No. 146 SUMMER 2008 / 2009

Farewell Sir John Young

WELCOMES CRIMINAL BAR ASSOCIATION DINNER PRO BONO AWARDS

ISSN 0159-3285 0159-3285 ISSN BAR HOCKEY READERS’ COURSE REVISITED A BIT ABOUT WORDS WBA MEET AND GREET NATIONAL INDIGENOUS LEGAL CONFERENCE

VICTORIAN BAR NEWS Summer 2008 / 2009 1 VICTORIAN BAR COUNCIL VICTORIAN BAR NEWS

Bar Council Chairs of Standing Committees Editors Clerk of the Bar Gerard Nash QC, Paul Elliott QC G G John Digby QC* (Chairman) Applications Review Committee and Judy Benson G Michael J Colbran QC* (Senior Vice-Chairman) G Digby QC, G.J. Editorial Board D Mark K Moshinsky SC* (Junior Vice-Chairman) Clerking Committee Julian Burnside QC, Graeme Thompson D E William Alstergren* (Honorary Treasurer) G Colbran QC, M.J. D Jacob I Fajgenbaum QC* Editorial Secretary Council Committee L Phillip G Priest QC John Stevens G Colbran QC, M.J. H Timothy P Tobin SC Editorial Committee A Paul E Anastassiou SC Duty Barristers Scheme Committee Ian Freckelton SC, D Peter J Riordan SC D Alstergren, E.W. William F. Gillies, Carolyn Sparke, A Cameron C Macaulay SC Editorial Committee for In Brief and Georgina Schoff, Paul Duggan, Richard Brear, H Richard W McGarvie SC* Website News Section Carmela Ben-Simon, Catherine Button, D Scott W Stuckey (Assistant Honorary Treasurer) D McLeod SC, Ms F.M. Jennifer Digby, Noam Shifrin and G Sara L Hinchey* Equal Opportunity Committee Peter Lithgow (Book Reviews) F Matthew J Walsh D McLeod SC, Ms F.M. D Paul X Connor Design/production Ethics Committee F Kim J Knights Ron Hampton G Davies SC, J. G Kate J D Anderson* David Johns (Photography) B Michelle R Sharpe* Health and Wellbeing Committee Published by The Victorian Bar Inc. R Simon J Gannon L Priest QC, P. Owen Dixon Chambers F Benjamin J Murphy Human Rights Committee 205 William Street, Melbourne 3000. F Kim M Southey D Fajgenbaum QC, J.I. Registration No. A 0034304 S Indigenous Lawyers Committee *Executive Committee G Golvan SC, C.D. Opinons expressed are not necessarily those of the Bar Council or the Bar or Law Reform Committee of any person other than the author. Ethics Committee D Garde QC, AO, RFD, G. D Davies SC, J. (Chairman) Legal Assistance Committee Printed by Impact Printing C Meagher ED, QC, D.R. A Richards QC, A. 69 –79 Fallon Street, Brunswick Vic. 3056 G&J Willee RFD, QC, P.A. Legal Education and Training Continuing This publication may be cited as G&J Santamaria QC, J.G. Education Committee (2008/2009) 146 Vic B.N. D Titshall QC, M.R. D Ruskin QC, J. F Gobbo QC, J.H. Advertising A Manly SC, R.J. Legal Education and Training Readers’ Miriam Sved H McGarvie SC, R. Course Committee The Victorian Bar Inc. D Moshinsky, SC, M.K. B Hill QC, I.D. 205 William Street G&J Shwartz, A. New Barristers’ Standing Committee Melbourne 3000 P Williams, I.S. B Pitt, S.T. Telephone: (03) 9225 7943 D Kirton, C.E. Past Practising Chairmen’s Committee Fax: (03) 9225 6068 F Shiff, P.L. F Costigan QC, F.X. D Alstergren, E.W. Professional Standards Education Committee D Shaw, C.E. G&J Willee RFD, QC, P.A. Professional Standards Scheme Committee A Derham QC, D.M.B. Victorian Bar Dispute Resolution Committee S Heaton QC, M.

2 VICTORIAN BAR NEWS Summer 2008 / 2009 ISSN 0159-3285 No. 146 SUMMER 2008 / 2009

EDITORS’ BACKSHEET 22 John Mathew Edward Sutton 52 A bit about words 4 Farewell 23 Daniel Julius Pollak 53 Mo’ justis 55 WBA meet and greet CHAIRMAN’S OUTLOOK NEWS AND VIEWS 58 Measures adopted by the Bar to 7 Our strong Bar will face significant 24 Readers’ Course revisited assist parents challenges in 2009 29 Stolen 30 Announcement of Senior Counsel ATTORNEY-GENERAL’S COLUMN for 2008 10 Changing the court process SPORT 32 Readers’ Course photograph 59 Bar Hockey WELCOMES 34 National Indigenous Legal Conference 12 Master Simon Gardiner 36 Criminal Bar Association Dinner LAWYER’S BOOKSHELF 14 Judge Mark Taft 42 Verbatim 61 Book reviews 43 Pro Bono Awards OBITUARIES 46 Portrait of Sir Daryl Dawson 16 Farewell Sir John Young 51 Investment and superannuation 22 Philip Henry Napoleon Opas for barristers Cover: Portrait of Sir John Young

Welcome: Master Welcome: Judge Criminal Bar Association Dinner National Indigenous Legal Conference Simon Gardiner Mark Taft

Pro Bono Awards WBA meet and greet Bar Hockey

VICTORIAN BAR NEWS Summer 2008 / 2009 3 EDITORS’ BACKSHEET

Farewell

COMMITTAL PROCEEDINGS is some mindless conglomerate quite sepa- rate from the 20 million Australians who On Saturday 15 November last year The live in this country. Alternatively those Age reported that the DPP was calling for who are charged with criminal offences the abolition of committal proceedings on are somehow outside the ambit of this the basis that they no longer serve their concept of ‘community’. original purpose and that they are, effec- To abolish the principle of double jeop- tively, a waste of money and resources. ardy would mean that any person who has It appears that the DPP considers at any time been charged with, and acquit- that the present procedure provides ted of, an offence would have the possibil- an ineffective filter in that only a small ity of conviction for that offence hanging number of committal proceedings do over him or her for the rest of his or her not result in committal for trial and, in life. It would mean that the Crown could any case, the DPP has power to present a have a ‘dry run’ trial to ascertain the ambit person for trial even though a magistrate The experience of those who rely on of the defence and the defence evidence has refused to commit. Since the filter, rainwater tanks is that if the filter is not and then run its real trial at a later time. therefore, only removes a small percentage working properly, the normal remedy is to Big brother is big enough already – in of persons charged from the flow of the replace it or fix it. Seldom is the removal fact too big. Every time our law reformers criminal process, it should be abolished. of the filter seen as the desirable remedy. refer to the interests of the community, at There appear to be three objections to If magistrates at committal proceedings least one of the editors sees, superimposed this proposal. are not adopting a sufficiently rigorous upon that reference, a fascist symbol. (i) It cuts across the accepted principle approach to the Crown case, if accused Where the law does not stand between that the accused should have an persons who should be discharged at com- governmental power and the individual, it opportunity to cross-examine Crown mittal are being committed for trial, the is left only with the function of enforcing witnesses before trial: see Barton v R remedy lies in a tightening of the legislative conformity, ensuring that the minority (1980) 147 CLR 75 at 105–106, the requirements for committal or a more lib- comply with the wishes of the majority and views in which are reflected, effec- eral exercise of the nolle prosequi power. settling arguments between individuals. It tively, in the ‘Basha’ inquiry and in would seem, this is where our ‘reformers’ the enactment of s.11 of the Crimes ABOLITION OF ‘DOUBLE JEOPARDY’ are heading. (Criminal Trials) Act 1999; (ii) It will by reason of the ‘Basha’ princi- At the same time as the DPP talks about abolishing committals, the Attorney is ple and the operation of s.11 add con- THE DUTY OF COUNSEL siderably to the work of trial courts making noises about abolishing the ‘double – in effect, it will remove the commit- jeopardy’ principle. While it cannot be disputed that counsel’s tal to the County Court or Supreme One has to ask why there is this thrust primary duty is his or her duty to the court Court; to abolish the rights of the individual. It is or that that duty must prevail over the duty (iii) It assumes that the cost, anxiety and all done, of course, in the interests either of to the client, matters recently raised in stress of individual accused, who efficiency or ‘protection of the community’. CLE lectures seem to suggest that case under the present system would be It would seem that in the eyes of those who management considerations should pre- discharged at committal, is of little or would ‘reform’ the law in this way the com- vail over the duty to the client. This may no importance. munity is not composed of individuals but be a mistaken impression, but if it is not, it

4 VICTORIAN BAR NEWS Summer 2008 / 2009 represents a very clear departure from the others who indicate that the thrust of Bar working with Peter Heerey has continued principles of adversarial litigation. News is anti-feminist. with Gerry. Cases do take too long, not only because In respect of the publication of a letter Finally Judy Benson was appointed untenable points may be taken, but also in a recent issue of Bar News, one of our third editor in 2000. Many thought that because of inefficiency in preparation and correspondents took us to task saying the appointment of a female editor would the inability of some advocates to argue ‘Even the Herald-Sun checks its facts cause some problems for two male editors concisely or limit examination or cross- before publishing’. somewhat set in their ways. But quite the examination to the matters in issue. This A driver who has in excess of 1,200 contrary. Judy, through her background is not, however, a problem to be solved by people sitting in the back seat, only half of in legal publishing, brought forth ideas moving gradually to an inquisitorial system whom can refrain from giving advice, will and enthusiasm to the magazine. The or by restricting counsel to the ‘best points’ eventually, and inevitably, get out of the triumvirate has been a success. There has of the party’s case. Often points seen by car, shut the door and say ‘you drive it’. not been a deep philosophical disagreement counsel as secondary end up providing the Editing Bar News has been fun and in- between the editors. basis for the ultimate decision. teresting. It is now time for a new driver Much of the work of the editors is mun- There is much to be said rather for the or, perhaps, some new drivers. dane. Much time is taken up chasing copy. use of written briefs in the form used in GERARD NASH Strangely there are not many barristers the United States, a docket system as used who volunteer to write, and even when in the Federal Court and judicial interven-  nailed down, getting an article written for tion in the course of running, to indicate the deadline is often difficult. Photographs that a point is regarded as prima facie arrive from unknown functions without A FAREWELL untenable or prima facie accepted at an words, and writers and names for captions early stage in the proceeding. It is hard to believe that you will do any- must be found. thing for as long as 22 years. Even today it The Bar News and its editors have come  is hard to believe that I have been an editor in for criticism over the years. Some of it of the Bar News since 1986. The years blur was justified – a lot was not. There have into one, just like the 30 years of being a been problems with proofreading, and, DEPARTING THOUGHTS barrister. yes sometimes the person in a photograph As readers probably know, each of the edi- It is time to hand over the reins to is not who the caption says he/she is. But tors takes it in turn to write the Editors’ someone younger, fresher and full of new what is certain is that much more thought Backsheet. The editor writing this backsheet ideas and enthusiasm. It is not as if over must be given to anything that could be proposes to retire after this issue. There are the 22 years there have been queues of said to be controversial. A quick look at three reasons for this. (1) Ultimately one barristers anxious to take on the mantle of the editorials of the magazine over the last runs out of ideas. It is time for a fresh mind editor. But now is the time. 22 years shows that exchanges of views and or minds and new thoughts and new ideas In 1986 David Byrne QC (as he then ideas which may have been acceptable, to propel Bar News forward. (2) The work was) and David Ross QC decided to give would not be tolerated today. Anyone involved in producing Bar News takes up a the editorship away after putting in a great who witnessed the 1984 Bar Theatrical considerable amount of time and other pri- deal of work. I was a youngish barrister on Review would know that much of the orities now prevail. (3) Although many the Committee and it came my way – a bit satire and humour of that show could not members of the Bar appreciate the content out of the blue. be reproduced today. of the journal and express that appreciation After one editorial on my own Peter That is a sign of the times. Perhaps the to the editors, their number is exceeded by Heerey QC (as he then was) was appointed Bar News should avoid controversy. Per- those who refer only to the defects – and joint editor. The magazine began to change. haps it should simply become a ‘trade there are defects. Sometimes this detracts David Wilken, a former editor of the magazine’ reflecting the Law Industry. very much from the job satisfaction of pro- Law Institute Journal, was appointed pub- That is for the new editors to decide, and it ducing the journal. lisher and following a commercial decision can only be hoped that the new editors re- Amongst the criticisms we receive are (not approved by all) to be in charge of main as unpaid members of the Bar, and mistakes in captions. It is common for a advertising to offset the increased cost of not ‘professional editors’ or persons drawn particular group to ask for a photographer a larger magazine. Over the years, until from the ranks of the Bar bureaucracy. to attend their ‘party’ but then not to David’s untimely death two years ago, The Bar News is an official organ of the produce any script to go with the photos. there were inevitable disagreements over law. It has a statutory responsibility to print Even when the script does arrive, in the design and content of the magazine, its the outcomes of the Legal Practice Board many cases it is left to the editors to try to size, the number of photographs and the and its relevant orders under the Legal identify people and provide captions for increased use of colour. These debates Profession Act 2004. the photos. resulted in the present format. We all It is the only tangible object a barrister There are those who say there are ‘too worked well together. receives for the ever-growing Bar subscrip- many articles about women barristers’. After Peter Heerey’s appointment Gerry tion. A tiny and niggardly section of the This is because, on the whole they provide Nash QC was appointed joint editor in Bar thinks it costs too much – but they are us with the material to print. There are 1991. The close relationship I experienced in the minority.

VICTORIAN BAR NEWS Summer 2008 / 2009 5 And so the three editors have decided to spent on each issue, and generally hard on the editorial role I really had no idea resign. It is not out of anger, or because of work, but the ultimate reward of making what would be involved, though with two any particular thing. We just feel it is time a real and lasting contribution to the Bar decades spent in the publishing world to go. Perhaps some of the fun has gone. and achieving an insight into what goes prior to coming to the Bar I felt pretty But being editor has meant meeting so on at it – not that we could ever publish confident that I could deal with whatever many brilliant and interesting people and even a fraction of the intelligence that we was tossed up. The reality of course is being given the opportunity to write and gathered. I was astonished to discover very different when one compares a full- edit about the great profession which is the how much went on behind the scenes of time position in a publishing house with Victorian Bar. what we know as life at the Bar: how many a demanding deadline-driven job which is PAUL D. ELLIOTT members of counsel devoted themselves overlaid on what has principally been, in unstintingly to good causes, whether it my case, an appearance practice, much of  was gathering computers and equipment it spent in country Victoria. My colleagues to send to impoverished schools in remote – who welcomed me into their orbit and Papua New Guinea, or setting up a duty who were pleased to have an extra pair of IT’S TIME lawyers scheme, or volunteering for work helping hands and source of ideas – were When Robin Brett QC, then Chairman of out of hours at community legal centres, to wonderful to work with. However we have the Bar Council, patiently and persistently pick three examples from many at random. become increasingly overwhelmed by the induced me to the view – using his not The social life of the Bar, along with its demands of the editorial role, the lack of inconsiderable powers of persuasion – sporting prowess and achievements, has resources to support us, and the time we that ‘it was time’ to accept the invitation been well documented. Not so obvious are have to devote to it outside our practices, to join the editorial duumvirate of Bar the follies, foibles and vanities, the many not to mention the fact that others do not News, thus making it a triumvirate, the phone calls and emails complaining about appreciate the reality of a deadline as much thought did, albeit fleetingly, flicker across a comma after a name instead of a full point, as we do. my mind that this might be acceptance of requests for numerous copies of one’s photo So again it is time, this time, time to a poisoned chalice. I was entirely wrong for friends and relatives, complaints that a move on and let the task renew and refresh about that. The cup runneth over for seven photo did not capture one’s best side… Oh with other voices and other ideas. It has years instead with a great deal of pleasure, well, we are only human. And fallible. been a great ride and the view has been fun times, immeasurably long hours It would be true to say that when I took unforgettable. JUDY BENSON 2009 Your Legal Directory and Diaries

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LIVDiary_2H_VicBar.indd 2 10/09/2008 1:26:59 PM 6 VICTORIAN BAR NEWS Summer 2008 / 2009 CHAIRMAN’S OUTLOOK

Our strong Bar will face significant challenges in 2009

THE STRATEGIC PLAN AND THE in chambers outside the BCL system are STRATEGIC AND OPERATIONAL fully appreciated and appropriately acted REVIEW upon. This new committee has met regu- larly and will continue to do so. I begin by acknowledging the substantial contribution of Peter Riordan SC in his term as Chairman. I single out two projects CHANGES IN THE CONSTITUTION because of their importance and potential OF THE BAR COUNCIL long-term effects and benefits. Peter over- saw the development by Mark Moshinsky There has been substantial change in the SC and his Committee of a comprehensive constitution of the Bar Council in 2008. Strategic Plan for the Bar. He also initiated In May, Paul Lacava SC, who had been the Strategic and Operational Review of Senior Vice-Chairman in the previous the Governance and Administrative Struc- Bar Council, was appointed to the County tures of the Victorian Bar and Barristers Court. In June, Martin Grinberg, who was Chambers Limited. a member of the previous Bar Council, The implementation of the Strategic was appointed to the Magistrates’ Court. Plan is underway and initial decisions The Bar thanks Paul and Martin for have now been made by the Bar Council their substantial contributions to the Bar in relation to the key recommendations in Council and the Bar; congratulates them the Strategic and Operational Review. on their appointments; and wishes them all the best in their new judicial careers. I would also like to acknowledge the BARRISTERS’ CHAMBERS LIMITED The Council has decided that BCL commitment and contributions to the Bar There has been much in the press about should continue to be run by an independ- Council and the Bar of Terry Forrest QC, BCL, and some comments have been ent Board mainly comprised of barristers, Fiona McLeod SC, Jenny Davies SC, Justin critical of BCL’s performance over the and that BCL should engage a Managing Hannebery, Tony Burns, Daniel Crennan, years and questioned the benefits of the Director to report to that Board. The and Miguel Salas – all of whom left the BCL business model. Council has resolved to clarify the policies Council in October 2008. BCL has always been devoted to provid- it seeks to have BCL implement and work It is my pleasure to welcome the new ing affordable and accessible accommoda- toward. The Bar Council is also developing members of the Council: Paul Anastassiou tion to barristers at a competitive rate, and protocols covering the Bar Council’s rela- SC, Cameron Macaulay SC, Paul Connor, in doing so has been benign landlord. It is tionship as the governing body of the Bar Matt Walsh, Kim Knights, Simon Gannon through BCL and its provision of cham- as a whole with BCL. and Kim Southey. bers that this Bar has acted in seeking, to the degree it can, to constitute itself a THE INDEPENDENT CHAMBERS BAR OFFICE STAFF DEPARTURES Bar without barriers to entry – economic, COMMITTEE OVER THE LAST BAR COUNCIL social or based on connections. YEAR I think the BCL product is a good one The Bar Council has established an Inde- and I believe that the majority of our pendent Chambers Committee to ensure I acknowledge, and express the Bar’s members will continue to see the benefits that the perspectives and views of barris- gratitude to, the Bar Office staff who have of taking chambers through BCL. ters who have chosen accommodation left over the course of the last Bar Council

VICTORIAN BAR NEWS Summer 2008 / 2009 7 year: Pamela Dempster, Elizabeth Rhodes, year that, in Victoria, this ceremonial has LEGAL AID FUNDING AND FEE Katie Spencer, Ross Kennedy, Barbara been extended to include the Family Court SCALES Walsh, Mei-Leng Hooi, Debbie Jones and – a very welcome addition. Another particular challenge is the crisis Deborah Morris. On behalf of the Bar, I congratulate in Victorian criminal law legal aid funding, I would like to add particular thanks the new silks and wish them well in their and in overall Commonwealth funding to to Barbara Walsh and Debbie Jones, who future practice as members of the Inner Victoria Legal Aid. each served the Bar for 20 years, and to Bar: Ross Middleton SC, Philip Jewell SC, Deborah Morris who served for a total of John Dickinson SC, Craig Harrison SC, eight years. Joshua Wilson SC, Douglas Trapnell SC, COMMONWEALTH FAMILY LAW Barbara Walsh joined the Bar Adminis- Maryanne Loughnan SC, Michael Tinney LEGAL AID FUNDING tration as Readers’ Course Co-ordinator SC, Caroline Kenny SC, Samuel Horgan The Bar joined with the Law Institute and became Manager, Legal Education. SC, Adrian Ryan SC, Michael O’Connell earlier this year in serious representations Barb managed Continuing Legal Educa- SC, Sturt Glacken SC, and Christopher to the Commonwealth – and, indeed, to tion seminars and the transition into Townshend SC. every Victorian Senator and Common- Compulsory CLE. With the late Robert wealth member – and in public statements Kent, Barb was the driving force in the at a media conference – over the serious establishment of the Bar’s Advocacy Train- MEETING THE CHALLENGING AND inequities in Commonwealth funding to ing in the South Pacific – and, from then Victoria Legal Aid. VLA cuts in Family on, its continuation and growth. Debbie CHANGING ENVIRONMENT OF PRACTICE TODAY Law grants include wholly eliminating Jones began as Ed Fieldhouse’s Secretary funding for any independent children’s and was, for 17 ½ years, the Investigations My personal agenda and aspirations this lawyer to attend court to instruct counsel Officer, then Manager, of the Ethics Com- year are to work with the Bar Council to – seriously disadvantaging children most mittee. Deborah Morris ran the Readers’ better position the Victorian Bar in the marginalised and disadvantaged, who are, Course in recent years, and was of enor- challenging and changing environment of by definition, incapable of giving instruc- mous assistance to me personally as the the practice of law in Victoria and in the tions to counsel and who are probably immediate past Chairman of the Applica- developing national profession through- most in need of representation. tions Review Committee. out the country. Those challenges include a legal landscape in which legal firms are competing with barristers in areas of work CRIMINAL LAW LEGAL AID THE NEW SILKS where barristers were formerly much more FUNDING One of my earliest ceremonial functions as heavily involved – for example, in the de- ‘In Crime’, the PricewaterhouseCoopers newly elected Chairman of the Bar Council velopment of case concepts and the struc- independent report commissioned by the was to represent the Council and the Bar turing of litigation, in drafting and settling Bar, was publicly launched last month at in accompanying those barristers who had pleadings, in settling witness statements the Law Council of Australia National been appointed Senior Counsel in and for and in pre-trial appearance work. We, as Access to Justice and Pro Bono Confer- the State of Victoria as they announced counsel, bring to every task the highly de- ence in Sydney. That report documents the their appointments at the ceremonial veloped legal skills and experience of the inadequate legal aid scale fees for counsel sittings of the Supreme Court, Federal specialist independent advocate. We are in criminal matters, and the decline in Court and Family Court. This is the first cost-effective and competitive. Magistrates’ Court scale fees by 40%

