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BAR Winter Text 03 #6 CONTENTS Editor’s note 2 Letters to the editor 2 A message from the President 3 Opinion Protecting our interests: The proper role of the Bar Council 5 The Lucky Boat and the future of the Australian Bar Association 7 Addresses Negligence and insurance premiums: Recent changes in Australian law 10 Features Professional liability of barristers 21 Fixing the Crimes Act 27 Bar News A new approach to sentencing 31 The JOURNAL of the NSW BAR ASSOCIATION Settlement being the value of the lost cause of action 32 Winter 2003 Bench and Bar Dinner 2003 36 Mediation Editorial Board Court ordered mediation: Is it undesirable? 39 Justin Gleeson S C (Editor) Mediation in the Family Court of Australia: A legal framework 42 Andrew Bell Rodney Brender Bar Association initiatives Rena Sofroniou Childcare for barristers 44 Ingmar Taylor Chris O’Donnell History Chris Winslow Owen Dixon 45 (Bar Association) High Court appointments up to its jubilee year 47 Editorial Print/Production Interview Rodenprint Interview with Phillipa Gormly 48 Personalia Layout ‘The dancing man’: Frank McAlary QC 52 Hartrick’s Design Office Pty Ltd Book reviews 54 Advertising Vale Bar News now accepts advertisements. Robyn Ashes 58 For more information, contact Chris Winslow at the George Hillary Smith QC 59 NSW Bar Association on The Hon Robert St John QC 60 (02) 9229 1732 or e-mail [email protected] Readers 01/03 – Photo 62 Appointments Cover The Hon Justice J D Heydon 63 Frank McAlary, ‘The Dancing Man’, in Elizabeth Street, Sydney, during victory The Hon Justice A C Bennett 64 celebrations on VJ Day, The Hon Justice J W Shaw 65 15 August 1945. Photo: News Image Archive The Hon Justice W H Nicholas 66 The Hon Justice M H Tobias 67 The Hon Justice R S McColl 67 ISSN 0817-002 Retirement Views expressed by contributors to The Hon Justice P L Stein 68 Bar News are not necessarily those of the Bar Association of NSW. Cryptic law crossword by Rapunzel 69 Circuit food 69 Contributions are welcome and Humour should be addressed to the Editor, When the transcriber turns mean 70 Justin Gleeson SC, 7th Floor, Wentworth Chambers, Verbatim 71 180 Phillip Street, Sydney, Sporting Bar 72 NSW 2000. DX 399 Sydney or e-mail: [email protected] 1 Editor’s Note This issue of Bar News commences with a message from the by the Equal Opportunity Committee for a child care scheme. It President, Bret Walker SC, on the topic of the role of barristers is outlined by Rashda Rhana. Rena Sofroniou continues her as part of the planned ‘national legal profession’ and continues career as celebrity interviewer in a fascinating interview with with two strong opinion pieces. The first is from Anna Katzmann Phillipa Gormley, and produces the answers on how a busy SC on the question of conflict of interest and the proper role of barrister juggles a burgeoning commercial practice, the raising the Bar Council. A question she poses is whether the Bar of four children, part-time judicial membership of the ADT and Council should continue to be given the role of removing multiple sclerosis. It should be noted by way of advance warning practicing certificates from delinquent barristers. Colin that Chief Justice Gleeson has agreed to be interviewed by Rena McDonald QC of the Northern Territory Bar raises a proposal in the forthcoming Summer 2003 Bar News edition. Volunteers that the Australian Bar Association — of which this association are called for to interview Rena after that ‘interview’ occurs. and all of the other independent Bars in Australia are members The cover of this issue features the famous photo of Frank — should take a more active role in being an independent McAlary QC as ‘The dancing man’. McAlary QC receives a advocate for the rule of law and the strengthening of national further mention in this edition courtesy of Andrew Bell. David institutions in the weak and disorganised states of the Asian and Ash provides us with clerihews for the High Court (and even South Pacific region. explains what a clerihew is). Features of this issue include Alister Abadee’s article on the Bar sport contains the report by Lachlan Gyles on the defeat professional liability of barristers; Michael Joseph SC’s thesis of the New South Wales Bar Cricket team by the Queensland that the value of a lost cause of action should be measured by Bar. Gyles ends with a stirring plea for younger members of the the likely settlement, not likely verdict, had the matter Bar to come forward and to continue the cricketing tradition set proceeded; and a punchy and constructive proposal by Richard by original players such as the late Jack Hartigan. One can Button, Andrew Haesler and Chrissa Loukas to fix the Crimes almost hear the older Gyles speaking! Act 1900 (NSW). As proof the Bar Association is not mired in the 19th century, the Bar Council has approved a pilot proposal advanced LETTER TO THE EDITOR Dear Sir, Over the Christmas