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VICTORIAN BAR NEWS ISSUE 155 WINTER 2014 Dying with Dignity VICTORIAN The Law on Assisted Suicide Our Favourite Knight BAR Ninian Stephen at the Victorian Bar NEWS Dreyfus v Brandis on the Racial Discrimination Act

Making a Splash Mindfulness Vic Bar Dives into Spring Swim Can Barristers Think Better?

155 The 2014 Victorian Bar Dinner All the Highlights and Photos Imported from London

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Wig cleaning and maintenance services PickWig up cleaningand drop andoff availablemaintenance. CLICK services HERE Pick up and drop off available. CLICK HERE ISSUE 155 WINTER 2014 VICTORIAN 44 Winners and Losers in Editorial Australian Asylum Seeker Justice GEORGINA COSTELLO Tradition and BAR Progress at the Bar 3 46 An Affair to Remember: THE EDITORS A Note on the Orr Case NEWS THE HON PETER HEEREY AM QC Letters to the Editors 5 W hat Once was Old is New Again 7 48 You take the Low Road, and I’ll Take High Road… DAVID H DENTON RFD QC Around Town 52 Direct Access – Future for Cover Story: Vic Bar 9 Barristers? MARK FROST Dives into Spring Swim 54 Looking back at a High Court SARAH LEIGHFIELD Case on Religious School Second Undefeated 10 Funding: Freedom of or from Season for Bar Hockey Religion? NICHOLAS GREEN QC ROB O’NEILL 17 58 White Ribbon Day: Not Violent On Another Note: 11 – Not Silent MURRAY MCINNIS The Vic Bar Community Choir 60 My Portrait and the Archibald RICHARD LAWSON FRANK WALSH AM QC 2014 Victorian Bar Dinner 12 63 Red Crest JUSTIN TOMLINSON THE HON JUSTICE VICKERY Lessons I Have Learned 17 64 Mindfulness: a Better Way THE HON JUSTICE HAYNE AC of Being and a Way of Being Arbitration in Transition in the 21 Better JOEL ORENSTEIN 120th Meridian: The Pacific Hour HELEN TIPLADY 67 Ethics Committee Bulletin Launch of the Melbourne 22 Commercial Arbitration and Back of the Lift Mediation Centre 26 Entries for Back of the Lift are current VICTORIAN BAR NEWS up to 20 May 2014. 68 Adjourned Sine Die News & Views 52 71 Silence All Stand From the Chairman’s Table 24 75 Obituaries WILLIAM ALSTERGREN QC 85 Gonged The Attorney-General 26 86 Victorian Bar Readers Course – on Being Free to Disagree September 2013 & March 2014 SENATOR THE HON GEORGE BRANDIS QC 88 Quarterly Counsel Repeal of Laws by Stealth, 28 says Shadow Attorney-General THE HON MARK DREYFUS QC MP Boilerplate Ninian Stephen 30 90 A Bit About Words – “Chaps” at the Victorian Bar JULIAN BURNSIDE PHILIP AYRES 92 Red Bag Blue Bag – Visiting A Moment in Mongolia: 35 88 Solicitors’ Offices Breaking the Ice 94 Book Review GEORGE H GOLVAN QC ASHLEY HALPHEN 95 Dying with Dignity 38 Exclusive: New ACCC Formed MEDIA RELEASE THE HON STEPHEN CHARLES QC 96 Advancing Advocacy 43 Verbatim CHRISTINE MELIS 96 1968 and all that THE HON PETER HEEREY AM QC WELCOWELCOMMEE TO TO YOUR YOUR MEMEMBMBERER BENEF BENEFITSITS PROGR PROGRAMAM InIn the the last last 12 12 months months Member Member Benefits Benefits Australia Australia hashas saved saved onon motor motor membersmembers $1MILLION$1MILLIONvehiclesvehicles alone alone

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VBN 3 ISSUE 155 WINTER 2014 VICTORIAN Georgina Costello and Justin BAR Tomlinson NEWS WELCOME TO YOUR Editors: Georgina Costello and Justin Tomlinson Victorian Bar News Editorial Committee: MEMBER BENEFITS PROGRAM photo by peter bongiorno Georgina Costello, Justin Tomlinson (Editors), Anthony Strahan, Rob Heath (Deputy Editors), In the last 12 months Member Benefits Australia Maree Norton, Catherine Pierce, Justin Hannebery, Denise Bennett and Sally Bodman. has saved on motor Contributors: William Alstergren QC, Philip Ayres, Denise Bennett, Sally Bodman, Her Honour Judge Katherine Bourke, Christopher Boyce, members vehicles alone Senator, the Hon George Brandis QC, Julian $1MILLION Burnside, the Hon Stephen Charles QC, Georgina Costello, the Hon Justice Michael Croucher, Tom Danos, David Denton RFD QC, the Hon Mark Dreyfus QC MP, Paul Elliott QC, Peter T Fox, CAR ASSIST Mark Frost, Sturt Glacken QC, George Golvan Tradition and Progress at the Bar MEMBERS BENEFITS AUSTRALIA 3 year free servicing and Commercial pricing across QC, Nicholas Green QC, Ashley Halphen, Sarah Save thousands on 4 years free service & 10% off the best Hardy, Peter Heerey AM QC, the Hon Joseph Kay, a range of JB products any new vehicle Save up to $10,000 preferential pricing preferential pricing rate of the day Dr Bryan Keon-Cohen AM QC, Richard Lawson, Sarah Leighfield, Melissa Mahady, John Marquis, The Editors Timothy McEvoy, Murray McInnis, Fiona McLeod SC, Kaye McNaught, Christine Melis, Lisa Nichols, Norman O’Bryan AM SC, Stephen O’Meara QC, s barristers we are members of a 3 year free servicing Complimentary scheduled Corporate program Save 4 cents per litre off the Save up to 40% Save up to $6,000 a year Rob O’Neill, Joel Orenstein, Ian Percy, Jeremy profession. This distinguishes our and fleet pricing servicing for four years including roadside assist pump price on Shell Fuels Ruskin QC, Meredith Schilling, Rozeta Stoikovska, endeavours from those of business people. His Honour Judge Bill Stuart, Helen Symon QC, Helen Tiplady, Justin Tomlinson, James Unkles, Of course, we are business people, but the These great offers and more are available to you now, so contact Member Benefits Australia the Hon Justice Peter Vickery, Frank Walsh AM ‘profession’ tag underpins something else. QC, Michael Wheelahan QC, Chris Wren QC to start saving with our growing list of supply partners. How much could you be saving? We have all joined this profession with its Photo contributors: Peter Bongiorno, Peter Glenane, Justin Hill, David Johns, Matthew extra demands, responsibilities and privileges. Why? It would be foolish Townsend, Paul West, Francis Tiernan QC to attempt a universally satisfactory answer, but let us tempt folly. Cover Photo: Matthew Townsend It is true that the work conditions are good, or at least as good as any Publisher: The Victorian Bar Inc. self-employed worker can expect from a tyrannical, obsessive and overly Owen Dixon Chambers, 205 William SAVE THOUSANDS Street, Melbourne 3000. Registration criticalA employer. We can choose the hours we work and, to some degree, No. A 0034304 S. the type of work we do. Our colleagues are mostly polite, trustworthy and on any new car by following these six simple steps This publication of Victorian Bar News may be generous enough to share the cost of a photocopier. The remuneration cited as (2014) 155 Vic B.N. Opinions expressed can be good, although it is often not for the money that we take a brief. are not necessarily those of the Bar Council or the Bar or of any person other than the author. It is likely that a major reason we were drawn to this profession is this 1 researCH 2 test-drive 3 NatioNal teNder Advertising one thing: independence. In fact, our profession requires us to remain Decide on a vehicle to purchase by using the Pop down to your local dealer and take your Relax and let us take care of the rest. All enquiries including request for advertising independent. This is what it means to be more than a business, but a internet, reading motoring magazines, talking FKRVHQFDUIRUDWHVWGULYHRUFRQWDFWXVWR¿QG Using our unique national tendering process, rates to be sent to: profession. When Owen Dixon said, “The Bar is no ordinary profession to people and, most of all, feel free to give us out how we can arrange a test-drive for you at we will invite multiple dealers to compete for Ms Sally Bodman a call for some independent advice. (We don’t \RXUKRPHRURI¿FH your business. Our buying power and trade 1 The Victorian Bar Inc. or occupation” he had in mind more than the fact that eccentrics are sell cars - we buy thousands of cars each year contacts will ensure that the new car price and attracted to its ranks. The Bar is not extraordinary because barristers at prices individual buyers can’t access). trade-in value will save you thousands. 205 William Street, Melbourne 3000 Tel: (03) 9225 7909 are smarter or more honest than others in our community (but don’t Email: [email protected] tell solicitors this). Barristers are unusual because “by virtue of a long 4 order 5 delivery 6 Corporate BeNefits Design and Production: The Slattery Media tradition” they collaborate with judges and “fellow-members of the Bar, Group; www.slatterymedia.com Takes around 10 minutes by phone. You will be kept up to date as to estimated program in the high task of endeavouring to make successful the service of the MBA Car Assist will order the vehicle delivery times and at your convenience, your Contributions: All contributions to Victorian Bar many of our car suppliers offer special law to the community.”2 on your behalf from the winning dealer new vehicle will be delivered to your home or &RUSRUDWH%HQH¿WVZKLFKFDQLQFOXGH News should be in word format and are to be on the tender. work with a full tank of fuel. free serviCiNg for up to 5 years, emailed to [email protected]. All articles It is very human to want things to stay the same, to deny or lament FRXUWHV\FDUVDQGPXFKPRUH submitted for consideration for publication in mutability in ourselves and our institutions, to treasure tradition Victorian Bar Review should be word format and conform to the style guide prescribed by the sometimes at the cost of inviting progress and so it is no wonder Australian Guide for Legal Citation (http://www. we occasionally baulk at change in the institution of our Bar. It is a law.unimelb.edu.au/files/dmfile/FinalOnlinePDF- conservative institution, but it is peopled by professionals hard-wired 2012Reprint.pdf) and the VBN style guide, which is available on request. to question and challenge. As Winston Churchill said, “To improve is to change; to be perfect is to change often.” The Bar has no shortage of perfectionists, and as the content of this issue of Victorian Bar News illustrates, the Bar is both changing and improving as an institution. For access to these great savings you must speak to MBA Car Assist before signing any purchase Tradition, when fuelling bare nostalgia, may be counter-productive. contracts. Call Member Benefits Australia on 1300 119 493. VBN 3 However, the Bar has many traditions that do more Ninian Stephen’s career at our Bar. This issue also than fog the memory; they are foundations on which looks to the future, at areas in which to progress law our profession progresses. The tradition of lauding reform, at Victoria’s new arbitration centre, at new ways editorial independence and freedom of intellectual application is of practising our old profession and at examples of law the driving force of progress in our profession. reform and legal challenges at home and abroad. The tradition of naming leading senior barristers We hope the content of these pages will inspire you to “Queen’s Counsel” has returned. The arguments for and honour our traditions by celebrating the acts of courage, against the change were printed in Bar News edition leadership, sacrifice, community service, intellectual rigour 153. It is true that the way in which the change occurred and achievement that are contained in this issue. These acts has not been immune from criticism.3 That criticism and our traditions ensure that barristers provide vital and expressed concern that the voice of opposition was not important services to the law and our community. adequately sought or heard. Such concern may prompt Bar News is an important institution in itself, with discussion about Bar Council governance, such as a tradition of providing a platform for discussion of whether up-coming resolutions should be advertised our profession, the greater institution of the Bar and in “In-Brief” to enable dissent to be aired. However, as important public and law reform issues. The Bar News demonstrated by the list published in this issue, the editorial team continues to reflect back to you our vast majority of “Senior Counsel” have now chosen to collective challenges and achievements and aims to change back (or forward, depending how you see it) to provoke discussion. We trust you will enjoy this issue. the Queen’s Counsel title.4 Part of the rationale for this THE EDITORS reversion was that “QC” is a more effective honorific to promote and raise the profiles of our senior barristers in 1 Re Davis (1947) 75 CLR 409, per Dixon J, as he then was. Asia, where it is said that title is better known and carries 2 Ziems v The Prothonotary of the Supreme Court of New South greater prestige among clients and lawyers than the Wales (1957) 97 CLR 279 at 298 per Kitto J title “SC”. Whether this rationale is well founded is now 3 See ‘Queen’s Counsel Restored on the Basis of Limited Poll, somewhat of a moot point, but in making the choice of QC The Australian, 11 April 2014 available to senior barristers, the Bar, like Janus, looked 4 Approximately 86%: 155 of the 180 SCs at the Bar immediately to the past and future at the same time, drawing on the prior to the change, elected to apply for a change to QC on re- introduction of the Queen’s Counsel title earlier this year. power of our past to step into the global future. This issue of Bar News covers historical stories of our people, for example, in the obituaries of barristers The Victorian Bar News Team (L-R): Georgina Costello (Editor), Anthony Strahan (Deputy Editor), Maree Norton, Justin Hannebery, and farewells to retiring judges in the Back of the Lift Sally Bodman, Catherine Pierce, Justin Tomlinson (Editor), Section, as well as in Philip Ayres’ terrific study of Sir Denise Bennett. Absent: Robert Heath (Deputy Editor).

4 VBN VBN 5 TO Letters THE Editors

concern for matters that impacted on the Australian community and identity. Sir Isaac Isaacs— Isaacs believed that Witton was innocent of the crimes of which he was convicted the ‘Breaker’ Morant and he enlisted the views of 80,000 Australians who signed the petition that was sent to the Crown. Connection Isaacs’ pro bono representation of note the article written by the far from home has not been recognised Witton demonstrated his craftsmanship Honourable Michael Kirby AM and I would like briefly to highlight Isaacs’ and determination to see that justice was ICMG, Isaac Isaacs, Driven, Difficult, contribution to one of Australia’s most done. He believed that Witton should Influential published in the same edition controversial aspects of military history/ not have been convicted and sentenced that also featured an article on the trial law that persists today. because of Witton’s belief that he had and sentencing of three Australians, The link between Isaacs and his followed lawful orders and had acted out Lieutenants Harry, ‘Breaker’ Morant, representation of Witton was not of loyalty and a mistaken sense of duty. Peter Handcock and George Witton examined in biographies by authors Sir His opinion also raised doubts on many during the Boer War in 1902. Zelman Cowen, Sir Isaac Isaacs, 1979 aspects of the arrest, trial and sentencing Readers may be interested to know and Max Gordon, Isaac Isaacs, A Life Of of Morant and Handcock. that Isaacs KC MP played a vital Service, 1963 and this aspect of Isaacs’ Through recording Isaacs’ role in the Breaker Morant case in advocacy has until now remained representation of Witton, it is hoped representing George Witton following unrecognised. that this aspect of Australia’s military his imprisonment. Morant, Handcock Isaacs prepared two documents, a legal and legal history will be recognised as and Witton were tried and sentenced opinion and a petition to the Crown. The another example of Isaacs’ sense of in 1902 for shooting Boer prisoners. opinion contained observations about a justice and his work continues to play a Morant and Handcock were executed number of issues and arguments in favour vital role in current proceedings to secure and Witton’s sentence was commuted to of Witton’s early release and although a posthumous pardons for Witton, Morant life imprisonment. In 1904, Witton was pardon was not granted, Isaacs’ persistence and Handcock. released from a British prison through secured Witton’s release. James Unkles Isaacs’ efforts and returned to Australia. Isaacs’ representation of Witton was James Unkles is a lawyer, military Until now, Isaacs’ work in representing significant. It reflected his excellence reserve legal officer and Petitioner Witton incarcerated in a British prison as a barrister and his reputation for for the descendants.

4 VBN VBN 5 Still Laughing letters to the editor letters to aving just read “Has Humour a I was obliged to turn up with a new joke. role in Court?” Bar News 154 at I would have retired early if my wife Hpage 56, I was reminded of my had not whispered “pension”. Luckily first appearance in the High Court as there was at least one happy moment. Solicitor-General for the State of The case was about the extent of the Victoria (1982). Commonwealth’s powers with respect It must have been an important to insurance. By now Justice Mason was case because the Commonwealth Chief Justice. I said – and each State was represented by I would like your honours to imagine its Solicitor-General. a diagram often found in old books As the junior Solicitor-General I was of logic. It is a big circle enclosing a last cab off the rank. I had to listen while smaller circle. The big circle represents the other Solicitors mumbled the same insurance generally. That belongs argument seven times. I rose to my feet to the Commonwealth. The smaller knowing that I could not say the same I saw his shoulders shake. And I think I circle represents State insurance. The thing for the eighth time. Instead, driven saw a tear run down his left cheek. Commonwealth cannot have that. Your by a blind impulse, I decided to tell the I have been told that during the Honours, this is called the doughnut judges a joke. They all laughed, except for following year at each Bar Dinner he theory of constitutional law. Justice Mason (who liked a joke but not attended he started off his address by in court). It was the biggest mistake It does not take much to amuse a judge saying “Why don’t you have a Solicitor- I ever made. When I next stood to deliver sitting in court all day listening to counsel General like the State of Victoria?”. an argument in the High Court all the putting an argument, 99% of which I do not put forward this recollection as judges leant forward waiting for the joke. the judge already knows. All the judges a suitable example for anyone who is not On each appearance for ten years laughed. Except Mason CJ. But I swear a Solicitor-General. Hartog Berkeley

Justice Susan Kiefel AC at the High Court of Australia. Introducing our Before that she was undertaking research at Sydney Law School specialising in international human rights law. Ms Ernst will study for the Bachelor of Civil Law degree at Newest Scholarship the University of Oxford in the field of international law, focusing particularly on human rights law. he Victorian Bar Foundation and members of the This new scholarship is designed to provide an opportunity Bar individually have donated very generously to the for talented Australians who aspire to walk in the footsteps establishing of a new post graduate scholarship in Law. It T of Sir Ninian, and to make a contribution to Australian is to be known as the Sir Ninian Stephen Menzies Scholarship society. With generous donations from individuals, law in International Law and will be administered by the Sir Robert firms, foundations and the Commonwealth Government, Menzies Memorial Foundation. the Foundation plans to offer this scholarship on an annual The Sir Ninian Stephen Menzies Scholarship in International basis. The Commonwealth is keen that applicants give strong Law recognises Sir Ninian’s enormous contribution to Australian consideration to pursuing their studies in an Asian country. and international law and governance. The Menzies Foundation was established in 1979 as a non- Brian Doyle, Chairman of the Menzies Foundation has political, not-for-profit organisation to perpetuate the ideals of expressed his warm thanks to the Bar for its support and Sir Robert Menzies, Australia’s longest-serving Prime Minister. particularly to Peter Jopling QC who has been tireless in It supports prestigious postgraduate scholarships in allied supporting the fundraising. health, engineering, law and medical research, as well as The Foundation has recently announced the winner of the other activities of national importance. inaugural Sir Ninian Stephen Menzies Scholarship in International The Foundation has been instrumental in the Law. The successful recipient is Ms Christine Ernst. establishment of highly regarded Menzies health research Ms Ernst has a Bachelor of Economic and Social Sciences and centres in Darwin and Hobart and a health policy centre a Bachelor of Laws with First Class Honours from the University based in Canberra and Sydney. of Sydney. She has received numerous academic prizes, Sarah Hardy, including the prize for first place in Australian Constitutional CEO, Menzies Foundation Law. Ms Ernst recently worked as Associate to the Honourable

6 VBN VBN 7 editorial

What Once was Old is New Again

VIC BAR NEWS

n 16 April 2014 senior counsel with the post nominal “SC” became entitled Santamaria QC, Paul D to change to “QC”. The below list sets out those senior counsel who chose Caine QC, Bruce N to use the post nominal QC, by reference to each division of membership. O’Brien QC, Frances I The remaining lists set out those senior counsel who elected not to apply to Parry QC, Frank Ochange their SC to QC. Golvan QC, Colin D Anastassiou QC, Paul E Quigley QC, Michelle L

Division AI (Victorian Practising Counsel) who chose to change from SC to QC photo courtesy of matthew townsend Brown QC, David J Manly QC, Richard J Riordan QC, Peter J Foxcroft QC, Hugh McArthur QC, Geoffrey G Neal QC, Anthony C Nikou QC, Olyvia Langmead QC, H John Noonan QC, John J Symon QC, Helen M Lewis QC, Gerald A Delany QC, C James Batrouney QC, Jennifer J Walmsley QC, Bruce Clarke QC, Graeme S McGrath QC, George G Morfuni QC, Vincent A O’Callaghan QC, David J Borenstein QC, Herman St John QC, Jeremy W Clelland QC, Neil J Glick QC, Leslie Murphy QC, Terrence P Peters QC, James W S Walters QC, Brian E Garantziotis QC, Aristomenis Strong QC, Elspeth A Collins QC, David G Richards QC, John B Hanscombe QC, Kristine P Denton RFD QC, David H North QC, Timothy J Collinson QC, Peter W

6 VBN VBN 7 Division AI (Victorian Practising Counsel) who chose to change from SC to QC(continued) Division BVIII (Other official appointments) who chose McGowan QC, Glenn C Williams QC, Daryl J to change from SC to QC editorial McGarvie QC, Richard W Niall QC, Richard M O’Bryan QC, Stephen G Wheelahan QC, Michael F Schoff QC, Georgina L Wren QC, Christopher J Solomon QC, Philip H Division CI (Retired Judges & other Hess QC, Barry J Harris QC, Wendy A Judicial Officers) who chose to change Nolan QC, Anthony A Batt QC, David J from SC to QC Blanden QC, Christopher J O’Bryan QC, Michael H Dodds-Streeton QC, The Hon Julie A Lyon QC, Gregory J Scott QC, Martin R Division CII (Retired Holders of Public Anderson QC, Stewart M Kirton QC, Caroline E Office other than Judicial Office) Marks QC, Simon E O’Meara QC, Stephen A who chose to change from SC to QC McDonald QC, Michael P Wood QC, Stuart J Horgan QC, Geoffrey M Thompson QC, Michael W Gorton QC, James P Panna QC, Andrew Gray QC, Peter R D Division CIII (Retired Counsel) Margetts QC, Timothy J Collins QC, Matthew J who chose to change from SC to QC Martindale QC, Ian D Taylor QC, Lesley A Wikramanayake QC, P Nimal Kelly QC, Anthony J Donaghue QC,, Stephen P Thomas QC, Graham J Mighell QC, James H Monti QC, Trevor S Clark QC, Peter H Dixon QC, Jane A McNicol QC, Suzanne B Hillman QC, Colin G Jones QC, Iain R Sest QC, Peter G Crennan QC, Michael J Connock QC, Matthew N Ryan QC, Aileen M SC’s in Division AI who chose not to Caleo QC, Christopher M Beale QC, Christopher W convert to QC Mawson QC, Ian F Robins QC, Mark A Ms Susan M Brennan SC Philbrick QC, John D Shnookal QC, B A Toby Ms Rachel M Doyle SC Robinson QC, Nicholas T Pane QC, Nicholas Mr Adrian J Finanzio SC Cawthorn QC, Peter G Roberts QC, Michael G Mr George A Georgiou SC Freckelton QC, Ian R L Hopkins QC, Nicholas D Mr Dyson F Hore-Lacy SC Waller QC, Ian G Murdoch QC, A Neill Mr Andrew J Keogh SC Judd QC, Kerri E Corbett QC, Philip D Mr Daniel Masel SC Gleeson QC, Jeffery J Sparke QC, Carolyn H Ms Fiona M McLeod SC Moshinsky QC, Mark K Lyons QC, Kevin J A Mr Peter J Morrissey SC Middleton QC, W Ross Alstergren QC, Edvard W Dr David J Neal SC Jewell QC, Philip A Clements QC, Andrew D Mr Norman J O’Bryan AM SC Dickinson QC, John P Quinn QC, Bernard F Mr Michael G O’Connell SC Harrison QC, Craig W R Young QC, Brent M Mr Paul F O’Dwyer SC Wilson QC, Joshua D Harding QC, Diana M Mr Michael R Pearce SC Loughnan QC, Maryanne B Maryniak QC, Andrew J Ms Carmen M-F Randazzo SC Kenny QC, Caroline M Gilbertson QC, David P Ms Melinda J Richards SC Horgan QC, Samuel R Harris QC, Gregory P Mr Adrian J Ryan SC Glacken QC, Sturt A Osborne QC, Michael S Mr Tim P Tobin SC Townshend QC, Christopher J Sharpley QC, Stephen J Mr Nicholas J Tweedie SC Brustman QC, David L Attiwill QC, Richard H M Mr Ted W Woodward SC Tiernan QC, Francis J J Dickson QC, Geoffrey R Wilson QC, Michael D Moore QC, Jonathon P SC’s in Div AII (Crown Prosecutors and Papas QC, Nicholas Annesley QC, Roisin N Public Defenders) who chose not to Hartley QC, Mary Anne Pizer QC, Jason D convert to QC Wyles QC, Michael D Mr Peter B Kidd SC Division AII (Crown Prosecutors and Crutchfield QC, Philip D Mr Andrew J Tinney SC Public Defenders) who changed Steward QC, Simon H from SC to QC SC’s in Div BIV (Solicitor-General and Fleming QC, Michael F Elston QC, Raymond A Director of Public Prosecutions) who Moulds QC, Andrew J McG Rose QC, Peter N chose not to convert to QC Chadwick QC, Peter A Silbert QC, Gavin J C Mr John R Champion SC Bourke QC, Justin L Trapnell QC, Douglas A Mr Stephen G E McLeish SC Monichino QC, Albert A Williams QC, Michele M Friend QC, Warren L Gyorffy QC, Thomas Marks QC, Samantha L Rochford QC, Mark J 8 VBN VBN 8 TowAROUND n Cover Story: Vic Bar Dives into Spring Swim

SARAH LEIGHFIELD

he photo on the cover of this waters of the Melbourne Sports and Whilst our teams may not have edition of Victorian Bar News Aquatic Centre and competed in five been the fastest in the pool, they Tfeatures Colin Mandy of the relays - a mystery relay; 4 x 50 metre certainly were the most distinctive, Victorian Bar, swimming in the 2013 medley; 4 x 50 metre freestyle; 4 x sporting bright orange, green and inaugural “Spring Swim” hosted 50 metre backstroke/breaststroke blue swimming caps with Vic Bar by Swimming Victoria. Matthew and 8 x 25 metre freestyle. emblazoned across them. Our Townsend of the Victorian Bar, who Unbeknown to our team of intrepid sincere thanks to Amanda Howes, also took the photograph featured swimmers, the VicBar Snappers was a law student, who spent a number on the cover of the last edition of one of the few teams consisting of of hours decorating our caps for us. Victorian Bar News, snapped this members drawn entirely from the Thank you also to our non-swimming photograph of Mandy in action, as same organisation. Many of the other colleagues who attended the events well as other sensational shots of the teams had managed to co-opt elite and cheered us on. VicBar Snappers which are featured Olympic representative swimmers All in all, Spring Swim provided on the Health and Wellbeing Section into their ranks, or were made up of an excellent opportunity for our of the Vicbar website. those whose weekend jobs contained members to have fun, make new The swimming event consisted a swimming aspect - such as a team of friends at the Bar, and rub shoulders of three nights of swimming in surf lifesavers. However our Snappers with past and present Olympians, all September, October and November remained undaunted and had a lot of whilst also gaining a healthy dose of 2013, which were designed to pit fun pitting themselves against teams exercise! organisation against organisation in containing casual swimmers and It is hoped that the Spring Swim a series of fun relay races, followed former and current Olympians alike. will become an annual event and that on each occasion by a social The Snappers were then joined by we can continue to provide multiple function. On 20 September 2013, two more VicBar teams - the VicBar VicBar teams in the future, so keep eight of our barristers (swimming Whitings and VicBar Flatheads - for your eyes on ‘In Brief’ from mid-year as the VicBar Snappers) braved the the October and November events. and please join in.

9 VBN VBN 9 around town around

Second Undefeated Season for Bar Hockey

ROB O’NEILL

fter its dominant season in 2012, supporters Richard Brear and Jennifer and Athe Victorian Bar hockey team her husband Steve also returned. looked forward to 2013 with confidence. We played a strong Law Institute team Unfortunately, the season was reduced including several of their high-level players to a single game as the New South who had been missing the year before. Wales Bar was unable to scrape together Despite our win last year, we needed to enough players to come to Melbourne. lift our game to keep the Cup. Our only fixture therefore was the Thankfully, our recruits all proved “Scales of Justice Cup” against the Law to be good players, with Williams and which was dominated by the attacks. Institute at the Hawthorn/Malvern Tierney providing strong drive through Four more times the Bar hit the front, four Hockey Centre in October. The team was midfield. Denton starred up front with four more times the Institute pegged us back. again led by Stuart Wood SC, but only off goals, well-supported by Gordon, Mark Happily, when the final whistle blew it the field, as he was unable to play in the Batrouney, Robinson and Morgan. The was the Bar with its nose in front. The match itself due to illness. midfield featured Tweedie who starred final score was 6-5. Rob O’Neill stood in as captain, and the at centre half, with strong contributions In what must have been a tight contest, game saw the return of long time captain from Evans, Williams, Tierney and the trophy for best-on-ground was Judge Burchardt. We were delighted to James Batrouney. awarded to Sharpley, who edged out welcome some young(ish) new recruits Burchardt and O’Neill on the backline Tweedie and Denton. Stephen has now in Nigel Evans, Robert Williams and fought hard but sometimes struggled won the award four times. James Tierney. The remainder of the for pace against the young Law Institute Both teams were extremely grateful team members were John Morgan, Nick team. They were, however, magnificently for the sponsorship from Kaleidoscope Tweedie, Andrew Robinson, Andrew backed-up by Sharpley in goal, who Legal Recruitment. Paul Burgess from Denton, Stephen Sharpley (GK), Barnaby played to his usual very high standard. Kaleidoscope played for the Law Institute Chessell, Ross Gordon, Craig Samson, The Bar got on the scoreboard first but and also organised welcome after-match Mark Weir and Mark and James Batrouney the Law Institute answered quickly. That refreshments. Our stalwart umpire Tony (sons of Jennifer Batrouney SC). Our loyal was the pattern throughout the match, Dayton, who has been umpiring these

BACK ROW: Ross Gordon, Nigel Evans, Mark Weir, Robert Williams, Craig Samson, Stephen Sharpley, James Tierney, matches for many years, officiated Andrew Denton, Barnaby Chessell, James Batrouney. FRONT ROW: Mark Batrouney, John Morgan, Philip Burchardt FM, extremely well yet again. Andrew Robinson, Rob O’Neill, Nick Tweedie.

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On Another Note: The Vic Bar Community Choir

RICHARD LAWSON

cronyms are getting out of hand. someone they knew. Only a few, mostly AThese notes are being written women, looked calm and self-assured. for HAWCVBCC. The Health and The women, by the way, were in a Wellbeing Committee Victorian Bar sizeable majority. This was predictable December. It’s probably fair to say that Community Choir. Thankfully, one but disappointing for we men. this performance was a qualified success. can probably say “Vicbar Community Why are we more reluctant to sing Now there is talk of an appearance at the Choir” and people will know what you than our sisters? 2014 Law Week and the up-coming Bar mean. It started last September with Suddenly we were called to attention Dinner. Thursday one o’clock rehearsals

a HAWC member, Laura Colla, putting and introduced to the choir master, have now become an on-going weekly photos courtesy of matthew townsend the same leading question to anyone Mr Michael Leighton-Jones. What an fixture. The choir does, in fact, live up to who crossed her path: “You can sing, impressive figure! His captivating Welsh the name of the committee that spawned can’t you?” tenor voice is matched by a distinguished it: Health and Well-being. New faces And so it was that 60 barristers met at musical pedigree and training. are a stimulation. The tenors variously the Welsh Church Hall in LaTrobe Street Every subsequent Thursday lunchtime practise in commercial, common law, at one o’clock on a Spring Thursday – for the rest of last year, with patience family, crime and at VCAT. And if you’ve reminiscent of the start of the Readers’ and good humour he had us tackle lost track and have almost started singing Course or one’s first day at school. the challenges of Gospel singing and when it’s the sopranos’ turn, nothing else Most of the gathering were sheepishly Christmas Carols, all directed towards matters: the problem of tomorrow’s client sizing each other up and looking to find the choir’s debut at the Essoign Club in are then furthest from one’s mind.

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Victoriandinner Bar

JUSTIN TOMLINSON 7

n 30 May 2014 a record number of barristers attended the Bar Dinner (550 in all). Once again, the venue was the spectacular Myer Mural Hall, the narrow welcoming hall of which gave junior barristers a literal opportunity to rub shoulders, and kneecaps, with the great and powerful of our Bar. The Honoured Guests included the Governor of Victoria, his Excellency the Hon Alex Chernov AC QC, Federal Attorney-General, Senator the Hon George Brandis QC, and State Attorney-General the Hon Robert Clark MP. If there is a collective noun for a large group of judges (suggestions Owelcome), it would be appropriate to use it here in order to accurately convey how our Bar was honoured by the presence of so many at this year’s gathering. It is perhaps little wonder that the attendance number was so high, given the calibre of the promised guest speakers: The Hon Justice Hayne AC and Jeremy Ruskin QC. Their speeches did not disappoint and we are fortunate to be able to publish Justice Hayne’s offering in the following pages. Additionally, and for the first time, these speeches are available for viewing on the web at http://www.vicbar.com.au/member-events/bar- dinner-2014 and although we are all self-employed, it may be wise to first check with your boss before playing these during work hours. The evening was a great success and will be remembered by those attending for some time. It may also be true that those who extended the evening into the dawn (in noble homage to the finest traditions of the Bar and with an eye on personal legacy) paradoxically will find much forgotten. To assist such persons piece together material facts, and for others who did not attend, we offer the ocular proof of this year’s Bar Dinner.

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9 6 11 14 VBN 13 VBN 13 Tim Margetts QC and the Hon Justice Digby Digby Justice QC and the Hon Margetts Tim Adrian Finanzio SC, Paul Connor and Trish Riddell and Trish Connor Paul SC, Finanzio Adrian David O’Callaghan QC, Jim Peters QC, his Excellency QC, his Excellency Peters QC, Jim O’Callaghan 13. David Bar Chairman, Will Alstergren QC Alstergren Bar Chairman, Will Senator the Hon George Brandis QC and Jonathan Beach QC Brandis the Hon George Senator 14. Michael Leighton Jones conducts the Bar choir the conducts Jones Leighton 1. Michael Davies the Hon Justice QC welcomes O’Callaghan 2. David Attorney- Shadow J Beach welcomes Hon Justice 3. The SC McLeod MP and Fiona QC Mark Dreyfus General Hon Associate Albert 5. The and Matthew 4. Siobhan Keating 6. Eitan Makowski, McWilliams Randall and Dugald Justice Swanwick Jessica Katharine Gladman and Kantor, Jacob QC, 7. Michael Wyles Walsh, Matthew Nasos Kaskani, Hon Michael 8. The Crennan and Daniel Di Pasquale Andrew QC 9. Black AC and Simon Kaye QC, the Hon Justice Michael Colbran 10. QC 11. Wilson Simona Gory and Christina Menon, Angie Wong, 12. Zubin Klemis Attorney-General QC, Federal AC Chernov the Hon Alex 3 3 5 8 10 13 2 12 2 4 1 2

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Victoriandinner Bar

1. Sue Winneke and the Hon John 6 Winneke AC QC 2. The Hon Chief Justice Warren AC and Mick Heeley 3. William Lye, the Hon Judge McInerney and the Hon Peter Rendit 8 QC 4. The Hon Linda Dessau AM, David Bailey, the Hon Mark Dreyfus QC MP and Simon Wilson QC 5. The Hon Neil Brown QC and Gerard Meehan 6. Megan Casey, Jacob Kantor, Michelle Mykytowycz, Jessica Swanwick, the Hon Stuart Campbell, Katharine Gladman, Catherine Boston, Mia Stylianou and Stephen Devlin 7. The Hon Mark Dreyfus QC MP, Chris Wren QC and Tony Southall QC 8. Anthony Strahan and Kate Beattie 9. Stephen Jurica, Chris Winneke, Richard Attiwill QC 7 and Jamie Gorton QC 10. Jeremy Ruskin QC delivering his speech 11 12 11. Roz Zalewski-Ruskin and Richard Stanley QC 12. The Hon Judge Wood 13. Rohan Hoult in reply 14. David Purcell, The Hon Justice Cavanough and Michael Wheelahan QC enjoying Jeremy Ruskin QC’s speech 15. Simon Wilson QC and the Hon David Habersberger QC 16. Kathleen Foley, Alistair Pound, Simona Gory and Frances Gordon.

