VICTORIAN BAR NEWS No

VICTORIAN No. 122 ISSN 0150-3285BAR NEWS SPRING 2002

New Practitioners Admitted by the First Women’s Full Court of the Supreme Court

Welcome: Justice Nettle, Justice Dodds-Streeton Obituary: Justice Faltman The 2002/2003 Victorian Bar Council Recent Changes to Tax Laws Affecting Barristers Communism Embraces Capitalism: Refl ections on Chinese Law Horses for Courses Terror Nullius CLE Launch at the Essoign Club Victorian Bar on the Conference Trail Kiddle Revisited Music in Court Prosecuting in the South Pacifi c Morality is Lawyers’ First Responsibility Unveiling of Portrait of the Hon. William Crockett AO, QC The Tom Fantl Art Exhibition 3 VICTORIAN BAR NEWS No. 122 SPRING 2002

Contents EDITORS’ BACKSHEET 5 On War and Peace and Renovations CHAIRMAN’S CUPBOARD 7 New Bar Council, New Essoign Club ATTORNEY-GENERAL’S COLUMN 10 Proposed Law Reform in Sentencing PRACTICE PAGE 11 Legal Practice Act 1996 Welcome: Justice Welcome: Justice Obituary: Justice 12 Legal Profession Tribunal: Publication of Nettle Dodds-Streeton Flatman Orders CORRESPONDENCE 13 Letter to the Editors WELCOME 16 Justice Nettle 17 Justice Dodds-Streeton OBITUARY 18 Justice Flatman BAR COUNCIL MEMBERSHIP 20 The 2002/2003 Victorian Bar Council ARTICLES 22 Recent Changes to Tax Laws Affecting Barristers 25 Communism Embraces Capitalism: Refl ections on Chinese Law 30 Horses for Courses 35 Terror Nullius The 2002/2003 Victorian Bar Council NEWS AND VIEWS 37 CLE Launch at the Essoign Club 39 Victorian Bar on the Conference Trail 39 Inaugural World Conference of Barristers and Advocates 42 Decline of Cab-Rank Rule Discussed 44 Australian Bar Association Conference 47 Verbatim 48 New Practitioners Admitted by the First Women’s Full Court of the Supreme Court 51 Kiddle Revisited 52 Music in Court Refl ections on Chinese Australian Bar CLE Launch at the 54 Prosecuting in the South Pacifi c Law Association Essoign Club 56 Morality is Lawyers’ First Responsibility Conference: Paris 57 Unveiling of Portrait of the Hon. William Crockett AO, QC Cover: 58 The Tom Fantl Art Exhibition At page 17, Victorian Bar News publishes a welcome to Her Honour Justice Dodds -Streeton, following her appointment to the Victorian LAWYER’S BOOKSHELF Supreme Court bench on 31 July 2002. 59 Books Reviewed Her appointment enabled a Full Court of women justices comprising 62 CONFERENCE UPDATE Justices Balmford, presiding (centre); Warren (left); and Dodds-Streeton (right), to preside at the admission ceremony for new practitioners on 5 August.

3 Victorian Bar Council

VICTORIAN BAR COUNCIL Chair of Standing Committees of the Bar Council for the year 2002/2003 Aboriginal Law Students Mentoring Committee *Executive Committee B Kaye QC, S.W. Clerks: Applications Review Committee R *Redlich QC, R.F. (Chairman) W Brett QC, R.A. H *Rush QC, J.T. (Senior Vice-Chairman) Conciliators for Sexual Harassment and Vilification W *Brett QC, R.A. (Junior Vice-Chairman) F Rozenes QC, M. F *Rozenes QC, M. Counsel Committee G *Howard QC, A.J. H Rush QC, J.T. F *Dunn QC, P.A. B *Ray QC, W.R. Equality Before the Law Committee A *Shand QC, M.W. (Honorary Treasurer) W Brett QC, R.A. F *Dreyfus QC, M.A. Ethics Committee B *McMillan S.C., Ms C.F. B McMillan S.C., Ms C.F. G *Crennan S.C., M.J. Human Rights Committee F *Quigley, Ms M.L. (Assistant Honorary Treasurer) D Fajgenbaum QC, J.I. H *McGarvie R.W. A *Richards Ms J.E. Legal Assistance Committee D *McLeod, Ms F.M. G Howard QC, Anthony J. D *Riordan P.J. Legal Education and Training Committee W *Neal D.J. B Ray QC, W.R. D *Duggan A.E. Past Practising Chairmen’s Committee D *Gronow M.G.R. G Berkeley QC, H.C. B *Coombs, Ms D.J. Professional Indemnity Insurance Committee F Knight, Ms K.J. A Shand QC, M.W. D *Attiwill R.H.M. (Honorary Secretary) D *Moore Ms S.E. (Assistant Honorary Secretary) Victorian Bar Dispute Resolution Committee S Martin QC, W.J. Ethics Committee Victorian Bar Theatre Company Steering Committee B McMillan S.C., Ms C.F. (Chair) A Derham QC, D.M.B. H Merralls AM, QC, J.D. S Willee QC, P.A. S Lally QC, W.F. P Bartfeld QC, M. F Dreyfus QC, M.A. D Clark S.C., P.H. G Lacava S.C., P.G. H Lewis G.A. A Macaulay C.C. M Clelland, N.J. F Quigley, Ms M.L. F Shiff, Ms P.L. G Judd, Ms K.E. D Riordan P.J.

VICTORIAN BAR NEWS Editorial Committee Opinions expressed are not necessarily Editors John Kaufman QC, Olyvia Nikou S.C., those of the Bar Council or the Bar. Gerard Nash QC, Paul Elliott QC and William F. Gillies, Carolyn Sparke, Printed by: Impact Printing Judy Benson Georgina Schoff, Paul Duggan, Peter 69–79 Fallon Street, A. Clarke, Nicola Gobbo, Victoria Brunswick Vic. 3056 Editorial Board Lambropoulos, Richard Brear (Editorial This publication may be cited as Julian Burnside QC Assistant) and Peter Lithgow (Book (2002) 122 Vic B.N. Jack Rush QC Reviews) Graeme Thompson Advertising David Johns (Photography) Publications Management Pty Ltd Editorial Consultant Published by The Victorian Bar Inc. 38 Essex Road, Surrey Hills, David Wilken Owen Dixon Chambers, Victoria 3127 205 William Street, Melbourne 3000. Telephone: (03) 9888 5977 Facsimile: (03) 9888 5919 Registration No. A 0034304 S E-mail: [email protected]

4 5 Editors’ Backsheet On War and Peace and Renovations

ALL THE WAY WITH LBJ Y this time this issue goes to press, it may be that we have a US-led Binvasion of Iraq. Not to invade Iraq, apparently, is to allow terrorism to go unchecked and to allow Saddam Hussein to continue with the development of weapons of mass destruction. It is a “necessary pre-emptive strike”. What is proposed is possibly analo- gous to invading Germany when Hitler, in defiance of the treaty of Versailles commenced building up Germany’s naval strength. However, when we note Mr Chaney’s comment that the Americans will go into Iraq as “liberators not con- querors” the analogy may more clearly be drawn with the German invasion of Czechoslovakia to protect the interests of the Sudeten Germans. One must but question the legitimacy of any attack on Iraq not sanctioned by the United Nations. Vietnam. We were wrong. And we know bookcases. More significantly rents will So far as we are aware no Iraqi has we were wrong. We should not make the have increased for an upgrade of premises been shown to have been involved in the same mistake again. which, it appears, most of those living in events of September the 11th — or, as ODCE do not really want. we used to write it in this country, 11th RENOVATION OF ODCE There is also a concern among many: September. Osama Bin Laden is not an On a more domestic and immediate point, (a) that the cost of the upgrade is dispro- Iraqi and none of those who are shown the renovation of Owen Dixon East is gen- portionate to the benefit to be derived by to have been involved in the attack on the erating a considerable amount of unhap- the Bar or to any increase in the value of United States are Iraqis. piness. The source of the unhappiness the building to BCL; and (b) since there What happened in New York on 11 lies in the fact that many people do not is no depreciation reserve or building September was horrifying. But what want the upgrade (or the extent of the reserve to be called upon that the liability happened on that day (although more upgrade) which is being carried out. incurred as a result of the upgrade will unexpected) was not as horrifying as the Tenants of ODCE are required to vacate need to be met — and ultimately that fire bombing of Dresden during World War their rooms while the upgrade takes place means that it will be met out of the pock- II. Nor did it change the world as did the and, unless “permanently displaced” will ets of members of the Bar. And the ques- events of 17 July 1945 when the United then move back to their old rooms. BCL tion many ask is “Is it worth it?” States Air Force dropped a nuclear bomb is providing alternative accommodation on Hiroshima. during the period of “vacating”. But to NEGLIGENCE IN THE 21ST CENTURY The reaction to the destruction of the move all one’s books and — if one is lucky When Lord Atkin, faced with a putative Twin Towers has already led to a greater enough to have them — all one’s briefs and snail in a bottle, coined his definition of number of civilian deaths in Afghanistan then to unpack them for a relatively short the duty of care which each of us owes than the number who were killed in the period of time is extremely disruptive. It to his or her neighbour, he did not realise Twin Towers. is even more disruptive to leave the books that he was creating a serious problem for The ideology was clear. We were packed and try to practise effectively out the insurance industry. fighting to stop the implementation of of a suitcase. Of course, Lord Atkin was not con- the domino theory and the spread of the When the inhabitants of ODCE return cerned with insurance. He was concerned communist empire. Today it is generally to their rooms they will find that many with the “good old days” when tort law recognised that our involvement in that of the fittings have been stripped. They acted both as a deterrent and as a pro- war was unjustified. will either have to settle for new shelving vider of compensation. There has been We went “All the way with LBJ” in provided or will need to replace the old much change since 1932. Three matters

4 5 are highly relevant to the present prob- Peter Clyne used to refer to as the “fiscal regret that due to a breakdown in logistics lem: fiend”. Tragically we have also lost Justice their formal welcomes do not appear in 1. The development of medical sci- Flatman who was accorded such a very this issue. But they will be published in ence. This has enabled the medical short time to demonstrate his judicial the summer issue. profession to save the lives of many skills. His death is a loss to the Bench and people who would even 50 years ago to the profession. The Editors have died very shortly after the relevant injury was suffered. The cost of There are three new faces on the the equipment used to maintain these County Court bench: Judge Bourke, lives is also high. Judge Coish and Judge Gaynor. We wel- 2. A significant increase in wages and come the appointment of all three. We salaries, even in terms of the cost of TAILORING living and related to an increase in the quality of life which the average person expects. ADVERTISEMENT Suits tailored to measure 3. A growing tendency to equate a mis- Alterations and invisible take or an error of judgment with neg- BYRON BAY mending ligence. Two apartments for holiday We seem to have lost touch with the rental — each 100 metres Quality off-rack suits test of the man on the Clapham Omnibus, from beach and with the concepts of “reasonable” Repairs to legal robes behaviour and “reasonable” care. We have “Bayvilla” — two storey villa on Bar jackets made to order now, perhaps, come to think in terms of Belongil side, nestled in bush- some “absolute” duty of care. land. Sleeps six. Spa, study and PC access. A TIME OF CHANGE “Surfside” — ground floor unit in It is a time of change in the Supreme Lawson Street directly opposite LES LEES TAILORS Court with many new faces appearing Main Beach. Sleeps five. Shop 8, 121 William Street, and many old and familiar faces depart- Melbourne, Vic 3000 ing. Since the last issue of Bar News went Both units an easy walk to town. Tel: 9629 2249 to press we have seen the departure of Justice McDonald into well-earned retire- Check website: Frankston ment, and of Justice Pagone who has www.edsilk.com.au ID 13.1 and Tel: 9783 5372 departed the Bench which he graced for 32 or phone (02) 6685 7000. such a short time to assist what the late

6 7 Chairman’s Cupboard New Bar Council, New Essoign Club

BAR COUNCIL ELECTIONS vision that, in relation to these matters, AR Council elections were held in each constituent body has only one vote. September, and I record my thanks This qualification was proposed by the Bto the previous Bar Council for its Victorian Bar, and passed unanimously. work over the past year. In particular, I Following the election at the Annual thank the retiring Bar Council members: General meeting in September, Mr Ron Brind Zichy-Woinarski QC, James Delany, Heinrich of the Law Society of New South Justin O’Bryan, Katherine Bourke, Paul Wales is President, Mr Bob Gotterson Duggan, James Gorton and Peter Clarke QC of the Queensland Bar is President- who made an important contribution Elect, Mr Stephen Southwood QC of the to the work of the Bar Council. I con- Law Society of the Northern Territory is gratulate the newly elected members: Treasurer, and Messrs John North of the Michael Rozenes QC, Michael Crennan Law Society of New South Wales and Tim S.C., Michelle Quigley, Fiona McLeod, Bugg of the Law Society of Tasmania are Anne Duggan, Debra Coombs and Kim Executive Members. Knights. It is particularly pleasing that our RECEPTION FOR NEW members have elected women to the Bar APPOINTMENTS TO THE JUDICIARY Council in each category, seven in all. The first annual reception for new CHANGES TO THE BAR appointments to the judiciary will be CONSTITUTION held in the Essoign Club on Wednesday A number of amendments to the Bar 30 October 2002 from 5 p.m. to 7 p.m. Constitution were passed at the Annual We shall be recognising this year Justices General Meeting in September. In par- the Family Court; on law reform propos- Habersberger, Osborn, Nettle and Dodds- ticular, the Statement of Purposes was als to extend property and maintenance Streeton of the Victorian Supreme Court; amended to include the promotion of the liability to a variety of “close personal Judges Nicholson, Hicks, Smallwood, proper administration of justice, including relationships”; on a review of Australia’s Cohen, Sexton, Hogan, Lawson, Gullaci, making recommendations with respect to commercial arbitration legislation; and Bourke, Gaynor and Coish of the County legislation, law reform, rules of court, and on a range of proposed amendments to Court; Justice Young of the Family Court the business and procedure of courts, and Victorian legislation. Many of the Bills of Australia; and Federal Magistrates to comment publicly for that purpose. commented on have been in criminal law, Michael Connolly and John Walters. All Other amendments to the Constitution and the Criminal Bar Association and its members of the Bar and judiciary are provide for Public Defenders to be able to members continue to do outstanding work encouraged to attend. remain on the Practising List, in the same in this respect. VICTORIAN LEGAL AID way as Crown Prosecutors, and clarify Bar LAW COUNCIL OF AUSTRALIA AND Council election rules to require eligibility The Legal Aid Task Force of the Bar and PROTECTION FOR THE INDEPENDENT on the part of both those who nominate Law Institute continues to work on the BARS candidates, and the candidates, at the crisis in legal aid funding. There have been date of closing nominations; and to cover The Constitution of the LCA has been no increases in the Legal Aid fee scales for the situation of candidates who withdraw, amended to provide for a tiered voting criminal matters in the Magistrates’ Court cease to be eligible, or die before the elec- system so that constituent bodies with since 1993. Since then, the Consumer tion. less than 1000 members have one vote, Price Index has gone up 22 per cent, those with 1000 or more members have Supreme Court fee scales have gone up 26 VICTORIAN BAR COMMENTARIES ON two votes, and those with 6250 or more per cent, Victorian Public Service salaries PROPOSED LEGISLATION members have three votes. This is to have gone up 28 per cent, police salaries Increasingly, the Bar is consulted by gov- reflect not only membership numbers, but have gone up 35 per cent, and parliamen- ernment, and by the opposition, on pro- the levels of financial contribution, which tary salaries and allowances have risen posed legislation, and by courts, and by is on a per capita basis. significantly. The 1997 Price Waterhouse various law reform commissions. Recent The interest of the independent Bars Urwick Review of Barristers’ Fees Scales submissions have been on Federal judicial in matters directly related to litigation, in Victorian Legal Aid Criminal Matters remuneration; on child representative advocacy or the judiciary is protected by commissioned by the Bar Council reported guidelines, and on expert evidence, in the qualification to the tiered voting pro- that the real incomes of criminal law

6 7 barristers doing legal aid work were lower State government must now accept full PROFESSIONAL INDEMNITY than they had been in 1984. A recent and direct responsibility for all access to INSURANCE survey by Victorian Legal Aid reported justice issues for Victorians. The Bar Council remains of the view that 27 per cent of solicitors working in The Legal Aid Task Force continues that the best solution would be for the the Magistrates’ Court jurisdiction now to approach the government, the opposi- Bar to join the scheme under the Legal decline to accept legal aid work. Not tion and independent members of the Practice Act 1996 operated by the only are significant numbers of Victorians legislature on the matter of legal aid. It is Legal Practitioners’ Liability Committee being denied legal aid, but increasingly now in the process of organising another (“LPLC”), which insures all practising and those to whom it is granted are being rep- set of public meetings to take place out- former solicitors in Victoria. This would resented by less experienced members of side Magistrates’ Courts in Melbourne, provide certainty, stability and continuity the profession. Shepparton, Bendigo, Moe, Ballarat, and in the provision of quality insurance from The public meeting on the steps of Geelong — all at 11 a.m. on Monday 14 year to year; affordable premiums; the the Melbourne Magistrates’ Court on 25 opportunity to benefit directly from good July 2002 was organised by the Legal claims history over time; run-off cover of Aid Task Force and sponsored by the Bar all former barristers, including retired Council, the Criminal Bar Association, persons and judges, at no charge to them; the Law Institute, Liberty Victoria, the The public meeting on the in co-operation with the Bar Council, the Federation of Community Legal Centres steps of the Melbourne maintenance of a comprehensive database and the Criminal Justice Coalition. That Magistrates’ Court on 25 of claims, and the active promotion of risk meeting was well attended, particularly management strategies. by more senior members of the Bar. Jack July 2002 was organised For the Bar to join the LPLC scheme, Rush QC addressed the meeting as Acting by the Legal Aid Task there needs to be an amendment of the Chairman of the Bar, as did Law Institute Force and sponsored Legal Practice Act to make it compulsory President David Faram, and Liberty for barristers to insure with the LPLC. Victoria President Chris Maxwell QC. by the Bar Council, the Although the Attorney-General sup- In August, not long after the Melbourne Criminal Bar Association, ported, and continues to support, the Bar Magistrates’ Court public meeting, the Law Institute, Liberty proposal, it was not possible to bring the Attorney-General Rob Hulls announced matter before Parliament in time for the what he described as an additional $7.63 Victoria, the Federation of present year. In August, the Bar Council million in legal aid funding. The actual Community Legal Centres resolved once again to approach the increase was about $1.1 million because and the Criminal Justice government seeking the needed amend- the allocation was from the Public ment of the Legal Practice Act, and that Purpose Fund administered by the Legal Coalition. has been done, and is being vigorously Practice Board; there is a grant from that pursued. fund every year; and the previous year’s October. The focus of the July public The Bar Council continues to monitor grant had been $6.55 million. The Public meeting was on Criminal Law legal aid the situation of those members affected Purpose Fund is derived from the interest funding. The focus of these October pub- by the collapse of HIH, and has written to on solicitors’ trust accounts. Obviously, lic meetings will be on legal aid funding for all members of the Bar apprising them of any increase in funding is welcome. family law and domestic violence matters. the situation, and seeking their support in However, in the context of total Victorian assisting those members defending claims Legal Aid funding of approximately THE BAR LEGAL ASSISTANCE for which HIH was the responsible insurer, $77 million per annum, the $1.1 million SCHEME AND LAWAID either by offering their services as a bar- increase is minimal. More significantly, The Bar Council agreed in August to rister or mediator, or by making a financial the Public Purpose Fund allocation is a increase reimbursement to the Public contribution. The identity of those mem- one-off allocation which could increase Interest Law Clearing House for its admin- bers defending such claims is, of course, of decrease next year, depending on other istration of the Bar’s Legal Assistance being kept confidential, but they have demands on the Fund. It is not recurrent Scheme for the 2002–03 year to $82,817. been contacted, and assured of the Bar funding. With other costs in relation to signs, a Council’s concern and support. Volunteers The State Labor government criticises printer and a referral database, this brings for the Victorian Bar support scheme to the federal Liberal government for its the total cost of the scheme to $91,717 assist members affected have been very funding cuts and restrictions. It is true — more than double the $41,517 for encouraging. that, in 1997, the federal government ruled the previous year. Last year, the Legal that federal legal aid funds could be used Practice Board reimbursed the Bar for 75 PUBLIC LIABILITY INSURANCE only on federal law matters. However, the per cent of what the Bar paid PILCH. The AND REVIEW OF THE LAW OF real issue is not the earmarking of par- Board has not yet responded to the Bar’s NEGLIGENCE ticular funding, but overall underfunding. application for reimbursement for the In the last Bar News, the Acting The federal contribution to Victoria Legal coming year. Chairman, Jack Rush, expressed concern Aid has not increased since 1998. State The Bar Council also agreed in August about the federal government panel to funding overall has increased, but by only to continue to fund an office for the secre- review the laws of negligence: its terms about $1.9 million since the Bracks gov- tariat of LawAid, the Bar Council and Law of reference, the composition of the ernment took office in 1999 — an increase Institute trust to provide litigation assist- panel, and the predetermined result. He that is less than would be required to ance to people unable to afford the cost of described the three-month enquiry as “a cover the rate of inflation in that time. The access to justice in civil proceedings. travesty of process”. The Law Council

8 9 of Australia engaged legal academics SCULPTURE FOR OWEN DIXON Supreme Court, will make it attractive to to assist in the preparation of submissions CHAMBERS EAST every member of the Bar, and our guests. on behalf of all member Australian legal In September, the Bar Council received Whether for the contemporary mix of professional bodies. The Panel’s reports the report of the sub-committee formed to Asian and European dishes in the bistro- have now been made, and all State consider the acquisition of artwork for the style dining room, or pannini, sandwich governments are under pressure to be renovated foyer of Owen Dixon Chambers wraps and sushi in the more up-beat café part of this national initiative. The East, and accepted the unanimous recom- lounge, or just for tea or coffee, this will Victorian government has expressed its mendation of that sub-committee and its be a very affordable, lively and welcom- scepticism over unsupported insurance artistic consultants to commission a sculp- ing place to be. It will be open from early industry claims of runaway liability, and ture from Paul Selwood. The sculpture has morning, throughout the day, and into the I issued a press release expressing been commissioned by the Bar Council on early evening, and a special feature will be the Bar’s concern about political knee- behalf of the silks at the Bar, approxi- a selection of appetising “fast-track” meals jerk reaction by those pressing for so- mately ninety of whom have committed to and snacks. called Tort “reform”, and commended contribute $1000 each towards the sculp- The Essoign Club Development the Victorian government for its restrain- ture. It is expected that the sculpture will Committee and the Bar Council con- ed and measured stance. The Bar is in be completed in three to four months’ tinue to work on the myriad of details in the process of evaluating and comment- time, and be installed in February 2002, connection with the club’s relocation to ing on the policies of the Victorian gov- with an unveiling ceremony to follow. the first floor, including amendment of ernment and opposition, and on draft the current liquor licence, and different Victorian legislation made available very ESSOIGN CLUB options for membership and management recently. The most exciting aspect of the redevelop- of the club. ment of Owen Dixon Chambers is surely PROFESSIONAL STANDARDS AND the new Essoign Club. Its prime position Robert Redlich DISCIPLINE: REVIEW OF THE LEGAL on the first floor, with easy and convenient Chairman PRACTICE ACT access, natural light, and a view of the The Bar continues to resist the pressures to diminish, if not eliminate, the role of the practising profession in the maintenance of its own professional standards and the disciplinary process. The situa- tions of the Bar and the Law Institute are not entirely identical because of the different nature of a barrister’s practice from practice as a solicitor, and the different �� structures and systems of self regulation and discipline. However, both branches of the profession share the underlying prin- �� ciple of the importance of being involved in our own professional regulation, and the Bar is working closely with the Law �� Institute in doing everything to maintain �� government support of our continuing roles in professional standards and dis- �� cipline. �� CONTINUING LEGAL EDUCATION �� The Bar’s program of Continuing Legal Education was launched by the �� Honourable Michael Black, Chief Justice �� of the Federal Court, at a reception in the �� Essoign Club at the end of July, and will be in place to commence with the current �� intake in the Bar Readers’ Course. �� HISTORY OF THE BAR �� The Bar Council has resolved to begin �� work on the compilation of an oral history of the Victorian Bar by having �� volunteers interview senior and retired members to record their recollections. It is proposed to type up transcripts of such

interviews, and to collect memorabilia and �� photographs. �� 8 9 Attorney-General’s Column Proposed Law Reform in Sentencing

ECENT research conducted by the legal profession, representatives of vic- Victorian Department of Justice tims groups, academics and members of Rindicates that there is a need for the broader community. The role of the ongoing public education to increase the Council will be to contribute to research community’s understanding and knowl- and community understanding in the field edge of legal and court systems, includ- of sentencing. ing sentencing practices. This research The development of guideline judg- is consistent with overseas findings. It ments is also proposed. The policy basis of requires governments to think carefully this initiative is to balance the broad dis- about how they will respond to the com- cretion of the judiciary with the desirabil- munity when, in particular, sentencing ity of consistency in sentencing. Guideline issues are raised. judgments have been handed down in the In New South Wales the response, United Kingdom since the early 1970s in the past month, has been to canvass and, in 1988, the New South Wales Court the introduction of standard minimum of Criminal Appeal adopted a practice of sentencing. Under this model, around 20 delivering guideline judgments. indictable offences will attract a standard The proposed legislation will empower sentence. Judges may increase or reduce the Victorian Court of Appeal to give this sentence with reference to aggravat- guideline judgments. The Court may be ing and mitigating factors and relevant assisted by both the Director of Public common law rules. They must also set In rejecting mandatory sentencing the Prosecutions and Victoria Legal Aid. out their reasons for departing from the Victorian Government proposes to intro- The Court of Appeal, on its own motion, standard minimum sentence. duce a number of sentencing reforms in or parties to a proceeding may seek the Such an approach is of great concern. the Spring session of Parliament. These development of a guideline judgment. In essence, standard minimum sentenc- have arisen, in part, from the review of sen- As I have previously emphasised, it is ing is a form of mandatory sentencing. tencing laws conducted by Professor Arie essential to recruit the best and brightest It interferes with both judicial discretion Freiberg in 2001/2002. Professor Freiberg to sit on our benches. But the best and and the separation of powers between the considered the ways in which community brightest know that if their discretion parliament and the judiciary. Sentencing input could form part of the sentencing becomes fettered, and their independence is the role of courts and judges, not process. It is proposed that a Sentencing compromised, they will not choose to take politicians. Government interference with Advisory Council be established to foster judicial office. judicial discretion undermines the proper ongoing and informed community par- functioning of the law and the status of ticipation in the sentencing process and Rob Hulls the judiciary in a way that may ultimately to provide support to the judiciary in the Attorney-General affect the quality of candidates for judicial complex task of sentencing. The Council’s positions. members would include members of the

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10 11 Practice Page Legal Practice Act 1996

As required by section 201 of the Legal Practice Act 1996, the Victorian Bar RPA gives notice that the Legal Practice Board has made the Determination set out below.