vacation, whilst the second Mrs Bullfry was in therapy, I followed with interest the media frenzy surrounding Biscoe QC’s ejection from the Bondi Swimming Classic. As a contemporary of Biscoe’s, all that I can say is that ‘he should know better at his age’. Bullfry QC Biscoe QC is rescued by Forster SC. Biscoe QC takes adip at Birchgrove. Photo: Peter Morris/Sydney Morning Herald 2 A MESSAGE FROM THE PRESIDENT The role of barristers in the ‘national legal profession’ By Bret Walker SC One of the satisfying tasks of the Bar Association is to help explain that seeming paradox, and its present relevance. permit the members of the Bar to get on with their basic There is no better demonstration of the Bar’s social function of appearing for and advising their clients, without contribution, and its vital importance, than our serious constantly dealing with broad political issues. But the trade-off discharge of our individual duties as counsel in each brief. The is that the Bar Association is, like it or not, always involved in contrast between stereotyped blackguarding of the legal politics. For us, there are two major dimensions to this: true profession on the one hand, and the glowing testimonials to parliamentary politics, and the politics of the legal profession. individual barristers, efforts for their clients (not only so-called The former is always more obvious. In the last twelve pro bono) received by the Bar Association and its members, on months, one only has to reflect on the quick-and-dirty law the other hand, speaks volumes for the preference we should reform (whether amelioration or the contrary) of tort law by our have for the particular over the (spuriously) general. This state – sure to be an example for the nation – with which our manifestation of the value which robust, honest and honourable association has grappled. Some regard changes to the legislation advocacy adds to the administration of justice on the daily level governing sentencing and bail laws, at the state level, as even is the sure foundation of the Bar Association’s attempts to more grave. And the moves, still current, at Commonwealth protect the independent Bar – in New South Wales and level, to empower agents of the executive to detain and question nationally – against the various threats facing us. non-suspects (including minors) in relation to terrorist offences These threats are not traditional. I don’t expect they will are quite clearly much more important than the run of the mill long remain as they presently are. In the short term, we face the issues in the so-called political cycle. imminent crushing of nearly all personal injuries litigation of The Bar Association has, as it must, concerned itself with the familiar kind. It is, I believe, the single largest decrement to advocacy of principle with respect to all of these current the work of the Bar that we have suffered since 1788 (or controversies. We have tried to avoid any colour of bias, let whatever later date to which we trace our real origins). We face alone in favour of miscreants, in these interventions, but are it together with our solicitor colleagues, and by no means alone unashamed in our defence of liberty according to law in all internationally, but it is real and will have serious and personal these arguments. We believe that the section of the legal impacts. Given the vehemently bi-partisan parliamentary profession most acquainted with the structural inequality of the support these so-called reforms enjoyed in 2001-2002, and individual against the state – viz the Bar, defence or prosecution apparently (and electorally) still, they are a given. – is uniquely qualified to speak to legislators and the public On a slightly longer time-scale, maybe several years long, about the implications (and dangers) of such proposals. Written there are the almost unheralded changes which the Standing submissions, and testimony to parliamentary committees, have Committee of Attorneys-General seems to be fostering under the been our tool, and volunteers have been our strength. guise of a project to alter state and territory legal profession The Bar has also continued and deepened its disinterested legislation, in order to advance the motherhood cause of the role of rapid assistance to any member of parliament with national legal profession. The Bar Association has been closely questions concerning the administration of justice, across a entrained in this process. Our senior members of staff have been broad range of topics, with the aim of ensuring, at least, that prominent in guiding the national profession’s response to the debate does not proceed without knowledge of the principled drafting exercise, and I have recently participated in the Law and technical questions which so often are obscured in the Council of Australia’s reference group to settle and co-ordinate hurly-burly of daily political controversy.
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