8 VICTORIAN BAR NEWS Summer 2008 / 2009 maintaining and increasing a Victorian Bar Continuing Legal Education – now competitive edge. mandatory Continuing Professional Dev- ��������� We are also working to build Continuing elopment – and of consultation in their Professional Development offerings in the respective areas of practice with govern- increasingly necessary skills of building � � ������������������������� ment and law reform agencies. The Crimi- and managing a practice at the Bar. nal Bar Association has long had its own � � �������������������������� Barristers need not only training but website, and is even separately incorpo- ������� support. Philip Priest QC and Dr Michelle rated under the Associations Incorporation Sharpe are working on developing the Bar’s � � ���������������������� Act 1981 (Vic). Health and Wellbeing support structure The Commercial Bar Association, � � ���������������������� and activities. CommBar, launched its own website in � � ������������������������� November, 2008, thanks to CommBar JUSTICE STATEMENT 2 AND President Peter Bick QC and his team, in CONSULTATION WITH particular Maryanne Loughnan SC and GOVERNMENT William Lye. The website showcases what ���������������� the Association and its members have to The Victorian Attorney-General has re- offer. ��������������������������� cently issued his Justice Statement 2, and CommBar is also working with the Bar ������������������� the Bar looks forward to a continuing role �������������� Council to improve awareness, particularly in consulting with the Justice Department, amongst corporate and government ��������� including making what contribution we counsel, of the Bar’s special attributes of �������������� can to the Attorney’s work in this area. independence, expertise and commercial Philip Priest QC, Dr David Neal SC, John competitiveness. Champion SC and other members of the Criminal Bar Association have for years been members of the various Justice De- PRO BONO WORK AND LEGAL AID partment working groups on trial and against the Consumer Price Index over the Our Bar has a proud record of very princi- last 15 years. The Report documents the appellate aspects of Criminal Law and Pro- cedure. Members of the relevant subject pled and generous pro bono contributions extent to which criminal law barristers to the justice system and the Victorian have been subsidising the criminal justice area Bar Associations continue to review and comment on proposed new legislation. Community. As the Pricewaterhouse- system in Victoria, and the understandably Coopers Report shows, those conscien- sharp decline in the number of barristers tiously committed to legal aid criminal law undertaking predominantly criminal law PROPOSED AMENDMENTS TO THE work do so to an unreasonable and dispro- work. This is an access to justice issue – an BAR CONSTITUTION portionate extent. issue that has the capacity seriously to The last Bar Council began work on Both through the Victoria Bar Legal compromise the administration of crimi- reviewing the Bar Constitution, and Vice- Assistance Scheme and independently, nal justice in this State – all clearly matters Chairman Mark Moshinsky SC is finalising most members of this Bar would, I suspect, of Government responsibility, both State that work. be doing more pro bono work than the 35 and Commonwealth. The proposed amendments are, for the hours per annum that is the aspirational Jointly with the Law Institute of Victoria, most part, harmonising the existing Con- goal of the independent National Pro the Bar spoke out on this issue at a public stitution with the Associations Incorpora- Bono Resource Centre for every legal meeting on the forecourt of the County tion Act 1981, the Legal Profession Act 2004 practitioner. Court towards the end of November. and current practice. I would like to see a formal commitment A clean copy of the Constitution incor- from all members of the Victorian Bar to COMPETITIVE EDGE, THE READERS’ porating the proposed amendments; an an annual pro bono effort. This would COURSE, CPD AND HEALTH AND explanatory memorandum; and, so as to probably have the effect of increasing the WELLBEING identify the proposed textual changes, a already very substantial pro bono contri- tracked-changes version of the present bution of our Bar and would also enable The practising list of the Bar is now Constitution will be posted on the Bar the Victorian Bar to more accurately quan- over 1,700. In the current environment, website in February to provide members tify its contribution to the community in individual excellence is not enough – the with an opportunity to make any com- this regard. Bar as a whole needs to have, and be seen ments or suggestions before the Bar Coun- JOHN DIGBY as having, a competitive edge. cil finalises the proposed amendments. December 2008 To that end, the Bar Council is review- ing the Readers’ Course – looking towards a degree of consistency with at least the THE SPECIALIST BAR ASSOCIATIONS Eastern States on the principle of legal The specialist subject-area Bar Associa- practice being increasingly national – while tions have long been the foundation of

VICTORIAN BAR NEWS Summer 2008 / 2009 9 ATTORNEY-GENERAL’S COLUMN

Changing the court process

This year we celebrate the 25th anniversary the lessons of recent years to tackle the of Victoria’s public prosecution service way the law operates as a system, and this – the first of its kind in Australia truly need for systemic reform heralds the next independent of Government. As some stage in the revolution: Justice Statement 2 readers may have heard me remark at (JS2). the commemorative dinner, of course, Reducing the cost of justice and creating much has changed in the legal system an engaged and unified court system since the birth of the DPP. The number are its themes, the first acknowledging of prosecutions has grown dozen-fold that we must resolve disputes in a more and resources in similar terms; crime has cost efficient and appropriate way. From become more complex, with laws evolving enabling judges to better prevent abuse of in response; better police resources and process; to protocols that encourage ADR developments in technology have affected prior to litigation; through expanding the nature and number of prosecutions; neighbourhood mediation; an ADR Pledge and reforms encouraging victims to speak by firms committing to mediation as a up are all factors rendering prosecution first port of call, rather than the fist on the work unrecognisable to earlier days. table as prelude to inevitable litigation; to Over the last nine years, in particular, greater use of judge-led mediation – these Victoria’s courts and criminal justice sys- are just some of the projects the JS2 will tem have undergone unprecedented explore. change – the face of the judiciary trans- Further, under the banner of JS2 the formed, the most sweeping review of our Government also intends to develop a criminal law framework ever undertaken demands – to embark not on evolution but clear and consolidated Victorian Courts and a record $198.3m in this year’s Budget on a revolution in the way that justice is Act to provide statutory vision, consistent alone targeted directly at delay; to name delivered. structure and procedures; while we will but a few. This is all part of the progression Essential to this revolution has been the also consider Crown Counsel’s report that recognizes that human behaviour, the Justice Statement process. Only four years on a Single Criminal List that could see law that regulates it and the system that old, all of the first Justice Statement’s initi- resources pooled and systems streamlined, applies that law will always continue to atives have been or are being delivered, with court users the beneficiaries. evolve. with victims prioritized; problem-solving Speeding up processes and reducing As I’ve stated, however, legal culture has jurisdictions expanding; and national cost and delay; seizing more control of liti- failed to evolve with it, soothed as it is by firsts, such as the NJC and the Charter of gation; dispensing with the ego of epic its adversarial comforts. Yet the law is Human Rights and Responsibilities, in full advocacy – these are all examples of the designed for the benefit of the community swing. Having righted significant wrongs cultural changes that can occur in both the and should not be a parlour game for those and fashioned a framework for a fairer civil and criminal context to make every more interested in ritual than reform. It’s Vic-toria, however, we have come now to wheel in the machine run more smoothly. time, then, to look beyond old boundaries an important crossroad. It is all part and parcel of shaping a mech- that cannot reasonably be expected to The choice before us is this: we can con- anism that functions as a genuinely unified house the complexity of 21st century tinue to work issue by issue or we can use system – of discarding the silo mentality

10 VICTORIAN BAR NEWS Summer 2008 / 2009 and the suspicion that the law is the per- Victorians – those for whose benefi t the sonal fi efdom of those privileged enough system exists – deserve better and they A Boat Licence issued out of the Wollongong to practise it. know it. Quite simply, vision is what is Offi ce of NSW Maritime, being a ‘licence to Well, with privilege comes responsibility needed – yet without cultural change, the navigate at speed under the Water Traffi c – an obligation to embrace and imagine vision cannot be implemented. Govern- Regulations NSW’, bears the following better ways of serving the law. Th is means ment can drive reform but the engine must notation: that, while changes at the prosecutorial be fuelled by an equal determination from end are essential, it is just as vital that we those at the coal face – those who apply the OPERATING RESTRICTIONS: keep people from entering the revolving workings of the law every day. Th e role of This licence does not permit the licen- see to operate a personal watercraft legal door in the fi rst place. Th is may mean Government is simply to provide adequate (PWC) at any speed. harnessing the power of peer pressure resources and the legislative framework – that so oft en gets kids into trouble to get the tools for a better system. It’s for the For Young Adult licences additional them out of trouble instead. It may mean trade’s practitioners to seize them and craft restrictions apply. Please refer to the current NSW Boating Handbook. specialist intervention in the area of mental better results for the population they are health, justice acting as a gateway through engaged to serve. Gratis licences must only be used for which people can access treatment, rather Th is, then, is where we all have a role to offi cial purposes. than be lost to alienation. play – whether as leaders of the profession, OPERATING CONDITIONS: It means thinking creatively, rather as members of the judiciary, as people Any variations to medical condition than resorting to the call for mandatory who are passionate about the law and its (including eyesight) or partial total sentencing to which some are so readily place in the life of a democracy. I encour- deafness, colour blindness, or other reduced. It also means recognising that, age readers to examine the JS2, to engage physical disability likely to affect your though crucial, resources are not the cure with its possibilities, to stand up to those effi ciency to navigate a vessel must be all – despite the default position of those who would deny the need for reform advised direct to the NSW Maritime who think that any issue can be resolved and to embrace the potential of a better immediately. by throwing more judges in its direction. way of doing justice for all Victorians.

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VICTORIAN BAR NEWS Summer 2008 / 2009 11 WELCOME Supreme Court

Master Simon Gardiner

Address by John Digby QC, Chairman of the Victorian Bar Council, on Thursday 13 November 2008

I appear on behalf of the Victorian Bar to • Your brother Andrew is an accountant; congratulate Master Gardiner upon his and appointment as a Master of this Court. • Your sister Janet is in the diplomatic The occasion gives me great pleasure. service, and has served as Australia’s I also note that this appointment is the ambassador to Syria and Portugal. first appointment of a Master since the Your aunt Clare is in the Loretto Order Victorian Government’s recent reforms to and your uncle Paul is a senior Australian the role of Supreme Court Master. Jesuit. He is the ‘Postulator’ in the process Master, you served articles and then towards the canonization of Blessed Mary worked as a solicitor with Ellison, Hewison MacKillop. and Whitehead. Thereafter, you were an The Bar believes that it is fortunate for associate to his Honour Judge Dixon in the the Law and for this Court, that – in County Court for a further 18 months. You the rich variety of vocations pursued by have practised as a barrister, in many facets your conspicuously talented family – you, of that great profession, for 25 years. Master, chose the Law. You have also served on the Law Coun- You were educated at St Roch’s Parish cil of Australia, Insolvency and Recon- School in Glen Iris; at St Kevin’s College in struction Law Committee, and the Dever Toorak; and at Monash University – from List Committee for ten years, and you are which you graduated Bachelor of Econom- an experienced mediator. ics in 1977 and Bachelor of Laws in 1978. wine’, you passed on to the Judge your keen You bring this substantial foundation of You returned to earn a Graduate Diploma appreciation for another of life’s special experience in practice to this Court. in Commercial Law in 1982, and later a things, the Peugeot motor car, apparently But let me begin at the beginning. You Master of Laws degree. One might note a something of a passion in your former were born in 1956. You were the sixth child strong academic side to you, Master. life. of Dr John, and the late Marcelle, Gardiner. You were President of the Monash Law Alas, you no longer drive a Peugeot. Your father was a physician in general Students’ Society. However, the Bar’s best Some of your more perspicacious friends practice, a special level of medicine. efforts have failed to uncover anything see a connection between this abandoned Thorough research has revealed that all controversial during your Presidency. passion and an incident on the freeway in five of your siblings have excelled. And the You served articles at Ellison, Hewison which the Peugeot you were driving burst variety in their vocations is notable: and Whitehead (now, Minter Ellison). into flames. • Your brother John is an agricultural sci- As mentioned, at the conclusion of You read with Gerry Nash – who was a entist who has spent 40 years working your early career at Ellison Hewison and Professor, and Dean, of the Monash Law to improve Indigenous Affairs in the Whitehead, you became the associate to School when you were a student. Northern Territory and Western Aus- his Honour Judge Dixon of the County More recently enrolled barristers should tralia; Court. understand that Professor Gerry Nash QC • Your brother Paul is a biochemist work- In addition to the quality of your work, is the distinguished colleague who walks ing in research and development with Judge Dixon recalls with pleasure that you the corridors of our Bar bearing a strong the Commonwealth Serum Laborato- shared a healthy interest in certain aspects likeness to Merlin the Magician. ries; of viticulture. Master, you will well recall that your • Your brother Philip is a veterinary sur- As well as oft affirming his Honour’s first chambers were in Four Courts – now geon in Warrnambool; axiom that, ‘Life is too short to drink bad re-branded ‘Douglas Menzies Chambers’.

12 VICTORIAN BAR NEWS Summer 2008 / 2009 Upon the opening of Owen Dixon one could be confident will thrive during so are your wife, Helen, and children, Eric Chambers West, you applied for a modest, the current economic troubles. and Astrid. Your love of the Peugeot has some would say sensible, internal room on I now return to your academic bent. been replaced , I am told, by your affection the 13th floor. Few barristers make time to pursue part- for your 4-wheel-drive Land Cruiser. Your move to a place which accommo- time graduate academic work – mostly Another of the Master’s attributes is cul- dated more silks appeared to pay off. One by course-work related to their areas of ture. You are passionate about the music can imagine your joy at receiving a call practice. of Johann Sebastian Bach (particularly from Allan McDonald QC, soon to be However, your 1990 Master’s degree, the cantatas) and seriously knowledgeable Justice McDonald of this Court, at the was pursued via a major thesis titled: about choral music. height of his practice. The Role and Jurisdiction of the Coroner’s For a time, you had your own music Apparently, the conversation went like Court, the research degree that serious program on 3MBS – Morning Melody – at this: legal academics take. 6 in the morning each Saturday. I have to ‘Gardiner?’ You had done mostly sciences at school. say, a 6 o’clock Saturday mornings ‘on-air’ ‘This is Simon Gardiner.’ Your combined degree had been in eco- start sounds to me even less attractive than ‘McDonald here.’ nomics and political science. Your Master’s the comforts of Pilkington’s fishing hut. ‘Yes, Mr McDonald.’ thesis was essentially jurisprudence and You also have the attribute of humour. ‘I see you’ve applied for a very small legal history. You are said to be master of the acerbic internal room on the 13th floor of Owen Of course, Master, you have other at- one-liner: the unnerving, no come back Dixon West.’ tributes. It is reported that you are a true quip, like: ‘I see you’ve ironed your own ‘Yes, I have – and I’m really looking bushman. In the preparation of today’s shirt today.’ forward to the move.’ welcome, I have been shown photos, Another example is reported to be when ‘Well…ah…that’s why I’m ringing you. including a photo of the Enoch’s Point, Big some years ago, people on the 13th floor I was wondering how committed you were River, fishing hut which John Pilkington’s were discussing the upcoming inaugural to that internal room…it’s very small, you father built in 1937. meeting of the Women Barristers Asso- know…and the fact is,…well…I need it Apparently, your wife, Helen, worked ciation, and George Beaumont QC, well for a photocopier.’ with Pilkington on designs for the bee- known member of the Victorian Bar, Not exactly the collegial welcome and hive shaped wood-fired oven which has announced that he had been invited. encouragement you had hoped for. You produced much pleasure over the years. Master, you apparently responded: ‘What, were, however, not deterred and remained Pilkington says he thinks you actually as an exhibit?’ on that Floor in Owen Dixon West there- caught a fish there a couple of years ago. Master, your sound foundation of 25 after. That is not to demean your serious out- years practice at the Bar, good sense of From that modest, some would say sen- door zeal: the Hatter Lakes; the Menindie humour and bushman’s capacity to rough sible, room you established a substantial Lakes; the Australian Alps; re-tracing the it, hold more than some promise of a commercial practice, specializing, in the footsteps of Burke and Wills – the Dig distinguished, long and satisfying service last 15 or so years, in insolvency. Tree, Cooper’s Creek, the Birdsville Track; as Master of this Honourable Court. It is noteworthy that you have now re- Mount Poole; and near Pilkington’s Hut, The Bar wishes you satisfaction and linquished practice in the only area which Mount Terrible. You are a bushman – and happiness in your new role.

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VICTORIAN BAR NEWS Summer 2008 / 2009 13 WELCOME County Court

Judge Mark Taft

Address by John Digby QC, Vice-Chairman of the Victorian Bar Council, on Monday 13 October 2008

I appear on behalf of the Victorian Bar to Herb Feith was a humanitarian, an in- congratulate your Honour on your ap- ternationalist and a peace activist. In the pointment to this Court. 1950s he alone did what is now done by The Chairman of the Bar Council cannot an institution known as the ‘Australian Vol- be here today and has asked me to pass on unteers International’. his best wishes. Professor Feith’s oft expressed statement It’s my very great pleasure, as Vice- to his students inspired them, including, Chairman to speak on behalf of the Bar we expect, your Honour. The Professor’s this morning. statement was: Your Honour had a vocation to service from a young age, however, it took some I was expected to make the world into a time for this attribute to be applied to the better place…I grew up thinking that it Law. You were 38 years old when, in 1988, was important to learn things and search you were admitted to practice. Victoria’s out the truth – but also, and really more recently departed former Chief Justice importantly, to do practical things with Sir John Young was Chief Justice at the the knowledge one got. time. You took silk in 2006, and have now In 1971, you completed an Honours Arts practised law for close to 20 years. degree in History and Political Science – You are a leader of the criminal bar, and and you went into the world to do practical join a number of strong criminal law silks good. was the layout artist. Julian Burnside was who now serve as judges on this Court. You were, for some years, Executive the photographer. Your Honour was educated at Camber- Director of the Western Region Council In those days, the difference between well High School, then at Monash Univer- for Social Development and served on the true radicals and the moderates at sity. the Western Region Community Health Monash was said to be that the true radi- Initially, in the late 60s, you enrolled in Centre Board. cals would call for the Student Adminis- Law/Arts. However, Ian Turner, a family The Western Region Council worked tration Building to be burned down in friend teaching in the History Department, with nine municipal councils. It establish- protest – the moderates were content to told you that doing law was, and I quote: ‘a ed, for example, the Footscray Arts Centre. occupy it. Your Honour was, in that sense, waste of time’. It led the way in establishing Women’s a moderate. ‘I’ve got a law degree’, he said, ‘I’ve never Refuges for victims of domestic violence. In 1983, when you returned to Monash, used it – and nor would you.’ It was not until 1983 that you returned there was virtually no student activism. Your great influences at Monash then to Monash to study law. You worked in the Economics Faculty were Professors Ian Turner and Geoffrey You came back to a very different and you worked your way through the law Searle in History – and Professor Herb Feith Monash. course. in Political Science – sadly, all now dead. In the late 60s and early 70s, Monash You knew you wanted to be a barrister. Your father, who is here today, came to students were politically active and You took the Leo Cussen Practical Training Australia as a refugee from Nazi Germany. passionate. Course, got admitted, and came straight to Remarkably, Herb Feith also came, with his You had been co-editor with the late the Bar. parents, as a refugee from Nazi-occupied Philip Hetherington, of the renowned You knew also that you wanted to do Vienna. student magazine, Lot’s Wife. Tony Howard crime. Robert Richter QC moved your

14 VICTORIAN BAR NEWS Summer 2008 / 2009 admission. You read with Tony Howard, Your Honour helped identify and sub- example, in the long-running prosecution now Judge Howard of this Court. stantiate the detrimental effects on the of the notorious Frugtniet family. You began in the Magistrates’ Court, criminal justice system which arise in You were the constant in the prosecu- but also did some industrial work – briefed the absence of adequate and appropriate tion – led first by Jeremy Rapke QC before in that by, amongst others, Julia Gillard – remuneration for those seeking to defend he was appointed a Victorian Crown Pros- then at Slater & Gordon. impecunious accused persons. ecutor, then by Tony Howard QC, and The industrial work paid a lot better Your Honour worked to identify and finally by Lex Lasry QC. – but your interest was in crime. substantiate the serious capacity such fund- Your three sons – David, Will, and Mat- You had five Readers: Peter Matthews, ing shortfalls can have in compromising thew – all won selective entry to Melbourne Karl Brandon, Frances Dalziel, Rebekah the administration of justice and compro- High School. All are now at university. Sleeth and Sascha Gelfand. mising those who practise as barristers in You and your wife, Ann Tregear, have All are still in practice at the Bar. All such a system. made a substantial contribution to Mel- praise your dedication as a mentor – your Your Honour has conducted a number bourne High School. personal generosity, and your willingness of high-profile criminal trials for the de- You served on the School Council for to devote hours to working with them fence. You have prosecuted in professional six years – as President of the Council for – and your ongoing interest and ongoing disciplinary tribunals. Your Honour has two of those years. In 2006–07, you were support. been involved in weighty and very stress- Council President, and your wife Ann You also served on the Legal Education ful trials relating to alleged terrorism. Tregear was President of the Parents and and Training Bar Readers Subcommittee You tell the story of a conference with Friends Association. for nine years, and taught in the Readers’ a well-known Australian convert to Islam. Your Presidency covered the School’s Course. You did the weekend workshops; Your learned leader, Lex Lasry, gave certain Centenary Year celebrations in 2005; also you did criminal law moots. advice to the client, which you respectfully the search for, and selection of, a new You served on the Executive of the supported. principal following the untimely death Criminal Bar Association – this year, as The client asked whether he could seek of the long-serving, visionary and much- Vice-Chairman. another opinion. Visibly taken aback, your loved principal, Ray Willis; construction By all accounts your Honour has made learned leader said, ‘Well…of course’. of the School’s new Art Studies Centre; a very substantial contribution to the im- To your joint astonishment, the client and a series of delicate negotiations with portant work of this Association and the prostrated himself on the floor, facing government ministers and advisors. achievement of its goals. One very signifi- in the direction of Mecca. Muttering in And you have continued to serve as a cant example is your work with Dr David Arabic, he rose and fell a number of times. Director of the Melbourne High Benevo- Neal SC of our Bar, in relation to the Price- This went on somewhat interminably. lent Foundation. Waterhouse Report dealing with the on- The tension in the room was palpable. As one of your Readers has said of going serious inadequacies in relation to Finally, the client arose and said he you: ‘Mark takes a robust view of most legal aid fees in criminal matters – and the would follow your advice. things, and is fond of characterising his very considerable extent to which barris- Your learned leader was visibly dis- submissions “robust”… and he’s humble ters at our Bar, particularly junior criminal pleased at being second-guessed in this – well… as humble as a silk can be.’ barristers dedicated to representing the manner. On behalf of the Victorian Bar, I wish underprivileged in our society are You were, it’s said, gently amused. your Honour joy in your appointment, and involuntarily subsidising the administra- You did, in earlier times, prosecute for long, satisfying and distinguished service tion of justice in Victoria. both the State and Commonwealth – for as a judge of this Court.

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VICTORIAN BAR NEWS Summer 2008 / 2009 15 OBITUARY

Farewell Sir John Young

On 16 October 2008, a State Memorial Service was held to commemorate the life of a great Chief Justice who over a period of some 17 years stamped his personality and ethos on the Supreme Court of Victoria. An erudite man, a civilised man and a simple man, he represented all that is best in the common law system of justice. His personal attributes were many and are summed up in the eulogies given at St Paul’s by two of those who knew him best.

Eulogies at St Paul’s Cathedral, Melbourne, on 16 October 2008 at the State Memorial Service for The Honourable Sir John McIntosh Youngac kcmg.

