say could Paul Connor’s key to his chambers. Santa spoil the enjoyment of the children. And was a little upset to find on his arrival that so many there were, young and not so some atheist had parked his red car in young and eager. Antonia Samargis plays with her bubble the space that the elves had set aside for As the photographs on these pages tes- gun. Santa’s sleigh and totally ignored the signs tify, even the Shadow Attorney-General “No Parking. Reserved for Reindeer”. came along to ask for a present. Santa told Some believed that this was a deliberate him that he would have to wait a few years ploy by the Australian newspaper to for his really big present but that he would disrupt the barristers’ Christmas party have to make do with his child’s present, and that the red valiant belonged to one a gold embossed copy of Hansard featur- of its journalists. It is common knowledge ing the great parliamentary speeches of that the Australian views such occa- Andrew Mclntosh. sions as Christmas parties for barristers’ The photographs further testify to children as another example of the lazy many happy offspring of the Bar who guild, that is the Victorian Bar, going on enjoyed a traditional and congenial after- Paul Elliott QC as Santa Claus hands out yet another junket. Why should barristers noon. Many of the presents were put to lollies to the youngsters. have Sundays off? Why should their privi- use immediately. Paul Connor, the new leged children get presents? There should organiser, after the retirement of Michael be a tax audit on all who attended to see Gronow, must be thanked for all his efforts like-minded guilds including the journal- whether they were claiming the party in getting Santa there and making sure ists’ union. expenses as a tax deduction, and were everyone got lollies and a present. The But nothing really changes. Although there judges present enjoying more of Bar’s Santa suit is available for hire to Twister the clown and Milo the magi-

46 47 News and Views

Robbie McIntosh. Isabella Combes and Fran.

Samuel Combes about to open Patrick Southey and daughters his present. Scarlett, 5, and Pip, 3.

Paul Connor and son Michael, Danny Masel with Alex and James Paterson with his Ian Stewart, Francis and 7, duel with balloon swords Patricia. children Mack, Henrietta, Florence. made by Paul. Oliver and Fletcher.

Fletcher Paterson shows his Santa Claus arrives at the Rose The Shadow Attorney-General 15-month-old Davier Belmar on sister Henrietta how to operate Pavilion asks for a present. the shoulders of Sophie Osborn his spinning top. with Santa. Claus.

cian were not available because of their very red Santa after the gifts were given, deer to continue his toils until the great Australian Idol commitments, and there- and the lollies devoured, so he trudged day. To be politically correct he waved fore did not drive away without Santa, wearily back to the spot where the red farewell and wished everyone “Holiday alas the ranger forgot to pick up the now valiant sat instead of the red-nosed rein- Greetings”.

46 47 News and Views Here There Be Dragons …

Carolyn Sparke and Nick Kalogeropoulos

The Australian Corporate games, held on the weekend of 20 November 2004 featured, among other sports, Dragon Boat racing. Nick Kalogeropoulos, the manager of the Essoign club, put together a mixed team of barristers (who answered the flyers he put up around chambers) and Essoign staff, almost all without any Dragon Boat experience, to compete at the games. It was a hilarious, if not entirely successful day, as the following article explains.

ELL it wasn’t quite the edge of the world but at Docklands on W20 November 2004 the intrepid crew of the Essoign Dragon Boat took to the water. Hardworking, committed (after all they had been to two whole training sessions) and enthusiastic, the day was hilarious, even if unsuccessful. The intrepid band, led by Nick Kalogeropoulos, consisted of a mixed bag of barristers and Essoign staff. Many hardy souls — Alexandra Richards, Sion Turner, Amber Harris, Arushan Pillay, Bruce Nibbs, Rufus Daniell, Carolyn Sparke, Colin Harris, Fiona McLeod, Jacob Fronistas, Nha Nguyen, Stephen Roseman, Teri Konstantinou, Chris Carter, Lisa Marretta, Anita Perry, Karen Seow and Pieboy (Rodney Storey) mingled hap- The Fearless Dragon Boaters of 2004: (back row) Lisa Marretta, Anita Perry, pily — a hearty crew (especially Bruce) if Sion Turner, Ryan (Mascot); (middle row) Alexandra Richards QC, Karen ever we saw one. Seow, Amber Harris, Arushan Pillay, Teri Konstantinou, Nha Nguyen, Bruce First the training — two whole training Nibbs, Colin Harris, Rodney Storey, Stephen Roseman, Jacob Fronistas; (front sessions — how professional is that? Was row) Rufus Daniell, Chris Carter, Carolyn Sparke, Fiona McLeod S.C, Nicholas this team committed or what? The first Kalogeropoulos training session, held on a cool Melbourne night, honed everyone’s skills as they dent. We had learned to watch the people out their ID tags. A mercy dash back to the learned to “dig in the paddles”, lean out at the front of the boat, paddle in time Sports and Aquatic Centre so they could rather than in and reduce the amount with them, how to paddle fast and how to get substitute ID tags, a few latecomers of scooping and splashing on the people paddle long and hard, as well as rocking and panic was starting to set in. Lisa and behind. By the end of the evening, Greg in time with the paddling to help the boat Rodney and Nick had made a stupendous “the super coach” was complimenting eve- surging forward. Stephen kept urging us effort providing the mobile Essoign trolley ryone on their skills. After five beers he that we had to have “a good start”. After full of sandwiches, quiches and alcohol was still complimenting everyone on their all, with the dragon boats and the 21 bod- (!) for the assembled crew. But nonethe- skills. A warm glow was had by all. ies on board weighing a tonne and a half of less we still didn’t have a full team. Ten A week later, the next training session weight, a good start to overcome all that minutes to race time … the skies clouded (only five sleeps to go). With the great inertia is extremely important. over, no sign of our stragglers. We line up assistance of Stephen Blewett of the We knew we were amateurs, we knew hopefully at the quay, hoping that they Bar (there are hidden skills everywhere we were in for a good time, and we quietly arrive in time for us to actually get on a among the denizens of Owen Dixon) thought we might actually do well. boat without forfeiting the first round. the newcomers were schooled in who to Race day arrived … Nick arrived early One minute to race time … the last bod- watch and how to rock and by the end of full of encouragement. A few of the others ies run down the quay and jump on board. the session we were feeling quietly confi- arrived early full of enthusiasm but with- We are completely unbalanced, everyone