DETERMINATION OF CONTRIBUTIONS TO FIDELITY FUND FOR THE PERIOD 1 JULY 2002 TO 30 JUNE 2003

HE Legal Practice Board, acting under Division 1 of Part 7 Practitioners and Foreign Practitioners must pay any contribu- of the Legal Practice Act 1996, has determined that the tion to the Legal Practice Board by 30 April 2002 (see s. 202(4)). Tclasses of persons required to pay a contribution under All other persons will pay any required contribution to the Division 1 of Part 7, and the contribution payable by members Victorian Lawyers RPA Ltd at the time of applying for or varying of each class, for the period 1 July 2002 to 30 June 2003 are their practising certificate. as set out in the following table. Approved clerks, Interstate

CLASS OF PERSONS

Contribution Contribution Authorised to receive trust money 4. An interstate practitioner or a foreign 1. An approved clerk or the holder of a practising practitioner (not including a body corporate) certificate that authorises the receipt of trust who has established a practice in Victoria within money (other than an incorporated practitioner) the meaning of section 3A of the Act and who received, or was a partner or employee of received, or was a partner or employee of a a firm, or a director or employee of an firm or a director or employee of an incorporated incorporated practitioner that received trust practitioner that received trust money in Victoria, money exceeding $500,000 in total during the not exceeding $500,000 in total during the year year ending on 31 October 2001. $200 ending on 31 October 2001. $100 Employee practising certificate and not authorised to 2. An approved clerk or the holder of a practising receive trust money certificate that authorises the receipt of trust 5. The holder of a practising certificate that money (other than an incorporated practitioner) authorises the person to engage in legal practice who received, or was a partner or employee of as an employee but holds a practising certificate a firm, or a director or employee of an that does not authorise the receipt of trust incorporated practitioner that received trust money and who is employed by a legal money not exceeding $500,000 in total during practitioner or firm that is authorised to receive the year ending on 31 October 2001. $100 trust money. $50 Interstate and Foreign Practitioner Practitioners not in the above classes 3. An interstate practitioner or a foreign 6. Corporate practitioners, sole practitioners not practitioner (not includmg a body corporate) authorised to receive trust money, employee who has established a practice in Victoria practitioners employed by a legal practitioner within the meaning of section 3A of the Act or firm not authorized to receive trust money and received, or was a partner or employee of and employees of community legal centres are a firm or a director or employee of an not required to make a contribution. NIL incorporated practitioner that received trust money in Victoria, exceeding $500,000 in total during the year ending on 31 October 2001. $200

A person who applies for a practising certificate after 31 July contribution will be required and may be ascertained by contact- 2002, or where a variation to the conditions of a practising cer- ing Victorian Lawyers RPA Ltd or the Legal Practice Board. tificate requires a person to pay a contribution, then a pro rata

10 11 Practice Page Legal Profession Tribunal: Publication of Orders NDER section 166 of the Legal ii) contravened Rule 3 of the legal practitioner was ordered to Practice Act 1996 (“the Act”), the Rules of Practice of the pay a fi ne of $500.00 to the Legal UVictorian Bar Inc, as a Recognised Victorian Bar. Practice Board by 30 August Professional Association, is required b) Nature of the Offence 2002; to provide the following information in The legal practitioner failed: b) in respect of the second charge, relation to orders made by the Legal i) to respond to the require- the legal practitioner was Profession Tribunal (“the Tribunal”) ment of the Ethics Comm- ordered to pay a fi ne of $1,000.00 against its regulated practitioner: ittee of the Victorian Bar to the Legal Practice Board by 30 1) Name of practitioner: Matthew Incorporated for information August 2002; and Stirling (“the legal practitioner”) relating to the practitioner’s c) the legal practitioner was 2) Tribunal Findings and the Nature of conduct and failed to reply ordered to pay to the Victorian the Offence to letters from the Ethics Bar Incorporated its costs of a) Findings Committee of the Victorian the proceedings, fi xed by the The Tribunal found the legal Bar Incorporated when Tribunal at $2,076.00, by 30 practitioner guilty of unsatis- asked to do so; and August 2002. factory conduct as defi ned by ii) to act with diligence in 4) As at the date of publication no paragraph (b) of the defi nition the service of a client and notice of appeal against the orders of “unsatisfactory conduct” in failed to attend to the work of the Tribunal has been lodged. The section 137 of the Act in that his required with reasonable time for service of such notice has conduct: promptness. expired. i) contravened Rules 74 (a) and 3) The Orders of the Tribunal were as (b) of the Rules of Practice of follows: the Victorian Bar; and a) in respect of the fi rst charge, the

12 13 Correspondence

was the day before I left for London Ryan replied, “We’ve all got to go some Opas on Ryan to seek leave to appeal from the Privy time, but I don’t want to go this way for Dear Gerry, Council. I told him frankly that I did not something I didn’t do.” Then he smiled expect to succeed on mere questions and added, “You know, mate, we’re playing Y attention has been drawn to an of law, although I was heartened by the time on. If you don’t kick a goal soon, we’re Marticle by Julian Burnside on Ronald action of Sir John Barry who had rung going to lose this match.” We shook hands Ryan. me a few days before to tell me that he and that is the last time I saw him. As I vehemently disagree with his had presided at a hearing of the Court One of the last things Ryan did was to assertion that Ryan was guilty, I have writ- of Appeal which had come to a decision write me a letter that I never received. ten a response which you may be able to diametrically opposed to that reached by Perhaps it may turn up at Sotheby’s some publish in Bar News. I believe I am in a the three justices who had heard Ryan’s day. He showed it to Father Brosnan, and better position than anyone else to discuss appeal. He told me his decision might help I am indebted to him for informing me of the case as most of those involved are now me and asked me to see his associate and the contents. It expressed deep gratitude gathered unto their fathers. I am probably obtain a copy of the unanimous decision, for the efforts I had made on his behalf, clinging to life with a somewhat slippery hot off the typewriter. and went on to ask that I attend the hang- grip so I seek to make a last plea for some- One of the legal points decided against ing as he wanted to look on the face of a one who did not deserve to die. Ryan turned on the time when the felony friend as his last vision on earth. If it is too long to print, at least do me of escaping from prison ended. The trial I did not attend the hanging. a favour and make it available in the Bar judge, Justice Starke, followed an old Apart from any question of Ryan admit- Library for anyone who might want to do New South Wales case which held that ting guilt, I am of opinion that not only did some research into capital punishment. the felony of escaping continued right up he not fire a shot, but that he could not to recapture — in Ryan’s case nineteen have fired the shot that killed the warder. Regards days later. Therefore if the shooting took I rely on facts that could neither lie nor be place outside the gaol (which it did) the mistaken. The bullet that killed Hodson Phil Opas Crown did not have to prove intent and was never recovered. It passed right the felony murder rule applied. Therefore through the body. It was never proven that The article by Phil Opas is not too long manslaughter was not a possible verdict the M1 carbine held by Ryan ever fired a to print. We are delighted to print it, and the judge refused to leave it to the shot while in his possession. not only because of its content but also jury. During the war I served for nearly six because we are fed up with having to My contention, and that of Jack years on active service in the RAAF and say “We Were Wrong”. It is much more Lazarus for Walker, was that the escape was proficient in weaponry, although that satisfying to say “Julian Burnside was was complete when the two prisoners did not include the M1 carbine which was wrong”. escaped from the prison and were out- not then used by our forces. My instructor, The Editors side the control and custody of those in Allan Douglas, the Public Solicitor, served charge. Therefore the felony/murder rule with the AIF and ended the war as a lieu- THE INNOCENCE OF RONALD RYAN did not apply because the murder was not tenant colonel also proficient in weaponry. Julian Burnside’s article asserts that the in the course of the felony of escape, and At the time of the trial I was an active verdict of guilty was correct but the sen- intent was an essential ingredient of the reservist in the RAAF and I arranged for tence was inappropriate. As most of the charge which had to be proved beyond Douglas and me to spend about three hours principal actors in this drama are now reasonable doubt by the prosecution. at the butts at Laverton under instruction dead, and in the natural order of things I Thus manslaughter had to be considered from a senior armaments officer. Between must soon join them, please allow me to by the jury even though the defence was us we fired about six hundred rounds from put another view as my last attempt to put that Ryan had never fired a shot. an M1 carbine. We observed and measured the record straight. Justice Barry in a different case agreed muzzle velocity, penetrability, range and I will go to my grave firmly of the opin- with our contention and refused to follow general characteristics of the weapon ion that Ronald Ryan did not commit mur- the case relied on by Justice Starke. We using the same smokeless cartridges that der. I refuse to believe that at any time he therefore had at the appellate level six according to the evidence were loaded in told anyone that he did. When all hope of a justices evenly divided on whether the the magazine of the weapon which Ryan reprieve had gone and he had decided that felony/murder rule applied in the circum- took from the tower at Pentridge. I believe he might as well declare his guilt (if that stances of Ryan and Walker. that by the time of the trial I knew more was the fact) there are two people whom I I informed Ryan that I would do my about the M1 carbine than did the ballis- believe he would have told and they were utmost to stress before the Privy Council tics expert called by the prosecution. In Father Brosnan and me. Father Brosnan the serious difference of opinion between fairness to him, he knew a lot more about a and I have formed a lifelong friendship six senior justices of this State, and that large variety of weapons but Douglas and I since the hanging, and Father has told me this was a worthy case to require their were concentrated on one only. that Ryan never made any admission of adjudication. Nevertheless I told him that We confirmed that unlike the Lee guilt to him. I would probably fail as the Privy Council Enfield .303 rifle familiar to infantrymen Father Brosnan did not hear his final rarely intervened in criminal matters. I which had two distinct pressures, the confession which enabled Ryan to die in said that we were largely playing for time M1 carbine was fired immediately by a a state of grace. to create a groundswell of public opinion comparatively light pressure on the trig- Ryan always vehemently denied to that would prevent the government from ger and continued firing until the finger me that he fired the shot that killed the carrying out its declared intention of was removed. It had no recoil so that it did warder, Hodson. The last time I saw him executing him. not jerk back the shoulder of the firer. As

12 13 smokeless cartridges were used, no smoke in bullets (plural) being thrown out on the they were both standing on level ground, was emitted from the barrel. Therefore floor. it was impossible for Ryan being 5 foot 8 witnesses who spoke of seeing Ryan’s Lange picked up the bullets (plural) inches high to shoot in a downward trajec- shoulder jerk back and seeing smoke from and later on made a written report which tory to cause the wounds on Hodson (6 the barrel were drawing on imagination. he handed to his superior. At that time foot 1 inch). The evidence was unchallenged that an inquiry was being conducted in the I was at pains to get from every eye when Ryan took the carbine it was loaded prison to see whether any warders had witness who gave evidence that when with eight rounds. Seven were positively helped the prisoners to escape. About two shot Hodson was running upright so as to accounted for. If the eighth could also be weeks later while Ryan and Walker were present his full height as a target. Murray accounted for then Ryan could not have still being hunted, Lange was called before commented to the jury that Hodson might killed Hodson. his superior and asked to make another well have been bending over. The evidence The vital witness on this aspect was report omitting all reference to finding was all one way. Hodson was running the warder in the tower at Pentridge any bullet. Lange refused at first but he upright as one would expect from a heav- from which Ryan seized the carbine. He was threatened with being charged with ily built man who had just had Christmas was Helmut Lange. In the witness box he conspiring with the prisoners to help the dinner and was keeping his eyes on the described how Ryan’s first action was to escape. Because he wanted to keep his job man he was pursuing. activate the bolt on the carbine but accord- he made another report as asked. All independent eye witnesses deposed ing to Lange he did this while the safety After the hanging Lange became very to hearing only one shot. A warder, catch was on. The result had to be, as he worried about the false evidence he had Paterson, a very excitable Scot, gave evi- agreed, to eject a live cartridge. Lange said given. In 1969 he was informed that he had dence that at the relevant time he came that he did not find that cartridge, but that been awarded a commendation for bravery out of the main gate at Pentridge armed did not affect the position that every car- for his actions during the escape and he with an identical M1 carbine to that taken tridge in the magazine had been accounted was ordered to go to Government House by Ryan. He stood on top of the low stone for without Ryan firing a shot. to receive the award. He believed this was wall surrounding the garden in front of the The evidence that the carbine had fired a pay-back for giving false evidence and gaol and took aim at Ryan. He took a first a shot was most unsatisfactory and incon- he refused to go. Eventually he was pre- pressure on the carbine (which as stated clusive. While on the run for nineteen days, sented with the award at Pentridge by the above would instantly fire it) but saw a Ryan and Walker drove a car to Sydney by Governor of the Gaol. woman in the way so he pulled the gun up an indirect route that took them via the On 12 April 1969 while on duty in the and taking a second pressure fired harm- Riverina and Hay during a hot summer tower at Pentridge he committed suicide lessly into the air. period with no rain. The carbine was in the by shooting himself. Taking aim at Ryan he would only have boot of the car. The ballistics expert exam- I took no action on this phone call and to miss him by about half a degree and he ined the carbine when it was retrieved and I have no means to verify the statements. would hit Hodson in the very way that in gave evidence that it appeared to him that I suggested to the caller that he convey fact he was struck. By standing on the low it had not been cleaned since it was last this information to the police. For some wall he would have the necessary height to fired. Under cross-examination he said reason he was clearly afraid of the police fire in a downward trajectory. that he did not take any sample from the and hung up. However, this only confirmed Paterson had made three conflicting barrel to test for residue from gunpowder what I have always believed, namely that statements. In the first he said he heard or cordite. He agreed that it was inevitable Lange lied in the witness box. The ejection only one shot. In the other two he said he that the barrel would be dusty while being of the round made it impossible for Ryan heard two shots. If he did, he was the only carried through a drought stricken rural to have committed murder. witness who heard them. From memory area. The most he could say was that the Confirmation is further obtained from I think there were fourteen, not eleven, barrel appeared dirty but he could not say what I contend is evidence that cannot in a position to see and hear what took what caused the dirt. He could not say that lie. Before the trial I attended three autop- place. If Ryan had fired a shot, somebody the weapon had been in fact fired since it sies and borrowed a skeleton from the other than Paterson should have heard it. I was last cleaned. Anatomy School at Melbourne University wouldn’t have hanged a dog on Paterson’s A few years after Ryan was hanged I to understand fully the course that the bul- evidence. received a phone call from a man with a let took through the body of the deceased. Ryan was the unfortunate victim of the strong German accent. I cannot be more I obtained from the pathologist under Premier’s determination to have a hang- precise about the date as I did not note it. cross-examination that he measured ing. After the appeal to the High Court was He refused to give his name but he said meticulously the diameter of the wounds dismissed, a petition to the Privy Council that Helmut Lange had been a friend of of entry and exit. They were identical, seeking leave to appeal was filed. That was his. Lange came from East Prussia and showing without question that the bullet the signal for the Premier to set a date for they were both members of the Austrian had not been deflected in its path. Had execution before that petition could be Club in Brunswick Street, Fitzroy, where there been any deviation the wound of exit heard. I drew a statement of claim in a writ they often met for a drink and a chat in would have been larger than the wound of seeking an injunction to restrain the hang- their native language. He said Lange told entry, as bits of bone and other material ing until the final outcome of the Privy him that he had been on duty in the tower would have enlarged the wound of exit. Council petition. when Ryan seized the weapon from the In the result there was no contest that I failed both before the judge of first rack. The first thing that Ryan did was to the bullet entered between the first and instance, Menhennitt J. and the Full Court work the bolt on the carbine. Ryan did not second rib on the right side and came out to obtain the injunction on the ground of seem to know much about the gun because between the second and third rib on the lack of jurisdiction. Nevertheless the Full the safety catch was on and this resulted left side, one inch lower than it went in. As Court said that it was unthinkable that a

14 15 man should be executed before he had London completing a Master’s degree and from many volunteers to represent me. I exhausted his ultimate right of appeal. she agreed to take a junior brief at a fee of agreed reluctantly but only on condition Reluctantly the Premier deferred the two-thirds of nothing. that personally I would take no part. execution. He then directed the Public As readers would know, theoretically Dick McGarvie with Ivor Greenwood Solicitor to withdraw my brief as the gov- an appeal to the Privy Council is a vestigial as his junior appeared for me. The job of ernment was not going to fund the peti- remnant of an appeal to the sovereign prosecuting me fell to the junior silk who tion. I consulted the Ethics Committee of in person. The Council gives an opinion happened to be Ninian Stephen. He was a the Bar Council to seek approval to make always ending with “and we shall so hum- friend of mine, and I hope he still is. I was a public appeal for a solicitor prepared to bly advise Her Majesty”. The actual deci- present in body but not in mind. What hap- brief me as I was prepared to pay my travel sion is simply a few lines published in the pened is a blank except that at the end I and other expenses and appear without Government Gazette announcing that the was unanimously acquitted. The Chairman fee. The Committee said that this would appeal has been allowed or dismissed. Louis Voumard remarked, “What the Bar be touting for business and was unethical. Theoretically it is possible but needs is more Phil Opases not one less.” I argued that a man’s life was at stake and I extremely unlikely that Her Majesty may I have no regrets about my conduct. I could not see how I would be touting when give a decision contrary to the advice of don’t think I would act differently in the no payment was involved. the Judicial Committee. Sir Henry Bolte same circumstances today. I will always be I defied the ruling and on radio sought took no chance of that occurring. Ryan was troubled by the feeling that Ryan should an instructor. As one might expect I was hanged on 3 February 1967. The decision have been acquitted and that I must have inundated with offers. I accepted the first of Her Majesty in Council to refuse leave to been inadequate for the task of defending application, being from an old friend Ralph appeal was gazetted on 10 February. him. At least so long as capital punishment Freadman. Two Labor party stalwarts Val My involvement did not end there. I is kept off the statute books, no member of Doube and Barry Jones (who was then was called on to show cause before the the Bar will have to visit the occupant of completing articles with Norris Coates Bar Council why I should not be struck the condemned cell and discuss with him and Hearle) headed an Anti Hanging off the Roll for flouting the direction of or her the chance of living or dying. It is a Committee and offered me a return fare the Ethics Committee. I decided to ignore heavy burden when in the last analysis it to London but could not fund my junior, the proceeding and make no answer. I was may all depend on you. Brian Bourke. I accepted the offer and as ultimately persuaded by many colleagues luck would have it, Alleyne Kiddle was in that I had to fight and allow my choice Philip Opas Lo-doc loan No evidence of income required. A loan where we do most of the work!

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His Honour signed the Bar Roll in etrating advocate, and unafraid to engage November 1982, reading initially with the Bench in the dialectical process. One Mr Hartley Hansen (now Justice Hansen special field of knowledge was revenue of the Supreme Court) and later with Mr law. He was a part-time member of the Ken Hayne (now Justice Hayne AC of the Taxation List – Administrative Division High Court of Australia), relinquishing all of the Victorian Civil and Administrative the lucrative benefits that would no doubt Tribunal. But by no means did he confine have visited him as a young and energetic himself or specialise in that field. His partner at Messrs Mallesons, solicitors. core practice remained commercial law The crossing of that rubicon bespeaks but he also practised in constitutional the mind of someone who had decided to and administrative law, trade practices respond to a calling and dedicate himself law, corporations law, property law and as a barrister. Now that His Honour has common law. He deeply believed in the crossed William Street, it may well be common law. seen symbolically in the same way. Over recent years he appeared more As a junior, he was a prodigious frequently in the High Court of Australia worker, having not just the mental forti- where he was regarded as one of the tude but the zeal and physical capacity. best. Not much more need be said about The rapidity with which he was able to his acquired reputation, discretion, perform demanding paperwork led to an integrity and his abilities than to point expansion of that part of his practice, yet to the fact that he was chosen by the he had a very active appearance practice affected judges and masters as leading in commercial cases and was involved in counsel in their High Court challenge to N 23 July 2002, Geoffrey Arthur many significant cases. One of the most the Commonwealth superannuation sur- Ackeroyd Nettle QC was sworn in prominent and arduous was the Bank charge on judicial pensions. Oas a judge of the Supreme Court of of Melbourne case in 1991, a trial in the In Sir Owen Dixon’s paper on profes- Victoria. At the age of 52, His Honour will Supreme Court before O’Bryan J in which sional conduct to be found in Jesting commence his judicial life in the Common he appeared with Mr Ken Hayne QC (as Pilate, it is said that a barrister’s first ethi- Law Division of the Trial Division. His he then was). He shone brightly as a jun- cal duty is to gain knowledge of the law. appointment has been received with wide- ior amidst the multitude of counsellors. For Geoffrey Nettle, barrister, that was spread acclaim by barristers, solicitors and In 1992 His Honour took silk, necessarily certainly imbibed as a solemn duty; but (discretion requiring containment) State early. He delivered a memorable speech it also seemed a fascination. But that was and Commonwealth judges, demotically as Mr Junior Silk at the 1993 Bar Dinner not his only demonstration of exemplary expressed as “fantastic”. To the discerning an honour which, with characteristic ethical conduct. He was always benignant eye his acceptance of judicial office was, modesty, he said he was “barely worthy” to his juniors, and in court treated fellow like so much of what he did, an act of lead- — see Victorian Bar News, No. 85 at p. barristers very well and with as much col- ership, for it disavows the supposition that 47. legiate goodwill as his usually highly com- in modern times judicial office holds little As a silk, his practice flourished. bative cases would permit. He had, and appeal to the highest quality barrister. His paperwork practice did not greatly demonstrated, deeply held views about At a welcome given by the profes- recede, as his opinions and pleadings a barrister’s duty to the court. He main- sion in a very congested Banco Court on became more valued. He remained a tained the traditions of the Bar. He always 30 July 2002, a conventional recital was highly sought-after trial lawyer for his remained objective and independent. given of His Honour’s personal qualities, thorough preparation, court demeanour Like a true barrister, there were no educational achievements and profes- and natural aptitude as a spirited cross- barriers to access. Whilst his reputa- sional ascension. It is in deference to examiner which, at the slightest hint of tion quite rightly attracted many well- His Honour’s astonishing modesty, inspi- mendacity in a witness, became bracing heeled clients via the mega firms around rational to those with whom he shared and usually devastating. It was not ego- Australia, it must be said — and said chambers, that such matters will not be tistical, but always designed in accord- emphatically — he gave no less priority to rehearsed here, at least, not in detail. Nor ance with the rationale of the adversary the briefs of sole and not-so-conspicuous is it proposed to enter upon any account in system to get to the truth of the matter. practitioners. The same visceral generos- detail of his work at the Bar or his cases. Therefore, he was a feared but admired ity was available to his colleagues in need But as a study of a model barrister, part of opponent. of help. He would readily and cheerfully his life at the Bar and some professional A considerable part of his practice was assist his colleagues with legal problems attributes are well worth exposing. in the appeal courts in which he was a pen- or the formation of forensic judgments

16 17 in the presentation of a case, frequently gave practical assistance, and always gave Justice Dodds-Streeton correct references to the many decided cases stored in his memory. He had three petual. Joe maintains he never got a scrap readers who, although expecting it or of work done while Julie was there. wishing it, must no doubt be feeling his Julie has a knowledge of the law and departure to the Bench, namely: Robert a capacity for finding and distilling the Hay, Pamela Tate and Michelle Gordon. relevant principles which is quite extraor- His Honour’s punishing work ethic dinary. She quickly became a junior very and dedication to his demanding practice much in demand in the most difficult has left all but a few with any knowledge of commercial cases. She was perhaps about his personal life. Perhaps there will first “discovered” by McPhee but others be another time and place for expounding quickly learnt of her skills. For a time she on this. But presently it is appropriate to attempted to be both a barrister and a say he is married to Wendy, a practising lecturer to undergraduates but, as many architect, and they have three children: had found before her, she was eventually Virginia, Jonathon and Julia. He has a forced to choose between the two. younger brother Graeme who is a solici- Notwithstanding the short time that tor in Canberra, and an older sister Janice she had spent at the Bar, once she became who is a Deacon in the Anglican Church a full-time barrister she played a promi- in New South Wales. His mother and nent role as junior counsel in much of his father (who was a renowned pub- the major litigation which arose out of lic administrator) live in Canberra. His the economic setbacks of the late 80s Honour’s interests are vintage and mod- and early 90s. She developed a particular ern cars and anything automotive, music, interest in corporate insolvency, and with movies, long-distance running, rugby Professor Ford and another member of union and, of late, sailing his Jubilee from OR a large part of her adult life Julie counsel she taught corporate insolvency the Sorrento Sailing Club Dodds-Streeton would undoubt- in the Masters program at the University The Supreme Court is over 100 years Fedly have scoffed at the suggestion of Melbourne for a number of years. In old with a tradition of conscientious dis- that her career would culminate in her more recent times Julie advised State charge of its duties. It is fitting His Honour appointment as a Supreme Court Judge. governments (of both persuasions) and was appointed to that place. We may now Educated at University High, Julie ini- argued complex matters of corporations confer on His Honour a memorable com- tially studied law/arts at the University law both at first instance and on appeal as pliment he paid to a senior colleague in of Melbourne but then abandoned law in junior counsel without a leader. his speech as Mr Junior Silk and describe pursuit of the study of history. She was Julie took silk in 2001 and was immedi- him as a great barrister, a great leader the outstanding history student of her ately engaged as one of the senior counsel and a great lawyer, but above all he is a year and became a member of the history assisting the HIH Royal Commission. gentleman in whose company it is always faculty at the University of Melbourne. Appearance at that commission has since a pleasure to be. It is unlikely that in con- She taught English history of the Tudor preoccupied her. Readers of the financial vening a court he will undergo any trans- and Stuart periods. press would be aware that Julie was given formation and become any different. The Julie did eventually complete her law the task of undertaking what was probably Bar congratulates Geoffrey Nettle and his degree and she undertook articles in 1981 the most difficult cross-examination of the family. It wishes him good health. It wishes at the firm then known as Paveys (a firm entire inquiry. him a fulfilling and — as Chief Justice Sir which has since been the subject of a It can be said without doubt that Julie John Young used to intone sonorously at number of mergers culminating in the firm was one of the most diligent and learned every admissions ceremony — “above all Corrs Chambers Westgarth). She was arti- commercial practitioners at the Bar. Julie an honourable career”. cled to Delcho Bobeff. It is no reflection was also an excellent advocate. The depth on Del or on the firm Paveys, for whom and breadth of her knowledge shone Julie always maintained a high regard, through every argument she advanced. to say that Julie was unhappy in her first Perhaps one of her greatest strengths is contacts with the commercial applications her knowledge of, and interest in, matters of the law. She missed the academic life. outside the law. Since she left her career as Julie returned to academia, this time a historian she has studied and published in law. She taught at La Trobe University in the field of Egyptology and has written and in the law faculty at the University of on Roman law and the place of women in Melbourne for a number of years. In the Roman society. She is widely travelled and mid-80s she began reading at the Bar with particularly loves the Middle East. She is a Joe Santamaria. Julie read under special modern “Renaissance woman”. provisions applying to academics which Julie is one of a number of former aca- permitted them to complete their reading demics who have been outstanding suc- period in instalments over the summer cesses at the Bar. There is little reason to vacations. Julie’s occasional occupation of doubt that she will make a similar success Joe’s chambers appeared to be almost per- of this new aspect of her career.