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VBN 15 VBN 17 VBN 17 7 3 5 6 2 Eugene Eugene 1 4 1 3 4 16 VBN The Hon Peter Heerey AM Heerey Hon Peter 1. Stan Spittle 2. The Knowles, QC 3. Fiona QC and Jim Peters Mazloum and Hadi Amanda Burnnard, Kings Hon Judge Samantha Holmes 4. The 6. Avis QC and Rosalind Tehan 5. Patrick and Michael Galvin 7. Connor Paul Barristers hit the dance floor hit the dance Barristers Wheelahan 8-9.

photos courtesy of justin hill of zorzut.com.au 2014 victorian bar dinner bar victorian 2014 Victoriandinner Bar

Lessons I Have Learned

SPEECH DELIVERED BY THE HON JUSTICE HAYNE AC

ife generally, and especially blunt and forceful approach – as befitted the life working in the courts, Chairman of the time, Hartog Berkeley. Hartog provides endless lessons from was not a man who took “No” for an answer. which we may learn. I suspect He rang me up and told me (in his distinctive that the principal lesson which tones): “I’ve got a little job for you Ken. You I have learned in the course of will do the toast to the guests at the Bar my journey in the law is that the bounds of Dinner.” And that was that. my ignorance keep opening ever wider before The lesson? Chairmen of the Bar don’t ask. Lme. All too often, I fear, I am left wishing that They command! I knew more, much more, about some subject That Dinner taught me two things. The than I do. But I hope that I may have learned first was about the perils of following the something along the way. A very few of those High Court. The then Chief Justice, Sir lessons may be worth repeating tonight. Harry Gibbs, spoke first at the Dinner. We all When the Chairman asked me whether thought that we had assembled to celebrate I would speak at this year’s Bar Dinner, my the centenary of the Bar. Gibbs was of an mind went back 30 years to 1984 and my older school. For him, the occasion we had first speech at a Bar Dinner. That speech assembled to celebrate was the “cen’tenry” had come about following a rather more not any newfangled occasion like a centenary.

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I, like the dutiful junior I then was, important one: the Victorian Bar then ahead of other Australian Bars in and all following speakers (apart, had (and I believe still has) a social its endeavours. My evidence is of that is, from Hartog), thought it only maturity, or if you will, plain old course anecdotal. But a year or two right to follow him and, to the great fashioned “grace and style”, which ago I went with my wife to a dinner amusement of all concerned (both no other Bar and very few other to mark the end of a Supreme and then and ever since), the “cen’tenry” professional associations then Federal Court Judges Conference. it was for the rest of the Dinner. could show. I had spoken at the Conference; The lesson? Follow the High Court! That is why I was then, and remain, Michelle had been better employed The second thing I learned at the very proud of my being a member of helping to run the Nippers program 1984 Dinner was more enduring. such a body. at our local surf club. We were seated Because we were celebrating such a Since that Dinner, much has on Table 1, next to the Judge from milestone in the life of the Bar, the changed at the Bar and in the law another State who had chaired the powers that be decided that members more generally. Some for the better, Conference. of the Bar could invite partners. some not. During the early stages of the Brian Shaw was the immediate past On the “better” side of the ledger, dinner, that Judge turned to my Chairman of the Bar. He was a leader this Bar has done, and continues to wife and said: “So, did you enjoy the of the Victorian and Australian Bar. do, much valuable work in relation to accompanying persons’ program?” I had had the privilege of doing a lot the Indigenous peoples of this nation. “No,” she replied, “I was occupied at of work with Shaw and admired him I am delighted that tonight the Bar our local Surf Club”. immensely. honours Justice Stephen Kaye for He ploughed on. Shaw took his partner, Keith, to the national recognition he has “Apart from being the wife of Ken that Bar Dinner. In the climate of been given for his work with young Hayne, what does Michelle Gordon those times, 30 years ago, this was, Indigenous lawyers. It is never to be do with her time?” he asked. There I am sorry to say, an unusually brave forgotten that the Mabo litigation was was a silence at the table. “Oh,” she thing to do. But it was done without devised, funded and run principally replied, “I work and we have a family.” any fanfare. This was not some grand by members of this Bar, in particular “Do you work full time?” The political gesture by Shaw. It was an Ron Castan, Bryan KeonCohen, silence at the table intensified. She act of simple truth and devotion. And Barbara Hocking and Richard Brear. replied, “Some would say I do.” to the great credit of the Victorian But there remains much to be done Still he ploughed on. “What work Bar, it passed without remark. in that and many other areas. do you do?” By now, the other The lesson, from that Dinner, Nevertheless, I hope that I can members of the table had put their 30 years ago? A very simple but still say that the Victorian Bar is knives and forks down to observe the

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The Victorian Bar then had (and I believe still has) that which counsel who called the a social maturity, or if you will, plain old fashioned witness was expecting. You do not have to be long at “grace and style”, which no other Bar and very few the Bar to know the terror which other professional associations then could show. that brings for counsel. As counsel, you stand there, trying to look course of events. To her credit, my the house. They put you up on a unconcerned, while the River Yarra wife said only, “Oh, I am in the law”. bench looking down on the rest of the courses down your back and the reef The Judge strode on, undeterred. “So, courtroom for a very practical reason, knot in your belly tightens further, a solicitor?” he said. “No, I am on the not because you are more important wondering how to get out of this hole Federal Court.” “Oh,” said the Judge, than anyone else in the room. From the witness seems so anxious to dig “you’re that Michelle Gordon”. the bench you can see and hear for you and your case. The lesson? Several really. Know much more than counsel and their But from the best seat in the house your audience is the first and obvious instructing solicitors sometimes the reaction is very different. For the one. But more important than that, seem to realise. You see the client first time in your life you sit in the do not make assumptions. And never sitting behind counsel looking courtroom and think “I don’t care. make assumptions that are based in shocked when certain evidence is I really don’t care. I am not stereotypes which, if ever true, have given. You see, and often hear, the responsible for what the witness long since passed. interplay between counsel and their is saying. I just have to decide the I hope that at this Bar we have long instructors. And, as a Judge who is case.” The relief is wonderful. since left behind the assumptions very close to me told me recently, The lesson? The judge has a that underpinned that exchange. If you can see the instructing solicitor different reaction to what happens we have not, we must and must do so sitting at the bar table taking such in court. now. After all, 30 years ago, the Bar great interest in the progress of But cold hard truth and reality for proved to me and to others that it had the hard-fought litigation in which a judge is never far away. Sooner left behind one set of prejudices. her client was facing a very large rather than later as a judge, you The lesson? Grow up and leave the judgment that the solicitor spent learn that your judgment is not prejudices of yesteryear far behind. the morning in Court using her always right. And proof of that is For me personally, the three computer, the screen of which faced found not only in what the Court of decades that have passed since first the bench, first, to find and book a Appeal or High Court says about your I spoke at a Bar Dinner have seen (very expensive) holiday online and judgments but also in life itself. It is many changes. In my life in the law, then, to adjust the risk profile on her as well for a judge to be reminded of there was taking silk, appointment to superannuation fund. Not a sensible this lesson, and reminded of it very the Supreme Court, then the Court use of computers in the courtroom. often. There is a very public record of Appeal and finally the High Court. It is on a par with “New High Score!” of one such reminder to me. Whether any of those changes were and a high-five. In 1995, less than three weeks for the general good is something The lesson? There are two. First, after the Court of Appeal was that you and later generations of never forget that the judge has formed, I was party to a judgment in lawyers will decide. the best seat in the house. Second, a sentencing appeal. The catchwords The pace of technological change embrace technological change. But for the judgment read “Criminal Law – seems to increase by the day. We use it wisely. Appeal against sentence – Attempted cannot ignore these changes. We trafficking in a drug of dependence rom the best seat in the must accommodate them as they – Sentencing parity – Minor criminal house you watch, as a trial happen and not wait for years to see history – Excellent prospects of judge, the endless parade of if they will catch on. That is why I rehabilitation – Application allowed”. Fwitnesses. All sorts and conditions have succumbed to the ubiquity of The case concerned trafficking in of people, most of whom genuinely the tablet computer and, like many methamphetamines. Those of us believe that they are trying to tell the counsel, now sit in Court with all my who sat in the appeal formed the truth. And it is that parade of people materials on the iPad. But there are judgment that the offender had which I missed most when I left trial risks. Calling out “New High Score!” excellent prospects of rehabilitation. work behind and sat in appeals. But and highfiving your associate does His application for leave to the most enduring memory of those tend to suggest to the very careful appeal was allowed and he was days as a trial judge is the first time observer that you may not be giving resentenced in a way that required I watched a witness obviously turn full attention to the case. his immediate release. sour on counsel and give evidence As a new judge, you soon learn The judgment which I (and the which was to the effect opposite to why they give you the best seat in others) made in that case might

18 VBN VBN 19 possibly be thought not to have been Like many counsel, [I] now sit in Court with all my wholly borne out by subsequent materials on the iPad. But there are risks. Calling out events. The offender was Carl Anthony “New High Score!” and highfiving your associate does Williams who, you will recall, tend to suggest to the very careful observer that you was later to play a very large part may not be giving full attention to the case.

2014 victorian bar dinner victorian 2014 in production and trafficking of methamphetamines in this State. It Constitution tells me that I must be in what I do. You may think that this was the same Carl Williams who, on taken off to the Home for Bewildered would form a suitable subject for a his pleading guilty to three counts of Judges, have the plaid rug put over monthlong psychiatric convention, murder and one count of conspiracy the knees and a nice young person and in that you may well be right. to murder, was sentenced to life with pause occasionally to wipe the But if, at this Dinner, I am to tell you a minimum term of 35 years. dribble from the corner of my lips as what I really think, it can be summed I am not altogether certain that I stare vacantly into space. up very briefly. There are very few these events completely fulfilled the It may be that I have not learned who have the privilege I do, at my excellent prospects for rehabilitation enough from the lessons doled out age and stage, to face the intellectual which we had so confidently by life generally and by working challenges I do, knowing that the predicted 12 years earlier. It may in the courts (about which I spoke answers which I give matter. That is not have been a triumph in judicial earlier). But I have no reservoir of a rare privilege and one for which I assessment of character. complaint or scandal or revenge. I remain ever grateful. The lesson? None of us is infallible. do not propose, after my retirement The lesson from this can be seen as And I would like to thank – I from the Court, to write any articles selfish. Life is easier and better if you assume it to be – successive or memoirs telling how I, and I find the fun in what you do. But there Chairmen of the Criminal Bar alone, have been the repository of all is a deeper and more enduring lesson Association for the thoughtfulness knowledge, wisdom and justice in the for every one of us. they continue to show by sending me High Court or in any other position The work that is done in the a copy of the judgment each year. I have held. Some (and some is too courts is important. Because it is One of the many oddities about many) seem to have done that before important it must be done well. And speaking at a Bar Dinner is the me. Any attempt I made to take sole doing the work well does not depend amount of advice which others offer occupancy of the moral high ground upon what title you have, or which about the speech. The best advice would be objectively wrong and, in particular combination of letters was given by Jeremy Ruskin, a few any event, would be no more credible appear after your name. weeks ago. When we ran into each than any of their attempts. Futility It depends upon you recognising other in the street, he asked me how may be reason enough not to do this. that the work which you do matters. my preparation for this speech was But there are other, more important, It matters to the people you deal going, and I lamented how slowly I reasons not to do so. with. It matters to the health of was advancing. When first I accepted appointment society generally. Doing the work Unprompted, he offered me a as a judge (now 22 years ago) that well depends upon every one of us lesson I should have learned long great leader of the Victorian Bar, recognising that it is a privilege to ago. He said: “The two of us should Neil McPhee, lined me up, and in play our part in the administration of Google the word ‘No’”. He was right. language befitting his time as a justice. And with that privilege there But the most startling advice I was front-line infantry officer in the comes a profound and enduring given this year was “You only have a Korean War, told me that I was responsibility: to give the work all the year to go; tell them what you really far too young to take the job but energy and effort needed to do the think. Let them have both barrels!” to remember that no one had forced work properly. I am not quite sure who was meant me to do so. He said, I think rightly, That, above all, is the lesson I have to be the target of this onslaught: you, that there are few more dangerous learned. It is a lesson whose truth members of the Bar more generally, judges than those who look back bears repetition tonight. The work we the political branches of government, to their glory days at the Bar and do matters. It matters far, far more other judges, or my colleagues past hanker to return. As he said, “Find than we who do it. and present. Obviously, the person the fun in it. If you cannot find the For me, it is a privilege to be giving the advice thought that there fun in it, give it up because you will asked to speak at this Bar Dinner. was a pent-up reservoir of complaint be no use to anyone.” You, Chairman, and you, ladies and or scandal or revenge to be let loose I have tried my best to follow gentlemen, do me great honour by and that this was the last chance to McPhee’s advice. It tells you nothing permitting me to speak. For that I do so. After all, in a year’s time, the good about me that I still find the fun thank you all.

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Arbitration in Transition in the 120th Meridian: The Pacific Hour

HELEN TIPLADY

n Tuesday, 25 March 2014, the need, in such a context, for just, Professor Reyes considered the position Othe Victorian Bar hosted three fair and effective dispute resolution, of developing countries, many of which distinguished international arbitrators and encouraged all participants to base are anxious to establish international to present a CPD seminar on current their interactions on notions of good arbitral centres to attract arbitration, and developments in international governance, and to find ways to sustain trade and commerce, to their nations. commercial arbitration in the Asia-Pacific and progress international dispute Professor Pryles is an internationally region. The seminar was presented by the resolution. regarded arbitrator, having sat in over Victorian Bar’s International Arbitration Professor Rajoo spoke of the 400 cases worldwide. Among other Committee, and featured an address by importance of co-operation between appointments, he is currently serving Professor Datuk Sundra Rajoo on the nations in the development of as President of the Court of Arbitration, topic of “Arbitration in Transition in the international commercial arbitration, Singapore International Arbitration 120th Meridian: The Pacific Hour”. The particularly in bridging the gap between Centre, and is the Immediate Past Professor’s address was followed by a developing and developed countries President of the Australian Centre for panel discussion featuring Professor with respect to their methods of dispute International Commercial Arbitration. Michael Pryles and Professor Anselmo resolution. Professor Rajoo noted that Professor Pryles suggested that in the Reyes, which was co-chaired by Martin Australia is known for the strength of international context, arbitration is the Scott QC and Albert Monichino QC of the training of its legal practitioners, and norm, and everything else (including our the Victorian Bar. commented that Australian lawyers have litigation) should be considered a form The starting premise of both the an important role to play in this regard. of alternative dispute resolution. He address and the panel discussion was Professor Reyes practices as encouraged Australian lawyers to view the fact that international arbitration is an arbitrator and advocate, and the Asia-Pacific as our backyard, and to increasingly being viewed on a regional is concurrently Professor of Legal strengthen our links with international basis. In that context, reference was Practice at Hong Kong University law firms so as to assist in establishing a made to the 120th meridian, being that and the representative of the Asia presence in Asia. which runs through the Asia-Pacific Pacific Regional Office of the Hague While Australia’s geographical position region. The development of international Conference. In reply to Professor Rajoo’s is a potential disadvantage, Australian commercial arbitration in the Asia-Pacific address, he made three key points. First, lawyers need to build on our strong region, and the possible role for Australia Professor Reyes reinforced the need international reputation and continue to and Australian lawyers in such arbitration for a combination of competition and focus our attention on the Asia-Pacific in the region, were the key themes of co-operation between arbitration and region. With that in mind, Victorian the seminar. litigation so as to ensure integrity in both barristers with an interest in international Professor Rajoo is the Director of processes. Secondly, he commented arbitration need to focus on establishing the Kuala Lumpur Regional Centre for on the role of arbitration stakeholders, and maintaining a presence in the Asia- Arbitration and the Immediate Past including arbitrators and advocates, Pacific region, while at the same time President of the Asia-Pacific Regional and the importance of the notion of continuing to promote our own country Arbitration Group (APRAG). He has a stewardship and of mentoring the next as an attractive location for international wealth of experience in both international generation of stakeholders. Finally, arbitration. and domestic arbitrations, having accepted over 150 appointments as an arbitrator. In his address, Professor While Australia’s geographical position is a potential Rajoo made reference to the concept disadvantage, Australian lawyers need to build on our of globalisation, both in trade and strong international reputation and continue to focus commerce generally, and in the provision of legal services in particular. He noted our attention on the Asia-Pacific region.

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2 Launch of the Melbourne Commercial Arbitration and Mediation Centre

VICTORIAN BAR NEWS

he Melbourne Commercial Arbitration and Mediation Centre was officially opened Tfor business on Monday 17 March 2014 at a function jointly hosted by Victorian Attorney-General Robert Clark, Chief Justice Marilyn Warren AC, the Victorian Bar and the Law Institute of Victoria. Addressing the audience at the launch, Will Alstergren QC acknowledged that 3 the Centre was made possible through a collaborative effort on the part of the Victorian Government, the Courts and the Victorian legal profession. The Centre was established under a memorandum of understanding signed in 2011 by the Department of Justice, Victorian Bar, Law Institute of Victoria and the Victorian Supreme and County Courts. The Attorney-General remarked that the Centre, headquartered in the William Cooper Justice Centre, would ensure parties had access to Melbourne’s best arbitration and mediation facilities in the heart of Melbourne’s legal precinct. “Today’s launch of the Centre, including an innovative online venue booking facility, is an important step towards Melbourne becoming a key part of the international arbitration hub in the Asia Pacific region,” Mr Clark said. “The Melbourne Centre is the next part of the Australian arbitration grid. With Sydney, Melbourne and soon, hopefully, Perth, arbitrations will be encouraged and well-served in Australia” said Chief Justice Warren.

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1. The Hon Chief Justice Warren AC 2. Jonathan Beach QC 7 3. Geoff Bowyer 4.The Hon Robert Clark MP 5. David Batt QC, Justice Melanie Sloss, Peter O’Donahoo 6. The Hon Robert Clark MP, the Hon Chief Justice Warren AC, Jonathan Beach QC and Geoff Bowyer 7. Paul Hayes, Bronwyn Lincoln (Herbert Smith Freehills), The Hon Neil Brown QC 8. Michael Sweeney and Sally Bodman 9. Marisa De Cicco (Dep Secretary - Criminal Justice), Clare Malone (Dept of Justice) and Elise Parham (Attorney General’s Office) 10. Caroline Kirton QC, Stephen Hare, Fiona McLeod SC

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22 VBN VBN 23 Bar Chairman William Alstergren QC and Vice-Chairman Jonathan Beach QC (now, the Hon Justice J Beach) sitting in Bar Council earlier in the year. News ViewsAND

FROM THE Chairman’s Table

WILLIAM ALSTERGREN QC

ell, it is now six months since generally. It was obvious that, like ours, the professional I assumed the reins. landscape had changed for many law firms and efficiency When I took over I thought was the key to the future to ligation in Victoria. It became it important to find out how the obvious that the Bar has to move forward and actively profession was viewing the Bar demonstrate its value and standing in the profession and where we sat generally. I if we want to continue to grow and prosper. visited many of the major law firms over a period It was also obvious that barristers, especially junior of three weeks. I must say it was a rewarding and members, are consistently being briefed late in litigation illuminating experience. I was very grateful for the and much of the space the Bar occupied in litigation is opportunity to speak with many well respected now being kept in house in major law firms. It is also Wsenior partners and leaders in each firm. apparent that the best way for many law firms to run Many of the firms I visited confirmed their support of litigation from a business model is not to brief barristers the Bar and a keenness to strengthen ties with the Bar until it is clear that the matter will not settle and will be photos courtesy of david johns of david courtesy photos

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William Alstergren QC, The Hon Justice Middleton and The Hon Justice Judd at the Bar’s Corporate Counsel event.

We are trying to change the culture and regain our rightful place as leaders of the profession.

going to trial. By this stage all the preliminary discovery, pleadings, mediation and witness statements have been completed. Many of the firms I spoke to said that they see no need to instruct counsel for major interlocutory fights in court and are comfortable engaging one of their solicitors to appear. The bench does not appear to be encouraging parties to brief the person conducting the trial to appear beforehand to take responsibility for the pleadings or evidence. So what to do about these a corporate counsel evening in submissions are being put to circumstances? May, with Justice Judd and Justice Government. There are a number of areas Middleton presenting on why it is Legal Aid has suffered further where we have opportunities. One of important to brief barristers early set backs in funding. The Federal those is our capacity to deliver CPD in litigation. Government’s budget did not deliver seminars to solicitors, during which We are trying to change the culture the increased funding anticipated we can market counsel to the very and regain our rightful place as and further work will be done people who brief the Bar. With this leaders of the profession. consulting the Commonwealth in mind, we are organising the Bar’s We opened Victoria’s new Attorney-General. first CPD conference with the LIV International Arbitration Centre We continue to have a strong and and corporate counsel on 17 October in conjunction with the Victorian collegiate Bar. A sign of this was our 2014. Each panel will have a solicitor, Government, the Supreme Court, Bar Dinner held on 30 May. Over a a barrister or two and a judge. and our International Arbitration month before the RSVP deadline it In addition, I invited every Committee. It is a great step sold out. The Governor of Victoria, president of a regional or suburban forward and is in keeping with our both the State and Commonwealth law association to a dinner to hear efforts to promote our members as Attorneys-General, the Shadow Justice Jack Rush speak on the international arbitrators in Asia and Federal Attorney-General, five High importance of the Bar. I also invited elsewhere. Court Justices, the Chief Justice of the Attorney-General, who spoke There are plenty of other Victoria and representatives of all our with great enthusiasm about the Bar challenges ahead. The introduction of courts attended. This was, I am sure, and what great value barristers are to the Base Line Sentencing legislation in no small part due to our two fine the profession. I am now rolling out a has caused the Bar some serious speakers, Justice Kenneth Hayne AC series of talks to each of the lawyers’ concerns. As a result, I invited the and Jeremy Ruskin QC. associations to encourage them to Attorney-General to address the I thank the members of the Bar brief well and brief early. Hopefully Bar. The panel of speakers included Council for all their work during by 30 June I will have spoken to all Paul Holdenson QC, Jane Dixon the year and the Bar staff for their 25 of them. QC and Peter Morrissey SC. It was assistance. I especially want to thank We are currently establishing an excellent session and allowed Denise Bennett for all her assistance. a comprehensive data base for the Attorney to hear firsthand I cannot wait to see what we can marketing purposes. We held the concerns of the Bar. Further achieve in the next half of the year.

24 VBN VBN 25 news and views photo courtesy of david johns L entirely. Inbetweenthosetwo absolutepositionsweremany of speech, tothosewhowishtheprovision tobeleftalone of section18Cwillsatisfytheirconcernsaboutfreedom from thosewhoconsidernothingshortofoutrightrepeal submissions reflectadiversity of strongly-heldviews, ranging of submissionscamefromindividual Australians. The the Law Councilof Australia. However, the vast majority the Australian HumanRightsCommission (AHRC)and received. Submissionscamefrompeakgroupssuchas more thanfive thousandwritten submissionshadbeen the publicconsultationperiodclosedatendof April, of engagingthewidercommunityindiscussion. When of asuggestedamendmenttosection18C, forthepurpose particular sensitivitiesaboutany changes. including leadersoftheJewish community, whohad particular, seniorrepresentatives ofethniccommunities, reform ofsection18C. Those consultationsinvolved, in groups, representingavariety ofdifferentviews aboutthe 26 VBN In March, theGovernment publishedanexposure draft consultations withanumberofkey interest last September, Iundertookextensive private After theelectionof Abbott Government Discrimination Act (RDA) “in itscurrentform”. a promisetorepealsection18CoftheRacial ast year, theCoalitiontooktoelection SENATOR THEHONGEORGE BRANDISQC, ATTORNEY-GENERAL FOR THECOMMONWEALTH on BeingFree to Disagree The Attorney-General news and views constructive suggestions about The test of good faith on the issue of free speech is our how the provision could be reformed. Most submitters understood the willingness to protect the right of others to say things with Government’s concern that section which we disagree or of which we strongly disapprove. 18C, as currently worded, is too restrictive of freedom of speech. the Government’s proposal to include If this debate has done Thus, for instance, the Law Council in the Act, for the first time, an nothing else, it has introduced an of Australia on behalf, inter alia, explicit prohibition of conduct that uncharacteristically philosophical of the Victorian Bar, submits: “vilifies” on racial grounds. tone to the discussion of public policy. What is clear from the process All of a sudden, we see names like The Law Council considers that of consultation, and is reflected Voltaire and Mill being invoked in freedom from racial discrimination in the submissions which I have the opinion pages of the newspapers. and freedom of opinion and expression quoted from three of the most That is no bad thing. Perhaps can and should be robustly protected significant participants in the Voltaire did make the famous remark and promoted in a way that enforces debate, is that many thoughtful attributed to him (“I disapprove of the indivisibility and complementary people agree with the Government’s what you say but I would fight to the nature of the right to equality and the view that the provision should be death for your right to say it”), or right to free speech. It considers that reformed. Indeed, I have seen nobody perhaps the attribution is apocryphal. laws designed to protect against the - including the Shadow Attorney- It nevertheless serves to remind us identifiable harm caused by racial General - who claims that the all of a very important truth: that the vilification must have due regard to provision as it currently exists test of good faith on the issue of free the central position that the right to is incapable of improvement. Rather, speech is our willingness to protect free speech holds in our community. the concerns seem to be that to the right of others to say things with However, it also recognises that the strengthen the freedom of speech which we disagree or of which we exercise of this right can justifiably protections will somehow weaken strongly disapprove. To defend that be limited to ensure the enjoyment protection of minority groups. right is not to endorse or condone of other fundamental rights, such as That is a false antithesis. I agree the other person’s view; it is merely the right to equality. ... The Law Council with the view of the Law Council to recognise that in any free society recognises that from a civil and political that these are complementary, not there will be a multiplicity of voices, rights perspective, there is a case for inconsistent, objectives. A well- and that the State should never act amendment of the current provisions. worded provision can serve both. as a political censor or arbiter of The AHRC also acknowledges It is the Government’s aim to achieve opinion. As Menzies, echoing that “the legislation could be those twin objectives. The problem Voltaire, once wrote: clarified ... to confirm that Part IIA with the current section 18C is that Let us, on the threshold of our deals with profound and serious it serves neither objective as well as consideration, remember that the effects, not to be likened to mere it could. To outlaw conduct merely whole essence of freedom is that it slights.” The AHRC itself contains on the ground that it might offend is freedom for others as well as for a diversity of views, from the Race or insult another member of the ourselves: freedom for people who Discrimination Commissioner, Tim community is, in the Government’s disagree with us as well as for our Soutphommasane, who has strongly view, an impossibly wide limitation supporters; freedom for minorities argued that the provision should not on freedom of discussion in a liberal as well as for majorities. Here we be amended, to the Human Rights democratic nation. The omission have a conception which is not born Commissioner, Tim Wilson, who from the RDA of a prohibition upon with us but which we must painfully favours radical amendment if not vilification is an obvious oversight acquire. Most of us have no instinct outright repeal. It is, in my view, a which needs to be corrected. Decent at all to preserve the right of the other good thing that the AHRC should people may disagree on the question fellow to think what he likes about our reflect, among its Commissioners, of how narrowly or widely the term beliefs and say what he likes about the diversity of views which exists ‘vilify’ should be defined, but there our opinions. The more primitive the within the broader community are few who would argue that the community the less freedom of thought about a profoundly important incitement of hatred is an exercise and expression is it likely to concede. and controversial issue. of free speech. Rather, the incitement Liberty Victoria argued that of hatred is the use of speech to That is my view too, and it is the Government’s proposal to provoke social disorder; it belongs the principled approach which omit “offend” and “insult” was in the same category as other the Government will take to the desirable, but wanted the prohibition public-order based prohibitions finalisation of its reforms to of “humiliate” retained. It welcomed on incitement. section 18C.

VBN 27 Repeal of Laws by Stealth, says news and views news Shadow Attorney-General

THE HONOURABLE MARK DREYFUS QC MP, SHADOW ATTORNEY-GENERAL

vigorous debate is (i) to a person; or presently being waged over (ii) to the property of a person; or the Abbott Government’s proposed repeal of the (iii) to the members of a group of persons. protections against hate The Attorney-General’s claim that his proposed speech in the Racial law would see racial vilification proscribed in a Discrimination Act 1975 (Cth). Commonwealth statute for the first time is simply Though the Attorney-General is unable to name a misleading. single community group which supports his proposed We should be clear about what the Brandis proposal Freedom of Speech (Repeal of s 18C) Bill, he does have entails: the complete evisceration of our federal hate theA support of a small but vocal libertarian cheer speech laws. The noisy minority behind the changes squad. This noisy minority is armed with an ideological are certainly under no illusions as to their effect. Chris certainty better suited to a first-year university debate Berg of the Institute of Public Affairs said the proposed than a nuanced discussion about race, dignity, and the amendments are “a magnificent example of how to repeal character of our national life. They preach a free speech legislation without admitting you’re repealing legislation”. absolutism which is alien to our liberal democracy, and While the proposed laws apparently borrow from seem oblivious to the well-justified and long-established existing state anti-vilification statutes – they are a retreat restrictions on speech that include the law of defamation, even from these limited protections. aspects of trade practices legislation, and offensive The definition of “vilification” in every state and territory language provisions. which has such a law already goes well beyond that Senator Brandis has ostensibly distanced himself proposed in the Commonwealth government’s exposure from this rhetoric. When he announced the release draft. The Racial and Religious Tolerance Act 2001 (Vic), for of his exposure draft, he said that his proposal would example, prohibits not only “conduct that incites hatred”, but “strengthen the Act’s protections against racism, while at also conduct that incites “serious contempt for, or revulsion or the same time removing provisions which unreasonably severe ridicule of” a person. As does the current federal Act, limit freedom of speech”. He claimed that his law would it contains a provision stipulating that race need not be the contain a new prohibition against racial vilification, only or dominant reason for the conduct. Senator Brandis “sending a clear message that it is unacceptable in the would repeal this provision, too. Australian community.’” The insistence by the government that they oppose A closer look at the government’s exposure draft makes “vilification” is disingenuous. However narrowly Senator it difficult to take the Attorney-General at his word. Brandis wants to define the term in his legislation, the The crux of the proposed legislation is as follows: Oxford English Dictionary holds “vilify” to mean “[to] (1) It is unlawful for a person to do an act, otherwise than in depreciate with abusive or slanderous language; to private, if: defame or traduce; to speak evil of”. Clearly it is this type of conduct, when pursued on the basis of race, (a) the act is reasonably likely: which the present provisions prohibit. It is hard to (i) to vilify another person or a group of persons; or imagine any conduct which would “incite hatred against a person” because of their race which would not also (ii) to intimidate another person or a group of persons, and be “reasonably likely” to “offend, insult, humiliate or (b) the act is done because of the race, colour or national or intimidate” a person on the basis of their race. Section ethnic origin of that person or that group of persons. 18C is the Commonwealth’s racial vilification provision. It already prohibits what Senator Brandis considers (2) For the purposes of this section: “racial vilification”, alongside other categories of hate (a) vilify means to incite hatred against a person or a group of speech which his law would permit. persons; Similar violence is done to the meaning of “intimidation”. Justice Bromberg noted in the Bolt case (b) intimidate means to cause fear of physical harm:

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that “[t]he word “intimidate” is apt to We should be clear about what the Brandis proposal describe the silencing consequences entails: the complete evisceration of our federal hate of the dignity denying impact of racial prejudice as well as the use speech laws. of threats of violence”. Senator Thankfully, it does not appear in April, “we are not Ancient Brandis, however, expressly restricts that the wider community has been Greeks debating philosophy”. the term to little more than what is fooled by Senator Brandis’s rhetorical The widespread outrage in the already covered by the general law sleight of hand. The government’s community about the Government’s of assault. Perversely, it reduces the opaque “consultation” has received proposed changes are evidence social scourge of racism to a matter many thousands of submissions that this issue speaks to the lived of physicality. from the public, the great majority experience of many Australians. It is concerning that Senator Brandis of which I believe oppose the Our laws are not just technical is claiming that his proposed gutting Government’s plan. Senator Brandis documents. They set the standard of the race hate protections in is welcome to correct me on this for the way we treat each other. the Racial Discrimination Act is point, but although the Government They say something about the sort taking a stand against racism. Even touts its commitment to free speech of society that we aspire to. Though more concerning is the claim that and open debate, it has refused my most Australians will never read the the government is striking a fair repeated requests to release the Racial Discrimination Act, all will balance between tackling racism and submissions. have understood the message the protecting free speech. The breadth A good sense of community feeling government is sending. I truly hope of the government’s proposed “free can be gauged from those submissions that Senator Brandis withdraws his speech” exemption in the proposed which have been put on the public proposal in light of almost unanimous legislation puts the lie to this pretence: record by their authors. The Law community opposition, but the (4) This section does not apply to Council of Australia opposes Senator spectacle of our country’s first law words, sounds, images or writing Brandis’s proposed Bill on the basis officer proudly asserting the “right to spoken, broadcast, published or that it “risks diluting the existing be a bigot” in our national Parliament otherwise communicated in the course protections available to those seeking will not soon be forgotten. of participating in the public discussion redress from racial vilification”, uses of any political, social, cultural, “terms that are defined in ways that religious, artistic, academic or do not align with analogous State and scientific matter. Territory provisions or Australia’s obligations under international It is hard to see why there is law” and contains an overly broad even a need for a free speech exemption provision. Liberty exemption to the narrowly-drawn Victoria, an organisation notably prohibitions Senator Brandis is fond of free speech, said the Bill proposing. Exactly what sort of should be rejected as it “defines incitement to race hate or physical vilification and intimidation in intimidation does the government terms far more limited than their seek to protect in the name of free generally accepted meaning”, and speech? Nonetheless, the new the breadth of its exemption provision exemption is dramatically broader is “so great as to be ridiculous”. The than the present provision. Executive Council of Australian Jewry Crucially, the new provision put it succinctly when they said that removes the current stipulations “no case has been made” for changing in s 18D that exempt speech be the Act, noting that the Government “reasonable” and “in good faith”, had not engaged in any “formal the requirement that Andrew process of consultation with the Bolt failed to satisfy. In his zeal to Australian people”. condone Bolt’s articles, which were While Senator Brandis likes to not protected under 18D due to Bolt’s talk loftily of Voltaire and Mill, errors of fact, distortions of the truth he should not forget that this is and inflammatory and provocative not just some abstract debate. language, Senator Brandis’s proposed As one person put it to me at a changes would protect all manner community forum in Melbourne

photo courtesy of paul west of paul courtesy photo of hateful demagoguery.