Michael Collins Persse

ohn Young was sceptical of the word of the great influenza epidemic, he was the ‘eulogy’. Scholar that he was, he took first child – with sisters, Nora and Evelyn Jits Greek roots seriously, with the – of a Scottish father, George David Young, implication that a eulogist must speak and a mother, Kathleen Mildred (known as only well of the departed. Quite what Kay), also by birth surnamed Young, from was a better term we couldn’t decide. The a family with roots in the Scottish end of opposite is presumably a kakology, such as Ireland, the North. Semper juvenis was his one English politician of dubious morals appropriate motto, and Scotland was ever- but residual Christianity demanded, present in the weather of his soul, along leaving instructions that at his funeral with the Australia, particularly Victoria, to he should be excoriated and all his faults which the shipping industry had brought exposed. I can’t, however, in either whimsy his father in 1912. To many, John seemed or honesty, move even an inch in that English – some said ‘more British than the direction, for John was so patently a good British’ – but he became, I believe, a citizen man – one possessed of such a rare nobility of that polis which transcends nationality. of character – that any reservations about At the same time he was especially, and speaking anything but well of him are more or less equally, at home in Australia unthinkable. So a eulogy it is, with all my and the United Kingdom. In his being, heart. quite as much as in anything he did, he Born as he was late in 1919, the year of represented the best of what we have the Treaty of Versailles that for good and ill inherited from the British Isles: and, while set the pattern of his world, and the year too this was partly the result of his years at

16 VICTORIAN BAR NEWS Summer 2008 / 2009 Oxford and in the Scots Guards, it was own vision of greatness, and challenged met his future wife, Elisabeth, though also, I would say, at the core of him from them to high endeavour and public courtship was to come later and marriage childhood on. service, while leaving them in no doubt not until 1951. John was grateful that he Semper juvenis: always young. He be- that the tasks before them would be huge had had this and a later opportunity to get came learned, and wise – and knowledge- ones, requiring great effort from them to to know Dr Twining, who worked at the able, as any great judge must, in the ways supplement and channel the divine grace Royal Infirmary in Manchester, and who of the world. But the innocence of child- in which he strongly believed. was to die unexpectedly in 1939. Only a hood remained: the essential kindness, In 1995 John stood where I stand now day or two after war was declared on the growing into compassion for those in trou- to pay tribute to Sir James Darling in third of September that year, when John ble; an instinct for the good in even the the eulogy at one of the four memorial had finished his first year of law – the most unpromising places; an intense services held for Jim in Australia and Honour School of Jurisprudence at Oxford desire for the truth – truth that includes England. There were several eminent – he enlisted in the horsed cavalry and was the often unpalatable facts but also the Geelong Grammarians and others who told to await call-up, but that, because he kernel from which something better may could fittingly have done so, but John was was only 19, there would be a delay and emerge. He was anything but naïve, and the pre-eminent spokesman for Victoria he should return to Oxford. He made an when, recently, we discussed optimism on that occasion. To Geelong Grammar attempt to join the Australian Army by and pessimism he declared himself a School his loyalty and affection remained going to Australia House in London, but pessimist – which I took to mean, in John, ever-strong, and, as well as other service found that he could do it only by returning to not so much one for whom things can only generously given including speeches on Australia at his own expense. Shipping and get better as one who expects, and sees important occasions, he was a member money were alike unavailable, and in the clearly, the evidences of fallen human of the School Council in 1974 – briefly event a second year at Brasenose followed, nature but does not accept them as final: because of his becoming a judge that year, where he became close to the Principal of one who will work and pray for the resto- indeed Chief Justice of the Supreme Court the College, William Stallybrass, known ration of unfallen nature: the regaining of of Victoria and Lieutenant-Governor of the affectionately to virtually everyone at BNC that innocence (very different from igno- State. It gave him and others great pleasure as Sonners from his former surname of rance) that is the ideal, if not the actual, when his son, Tim, served on the School Sonnenschein, which had been changed to condition of humanity. Council for nearly a decade recently; and that of his paternal grandmother in 1917 Geelong Grammar School provided great pleasure, too, that Tim and Anne’s when many others that were German- some of the prime influences in his life two daughters and son – Georgie, Kate, sounding (including Saxe-Coburg-Gotha – most particularly James Darling, who at and Islay – all followed their father to the and Battenberg) were also changed (the the age of 30 began his long headmaster- School, where John loved seeing them – as Sonnenschein family from Austria had ship in the same month, February 1930, well, of course, as seeing them in other in fact been domiciled in England since as John, newly ten, began eight years places, and seeing his other grandchildren 1848). Rather as Darling had done at there as a boarder. In 1937 he was one of – the children of his elder daughter, Jenny, Geelong, Sonners bestrode the College and the two school prefects chosen to lead and Nick Dawes – Caroline, David, Susie, knew every one of its members, most of a new House, Francis Brown (named and Christopher. To Clyde School, too, them very well, and took as much interest for Jim Darling’s predecessor), to which John was important, and he was the chosen in their characters as in their studies. John John, hitherto after Junior House a happy speaker in 1975, his daughter Trish’s last retained a lifelong affection for Oxford member of Perry, transferred his loyalty year there, at its final Speech Day before in general and Brasenose in particular, and, with Dick Lefroy, the Senior Prefect, amalgamation with Geelong Grammar and it gave him and others great pleasure devoted himself wholeheartedly. He was School. when, in 1981, the College bestowed on also a Cadet Lieutenant and secretary of Well instructed before 1930 at Miss him its highest honour by electing him an the Chapel committee, and as a younger McComas’s Glamorgan, John developed Honorary Fellow. He also did so much for boy had represented the school in athletics. as a scholar through the Latin teaching of Oxford in Australia, persuading others to Those eight years saw tremendous growth Kay Masterman, the Greek of John Ponder, support it financially and in other ways, and regeneration in the school as Darling and other influences. He obtained Leaving that he was named by the University a – himself quite pink in politics – stirred honours in Latin and French, helping him Distinguished Friend of Oxford; and he its social conscience and found work for to go on to Darling’s and Masterman’s joined three older Geelong Grammarians, many of the unemployed, not least in own University of Oxford – indeed, to General Sir John Hackett, Sir Alexander a large building program, and brought Masterman’s own college of Brasenose (or Downer, and Sir Vincent Fairfax, in being in the various arts, including music BNC) – in October 1938, after spending honoured with Vice-Presidency of the and drama, from the peripheries of the some months in Germany, learning the Oxford Society. curriculum to the centre of the School’s language, in deference to his father’s The last great corporate influence in life and consciousness. For all his idealism, expectation that he, too, would go into John’s life before that of the law, of which Darling was also a realist, and to those shipping. It was a tense time to be there. Clive Tadgell will speak (as of his later who left school in 1937 he predicted a Late in 1938, accompanying his Geelong public service), was the army. During his dark world, very likely to be engulfed friend Graham Brown to visit the family of second year at Oxford, the adjutant of the again in war. He had excited them with his Dr Edward Twining at Manchester, John Oxford University OTC persuaded him

VICTORIAN BAR NEWS Summer 2008 / 2009 17 to apply to join the Scots Guards, where The Guards Armoured Division had shadowing the last stage of his life, and – he was accepted, in his own words, ‘on lengthy training for the ‘Second Front’. what I think he minded most – impairing the basis of my school and those whom I For a time John was transferred to Brigade his ability to read with concentration. He already knew in the Regiment’. S. M. Bruce, Headquarters and was in charge of was typically gallant in such adversity, and the former Prime Minister of Australia, Headquarters Tanks, with the temporary did all he could to prevent its weighing then our High Commissioner in London rank of Captain. With a reorganization of unduly on others. His family, I know, are (and later Lord Bruce of Melbourne), armoured divisions, the Brigade became deeply grateful for the good care he had helped expedite John’s call-up, and he the 6th Guards Tank Brigade, equipped from doctors and nurses, and from profes- went to Sandhurst at about two days’ with Churchill Tanks, and in July 1944, sional carers and devoted friends – a notice, thus avoiding the usual entry for when the 21st Army Group had established sequel, as it transpired, to the loving and prospective Guards officers through the a bridgehead in Normandy, the Brigade, unceasing daily care he himself had de- Guards’ Depot at Caterham. ‘This is why,’ having crossed the Channel and landed on voted to Elisabeth during the last years of said John, ‘I never did learn to polish my the beaches, had its first battle at Caumont her life when her own need, in dementia boots properly,’ since even Officer Cadets in the break-out from the bridgehead. and disorientation, was great. at Sandhurst had people to do it for them Like so many who served in it, John Clive will deal with John’s legal studies – though I must say I always found John’s – who was mentioned in dispatches for his and career once he was back in Melbourne. footwear to be immaculate. His habitual service in North-West Europe, and received I cannot myself finish my own eulogy punctuality undoubtedly owed something the certificate of the Commander-in-Chief without acknowledging the supreme to his military training: he told me that for good service in France – spoke little of importance to John of his marriage and he learned then to be always ready ‘seven his war, but his succinct account of what family. Elisabeth came to Australia in minutes early’, to allow for emergencies. followed is worth quoting: 1951, to be married to John on October After four months at Sandhurst he 18, after war work herself in the Wrens. passed out early in November 1940 and, After that battle the front opened up a bit, A talented photographer, she had made after two weeks’ leave, was posted, like all the Guards Armoured Division led the ad- pictorial maps of the Normandy coastline newly commissioned officers in the Scots vance to Brussels and Nijmegen, and our in preparation for the D-Day landing, and and Coldstream Guards, to the Training Brigade, after some heavy fighting, was left then gone to Ceylon and Singapore as part Battalion of the Regiment at Pirbright in at about the line of the Seine. I obtained of Mountbatten’s headquarters. Medical Surrey. He was there for most of a year permission to follow the war and was able photography, particularly for teaching except for a six-week interlude at a house to enter Brussels on the day of liberation purposes, followed at East Grinstead, near Aldershot, Mytchett Place, where he and occupy a comfortable hotel bed which where the great New Zealand surgeon was one of five subaltern officers detailed I was told had been occupied by a German Sir Archibald Macindoe was performing to guard Rudolf Hess, Hitler’s deputy and Officer the night before. Our Brigade came near-miracles in skin-grafting and plastic successor-designate, who on 11 May 1941, up in due course and we were digging in surgery and restoring self-esteem to to the general astonishment, had landed for Christmas 1944 at Eindhoven when wounded pilots and others; and then at by parachute in Scotland, near Glasgow. von Runstedt’s advance into the Ardennes the Westminster Hospital. Elisabeth was Apparently Hess was confident of securing required us to look south again. We spent deeply influenced by the dedication she a ‘compromise peace’, his precondition a cold wet winter in Holland, with some had witnessed. After years of devoted to which was the fall of the Churchill fighting, and then eventually we crossed motherhood, bringing up her and John’s government – which, needless to say, the Rhine at Wesel. From there the Brigade children, she felt free to spread her own withstood the challenge. John’s German advanced fairly rapidly, on a line through wings and rediscovered her early love of no doubt helped, but so far as I know Hess Muenster and Hanover, to the Elbe. When acting, going on to appear in productions was already rather depressed and not very we reached Muenster my turn for leave with one amateur group or another and forthcoming, though he did try to escape. occurred, and I went back to England for in a film – always, once John became From Pirbright John was posted to the two weeks’ leave. It was then discovered Chief Justice, under her maiden name of Third Battalion of the Regiment, which that I had picked up pulmonary tuberculo- Elisabeth Twining. Of her and her talent almost immediately on his arrival was sis, and so, instead of returning to Germa- for creating beauty wherever they were, moved from Chigwell in Essex to Tilshead ny, I was incarcerated in a military hospital and her services to the National Gallery of on Salisbury Plain and, to John’s dismay, at St Albans and a sanatorium in Midhurst Victoria, and as his wife and great support converted to armour as part of the newly for most of the rest of the year. I was actu- in his official duties, John was intensely formed Guards Armoured Division. His ally discharged from the Army on 1st proud of her. It was a wonderful marriage, dismay is understandable, for – apart from January 1946, and returned to Australia and together they enhanced and brought his love of the time-honoured, the tradition- in April 1946 in the aircraft carrier HMS intelligence and fun to innumerable al – he also loved horses and riding: a love Victorious. occasions. I remember hearing from both later encouraged by him in his children. At sides in 1985, after they had been host the very end of his life he was proud that his John’s TB was to recur more than once, and hostess to the Prince and Princess of grandson Islay had become captain, as he is latterly, after more than half a century, Wales at Government House during one this week during competition in Perth, of some two years ago, thereby – with pain of John’s times as Acting Governor or the Victorian Under 21 Polocrosse team. and fragility from other sources – over- Administrator of Victoria, how special a

18 VICTORIAN BAR NEWS Summer 2008 / 2009 time it had been for them all. Above all, they will assemble the troops,’ Willie Whitelaw natural aristocrat not only in appearance, were loving – and greatly loved – parents would say). The joy given to John’s friends bearing, and demeanour but, more and grandparents, and our most heartfelt by his company and conversation, and by importantly, in having that quality of soul thoughts are with their family today. We his letters, was very great. – which can exist at any level of society think, too, of close relatives in the Hurley, He was profoundly reflective. As a boy, or in any walk of life – the possession of Young, Beischer, and other families, and of when not at school, he attended with his which fits its bearer pre-eminently for the friends such as the family of Lawrence and parents their parish church of St John’s, mingled service and leadership of others. Margaret Stokes, for whom, in her time of Toorak, and listened attentively to Dr Law. It would have been unthinkable to let John need, John did so much in really helpful As his friend Henry Speagle has written down. Modest and understated, indeed ways like taking her dog for its daily walk. to me, ‘He was deeply read in the English possessed of true humility, pure in heart, Elisabeth’s sister, Joan, married Robert classics, biography and history. He once self-sacrificing, and devoted to the public Carr (now Lord Carr of Hadley), Home told me that the big thing in life was to seek good, John McIntosh Young through a long Secretary in the Heath government, and wisdom, implying its Biblical connotations life gave to all the communities to which with them and their family she and John of facing the mystery of human life and he belonged, and to Victoria as a whole, had happy times in England, Portugal, seeking keys for its understanding.’ John’s a generous and whole-hearted service and elsewhere. John remained close to classical training at Geelong Grammar that reflected his own quality of soul, an many Geelong, Oxford, and Army friends helped form a habit of mind that could exemplary life, and his quite exceptional – those from the Scots Guards, including detect unerringly what was bogus, and goodness. Archbishop Robert Runcie and the Deputy a style of speaking and writing at once Prime Minister William Whitelaw, having a incisive and felicitous. That style had both special camaraderie and giving John a great the strength and precision of Latin and the welcome whenever he went to England (‘I grace and flexibility of Greek. John was a 

The Honourable Robert Clive Tadgell

e are come to honour and Home, said the sage; Sir Owen Dixon, his inspiration and to praise, and to give thanks Fame, said the soldier; exemplar, used to say that John Young was for, an uncommon man – Equity, the seer. especially tender towards the very old and Wuncommonly good. Spake my heart full sadly: the very young. Those of us fortunate Lest you should think my choice of the The answer is not here. enough to sit as pupils in the chambers of word good underpowered or unduly bland, John Young, the fashionable junior barris- Then within my bosom I take leave to remind you of a serviceable ter (there were but four of us over the Softly this I heard: exposition of the word by a rarely-noticed years), fitted neither of those extreme Each heart holds the secret: nineteenth century poet in a piece entitled categories. Even so we were privileged to KINDNESS is the word.1 simply ‘What is Good’: receive tutelage of a rare order – not con- fined to, but reaching to embrace, the bald Those lines will perhaps evoke, for What is the real good? chat of life at the Bar. some, a few of the qualities which, along I asked in musing mood. Michael Collins Persse has sketched with many others, radiated from John something of the breeding, nurture, train- Order, said the law court; McIntosh Young. I am not sure that ing and experience that helped to mould Knowledge, said the school; kindness necessarily springs to mind as the character of the man who handed on Truth, said the wise man; an ingredient of the popular definition of so much to us as pupils and, I must say, to Pleasure, said the fool; a lawyer. In him, however, kindness was the countless others who, in many varied Love, said the maiden; innate: it shone through his public and walks of life, learned from him simply Beauty, said the page; his private life and will remain, for me, an by being with him or near him. He had an Freedom, said the dreamer; indelible memory. effortless presence.

VICTORIAN BAR NEWS Summer 2008 / 2009 19 After due discharge from the Scots shipping agents, of which John’s father had Victorian Law Reports – despite which he Guards in 1946 at the age of 26, having long been a partner. In those days of the managed, happily, to recover, at least until been mentioned in dispatches, Captain five-and-a-half day week – and perhaps on very recent years. In his latter years as Young returned to Australia to take a law account of the historic and geographic co- junior counsel he found or made time to degree at Melbourne, supplemented by incidence of the two firms – John Young take up the role of independent lecturer his Oxford MA. as articled clerk, and later as fledgling in company law at the University of Mel- I dwell upon the due discharge because, barrister, found himself instructing or bourne and jointly authored an authorita- by the time of his return, he had achieved instructed on many a Saturday morning at tive textbook on the subject. a curious, if unwanted, fame on account the Melbourne Court of Petty Sessions, in Letters Patent conferring the rank of of the early wartime adventure on which routine prosecutions under the Merchant Queen’s Counsel in and for the State of Michael has touched. Years later John Shipping Act, of merchant seamen who, Victoria issued to John Young in 1961, and was to relate his part in the affair to the the night before, had been apprehended similar appointments in other jurisdictions Boobooks Dining Club in a paper entitled as revelling deserters. Thus he cut his teeth followed. In the meantime began a second (with becoming modesty) How I nearly got for a career in the courts that, one way and substantial period of service to the Bar with a bowler hat for letting Hess escape. another, was to span some 43 years. his election in 1969 to the Bar Council, The bizarre trip to Scotland in 1941 by He signed the Bar Roll on 4 February appointment to the Ethics Committee – the Deputy Fuehrer, Rudolph Hess (if in 1949, on the same day as his close friend some would say the most important aspect truth it was Hess), remains to this day Keith Aickin, his senior by nearly four of the Bar’s functioning – and chairman of shrouded in a degree of tantalising mys- years, who had served as Sir Owen Dixon’s that Committee in 1971. Most notably, he tery leavened, one gathers, by a measure of associate, and whom he was to succeed in was soon recognized as, and remained, comedy. This is not the place to enlarge that position. an authority on professional ethics. Two upon it. Indeed, I mention it only by way John Young regarded Sir Owen Dixon as lectures that he delivered on conduct and of admitting two tiny, touching, adventi- one of the three men in his life. His period etiquette at the Victorian Bar were printed tious glimpses of our subject. First, the as Dixon’s associate must surely count as an and were for very many years routinely Messerschmitt fighter-bomber conveying intimate feature of his education, provid- issued to all newly-called barristers. the eccentric visitor from Germany ing enduring benefits and lifelong friend- John Young cared very much about crashed and burned in a farmer’s field near ship. Again, I shall not dwell on it and stay the manner in which professional people Eaglesham, a small village in Renfrewshire to mention only that he was wont for the behaved themselves. He was a member south of Glasgow, a spot (as John Young rest of his life to refer with pleasure and of the Board of Examiners for Barristers subsequently noted) ‘...where I believe my defer with satisfaction to Dixon’s precepts, and Solicitors and concerned himself, in ancestors were yeoman farmers in the 17th principles and distinctively elevating and particular, with the affairs of the Medico- century.’ It was a small world even then! amusing extra-curial obiter dicta. Legal Society of Victoria, of which he was Secondly, Rudolph Hess’s agonising sur- Following his time as a judge’s associate, Honorary Treasurer for ten years and vival, in Spandau Prison, near Berlin, until John Young read as a pupil in the cham- President in 1968. 1987 at the age of 93, produced the result bers of Mr H.A. Winneke, whom a quarter I very well remember a paper delivered that potentially revealing files in the Brit- of a century later he was to succeed as to that Society, during John Young’s close ish Public Record Office are destined to Chief Justice. Those intervening 25 years involvement, by Sir James Darling (of remain closed for the statutory period of at the Victorian Bar were crowded not only whom we have heard much this morning) 30 years after his death. As to that embar- with an assiduous concern for clients (as and bearing the beguiling title ‘On Being go, John recently noted with resignation, you would expect) but with strenuous and Reasonably Honest’. Sir James referred to a referring to competing puzzled theories extraordinary voluntary service to the Bar problem which, as he said about the affair, that ‘the really irritating itself. A description of the almost infinite thing from my point of view is that we width and variety of his flourishing and … seems to me to be common to almost shan’t know the answer until 2017, when it rewarding practice is not called for here, every profession, namely the acceptance is in the highest degree unlikely that I shall but I should mention particularly his dedi- of more work than one can honestly per- be here!!!’ Sic transit gloria. cated voluntary contribution. In his sec- form. This seems today to be a weakness Having served short articles of clerkship ond year at the Bar, 1950, he was appointed common to all professional people in a with Mr A.R. Lobban, a member of the honorary secretary of the Bar Council, a way which was not the case even thirty doughty firm of Blake & Riggall (as it was post he held for a decade. It was no sine- years ago. It is tied up, of course, with high then styled), John Young was admitted to cure, for in those days the Bar had no income tax… but it is also tied up – dare I practise by the Supreme Court of Victoria full-time staff, as now, and the load he say it? – with the urge to expect more out on 2 August 1948. Blake & Riggall or shouldered was exceedingly heavy. During of life in the way of rewards in standards their predecessors had then practised in this time a recurrence of his debilitating of living and comfort and luxury than our William Street, at or near the south-east wartime legacy, pulmonary tuberculosis, fathers thought necessary. Its result is a corner of Bourke Street, for the best part confined him to bed for most of a year. lower standard of service to the patient or of 100 years. Directly over the road, in St During that period he devoured for his the client, longer delays and even perhaps James’s Building, stood John Sanderson & intellectual stimulation, as he told me, no perfunctory treatment. If the prime pur- Co., long-established wool merchants and less than the last fifty years’ issues of the pose of a profession is to serve and the

20 VICTORIAN BAR NEWS Summer 2008 / 2009 provision of a livelihood only a secondary ‘Skip’ Shelton), with a large bunch of keys, loyalty because, above all, he was himself objective, then perhaps the work volume on a journey to visit and enter every room intensely loyal to his colleagues and to his accepted should be the subject of consci- in the Supreme Court building, of which ideals. entious enquiry. there must be hundreds, so that he might I cannot pretend to do justice today by himself know where and what it was, how way of elaboration upon the energetic Those sentiments might very well have it was used (if at all) and what might best attention and disciplined enthusiasm been voiced by John Young. One may be be done with it. that John Young bestowed on a multitude sure that he embraced them; and, if they Sir John’s own innate sense of right and of appointments, organisations and insti- were valid in 1968, how much more em- wrong forever controlled him. His courte- tutions outside the Supreme Court. Apart phatically so a further ten, twenty, thirty ous elegance of manner combined with an from the office of Lieutenant-Governor, and forty years on? accurate and well-turned facility of expo- which he held for over twenty years, I Notwithstanding what was to some a sition to produce a model judge. It was a merely refer to a few – in particular the conservative mien, John Young was during pleasure to appear before him and to sit Boy Scouts Association, the Oxford Asso- his later years at the Bar responsible for with him on the Bench, as it had been to ciation, the honorary appointments with substantial changes in its organization and appear with him and against him at the service corps, some of which are repre- administration. It was later perceptively Bar. He was wont to take the trouble to sented here, and the universities of which said of him that one of his strengths as a explain the use of a word in what he called he held honorary degrees. It is a measure reformer was that he neither looked nor its ‘ancient and proper sense’. He tended of his commitment that he retained his sounded like a reformer: those who had also, I think, to expect or hope from others association with many and indeed most of a liking for reforms liked the reforms he a similar approach to the use of language. I these long after he retired as Chief Justice prepared; and those who had no liking for suspect that he would have inclined to the at the age of 72; and then took on the sub- reforms tended to be persuaded because it view that people who cannot distinguish stantial role of Chairman of the Police was he who put them forward. between good language and bad, or who Board. Is it not little less than miraculous You scarcely need to be told, having re- ignore the distinction, are unlikely to think that he managed to achieve so much? – and gard to his spacious achievements, that carefully about other things. with a staff that was, by present-day stand- John Young was remarkably efficient with He was a servant of the rule of law. What ards, very small. time. He was generous to accommodate is the rule of law? It is commonly tossed When I last saw John Young, a few days others, but used his own time to best ad- around as an indispensable precept but before he died, he said, not for the first time, vantage. I always assumed that his wartime more often than not left undefined or ill- ‘I have been extremely lucky. My luck began military discipline contributed essentially defined. For John Young there was nothing in 1919 when I was born’. If that was so, we to that capability and to his manifest especially intricate or complicated about have been fortunate that he has shared his administrative flair. it. He took the central tenet of the rule of luck with us and given us his example. His As Chief Justice of Victoria from 1974 law to require – nay, demand – that, where motto was on his bookplate: Semper juvenis to 1991, John Young made conspicuous the rights, duties and liabilities of citizens – always young. He was nothing less. and lasting contributions to the admin- are concerned, like cases should be decid- Though his voice be stilled, his example istration of justice in the State. Continuing ed alike, and preferably decided by prop- ‘remains fresh to stir to speech or action his already proved capability for achieving erly constituted courts equipped by judges as the occasion comes by’; and, again with necessary and useful revision, a series of in every respect independent of the execu- Pericles, his legacy ‘abides…without visible imaginative procedural reforms under tive government. At the time of his ap- symbol, woven into the stuff of other men’s his leadership drew the Supreme Court pointment as its 9th Chief Justice in 1974, lives.’ of Victoria into an era of exceptional the Supreme Court, as the superior court He put his stamp, gently but firmly and distinction. of Victoria, had jurisdiction (with very with ease, on all that he did. So I invite you, He understood very well the nice limited exceptions) ‘in all cases whatsoev- in celebrating and giving thanks for a life distinction between the verb to have and er’.2 Justice was done and, in general, could fully and finely lived, now to look forward the verb to be. He preferred always to be be seen to be done, according to the rule of as well as back. As we have otherwise been and to do rather than to have and to take. law. During his chief-justiceship, however, reminded: He was in many respects a minimalist, and jurisdiction which previously belonged to And not through eastern windows only, practical and definite, tending to know the Supreme Court was conferred upon When daylight comes, comes in the light. what in a given situation needed to be other bodies and individuals who, how- In front the sun climbs slow, how slowly, done and knowing how to get it done with ever distinguished, were not obviously But westward, look, the land is bright! minimal fuss. independent of the executive. Parliamen- John Young’s thoroughness was legion. tary and subordinate legislation combined

He subscribed to the view that until you increasingly to allow the practical applica- know a thing right to the bottom you tion of the rule of law to be whittled down. should not speak as though you did. I recall He regarded that as a retrograde develop- NOTES that during one long vacation he took ment, and said so, but he did his best to 1 John Boyle O’Reilly (1844–1890) his associate (then the splendidly faithful nurture his ideal. In doing so he attracted 2 Constitution Act 1975, s. 85.

