Historic Reopening of the Banco Court in the Supreme Court

Victorian No. 141 ISSN 0159-3285Bar NewsWINTER 2007

Welcome: Judge Maree Kennedy Farewell to VCAT President Morris Obituary: Wake to Celebrate the Life of Peter Ross Hayes QC Singing Judge Billed with Monash Professor of Embryonic Stem Cell Research at the County Court Historic Reopening of Banco Court in the Supreme Court State of the Victorian Judicature Bar Dinner Speech, Jeremy Ruskin QC Bar Dinner Speech, Justice John Middleton Bar Indigenous Lawyers Meeting The Victorian Bar — Justice Kenneth Hayne Scholarsip Verbatim The Third Women Lawyers’ Achievement Awards Pro Bono Swimming Championships New Exhibition of Women at the Bar Ian Hunter QC Addresses the Melbourne Branch of the Anglo Australasian Lawyers Society We Are Not Americans Yet ... Goodbye Regina? Bar Readers Signing On So You Want to be a Judge? Readers from Vanuatu The Trial of Ned Kelly — Revisited Are Barristers Snobs? Verbatim in America Team up with somebody you can rely on...

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Contents EDITORS’ BACKSHEET 5 Whither the Legal Profession or Where is the When it comes to research, Law Industry Going? CHAIRMAN’S CUPBOARD you can·t take any chances. Your advice must be 6 The Civil Justice Review based on 100% accurate, up-to-the-minute, reliable information. ATTORNEY-GENERAL’S COLUMN 9 40 Years of Very Small Steps on the Path to Reconciliation With LexisNexis you can have Australia’s BEST and MOST COMPREHENSIVE legal library right 10 Media Release: Government Legal Work at your fingertips to boost your research capabilities without additional staff overheads! Our experts Redresses Gender Imbalance can package an online information solution to suit your individual or practice needs from over 100 WELCOME works spanning 16 practice areas and a host of in-depth legal research and reference works. 11 Judge Maree Kennedy State of the Judicature Bar Dinner Speech Address. FAREWELL Go to www.lexisnexis.com.au/solutions for details of our online solutions for barristers. 12 Farewell to VCAT President Morris obituary Start building your own research solution today. Take advantage of our 16 Wake to Celebrate the Life of Peter Ross * Hayes QC 13 MONTHS FOR THE PRICE OF 12 OFFER NEWS AND VIEWS Ask about our 14 DAY FREE TRIAL* 19 Singing Judge Billed with Monash Professor of Embryonic Stem Cell Research at the County Court 20 Historic Reopening of Banco Court in the Supreme Court 22 State of the Victorian Judicature Address 29 Bar Dinner Speech, Jeremy Ruskin QC 35 Bar Dinner Speech, Justice John Middleton Bar Indigenous Lawyers Meeting 39 Bar Indigenous Lawyers Meeting 40 The Victorian Bar – Justice Kenneth Hayne Scholarship 41 Verbatim 42 The Third Women Lawyers’ Achievement Awards 47 Pro Bono Swimming Championships 48 New Exhibition of Women at the Bar 52 Ian Hunter QC Addresses the Melbourne Branch of the Anglo Australasian Lawyers Society 58 We Are Not Americans Yet ... 63 Goodbye Regina? 64 Bar Readers Signing On The Trial of Ned Kelly — Revisited Are Barristers Snobs? 65 So You Want to be a Judge? 66 Readers from Vanuatu 68 The Trial of Ned Kelly — Revisited 70 Are Barristers Snobs? 71 Verbatim in America LAWYER’S BOOKSHELF 72 Books Reviewed

Cover: Historic Reopening of the Banco Court, Supreme Court, see pages 20–28. Bar Readers Signing On Readers from Vanuatu *Terms and conditions apply. See website for details www.lexisnexis.com.au/solutions © 2007 Reed International Books Australia Pty Ltd (ABN 70 001 002 357) trading as LexisNexis. LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., and used under license. ABN 70 001 002 357. Victorian Bar Council

VICTORIAN BAR COUNCIL Chairs of Standing Committees of the Bar Council Applications Review Committee *Executive Committee G *Digby QC, G.J. Clerks: Charitable and Sporting Donations Committee A *Shand QC, M.W. (Chairman) D *Riordan S.C., P.J. D *Riordan S.C., P.J. (Senior Vice-Chairman) Conciliators for Sexual Harassment and Vilification G *Lacava S.C., P.G. (Junior Vice-Chairman) B *Curtain QC, D.E. G *Colbran QC, M.J. (Honorary Treasurer) Counsel Committee D Alstergren W. (Assistant Honorary Treasurer) G *Colbran QC, M.J. D *Fajgenbaum QC, J.I. G *Digby QC, G.J. Editorial Committee for In Brief and Website News H Tobin S.C., T.P. Section D *McLeod S.C., F.M. D *McLeod S.C., F.M. H McGarvie S.C., R.W. Equal Opportunity Committee W *Neal S.C., D.J. D *McLeod S.C., F.M. G *Judd, K.E. Ethics Committee D Moshinsky M.K. G *Lacava S.C., P.G. L Hannebery, P.J. R *Fairfield, C.G. Human Rights Committee D *Shaw, C.E. D *Fajgenbaum QC, J.I. G *Anderson, K.J.D. Indigenous Lawyers Committee D Burns, A.G. G *Golvan S.C., C.D. R Harrison, D.C. Legal Assistance Committee B Sharpe, M.R. A *Macaw QC, R.C. G *Neskovcin, P.A. (Honorary Secretary) Legal Education and Training Continuing Legal B *Pitt, S.T. (Assistant Honorary Secretary) Education Committee D *Ruskin QC, J. Ethics Committee Legal Education and Training Readers’ Course G Lacava S.C., P.G. (Chairman) Committee C Meagher ED, QC, D.R. B *Hill QC, I.D. G&J Willee RFD, QC, P.A. New Barristers’ Standing Committee G&J Lally QC, W.F. B *Pitt, S.T. G&J Santamaria QC, J.G. T Titshall QC, M.R. Past Practising Chairmen’s Committee F Gobbo QC, J.H. F *Costigan QC, F.X. A Manly S.C., R.J. Professional Indemnity Insurance Committee D Davies S.C., J. H *McGarvie S.C., R.W. G&J Shwartz, A. Professional Standards Education Committee P Williams, I.S. G&J *Willee RFD, QC, P.A. D Kirton. C.E. F Shiff, P.L. Victorian Bar Dispute Resolution Committee D Moshinsky M.K. C *Maxted, R.G. D Shaw C.E.