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Sir Ninian Stephen speaking at the opening of Ninian Stephen Chambers, in 2012. Ninian Stephen at the Victorian Bar

PHILIP AYRES*

here is no figure in Australian legal relevant to the interests of this journal.1 history—John Latham, Owen Dixon and The law was not Stephen’s first choice of profession. H. V. Evatt included—who undertook That was diplomacy. In early 1940 he arrived in high-level extra-legal work as wide- Melbourne from Switzerland at the age of 16 knowing ranging as that undertaken by Sir Ninian nobody in Australia, in company with his mother Stephen following his departure from and Nina Mylne, his benefactor, a woman who lived the High Court in 1982: Governor-General, diplomat, on wool cheques from her family’s vast properties in mediator in Northern Ireland, founding member of the western Queensland. Born near Henley-on-Thames first war crimes tribunal since Nuremberg and Tokyo, in June 1923 of Scottish parents, deserted by his father and head of UN and Commonwealth missions to crisis at the age of three weeks, a seemingly unpropitious Tzones from Cambodia to Burma to Bangladesh. It’s not start, Stephen had nevertheless been educated at the for nothing that he holds five knighthoods. In this article, best schools in Scotland, England and Switzerland, at however, my focus will be on his life at the Victorian Bar, Miss Mylne’s expense. From her he had acquired his because that is the period least well known and most interest in diplomacy, history and politics, though not the photo courtesy of david johns of david courtesy photo

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attachment to extreme-right politics the University while doing articles It was a tight little room because she manifested in the 1930s (she was not regarded as the best—the he shared it with two others, Ivor took the 15-year-old boy to the 1938 ideal was a full-time commitment Greenwood and Ted Woodward, Nuremberg Rally, for example, where to a law degree, with articles done Stephen’s first significant friends at over several days her connections subsequently—but it provided the Bar, both younger than him. All ensured they enjoyed the best seats an income and the security of a three were on the road to success. in the various stadiums). connection with a top law firm. It Ted Woodward, ex-Melbourne Stephen spent 1940 at Scotch led to work as a lawyer but not to a Grammar, was 23, his appointment as College, matriculating at the end of degree in law, unless one did extra QC 13 years ahead, 25 to his director- the year, with no idea what he would law subjects at the University in the generalship of ASIO (which he would do. Miss Mylne was trying to talk him final year, which was what Stephen subject to much-needed reform), into journalism or the law. A friend, would do—but not until 1949, for he twenty-five years to his appointment John Andrew, who had left school spent 1942–1946 with the 2nd AIF. In as a Federal Court judge. He would the previous year, was working as an 1949, with his law degree now behind be one of the chief proponents for articled clerk at Arthur Robinson & him, Stephen asked Justice Arthur Aboriginal land rights through the Co., Solicitors, and Andrew suggested Dean, the father of a friend, to write a late 1960s and 1970s. Ultimately he he apply for a job as office boy there reference backing his application to would be offered but decline the while deciding what to do. That join the diplomatic corps, which in the governorship of Victoria. seemed half-reasonable—pocket event was turned down. Diplomacy Ivor Greenwood had attended money, a little independence. His would have to wait till much later. State schools and Scotch College. He career was born of chance. n 1950, following his admission was a sober 25-year-old, an idealistic He started at Arthur Robinson’s to practise, Ninian continued Christian uninterested in making in that menial role, for ten shilling to work for Arthur Robinson money. Following graduation he had a week, doing odd jobs and working & Co. as one of their solicitors. been associate to Sir Frank Kitto the switchboard. Having given Wesley TheI work was regular and the pay and then to Sir Owen Dixon, both on Ince (a partner in the firm) three guaranteed—useful with a wife to the High Court of Australia, and was wrong lines in succession, he was support and a child soon on the fresh to the Bar. Although strongly told to “Go and test your skills in the way. He specialised in company law anti-communist, the previous year great world outside, and collect my but did a range of work, much of it he had publicly opposed Prime cigars from Dammans”. Returning boring, a continuation of the things Minister Menzies’ unsuccessful with Jamaicans instead of Cubans, he had done as an article clerk. referendum push for the banning of his hopes of making headway in Then, in January 1952, after careful the Communist Party of Australia, that firm seemed dashed. “Lad, if thought and discussion, he took the an anti-democratic move with you can’t tell a good cigar from a risky but ultimately profitable course which Stephen was also in strong mediocre one”, Ince exclaimed, of leaving Arthur Robinson and going disagreement—Stephen refused “what earthly use could you ever to the Victorian Bar, a much smaller on principle to join the Returned be in the more specialised field of place in those days, with fewer than Servicemen’s League because they legal practice? Oh well, never mind, 200 in active practice. Douglas M. would not admit returned men who perhaps you can get this right—go up Little (later Sir Douglas Little of the were communists. Greenwood had 16 to the Athenaeum Club and collect Victorian Supreme Court), a senior years to go to his entering the Senate, the bottles of port they have waiting junior, had invited Stephen to read 19 years to his appointment as for me.” That errand was completed with him. Subsequent to the six Federal Attorney-General, 20 years without mishap, producing on Ince a months Stephen spent with Little, to his inviting Ninian to join the High noticeably surprised sense of relief. he moved into tiny chambers in Court, 24 years to his death from a Stephen’s confidence gradually Saxon House, Little Collins Street—“a heart attack. As a young barrister he increasing, he soon applied to study room”, as he later described it, “just was specialising in commercial and law at the University. Accepted, he large enough for three desks if you local government law, two among the began a five-year course in February didn’t mind having to crawl under fields Stephen preferred. 1941, at the same time commencing your desk to get to your seat, back They were not long together at articles with senior partner George hard up against the wall, when you Saxon House because Stephen Forrest Davies, who with Arthur heard a solicitor-like footstep in the was soon offered a room in nearby Robinson had founded the firm. This corridor outside. But it was paradise Selborne Chambers, Robert parallel process of studying law at to the utterly homeless.” Menzies’ old room facing onto Little

Lad, if you can’t tell a good cigar from a mediocre one”, Ince exclaimed, “what earthly use could you ever be in the more specialised field of legal practice?

30 VBN VBN 31 Collins Street, by its occupant John at the Victorian Bar by not being Melbourne, though his foundations McIntosh Young (another former embedded in Melbourne life and were so utterly different from associate to Sir Owen Dixon, and establishment circles, and by not those of his contemporaries. It’s

news and views news later Chief Justice of the Victorian being highly credentialled in the unsurprising that some of those Supreme Court), whose doctors had law. While he had spent a year at with whom he shared chambers recommended a year in bed due to Scotch College, he had no cluster of in the 1960s, notably Ivor Greenwood a relapse of tuberculosis contracted Melbourne private-school friends, no and Brian Shaw, were unconventional during the recent war. Menzies’ room years of playing or watching football, and highly individualistic men, still had his name on the door and no membership of the Melbourne though they possessed some of contained his old bookcases and Cricket Club, no summers spent the credentials Stephen lacked. many of his books, some of which at Portsea or Sorrento, Barwon Of reported cases in which Stephen later purchased. Heads or Lorne, while on the legal Ninian Stephen appeared, and Built in 1881, Selborne Chambers side the articled clerks course was of the opinions he wrote, the ran between Little Collins Street considered by many as a second- earliest date from 1952–53. One and Bourke Street and was entered best entry into the law. He had not or two of his earliest opinions at either end. A wide central hall or had the student years at Melbourne bear annotations in John Young’s passageway, two storeys in height, University Law School, or the unmistakable handwriting—Young ran the entire length. Along both relationships developed through inserts references to cases Stephen sides of the lower or ground-floor life in the University’s residential has overlooked, and alters or part of this great passageway ran a colleges (Trinity, Ormond, Queens rearranges what Stephen has written. line of Gothic arches behind which and Newman), or—perhaps most Presumably these date from shortly were the lower-level barristers’ particularly—the “anointing” effect of after Young’s return to chambers, chambers. A saw-tooth roof high an associateship with Sir Owen Dixon and they clearly reveal Young as above the passageway admitted or other High Court judges. It was one of Stephen’s mentors. The light. The upstairs rooms gave onto not that Stephen felt at an enormous two had several things in common, galleries running along either side disadvantage, and he was comfortable including having studied in Britain (Young at Oxford). Collegiality was enhanced by the almost startling Both spoke German, Young fluently. openness of the interior, barristers calling across to In the late 1930s Young’s father had been in charge of the Australian one another from the upstairs galleries or down to operations of Norddeutscher Lloyd friends below. and Hamburg Amerika Line, and in 1938 had sent him at the age of 18 to of the central passageway, and the enough with his unconventional Germany to gain experience in the two sides were linked by cross-over background. His schooling had more Hamburg offices. As John Young had bridges. Because the Little Collins educational and social cachet than spent much of 1938 and the first half Street end of the building was lower any Antipodean school could provide, of 1939 living in Hamburg, both he than the Bourke Street end, the but scarcely any of his acquaintances and Stephen had been in Germany building was stepped-up halfway had heard of the Edinburgh Academy at the same time, though Stephen for along its length. Collegiality was or St Paul’s, or could name a private much shorter periods. Sir John told enhanced by the almost startling Swiss international school let alone me he had no idea war was about to openness of the interior, barristers afford one. In any case it appeared break out until sometime in 1939 his calling across to one another from as a point of difference rather than friends in England started writing the upstairs galleries or down to connection with others in Melbourne. “Get out of there!” By the time war friends below, and there was constant It was clear to everyone, then, that did break out Young had enlisted in commingling and discussion along he was not on a familiar, established, the Scots Guards and in 1941 was the passageway. The chambers were already-charted pathway. These in charge of Rudolf Hess’s guards heated by their individual fireplaces, differences made it all the more when Hess tried to escape at Camp and their floors remained uncarpeted notable that he fitted in so well Z in Surrey. Through the second half in the 1950s. Unlike the later and to these circles, perhaps because of 1944 and early 1945 Young had sterile Owen Dixon Chambers, of a boyhood and adolescence fought with Montgomery’s forces Selborne Chambers was built for of repeatedly adjusting to new in northwest Europe, being twice an organic professional corporation environments and peer groups. mentioned in despatches. He and and enhanced it. His adaptability meant that by the Stephen concentrated on similar To an undefinable but significant 1960s he could appear to be entirely areas of the law and over the years extent Stephen was handicapped embedded within the legal world of ahead they would appear together

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in numerous cases. Young, whose He was one of the busiest non-QCs at the Bar, but he tailored suits were always of the finest cut and fabrics, was likewise always seemed able to stop and take time to discuss my meticulous in preparing his cases, cases if I had a problem. and his influence on Stephen’s work as a commercial barrister was Banks, and a host of lesser companies. In 1961 Stephen had moved into considerable. In several instances the barrister who the new Owen Dixon Chambers at From around 1955 Stephen’s suggested Stephen as his junior in 205 William Street. His room was work in company law began to these early years was Keith Aickin, on the fourth floor at the north- increase rapidly until by the 1960s formerly an associate of Sir Owen eastern corner of the building, next it was dominating everything else. Dixon and, back during the war, Third to Ivor Greenwood’s, and they shared Between 1952 and 1970 he wrote Secretary at the Australian legation in a secretary, Miss Davis (no first- around 130 opinions in this one area Washington where Dixon had been name terms in those days), who was alone, considerably more than he Australia’s Minister to the United accommodated in a cubicle carved wrote in any of the fields of contract, States. Aickin became a QC in 1957 out of the inner end of Stephen’s constitutional law, commercial law, and would later serve on the High room. There was no air-conditioning, equity, probate, trade practices, Court with Stephen. so over summer the barristers income tax, stamp duty, and the In my biography of Stephen I opened the windows and rolled up numerous other areas in which he examine in detail many of his most their sleeves. Visitors would typically felt comfortable to work. His opinions interesting cases, combing through find Stephen with his feet up on his were sought because they were the Victorian Law Reports and giant desk as he leaned back in his succinct, generally proved right, and Commonwealth Law Reports for the swivel chair drawing on his pipe—a were not expressions of his doubts— interesting light they so often throw safe substitute, he thought, for the he knew his clients were not paying on his advocacy, the effectiveness cigarettes he previously smoked and him for that. of which was enhanced by his still regularly borrowed from others. In 1959 Stephen acquired his first pleasingly urbane delivery, to the A leading solicitor would wander in reader, Brian Shaw, and from then extent that it was impossible to for advice on some complex taxation on there were many: John Batt, Neil imagine any judge becoming annoyed arrangement, for instance Arnold Brown, Garth Buckner, Charles or angry with him. Bloch. Stephen, feet up on the desk, Coppel, Bill Gillard, Peter Murley, n the 1960s Stephen became would let him go into the vexed John Monahan, Tim Smith, and Adrian a member of the Liberal Party details, avoiding anything much in Smithers. There were many because of Australia, a reflection of the way of comment himself, nodding Stephen did not take silk until his individualist character and sagely and saying “I think you are relatively late, at fourty-three in 1966. outlook,I and some of his friendships right, Arnold”, or “Yes, that must Neil Brown (later Federal Attorney- (including with Ivor and Lola be right”, before finally, perhaps, General) recalls that “Stephen always Greenwood and Alan Missen). throwing out a possible solution, helped me immensely. He would Stephen was never particularly while never claiming superior simply stop working on whatever task political, and though he played no knowledge. he had before him and concentrate active role in the Party, his act of Stephen’s fourth reader, John on my small problem and issue joining it was significant. There was Batt, later on the Victorian Court until it was resolved. He was one of never anything “Tory” about Stephen, of Appeal, was struck by Stephen’s the busiest non-QCs at the Bar, but he was more a libertarian, and in advice on the pleading of a difficult he always seemed able to stop and those days the Party of Menzies was statement of claim: “Just tell the take time to discuss my cases if I a small-l liberal party rather than story”. He was impressed too by had a problem.” That was in 1964, by a conservative party. He was also Stephen’s courtroom manner under which time Stephen was among the a member of the Melbourne Club, fraught circumstances. One day top two or three commercials at the elected in September 1963—his they independently had briefs in Melbourne Bar, with close links to proposer was John S. Bloomfield, the Practice Court before Justice major Australian industrial concerns a one-time lawyer, Minister for Dean (who in 1961 had sentenced such as Broken Hill Proprietary, Education in the Bolte Government, Robert Peter Tait to death): “Mr Carlton & United Breweries, Colonial ranked sixth in Cabinet; his seconder Justice Dean in coming into court Sugar Refining Company, Imperial was Charles S. Booth, Chairman of sharp at 10.30 a.m. had found it Chemical Industries, Australian Paper Australian Paper Manufacturers, empty. He adjourned the Court to the Manufacturers, Associated Pulp and Australia’s largest pulp and paper following day. When counsel arrived Paper Mills, Ansett Group, Mobil, concern and one of Stephen’s most he was asked to return. He did so, Esso, Shell, News Ltd, ANZ and ES&A significant clients. unwillingly, and he required an

32 VBN VBN 33 explanation. Fortunately Ninian was Stephen, feet up on the desk, would let him go able to say that he had been caught in a train delay in the Jolimont yards, into the vexed details, avoiding anything much in

news and views news ‘as I imagine my learned friends the way of comment himself. were’. He put the case charmingly Stephen’s junior over an extended and R. K. Todd, each of them once. in his mellifluous voice, soothed the period of arbitration work. In 1968 In the reported High Court cases his judge’s annoyance, and saved the a dispute arose between the Gas juniors were G. A. N. Brown, James rest of us from having to give any and Fuel Corporation and Snam Gobbo (later on the Supreme Court, explanation.” Progetti, constructor of a steel and then Governor of Victoria), the Batt later learned that Valery pipeline to carry natural gas. Costs outstanding S. E. K. Hulme (three Stephen was a close friend of one of construction had blown out due times), P. A. Liddell and Clive Tadgell of Sir Arthur Dean’s daughters, to the steel welds of the pipeline. (twice). His admiration for Hulme Ursula, but the point was that Stephen and Charles were acting for and Tadgell reflected their abilities “Ninian appeared nerveless”. the Corporation, Daryl Dawson for and Stephen’s sense of affinity with Stephen was appointed a Queen’s the contractor. “It was an immense them. Of his reported Victorian cases Counsel on 29 November 1966—his pleasure being led by Stephen”, while he was QC he won seven out colleagues thought it odd that he Stephen Charles later recalled. “He of nine, and he won seven out of the had not taken silk earlier. He also always exhibited perfect unruffled nine reported for became a member of the Victorian Scottish calm.” The only difficulty the High Court too. The worst any Bar Council, and in a part-time arose in conferences with clients. judge ever said of his arguments capacity gave lectures in property “Whenever Stephen addressed me, was said by Justice George Lush, law within the Law School at Monash as he often did in conference, others and one can almost hear him say it: University, where he also sat on the present were frequently left with in his opinion there was “no Faculty Board. the impression that he spent a great justification for the approach Nevertheless, “many thought deal of time talking to himself, and contended for by Mr Stephen”, and Ninian had no serious interest in the naturally assumed that a person as for the cases Stephen had cited, law”, as Bill Ormiston, a barrister at of such distinction would address “In my opinion none of them lends the time and later on the Victorian himself formally.” support to Mr Stephen’s argument”. Court of Appeal, bluntly notes, and On another occasion, 29 June 1970, Not a single one. that observation is borne out by Ross in the midst of the work they were His period as a barrister was Robson (whenever, as associate to doing together, Stephen rang Charles probably the most satisfying of Stephen on the High Court, he and and invited him to his chambers. Stephen’s life and he missed it when Stephen were together on a trip, Charles’s expectations of a pre-short- it was over, as he later recalled—“that Stephen talked history, never law). vacation drink or two turned out to intoxicating mixture of tension “It was his ability to take in and be off-mark. “I’ve been under a lot and excitement on the eve of each understand difficult principles which of pressure recently”, Stephen told case, something that never wholly placed him at the forefront of the him, “and I’m going across the road”. leaves you, however many cases you Bar and it was this that his leaders By that he meant “I’ve been offered have fought; then that comfortable valued so greatly”, Ormiston points a position on the Supreme Court satisfaction when you have written out. As an example he cites the time and I am leaving you in the lurch”. the concluding part of an opinion; he went to Stephen’s home in Burke The Bolte Government made the and the even more comfortable Road “at about nine at night in a appointment the very next day, 30 satisfaction when you write up your case involving issues of landlord and June 1970. fee book at the end of the day.” tenant law. He had had at least two In cases reported in the Victorian conferences on other issues late that * Among his numerous books, Dr Philip and Commonwealth Law Reports Ayres is the author of two major judicial day and he had no time to look at the across the four years of Stephen’s biographies, Fortunate Voyager: The brief until his junior in another case Worlds of Ninian Stephen (Miegunyah/ work as Queen’s Counsel, from left at about 8.15 p.m. Nevertheless, MUP, Carlton, 2013), and Owen Dixon 1966 until his appointment to the (Miegunyah/MUP, Carlton, 2003). He by the time I conferred with him, just Supreme Court of Victoria in mid- is a Fellow of both the Royal Historical after nine, he was on top of all issues Society (London) and the Australian 1970, his juniors in the Victorian including some difficult points of law, Academy of the Humanities, and was a cases were H. Ball, John Batt, J. B. recipient of the Centenary Medal (for which I had spent most of the day Bingeman, Daryl Dawson (later on services to literature) in 2001. preparing.” the High Court), M. N. O’Sullivan, 1 The facts presented in this article are Stephen Charles, then a barrister G. H. Spence (later on the Victorian sourced and documented in the notes and later on the Victorian Court of of my biography Fortunate Voyager: The County Court), Clive Tadgell (later Appeal, had the pleasure of acting as Worlds of Ninian Stephen (Miegunyah/ on the Victorian Court of Appeal), MUP, Carlton, 2013).

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Ashley Halphen braving a Mongolian chill. A MOMENT IN MONGOLIA Breaking the Ice

ASHLEY HALPHEN

s we were about to belt signs were turned off, only a few put on their jackets. land, planet earth had “There must be more to it”, I thought. “Perhaps life transformed into a mass was entirely lived underground”, I hoped. I exited the of white, sliced up by a plane in the same clothes I had worn when departing few black wavy ribbons Melbourne…in anticipation. that I presumed were I made it from aircraft to airport and from customs to roads. A flight attendant broadcast the usual final baggage claim. With each next step I was waiting to turn announcements - all I heard were the words, “it is into a human ice block. My pick-up was there. I walked currently minus 35 degrees”. cautiously to the exit point. On approach, I realised my Once again, I surveyed my immediate surrounds, worst fears - no full time heated underground world. In lookingA for clues from my co-passengers, clad in ordinary the instant I stepped outside, I had to bend over to claim casual clothing. They all seemed so relaxed. How did composure as my body was immediately racked in the they exist in such an extreme climate? When the seat grips of my virgin breath of fresh air.

34 VBN VBN 35 Host-mother was listening intently while rubbing a lace of beads to cultivate eternal youth. Host-brother was rolling a quartet of sheep ankle bones like dice. news and views news

The spectrum of colour was still environment imploding in theory ears and buried my gloved hands deep black and white. The only sound was at the purest level of abstraction into my pockets. I trudged beside the the crackle of crushing ice as the - no clients calling from prison icy black, oil-caked streets. Motorists, wheels of my taxi slowly approached desperately seeking bail here. as usual, accelerated each time I Ulan Bataar, or ‘UB’ as the locals Mongolian law reform has had to crossed an intersection. In this winter refer to their capital. react swiftly to a new political regime. of discontent, the chill smacked I had managed to put on a jacket There is no time for the gradual against my face, biting my nose and and gloves by the time I climbed evolution of common law precedent. cheeks and causing miniature icicles four flights of a naked, concrete Passing new statutes involves to grow out of my nostrils. stairwell and knocked on the door locating international best practices When my face finally dug itself of my temporary home. It was like in a given field and transplanting the out of the scarf it was buried in, walking into a Christmas tree - model to Mongolia. I saw rations of coal being sold on colour had returned. In a population that boasts 207 the roadside. The council workers It was so cold under the ground cloudless days a year, 30 per cent in their orange fluorescent vests and so cold above it...so cold even live the same nomadic lifestyle who chip at ice with shovels to make the stone walls said so...dare to stand as those roaming the wilderness way for concrete-bearing pavements still when the mobile rings...have during the Chingiss Khan1 era. had disappeared. I was in the Ger the audacity to somehow reach a Scientific findings estimate that District…nomads’ land. sweat and Mother Nature will freeze 17 million people across Eurasia Nomadic life is both a history eyebrows...engage in conversation are descendants of Chingiss and current affair of movement. with a friendly stranger and fall prey Khan, history’s ultimate medieval Consistent with this lifestyle is the to the bare skinned hand shake rule superpower, who founded an empire ger, a portable home used by nomads of etiquette…have the need to step that stretched to the heart of the who carry the dismantled parts on inside a sauna heated building and European continent. This momentous camels or yaks to greener pastures begin the ritual of peeling off layers event marked the foundation of the for breeding and raising livestock. of clothing…have the inevitable need state of Mongolia. It comprises a crown and a wooden to return into the urban wilderness Although still one of Asia’s poorer circular lattice frame covered and undo what has just been done. countries, many living on a dollar a by woollen felt for insulation. And so it went on… day, Mongolia is currently considered The structure stays upright Mongolia, capped by Russia one of the world’s most important by the weight of these covers. and heeled by China, is the most new democracies. But if you think After the fall of communism, the sparsely populated country in “Lone Warlord Rangers riding nomads came to town under the glow the world. Formed in the 12th shaggy horses are galloping off into of a democratic rainbow. The city has century, her boundaries, political a utopian democratic sunset”…then not managed to absorb the increasing systems and culture have bounced have another cup of tea…. rate of numbers, leading to ger between neighboring courts. For On one morning of importance, settlements forming and circulating the better part of the 20th century I woke up to the ripping tunes of around the entire boundary of the communism was the nation’s anthem. Tibetan-Buddhist prayer, aired live metropolis. By 1992 Mongolia had become an from the Gandan Monastery. Host- Spanning across rugged, sharp independent, democratic republic mother was listening intently while sloping terrain, these districts mingle and the ball seems to have now rubbing a lace of beads to cultivate in the horizon with neighboring stopped bouncing. eternal youth. Host-brother was factories that belch out enough smoke I had to take off my gloves, inner- rolling a quartet of sheep ankle to blanket the heavenly sky. Up close, outer gloves and inner-inner gloves, bones like dice. wire grows from the unpaved roads when I stepped inside the National Outside, the air was crisp but like weeds. People are bereft of the Legal Institute of Mongolia. I could not clear. No matter, so long as it ordinary amenities associated with then more readily dismantle my remained completely still. How urban life. Alcoholism is rampant, hood, beanie, balaclava and neck fortunate that winter is without wind. unemployment is high and theft is warmer. Scarf and jacket were last It was strange walking in the dark. part of life. The area stirs up grim to leave. Here I met my supervisor I felt like I had not been to sleep. visions of a shantytown. In this sub- and her team. I was surrounded I zipped up my jacket, fastened my zero, frozen world, I came face to face by intellectual giants in a research scarf, pulled my hat tight over my with a chilling level of poverty.

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The George Halphen Scholarship supports 20 gifted local secondary school students in Mongolia living in poverty.

At a central point I met up with mother and four children sitting on a others. Together we were going to dilapidated couch stricken by poverty. visit a pregnant mother and her four What would become of this family? children, aged between two and 11. Mother of the family smashed a They were living in crisis. Father had frozen brick of tea with a makeshift abandoned his family, leaving only hammer. She then scattered the tea scraps from piled trash to eat. dust into the boiling water on the We used a special vehicle to navigate stove, poured in milk and sprinkled a through almost inaccessible terrain. few tablespoons of salt into the mix. I The narrow, windy and snowcapped sipped the liquid product reluctantly. roads had sharp gradients fit only for The children received their Herculean skiers. We crunched past new heavy warm jackets with the Captions: rows and rows of sagging fences until same thrill as having just been we arrived. given an entire lifetime’s worth of There was a clothes line outside. Christmas presents. I did not need A nomadic family in Mongolia The clothes on the line were frozen. A to see anymore. What I had been receives a gift of winter jackets. mangy dog with lumps growing over contemplating as a possibility was its eyes barked as we approached. now inevitable. A meeting was their school aged peers and have The door knob was a nail. The ger arranged… equal exposure to the available was slightly bigger than a walk-in Fast-forward to one year later… school curriculum. Gifted by the wardrobe. We moved in a clockwise The George Halphen Scholarship nourishment of education, they have direction from the door which always supports 20 gifted local secondary every opportunity to one day make faces south towards the fossil rich school students in Mongolia who formidable contributions to their Gobi desert. The only light was from live in poverty and would not respective communities. the smoke hole that poked through the otherwise be fully absorbed into The Scholarship will continue until centre of the roof. A pot of dirty water mainstream public education. all participants graduate from high sat on the cast iron stove, the heartbeat Students are expected to pay for school… of this circular domicile. transport, stationery, text books and Please contact Ashley Halphen if The children wore threadbare the like. Special school programs are you would like more information about clothes suited more for the tropics also expected to be paid privately. the George Halphen Scholarship Fund. than a sub-zero climate. There were The Scholarship ensures that 1 Readers may be more familiar with the no books or toys, just a pregnant participants are equally placed with common spelling, ‘Genghis Khan’.

36 VBN VBN 37 news and views illustration by guy shield/the slattery media group 38 VBN news and views

Dying with Dignity

THE HON STEPHEN CHARLES QC

Deficiencies in the Current Law some other cause. Attempted murder might also be an The doctor who treats a patient who is terminally ill, appropriate verdict when a patient did not die after a life- or suffering intolerable pain is faced with very serious threatening medication was prescribed with the intention problems of complying with the law while respecting of hastening death. Manslaughter is a possible verdict patient autonomy. There is now legislation which if the doctor’s actions amounted to an act of criminal specifically permits assisted suicide or euthanasia in negligence, and the verdict is always open to the jury if several American states, the Netherlands, Belgium, they are simply reluctant to come to a verdict of murder. Luxembourg and Switzerland. None of these jurisdictions have provided any evidence to support the objections of Aiding and Abetting those who oppose a change in the law. But neither the A person who aids, abets, counsels, or procures the Australian Government nor that of any Australian state commission of an indictable offence may be punished has shown any willingness to reform the law concerning as a principal offender. The words “aiding and abetting” suicide. require presence at the scene of the crime, but At the outset it is necessary to lay out some basic legal “counselling and procuring” do not. The words are very propositions concerning homicide. wide. To be a principal in the second degree, the accused must have taken some part in the offence or acted in Murder concert with those who committed it. Aiding and abetting Murder occurs when a person by any deliberate and means helping the accused to commit the crime, or unlawful act causes the death of another person. A killing intentionally encouraging – which can happen by word of may be lawful – say in an execution, or in an act of self- mouth or simply one’s presence and behaviour. What is defence. The act will be murder even though the other required is conveying to the principal accused by words consents, or was already dying or near death. It matters or behaviour that the aider and abettor is assenting to and not that the other’s death was imminent. Nor does the concurring in the commission of the crime. Counselling act become lawful because the person responsible, if a requires just that, but it is not necessary to show that the doctor, believes he or she was acting in accordance with counselling was a substantial cause of the commission of the wishes of the patient (or patient’s family) or because the offence. the doctor thought that the patient had only hours to live. In the case of Croft1, there was a suicide pact, As to intent, the mens rea, if a person does an act causing where one committed suicide in the absence of the death knowing that it is probable that the act will cause other. The other was tried as an accessory and found death, the actor is guilty of murder even if indifferent guilty of murder. as to whether death is caused or not, or even if the actor wished that death might not be caused. There is no Suicide special defence for doctors. Suicide has not been an offence in Victoria since 1967. But if there is a suicide pact and the survivor caused or Attempted Murder and Manslaughter was a party to causing the death of the other by a wilful If a doctor is charged with murder after the death of a act or omission in pursuance of the pact, the jury may patient for whom the doctor had prescribed medication, convict of manslaughter. at least two alternative verdicts must be considered. A verdict of attempted murder would be open to the jury if, Suicide (Assisting or Inciting) say, it were impossible to determine how the patient died, The 1997 amendments to Victoria’s Crimes Act provide whether because of the medication prescribed or due to that any person who incites another to commit suicide,

38 VBN VBN 39 One of the best known is Dr Bodkin Adams. the terminal stages of her illness. He was not the best standard bearer for the medical She refused all treatment, asking only that her pain and suffering news and views news profession. In the opinion of many he was an be relieved. Dr Cox injected Mrs unconvicted mass murderer. Boyes with potassium chloride which had no pain-relieving value or aids or abets any other in the the United Kingdom. One of the best and could only cause death, as it did. commission of suicide or in an known is Dr Bodkin Adams. He was Dr Cox’s actions were reported by attempt to commit suicide, is guilty not the best standard bearer for the a nurse with a contrary moral view, of an indictable offence and liable medical profession. In the opinion of after the event. Dr Rodney Syme, on conviction to up to 5 years’ many he was an unconvicted mass dealing with Dr Cox’s case in a paper4 imprisonment. murderer. Between the years 1946-56 argued that: There is authority that a person more than 160 of his patients died who supplies a booklet which under suspicious circumstances, Had Cox injected Mrs Boyes with contains material capable of assisting and 132 of them left him money or a lethal dose of a sedative such as a person to commit suicide does other items in their will. Many of his thiopentone (a barbiturate), he not aid or abet the suicide unless it patients died after having been given would not have been convicted. He can be proved that the supplier of “special injections” of substances the was guilty of using the wrong drug, the booklet intended it to be used nature of which Dr Adams refused not of doing the wrong thing. No one by a person actually contemplating to describe to the nurses caring for suggested or believed that he had any suicide and with the object of his patients. His habit was to require intention other than to relieve Mrs assisting or otherwise encouraging nurses to leave the room before the Boyes’ suffering, of providing maximum the person, and that the person injections were given, and he would palliation. supplied with the booklet then read also hinder contact between patients This may be a medical or a moral it, and was assisted or encouraged by and their relatives. Dr Adams was view. But if it is intended as a legal reading it to commit, or to attempt to tried before Devlin J and a Jury3. proposition, I would, with respect, commit suicide2. Devlin J instructed the Jury that – disagree. Dr Cox was charged with If the first purpose of medicine, the attempted murder (because Mrs Recorded Cases restoration of health, can no longer Boyes’ body had been cremated King George V died on 20 January be achieved, there is still much for the before an autopsy could be 1936, peacefully at midnight. doctor to do, and he is entitled to do all performed, denying certainty as to Shortly before his death, the King’s that is proper and necessary to relieve the cause of death, which could have physician, Lord Dawson phoned his pain and suffering even if measures been her existing condition). He was wife to ask that she advise The Times he takes may incidentally shorten life. convicted and sentenced to a year’s to hold back publication. Fifty years (emphasis added) imprisonment, wholly suspended5. later on publication of Lord Dawson’s The General Medical Council merely This is one of the clearest notes, it became apparent that an reprimanded Dr Cox and allowed him expressions (if not the first) of the hour before the King’s death, Lord to continue to practise. “doctrine of double effect” but it may Dawson administered two injections There are several cases of suicide also be a case of “double intention.” of morphine and cocaine to ensure involving accused persons not of the In a recent debate in the Western the King died painlessly in time for medical profession in various States. Australian Parliament regarding the announcement to be carried Almost invariably the victim requested euthanasia, the Attorney-General by the Times “rather than the less assistance in dying and the result of rejected an argument based on a appropriate evening journals”. As Sir conviction was the imposition of a doctor palliating a dying patient Douglas Black, a past president of suspended gaol sentence. An exception by shortening his death with the the Royal College of Physicians, put is the N.S.W. case of R v Justins,6 the response that the doctor was simply it, Lord Dawson appeared to have dead person being one Graeme Wylie, doing his job and that this was not committed an “evil” act for the sake a former Qantas pilot. Wylie was euthanasia. The Attorney-General of a “marginal” good, a somewhat 72 and suffering from Alzheimer’s presumably had Devlin J’s words euphemistic description of his disease. He died from a lethal dose of in mind. In 1991, Dr Nigel Cox, a intention to ensure publication of the Nembutal. He had attempted suicide U.K. rheumatologist of exemplary death in The Times. by cutting his wrists six months earlier, character, had treated a woman, There are very few cases involving and had expressed a wish to go to Mrs Boyes, for progressive severe doctors for deliberately hastening Switzerland to die. The Nembutal rheumatoid arthritis for over 13 years. death in the last 50 years, none in had been obtained for him by Caren She was in very severe pain and in Victoria, two in Australia, and four in Jenning, who had travelled to Mexico

40 VBN news and views

for the purpose of buying it. It was dignity. Dr Gray was of course patient. In any inquiry following given to Wylie by Shirley Justins, his aware that the law would have death, the medical notes should long-term partner, and he voluntarily to be changed to allow these indicate the exact dosage given. drank it. There were serious doubts options to be pursued. Medical opinions may vary, others as to his capacity to make decisions, Option one involved a person may have a different view of the which caused the Swiss organization giving a signed and witnessed likely imminence of the patient’s Dignitas to refuse his application request to a pharmacist to provide death, and form an opinion that the for assistance in suicide. Justins was a lethal dose of Nembutal, which doctor’s primary concern must have convicted of manslaughter, which the the person would take home and been to hasten death rather than judge took to mean that the jury found consume. Suicide would occur. The merely to palliate. Or the doctor may Wylie lacked the capacity to make an pharmacist, as the law now stands, have the misfortune to be observed informed decision to end his life, and would probably be guilty of aiding by a suspicious nurse as in the case that Justins, in effect, must have been and abetting or inciting suicide and of Dr Nigel Cox. A chance comment aware of this. The judge imposed a liable on conviction to imprisonment. to a nurse or family member may sentence of 2½ years’ imprisonment The second option involved the support that view, that palliation was with a non-parole period of 22 months. setting up of an organisation, staff incidental to the main purpose. The A major factor in this was that Justins members of which would assist a doctor then runs the risk of a charge had changed Wylie’s will to provide person willing to commit suicide. of murder, or aiding and abetting much greater benefit to herself, and Upon request, the staff member, a suicide. Where the doctor has to exclude Wylie’s daughters from a with an independent witness, would actually administered the medication, previous relationship. slip a needle into the suicide’s veins by injection, a charge of murder In August 2009, the Chief Justice and set up an intravenous drip, then could be laid, as also if the drug of W.A. decided the Rossiter7 case, drawing up a lethal dose of morphia was administered by another under in which a quadriplegic patient and slipping the syringe into the the direction of the doctor. If the had directed the discontinuance drip. The syringe would then be medication was voluntarily taken by of the provision of nutrition and handed to the suicide, who would the patient, with full mental capacity, general hydration which would then press the plunger. The staff aiding and abetting or inciting a lead inevitably to Rossiter’s death member and the witness, as the law suicide would be the appropriate from starvation. Rossiter sought stands, would both be guilty of aiding charge. On the other hand if a only analgesics for the purposes and abetting suicide, and the staff patient demands the withdrawal of sedation and pain relief as he member’s actions would come very or termination of treatment, the approached death. He was found to close to making both guilty of murder, principal question becomes the be mentally competent and entitled particularly if the patient had to be mental capacity of the patient to refuse medical treatment. Another directed or assisted in depressing to make this decision. case in contrast in the A.C.T.8 was the plunger, or if there was serious being decided at the same time doubt as to the mental capacity of Law Reform by their Chief Justice. That case the suicide. The doctor’s dilemma, whether concerned a 59-year-old man who Problems for Doctors to take the risk of hastening suffered from paranoid schizophrenia death to relieve suffering, in and was clinically psychotic, was and Medical Staff conflict with the criminal law, refusing food and resisting treatment Doctors’ problems commence with may arise in a number of different with a naso-gastric tube. The judge their professional obligations, which situations. The prescription of held that this patient could not be are a reality of modern medical deep continuous, or terminal, regarded as having consented to the practice. Dying may be associated sedation maintains the patient withdrawal of, or refusal to apply, with intolerable suffering and the in a continuing coma until death, medical treatment, holding that it doctor has a duty to relieve suffering. in circumstances where the cause might be unlawful to decline to give Sometimes palliative care cannot of the ultimate death might be said him medical treatment which was relieve all the pain and suffering of to be the sedation. The procedure available and might, in the short to dying patients, and some suffering has been likened to “slow medium term, avert imminent death. will only be relieved by death. The euthanasia.” Dr Syme has argued Suggested Options doctor may be repeatedly asked by that there is no doubt that the a rational patient to end his or her possibility or probability of death for Change suffering. The duty being to respect can be foreseen on many occasions Dr Nigel Gray has persuasively patient autonomy, the doctor may when this procedure is used, argued that there are two potential prescribe a dose of medication large creating potential conflict with options to enable people to die with enough to cause the death of the the criminal law.