VICTORIAN BAR NEWS Summer 2008 / 2009 21 OBITUARY

Philip Henry Napoleon Opas OBE QC

Born on 24 February 1917, Philip Opas the Honourable Sir Robert Monahan, of the failed. Ryan was hanged and Phil was dev- was educated at Melbourne Grammar Victorian Supreme Court). He established astated. He left the Bar as a direct result. School and the University of Melbourne. a wide and varied practice which included Four years later he returned to the Bar. In the Great Depression, he left school constitutional law and local government. He served as Deputy President of the at the age of 15 and began work as a He took silk in 1958. Victorian Administrative Appeals Tribunal law clerk with Roy Schilling, studying In 1966, Opas defended Ronald Ryan, and Chairman of the Planning Appeals by correspondence at night to complete who was ultimately convicted of murder Board. He retired in 1989. matriculation. and hanged – the last person hanged in Ryan’s execution never left him. The Phil Opas began long articles with Roy Victoria. Phil was convinced that the shot conviction that Ryan was innocent per- Schilling in 1937, but went on to complete which killed the warder for whose murder sisted throughout his life and there appears the LLB at the University of Melbourne in Ronald Ryan was hanged was not fired to be credible forensic evidence to support 1939. In 1975 he obtained an LLB from by Ryan. After the conviction, Opas’s brief his belief. He was a concerned man and a Monash. from the Public Solicitor was withdrawn, passionate man, an honourable lawyer and On the outbreak of war in 1939, he and he publicly appealed for an instructing a congenial colleague. His conduct of the enlisted in the RAAF. In 1942, on leave solicitor for Ryan’s appeal to the Privy Ryan case represents the finest traditions from active service in New Guinea, he was Council. Called upon to show cause why of the Bar. We shall miss his passion and admitted to practice. He later served in he should not be struck off for unprofes- his zeal. Vietnam and was Judge Advocate General sional conduct, he was defended by Rich- in the RAAF, attaining the rank of Air ard McGarvie QC and Ivor Greenwood. Commodore. He was honourably acquitted. In 1946, after the war, Phil Opas came to The Privy Council appeal, in which the the Bar. He read with R.V. Monahan (later, late Allayne Kiddle acted as his junior,

OBITUARY

John Mathew Edward Sutton

Jack Sutton died on 14 October this year at have now attained judicial office or are In 1993, after serving as Senior Associate the age of 80. He is remembered fondly by senior silks. As an instructor he was thor- to the Chief Justice for a period of seven all older members of the Bar. ough, helpful and hard working. These years, Jack, then aged 65, was employed by Jack was a practising member of the Bar characteristics were superimposed upon a the Bar as a corporate solicitor. In 1996 he for only a brief period of three years from fine intelligence, a strong grasp of legal read with Peter Kistler and, at the age of 68, 1996 to 1999. But most of us knew him principle and an educated mind. He was a signed the Bar Roll in November 1996. well in his other incarnations. pleasure to work with. Jack was a good lawyer but, more im- Jack who started his working life as a In 1985 Jack was appointed Senior portantly, he was a civilised man, a quietly school teacher, was admitted to practice in Associate to the then Chief Justice, Sir spoken congenial man, a good companion 1975. He worked as an employee solicitor John Young, and, when Sir John retired, he and a first-class human being. with K.E.G. Cranage in Malvern with continued on as Senior Associate to Chief All who knew him regret his passing. whom he had served articles. From there Justice Phillips. He was an erudite and he moved to the Victorian Crown Solici- broadly read man, and must have made a tor’s Office, where for nearly ten years he very congenial associate for both Chief briefed in their junior years many who Justices.

22 VICTORIAN BAR NEWS Summer 2008 / 2009 OBITUARY

Daniel Julius Pollak

Daniel (Danny) Julius Pollak was born on and Equal Opportunity Commission. He versity. At the time of his death, he had 6 September 1979, to parents Cynthia and commenced the Bar Readers’ Course completed three subjects, with a High Peter Pollak. His sister, Renee, was born in September 2007 and signed the Bar Roll Distinction average. two years earlier. in November 2007. He read with Will Daniel was heavily involved in the Jew- Daniel grew up in Camberwell, but his Alstergen. ish Community, particularly in the United family moved to North Caulfield in 1994 After coming to the Bar, Daniel was Jewish Education Board, a body which to be closer to the Jewish community. briefed on a number of both civil and provides Jewish education to students who Daniel undertook most of his schooling criminal matters in the Supreme Court, cannot afford Jewish education. He started at Mount Scopus Memorial College. He County Court and Magistrates Court. He as a leader on one of their educational moved to Liebler Yavneh College at the appeared for and obtained an injunction camps and quickly became involved in start of his year 11 studies, and graduated against the AFL on behalf of a 14-year- “developing the educational program. He in 1997. Daniel was involved with the old girl who wanted to continue to play joined the Board approximately seven Mizrachi organization and attended the mixed football. He also appeared in the years ago, to ensure that he had a voice in B’nei Akiva Jewish Youth Movement whilst Racing Tribunal on behalf of the stewards. assisting those who were otherwise unable he was at school. At the conclusion of year He was also starting to develop a practice to receive the Jewish education that he had 12, he went overseas on a year-long study in WorkCover, appearing on behalf of received. He worked hard to ensure that program with B’nei Akiva. On his return, plaintiffs in serious injury and weekly others in the community knew about and he became a leader of the youth movement. payment matters. assisted with the cause. He was a leader of the youth movement for Daniel was awarded a scholarship to Daniel was diagnosed in February 1999 three years, and the treasurer for one year. undertake his Masters at Melbourne Uni- with hemangioendothelioma (HE). HE is Daniel commenced a Law/Commerce a composite term for blood vessel cancers. Degree at Monash University in 1999, and From 1999, Daniel underwent various graduated with Second Class Honours in bouts of chemotherapy, radiotherapy, a 2003, He was awarded the Tress Cocks and number of procedures and operations, and Maddocks prize in 2002, and the Alec at least 50 blood transfusions. He had, for Masel prize for best student in Civil Proce- the past five years or so, been medicated dure in 2003. He undertook articles at the with an experimental treatment. He was Office of Public Prosecutions in 2004 and under the care of the Peter McCallum was admitted on 25 April 2005. Cancer Institute. Daniel married his high-school sweet- More information about HE can be heart, Shelley Grynberg, on 19 June 2005. found on the website, The website, created as The Heman- Caulfield shortly afterwards, and their gioendothelioma (HE), Epithelioid He- daughter, Noa Batya, was born on 25 man-gioendothelioma (EHE), And Related March 2007. vascular Disorders (HEARD) A support Daniel spent approximately three years group website was developed by Daniel’s at the OPP in the General Prosecutions mother, who dedicated most of the last ten team. He tendered his resignation from years to research into the little known dis- the OPP in early 2007, to come to the Bar. ease, and to developing a registry of people While waiting for the September Bar Read- diagnosed with rare forms of cancer, in or- ers’ Course to begin, he undertook a three- der that they could share their knowledge month project with the Human Rights Shelley, Noa and Daniel Pollak and treatments from around the world.

VICTORIAN BAR NEWS Summer 2008 / 2009 23 NEWS AND VIEWS

Readers’ Course revisited

Interview between Ian Freckelton SC and The Honourable Professor George Hampel QC and Ian Hill QC

24 VICTORIAN BAR NEWS Summer 2008 / 2009 IF: The Victorian Bar Readers’ Course the professionalisation is utilising George reviewed every two or three years. In that is about to have its 30th anniversary. Hampel’s Advocacy Manual (written with respect they have an edge on us. With your long involvement in advocacy Elizabeth Brimer and Gabriel Kune). training, you must both have seen many IH: I have just read the Attorney-General’s changes in the course since the heady days IF: How does the book come into the column in the recent Bar News suggesting of 1979? course reassessment? that perhaps chambers should provide an income for readers as they do in England GH: We have indeed and of course ours IH: The book is a very good resource for readers but there is more than that in terms at about the minimum wage for a legal was the first in Australia and it took me executive. years to persuade our New South Wales of further professionalising the course. We colleagues that they should start one. are looking at better educating our instruc- IF: What do you think of that idea, Ian? They laughed at the proposition in the tors so they can teach better and assess in a beginning, saying that barristers don’t way which gives effective and fair feedback IH: We are looking into it but I don’t need advocacy training – you’ve either got to the students. think it will happen here. There are signifi- the gift or you haven’t. Finally they saw the cant differences between England and here. GH: The focus on instructors is very im- We have a very low cost Readers’ Course light and started their own course about portant. There is a misconception in just ten years after ours began. Our Readers’ ($3771) if you compare it with higher edu- about every field of skills training that be- cation costs at university. To do one subject Course is generally acknowledged as the cause you are good at what you do there- best around, and in recent years we thought in a Master’s degree costs much the same as fore you can teach. That just isn’t right. We to pay for the Readers’ Course. we should review how we can keep it that want to train our instructors in the same way. way that instructors in other places, in- GH: It shouldn’t be forgotten, too, that we IH: Issues being canvassed in the review cluding universities, are trained these provide a place for an indigenous reader of the course are whether there should be days. and for up to four readers from the South Pacific region. We currently have four entrance examinations and whether people IH: We are looking at certification for from Papua New Guinea. should be able to start the course straight instructors at different levels. That might after completing articles or Leo Cussen. mean that some of those who can teach IF: That has been one of the real achieve- IF: Are there restrictive trade practice may not be permitted to assess. There ments of the course – to stretch out a issues about that? are different skill sets for which there helpful hand to our neighbours. need to be different levels and kinds of IH: There may well be but you can’t get proficiency. IH: Yes. I think the Victorian Bar is very a full practising certificate as a solicitor well respected in the South Pacific. In fact before you’ve practised for 18 months after GH: One option is to learn from develop- we have had contact from Fiji wanting us articles and more for after Leo. We are ments in the United Kingdom. Since we to go there to put on an appellate advocacy allowing people who could not practise in introduced the training concept there in course. their own right as a solicitor to practise in the mid ’90s they have come a long way. their own right as a barrister. Now I know One of the things they do very well is to be IF: There’s a growing awareness of appellate there are differences with trust accounts very strict about training their teachers advocacy, isn’t there. There’s been a recent which we don’t have but all those things are and they don’t permit people to teach un- book by Blank and Selby about that subject being examined. We are looking afresh at less they are satisfied that they are at a par- which seems to have been well received so the content of the course, examinations at ticular level. They grade them and teach far, but it’s been one of the neglected areas the end, and assessment during it. Part of them and have their teaching proficiency until recent times.

VICTORIAN BAR NEWS Summer 2008 / 2009 25 appellate courts too where the judges will say: ‘What’s your best point?’ And there’s also the trend towards more and more paperless trials. That is going to keep on growing. Even in the last five years or so there have been a number of trials where everything has been up there on the screens. The Victorian Law Reform Com- mission Report on Civil Justice is looking to facilitate such developments too. IF: I’ve observed greater use of written submissions across jurisdictions. IH: Certainly. I’ve been noticing that in crime in particular, where written submissions are becoming much more common than they used to be. Counsel will start by handing up an outline of written argument, be it to a magistrate or a judge, and then speak to the written outline. I’m sure that that is being found helpful by the The Honourable George Hampel QC Bench but it requires different skills than those in traditional oral advocacy. Gleeson, Kirby, Jackson, Bennett, Burn- GH: Yes, that’s right because I think that IF: In terms of style, do you think we’ll side, Felicity and myself. It works and that’s most advocacy training has to date or move to usage of multimedia in closing really terrific. So that’s what I’d like to en- almost to date been treated as for begin- and opening addresses using PowerPoint courage in terms of changing the culture at ners. There’s been a culture in the legal pro- and similar? That would be another shift all levels of our Bar. fession that once you’ve done your basic in our longstanding dependence upon oral training that’s all you need to do. But we are IF: Looking at the changing times then, presentation. now developing much more into ongoing what are the main elements of change in education across the board in law, but GH: We all keep saying that a picture advocacy styles that you have both noticed including in advocacy. Just a couple of is worth a thousand words but so far we in the courts over the duration of our months ago we did the Bar cross-examina- are using forms of presentation that are Readers’ Course? tion workshop for the English Bar in Lon- not oral in only certain situations. We don and we did one in Darwin just recently. IH: Well, I think when I first came to the use diagrams and charts, simulations and So there is a lot of that coming along but it’s Bar, we used to shout at witnesses and we re-enactments. That must evolve further. only a fairly recent development. We are used to rough them up and it was sort IH: I agree. We are starting to use aide- hoping to introduce a bit of that culture to of war. Now it’s more subtle and more memoires and summaries and chronolo- our Bar. One of the things that we might effective. gies much more now than we used to. Why look at as part of the review is whether can’t they be used electronically? there should be either as part of or as an GH: It’s much more issue driven now. addition to the Readers’ Course an obliga- Judges, and I think juries, don’t want IF: If there is going to be more use of tion to do a supplementary course of short to waltz around. They want to get to computer-generated images in court, this duration after people have been in practice the point. There is a greater focus on will impact on advocacy skills. It will need for, say, 12 months or two years. conceptualising your case, getting to a case to be part of the advocacy training of the theory, and going for it. That has made a future. IF: It’s interesting, isn’t it, that we have vast difference because people are actually mandatory attendance now at continuing forced to think about what they are going IH: Bearing in mind that most of the professional development lectures but for to do, in advance, instead of waiting to see readers that we see now have been through most of us our real stock in trade is advo- what happens. university in more recent times, and as cacy and there’s no mandatory ongoing a result are computer literate, that has to professional development in that regard. IH: It is also very handy before a jury be so. because not only do the jurors know what GH: The main attendance at the Advocacy the issues are but you get a chance to lay it GH: There’s a fair bit of work being done Institute courses for barristers is at the out and impart your defence. at the National Institute of Trial Advocacy more senior level. I couldn’t tell you the in the United States about that. We haven’t numbers with precision but over the years GH: And it enables a judge to better de- started doing that yet but the concepts are we have had some 60 or 70 silks overall at- cide admissibility and relevance issues as the same; it’s the application that’s differs tend them. We have had teachers like they arise. The trend is apparent in the somewhat. It’s long overdue in the sense

26 VICTORIAN BAR NEWS Summer 2008 / 2009 and what they should do when reviewing a video exercise. It’s a start. IF: Ian, if you had a wish list for the future of the readers’ course, what different things would you like to do? IH: I would like more time to start with. IF: Does that mean you would want the course to be longer? IH: No, I don’t think that would go down very well but it would be nice to have more time for people like me to devote to the Readers’ Course because a lot of it needs re-writing and that takes time. I would like to help to teach the instructors better because I think they really need to be trained. But on the other hand, we have a difficult balance. We can’t make it too onerous for the instructors because we rely upon their voluntarily giving up their time. We have to strike that balance. The other thing that I think needs to happen Ian Freckelton SC is more computerisation of the course. At the moment we hand out nearly all the exercises in hard copy which means of the need to start thinking about things shots. It has an application in the context someone has to photocopy them. We need beyond the traditional areas that we have of refreshing what experienced advocates to move to doing it on-line. Still many taught. Nonetheless, everyone has to have may have forgotten. Someone asked me of the readers are saying that they prefer the basic skills and one of my worries has how long it took. I said: ‘25 years plus 18 the material in hard form, but that will always been that you constantly encounter months’. One of the things that I am happy change. advocates without them. If you haven’t about is that we actually put into the book got the basic skills, it’s hard to build on material about advocacy teacher training. GH: In New South Wales and in England something further. So any person who teaches our readers can and in other courses that I have seen, the go to the chapter and find out what they culture has changed so Fred will take a IF: What are some of the developments in should do when giving feedback to readers week off, given six months notice, and will thinking about advocacy training? GH: One of the issues recognized interna- tionally is the need for a statement of the basics so that you get a new teacher or any teacher or any pupil to a point where they have a good grip of the fundamentals. IF: And how does your Advocacy Manual lock into those issues? GH: The Manual attempts to create the sort of basic structure that everyone must have. It’s the minimum that everyone needs, from which more can be built. It is really a combination of what everyone has been thinking over the last 35 years. IF: What about its use outside the Readers’ Course? GH: Well, concert pianists go through their scales before they play their pieces. It’s not a bad thing to do. Tennis players hit out before they play their complex Ian Hill QC

VICTORIAN BAR NEWS Summer 2008 / 2009 27 say for three days or whatever be devoted as well as they should and offer them some IH: Exactly. And George’s book has a role to teaching at the Bar. It is no longer a further instruction or encouragement. to play in this. question of whether you can spend a hour We have found that without exception the here or there. Our current system is a ones given that extra help come up to what IF: So do we assume that you and your nightmare for those administering the we would consider a pass mark. team have started work on the advanced Readers’ Course. At the moment there are advocacy manual now? GH: I think we are slowly getting rid of the two types of teachers in the course – the GH: No. Advanced advocacy is more for skills teachers and those who come along thinking that advocacy can’t be assessed because it’s impressionistic. There are so actual personal teaching rather than a and give the lectures. For the latter, argua- manual. The basics are assumed and from bly, teacher training isn’t needed. But many different things that are assessable, providing the assessors know what they are then on the feedback that can be given is the skills teachers, those who take the likely to be so diverse that it would be very readers through their performance, need doing and work to a set of criteria that the readers are told about. Formulating criteria difficult to standardise it. I don’t think we to be well trained and consistent in their should even try to do so. approach. that are objective and can be consistently applied takes a little bit of training, but IF: I wonder if we met in fifteen years time IH: I must say, I am always impressed by that has been done at universities for some whether we would say something different the number of members of the Bar who are time where students at undergraduate because what you are saying about prepared to give up their time. and postgraduate level have to be graded advanced advocacy is what people said 30 GH: It’s fantastic – about 100 every into distinctions, credits, passes, etc. for years ago about advocacy. course. courses in advocacy. My experience is that assessors are generally within 5 per cent of GH: Probably. IH: We went to Papua New Guinea in July one another in doing such assessments. and there were seven barristers there and IF: That’s probably a good note on which there will be another seven in Fiji. At the IF: It’s not that sort of assessment you are to finish. Thank you, George and Ian, and moment we try to assess readers’ advocacy looking for in this context, though. Isn’t good luck to you and your team, George, skills about three weeks before the finish it simply a matter of needing to identify with the Advocacy Manual, which is avail- of the course. That gives us some time to people who haven’t yet achieved a basic able at all good legal bookshops and on- take those aside who are not progressing level of competence? line at the Australian Advocacy Institute.

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28 VICTORIAN BAR NEWS Summer 2008 / 2009 n 13 February 2008, Prime Minis- compensation. Let me explain why I think trial as a woman in her late middle age. She ter Kevin Rudd formally apolo- that was unfortunate. remembered the day clearly. Her mother gised to the stolen generations First, let us look at the realities of the had always wanted a second daughter. Oand their families. That day the nation stolen generations and the attempts of some They had seen an advertisement in the shifted perceptibly. The apology was sig- of their members to achieve recognition of local newspaper offering Aboriginal babies nificant not only for marking a significant what was done wrong and compensation for fostering. They went to the hospital and step in the process of reconciling ourselves for the harm which resulted. looked at a number of eligible babies and with our past: it cast a new light on the There have been a few attempts to- re saw a cute little girl with curly hair and former government. It resonated in the cover damages by members of the stolen chose her. They took her home and when community to an extent which no one had generations. Actions in the Northern they changed her nappy they discovered predicted. And I think it reminded us of Territory and New South Wales failed. In she was a boy. Such was the informality something we had lost: a sense of decency. August 2007, an action brought in South with which Aboriginal babies could be giv- Most of the worst aspects of Howard Australia succeeded. en away in early 1958 in South Australia. and his mob can be explained by the lack of A short time later, Bruce’s mother wrote decency which infected their approach to to the Department asking about Bruce. BRUCE TREVORROW’S CASE government. They could not acknowledge The magnitude of her task should not be the wrong that was done to the stolen In the South Australian case, the Plaintiff overlooked: pen and paper, envelope and generations; they failed to help David was Bruce Trevorrow. Bruce was the ille- stamp were not items readily obtained in Hicks when it was a moral imperative gitimate son of Joe Trevorrow and Thora the tin and sackcloth humpies of One Mile – they waited until his rescue became Lampard. They lived at One Mile Camp, Camp, Meningie. But Thora managed to Stolen An edited extract of Julian Burnside’s speech to the National Indigenous Legal Conference on 12 September 2008

a political imperative; they never quite outside the tiny township of Meningie, on write a letter which still exists in the State understood the wickedness of imprisoning the Coorong. They had two other sons, archives. It reads: children who were fleeing persecution; Tom and George. they abandoned ministerial responsibility; They lived at One Mile Camp because I am writing to ask if you will let me know they attacked the courts scandalously in the 1950s it was not lawful for an how baby Bruce is and how long before but unblushing; they argued for the right Aborigine to live closer than one mile to a I can have him home as I have not forgot I to detain innocent people for life; they place of white settlement, unless they had got a baby in there and I would like some- introduced laws which prevent fair trials; a permit. thing defenat [sic] about him this time they bribed the impoverished Republic When Bruce was 13 months old, he got trust you will let me know as soon as of Nauru to warehouse refugees for us. It gastroenteritis. Joe didn’t have a car capa- possible. seemed that they did not understand just ble of taking Bruce to the hospital, so some how badly they were behaving, or perhaps neighbours from Meningie took him to The reply is still in existence. It said: they just did not care. the Adelaide Children’s Hospital where One of the most compelling things about he was admitted on Christmas Day 1957. (Bruce) is making good progress but as the apology to the stolen generations was Hospital records show that he was diag- yet the doctor [unidentified] does not that it was so decent. Suddenly, a dreadful nosed with gastroenteritis, he was treated consider him fit to go home… episode in our history was acknowledged appropriately and the gastro resolved with- for what it was. in six or seven days. Seven days after that He had already been given away. Unfortunately, when announcing that he was given away to a white family. The laws relating to fostering required the Government would apologize to the The family lived in suburban Adelaide. that foster mothers be assessed for suita- stolen generations, the Prime Minister also They had a daughter who was aged about bility and that the foster child and foster said that the Government would not offer 16 at the time. She gave evidence at the home should be inspected regularly.