48 49 News and Views

The elusive orange buoy that resulted in the team filling a protest with the officials.

sitting in places they are unfamiliar with to behold. The boat surges underneath, very enthusiastic. As an aside — many and the boat threatens to tip over at every everyone rocks in time and it is literally thanks to Fiona McLeod’s husband Livio stroke. a “well oiled machine”. On this particular Andolfotto, for hours of hard work and As one witty member of the crew occasion we had the “caterpillar” affect enthusiasm creating a fabulous set of pointed out, a few of our number had been where the caterpillar had been the victim matching “the Essoign” T-shirts, complete of some bizarre personal injury. We were with dancing barristers. all over the place. Stylish and enthusiastic, we were not We finished the race in 1 minute 18 to be beaten. seconds. The winner had finished in about After some more carbo-loading the one minute and eight seconds. All right, decision was made that, given our last so there was room to improve. As our placing in the competition the only thing fearsome leader pronounced “it can only left was a bit of piracy — to board some of get better from here”. During the break the other dragon boats. we did some carbo loading (thanks, Lisa, The third heat was on. We were for the brilliant sandwiches — we can all relaxed, although not necessarily confi- highly recommend breakfast, lunch or dent. We had a new “sweep” this time — a dinner at the Essoign any time). We lined stern voice giving us excellent guidance. up, balanced our weights, reminded our- We learned later he was a member selves that we ought to be rocking in time, of the navy team. We had thoroughly watching the front and generally geared disheartened ourselves between races up for what was going to be a much better watching the navy team. They were a second race. genuine well-oiled machine — paddling in An hour later the race was on again. complete unison with long strong strokes, Buoyed with new-found confidence and they finished their heat in 58 seconds. (It a newly balanced boat, we headed for the doesn’t seem human to finish the race start. We almost managed it — slow and in such a short time and leave everyone steady and basically in time we headed for else for dead. We figured they were on the starting line. We were there in good steroids, practising in their spare time, time and seemed to have it under control. and probably faced uncertain disciplinary All strapped in and ready to race! Again, the starter’s gun, this time a fully techniques if they were to lose. fledged “bang!” We were off! ... well … in In our third race — a protest! “in Essoign” (unavoidably detained, of a kind a shambling and rambling way, we After getting in place, waiting for the course!). Nonetheless we managed to get were off. There were moments when the other boats to line up at the start, a gen- to the starting line without tipping over. boat did surge just as it was supposed to, tle cross wind blew us sideways into the The anxious moments of the start of lining but others felt we were about to land in floating buoy which marked the starting the boats up getting ready to go …, fol- the drink. Try as we might we began badly line. Once the gun went, half of us were lowed by “10 seconds to start” … “ready” again although this time it seemed we off and others had their hands in the air … “pop” a stunned silence settled across were gaining. Again a noble last. to signal that they were not ready. Neither everyone followed by the announcer say- However, in the second race we fin- the starter nor the sweep saw the hands ing “well …. go”. The expected starting ished in one minute 17 — managing to and we continued paddling. With the right gun was more of a fizzle. However, we got shave a full second off our last place time. hand side of the boat unable to paddle into it, full steam ahead. Between races Nick encouraged us. past the float it was always going to be a The races last about a minute and a After all, in the other races (there were shambles. Be that as it may, with style and half, (well they do if you are us, anyway). other races staggered during the course panache we finished that heat again with It’s a very long minute and a half and we of the morning) the losers had finished enthusiasm although we added 0.1 sec- all felt we were all about to hit the water by much slower times than we had. We onds onto our previous time — finishing about 20 times during that particular race. were not the slowest team on the day and in one minute 17.1 seconds. When everyone rows in time, it is a joy we were exceedingly well dressed and Then it was on for young and old — the