VICTORIAN BAR NEWS Paul Duggan, Richard Brear and Peter Printed by: Impact Printing Editors Lithgow (Book Reviews) 69–79 Fallon Street, Gerard Nash QC, Paul Elliott QC Editorial Consultant Brunswick Vic. 3056 and Judy Benson David Wilken This publication may be cited as Editorial Board David Johns (Photography) (2007) 141 Vic B.N. Julian Burnside QC Published by The Victorian Bar Inc. Graeme Thompson Owen Dixon Chambers, Advertising 205 William Street, Melbourne 3000. Publications Management Pty Ltd Editorial Secretary 38 Essex Road, Surrey Hills, John Stevens Registration No. A 0034304 S Victoria 3127 Editorial Committee Opinions expressed are not necessarily Telephone: (03) 9888 5977 John Kaufman QC, William F. Gillies, those of the Bar Council or the Bar or Facsimile: (03) 9888 5919 Carolyn Sparke, Georgina Schoff, of any person other than the author. E-mail: [email protected]

Editors’ Backsheet Whither the Legal Profession or Where is the Law Industry Going?

elbourne University recently held a reunion lunch for some Mof the baby boomers of the law school. The Chancellor of the university and the Dean of the law faculty outlined the new plan for the future — the graduate degree. Alumni meetings are being held to explain the direction the university is taking. Strange advertisements have appeared on the television, selling the graduate degrees in law, medicine and the other professions. It is indeed a vision for the future — a radical change for the university. Instead of a four-year law degree, or five-or six- year combined degree, a law student will complete a three-year arts, science or commerce degree and then do a law degree in two years. It will be a very intensive two years, with four years of study being crammed into two. Will it mean that a student will need VCE marks of 99.4 per cent to begin an arts degree? In any case ever contemplate practising law: far too people who would make good barristers during the three years of the undergradu- vulgar and doesn’t pay enough.” and solicitors (or Australian Lawyers and ate degree the pressure will be enormous Despite all the modern liberal educa- Officers of the Court) are being kept out. to obtain marks to get into the hot-house tional trends, overwhelmingly, parents The law schools should limit the law faculty. want their children to be a doctor or alter- number of students who don’t want to So much for smelling the roses natively say that they got the marks to practise and encourage those who have a at university and enjoying a well- get into a law school, even though they’ll real vocation, even though they may not rounded experience other than pure never practise. It is such a badge of hon- have the required marks. All this talk of study. our to get into these degrees for parents getting a well-rounded education from a It is all about getting the right marks. and children. law degree is over-rated. Jurisprudence, Undoubtedly Monash, Deakin, La Trobe Medicine has a psychological/person- public international law, conflict of laws and the Universities of Technology will ality test to sort out those with 99.4 per and constitutional law are not a great help benefit by gaining students who do not cent score but not the persona to be a in dad’s business or in the merchant bank want to go down the graduate degree good doctor. — although criminal law could come in path. But the entry levels to these univer- No such test exists for prospective law- handy. sities will undoubtedly rise. This leads to yers, and if there was one suspects many The market push to study law reveals the question of whether you really need of those practising at the Bar and in the a conflict of views of lawyers in society. such high grades at school level to be a Judiciary would probably fail it. But if you Everybody is supposed to hate lawyers good lawyer. Are many being shut out who fail the medico-psych test what do you — just read the newspapers and listen would contribute greatly to the profession do? Law of course; you’ve got the marks, to the jokes. The latest attack on the Bar and therefore society? And what of those even though you’ve never ever contem- following the tragic death of Peter Hayes who study law? plated being a lawyer and you still don’t. QC reflects this innate hatred. Tall poppy- It seems to be very fashionable to say, Therefore many places in the law schools ism and chip-on-the-shoulder journalism “I am studying law but I couldn’t possibly have been taken by “non lawyers”. Many at its worst, reflected in a series of arti-