16 17 Obituary Supreme Court Justice Flatman

OUR Honours, distinguished leaders chambers of Mr Michael Black now Chief of the profession, ladies and gentle- Justice Black. Ymen. We meet this afternoon in both His Honour speedily developed an sorrow and pride that I may pay a tribute extensive practice in the criminal law on behalf of this Court to the memory of and appeared, most often very success- our colleague Justice Geoffrey Raymond fully, in a number of signifi cant cases in Flatman. that jurisdiction. Ever conscious of his In doing so, I speak to his family, to duty to the profession as well as to his whom he was so devoted; I speak to our clients, he took no fewer than eight read- profession, which held him in such esteem ers. They were, Howard Friedman, Sandy and I speak to the Victorian community, Elliott, Carmen Osborne, Sarah Thomas, to whom he rendered much distinguished Nick Poynder, Mark Gamble, Claire Quin service. and Anita Kwong. To them, as they will I should acknowledge that with us attest, he imparted in generous measure, today are His Honour Justice Hayne of not only his technical skills and exemplary the High Court; His Honour Chief Justice ethical standards, but also his intellectual Black of the Federal Court, His Honour approach to the law. I shall later return to Chief Judge Waldron of the County Court; this matter. the Chairman of the Bar, a representa- On 8 July 1994, His Honour was tive of the Law Institute, the Director of appointed Chief Crown Prosecutor of Public Prosecutions and the Chief Crown Victoria a most important appointment Prosecutor. Others have asked me to in that it committed to his stewardship convey that performance of their duties the day to day management of the Crown or other suffi cient reasons, prevent their Prosecutors of Victoria. attendance. They are, Justice of Appeal Upon the resignation of the then Eulogy delivered by the Charles, the Attorney-General (Mr Hulls), Director of Public Prosecutions, Bernard and the Chief Executive Offi cer of the Law Bongiorno, QC (now His Honour Justice Chief Justice of Victoria Institute, Mr John Cain Jnr. There are, of Bongiorno), Geoffrey Flatman was the the Hon. John Harber course, a number of other persons who recipient, in February 1995, of the even would greatly wish to be present, but are greater responsibility that goes with that Phillips, AC, at a special prevented by circumstances outside their high offi ce. It is suffi cient to say that in control. troubled times he speedily made it clear sitting of the Supreme Geoffrey Raymond Flatman was born to the public that he was completely inde- on 7 July 1944 at Mortlake where his pendent of government and that his offi ce Court of Victoria held as father was a Bank Manager. He attended would be conducted accordingly. a mark of respect to the primary school in Mortlake, and received That was but the fi rst of his many his later schooling at Merbein Higher achievements in his new appointment. late Justice Flatman Elementary School and Mildura High He was instrumental in the appoint- School — changes brought about by his ment in July 1995 of four additional Senior father’s various appointments. He was at Crown Prosecutors and, shortly there- Wesley College during the years 1961 and after, six additional Crown Prosecutors. 62. There he excelled in sport particularly Their numbers had dwindled in previous tennis and football. He was a member of years to a total of eight. Wesley teams which won successive APS In September of that year he was the football premierships and, indeed, was prime mover in the establishment of the a member of the combined APS team in Witness Assistance Service. While this 1962. service, to which he committed a social He lived at Queen’s College at worker and two solicitors, was essentially Melbourne University studying for his aimed to assist prosecution witnesses, it degrees in Arts and Law of which he had a very considerable victims of crime graduated in 1969. After serving articles orientation. It has since grown, with and being admitted to practice, he signed marked success, to involve three social the Bar Roll in March 1971. He read in the workers.

18 19 Again in 1995, he supervised the taking office as Crown Prosecutors during his By long established tradition, occasions over by his office of all committal proceed- directorship. such as this are not those to speak of per- ings — some 215 of which were taken over I said I would return to His Honour’s sonal matters or personal grief. That has in that year. The number has grown to intellectual approach to the law. He already been done in full measure at His average figures of over 1000 in succeeding thought deeply about significant matters Honour’s truly memorable funeral service, years. This was a very significant reform in and then wrote about them with authority conducted by Father James who we are the criminal Justice system. and clarity of expression. Aspects of arti- honoured to have with us this afternoon. Other matters which warrant mention cles for the Criminal Law Journal and But I am sure you would want me to today include His Honour’s initiatives the Australian Law Journal of which he express to His Honour’s wife Margaret, in the installation of modern computer was co-author, have been referred to with sons Sam and Tom and other family mem- equipment in his office, advocacy training approval by every member of the High bers our deepest sympathy. We hope they for some 60 of his staff and his supervision Court on several occasions. will draw some solace from this occasion, of the now well known VATE tapes which Geoffrey Flatman was not simply a conveying as it does the high esteem in enable the evidence of young people to be good Director of Public Prosecutions which he was held by our profession. received in the courts on video film. — he was a great one. And so, after a life of much endeavour Many people in the profession who His success as Director made his and distinction, Justice Geoffrey Raymond have spoken to me have remarked on appointment as a Judge of this Court Flatman is now at rest — amid the wind the “openness” which characterised His almost inevitable. Sadly, he was to hold song and the bird song of the Eltham hills Honour’s performance as Director. He was judicial office for a short time, and his ill- — an area of which he was exceedingly open to receive and speak to a wide range ness was with him throughout it. yet the fond. of people — victims of crime, members high quality of his work remained intact. I will close with the words of the poet of service clubs and other community Indeed, a juror, writing in the Age news- Catullus, written over 2000 years ago, in groups. He gave, with a very personal paper about her experiences, was full of order to mark an equally sad occasion. touch, great encouragement to the young praise for his conduct of a complex mur- “Atque in perpetuum, frater, ave atque solicitors in his office. He ensured that der trial. In spite of his pain and discom- vale.” women counsel were treated equally in fort, his courage never wavered. He kept “And so, for ever, brother, hail and the provision of briefs to prosecute and working until it was impossible for him to farewell.” indeed, five women were appointed to continue. He was extraordinarily brave.

(Reg. Lib. A 1596, fo. 672.) the 26th of June, Anno 37th Reginae, and there shall cut a hole in the myd- suspended, without any express cause dest of the same engrossed replication MYLAND v. FORASMUCH as it shewed thereof in that order, and was (which is delivered unto him for that WELDEN. now appeared to this never since called upon until the mat- purpose), and put the said Richard’s 15 Feb. 1596.} Court, by a report ter came to be heard, on Tuesday last, head through the same hole, and so made by the now before the now Lord Keeper; at which let the same replication hang about Lord Keeper, (being then Master of time some mention was again made his shoulders, with the written side the Rolls), upon consideration had of of the same application; and for that it outward; and then, the same so hang- the plaintiff’s replication, according to now appeared to his Lordship, by the ing, shall lead the same Richard, bare an order of the 7th of May anno 37th confession of Richard Mylward, alias headed and bare faced, round about Reginae, that the said replication doth Alexander, the plaintiff’s son, that he Westminster Hall, whilst the Courts amount to six score sheets of paper, the said Richard himself, did both are sitting, and shall shew him at the and yet all the matter thereof which draw, devise, and engross the same bar of every of the three Courts within is pertinent might have been well replication; and because his Lordship the Hall, and shall then take him back contrived in sixteen sheets of paper, is of opinion that an abuse is not in again to the Fleet, and keep him pris- wherefore the plaintiff was appointed any sort to be tolerated, proceeding oner, until he shall have paid 10l. to to be examined to find out who drew of a malicious purpose to increase Her Majesty for a fine, and 20 nobles the same replication, and by whose the defendant’s charge, and being to the defendant, for his costs in advice it was done, to the end that the fraught with much impertinent mat- respect of the aforesaid abuse, which offender might, for example sake, not ter not fit for this Court; it is therefore fine and costs are now adjudged and only be punished, but also be fined ordered, that the Warden of the Fleet imposed upon by this court, for the to Her Majesty for that offence; and shall take the said Richard Mylward, abuse aforesaid. (1) that the defendant might have his alias Alexander, into his custody, and charges sustained thereby; the execu- shall bring him into Westminster Source: Cecil Munro, Acta tion of which order was, by a later Hall, on Saturday next, about ten of Cancellariae 692 (London, 1847) order made by the late Lord Keeper the clock in the forenoon, and then

18 19 Bar Council Membership

The 2002/2003 Victorian Bar

Seated (left to right): Robert Redlich QC Ross Ray QC Kate McMillan S.C. (Chairman) Philip Dunn QC Anthony Howard QC Fiona McLeod Michael Crennan S.C. Jack Rush QC Robin Brett QC (Senior Vice-Chairman) (Junior Vice-Chairman) Michelle Quigley Mark Dreyfus QC (Assistant Honorary Treasurer)

20 21 Results of Bar Council Elections for 2002/2003 T the Declaration of the Poll fol- Alowing the Bar Council election on 4 September, 2002, the following candidates, in order of seniority, were declared elected: CATEGORY A: Eleven counsel who are Queen’s Counsel, Senior Counsel, or counsel of not less than 15 years standing: Robert Frank REDLICH QC Michael ROZENES QC Anthony John HOWARD QC John Timothy RUSH QC Philip Alistair DUNN QC William Ross RAY QC Robin Alfred BRETT QC Michael Warner SHAND QC Mark Alfred DREYFUS QC Cathryn (Kate) Faye McMILLAN S.C. Michael Joseph CRENNAN S.C. CATEGORY B: Six counsel who are not of Queen’s Counsel or Senior Counsel and are of not more than 15 nor less than six years standing: Michelle Lesley QUIGLEY Richard Wallace McGARVIE Jeanette (Jenny) Elizabeth RICHARDS Fiona Margaret McLEOD Peter Julian RIORDAN David John NEAL CATEGORY C: Election of four counsel who are not of Queen’s Counsel or Senior Counsel and are of less than six years standing: Anne Elizabeth DUGGAN Michael Geoffrey Rees GRONOW Debra Judith COOMBS Kim Joy KNIGHTS The following office bearers have been appointed: Chairman: Robert Redlich QC Council Senior Vice-chairman: Jack Rush QC Junior Vice-chairman: Robin Brett QC Back Row (left to right): Michael Gronow Honorary Treasurer: Michael Rozenes QC Richard McGarvie Michael Shand QC Kim Knights Jeanette Richards Assistant Honorary Treasurer: Anne Duggan David Neal Michelle Quigley Debra Coombs Honorary Secretary: Michael Shand QC Richard Attiwill (Honorary Treasurer) Assistant Honorary Secretary: Sharon Moore 20 21 Articles Recent Changes to Tax Laws Affecting Barristers

By Michael Flynn

The purpose of this article is to outline recent amendments to taxation laws that affect barristers. Some of these amendments will restrict the ability to claim tax deductions, while other amendments may present opportunities to claim additional deductions. I discuss the amendments under three headings: “Prepayments”, “Simplified Tax System”, and “Non-Commercial Losses”. All references to legislation are to the Income Tax Assessment Act 1997 (Cth) unless otherwise indicated. Michael Flynn

PREPAID EXPENSES yet been provided (such as insurance to be provided over a period of more than ARRISTERS return their income premiums or the cost of a profes- 13 months the deduction was claimable on a cash received basis but, as sional membership). in the income years in which the services BI will explain in a moment, prior When I refer to prepaid expenses I were to be provided on a pro rata basis to the current year of income they have am referring to the second category of (that is, the tax treatment was aligned been entitled to claim their expenses as expense. Such expenses are incurred for with the accounting recognition of the deductions under a hybrid cash/accruals the purposes of section 8-1 because by expense). method. Under section 8-1 taxpayers are paying them the barrister establishes a With effect from 21 September 1999, entitled to claim as deductions all losses definite commitment to the outgoing. in response to recommendations of the and outgoings incurred in a year of income The accounting treatment of prepaid Review of Business Taxation chaired by in gaining or producing assessable income expenses is different. Under full accru- John Ralph (“the Ralph Report”), the pre- (except to the extent to which they are of als accounting only the proportion of the payment rules were amended so that most a capital, private or domestic nature). An prepaid expense that relates to services medium and large business taxpayers who outgoing is “incurred” when a taxpayer or supplies provided would be treated as prepaid expenditure for services that is “definitively committed” to paying the an expense. So, for example, an insur- would not be wholly performed within the outgoing (see FCT v James Flood Pty Ltd ance premium paid on 1 June for a policy same income year would only be entitled [1953] 88 CLR 492) or there is a “presently for the subsequent 12 months would be to claim deductions on a pro rata basis existing liability” (Nilsen Develop-ment treated for accounting purposes as hav- (subject to some transitional rules). Those Laboratories Pty Ltd v FCT [1981] 144 ing been incurred as to one-twelfth in the rules did not apply to individuals carrying CLR616). Consequently, barristers have financial year in which it was paid. on a small business, but this exclusion ter- been entitled to claim deductions for: The ability to prepay expenses near minated on 1 July 2001. (a) services or goods supplied prior to to 30 June in relation to services to be As from 1 July 2001 all taxpayers, year end provided the cost has been provided over a future period has long including individuals, are required to quantified, as, for example, by the been a feature of tax avoidance arrange- apportion prepaid expenses over the issuing of an invoice; and ments. In 1988 a rule was introduced to period during which the services will be (b) expenses paid prior to the end of the restrict the benefits that can be obtained provided unless: year for services to which the barris- by prepaying expenses. Under this rule, if • the taxpayer has elected to be an STS ter is committed but which have not the payment related to services that were taxpayer (see below);

22 23 Articles

• the taxpayer is an individual and the • the taxpayer is subject to cash account- asset is a “low cost asset” if its cost as at relevant expenditure is not incurred in ing rules; the end of the income year in which the carrying on a business (e.g. a taxpayer • the depreciation rules are varied to barrister starts to use it or installs it ready who prepays interest for 12 months in allow an immediate tax deduction for for use for a taxable purpose is less than relation to a loan used to acquire an assets costing less that $1000; $1000: section 40-425 investment asset); or • other depreciating assets having effec- One issue that arises in relation to cal- • the obligation to pay the relevant tive lives less than 25 years are depre- culating the cost of an asset is whether, if expenditure arose under an agreement ciated at an accelerated rate of 30 per two or more barristers jointly acquire an entered into before 21 September 1999 cent; asset, the cost is determined by reference which the taxpayer could not unilater- • simplified accounting for private use of to the amount that each one has paid or ally escape. depreciating assets applies; whether it is the total of the amounts they As a consequence of the above rule, • the taxpayer is permitted to ignore the have all paid. For example, if two barris- barristers who prepaid expenses prior to difference between the opening and ters share in the cost of a couch, is the 30 June 2002 will be required to appor- closing values of trading stock (up to relevant cost the $1900 the couch costs or tion the deduction for the expenses to $5000); and is it $950, which each has contributed? the years in which the services or goods • prepayments are deductible when paid Section 40-35 of the Income Tax will be supplied. For example, if a bar- if they relate to “things” that will be Assessment Act 1997 provides that rister paid $2000 for a subscription to a completed within 12 months. Division 328 (which contains the STS loose-leaf service on 31 December 2001, When it was introduced, many provisions) applies to a depreciating only $1000 would be deductible in the accountants and lawyers practising in asset that two or more taxpayers own year ended 30 June 2002, the deduction income tax criticised the STS as being jointly as if the taxpayer’s interest in the for the remaining $1000 being deferred to irrelevant to most small business taxpay- underlying asset were itself the underly- the year ended 30 June 2003. This result ers. The negative reaction suggests that ing asset. Under sections 140–180 and may be avoided if a barrister elects to be very few taxpayers are likely to opt for the 140–185 the cost of an asset is, in most an “STS taxpayer” (see below). STS. But in my view it offers a number of cases, effectively the amount the taxpayer “Excluded expenditure” is not subject attractions to barristers. I will therefore pays for the asset or the liability incurred to any of the above rules and there- deal in more detail with three aspects of to acquire the asset. Accordingly, if two fore continues to be deductible when the STS: (a) eligibility, (b) prepayments or more barristers acquire an asset and paid. “Excluded expenditure” is defined and (c) depreciation. each barrister’s interest in the asset costs as expenditure less than $1000, expendi- less than $1000, the barrister should be ture required to be incurred by law or (a) Eligibility entitled to claim a tax deduction outright expenditure incurred under a contract A taxpayer is eligible to be an STS tax- for the cost of that asset under the STS of service. payer if he or she carries on a business system. In addition to the above rules there is in that year and has an “STS average Assets costing more than $1000 an anti-avoidance rule applicable to cer- turnover” of less than $1,000,000 for that are also the subject of special rules. tain prepaid expenditure incurred after year. “STS average turnover” is normally Depreciating assets within the STS depre- 11 November 1999 under “tax shelter” the sum of the taxpayer’s “STS group ciation regime that are held by a taxpayer type arrangements, such as afforesta- turnovers” for any three of the previous when the taxpayer enters the STS (other tion schemes. This rule applies where, four years divided by three. This formula than “low cost assets”) are automatically among other things, there is more than is adjusted if the taxpayer did not carry allocated to two “pools” at the start of the one participant in the arrangement or the on business in each of the previous four first year in which the STS applies. The manager or promoter of the arrangement years: see section 328-370. In broad terms, intended advantage of a “pool” is to sim- manages or promotes similar arrange- “STS group turnovers” are the turnovers plify depreciation calculations by allowing ments to other taxpayers and the taxpayer of the barrister and certain other persons the individual to treat all assets added to does not have day-to-day control over the and entities that are grouped with the the pool as if they were a single asset. The operation of the arrangement. This rule is barrister for this purpose. Barristers who two pools are a “general STS pool” for not really relevant to barristers’ practices control companies or trusts that carry on assets having effective lives of less than 25 but it might be relevant to those barristers significant business activities will need years and a “long-life STS pool” for assets who have participated in year-end tax to read the eligibility rules very closely. having effective lives of 25 years or more. schemes. Barristers whose practices turn over more But the taxpayer can choose to exclude a than $1 million will not be eligible. long-life asset from the long-life pool if the SIMPLIFIED TAX SYSTEM taxpayer started to use the asset before 1 The “simplified tax system” (STS) was (b) Depreciable assets July 2001. The pool depreciation rate is 30 also a product of the Ralph Report, the One of the main advantages of electing to per cent for the general STS pool and 5 purpose of which was to reduce small be an STS taxpayer is that the cost of a per cent for the long-life STS pool. business costs directly associated with depreciable asset (such as a computer, or The following kinds of assets are the tax system. For income years ending an item of furniture) is deductible outright excluded from the rules outlined above 30 June 2002 and later, taxpayers whose in the income year in which the taxpayer (including the outright deduction rule): income and assets do not exceed certain first starts to use it or installs it ready for a building (subject to certain exceptions); limits can use the STS. A taxpayer enters use, provided the barrister started to hold horticultural plants; an asset that is let or the STS by electing to be an STS taxpayer the asset when the barrister was an STS is intended to be let predominantly on in their income tax return. The conse- taxpayer and the asset is a “low cost” a depreciating asset lease (including a quences of making the election are that: asset: section 328-180(1). A depreciating building); and software.

22 23 Articles

Prepaid expenses Taxation Office considers that to practise The application of Division 35 might The second major advantage in electing as a barrister is to carry on a business and have surprising (and unintended?) con- to be an STS taxpayer is that prepaid an “uncommercial” approach to business sequences. Consider the situation of a expenses are fully deductible in the year is accounted an abuse of the tax system. barrister who commences practice in May in which they are paid, provided: New anti-avoidance measures con- or June (which would be the situation for (a) the “eligible service period” for the tained in Division 35 of the Act are readers commencing in March). Such a expenditure is 12 months or less designed to prevent individuals from barrister might have no income at all in his (that is, the item or service for which offsetting losses from “non-commercial” or her first financial year of practice but the payment is made is supplied business activities against other assessa- would incur expenses in practising as a within 12 months); and ble income in the year the losses incurred. barrister. How are such barristers treated (b) the 12-month period ends no later Rather than disallowing expenses on a under the new rules? than the last day of the income year permanent basis, the effect of the rules They may be able to argue that a following the year in which the pay- is that the loss is deferred and may be reasonable estimate of what would have ment was made. offset in a later year against profits from been their income if they had carried Where a prepayment does not meet the same activity. These restrictions com- on the business activity throughout the both the 12-month rule and the next-year menced in the year ended 30 June 2001. year is more than $20,000. If their actual rule then no immediate deduction is The rules in Division 35 only apply income for the following year exceeds available. The STS taxpayer will need to to “non-commercial” losses. A loss is that amount it should be strong evidence apportion the deduction over the period regarded as “non-commercial” if it arises in support of the deductibility of the loss that the service is to be provided. from a business activity in any year in in their start-up year. The main disadvantage to a barrister which the activity satisfies at least one of Alternatively, they might be able to rely of electing to be an STS taxpayer is that the following tests: upon the Commissioner exercising his dis- expenses will only be deductible when (a) Assessable income test — assess- cretion in section 35-55 on the ground that paid. This might result in some expenses able income from the activity for the there is an objective expectation based invoiced at year-end but not paid being income year is at least $20,000 (or on evidence from independent sources treated as non-deductible. This should would reasonably be estimated to be that within a period that is commercially not be a significant disadvantage for most at least $20,000 if the activity were to viable for the industry concerned the barristers, as most barristers would be be carried on for the whole year); activity will satisfy the income test. The ensuring that their invoices are paid prior (b) Profits tests — the activity has made Commissioner has stated that the expec- to year-end so as to qualify for refunds a profit in at least three of the past tation that a person’s business will pass of GST input tax credits, although in the five income years including the- cur one of the tests or make a profit within a year ended 30 June 2002 it would prevent rent year; period that is commercially viable should barristers from claiming their professional (c) Real property test — the total value be based on evidence from an independ- indemnity insurance premiums (since of real property used on a continu- ent source (provided that an appropriate these would not have been paid until July ing basis in carrying on the activity source exists). Is there objective evidence this year). is at least $500,000 (not relevant to of the period within which a barrister’s It should be noted that opting for the barristers unless they own expensive practice can be expected to become com- STS will be the only avenue for a business chambers); mercially viable? I recall seeing a survey taxpayer to claim a prepaid expense in the (d) Other assets test — the total value several years ago that reported on income year in which it is paid for years of income of other assets (except cars, motor levels of barristers of different levels of beginning 1 July 2001. cycles and similar vehicles) used on seniority, but I do not recall the source of There are a number of STS rules that a continuing basis in carrying on the the survey. I have not mentioned here. The main activity is at least $100,000 (not likely Barristers who fail to satisfy either of reason for mentioning the STS system to be relevant to barristers unless these conditions will not be able to off- is simply to alert barristers that it is they have expensive art work or fur- set their deductions in connection with available and that it might offer some niture or an expensive library). their business of practising as a barrister advantages. If you are interested in elect- The rules in Division 35 do not apply to against any other income they might have ing to become an STS taxpayer I recom- losses from a primary production or pro- incurred earlier in the year (such as salary mend that you talk to your accountant fessional arts business where assessable from their former employment). about it or if you prepare your own tax income for the year from other sources is The non-commercial loss rules might return that you consult the CCH Master less than $40,000. Also the Commissioner also need to be addressed by barristers Tax Guide or the ATP Australian Tax has a discretion not to apply the rules in whose incomes are low, perhaps because Handbook. The Commissioner has also Division 35 if it would be unreasonable they practise part-time or perhaps tem- published material on his website: see to apply them because of special circum- porarily, because of illness or because http://www.taxreform.ato.gov.au/content. stances or because the nature of the busi- they have taken time off to care for a asp?doc=/content/19925.htm&placement ness activity is such that there is a lead child. In any of these circumstances, the =TR/B T/ ST S&from=TR/BT time between the activity commencing non-commercial loss rules might present and the production of assessable income an obstacle to claiming losses from their NON-COMMERICAL LOSSES and the activity is objectively expected to practice as a barrister against other One hundred years ago barristers would make a profit or pass one of the commer- sources of income. have worn the label “non-commercial” as ciality tests within a commercially viable a badge of honour. In Australia today the period.

24 25 Articles Communism Embraces Capitalism: Reflections on Chinese Law

Peter Vickery QC

Peter Vickery QC, having recently returned from a journey to China, files the following report on legal developments in that country. The report includes some comments from Dr Clifford Pannam QC, a keen observer of the modern Chinese legal system over the last 40 years.

ITH Starbucks and McDonalds springing up next door to ancient WTaoist temples, regiments of western icons the likes of Cartier, Bvlgari, Gucci and Versace offering the finest baubles the yuan can buy, and the pervasive face of CNN available in five-star hotels at the flick of a remote control, it’s enough to make Mao Zedong role over in his mau- soleum. For a visitor to the major cities of China today, one is confronted with images of effervescent economic activity driven by a high-spirited people brimming with confidence, vitality and entrepreneurial spirit. As if to herald the awakening of the next world economic powerhouse, construction cranes dominate the skylines of Shanghai, far surpassing the scene Melbourne grew accustomed to during the heady days of the eighties. Within the short span of 20 years the ideological driving force of China has undergone a radical shift. It has moved from one structured wholly on principles of Maoist/Marxist theory towards a consumer society, conspicuous with the

Nanking Road, Shanghai — everything the yuan can buy.

24 25 Starbucks, with Taoist temple in situ.