40 VBN VBN 41 The absence of any relevant Purdy v. D.P.P. would seem reasonable (arguably a defence under the Crimes Act leaves Debbie Purdy suffered from primary basic human right) that it should be the doctor exposed, and at risk of progressive multiple sclerosis. There possible to seek guidelines from the news and views news prosecution in a variety of situations, is no known cure. She believed her Attorney-General (or the D.P.P.) as for at least aiding and abetting continued existence would at some to the circumstances which might suicide. Mr Justice Devlin’s reasoning point become unbearable and wanted make it more, or less, likely that a in his charge in the Bodkin Adams to end her life while still physically prosecution would be instituted for trial seems to have been gratefully able to do so; but at that point she assisting or attempting suicide. received by the medical profession, might be unable to act without The U.K. D.P.P. has now issued but various commentators have assistance and so would need to guidelines, which do not apply to pointed out that the use of both travel to a country where assisted doctors, principal among which is intention and causation as a basis suicide was lawful. Her husband that the person aiding the suicide of criminality in medical situations, was willing to help her make the must act wholly motivated by is highly contentious and in a sense journey but in so doing ran a risk compassion. The guideline which hypocritical, in that the doctor who of being prosecuted for assisting a somewhat surprisingly favours the foresees a hastened death as a suicide. She sought assistance from prosecution of a suspect acting as consequence of his or her treatment the Director of Public Prosecutions a medical doctor where the victim really has the necessary foresight (“D.P.P.”) as to the factors he would was in his or her care was added in to enable a finding of mens rea take into account in deciding whether the final stages of preparation of to be made by a jury. As several a prosecution should be brought. The the guidelines after a submission commentators have pointed out D.P.P. declined to answer, and Purdy from the Royal College of Physicians a more acceptable basis in legal sought to review his refusal. She which included the statement that reasoning might well be to argue succeeded in the House of Lords9. “any clinician who has been part, in the necessity of the doctor’s The argument accepted by the any way, of assisting a suicide death treatment, the necessity to relieve Law Lords was that under Article should be subject to prosecution”. pain and suffering, as the basis 8(1) of the European Convention on It remains to say, however, that upon which the doctor’s actions Human Rights Ms Purdy’s right to here the D.P.P.’s guidelines might cease to be criminal. respect for her private life related conceivably make life more difficult The fact that there have been to the way in which she lived, which for doctors by indicating (inter alia) very few doctors prosecuted in included the way in which she chose that prosecutions may be launched if Australia or the U.K. raises the to pass the closing moments of her any treatment shortened a patient’s question why agitate for a change life. In effect she and her husband life by even a small period. It has in the law at all? If the community were entitled to information as to been said of the U.K.’s guidelines that generally accepts that doctors the way the D.P.P. might exercise his “they please no one and for many not infrequently hasten the death discretion whether to consent to a there were unwanted, not least of all of their patients to lessen their prosecution, with sufficient precision by the D.P.P.”11. suffering and at their request, is to enable the individual to regulate 1 R v Croft (1944) (Court of Criminal that not of itself an implied special his conduct accordingly. Appeal) 60 TLR 226. defence for doctors, and a sufficient As it happens Victoria now has 2 A/G v Able (1984) 1 Q.B. 795. protection without the necessity for its own Human Rights Charter10, 3 R v Bodkin Adams [1957] Crim.L.R. 365. legislative change? Furthermore with many provisions based on or might not the increased publication comparable to those contained in the 4 (2009) 17 JLM 439 at 435. of information as to what doctors European Convention and the Human 5 [2000] Crim. L.R. 37. are doing, cause persons taking the Rights Act of the U.K. It is difficult to 6 [2010] 79 NSWLR 544. contrary view to become much more predict how the Courts will interpret 7 Brightwater Care Group v Rossiter watchful, and to complain more the Victorian Charter, there yet being [2009] WASC 229, Martin CJ. strenuously, if they believe they know little judicial comment on it. But it 8 Australian Capital Territory v J.T. [2009] of cases where the doctor’s principal may be possible to take action in ACTSC 105, Higgins CJ. intention or even one of the doctor’s Victoria, not seeking to change the 9 R (Purdy) v D.P.P. [2009] UKHL 45; purposes, was to hasten death? law, which is the province solely [2009] EWCA Civ 92. At the very least, one would of Parliament, but insofar as the 10 The Charter of Human Rights and have thought these issues demand medical profession or an individual Responsibilities Act 2006 (Vic) to be referred to the Law Reform believes the law to be unclear in its (“Victorian Charter”). Commission for a full review and operation, seeking guidelines as to 11 A Critical Consideration of the Director hopefully clarification of the how the law is to be applied. When of Public Prosecution Guidelines, John Cooper QC, Halsbury’s Law Exchange, at position of doctors. the law is unclear in its operation, it p19.

42 VBN news and views Advancing Advocacy

Australian Bar Association advanced trial advocacy course, Brisbane. CHRISTINE MELIS

hen was the last time you received a But, the benefits are worth it. review on the substance and style of The environment is as close to the real experience as your court performance? For most, possible. At least three coaches are assigned to each the answer would be, “not since the group of six on each rotation of an exercise so that you readers’ course.” Advocacy is a skill receive diverse feedback. The voice and performance and it is that skill that defines us as coaches are on the ready to give you feedback on style, barristers. Yet, there are very few opportunities available posture and body language. What I enjoyed most was the for barristers to “workshop” cases and experiment with opportunity to concentrate on nothing but the case and presentation. Rarely do we have the opportunity of how I might tackle each aspect of trial performance. It seeing our own performance played back so that it can was refreshing not to have to worry about the outcome for Wbe reviewed, and feedback provided, by judges and senior your client; the week was all about us. practitioners from all over the country and overseas. The course next year will be held between 19-24 We would not dispute that we need to keep abreast January 2015 at the Federal Court Complex in Melbourne. of the law for our job but it is not often we consider that, Course materials will be provided in December 2014. At in the same way, we need to challenge and refine our least three full-days of preparation is suggested before advocacy skills and keep them fresh throughout our life the course commences. I encourage you to consider at the Bar. This is exactly what the ABA Advanced Trial undertaking the course. Whilst it is called a “course” Advocacy Course seeks to reinforce. you will be encouraged to think of it as a “retreat”. As a The ABA Course is run every year in the latter part of participant you will have the chance to meet and get to January across five days. There are places available for know many barristers from around the country and in 42 barristers and seniority of at least two years at the Bar particular become very close with your group of six and is a pre-requisite. The coaching faculty includes Supreme your “home room coach” for the week. At dinner every and District Court judges, Australian and International night participants and coaches have the opportunity counsel from New Zealand and South Africa, as well as to chat and get to know one another in a relaxed performance and voice coaches with expertise in voice, environment. As the week rolled on I certainly felt movement and impact. Lay witnesses are sourced from like part of a wider family. outside the course participants and expert witnesses Registration for the 2015 course will open in August 2014. are sourced from the fields of expertise required on the factual scenario of the case. In January 2014, the course was held in Brisbane. I was a participant. Participants included barristers from all over Australia at various levels of seniority, including silks and one participant from Fiji. For five days and five nights we lived and breathed the facts of either a civil brief involving alleged breaches of the Australian Consumer Law or a criminal brief concerned with one count of rape. Each day brought an opportunity to concentrate solely on one aspect of the trial process. Day 1: introduction to the course, the participants and the coaching faculty; Day 2: analysis of the case and openings; Day 3: examination- in-chief; Day 4: cross-examination; and Day 5: closings. It was an intense week. Reflecting on it now, I can see why. It is a rigorous exercise to prepare a case; be reviewed on both substance and style for each aspect of trial performance; watch your performance on an iPad in the company of a voice and performance coach; do the exercise again whilst trying to incorporate the feedback received; watch demonstrations of an evening in preparation for Sarah Cherry (Vic Bar), Ben Munro (QLD Bar), Janine Wald (Vic Bar), the next day; and then do it all over again the next day. Chris Gudsall QC (Coach NZ Bar), Kevin Andronos (NSW Bar), Christine Melis (Vic Bar) and William Lye (Vic Bar)

42 VBN VBN 43 Winners and Losers in Australian news and views news Asylum Seeker Justice

GEORGINA COSTELLO

n 31 March 2014, Scott Morrison, by air, will no longer receive taxpayer-funded immigration Minister for Immigration and Border advice and assistance under the (IAAAS). This election Protection, announced the axing of a commitment will save the budget $100 million”.2 taxpayer-funded legal advice service The midyear budget review, released in December known as the Immigration Advice 2013 set aside an extra $2 billion to process refugee and Application Assistance Scheme claims offshore, with the projected expenses of offshore (“the IAAAS scheme”) for those who arrive in processing over the next four years at $9.5 billion.3 Australia illegally by boat or air. According to an analysis of budget and immigration data For more than 20 years, the IAAAS scheme has set out in the Sydney Morning Herald in December 2013, provided asylum seekers, some of whom are tortured and if the newly expanded refugee centres in Nauru and Otraumatised people who have limited English language Papua New Guinea operate continuously at full capacity, skills, with proper assistance from qualified advisors and if the average asylum seeker’s claim is processed in when making claims to be a refugee. According to 143 days, the cost to Australian taxpayers per detainee Michael Colbran, President of the Law Council of will be about $220,000.4 In light of these figures, the Australia, the IAAAS scheme provided “modest funding Government’s decision to cut legal funding in this area to Australian lawyers and migration agents to provide to save $100 million is petty and disproportionate. limited assistance to asylum seekers so they [could] In 2012-2013, more than 4.5 million permanent and properly prepare their claims for refugee status or other temporary Australian visas were issued. In the same forms of assistance.”1 year: (i) a mere 20,019 Humanitarian Program visas were Announcing the cut, Scott Morrison stated, “From today granted (0.004% of the total visas issued that year); and people who arrived illegally by boat, as well as illegally (ii) 25,091 irregular maritime arrivals were intercepted

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(excluding crew).5 The number of means that non-lawyer migration and migration agent at Playfair Visa asylum seeker arrivals to Australia agents are subject to one, less and Migration Services in Sydney. is relatively small in light of our onerous level of regulation, whilst Mr Rezaee was born in Afghanistan broader migration program. migration lawyers who register and lived the life of a refugee after Scott Morrison has said that as migration agents are subject to his family fled Afghanistan when he asylum seekers will be free to access two, overlapping and sometimes was 11 years old. Mr Rezaee’s father legal advice offered on a pro bono inconsistent layers of regulation.10 came to Australia as an asylum seeker basis and will be assisted by the There is no stampede of migration and Mr Rezaee followed, arriving in Department of Immigration and lawyers eager to submit to double Australia around 10 years ago. Border Protection.6 But according to regulation in order to provide free Asylum seekers who are successful Rachel Ball, director of advocacy and advice to asylum seekers. Even if in their refugee applications may campaigns at the Human Rights Law asylum seekers can access pro bono go on to become high achievers in Centre in Melbourne, the Department migration agents (cf those on Manus our community, like young lawyer has already refused an offer to Island who have appointed Jay Besmellah Rezaee. Australia should provide asylum seekers with a Williams to represent them) there is continue to fund a modest legal list of free legal services.7 likely to be insufficient capacity left aid program for asylum seekers, In March 2014, Sydney barrister among solicitors and barristers who as it has done for more than two Jay Williams, who is representing have the necessary registration as a decades. This would help ensure that 75 asylum seekers detained in the migration agent, and are willing to asylum applications made by people Manus Island facility, was granted do even more work pro bono, to meet like Mr Rezaee’s father are made access to the facility by Papua New the increased demand caused by the competently. Guinea judge Justice David Cannings. cut to funding. 1 Law Council of Australia Media Release Upon arrival, Mr Williams was On the current state of the law, “Law Council concerned by removal of ejected from the detention centre. detainees on Manus Island appear IAAAS Funding”, 2 April 2014. PNG’s attorney-general Kerenga unable to lodge asylum claim 2 Press release of Scott Morrison, Kua’s rationale for this was that Mr asylums in Australia at all; instead Minister for Immigration and Border Protection, 31 March 2014. Williams was not legally allowed to their claims may have to be made in practise as a lawyer in PNG because PNG. Accordingly, the IAAAS funding 3 Markus Mannheim, “Boat people: warning on rising cost of refugees - he had not applied to the National decision will likely have the harshest up to $500,000 each” Sydney Morning Court for permission and did not impact on those already in Australia Herald online, 23 December 2013. 8 have a licence to practise in PNG. with refugee claims (who arrived 4 Ibid. Even in Australia, the right for without a visa) or those who manage 5 Department of Immigration and lawyers to advise asylum seekers to get to mainland Australia without Citizenship Annual Report 2012-2013, is restricted. Providing advice to a visa in future. Immigration Advice and Application Assistance Scheme http://www.immi. asylum seekers in connection with John Gibson AM (1950-2012) was gov.au/about/reports/annual/2012-13/ a visa application, even if it is pro an accomplished Victorian barrister pdf/2012-13-diac-annual-report.pdf. bono advice, constitutes migration who signed the bar roll in 1981. 6 Above n.3. assistance. Under s.260 of the Gibson appeared in many important 7 Oliver Laughland, ‘Legal aid denied Migration Act 1958 (Cth), which is a cases in the area of migration. When to asylum seekers who arrive through penal provision, a person who is not named as a “Legend of the Victorian unauthorised channels’ The Guardian a registered migration agent must Bar” in 2012 it was noted that he had online, 31 March 2014. illustration by guy shield/the slattery media group not give immigration assistance. As appeared for and looked after those 8 Liam Fox, “Australian barrister Jay such, barristers and solicitors are in need, without fee, for years and Williams thrown out of Manus Island despite court order, to be deported from prohibited from giving pro bono years, without any expectation of PNG”, ABC Online, 28 March 2014. migration advice unless they are reward or acknowledgment.11 9 Information sheet on the Department registered as migration agents with On 18 March 2014, the Law Council of Immigration and Border Protection the Migration Agents Registration of Australia announced Mr Besmellah website. https://www.immi.gov.au/ Authority. People who practice as Rezaee as the inaugural winner of migration-fraud/giving-migration- advice.htm unregistered migration agents in the John Gibson AM Award for the Australia are breaking the law and Young Australian Migration Lawyer 10 Law Council of Australia supplementary submission to the may be subject to fines of up to of the Year. Mr Rezaee holds degrees Productivity Commission’s Annual $6600AUD or imprisonment for from Adelaide University and the Review of Regulatory Burdens up to 10 years.9 Australian National University, on Business, 15 June 2010, http:// www.pc.gov.au/__data/assets/pdf_ Despite the Federal Government’s speaks six languages (English, file/0004/99175/sub027.pdf. stated commitment to cutting red Dari, Persian, Urdu, Hazaragi 11 Bar News, No.152 Spring 2012, p4. tape, the present system of regulation and Pushto) and works as a solicitor

44 VBN VBN 45 of judges, a category into which An Affair to Remember: Justice Green certainly did not fall. Beside the Kemp issue, the news and views news University relied on a number of A Note on the Orr Case unrelated grounds. One concerned a mature age philosophy student Edwin Tanner, who was also an THE HON PETER HEEREY AM QC accomplished artist. Orr was building a new home at Sandy Bay. It was egal Limits, Federation Orr v University of Tasmania (1957 ) alleged he offered to award Tanner Press, 2013, is a 100 CLR 526. the prize for Ethics (of all subjects!) collection of excellent As Hasluck notes, a later work by in return for the student painting a papers by Nicholas Tasmanian author Cassandra Pybus, mural for his new home. Hasluck, formerly a Gross Moral Turpitude, William Another involved a Dr Milanov, judge of the Supreme Heinemann, 1993, thoroughly a lecturer in the Philosophy Court of Western Australia and a examined the evidence and came Department. Orr was said to have Lpublished novelist and poet, on the down strongly in favour of the courts’ importuned Milanov for personal general theme of the relationship conclusion. psychological advice in relation to between law and literature. In retrospect that conclusion seems his (Orr’s) dreams and other matters. One paper, entitled Seeing What unavoidable. There was, amongst These included “personal information Happened, takes as its point of other things, evidence that late supplied by (Orr) concerning his departure the cause célèbre of one night Orr took Miss Kemp to a relationship with Royalty” (100 CLR Professor Sydney Sparkes Orr, who lonely spot among the sand dunes at 528). In particular, Orr speculated was summarily dismissed from his behind Bellerive beach, across the that he was the illegitimate son of the office of Professor of Philosophy river from Hobart. Orr’s car became Prince of Wales, later Edward VIII by the University of Tasmania in bogged in the sand and he had to get and still later Duke of Windsor. 1955. The principal ground (as will the assistance of a nearby resident, I vividly recall attending the trial be seen, there were others) was who gave evidence at the trial. Orr’s at the old Supreme Court in the allegation that Orr had a sexual explanation that the visit was “merely Macquarie Street in 1956, my first relationship with Suzanne Kemp, for the purpose of discussing some year at Law School. Orr was in the an 18 year old undergraduate. Orr’s philosophical problem or problems” witness box and presented his profile action for wrongful dismissal was (100 CLR at 529) would have sounded to the public gallery. He had the rejected by Justice Green in the unconvincing for the most unworldly distinctive Windsor sloping forehead Supreme Court of Tasmania in a and chin, very similar to that of decision upheld by the High Court: George VI on the coinage of the time.

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Orr’s supporters in the world of academe saw the case as a matter of academic freedom, with an overlay of libertarianism. Whether or not he seduced Miss Kemp was largely irrelevant. In the litigation, the priorities were reversed.

Anyway, the Tanner and Milanov there is not the slightest doubt, upon a bitter falling out.) John Kerr QC, grounds, and some others which I the facts as found, that the appellant, later Governor-General, and Hal cannot recall, were not upheld by having observed her feelings, became Wooton published in the journal the trial judge. only too ready to take advantage of the Australian Association for It needs to be mentioned that of them and seduce her. The affair Cultural Freedom what Cassandra in 1954 Orr had been one of the developed under the guise of the Pybus describes (at 130) as “a prime movers in instigating a Royal discussion of philosophical problems devastating piece and it blew the case Commission into the University. and, within a short period resulted of Orr and Panzee Wright right out of Its report had been quite critical of in sexual intercourse taking place the water”. The bibliography in the the University administration, and between them. Thereafter, it occurred Pybus book details 53 publications. in particular the Chancellor, the on a number of occasions. We have not Finally in 1966, shortly before Orr’s Chief Justice of Tasmania Sir John the slightest doubt that this conduct death, a financial settlement with Morris. There was a clear motive for on his part unfitted him for the position the University was achieved and payback as far as Orr was concerned. which he held and that the university the black ban lifted. Moreover, Suzanne Kemp’s father was entitled summarily to dismiss him. In the late 1950s, I was an articled was a very prominent Hobart We can only express our surprise that clerk at Hodgman and Valentine, businessman and his outraged the contrary should be maintained. Orr’s solicitors. William Hodgman QC complaint to the University Council had appeared for Orr at the trial, led A supposedly conservative got the matter off to a flying start. by Else Barber QC, and in the High bunch of judges was probably My old rugby coach and history Court, led by Maurice Ashkanasy QC. several decades in advance of lecturer, George Wilson, a strong In the years following the litigation, feminist thought in seeing the matter Orr supporter, confided once at a Orr would turn up frequently through the prism of exploitation and barbecue that there were only three at the office with miscellaneous gender-based power relationships. people who knew the truth of the requests. By this stage, perhaps Notwithstanding the setback in Orr case, “God, Orr and Reg Kemp, understandably, Bill Hodgman’s the courts, l’affaire Orr (enthusiastic and none of ’em’s telling”. zeal for the cause had rather waned supporters saw him as an antipodean Orr’s supporters in the world of and Orr would be sent off down the Dreyfus) dragged on and on. There academe saw the case as a matter corridor to the articled clerk. was widespread agitation by the of academic freedom, with an Orr was not the most appealing Federal Council of University overlay of libertarianism. Whether of personalities. He exuded self-pity. Staff Associations, which was the or not he seduced Miss Kemp was At the time, however, I was still a academics’ union. A black ban was largely irrelevant. In the litigation, true believer and thought to myself put on the Chair of Philosophy for the priorities were reversed. As an that he had a lot about which to pity years. A number of lecturers at the alternative, Orr’s counsel argued, himself. It is not often the reasonable Law School resigned. without much enthusiasm one and pleasant people who become Orr re-joined the Presbyterian might infer, that the facts found martyrs. Perhaps Dreyfus was a bit

Church and its ecclesiastical court, illustration by guy shield/the slattery media group by the trial judge did not constitute of a pain. the Scots Kirk Session, retried the legal justification for dismissal. One of Orr’s legal problems Kemp issue and exonerated him. The response of the High Court concerned philosophy lectures he The Church campaigned vigorously (Chief Justice Dixon and Justices was giving, not of course at the for his reinstatement, as did the Williams and Taylor, 100 CLR at 530) University but in the rather unlikely Catholic Archbishop of Hobart, was as follows: venue of the Hobart RSL club. He Dr Guilford Young. was reduced to plying his trade With this submission we emphatically Others were drawn into the as a philosopher, like Socrates of old. disagree. Miss Kemp was a student struggle. Professor R D (“Panzee”) At the time in Tasmania there was in the appellant’s class, she was 18 Wright of Melbourne University, later an entertainment tax. Orr wanted years of age and it is apparent that Chancellor of that University, became to know if he was exempt from that she was then passing through a period a public Orr partisan. His brother, tax. I think I told him he was. In any of turbulent eroticism. Moreover Senator Reg Wright, had been event, Orr’s myriad problems did there can be little doubt that she was leading counsel for the University not include claims for Tasmanian eager to institute an intimate personal of Tasmania in the litigation. (Later entertainment tax. relationship with the appellant, but Orr and Panzee Wright were to have

46 VBN VBN 47 Scotland be an independent country?” The Scottish Government has produced a comprehensive guide news and views news You Take the to an independent Scotland called “Scotland’s Future” which runs to Low Road, and 650 pages. The Guide sets out the facts and figures and tries to provide information on: • Ho w Scotland can afford to become I’ll Take High Road… independent. • Scotland’ s economic strengths and how it can make the most Will Scottish Independence cause an Australian Republic? of its potential. DAVID H DENTON RFD QC1 • Ho w independence will help ensure that everyone in Scotland gets a fair deal. COMMONWEALTH OF AUSTRALIA 1999 referendum on the question of a • The ways in which independence CONSTITUTION republic showed that there are still will strengthen Scotland’s ACT - CLAUSE 2 so many ways of actually drafting a democracy. republican constitution. Desires for • An independent Scotland’s place Act to extend to the Queen’s successors change are one thing; the need for in the world. The provisions of this Act referring change is another. However, what The SNP argues that an to the Queen shall extend to Her if the need came about by virtue of independent Parliament elected Majesty’s heirs and successors in the we Australians not doing anything entirely by people in Scotland will sovereignty of the United Kingdom. much at all? Is it possible that such replace the current Westminster a momentous change could arise system. Under that system, elected COMMONWEALTH OF AUSTRALIA within a short time and make us representatives from Scotland make CONSTITUTION ACT - SCHEDULE revisit the issue of a republic by up just 59 Scottish MPs out of 650 OATH default? members of the House of Commons This article represents no more (nine per cent); the House of Lords I, A.B., do swear that I will be faithful than my thoughts as an intellectual is wholly unelected. If Scotland and bear true allegiance to Her exercise and without the benefit votes ‘Yes’ in the referendum, the Majesty Queen Victoria, Her heirs and of any debate, so these ideas may Scottish Government will negotiate successors according to law. possibly be wrong (a conclusion with Westminster and the European SO HELP ME GOD! I would resist with some little force Union so that Scotland becomes yet). Nevertheless, what if the independent on 24 March 2016. AFFIRMATION Crown of the “United Kingdom of Scotland will become the 29th I, A.B. , do solemnly and sincerely Great Britain and Northern Ireland” member of the European Union affirm and declare that I will be no longer exists for Australian and the 194th member of the United faithful and bear true allegiance to Her Constitutional purposes? Nations and join NATO in its own Majesty Queen Victoria, Her heirs and Scotland seems to be proposing right and be a unicameral parliament. successors according to law. that very step. At the first independent election, The Scottish Government will on 5 May 2016, voters will have the (NOTE: The name of the King or Queen hold a referendum of the Scottish chance to choose a government of the United Kingdom of Great Britain electorate on 18 September 2014 and policies for Scotland’s future. and Ireland for the time being is to be on the issue of independence for Importantly, the apportionment substituted from time to time.) Scotland from the United Kingdom of of the national debt of the United Great Britain and Northern Ireland. Kingdom – expected to peak at 86 per The Scottish Question The population of Scotland is some cent of UK GDP -almost £1.6 trillion, have long wondered how 5.3 million people. The hurdles being in 2016/17 – will be negotiated an Australian Republic faced at the referendum are not and agreed as part of the overall may come about without inconsiderable. settlement on assets and liabilities the need to be divisive Alex Salmond, First Minister of and split. Using 1980 as the base year, to our culture and social Scotland and leader of the Scottish Scotland’s historic share of the UK fabric. It is a challenge National Party (SNP), proposes national debt in 2016/17 is projected

illustration by guy shield/the slattery media group slattery guy shield/the by illustration to change our Constitution and the that Scots will be asked: “Should to be approximately £100 billion. This 48I VBN news and views

is equivalent to 55 per cent of Scottish GDP. On independence in 2016, the Queen is to be head of state. An independent Scotland will become the 17th member of the Commonwealth to share the same monarch. It is noted here however, that in each of those other Commonwealth States the Crown is represented by a Governor-General. This is not suggested for Scotland. Creation of the United Kingdom How did the ‘United Kingdom’ come about? The Kingdom of England was formally established by 927 AD by King Athelstan (with the process of unification taking a further 100 years to complete). The Norman invasion was launched in 1066 and William was crowned king on 25 December 1066. Edward I conquered Wales in 1282. Wales was formally integrated with the Kingdom of England in 1535. The Kingdom of Scotland was established in the 9th century and was ruled by the House of Stuart from 1371 up until 1707. The Kingdom of Ireland was So it may now come to pass that due to matters created by an act of the Irish evolving in Scotland and Westminster that Australian Parliament in 1541, replacing the Lordship of Ireland, which had Constitutional Monarchists and Australian Republicans existed since 1171. The Crown would be best served by renewing the debate on our of Ireland was established as future constitutional framework and with some urgency. a personal union (rather than dynastic) between the English With the passing of the Acts and created the sovereign state of the and Irish crowns, with the effect of Union 1707 of the English “United Kingdom of Great Britain that whoever was King of England and Scottish Parliaments the and Ireland”. was to be King of Ireland. independence of the kingdoms This was a time of the British When Elizabeth I of England of England and Scotland came to Empire, on which, it was said, died in 1603 the heir to the English an end on 1 May 1707 when they the sun never set. Throne was King James VI of merged the kingdoms of England and It was under this single Crown of Scotland. Generally called the ‘Union Scotland into the ‘Kingdom of Great a sovereign United Kingdom that of the Crowns’, this dynastic union Britain’. This agreement is known the people of the Original States of was in place from 1603 until 1653 as the ‘Union of the Parliaments’. Australia agreed to federate in 1900 (when the monarchy was officially This entity also created a British under our Constitution. abolished) and again from 1659 until Crown. The effect was to also create a Yet shortly thereafter, following the the two nations were united in 1707. personal union between the Crown of establishment of the Irish Free State However, at all times England and Ireland and the British Crown. in 1922, Northern Ireland (which had Scotland continued to be sovereign By the terms of the Act of Union been created earlier by Westminster states, despite sharing a monarch, 1800, the Kingdom of Ireland merged in the Government of Ireland Act until the Acts of Union in 1707. with the Kingdom of Great Britain 1920, partitioning Northern Ireland

48 VBN VBN 49 from Southern Ireland) exercised legality, under both Canadian and particularly, when there is arguably its option of withdrawing from the international law, of a unilateral no longer a ‘United Kingdom’ Irish Free State within one month secession of Quebec from Canada. in existence? news and views news of the treaty coming into effect. Its opinion presents serious issues Will Scottish independence create Having left the United Kingdom, for the Scottish independence one new state out of a continuing Northern Ireland re-joined the movement to accommodate. state of the current United Kingdom, United Kingdom within the month. That Court provided an advisory being the Kingdom of Scotland On this occurring the remaining opinion on two specific questions (possibly so-named); or two new constituent parts of the United which, in essence, asked whether states: the Kingdom of Scotland Kingdom were renamed the “United Quebec had a right to secede under and the Kingdom of England Kingdom of Great Britain and Canadian Law and / or under (as it resumes its historic name)? Northern Ireland”. The Irish Free International Law. If the factual and legal result State remained a ‘dominion’ and part Whilst deciding that under the is the creation of two new states, of the Empire until 1949, when it Canadian Constitution unilateral Scotland and the rest of the old became the Republic of Ireland and secession was not legal, the Court United Kingdom, this will have withdrew from the Commonwealth. considered that should a referendum consequences for membership of the Currently, the United Kingdom of decide in favour of independence, European Union, NATO, international Great Britain and Northern Ireland the rest of Canada would have bodies and very likely, Australia and is constituted by four countries: no basis to deny the right of the its States. England, Northern Ireland, Scotland government of Quebec to pursue Some ‘British’ commentators (in and Wales. It is the ‘United Kingdom secession. The Court strongly the sense of the term ‘Great Britain’ of Great Britain and Northern opined that negotiations would which includes the Scots) argue that Ireland’ itself that is the sovereign have to follow to define the terms an independent Scotland is the one state under international law (not under which Quebec would gain that becomes a new state. However, its constituent united parts). independence, should it maintain that such a stance appears to ignore goal. This involved four interrelated the realities of history and how ‘Yes’ to the Referendum? and equally important principles the sovereign state of the ‘United The legality of Scotland, as a or values: federalism, democracy, Kingdom’ was itself created. constituent country of the United constitutionalism and the rule Clearly, Scotland has many legal Kingdom, attaining de facto of law, and protection of Minorities. and political issues to address independence (in the same manner Importantly, the Court determined to achieve its desired outcome. as the origins of the Irish Republic) that international law does not or declaring unilateral independence specifically grant component parts Consequences for outside the framework of British of sovereign states the legal right to constitutional convention, is secede unilaterally from their ‘parent’ Australia? uncertain. The referendum being state. The Court stated that the right Can Scottish independence impact on put in 2014 seems to allay fears of a people to self-determination Australia’s constitutional monarchical of such a declaration and works was expected to be exercised within system of government and polity upon the understanding of further the framework of existing states, by and its people who by our own negotiation with Westminster in negotiation, for example. Such a right Preamble to our Constitution, agreed the event of a ‘Yes’ vote. could only be exercised unilaterally to unite in one indissoluble Federal It is recognised that the United under certain circumstances, under Commonwealth under “the Crown Nations Charter enshrines the right current international law. In its of the United Kingdom of Great of peoples to self-determination, opinion under international law, the Britain and Ireland” (which I shall and the Universal Declaration of right to secede was meant for peoples refer to as the ‘Original Crown’)? Human Rights also guarantees under a colonial rule or foreign Arguably, it seems likely that it does. peoples’ right to change nationality. occupation. Otherwise, so long as a By section 2 of the Commonwealth The United Kingdom is a signatory people have the meaningful exercise of Australia Constitution Act to both documents. of its right to self-determination 1900 (UK) the provisions of the How Scotland may achieve within an existing nation state, there Constitution referring to “the Queen” independence may be assisted is no right to secede unilaterally. extend to “Her Majesty’s heirs and by of the experience of the Quebec So if the referendum passes, what successors in the sovereignty of the Secession movement in Canada happens when there is no longer a United Kingdom”. in the 1990s. In 1998 an advisory single ‘Crown of the United Kingdom That is, Australia’s constitutional opinion of the Supreme Court of of Great Britain and Northern monarch is defined by reference to Canada was provided regarding the Ireland’ (as it is now called), or, more a continuing legal entity being the

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‘United Kingdom of Great Britain and The Australia Acts 1986 of I suggest that an Australian Northern Ireland’, not of a disunited the United Kingdom and the constitutional vacuum may arguably Kingdom or some other sovereign Commonwealth, respectively, exist, which must then be filled nation as it may become. formally ended all power of the as the legislative power of the Further, the Australian Constitution Parliament at Westminster to legislate Commonwealth currently requires is unequivocal in that the legislative with effect in Australia “as part of the the Original Crown. power of the Commonwealth consists law of” the Commonwealth, a State The Australia Act is not likely to of: the Queen (of the Original or a Territory. Section 1 respectively provide a solution as recourse to it to Crown), a Senate and the House provides: fill the vacuum would be an exercise of Representatives. seeking to refashion the identity of Termination of power of Parliament of Under the Constitution it is this the Original Crown as defined under United Kingdom to legislate for Australia. Queen (of the Original Crown) who our Constitution and this is likely to has a representative in the Governor- No Act of the Parliament of the be an unlawful amendment of the General. The executive power of the United Kingdom passed after the Constitution. Commonwealth is vested in the Queen commencement of this Act shall Therefore, it is likely that a and is exercisable by the Governor extend, or be deemed to extend, to referendum under the Constitution General as the Queen’s representative, the Commonwealth, to a State or to will be the only certain way to ensure and extends to the execution and a Territory as part of the law of the the indissoluble federation continues maintenance of this Constitution, Commonwealth, of the State or of the on a lawful basis. and of the laws of the Commonwealth. Territory. Yet what is the form of the The oath of office prescribed in the continuing federation to take? In Shaw v Minister for Immigration Constitution is to the Original Crown Republican or some form of altered and Multicultural Affairs (2003) 218 with the name of the King or Queen monarchical framework – English, CLR 28 the High Court determined of the United Kingdom of Great Scottish or, perhaps, Danish (after that the Australia Act (in its two Britain and (now) Northern Ireland all their next Queen will be an versions), together with the State for the time being to be substituted Australian)? requesting and consenting to from time to time. Whatever is to happen, it is no legislation, amounted to establishing So what may happen if there is longer a matter for Australians to Australian independence as at the date a formal disuniting of the United simply await a reagitation of the when the Australia Act (Cth) came into Kingdom so that the Original Crown republic debate after the passing operation - on 3 March 1986. is no longer legally that of the of Queen Elizabeth. She may However, if Scotland achieves ‘United Kingdom of Great Britain shortly not even be Queen of the independence the Parliament at and Northern Ireland’? ‘United Kingdom of Great Britain Westminster will need to pass Historically after Australia adopted and Northern Ireland’ – nor, legislation to facilitate a matter the Statute of Westminster in 1942 possibly, the ‘Queen of Australia’. touching on the succession to any alteration in the law touching So it may now come to pass that the Original Crown of a new the Succession to the Throne of the due to matters evolving in Scotland fashioned, yet fundamentally United Kingdom of Great Britain and Westminster that Australian altered United Kingdom and Northern Ireland required the Constitutional Monarchists and (as it must inevitably become). assent of the Parliament of Australia Australian Republicans would Must it approach the Parliament and the Parliament of the United be best served by renewing the of Australia to consent to this? After Kingdom. Further, under this Act no debate on our future constitutional all, it is likely to have an effect on the law was thereafter to be made by the framework and with some urgency. law of Australia. The answer is legally Parliament of the United Kingdom to Where does Australia go in this – no, as the Australia Acts make this extend to Australia as part of the law of dynamic century and beyond? clear. However, it is arguable, by the Australia otherwise than at the request An independent Scotland may likely abrogation of the Union Act and with the consent of Australia. yet give cause to the creation of an of 1707 that the continued Original The Royal Styles and Titles Act 1973 Australian Republic or even possibly Crown, being “in the sovereignty of (Cth) of course did not change the our own monarchy (which would the United Kingdom”, for all purposes, sovereignty of the United Kingdom surely bring a smile to old William will disappear. It may be logically but rather assented to the style and Charles Wentworth). extrapolated that Great Britain without title of the Queen being changed to Scotland is not Great Britain at all – but 1 David H Denton QC is a member of “Elizabeth the Second, by the Grace Chancery Chambers and an Adjunct merely “Britain” (comprising England, of God Queen of Australia and Her Professor of Law at Victoria University Wales and Northern Ireland) and a Melbourne. other Realms and Territories, Head separate Scotland. of the Commonwealth”.