48 49 News and Views News and Views

sight of Alex Richards in full fury outlining the exact nature of the protest to an offi- cial, who was desperately trying to defend herself was quite a sight to see. Most of us Victorian Bar were clustered around her although only a few were actively arguing. As one member of the crew wryly noted, with two silks and a hand full a juniors floating around, “I Superannuation wonder what that protest cost?” A few of us were wondering which tribunal would deal with the protest. A valiant effort was made by Alex and Nick but turned down Fund: Chairman’s at the end of the day. All of us suspected we had legitimate grounds for protest but wondered whether the fact that we had come last, last and last may have had Report something to do with knocking the protest back. The day finished on an extremely Extract from the Chairman’s report at the forty- enthusiastic note — the Telstra team had tipped their boat over — at least we had fifth Annual General Meeting of the Victorian Bar not actually fallen in the water. Many of the teams who were now Superannuation Fund held 9 November, 2004. limbering up for the finals performed a variety of exercises, chants, and bonding techniques. Many of these were interrupted by various of our crew sending PAST CHAIRMAN puppies into the centre of their teams; would like to say something about our Sion doing a very respectable and some- past chairman, Ross Robson QC. Ross what rude rap dancing moment; chant- Idid not stand at the last elections. ing with enthusiasm about ourselves and A motion of appreciation was passed at derogation of others and generally carry- the 2003 AGM. However, little was said of ing on with a fair bit of bad behaviour. We the great service that Ross provided to the felt we were doing a public service as it Fund over 23 years. was important at all times when racing not In 1980, when I was a member of the to be distracted by the noise and rhythm Bar Council, I put forward Ross’s name as of boats on either side. We were therefore a suitable trustee. I had known Ross well assisting these teams with their concen- since first year at Melbourne University. I tration techniques. have a lot of respect for his commercial It was a very funny day and a great acumen and judgement. Fortunately for bonding experience. the Fund, Ross accepted the Council’s Many of us forget that the staff of the invitation to act as a trustee. Essoign Club see more of some of us than At that time Sir James Tait was still do our families at home. The Club is an Chairman. The Fund’s assets were about integral part of our life at the Bar and we $1 million. Now they are about $110 are an integral part of the Club’s life. Nick million. The trustees picked the stocks. did a great job organising a crew and lend- Little, if any, research was done. Brokers’ Ross Robson QC. ing enthusiastic leadership in a way that advice was sometimes taken but mostly made us all feel like we were out to have a ignored. From those days the Fund has Chambers. This was a very sound deci- good time, achieve something competitive come a long way. The use of professional sion and typical of his contribution to the and get to know the people “on the other managers and later asset class specialist Fund. The value of the property fell sig- side” a bit more personally. managers, the appointment of an asset nificantly afterwards. In any event, a large There was much talk about enter- consultant/investment advisor, member real estate investment would not have ing into more regular competition — investment choice and unitisation of been a suitable one for a small superan- rowing on the Yarra or possibly even more members’ investments all happened while nuation fund like ours. dragon boating. There was also more talk Ross was a trustee. He was Chairman from Throughout all these developments about other competitions. Colin is a tria- November 1997 to October 2003, replac- Ross displayed the great commercial thlete, there are runners and cyclists in ing Dr Ian Spry QC. judgement that I mentioned earlier. the group and there was a great deal of I remember that Ross played a sig- The Fund and the Bar is indebted to enthusiasm at the prospect of a billy cart nificant role in the trustees’ very - impor him for this distinguished service. race. With any luck Nick has begun a great tant decision not to accept Barristers tradition of shared team activities at Owen Chambers’ invitation to invest in Four Philip Kennon QC Dixon. Court Chambers, now Douglas Menzies Chairman

50 51 News and Views The Readers’ Course

Paul Santamaria, Chairman, Readers Course Sub-Committee

N 2004, about 100 men and women and barristers to contribute three times High Court, Chief Justice Black (a former signed the Roll of Counsel. That was a year, on top of their existing voluntary Chair of the Readers’ Course Committee), Ithe result of the decision of the Bar contributions to the Course and their own Justice Gray, Chief Justice Warren (who Council in 2003 to increase the number work load. has taken seminars on ethics in company of places in the Readers’ Course from 40 The Readers’ Committee of the Bar with Justices Buchanan and Harper), to 50 places for each of the March and continues to learn from its experience and Justices of Appeal Charles and Eames, September courses, in response to the to subject the Course to its own scrutiny Justices Coldrey, William and Morris, apparently increasing demand of persons and criticism. The Committee seeks to and Judges Curtain and Gaynor. Without wishing to become barristers. achieve the appropriate balance between Max Perry, the Course would be robbed In fact, in each of the March and sound instruction in the course of criminal of many moments of wit and sardonic September 2004 courses, about 55 read- and civil trials and active practical advo- humour – mostly at the expense of others ers undertook the Course; the additional cacy. We aim to get readers up on their – and a good measure of sound instruction readers were lawyers from Vanuatu, the feet, not with a lot of notice to prepare, in criminal advocacy. The present Course Solomon Islands and Papua New Guinea. and to prosecute and defend, to appear capitalises on the wisdom and experi- Since 1987, the Victorian Bar has taught for plaintiffs and defendants. ence of those who have been involved in advocacy to 89 lawyers from countries in Over the last 18 months or so, the advocacy instruction over many years. the Pacific region. It is the only Bar to do Committee recommended to the Bar To name only one person is probably so; equally, it is important that the Bar Council that the duration of the Readers’ unfair; but one cannot fairly overlook the continues making its own modest contri- Course be reduced from three months to substantial contribution of retired Justice bution to the acquisition of legal skills, a shorter period. A common criticism of George Hampel, presently the Professor in particular, of advocacy in developing the Course expressed by some mentors of Law, International Institute of Forensic countries near to Australia. and readers was that there was too much Studies, Monash University (often sitting As at August 2004, there were 142 “lay about” time and that many readers’ in Prato, Italy). persons on the waiting list for places in financial situation made it imperative for Much could be said about the strong the Readers’ Course. During this year, them to be able to commence accepting commitment of judges, and senior and jun- the Bar Council considered whether the briefs earlier. ior barristers to the teaching of advocacy demand for places in the Course could be In March 2004, the duration of the in the Course. I do not believe that there ameliorated by the introduction of a third Course was nine weeks; in September is another advocacy course in Australia Readers’ Course. The Readers’ Course 2004, the Course was 10 weeks. The which is as intense over such a period of Sub-Committee of the Bar examined the Committee believes that 10 weeks ena- about two months. For the Committee, an possibility of conducting a third Course; bles the Course objectives to be achieved especially gratifying feature is the support ultimately it recommended to the Bar and for readers to be able to obtain a solid given to the Course by the Chief Justices of Council that there should not be three grounding in advocacy in that time. the Federal Court and the Supreme Court, Readers’ Courses and that the status quo The content of the Course evolves over should continue for the foreseeable future. time. The emphasis in the curriculum has The Bar Council adopted that recommen- always been to teach advocacy by hav- dation. In the meantime, the Applications ing the readers undertake a multitude Review Committee revamped the relevant of moot courses and practical sessions. regulations governing the way in which In the last two intakes, the readers have applications would be received by the Bar also received additional instruction in the and the system by which places would be structure and procedures of criminal and allocated to applicants, with the purpose civil trials. For example, Justice William of achieving greater equity and certainty Gillard has taken the session “The Opening for applicants. Address” of a civil trial; retired Justice of The Sub-Committee concluded that Appeal Robert Brooking has taken the the waiting period of 12 months or so session on “The Closing Address” in a civil was not unreasonable. Moreover, it was trial. Justice David Byrne has continued to not feasible to introduce a third course, take several sessions on evidence in each in view of the substantially increased Course including the all-but impenetrable demands on mentors and teachers in the topic of cross-examination on documents. Course, which would necessarily have For several years, readers have enjoyed straddled the July vacation. In short, it the substantial benefit of the active was expecting too much to expect judges instruction of Justice Ken Hayne of the Paul Santamaria.