A scene from Tiananmen Square — “only the tourists buy these little red books these days”.

trappings of capitalism. Laurence Brahm, a leading commentator on modern China, described his observations of the celebra- tions in Tiananmen Square on 1 October 1999 to mark the 50th anniversary of the Grand Theatre, Nanking Road, Shanghai — foreign investors have a minority People’s Republic of China: “By tradition, interest. the portrait of SunYat-sen faces Mao Zedong’s own portrait over Tiananmen then the Chinese may equally lay claim to gate, eye-to-eye across the square every the invention of “bureaucracy”. 1 October. The wording on the signs, However, within significant elements of however, can change depending on the the polity of China today, there is a grow- political wind. I looked for changes. ing recognition of the need to reconstruct ‘Congratulating the People’s Republic the legal system from one in which the of China on the 50th Anniversary of Its concept of ren zhi (rule by men) is pre- Establishment’, read one sign. ‘Carry dominant, to a system in which the con- High the Banner of Deng Xiaoping’s Great cept of fa zhi (rule by law) is the guiding Theory Leading Us into the New Century’, feature. As Xiao Yang, the Chief Justice, read the other, clearly and unequivocally People’s Supreme Court of the People’s stating to Chinese people that the next Republic of China, has recently put it: century for China will be driven by prag- The economic miracles of the major “Today, China has finally stepped onto the matism.” cities are not to be found all over correct track of socialism ruled by law, in With a view to advancing Deng’s new China. writing a new chapter in the construction economic order, the Chinese have recog- of a modern legal system.” nised the need for fundamental reform of The Chinese Communist Party (CCP) was In mid-1966 Mao Zedong launched the the country’s legal system. As Jiang Zemin, able to draw upon precedents in place for Great Proletarian Cultural Revolution. State Chairman of China has pointed out: over 4000 years, including the structure of Over the next decade, as the contagion “Ruling the country in accordance with the more recent imperial bureaucracies of spread at the hands of the “Red Guard” the law is the objective requirement of the the Ming and Qing dynasties. In 1949, Mao armed with Mao’s Little Red Book, liter- market economy, it is the important sym- Zedong inherited a system under which ally millions of people were imprisoned bol of civilization and progress of society, rule of the state was sourced from politi- and otherwise reviled for hitherto hid- it is an important guarantee for long-term cal power in which executive and judicial den “bourgeois tendencies”, while tens of rule and stability of the country.” functions were fused. This approach thousands were executed. Prior to the current developments, the to governance diverged sharply from The Cultural Revolution was destruc- Chinese system of governance may be Western traditions. If Western Europe can tive of the fledgling legal system of the described as essentially “administrative”. lay claim to the invention of “rule of law”, modern era, which had seen its begin-

26 27 Chief Justice, has provided the following explanation of the “Instruction”: “This ‘Instruction’ clearly reflects the spirit that the ruling party — the Communist Party of China — respects the concept of law and the legal system. The ‘Instruction’ requires that all the party and government leaders at different levels, regardless of their position and authority, shall not and are now forbidden to over-rule written law with verbal orders. They must respect the law and the authority of the judicial departments.” The Constitution also saw development. The first Constitution of 1954 had been abandoned during the “Ten Years of Turmoil”. In 1975 a new constitution was born. Although it contained provisions establishing the obligations of the citizen, it was silent on rights. This was recognised by the Third Session of the 11th Congress A hint of yesteryear. in 1978, which also gave top priority to constitutional reform. A new constitu- citizen rights were no longer protected tion was promulgated in December 1982, and a great deal of injustice, framing and following two years of deliberation and unjust cases emerged. The construction of four months of nationwide public discus- China’s socialist legal system underwent a sion. The 1982 Constitution is afforded great calamity.” supreme legal authority, providing that The starting point for the modern epoch all political parties, state organs, social of legal reform occurred in 1978, marked organizations and citizens must comply by the Third Session of the 11th Congress with its terms. Detailed provisions provide of the Communist Party of China. Faced for the basic rights of citizens, including with a legal system in ruins, a resolution economic, social and cultural rights. was passed to ensure that a new legisla- Another notable development in mod- tive program would be given the highest ern Chinese law has been the growth of priority for the National People’s Congress administrative law. Again drawing upon (NPC), China’s highest legislative body, the observations of the Chief Justice: Within the short span of and its Standing Committee. The pre- “The exercise of power requires supervi- 20 years the ideological amble to the resolution set the agenda: sion, and the exercise of administrative driving force of China “There are laws to be complied with and power makes no exception.” A number of they must be complied with, enforcement measures have been introduced with the has undergone a radical of the law must be strict and the people object of bringing the exercise of admin- shift. It has moved from violating the law must be penalized.” In istrative power within the rule of law. An one structured wholly 1979, the NPC then adopted a number of early example of this structure at work is important laws, regarded as fundamental provided by the “China-Foreign Equity on principles of Maoist/ to the new legal order. The Organization Joint Venture Enterprise Income Tax Marxist theory towards Law and Electoral Laws — drafted to Law”, which came into force in 1980. This a consumer society, establish the national legislative, adminis- law provides that if a foreign joint venture trative and judicial bodies; “The Criminal enterprise disagrees with a tax depart- conspicuous with the Law and Criminal Procedural Law” ment decision on a taxation matter, it may trappings of capitalism. — which were drafted to penalise defined bring a proceeding in the People’s Court. crimes, protection of individual rights This was the first example of the Chinese nings in the 1950s. Xiao Yang, the Chief and guaranteeing the litigation rights of legal system providing a legal remedy, Justice, describes events in the follow- citizens; and “The China-Foreign Equity enforceable in a court of law, against a ing terms: “During the later part of the Joint Venture Law” — drafted to open up decision of the bureaucracy. 1960s, the ‘ten year turmoil’ (Cultural China’s doors to foreign trade and encour- Reflecting the process of transition Revolution) began and legal system con- age foreign investment. from a planned economy to a “commod- struction broke down altogether. At that In September 1979, The Central ity economy” much has been achieved time, the legislative departments of our Committee of the Chinese Communist in an intense program of legal reform government had no function at all and Party issued an “Instruction Regarding dealing with practically all aspects of the number of drafted laws was very few. Resolutely Guaranteeing the Full commercial law. The 1980s saw the NPC Judicial departments were destroyed, Implementation of the Criminal Law and and its Standing Committee proceed- judicial workers suffered persecution, Criminal Procedural Law”. Xiao Yang, the ing at rapid pace with an impressive

26 27 program. Foundation commercial laws Regulations on Foreign-Invested Movie A striking example of the application such as the “General Principles of Civil Theatres” were promulgated on 25 of direct governmental regulation of the Law”, “Enterprise Bankruptcy Law”, October, 2000. In Chinese-foreign equity internet emerged recently. Under the “Economic Contract Law Involving joint venture movie theatres, the Chinese banner “Internet news sites face tough Foreign Interests”, “Foreign Investment Joint Venture Party’s investment share new rule”, the South China Morning Post Enterprise Law”, and “Patent Law” were in the registered capital may not be reported on 15 July that: “Beijing yester- all promulgated in quick succession. less than 51 per cent, and it must hold day unveiled a new regulation that will An undoubted impetus to these devel- the principal rights of operation; “The tighten control over publishing of news opments has been the recent acceptance Measures for Administration of the Import on the internet. Operators of news por- of China as a member of the World Trade of Audio and Video Products” issued 17 tals will be required to exercise stringent Organization (WTO) and the astute April, 2002, which set out a system under control over their content. For example, positioning of the Chinese economic and which approval must be obtained from the ‘major items’ will have to be submitted to legal system to achieve this momentous Ministry of Culture for the import of audio the Press and Publications Administration outcome. The Protocol on the Accession and video products; and finally reference ‘for reference.’ . . . these ‘major items’ of the People’s Republic of China to the is made to “The Provisional Regulations refer to news reports which may ‘jeop- WTO came into force on 11 December, for the Administration of Internet ardise national security [and] affect ‘social 2001. By adopting the Protocol, China has undertaken to effect a great number of economic and legal reforms in order to comply with the core agreements of the WTO. There are a staggering number of recent examples of the new breed of “WTO inspired” legislation. Some major structural milestones introduced during 2001 include: “The Provisional Regulations Concerning Investment Inside China by Foreign Investment Enterprises”; “The Several Opinions Concerning Further Encouraging Foreign Investment in Non- Oil-and-Gas Mineral Resource Exploration and Mining”; and the landmark decision concerning amendment of the “Law of the People’s Republic of China on Equity Joint Are there plans to privatise the people’s Liberation Army? Ventures”. The decision amends China’s main law governing equity joint ventures. stability.’ It also clamps down on ‘content A principal reason for amending the for- which poison’s young people’s minds’, eign investment laws was to eliminate The controlling hand of it stipulates that public apologies and perceived inconsistencies with WTO rules the CCP and its highly ‘corrections’ be published over incorrect in the run-up to joining the WTO. influential military arm, reports ‘to neutralise the [bad] influence’, Measures for the protection of intellec- and it specifically forbids news portals tual property have received considerable the People’s Liberation from promoting cults and superstitions.” attention. Recent examples include: “The Army, however, is never The path ahead for the Chinese legal Regulations on Protection of the Layout- far away. This influence is system is by no means likely to be smooth Designs of Integrated Circuits”; another and much remains to be done. The Chief example is provided by “The Detailed reflected most obviously Justice, Xiao Yang, has identified two Implementing Rules for the Law of the in the arena of the mass critical problems for the legal system in People’s Republic of China on Patents”; media, as illustrated China. The first he describes as follows: yet a further example is “The Decision of “Strict observance of the law by citizens the Standing Committee of the National by the following recent and social organizations is an important People’s Congress on Amendment of the legislation: part of law enforcement. The prior condi- ‘Copyright Law of the People’s Republic tion for observance of law is that citizens of China’”, 2001 which makes numerous Publishing” promulgated on 27 June, must possess an understanding of modern changes to China’s Copyright Law; then 2002. They define “internet publishing” as legal concepts and possess a determined followed “The Measures for Registration the on-line transmission acts by internet spirit to observe the law. In the past, China of Copyright in Computer Software”. information service providers of posting lacked the tradition of a legal system for a The controlling hand of the CCP and on the internet, or sending to user termi- long time, and the concepts of legal con- its highly influential military arm, the nals through the internet, after selection sciousness and legal system among citi- People’s Liberation Army, however, is and editing, works created by themselves zens fell into relative apathy. Especially, never far away. This influence is reflected or others for browsing, reading, use or citizens lack the spirit to observe the law most obviously in the arena of the mass downloading by the public. Approval must and they do not possess the conscious- media, as illustrated by the following be obtained for the conduct of internet ness of unifying their rights and liabilities, recent legislation: "The Provisional publishing activities. which are required by modern legal con-

28 29 sciousness. The habit of respecting the and Shanghai in particular, international of a developed democracy in the western law and observing law has not been com- patents and copyrights are massively style? pletely formed. This is the major obsta- breached with little attempt to enforce Although something approaching cle for China in implementing its legal the law. The largest market for such democracy operating within the precepts system.” This “consciousness”, observes goods in Beijing is conducted openly in of a western model may ultimately arrive, the Chief Justice, must also permeate the the embassy district!” there is no guarantee that this will ever be administrative arms of government. achieved, and there are serious questions The second matter requiring urgent as to whether indeed this should be the attention arises from rapid growth in the ultimate goal. Professor Donald Lewis of operation of the courts in the Chinese legal Constitutional rights and a the Department of Law, University of Hong system. Xiao Yang notes: “Since the 20 fair Criminal Code are all Kong, ventures as to the future: “What can years of reform and openness began, the perhaps be said about the coming century types and numbers of cases treated by the very well, but remember is that China will arrive at a Chinese des- Chinese courts have increased constantly. not only the Fa Lun Gong tination — which will be different yet From 1979 to 1999, the Chinese courts but also the fact that the similar — to where the West is today. at different levels have handled about 50 We may expect a form of governance, to million various first trial cases which were acquittal rate in Chinese be sure, but it will be ‘governance with involved in criminal, civil, economic and criminal courts is about Chinese characteristics’. China should be administrative matters. The average rate 1 per cent, if that. In encouraged to travel its own road, its own of growth for these cases was 13 per cent. way, for in the journey the Chinese may The intensification of judicial functions China the trial is the end uncover something new and different, and has become one important aspect of build- of the road of justice of enduring benefit to us all.” ing a socialist country run by law.” It is for the accused, not the Towards the end of our trip, our not, however, the apparently gargantuan delightful tour guide appointed by the issues of case management which are of beginning. Chinese International Tourist Company immediate concern to the Chief Justice, (CITC) (her grandfather was a General who undoubtedly presides over the most Cliff Pannam further cautions that in the old days with Mao Zedong) was complex and extensive curial system in one should not for one moment assume amused as I thumbed the pages of a the world. The most pressing issue arises that the economic “miracles” of Beijing/ Little Red Book on offer in a Beijing stall. from an entirely different quarter. As he Tianjin, Shanghai and Xiamen — and “Are there plans to privatise the People’s frankly observes: “Along with the intensi- possibly Guangzhou — are to be found all Liberation Army?” I quipped. “I’ll check,” fication of the judiciary function, the phe- over China. “The reverse is true. China is a she said, as she pretended to reach for her nomenon of corruption has surfaced in the huge country with not only a vast popula- new model mobile phone. “By the way, judicial system. A series of problems such tion but a population that predominantly only tourists buy those little red books as perverting justice for bribes, pervert- still lives and works in provincial and these days,” she laughed. ing justice for private affairs, perverting agricultural areas. In those areas though justice for relations have caused general these are changes they are of a different concern throughout the whole society. dimension. The economic boom is not to The demands of the people for judicial be seen in these areas or if it is, the scale is BRIMBANK COMMUNITY fairness, efficiency, honesty and cleanli- very much smaller . . . Further one should LEGAL CENTRE ness have become ever more urgent.” not assume that China is a homogenous VOLUNTEER PROGRAM To these matters must be added the country. It is rent with great geopolitical counsel of Cliff Pannam who observes differences. The Tibetans and the Uygur LAWYERS REQUIRED that one should not be hypnotised by peoples of Xinjiang, to name but a few of rimbank Community Legal the apparent legal reforms. “Form and many minorities, have not shared in the BCentre is expanding its volunteer substance in China have always been two economic boom. Indeed in many parts of program to incorporate an evening very different things. This distinction is China there is to be found considerable advice and referral service. We are nothing new. It permeates Chinese history revolt and tension about the diversion currently seeking expression of inter- from the earliest recorded times. There is of local economic wealth to the central est from lawyers who are willing to a lot on paper but much is poorly imple- government.” volunteer a portion of their time, mented in practice. Constitutional rights As for democracy in China, Xiao Yang, approximately one evening per and a fair Criminal Code are all very well, the Chief Justice, notes: “In terms of but remember not only the Fa Lun Gong our political system, there is a marked month, to assist with the running of but also the fact that the acquittal rate difference between China and western this project. in Chinese criminal courts is about 1 per countries. Western countries adopt the We anticipate that the program cent, if that. In China the trial is the end principle of separating power through will commence late August and oper- of the road of justice for the accused, not a system of checks and balances. China ate on a Monday or Wednesday the beginning. People have always had provides the People’s Congress System evening from 6:30 pm to 8:30 pm. extensive “rights” under Chinese law. The with separation of power under the lead- problem has been how to enforce them. ership of the Communist Party of China.” For more information, It still is. As to the new and good-look- This exposes a structural conundrum of please contact Kirsty Leighton ing Intellectual Property laws, the fact is the new China — how can vibrant capi- on 9363 1811. that in China in general, and in Beijing talism operate effectively in the absence

28 29 Articles Horses for Courses Warlords as Peacemakers: Are Trial Lawyers Bad for ADR?

By Geoffrey Gibson

People looking for an alternative to litigation want to avoid litigation. Trial lawyers — barristers or solicitors — are trained to fight; their clients pay them handsomely to do just that. They need recognised skills and strengths to succeed in a congested marketplace. The training of trial lawyers affects their participation in arbitration and mediation. By and large they have ignored the first and are now embracing the second, but does their training and disposition fit them for mediation? Just as it is said that if you want a lawyer to conduct trials you should appoint a trial lawyer as the judge, so the question needs to be asked whether a trial lawyer is the appropriate person to be appointed if a trial is the last thing you want.

INTRODUCTION Their training is overwhelmingly in litiga- F you want an alternative to medi- tion — the kind of dispute resolution that cine, you do not want medicine. You many want to avoid. There are not, after Iwant something else. If you go to a all, many litigants who like litigation and herbalist, you are not looking for brain those in charge of litigation, the judges, surgery or Prozac. Perhaps you do not routinely order the parties to avoid litiga- trust medicine, or perhaps you believe it tion if they can by undergoing mediation. has failed, but whatever else you want, The question then is whether or not lit- you do not want medicine. In our world, igation lawyers are the right people for the you would be quitting western medicine job of ADR. That question is more acute for something else. Someone giving you if looked at from the point of view of the western medicine would therefore be act- financial interests of the lawyers. If ADR ing against your wishes. If doctors were may be bad for the lawyers, the lawyers involved, they would be suspected of suc- may be bad for ADR. Just how does the cumbing to an intellectual bias induced mind-set of lawyers affect the way they by their professional training or, worse, go about ADR? It is not the obvious case of being corrupted by a fear of a loss of that if you need a dentist, you do not want professional fees if the patient was lost to a vet, but rather — if you want to broker the medical profession and left with the a peace treaty, is it a good idea to send in alternative. the commandoes? It is the same with alternative dispute resolution. People who seek it do Geoffrey Gibson MEDIATION AND ARBITRATION so because they want to avoid litigation. The two main modes of ADR currently Many find themselves involved in media- being corrupted by a fear of loss of pro- used in Australia are mediation and arbi- tion because the courts have ordered it, fessional fees if the client was lost to the tration. The two are different. Mediation but once they get there they will at least legal system. involves a negotiation process that may try this alternative to litigation. They may Litigation lawyers — barristers or or may not lead to an agreement that not trust litigation, or they may believe it solicitors — are trained to litigate. That is, determines the dispute. Arbitration has failed them, or is likely to fail them. to fight. Most of them have little training in involves a decision making process that Whatever may be their reason, they do mediation or arbitration. They spend four must resolve the dispute. In mediation the not want litigation, at least while they are years at university in learning the law, parties negotiate with someone else there. seeking to work through the alternative. with twelve months of articles, or the like, In arbitration, the parties bring their own Someone giving them litigation would and possibly three months or thereabouts judge. One involves off-the-record with- be acting against them. If lawyers were in a readers’ course if they have gone to out prejudice negotiations. The other involved, they would be suspected of suc- the Bar. They might do a tax deductible involves, commonly, evidence and argu- cumbing to an intellectual bias induced by course for one sunny weekend in media- ment, but given in private, unlike a court. their professional training, or, worse, of tion, or something similar for arbitration. Both processes depend on agreement.

30 31 Articles

There has to be an agreement to get who has scored the most points on the Combativeness. Conscientious objec- arbitration off the ground, but once that day. tors are excused, at least in civilised agreement is reached, the contract and This process of the common law, societies, from fighting wars. There is the law relating to the conduct of arbi- developed in England over the course of a not much point in sending people out tration will enable the arbitration to be millennium, is said to be adversarial. That to fight if they will not. People regularly conducted independently of any further is true enough as it goes. But insofar as engaged in combat naturally become agreement. it is said to represent a distinction from combative. If you have to go into combat Mediation can only resolve the dispute the inquisitorial, it is now misleading. yourself, you want someone to represent if the parties reach agreement. If the you who knows what to do — and who is mediation is not entered into voluntar- not frightened, or at least no more fright- ily but by order of the court, it can only ened than is necessary. Trial lawyers have succeed if the parties agree to participate The issue more relevant to face hostility in various ways. They — they will not be in contempt of court if to our time is — is the may have to face a hostile judge. There they turn up at the mediation, tick the roll is law on how to deal with a hostile wit- and leave. They may be open to criticism, adversarial position ness. Very few trial lawyers would blush but the courts are still chary of ordering customarily adopted by at the suggestion that their job in respect people to negotiate. The parties do after trial lawyers consistent of a hostile witness may be to destroy the all have what might be called, for want of witness. “Destroying” people — hostile or a better term, a constitutional right — it with the conciliatory not, witnesses or not — is not something is at least a Magna Carta right — to have position required to to be entered into lightly or ill-advisedly. their disputes resolved by their courts, make ADR work? Is it This tendency to hostility is one of the and have them resolved decently. reasons why some young lawyers instinc- It is obvious that the mind-set of a simply “negative” against tively react against practice in litigation. litigation lawyer may have a different “positive”? (Women are yet to get into this combat effect on the ADR process depending on zone as much as men: a reluctance to put whether the ADR is mediation or arbitra- The English Chancery employed inquisi- women in the front line is not found only tion. One involves an attempt to reach torial procedures like the subpoena and in the armed forces.) The trial lawyers agreement between the parties. The other discovery. They now have been abused in acquire a warrior status that sets them involves the forensic determination of our procedure so that major commercial apart. And why should it not? It is com- issues. At first blush it might be thought cases can now take on the air of a Royal pletely uplifting and honourable to be the that the arbitration processes were more Commission. The current trend towards only thing standing between someone and likely to attract the kind of forensic skills judge-controlled lists, and varying proce- the powers that be or want to be. There is learnt by a litigation lawyer in prepara- dural mixes for different kinds of cases, nothing else in the profession to match it. tion for litigation, while the same skills also makes the current process more Gamesmanship. The analogy between may have little to offer for the process of inquisitorial. The distinction is no longer war and games seems to come easy to guided negotiation. Is this so? worth talking about. The issue more rel- Anglo-Saxons, especially since someone evant to our time is — is the adversarial said the Battle of Waterloo was won on the THE PROCESS OF LITIGATION position customarily adopted by trial playing fields of Eton. There is a conscious Litigation is a forensic contest that derives lawyers consistent with the conciliatory exercise of skill against the interests of from trial by ordeal and trial by battle. position required to make ADR work? Is it the other side, or the lawyer for the other Each side usually has a lawyer. The law- simply “negative” against “positive”? side. You are trying to put the other side yer for each side presents the case. The in hazard. This leads to a sporting, blokey trial is in public. Witnesses are examined, THE MIND OF THE TRIAL LAWYER attitude to the proceedings. It is in part a and cross-examined, and arguments are Litigation — whether you call it adver- demonstration of the urge to win, in part presented. The aim is to get through sarial or inquisitorial — involves a contest. the need to hide from what might be the the evidence and argument in a continu- The parties are opposed to each other. high seriousness of the occasion, and in ing sitting and then give judgment. The Otherwise they would not be in court. part the need to hide your own nerves. judge rules on procedural issues and then Each party wants to win. It is the duty of This sporting attitude, these exercises weighs the case as presented. The party their lawyers to try to get them over the in gamesmanship, can be very unsettling who wins the case is the one whose case line. The parties and their lawyers are for people who have not experienced it the judge has found to be the better. contestants. As Sir Owen Dixon remarked, face to face before, and who had hoped Legal historians (Pollock and Maitland “the object of the parties is always victory, that their destiny might be in the hands The History of English Law, 1899, CUP, not absolute truth” (Jesting Pilate, Law of people whose serious intent and high Volume 2, 598, 670–1) compare the Book Co, 1965, 131). office may have shown themselves more function of the judge in the old days to Lawyers involved in trying to win beneficently. a cricket umpire. The judges sit in court these contests are likely to develop some Advocacy. Because of the manic not to discover the truth, but so that they characteristics, whether you are talking digression of large cases into trench war- may answer the question, “How’s that?” about solicitors who practise litigation, fare, into wars of attrition that exhaust the The analogy of a tennis referee is just or the paradigm litigation lawyer, the trial parties, while at the same time satisfying as appropriate. That official sits there lawyer, being either barrister or solicitor. the lawyers, we are breeding a generation above the protagonists, calls the shots What are the characteristics that define of trial lawyers who hardly ever fight a in or out, adds up the score, and says who the trial lawyer? What are you likely to trial. We are certainly breeding a group is the winner — not who is the best, but notice about them? that do not know how it is simply to run