Chairman’s Cupboard cles attacking the Bar but backed by no evidence other than unfounded rumour. Lawyers are supposed to be dreadful, amoral people, yet more and more seem The Civil Justice to want to become one. Even if a student decides to practise law, the fashionable types of law to follow are very narrow. The legal media seem to Review promote only one aim: the study of commercial law, leading to life in one of the top-tier law firms. Those who follow other areas of law are deemed to be second rate. n 22 May 2007, Chief Justice Having got the 99 per cent, then the next Warren delivered the first Victorian step in the chain is to get a summer clerk- OState of the Judicature address. ship in one of these firms, and get enough Her Honour’s address is available on the honours to do articles at these esteemed Supreme Court website and is published establishments. in full in this edition of Bar News. She But having set this as a target, the described the role and work of judges; media emphasises what this really means the increased complexity of litigation and when it talks of legal burn-out. length of trials; and the many strategies Is it such a great legal achievement the Court has implemented, and is work- to work 80 hours a week, allotting every ing on, to address the issues — such as six minutes of your day to some faceless specialised lists; more intense judicial corporate client, to claw your way into management of criminal trials since 2004, “the partnership” in your thirties, only accelerated since January 2007, with to be given the chop by the young turks criminal matters coming before a judge when you turn 50? Supposedly the work is within 14 days of the committal. intellectually challenging — just ask those The Victorian civil justice system is feverishly working on discovery, due dili- now the subject of a major review by gence and the intricacies of a commercial the Victorian Law Reform Commission lease. (VLRC). Dr Peter Cashman, formerly But perhaps these are just the musings Associate Professor of Law at the of baby boomers, or in the case of one edi- University of Sydney, is now the full- tor, pre baby boomer, who had it all too time VLRC Commissioner in charge of proposals in a number of areas includ- easy, who could swan about a law school the civil justice review. A division of the ing pre-action protocols, the adoption of for years, pursuing theatre, sport and VLRC has been established for the review “overriding obligations” on participants in debating, interspersed with long spiritual comprising Dr Cashman, Justice Harper, civil proceedings (including both parties dialogues in now defunct hostelries safe in Judge Hampel, and Professor Ricketson and lawyers), additional alternative dis- the knowledge that there would always be of our Bar and Dr Iain Ross, former Vice- pute resolution options, expert evidence, a job at the end of the degree. President of the Australian Industrial class actions and costs. These proposals But in this modern high-tech society Relations Commission and now partner at deserve careful consideration. you have got to get real. Professions, Corrs Chambers Westgarth. solicitors and barristers are a quaint The Bar Council established a work- Delay and the cost of litigation thing of the past. Graduates now ing group, which I chaired. That group The Civil Justice Review has been become legal industrialists — power- included Albert Monichino as secretary, prompted by widespread concern at the dressed Australian lawyers toting a com- Nemeer Mukhtar QC, George Golvan QC, delays and cost of litigation. The Bar has puter and “blackberrying” to the world. David Beach S.C., David Clarke, Mark contended that delay itself can lead to Factories now no longer exist. They Moshinsky, Martin Scott and Jonathan significantly higher costs of litigation; the are now known as industrial campuses. Redwood. I acknowledge the valuable additional time allows parties to become Perhaps this is equally a good description contribution which that group has made. involved in protracted interlocutory dis- of the law faculties of the future. Other members of the Bar including Kris putes. As Chief Justice Gleeson observed Hanscombe S.C., Andrew Kirby, Lachlan in his State of the Australian Judicature Appointment of Editorial Armstrong and Robert Craig have also Address: Secretary made valuable contributions on aspects John Stevens has been appointed Editorial of the Review. On 15 December 2006, Litigation is a perfect example of Parkin- Secretary to co-ordinate material for pub- the Bar lodged a major submission (105 son’s law: work expands to fill the available lication. His number is 9225 8270, fax 9225 pages) which can be found on the Bar time. 6161, email [email protected]. website. John is a former journalist who will liaise The VLRC has recently issued an Delay itself has insidious consequences. with the editors, who remain in charge of exposure draft summary of civil justice Apart from leading to higher costs, it pro- policy and layout. reform proposals as at 28 June 2007 duces anxiety and frustration in the liti- which has been posted on its website. The gants; it can prejudice the recollection of The Editors exposure draft has foreshadowed reform witnesses and the fairness of the outcome;