50 51 News and Views News and Views the Chief Judge of the County Court and the Chief Magistrate. Again, I suspect that no other course in Australia enjoys that Wigs on Wheels measure of support, which is so important in a variety of ways. The existence of that support lets readers know that the highest echelons of the legal profession in Victoria regard their instruction as advocates Around the Bay as important in the public interest and that readers are expected to achieve the highest standards in their performance as advocates and in discharging their ethi- cal duties. There is no doubt either that the greater the involvement of judicial officers in the Course, the less intimidat- ing their Courts will be for these new T 5.30 on a Sunday morning, added to the list. David Levin took his advocates starting off in their careers at most barristers would be asleep interest in cycling to a new level in 2004 the Bar. A(or perhaps still partying). But by becoming a council member of Bicycle By way of recent example, in March not all! On 17 October members of Wigs Victoria. 2004 the Masters of the Supreme Court on Wheels, with some relatives and Realising that 210 kilometres in a day agreed to trial a moot court in a civil friends, assembled on the steps of Owen was a little more ambitious than riding application before them. And so in March, Dixon Chambers West to set off from to work, the WoW group organised some four of the Masters agreed to sit as Moot the Docklands starting line on the Smith Sunday morning training rides (Port Masters, starting at 4:30, straight after Family/Bicycle Victoria “Around the Bay Melbourne to Frankston and back) start- court. The exercise was a great suc- in a Day Ride”. ing in May. Peter cess. With the success of that evening, Several hours Riordan S.C. the Committee decided that it should later, consider- did not need approach Chief Justice Black, Chief ably sore and to attend these Justice Warren and Chief Judge Rozenes tired but very training rides, as to see if they would be prepared to nomi- satisfied, all of he demonstrated nate groups of judges from each of their the WoW group on 17 October courts to conduct civil moots in their made it back to by dashing off respective courts, on the final Thursday Melbourne. The on the dot of evening of the Course. We were delighted ride travelled 5.30 and arriving with their unanimous response; judges over the West back some hours and masters were conscripted behind Gate Bridge to ahead of the the scenes and the concept of the “Super Geelong and next rider in the Thursday” Moots bore fruit. With the co- Queenscliff, by Sore and tied but satisfied after 210 kms. WoW group. operation of these judges, every single ferry to Sorrento, On the day the reader appeared in a superior court in a and back to Melbourne, a total distance of starters (and finishers) were David Levin moot conducted by a judge or master in 210 kilometres. A total of 8,904 riders QC, Carolyn Sparke, Carey Nichol (and actual courtroom conditions. Accordingly, participated, some riding in the opposite son Pat), David Parsons SC, Mark the Committee is grateful to Chief Justice direction. It is a big corporate event; there Dreyfus QC (with son Tom and friend Black, Justices Heerey, Finkelstein and were teams from many companies and Matthew Kaminsky), Peter Riordan S.C., Weinberg, Chief Justice Warren, Justices government organisations, as well as from Andrew Laird, John Buxton and Richard Williams and Hollingworth, Chief Justice several Melbourne law firms. Harris. Rozenes, Judges Wood, Anderson, Chettle The Wigs on Wheels group (formally Conditions on the day were near per- and Lewitan as well as Masters Mahony, titled the Victorian Bench and Bar Bicycle fect — a temperature of 23 degrees, a Wheeler, Evans and Kings who acted as Users Group) was convened in 2003 by very light breeze and light cloud clearing the moot judges on this inaugural “Super David Levin QC to bring together judges, to a fine afternoon. The flaw in the day Thursday”. The Committee looks forward barristers, judges’ associates and court was a long wait for the ferry at Queenscliff to the continued participation of their administration staff interested in cycling, — up to three hours for some, but sitting courts in our courses in 2005. either as commuters or for leisure. The in the spring sunshine even this wasn’t too The Readers’ Course is supervised and group has held three “Lycra Breakfasts” at difficult. administered by Barbara Walsh, Elizabeth the Essoign Club, the most recent on Ride Several other Wigs on Wheels mem- Rhodes and Deborah Morris. The Bar is to Work Day on 6 October 2004, organised bers rode with other groups, including fortunate to have them, because of their a ride along the Lilydale to Warburton Justice Peter Buchanan, Mark Goldblatt dedication to the needs of the readers Rail Trail, and held bicycle maintenance and David Curtain QC. Characteristically, and their commitment to ensuring that evenings at Cecil Walker Cycles. Anyone Curtain QC organised not to wait for the the standards, which the Course seeks to interested in cycling is welcome to join ferry, having a private boat transport him impart to the readers, are acknowledged Wigs on Wheels. No skill or previous expe- from Queenscliff to Sorrento. WoW expect and observed by the readers during their rience is needed: to join just simply send him to offer the boat to WoW members undertaking of the Course. an email to [email protected] and be next year.