30 31 trials day after day on the footing that you of exchanges. Some trial lawyers find it peace brokers have. You do not always see get something that looks like a statement harder to resist displaying their learning, that determination to get a deal that busi- of what a witness might say, put them in or their advocacy, than lawyers whose ness may require. the witness box and proceed. But this practice does not involve a celebrated Theory of Relativity. Trial lawyers falling off in trial turnover should not extraversion. understand, from hard experience, that obscure the fact that the primary function Snobbery. All this can lead to a degree there are no absolutes, and no certain- of a trial lawyer is to persuade. It is to rep- of intellectual snobbery, as you see with ties. Litigation is a lottery. You simply resent the case by persuading the judge some surgeons. There is a funny rollover cannot assess the odds. People who think or jury or tribunal to adopt the evidence in intellectual snobbery in our profession. they can are deluding themselves. Your of the witnesses and the submissions in The big firms at the big end of town look client might have all of the credibility in support of those witnesses. Whether you down on litigation with something like the world and all of the circumstantial regard advocacy as high technique or an contempt. Litigation lawyers have to live evidence that one could find, and still go art form, its final command is beyond with the suggestion that somehow or down for reasons that were simply not teaching. As the professional coach said in other they are not real lawyers. They are seen. The judge might just get it wrong Chariots of Fire, “you cannot put in what tolerated, just. They are plainly inferior. — whatever that means. For this reason God left out”. The successful application At the other end of town, at the Bar, they trial lawyers know that they have to sus- of the techniques in cross-examination, believe they are the only real lawyers, and pend belief. They do not believe anything or before a judge, or before a jury, or in the top of the pile. Most of them look on all or anyone. It is not their job. Their job is to the High Court of Australia, is what gives solicitors as being inferior. But as between persuade someone that their case is just counsel their biggest charge. the kinds of litigation lawyers, there is that much more acceptable than the case It also gives their clients a charge. little doubt that the Bar claims the high of the other side. All this leads to is a form Most lawyers would subscribe to the old ground. Its members show a tendency to of scepticism that is healthy, and which proposition that out of a hundred cases, posture, like some football supporters. is in tune with the empirical tradition in ninety decide themselves, three are won “We are the champions.” our Anglo-Saxon philosophy. Unhappy on good advocacy, while seven are lost on Independence. There is no doubt a experiences in litigation — bad accidents bad advocacy. But most litigants would level of independence at the Bar that is — may lead to seasoned scars that may not accept that view. They want to regard rarely seen, if understood, in other parts temper aggression and provide a healthy their counsel as their champion, and of the profession. It is vital. It is one rea- antidote to the insouciance of the merce- they have very high ideas of what their son why the “independent” Bar must and nary. Trial lawyers are best placed to have counsel, and only their counsel, can do will go on. This leads to a professional a full understanding of the effects of the for them, sometimes bad ideas which are approach or standing that on a good decision “to open the purple testament of often left uncorrected until it is too late. day is robust, on a bad day is brash, and bleeding war” (Richard II, 3.3.9–3). While counsel might sometimes apply the on a worse day shows the nauseating Insecurity. This part of the personality techniques of advocacy to try to persuade arrogance of a schoolyard bully. But of a trial lawyer derives as much from the their client, or a witness, or the other the fact that some get crazed by their time spent out of court as the time spent side, the full panoply is left for the court. own success, or corrupted by their own in court. Barristers will tell you that none Whether those techniques of persuasion power, should not obscure the obvious of them knows where their next brief may can be applied in pursuit of agreement need for trained specialised and inde- come from. This is obviously true in a phil- in private is another matter. There is pendent lawyers at something like the osophical sense. Most barristers believe it no doubt that successful advocates, like Bar. It is becoming daily more important to be true in every sense. That is why they successful actors or singers, can develop as big firms are bought off from acting are afraid to knock a brief back and that is a public amour propre that thrives on against big corporations and big govern- why, therefore, their practice gets into a public acceptance, which in turn depends ment. shambles and they let people down. There on public performance. It is what Osric Snappishness. There is in some trial is also the insecurity that derives from not may have called a “very liberal conceit” lawyers a snappishness bred from their knowing what the result may be. There is (Hamlet, 5, ii, 117). Again like the case practice. Trial lawyers are there to fight nothing quite like the tension of waiting of actors and singers, you may see a felt trials. If the other side do not want to for and receiving the verdict of a jury. need and a felt capacity to manipulate. If behave in a reasonable way and look like This leads to a certain wannishness on advocacy as such is a tool to be deployed they are not serious about getting a set- the part of seasoned counsel. One senior in settlement discussions, it will be a dif- tlement, the best thing to do is to get on silk said many years ago that barristers ferent kind of advocacy to that deployed with it and go to court. You will meet some are like cats: when they are born they before the High Court of Australia or a lawyers who after one round of nego- have so many lives in their belly, and each jury in a murder trial. tiations will start walking off to court, and fight they have is one less fight they have Learning. The trial lawyer has to have not just as an exercise in dramatics. If the left. There is no doubt most barristers feel specialised knowledge of the rules of other side do not want to play ball sensi- this kind of wear and tear. That is why procedure, including those relating to the bly (however that is judged), then counsel the government still gets some affirma- trial. Some people, for their sins, make a can get on with what they are trained and tive answers to offers of a position on the living out of pleadings and discovery and paid to do. We will see you in court and Bench. arguments about them. Some barristers you, Sportsman, are cruising for a bruis- These generalisations have no scien- make their living out of paper work and ing. This attitude would not serve well in tific backing or standing. Unleashing the nothing else — they act as de facto as negotiations in the Middle East. You do measurers on trial lawyers could be enter- solicitors. The lawyer is frequently called not always see that capacity to keep a dia- taining, if useless, but there is enough on to display this knowledge in the course logue going that industrial advocates and anecdotal support for this kind of analysis

32 33 to make it worthwhile in assessing how they are trying to avoid litigation. They Given all of these advantages, and they litigation lawyers in general, and trial law- are therefore rejecting a process from are huge, it is to put it at its lowest sad yers in particular, might approach ADR. which trial lawyers make their living. You that commercial lawyers do not spend The issue is clear in the mediation of might therefore expect friction. more time at least discussing arbitration commercial disputes. Business depends as an option to commercial litigation. The on agreement. Litigation depends on disa- ARBITRATION problem here for trial lawyers is not so greement. People in business live to make The most obvious way in which the much that they are biased against arbi- deals. Litigation lawyers live to fight. The background of trial lawyers affects their tration because it will reduce the level of prevailing caste of mind is therefore likely position on arbitration is that that most fees they can charge for a given dispute to be radically different. Barristers who of them either pretend it does not exist — which will most often be the case after years of practice come to practise at or do not want to know about it. There — the problem is that they have not been used to be good reasons to avoid com- brought up to consider commercial arbi- mercial arbitration. The law was obscure tration as an option to litigation. and encouraged intervention by judges The result of this general communal The issue is clear in the and obstruction by a party with money. It ignorance and antipathy is that arbitration mediation of commercial was difficult to find arbitrators of appro- is not widely used in commercial disputes, priate standing in the profession. Why but tends to be invoked in specific areas. disputes. Business should you pay an arbitrator when you get Historically, the principal of these has depends on agreement. a judge for nothing? All those things have been building cases. The problem here Litigation depends on changed. The law now very firmly encour- is that trial lawyers simply bring in all of ages judges to stay out of the process. You their attitudes and all of their procedural disagreement. People can get arbitrators of a very high standing; learning with the result that they are hav- in business live to make if you take the view, fairly or otherwise, ing a trial process by a different name and deals. Litigation lawyers that there has been a decline in the stand- expressly denying to the parties what the ing of certain courts, then you may also parties promised each other, namely, a live to fight. The prevailing take the view that you may be confident form of resolution that would not involve caste of mind is therefore of finding a lawyer as arbitrator of a stand- the procedures of litigation. You get plead- likely to be radically ing at least as high as that on offer in the ings, directions, discovery, the rules of courts. You now have to pay for your day evidence, transcripts, court books — the different. in court, and your judge, and at a substan- lot. The issue was described by Rogers, CJ tial rate. The effect of the difference in (Commercial) in Imperial Leatherware a corporate firm notice an immediate dif- the costs of an arbitrator and a judge has Co. Pty Ltd v Macri Marcellino Pty ference, putting to one side any partner- largely gone out the window. Ltd (1991) 22 NSWLR 653 at 661 (after ship commitments they may have entered The problems that business has with referring to Mustill & Boyd The Law and into. What they find is that they are work- litigation need no further cataloguing. In Practice of Commercial Arbitration ing with lawyers whose main object is to arbitration, they can set their own pace. If in England, 2nd Edition, 1989) for the secure a deal for their client. They are they want to they can assure themselves observation that “pleadings are not the there to make things, rather than break of a decision in weeks, or less. The hearing ideal way of isolating the essential issues things. The idea is to get the deal done will be in private. There may not have to in dispute”: on the best terms possible. There may be be hearing at all. They can ban discovery. serious arguments on the way through, They can ban appeals. The CEO does not I would venture to suggest that one reason but the object remains the same. The have to worry about being called names or why parties submit to arbitration is so that opposing parties have the same objective made a fool of in public. The shareholders they should avoid “pre-trial pleadings, dis- — an agreement. need not worry about the impact on the covery and other procedures of the Court”. The commercial approach, and indeed value of the shares of some allegations This is so whether the arbitration is long the forensic equipment, are radically dif- being made public. They do not have to and complex, or short and simple. The ferent to those of a litigation lawyer. If worry about the Deputy Commissioner of heart of the arbitral procedure lies in its you look at the characteristics of a trial Taxation or the ACCC getting involved. ability to provide speedier determination lawyer set out above, you might conclude They can forego a transcript if they have of the real issues. Those aims, to a large that only the last two — the theory of not foregone a hearing. They can almost extent, are made impossible of achievement relativity and insecurity — might assist certainly count on paying less to their if the procedures of a Court are mimicked. in the mediation process while the others lawyers. They can know in advance who Nor is there anything in the requirement — combativeness, gamesmanship, advo- their “judge” will be — they can never to provide natural justice which requires cacy, learning, snobbery, independence do this in the court. The decision of their adoption of the pleadings and procedures and snappishness — might be unhelpful dispute might be given by a distinguished of Courts. What is required is that the par- to that process, and might derail an arbi- silk or a commercial partner of a large firm ties enjoy the benefits of natural justice tration from the process that the parties of standing in the business community. consistently with the requirements of arbi- wanted. The decision may or may not be a monu- trators for dispensing with technicalities, In looking at how the training or dis- ment to jurisprudence, depending on the with discovery, and doing away with inter- position of trial lawyers may affect their predilection of its author, but you can be rogatories. The proper requirement that contribution to ADR it is fundamental that confident that those who are paying for it each party have full notice of the case to be the parties want to avoid it. In arbitration will not want that. They just want a deci- made by the other and a full opportunity to they have rejected litigation. In mediation sion, which they will get. prepare and to answer that case does not

32 33 Articles

require pre-trial pleadings, discovery and an audience, even an audience of just the Perhaps the problem is merely genera- other procedures of the Court. client, the mediator and the other side, tional, but it will be as well when we are then even though the audience is in pri- rid of it. Clients are frequently told that the dis- vate, some may start behaving a little like Not surprisingly, therefore, the weap- pute is their dispute. The problem is that they do in court. They may take technical ons of war may not always be helpful in it can be hijacked by the lawyers either points. They may refer to the pleadings. making the peace. in arbitration or in mediation. What hap- They may make a speech. They may even pens involves a form of corruption of the posture. Rather than sounding like a com- CONCLUSIONS procedure. You can see a similar process Some trial lawyers may not be as good at in some statutory tribunals. They start settling cases as others. It bears repeat- off with the best will in the world to be ing that most cases settle. We train our informal and to keep out legal niceties, but When it comes to lawyers primarily, if not exclusively, in the lawyers start to creep in and a process mediation, trial lawyers one form of dispute resolution, the civil of mutual preening takes place. Before trial. This, it also bears repeating, involves long, you can feel people wanting to bow should perhaps be on a fight. Of course people have a right to at the tribunal, and some do. People who firmer ground than they have their disputes settled, and the peace have spent years doing this kind of thing may be with arbitration. preserved, by Her Majesty’s judges. But commence addressing the tribunal “If the we ought to do more to educate our law- tribunal pleases”. No matter how hard the After all, most cases do yers about the settlement process. It is tribunal members try, this has a satisfying settle and lawyers get the right of people to go to law, but the effect on their ego. They may not be so plenty of practice at it. problems of that course are notorious. unlike real judges after all. The takeover Why should we therefore treat the right as process is more manifest when, as com- being one of first recourse rather than last monly happens, the lawyers involved form mercial lawyer who is there to conclude resort? Why should we not teach civil pro- a club so that the adherence to proper a deal with the other side, they may cedure in the law schools mediation first, ritual is appropriately enforced. Before sound like a litigation lawyer who is there arbitration second, and litigation third? long you have got to a stage where you to assert a case against the other side. There is no doubt that in the last do not have a court and you do not have “Priests pray for enemies, but princes kill” ten years or so the attitude of litigation the tribunal that the Parliament intended (2 Henry VI, 5.2.6). You can see a trial lawyers in general, and trial lawyers in to set up, but you do have something that lawyer sometimes commence a mediation particular, has become more sophisticated the members and the lawyers feel com- with what looks like an instinctive urge in its reception of mediation, but the lack fortable about. Just how the punters feel to score a king hit as soon as the ball is of education in the proper approach to it is not often studied. bounced. The commitment to learning can is still sometimes apparent. The failure to This process is not entirely the fault degenerate into an uncomely arrogance. respect arbitration either by giving it a go of the lawyers. There are areas where Combativeness may drive the parties or by reducing it to a mockery of a court people do want their lawyers to go into apart when the idea is to bring them form shows a bad lack of sophistication bat for them, and to go for it in a lawyerly together. Gamesmanship can become in commercial lawyers generally. The way. Parliaments of all political colours mere point scoring and you do not often business community finds serious fault over many years have tried to get lawyers attract someone to your position by slap- in the way the courts resolve commercial out of jurisdictions, or reduce their role, ping them in the face. Snappishness can disputes. The profession is not doing all it but they have to confront not only the turn into a sclerotic tendency to pull the should to provide and promote the alter- machinations of the lawyers, but the wish pin, which from a commercial perspective native. of people to have some sort of protection might involve a form of suicide. You can Attitudes will change. They may also not just against the other side, but against sometimes sense business people think- change on the role of lawyers as media- the machinery of government — including ing that lawyers at a mediation who are tors or arbitrators. Judges say that the the judges. unduly argumentative or ostentatious do only people who are qualified to hear and not seem to have contact with the world determine civil trials are those brought up MEDIATION of business. They are not committed to as trial lawyers — which means, for the When it comes to mediation, trial law- doing a deal. It is interesting to see how a most part in Australia, barristers. There is yers should perhaps be on firmer ground lot of these problems have started to rub a compelling, even inexorable, logic to this than they may be with arbitration. After off since mediation became sanctioned, proposition. But does it have a converse? all, most cases do settle and lawyers get and trial lawyers have come to accept it, If the parties agree to avoid a civil trial by plenty of practice at it. Indeed, in some but they can still be seen in some lawyers, going to arbitration or mediation, may jurisdictions it is said that the settlement barristers or solicitors, whose practice it not be the case that the worst person rate is so high that that is all the lawyers consists mainly of fighting cases in court. they could get as mediator or arbitrator is are capable of — a good fight would kill These problems can be worse if the someone whose whole training has been them. mediator shows the same warlike tenden- as a trial lawyer? The paradigm trial lawyer in Australia cies and claims rank to back them up. is the barrister. Barristers are generally There are some former judges who still This article first appeared in (2002) very good at settling cases between them- behave as if they were judges and seek to 68 Arbitration 2 to 10 (published in selves. They are candid, to the point, and impose their will. Some silks seem intent London) and is published here with accept the value of settlement. But when on developing a similar reputation for the kind permission of the Chartered the occasion is structured so that there is firmness that others find just demeaning. Institute of Arbitrators.

34 35 Articles Terror Nullius Ragu Appudurai

MENDMENTS to the Migration • no judge, however adventurous or Regulations excising several recalcitrant, even when fully-robed AAustralian islands from the “migra- would venture into an area in which tion zone” were disallowed by the Senate the atmosphere is devoid of jurisdic- on 19 June 2002. The Government tion; introduced the Migration Legislation • Australia will not be in breach of Amendment (Further Border Protection its obligations under the Refugees Measures) Bill 2002 on 20 June 2002 to Convention in refusing to process any give effect to the excision previously con- asylum application, as no such obliga- tained in the disallowed regulations. tion will arise if an applicant has not The Bill (which comprises four clauses arrived in Australia; and a schedule), if enacted, will add the • the Australian Defence Force will be following islands to the places included in able legitimately to repel queue jump- the definition of “excised offshore place” ers, terrorists and other undesirables in the Migration Act 1958: back out to sea, in carrying out their • the Coral Sea Islands Territory; border protection role in “hot pursuit” • all islands that form part of Queensland mode within the buffer zone; and are north of latitude 12 south; • there will be budget savings of hun- • all islands that form part of Western dreds of millions of dollars given Australia and are north of latitude 23 that there will no longer be a need south; and for detention centres, refugee tri- • all islands that form part of the bunals, defence by the Minister of Northern Territory and are north of court proceedings, or the “Pacific solu- latitude 16 south. Ragu Appudurai tion”; The Bill provides that the excision • there will be created a captive eco- of these islands is to have retrospective 2002, when passed, will facilitate compre- nomic powerhouse on our doorstep effect from 2pm on 19 June 2002. hensive border protection while maintain- (by definition, 5 km outside the reach The Explanatory Memorandum to the ing Australia’s international commitments of the Maritime Union of Australia) Bill (at para 4) very helpfully explains that including those under the Refugees benefiting from the lack of any regula- the Bill is being introduced “. . . in response Convention. tion of business activities; and to indications that people smugglers are The Terra Nullius Bill will have two • given that the bulk of the electorate changing the focus of their operations clauses only: which really matters lives within 5 to target islands closer to the Australian • a provision for a “buffer zone” of 5 km km of the low water mark, the implied mainland. In combating these new threats inland from the low water mark on all promise to overturn Mabo and Wik to it is necessary to extend the bar on visa Australian land to be declared terra protect their backyards from native applications by persons who arrive with- nullius; and title claims will be achieved. Another out lawful authority at these offshore • a provision making clear (for the ben- core promise kept! islands.” No doubt as those “operations” efit of recalcitrant judges) that the There will, of course, be some disad- move further south, islands further south buffer zone is beyond the jurisdiction vantages including that: will be progressively added to the defini- of the Australian judicial system. • the over-populated countries to our tion of excised offshore place. The Explanatory Memorandum accom- north will see an opportunity to invade Some “do-gooders”, including lawyers, panying the Terra Nullius Bill will like- the buffer zone as a prelude to an inva- have suggested that such a course would wise have two paragraphs in the following sion of Australia. While such an occur- not achieve the Government’s intended terms: rence must be contemplated, a simple outcome as the High Court would con- .• “Clause 1 provides that the buffer zone dare of “Dub’ya or nothin’” should see tinue to have jurisdiction to issue certain is not Australia, so bugger off and even that any such intended invasion does constitutional writs upon the application if we wanted to help you (which we not eventuate; of an asylum seeker. sincerely do), we can’t”; and • the residents, and businesses, in the A simplistic, yet disingenuous, solution • “Clause 2 provides, for the assistance buffer zone will not have to pay taxes, — meeting both the core criteria of politi- of judges who still have difficulty with rates or other duties; cal expediency — is available. Instead both parts of “NO”, that they do not • paedophile clergy, colourful racing of the piecemeal approach of excising have jurisdiction.” identities and other business luminar- land from the “migration zone”, the War The advantages of this approach are ies are likely to “migrate” to the buffer Against Terrorism (Terra Nullius) Bill numerous and include that: zone to avoid prosecution (given that

34 35 News and Views

there can be no extradition treaty); from the “migration zone”, simply rein- down or reneged from honouring such and forces the position in which I found obligations. • the buffer zone in the Australian myself during the last election campaign. If Governments are permitted (pursu- Antarctic Territory cannot be meaning- To paraphrase the Gerry Rafferty song, I ant to some claimed mandate) to progres- fully defended. found myself flanked by: sively dilute the rights of “foreigners” in Surely, such disadvantages are a small this way, and most of us it would appear price to pay in order to win the war clowns to the Left of me are comforted by the idea that the restric- against terrorism? jokers to the Right . . . tion of rights applies only to “them”, how In any event, the grateful residents much longer before such restrictions are and businesses (protected from native I suspect that many voters, including applied to some of “us” — even if only title claims and exempted from workplace/ those to whom border protection was the first applied to those outside the “buffer health and safety regulation) will no primary criterion, now find themselves zone”? doubt be prepared to keep paying to the in just that position. Worse, those minor The intent of the Bill is to deny an revenue as if they were still residents of party politicians “stuck in the middle” asylum-seeker landing on any of the Australia. with us simply offer no hope. excised islands an opportunity to apply If that fails, an appropriate increase The bi-partisan sanction in September for a protection visa, thereby avoiding our in the Medicare co-payment and the 2001 for the grant to the Minister of power obligation under the Convention to con- minimum payment for PBS medicines will to prescribe certain parts of Australia as sider such a claim. Yet the Explanatory more than compensate for the shortfall. excised offshore places, apparently now Memorandum explains that the “. . . Such a move will affect only the “bludg- the subject of a Labor re-think, under- Commonwealth will continue to ensure ers” and other malingerers given that they scores that position. that, while unauthorised arrivals at typically reside outside the buffer zone. I do not advocate an open-slather excised offshore places cannot apply More importantly, the passage of the approach to asylum seekers; only that for visas, appropriate arrangements will Bill will better enable us “to decide who the obligations to which our political lead- ensure that Australia continues to fulfil comes to our country and the circum- ers committed us to when they signed its obligations under the United Nations stances in which they come”. the Refugees Convention (and ratified Convention relating to the Status of Terra nullius worked a treat from it, by inclusion of reference to it in the Refugees and under other relevant inter- 1788 until 1992, before a majority of the Migration Act 1958) are honoured. national instruments [para 7].” High Court decided to fix something that I do not deny that people smuggling is These “appropriate arrangements” are certainly was not broken. Surely, its time a problem. But is denying those persons nowhere specified but the “Pacific- solu has come — again! who may be genuine refugees, whether tion” rings a bell. The Terra Nullius Bill will, of course, or not they arrive on boats operated Clowns to the Left, jokers to the Right not achieve any reduction in people- by people-smugglers, the opportunity . . . terra nullius to the rescue! smuggling. The Governement’s approach to have their claims tested the only way is likewise destined for failure. to go? Assuming that all people-smugglers If indeed the Bill has been introduced in are motivated by profit only and care the knowledge that it would not produce nothing for their “clients”, legislatively the desired outcome of deterring people- moving an outlying Australian island from smugglers, the actions of the Government the “migration zone” is not going to deter stand on no higher ground than that occu- them. They are not concerned with the pied by the people-smugglers. success or otherwise of any of their cli- We stand steadfast against capital pun- ents’ asylum claims. Desperate persons ishment primarily because we refuse to seeking access to a safe haven will believe accept that any innocent person should be The Judicial Function anything, so long as it is laced with a trace put to death (whether or not we agree on Analysed of hope, in circumstances in which choice, such a fate for the guilty). The rejection of reliable information and the time within an asylum claim untested is tantamount, County Court (WorkCover which to make such decisions are severely in some circumstances, to a sentence of Jurisdiction) Geelong limited. capital punishment without a trial, let 15 August 2002 As limited a choice as that which con- alone a fair trial. Holt v Kleyn Plant Hire Pty Ltd fronts the Australian electorate at election Oppression which manifests itself Coram: Judge G.D. Lewis after election. Our experience tells us that as persecution for one, or other, of the M. Waugh for Plaintiff our politicians often make promises dur- Convention reasons begins from the one N. Ross for Defendant ing the auction atmosphere of an election common source — breach of trust by campaign which they either know they those entrusted with power by the people. Ross (cross-examining plaintiff): I put it cannot keep or do not intend to keep (e.g. Piece-meal avoidance of obligations under to you that you are capable of light work, “L-A-W law” and “never ever” re the GST). the Convention amounts to a breach perhaps holding a “go slow” sign on a road Yet we keep electing one or other group of of trust of a kind similar to that of the making gang. the same suspects at election after elec- oppressive regimes from which asylum Judge: Now I must say that’s a job that’s tion. And the victor then claims to have a seekers flee. Any apparent difference is as always appealed to me, holding up a “mandate”. to scope and reach only. “stop”, “slow” or “go” sign. Implementation of policy, of the kind Successive Labor and Coalition Govern- Ross: But more or less, isn’t that what which underlies the excision of islands ments have progressively either watered- your Honour does now?

36 37 News and Views CLE Launch at the Essoign Club Wednesday 31 July 2002

HANK you Mister Chairman. On behalf of the CLE commit- Ttee, I am pleased to introduce the Honourable Chief Justice Black to launch the CLE program. Before I call upon the Chief Justice to speak, I should say a few words about the program. First, I should thank the CLE committee which has worked diligently in establishing the CLE program. In particular I must thank Barbara Walsh, whose longstanding commitment to the Bar Kim Knights, Anita Kwong, Donna Stephen McLeish, Caroline Kirton and Readers’ course provides the foundation Bakos and Martin Bartfeld QC. Caroline Kenny. of legal education at the Bar. I also must thank the Bar Council, for supporting practitioner can gain benefits from the which barristers can learn, it is one in what I believe is an important initiative thoughts and views of others. CLE pro- which they can also teach. The passing at the Bar. It is also important to thank vides a forum in which practitioners can of knowledge and experience from senior Matthew Groves. He has continued his listen and exchange their views. This is barristers to more junior barristers lies at support and involvement in this program one of the most important features of the heart of the Bar itself. From this view, after leaving the Bar administration and the CLE program. It is easy to get a bar- joining Monash University. rister to talk, but a lot harder to get one When a CLE program was first pro- to listen. Listening and learning in court posed many asked whether we needed is quite different to CLE. The difference one. My response is — of course we do. is that CLE provides a reflective environ- Barristers need to constantly review and ment in which practitioners can consider revise their knowledge, just as any other and exchange ideas without the pressing profession must. Many barristers feel demands of their responsibilities to the that they gain all the CLE they need by client and the court. remaining at the cutting edge of their We must remember that CLE does practice. Well that may be true, but every not simply provide an environment in

Ross Ray QC, Chief Justice Black, Robert Redlich QC and David Faram. Chief Justice Black launches CLE.

36 37 News and Views

Ian Hill QC, Martin Grinberg and Duncan Allen.

Robert Redlich QC addresses the Ross Ray QC, Chairman of the CLE function. Committee, addresses the function.

• We ensure the sessions are immedi- • Each barrister will be required to ately relevant to practitioners at the certify the completion of CLE points Bar by calling upon the commitment which will then enable them to obtain Justice Brooking, David Faram of the various Bar associations to pro- a Victorian Bar practising certificate. In (President of The Law Institute) vide a minimum number of sessions special circumstances compliance may and Fiona Hanlon of Victoria relevant to their members. This be waived or deferred at the discretion University. commitment will provide on average in of the committee. excess of one session per fortnight. • For these reasons, we think that the • All members of counsel are welcome CLE program will be embraced by the to attend these sessions. They are at Bar as a useful and ultimately essential this time, however, compulsory for part of practice. the most recent readers’ group and all It is particularly appropriate that Chief groups thereafter. It is expected that Justice Black of the Federal Court should the program will become compulsory launch this program. Justice Black has a for all barristers in the near future. longstanding commitment to education at • While we hope to provide a wide range the Bar. For many years he was involved of relevant topics for practitioners it is in the management of the Victorian Bar our view that advocacy and ethics are Readers’ course and was its first chair- David Bremner, Mei-Leng Hodi and to be mandatory components of the man, so he draws from experience at both Inna Chibalova. course. the Bar and now on the Bench. • It is expected that barristers will require The Chief Justice has maintained his a CLE program represents a logical exten- 10 points a year which may be gained in involvement in legal education during his sion of what already occurs at the Bar. a number of ways. But as a rough guide term in judicial office. It is fair to say that The Victorian Bar has always taken one point equals one hour of CLE. under his leadership the Federal Court has pride in the high standard of the Readers’ • Members of counsel may also gain their led the way in the adoption of new prac- course . . . But the education of our mem- CLE points by attending other accred- tices and technologies to assist all users of bers does not finish with the Readers’ ited institutions, such as: the court, not simply practitioners. course. — all Federal Government accepted The Chief Justice also speaks from a The various Bar associations provide Australian university law schools; position of particular judicial experience. excellent seminars on important areas of — the Sir Leo Cussin Institute; The Federal Court has always paid great practice. The Bar has also long supported — the Law Institute of Victoria; attention to the Federal nature of its the open-door policy, under which any — the Australian Advocacy Institute, jurisdiction. Chief Justice Black presides member of the Bar, usually junior ones, etc. over, and is acquainted with, the differing may seek the advice or assistance of a • To gain accreditation, a seminar or Bars of Australia in a way that provides more senior practitioner. In one sense course must be relevant to a practition- him with a unique insight into the legal CLE provides a formal means by which er’s needs in professional development profession. But today, I understand that these informal practices of the Bar may be and the practice of law. It must contain he is going to enlighten us a little about harnessed and shared with a larger audi- a significant intellectual or practical the judicial perspective on the importance ence at the Bar. content. of continued education. It is important that the Bar’s CLE pro- • Members of counsel may also gain their Ladies and gentlemen: the Honourable gram is as flexible as possible. We believe CLE points by teaching at the Bar and Chief Justice Black. we have achieved that. at other accredited institutions.