it disadvantages the economically weaker tice system that should guide and inform co-operation rather than confrontation in party who can be forced to settle for less; the Rules of Civil Procedure …” The the procedures leading to trial. it fails to meet the needs of business for significance of formulating the policy is finality and expedition; it deters people that specific reform measures can then The Supreme Court of Victoria in its from going to court and undermines confi- be assessed as to how well they advance submission to the VLRC notes that for dence in the administration of justice. the policy. 2005/2006 there were 6,504 civil proceed- The remedying of delays in our civil ings commenced (page 3). During that justice system must be a high priority. As Monitoring litigation period, 1,372 civil cases were in judge- the Chief Justice Warren observed in her Third, the Government needs to put managed lists. Other cases, in the Civil State of the Victorian Judicature Address in place a comprehensive computer- Management List, came under the man- (page 17), competent and timely justice ized system of monitoring litigation agement of the Masters. for all citizens is no less essential to our across the Supreme Court, the County An allied question which the VLRC has society than adequate education, health, Court and the Magistrates Courts to under consideration is that of the desir- transport and economic infrastructure. monitor the progress of litigation, the ability of earlier and more determinate In the review of our civil justice system, causes of delay and the effectiveness of trial dates. aside from the specific technical reform measures to address it. There is no such Currently, different courts have differ- proposals, there are some overarching system currently in place. [7.2] Bar’s sub- ent strategies in this regard. Whilst cases issues to address. mission. in the Commercial List of the Supreme The Courts Strategic Directions Court are set down for trial as soon as the Setting standards for Statement which was endorsed in 2004 strict interlocutory timetable has been expedition by the heads of jurisdictions and the met (and generally within 12 months), First, what are appropriate standards President of VCAT recommended that cases that are not judge managed will not for the progress of civil litigation? In its a properly funded Courts Statistics and currently be set down until the parties submission to the Civil Justice Review, Information Resource Centre or other have completed their witness statements. the Bar suggested target periods for civil appropriate system should be established This practice postpones the trial date for litigation as set out below. The range rec- (recommendation 17 — pp 23, 48 and a considerably longer period. ognizes that each proceeding has different 112).1 The recently introduced Federal Court complexity. Chief Justice Warren observed in her Fast Track List offers the prospect of a trial a. The target period between recent address (page 18) that the courts within six months from commencement commencement of the pro- must be accountable to the community. of the proceeding. At the initial direc- ceeding and the completion That includes she has said, “courts collect- tions hearing, known as the Scheduling of all interlocutory steps ing detailed data as to what they do, how Conference, the presiding judge will set (i.e. readiness for trial). 6–12 months long things take, how many things and the a trial date for the case which, except b. The target period between types of things they do and then making in urgent cases, shall be between two readiness for trial and the that data publicly available.” In essence, and five months from the date of the commencement of the trial. 2–6 months one has a better prospect of addressing Scheduling Conference, depending on the c. The target period between the problem of delay by understanding relative complexity of the case. Urgent conclusion of the trial and all about it. cases will be heard on shorter notice. the handing down of judg- The Scheduling Conference is set ment. 1–3 months Case management down not less than 45 business days from Therefore the target period Fourth, the critical role of judicial case the date of the filing of the application. between commencement management needs to be recognized and judgment. 9–21 months — it is essential to the timely conduct of Financial resources d. The target period to get an litigation. In its submission to the Review Fifth, the issue of the adequacy of the appeal on for hearing after (section 20), the Bar spoke of the need financial resources allocated to our jus- filing a notice of appeal. 6–12 months for more intensive, and in particular early, tice system. The Bar welcomes the State judicial case management — ideally there Government’s recent decision to allocate should be an individual docket system $45 million to reduce court delays by A Government policy on — otherwise there should be an early case appointing two additional Supreme Court standards for expedition management conference to identify key judges, two additional County Court Second, the Government should as a issues at the earliest stage, tailor discov- judges, plus additional support staff matter of policy set and publish the ery to the issues, and reduce or eliminate and resources in the courts, Corrections appropriate targets for the progress of the need for most interlocutory applica- Victoria and Office of Public Prosecutions. civil litigation. The public are entitled to tions; and there should be a pre-trial There is no doubting that further increases no less. This is the most tangible way to review conference. Federal Court Chief in funding in the years ahead will be plan making the courts more accessible to Justice Michael Black has been reported needed to speed up the delivery of justice ordinary Victorians and to speed up the as saying: to community expectations. course of justice. It is hoped that the VLRC will provide We need to reassert the ideals and benefits Alternate dispute resolution valuable advice to the Government in of judicial case management. These include Sixth, the role of alternate dispute this regard. Indeed the first of its Terms a sharp and early focus on the essential resolution. There is considerable scope of Reference is “To identify the overall issues, an insistence that the court’s timeta- for greater use of the various available objectives and principles of the civil jus- bles and directions are complied with, and methods — mediation, arbitration, expert

determination, special referees and early appropriate to meet the challenges ahead. Council involves not only attending the neutral evaluation. The challenge is for The authors of a 2004 report on Court meetings of the Council but the inevitable the Courts to work more closely with governance2 see our traditional model subcommittees and undertaking prepara- the profession to make this happen and as “clearly problematic in achieving effi- tory work to advance the deliberations of develop specific measures and protocols. ciency and effectiveness of the Court” the Council. All members of the Council In his State of the Australian Judicature because: have in the past year made substantial Address, Chief Justice Gleeson said: contributions to this work. I also express It sets up a misalignment of authority and my great appreciation to the staff of the Both within and outside the court system, responsibility, in which those who have Bar office for bearing up so well in a chal- there is increased emphasis on various the core operational authority (judges) lenging year. forms of alternative dispute resolution. lack clear authority over the necessary It remains for me to take this oppor- Arbitration has long been an important resources to carry out that responsibility. tunity to thank you all for the privilege of alternative to litigation, and has certain What makes this particularly strange is that serving as Chairman. advantages, especially as a form of resolu- it seems to be at odds with the espoused Michael Shand tion of commercial disputes. Other proce- management rhetoric of all the govern- Chairman dures, such as mediation, conciliation, and ments in question. early neutral evaluation, are also widely All of them subscribe to the principle that used. The courts have never had the capac- those responsible for programs should be Notes ity to resolve by judicial decision all, or even accountable for the delivery of outputs or 1. It is intended to post the various documents most, of the civil cases that are brought outcomes, and should be given the freedom referred to in this article to a Courts section to them. Most legal disputes never come to manage the necessary inputs and proc- of the Bar website. before courts; and most court cases are esses. 2. The Governance of Australia’s Courts, resolved by agreement between the parties A Managerial Perspective John Alford, rather than judicial decision. Chief Justice Warren recognized the Royston Gustavson and Philip Williams issue in her recent address (p 27): (2004) AIJA. Chief Justice Warren in her recent address observed that “Given the suc- There has been discussion raised again cess of mediation, the courts should have recently about court governance models. At the confidence to pilot other methods some point it would be desirable to achieve of dispute resolution, in particular, in uniformity, or at least consistency, between appropriate cases, judicial dispute reso- states so that state courts adequately lution.” It is encouraging to see that the reflect acceptable independence and stand- VLRC including in its draft proposals the ards alongside those courts within other TAILORING suggestion that a wider range of ADR systems. Perhaps it is a topic for the Stand- processes should be available to the ing Committee of Attorneys-General. Suits tailored to measure courts. The Courts Strategic Directions Statement in 2004 (section 5.6) usefully Alterations and invisible Court Governance canvassed the alternative Australian mod- mending Finally, the present discussion shows els of Court governance and concluded significant challenges ahead for the that its governance recommendations for Quality off-rack suits civil justice system. The need for fur- the review of the Victorian arrangements Repairs to legal robes ther substantial funding increases from “must be given first priority”. Government is likely to raise questions Bar jackets made to order whether there should be a more focussed Thanks policy adopted on Court charges and fees. In this my last Chairman’s Cupboard, Should a major corporation have access I thank the members of this year’s Bar to unlimited Court days (say a six month Council for their substantial, and entirely trial) and pay only the same nominal court voluntary, service to the Bar — in par- LES LEES TAILORS sitting fee as any other litigant? Should ticular the two Vice-Chairmen, Peter Shop 8, 121 William Street, there be economic disincentives imposed Riordan S.C. and Paul Lacava S.C., the Melbourne, Vic 3000 for delays caused by a litigant? Honorary Treasurer, Michael Colbran QC Tel: 9629 2249 All the issues that arise in the current and the Assistant Honorary Treasurer debate including the above give pause for Will Alstergren — all of whom newly this Frankston reflection whether our current Executive year came into that group of positions Tel: 9783 5372 model of Court governance is the most on the Council. Membership of the Bar