52 53 News and Views Verbatim Wine Report in Association Sticky Business Mr Delany: That might be a bit extreme Your Honour. with the Essoign Coram: Morrow J His Honour: I just can’t understand why L. Barker for Accused someone would disfigure an original document. By Andrew Bristow Mr Delany: Could the witness be shown back the transaction documents. I think Cape Mentelle Sauvignon it’s B and C. His Honour: Yes. Having Moved Courts Semillon 2004 Mr Delany: Would you look at those two without Knowing! HE 2004 Cape Mentelle documents, or look at the one that you TSauvignon Semillon (53 per cent made the notation on of the registration County Court Sauvignon, 47 per cent Semillon) number, please. You see that one? Top 23 August 2004 from Margaret River in Western left-hand corner of … ? Judge Pannan and a jury of six. Australia is an excellent vintage as His Honour: Yes, pass it over here please a result of the mild and dry condi- for a minute? Mr Scanlon: If Your Honour pleases, the tions resulting in a long ripening Mr Delany: There are staples on these matter is proceeding. period which has produced grapes things Your Honour. Her Honour: I’m sorry you finished up of excellent flavour intensity. His Honour: They are exhibit stickers on in the other Court, but this happens to us The wine has a bouquet of pas- it from the committal procedure is it? all the time. We never quite know where sionfruit and citrus with a waft of Mr Delany: Yes, Your Honour. we are. vanilla derived from barrel fermen- His Honour: Well they shouldn’t be Mr Scanlon: We collectively apologise. tation. there. We didn’t look at the law list, any of us The wine colour is a light lime, Mr Delany: Right, I will tear those off and here, and we don’t have a Jens defence, but will become a deep yellow with get my instructor to tear the committal but we do apologise. age. sticker off. (To witness): I want you to Her Honour: I did suggest to him last The wine is creamy and textural, have a look at this. week, Mr Scanlon, that he’d be late for his with vibrant, flamboyant citrus - fla His Honour: Someone has put an adhe- own funeral. vours that finish crisp and clean, sive sticker on it. They should be shot. with great length. It is ready to drink now and in particular over coming summer months as it drinks well cold. It will last for the next 3 to 5 years. It is available from The History is Creepy Essoign Club at $29.50 a bottle ($25.05 takeaway). BRAHAM Lincoln was elected to Lincoln, was born in 1839. Lee Harvey I would rate this wine as late- ACongress in 1846. John F. Kennedy Oswald, who assassinated Kennedy, was starting Barrister for large law was elected to Congress in 1946. Abraham born in 1939. firm, confident and seeking early Lincoln was elected President in 1860. Both assassins were known by their appreciation now, but with some John F. Kennedy was elected President three names. Both names are composed complexity and will not take much in 1960. Both were particularly concerned of 15 letters. time to reach maturity. with civil rights. Now hang on to your seat. Both wives lost their children while liv- Lincoln was shot at the theater named ing in the White House. Both Presidents “Ford”. Kennedy was shot in a car called were shot on a Friday. Lincoln made by “Ford”. Both Presidents were shot in the head. Lincoln was shot in a theater and his Now it gets really weird. assassin ran and hid in a warehouse. Lincoln’s Secretary was named Kennedy was shot from a warehouse and Kennedy. Kennedy’s Secretary was named his assassin ran and hid in a theater. Lincoln. Booth and Oswald were assassinated Both were assassinated by Southern- before their trials. ers. And here’s the kicker ... Both were succeeded by Southerners A week before Lincoln was shot, he named Johnson. Andrew Johnson, was in Monroe, Maryland. A week before who succeeded Lincoln, was born in Kennedy was shot, he was with Marilyn 1808. Lyndon Johnson, who succeeded Monroe. Kennedy, was born in 1908. Creepy huh? John Wilkes Booth, who assassinated

52 53 News and Views/Sport Bar Hockey 2004

SYDNEY E repaired to Sydney to the Olympic No.2 ground to play the WNew South Wales Bar team on Saturday, 16 October 2004. Although it had seemed that we would have lots of players, in the event we had 10, and were indebted by the loan to us from the New South Wales squad of a reasonably useful left inner. This generosity was probably contrib- Michael Tinney stars. uted to by the fact that New South Wales had about 15 players anyway, and the player just wanted a run. This game was keenly contested, and the final score might well be said to have flattered us somewhat. Following an even opening period, an interchange of passes between Gordon and Michael Tinney put Gordon free down the left wing and he advanced into the area and finished with a precise shot. Shortly thereafter, we went 2–nil up Bunchardt — an elegant swipe. through Andrew Tinney, and thus the matter stood at half time. On a hot day, the advantage in numbers was clearly assisting New South Wales,

NSW–Victoria amity after the game.