38 39 News and Views Victorian Bar on the Conference Trail Inaugural World Conference of Barristers and Advocates Royal Museum, Edinburgh, 27–29 June 2002

Mark Robins

“. . . as long as but a hundred Laigh Hall, Parliament House, Edinburgh. of us remain alive, never In that very hall, Cromwell’s roundheads will we on any conditions be stabled their horses during their occupation of Scotland during the 1650s. Whilst brought under English rule. this beautiful room still reeks with his- It is in truth not for glory, nor tory, fortunately a great deal of house riches, nor honours that we keeping has taken place there since the are fighting, but for freedom mid-seventeenth century! The building in question is of course the old Scottish — for that alone, which no Parliament, which has long been home honest man gives up but with to the Faculty of Advocates. A newer, life itself.” and infinitely less charming, structure is being erected further down the Royal Mile The Edinburgh Declaration towards Holyrood Palace to house the new Scottish Parliament. At the outset I stress that it would HE above words form part of the be an arid exercise to venture to recite famous “Declaration of Arbroath”. the full details of the generosity and hos- TThat declaration was written by the pitality of the Conference’s Scottish hosts. Lords of Scotland to Pope John in 1320 The heartfelt Scottish welcome which all AD at the height of Robert the Bruce’s who attended received will remain with wars to liberate Scotland. I saw this Mark Robins us for many years to come, as will the extract proudly displayed in a pub along image of David Curtain QC doing a more the Royal Mile in Edinburgh whilst I was Colin Campbell QC, the respective heads than passable Highland Fling at the clos- attending the Inaugural World Conference of these two Bars, and they handled their ing dinner! of Barristers and Advocates last June. At task most ably. Over 160 judges, barristers The business of the Conference the time I was struck by the very strong, if and advocates from Australia, Scotland, started with the keynote address of somewhat strange, juxtaposition between Ireland, England, Northern Ireland, New Mary Robinson, the former President of this quote and the overriding theme of Zealand, South Africa, Bermuda, Hong Ireland and the present United Nations the Conference. But I am getting ahead Kong and Zimbabwe attended the three Commissioner for Human Rights. Mrs of myself. days of the Conference. I am pleased to Robinson’s address focused on the role The Conference was jointly hosted add that the Victorian contingent was par- of advocates and Bar Associations in pro- by the Australian Bar Association and ticularly numerous and representative of tecting and preserving human rights. She the Faculty of Advocates of Scotland. our own Bar. spoke with passion about several of the Fittingly, the joint chairmen of the No less fittingly, the principal proceed- all too many places in this world where Conference were Glenn Martin SC and ings of the Conference were held in the human rights abuses proliferate and of

38 39 the absolute necessity for those involved told the Conference delegates of Mugabe’s Gubbay or to his address without being in the Law to do all they can to seek to use, or rather misuse, of Presidential able to present his speech in its entirety. assist people in such circumstances. In Pardons to sanction the torture, kidnap- For my own part, he made me see some of closing, Mrs Robinson challenged each ping and even murder of farmers and our Bar’s fundamental ethical rules, such of the Conference attendees to consider as the cab rank principle, the obligation what they could do, both individually and to prosecute a client’s case without either collectively, in respect of such human fear or favour, and above all the vital rights abuses. importance of the preservation of our role Whilst I found Mrs Robinson’s address as independent advocates, in a fresh and to be extremely thought provoking and vigorous light. By the loud ovation which of genuinely great interest, at the time Anthony Gubbay so rightly received at the I somewhat sceptically felt that it was end of his address, I do not believe that I perhaps a bit idealistic and far too gen- was alone in that regard. eralized. After all, what could I as a lone It would be unfair to try to summarise antipodean barrister realistically achieve the addresses of all of the speakers who in such a context? For that matter, followed the Honourable Anthony Gubbay human rights abuses are something that SC. Indeed, they all faced the proverbially one really does not expect to encounter dreadful theatrical dilemma of following a in contemporary Australia, or any other At the foot of the cliff below very hard act indeed. Accordingly I will Commonwealth country for that matter, Edinburgh Castle. only briefl y refer to a sample of some of are they? I naïvely refl ected that such the later speakers, with one signifi cant are the stuff of dusty British history, other opponents of the Zimbabwe gov- exception. Henry VIII, Oliver Cromwell, Butcher ernment. He expanded upon the Mugabe Alan Leong SC, Chairman of the Hong Cumberland, etc. Little did I then appre- regime’s refusal to investigate or acknowl- Kong Bar spoke of the delicate balance ciate precisely how well Mary Robinson edge abuses by its military, which abuses faced by barristers in the former crown had set the scene for the next speaker included the unlawful arrest of journal- colony and of the diffi culties and chal- and how many oaks would spring from the ists. He recounted how since about 1999 lenges posed by China’s so-called ‘One acorns which she had so skillfully sewn Mugabe has increasingly employed his Country, Two Systems’. Ironically enough, amongst us. so-called “war veterans” in an attempt to one Scottish barrister sitting near to me The next speaker was the Honourable cow the Courts and to crush opposition, quipped that the Scottish had faced that Anthony Gubbay SC, the former Chief most publicly by the overt occupation of problem since 1709! One might, how- Justice of Zimbabwe. Anthony Gubbay hitherto white-owned farms, culminat- ever, refl ect on which rule was poten- presented as a modest, slight, softly spo- ing in a brief invasion of the very Courts tially harsher, that of the Mandarins of ken and rather gentle man, not at all of themselves. Finally Anthony Gubbay Westminster or that of the more authentic the stuff that a Hollywood producer would spoke briefl y about the diffi culties pre- version? cast for a heroic role. Nevertheless, he is sented to the judiciary and Bar in seeking On the fi nal day of the Conference, the an individual of truly heroic proportions. In to uphold the law in a country where, as in Honourable Lord Reed, Senator of the his own quietly determined and unphleg- Zimbabwe, the governing power has pro- College of Justice of Scotland, thought- matic way he held all of the Conference fessed that it will not recognise rulings of fully addressed the question of the inde- delegates spellbound during the all too the Court (as Mugabe himself stated to his pendent Bar and the State. His Lordship brief 20 minutes in which he spoke of his ruling party on 14 December, 2000). was in turn followed by two other speak- experiences as Chief Justice of a country I simply could not do justice to Anthony ers before another unassuming Titan where the executive fl outed the rule of from Zimbabwe took the fl oor to speak law at every turn, where lawyers, judges on the question of the independent Bar and litigants were regularly harassed and and human rights, Adrian de Bourbon SC, threatened and where an unscrupulous Over 160 judges, Chairman of the Zimbabwe Bar. government simply ignored any judgment barristers and advocates Whilst Adrian de Bourbon was or ruling contrary to its interests or its from Australia, Scotland, physically more imposing than Anthony convenience. Regrettably, as he told us, Gubbay, like the former Chief Justice, those problems have continued since Ireland, England, Northern his address was delivered forcefully but his retirement. But as Anthony Gubbay Ireland, New Zealand, softly and without hyperbole or spleen. explained, the judges, the barristers and South Africa, Bermuda, Somehow the lack of overt emotion in his the solicitors of Zimbabwe continued, and address made it all the more powerful. He for the most part continue, to do their job Hong Kong and Zimbabwe added to Anthony Gubbay’s account of the as well as they could despite the very real attended the three days plague of human rights abuses which has personal risks which they faced, of which of the Conference. I am beset Zimbabwe under the unenlightened incarceration was probably the least. tyranny of President Mugabe, particularly The major points touched upon by pleased to add that the since the nascent emergence of a viable Anthony Gubbay included the arbitrary Victorian contingent was opposition at about the time of the elec- change of Zimbabwe’s constitution and particularly numerous tions in 2000. its Declaration of Rights to suit the needs Adrian de Bourbon praised the exam- from time to time of Mugabe’s ruling party and representative of our ple set by Anthony Gubbay and the other and the parliament dominated by it. He own Bar. judges whose appointments predated the

40 41 worst excesses of Robert Mugabe’s regime David Curtain QC of our Bar and Roy 2. That the referral bars, the organised but, with implicit regret, he went on to Martin QC of the Faculty of Advocates bodies of the profession of barristers inform the delegates of the deleterious then gave two excellent speeches on and advocates, have a vital role to play effect of some of Mugabe’s more recent the respective drives by the competition in defending the independence of the appointees upon the independence and authorities of Australia and the United courts and in ensuring access by the integrity of the judiciary of Zimbabwe. Kingdom to reform our independent Bars. public to them. Indeed, since 2001, not only has Anthony It seems that in both of our countries the 3. That the participating bars commit Gubbay been forced to resign, but fi ve same philosophically driven arguments themselves to supporting, and always other judges have been similarly pres- of alleged restrictive trade practices are being open to them, legal practitioners sured into withdrawing from offi ce. This pursued by the competition authorities in all countries where their capacity to has left Zimbabwe with a Court dominated against the independent Bars, despite practice and organise themselves freely by Mugabe appointees such that Adrian de the lack of objective evidence to support and independently is under threat. Bourbon was compelled to concede that such arguments and usually in the face of 4. That this conference expresses its com- with only a few exceptions, Zimbabwe plete support for: could no longer be regarded as having a — the Bar Council and Law Society of truly independent judiciary. Zimbabwe in their assertion of inde- The catalogue of blatant abuses by the pendence and in their commitment Mugabe Government which Adrian de to the restoration of the rule of law Bourbon spoke of was sobering. These in Zimbabwe; included the statutory reintroduction of — the Hong Kong Bar in its principled penal laws for so-called “false reporting” espousal of the rule of law. by the media after the Courts had found 5. That the participating bars shall take such laws to be unconstitutional, the retro- practical steps to coordinate and spective change of land laws for the clear advance the work of bars around the purpose of defeating litigation then pres- world for the protection of human rights ently on foot on behalf of the Commercial and for the enhancement of pro bono Farmers’ Association, the arbitrary arrest legal services for the poor and the vul- without due process of lawyers or other Pre-dinner entertainment on the nerable. critics of the government and even a threat evening of the Gala Dinner, Royal 6. That the participating bars shall also by the Government to legislate against the Museum of Scotland. continue to work to defend the inde- Law Society of Zimbabwe in order to stifl e pendence of the profession of barrister its outspoken criticism. clearly contrary evidence refuting them! and advocate. Adrian de Bourbon noted that the inde- Sadly the misplaced zeal of the competi- pendent Zimbabwe Bar consists of only 19 tion authorities of Australia and Scotland I am proud to say that this resolution barristers. It is a de facto bar which, much appear to mirror one another, but more was unanimously adopted by acclaim. like the Victorian Bar in the 1890s, has fortunately so far the voice of reason has Mary Robinson’s mighty oak had sunk survived the Government’s attempts to prevailed in both countries, if only just. deep roots indeed. fuse the profession. Whilst as a Bar they My own conclusion was that perhaps if I will long recall the calm and deter- are apparently well supported by the these bodies were themselves in competi- mined valour of Anthony Gubbay and Law Society of Zimbabwe, one can only tion with competing competition authori- Adrian de Bourbon. It was completely imagine the immense courage and char- ties then, and only then, they might either humbling to hear their recounted expe- acter which can bind so small a Bar of 19 produce fresher and more convincing riences and to observe their ability to members together and to keep it going in reasons for reform of the independent struggle on ethically and with dignity as the face of such overwhelming adversity. Bars or even conclude that this constant members of a legal system, so close to Like Anthony Gubbay’s speech, that of attack on the independent Bars is simply our own, but one which is beset by the Adrian de Bourbon needs to be set out in misconceived? worst possible executive abuse. The fact full to be truly appreciated. When he fi n- As the Conference drew to a close on that those gentlemen shortly after the ished after a little more than half an hour, its fi nal day, and all delegates were looking Conference were to return to Zimbabwe Adrian de Bourbon received a thunderous forward to the much anticipated dinner to simply underscored their true calibre as standing ovation. be held that evening in the new Scottish human beings and as lawyers. The task that faced those who followed National Museum, a proposed resolution And so as I read the words of Adrian de Bourbon was no easier than that was put to the delegates. This proposed the Declaration of Arbroath in that pub for those who followed Anthony Gubbay. resolution was framed after consultation in Edinburgh, in my conception they If anything, it was worse! The current amongst the various chairmen of the Bars fl owed into and merged with the words Attorney General of England and Wales, present. That resolution was as follows: of this far more recent Edinburgh the Right Honourable Lord Goldsmith, Declaration. If the enemy now no longer gave a splendid address on the true role EDINBURGH DECLARATION be a foreign oppressor, but a domestic of Attorney General and its importance in This conference resolves: one, then the barrister’s duty to oppose preserving and protecting the independ- 1. That the independence of courts is injustice and to uphold the rule of law ence of both Bar and judiciary. It was a essential to the functioning of democra- is no less real than the task which faced speech that would be well referred to His cies, and that the independence of the the Bruce and his followers in 1320, nor, Lordship’s contemporaries throughout legal profession in turn is essential to for that matter, are the stakes any less our own Commonwealth. the independence of the courts. high.

40 41 News and Views Decline of Cab-Rank Rule Discussed

By R.A. Lawson

OR one who had never been to Scotland, notwithstanding his FScottish an cestry, the inaugural World Conference of Barristers and Advocates, in Edinburgh, was just too tempting. How different from Melbourne Edinburgh is. Compact, cool, austere, modern, medieval, and crammed with architecture and history. No wide streets, no football, no trams and few trees, but a beautiful city. It has had its share of nota- bles: Hume, Boswell, Adam Smith, Burns and Scott. And along with the Irish, when the Scots speak, they leave one close to tears. It has been said before that, compared with the rest of the UK, they do things a little bit differently in Scotland. It is not forgotten that, in 1587, Queen Elizabeth I of England condemned Mary Queen of Scots to death. An independent mood per- sists. The Scots have their own currency albeit that their pound is fully equivalent to the English with each being accepted throughout the UK. The Scots have their own Crown Jewels which were saved from Oliver Cromwell and are proudly noted as being of much greater antiquity than those sparklers housed south of the border in the Tower of London. Browsing in a department store, my companion Gala Dinner at the Royal Museum of Scotland: (back row) Peter Almond QC, even saw a Monopoly game with Parklane Andrea Gabriel (South Africa); Jan Logan (Queensland); two Faculty of and Mayfair replaced by Balmoral and Advocates members, Hoosen Gani (South Africa); (middle row) Richard Lawson, St Andrews. Then, of course, there is John Logan SC (Queensland); unknown Australian; (front) Victoria Broughton. Scottish Law whose differences I shall not even attempt to outline. Suffi ce to say that, tality was offered. The Opening Reception as I recall, Donoghue v Stevenson began was, for me, the highlight — staged as it life as a Scottish trial with the House of was in the Great Hall of Edinburgh Castle. Lords ultimately remarking that, for the The Castle is, to say the least, impressive, purposes of the appeal before it, the law and has been there for 900 years. Even my of Scot land and the law of England were companion conceded that it overpowered the same. I should say something about the ancient and stunning Shinto Castle in the Conference. It attracted 400 people Osaka. drawn from the independent referral Bars As for the Conference lectures, I only of Scotland, England, Ireland, Northern wish to make a couple of points. No doubt, Ireland, South Africa, Zimbabwe, Hong the full text of most of what was said is on Kong, New Zealand and Australia. Our a website somewhere. host was the Faculty of Advocates (the The fi rst point is about the cab-rank Victoria Broughton, Arthur Adams QC Scottish Bar ) and what magnifi cent hospi- rule. This was the subject of a dis cussion and Richard Lawson.

42 43 News and Views

chaired by a Scottish silk, Neil Brailsford. public may brief any barrister they like delivery Mr de Bourbon recounted a litany In my view, what emerged from the dis- (provided a proper fee is offered) is of state intimidation and arbitrary arrest cussion was that, by degrees, the rule has largely illusory. of members of the Zimbabwe Bar and become optional if not meaningless. In The main exceptions to this are those their families — which has emerged under practice, it is easy to find ways to refuse a areas of practice which have become the Mugabe regime in the last 18 months. brief. One way is by fees. If one finds a case politically fashionable. Because they are It seems that the new Mugabe-appointed or a client unattractive or distasteful, one politically fashionable, they attract pub- judges are, to be most charitable, incom- simply quotes (perhaps unconsciously) an lic money to fund them — one way or petent and have no understanding of what artificially high fee knowing that it is out of another. The subsidized client is happy to an independent Bar is or does. Mr de the client’s reach. “pay” the brief fees that are charged and Bourbon’s speech was at once chilling and Another and more insidious way the barrister is happy to take on the case. rivetting. When he finished, he received a is by specialization. Most of the other If the case is “not quite my area of prac- standing ovation. participating Bars at the Conference, as tice”, then it very soon will be. So back to Melbourne for us via France with ours, appear to have become wheels The other point about the Conference and Italy. It is certainly worthwhile attend- within wheels within wheels. “That is not lectures is to remark on an address given ing an international conference at least quite my area of practice” is something on the final day by Adrian de Bourbon once. It broadens the mind even if the that can be said about any number of SC. He chairs the Zimbabwe Bar which travel does not. briefs one is minded to refuse. has only a 20-year history and which has So the notion that a member of the less than 30 members. With a cool factual

Magnificent Men on their Cycling Machines N extraordinary case is going on gerous out there. What would be the point pening to James Bond in the story I was Ain the High Court at the moment. of getting fit and healthy only to be run listening to was a lot more hairy than what Lawyers can find no precedent for the over? A fit dead body is just as dead as a was happening to me, so in a sense I was case of Murphy v Flying Nun Motors, flabby dead body. keyed up for it. Maybe because of that I which will make legal history as the first Counsel: So you didn’t do your exercise had the instinctive reaction to hurl myself case in which bicyclist sues the owners indoors as normal on this one day? off the machine before the plane hit it. of an aeroplane after a traffic accident. Murphy: No, I thought that as it was a Counsel: Was the machine damaged? What happened was that . . . but perhaps lovely sunny day I’d pull the machine into Murphy: Damaged? It was demolished! an extract from recent proceedings will the garden and do my cycling there. I would probably have been killed. As it explain things. Counsel: Right. So we have a picture of was, I had a bad ankle injury. Counsel: Your name is . . .? you in the garden, pedalling away and Counsel: From being hit by the plane? Plaintiff: Murphy. going nowhere, your mind a blank . . . Murphy: No. I fell awkwardly. Counsel: What is your first name? Murphy: My mind was not a blank. I was Judge: Mr Rossiter? Plaintiff: Murphy has always been my listening to an audio tape. It was a James Counsel: Yes, my Lord. name. I never had another previously. Bond story. Judge: I have been listening attentively, Counsel: No, what are your forenames? Counsel: Right. So you are on your exer- because that is what I am paid to do, and Plaintiff: Only two. Edward Murphy. cise bike, listening to a James Bond story. as far as I can tell, we have a case in which Counsel: Thank you Mr Murphy. Now will What happened next? an unmanned aeroplane that cannot you describe the events of the morning of Murphy: Well, along the A road passing fly is said to have demolished a vehicle June the 19th last year? my house there was a succession of what which is incapable of moving. Have I got Murphy: All of them? looked like fairground vans — you know it straight? Counsel: Only the events that are rela- with lots of gaily painted girders and signs Counsel: Yes, my Lord. tive to this case. saying “GHOST TRAIN” and dodgems. Judge: And all this took place on private Murphy: Oh, right. Well, that morning I Then suddenly there is the most almighty property where, as you know, traffic laws was in the garden. crash, and this thing comes through the and highway code do not apply? Counsel: What were you doing in the hedge towards me. Counsel: Yes, my Lord. garden? Gardening? Sunbathing? Counsel: What thing? Judge: I only hope you know what you’re Murphy: No. I was bicycling. Murphy: An aeroplane. doing. What have you got lined up for us Counsel: Really? Do you often bicycle in Counsel: What kind of aeroplane? next? your garden? Murphy: Well, not strictly an aeroplane, Counsel: I propose to call the only wit- Murphy: When I say I was bicycling, that but one of those things that flies round on ness to the incident, a Mr Arthur Whitlow, isn’t strictly accurate. In fact I was on an the end of one of those great twirly things who was in the next door garden. exercise machine. Normally I do half an that you get on and they make you sick as Judge: May I ask what he was doing? hour a day. a dog, so I never go on them. It had come Counsel: He was on a rowing machine. Counsel: You prefer going on the machine off a lorry. Judge: Oh good. Carry on! to getting on a bike and going out on the Counsel: Were you terrified to see an roads? aeroplane coming towards you? The case continues, though not in this Murphy: Oh God, yes. The traffic fumes Murphy: Yes and no. Yes, it was certainly column. are awful on the road, and it’s far too dan- unexpected. No, because what was hap- Miles Kington

42 43 News and Views Australian Bar Association Conference Maison du Barreau, Isle de Cité, Paris, 7–10 July 2002

This conference was different from other years. It began with a Red Mass. The Mass was notable because it was held in the stained glass beauty of the Chapelle de St Michel in the Palais de Justice. But also notable because two Protestants trained at a certain bluestone establishment were entrusted with taking up the collection from the assembled and partly wigged and robed congregation. Judge Graham Hicks and one of the editors of this publication were chosen by ABA President David Curtain QC (looking resplendent in his silks) to “take up the plate”. Many could only conjecture as to his reasons. What then unfolded from this auspicious beginning was undoubtedly one of the best conferences organised by the Australian Bar Association. Eiffel Tower

OST attendees agreed that the Maison du Barreau situated on the Isle itself. Perhaps it was these surroundings content and standard of the papers de Cité, the island which houses not coupled with the warm summer haze of Mwere excellent. The conference only the beautiful French Courts of Paris that made the speakers so listen- was based at the Paris Bar’s headquarters, the Palais de Justice, but Notre Dame able.

Paris passes by the reception.

44 45 News and Views

At the dinner: Rodney Garrett QC, Chris Small and Warren Swain. Up the long Plaza. Mark Robins and Diana Garrett.

Bean QC who spoke on human rights. judiciary was both thought provoking and There certainly did not appear to be hard hitting. any of the old tensions between France But enough of the serious side. and Britain when the conference was Registrants needed to relax and network addressed by our French hosts. The ses- after the intellectual rigours of the day. sion on 9 July was highlighted by Jose The opening reception took place on Rosell discussing whether code and water for a change. In the spirit of the common law counsels are coming closer great transatlantic liners, La Paquebot, a together, Louis-Bernard Buchman speak- large and imposing vessel was the scene ing on the French legal system and Yves for the conference reception — and On board La Paquebot. de Mahenge on the future of the separate what a reception it was. Fine food and systems. wine and a basking afternoon were the Of the local content Justice Michael perfect ingredients to de-stuffi fy such McHugh’s paper on the relationships and usually stuffy occasions. Many felt sorry tensions between the executive and the for George Beaumont and his wife, who missed the boat despite a last ditch run at the gang plank. This large art deco hotel One of the main conference hotels was the Lutetia situated on the Left Bank. This is famous not only for large art deco hotel is famous not only for its ambience but the its ambience but the fact that it was the fact that it was the headquarters of the Nazis during World The conference engine room. War II. Some said that it was entirely headquarters of the Nazis suitable as a venue for Australian judges during World War II. and barristers. Many notable members of A cosmopolitan feeling pervaded throughout the Conference. Perhaps it was the timetable which allowed registrants afternoons to explain to accompa- nying persons and sundry Parisians the nuances of human rights, the media’s treatment of judges, and the tension between the executive and the judiciary. Having experienced the facilities that the Paris Bar enjoys it is understandable that some attempt is being made to upgrade Owen Dixon Chambers East, short of demolition. The erection of a faux Notre Dame towering over the rusty roof of 205 William Street would inspire more to mar- vel at the words of Chairman Redlich, or scheduling Bar Council meetings in a cosy Brasserie in the Club d’Essoign with a saucy show to follow. The international fl avour was highlighted by the attendance of the Chairman of the Bar of England and Wales David Robert Redlich QC, John Middleton QC, Roy Martin QC and Justice Ken Hayne.