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Direct Access – Future for Barristers?

Mark Frost

his article explains the way that ombudsmen. All such professions need a licence “direct access” briefing works in from the Bar Standards Board (the regulator of England & Wales (E&W). In E&W direct the Bar Council - the body which represents barristers) access is a generic term for both “public to be able to instruct a barrister directly. access” and “licensed access” briefing Public access, which is the focus of this article, came programs. into being in 2004 when any member of the public could Licensed access came into being in 1989 when a instruct a barrister directly (without having to see a number of professions were recognised as entitled solicitor). Initially there were restrictions on the work to instruct barristers directly without a solicitor. barristers could do under such arrangements but those Accountants, tax specialists and surveyors were the restrictions were relaxed in 2010 and removed entirely Tthree professions that initially took advantage of in 2013. So a barrister can now be instructed directly this arrangement, which has since been extended to by any member of the public on any aspect of the law. various other professions and individual bodies such as In October 2013 the Bar Standards Board changed

illustration by guy shield/the slattery media group slattery guy shield/the by illustration insolvency practitioners, engineers, insurers and various the training of barristers who wanted to do public access

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work. Now all barristers, regardless There were stories of newly qualified barristers of their years of standing, have to attend a 12-hour course on public in need of experience accepting briefs for a fee which access which includes an assessment probably did not cover their travelling expenses! (with a pass mark). Then, provided they have passed the assessment, First of all there will be more interview, future contact with the the barrister must notify the Bar “handholding of clients” – barristers client, money laundering, storage of Standards Board that they are going will need to have more contact with files and documents, key date diaries, to do public access work. clients than has been necessary in administration and associated costs, In addition, barristers of fewer the past. Secondly, there is a risk that client care letters, closing letters and than three years’ standing must if barristers take on too much work closing of files and, of course, fees. have “a relevant qualified person” they will get themselves into trouble Public access work requires a who is ready to provide guidance (i.e. a complaint and/or a negligence cultural change in the way that as necessary. That qualified person claim). Thirdly, it is a good business barristers and/or chambers operate. must, inter alia, have been practising opportunity for barristers looking to But it’s important to look above the as a barrister for at least six of the expand their practice area. parapet: there is work out there for last eight years and must be qualified Barristers have always had to barristers who are prepared to be to do public access work. react to instructions which I, as a organised in dealing with public So why has public access work solicitor, send to them. With public access work. come about? There are several access work, barristers not only have Another recent reform has further reasons. Prior to 1994, solicitors in to react to the instructions of their opened up the work that can be E&W could not generally appear clients, they must also be proactive performed by barristers in E&W. in the higher courts as they did not as regards their matter and in order From the 22 January 2014 barristers have the right of audience. In that to obtain any future work. can apply for a practicing certificate year solicitors were granted the right Most people, businesses and other that allows them to have conduct to be Higher Court Advocates (i.e. to professionals, are simply not aware of litigation in any area including appear in any court of the land). This of the direct route to barristers so public access – that is, they can took work away from the barristers, this needs to be explained to them. undertake work akin to running a as historically clients instructed They need to be educated so that solicitor’s practice (something that solicitors to deal with their case and they can make an informed decision was not previously permitted under barristers were only instructed by the – do I want a solicitor or a barrister? the public access program). I know solicitor if the solicitor wanted expert For example, a business might that in some States in Australia advice/representation. Solicitors with be prepared to fund an opinion there are a number of practices a right of audience began keeping of a barrister on how to manage of solicitors and barristers. While work in house with less work going to business risk. This could be a sound that can happen in E&W, it is the barristers. This particularly affected commercial arrangement that could exception. That may change, of younger members of the Bar who add real value to direct access. course, in the future. needed court experience. There were Barristers are trained to sell their I also know that in some stories of newly qualified barristers client’s case – now they have to learn Australian States direct access in need of experience accepting to sell themselves. Clients love having arrangements are available for briefs for a fee which probably did barristers representing them. It is a corporate or government counsel not cover their travelling expenses! status symbol. without litigation experience, but In addition, over the past 18 One of the benefits of public is direct access something that months to two years legal aid access in E&W is the cost-saving could be extended here like it has cutbacks have meant less work for to the client, who can avoid solicitors’ been in E&W? Is the Victorian Bar both solicitors and barristers. fees. In a market where everyone facing problems like those facing While there will always be wants “more for less” this is a good the Bar in E&W? Is this the future opportunities for senior barristers selling point to the client. for the Bar in Victoria? to get “barristerial” work from Increasingly barristers have Mark Frost has been admitted solicitors in E&W, future work, to decide how they will get work as a Solicitor in E&W for 34 years. especially for younger barristers, now and into the future, as well He has, for the past six years, is likely to focus on public access as the ways their chambers will trained barristers in E&W on and/or international work. have to change to cope with public Public Access work. So, what is the message for access work. He can be contacted at barristers wanting to do public access There are a number of practical [email protected] work? There are three messages. issues to consider, such as the initial and/or 07775723519

52 VBN VBN 53 Looking back at a High Court news and views news Case on Religious School Funding: Freedom of or from Religion?

NICHOLAS GREEN QC

n a hot day in March 1979, I visited the old And at 584: High Court building in Little Bourke Street. What the Constitution prohibits is the making of a law for I was a student. It was the first day of the establishing a religion. This, it seems to me, does not involve hearing in the State Aid case. Murphy J was a prohibition of any law which may assist the practice of a sitting alone. Counsel were robed at the religion, and, in particular, of the Christian religion. It is the Bar table. The Judge came onto the bench establishment of such a religion which may not be effected wearing a lounge suit. He sent away the late Neil McPhee by a law of the Commonwealth designed to do so. QC and the late Brian Shaw QC to return unrobed. Thus began the first day of the hearing of evidence. Once all the How does this compare with the position elsewhere, evidence was in, Murphy J ordered that the case be argued notably in the US, which has produced authority that Obefore the Full High Court. More than 30 years on, it is was referred to in the State Aid Case? In Bradfield v perhaps timely to recall the decision of the court, namely Roberts (1899) 175 US 291, the Providence Hospital of Attorney-General (Victoria); Ex rel. Black v. Commonwealth the city of Washington was incorporated by an Act of (1981) 146 CLR 559 (The State Aid Case). Congress which gave it Chapter V of the Constitution is headed “The States” …full power and all the rights of opening and keeping a hospital and comprises 15 sections all of which concern the States, in the city of Washington for the care of such sick and invalid except section 116: persons as may place themselves under the treatment and care The Commonwealth shall not make any law for establishing of the said corporation. any religion, or for imposing any religious observance, or for By another Act, making appropriations for the prohibiting the free exercise of any religion, and no religious test District of Columbia, an appropriation of $30,000 was shall be required as a qualification for any office or public trust made for constructing two buildings to be constructed under the Commonwealth. on the grounds of two hospitals and to be operated as a The plaintiffs sought, among other things, a declaration part of those hospitals. Under that authority the District that certain Grants Acts which gave assistance to church Commissioners made an agreement with the Providence schools were invalid, and an injunction restraining the Hospital, a private hospital, run by a congregation Treasurer, the Minister for Education and the Minister of Sisters of the Roman Catholic Church, for the for Finance from making payments for that purpose out construction of a building or ward on the hospital of the Consolidated Revenue Fund. grounds and for payments by the District on that Although section 116 of the Constitution forbids the account to the hospital. The US Supreme Court held Commonwealth from making any law to prohibit the that the agreement was one within the power of the free exercise of any religion, it is silent on the question Commissioners to make. It held that it did not conflict of protecting the citizens of the States in their religious with Article I of the Amendments to the Constitution worship or religious liberties. This is to say, section 116 that “Congress shall make no law respecting an leaves the State constitutions and laws free to legislate establishment of religion.” in relation to religious worship or religious liberties. In Bradfield v Roberts the appellant was a Mr Justice To ascertain the nature and extent of the prohibition Bradfield who appeared in person. One of the attacks in section 116, one notices what the section does not he made on the agreement between the Commissioners prohibit. As Chief Justice Barwick said in the State Aid and the hospital was that the agreement was void Case at 582. because Congress had no power to make “a law respecting a religious establishment”, it being said The absence of any prohibition upon the giving of aid to or that the US Constitution prohibits the passage of a law encouragement of religion from the entire collocation of s. 116 “respecting an establishment of a religion”. The court is eloquent. No imposed observance: free exercise of religion: rejected that argument. Delivering the opinion of the no religious test. No established religion. court, Peckham J said at 298:

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… Whether the individuals who composed the corporation under its charter happened to be all Roman Catholics, or Methodists, or Presbyterians, or Unitarians, or members of any other religious organisation, or of no organisation at all, is of not the slightest consequence which reference to the law of its incorporation, nor can the individual beliefs upon religious matters of the various incorporators be inquired into. Nor is it material the hospital may be conducted under the auspices of the Roman Catholic Church. To be conducted under the auspices is to be conducted under the influence or patronage of that church. The meaning of the allegation is that the church exercises great and perhaps controlling influence over the management of the hospital. It must, however, be managed pursuant to the law of its being. That the influence of any particular church may be powerful over the members of a non-sectarian and secular corporation, incorporated for a certain defined purpose and with clearly stated powers, is surely not sufficient to convert such a corporation into a religious or sectarian body. That fact does not alter the legal character of the corporation, Constitution that provided a formal subsequently developed, the which is incorporated under an act of guarantee of personal freedom. US cases treated “an establishment Congress, and its powers, duties and They contended (at 561): “True of religion as meaning the setting character are to be solely measured by religious freedom requires not only up of a recognized state church” the charter under which it alone has any freedom of religion but freedom (571). One of the cases on which legal existence. from religion …” [emphasis added]. they relied was Bradfield v Roberts. Having rejected the other Despite the force of this argument, It appears that in reply counsel allegations in the complainant’s it did not prevail. A six-to-one for the plaintiffs submitted that it bill, the Court added at 299-300: majority of the court (Murphy J was implicit in Bradfield v Roberts dissenting) held that a law which that if the hospital could have The act of Congress, however, shows provides for financial aid to the been characterised as a religious there is nothing sectarian in the educational activities of church corporation, or a corporation corporation, and ‘the specific and schools is not a law for establishing that existed for religious purposes, limited object of its creation’ is the a religion even though the operation the appropriation would have opening and keeping the hospital in the of the law might indirectly assist the been invalid. City of Washington for the care of such practice of religion. Gibbs J was unpersuaded by the sick and invalid persons as may place Counsel for the defendants, Shaw plaintiffs’ argument. Gibbs J did not themselves under the treatment and QC and his junior Kenneth Hayne, regard the US decisions as containing care of the corporation. To make the argued that the United States cases an authoritative exposition in its agreement was within the discretion about the religion clauses were application to section 116. First, of the Commissioners, and was a fair inapplicable to Australia because there were the differences between exercise thereof. of the terms of section 116 and the section 116 and the First Amendment. In The State Aid Case McPhee QC difference in Constitutional history. Second, the history of the US, and his junior Jack Fajgenbaum, for In the alternative, they argued, if the which provided the background the plaintiffs, argued that section US experience were relevant, it was to the Constitution of that country, 116 was the only provision in the clear that as at 1900, and even as had been very different from that

54 VBN VBN 55 True religious freedom requires not only freedom Conclusion of religion but freedom from religion As a result of the decision in The State Aid Case, an appropriation news and views news of Australia. Third, in construing spent on education, was described as of money to schools (the financial the Constitution, the courts of the ‘establishing religion’ or ‘establishing aid to which is limited to their US had recourse to extraneous a church’.” (617) educational activities) conducted material, which Australian judicial by the Roman Catholic Church is In dissenting, Justice Murphy practice dictated would be rejected. not a law “for establishing any said that the US decisions on the Finally, the course of the subsequent religion” under section 116 of the ‘establishment’ clause should be decisions in the US showed that Constitution. A separate question, followed: the test adopted there, far from which was not before the court, being clear and predictable in its The arguments for departing from of whether the Christian religion operation, had led in its application them (based on the trifles of remains recognised as a part of the to continuing controversy. Gibbs J differences in wording between Australian common law, is one that added: “In any case, you should not the United States and the Australian awaits another day. substitute for the words of section establishment clauses) are hair- This short article is not intended 116 a test which those words do not splitting, and not consistent with to be a philosophical treatise on appear to warrant, particularly when the broad approach which should whether there ought or ought not it does not commend itself by any be taken to constitutional guarantees be freedom of, or from, religion, obvious considerations of justice or of freedom.” (632). but in concluding, it is worth noting convenience.” (603) that at the time of the State Aid For his Honour, the effect of the US Justice Stephen said that the Case legislative expressions of decisions was properly stated by prohibitions in section 116 “say fundamental human rights were President Kennedy in 1961: “The nothing … which would impugn not in vogue in Australian Constitution clearly prohibits aid to the validity of the legislation jurisdictions. This has changed the school, to parochial schools. I don’t which the plaintiffs seek to and it remains to be seen, for think there is any doubt of that. … attack.” (610) example, what the effect, if any, (628) Justice Mason rejected the might be of section 14 of the submission that the legislation Murphy J was impressed by the fact Victorian Charter of Human under attack established any “that under the Commonwealth Rights and Responsibilities religion. He said: laws vast sums of money were being Act 2006, which states: expended for the support of church It is altogether too much to say that 14 Freedom of thought, conscience, schools.” (632) In support, he referred a law which gives financial aid to religion and belief to evidence that two Catholic parish churches generally, to be expended school buildings, at Churchill and (1) Every person has the right to on education, is a law for establishing Corio, although not used wholly or freedom of thought, conscience, religion. The mere provision of financial principally for or in relation to religious religion and belief, including— aid to churches generally, more worship had been used to celebrate particularly when that aid is genuinely (a) the freedom to have or to Mass for the local parish each linked to expenditure on education, adopt a religion or belief of his Sunday, confessions each Saturday, falls short of ‘establishing’ a ‘religion’ or her choice; and and occasionally for other religious as we understand the expression. services. It followed, he reasoned, that (b) the freedom to By it we mean the authoritative the effect of the Grants Acts had “the demonstrate his or her establishment or recognition by the effect of establishing religion”. (633) religion or belief in worship, State of a religion or a church as a observance, practice and national institution. (616) Justice Aickin (635) adopted the teaching, either individually reasons of Justices Gibbs and Mason. With his knack for exposing a party’s or as part of a community, in Although Justice Wilson considered Achilles’ heel, Mason J said: “It is public or in private. that the plaintiffs’ argument of great significance that, despite concerning the application of section (2) A person must not be coerced the very comprehensive researches 116 carried “great weight” (649), or restrained in a way that limits into the history of the relationship he concluded that the challenged his or her freedom to have or between church and state in the legislation was valid. adopt a religion or belief in Australian colonies, the plaintiffs worship, observance, practice or have been unable to discover any The order of the court was that teaching. instance in which the provision of there be judgment for the financial assistance to churches to be defendants with costs.

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White Ribbon Day: Not Violent – Not Silent

MURRAY MCINNIS, DIRECTOR AND LEAD AMBASSADOR (LEGAL SECTOR) WHITE RIBBON

hite Ribbon Day is held on 25 According to the Chief Commissioner, November each year. At the conclusion of the forum we collectively vowed that I am proud to say that the we would no longer remain silent on the issue of violence Victorian Bar has demonstrated against women and would speak out when we saw it as our a commitment to the White Ribbon responsibility to do so. (The Age 10/4/2014) campaign and has assisted greatly in raising awareness about violence towards women. This year the Victorian Bar will hold an event on 27 Violence towards women can be either physical or non- November 2014 at 5.15pm at the Essoign Club to support physical. Violence can occur across all cultures, professions, the White Ribbon campaign. Members of the Victorian socio and economic groups and regions throughout Victoria. Bar are asked to note the date in their diary now. Further WRecently I was able to attend a forum hosted by details will be provided prior to the event. photo courtesy of david johns of david courtesy photo the Police Chief Commissioner, Ken Lay, at the MCG. As many barristers know, the White Ribbon campaign

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I recognize that this is a major challenge as it requires a major shift in attitude and indeed culture of men in Victoria and throughout the world.

International Day for the Elimination The challenge for all men in of Violence Against Women. The Victoria is to raise awareness about international symbol for this event violence towards women and to is the White Ribbon. ensure that they do not remain silent It is important to note that in on this important issue. Victoria we have the largest number I recognize that this is a major of Ambassadors and hold the highest challenge as it requires a major shift number of events of any State or in attitude and indeed culture of men Territory in Australia. The male in Victoria and throughout the world. Ambassadors voluntarily serve Violence of any kind whether an integral role in supporting the it be physical or non-physical is campaign. unacceptable. The reported statistics in relation The focus of White Ribbon is to violence against women only violence towards women. The tell part of the story. It remains a challenge for volunteer Ambassadors, disturbing story. According to the and others concerned about the issue, Chief Commissioner for the year is to raise awareness about violence to March 2013 in Victoria “there towards women. As the Chief were more than 60,000 recorded Commissioner states, we should vow incidents of family violence”. not to remain silent about the issue. The cost to the community Whilst acknowledging the of family violence in Victoria is extremely valuable work and over $3 billion per annum. commitment of the Victorian Bar Nationally, the cost to the community towards this important issue one is over $16 billion. This is part of does not forget the challenge of the reason why the Commonwealth addressing the issue in the future. Government adopted the significant It is indeed a major issue and all National Council Plan to Reduce members of the Bar should consider Violence against Women and their making some contribution towards Children (published March 2009). the campaign whether by attending commenced when a group of men The problem of physical and the Victorian Bar event referred in Toronto, Canada launched the non-physical violence goes well to earlier in this short article or Canadian White Ribbon campaign beyond reported statistics. Sadly speaking out when confronted in 1991. That campaign was launched the statistics produced only tell with attitudes which may lead after an event which occurred part of the story and many crimes to physical or non-physical approximately two years earlier are unreported. Indeed, there violence towards women. when a young man walked into are many occasions when non- It is hoped that all members a university at Montreal Canada physical violence does not appear to of the Victorian Bar will support armed with a semi-automatic rifle constitute a recognised crime this important campaign. Barristers and a hunting knife. He entered a and accordingly is not reported at all. can find out more information about classroom and then separated male In Victoria it is understood the White Ribbon at whiteribbon.org.au and female students and proclaimed Women’s Domestic Violence Crisis and donate at whiteribbon.org.au/ that he was “fighting feminism”. Service receives thousands of calls donate. He opened fire and killed six women each year to a crisis hotline, but even For my part I am happy to discuss in the classroom. On that day a total those calls only represent a small this important issue with any of 14 women were murdered by him. percentage of the total number of barrister in confidence and can In 1999 the United Nations General victims who suffer either physical or be contacted on my Victorian Bar Assembly declared November 25 the non-physical violence. extension of 7480.

58 VBN VBN 59 60 VBN news and views My Portrait and the Archibald

FRANK WALSH AM QC

n February 2012 I received a telephone The artist has captured the table brilliantly in the call from Sue Johnstone. She is the portrait. The proximate end is clearly shown with widow of Robert Johnstone who, during its memorabilia and the myrtle table-top then fades his lifetime was one of my closest friends away into oblivion. I love it. In the evening of my life at the Victorian Bar. Sue informed me it represents part of my personal history and the that an artist friend was seeking a traditions of the Bar. subject for her to paint for entry into the Archibald In the portrait I am shown turning the pages of a Prize. She asked if I would be prepared to sit for a photograph album which records the launch of my portrait. I accepted with some enthusiasm. autobiography “Splints to Silk”. This book launch The artist, Maree Hart, visited my home and soon took place at the Reader’s Feast bookstore on the sheI was in the process of painting my likeness. The 24th November, 2010. Immediately below the result was a lovely painting in which I am depicted album is a copy of the Victorian Bar News No. 129 – as reflecting upon some of the highlights of my long the Winter Edition 2004. The front cover of life. I now consider that this portrait is steeped in this magazine shows a photograph of myself, history and proceed to record the historical facts clad in white tuxedo, evening wear, carnation in which will hopefully endorse my claim. lapel, and playing the lovely old Conn E-flat alto In the portrait I am sitting in a chair and at a saxophone which I purchased for 35 pounds on table. The table and chair were once the property my arrival in Melbourne in 1949. The saxophone of the Victorian Bar. The Bar had established a bears an inscription of manufacture, made in 1929. It social club known as the Essoign Club, which is therefore more ancient than me. originally had its home on the 13th floor of Owen With the ‘Judge Frank Walsh All Stars’ I Dixon Chambers. There were 12 myrtle-topped entertained the members at the Victorian Bar dining tables and 120 old colonial chairs. In its Dinner held at the Zinc Function Centre at wisdom, the Bar, under the chairmanship of Ken Federation Square on Saturday 29th March, 2004. Marks QC (later Mr Justice Marks of the Supreme This was one of the magic events of my life. One of Court of Victoria) decided to replace the tables and the accoutrements in my possession on that occasion chairs. Until that time they were used by members was the walking cane which is suspended over my of the Bar for lunch each day and were occupied by right arm. This had been the property of Sir Henry members in an orderly fashion. In that manner the Abel Smith, Governor of Queensland. He gave it to most junior member could find himself or herself Senator Neil O’Sullivan who, in turn gave it to his sitting next to the most senior justice of the High son, Michael O’Sullivan QC. O’Sullivan gave it to Court or Supreme Court. me as he said “Your need is greater than mine.” The tables and chairs were replaced by white I still have it. pinewood tables and chairs and the Bar Catering The next photograph, which is reproduced in and Functions Committee was given the task oils in the portrait, shows the presentation to me of disposing of the old tables and chairs to best of the Order of Australia Medal (AM) by Mr John advantage. I was the chairman of that committee. Landy, the Governor of Victoria at Government With a somewhat heavy heart, I advertised the old House on 27th May 2004. From my perspective tables and chairs for sale. There were no takers this was another wonderful event. Landy had except a hotel keeper who offered $120 for each studied at the University of Melbourne at the table and $10 for each chair to use in his bistro. same time as myself – albeit in a different discipline. I was distraught and personally, I suggested that My membership of the Order of Australia is one of we offer them to the members of the Bar at these my proudest achievements. prices. The members of the Bar Catering Committee The artist then chose to paint the photograph of and then the Bar Council agreed. There was an myself with Mother Teresa of Calcutta. In November abundance of applicants so we drew lots for the 1973 I was the site director at St Patrick’s Cathedral tables and chairs. I was one of the successful for the Eucharistic Congress which took place applicants and the table and 10 chairs have during that month. The photograph was taken adorned our family dining room ever since. while I was enjoying the honour of conversing with

60 VBN VBN 61 Mother Teresa in the front courtyard The only defence witness was my wife Mary. of this cathedral. My obligation as site director was to regulate the I sacked my barristers, Mr Patrick Tehan QC news and views news conduct of people in the cathedral and Ms Julie Nicholson (as all good crims do) and to protect all of the prelates and and I presented my own case. religious people who attended the cathedral. I attribute great value to was handed in at the Castlemaine Blackburn as foreman. Blackburn my friendship with a lady who must Police Station by my daughter Tess, had been my junior in the last case one day become a saint. then a sergeant of police. I was then which I had presented as a silk to There follows in the portrait a taken in a divisional van to the old the Supreme Court of Victoria. The representation of a photograph of my Castlemaine gaol. Upon arrival the prosecution witnesses were my nine wife Mary and myself in an English police member went to the rear of children. The only defence witness country garden in the year 1996. I the Divvy Van, placed my right arm was my wife Mary. I sacked my am very glad that Mary figures in my in handcuffs and escorted me into barristers, Mr Patrick Tehan QC and portrait. She has meant so much to the gaol. A substantial number of Ms Julie Nicholson (as all good crims be over the years and her omission guests had assembled and a hilarious do) and I presented my own case. would deprive the portrait of introduction was accompanied by A good night was had by all. historical validity. We have so enjoyed boos and catcalls. My portrait is accordingly our travels and reflect upon them During the evening my trial steeped in history. My eldest son, with pleasure. took place. The trial judge was Mr Peter, who is presently Chief of The original of the next Barry Mahoney, a retired district Staff for the Minister of Transport photograph was taken outside the court judge from New South Wales. in Queensland, advised me to old Castlemaine gaol on 1st February The senior prosecutor was Justice prepare this commentary for 2001. My 70th birthday party was John Winneke who led Ms Michele presentation with the portrait. held at that venue. I was charged Williams SC in that activity. The jury I failed to do this. Perhaps it with the offence of attempted consisted of 11 judges of the County was an omission, although I still longevity. Early in the evening I Court of Victoria with Mr David consider that my reasons were valid.

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20131101 Vic Bar News Blackwood Family Lawyers.indd 1 11/1/2013 11:53:53 AM 62 VBN news and views RedCrest

A paradigm shift for the Supreme Court towards e-filing and electronic case management. THE HON JUSTICE VICKERY*

he Supreme Court has developed an workable and secure format. It will offer a range of electronic system to improve efficiency state-of-the-art features to assist in the management and timeliness. Computers in common of a case from start to finish and will significantly use in large commercial projects enhance communications between the Court and those and everyday transactions are major participating in litigation. The electronic file created in contributors to the production of huge RedCrest will become the Court file in a proceeding in volumes of documentation in litigation. This in turn poses the Commercial Court. This may be accessed 24/7 by the a serious challenge to access to justice and the timely and Court, legal practitioners (barristers and solicitors) and cost effective disposition of cases. others who have been approved by the Court and issued Harnessing the full potential of the computer itself with a username and password. All documents in the Tcan, on the other hand, provide a valuable management case file, including filed documents and transcripts, will tool to deal with the problem, for the benefit of the Court, be accessible by solicitors and counsel and registered practitioners and litigants. litigants for viewing and use. With this aim in mind, the Supreme Court, supported The system is designed with simplicity as a central by the Department of Justice and the Department of feature. For most users it will require little or no training. Technology, embarked on the “RedCrest” project. 1 RedCrest will provide time-saving and cost RedCrest represents a paradigm shift for the Supreme efficiencies for the Court, the legal profession and Court from a hard copy document filing system to a case- the public. To measure time savings, in 2012 the centric electronic filing and case management system. Court commissioned a productivity analysis by The project started in the TEC List of the Court as a the Department of Justice. The time savings are pilot project on 22 September 2011. Following a successful summarised below (based on a four-day trial): trial with over 400 users, further development of the system has now taken place for the Commercial Court. It ROLE ESTIMATED SAVINGS OVER is proposed to introduce the system progressively to other A FOUR-DAY TRIAL divisions of the Court. By using a well-tested commercial Judge & Associate Judge 8.5 hours per case software platform, costs have been modest for this type of project and operational efficiency has been maximised. Associate 5 hours per case It is well-accepted that IT projects are high-risk Registry 1.5 hours per case enterprises. By adhering to special risk management principles developed during the project, RedCrest will be Solicitor 11.25 hours per case constructed to budget and delivered on time. From the commencement date, scheduled for 1 August Barrister 6 hours per case 2014, the filing of documents in the judge-managed lists Public 1 hour per case of the Commercial Court2 will be done electronically via the web. A new Originating Process will be available The Court welcomes continuing input from the online to commence a proceeding [www.RedCrest.com. profession to keep abreast of developments and desirable au]. The procedure will be governed by the RedCrest upgrades for the system. 3 Rules , supported by a Practice Note, User Instructions * Justice Peter Vickery is a Judge of the trial division of the and online training films. Supreme Court of Victoria. He is Judge in Charge of the In the initial phase, from 1 July 2014, RedCrest will Technology, Engineering and Construction List and the RedCrest Project for the Court. commence online operation for training purposes. From this time, the system will go live with sample 1 The name is derived from the Court’s red seal in everyday use. training cases loaded into the system, but new 2 RedCrest will initially be used for Commercial List matters cases will not be accepted for filing until 1 August. (Order 2 of Chapter 11 of the SCV Rules); TEC List matters (Order 3 of Chapter 11); judge-managed (not associate judge- Usernames and passwords will be issued during the managed) corporations matters (Chapter V); and Intellectual training period to gain access to the full system. Property List matters (Order 2 of Chapter V111). RedCrest will provide a comprehensive “one-stop 3 To be introduced into the Supreme Court (General Civil shop” case management system, presented in a simple, Procedure) Rules 2005.