NSW attack

and they pulled a good goal back, so that the result with about a quarter of the game to go seemed somewhat open. In this respect, the New South Wales team was considerably assisted by the presence of Gunasama Niraswamy, a former (but not former enough) Fijian International and State League 1 player Our supporter with Michael Tinney. in Victoria, who has remained extremely fit. South Wales proved as always outstanding Fortunately at this stage we received company both on and off the field. a penalty stroke which was taken by our All the Victorian Bar team played well, ring-in, given a complete refusal of all of with Sharpley in goals perhaps the dif- our stars to take the penalty themselves. ference between the teams, with excel- At 3–1 up we were in control of the game, lent performances from Clancy, Michael and Richard Clancy scored a further goal Tinney, Sexton and Gordon being particu- to seal a good 4–1 win. larly noteworthy. A very pleasant and memorable dinner The scales of Justice up. was thereafter held in Mosman, and New

54 55 minutes to go, when following an unfor- of equal opportunity case based upon LAW INSTITUTE tunate umpiring error, a turnover led to discrimination against those who are Last year I wrote that if the solicitors got a third goal. aged and who suffer from physical impair- their game together we would be in trou- We thereafter threw caution to the ments associated with the aging process. ble, and this year they did get their game winds and, of course, they managed to Otherwise, it may take a while before the together. score two more goals in the last two min- scales of justice returns to us. Confronted by not one but three State utes to win 5–1. A more accurate result Ben Stockman from the Doncaster League 1 players, together with a squad of would have been 3–l. State League 1 team won the Rupert Balfe

Before the game against LIV — confident.

After the game.

15 of whom only three were over 30 (our It will be all but impossible for us to squad has no one under 30, and only four defeat the solicitors until at least one under 40), we were in real trouble. or more of their State League 1 players Where we excelled. As with the New South Wales game, defects to the Bar, if they continue this the final result was a bit misleading. somewhat unsporting habit of sending out Award for the second year running, and The score at half time was nil–nil, with youthful striplings to compete with our deservedly so. Running indeed is a word Clancy aided in midfield by Tweedie and relatively geriatric crew. that comes very much to mind when one Parmenter who were additions to the Nonetheless, the game was played seeks to describe Stockman’s all action Sydney squad; we were holding out very to an even higher standard than previ- style. well. ous years, and we can take considerable Drinks followed the game at the State Unfortunately, with about 20 minutes satisfaction from the fact that we were Hockey Centre and we look forward to to go we took the lead, through Michael very competitive until effectively the last correcting the result (of the game) next Tinney, and this appeared to infuriate couple of minutes. year if we are able. the solicitors into even greater efforts. Once again, Sharpley in goal was out- Those who played in Sydney were From a short corner they finally got standing. We missed Wood, who got as Sharpley, Niall, Dreyfus, Clancy, Sexton, the ball past Sharpley in goal, and my far as the touch line but didn’t play, on Brear, Andrew Tinney, Michael Tinney, goal line save unfortunately trickled onto the back line, and Clancy, Tweedie, the Gordon and me. a foot. A penalty stroke to them and one Tinneys, Sexton and Parmenter all played In the game against the Law Institute, all. exceptionally well. No one disgraced all of those players played again, and Soon after, they scored a further goal themselves. were augmented by Appudurai, Tweedie, deflected unluckily into his own net by If this process of youthful selection by Parmenter and Morgan. Niall. the Law Institute team continues, we will We were still well in the game with five have to consider taking out some form Philip Burchardt

54 55 News and Views Advanced and High Performance Driving

N recent years I have enjoyed the team of instructors led by David Cuff, all for members of the Bar and Judiciary who benefits of being taught advanced and of whom have significant high-level motor are interested. He has agreed if there are Ihigh performance driving techniques racing experience. These instructors are sufficient numbers of people participat- by genuine experts (which I thought I was also contracted by the Confederation of ing. until I did the course). I suspect there are Australian Motor Sport (CAMS) to con- At present it is tentatively proposed to plenty of barristers and judges with sports duct the driver evaluation required for conduct courses for barristers and judges or high performance cars and a desire to hopeful competitors to obtain their com- as follows: enjoy them safely who would benefit from petition circuit racing licence. • Advanced driving course at Calder the knowledge these experts can teach. The courses available include Raceway on Thursday 3 March 2005 at The John Bowe Institute of Driving is a Advanced Driving and High Performance a cost of $265.00. high-level teaching group on good driving courses and it is necessary to have done • A subsequent High Performance course technique and has been so for a number the first before proceeding to the second. at Calder Raceway on Thursday 14 April of years. As their website (www.johnbowe The courses run all day in your own car 2005 at a cost of $350.00. driving.com) indicates, John Bowe himself and involve a variety of practical teach- These events can only be held if there is a four-time Australian champion and ing in all aspects of car control. Due to is a sufficient level of interest. It would has been at the top of Australian motor the way the courses are organised the therefore be helpful to know how many sport for over 20 years. He is the only risk of either mechanical or panel dam- people would be interested in these race driver to win the Australian Drivers’ age to vehicles is extremely low but courses. For that purpose, expressions of Championship, Australian Sports Car chances of enjoying the experience are interest or further inquiries can be made Championship and Australian Touring Car very high. The main Victorian venues for to David Cuff at the John Bowe organisa- Championship. In 2002 his appearance on the courses are Calder Raceway, Sandown tion on 9827 1217 or to me direct on 9225 the grid at the Canberra 400 was his 150th International Raceway and Winton Motor 7434 or 0411 132 943, and I will pass them V8 Supercar start, making him fifth on the Raceway (near Benalla). I have recently on. all time list. suggested to David Cuff that in 2005 he Lex Lasry QC Under John there is an experienced might consider conducting a specialist day