44 45 heard commenting to Christopher Smale that he much preferred Leonda as a venue. Glittering chandeliers, huge expanses of mirror, and Louis XVI furnishings in garden surrounds ensured enjoyment. An array of waiters served foie gras, salt-fed lamb, cheeses, and fine pastries. However, Judge Frank Walsh loves his lamb the Australian way and sent his back for it to be “properly cooked”, it duly returned re- cooked with a hefty side serving of diced carrot and white sauce. The assembled throng were enter- tained by a piano accordion band, une chanteuse, and the words of Glenn Martin S.C., Conference Chairman and ABA President David Curtain QC. Glenn, inspired by the surrounds, was witty — David had to thank our French hosts. It is rumoured that Jack Forrest QC spent many hours prior to the dinner “working on” David’s French pronunciations. The on-board reception. Perhaps the Jesuits were not great teach- ers of French, as David is still working on his grâves. Judge Warren Fagan, franco- the High Court thoroughly enjoyed their Indeed the French staff were bemused at phile extraordinaire has vowed to take stay, although Jim Kennan S.C. made it such Antipodean consumption. David under his wing and tune his accent clear to the media that he did not stay at The Conference Dinner was held at Le at the Alliance Français. the hotel nor indeed had not set foot in Pavillon Dauphine located at the edge of After much dancing and talking, the the place. the bois de Boulogne. This meant that buses finally took their cargo to vari- An excellent cocktail party was held for those attending were “bussed” from the ous hotels, where some were later seen registrants to meet members of the French hotels resplendent in “Cravate Noise”. attending other establishments such as Bar, although to many Victorians their most Indeed many barristers had a lot of bag- the Havanita Cafe and Le Baby Doll. lasting experience of foreigners was to gage to carry to the conference what Such a seamless conference owes attempt to converse with Queenslanders. with packing full wig and gown, tuxedos much to its organisers. The hard work was It is said some of the French attorneys (although the vast majority wore black performed by Glenn Martin S.C., David present were able to interpret. Having rather than white which was the correct Curtain QC, ABA Secretary Dan O’Connor, experienced the price of une coupe de etiquette for Summer), and long luxurious and Anna Whitney of the Victorian Bar. champagne in the conference hotels flowing, designer gowns and accompany- The travel and accommodation were (around $25–30), many conferencees ing baubles. excellently handled by Ruth Carlton of made the most of the excellent Taittinger The dinner and its setting were superb, World Travel. champagne at the conference functions. although Rodney Garrett QC was over- An Editor

46 News and Views Verbatim

subpoena and that he is required to com- Court that I would like to use the 20 min- Gender and Health ply with the subpoena. Things happened utes allocated to me, without any undue Master Bruce, hearing a submission from quite fast when you came into the room interference from the Bench. If the Court a solicitor on 5 September 2002 that the and I am not at all certain exactly what did wishes to ask me any questions, you are interlocutory steps could not be agreed transpire. He is convinced that you called quite welcome to write them down and to due to the (male) “defendant’s health him a dickhead, sir, and . . . ask me at the end of my allocated time. being in a delicate condition”. The Commissioner: I didn’t call him a Concerning Masonic disclosures from dickhead. I said “if people want to hehave the sitting members of the Bench, I will Master Bruce: Now I don’t know what like dickheads”. We will leave it at that, work on the assumption that members of being in a “delicate condition” means. and what transpired between me and . . . this Bench may have made secret Masonic There was a time when in a “delicate Holding: . . . he feels that you have oaths. This assumption must exist until condition” meant something in relation to called him a dickhead and he feels that an any sitting member states otherwise. women, but I doubt that applies to your apology from you would be appropriate. client. The Commissioner: Mr Holding, you can tell that gentleman you have just spoken Perfect Inquest to that I am not intimidated by people The Age was Wrong staring at me. Coram: Wall M., Coroner McClay: Don’t ever call me a dickhead Priest QC and Hinchey for Vic Roads There was also, obviously, the reference again. in The Age on 5 September 2002 to the Coroner: what do you think needs The Commissioner: I didn’t call you a opening of the “Esso” case: to happen now, Mr Wall, in relation to dickhead, and don’t talk to me like that improvements? I am sure the editors were mortified to see and don’t point at me like that. Hinchey: Your Worship, improvements in the learned Judge referred to as Justice McClay: Well, you were pointing at me. relation to what? Bill Dullard. The Commissioner: I wasn’t pointing at Coroner: Generally. you and . . . Hinchey: To the world? McClay: You called me a dickhead. Coroner: It may be a broad question that Nouveau Testament Mr Wall can choose to answer in a way he sees fit. I don’t want to narrow his focus at Mr Justice Byrne, hearing a case about Reading Difficulty all in relation to any question. testamentary capacity. Hinchey: I still ask Your Honour to direct Witness: I spoke French with him. County Court him at least to a sub-category within the Judge: I didn’t know speaking French was 8 September 2002 scope of the inquest because just the word a requirement for testamentary capacity. Judge Higgins “improvements” doesn’t really direct his Attard v Frewstall Pty Ltd mind to the particular area. R. Gordon QC and D. McIvor for Plaintiff Coroner: I’m sure Mr Wall is bright Loggerheads Boyes QC and Zydower for defendant enough to work out where we’re going. Doctor being re-examined by D. McIvor Hinchey: Well, I’m not, Your Worship. Australian Industrial Relations Judge: What do your notes say, Mr Commission McIvor? 14 January 2001 McIvor: I can’t read my writing, Your “Sounds Like Viagra” Commissioner Tolley Honour. 28 August 2002 Stephen Rex Dundon v Simon Zydower: And you’re not even a doctor. N. Rajcinovski v Non Ferral Pty Ltd Engineering Australia Pty Limited Doctor: I object to that, Your Honour. R. Webster for Plaintiff Application under section 170CE of Judge: Objection overruled. Kirkham and Batten for Defendant the Act for relief re termination of employment. Kirkham: Mr Rajcinovski, we have a P. Holding for Applicant Silence from the Bench! print-out of the moneys that have been C. Milne with T.T. Turnbull for paid in respect of medical and similar Respondent expenses on your behalf by VWA. Do you High Court of Australia understand what I’m talking about? The Commissioner: If he wants to learn Melbourne Office of the Registry Rajcinovski: (Inaudible response). to behave himself and not dance in here as Allan Robert Knight, Applicant Kirkham: it appears that in relation to if he is in a bar at Moe or somewhere, you Randall John Bell and Peter Clifford pharmacy bills between 29 May 2000 and can go and talk to him. Falconer, Respondent 21 April 2002 you’ve had 78 visits to the Holding: Commissioner, Mr McClay is — I Outline of Oral Submissions: pharmacy and $16,900 in total was paid on have tried to advise him that he is under Before I start I wish to make it clear to the Continued on page 56

47 News and Views New Practitioners Admitted by the First Women’s Full Court of the Supreme Court 5 August 2002

It’s not every day that women judges turn up as cover girls, but such a day occurred in August when a Full Court of the Supreme Court was composed of three women, for an admissions ceremony.

HE appointment of Justice Julie Dodds-Streeton in late July pro- Tvided the Chief Justice, Justice John Harber Phillips, with his fi rst opportunity for an all-woman Full Bench, only the second time this has occurred in Australia. It was also excellent timing that it occurred in the year the Supreme Court Justice Warren, Justice Balmford (presiding) and Justice Dodds-Streeton. celebrated its 150th anniversary. Presiding was Justice Rosemary to do so in an Australian court — regarded “But this sitting, even though it is a Balmford, a Supreme Court judge since the sitting as a signifi cant start for the ceremonial sitting, is a powerful symbol 1996, and a County Court judge before court and for women in the profession. to women, especially those now entering then for three years, following her father, “It has taken 150 years, but it is pleas- the profession. Women are now making Sir John Norris, who was also a judge, ing to have been on the fi rst all-woman Full their mark at the most senior levels of the fi rst of the County Court, and later of Court in this court,” she said. profession, and this special sitting was a the Supreme Court. She sat with Justice “When I was admitted in 1975 there symbol of that.” Marilyn Warren (appointed in 1998) and were no women judges on the Supreme Justice Dodds-Streeton said she was Justice Dodds-Streeton, who was wel- Court, so this is a milestone in the recog- honored to take part in the historic sit- comed in the same courtroom only fi ve nition of women in the legal profession,” ting. days earlier. Justice Warren told Bar News. “I have “It is symbolically important and also, I Justice Balmford said: “The three of waited a long time for this.” hope, presages a transition from an exclu- us were delighted at the Chief Justice’s All three judges are looking forward to sively male culture in the courtroom,” she decision to list an all-female Full Court for the fi rst all-woman Bench on the Court of said. the admission ceremonies in August. We Appeal. “That in itself may reduce one impedi- were in complete agreement that nothing “We still have a long way to go,” Justice ment to women’s greater participation in would be said at the ceremonies about the Warren said. “When I preside over direc- the full spectrum of legal professional life. constitution of the Court, but we were all tions hearings on Fridays I still look out at “The current representation of women very much aware of the signifi cance of the a sea of people in suits, almost all of them on the Bench and at senior levels in the occasion.” worn by men. Women have been briefed to profession still falls far short of what might Justice Warren, who heads the Supreme appear before me in only two trials in the be expected, given the number of women Court’s commercial list — the fi rst woman last four years. graduates for some years.

48 49 News and Views

“While there may be no easy answers, it of history was too good to miss. “The appearance of role models for is important to keep questioning why this “Our professional leaders are currently these, to whom they can relate is, I think, should be so.” concerned about the departure of many very important. Hence our special Full The Chief Justice told Bar News: “In young lawyers from our ranks. A con- Court.” the midst of what has been a historic year, siderable proportion of these are young an opportunity to create a further piece women. Remarks by Justice Balmford, as Presiding Judge HE Court being satisfied, with maintaining the profession’s standards of The client who has been charged with respect to each applicant, that the honesty, integrity, fairness and concern for a crime and asks you to undertake the Tnecessary requirements for admis- the public interest in the maintenance of a defence. sion to practise have been completed, in just society. The client who is enmeshed in litigation the case of each applicant an order for The world these days is often critical of and seeks to fight it out to a finish when your admission will be made, to take effect lawyers, and you will have heard and read it could better be terminated by a settle- on your signing the roll. much of that criticism. There is, of course, ment. The first admissions to practise in what validity in some of the criticism; but much All of these, and many, many more, are is now the State of Victoria took place of it is ill-informed, or consists in jumping people who need the help which a lawyer’s before this Court was established. On 12 on easily accessible bandwagons. Perhaps skill and experience can give them. April 1841, in a court house at the corner you are finding that you do not enjoy what The gratitude of the individual human of Bourke and King Streets, Mr Justice you are doing now, that you do not find it being whose problem you have solved is a Willis of the Supreme Court of New South very valuable to anyone else or very sat- very satisfying reward — sometimes one Wales admitted five barristers to practise isfying to yourself. That may pass as you feels the gratitude is out of all propor- in the Supreme Court of New South Wales gain experience and confidence. If not, you tion to the effort involved — what is so for the district of Port Phillip. And on 8 can change what you do and still be mak- easy for you is so important to the client. May 1841, fourteen attorneys were admit- ing use of your training in law. Never forget that often what may well be ted in the same way. Despite what you may have heard, be a small matter for you is at the time the The Colony of Victoria was separated reassured that the world needs lawyers. most important thing in the world for the from New South Wales on 1 July 1851, And individuals need lawyers. There are client. Treat your clients with the care and and the Supreme Court of Victoria was many ways in which lawyers are needed. consideration which you hope and expect established by legislation which came James Boswell as you all know, wrote to receive yourself when you seek the help into effect on 6 January 1852, since when the Life of that great literary figure Dr of another profession. admission to practise has been a matter Samuel Johnson. Boswell writes that, in Be courteous and considerate in your for this Court. The first sitting of the Court 1765, when he was 56 years old, Johnson dealings with other lawyers. If lawyers was held on 10 February 1852, and thus had thoughts of studying law. He was a cannot deal with each other in a civilised earlier this year the Court celebrated its very devout man, and he composed a manner, we might as well leave it to the cli- 150th anniversary. prayer, in which he asked God to enable ents to fight their own battles — because The building we are now in was opened him “to attain such knowledge as may in that situation we will do it no better than in February 1884, and we can assume that qualify me to direct the doubtful, and they. all, or almost all, admissions to practise in instruct the ignorant; to prevent wrongs Different kinds of clients need different Victoria since that date have been per- and terminate contentions”. kinds of skill and experience. You will find, formed in this building, normally here, in To direct the doubtful and instruct the somewhere in the world for which your the Banco Court. So you are following in ignorant; to prevent wrongs and terminate qualification has fitted you, whether or what is for this country a long tradition. contentions. It is not a bad summary of not in the actual practice of the law, work When you sign the roll, and the order much of what a lawyer does. which will enable you to use your skill for your admission takes effect, you will be, The doubtful client who is proposing to and training and to enjoy the satisfaction by virtue of the Legal Practice Act 1996, make a will, anxious to achieve a particular which comes from a job well done. And barristers, solicitors and officers of the purpose and hesitating between different whether or not you are in practice, you are Supreme Court of Victoria, owing duties to courses of action, unaware of their legal still a member of the profession, with all the Court as well as to your clients. implications - perhaps wanting, for what that that entails. It used to be said here to newly admit- seems good reason, to leave more to one Community organisations need ted members of the profession: “The pro- child than to another, but wondering about lawyers. You may well find that you join fession to which we have admitted you is that second child’s ability to make a suc- some organisation because you are inter- an ancient and an honourable one.” And cessful challenge to the will. ested in, or committed to, what it does, so it is. Human beings are fallible; but the The ignorant client planning to set up and find that it needs a lawyer, whether in profession aims high, and for the most a manufacturing business, who knows eve- a voluntary or a paid capacity. part succeeds. By admitting you to prac- rything about how to make the proposed Governments need lawyers, both for tise, we have entrusted the future of the product, but knows nothing about corpo- strictly legal work and for policy advice. legal profession of Victoria to your hands, rate structures, the problems of buying The executive can only act in accordance and you bear a heavy responsibility. It is or leasing premises, or the intricacies of with the law — normally a valid authoris- for each one of you to play your part in planning law. ing statute. Lawyers are needed both to

48 49 News and Views draft those statutes and to ensure that the executive operates within the powers which those statutes confer. Annual Report of the The whole community needs lawyers, if we are to retain the rights and the Alternative Dispute Resolution freedoms which we enjoy in this, the lucki- est country. Sir Gerard Brennan, speak- Committee ing at Bond University in 1998, as Chief Justice of the High Court, said: Our Constitution, rooted in the common HE nature of the work of the level of 1.3 is the break-even point. law, does not need to express the proposi- Committee in the first part of The Committee again exhorts all tion that the nation is under the rule of Tthis year has been affected by counsel to maximise the use of the law and that the Courts are the organ of circularisation of the business rather Mediation Centre which, in addition government responsible ultimately for than by meetings. For the second half to its traditional functions of conduct- the enforcing of the rule of law. That is of the calendar year 2002 the Chairman ing mediations and arbitrations, is also the Constitution’s fundamental postulate, is hopeful of organizing a review of available for hire for conferences; the inherent in its text. mediation in the various Court juris- rooms vary in size from large to rooms The courts, with that responsibility dictions in which it is practised. suitable for small conferences. upon them, cannot function without the In late 2001 the Bar Council sought The Bar is indebted to Tania legal profession; those who prepare cases the Committee’s views on the appro- Giannakenas who for many years has for trial, those who present them to the priateness of the then existing Rules worked as the receptionist and book- courts, and those who are the judges and of Conduct. The point of issue was ing officer with an exemplary degree magistrates who constitute the courts, whether any of the Rules applied to of keenness. We wish her well in her who have sworn to do justice according barristers when acting as mediators. motherhood role. to law. Various drafts and comments were The Bar’s Mediation Centre is effi- The criminal courts are concerned circulated by the Chairman to com- ciently run by Helen Henry, Pauline to deal with those who are thought to mittee members and members of the Hannan, Kay Kelly and Robyn Cran, have infringed the law, while ensuring Bar Council and Ethics Committee and the Chairman extends his special that no-one loses their liberty otherwise and their responses collated. For the thanks to them. A special thanks also than in accordance with the law: the civil large part the Committee’s view was to David Bremner who, in addition to courts are concerned to resolve disputes that minimum regulation should be his usual efficient efforts, has prepared in accordance with law; the High Court is effected and ultimately that found a detailed procedure document for the concerned with these same matters, but favour with the Bar Council which staff. also with ensuring that the exercise of passed new Rules 5A,198 and 199. The Chairman also thanks the legislative and executive power conforms The Bar’s Executive Director David Committee members for their willing with the Constitution and the laws made Bremner oversaw the running of the contributions. under it. All of those courts need lawyers. Mediation Centre which continues W. J. Martin Which means that they need you. to enjoy a satisfactory but less than On behalf of all the Judges of the Court, optimal level of occupation. Bookings we welcome you to the legal profession of returned to the levels of 1999/2000 Victoria, and we trust that you will, as we year after a fall in the year 2000/2001. have done, find satisfaction and enjoyment Currently bookings are running at a in your membership of the profession. We rate of 1.25 per working day, and a wish you all good fortune. Women Lawyers Achievement Awards AWARD PURPOSE The award will be presented to three May 2003. To obtain a nomination form, HE Women Barristers’ Association women lawyers who excel in a variety of please call Suzanne Jukic at the Law and the Victorian Women Lawyers professional settings and who personify Institute on 9607 9390 or visit the VWL T excellence on either the State or local website at www.vwl.asn.au (in conjunction with the Attorney- level. The nomination form contains the General’s Department) have established detailed Award criteria. VICTORIAN WOMEN LAWYERS the Women Lawyers Achievement ACHIEVEMENT AWARDS COMMITTEE Awards for 2003 to recognise and cel- NOMINATION FORMS The five-member Committee comprises ebrate the accomplishments of women Must be received on or before 28 representatives from the Judiciary, the lawyers. This Award honours outstand- February 2003 by the Victorian Women Barristers’ Association, the ing women lawyers who have achieved Women Lawyers Achievement Awards Victorian Women Lawyers, the Victorian professional excellence within their area Committee. The Committee will select Division of the Australian Corporate of speciality and have actively paved the recipients in March 2003. The Awards will Lawyers’ Association and academia. way to success for other women lawyers. be presented at a dinner in Melbourne in

50 51 News and Views Kiddle Revisited

N the introductory words printed in relation to the extract from “A Most IPeculiar Child” in the winter issue of Bar News we made a number of errors: 1. Allayne Kiddle was not the third woman to sign the Roll of Counsel. She was the second. 2. We attributed her education to the University of Sydney. This was errone- ous. (a) She completed two years of Medicine at the University of Melbourne before her career was interrupted by marriage. (b) Subsequently, after a stint as a dancer, including a contract with the BBC, she enrolled at London Eric Hewitt (1960) Peter Brusey (1960) School of Economics and graduated with LLB (Hons) in 1956. (c) She read for the English Bar and was admitted to the Middle Temple. (d) She signed the Victorian Bar Roll in 1958. (e) In the late 1960s she returned to London School of Economics to complete an LLM. 3. We omitted to include some photos of Melbourne barristers taken by Kiddie in 1960. Jeff Sher (1960) Phil Opas (1960)

Kevin Foley (1960) S.E.K. Hulme (1960) Reggie Smithers (1960)

50 51 News and Views Music in Court

Peter Luff, horn player; Margaret Schindler, lyr

The evening established beyond question: (a) that the Federal Court, although a creature of statute, has all the versa-

N 7 August 2002 the Great For our money the outstanding per- Hall of the Commonwealth Law formance was Peter Luff’s arrange- OCourts provided an unusual venue ment of Moussorgsky’s “Pictures at an for a concert by the Southern Cross Exhibition”. Soloists. The Great Hall, surprisingly, proved Slightly more than 100 people heard an ideal venue. The acoustics were Margaret Schindler, Tania Frazer, Paul good, the ambience was friendly and the Dean, Leesa Dean, Peter Luff and Kevin music first class. The wine and nibbles Power perform works by Mozart, Haydn, which followed were also of excellent Moussorgsky and more modern items quality. Many of the guests were intrigued from Jerome Kearn, Flanders and Swan, by the Federal Court etchings on the Dominic Argento and Paul Stanhope. glasses. The program.

52 53 News and Views

Foreground: Margaret Schindler and Peter Luff. Second row: Leesa Dean, Paul Dean and Tina Frazer. Back: Kevin Power.

(c) that public places and spaces can, and should be, adapted to varying uses; (d) that sweet music and soft wine can ease the pressure at the end of a hard day. We congratulate Chief Justice Black on the initiative. ic soprano and Paul Dean, director and clarinettist.

tility of a common law court; (b) that good music and fine wine are proper accompaniments to the administration of justice;

Paul Dean on clarinet. Chief Justice Black

52 53 News and Views Prosecuting in the South Pacific

By Miranda Forsyth

LACK woollen robes and bar jack- — two police forces, two prisons, two common law generated by the Vanuatu ets are definitely not designed for law courts and so on. After independence courts. Bthe tropical climate, but the Chief the Ni-Vanuatu (as citizens of Vanuatu Vanuatu was traditionally governed by Justice of Vanuatu insists that they be are called) adopted a legal system based a complex system of chiefs. The chiefs worn in court. Luckily he tends to turn a largely on the British model, with a few were responsible for adjudicating disputes blind eye to the fact that, underneath the ambiguous references to customary law and determining punishment by apply- robes, lawyers are often either in thongs and the powers of chiefs in the statutes ing “kastom” laws. There are enormous or sandals. These formal and informal and constitution. The English common variations in the kastom laws applying on aspects of the legal dress requirement law, as it was prior to independence, still different islands, and even different com- symbolize many of the tensions that exist continues to be binding, along with any munities. However, the punishment nearly in the Vanuatu legal system. I have spent always involved payment of a fine in the a year in Vanuatu working in the Public form of a pig, woven mats, kava and food Prosecutor’s Office as part of AusAid’s such as taro and yams. Sometimes the fine Youth Ambassador scheme. During the During the year I have was paid to the victim’s family and some- year I have come face to face with the come face to face with times to the Chief. difficulties and incongruities of trying to There are unresolved tensions regard- apply a legal system based on a Western the difficulties and ing the role that chiefs continue to play in model to a society that is, in many incongruities of trying to the criminal justice system in Vanuatu. respects, pre-industrial and based on a apply a legal system based Legally, judges and magistrates are only Chiefly system of governance. required to take into account any “kas- Vanuatu, a Y-shaped series of 80 on a Western model to a tom” settlement when determining the islands, was jointly ruled by the French society that is, in many magnitude of sentence. However, in real- and the British until it achieved independ- respects, pre-industrial ity the power of the chiefs is much more ence in 1980. The arrangement for joint pervasive. I came across a number of cases government was called a “condominium” and based on a Chiefly where victims had gone to the Chief to ask and involved two sets of everything system of governance. him to resolve a dispute before going to the police. On some occasions the Chief had decided the case was too big for him and he handed it over to the police. On other occasions the Chief told the defendant that if he did not pay the fine then the case would be handed over to the police. Sometimes even after the fine was paid the victims went to the police, leading to the defendant and his/her family being dealt with by two systems and feeling

A courthouse at Malekula. The courthouse interior.

54 55 News and Views

an understandable sense of resentment termind . . . I take judicial notice of the Overall I found that the Vanuatu legal about that fact. evidence to imply that a covenant relation- system is in a state of flux and develop- There are enormous advantages of ship was entered into . . .” Unfortunately, ment. It is clear that the superimposition using the kastom system over the formal His Honour did not engage in any analysis of a Western legal system in such an enor- system. Kastom settlements involve the of what is required to prove a charge of mously different cultural context is prob- whole community. Once it has been pos- witchcraft. After convicting the defend- lematic. It is equally clear that kastom laws sible to “cleanim face”, everything is able ants His Honour discharged them without are not capable, in their present state, of to be forgotten and people move on with sentence, taking into account the fact meeting the needs of regulating the coun- their lives. This is especially important that they had already spent more than 12 try as a whole, in particular, urbanized Ni- where people live in very small commu- months in jail. The appeal against convic- Vanuatu. The challenge for the future is to nities and nearly everyone is related to tion and sentence will be heard by the find a way to fuse the two systems to meet everyone else. One of the major problems Court of Appeal in October. the unique needs of Vanuatu. with kastom is that it does not recognize This case demonstrates another very the rights of women in the same way as important regulating force in Vanuatu: the formal system. In the case of a rape, organized religion. It is omnipresent; for often what is being compensated is not example, on a small island of 300 inhabit- the violation of the woman but the trans- ants there may be up to seven different APPEAL BOOKS gression of various kastom laws regarding churches. Although Western religion is COURT BOOKS sexual intercourse between married and/ often merged with kastom stories in an APPLICATION BOOKS or related people. The women’s groups I apparently seamless manner, its influence Personalised confidential service have spoken with are unanimous in view- necessarily lessens the power and author- Professional attention to detail ing the formal legal system as offering ity of chiefs. People now have another Urgent instructions accepted them more support than the traditional source of authority — the pastor/priest systems. — and there may be many different ones Mobile: 0412 227 675 Perhaps the best example of the dif- in the same village, leading to fragmen- E-mail: [email protected] ficulties of using a Western legal system tation of the society and the traditional THE APPEAL BOOK COMPANY in the cultural context of Vanuatu is the hierarchy. “black magic” case. Section 151 of the Vanuatu Penal Code states: “No person shall practice witchcraft or sorcery with intent to cause harm or detriment to any other person.” When I first read that pro- The Chartered Institute of Arbitrators vision I was certain that no charges would Australian Branch ever be brought under it — how is it pos- (ABN 65 931 837 789) sible to prove that someone has practised witchcraft “beyond reasonable doubt”? ENTRY COURSE — MELBOURNE However, late last year a Supreme Thursday 7 November to Friday 8 November 2002 Court judge handed down the first judg- The Branch will conduct an Entry Course, leading to Associate Membership (ACIArb). ment to consider a charge of witchcraft. The two-day program, to be held at the Victorian Bar Mediation Centre, consists of a The prosecution case was that seven men written assignment, lectures and tutorials and concludes with a written examination. who were members of a black magic cult had raped and then killed their victim Course fee: $1500 (incl. GST) through the use of witchcraft practices. The prosecution stated in its closing FAST TRACK PROGRAM TO FELLOWSHIP ASSESSMENT submissions: “[t]his case is about magic. It is not white man’s magic but black WORKSHOPS FOR LAWYERS — MELBOURNE magic having its deep roots on Ambrym Saturday 9 November to Sunday 10 November 2002 and slowly spreading to other parts of The Branch will conduct Assessment Workshops for suitably qualified candidates who Vanuatu. It is a sacred cult and a satanic are lawyers with at least 10 years litigation experience and who otherwise have suf- practice.” ficient experience in arbitration. The two-day program consists of small discussion The trial judge accepted the pros- groups, in which candidates will be expected to demonstrate knowledge and skill in ecution case and found all the defendants arbitration. Those who pass the Assessment will qualify for Membership (MCIArb). guilty of rape and witchcraft, one guilty Qualified candidates who subsequently pass the Award Writing examination and have of intentional homicide and the other completed and passed the Institute’s Personal Assessment for Fellowship to the satis- defendants guilty of complicity to inten- faction of the Council may apply for Fellowship (FCIArb). tional homicide. His Honour stated: “[w]e are dealing here with spiritual powers of Course fee: $1500 (incl. GST) darkness. The mastermind behind these activities is Satan who the Bible refers to  as the father of lies.” He continued: “[i]n Further details from Executive Officer: this case we see the clear evidence of the Tel. (02) 9988 3563 Fax. (02) 9988 3571 ritual that becomes a covenant initiating E-mail: [email protected] a person into the covenant with the mas-

54 55 News and Views News and Views Morality is Lawyers’ First Responsibility

EGAL morality. Is that contradic- other responsibilities and aspects of their tion in terms? Not according to lives. There are many possible reasons for LJudge Jones of the County Court of this including ambition, pressure from Victoria in his speech to nearly 100 legal employers or clients, and a professional professionals on 28 May. Judge Jones pride that loses sight of what really is was addressing the second Melbourne important. While every lawyer should Catholic Lawyers’ Association (MCLA) always strive for professional excellence, breakfast for 2002. said the Judge, each needs to evaluate The morning had started early with constantly whether he or she has retained St Augustine’s Church on Bourke Street the correct balance. packed with hardy souls who had braved Judge Jones’ speech carried on the the morning cold and fog for 7.00 am high standard set by Paul Coghlan QC, Mass. With the day started on the right who addressed the fi rst MCLA breakfast note the congregation moved next door to for 2002 in February. the Royal Melbourne Hotel for a delicious The MCLA continues to enjoy enor- breakfast and to hear the Judge’s speech. mous support from a wide section of be The breakfast Mass attendees were legal profession, including the judiciary, drawn from a wide cross-section of the barristers, solicitors, students, and other legal community and varied age, employ- legal professionals. It aims to strengthen ment and interests. But on this morning the faith of those involved, to help offer they were united in their desire to hear a Catholic voice on social issues and to an eminent Judge speak on the infl uence create a network of like-minded profes- that morality, specifi cally Catholic moral- sionals. ity, should have on a life of a lawyer. Judge Jones’ basic argument was both For further information on the MCLA, challenging and inspiring. Central to it contact Chris Andrews at catoliclawye was the notion that we are all bound to do [email protected] what is right, even when it hurts. Judge Jones was able to speak with the benefi t of his years of legal experience in commenting on the obligations of a lawyer asked by a client to do something that is wrong. The lawyer, said the judge, is Verbatim bound by Catholic faith and by any decent notion of morality to do what is right. He Continued from page 47 did not deny that there might be a cost to your behalf which works out at $248 per pay for adopting this attitude. Standing visit to the pharmacy. by a principle might cost a lawyer a client Interpreter: 78 times . . . T H E E S S O I G N and he or she may be ridiculed by col- His Honour: 78 visits divided into leagues. Nevertheless, the Judge stated, $16,900 gives us what fi gure? CLUB the obligation to do what is right remains. Kirkham: $248 per visit, Your Honour. Open daily for lunch Judge Jones also tackled a more sub- Witness: (through an interpreter) Since tle tendency — not limited to the legal you’ve got those fi gures you should have See blackboards for daily specials profession — to lose perspective in the also what it was used for. I can’t remember Great Food • Quick Service • Take-away food and alcohol midst of busy life. Lawyers, he stated, are everything. Ask about our catering: quality food and often tempted to place so much emphasis His Honour: It sounds like Viagra or competitive prices guaranteed on a case before them that they neglect something like that.