VICTORIAN BAR NEWS Summer 2008 / 2009 29 Although the laws did not distinguish When Bruce was ten years old, he met his Bruce or his natural family for the realities between white children and Aboriginal natural mother for the first time. Although of meeting again after nine years. Things children, the fact is that Bruce’s foster fam- the Department had previously prevented went badly and Bruce ended up spending ily was never checked for suitability and his mother from finding out where Bruce the next six or eight years of his life in State neither was he checked by the Department was, the law had changed in the meantime care. By the time he left State care at age 18, to assess his progress. However, he did and they could no longer prevent the he was an alcoholic. The next 30 years of come to the attention of the Children’s mother from seeing him. his life were characteristic of someone who Hospital again when he was three years The initial meeting interested Bruce is profoundly depressed and who uses old: he was pulling his own hair out. and he was later to be sent down to stay alcohol as a way of shielding himself from When he was eight or nine years old, he with his natural family for a short holiday. life’s realities. He has had regular bouts of was seen a number of times by the Child When the welfare worker put him on the unemployment and a number of convic- Guidance Clinic and was diagnosed as bus to send him down to Victor Harbour, tions for low-level criminal offences. Every profoundly anxious and depressed and as the foster mother said that she couldn’t time he has been assessed by a psychiatrist, having no sense of his own identity. cope with him and did not want him back. the diagnosis has been the same: anxiety, Nothing had been done to prepare the His clothes and toys were posted on after profound depression, no sense of identity foster family for the challenges associated him. and no sense of belonging anywhere. with fostering a young Aboriginal child. Nothing had been done to prepare The trial had many striking features.

Announcement of Senior Counsel for 2008

On 26 Novenber 2008 the Chief Justice of the Supreme Court of Victoria, Marilyn Warren, announced the appointment of senior counsel for Victoria for 2008.

They are:

• William Ross MIDDLETON • Michael Harry TINNEY • Philip Anthony JEWELL • Caroline Majella KENNY • John Paul DICKINSON • Samuel Richard HORGAN • Craig Warwick HARRISON • Adrian James RYAN • Joshua Douglas WILSON • Michael Glennon O’CONNELL • Douglas Andrew TRAPNELL • Sturt Andrew GLACKEN • Maryanne Beatrice LOUGHNAN • Christopher John TOWNSHEND

The Chief Justice said the successful applicants were appointed after a long and wide consultative process. ‘I have personally met with the Chairman of the Victorian Bar, other leaders of the various specialist bars, the heads of the relevant courts and tribunals, judges and many others. In addition each applicant was required to nominate four judicial referees. The process has been extensive,’ Chief Justice Marilyn Warren said. There were 92 applicants, including seven women. The new silks were formally announced in the Banco Court at 9.15am on Friday 5 December 2008 at a ceremonial sitting, at 10.30am in the Federal Court of Australia and at 11am in the Family Court of Australia. Photographs will appear in the Autumn issue of the Bar News

30 VICTORIAN BAR NEWS Summer 2008 / 2009 One was the astonishing difference Crown Solicitor that it had no legal power From this point, events can play out in a between Bruce – profoundly damaged, to remove Aboriginal children from their couple of different ways. One possibility is depressed and broken – and his brothers, parents. One of the documents tendered at that members of the stolen generations will who had not been removed. They told of the trial was a letter written by the secretary bring legal proceedings in various jurisdic- growing up with Joe Trevorrow, who of the APB in 1958. It read in part: tions. Those proceedings will occupy law- taught them how to track and hunt, how to yers and courts for years, and will run use plants for medicine, how to fish. He according to the circumstances of the case …Again in confidence, for some years impressed on them the need for proper and the accident of which State or Territory without legal authority, the Board have schooling. They spoke of growing up in is involved. The worst outcome will be that taken charge of many Aboriginal children, physically wretched circumstances, but some plaintiffs will end up the way Lorna some are placed in Aboriginal Institu- loved and valued and supported. They Cubillo and Peter Gunner ended up eight tions, which by the way I very much presented as strong, resilient, resourceful years ago: crushed and humiliated. Or they dislike, and others are placed with foster people. Their arrival to give evidence at the might succeed, as Bruce Trevorrow did. parents, all at the cost of the Board. At the trial was delayed because they had been Either way, it is a very expensive exercise present time I think there are approxi- overseas attending an international meet- for the State, and a gruelling experience for mately 300 children so placed. … ing concerning the repatriation of indige- the plaintiff. nous remains. A second possibility is a national com- The second striking feature was the fact After a hard-fought trial, the Judge pensation scheme, run by the States, that the Government of South Australia found in Bruce’s favour, and awarded him Territories and the Commonwealth in co- contested every point in the case. Nothing a total of $800,000 plus costs. operation. The scheme I advocate would was too small to pass unchallenged. One of There are a few things to say about this. allow people to register their claim to be their big points was to assert that removing First, Bruce’s circumstances are not unique. members of the stolen generations. If that a child from his or her parents did no There are, inevitably, other Aboriginal men claim was, on its face, correct then they harm – they even ventured to suggest that and women who were taken in equivalent would be entitled to receive copies of removal had been beneficial for Bruce. This circumstances while they were children all relevant Government records. A panel contest led to one of the most significant and suffered as a result. Although they would then assess which of the following findings in the case. Justice Gray said in his may seek to vindicate their rights, the categories best describe the claimant: judgment: task becomes more difficult as each year

passes. Evidence degrades, witnesses die, (a) removed for demonstrably good wel- documents disappear. [885] I find that it was reasonably fore- fare reasons; Second, litigation against a Government seeable that the separation of a 13 month (b) removed with the informed consent is not for the faint-hearted. Governments old Aboriginal child from his natural of the parents; fight hard. It took Bruce’s case eight years mother and family and the placement of (c) removed without welfare justification to get to court, and the trial ran from that child in a non-indigenous family for but survived and flourished; November 2005 to April 2006. If he had long-term fostering created real risks to (d) removed without welfare justification lost the case, Bruce would have been ruined the child’s health. The State through its but did not flourish. by an order to pay the Government’s legal emanations, departments and departmen- costs. tal officers either foresaw these risks or The third thing to note about Bruce’s Compensation could then be awarded ought to have foreseen these risks. … case is that the same facts would not acccording to the category appropriate to necessarily have produced the same result the claimant. Such a scheme would help That finding also accords with com- in other States. The legislation concerning repair the consequences of the past. monsense. We all have an instinct that it is Aborigines was not uniform in all the harmful to children to remove them from States and Territories. their parents. It was based on extensive The Prime Minister’s apology makes no  evidence concerning the work of John difference whatever to whether or not Bowlby in the early 1950s, which showed Governments face legal liability for remov- Bruce Trevorrow was proud and gratified that it is intrinsically harmful to remove a ing Aboriginal children. But it acknowl- when he listened to the Prime Minister’s child from his or her parents, in particular edges for the first time that a great moral apology. He watched it on TV because when this occurs after nine months of wrong was done, and it acknowledges the he was not able to make the journey to age. damage which that caused. The most Canberra. He died four months later, on The harm of which the Prime Minister elementary instinct for justice tells us that 20 June 2008. He was 51. spoke when he said ‘sorry’ was harm which when harm is inflicted by acts which are Governments knew in advance would morally wrong, then there is a moral, if not result from their conduct. a legal, responsibility to answer for the At the time Bruce was removed, the damage caused. To acknowledge the wrong Aborigines Protection Board of South and the damage and to deny compensa- Australia had already been advised by the tion is simply unjust.

VICTORIAN BAR NEWS Summer 2008 / 2009 31 1 2 3 11 4 8 12 5 10 19 13 14 6 7 9 15 22 18 20 21 24 17 29 30 32 23 16 33 25 26 27 28 31 50 40 43 34 35 36 39 42 38 41 44 37 45 47 46 48 49

32 VICTORIAN BAR NEWS Summer 2008 / 2009 READERS’ COURSE September 2008

1 URE, Sam 2 TESTART, Marc 3 TOMLINSON, Justin 4 LIONDAS, Paul 5 ROSEWARNE, Sam 6 CASH, Daniel 7 BAKER, Cameron 8 WALLIS, Daniel 9 McKILLOP, Mark 10 STEPHENS, Kerry 11 CLARKE, Tom 12 KORMAN, Jonathan 13 STAFFORD, Sam 14 DOWNIE, Andrew 15 HILL, Adam 16 BANDT, Adam 17 COLLINGWOOD, Nicola 18 WATSON, Elissa 19 GRATION, Douglas 20 PARTOS, Zero 21 HOLLINGWORTH, Cecily 22 NEHMY, Christopher 23 DAVERN, Rebecca 24 LEANE, Tamara 25 GOLDTHORP, Anna 26 HAM, Marita 27 SHANN, Ruth 28 GALBALLY, Dawne 29 MELIS, Christine 30 HOLT, Eliza 31 KOI, George 32 BRENNAN, Amy 33 MEAGHER, Andrew 34 GOLDBERG, Evelyn 35 BARBAYANNIS, Andrew 36 STOILKOVSKA, Val 37 McGANN, Diarmaid 38 POULTER, Samantha 39 SHERIDAN-SMITH, Natalie 40 BIDAR, Daniel 41 SMITH, Naomi 42 HANNAN, Daniela 43 TAAFFE, Maggie 44 KOULOUBARITSIS, Aphrodite 45 GILLIES, Katrina 46 O’BRIEN, Moya 47 MALISO, Howard 48 UMBU, Isaac 49 ALAMPI, Luisa 50 MARSHALL, Sharon

VICTORIAN BAR NEWS Summer 2008 / 2009 33 National Indigenous Legal Conference

Nick Parmenter and Colin Golvan SC

he Bar has hosted the welcome event for the National Indigenous Legal Conference at the Essoign Club. The event was attended by about 150 conference delegates, and was addressed by Bar Chairman Peter Riordan SC. TThe Conference was held in Melbourne for the first time and featured keynote addresses from Justice Michael Kirby, Julian Burnside QC and Rex Wild QC. Other Bar members participated in conference sessions, including Indigenous members Hans Bokelund, Brendan Loizou and Linda Lovett, as well as Colin Golvan SC, Paul Hayes and Daniel Star. A highlight of the event was a Conference Ball, named in honour of the first Indigenous law student Brian Willis, held at the Melbourne Town Hall, at which Geoffrey Eames QC spoke about Brian and the work done by various Victorian barris- ters, including now Justice Frank Vincent, Judge David Parsons, and John Coldrey QC, in the 1970s and 1980s in getting land claims accepted. In addition to hosting the welcome event, the Bar provided administrative support in processing over 250 applications for the conference, and obtained a grant from the Law Foundation to assist the Conference in setting up an information website.

Alexandra Squarci and Jill Prior

Jacki Turfrey and Hans Bokelund Jim Gurry, Leon Filewood, Cassie Lang, Alfred Sing, Cindarella Cronan and Margarita Escartin

34 VICTORIAN BAR NEWS Summer 2008 / 2009 Will Bon, Munya Andrews and Chrissy Franks

Lyndon Ormond-Parker, Trish Rigby-Christophersen and Kaylene Hunter Colin Colvan SC addresses the reception

Peter Riordan SC addresses the reception

VICTORIAN BAR NEWS Summer 2008 / 2009 35 Criminal Bar Association Dinner

n 20 August 2008, the Criminal As DPP, John exuded humility, decency, Bar Association held a dinner and never went looking for a fight. It is not at Matteo’s Restaurant in North outrageous to say that the number of OFitzroy in honour of the Honourable John Director’s appeals – that are so popular Coldrey QC who retired from the Supreme now – were not always viewed as the way Court earlier this year. Coldrey was an to respond to public disapproval of one inaugural committee member of the Crim- sentence or another. And once on the inal Bar Association and Victorian Direc- Bench he, whilst always judicial, popular, tor of Public Prosecutions (the second fair, frank and courteous, and with a wealth after the Honourable John Phillips QC). of experience at the coalface was, interest- The dinner, attended by 160 people, was ingly, almost invariably right. I personally presided over by Colin Lovitt QC, who can recall few successful appeals from his introduced a long list of invited guests Court. He also, of course, brought a sense and honorary members and who made the of humour onto the Bench; and, more following remarks about Coldrey: particularly, out of Court – a trademark impish sense of self-satire and wicked wit which has for many years been legend around the Bar. Legal bodies literally queued up for his services as an after- dinner speaker. On one occasion, in 1996, when he performed at the conference din- ner at the Sixth International Criminal Law Congress, I had great difficulty con- vincing the New Zealand contingent, which included several High Court Judges, that he was indeed whom I had introduced him as, namely a Supreme Court Judge. They were convinced he simply must have been a professional comedian!

The Honourable John Coldrey QC, retired judge and CBA life member John Hasset; Mick Dodson, Magistrate Charlie Rozencwajg

36 VICTORIAN BAR NEWS Summer 2008 / 2009 Lovitt also sang ‘The Magistrate’, written by Coldrey in 1971 to music by Sir Arthur Sullivan for the Mikado’s ‘I’ve Got a Little List’:

1. I refuse to be impeded by the principles of law For I’m a magistrate – a near celestial state And daily I declaim against excesses I abhor With wisdom that’s innate. I’ll detail what I hate. There’s defendants who relieve themselves on pavements after dark Or menace kind policemen in the toilets of Queen’s Park; And wretches who in language quite revoltingly impure Liken noble constables to a female aperture Or publicly abbreviate the verb ‘to copulate’ One cannot tolerate in this Victorian state. Refrain I must eliminate the linguistic deviate Judge Jane Patrick, Susan Borg, Ray Lopez and Nicola Gobbo Whom we cannot tolerate in this Victorian state.

2. I thwart their devious ways, I send them to the For officers won’t charge a man unless his guilt There are rogues who flash their ‘nasties’ in the ‘jays’1 is plain. carriages of trains There’s women with conditions that psychiatry The only vital learning is to learn just what to And on the Toorak line – undiscriminating asserts hate swine! Makes them convert tins of fish paste, paper To purify the state when you’re a magistrate. Or fairies in the gardens who delight in ‘daisy plates and coloured skirts chains’, And kiddies blessed with habits that I simply Refrain I’d flog them till they whine, it beats a simple must restrain I will eliminate, the social reprobate fine. Who are no sooner off the pot they’re on the To purify the state, for I’m a magistrate. Then there’s demonstrating students quite pot again. unable to resist Or cunning drunken drivers who automatism Assaulting with their head and trunk a hapless plead policeman’s fist, With near excessive speed their licence they A tribute was paid by the Honourable Or photographers of nudity who emphasize concede. Justice Frank Vincent. The following is the the bust speech delivered by Coldrey: Evoking in the Vice Squad a debilitating lust Refrain And those worshippers of Eros in St Kilda’s This nation shall be freed, from crimes of Well, first of all I’d like to thank (Justice) streets and lanes, lust and greed Frank Vincent very much for his kind I’d take the utmost pains, to relieve their sexual For it’s purity we need, in every word and words. It’s a matter of regret that the strains. deed. organizers saw fit to limit his time. I am deeply humbled for the honour the Refrain From so-called expert evidence I hold myself Criminal Bar Association have done me I’d flog them with birch canes, I’d flog them exempt tonight in holding this function. I’ll always with birch canes, For I’m a magistrate – A Herculean state. treasure the friendship of those of you And I’d castrate what remains, I’d castrate what I call all doubts unreasonable and treat them who’ve been my colleagues at the Criminal remains. with contempt Bar. 3. For I’m a magistrate – my wisdom is innate. I’m also very grateful for this event There’s solicitors and barristers who charge Of dishonestly in policemen I have noticed not because I’ve been feeling a bit paranoid and outrageous fees, a sign, depressed. I recently received a letter from Their affluence conveys the message that I see them on and off the bench, they’re the Assistant Honorary Secretary of the ‘crime pays’! drinking friends of mine. Bar Council stating that the Council had They introduce red herrings such as points of All legal machinations I wholeheartedly ‘resolved that your name be transferred law and pleas, disdain from Division B11 (Judges) to Division C1,

VICTORIAN BAR NEWS Summer 2008 / 2009 37 (Retired Judges and Other Judicial Offic- philosophy that defendants should not put to her that she was unable to identify ers) as from the 29th February 2008’. Now, only be done, they should appear to be her assailant whereupon she paused, I found this a tad disconcerting since I done and if they didn’t appear, they should pointed to my client, and said, ‘He did it, didn’t retire until the 4th of April 2008. be done in their absence. On reporting one he did it’ while making stabbing motions I would be the first to admit that my post- perceived injustice to my master Kevin into her chest. February judgments were not very sub- Coleman, I was met with the sensitive There was a dull thud as my jaw hit the stantial But that’s not really a satisfactory response, ‘Son, there’s so much injustice in bar table. In the course of the subsequent reason because the same could be said for the world, a little more doesn’t make any unprepared cross-examination, I believed my judgments that preceded that date. difference’. that I had got the lady to admit that the There is a temptation on occasions such I commenced spasmodic appearances information about the identity of the stab- as this to reminisce. Unfortunately, I have in the County Court in fraud summonses. ber had been suggested to her by her succumbed to it. Initially, I appeared before Judge Trevor daughter. Mr Justice McInerney was not so The start of my career at the Bar was not Rapke, Jeremy Rapke’s father, who – I had sure. However, our discussion on this mat- auspicious. My first encounter with a police been told – had never made an order on ter was interrupted by a crash as the lady witness was not in a Magistrates’ court, a fraud summons in his whole judicial collapsed in the witness box. The jury but on the way to it. I was running late career. Nonetheless I launched into cross- watched fascinated as several burly police- for the Footscray Magistrates’ Court and examination of the hapless debtor, sug- men gently carried her frail form into the I drove through a red light. Having been gesting that he give up such luxuries as fourth court anteroom. It was at that point intercepted, I duly informed the policeman food and beverages in order to do the that Justice McInerney leant forward and that I was a barrister on my way to court. decent, just, and compassionate thing by uttered the then chilling words, ‘Mr At that time, in Owen Dixon folklore, this the Readyloan Finance Company. At the Coldrey, perhaps you should consider your was supposed to have a beneficial effect. end of my cross-examination, his Honour client’s position. A year and a day hasn’t On this occasion, however, the grizzled asked, ‘Do you really want me to make an elapsed since the stabbing’. senior constable reached for his pen with order?’ On being informed, in effect, that There was, however, a happy ending. the comment, ‘Well, this will be another at this moment in my life, this was my The lady lived and justice was done – my court appearance for you’. principal desire, his Honour retorted, client was convicted. I did about five years almost exclusively ‘Those who live by the sword die by the Another highlight in my career as a in the Magistrates’ Court. It was a wonderful sword’, promptly found a technical defect barrister was appearing in the Northern venue to develop your capacity to cross- in the process, and struck it out. Territory. Here, I achieved a notable dou- examine. It also had the virtue of multi- After three weeks of this sort of thing, I ble. I lost the last murder trial in the skilling. I could easily have got a job as a determined that if the Bar offered nothing historic old Alice Springs Supreme Court Melbourne taxi driver, orientating myself better, I would leave it. My clerk, obviously and I lost the first murder trial in the mod- by the various Courts of Petty Sessions. aware of my discomfort, thereafter ern luxurious new Alice Springs Supreme At this time, Frank Vincent and I lived arranged, with a certain lack of sensitivity, Court. in Oak Park – in separate dwellings. It is for me to be briefed in a number of In those days, many murder trials were hard to describe Oak Park, but I like to ejectment applications. settled for manslaughter pleas. One such think of Toorak as being the Oak Park of Eventually I was entrusted with jury case involved Diamond Turner, who had the South. Across the road was the less de- trials, but usually as the junior. As junior killed his wife with a tomahawk. I first met sirable suburb of Glenroy. Come to think to Phil Opas QC in a manslaughter trial, him on the bed of the Todd River where he of it, there were no oaks in Oak Park and I vigorously cross-examined the police was scooping handfuls of spam from a tin. not much parkland either. But if you liked witnesses. On leaving the court, Phil slap- The setting sun, catching the fat globules in Scotch thistles, this was the place to be! ped me on the shoulder and remarked, his beard, which was even more magnifi- On one occasion, we were both driving ‘Well done – it just goes to show, in these cent than that of John Smallwood, trans- our cars down Pascoe Vale Road. We each courts, the bludgeon is just as effective as formed it into a sparkling fairyland. Perhaps had the windows wound down because the rapier’. (I took this as a compliment.) that was why he was called Diamond. that was the only form of air conditioning Forensic disasters tend to remain with I thought that my plea before Justice we could afford. When the vehicles stopped you over the years. One of my worst expe- Gallop was progressing well and I turned side by side at the traffic lights, Frank called riences was before Mr Justice McInerney. towards the dock to see if Diamond was out, ‘Are you in court today?’ After I replied My client had been charged with the appreciating this flow of eloquence. Un- in the negative, he said, ‘How would you attempted murder – by stabbing – of an fortunately he wasn’t there. His brother like to do an assault occasioning at Port 80-year-old lady. The prosecutor, Alan had answered to the name Turner when it Melbourne?’ When I said, ‘Very much’, he Dixon QC (Jane’s dad) was to call her to was called outside the court and duly tossed me the brief through the open car confirm the stabbing but that she had ab- pleaded guilty. A truly wonderful example window before driving off. I was thrilled, solutely no idea who did it. A frail little of brotherly love! particularly as he only wanted a modest woman was helped up the steps into the In the Northern Territory, police inves- commission! witness box in the fourth court by her 50- tigations and interrogations involving In those days, there were a number year-old daughter with the encouraging Aboriginal suspects are subject to the judi- of magistrates who espoused the legal words, ‘You’ll be alright, Mum’. Alan duly cially created Anunga Rules. One rule re-