Opening Hours: TUESDAY, WEDNESDAY and THURSDAY 9am to 3pm

56 57 News and Views Lawyer’s Bookshelf

lar arbitration (Ch 18). • Extracts from the International Brooking on Building Finally, the book contains an interest- Covenant on Civil and Political Rights; Contracts (4th edn) ing chapter headed “Building Operations” and (Ch 19) which discusses problems that • Table of Notices required by the uni- By D.J. Crennan, B.A. Shnookal and may be encountered during building oper- form legislation. M.H. Whitten ations with adjoining owners. It deals with The book contains a comprehensive Lexis Nexis Butterworths, 2004 the torts of trespass to land and nuisance table of cases and statutes, and the index Pp. i–1, 1–378; further references and considers rights of supports, under- refers the reader to both commentary 379–380; Index 381–390. pinning and interference with easements. paragraph and section numbers. This book is to be commended to all The sixth edition will be of great assist- ROOKING on Building Contracts who practice in or have an interest in the ance to busy practitioners required to Bis an excellent work in the field of law relating to building and engineering apply the uniform legislation. building and engineering contract law. works. The fourth edition states the law as at 1 P.C. Golombek P.C. Golombek January 2004 and is relevant to building and construction practitioners as well as non lawyers involved in the building and Uniform Evidence Law Cross on Evidence construction industry. Reference is made to the leading decisions in this area of the (6th edn) (7th Aust. edn) law as well as to relevant Commonwealth, By Stephen Odgers S.C. J.D. Heydon BA (SYD) MA BCL State and Territory legislation. The book Lawbook Co 2004 (OXON) Justice of the High Court of is well organised and keeps the reader’s Australia attention. HIS book is a commentary on the Lexis Nexis Butterworths, 2004 The chapters dealing with the law of T“Uniform Evidence Law” mean- contract as it applies to building contracts ing the Evidence Act 1995 (Cth) and ROSS on Evidence is a scholarly text will also be of great assistance to prac- the Evidence Act 1995 (NSW). It also Con the law of evidence. It is a book titioners in other areas of contract law. (in Appendix F) deals with the latest that is well known and extensively used by Current principles applied by the courts State Act, the Evidence Act 2001 (Tas) both practitioners and law students. The are identified and clearly explained. The to come within the ambit of “Uniform Australian edition commenced in 1970 book contains specific chapters dealing Evidence Law”. and is now in its seventh edition. Each with tenders (Ch 5) and a related topic The main objective of the book is to edition improves on its earlier edition. bills of quantities (Ch 15), assignment provide assistance in the understanding The book deals with the rules of evi- (both statutory and equitable) (Ch 13) and application of that uniform legislation. dence in a most comprehensive way. The and subcontracts (Ch 14). Although that legislation is referred to as common law rules are clearly identified The book deals extensively with the “uniform” it can only be said that it is sub- and the principles underlying the rules law in the most common areas of build- stantially uniform. There are important are explained. Recent authority is cited. ing disputes: Time for Completion (Ch differences between the three Acts and The table of cases is extensive and up to 6), Rise and Fall Clauses (Ch 7), Progress the book highlights these differences. date. All relevant statutory provisions for Payments, Final Payments and Quantum The legislative provisions are identified each State and Commonwealth Territory Merit (Ch 8), Approval and Certification by shading of the text which makes them and jurisdiction are referred to. to Works, Progress Certificates and Final readily distinguishable from that com- General problems and aspects of the Certificates (Ch 9), Variations of Contract mentary. Where the statutory provisions Commonwealth Evidence Act 1995, NSW (Ch 10), Defective Works (Ch 11), differ they are identified as “Cth Act only” Evidence Act 1995 and the Tasmanian Liquidated Damages (Ch 6) and Common or “NSW Act only”. Evidence Act 2001 are adverted to and Law Damages for Breach of Contract (Ch In order to assist readers who wish their application explained. The table of 11) and Determination of the Building to be informed of the background to statutes is comprehensive. Case law con- Contract (Ch 12) both under express particular statutory provisions in the uni- struing these provisions is cited. contractual provisions and at common form legislation the commentary makes Although the book is lengthy (1,382 law. reference to the reports of the Australian pages) it is very manageable. Contents The book also considers the duties Law Reform Commission namely the 1985 headings and sub-headings are easy to fol- that particular professions (architects and Interim Report (ALRC 26) and the 1987 low and the index, with its numerous top- engineers) owe to the owner, the builder Final Report (ALRC 38) and also to the ics and references to paragraph numbers, and third parties both at common law and Draft Act prepared by the ALRC. makes the law in this complex area readily in performing certification under the rel- There are six appendices to that com- ascertainable. evant contracts (Ch 17). The role played mentary which will in particular assist A number of subjects have been signifi- by the tort of negligence in relation to NSW and Federal jurisdiction practition- cantly rewritten in this seventh edition, in builders and related professions and local ers; namely: particular the subjects of presumption of authorities is conveniently summarised • The Evidence Regulations 1995 continuance, views, judicial notice, com- with emphasis on pure economic loss (Cth); plaints, proof of foreign law and privilege. claims (Ch 16). • The Evidence Regulations 2000 The seventh edition also has new material The various avenues and methods for (NSW); on the subjects of the role of common building dispute resolution (statutory and • Extracts from the Criminal Procedure experience, the findings of legislative facts non-statutory) are discussed. In particu- Act 1986 (NSW); and on aspects of opinion evidence.