Attorney-General’s Column 40 Years of Very Small Steps on the Path to Reconciliation

early three months ago I was that racism and appalling disadvantage privileged to stand on ancient and persist. Nbreathtaking terrain in south-west For this is the story that most defines Victoria and witness the law’s long awaited our nation; this is the story on which we recognition of the native title rights of the must make good. Just as the dispossession Gunditjmara peoples. of this land’s first peoples is this nation’s This recognition had been a long time greatest tragedy, their survival its great- coming, 11 years after the Gunditjmara est act of heroism. Reconciliation is our lodged their application under what was greatest opportunity for redemption and then a fledgling legislative scheme. In in Victoria, because we are sorry, we are many ways, however, that journey was a working to make amends. The Aboriginal drop in an ocean of memory and longing Justice Agreement, the numerous other for a people who, for 200 years, had fought partnerships across Government, and, with tenacity and grace for recognition more broadly, Victoria’s Charter of Rights that they and their children belong to and Responsibilities are all opening doors their country, that they are charged with to new possibilities. its care. I hope, also, that our celebration in Seeing generations of Gunditjmara south-west Victoria three months ago as they awaited the Court’s pronounce- was another small step towards national ment spoke volumes of the symbolic, as healing, offering respect and vindication well as pragmatic, value of the law. It used to exclude Indigenous Australians, to those who have long deserved it and spoke of the value of autonomy and rec- they must now be used to bring them formally recognising profound spiritual ognition, of paying respect, of the capac- justice. relationships at law. It was joyous, moving ity to participate as equal parties to a The Referendum, the Royal and, frankly, very humbling to be present dispute — and as equal parties to its reso- Commission on Deaths in Custody, at a day of such significance, intimacy and lution. Bringing Them Home, Mabo: these were triumph for the Gunditjmara peoples; and, We could be forgiven for assuming that all wake-up calls to a sleepy little nation for Government, a chance to face the past such participation was commonplace, 40 beguiled by stories of ANZAC and the with humility and the future with resolve. years on from the 1967 referendum when fair go. The depth of our soporific state, Significantly, the occasion proved there a young nation finally acknowledged the however, means we’ve been unable to is an alternative to the confrontation of existence of people it had so brutally colo- rouse ourselves and acknowledge that the adversarial system, and in Victoria we nised. Shamefully, however, we remain citizenship is not just about the capacity have now shown that we can find resolu- adrift on a sea of injustice. Dispossession to vote or claim entitlements, nor even tion if we mediate rather than litigate, the was no accident of history but a deliberate just about the rights and responsibilities Gunditjmara claim being the second in policy: one of violence and suppression, of of the individuals who bear it. Instead, Victoria to be determined by the Federal intentional estrangement from country, most crucially, perhaps, it is about the Court with the consent of all parties. severing of custom, one of premeditated responsibility of the nation charged with I do not pretend, however, that we exclusion from civic and legal participa- their collective care. are not still learning. Nor do I pretend tion. This responsibility means, quite sim- that access to justice is truly meaningful Far from the benign act that we tend ply, having the guts to say, loudly and without access to social infrastructure and to mythologise, this nation — through its without qualification, we are deeply and services, to amenity, to full participation Constitution, through countless pieces profoundly sorry. in the civil process, to diversity, to culture of legislation — was founded on a denial We are sorry for the self-delusions and connection, to elected representa- of the rights of this land’s first peoples. of white virtue that thieved children tion, to self-determination. We remain complicit in this state-spon- from their mothers and left generations However, legal representation and sored racism unless we find ways to swimming in grief; we are sorry for the participation can make a genuine differ- set it right — unless we acknowledge violence, alienation and rampant discrimi- ence — it can bridge the chasm between that, just as legal mechanisms were nation; and, perhaps more than anything, disadvantage, whether systemic or indi-

vidual, and access to justice, it can help I know that many of the Bar have been ago; we can find opportunities for insight Indigenous voices be heard by and take on striving to make this difference and I urge and understanding that bring genuine rec- a legal system originally designed around you to continue to do so. By working onciliation within our reach. their exclusion, and help create hope for towards land, economic or social justice some who have only ever had a negative we can find cause to celebrate progress Rob Hulls experience of the law. since the momentous events of 40 years Attorney-General