38 VICTORIAN BAR NEWS Summer 2008 / 2009 The Honourable Justices Buchanan and Vincent Judge Smallwood and John Carmody

Justice Curtain, The Honourable Geoff Eames QC and Chief Magistrate Ian Gray Justice Vincent quired the presence at interrogations of a amputation had been made. ‘How can you 12, Kevin Stewart 13, Joylene Williams, 14, ‘prisoner’s friend’ – being someone who say that the police treated your brother together with two Aboriginal women, Jose- knows or is known to the suspect and well?’ I queried. He gave me a look of part- phine Woods (who had the mental capacity whom the suspect has apparent confidence exasperation, part-pity, before responding: of a child) and Janice Edwards, stole a and by whom he or she will feel supported. ‘Because they didn’t do it’. panel van and items including a Winchester I was appearing for an Aboriginal accused On this day, 29 years ago, the trial of the .22 rifle and ammunition from the Amoon- in a rape–murder trial who instructed Huckitta Five took place in Alice Springs. guna settlement near Alice Springs. On me that the police had threatened to ‘cut Frank Vincent has mentioned that. I’d New Year’s Eve 1978, they drove the panel his cock off’ if he failed to tell the truth. like to finish by talking about it because it van 175 miles to the Huckitta cattle station This informal surgical procedure was to be involved some of the icons of the Criminal which was operated by the elderly Quentin performed without benefit of anaesthetic Bar. The facts are fully stated in Collins & Webb. He was one of three brothers, the using an office guillotine. His brother, who Ors v. R (31ALR257) – you might like to others being Kilmot and Bennett, who held was the prisoner’s friend, gave evidence jot that down on your serviettes. As will vast pastoral releases in the Northern Terri- that the police had treated the accused become apparent, not all the facts I will tory and Queensland. well. Nonetheless he agreed in cross- refer to appear in the report. On arrival, the panel van had two flat examination that the threat of summary Three Aboriginal children, Mark Collins, tyres and Quentin Webb radioed for a

VICTORIAN BAR NEWS Summer 2008 / 2009 39 replacement tube. It would not arrive until He proceeded to pour minuscule amounts evening so the group had to wait. of beer into two of the glasses and then At about 1.00pm, Janice Edwards demolished the three cans. However, the went with the only other person on the flight was not long enough for him to make property, a station hand, to a nearby dam a serious attempt on David Boon’s record. to check some baits. On their return, some In Alice Springs, we were accommodat- 45 minutes later, they found Quentin ed in a Legal Aid property. Vincent and Webb dead. His death had been caused Dee being the most senior had their own by a single shot from a Winchester rifle, rooms. I had to share a bedroom with which had penetrated his chest as he sat Dyson, (though not the bed). Within a reading on a tank stand. By this time the short time, Vincent and I began referring other members of the party had already to our accommodation as Hepatitis House fled the scene in the station Toyota. They – but since you are all still eating and were eventually intercepted by police, in drinking, I won’t, as equity lawyers would possession of the Winchester rifle, which say, ‘condescend to details’. had fired the fatal shot. It was John Dee who was very keen to Judge Katherine Bourke and the Honourable John Ultimately, the crown case was that give us nicknames. I think Frank already Phillips QC 12-year-old Mark Collins had fired the fatal shot, having been persuaded to do so by his companions. The role of Janice Edwards, so it was alleged, had been to lure the station hand away from the scene of the shooting. If this was so, her compan- ions had callously deserted her. Evidence of the circumstances of the shooting could only be gleaned from the suspects them- selves. This was in the form of records of interview and photograph re-enactments. The admissibility of this material was chal- lenged by the defence in a voir dire which occupied six weeks. The solicitor of the Central Aboriginal Legal Aid Service, Pam Ditton, briefed Frank Vincent for 14-year-old Joylene, myself for 13-year-old Kevin, Dyson Hore- Lacy for Josephine and John Dee for Janice – the lady of the dam. Mark Collins, the alleged shooter, was to be represented by a South Australian barrister named Peter Waye. Our fee was $1400 per week. Pam Ditton informed us that Peter Waye had agreed to that fee, although he was nor- mally an $800 a day man; $800 a day for a Carolyn Burnside and Judge Gullaci criminal barrister in 1979 constituted riches beyond belief. On receipt of this news, we immediately christened Peter had the nickname ‘Blue’ but that was rein- the persons charged with murdering their Waye ‘the Golden Larynx’. This was a touch stated by John. Dyson was called ‘Wish- brother. unfortunate as, unbeknown to us, he had a bone’, who apparently was a cook in some Back at Hepatitis House, Dyson was slight speech impediment. Given this cir- TV series. And for reasons that I find very drafted as cook. He was very adept at grill- cumstance, he could be excused for refer- hard to understand, he referred to me as ing steak, fish and chicken, but unfortu- ring to us thereafter as ‘the Melbourne ‘Short Arse’. In turn we referred to him as nately his favourite vegetable was boiled, Mafia’. ‘MTB’ – Municipal Toilet Block. shredded cabbage. One night as a special John Dee had a fear of flying. Soon after All of us, apart from Dee, flew out to view treat, he prepared lobster mornay – that is, we took off for Alice Springs, he ordered the scene at Huckitta station. We were met lobster mornay with boiled shredded three cans of Fosters and three glasses. by Kilmot and Bennett Webb. They were cabbage. Frank and I protested that 9.40am was a impressive men, both polite and gracious As you all know, Dyson gives 110% bit early for us. ‘Not to worry’, said Dee. despite the fact that we were to defend for any client – and that’s when he’s not

40 VICTORIAN BAR NEWS Summer 2008 / 2009 feeling well! One manifestation of this was his endless playing of the tapes of his client Josephine’s record of interview as he lay in bed around midnight. ‘Listen to this, Coldrey,’ he would urge, ‘I think the coppers have stopped the tape’. ‘Dyson, I couldn’t give a stuff if they stopped the tape – I just want to get some sleep!’ Eventually Greg Levine, now a Vic- torian magistrate but then a Legal Aid lawyer in Alice Springs, lent me some Woody Allen tapes. With earplugs in, I was Dyson-proofed, and it looked as if I was listening to my client’s interview – although it must have seemed odd to be chuckling at his damning admissions. At that time, Frank Vincent was training for the Melbourne marathon and each Saturday would run about 22 kilometres west towards Standley Chasm. Rather selfishly, he declined to run back and we were rostered to pick him up. In the case of rosters, there’s always the potential for human error and on one occasion, by the time I reached him, he was crouched under a spindly acacia tree practising the Chairman of the CBA John Champion SC art of dehydration. Dee on the other hand was vigilant to keep dehydration at bay. On one evening, having had one or two for the road and several to fortify himself against the cold of an August evening in Alice Springs, he became disorientated on the way home to Hepatitis House. Finding himself beside the Todd River, he decided to rest. The police located him propped up against the back wheels of a road train still nursing his briefcase. Politely, they dusted him down while warning him of the dangers inherent in his choice of resting place. At this point, some confusion enters the account of events. Certainly the story circulating around Alice Springs the next day was that a barrister named Peter Waye had been found sleeping under a road train. Dee’s explanation, which I accept unequivocally, was that the police must have misunderstood him when he asked them ‘the way’. One of our challenges to the re-enact- ment was that the police had conducted a dress rehearsal of it prior to the arrival of the prisoner’s friend in the afternoon. This they denied. In the middle of the voir dire, Peter Waye had the brilliant idea of flying out to Huckitta to revisit Kilmot Webb. He had been at Huckitta station on the relevant Justices Vincent and Osborn

VICTORIAN BAR NEWS Summer 2008 / 2009 41 morning, and if any such rehearsal had geous decision of Gerry Brennan. They occurred, he would have witnessed it. were so obviously guilty’. It struck me at Waye explained the situation to the old that time that at least in this country, the man. Shrewd as ever, Kilmot Webb asked expression by a judge of a legal opinion is Verbatim him: ‘If that happened, it wouldn’t be good not appropriately described as courageous; Lee v Omni Leisure Operations Pty Ltd for the Crown case, would it?’ Waye admit- and further, that it is not enough that a 16 July 2008 ted this was so. ‘Well,’ said Webb, ‘It did person be guilty; his or her guilt needs to Coram: Byrne J Philbrick SC & happen’. Waye informed him that the de- be determined according to law. Charrington for plaintiff fence would have to call him as a witness. As Frank has said, in the course of the Aghion for defendant As he was about to fly out, Kilmot Webb Federal Court appeal, he and I, filled with said to him, ‘Haven’t you forgotten some- idealism and shiraz, prepared a criminal Aghion: With Mr Lee residing in thing?’ ‘What?’ queried Waye. ‘You haven’t law credo which Frank duly delivered to Tasmania, and indeed a relatively remote got a signed statement from me’. To his the Court. I would like to conclude by part of Tasmania, there may be some eternal credit, Waye replied, ‘I wouldn’t quoting parts of it. time in getting Mr Lee to an appropriate insult a man of your honesty and integrity specialist, be it a Tasmanian specialist by asking you for a signed statement’. A man has been killed. There is no sugges- or a Victorian one. Kilmot Webb came to court, he gave his tion in any of the material that there was evidence and he was unshaken in cross- any justification or even a sensible reason Philbrick: My wife is Tasmanian. She examination. for his death. For practical purposes, the would take issue with the suggestion In the result, the trial judge refused to only evidence against the four people who that Port Arthur is remote. It might have admit the records of interview, but curi- are involved in some way in the events been for the first inhabitants, but it’s not ously, allowed the re-enactments into that led to that death is to be found in this a great ride from there to the airport, a evidence. At the time he gave no reasons confessional material, and that poses for few hours. for the latter ruling. Nonetheless, hun- the legal system a very real challenge. On His Honour: No, that’s right. We’ll pass dreds of pages later in the transcript, he the one hand, it can be said that justice that off as the ignorance of the referred to the reasons he had already must be done, and that the perpetrator or mainlander. given. It strikes me that this is a very clever perpetrators be convicted. On the other judicial ploy which, if adopted, could save hand, justice must never be achieved at trial judges hours of additional work. the cost of the integrity of the system upon In the end, all of those present at the which we all depend. time of the shooting were convicted of Rules of voluntariness and principles of The police agencies must never believe murder. They each received a sentence of fairness underlying the exercise of discre- that the real cost will be a judicial repri- nine years and two months, with a non- tion can be viewed as obstacles in the path mand in a generally unread page of a law parole period of four years. John Dee’s of achieving what is seen to be justice in report, and that they will be forgiven their client, Janice, was acquitted. She should individual cases, to be removed or avoided unlawful or unfair behaviour when the never have been charged. by restrictive interpretation or sophisti- circumstances of the crime are serious On appeal to the Federal Court, Justice cated fact-finding processes. But I need enough. It is sufficient to say that the Brennan ruled that the re-enactments had hardly remind this Court that the com- Courts must adhere to the professed not been shown to be voluntary and were mon law has taken a long time in its devel- ideals and values of the common law if therefore inadmissible. He pointed to the opment, and its wisdom and philosophy that system is to retain any legitimacy… conduct of the police in taking the appel- must be viewed in that same long range. It is always easy to want to find in lants back to Huckitta without their It is simply a truism that part of the cost favour of the clearly innocent. It is always consent; leaving them at the scene for of living in a society where there is a fun- easy to want to find in favour of the many hours without informing them of damental right against self-incrimination beautiful. It is a far more difficult task, it the reason for their presence there; provid- is that there will be occasions when perpe- requires a far higher degree of honesty at ing a prisoner’s friend who was unknown trators will avoid the processes of law. But all levels in our system, to say, irrespective to them and who virtually acted as a police it must be remembered that it is law which of what the situation appears to be in the agent; and requiring them to perform they would avoid and not the exercise of short term, the wisdom of the common re-enactments without any adequate cau- arbitrary power. law requires that the fundamental rela- tion. At no time were the children’s parents The Courts must never permit them- tionships between people, and the society notified of their predicament. selves to become a part of conspiracy in which they live, be maintained. But Justice Brennan was in the minority. which authorizes and justifies such power Subsequently, after a two-day hearing, a because it suits the short-term ends in a We wrote and said more – we’d had rather High Court bench of five refused leave to particular case. They must never combine a lot to drink – but we still regard those appeal. with others whose duty it is to enforce the principles as vital to the operation of the At a social event immediately following law to effectively deny fundamental rights criminal justice system. their decisions, Justice Lionel Murphy and protections to members of this com- I’ve said enough. Thank you all very remarked to us: ‘That was a very coura- munity. much for coming tonight.

42 VICTORIAN BAR NEWS Summer 2008 / 2009 ince 2003, the Victoria Law Foundation has made awards to recognize distinguished pro bono service in the legal community. In past years the Foundation has been partnered by the Federation of Community Legal Centres (Vic) Inc (2003), The SInstitute of Legal Executives (2004), The Victorian Bar (2006) and Tarwirri (Indigenous Law Students and Lawyers Association of Victoria), the Victorian Aboriginal Legal Service and the Department of Justice Indigenous Issues Unit (2007). This year, one award was presented to Will Alstergren, a barrister at the Victorian Bar and Member of the Victorian Bar Council, for work with the Duty Barrister Scheme. In 2007, Will assisted with the establishment of a pilot project to run a Duty Barristers Scheme. Under the Scheme, junior barristers volunteered to act as pro bono ‘duty barristers’ to promote access to justice and provide legal representation where it would otherwise be unavailable, whilst gaining valuable court experience. In accepting the award Will said: ‘The duty barristers’ scheme has completed its three month pilot and has been a great success. The benefit to the community by the scheme’s pro bono repre- sentation has been in the order of at least $200,000 and will commence shortly on a permanent basis.’ Speaking at the awards ceremony, the Honourable Marilyn Warren AC, Chief Justice of the Supreme Court of Victoria gave the speech that follows: Pro Bono Lawyers have long known the benefits and rewards of pro bono service. In the profession there is a tremendous proclivity to helping the disadvantaged. Without a willingness to provide legal representation on a pro bono basis, our legal system would fray. Each person has a right to legal representation and it is our obligation to adequately Awards facilitate this need. As a profession our duty is to promote and serve the legal system with the highest of integrity. This duty is never waived. We like to think that a person On 11 November 2008 in the does not become a doctor unless they wish to help the sick. So too, we should think a person does not become a lawyer unless they wish to help the needy and disadvantaged Supreme Court Library, the in the community. Victoria Law Foundation In Victoria law firms are significant contributors to the administration of justice through their pro bono work. We know that firms who receive work from the Victorian announced its awards for 2008 Government spent $7.7 million of their own money that way in 2006–2007.

The Honourable Chief Justice of Victoria, Marilyn Warren AC with Will Alstergren, an award recipient

VICTORIAN BAR NEWS Summer 2008 / 2009 43 Amanda Jones, Senior Solicitor Corporate Advisory, Clayton Utz; Andrew Jones; Sue Polites; Deborah Polites, Melbourne Pro Bono Coordinator, Clayton Utz; and Joh Kirby, Executive Director, Victoria Law Foundation

In addition, firms provided pro bono services equivalent to 15 per cent of their revenues from the Government. Nationally is it estimated that law firms and individual lawyers contributed $250 million worth of pro bono work in 2007. Without doubt, the pro bono services given by law firms, individual lawyers and barristers provide the oil to keep the jus- tice system on track. Without their contri- bution, the system would crack and delays in courts would be exacerbated. The Victorian Bar Legal Assistance Scheme has over 400 participants who have offered their service for no fee or a substantially reduced fee to people in need of legal representation. This scheme, as highlighted by the Victorian Bar, is not a substitute for Legal Aid. Rather the scheme works to complement, if you like, the Legal willingness of Victorian barristers to help Heather Pelly; Russell Robertson, Partner, O’Farrell Aid framework. The scheme provides an the disadvantaged. Robertson McMahon; Michael Robertson; and Irene avenue for cases which are meritorious in Recognition, however, for this work is Robertson their content or which highlight difficult not so often given. Continued concern legal principle, that without adequate relating to the cost of justice, fails to take finance, would never be heard. It is the into consideration the dedication and work of the Victorian Bar, such as the diligence of hundreds of legal professionals Legal Assistance Scheme and the Duty who are providing a service to our legal Barristers Scheme, that illustrate the great system and to a greater degree, our state.

44 VICTORIAN BAR NEWS Summer 2008 / 2009 ultimately leads to a draining of resources. As well, the inability of self-represented litigants to clearly articulate the real issues in their case could possibly result in injus- tice, particularly where the opposing side has legal representation. As a State and as legal professionals we can be very proud of the work that has been done on our behalf to help people of disadvantage. The hundreds of Victorian barristers who offer their time to help members of our community who find themselves isolated and bewildered by the system, are proving that our profession has at its core a true sense of social responsi- bility. This feeling of responsibility to our society, for some, and we hope most, was the catalyst for pursuing law as a career. It is those dedicated people, many of whom are here tonight, who have provided Vic- Alexandra Richards QC, Barrister and Board Member of the Victoria Law Foundation toria with the ability to champion the rights of our state’s most victimised and Access to justice is a vital matter. Ben Schok- The pro bono work done not only by vulnerable. We have more to do, but we man, a lawyer with the Human Rights Law barristers but also firms has long been must also acknowledge the tremendous Resource Centre, said in The Age earlier overlooked. The firms, some represented and inspiring work that has already been this year that the lack of recognition of here tonight, have shown excellence in the done so far. Tonight’s awards provide the what Victorian barristers do for our legal pro bono service they offer to our commu- chance to recognize and applaud the self- system is continually devaluing and contra- nity. It is a service that uses the resources less generosity of Victorian barristers and dicting the actual work done by so many. of their respective firms and helps promote lawyers. Mr Schokman asserted that without our legal system. Without this, our legal the Victorian Bar’s contribution to our system would be ineffective in being able Other recipients of awards were: legal system by offering pro bono services to adequately deliver justice to the com- Allens Arthur Robinson ‘many Victorians would find it impossible munity. The firms who make it their re- for work with the Human Rights Law to navigate a highly complex legal system sponsibility to offer support to individuals, Resource Centre and realise their legal rights.’ This piece disadvantaged in some way, are providing was published after the assertion that our community with the ability to achieve Blake Dawson barristers’ fees prohibit access to justice. access to representation. for partnership with Youthlaw The contribution of the Victorian Bar and Court proceedings are often financially Clayton Utz the profession should be praised. Without burdensome to many individuals and or- in recognition of the diversity of its it the system of justice in this state would ganisations. It is therefore pivotal to the ef- program be in serious difficulty. fectiveness of our legal system to have Earlier this month, the National Pro barristers, solicitors and firms who are Corrs Chambers Westgarth Bono Resource Centre released its survey acting to enhance an individual’s ability to for partnership with the Victorian data into the pro bono work provided by gain representation. Without legal profes- Association for the Care and Resettlement barristers in Australia – the first national sionals offering such a service, we would be of Offenders survey of its kind. Some 355 barristers seeing an even larger number of unrepre- DLA Phillips Fox were surveyed, 154 of them Victorian, sented or self-represented litigants before for partnership with the Environment representing approximately 9 per cent of the court. Indeed not withstanding the Defenders Office the State’s barristers. 136 of Victorian bar- increase in pro bono service, this has been risters’ surveyed had undertaken pro bono a trend in recent years. The challenge for Minter Ellison work in the previous twelve months. the self-represented litigant is that he/she for its Indigenous Outreach Program with The survey revealed the mean number often has little to no experience of the legal Darebin Community Legal Centre of hours Victorian barristers dedicated to system. The flow on effect of this is a sig- Russell Robertson, partner of O’Farrell pro bono work in the last twelve months nificant increase in the hours spent in Robertson McMahon was 51–70 hours, compared with the court by judges to adequately facilitate such for work with Bendigo Health Outreach. national mean of 41–50. It is findings such parties representing themselves. A limited as these that should make the Victorian knowledge of the system, court processes community proud. and procedures and to an extent, the law,

VICTORIAN BAR NEWS Summer 2008 / 2009 45 Portrait of Sir Daryl Dawson

On 25 September 2008, Justice Alex Chernov delivered the following speech on the unveiling of the portrait of the Honourable Sir Daryl Dawson AC KBE CB QC at a ceremony at Owen Dixon Chambers.

t is a great honour to have been asked to unveil the portrait of Sir Daryl Dawson, but I now wish that I had paid more attention at such events to the intricacies involved in actually unveiling the portrait without making it fall off its stand. The hanging, Ihowever, comes later. At the outset, I want to congratulate the Bar on its foresight in continuing to hang portraits of its distinguished members who have given outstanding service to the law, the administration of justice and the community so that the current generation of barristers can be reminded of this fact through those portraits and, thus, have a greater appreciation of the tradition of the Bar, more particularly the obligation to serve the community. As I understand it, the unveiling of a portrait is a relatively formal occasion. Nevertheless, and without intending to be disrespectful to the subject of the portrait, I will lapse into some informality and will refer to Sir Daryl simply as Daryl or Daryl Dawson – partly because many of you here this afternoon are his long-time friends, but mainly because the Bar has a proprie- torial attitude towards him. Whatever position or office he held, he was always referred to at the Bar, affectionately or in awe, as Daryl Dawson. It is said that a person’s genes play an important role in the development of his or her health, brainpower and so on. Of course, one cannot take this too far and claim, for instance, that genes have been the cause of his or her impugned conduct, if for no other reason than, if it were otherwise, every plea in mitigation of sentence would begin: ‘It is the fault of his genes, Your Honour. It’s the genes!’ But in Daryl’s case, I suspect that genes were an important fact in the development of his intellect, his independent mind and his keen sense of service to the community.