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Mindfulness: a Better Way of Being and a Way of Being Better

Joel Orenstein

he metaphor of lawyer as warrior is There are hundreds of ways to practice meditation, celebrated in fact and fiction. Yet for a but mindfulness, or mindfulness-based meditation, is profession beset by stress, the scars of perhaps the most evidenced-based meditative forms in war are increasingly manifest through secular health care. Over the past 30 years, studies have early burnout, cynicism, and increased shown mindfulness to be an extremely effective, non- incidence of depression, anxiety, pharmacological treatment for chronic pain, depression, mental illness, relationship breakdown and substance anxiety and other stress-related conditions.2 abuse.1 Although there is a growing awareness of the Throughout the country lawyers are training in high indicators of poor mental health amongst lawyers, mindfulness as a way to manage their stress, balance perhaps lesser-known is the growing community of legal their emotions and improve the clarity and effectiveness Tpractitioners engaging in meditation to promote their own of their thinking. In an effort to promote the wellbeing

illustration by guy shield/the slattery media group slattery guy shield/the by illustration health and wellbeing. of barristers , the Victorian Bar Readers’ course now

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contains an introductory session If you stop and watch your thinking for a moment on mindfulness. Over the past you will notice very quickly that the human mind is a 12 months, the Bar’s Health and wandering mind. Wellbeing Committee has twice offered six-week introductory noticing what is happening in and emotional regulation. Scans mindfulness courses and an ongoing each moment without attempting of long-term meditators indicate a practice group meets fortnightly in to change anything. It is self-help thickening of the brain in the areas the legal precinct. that is immediately available and is associated with the senses, memory But what is mindfulness and why radically different to our habitual way and executive functioning, which is it proving to be such an effective of dealing with life’s ups and downs, may slow the aging of the brain and tool for successful lawyering? as it does not require eliminating reverse the negative effects of long Mindfulness difficulty or imagining ourselves term stress and depression.4 in a better place. With mindfulness Mindfulness in its most basic form is Mindful Lawyering we learn to discover a storehouse simple present-moment awareness. Stress and conflict are a daily of clarity and calm that has been Mindfulness is not thinking. It is occurrence in legal practice – phones here all along. awareness of thinking, of emotions, ring, emails pile up, deadlines loom, With perseverance of practice, and of the ways we experience clients cry, judges yell, machines we are able to observe with greater the sensory world through seeing, break, files are lost, mistakes are clarity, cutting through the distortions feeling, hearing, tasting and smelling. made, long hours are worked, cases and reactions that habitually form Mindfulness practices develop and are lost, etc, etc. the basis of our thinking. We can live cultivate this faculty by purposely The reality of legal practice is life more fully and less on automatic paying attention to what is occurring that we are continually confronted pilot, thus being more present in our inside and outside of us, moment-to- with people at their worst in an own lives. moment, in a non-judgmental and environment that can be extremely open-hearted way. The remedial effect of toxic, combative and played at very high stakes. Because legal practice mindfulness Why would we want to is so often highly charged, our Stress is a natural response that is ability to manage our thoughts and develop and practice coded into our systems by nature emotions when under stress will be mindfulness? in order to preserve life. The stress the measure of our success or failure Basically, mindfulness makes us response is appropriate if it is only as lawyers. feel better balanced. With awareness turned on when it needs to be and Mindfulness therefore has a we are able to better deal with is turned off when it is no longer direct and immediate relevance the ups and downs of life by needed or prolonged. When activated to legal practice. directly counteracting the inappropriately, we experience it as Yet mindfulness has greater negative effects of stress. agitation and anxiety, which over time relevance than just stress reduction. If you stop and watch your takes a huge toll on our mental and Mindfulness helps us to be fully thinking for a moment you will physical health. present, to be aware of our own notice very quickly that the Studies have shown mindfulness thoughts and reactions and more human mind is a wandering mind. to reduce activity in the amygdala, in tune with those of others. Inattention and distraction forms the overactive stress centre of the Consequently we are able to listen the majority of our daily mental brain. Apart from stress-reduction, with more presence, space-out less activity as the mind constantly mindfulness has been shown to be and remain focussed for greater seeks favourable experiences and beneficial in a growing list of other periods of time. pushes unfavourable experiences applications. These include improved Greater focus and calm naturally away. The result of wandering is immune function, chronic pain improves the clarity of our decision- distorted thinking, dissatisfaction, relief, depression relapse prevention, making. Remaining centred through worry and churning of the mind, treatment for anxiety, panic disorder, mindful awareness allows our which is at the heart of stress, emotional imbalance, addiction and intelligence and wisdom to function anxiety and depression. By insomnia.3 fully, which has an enormous practical grounding yourself in awareness Neuroscientists have also observed benefit on our skill base as lawyers. of all that is occurring, including that mindfulness enhances executive At the same time, the more we the wandering itself, you no longer functions of the brain, assisting are mindful, the more external need to get dragged along by it. short-term memory, processing circumstances stop affecting us in Simply put, mindfulness is just information, making decisions the same way they once did. In this

VBN 65 With practice, mindfulness can be immediately is at the core your being. And because mindfulness is not dependent upon available in any moment, even the most stressful. external circumstances, it is effective news and views news even in the most outwardly stressful way the unpredictability of life does Mindfulness is usually taught to moments. not dictate our functioning, nor cause groups as the energy of the group Given the highly charged and us the same distress. Consequently, generally assists you to motivate unpredictable nature of legal whether we win or lose, how well we your own practice. You can also often practice, mindfulness therefore is slept, whether we receive praise or relate to the experience of others to invaluable. As more and more of criticism, is no longer determinate of gain greater insight. At the same time us are discovering, mindfulness is our level of satisfaction or success. it helps to learn from a teacher who a core resource that not only makes We also begin to see and react to has a thorough background in the us healthier, but also makes us others differently. We recognise in practice and is experienced in talking better lawyers. others what we ourselves are also about it with others. Joel Orenstein is the Director of dealing with – stress, fear, anxiety, Although mindfulness sounds Mindful at Work, a Melbourne-based excitement, anger, distractedness - simple enough, in practice, at least training and consultancy practice and realise that on this basic level, initially, it is quite difficult and dedicated to bringing mindfulness into we are all alike. Consequently, for many it can take discipline, the workplace to improve wellbeing, we have increased patience with motivation and time to develop a new sustainability, job satisfaction and others and our empathy naturally positive habit. With perseverance, performance. He is also a lawyer and grows. This inevitably assists our however, you will soon discover that runs a sole practice working in the relationships at work, as well the benefits of regular mindfulness area of Indigenous rights, summary as with family and friends. practice far outweigh habitual crime and child protection. Joel is a unawareness and the rollercoaster long-time meditator and consciously of stress reactivity. Learning to Practice integrates mindfulness practices into As you integrate mindfulness his legal practice. Over the past nine Mindfulness into your life, you soon begin to years Joel has run regular workshops, Generally one cultivates the experience mindfulness practice courses and retreats for lawyers ability to be mindful through as a compassionate act of self-care, and other professionals focused on formal meditative practices, rather than a chore that gets in integrating mindfulness practices and then applies that ability the way of your busy life. With this with professional life. He currently in everyday life where it is understanding, practice becomes facilitates mindfulness programs to most needed. With practice, filled with meaning and can become barristers through the Vic Bar Health mindfulness can be immediately truly transformative. and Wellness Committee. available in any moment, even the most stressful. Conclusion 1 For a detailed synopses of the latest studies on legal practitioner health and Learning mindfulness is essentially There is no doubt that being a wellbeing, see, Dr Michelle Sharpe, a personal discipline based on legal practitioner is stressful. “The problem of mental ill-health in the your own process of enquiry and And although stress is a natural profession and a suggested solution” in Francesca Bartlett, Reid Mortensen experience of the results of this biological response to perceived and Kieran Tranter (eds), Alternative enquiry. Consequently no amount or actual threats, if left unchecked Perspectives on Lawyers and Legal of reading or research can teach or ignored, the effects of stress Ethics: Reimagining the Profession (Routledge, 2011) you what it is about - you need to can be disastrous to your health. find out for yourself through the Mindfulness is a direct antidote 2 Jeff Brantley, “Mindfulness FAQ” in Barry Boyce (ed), The Mindfulness practice itself and, based on your to the negative effects of stress. Revolution (Shambhala, 2011) 40. own subjective experience, determine But mindfulness goes beyond stress 3 Ibid; see also Craig Hassed, “The whether it is effective. relief, fostering better balance, health benefits of meditation and being Like any lifestyle change, however, increased understanding and clarity mindful” Lecture notes from lecture you actually need to do it for it to in thinking, improved relationships presented at Monash University, 2012. be effective. And similar to physical and empathy with others, and an 4 Hassed, above n 3; see also SW exercise, it is regular, daily practice improved overall sense of wellbeing. Lazar et al, “Meditation experience is associated with increased cortical that is required to experience the No doubt suffering poor mental thickness.” (2005) Neuroreport 16(17) most benefit. Although there is no health can be hugely disempowering. 1893; E Luders et al, “The underlying exact science as to what is optimal, 30 Looking after your own wellbeing anatomical correlates of long-term meditation: larger hippocampal and minutes per day of formal meditation through mindfulness practice is a frontal volumes of gray matter” (2009) practice is a good yardstick. way of rediscovering the peace that Neuroimage 45(3) 672.

66 VBN Ethics Committee BULLETINS

Ethics Committee Bulletin 1 of 2014 email communications – private disputes Rule 119 provides:- When sending any correspondence, including email “A barrister may not use or permit the use of the correspondence, barristers ought to bear Rules 119 and professional qualification as a barrister for the 4(c) in mind, in particular when the correspondence advancement of any other occupation or activity in concerns a private dispute. which he or she is directly or indirectly engaged, or It is not appropriate to include professional for private advantage, save where that use is usual or qualifications or to identify as a barrister when reasonable in the circumstances”. communicating in respect of a private dispute Rule 4(c) prohibits barristers engaging in conduct HELEN SYMON QC which is likely to bring the profession into disrepute. CHAIR When sending emails, many barristers use an electronic sign-off, identifying them as a barrister and showing their chambers address.

67 VBN VBN 67 OF THE LiftBack In this Back of the Lift Section of the Victorian Bar News, the Bar acknowledges the appointments, OF retirements, deaths and other honours of past and THE present members of our Bar that occurred up to 20 LiftBack May 2014. Adjourned Sine Die 68 Adjourned Sine Die Federal Court The Hon Justice Dodds-Streeton BY MEREDITH SCHILLING 68 Court of Appeal The Hon Justice Coghlan BY VBN 69 Federal Court of Australia Supreme Court The Hon Justice Curtain BY PAUL ELLIOTT QC 70 Silence All Stand 71 Supreme Court of Victoria, Court of Appeal The Hon Justice Beach BY JEREMY RUSKIN QC AND STEPHEN O’MEARA QC 71 Supreme Court of Victoria The Hon Justice Rush RFD BY LISA NICHOLS 71 County Court of Victoria His Honour Judge Dyer BY KAYE MCNAUGHT 72 Her Honour Judge Quin BY HER HONOUR JUDGE BOURKE 72 Magistrates’ Court of Victoria His Honour Magistrate Alger BY JOHN MARQUIS 73 His Honour Magistrate Schultz BY JOHN MARQUIS 73 His Honour Timothy Walsh BY VBN 74 Her Honour Magistrate MacCallum BY TIMOTHY MCEVOY 74 Obituaries 75 David James Belson BY VBN 75 Gregory (Greg) Joseph Meese BY IAN PERCY 75 The Hon Norman O’Bryan QC BY NORMAN O’BRYAN AM SC 76 John Fouhy Kearney AM QC BY CHRIS WREN QC 77 The Hon John Francis Fogarty AM BY HIS HON JOSEPH KAY 77 Henry Jolson OAM QC BY TOM DANOS 78 Eileen Stuart BY HIS HONOUR JUDGE BILL STUART 79 Lucia Bolkas BY MELISSA MAHADY 79 The Hon Justice Dodds-Streeton Barbara Joyce Hocking BY DR BRYAN KEON-COHEN AM QC 80 Lachlan Campbell Carter BY THE HON JUSTICE CROUCHER Bar Roll No 2280 AND CHRISTOPHER BOYCE 81 n 1 April 2014, Justice Julie Dodds-Streeton Rex Patkin BY PETER T FOX 81 retired from the Federal Court, marking 34 years’ Roland Maxwell Lloyd Price BY VBN 82 distinguished service in the law, including more Clarinda Molyneux QC BY ROZETA STOIKOVSKA 82 than 11 years as a judge. Barry George Hepworth BY VBN 83 OHer Honour’s early career was as an accomplished scholar, Ceide Zapparoni BY FIONA MCLEOD SC 84 academic and teacher, first of English history of the Tudor The Hon Dr Peter Buchanan QC BY STURT GLACKEN QC 85 and Stuart periods, and then of company law, corporate Gonged 85 insolvency and intellectual property (to name but a few of Victorian Bar Readers’ Course 86 the many subjects taught by her Honour over almost 20 years as an academic at the University of Melbourne). It is not an Quarterly Counsel 88 exaggeration to say that a good proportion of the Victorian Bar benefitted from her Honour’s inspired teaching in one form or another. Her Honour’s love of scholarship and diverse academic interests resulted in a formidable list of publications on topics

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ranging from The development of the with whom she worked and served He signed the Bar Roll on 9 Egyptian Empire in the 18th Dynasty, reflected her humanity and unfailing February 1978, reading with Fred to The Impact of the Roman Law of good humour. James, and went on to have 4 readers: Succession and Marriage on Women’s Her Honour will be greatly Christine Giles, Patrick Southey, Dr Property and Independence. missed by all members of the legal Chris Corns and Dr David Neal SC. Her Honour came to the Bar community who had the good fortune His Honour’s practice at the Bar in 1988 and read with Joseph to work with or appear before her. specialised in crime, including the Santamaria (then QC). Her Honour MEREDITH SCHILLING prosecution of many significant quickly developed a substantial cases both at trial and appellate practice in company and commercial Court of Appeal level. His Honour was a generous law, working frequently alongside contributor to the Bar, serving on Simon Whelan (then QC) in the Executive Committee of the particular, in the significant litigation Criminal Bar Association, the Bar arising from the corporate collapses Library Committee and teaching in of Pyramid Building Society and the Readers’ course. His Honour’s Ansett Airlines. Her Honour was commitment to Advocacy Training also counsel assisting the HIH included regular participation in Royal Commission. During this time Advocacy Skills Workshops in Papua her Honour served as a director of New Guinea, Vanuatu and Fiji. BCL and for more than 15 years on In 1990, his Honour succeeded the Law Council Insolvency and Judge Dee as Associate Director Corporate Reconstruction Committee. of Public Prosecutions for the Her Honour took silk in 2001 and Commonwealth. He returned briefly in July 2002, was appointed a judge to the Bar before being appointed of the Victorian Supreme Court, Senior Crown Prosecutor (major where she served for more than five cases) for the Victorian Office of years. In August 2007, her Honour Public Prosecutions on 1 July 1994. was appointed a Judge of Appeal in His Honour took silk in 1995, the that court. And in February 2010, her same year he was appointed Chief Honour was appointed to the Federal The Hon Justice Coghlan Crown Prosecutor. Court of Australia. Her Honour His Honour became Director Bar Roll No 1366 brought intellectual depth, analytical of Public Prosecutions in 2001 skills and a prodigious capacity for n 7 February 2014 at a well- and served in that role until his hard work to her judicial work. attended ceremony at the appointment to the Supreme Court At her welcome to the Supreme Supreme Court, Bar Chairman bench in 2007. His Honour’s time Court, her Honour quoted the William Alstergren QC farewelled as Director was notable for his advice given to new judges by the Othe Honourable Justice Paul Anthony commitment to meeting and speaking 6th Century Egyptian Sage, Phah- Coghlan, fittingly with His Honour’s with victims and the families of Hotep, who said: “If you are a man daughter Georgina Coghlan of victims of serious crime, as well as who judges, listen calmly to the speech counsel appearing as his junior. his personal appearances in the of one who pleads....Not all one pleads His Honour’s retirement concludes Court of Appeal and the High Court for can be granted, but a good hearing a career spanning nearly 45 years for the most complex and demanding soothes the heart”. As was noted at of service to the law, most recently appeals handled by the Office. her informal farewell, her Honour’s as a highly regarded member of the His Honour served as a judge of judicial manner always adhered Victorian Court of Appeal. the Supreme Court of Victoria from 7 to that advice. She treated all who His Honour was educated at August 2007. From 2010, his Honour appeared before her with the utmost St Joseph’s Christian Brothers held the role of principal judge of the respect, courtesy and patience. College in North Melbourne. He Criminal Division of the Supreme Throughout her career her Honour graduated from law at Melbourne Court. has had the constant support of her University and served articles On 11 December 2012, his Honour husband, Roger Streeton, to whom at law firm Maurice Ryan and was appointed a Judge of Appeal of she said, on her welcome to the Francis Green. A few months after the Supreme Court of Victoria. Supreme Court, any success she completing articles, his Honour The Bar wishes his Honour a long had achieved belonged equally. The moved to the Commonwealth and pleasant retirement with his wife great affection and admiration in Crown Solicitor’s Office where Anne and thanks him for his service. which her Honour was held by all he worked for 8 years. VBN

68 VBN VBN 69 main has presided over back-to-back appointment as Prosecutor for the Supreme Court of murder trials. This is a difficult and Queen for Victoria in August 1987. Victoria often gruelling task. The attention of a Her Honour was extremely busy back of the lift back sometimes critical media bears down during this time practising at the Bar on judges hearing high profile murder as well as being a sessional member cases. Her Honour handled her of the AAT. Court with skill and patience, but no In August 1987 she was appointed tolerance for those who wished to bend as a Prosecutor for the Queen for the the rules or grandstand. Sentencing State of Victoria and served in this is also under intense scrutiny by the role until her appointment to the press and the public. Her Honour was County Court in 1993. Her Honour rarely appealed, a testimony to the was only 32 when she prosecuted balance she achieved in this difficult her first murder trial. Again, being judicial task. a female prosecutor in those days As a County Court judge her was something of a novelty. But her Honour served as an alternative Honour was always respected as an chair to the Youth Parole Board and articulate and intelligent prosecutor. the Youth Residential Board. On Her Honour has sat on many appointment to the Supreme Court committees and served the community her Honour served on the Adult in a wide variety of roles. These Parole Board for more than six years included being a member of the from September 2007 through to executive of the County Court of The Hon Justice Curtain December 2013; including leadership Victoria, a member of the executive of as the first female chair of the Board the Australian Judicial Conference and Bar Roll No 1433 for seven months from the end of a member of the Victorian Criminal or some a career as a judge on May 2013 through to December. The Trials Charge Book Committee. Her the County Court is enough work of the Adult Parole Board and Honour was also head of the County of an achievement, but not the questions of parole have again Court Social Committee, a role in Fso for Elizabeth Helen Curtain. She come under the scrutiny of the press. which she excelled. Her Honour also has achieved a long and successful Her Honour handled this difficult job served as a Deputy Chairman of the judicial career both on the County in a very balanced manner, despite Victorian Racing Appeals Tribunal. Court and the Supreme Court. Her criticism from quarters of the media. An interest in racing has continued Honour was appointed to the County Her Honour was educated at throughout her career and she has Court in November 1993. On the Mandeville, Loretto Convent; and been part of syndicates run by her 13 October 2006 she was elevated at the University of Melbourne, husband Bruce, although perhaps the to the Supreme Court of Victoria, graduating Bachelor of Laws in syndicates have not been as successful and in May 2014 her long judicial 1976. She served articles with as some members would have liked. career of over 20 years came to an John Chamberlain at Cole and Away from the law, she was a great end. Not that her Honour is old and O’Hair, solicitors. She was admitted supporter of her old school and the infirm. After all, she was originally to practice in 1977 and practised Catholic Church. She was director appointed at a very tender age. The as a solicitor for about 18 months of the Jesuit Social Services Limited exact age has remained discretely before coming to the Bar in which conducts a range of diverse unmentioned. Her Honour was one 1978. Her Honour read with community social service programs of the first females appointed to the Lynne Opas QC who later became providing assistance to those in need. County Court and was indeed the Judge Shiftan of the County Court. Her Honour was a member of the youngest to be appointed to that Her Honour practised at the Bar for School Council of Mandeville Hall Court. It appears that her Honour some years in general civil, criminal from 2000 to 2002. She also assisted still holds that record of being the and family law. In 1984 she was the Sisters in their work in the youngest judge to serve on the appointed a sessional member of Loretto Vietnam Australia program at County Court. the Motor Accidents Tribunal. The the Phu My orphanage in Ho Chi Min On the County Court her Honour Victorian Administrative Appeals City in 2001, which assisted young heard a wide variety of cases, Tribunal, AAT, was established Vietnamese students in rural and although concentrating in the criminal in 1984 and began operations in intercity areas. jurisdiction. On the Supreme Court 1985. Her Honour was appointed as Her Honour has also taught her Honour has sat almost exclusively presiding member of that Tribunal advocacy in the Bar’s 1999 Trial in the criminal jurisdiction and in the and served for 2½ years until her Advocacy Workshop in Dhaka

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Bangladesh and in 2005 the appellate advocacy course in Port Moresby, Silence All Stand Papua New Guinea. She has also instructed on the Bar readers’ course for many years and her Honour has Supreme Court of Victoria, Court of Appeal assisted in tailoring the careers of over 300 barristers including many The Honourable Justice Beach future judges, prosecutors and silks. She has always described Bar Roll No 1926 the teaching of advocacy as being t Disneyland there is discussions, as the parties know that a fantastic experience. a rollercoaster called after the introductory “3, 2, 1” the case During her time at the Bar her A“California Screamin’”, where will move at warp speed until the Honour thoroughly enjoyed its riders are strapped in and blast off participants are later ejected from collegiate spirit and made many from a standing start preceded by a the Courtroom. strong and lasting friends. In blaring audio countdown: “3, 2, 1 …”. Notwithstanding the rapidity that particular, she has recalled her Minutes later the shaken riders are so characterises his Honour’s style, days as a tenant of the 6th floor of unsentimentally extracted from the his Courtroom is always impeccably Four Courts Chambers as being carriage and replaced in time for the conducted and his judgments are her “salad days”. Her hobbies next launch. admirable repositories of sound included theatre and in particular His Honour’s recent elevation legal principle often explained the Melbourne University Tin Alley brings the excitement of California via a commendable embrace of the Players. She made a memorable to the Court of Appeal. His virtues of simplicity, practicality appearance in the 1984 Victorian Honour’s elevation is undoubtedly and common sense. Bar Review playing the bombshell to be welcomed by the profession, For all of these reasons his barrel girl, Debbie, to the lecherous particularly those members of the Honour’s elevation to the Court compare, “Fabulous Phil”, played by Common Law Bar most familiar with of Appeal must be welcomed and Paul Elliott QC. She was extremely his Honour’s methods. With those celebrated, and the journey ahead friendly with Douglas Salut QC methods in mind, we anticipate to be admired. who has unfortunately been recommending that the Court consider We are conscious that we have deceased for many years and is not dispensing with the traditional spent this little time drawing with us to celebrate her farewell announcement of parties and attention to his Honour’s many from the Court. salutations in favour of an introductory virtues, although his Honour would Her Honour in recent years has “3, 2, 1”. We’re sure this would find himself regard these words as married her long term partner Bruce favour with his Honour, who for years inexcusably bloviated. Embracing the Huston at the Mandeville Chapel now will have been bemused by such spare methods of Beach JA himself followed by an extremely enjoyable surplusage: “everyone there knows we should have replaced 424 words reception at the Long Room in the who the parties are, that’s why they’re with a mere 14: “Beach has been Melbourne Cricket Club. Her Honour there, right?” elevated to the Court of Appeal, brace has always felt strong ties to her His Honour’s no-nonsense, but yourself for the ride!”. family, particularly her mother and acute and always efficient style, is JEREMY RUSKIN QC father who were the licensees of the familiar to all who have had the AND STEPHEN O’MEARA QC Beaconsfield Hotel and her happy considerable benefit of experiencing upbringing in St Kilda. him as a fellow barrister and, in Supreme Court of Her Honour plans to spend the course of the last six years, as a longish periods of time overseas member of the Supreme Court trial Victoria in her retirement particularly in division. His Honour could never use Paris and New York. The number of three words when one would do. In The Hon practitioners, judges and friends who an age in which cases seem to get attended her farewell is testimony to longer because legal problems seem Justice Rush RFD her long and successful career. She to be ever more complicated, his Bar Roll No 1286 hosted an enjoyable drinks party in Honour’s style endangers the trend n the occasion of his welcome the Supreme Court and later a dinner (as well as the lives of any who might to the Supreme Court of for close friends on her retirement. attempt to run a case long rather Victoria his Honour was The Bar wishes she and Bruce well in than short). His Honour’s approach described as a giant of the common her retirement. also has the collateral benefit of Olaw and a true leader of our PAUL ELLIOTT QC facilitating clear-minded settlement profession. His Honour’s career has

70 VBN VBN 71 been marked by integrity and courage to the heart of the issue. His Honour’s Monash and Kew. His Honour has in the pursuit of justice, formidable success in court was fuelled by long also been a participant in many other advocacy and by his treating with hours of meticulous preparation. sports which have included cricket, back of the lift back graciousness, dignity and respect, all His Honour is well-known for his football and baseball. His Honour now who come across his path. warmth and good humour and for his enjoys cycling on the weekends. During his 31 years as a barrister generous mentoring of both junior His Honour came to the Bar in (22 as Queen’s counsel), his Honour barristers and instructing solicitors. October 1980, participating in the appeared in many ground-breaking His Honour served for 13 years on second readers’ course conducted by cases, often long, difficult cases, Bar Council, including as Chairman the Bar. His Honour read with Frank among them the first cases for of the Bar. Ellis, whose practice was exclusively Wittenoom miners suffering asbestos His Honour is a Captain of the in worker’s compensation, and also disease, the PQ contaminated blood- Royal Australian Navy. Having Con Heliotis, who practised in crime. products case, the Stolen Generations enlisted in the Navy Reserves in 1982, In his early years at the Bar his case and Rolah McCabe’s case his Honour went on to appear in Honour had a general practice in the against British American Tobacco. numerous Courts Martial, inquiries Magistrates’ Court before specialising His Honour appeared in a number and investigations. His Honour was in workers’ compensation and later of significant inquiries including as recently awarded a Chief of Navy Gold common law. His Honour respected Counsel Assisting the 2009 Victorian Commendation for his exceptional the cab-rank principle at the Bar, and Bush Fires Royal Commission and the service to the Australian Defence appeared for plaintiffs and defendants 2007 Inquiry investigating the crash Force in the field of military law. throughout his career. During the of the Army’s Black Hawk helicopter, His Honour has an abiding love 1990s, his Honour developed a and in the James Hardie Commission of the St Kilda Football club and mediation practice and was one of the of Inquiry. In 2012 his Honour was, at the time of his appointment, first nationally accredited mediators. was commissioned to conduct the a member of the club’s board. His Until his Honour’s appointment he Victorian Public Sector Commission’s Honour played football for the Old was retained as a mediator largely in inquiry into the senior structure of Xaverians, whom he passionately common law matters. Victoria Police. supports. It is rumoured that it was His Honour had five readers, His Honour’s advocacy was a knee injury alone that kept his Maria Pilipasidis, David Podger, Dean characterised by tenacity, forensic Honour from a stellar football career. Churilov, Patrick Kelly and Phillip precision and masterful cross- The Bar wishes Justice Rush every Johnstone. His Honour hopes that examination. His Honour’s words success in his new role. his time on the bench will afford were never wasted, driving straight LISA NICHOLS him a similar degree of professional satisfaction to that achieved as a barrister. His Honour is married to County Court of Victoria Susan, a retired secondary school teacher, and has three children, Lisa, His Honour Judge Dyer Nicholas and Timothy. KAYE MCNAUGHT Bar Roll No 1587 Her Honour Judge Quin obert Dyer was appointed Hon A A Street and divided his time Bar Roll no 2725 to the County Court on 6 between Melbourne and Canberra. November 2013 following Before coming to the Bar, his Honour n 7 March 2014, Claire Quin Rmore than 33 years at the Bar. completed articles with Maurice was welcomed to the County His Honour was educated at Xavier Blackburn & Co and then worked Court. Whilst Chief Judge College and at Monash University, as a solicitor for two years in the Rozenes’ reference to “Claire Bear” where he completed a Bachelor firm of Wisewoulds. Omay have conjured up visions of a of Jurisprudence in 1973 and then Whilst at university his Honour soft toy, her Honour’s distinguished studied a law degree part-time, which developed a desire to succeed in legal career bears no resemblance to he completed in 1977. During this motor sport and won a State junior her namesake! time his Honour worked for some rally series in the car which he used Her Honour was educated by four years with the Commonwealth to drive to university. There are fellow the Presentation Sisters, initially Department of Employment and students who travelled with his at Presentation Convent Windsor, Industrial Relations. In the final year Honour who will recall that much of and she completed her secondary of study his Honour worked as a his Honour’s motor sport training was schooling at Star of the Sea liaison officer with the then Minister, conducted in the back streets between Gardenvale. Judge Quin went on to

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Monash University, graduating in a of the Parliamentary Committee and officer before he commenced work Bachelor of Arts and a Bachelor of her Honour’s name was mentioned as a police prosecutor in 1988. Such Law with Honours. in the Second Reading debate in was the quality of his Honour’s After a very brief encounter with the Assembly, thanking her for her prosecutorial skills that he was the commercial law at Clayton Utz, contribution. headhunted to work at the Research where she did her articles, her In addition to a very busy legal and Training Section of the Victoria Honour set off on a path that was to practice, her Honour has managed Police Prosecutions Division. There, be her life for the next 24 years in to juggle, with the assistance of his Honour’s contribution to the the criminal law. her husband, Ben, the demands of Victoria Police Prosecution Manual Her Honour was Associate to the bringing up a young family, now aged and to the continuing development Honourable Justice Vincent in the from 11 to 17. They were present of the prosecutors’ course was Trial Division of the Supreme Court, at her welcome, as were numerous significant. His Honour was noted including at a time when his Honour members of the Bourke and Quin for his professionalism, attention to presided over the Walsh Street families and her Honour’s many detail, his dry sense of humour and killings’ trial. friends and colleagues. his sense of calmness and stability. On After two years with Justice Outside the law, her Honour is a a number of occasions, his Honour Vincent, her Honour came directly to very “proud, passionate and paid up” was upgraded to perform duties as the the Bar, where she read with Geoff member of the Hawthorn Football Acting Senior Sergeant in Charge of Flatman QC, later the Director of Club, regularly attending games with Research and Training. Public Prosecutions and a Justice of her family. In the non-football season, His Honour completed a Bachelor the Supreme Court. her Honour’s energies are directed of Laws with Honours at Monash Her Honour signed the Bar Roll towards horse racing in a number of University in 1995 and commenced in May 1992. Her initial practice was roles – owner, former member of the articles with the Victorian in the Magistrates’ and Children’s Racing Appeals Disciplinary Tribunal Government Solicitor’s Office. It was Courts, doing crime and appearing and, during Spring Carnival, the host a great loss to the police prosecutions in child protection cases for the for many years of one of the most division when his Honour left Victoria State of Victoria. popular car park parties in ‘Nursery Police to join the Bar in 1998. His It was not long until her Honour on the Rails’. Honour practised with distinction at moved into higher jurisdictions, I am sure, as her Honour concluded the Bar for 15 years. frequently being junior to Paul in her reply to the welcomes of the His Honour had, as expected, a Coghlan QC, later a Justice of the Law Institute and the Victorian Bar, successful practice in criminal law Supreme Court, and Gavin Silbert SC. that she “will do her best” in her new but also worked equally as well in During that time, her Honour also role on the Bench and be a valuable family and civil law. His Honour often appeared without a leader in addition to the Court. performed work as a volunteer a number of major Supreme and THE HON JUDGE BOURKE supervisor with the Springvale County Court trials and also in the Monash Legal Service and served Court of Appeal. as an assessor and moot court judge Between mid 2007 to the end of Magistrates’ Court for the Bar readers’ course. 2010, her Honour was assigned to the of Victoria His Honour is a welcome addition to Special Sex Offences Unit within the the Magistrates’ Court. His Honour’s Office of Public Prosecutions, a role background, attributes and ability will which at times was harrowing but His Honour serve both him and the community rewarding. Magistrate Alger very well. Most recently, for 18 months JOHN MARQUIS Bar Roll No 3218 from August 2012 to November 2013, her Honour took on a n 10 September 2013, his His Honour full-time secondment from the Honour Ian Alger was Magistrate Schultz Office of Public Prosecutions to appointed to the Magistrates’ Bar Roll No 2619 be Senior Legal Counsel to the Court of Victoria. Victorian Parliamentary inquiry OPrior to taking up law, his Honour n 6 November 2013, his into the handling of child abuse by worked as a telecommunications Honour Barry Schultz was religious and other non-government technician before serving with the appointed to the Magistrates’ organisations that resulted in the Victoria Police Force for 20 years and Court of Victoria. landmark “Betrayal of Trust” report. rising to the rank of Sergeant. OHis Honour served as a police officer Her Honour’s work in that inquiry His Honour worked for some with Victoria Police for 24 years from was commended by the Chairman 10 years as an operational police 1967 to 1991. His Honour worked

72 VBN VBN 73 for a time in public relations for the prepared and a great source of fun. reaches the bench well-equipped to Police Force, performing these duties His Honour, very successfully, meet the challenges of working in the informatively and with poise and practiced at the Bar for more than busy Magistrates’ Court in which he back of the lift back sophistication. His Honour positively 22 years mainly in the area of will be called upon to deliver justice impressed those members of the criminal law. His Honour appeared to people in our community. public fortunate enough to meet for both the prosecution and defence, We congratulate his Honour on him in the course of these duties. displaying his trademark urbanity, his appointment and wish him all His Honour was admitted compassion and professionalism. His the best in his new role. to practice in December 1988, Honour’s practice included appearing VBN performing duties as a police on the Morwell and Bendigo Circuits. prosecutor until his Honour left to His Honour had served for a number Her Honour complete the March 1991 readers’ of years as a senior Instructor at the Magistrate MacCallum course. His Honour’s departure Leo Cussen Institute in the areas resulted in the loss of great of Advocacy and Criminal Law. His n 18 March 2014 the Governor experience and ability from police Honour’s instruction was always in Council appointed Mary- prosecutions. As a police prosecutor, characterised by charm, organisation, Anne Elizabeth MacCallum to his Honour was possessed of great preparation, and, of course, great the Magistrates’ Court of Victoria. ability, professionalism and attention competence. His Honour had also OHer Honour graduated BA, to detail. His Honour was a pleasure served as a moot court magistrate in LLB (Hons) from the University to deal with both socially and the Bar readers’ course. of Melbourne. She was admitted professionally. His Honour is a welcome to practice on 3 April 1995 after His Honour signed the Bar Roll appointment to the Magistrates’ Court. having completed articles at Allens on 30 May 1991 and read with Max His Honour’s great experience, ability Arthur Robinson. In 1994-5 her Perry. Max Perry found his Honour, and professionalism will enable him to Honour served as an Associate to both as a reader and after signing perform his duties admirably. the Honourable Michael Black AC the Bar Roll, to be professional, well JOHN MARQUIS QC, then Chief Justice of the Federal Court of Australia. His Honour Magistrate Walsh Her Honour worked as a researcher and assistant lecturer Bar Roll No 3321 at Monash University, before being n 19 November 2013, Timothy his Honour read with Joe Gullaci called to the Victorian Bar in March John Walsh was appointed (who recently retired from the 1998 (as Mary-Anne Hughson), to the Magistrates’ Court of County Court). reading with Russell Berglund. Her Victoria. During his 14 years at the Bar, in Honour’s practice included general, OHis Honour graduated from Monash addition to occupational health and civil and commercial law, including University with a Bachelor of Laws safety law, his Honour excelled in property law, family law and some and Economics in 1996. appearances in regulatory law and Children’s Court work. She served as His Honour had spent the 15 years criminal law matters. His Honour secretary of the Equality Before the prior to that working hard in the appeared in many criminal trials Law sub-committee of the Bar. building and construction industry. in the Supreme Court and County Her Honour left the Bar in The jobs his Honour undertook in Court, acting for both the defence 2000, and worked as a solicitor in that industry were various. He was and the prosecution. commercial litigation and family a crane driver (dogman), a rigger, a Outside the Bar, his Honour has law. In 2007 she joined the Victorian forklift driver and a glazier. These roles been a great contributor to sports Public Service where she has been a may have underscored for him the administration. His Honour has senior legal policy officer and adviser, importance of occupational health and served as Chair of the Victorian including working closely with the safety regulation, a field in which his Turf Cricket Association, a member Civil Procedure Advisory Group. In Honour came to specialise at the Bar. of the board of management of the this capacity Her Honour played a His Honour served articles at Moorabbin Saints Junior Football part in the development of the Civil Kenna Croxford & Co, under Warwick League, and as vice-chairman of the Procedure Act. Teasdale. His Honour stayed on at board of management of the South It may confidently be expected that the firm working as an employee Metro Junior Football League. her Honour’s courteous, decent and solicitor for two years following his In serving in these leadership straight-forward manner will make admission to practice. positions, his Honour has already her a great asset to the Magistrates’ After he completed the Bar shown a capacity and willingness to Court. readers’ course in November 1999, lead and organise people. His Honour TIMOTHY MCEVOY