56 57 News and Views News and Views

Robin Brett QC, Justice Allan McDonald and Justice Bill Crockett. Unveiling of Portrait of the Hon. William Crockett AO, QC N Thursday 27 June 2002, a func- Justice Crockett’s former reader, Justice ate) tales of their times together at the tion was held to unveil the por- Allan McDonald, to speak to the gather- Bar and on the Bench. Mr Justice Crockett Otrait of the Honourable William ing. Justice McDonald referred to the long and Justice McDonald then together Crockett. Mr Justice Crockett, his wife and distinguished career of His Honour. unveiled the portrait. Anne, their four children and spouses and He was admitted to practice in February Mrs August also did not escape with- their six grandchildren attended the func- 1948. He signed the Bar Roll in the same out a contribution to the occasion as she tion, which was held in the Forsyth Room month. He graduated as Bachelor of Laws was asked (without warning) to tell the in Owen Dixon Chambers East. in 1945 and shortly afterwards as a Master gathering of the circumstances of the Due to indifferent health in recent of Laws which followed the award of the portrait coming into existence. She told years, Mr Justice Crockett has been una- Supreme Court Judges’ Award. He took the gathering that her husband met with ble to venture out to social gatherings so silk in 1962 and was appointed to the Mr Justice Crockett in 1992 at the races the Bar was delighted that His Honour was Supreme Court in 1969. He was appointed and her husband suggested to Mr Justice able to attend the unveiling. Also among AO in 1983. He served the Supreme Court Crockett that his wife paint his portrait. the guests were the three former associ- with distinction until his retirement in His Honour agreed and hence the portrait ates of His Honour — Ms Kerri Judd, Ms 1996. In addition, Mr Justice Crockett was painted. Sophie Robinson and Ms Leora Miller was awarded honorary Doctorates of The portrait of Mr Justice Crockett — and the artist, Mrs Barbara August and Laws from both Melbourne University and has now been hung on the ground floor of her husband, Mr John August. Monash University. Owen Dixon Chambers West outside the The junior vice chairman of the Mr Justice Crockett did not escape the entrance to Clerk M and Clerk B. Victorian Bar, Mr Robin Brett QC, briefly evening without his former reader telling welcomed the gathering and asked Mr the audience some lively (and affection-

56 57 News and Views The Tom Fantl Art Exhibition

Ray Gibson,Julie Baker-Smith, Tim Ryan and Ian McDonald.

EXHIBITION THE OPENING touting and invite an instructing solicitor? N 13 June the Tom Fantl Exhibition In spite of the onslaught of the school Many people ask me what the “rules” opened at the Essoign Club featur- holidays, the Opening was well attended are about exhibiting at the Club. Well, Oing his recent works. by a crowd of about 80. We saw members none really, suffi ce to say that prospective Tom was born in Prague and raised of the Bar, the Bench and invited guests “exhibitionist” should at least have had a in Australia. A major feature of his work mainly from the Melbourne arts scene, couple of public exhibitions in the past. All is his connection to these two cultures. having a great time as well as enjoying works are for sale, with 13 per cent of pro- His rediscovery of Prague as a place of Jane’s delicious “fi nger food” and, and of ceeds going to the Club. If an agent for the origin has posed many signifi cant ques- course, wine from the Club’s extensive artist is involved in the arrangement, The tions for this artist, resulting in focused wine cellar. Club’s “cut” comes off the agent’s commis- exploration of Czech literature and cul- All art exhibition openings at the Club sion, not the artist’s. ture. are joyful opportunities to exchange views I hope to see all my colleagues with Fantl about his work: ”My work is on other than our latest win/loss in court guests at the next opening. about my experiences and roots. Life is and to interact with, shall I say, “normal” made of endless fragments, some fl eeting, people. some dominant. Sometimes these frag- A tip for the art minded barrister with ments enter our lives totally unattached taste: Tom’s works features some motifs and inexplicable. Often they meld and from the Old Bailey in London, fi t for any weld into links, which make up the main- barrister’s chambers. frame of the stuff of our life’s sojourn. The fragments model us — our myths, our HOW DOES IT WORK? roots, our fantasies and our explorations I also take this opportunity to emphasise . . . When my works leave the studio and that whether a member of the Club or not, are put on view, it is an invitation to you to all barristers are welcome to attend and take your own journey through my frag- an invitation is sent to all members of the Ian and Elizabeth Munro with ments. You may enjoy or reject them. That Bench, the Bar and their guests. If in the the artist, Tom Fantl, after having is your journey.” second category, why not do a little bit of purchased one of his works.

58 59 News and Views Lawyer’s Bookshelf

University Law School and had completed It is doubtful, though, whether Knox The Forgotten Memoirs an LLM at the Harvard Law School before anticipated that the work would be of John Knox — A Year he started what he later came to regard published together with the editors’ as his life-defining year with McReynolds. contributions which, one suspects, tells in the Life of a Supreme He spent his time reviewing petitions us more about the author than he ever for certiorari, attending to the judge’s intended his memoir to disclose. Court Clerk in FDR’s social requirements (including mastering Despite his promising start, Knox’s Washington the now lost art of the calling card) and legal career was undistinguished, to say trying to ensure that he did not incur his the least. Tragically, Knox came to regard Edited by Dennis J. Hutchinson and employer’s wrath. the end of his clerkship with McReynolds David J. Garrow Knox emerges from this memoir, as the beginning of the downfall of his The University of Chicago Press 2002 which he wrote mainly in the 1960s, as life. When McReynolds learned that a curiously insecure man who foisted Knox had been, as he saw it, working AMES C. McReynolds was a Justice himself on leading judges, including, in on government time studying for the Jof the US Supreme Court from particular, Justices Van Devanter, Holmes, Bar when McReynolds was away and 1914 to 1941. Along with Justices Cardozo and Brandeis, in the belief that there was nothing else for Knox to do, Van Devanter, Butler and Sutherland his association with them would advance the judge insisted that he stop and not he made up the notorious old “Four his career in some way or another. Quite sit the examination. Knox refused, so Horsemen of the Apocalypse” who, with what the judges derived from their McReynolds fired him, 13 days short of his the support of Justice Roberts, acted to meetings with Knox, the pedestrian full term. He sat the Bar and failed it. He frustrate President Roosevelt’s New Deal details of which he describes in minute sat the exam two more times, and failed on legislation. Once President Roosevelt detail in the memoir, or indeed what Knox each attempt. On his fourth try he passed, announced his infamous “Court-Packing” derived from them (other than the delight but it was too late. The law firm Cravath proposal, (under which one new judge of meeting his judicial heroes) is not at all had already fired him for failing the Bar would be appointed for every serving clear. the second time and he ended up working judge aged over seventy), Justice Roberts Until 1935 all the judges of the United most of his life as an insurance adjuster. switched sides, leaving McReynolds and States Supreme Court worked from home. The editors explain that Knox’s life ended his obstructionist colleagues in a minority The Court sat in the old Senate chamber. very sadly. He was penniless for much of and the institutions of the Presidency and By the time Knox commenced his year his professional life, unmarried and, as he the Court seriously damaged. with McReynolds, the new court building wrote in a separate diary, was constantly McReynolds was “a doyen of [Washing- had been completed. The judges were visited by the “dragon of loneliness”. As he ton] society”. He was also rude, a racist reluctant to break with tradition, however, grew old vultures of one sort or another and an anti-Semite. He had “unspeakable and only Chief Justice Hughes and Justice descended upon and removed most of his manners” and was “sarcastic, peremptory Roberts moved to the new building. Knox prize collection of judicial mementos. He and antagonistic”. By the end of his time therefore worked with McReynolds in his died in 1997 aged ninety. with the judge, Knox concluded (with just apartment. McReynolds required that he Provided one accords Knox a degree of cause) that he was “stingy” and “the most rent an apartment in the same building. patience — something which he deserves contemptible and mediocre old man I ever Knox spent much of his year living in — the book, in the end, provides a came in contact with. His selfishness and something approaching terror of his poignant and interesting vignette of days vindictiveness [were] unbelievable.” Knox cantankerous, moody and petty boss. Knox that are, thankfully, long gone. was not alone in his views. McReynolds’ chronicles these events in considerable standing among his peers was such that and, at times, touching detail. He does David J. O’Callaghan when he died, in 1946 aged 85, no former not write particularly well but manages or current justice of the Court attended nevertheless to convey a powerful picture his funeral. On the other hand, when of his years’ work with the judge, and the Banking Law in Harry Parker, his long-serving and devoted judge’s devoted messenger (Harry Parker) assistant (or “darky” as McReynolds’ and housekeeper (Mrs Mary Diggs). Australia (4th edn) publicly referred to him) died, six justices Knox learned quickly that McReynolds By A.l. Tyree attended to mourn his death. was no Holmes, Brandeis or Cardozo. He Lexisnexis Butterworths 2002 By the mid-1930s, mainly at Professor was shocked that McReynolds dashed off pp i–xliii, 1–555; Bibliography with Frankfurter’s urging, Supreme Court his judicial opinions in the matter of an Glossary 557–564; Index 565–572. judges had begun to hire promising hour or two (by dictating them to Knox) young Harvard Law School graduates to and that large parts of the opinions were ANKING Law in Australia, first assist them and the role of judge’s clerk pieced together from quotes from other Bpublished in 1990, is now in its fourth soon evolved into what it is today. John cases. In many cases, especially when edition. The book has established itself Knox worked for a year as McReynolds’ McReynolds no longer commanded a as a standard text in this area of law in private secretary/law clerk in the October majority, he dissented without giving Australia. It is a clear and concise guide to 1936 term of the Court. He was not one reasons. the principles of banking law in Australia. of Frankfurter’s protégés. He got the Knox knew that his memoir revealed The text covers the fundamental areas job by writing to Van Devanter, a man much about himself because an old class- of banking law. The “banker and customer whom he had met once and with whom mate told him so, writing: “I suppose relationship” (Parts II and IV) includes he commenced a “pen-pal” relationship. you realize that your account leaves specific treatment of special customers Knox was a graduate of Northwestern you as naked as it does McReynolds.” such as unincorporated associations,

58 59 executors/administrators and minors chapter also details VCAT’s jurisdiction entitlements and obligations if they have amongst others, together with further and powers. suffered injury in their employment. separate discussion of the duties of the The remainder of the text is devoted to For anyone interested in or working in bank and customer to each other and to the VCAT Act, the transitional provisions this particular jurisdiction, this edition is a third persons. and the VCAT Rules, with annotations. fine example of just how useful a thorough Traditional bank facilities and services The annotations provided by the learned and comprehensive Annotated Act can such as the provision and operation of a author reflect the fact that the Tribunal be. The authors are to be commended for current account (Part III), cheques and has only been in existence since 1 the concise but informative and coherent negotiable instruments (Part V and VIII) July 1998, and there are only very few observations as to the judicial trends and bank lending and securities (Part decisions at the time of the publication. emerging with respect to this piece of IX) are given extensive treatment. The Therefore, many similar earlier decisions legislation. discussion of securities includes issues of the AAT and the courts in relation to such as securities over real property, the AAT are relied on. Ian Fehring chattels, choses in action, the banker’s As with Miller’s text on the Trade lien and guarantees. Part VI, on payments, Practices Act, I look forward to many includes discussion of “e-commerce” type further editions of the work as the case Civil Procedure: banking services. law expands. Commentary and Part VII deals with consumer protection and includes discussion of W.G. Stark Materials (2nd edn) the Code of Banking Practice, the role By S. Colbran, G. Reinhardt, and function of the Banking Industry P. Spender, S. Jackson and Ombudsman, the electronic fund transfer Annotated Safety R. Douglas system and credit cards. Other aspects of Butterworths, 2002 banking law such as documentary credits, Rehabilitation and Pp i–xcx; 1–1042; Index 1043–1072 Financial Transactions Reports Act 1988 obligations, and discussion of the Compensation Act HRISTOPHER Columbus Langdell Financial System Inquiry Final Report 1998 (5th edn) Cis reputed to have assembled the (better known as the Wallis Report) can first casebook in around 1880 during his be found in this text. HE fifth edition of the Annotated historic pedagogical overhaul as Dean The fourth edition of Banking Law TSafety Rehabilitation and Compen- of Harvard Law School. He introduced a in Australia continues the excellent sation Act 1998 has now been released contracts casebook in conjunction with reputation of this work as a leading text current to 1 July 2002. For practitioners in his visionary and controversial casebook on banking law in Australia. Banking Law the field of Commonwealth compensation, teaching method and the Socratic in Australia is sure to be of use to legal this updated edition, which maintains the teaching method. Australian law students practitioners, bankers, business people format of earlier editions, will be much will probably find a casebook amongst the and students who need to have access to appreciated. The authors have continued prescribed texts in the majority of courses an up to date and authoritative guide to to maintain their high standard and clarity. taught in law schools today. The casebook banking law in the Australian context. All the major legislative changes that have not only serves the students with a occurred since the last edition are dealt portable library but serves as teaching P.W. Lithgow with, and the substantial case law which tool in some courses. has emerged over recent years is referred As a portable library, the modern to and commented on. The extent of casebook must compete with the Pizer’s Annotated VCAT this extra material is highlighted by the obvious advantages of extensive and up length of the book, which is over 100 to date web-based resources and the Act pages longer than its predecessor. The inherent dynamism of law. Critics have By Jason Pizer important decision of Lees v ComCare, always warned against the dangers of with respect to the AAT’s jurisdiction, course casebooks removing the need for N Victoria, Williams is undoubtedly is discussed. A number of the recent students to research library resources for Ithe leading text with annotations to the authorities as to the interpretation to be themselves. Supreme Court and County Court rules. given to s.24 of the Act with respect to As a teaching and learning resource, This text is the first attempt to permanent impairment are also dealt with it has been criticised for implanting provide commentary for the VCAT Act by the authors. contexts and concepts that might dwarf and Rules. Whilst the VCAT is relatively Compensation for seamen is effectively those vocational skills which extensive young, the breadth of commentary cannot dealt with in this book as the Seafarer’s research and use of primary sources be as extensive as the commentary in Rehabilitation and Compensation develops and strengthens. The better Williams. Act 1992 largely follows the ComCare student will be the student who acquires The short introductory chapter titled legislation. Compensation for members the skill of identifying and ordering an “Overview of the VCAT Act” is a very of the Defence Force are, subject to issue by relevance and importance; useful summary. Included is information the amendments made by the Military who synthesises materials from diverse about the historical background to VCAT, Compensation Act 1994, also covered resources; who recognizes the merits of extracts from the parliamentary debates, by this legislation. An understanding of an argument; or who can make a reasoned contact details for each list and a full this book will provide any lawyer with choice between competing solutions list of the members of the Tribunal. This the capacity to advise clients as to their or arguments. Some might argue that

60 61 reliance on a casebook leaves such skills lining of the important cases which clearly with the difficult problem of receivership underdeveloped. sets out the salient facts and what was and the effect it has on a company. The Having said all this, the authors of the held by the Court. This enables the reader powers of the liabilities and duties of a casebook under review must be given to go to the principal authority on point. receiver are of considerable importance credit for their organizational structure The introduction section provides a to the secured and unsecured creditors, and commentary. There are clear signs useful discussion as to the development as is the effect of the appointment of a of scholarly voices echoing through the of insolvency law and the meaning of receiver upon the company of its officers. casebook. In addition, thought-provoking “insolvency”. Changes to the bankruptcy In Chapter 20 the relationship between commentary that deserves recognition legislation are distinctly highlighted in receivers and liquidators is analysed, provides insights and reflection for the bullet points, the subject matter of which as well as the powers remaining in the student. is discussed further on in the book. receiver, who is then precluded from However, the utility of a casebook An example can be given of the way carrying on the company’s business. for members of the Bar is quite limited. the authors deal with the subject matter This is a very comprehensive book A barrister requires access to updated in their discussion of the various ways and is very useful to practitioners. It materials, and the search for the esoteric a bankruptcy notice may be resisted clearly shows the path through which one points will often require a close reading (Chapter 3). They highlight and discuss must travel when advising or enforcing of unedited case and statute law. It is an application to set aside the judgment, the rights of a creditor or debtor, in difficult to recommend any casebook as an application to set aside the bankruptcy circumstances when the debtor is faced an invaluable addition to a barrister’s notice, the validity of the bankruptcy with bankruptcy of insolvency. bookshelf. Casebooks are bulky items that notice, the effect of an overstatement of usually outdate fairly rapidly. However, the amount claimed, and the effect of a John V. Kaufman this casebook refers to all Australian counterclaim or set off cross demand. jurisdictions and provides practitioners The authors similarly deal with resisting Corporations Law in involved in civil litigation with a national a petition for bankruptcy highlighting and guide to Rules of Court. This makes it expanding technical flaws, insolvency as a Australia (2nd edn) a useful book and furthermore it could defence and the power or willingness of a By Roman Tomasic, Stephen also be a starting point to supplement court to go behind the judgment. Bottomley and Rob McQueen a textbook, a loose-leaf subscription, a In separate chapters the authors Federation Press, 2002 CD Rom database or any of the myriad discuss the impact of the bankruptcy pp. i–lxii, 1–875, Index 877–893 of web-based information systems and on a person’s property, which includes search engines. the doctrine of relation back, the HE preface to this substantial volume administration of the estate, which also Tindicates that its purpose is to “present Joycey Tooher includes investigations, the power of the a text that introduces undergraduate law trustee to obtain a search warrant, the students to Australian corporate law in right of access to premises, and access a way that is informed by theory and Insolvency: Personal to books of account of associated entity policy”. and Corporate Law and and offshore information notices under Having been provided with this text section 81A of the Act. by the publishers some time ago for the Practice (4th edn) In Chapter 8 they discuss Part 10 purpose of this review, I can say that arrangements which enable the discharge not only would it appear to be useful for By Andrew Keay and Michael Murray of debts without bankruptcy. The book undergraduate students but it is also very The Law Book Company contains a useful table comparing deeds useful for practitioners. In particular the EGRETTABLY, bankruptcy and insolv- of assignment, deeds of arrangement and section on members’ rights and remedies Rency have become increasingly compositions. came in handy in a recent oppression case important part of Australia’s corporate As may be expected the authors providing guidance on several relevant life. This book, with admirable precision, (Chapter 11) discuss the procedure and topics. It took me weeks to obtain a return leads the reader through the labyrinth of differences in relation to a voluntary or of the text from my leader in that case personal bankruptcy and insolvency law compulsory winding up. Again, in bullet who found the book extremely useful in as it exists in Australia today. The law is point form, the broad grounds for winding several other of his corporations matters. always changing to meet commercial and up are listed, together with the relevant The text is extremely readable with society’s needs. sections for ease of reference. They an extensive table of contents and a The book is divided into three parts: deal with the difficulties of the statutory useful index. Case law references are up the first is an introduction; the second is demand and the essential requirements to date and accurate. If one’s practice concerned with personal insolvency and is that have to be complied with in resisting does not extend to spending thousands further divided into bankruptcy and non such a demand, particularly in relation to of dollars on extensive looseleaf works bankruptcy arrangements; and a third part disputed indebtedness. As the authors or on-line publications, this text can be which is again divided into liquidation and remind us, a court is not expected to finally recommended as an up to date reference non liquidation arrangements. The book determine the rights and obligations of the to the Corporations Act. The text has includes a very generous table of cases parties. Once a matter comes to applying a full coverage of “extrinsic material” and a comprehensive table of legislation. for a winding up order, the authors set which seems to be available in abundance The index is well presented. In the body out the procedure and discuss the law in in relation to the Corporations Act and of the text the authors employ the useful relation to disputing the debt. its predecessors. Practice notes and tool of bullet points as well as marginal Further on in the book, the authors deal policy statements are included as well

60 61 as references to journal articles and of eroded . . . cases now seem better treated matters is highlighted by one of the recent course the ever-increasing case law in the as materials which provide guidance extracts added to this edition in Ruddock corporations area. This is a useful general as to how Courts are likely to behave v Vadarlis [2001] FCA 1329 (the Tampa text and has a handy encyclopaedic than authorative sources. Recent cases case). coverage of this wide area of the law. I therefore are likely to be more helpful in It is perhaps unfortunate that the recommend it for practitioners as a quick cases of pensionable age.” Reflecting the debate about the limits of judicial and ready reference to link subject matter tenor of these remarks, Australian cases versus administrative power does not to legislation and case law. (and materials) predominate in the text, receive wider treatment. This issue was many of recent origin and the highest considered in Brandy v HREOC (1995) S.R. Horgan authority. 183 CLR 245 and more recently in the Generally, time-honoured themes of context of the public debate regarding the administrative law — the rule against bias role of the courts in immigration matters. Douglas & Jones’ and the hearing requirement — are amply Clearly administrative law is a Administrative Law illustrated in all their manifestations by significant and important aspect of the extracted materials. Aspects such as modern Australian society. No doubt there (4th edn) Wednesbury unreasonableness (now a will continue to be a conflict between statutory ground of review by virtue of s. governments’ (the executive) desire to act By Roger Douglas 5(2)(g) and 6(2)(g) of the Administrative and make decisions, establish rules and Published by the Federation Press Decisions (Judicial Review) Act) and implement policy while the judicial arm 2002 the common law right to procedural of government is relied upon to recognise, Pp i–lii, 1–804, Table of Sources fairness, which has found a full exposition protect and enliven rights under the rule 805–822, Index 823–828 and enlivenment by the High Court in of law. The overlap and interplay between OUGLAS & Jones’ Administrative Kioa v Minister for Immigration and the judicial and administrative arms of DLaw is now in its fourth edition. The Ethnic Affairs (1985) 159 CLR 550, are government will continue to be a fruitful work is essentially a selection of materials thoroughly demonstrated in the modern source for development of administrative relevant to the study and understanding Australian context. law both by legislation and judicial of administrative law with a strongly Extracts from recent cases of decision. Australian perspective. significance incorporated into the fourth Douglas & Jones’ Administrative As the authors make clear in their edition include Project Blue Sky Inc. v Law provides a significant entree for the preface (which is both interesting and ABA (1998) 194 CLR 355; (mandatory v student into this complex and growing idiosyncratic), administrative law is a directory statutory requirements); Enfeld body of law. In addition, the work provides burgeoning field with ongoing legislative City Corp v Development Assessment ready access for practitioners to cases and judicial developments. This evolution Commission (2000) 199 CLR 135 and materials that exemplify the current has in some areas made irrelevant the (grounds for review, remedies); Refugee application of the central themes of admin- “old” administrative law. Administrative Review Tribunal: Ex Carte Gala (2000) istrative law. This fourth edition is sure to law has become a body of rules in flux, 204 CLR 82 (prohibition/discretion); and be a useful acquisition for practitioners in which themes can be identified but Minister for Immigration and Ethnic involved in administrative law, particularly their content or context not necessarily Affairs v Guo (1997) 191 CLR 559 Federal administrative law. stated with any certainty. Indeed, the (remedies/declaratory orders). extracted materials “reflect the degree to Indeed the current administrative P.W. Lithgow which the doctrine of precedent has been law “preoccupation” with immigration

Conference Update

27–31 October 2002: Sydney. 75th 20–25 October 2002: Durban, South Conference, Criminal Lawyers Association Anniversary Congress of the Union Africa. International Bar Association of Northern Territory. Tel: 08 8981 1875. Internationale des Avocats. Contact Conference. Contact Bar’s Administration Fax: 08 8941 1639. www.uianet.org. Office or IBA website, www.ibanet.org. 17–18 January 2003: Kuala 27 February–1 March 2003: Coffs 13–17 April 2003: Melbourne. 13th Lumpur. Commonwealth Medico- Harbour. Superannuation 2003. Contact Commonwealth Law Conference. contact: Legal Conference. Contact Tel: +03 Dianne Rooney. Tel. 0602 311. Fax. 9670 www.mcigroup.com/commonwealthlaw 4041 1375. Fax: +03 4043 4444. 3242. email: [email protected] 2003.htm. E-mail: [email protected] u.au. 29 June–5 July 2003: Bali. 9th Biennial

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