The Honourable Alex Chernov QC

46 VICTORIAN BAR NEWS Summer 2008 / 2009 Guests at the unveiling ceremony, Sir Daryl in the foreground

Sir Daryl was born in Melbourne where News and Information Bureau in London, from that moment that he developed his father Claude Charles (Dick) Dawson while Mrs Dawson lectured on the Aus- a passion for seeking to understand the was a journalist with The Argus, when that tralian war effort. rationale that underpins our laws. paper’s reputation for informed reporting Sir Daryl’s father was a brilliant speaker, Sir Daryl studied law at the University and fine writing was at its peak. Mr Daw- but his passion was writing. He was offered of Melbourne, where he took out a first son, who was a theological graduate, a permanent appointment in the public class honours degree. That Daryl excelled completed his MA in philosophy at the service, which he declined. Although the at the university shows that he was able to University of Melbourne where Sir Daryl’s position was much coveted, his independ- overcome the huge mistake that he made mother, Elizabeth, also took out an MA. ence was such that he chose to earn his liv- when he first moved there from rural Can- In 1938, when Daryl was four years old, ing as an independent political journalist. berra, namely, sharing accommodation in the family moved to Canberra. His father Unfortunately he died at the early age of 43 Ormond College with John Barnard and had taken up the appointment of press when Daryl was 12 years old. In the result, Snoz Angel. His then more sophisticated secretary to the Prime Minister, Mr Lyons. Daryl was no stranger to hard work and to colleagues led him astray in the early days, Mr Dawson worked closely with the Prime close family relationships. but it was not long before Daryl did not Minister, writing most of his speeches, and It was also in Canberra where young need his friends’ help to do that. was with him when he died in April 1939. Daryl first became involved with the law. It is well known that Daryl and Barnard Upon Mr Lyons’ death, the new Prime In the 1940s and early 1950s the footpaths in particular became life-long friends. Minister, R.G. Menzies, appointed Daryl’s in Canberra were not exactly packed with Despite the frivolity of university and col- father as his press secretary. Later, under pedestrians, yet young Daryl somehow lege life, Daryl became an enlightened and Prime Minister Curtin, and as the person managed to get himself arrested during active member of the Students’ Represent- in charge of the Information Office, he this period on a cold winter’s morning for ative Council and, as a resident of Ormond went first to New York and then, in early riding a bicycle on a footpath with his College, took part in a variety of activities 1944, he opened and ran the Australian hands in his pockets. It is said that it was at the university and his college. Later,

VICTORIAN BAR NEWS Summer 2008 / 2009 47 Sir Daryl Dawson and the Honourable Alex Chernov QC admire the portrait

The subject and the launcher with the Chairman of the Bar Council, John Digby QC

48 VICTORIAN BAR NEWS Summer 2008 / 2009 arrived at Port Moresby. When he asked him why he had been briefed, the solicitor told him that he had heard that there were good barristers at the Victorian Bar so he rang Daryl’s clerk and told him that he wanted a barrister who was tall and thin and could get down a mine shaft! The extent of Daryl’s popularity and the high esteem in which he was held is reflected in the fact that he had 11 readers, including: Justice Goldberg of the Federal Court, Justice Hansen of the Supreme Court, the late Jack Strahan QC, Daryl Wraith and Geoffrey Gibson. I also had the good fortune to read with Daryl. His pupils found that they had a master with an extraordinarily clear and logical mind and an ability to express his thoughts with great precision and brevity. It would have been a very intimidating experience but for Daryl’s patience, goodwill, sense of hu- mour and friendship. Daryl Wraith, Sir Ninian Stephen and Lady Stephen In 1974, Daryl left his burgeoning practice to serve as Solicitor-General for Victoria, taking over from Tony Murray who, as I have mentioned, was appointed whilst at the Bar, he was resident tutor at ment at that time – appearing there and to the Supreme Court. Daryl occupied that Ormond. elsewhere in numerous important and office until his elevation to the High Court Towards the end of his studies in Mel- often high-profile cases and enquiries. Im- in 1982. bourne, Daryl was awarded a Fulbright portantly, Daryl also appeared in a number The office of the Director of Public Pros- Scholarship to Yale and he travelled there of difficult criminal cases. ecutions was then not in existence in Vic- in style – on an ocean liner, no less! As it Daryl was a penetrating cross-examiner, toria so that, as Solicitor-General, Daryl happened, there was on board another and some of you may have heard the story had the difficult task of fulfilling that role Melbourne law graduate, who had a justi- of one particular experience he had in that as well as dealing with civil law, both in fiable reputation for enjoying life to the regard. Nevertheless, I think that it is the appellate courts and as principal legal full, and who was also off to the United worth repeating. It illustrates that even the advisor to the government. But he enjoyed States, to the University of Michigan. It greatest cross-examiner can be unlucky the criminal law and the opportunity to was none other than Jack Hedigan! One and have the wind taken out of his or her analyse and argue it at appellate levels. probably need say no more about this trip sails. On the occasion in question, Daryl Thus, it is unsurprising that his enormous – you can gather for yourselves the general was conducting a complex commercial contribution to the establishment of im- picture of their ocean voyage. I would only case in what was then British North Bor- portant principles of criminal law began add this – I have it on good authority that neo, and was cross-examining with some in earnest while he was Solicitor-General. there were about 800 people on the ship, force an elderly Chinese gentleman. It was It was in this field that Daryl left an endur- broadly made up of 200 men and 600 a very effective cross-examination but, just ing legacy and, when he was appointed to mostly single young women. as Daryl was about to move in for the the High Court, Daryl was the most expe- After completing his LLM at Yale in kill, the judge leant over the Bench and rienced criminal law barrister on that 1956, Daryl returned to Melbourne where exclaimed to Daryl: ‘Would counsel please Bench. he entered into Articles with Pat Kennedy show more respect for witness. He is uncle Daryl was also involved as Solicitor- of Coltman Wyatt and Anderson. He was of Judge!’ General in arguing in the High Court, called to the Bar in 1957 where he read It is apparent enough that Daryl was numerous important constitutional cases, with B.L. (Tony) Murray, later Solicitor- one of the busiest barristers in Australia many of which were concerned with the General for Victoria, and then a judge of and the Pacific. What is less known, how- rights of States and the operation of feder- the Supreme Court. He took silk in 1971. ever, is that he was sometimes briefed alism. Time does not permit a full analysis At the Bar, he developed a very large for reasons that were totally unrelated to of those cases. I will mention but a few. practice, principally in commercial and his forensic skills. Take, for instance, his One was the important Seas and Submerged constitutional law and was much in de- appearance in a mining case in Papua New Land Case and he was heavily involved in mand as counsel in Australia and the Asia Guinea. He was briefed by an English what became the Offshore Constitutional Pacific region – an exceptional achieve- solicitor whom he had not met until he Settlement. He also advised on legislation

VICTORIAN BAR NEWS Summer 2008 / 2009 49 that became The Australia Act 1986 (Cth) stance, his unrivalled understanding of the into the Longford Gas Explosion – one and he persuaded the High Court in the criminal law, the trial process and the law with which he dealt like a hot knife through Commonwealth v Hospital Contribution of evidence is apparent from cases such butter. He also conducted the important Fund (1982) CLR 69 that there is no re- as Whitehorn v R (1983) 152 CLR 657; enquiry into the Trade Practices Act. He quirement under the Constitution that fed- Giorgianni v R (1985) 156 CLR 473; and remains an arbitrator par excellence on the eral jurisdiction should be exercised only Shepherd v R (1990) 170 CLR 53. A like national and international stage. by full-time judges with security and observation can be made about his contri- But Daryl’s interests have never been tenure and minimum remuneration. This bution to other areas of the law, including limited to the law. He is extremely well read decision resulted in the High Court over- Constitutional Law. But, first and fore- and versed in a range of subjects which in- turning some of its earlier pronouncements most, he was completely independent in clude philosophy, religion, the political in this area. As I have mentioned, this is but articulating the law and in deciding the process, literature and higher education. the tip of the iceberg in terms of Constitu- case. The Dams Case and the Mabo Case He played sport when time permitted it tional cases with which Daryl was involved are good illustrations of his adherence to and I can vouch for the fact that he was a as Solicitor-General. principle and his independence in arriving formidable opponent on the squash court, Notwithstanding his extremely busy at conclusions based on principle. Not sur- where he took no prisoners, albeit playing period at the Bar and as Solicitor-General, prisingly, his influence on the High Court’s within the rules. He is still a regular attend- Daryl somehow managed to find time to thinking was, and remains, considerable. ee at the Beaurepaire Gymnasium at the serve on number of important public and Daryl may not thank me for this but, University. other institutions, particularly giving serv- surprisingly, a succinct and apt description Notwithstanding his achievements and ice to many from which he had benefited of his qualities as a judge is to be found in the recognition bestowed on him, Daryl in the past. Essentially, he followed Mother Justinian, regarded by many in the legal has been a very private person, and has Teresa’s dictum that if you want to keep the world as a mere gossip sheet. The particu- shunned the spotlight and eschewed aloof- lamp burning, you must replenish it with lar publication listed, over a couple of pag- ness. His reserve, however, has not masked oil. Thus, for example, he was the inaugu- es, the names of a number of judges under his good sense of humour, his loyalty, his ral lecturer in Introduction to Legal Meth- the heading ‘Worst Judges’. This was fol- kindness to others or his level of tolerance od for the Council of Legal Education and lowed by a few pages of criticism or, as it for the opposite point of view – all of which taught that course for many years. He was said, ‘insults’, that were referable to those he demonstrated at the Bar, as Solicitor- a member of the Victorian Bar Council and judges but not juxtaposed to any one of General, on the Bench and privately. He many of its important committees, includ- them. The reader was invited to match was even a model of courtesy to the well ing its Ethics Committee, which he chaired. each insult to one (or perhaps more) known litigant, Mr Sykes, who once ap- Outside the law, Daryl served as member, ‘Worst Judges’. The exercise was fun! peared before Daryl but declined to have and then Chairman, of the Ormond Col- The publication also had a list of ‘Best his case heard by him and walked out of lege Council, a member of Convocation, Judges’ with a caption ‘Spot the Difference’. the courtroom because, he said, in his and later the Council, of the University of It is in the latter context that there is refer- judgments, Daryl split the infinitive. Melbourne. He was also for many years a ence to Daryl in the following form: In summary, Daryl has made an out- member, and then Chairman, of the Aus- Dawson, Sir Daryl Michael…High standing contribution to the Australian tralian Motor Sport Appeal Court. In those Court community in a variety of ways within and and like capacities, Sir Daryl gave his time 1. Brilliant legal brain and the only judge without the law. His 15 years on the High generously and made lasting contributions to take a stand against trendy, left-wing, Court were particularly lonely and diffi- to those bodies. politically correct, so-called legal doc- cult, during which he carried the onerous As I have mentioned, in 1982, Sir Daryl trines that pervade the High Court. burdens of office and commuting as High was appointed to the High Court, from 2. Unfailing courtesy to the profession, a Court judges must do. His task was made which he retired prematurely on 15 August delightful sense of humour, genuine er- easier, however, by the support given to 1997. During his period on the Court, udition on matters of law and especially him by his wife, Lady Dawson, whom Daryl personified the very essence of a legal history, and a remarkable capacity Daryl married in 1971. distinguished and wise judge and jurist. for ‘getting it right…’. It is therefore appropriate that Sir Daryl’s Like the late Sir George Lush, he was eco- 3. He is principled, and has legal sound- portrait hang in the principal entry to the nomical with words when sitting on the ness and commonsense. He is not home of the Bar for all to see in recognition Bench and when formulating his reasons unlike Owen Dixon in legal intellect of his great public service, which included for judgment. He had been similarly eco- and approach. service to the Bar, the administration of nomical when he appeared as Solicitor- It is a very good summary, I think, of justice in this State and this Country, and to General before the High Court. Daryl’s qualities as a judge. the community generally. Daryl’s reasons for judgments reflect his Daryl’s contribution to the administra- It gives me great pleasure to unveil Sir disciplined mind, and are models of clarity tion of justice continued after he retired Daryl’s portrait. and cogency. Importantly, they also dem- from the High Court. For instance, he be- onstrate his thorough knowledge and un- came a member of the final appellate court derstanding of the law, the reasons for it in Hong Kong, and conducted, amongst and its place in our community. For in- other enquiries, the Royal Commission

50 VICTORIAN BAR NEWS Summer 2008 / 2009 Investment and superannuation for barristers

The financial difficulties that have recently Indeed, recent changes to the taxation realty (for the purchase of shares, negative arisen in Australia and elsewhere are pro- of superannuation provide unique and re- gearing has greater practical dangers). As found. They have caused many barristers markable advantages. When a member’s a simple example, if a person purchases a to question their investments and to en- rights are (broadly, after he has retired) con- house for $500,000 and provides a deposit quire to what extent they themselves are verted into a pension, the assets that gener- of $100,000, that person may borrow affected. ate the pension become free of all income $400,000. Initially the house may be let However, the present time is not one tax (including capital gains tax). Addition- out at a small annual loss (which is fully for precipitous action. On the contrary, ally, all consequent payments of pensions deductible from other income). However, barristers should follow carefully the con- are themselves entirely tax free. This very with inflation, rentals rise, and ultimately servative methods of saving and invest- generous position has been brought about the investment breaks even and goes on ment that are ordinarily appropriate. These deliberately, in order to encourage self-pro- to be profitable when the rental income methods are effective despite the propensi- vision, as opposed to reliance on govern- exceeds outgoings. At this stage the house ties of markets to rise and fall. mental welfare. It is a position that ought to is worth, say, $1 million. In effect the initial It is proposed to discuss here some of be freely availed of. However, the annuities $100,000 equity has become a $600,000 the investments that are particularly im- and pensions granted by insurance compa- equity. This consequent gain is moreover portant at the present time. nies are often unacceptably low. Hence a capital gain. If one sells the house, only First, many barristers are concerned – persons taking advantage of taxation con- half of this consequent profit is taxable. some gravely concerned – by the poor per- cessions should generally at least be persons Thirdly, great caution should be shown formance of superannuation funds during who have their own personal superannua- in regard to exotic tax-minimisation ar- the past year. This difficulty has arisen be- tion funds, where the capital may be invest- rangements. Those who participate in such cause equity markets (and especially stock ed in a range of satisfactory investments. arrangements often find that on the one markets) have fallen sharply. Yet one of the Where investment difficulties are encoun- hand they do not obtain the taxation least wise steps that a barrister might take is tered, such as through a lack of investment deductions that they seek and that on the to reduce superannuation commitments. skills, these may be overcome by acquiring other hand there is a commercial failure, Superannuation funds – and especially shareholdings in listed investment compa- so that their financial contributions are general funds such as the Victorian Bar nies, such as Australian Foundation or Argo wholly or partly lost. Superannuation Fund and industry super- Investments, which have records of good Finally, when I was Chairman of the Bar annuation funds – have the characteristic returns over many decades. Superannuation Fund (I subsequentally that over a substantial period members’ As with superannuation, so with other left the Bar in order to become the Editor accumulations increase impressively, not avenues of investment, timing is particu- of the National Observer) I spoke with large least by reason of the effect of compound- larly difficult. For practical purposes, bar- numbers of barristers and advised them ing. Here there may be recalled what ac- risters should accept that they and their generally that in purchasing realty, the countants refer to as the rule of seventy-two. financial advisers are unable to determine nearer the realty was to the centre of Mel- If one divides a rate of interest or of return the maximum points and minimum points bourne, the better. This advice still applies. into seventy-two, the result is the approxi- of markets. A qualification is that in the It is particularly true of houses, as opposed mate number of years in which there is a past those who have invested at times of to apartments, since more and more houses doubling of capital. So if combined income recessions have fared particularly well, in inner suburbs are being demolished in and capital gains equal ten per cent, in ap- since recessions have been followed by order to be replaced by apartments. proximately seven years there is a doubling what are referred to as market bounces. of capital. In 14 years the capital quadru- Some may take the view that on this basis Professor Ian Spry QC was for many years ples, and in approximately 20 years it is the current time is a particularly suitable Chairman of Trustees of the Victorian Bar eight-fold the original capital. time for investment Superannuation Fund and advised barris- Accordingly superannuation offers the Secondly, negative-gearing is permitted ters on their savings and superannuation. facility of making annual contributions by the taxation legislation and is regarded as – the earlier the better – whereby a large entirely legitimate. It should be considered capital sum is eventually received. by barristers in regard to the purchase of

VICTORIAN BAR NEWS Summer 2008 / 2009 51 A bit about WORDS

Odd sounds

Some English words sound odd. Some of the North East of England. The word thither adv. to or towards that place sound funny, some sound grim, some has never appeared in a dictionary since whither adv. to or towards what place sound cheerful. I am not sure what charac- the 1700s.’ Actually it can be found in the teristics determine what is a normal long version of the OED2, in the entry for The only really current words in the list sounding word and what is an odd or fun- moider which has moither and mither as are dither and slither. Hither, thither and ny or grim sounding word, but they are variants. But it is obsolete. And it got me whither would be understood by most easily recognisable. Probably it is a reflec- thinking that not many words in current people, but used by few. Blither is at the tion of our sense of phonaesthesia: the use end with –ither. Leave aside either and edge of extinction and the rest are gone. feelings associated with particular sounds. neither, in which it is not pronounced with The interesting thing about the list is the Some consonant sounds come to have an a short i. Consider the list: common sense which links anither, blither, association with related ideas: crash, bash, dither, mither and swither, and a very use- flash, dash, hash and splash are examples. anither to bring down, lower, reduce, ful sense at that: perplexity, uncertainty, Likewise slip, slap, slop, slide, slunk, slinge, humiliate indecision. How odd that all but dither slither, slurp, sleazy, and slippery. blither v. to talk nonsense; n. nonsense; and have disappeared, and dither is now weak- This sense is said to underpin onomato- one who makes blithe; a gladdener ened, because it is used only intransitively. poeia: the creation of words which dither v. (originally) to tremble, quake, Blither survives only in the participial form describe things with a sound that echoes quiver, thrill. Now in general use: to blithering, and even in that form it sounds the thing itself. So: cuckoo, tick-tock, vacillate, to act indecisively. Also as pretty dated. crunch, smooth and sludge are all onomat- a transitive verb: to confuse, perplex, Hither, thither and whither are close to opoeic. Onomatopoeia imitates nature, make nervous. obsolete now. They retain the original Ger- but phonaesthesia is a response which mither (moither) To confuse, perplex, be- manic construction in which -her signifies does not call on the natural world at all. wilder; to worry, bother, fatigue: so, a movement towards a place, and they vary Some sounds seem to gather a crust of fair synonym for the transitive sense of only in the place of reference (here, there, associations about them. For example, dither. where). Hither and thither is still heard as a consider the words (not many in number) slither n. Loose stones lying in great quan- tired ornamental phrase, and occasionally which end with: tities on the side of a rock or hill; a slip- hither and yon (for yond – which means -inge (about 100 unique words) or ping or sliding; v. to slip, slide, glide, on (or to) the farther side of, beyond). -unk (about 70 unique words) esp. on a loose or broken slope or with Whither was very useful for people with -ither (about 15 unique words) a clattering noise. a fixation about terminal prepositions: I started thinking about this when a smither n. a smith or hammerman; agile or whither are you going? was (for them) to person wrote to me lamenting that mither active (as smiths have to be) be preferred over Where are you going to? is not recorded in the dictionary, and swither v. to be or become uncertain; to Tastes vary. is not used any more. He noted that it is falter; to be perplexed or undecided; to Another oddly evocative sound is ‘still commonly used by the everyday folk hesitate; n. a state of agitation or excite- -inge. What an exotic collection of in North Derbyshire, North Staffordshire, ment; a flurry, fluster adj. the right hand words share this little syllable: abstringe, South West Yorkshire, and the South side; accinge, beswinge, circumcinge, compinge, Cheshire and apparently in certain areas hither adv. to or towards this place constringe, dinge, dringe, effringe, elinge,

52 VICTORIAN BAR NEWS Summer 2008 / 2009 fulcninge, ginge, harbinge, impinge, In addition, there are the more familiar is a good illustration of its opposite: it justninge, linge, minge, prestringe, restringe, bunk, drunk, hunk and junk. None of these sounds ugly, but it is describing words scringe, sedinge, sickinge, slinge, springe, words sound good: they sound clunky. which sound ugly, which raises a paradox: stinge, swinge, syringe, and valdinge. Many of these words are obsolete. But it anti-phonaesthetic is phonaesthetic. It sounds like a riff from the Goon Show. is not surprising that runk is out of use: It is not easy to find words whose meaning And a few familiar words have the sound: it never had a chance. It meant to whisper is so badly served by their sound, but here binge, cringe, fringe, hinge, singe, tinge, or murmur. It is an ill-sounding word for are some that spring to mind. Turdiform whinge. Apart from these seven words, it is such a meaning. Other words with the (relating to a thrush); pulchritude (beauty); hard to find a current English word with same meaning were better suited: brum, effulgent (radiant); concinnate (referring inge as its dominant syllable. A good thing buzz, hone, hummer, hurn, insussurate, to language: of studied elegance); compt too: it sounds odd. muss, mustle, sussur, sussurate, whimper (elegant); venustity (gracefulness); mensk Any word in which unk is the dominant and whist. (to render graceful); sacricolist (devout syllable is likely to be evocative but not in a Others rank with runk, as words whose worshipper); albedineity (whiteness) and good way. Consider some of them: sound does not suit their meaning. Other flosculation (an ornament of speech). Alitrunk (an insect’s thorax), begunk (to words meaning whisper or murmur in- I would be happy to receive other delude), blunk (to turn aside, to flinch), clude some real shockers: channer, chunter, examples of anti-phonaesthetic words. chunk, clunk , crunk (a harsh cry or croak), gruntle, grutch, hoine, mork, murgeon, JULIAN BURNSIDE dunk, flunk, forswunk (exhausted with nipper, repine, yammer, and yorner. These labour), funk, gunk, insunk, lunk, plunk, are all anti-phonaesthetic words, by which punk, runk, skunk, slunk, spelunk, sprunk, I mean words whose sound seems con- swunk, thunk, and whunk. trary to their meaning. Anti-phonaesthetic

Mo’ justis the law of defamation in Texas

Having previously brought readers a criminal case from Texas, Bar News now looks at the civil side

e again bring you a strange It all began back in late October 1999 Colorado. So little Chris comes before but true tale from Texas. As is when 13-year-old Christopher Beamon, Juvenile Court and Judge Darlene Whitten well known, defamation law in a seventh-grade student, was assigned and Bruce Isaacks, the local District Attor- Wthe US favours the tortfeasor in that the to write a ‘scary’ story for Halloween. He ney. Judge Whitten ordered Beamon to be First Amendment to the US Constitution wrote a story about the killing of a teach- detained for ten days at the Denton Coun- [see also Article 1, Section 8 of the Texas er and two students and received extra ty Juvenile Detention Facility. Another Constitution] supports robust debate and credit from his teacher. However, the Pon- judge ordered his release after five days freedom of speech and the press. That is der High School principal contacted when a media savvy lawyer, acting pro not to say that a defamed plaintiff cannot juvenile authorities to have the student re- bono, tipped off the news media and the win in the US – it’s just that much harder moved from the school. Lest readers think ensuing publicity convinced DA Isaacks to do so – witness the efforts made by the this a bit over the top, in defence of the not to proceed with prosecuting the kid. defendant Dow Jones to have plaintiff Joe principal we remind readers that this inci- The incident attracted widespread media Gutnick’s case transferred out of Victoria dent took place some six months after the attention, including Australian news to the US. Columbine High School shootings in reports. In response, Rose Farley of the