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Greg was the only child of Joan and Harry Meese. During his childhood his parents ran a milk bar in West Brunswick, followed by the post office at Northcote. Greg began his schooling at St Mary’s in Thornbury before moving on to Obituaries Parade where he met Tony Neal (now QC). From about 1966 the Meese family lived in Lower Templestowe – surrounded by orchards. Greg utilised the long bus rides to school to perfect his Latin with the aid of Tony’s notes. He excelled David James Belson both academically and in sport, particularly swimming and football. Bar Roll No 1077 After one year of the Articled avid Belson was born 25 as a secretary to the Bar’s Young Clerks’ course, Greg studied law at January 1947. He died 4 Barristers Committee. Monash University, where he met his September 2013, aged 66. Like some others at this Bar, and wife, Judi, and made many lifelong David went to school at Haileybury others, David’s involvement in the friends. Greg’s lecturer for legal DCollege and studied law at Monash, law may have been an hereditary method was Daryl Dawson, now Sir graduating B Juris, LL B. He served condition; David’s father Victor, was Daryl Dawson, formerly of the High Articles with Phillips, Fox & Masel a leader of the common law Bar and, Court. Sir Daryl liked to talk about and was admitted to practice on 6 later, a Judge of the County Court. Professor Hart and was strong on April 1972. From Victor, David inherited both his Latin. Greg was a pretty humble He signed the Bar Roll on 15 interest in legal and forensic contests, bloke but he had a habit of sitting November 1973 and read with John as well as an extensive personal law near the front in Sir Daryl’s class Winneke (later President Winneke library. David maintained the later and was considered by the rest of the Court of Appeal). assiduously, and shared it generously. of us as a bit of a “teacher’s pet”. One memorable brief during When no longer able to appear in Sir Daryl would often introduce a David’s early years at the Bar was as court, David developed a flourishing Latin maxim and go round the room junior counsel in the Beach Enquiry advice practice. The Victorian asking for a translation. Having into Allegations against Members of Managed Insurance Authority - in mostly failed to elicit a correct the Victoria Police. That inquiry ran effect the State’s insurer - among response, Sir Daryl would turn to over 15 months and reported in 1976. others, frequently sought his counsel. Greg and say: “Mr Meese can you As David’s practice developed he David retired 30 November 2006, help us”. Greg would always milk became an experienced common bringing down the curtain on over 30 this moment. He would respond with law advocate, and specialised in years of dedicated practice that had feigned modesty: “I think it means…”. personal injuries and insurance earned him great respect among his Greg became a solicitor in 1977 and work. For many years, until prevented colleagues. soon after went into partnership with by illness, he appeared regularly on VBN his best friend, Tony Moon. Despite the Mildura Circuit in both criminal being lawyers, Greg and Tony often law and personal injuries cases. He Gregory (Greg) Joseph struggled with the English language. was a fearsome advocate. He also Meese Greg’s daughter, Alice, once made the maintained his early interest in mistake of asking them to write a note Bar Roll No2991 inquiries and inquests, and appeared for her to take to school explaining at the coronial inquest into the reg was a big man with a that she had to leave early to go to Linton Bushfire, which ran for generous heart. He liked to the orthodontist. They were unsure a year from 2000 into 2001. eat, he liked to drink and he of the spelling of “orthodontist” and David was a member of Foley’s Gespecially liked to talk. You couldn’t so they settled on the following note: List and served for many years on have a short conversation with Greg. “Alice will have to leave school early the List Committee. He kept an open This might explain why he couldn’t today because she has to see the very door and juniors and silks alike tell a joke – they were so long in expensive tooth fairy”. came to discuss their cases with him. the telling that he often forgot the Greg signed the Bar Roll in 1995. In his early years, he also served punchline! He was strong on licensing law and

74 VBN VBN 75 became a preferred mediator for child of Norman (later Sir Norman) trials as a judge and developed a the Small Business Commission. He O’Bryan, and his wife, Violet (later reputation for firm but fair and, didn’t wear a wig and gown much Lady) O’Bryan. His father was most importantly, speedy and back of the lift back but was very proud to do so in 2013 then a barrister and was appointed efficient dispatch of court business. when he moved Alice’s admission to a judge of the Supreme Court of He also sat on many appeals. He practice. Victoria in 1939. especially enjoyed annual trips to One of Greg’s joys was serving on Norman was educated at Xavier Warrnambool as the Supreme Court various tribunals and appeals boards College, Kew, where he excelled in circuit judge, which enabled him for what is now AFL Victoria. He sports, especially rowing. His 1948 to spend time in and around Port served in one form or another for crew, which contained a number Fairy, where his Irish ancestors had over 25 years. This was substantial of famous Australian oarsmen, first settled upon their arrival in community service. Of course a short including Jim (later Sir James) Australia in the 1840s. He retired as tribunal hearing was practically Gobbo and Brian Doyle (stroke of a permanent judge of the Supreme impossible with Greg in the chair, but the medal-winning Australian VIII Court in 1992 but remained on the I doubt anyone who appeared before at the 1956 Melbourne Olympics), list of reserve judges until 2004, him left thinking that they had not won the Head of the River, a feat thereby completing the same 27 got a fair hearing. He met and made which Xavier would not repeat years of service to the Supreme many friends in that role. again for more than 50 years. Court of Victoria that his father Greg was a loyal friend, brave, He studied law at Melbourne had also completed in 1966. In funny and generous. A loving family University, where he met his future his later years he served mainly man. A great mate with never a bad wife, Margaret Uniacke, who was on the Court of Appeal, especially word to say about anyone. He lived a studying Arts and Education. After in criminal appeals. good life. He will not be forgotten. completing his articles of clerkship Norman served on a number of IAN PERCY at the law firm established by his charitable and not-for-profit boards, brother-in-law, Frank Galbally (who including St Vincent’s Hospital and married his sister Bernadette in the Old Xaverians Association. He 1948), Norman signed the Victorian was a very keen (tho’ not talented) Bar roll in 1954 and also married golfer and was in due course both Margaret in that year. He had a the president and a life member of very wide and busy practice as Peninsula Country Golf Club (now a junior barrister and Queen’s Peninsula Kingswood). He was also Counsel (appointed 1971), which a very enthusiastic traveller included cases in every jurisdiction and spent much time in Europe, concerning a variety of legal especially in his ancestral Ireland, subjects, including criminal law researching and investigating the (mostly prosecuting), personal O’Bryan family history. He proved injuries, industrial accidents, an important fact that his father commercial disputes and a number had long denied – that the original of commissions of inquiry, including Irish family’s name was not O’Bryan that into the 1975 Tasman Bridge at all, but Bryan. This enabled him disaster in Hobart. to make and retain contact with Norman was appointed a Justice numerous members of the Bryan of the Supreme Court of Victoria families who live in and around in 1977 and was tasked in 1979 Kilkenny in Ireland today. He wrote with overseeing the establishment and published a number of histories of the Commercial Causes List, the of the O’Bryan and Gleeson families, forerunner of today’s Commercial based on the extensive research Court and then a new development, which he had conducted in Australia designed to encourage the speedy and in Ireland. The Hon Norman resolution of commercial disputes Norman is survived by his wife, Michael O’Bryan QC in the Supreme Court. He was the Margaret, six children (three of Bar Roll No. 509 ideal judge for this task, being a firm whom are senior counsel and one a believer in efficiency and economy Supreme Court judge’s associate), orman Michael O’Bryan in the resolution of legal disputes, 15 grandchildren and three great- was born in October 1930 no matter how large or complex. grandchildren. in Melbourne, the first N He presided over many famous NORMAN O’BRYAN AM SC 76 VBN VBN 77 back of the lift

John Fouhy Kearney AM QC The Honourable John Bar Roll No 464 Francis Fogarty AM Bar Roll No 542 n 2 October 2013 John Fouhy 1970 to 1985. He was a charter Kearney AM QC died, aged member of the International Bar he Honourable John Francis 90. He was educated at Xavier Association and its Town Planning Fogarty AM passed away on College and at Newman College and Environmental Law committee 3 October 2013 at 80 years Owithin the University of Melbourne. and the Australian member of the of age. John signed the Bar Roll on He was articled to his eldest brother, International Data Bank Committee T8 March 1956, reading with Kevin Patrick, at Kearney, Kelly & Co. and on Town Planning Schemes. Anderson (later a Supreme Court was admitted to practice in March John was a life member of the Judge). He had five Readers. 1949. In April 1951 he signed the Bar National Trust, Victoria, and the He was appointed to the Family Roll and read with the late Arthur National Gallery of Victoria. In Court of Australia in February 1976 Adams (later a Judge of the County addition he sponsored students and served with great distinction Court). to attend university and was an until his retirement in October 1998. John established a broad general advisor, sponsor and patron of His career at the Bar saw him practice including planning, taxation educational institutions including rapidly acquire a reputation as an and personal injuries, and tutored at Bond, Griffith and Melbourne exceptional advocate with a broad Melbourne Law School in drafting Universities, Newman College, practice in civil jury work, testator’s and conveyancing. He took Silk Marymount School, Somerset family maintenance and family in May of 1964 and in 1968 was College, All Saints School and Xavier law – but also a significant criminal awarded a Bachelor of Laws by College. He served as president law practice. He appeared as junior thesis and was admitted in England of Friends of Bond University; a counsel for the Aboriginal people and Wales and called to the Middle member of the Griffith University in the Gove Peninsula land rights Temple. Council and chairman of Griffith case, and he assisted Mr Justice John had a pioneering interest in Gold Coast Campus Advisory Woodward in his Enquiry into indigenous land rights law, writing Council. He was awarded an Aboriginal Land Rights. He was the a UNO report titled “History of honorary doctorate of laws by Bond editor of the Victorian Reports and the Law”, concerning Aborigines University, an honorary doctorate consulting editor for the Australian in Victoria in 1969. He was senior of Griffith University in 2000, and Argus Law Reports. He authored counsel for the Kamkum and named a chancellor’s fellow of Bond Bourke & Fogarty’s Maintenance, Butibum people in the ground- University. He became a Member Custody and Adoption Law and (with breaking indigenous land rights trial of the Order of Australia in 2005 Philip Cummins) Bourke’s Police and regarding ownership and acquisition for services to the community as Summary Offences. of the Markham River delta, which an advisor and benefactor to a His years on the bench were included the airport and city of number of education and church equally frenetic. He chaired the Lae, Papua New Guinea, in 1972. organisations and through the Family Law Council, he chaired the His junior counsel was the late Ron preservation of a number of Consultative Group which led to the Castan, later senior counsel in the architecturally significant buildings introduction of the Child Support Mabo case. in Melbourne, including one of his scheme, the Victorian Family and A co-author of the draft Bill many astute investments, the Block Children’s Services Council and was for an Administrative Appeals Arcade. a Presiding Member of the Institute Tribunal and ombudsman adopted John passed away peacefully at his of Family Studies. by the Victorian Parliament, he home in Mudgeeraba surrounded In 1991 His Honour was selected also succeeded Sir Zelman Cowen by his beloved wife, Alison, and by the Victorian government to as chairman of the International family of four children and six investigate the death of a small Commission of Jurists, Victorian grandchildren. Alison and John child Daniel Valerio and make Branch. He was chairman of the were married in Newman College recommendations about the Victorian Town Planning Appeals on 2 September 1950. Alison recalls management of abuse cases. His Tribunal from 1970 to 1976 and that during his proposal John said, report led ultimately to mandatory upon his retirement moved to “I haven’t got anything, but I can reporting of child abuse in Victoria. Queensland, becoming a member promise you that your life will never His Honour squeezed these extra- of the Queensland Bar in 1978. He be dull”. As the above indicates he curricular duties in amongst his was also chairman of the Victorian was true to his word. prolific work as both a trial judge and Groundwater Appeals Board from CHRIS WREN QC a member of the Appeal Division.

76 VBN VBN 77 John was clearly amongst the Melbourne was depression. Henry’s legal career was well foremost jurists to adorn the bench He was a member of the documented in both his son Jeremy’s of the Family Court. It was claimed at Melbourne Racing Club and enjoyed eulogy at the funeral, and with Will back of the lift back his farewell sittings that the Family a day at the races, particularly during Alstergren QC’s words at an occasion Law Reports contain 280 of his the Caulfield carnival. He also at the Essoign Club, when many judgments, many of which defined followed cricket and tennis. members of the Bar gathered to pay major aspects of family law. In January 1992 he was made a tribute and recognise his contribution His lifelong friend Registrar Maurie member of the Order of Australia. to the law. Harold noted in an Age obituary that Other awards he received included After articles at Blake and Riggall, despite his busy life, John found time the White Flame Award (Save the Henry worked at Ellison, Hewison for his friends. He enjoyed a weekly Children Fund) and the Community and Whitehead. He was then to start lunch when discussion rarely related Services Appreciation Award. He was as the Honourable Ninian Stephen’s to work but rather an analysis of the patron of the Centre for Excellence associate. However, family obligations week’s footy, racing or cricket, plus a in Child Welfare, the Mirabel came first, so instead Henry came dose of current politics. Foundation and Family to the Bar in 1973, to read with He loved the Demons and suffered Life, and director of the Trust for Alan Goldberg (as he then was). a heart attack at the MCG immediately Young Australians and the Child His practice had grown sufficiently after the siren when Melbourne Protection Society. by 1991 for him to take silk. stormed home to defeat Carlton in the John is survived by his wife, Alicia, It was in the area of mediation where 2000 preliminary final. In later years, sons Peter, Mark and Matthew, and Henry made a unique contribution. John wryly remarked that the only grandsons Balin and David. It is not doubted that his efforts illness likely to be induced by following THE HON JOSEPH KAY brought the concept of “legal” mediation to the forefront of civil litigation, to the point where it is now a compulsory step in all civil cases. This was not the only unique contribution that Henry made to the Law. The design and functionality of the Jabot, now worn by virtually all barristers, was due to the business Ravensdale, established by Henry and Bruce Walmsley SC. Apart from his own sporting prowess as an Ajax team of the century member and Victorian Amateur Football Association best and fairest winner, Henry also made a substantial contribution to sport administration. He was a director of AFL Western Bulldogs for 10 years, Australian Ambassador for the Peace team which competed in the AFL international competition, President of the Australian Bobsleigh Association and also a Judge of the International Henry Jolson OAM QC Court of Arbitration for Sport. In recognition of his extensive and Bar Roll No 1075 unique contributions, both to the law and the community, Henry was n 13 October 2013 the Bar lost His family, who were his pride honoured with an OAM in the Queen’s one of its Legends. At the age and greatest legacy, are bereft of Birthday Honours List in 2012. of 66, Henry passed away after his support, guidance and love. To His guidance and good counsel battling multiple myeloma for eight his wife Carolyn, his four children touched many. They will keenly feel Oyears. His passing has left a huge and six grandchildren, we can only his loss. hole for many of us and the number imagine their loss. We offer them our TOM F DANOS of organisations which he supported. sincere condolences.

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Eileen Stuart is a profound work of great research and Victoria Legal Aid. She then and integrity …” and “For Catholics moved into prosecutions work, Bar Roll No 1403 and non-Catholics alike, Eileen first with the State Department of Stuart has provided an invaluable Public Prosecutions and then with ileen Stuart died on 30 October guide to the present debate in the the Commonwealth Office of Public 2013 aged 102. She was born in Catholic Church … all will benefit Prosecutions. Echuca and her family moved from this scholarly work where Lucia spent 12 years as a solicitor to Shepparton where she later met the issues are clearly set out, fairly at the Commonwealth DPP, where herE husband Ivor Stuart. They moved considered and carefully discussed.” she became a senior executive to Melbourne in 1959 where she Eileen was well known at the specialist in the commercial remained a housewife raising their Bar and enjoyed all whom she met prosecutions branch and did five children. during those years, particularly substantial work with ASIC. Her life changed when she was counsel in Tait Chambers. She is Lucia signed the Bar Roll in March sitting on her son Tim’s bed reading survived by four of her six children, 2001 after 17 years as a solicitor. a contract casebook just delivered for 13 grandchildren and 20 great- She read with Jennifer Davies (now his first year law course. She looked grandchildren. Justice Davies of the Federal Court). up and said to her youngest son Bill, HIS HONOUR JUDGE BILL STUART As a result of her work at “I can understand this!” So at 52 the Commonwealth DPP, fraud years old she began her long love prosecutions were her specialty at of the law. the Bar and her attention to detail Having completed her leaving was legendary in Deakin Chambers. certificate as a girl at Genazzano I had the great privilege of sharing FCJ College she had to obtain her a room in chambers with Lucia for 12 Matriculation, which she did studying years. We were kindred spirits. In 12 part time at Taylors College. Eileen years barely a cross word was said. was admitted to the Articled Clerks Lucia loved her work. Even during Course at RMIT and after completing the times she was significantly unwell first year she gained entry into law at she threw herself into her trials with Melbourne University, graduating on courage and an energy that was the same day as Bill. She said, “On my derived solely from her enthusiasm for graduation day I had to pinch myself. the law and its application. I had actually finished my degree.” She was a ferocious but fair They both completed the Practical prosecutor. Training Course at the Leo Cussen The length and breadth of her Institute and were admitted to experience in complex trials was never practice on the same day. Eileen was pressed. It revealed itself in daily 66 years old. She came to the Bar in chambers lunches when war stories 1978, reading with Ian Abraham, and were swapped, advice as to cases being remained at the Bar until retiring run by members of chambers was to nurse her husband Ivor for many sought and great debates as to the state years until he died at home in 1987. of the law occurred. Eileen then decided, at 76 years Lucia Bolkas Whilst she was passionate about old, that she would continue her Bar Roll No 3466 work it was not the focus of Lucia’s life. studies and obtain a Master of Laws. Her role as a mother and wife were She said, “My memory was far from ucia Bolkas passed away on the most important of her life and perfect when I began my Masters Friday 8 November 2013. she dedicated herself to her daughter but improved immensely as I started Lucia came to Australia from Alexandra and her husband Arthur. using it.” LItaly when she was eight years old She showered her family and Eileen obtained her LLM by major and excelled at school, going on to friends with loyalty, care and thesis, later published by Federation complete an Arts/Law degree at attention, wit and wisdom. Press in 1994 as Dissolution and Monash University. Lucia enjoyed “la dolce vita”: good Annulment of Marriage by the Catholic She was admitted to practice food, good wine and good friends. Church. The preface was written by on 2 April 1984 and practised as a She is greatly missed. the Honourable Austin Asche AC QC solicitor for 17 years. She worked MELISSA MAHADY (former Acting Chief Justice of the for Clements Hutchins & Co. in the Family Court) who remarked, “This City; Piva & Associates in Fitzroy;

78 VBN VBN 79 appeared, with the legal team, in the High Court in various directions hearings, participated in field research back of the lift back on Murray Island – a tough gig! – and also appeared in the first phase of the trial in the Queensland Supreme Court in October-November 1986. Barbara was a valuable (and irrepressible) source of ideas and expertise, taking her part in the consideration of many substantive and tactical issues. I recall her wry smile, whimsical sense of humour and restless and inquiring mind, all displayed at many conferences in Castan’s chambers at ‘Golan Heights’, especially her restless, inquiring mind. Her many talents were all Barbara Joyce Hocking highly valued by lawyers and clients alike. Like all of the legal team, she Bar Roll No 1256 knew the potential significance of arbara Hocking died on University, Townsville. The conference this litigation, and gave this case top Friday, 6 December 2013, was organised by, among others, priority in a busy practice, irrespective aged 85. Born on 28 June Eddie Mabo and Professor Noel Loos. of remuneration considerations. 1928, she married Dr Frederick Her paper, subsequently published In May 1987, with the Mabo BHocking in 1951, a Melbourne in E Olbrei (ed), Black Australians trial part-heard, Barbara left the psychiatrist, who survives her. They (1982), was titled: “Is Might Right? Bar to take up the appointment of had four children. The family lived in An Argument for the Recognition of Senior Part-time Member of the Toorak for 50 years where she was Traditional Aboriginal Title to Land Commonwealth Veterans Review a long-time active member of the in the Australian Courts.” At that Tribunal, retiring in December 1989. Australian Labor Party. conference, the two lead plaintiffs - She was also appointed Chairperson Barbara graduated BA/LLB from Eddie Mabo and Fr Dave Passi - gave of the Medicare Participation Melbourne University in 1962 and instructions to Cairns solicitor Greg Review Committee, retiring in 1998. completed her LLM degree at Monash McIntyre and Barbara to pursue a Meanwhile, Mabo proceeded, leading University in 1970. Her thesis dealt case in the High Court to attempt to to two High Court hearings and with Indigenous land rights, early establish the principle rejected in judgments: (No 1) (1988) 166 CLR 186; evidence of her life-long commitment Gove: the recognition of traditional and (No 2) (1992) 175 CLR 1. to social justice. Her academic Indigenous rights to land in Australian In November 1992 Barbara was expertise greatly assisted both Ted common law. awarded the Human Rights Medal Woodward QC (Snr), counsel for the On returning to Melbourne, Barbara by HREOC for her contribution to plaintiffs in the Gove case (1971) sought initial advice from Ted the Mabo case and work over many 17 FLR 141 and the Mabo legal team Laurie QC (who advised there was years to gain legal recognition for when reviewing the legal issues and an “arguable case”) and Ron Castan indigenous peoples’ rights. She later formulating the plaintiffs’ approach QC (who thought likewise). A month described this as her “professional and statement of claim, in early 1982. later, Ron Castan QC and I were life’s work.” In 1993 she received Barbara was admitted to practice in formally retained, and serious work the inaugural Monash University Victoria and in the ACT in November got underway in Melbourne. Initially Distinguished Alumni Award. and December 1975 respectively. there were no funds although legal aid In retirement, she maintained an She signed the Victorian Bar Roll in was subsequently obtained. The claim active interest in matters political, March 1976 and read with Leonard was issued in the High Court in May legal and Indigenous and delighted in Ostrowski (later QC and a Judge of the 1982. Barbara took a very active role her growing number of grandchildren. County Court, now retired). Her Clerk in articulating, explaining and drafting Barbara also travelled extensively was Barry Stone. relevant arguments, guided by her abroad with family members. In September 1981 Barbara, along deep academic knowledge of this area At her memorial service in with others, gave a paper at a land of law. December 2013, two of her daughters rights conference at James Cook During the next four years, Barbara and grandchildren spoke eloquently

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to many family, friends, and colleagues The Carlton Football Club theme Rex Patkin of her devotion to her family and song accompanied his casket away. Bar Roll No 960 social justice causes, her active (No one had a greater passion for intellectual life, her many published Carlton.) Children released navy and ex Patkin, a former Master writings and of her shining example white balloons. Hundreds swapped of the County Court, died as a (female) role-model to young tall stories and drank into the wee on 25 January 2014. He lawyers. hours – until they could talk no more. Rcame to the Bar in July 1971 and I doubt that we shall see her like Lachie grew up in Ballarat and practised mainly in what was then again anytime soon. went to school at Ballarat College. known as County Court Chambers DR BRYAN KEON-COHEN AM QC Whilst studying Arts/Law at the until his appointment as Master in University of Melbourne, he was September 1988. the President of the Australian Law Rex was born on 22 September, Students Association. 1939, educated at Melbourne After working as a Ministerial Grammar School, RMIT Advisor to the Victorian Attorney- (Aeronautical Engineering Diploma, General Jim Kennan QC, Lachie came 1960), and the Universities of to the Bar in 1994. He read with Chris Melbourne (LLB (Hons) 1964) and Maxwell (now President of the Court Monash (LLM 1971). He married of Appeal) and Bryan Keon-Cohen Faye in the final year of his five-year (now AM QC). He also completed an Aeronautical Engineering course, LLM from Monash University and and having then decided to study did substantial volunteer work with law, he taught part-time at Brighton Fitzroy and St Kilda Legal Services Technical School for the first two whilst at the Bar. years of his full-time Law course. Lachie had five readers – Justin Rex served Articles at the firm of Wheelahan, Mark Gumbleton, Russell, Kennedy & Cook and was Richard Edney, Angela Moran and admitted to practice on 2 May 1966. Grace Morgan – all of whom loved He then went to Monash as a Senior him dearly. We all did. Teaching Fellow. He also worked with And that’s because he was a great a firm of Patent Attorneys. Lachlan Campbell man. As both a human being and a Rex came to the Bar in July 1971. Carter barrister, he was learned, thoughtful, He began reading with Richard warm, caring, humble, passionate, Searby, and, upon Searby taking Bar Roll No 2909 loyal, fearless, dogged. Clients and silk, completed his reading with achie Carter died on 10 friends alike felt safe with Lachie John Lyons. He was on Foley’s December 2013 aged only because they sensed – rightly – that List and after the usual stint 46. He touched the hearts of he was there for them, whatever in the Magistrates’ Court, he Lmany. When organising a function at the fight, whatever the odds. Lachie proposed to specialise in Industrial the MCG to celebrate Lachie’s life, once paid, out of his own pocket, for Property work. Although there was his wife Nicole Brady told us she a psychiatric report for an indigent considerable paper work in that area, had catered for up to 600 people. client appealing a conviction on the his appearances centred on County We didn’t say so at the time, but we basis of fresh evidence. The appeal Court Chambers. thought 300 would be a wonderful succeeded. When I first met Rex in December turnout. Well, it was standing room Lachie died as he lived – with 1973, I was in my second week of only in the Olympic Room. More than courage and hope. He knew he was reading and I was opposed to him 800 were there. dying but hoped he wasn’t. In his last in CCC. He was already universally Lachie would have been days, we kissed him goodbye, but, recognised as the leading counsel embarrassed at the attention but somehow, it seemed he was really the practising in CCC and he went on to still would have thought it was a one consoling us in our grief. become a legend in his own lifetime pretty good do. Family and friends Lachie will be forever missed by known as ‘the King of CCC’, a title spoke of cherished memories. There Nicole, Claudia and Zoe, his mother he never relinquished until his were beautiful photographs of him, “Skeet”, his brothers Michael, appointment. Nicole and their children Claudia Anthony and Rohan and all who In those days the system of reading and Zoe enjoying family events. knew him. was quite different. There was no His and Nicole’s favourite poetry THE HON JUSTICE CROUCHER readers’ course and no designated and music were read and played. AND CHRISTOPHER BOYCE dates for intakes. One simply chose a

80 VBN VBN 81 master who was prepared to take you a consent matter so they could get Appeal, Stephen Charles, and his as a pupil for six months, arranged away early. honour recently told Bar News: a clerk and started practice. There Rex was always a cheerful, friendly,

back of the lift back Roland was a delightful pupil. was no restriction on accepting briefs polite and easygoing opponent who from day one, even before actually was a pleasure to work alongside. As a barrister, he was hardworking and signing the Roll of Counsel. He was the same with all opposing a team player. As might have been expected I duly practitioners and was incredibly As a VCAT member, Roland would lost my first case against Rex. I recall generous with both his time and have been very kind and courteous it was a slaughter of epic proportions, his considerable knowledge of the to everyone appearing, and softened only by Rex’s generous Rules of Court and the practice and particularly helpful to those appearing efforts after the hearing to explain procedure in the Court. He was unrepresented. No-one would have left my numerous errors and to offer his in effect a tutor, especially to new his Tribunal thinking they had been advice for future cases in CCC. Over barristers. unfairly dealt with. the next few years I had occasional In fact, even some of the judges encounters with Rex. themselves, particularly those who He was held in very high and By 1978 when my clerk Percy were newly appointed or who had affectionate regard by many members Dever gave me the job of taking little experience of civil procedure, of VCAT. over from Graeme Anderson (now often sought his assistance on points Roland started with a general his Honour Judge Anderson) the of procedure during hearings in the practice, but after 10 years at the role of appearing daily in CCC, I Court. Bar he focused mainly on family was better prepared. Between 1978 Rex always harboured the openly law. In March 1993, Roland was and 1988 Rex and I probably held expressed desire to be appointed accredited as a mediator by the Bar opposing briefs on average twice a a Master of the County Court. In after completing training at Bond day, amounting in all to say, 4000-or- September 1988 his wish was granted. University. He was also accredited as a so cases. He served diligently until retiring in Child Representative Advocate by the Rex had an extremely large November 2001. He was not always in Leo Cussen Institute. practice in CCC. Many barristers good health and only four weeks after Roland was delegated a Sessional will recall how Rex would arrive at retiring he underwent by-pass surgery. Member of the Residential Tenancies CCC a few minutes before the Court Apart from his love of the law Tribunal and the Small Claims opened at 11am with a bag full of Rex had two other loves – his wife Tribunal in 1997. In 1998, after its briefs, usually at least 10, sometimes Faye to whom he was devoted, inception, Roland became a sessional 20 and reputedly on one occasion 31. and his family. He also had a deep member of the Victorian Civil and The total number of matters listed affection for the Essendon Football Administrative Tribunal and he in the Court might vary from 30 to Club. His other interests included served in that capacity for 15 years. 100 per day. Upon his arrival, he tennis, sailing (he was a member of Roland was assigned to the Civil would be surrounded by numerous Black Rock Yacht Club and owned Claims, Residential Tenancies and other practitioners all eager to learn three yachts), ballet, opera, classical Owners Corporation lists and was an whether they were opposed to him music and philosophy. expert in automotive claims. and whether it would turn out to be PETER T FOX In July 2002, after more than 32 Roland Maxwell Lloyd Price years’ practice at the Bar, Roland took his name off the Bar Roll of Victorian Bar Roll No 910 Practising Counsel and surrendered his Practising Certificate. He continued oland Maxwell Lloyd Price Administrative Tribunal turned out in as a Sessional Member of VCAT right practiced at the Victorian large numbers. up to his death this year and, although Bar for 32 years. He died Roland graduated from the Sessional, sat virtually full time at the Raged 70, in January 2014, after a long University of Melbourne with a Tribunal for many years. and successful career as a barrister Bachelor of Laws. After spending a Throughout his longstanding and member of the Victorian Civil year working at Maddock, Lonie and career, Roland was highly regarded and Administrative Tribunal. Chilsolm, he served articles with the by the profession. He is survived by The well-attended funeral of Frankston firm Major & Co. his wife Carolene and their daughter Roland Price was held at the Wesley Roland was admitted to practice on Charlene and son Steven. He will College Chapel, on the grounds of 2 March 1970, then promptly signed be sorely missed by his family and the school where he was educated. the Bar Roll on 9 April of that year. colleagues. Current and former members of Roland was the penultimate reader VBN the Bar and the Victorian Civil and of retired Supreme Court Judge of

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circumstances, with equal zeal and from practice at the Bar. determination to achieve justice Clarinda was complex, enigmatic for them. She had no hesitation and gregarious. At her funeral Mass in accepting briefs which others at St Patrick’s Cathedral, a cousin was may have regarded as unpopular quoted as saying of her that she had or difficult. Her reader was Susan “an inner silence”. Anyone who knew Dowler. Her family law practice saw her at all well would comprehend her appear in Melbourne, Sydney that remarkable description. and Parramatta. She enjoyed an Clarinda was one of six children extensive circuit practice in Mildura and the only daughter of Patty and and Bendigo. G C “Bing” Molyneux AO OBE. She On taking silk in 1996, her practice was devoted to and loved her family broadened to include de facto dearly, including her large and property, wills, trusts and estates extended family. She expressed real in the Supreme Court of Victoria. affection for and genuine interest in Amongst her many juniors were Batt, her many nieces and nephews and Colman, Combes, Connolly (later great nieces and nephews. In Hugh Clarinda Molyneux QC Connolly FM), Eilish Cooke, Clare Fraser, her husband of nearly 25 Gray, Hartnett (later Hartnett FM), years, she found love, companionship Bar Roll No 1903 Kirby, Russell Young and Stoikovska. and support, which she cherished. larinda Molyneux commenced She unhesitatingly provided advice Speaking at her Funeral Mass at St at the Victorian Bar in 1984. She to her colleagues in chambers when Patrick’s Cathedral, Father Brendan read with Jonathan Ramsden, they asked for help. Hayes said that Clarinda faced the Clater Family Court Judicial Registrar. Clarinda served as Treasurer of end of her life with faith and even Clarinda and I met in the March the Family Law Bar Association, the thanksgiving. She reflected on her readers’ group of that year and Bar’s Litigation Procedure Review life, saying to Hugh, “I have had the I quickly realised that my initial Committee for Family Law and the most marvellous life. I have achieved impression of her conservative and CLE Committee during the time all that I wanted to achieve. I regret formal appearance belied a dignified it established the mandatory CLE nothing.” charm and quiet friendliness. Her dry programme. Her sudden ill health Vale: Clarinda Molyneux QC and often mischievous wit made her three years ago forced her retirement ROZETA STOIKOVSKA very popular. A core of about 10-or-so of us – and Barry George Hepworth we were a disparate bunch – formed Bar Roll No 843 close friendships that lasted for many a lunch or dinner in the years well arry Hepworth was born in Principal in the firm of Hepworth & beyond the readers’ course as we Shepparton, 19 March 1927. Paul, later Hepworth, Paul, Marriott & navigated our careers at the Bar. A $2 Barry began his schooling Co, with offices in Collins Gate in the note, which always seemed to make it at Zeerust Primary School (near City, and in Chelsea. safely back into its spot in her wallet BShepparton). He came to the Bar in April 1968. when drinks were purchased at the He continued at Christian Brothers Barry was a general all-rounder, Essoign Club, became legendary. College, St Kilda and completed though he practised mainly in Clarinda relished her profession as the Intermediate Certificate. Upon Criminal Law – in particular, a barrister. She was hard working and turning 18, he enlisted in the Criminal Trials. He had two readers, formidable, yet always courteous and Army – he was a Private in the Vladimir Stuban and Peter Moloney. calm and quickly developed a busy 38th Infantry Battalion. The War In February 1981, he transferred practice. She loved the challenge of ended some months later – but he to the Masters & Other Official the court room and a difficult witness was not discharged until 1947. He Appointments List upon appointment and was unfailing in her courtesy completed Leaving Certificate and as a Deputy President of the towards her clients, juniors and Matriculation at Taylor’s College; Repatriation Review Tribunal. instructing solicitors, her opponents then studied Law at the University After retirement from the Tribunal, and to the Court. of Melbourne, graduating Bachelor Barry had his name removed from Despite her privileged upbringing of Laws. the Bar Roll in January 1990 in order and the social milieu of the family in Barry was admitted to practice to practise as a solicitor-advocate, which she grew up, she represented in July 1957 and practised as a which he did for some years. all of her clients, whatever their solicitor for nearly 11 years. He was a VBN

82 VBN VBN 83 Ceide served Articles with David Brahe at Gair & Brahe and was admitted to practice in April 1990. back of the lift back She served as Associate to Mr Justice Hampel on the Supreme Court and came to the Bar in the September 1991, reading with David Shavin. Like many associates, she could never bring herself to call her judge ‘George’ despite his warm invitation to her to do so and for many years fudged it by calling him ‘Gudge”. The Hampels attempted to teach her to ski with good advice, such as “the slope is your friend!” but without great success. They encouraged her to practice in crime. She picked up bits Ceide Zapparoni and pieces, but mostly her practice was in administrative law and Bar Roll No 2705 general civil and commercial matters. eide Zapparoni died in San she would find her way to the Bar. Ceide was admitted to the State Francisco on 5 April, 2014 Her aptitude and quick wit was Bar of California in March 1999. She aged 49. She had practiced evident to her friends and teachers practised at Cox, Castle Nicholson; Claw in California after her early at Santa Maria College in Northcote then at Howard Rice Nemerovski years at the Victorian Bar and and lecturers at the University of Canady Falk & Rabkin; and was then died peacefully after illness in Melbourne but it was not until she a partner in the Farallon Law Group the company of close family. commenced a Masters of Laws at the in the Bay area of San Francisco. Ceide came to the Bar in November University of California at Berkeley Whilst at Farallon she was involved 1991 and will be fondly remembered that she discovered a real interest in in a number of important public by her fellow readers and those academic pursuits. Her final thesis interest cases and had the chance with whom she came into contact concerned corporate responsibility to appear in court from time to for her extraordinary charisma, for human rights, a topic that time. She enjoyed this work very energy and warmth. Known to her troubled her as seemingly insoluble. much, although her main focus was friends as “Zappa” she formed close She was very honoured to have been business litigation. At the time of her bonds quickly with a broad circle of asked to speak on behalf of her death, she was counsel for the San friends to whom she was loyal and graduating class as valedictorian Mateo County. supportive. and did so passionately. FIONA MCLEOD SC At the University of Melbourne, she distinguished herself in The Hon Dr Peter Buchanan QC Melbourne University Law Students Society mooting competitions n 19 May 2014 Peter High School on his father’s transfer (with me and Carolyn Sparke and Buchanan, the longest- to Canberra to take up the position opposed to Daryl Williams and serving member of the of Director of Civil Defence. He Paul Holdenson in the final). She Victorian Court of Appeal, passed graduated from the ANU in 1965 established the first trial advocacy Oaway surrounded by his family. with a first class honours degree, witness-examination competition At his farewell on retirement from served articles of clerkship at for the LSS, having won the ALSA the Court of Appeal seven months Blake & Riggall, tutored at Monash competition in the first year such a earlier, as at his welcome to the University, and then commenced competition was conducted. She also Court 16 years before that, tribute his doctorate studies in 1967 at the participated in the A-Grade Debating was paid to Peter’s hallmarks as a University of London on a graduate competition in a team known as jurist and advocate, and above all, scholarship. He was able to complete Women’s Rea with Samantha Marks his unpretentiousness and innate his thesis in one year enabling and me. She was the perfect second understanding of human nature. him to pursue his real ambition of speaker – concentrating on weighty Peter was born on 11 October motorcycle racing on the European content with a good sprinkle of 1943, educated at Scotch College in circuit. Peter raced a “Triton” (a humour to entertain. It was inevitable Melbourne, and then at Canberra Norton frame with a Triumph motor)

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over the next two years, winning HMAS Arunta in the Battle of search has been interrupted because a first place podium in the British Leyte Gulf. During WWII Buck met it will return more than 3000 Open Class at Brands Hatch in 1968. his future wife Norma in the map results.” He adjudged many notable The following year met with less room at Victoria Barracks when cases, among them the “Jihad Jack” success; he later awoke in hospital it housed the War Cabinet. In the terrorism and the Rolah McCabe with a slight recall of his rear wheel interwar years Buck’s father, a tobacco cases. The contribution giving way at Paddock Bend on the journalist by trade, had come to the continues, most recently with same track. It was neither his first Bar for a short while, but briefs in the High Court endorsing his nor last such visit to a casualty ward the Depression were few and far earlier dissent on the practice of following a crash. between and he soon returned to prosecutors suggesting a sentencing Ironically, his extraordinary ability newspapers. range.. to see good in all people almost In 1970 Peter Buchanan came When coming to the Melbourne waylaid what became a remarkable to the Melbourne Bar, where he Bar Peter settled upon North Fitzroy legal career. Early in his stay in read with James Gobbo who, 27 and adopted Fitzroy Football Club London Peter happened to strike up years later as Governor of Victoria, as his team. The demise of the conversation with two gentlemen presided at the swearing-in of Club in 1996 was devastating. He in an East End pub, who seemed Justice Buchanan, Judge of the Court had worked tirelessly in providing pleasant enough. Indeed, so pleasant of Appeal. In 1984 Peter had taken (free) counsel to the Club in its that when a melee later broke out, silk, and continued an outstanding battles with the then VFL. After a Peter went to their aid, not realising all-round commercial practice, long mourning, Peter returned to that the accosters of his new found combining it with an annual sojourn following AFL football, embracing companions were undercover to race at Bathurst each Easter, the Richmond with equal passion, to be police who had come to arrest only real break he took from work. found every week in the outer of the them for a factory break in. Whether as counsel or judge, MCG, among the Tiger faithful and His ensuing entanglement in Peter had the peerless ability to in his element. criminal procedure did not show see the real issues and accurately The Hon Dr Peter Buchanan QC great promise, but needless to say simplify the complicated, and to is survived by his wife Patricia, and he got out of that scrap. reduce the complex to its essentials. their sons, Sam, Patrick, Daniel and It was the wish of his father, Alfred Peter’s contribution to the law was Michael. (“Buck”) Buchanan, that his Peter immeasurable, literally. An attempt STURT GLACKEN QC become a barrister. Buck enlisted to search judgments of the Court of (The above is an edited version of in the Navy as a midshipman at the Appeal in his name provokes this the obituary first published in The age of 12 and went on to command response from the database: “this Age on 22 May 2014)

Gonged!