Media Release Government Legal Work Redresses Gender Imbalance

ocial justice and equal opportunity “The firms are to be commended “We still need a critical mass of women are the winners in the 2005–06 for supporting legal services that assist at senior levels in the profession, which Sannual report of the Government some of the most disadvantaged people also needs to embrace structural changes Legal Services Panel, released in May by in our society, such as the homeless, and that will allow women to have families and the Attorney-General, Rob Hulls. ensuring that public interest cases can be return to the profession.” Mr Hulls said Firms on the Panel are required to brought to the courts.” the Children’s Court accounted for the adhere to social justice policy outcomes, Mr Hulls said he was also delighted to highest number of junior briefs to women, including reporting on the briefing of see the gender imbalance in the legal pro- providing a good grounding in gaining women barristers for government work. fession being redressed to some extent. skills during the early years at the Bar. Mr Hulls said more than half the gov- “Women barristers only represent The report shows that government ernment and panel’s legal briefs were one-fifth of the Victorian Bar, but they departments briefed women in 58 per given to women barristers, while firms receive 52 per cent of the briefs from cent of cases, the Victorian Government listed on the panel exceeded their social government departments, the Victorian Solicitor’s Office briefed women in 32 justice commitment by providing $5.2 mil- Government Solicitor’s Office and firms on per cent of cases and panel firms briefed lion in pro bono work for community and the Government Legal Services Panel. women in 30 per cent of cases. other specialist legal centres. “It is an excellent result and a big step Mr Hulls said not only was the volume “Law firms went above and beyond in the right direction, but the pressure to of work for women barristers impressive, their commitments, delivering pro bono positively allocate more work to women but also the nature and quality of that services worth nearly $1.5 million more will have to continue for some years more, work which was reflected in the share of than required under the panel system,” despite women having already surpassed fees women barristers receive. Mr Hulls said. their representation at the Bar.

10 Welcome County Court Judge Maree Kennedy

Over the next 17 years at the Bar she nothing more of them than she herself did did just that and practised in crime, tax, as a junior. commercial, insolvency, immigration She was a loyal companion in cham- and just about every public law stoush bers where her domestic joys and travails, between the Commonwealth and the which included two tiny children and the State of Victoria of the last 10 years. management of a busy demanding prac- Her early years at the Bar were marked tice, were the source of immense merri- by substantial work in the area of immi- ment. At tea time one night at home in the gration on behalf of the Immigration Legal middle of an injunction application, Maree Centre. Mary Crock, now Professor of was on the phone to an instructor when Administrative Law at Sydney University the microwave burst into flames. Her with whom Maree worked, described instructor spoke on, blissfully unaware her as “an extraordinarily talented bar- of the conflagration whilst Maree doused rister distinguished by her humanity”. the flames and provided calm and lucid The ultimate compliment occurred after advice. some years when Maree was briefed Her recent Bar CLE on Legal by the Commonwealth in immigration Professional Privilege was widely admired matters. and the impetus for her appointment to a One of Maree’s regular briefers committee of the Australian Law Council described her as much loved by business looking into the privilege. and government for her ability to cut a Maree’s son Daniel was recently asked swathe through complex commercial to create a family crest and motto. He problems. She is famous for getting to identified the family motto as “Now isa the point early and staying there. In a good time”. This was obviously a good aree Kennedy was always on my recent appearance in the County Court omen, though when Daniel was told of the Mhorizon. Her dark good looks, slash she appeared for the Respondent. The appointment all he wanted to know was of red lipstick and her ferocious intel- Plaintiff had subpoenaed all her potential would there be a party and could he stay ligence made her hard to miss. We only witnesses but had called none of them. up late. His four-and-a-half year old sister really came to know one another well Maree called no witnesses and tendered was more concerned about whether there after we took silk together in 2002 and one document only. was a uniform and what colour it was. The shared chambers on the sixteenth floor Judge Coish delivered an extempore purple of the County Court she thought of Owen Dixon West in more recent judgment in favour of Maree’s client. (correctly in my view) would suit Maree. times. Counsel for the Plaintiff was later heard to Modest in her outlook and demeanour, Maree did her articles with Andrew mutter, “Maybe the Chief Justice is getting the County Court is lucky to get someone Guy at Arthur Robinson & Hedderwicks it right”. Of course he was wrong again as of Maree’s talents and breadth and depth where she worked closely with Melanie Maree took silk in 2002. of experience. Sloss S.C., then a Senior Associate of Maree’s capacity to get to the point We wish her well in her appointment to the firm. She was admitted to practice in and stay on the point is only matched the County Court. March 1987 and took up an associateship by her prodigious capacity for work. 6.00 with Justice Keely in the Federal Court for a.m. starts were the norm, even when she F.I. O’Brien S.C. 12 months. In 1988 and 1989 she taught wasn’t running a case. full-time at Monash University in property She continued to use her own name The photograph is the property of County Court and and administrative law, while beginning of Kennedy when her married name of may only be reprinted or used with the permission and completing her Master of Laws. She Cussen would inevitably have invited of the Court. signed the Bar Roll on 1 September 1990, more than mere acknowledgement of her reading with the now Justice Stephen connection to Sir Leo Cussen. Kaye. She was led by David Habersberger, Stephen Kaye has described her as Peter Jopling, Ray Finkelstein, Richard articulate, hard working and very clever. Tracy, Tony Cavanagh and Kevin Bell His fellow readers described her as his amongst others. favourite. She describes her experience Her juniors describe her as uncom- with Stephen as galvanising. She says she promising in her standards and adding has always followed his injunction to do real value strategically and substantially anything that came her way. to every piece of work. She says she asks

11 Farewell Farewell to VCAT President Morris Farewell address by Michael Shand QC Chairman of the Victorian Bar Council Thursday 19 April 2007, on the occasion of the retirement of the Honourable Justice Morris from the Presidency of the Victorian Civil & Administrative Tribunal.