VICTORIAN BAR NEWS Summer 2008 / 2009 53 Dallas Observer wrote a satirical article, how Max told his mom he wanted to eat their statements? After all, the very gist ‘Stop the madness’ [November 11, 1999, her up and ran away in his mind and did a of satire and parody is the falsity of the pages 11–13; the original article is availa- rumpus with the monsters doesn’t mean I parody, despite its mirroring of reality. ble at: the suggestion that Where the Wild Things when the prior acts of the plaintiffs or viewed sure,’ she said. ‘It’s bad enough people think contained in the parody? Can the plaintiffs June 4, 2008]. like Salinger and Twain are dangerous, but argue that the ‘average reader of ordinary As satire, Ms Farley’s article was a doozy Sendak? Give me a break, for Christ’s sake. intelligence’ is unable to distinguish fact – she had a fictitious six-year-old Cindy Excuse my French.’ from parody when their own prior acts Bradley who had written a book review of Not all of the Observer’s readers, how- lend credibility to the false statements Maurice Sendak’s Where the Wild Things ever, were aware that Farley’s article was a published in the parody. Can the plaintiffs Are (1963). In Farley’s story, Judge parody. A radio talk show host and the rely on their prior conduct to clothe the Whitten detains six-year-old ‘Cindy’ for University of North Texas school news- outrageous assertions in the parody with presenting a book report about ‘fanati- paper both reported the parody as real a veneer of verisimilitude when those cism, cannibalism, and disorderly con- news. Whitten and Isaacks received angry outrageous assertions are but an echo of duct.’ Cindy is placed in ankle shackles and letters and criticism following the Observ- their own prior conduct? Conversely, can handcuffs, and District Attorney Isaacks er’s story, and some letters called for Whit- the defendants rely on the incredulity of considers prosecuting Cindy as an adult. ten’s resignation. Whitten and Isaacks the ‘average reader of ordinary intelligence’ The story also uses fictitious quotes, such asked the newspaper to apologize and when prior reports of the plaintiff’s as a fabricated quote from a county bailiff retract the story, but the Observer pugna- conduct may have imparted credulity to who comments on having tiny, child-size ciously responded by ridiculing Whitten that average reader? To quote from the handcuffs and shackles on hand from in its November 18, 1999 ‘Buzz’ column. newspaper’s November 18, 1999 ‘Buzz’ Beamon’s recent detention. The article in- The column also referred to its readers column: cluded a ‘mug shot’ of the cute little six- who did not get the joke as ‘cerebrally year-old terrorist holding a plush toy challenged.’ [see view- our satire was too close to reality, then the cuffs this small? Be afraid of this little girl.’ ed June 5, 2008.] problem is with reality. If some people find The article then describes Beamon’s actual Following the failure of the paper to it believable that a juvenile court judge arrest. Additionally, the judge was quoted apologise and retract, the judge’s husband, would jail a six-year-old girl for writing as saying, ‘It’s time for you to grow up, attorney Michael J Whitten, filed on her about a children’s picture book, it’s because young lady, and it’s time for us to stop behalf [thus extending the old saw to that same judge jailed a 13-year-old boy. treating kids like children.’ Denton County include the wife as the foolish client and District Attorney Isaacks is quoted as say- the husband as an even bigger damn fool!]. The Supreme Court of Texas decided ing that he had not yet decided whether to Governor Bush, perhaps receiving better both these points in favour of the defend- prosecute Cindy and that ‘We’ve consid- advice back then than more recently, did ants. Of course, the Observer was not mag- ered having her certified to stand trial as not seek to litigate. Nor did the other nanimous in victory and reported the an adult, but even in Texas there are some public officials who had had false quota- ultimate outcome of the case under the limits.’ The then Texas Governor (and on tions attributed to them. Thus started five heading: ‘Neener, Neener, Neener: Texas his presidential campaign) George W Bush years of litigation during which the paper Supreme Court sides with satire and the was quoted as saying that he had not read continued with its belligerent stance. The Dallas Observer’ (September 9, 2004). the book, but was ‘appalled that such defendants sought summary judgment Thereafter the Texas Supreme Court de- material could find its way into the hands (on the issue of press freedom) which was nied the plaintiffs’ petition for rehearing of a Texas schoolchild. This book clearly denied by the trial judge and thereafter (see 2004 Tex. LEXIS 1159, Nov. 5, 2004) has deviant, violent, sexual overtones.’ by the Texas Court of Appeals. Next, the and the US Supreme Court denied certio- Further, ‘Parents must understand that Supreme Court of Texas reversed the rari (545 U.S. 1105, 125 S. Ct. 2557, 162 L. zero tolerance means just that,’ the Gover- Court of Appeals. Finally, in 2005, the US Ed. 2d 276, 2005 U.S. LEXIS 4538, June 6, nor said. ‘We won’t tolerate anything.’ Supreme Court denied certiorari to the 2005). One of the reasons cited as necessitating plaintiffs. MMP Cindy’s detention was her prior history, The case is of interest for two reasons: which included reprimands for spraying First, can the defendants rely upon the a boy with pineapple juice and sitting on right of free speech to shield them from her feet. their untrue (and thus defamatory) state- The last word in Farley’s article was left ments regarding the plaintiffs when the to the six-year-old detainee and suspected free speech protection is dependent upon terrorist: ‘I don’t get why everyone’s so the absence of malice on their part and mad,’ Cindy said in a phone interview absence of malice can be negated by the from the detention center. ‘Just ’cause I like defendants’ knowledge of the falsity of

54 VICTORIAN BAR NEWS Summer 2008 / 2009 Kaye Hall, Judy Benson, Mary Sevdalis and Sue Kee

WBA meet and greet

he Women Barristers Association again hosted its annual meet and greet func- tion at the Essoign Club on the 11 September 2008. The night has become an annual event and is co-hosted with Victorian Women Lawyers. As the name of Tthe function suggests, it is an evening designed for female barristers to ‘meet and greet’ other female lawyers, principally solicitors from various legal firms. The function itself is sponsored in part by LexisNexis, and delegates from that fine organisation were on hand to provide assistance with respect to their products. This year, as in past years, the night offered a move away from the traditional type of cocktail party function. Instead, those lucky enough to be assembled there were provided with the uproarious offerings of our own home grown (Melbourne) comedian Rachel Berger who had us in stitches with her clever brand of humour and wit. What a talent! Laughter was infectious on the night and its mix with champagne and wine left no one in doubt that WBA functions still enable (mostly) women at the Bar (but also a few brave men!) and solicitors to get together and just have fun. JOYE ELLERAY Convenor, WBA

VICTORIAN BAR NEWS Summer 2008 / 2009 55 Susan Aufgang and Munya Andrews

Rachel Berger – comedian

Rohan Hamilton and Julie Davis

56 VICTORIAN BAR NEWS Summer 2008 / 2009 Carmel Morfuni, Jacinta Cullum and Dr Elizabeth Brophy

Fiona Ryan and Kaye McNaught Joyce Elleray, convenor WBA, and Rachel Berger

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VICTORIAN BAR NEWS Summer 2008 / 2009 57 Measures adopted by the Bar to assist parents

The Bar has developed a number of practical measures to assist members taking parental leave. Barristers and their support staff are reminded of the following services available for parents at the Bar.

PARENTS’ ROOM before the estimated birth of the child TELEPHONE SYSTEM nor more than six months after the A parent’s room is available for use by The Victorian Bar telephone system en- birth of the child; members and staff of the Bar for feeding ables calls placed to chambers to divert (c) the barrister first applies in writing to and changing children. It is located on the directly to the barrister at home or on his the Bar Council setting out the period Ground Floor of Owen Dixon Chambers or her mobile phone. Alternatively, barris- for which the barrister seeks the un- East, immediately to the south of the ters’ clerks can divert calls directly to a derwriting; steps leading to Owen Dixon Chambers barrister. (d) if the application is approved, the West near Dever’s office. The room can applicant is advised in writing by the be accessed by obtaining a swipe card Bar Council who forwards a copy of REMOTE INTERNET ACCESS from any of the clerk’s offices. The parents’ the approval letter to BCL as author- room has a refrigerator and microwave. A member may obtain a Vicbar email ad- ity for the Bar to be charged with the The room may be used by a carer who is dress at a small cost which can be accessed amount of the subsidy. For the period minding children of a barrister or support either in chambers, or remotely, whether of the underwriting the barrister pays person. or not the member maintains chambers. to Barristers’ Chambers Limited 25% of the monthly rental otherwise pay- ACCESS TO LEXIS NEXIS / ONLINE PARENTAL LEAVE POLICY / able in respect of those chambers; LEGAL RESEARCH CHAMBERS RENT SUBSIDY (e) if the application is not approved, the applicant is advised in writing by the Members of the Bar may have access to The Bar Council will underwrite the rent Bar Council. free online legal research facilities at the payable by a barrister (‘the underwriting’) Bar Library on the 1st Floor, Owen Dixon who is a financial practising member of Chambers East. Some clerks also provide counsel; and CONTINUING PROFESSIONAL DEVELOPMENT this service free to members on their lists (i) who has the substantial full-time per- at the clerks’ offices. sonal responsibility for the care of a As a general rule, the Continuing Profes- child less than 12 months old or an sional Development Committee will grant adopted or foster child under school partial dispensation on application for BAR SUBSCRIPTIONS age immediately following the date persons taking parental leave. The extent Any barrister taking parental leave may on which the child comes into the of the dispensation will be tailored to meet apply for a 75 per cent rebate on that care and custody of the barrister; and the circumstances of the individual barris- barrister’s Bar subscription fees. is not engaged in and available for ter. Qualifying barristers will be required work as a barrister more than 16 to fulfil their remaining CPD requirements TEMPORARY OFFICE SPACE / hours per week during the period of by listening to a podcast or viewing a DVD MEETING ROOM the subsidy; or of a Bar CPD activity. One (1) CPD point (ii) by reason of pregnancy will not be per hour may be claimed by a barrister The Bar has provided a dedicated meeting engaged in and available for work as a listening to a podcast or viewing a DVD of room which members taking parental barrister more than 16 hours per a Bar CPD activity. DVDs may be obtained leave may access for the purpose of con- week. from the Bar Office. ducting meetings. The room is furnished with bookcases, a desk and chair, a com- The underwriting of rent is subject to the puter with internet access and a telephone. SHARING CHAMBERS following conditions: Members may book the use of the room by (a) the period of underwriting will not A barrister to whom a room has been contacting the Bar Office and may obtain a exceed six months; allocated may apply to BCL to share his key from the Bar Office. (b) the period of underwriting shall com- or her chambers with another nominated ANNA ROBERTSON mence not more than six months barrister.

58 VICTORIAN BAR NEWS Summer 2008 / 2009 SPORT

Bar Hockey

n 2008, the Bar Hockey Team for the Inevitably the NSW Bar had a rare To my surprise they took until the quar- first time ever lost both its games. break away and my desperate effort to stop ter hour to score and we then continued to IWhile statistically obviously the year the attack proved instead to be a perfect hold out very well. was a washout, we in fact played very well. pass to their left winger who easily beat With Tweedie playing outstandingly Our first game on 18 October was played Sharpley. at centre half and Parmenter utilising his at the picturesque Kyeemagh ground. This Those who played all played very well. skills very effectively at right inner we were ground is very close to Sydney airport and They were Sharpley, Burchardt, James, able to force a number of telling attacks has the great advantage of being immedi- Brear, Wood, Luxton, Gordon, Morgan, and although the LIV Team scored again, ately beside a thriving league club, which O’Neill and Robinson. we pulled one back through Parmenter provides both changing and showering We were greatly assisted by Kathleen shortly before the interval. The goal was facilities but more importantly ample sup- Chua and Robby Thorburn who turned up no fluke, being well engineered by Wood plies of refreshments. and assisted us by enabling us to put out a and excellently finished. We were unfortunate to lose both Clancy full team. Unfortunately, or arguably not, I was and Michael Tinney at the last moment Particular thanks are perhaps due to knocked to the ground by an overly from the side, thus robbing us of a centre Morgan who absconded from a conference enthusiastic LIV forward and was unable to half and centre forward. These losses were to play a significant part in the game. play any significant part in the second half. keenly felt. We have never previously lost to the Nonetheless, as in Sydney, all who played We started well against the NSW Bar and NSW Bar and it is to be expected that the played extremely well. Sharpley had a fine throughout the game we must have had celebrations in their equivalent to Bar News game in goal, James and Wood did very 70 to 80 per cent of the play. will be extravagant and gloating. I have well on the back line after my departure, Unfortunately, however, we got 0 per been strongly reminded of my remarks and Tony Elder belied the years with a cent of the goals and they got 100 per cent some years ago about the relative age, speed sterling performance at left half. Likewise, of the two that were scored. and weight of the two teams. Those obser- Luxton on the right played extremely well, With Wood performing heroically at vations will doubtless return to haunt me. as did all the forwards. centre half (occasionally spelled by me), Against the Law Institute on the follow- It is not a measure of any failings by we attacked throughout the entire first ing Thursday, we were fortified by the re- those on our team who played, but rather half and were unfortunate not to convert turn of Tweedie and Parmenter, together a measure of the disadvantage in terms of any of the numerous short corners that with Trish Riddell and Frances Gordon, age that the solicitors were able ultimately we obtained. Their few attacks were dealt our first new female recruit for many years, to win 5 – 1, although their last two goals with extremely competently by Sharpley in and very welcome she was, too. came in the later minutes when our team goal. Robinson was unable to play and once had plainly run out of legs. Right on half time, however, they got again unfortunately Michael Tinney was a The umpires, led as ever by Tony their only short corner, and Ganasan late withdrawal. Dayton, awarded the Rupert Balfe-Lycester Narianasamy managed to flick the fourth In the first few minutes, my impression Meares Trophy to Nick Tweedie, a very take of the corner into the net. Gunny is of was that we were going to be wiped out. well deserved award and one which breaks course the former Victorian, a former The solicitors had fielded an extremely Schokman’s previous stranglehold. Fijian International and a player even in young team of whom it turned out only The LIV will retain the Scales of Justice excess of 50 with an astounding vitality to one was 35 or over (and I suspect he was trophy for at least another year, and failing go with a considerable skill base. 35 and one day). In addition to our usual serious injury or debilitation on Schokman’s We attacked relentlessly again through- nemesis, Ben Schokman, they had a part we are not likely to regain it until he out the second half but were unable to number of other skilled and more impor- either comes to the Bar or gets old enough score. tantly very fit young players. to be no longer the same force.

VICTORIAN BAR NEWS Summer 2008 / 2009 59 Rabbles R Us

Andrew Scotting, the NSW captain, with cup Tweedie accepts the Rupert Balfe plate

It would be fair to say that the average Those who played were Sharpley, Bur- of transporting the Rupert Balfe-Lycester age of the solicitors was well under 30 chardt, Wood, James, Luxton, Tweedie, Meares Trophy to Sydney. They will have where as the average age of the Bar Team Elder, Riddell, Frances Gordon, Ross Gor- to bring it down here again for the same is now around about 40. That explains the don, Parmenter, O’Neill, Morgan, Brear. fixture next year. result. I acknowledge a considerable debt to PHILIP BURCHARDT Nonetheless, the game as ever was played Richard Brear who coordinated the in an excellent spirit, and was thoroughly photography in both games and who took enjoyable. it upon himself the not insignificant task

60 VICTORIAN BAR NEWS Summer 2008 / 2009 LAWYER’S BOOKSHELF

The Chinawoman relations in the nascent Victorian colony By Ken Oldis during the Gold Rush. Australian Scholarly Publishing Pty Ltd Like all good true crime stories, this one Paperback, $34.95, 259 pp begins with the crime – the murder of an English prostitute, Sophia Lewis, dubbed The Chinese are so much a part of the the China-woman, on 1 December 1856. fabric of Melbourne society it is difficult to Despite widespread anti-Chinese racism envisage a time when they were outcasts in the Victorian colony, the deceased shut and held with deep suspicion by leading her door to no one, least of all her large members of the Melbourne establishment. Chinese clientele. Thus, when she was Indeed, the penetration of Chinese-born found with her throat cut in her boudoir, people into Australian life is best exempli- which ran off her cigar shop-front situated fied by the first directly elected Lord Mayor in Stephen Street near Chinatown (now of Melbourne, Dr John Chun Sai So; re- Exhibition Street), a Chinese culprit was elected in 2004 and widely popular. The quickly suspected. The mixture of race, latter came to Melbourne when 17 years of murder and sex threw the colony’s press age from Hong Kong, lured not by gold but, into a feeding frenzy that would make no doubt, the promise of good education. latter day readers of the now defunct Truth The unearthing of a miscarriage of jus- blush. tice involving two Chinese men tried and The police investigation headed by Chief convicted of murder in the Supreme Court Detective Nicholson (who would feature Ken Oldis of Victoria is the vehicle for a revealing in the Ned Kelly investigation) was a sham- insight into the history of Chinese race bles – even an average modern criminal lawyer would have a field day here. That it was outcome example, the Chinese witness Fook Shing driven is clear from the start. took his oath to tell the truth not by In an era before crime scene swearing on a holy book but by intoning: ‘I THE photography and finger- am Fook Shing. I must tell the truth. If I do prints (not to mention DNA not tell the truth may thunder kill me and CHINAWOMAN analysis), it is revealing how fire come from heaven and burn me up.’ rudimentary investigations The deceased and her young neighbour, were. The body of Sophie the dazzling Jane Judge, a Crown witness Lewis lay on her death bed and prostitute who was clearly mixed up in until the coronial inquest, the murder, are perhaps the most interest- held the following day, had ing characters in the book. The latter’s col- concluded. The jury tramped ourful life is perhaps a book in its own from a nearby inn, where the right. Sophie Lewis remains less explored, inquest was held, to view the no doubt due to the fact that she lived in gruesome scene. the shadows of Stephen Street plying her Two Chinese men were profession and her life was snuffed out charged following the in- early. Few official details as to her colour- quest – Hang Tzan and ful life would exist. History being written Chong Sigh. The chief weap- by the winners, the records that Oldis on in the armoury of the diligently traces have meant that others, prosecution was alleged ad- who made a stamp on public life, receive missions to informers and more attention. One of those is Sir Red- possession of some item of mond Barry who Oldis describes as ‘the jewellery, said to belong to hanging Judge’. the deceased. Oldis, an amateur Ned Kelly scholar, In his telling of the tale, harbours an undisguised contempt for the Oldis offers the historically trial judge and his handling of the case. minded reader tasty morsels ‘The Supreme Court of the Colony of ARCADIA KEN OLDIS in both the text and his Victoria sat on the northwest corner of extensive footnotes. For two streets abutting the Melbourne Gaol,

VICTORIAN BAR NEWS Summer 2008 / 2009 61 an edifice sited on a slope above the city This scholarly, readable and interesting Where, you may well ask, have we gone and dominating its skyline. A jumble of work is a valuable addition to the rather wrong (contractually speaking) in the suc- weatherboard buildings beside and be- neglected history of the early beginnings ceeding 40 years, when commercial con- hind the courthouse ruined the impres- of the criminal justice system in Victoria. struction contracts are invariably of War sion of its two imposing storeys of RAYMOND GIBSON and Peace-like proportions and, frankly, bluestone. The Old Court was the venue about as comprehensible as the loan docu- for the judicial theatre featuring the mur- ments that underpin the project. derers of Sophia Lewis. Redmond Barry, a Well, that particular question is not for vain, pompous “hanging judge”, presided.’ this review to attempt to answer. What can Of course, whether champions of Ned be said without question is that Professor Kelly or not, few legal historians now UNDERSTANDING AUSTRALIAN Bailey QC and Matthew Bell have rendered claim that Ned Kelly received a fair trial CONSTRUCTION CONTRACTS an invaluable service to the construction for the murder of a police trooper for By Ian Bailey QC and Matthew Bell industry in general and to the legal profes- which Barry hanged him (see Phillips J, Lawbook Co 2008 sion in particular with the recent publica- The Trial of Ned Kelly). tion of their splendid handbook entitled The same must be said of this trial. The Some years ago, it fell to this reviewer (in Understanding Australian Construction trial occupies two chapters. The outcome his role as in-house solicitor for a well Contracts. – two guilty verdicts – is a foregone con- regarded and long established building The book covers the four most widely and clusion. As the death penalty applied, both industry association) the thrilling task of commonly used commercial construction men were hanged and it is this moment sorting through some very old and very contracts and analyses in minute detail the that is genuinely moving in the book. The musty document archives for the purpose clauses in those documents that deal with finality of such a penalty means that any of document discovery. particular aspects of the project delivery, disquiet and distrust of the verdicts is There was nothing particularly memo- such as insurance, liquidated damages and purely academic. rable or interesting about undertaking service of notices under the contract. The Oldis writes his account with clarity such a task, save for one particular find arrangement of the text may therefore be and economy. As a history of the early among the cobwebs and the dust. said to follow broadly the progress of the Victorian colony revealed through the It was a standard form construction project and the performance sequence of trial of the two accused, the book succeeds contract. It was an orange document of the contract. admirably. some six or so pages, was dated around The busy practitioner can now look to a The publishers might have considered a 1965 or ’66 and was for the construction specific section in the text when a specific list of characters, as some of the Chinese of the association’s new headquarters. It issue relating to the performance (or more names in the early part of the book re- was unaltered, save for one small change to usually, the lack of performance) of the quired me to backtrack; however this may a clause that had been made in royal blue contract comes up for consideration. For reflect my own limitations with Chinese ink and in a style that bespoke considerable that, the authors are to be congratulated. names. For those curious as to the fate of forethought, not to mention admirable The book is easy to use and easy to nav- some of the notable characters, there is a clarity and brevity of expression. The igate through. There is a refreshing absence lengthy epilogue containing condensed project was undoubtedly costly and yet the of footnotes (footnotes, at least in this biographies. contractual framework was concise. reviewers opinion, often assume a life of

62 VICTORIAN BAR NEWS Summer 2008 / 2009 their own, which detracts from the text) have known of the decision of Justice Bar- 45 (on jurisdictional issues and anti-suit and helpful further references are given at nett in the Supreme Court of Hong Kong injunctions) and its ‘sister’ case ASP Hold- the end of each chapter. The book also in The Sea Empire [1992] 1 HKC 357 at the ings Ltd v Ship Boomerang 1 (2006) 235 contains many useful comparative tables time of arguing The Boomerang 1 (2006) ALR 554 (on the intersection of admiralty of key aspects of each contract. 235 ALR 554 before Justice Finkelstein and insolvency) and Scandinavian Bunker- This is a reference book in the truest (see page 185 of the text). It would not ing AS v Bunkers on Board the Ship FV sense and should be on the shelves of all have made any difference to the decision, Tarhman (2006) 151 FCR 126 (on what practitioners who work in or about the but would have been nice to have discussed might be the subject of an arrest). construction industry. the matter with the Judge. The Admiralty Act 1988 has been one of The book does, however, contain within Comity and consistency in the applica- the great successes of Commonwealth its covers an irony: while the commercial tion of Admiralty laws around the world is legislative design. It rose out of a reference construction industry is the beneficiary of important for two reasons. Firstly, most of to the Commonwealth Law Reform Com- this and many other learned and significant the significant developments in Admiralty mission in 1982 and culminated in the texts, the domestic building industry is law occurred in England between the 17th Law Reform Commission’s Report No. 33 not – which is strange when one considers and 19th centuries, and most trading on Civil Admiralty Jurisdiction published that domestic construction projects affect nations have enacted laws and maintained in 1986. The 1998 statute is notable for not more people in arguably more significant practices consistent with those develop- having been amended and for its ease of financial respects than is the case with ments. Secondly, most modern trading application by the courts. Dr Cremean was commercial projects. nations have developed and applied laws an initial researcher and a consultant to Perhaps this is a future publishing task in relation to arrest as a consequence of the Law Reform Commission that pro- that the learned authors may wish to adopting the 1952 Brussells Convention duced the statute. From at least this begin- undertake. on the Arrest of Sea-Going Ships. Thus, a ning to the present day Dr Cremean has NEIL MCPHEE work which brings together the law in accumulated an encyclopaedic knowledge Solicitor Australasian and Asian jurisdictions will of the Admiralty jurisdiction in Australa- ensure consistency of practice in these sia and in Asia and has provided the jurisdictions. In that sense the book is an benefit of that extensive knowledge by this invaluable reference on the procedures in third edition. It is a thorough and easy the Admiralty jurisdictions in Australian to use text which I recommend to both Admiralty Jurisdiction – Law and and New Zealand and the English adopt- occasional and regular practitioners in the Practice in Australia, New Zealand, ing Asian jurisdictions. Admiralty jurisdiction. Perhaps if every- Singapore and Hong Kong Recent important Australian decisions one got their own copy of the third edition, By Dr Damien J. Cremean discussed at length in this new edition my copy would remain safely on my The Federation Press 2008 (3rd Edition) include Comandate Marine Corp v Pan shelves. pp (i)-(lii), 1-508. Australia Shopping Pty Ltd (2006) 157 FCR S.R. HORGAN

The third edition of Dr Cremean’s significant work on Admiralty Law and Practice comes at a very convenient time. Someone who borrowed my second � ������������ edition has failed to return it. I suspect it was a Judge of the Federal Court. � � � ���������� It is not difficult to see why Dr Cre- mean’s work is worth acquiring; for both regular and occasional practitioners in the ��������������������� Admiralty jurisdiction. It is a complete text concerning and annotating the provi- ����������������������������������� sions of the Admiralty Act 1988 (Cth) and ������������������������ the regulations and court rules made in respect of that statute. An important and ����������������������������������������� convenient extension of the book by this �������������������������������� third edition is to include the statutes, applicable rules and practices in New Zea- land, Singapore and Hong Kong. The ��������� extension into the Asian countries allows ����������������� the reader to draw on both court decisions ������������������ and the experience of the application of �������������������� laws and practices in those jurisdictions. ����������������������������� For my part it would have been useful to

VICTORIAN BAR NEWS Summer 2008 / 2009 63 64 VICTORIAN BAR NEWS Summer 2008 / 2009