56 57 The seventh edition will provide the rest of the book: where appropriate, the For a book that frequently deals practitioner and the law student with a other chapters are split so that the discus- with the archaic, its language is refresh- practical and definitive explanation of the sion of general law mortgages and that of ingly succinct. Where arcane concepts law of evidence in criminal and civil juris- registered mortgages appears separately are described, they are explained with dictions throughout Australia. but in a single chapter. remarkable clarity. One minor irritation is Finally, the authors have provided the publisher’s practice of including in the P.C. Golombek thirty precedents, each relating to either body of the text the entire citation of each general law or registered land, in an case specifically mentioned. That system appendix. While the currency of prec- might shorten the book by reducing the The Mortgagee’s Power edents included in a bound volume is number of footnotes, but it interrupts the obviously limited, the mortgagee’s power flow of the text. It is also at odds with the of Sale (2nd edn) of sale is created by ancient rules of the authors’ practice of omitting the year and By Clyde Croft and Jan Johannsson common law and equity, and by well-worn jurisdiction from textual references to the Lexis Nexis Butterworths, 2004 statutes to which judicial statements most commonly cited statutes. Pp. v–xii, Table of Cases xiii–xxx, of interpretation have rusted on. The The Mortgagee’s Power of Sale is a Table of Statutes xxxi–xxxvii, 1–212, authors’ precedents will no doubt remain lucid and practical book which deals with Appendix 213–232, relevant for some time. Further, those an important and frequently exercised Bibliography 233–4, Index 235–245 who swear by old editions of Bullen and power. Leake will welcome them. Stewart Maiden HIS book describes the law relating Tto the existence and exercise of the power of sale by a mortgagee of land. The first edition was written solely by Dr Croft and published in 1980. Considering the long history of the mortgage and the frequency with which mortgagees have recourse to the power of sale, the book is remarkably concise. Its brevity is due to Conference Update the fact that it does not purport to be a work on conveyancing, civil procedure or mortgages themselves. 17 January–28 January 2005: Email: [email protected] The book is written in the “transac- Delemont, Switzerland. 13th Edition of 29 June–2 July 2005: Dublin. The tional” fashion, arranged chronologi- the International Tax Law Post Graduate Australian Bar/Irish Bar Joint Conference. cally by reference to the steps involved Diploma Programme. Contact: website Contact Dan O’Connor. Tel: (07) 3238 in exercising the mortgagee’s power of www.college.ch/?page=tax&r=clownalpha 5100. Fax: (07) 3235 1180l. Email: sale. The first chapter briefly describes 18 January 2005: Sydney, NSW. 2005 [email protected] the nature of mortgages (both legal and Constitutional Law Conference and 2 July–8 July 2005: Bali. Tenth Biennial equitable) and the distinction between a Dinner. Contact Ms. Belinda McDonald. Conference of the Criminal Lawyers mortgage and a charge. Not being a trea- Tel: (02) 9385 2257. Fax: (02) 9385 1175. Association of the Northern Territory. tise on such things, the book is quick in Email: [email protected] Contact Lyn Wild. Tel: (08) 8981 1875. its description, but provides a list of more 13 March–19 March 2005: Kitzbuehel, Fax: (08) 8941 1639. Email: info@thebest comprehensive works should the reader Austria. Outsourcing and Offshoring events.com.au require more detail. The authors then Conference. Contact Dennis Campbell. 3 July–9 July 2005: Amalfi Coast. describe the source of the power of sale, Fax: 43 662 825 171. Email: [email protected] Europe Asia Medico-Legal Conference. and conditions precedent to its exercise. 20 March–24 March 2005: Broadbeach, Contact Rosana Farfaglia. Tel: (07) A separate chapter is devoted to the mort- Queensland. 19th Biennial Lawasia 3236 2601. Fax: (07) 3210 1555. Email: gagee’s right to possession, which must of Conference; 34th Australian Legal [email protected] course be triggered prior to the recovery Convention; 44th Queensland Law 4 August–9 August 2005: Chicago, of possession, described in the follow- Society Symposium; 12th Conference of Illinois. 127th Annual Meeting of the ing chapter. The exercise of the power the Chief Justices of Asia Pacific. Contact American Bar Association. Contact ABA itself is explained in three chapters: an Amanda Sever. Tel: (07) 3222 6809. Fax: International Liaison Office. Tel: 1-312- introductory chapter, which deals with (07) 3222 5850. Email: amanda.sever@ 988-5107. Fax: 1-312-988-6178. Email: general concepts; two chapters devoted lawasia.asn.au [email protected] to the mortgagee’s duties in exercising 20 March–23 March 2005: Capetown, 31 August–4 September 2005: Fez: the power of sale; and a chapter which South Africa. Fourth World Congress Union Internationale Des Avocats 29th sets out the circumstances in which the on Family Law and Children’s Rights. Annual Congress. Contact website mortgagee is allowed to purchase the Contact Gail Fowler. Tel: 61 2 9999 www.uianet.org property. A chapter on the effect of sale 6577. Fax: 61 2 9999 5733. Email: 15 September–22 September 2005: on the mortgagor is followed by a two [email protected] Rome. Pan Europe Asia Medico-Legal chapters dealing with the distribution of 29 May–5 June 2005: Mykonos. Tenth Conference. Contact Rosana Farfaglia. the proceeds of sale: one in the case of Greek/Australian International Legal Tel: (07) 3236 2601. Fax: (07) 3210 1555. general law land, and one for registered and Medical Conference. Contact Jenny Email: [email protected] land. That division is in contrast with the Crofts. Tel: 9429 2140. Fax: 9421 1682.

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