ay it please Your Honour, and may it please the Tribunal — this being Mthe last occasion on which Your Honour will sit as the Tribunal, I appear on behalf of the Victorian Bar and I am sure I speak for everyone here today and the community at large to pay tribute to Your Honour’s achievements in nearly four years’ service as the President of this Tribunal. In June of 2003, Your Honour became President of the Tribunal. It had grown since 1998 on the firm foundation laid by the inaugural President, Justice Kellam. VCAT plays a huge role today in the administration of justice in Victoria — at the late annual report, it had 8 judicial members, 7 Deputy Presidents, around 38 full-time members, 143 sessional members and 197 employees, total applications lodged last year of almost 89,000 and roughly the same number of cases finalized. Your Honour has been an outstanding judicial administrator. You have been a champion of the Tribunal, giving strong and informed leadership and an effective voice to the public, explaining the work- ings of the Tribunal to countless community groups. As the Attorney-General said, on the announcement of Your Honour’s intention to retire: “VCAT is a leader in this country in the administrative law jurisdiction; this is due, in large part, to the efforts of Justice Morris.” The President of the Administrative Decisions Tribunal of New South Wales, Justice Stuart Morris. His Honour Judge Kevin O’Connor AM has written in the following terms: to the work of Tribunal members gener- the topic of giving reasons for decision. ally in New South Wales over the last four The quality and skill of those presentations I am writing to record my appreciation for years. continues to be commented upon very the contribution that Justice Morris made Stuart gave excellent presentations on positively.

12 His warmth and good humour will be Honour gave leadership to all at VCAT, of Appeal — Your Honour conducted pro- missed. encouraging in them confidence to write ceedings fairly, efficiently and with dignity. On behalf of the members of the Tribu- timely and succinct reasons for decision Typically, the Court of Appeal in planning nal that I head — the Administrative Deci- and a strong sense of commitment to the appeals from VCAT would include either sions Tribunal New South Wales — may I objectives of the Tribunal. the Chief Justice, Justice Osborn or Your wish Stuart well for the future. Under your stewardship, VCAT has Honour. conducted a wide range of professional In a significant number of cases before Early in Your Honour’s Presidency, you development activities for its members, the Tribunal, including complex planning made a tour of regional Victoria, designed including its own decision writing course cases, both parties are unrepresented. to highlight the importance of courts and in June 2006 and a seminar for members These can present considerable chal- tribunals sitting in regional areas through- deciding fair trading disputes. lenges to any judge or Tribunal member. out the State. Through your drive and energy, the Your Honour displayed a particular gift You did of course have considerable Tribunal offers better amenities for its in hearing these matters. Impeccably fair, experience in this regard. Your previous members and the public — the library on Your Honour struck just the right balance. tour of rural shires was in 1985 and 1986 level 4, the improvements to level 6 and, Cases proceeded with a degree of infor- as Chairman of the Local Government with the assistance of the former CEO, mality such that the unrepresented liti- Commission — to conduct hearings into John Ardley, the new mediation centre on gant was not intimidated and felt able to forced amalgamations to reduce 211 level 2. As one Deputy President said the put his or her case. At the same time Your Victorian municipalities to 40 — a surefire other evening at a dinner in your honour: Honour upheld the authority and dignity way not to win a popularity contest! “He’s made it a great place to work.” of the Tribunal. Your Honour conducted one hearing In one case, an unrepresented litigant in the Shire Hall at Metcalfe — north of was having difficulty making his point. He Kyneton. Metcalfe had lost its railway- In a break in the hearing, was from the Indian sub-Continent, and stop, its school, its post office and finally Your Honour took a wild guess that he its pub. Metcalfe farmers had not, how- Your Honour went to use might follow cricket. You asked “Mr X, do ever, lost their spirit. the conveniences. Over you follow cricket?” In a break in the hearing, Your Honour the electric hand-dryer That elicited a rather puzzled, “Indeed went to use the conveniences. Over the Sir, I do, very much.” electric hand-dryer was a handwritten was a handwritten sign “Well, let me put it this way, you have sign which read: “Press button to hear which read: “Press button just bowled a `wide’.” “Ah, thank you, Sir” Commissioner Morris.” to hear Commissioner and the man smiled — he understood. Nearly 20 years later, Your Honour’s Morris.” His next proposition was much more 2004 tour as President of VCAT was on point: “Now you are on the pitch.” immensely more welcome. Your Honour has delivered significant Throughout Your Honour’s Presidency, At the same dinner, the Justice judgments across the broad range of you have spoken and listened to people Department Secretary Ms Penny the Tribunal’s jurisdictions — from (in — in community groups, local councils, Armytage singled out the introduction alphabetical order) anti-discrimination professional bodies and industry associa- of Court Network in VCAT, in which she through freedom of information, gaming, tions. described Your Honour’s role as “pivotal”. health, occupational health and safety and So I am confident in speaking, not only Your Honour has been a strong sup- professional discipline to valuation and for the Bar and the legal profession, but porter of the use of technology in the compensation. also the public who have benefited from administration of justice. You have rec- Your decisions both on the Court Your Honour’s service at VCAT. ognised the difference it can make to the and the Tribunal, if not always popular, Within only a few months of taking transparency of the process. In particular were bold, humane, compassionate and office at VCAT, Your Honour initiated AustLii combined with the websites of the fearless. They were eloquent and well what you named “Operation Jaguar” — a Courts and tribunals has, as you have said, reasoned. review designed to improve efficiency in “made possible the rapid and widespread Your Honour gave intellectual leader- the Tribunal, with particular focus on the dissemination of decisions and the reasons ship to the Tribunal, and as a fair and Planning and Environment List — you for them”. And at no direct cost to the sound judge, true to the oath you took, aimed to achieve a process, you said, that public. These are an important counter to and remarked upon in your welcome was sleek, swift and efficient like the big the filter of what you have called “shock speech, you discharged” [your] duties cat. jock” radio presenters and tabloids. according to law, and to the best of [your] Operation Jaguar was a great success. VCAT Online last year attracted an knowledge and ability, without fear, favour Times were reduced; new procedures increasing number of users who lodged or affection” — even though, on occasion, introduced. more than 51,000 applications online, rep- that involved offending government, Over the period of Your Honour’s resenting 78 per cent of all applications developers, or objectors. Presidency, the median time for the deter- made to the Residential Tenancies List. Your Honour will be much missed and mination of planning disputes has been By Your Honour’s leadership, you have on behalf of the profession and the public, reduced from 22 to 16 weeks; and the strengthened VCAT in its core objectives I extend to you sincere thanks for your median waiting times in the Civil Claims to be cost effective, timely, accessible, fair service as President of VCAT. List are down from 21 to 8 weeks. and impartial and quality decision makers. I wish you every happiness and new As Your Honour has said before, statis- In the Tribunal and in the Supreme Court challenges for the future. tics are not the “be all and end all”. Your — both as a trial judge and in the Court May it please the Tribunal.