Australia Day Awards exceptional service in the field of military law, as a consultant The Hon Peter Gray AM was awarded as a member of the Order for the Director of Army Legal Services, and as Judge Advocate of Australia for his significant service to the judiciary through the General of the Australian Defence Force. Federal Court of Australia, to legal education, and as a mentor. Mr Peter Jopling AM QC was awarded as a member of the The Hon Dr Ross Sundberg AM QC was awarded as a member Order of Australia for his significant service to the law in of the Order of Australia for his significant service to the law as a Victoria, and to the community. judge, reporter and educator. The Hon Justice Stephen Kaye AM was awarded as a member Other Awards of the Order of Australia for his significant service to the law Fiona McLeod SC was inducted on to the Victorian Honour and to the judiciary, particularly in the area of indigenous social Roll for Women for her leadership, advocacy and long standing justice and cultural awareness. contribution to women in the legal profession and beyond. Major General the Hon Justice Richard Tracey AM RFD Paul Hayes was awarded the Denis Callinan Award for his was awarded as a member of the Order of Australia for his commendable community service in the field of sports law.

84 VBN VBN 85 back of the lift back Victorian Bar Readers’ Course september 2013

back row: Angie Wong, Jennifer Findlay, Brian Mason, Harry Venice, David Kelsey-Sugg, Yasser Bakri, Scott Morris, James Forsaith, Angel Aleksov, Simona Gory, Camilla Hopkins. centre row: Wendy Pollock, Denise Dwyer, Yuliya Mik, Kim Bradey, Andrew Blakeman, Raph Ajzensztat, Andrew Silver, Daniel Briggs, Kieren Hickie, Katherine Brazenor, Clare Cunliffe, Christina Klemis, Stephanie DeGuio. seated row: Rebecca Thomas, Megan Tait, Augustine Aulanga, Anderson Kesaka, Ben Ryde, Laura Keily, Kate Burgess. front row: Simon Bright, James Mortley, Darren Bruno, David Carne, Zubin Menon, Nico Burmeister.

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Victorian Bar Readers’ Course march 2014

back row: Wendy Pollock, Gordon Chisholm, Penelope Renc, John Leung, Claire Nicholson, Timothy Chalke, Marcus Fogarty, Timothy Goodwin, James Westmore, Brenton Devanny, Fiona Knowles, Max Hume middle row: Amanda Burnnard, Emma Murphy, Michelle Zammit, Jennifer Croxford, Marcus Fleming, David O’Brien, Michael Wilson, Rebecca Dal Pra, Georgia Berlic, Andrew Dimsey, Jason Korke, Krystyna Grinberg, Amelia Beech, Rachel Chrapot seated: Georgina Coleman, Suzanne Kupsch, Joel Silver, Gordon Porter, Piria Coleman, Rachel Walsh, Victoria Blidman, Samantha Holmes front row: Andrew Blair, Philip Teo, Jesse Rudd, Andrew Denton, Hadi Mazloum, Campbell Thompson, Adam Chernok photo courtesy of peter bongiorno

VBN 87 Quarterly Counsel

Mia Stylianou’s Art of Persuasion

GEORGINA COSTELLO Mia Stylianou in front of All On the Line (3 panels, 182 x 91cm each panel)

usy Victorian criminal barrister on show at the Hilton South Wharf and Media House Mia Stylianou is a talented and she has received a number of commissions within painter. Her solo exhibition at Australia and overseas. the Essoign Club in 2010 was a Stylianou’s work before signing the Roll of counsel resounding success. Seventy per included that of Associate Public Defender with Victoria cent of her works sold at that Legal Aid. Her demanding caseload at the Bar includes exhibition, many to barristers the difficult work of prosecuting and defending serious and barristers’ clerks. More recently, two of Stylianou’s crime, including sexual offences. Stylianou suggests, large abstract portraits were selected for prestigious “Our work is so consuming that it is important to exhibition for two years running at the Hidden Faces remember there is life outside it”. She finds wellbeing of the Archibald in 2012 and 2013. Her work has been and resilience in the act of painting, telling VBN: photos courtesy of peter bongiorno courtesy photos

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“Painting gives me peace of mind, which helps with the angst and stress of trial work. The elation and disappointment I feel about my cases is often captured on my canvasses”.

Stylianou says that as lovely as it sounds to be a full-time artist, she would miss the Bar if she gave it up, but is quick to add that her view depends on what day you ask her! Her work in the law often informs her art, but she says, “Every time I paint, it is the coming together of varied life experiences and impressions on one big canvas”. She loves to work on large canvases and although the bigger the canvas the greater the physical exertion, she says for her, “It beats working out in a gym”. Stylianou’s uncle was a painter in Egypt and she grew up with her uncle’s paintings hanging on the walls of her family home. There was much displacement and disruption to Mia’s childhood amid the political instability in Cyprus where she and You Know Who I am 152 x 125cm her family lived until they migrated to Australia when she was almost In her chambers in Owen Dixon eight years old. She had attended six West, Stylianou’s desk and chair Birds of Prey different primary schools and lived 122 x 180cm are positioned before three large at nine different addresses by the panels of one of her vivid abstract time she was 11. Art was a stabilising paintings. Whether in the studio or in factor in her life amidst the chaos of chambers, for Stylianou the creative change that characterised her early process never stops and art can be years. Stylianou says “art back then a useful analogy for court work. For was one of few constants in a sea example, when her clients are able of change”. to dig deep into their experiences An inspiring school art teacher and circumstances it gives her the first introduced Stylianou to oil material or palette she needs to paint painting at age 13. The teacher a compelling picture of their life for was so impressed with young the court. Mia’s work that she tipped-off the Stylianou says that “ultimately local paper, which ran an article the most important skill of a about the fledgling artist’s first oil barrister would have to be the painting. As a teenager, Stylianou skill of persuasion and, of course was an impressionist painter, but persuasion is itself an art – albeit now says she finds abstract art to probably not as redemptive or be “intriguing, liberating and great therapeutic as that practised on therapy at the end of some of the canvas”. Stylianou’s art feeds her cases I deal with”. She “paints in work and her work feeds her art spurts”. At the end of a trial she and she is, today, unequivocally usually finds some time and Untitled content to practise both. solitude to paint. 152 x 122vcm

88 VBN VBN 89 current meaning of chaps is caught by Oscar Wilde in A Woman of No Importance “One must have some occupation Boilerplate nowadays. If I hadn’t my debts I shouldn’t have anything to think about. All the chaps I know are in debt.” Oscar Wilde wrote A Woman of No Importance in 1893. His use of chaps, etymologically speaking, was not modern even then. As a casual reference to another man, A BIT ABOUT WORDS it had been in use since about 1750. Wilde’s other use of chaps was not modern either, but he was caught at it, and that was a serious mistake. In 1895 he was sentenced to two years’ hard labour for the (recently outlawed) “Chaps” abominable crime of sodomy. Chap is an abbreviation of chapman, a person whose business is buying and selling, a merchant. The JULIAN BURNSIDE abbreviated form emerged in about 1600. As the OED wryly notes: it “… seems to have come into vulgar use in hat an odd little word this is. the end of the 16th c. but it is rare in books, even in the Actually, it is three different words dramatists, before 1700.” Apparently the dramatists then, with the same form. as in Wilde’s time, were a bit racy. The first word is a variant of chop: The etymology of chapman shows that it is related to the a chap is ‘an open fissure or crack German Kaufman, and the Dutch Koopman. (In keeping in a surface, made by chopping or with the early fashion of artisans and traders taking their splitting’. It is rarely used like this nowadays. A related surname from their occupation, Chapman, Kaufman and meaning is ‘a crack in the skin, descending to the flesh: Koopman are common surnames.) From the 15th to the chiefly caused by exposure of hands, lips, etc., to frost 17th century chap meant a bargain or barter. or cold wind’. In that sense, it is more common as the For a century or two, chap was also a vulgar reference Wparticipial chapped lips or (less commonly) chapped to a customer, but it gradually lost the commercial hands. As a plural, chaps also signifies the jaws of a connotation. Dr. Todd’s edition (1818) of Johnson person or animal; and by extension the jaws of a vice. recognises this usage, but notes that “it usually designates Chappy meant talkative, in the 17th and 18th a person of whom a contemptuous opinion is entertained”. centuries. Some time in the mid 18th century, (It could be that the element of contempt mirrored the chaps in this gave way to chops: ‘get your chops attitude of the English upper-classes to those who around this’ sounds like slang, but is a were ‘in trade’ - an attitude which sharpened as the very old usage. Down in the chops is a 19th industrial age generated vast wealth for some chaps, century colloquialism meaning depressed; to but not for most gentlemen.) Interestingly, the use lick one’s chops is to gloat. of chap mirrors the use of customer outside its original The second meaning of chaps is best commercial setting. Until the 1950s it was common to gathered from cowboy movies. When hear someone referred to as an odd customer or they were popular in the 1950s a queer customer, where chap would have and 1960s, they often showed been equally appropriate. chaps wearing chaps, which are Customer was generally a guarded made of leather, with fronts of expression and so was chap, at first; but dogskin with the hair on. In this by the time Wilde wrote A Woman of context, chaps is an abbreviation No Importance, chap had largely lost its of chaparreras, which in turn pejorative edge: the sense is friendly comes from chaparral, the rather than scornful. When he used it in dense, thorny scrub common in A Picture of Dorian Gray it is sympathetic Mexico and Texas, through which and affectionate: ‘The poor chap was the cowboy heroes often rode. killed in a duel at Spa a few months after Chaparral comes from the Spanish the marriage’. chapa the scrub oak. Chaps were The Old English form of chapman was worn over the pants to protect the céapmann. It holds the clue to another legs while riding a horse. mercantile connection: a céap was a market, Neither of these meanings springs but it also meant a price, barter, to mind when someone refers to or merchandise. It is recorded in this sense

illustration by guy shield/the slattery media group slattery guy shield/the by illustration chaps these days. The commonest since 1000 AD. In its sense as a market, it is

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still found in place-names like Eastcheap and Cheapside. who dosent (sic) know what a chapette is it is a girl kinda like In the same sense, it led to constructions such as good the word dudette but better… cheap (early 14th century) i.e. a good market, meaning Well, I don’t think she was the first to coin it, but her (from a buyer’s perspective) that prices were low. The intentions are good. And she is not quite accurate about equivalent construction dear cheap was also common, and dudette; it does not exist either. Surprisingly however meant a bad market, or a time of shortage; it now looks dude admits two feminine forms. So even if you can’t use like an oxymoron. chapette, and dudette does not exist, you can choose from By the 16th century, good cheap was a quasi-adjective: dudess and dudine. Although these words are recognised He marvelled at how it was possible for so much victual to be by OED2, I suspect that they will remain in the obscure found in the town and so good cheap… back rooms of language. Marlowe Doctor Faustus (1588): Just as chap drifted from vulgar to affected, bloke is slowly beginning to look a little dated as guy and dude Likewise in Henry IV, Part I (1598) Falstaff says: weasel their way into Australian English. Dude is nearly Thou hast saved me a thousand marks in links and torches, as old as bloke, but is American rather than British. walking with thee in the night betwixt tavern and tavern; Originally it signified a dandy; now it is hip and classless. but the sack that thou hast drunk me would have bought me Guy is also American in origin, although influenced lights as good cheap at the dearest chandler’s in Europe. by reference to the effigy of Guy Fawkes, traditionally burned each 5th November in remembrance of the This usage led to the use of cheap by itself as an adjective Gunpowder Plot. As a neutral reference to a man, it meaning inexpensive. This was rare before the 16th century, emerged in the 1840s, a few years before bloke. but the transition seems to have been completed early in It would be strange to refer to a woman as a guy or a the 17th century. It is an interesting phenomenon: cheap was dude, and impossible to refer to her as a chap or a bloke. a noun, meaning market &c for at least 500 years and then Still, as a general greeting Hey guys is understood as in the course of a century it became an adjective meaning including women. I suppose that is some kind of progress, inexpensive. Cheap is now used only as an adjective. It can centuries after the first strange looking customer was be neutral, or have pejorative overtones: it can suggest called a chap. good value (cheap price) or low worth (cheap victory, and cheap shot). In my parents’ time, if a person’s conduct was described as cheap, it might mean that they were stingy, but it carried the slur that the conduct was low-born: not the sort of thing a chap would do. For a time, the two words, both from a common origin, had exactly opposite connotations. Chap is now a bit toffy - it has a faded air of affectation about it. Bloke is matey. Bloke is much newer than chap: the OED’s first quotation dates from 1851, when Henry Mayhew recorded London’s street talk. For the next 70 years, it was used hesitantly by authors, because of its colloquial origins. Despite this tentative start, bloke has now effectively replaced chap, at least SCHWARTZ CRAFTSMAN MADE FINE FURNITURE in Australian speech. & ANGELO 54 years in Camberwell opposite the Rivoli Interestingly (and unfairly) neither chap nor bloke can refer to a woman. Occasionally the jocular coinage Superb furniture for your chambers or home chapette is heard, but it is not a real word and does not look like surviving to the point of recognition in a Custom made fine furniture dictionary. Not in the sense of a female chap, at least. Meticulous repairs, restoration The online Urban Dictionary recognises chapette, but and re-upholstery defines it as ‘a mamon; one who pretends, and acts Schwartz & Angelo big shit; one who is full of shit.’ It is not recognized by OED2 or Webster. 217 – 219 Camberwell Road Hawthorn East Victoria 3123 Just in case the Urban Dictionary sense catches on, Tel 03 9882 1056 it is probably best not to refer to a woman as a chapette. Email [email protected] The danger is obviously unrecognised by ‘Chelsea’, Web www.schwartzangelo.com.au whose website notes:

So what do you all think about this word “chapette” I made it Parliament House, Government House, Treasury, Suburbs, Country, Interstate up and my friend Ashtyn made fun of me for it …for everyone Craftsmanship that is widely appreciated

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RED BAG BLUE BAG Visiting Solicitors’ Offices

Red Bag A VIEW FROM SENIOR COUNSEL

have been engaged to argue the case that members Ethics Committee; and of counsel should not visit solicitors’ offices. (b.) counsel could attend a solicitor’s office on circuit When I came to the Bar in 1990 the very wise for the purpose of conferring with a client or and urbane Stephen Charles QC spoke to my readers’ witnesses. courseI and cautioned against counsel attending solicitors’ Permission had been given by the Ethics Committee in offices. Times were different then. The principal authority the following circumstances: to visit a solicitors’ office to on professional conduct, practice and etiquette was inspect documents too numerous to be taken to counsel’s Gowans (1979). Chapter 6 of Gowans commenced with the chambers; to take part in a telephone conversation with following proscription – persons in another country where the call was pre- booked; and to conduct a conference in the solicitor’s Save on occasions when the relationship of solicitor and client board room where a considerable number of lay clients exists between a solicitor and a counsel and requires counsel’s and witnesses had to be interviewed. And interestingly, it attendance or, in exceptional circumstances, where permission was ruled not improper for counsel to attend a solicitor’s is granted by the Ethics Committee, it is a breach of professional Christmas party at premises not at the solicitor’s office. etiquette to attend the office of a solicitor for any purpose. There is now no rule preventing counsel from There were two exceptions to the rule – attending solicitors’ offices. It frequently occurs in at least

illustration by guy shield/the slattery media group slattery guy shield/the by illustration (a.) as indicated, permission could be granted by the the following circumstances –

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(c.) mediations frequently take place at solicitors’ (k.) the cab-rank principle [86]; offices; (l.) the sole practice rule [113]-[114]; and (d.) counsel attend solicitors’ offices for video- (m.) the limitations on appearing with persons who conferences; are not members of an independent bar, such as (e.) when counsel are retained to act interstate, it is solicitors [130]-[131]; often necessary to use the facilities and resources (n.) The rationale for the old rule enjoining of the solicitors’ office as a base; attendance at a solicitor’s office for any purpose (f.) junior counsel are retained to assist in large was to preserve the independence of the Bar. As discovery exercises; and the brief references to the Bar’s Constitution and (g.) counsel even attend solicitors’ offices for Practice Rules illustrate, independence of the Christmas parties. Bar remains a central consideration to the Bar’s Does anything therefore survive of the old rule that existence. counsel should not attend solicitors’ offices? The answer By working and conferring in chambers, barristers lies in the fundamental precept of practice at the Bar, maintain their independence, and the appearance of namely, independence. The ideal of independence independence, from instructing solicitors and clients. Of underlies the Bar’s Constitution, and the Practice Rules. course, the old rule is now too inflexible. And there are Clause 4.1 of the Bar’s Constitution prescribes the now so many valid exceptions to it, there can now be no purposes of the Victorian Bar, which include to maintain rule at all. But the principle remains that counsel should in the public interest a strong and independent Bar. That not, without good cause, undermine their independence, purpose is furthered by a number of practice rules, that or the appearance of independence. Counsel should not, include – therefore, attend solicitors’ offices without good cause, (h.) a barrister is not to act as the mere mouthpiece of where it might tend to detract from their independence. the client or of the instructing solicitor [16]; Prima facie, counsel should see solicitors and clients in (i.) a barrister is not to present submissions as counsel’s chambers. Before departing from this norm by personal opinion [18]; attending a solicitor’s office, there should be some valid (j.) limitations on what can be said by barristers to reason for doing so. The mere convenience or preference the media [58]; of the instructing solicitor is an insufficient reason.

Blue Bag A VIEW FROM JUNIOR COUNSEL

remember the day I got my wig. And my gown, in front of the mirror 20-odd years ago, but the times they and a couple of beautiful, snow-white jabots. are a-changing. I put them on in front of the mirror and addressed The solicitors who brief me are my clients and far myself as ‘my learned colleague’ or something similarly from wanting to tug their forelocks whilst in my august Rumpole-esque.I And the day I first donned them as very presence, they have a right, as they are paying me, to be Junior Counsel for a small matter in the Federal Court (in happy that they are getting value from my service. My which we were successful), I thought it was Christmas. financial stability depends on them briefing me again, or As time wore on, the jabots took on a slightly yellow recommending others to do so. hue. Failures came alongside successes, and my days So, if a solicitor asks me to come to their offices, why of oratorical splendour were sometimes succeeded wouldn’t I? To insist otherwise based merely on the fact by bouts of inarticulate awkwardness. But I was a that I am a barrister seems at odds with the modern Barrister. And when I told people that at parties, they world. were impressed. And after all, their offices are set up with special A little bit in awe, but impressed. I liked that. meeting rooms and modern equipment. Some even I didn’t really have a ‘lightbulb moment’ per se to supply coffee that smacks of an expensive machine. realise my mortality. But, over the years, I’ve watched I’ve even seen sandwiches. And cake. Nice cake. the changes that legal firms have made to earn and retain As a moderately successful Junior Counsel, I don’t run clients. How they’ve had to alter their approach to a more to flash chambers. Does it really preserve my dignity to service-oriented one. have a couple of solicitors, and the clients, crowd into my And while I’ve felt vaguely sorry for them, I’ve also chambers, balancing files on their knees because I have thought a lot about parallels with the Bar. It dawned on no separate meeting room? And is anyone, least of all me that, horse hair and swirling robes aside, we are also, me, going to enjoy the International Roast rustled up in when all’s boiled down, Professional Service Providers. the kitchenette down the hall? Or the slightly stale Marie And, I have to say, I’ve really changed my perspective. It biscuits I keep for such special occasions? doesn’t sit so well with the idealistic me prancing around Quite frankly - Let me eat cake.

92 VBN VBN 93 BOOK REVIEW process of open communications and helping the parties to fashion a solution which meets the greater boilerplate Constructive Conflicts number of the parties’ interests; what is described in mediation terminology as a “win-win” solution. of Interest The book has the most extensive and up-to-date analysis that I have read of the history and evolution, both Best Practice in Construction Disputes – Avoidance, Management and Resolution by Paula Gerber and Brennan J Ong, LexisNexis overseas and in Australia, of what is Butterworths – Australia 2013. known as Dispute Resolution Boards (DRBs), or Dispute Avoidance or Adjudication Boards (DABs), which are a relatively new innovation in GEORGE H GOLVAN QC1 construction and infrastructure projects in Australia, but have consistently proven to be remarkably he authors, Dr what parties can do to minimise the successful in dispute avoidance in Paula Gerber and risk of this occurring, or if a dispute many large and complex construction Brennan Ong, are does occur, how to best manage the and infrastructure projects. The leading construction dispute. Not surprisingly, conflict on a theory behind DBRs is that the parties law academics. construction project all too frequently appoint a panel of independent Dr Gerber is results in the parties adopting third party experts with a mixture of currently an Associate Professor negative adversarial attitudes which experience and expertise, including at Monash University Law School, damage relationships and which can technical, legal and ADR. Generally, where she teaches Construction Law. severely impact upon the success of a DRB panel consists of three persons, Brennan Ong is a PhD candidate the project, resulting in delay and although on a smaller project the and Research Assistant at Monash increased project costs. T DRB can consist of one person, whose University Law School and is the The unique focus of this significant function is to assist the parties from Managing Editor of Construction Law work, unlike most texts on construction the commencement of the project International (he was also formerly disputes, which focus on strategies (even from the design stage if the an Associate to Justice Peter Vickery, to resolve disputes after they have project has design and construct the Judge in charge of the Supreme arisen, is on both conventional dispute elements), to proactively identify, Court TEC List). Both have written resolution techniques, such as ADR, manage and resolve disputes, or extensively on dispute avoidance Expert Determination and Early potential disputes, without resorting and management strategies in Neutral Evaluation, and strategies for to arbitration or litigation. The DRB the construction industry, with a dispute avoidance. usually reviews project documentation, particular emphasis on Dispute The authors provide a such as Contract Control Group Boards. comprehensive, thoroughly Meeting Minutes, undertakes regular At the commencement of the book researched (with many helpful site visits and conducts meetings they make the pertinent observation references) and very readable with key on-site and senior off-site that construction is a risky venture analysis of how conflict, which is an personnel to monitor the progress owing to the uncertainty of unknown integral part of human interaction, of the project and facilitate frank and factors that can emerge during the can best be managed in the open discussions of any potential areas life of a project. Conflict is pervasive construction industry, by hopefully of conflict. in the construction industry. Conflict developing mutually cooperative and If the parties are unable to resolve often materialises into claims and trusting working relationships on a dispute by negotiations, the DRB inevitable disputes, which frequently construction projects, from the outset. usually has the ability to make non- conclude in arbitration and litigation, Of particular assistance to binding recommendations, which at great cost and inconvenience to prospective mediators is a useful experience has shown are invariably the parties. discussion on the theory of accepted by the parties, as they are The book undertakes a helpful “integrative bargaining”, as a way of recommendations by an independent examination of the root causes of finding a mutually beneficial solution expert panel with extensive construction conflicts, how conflicts to the parties’ conflicts by identifying knowledge of the project. Different in the construction industry can the disputes, exposing the true needs DRBs adopt different approaches readily escalate into disputes and and concerns of both parties by a as to whether a non-binding

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determination of the DRB is “without prejudice” or “with prejudice” (as adopted in Sydney’s Desal Project), and EXCLUSIVE entitled to be relied upon by a party in any subsequent proceedings. The authors favour the approach that a determination of the DRB should not be admissible New ACCC in a subsequent proceeding, given that the purpose of the determination is to assist the parties to arrive at a consensual resolution. The opposing view is that Formed a “with prejudice” determination will encourage the parties to resolve the dispute without recourse to MEDIA RELEASE1 litigation, as a court or an arbitrator is likely to be persuaded by an independent determination made by an t can now be revealed that the Minister for Inclusive expert panel with detailed knowledge of the project. IWellness will put in place a game-changer: an Anti-Cliché The record of success of DRBs in Australia is that Control Commission (ACCC). After a bitter turf war, in some 40 projects with DRBs, as I understand, no the Minister has decided that this new structure will project has had a dispute referred to arbitration or take over the functions previously exercised by the litigation, and there have been few DRB determinations dysfunctional Agency for the Spread of Irritating required, as most disputes have been able to be resolved Clichés (ASIC). consensually by the parties themselves in the course In an exclusive interview with Bar News, the Minister of the project. Remarkably enough, the Victorian State said that he had been looking through the window of Government has still not come on board, and there opportunity over the level playing field. It was covered have been no DRBs appointed on large construction with sand, in which, at this point in time, he proposed and infrastructure projects in Victoria to date. This is to draw a line, as well as moving the goalposts. Enough presumably due to the perceived high costs of DRBs, was, having regard to forward Budgetary estimates and which is not necessarily the case, and the often over- environmental implications, give or take, within the optimistic belief that their project will be free of ballpark, enough. disputes. The authors note that all Standard Form The Minister had first considered naming the new body FIDIC Contracts now include DRBs as a feature. Clichés Australia (CA), like Cricket Australia, Parsnips The authors make a compelling argument for the Victoria (PV) and Scrabble Queensland (SQ). But in legal profession involved with construction projects Canberra the number of letters in your acronym, which are to change its mind-set from maintaining traditional allotted by the Australian Program for the Recognition of adversarial attitudes, to appreciating the range of Acronyms (APRA), is a sign of status, a bit like stars for dispute avoidance and dispute management strategies, hotels and film reviews. So ACCC it will be. which are now readily available and proven, to better The ACCC will have an over-arching overview, aiming manage construction projects. This will hopefully for the empowerment of human capital through capacity result in more successful projects and satisfied clients building and a flat management structure. whose relationship will not be damaged by acrimonious Being over-arching, it will be able to drill down, taking litigation. care not to shoot the messenger. The concluding chapter contains an apt quotation It will be transparent and accountable, being incredibly from Warren E. Berger, former Chief Justice of the fantastic, moving forward across a wide range of issues, United States Supreme Court, who noted: including those out of left field. Needless to say, it will be iconic, indeed uber-iconic. The entire legal profession – lawyers, judges, law teachers – There will be more Russian orthodox religious emblems has become so mesmerised with the stimulation of court room than you could shake a sauce bottle at. contest that we tend to forget we ought to be healers This will be a game changer and circuit breaker, meeting of conflict. Doctors, in spite of astronomical medical costs, a steep learning curve on a whole-of-government evidence- do retain a higher degree of public confidence because they based approach across rural and regional Australia. are perceived as healers. Should lawyers not be healers? As it hits the ground running, the ACCC will literally The publication of this work, which promotes a tick all the boxes in our DNA as it engages in a national holistic approach towards construction disputes, conversation, joining the dots as it pushes the envelope. is greatly welcomed, and should be included in The Minister urges the Opposition not to trash the brand, the library of every lawyer whose practice involves or engage in a race to the bottom. dealing with construction projects. 1 All media enquiries should be delivered to the Hon Peter 1 (formerly Chair of the DRB of Sydney’s Desalination Plant Heerey AM QC who will respond with tongue firmly in Project and currently Chair of the DRB of Sydney’s South- cheek. West Rail Link Project)

94 VBN VBN 95 Supreme Court of Victoria VERBATIM Matthews v. SPI Electricity Pty Ltd Before J Forrest J, September 2013

boilerplate Have you heard something odd in court? Been on the receiving MR ARMSTRONG: Your Honour will end of a judicial bon mot? Muttered a quip of your own? recall there were a few reports floating Send in the transcript extract to [email protected] around in 2007, in particular from William S Buck that talked about asset lives and there’s been some debate as to whether High Court of Australia Federal Court of Australia that means lives for depreciation or NSW Registrar Births, Deaths and Zwanenberg Australia Pty Ltd v Moira financial purposes as opposed to lives Marriages v Norrie Mac’s Poultry and Fine Foods Pty Ltd in service. This seems to indicate when Before French CJ, Hayne, Kiefel, Bell Before Jessup J, 22 April 2014 the ESC talks about asset lives it’s talking and Keane JJ, 4 March 2014 MR SANTAMARIA QC: I must put to about asset lives for financial purposes. BELL J: Mr Kirk, I think you have you, Mr Koops, that what – the sense HIS HONOUR: For the bean counters? acknowledged that nowadays in which you used the word “cooked up” MR ARMSTRONG: The bean counters, comparatively few pieces of legislation means, as neutrally as possible, that he your Honour, yes. If we can go back to the and subordinate legislation draw the has exaggerated or embellished his fixed preceding page, if your Honour ever thought binary distinction [between the genders] costs, his minimum fixed costs? that bean counters don’t have a sense of for which you contend. Your footnote WITNESS: Look, the best translation humour, have a look at the lust definitions. 19 to paragraph 39 of your submissions in – would be “brewing”. So he brewed Obviously they are trying to price lust. is extensive and would appear to be a his own costs. That doesn’t mean that But anyway, that’s all for that one, your reasonably complete survey. It includes, somebody is – I don’t insinuate anything Honour. Mr Farrands doesn’t want to for example, the combat sports with that, just he brewed it up, so that’s – comment on lust or anything else. regulation that requires in the case of a HIS HONOUR: I don’t think we will go County Court of Victoria female combatant, that she may wear a there, Mr Santamaria. O’Mara v Central Highlands Veterinary lightweight sports-type brassiere. I mean, MR SANTAMARIA: Very good. Group Pty Ltd if this is the high point of submissions about HIS HONOUR: We get caught up Before Judge Carmody and a jury of six the error of the Court of Appeal in failing in metaphors of the food industry. ROISIN ANNESLEY QC: When was your to correctly deal with the difficulty of other We don’t want to move into the last litter that you bred? legislation, it does not strike me beer industry as well. WITNESS: I had a litter last year, but it as your high point. MR SANTAMARIA QC: Your Honour was an accident. I didn’t breed it, the dog MR KIRK SC: I do not think it is my may not wish to. Speaking of – bred it himself. high point, your Honour. I did not HIS HONOUR: Well, not after a long HIS HONOUR: When it’s all said and before and I certainly do not now. weekend anyway. done, that’s always the case, isn’t it?

1968 and all that

THE HON PETER HEEREY AM QC

968 was quite a year: Civil Rights and the Black Panther Party 1in the US, the Tet Offensive, the Prague Spring and the May protests in Paris. On an arguably less historically significant level, the 1968 Annual Victorian Bar Christmas Cocktail Party was the usual fun-filled event. So much so that a group of young barristers, accompanied by wives (some new) and girlfriends (some very that it would be a good idea to have a repeat performance the new) decided to continue the evening by going on to dinner. following year. Those attending were Alex Chernov, Alan Goldberg, Brian Doyle, And so, for the next 44 years the group has dined at Peter Heerey, Tim Smith, Jack Fajgenbaum, Richard Stanley, Bill Christmas, first at restaurants and later at members’ homes. Gillard, the late Ron Castan and the late Jack Strahan. Sadly, two members, Ron Castan and Jack Strahan are no The chosen venue was Lazar’s just down the road in Little longer with us. The others recently had a wonderful evening at Bourke Street. A great night was had by all. It was decided photo courtesy of peter heerey am qc of peter heerey courtesy photo the 2013 event (see pic – Bill Gillard was away overseas).

96 VBN VBN 96 with the Do Visit Melbourne Street, Lonsdale 555 Law Chambers University Monash Science Doctor of Juridical Doctor of Philosophy ofMaster Philosophy (Research) Laws of Master byDegree Researchcourse: aHigher Alternatively, undertake you can Master of Workplace and Employment Law Studies ofMaster Regulatory Law Property Intellectual of Master Law Rights Human of Master Law Commercial of Master teaching to experience andinspire. challenge innovative an and options study flexible classes, small units, of elective range awide offer courses These Graduate Diploma in Law. the with along graduates, to non-law law and available are courses Masters badged five the addition, In graduates. forlaw of Laws Master ageneralist offers of Law Faculty The top 20 law schools* recognised postgraduate qualificationfrom one of the world’s internationally an with specialise or expertise your Extend Lonsdale Melbourne. St, law postgraduate by studying career your with more Do monash.edu/law

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