13 Farewell Farewell by Justice Stuart Morris, President of the Victorian Civil and Administrative Tribunal A speech given at a hearing of the Victorian Civil and Administrative Tribunal on 19 April 2007.

would like to thank Mr Shand for those a document a cabinet document, whether There is a quotation of Keynes that kind words. I would also like to thank the sperm of a deceased man could be expresses a similar idea. He said: Iso many of you for coming to this fare- exported to another state. I have also well sitting this afternoon. determined many major planning cases, The difficulty lies not in the new ideas, but When I was 16 my sister gave me a copy particularly in relation to the adoption of in escaping from the old ones.2 of Irving Stone’s book, Clarence Darrow fair procedures. Cases about end-of-life for the Defense. Darrow was a famous decision-making — such as BWV, RCS I mention these things, because in American lawyer. He was also a man who and Mrs Maria Korp — have also been many ways VCAT is a paradigm shift, an engaged in career change. Darrow had extremely challenging. escape from old ideas. Even after nine been a company lawyer, but, when aged For good or for bad, I have approached years, VCAT is a new idea. It is a new 38, he decided to defend labour activists the task of resolving controversial cases idea to vest substantial judicial power in a and other social underdogs. Darrow was a by striving for the goals of intellectual tribunal. It is a new idea to extend admin- free thinker, a civil libertarian, a man with rigour, promoting fundamental values istrative review to most corners of govern- a social conscience; intellectual integrity — particularly values about the freedom ment. It is a new idea to bring tribunals was his hallmark; and he was a man who of the individual — and eschewing cheap under one umbrella, maintaining speciali- became involved in fascinating cases in populism. However, only time will tell sation while obtaining the advantages of the fight for human rights. One of his most whether I have achieved these goals. bulk. Some of these new ideas have been famous trials was the Scopes “Monkey” John Maynard Keynes once said that uncontroversial; others less so. trial in 1925, when Darrow defended the when men espouse new ideas this often But what is unquestionable is that right to teach the theory of evolution in involves rehashing some idea or theory VCAT has achieved its makers’ goal of high schools. learned as a youth.1 So, at the risk of add- being expert, inexpensive, timely, acces- I have read and re-read that book many ing further proof to his aphorism, I would sible, independent and fair. For example, times. It was instrumental in my decision also reflect on another book I read before planning cases are determined by experi- to study law; and it has inspired me in the I was 20. In The Structure of Scientific enced town planners, or engineers, or spe- practice of the law, both as a barrister and Revolutions, Thomas S Kuhn argues that cialist planning lawyers. Building disputes as a judge. the progress of science depends on iden- are resolved by specialists in this field. A judge is, of course, required to faith- tifying the circumstances where existing Civil claims are typically resolved in eight fully interpret and apply the law. A judge paradigms fail to explain nature; and then weeks; and residential tenancy disputes is also required to exercise any discretion engaging in a “paradigm shift” to provide usually take only three weeks. In many in accordance with law. But it remains a better explanation. I suppose the classic lists of VCAT, litigants routinely appear in true that one of the privileges of having example was the paradigm that ruled from person or, if represented, are represented been a member of the Victorian Civil and ancient times to the sixteenth century, to by a professional other than a lawyer. The Administrative Tribunal has been the the effect that the Earth was at the centre success of VCAT is also highlighted by the opportunity to consider important social of the solar system. This paradigm was so fact that over the last four years some 18 questions and seek to resolve them fairly powerful, and universal, that Copernicus new jurisdictions have been vested in the and wisely. In this respect it is inevita- did not publish his theory to the contrary tribunal. ble that values formed many years ago until he was about to die. Copernicus’ The fact that VCAT represents such — whether from family, or schooling, or theory, that the Earth revolves around the a positive paradigm shift in the way jus- from reading — play a role. Sun, required a paradigm shift of the type tice is delivered to the ordinary person is Decisions about public questions are identified by Kuhn. extremely satisfying. Indeed, I have been often controversial; and it is rarely possible to make a decision that will please everyone. Indeed, VCAT seems to get its share of cases where it is inevitable that someone or other will be actively displeased by whatever decision is made. I suppose I have had my share in that category. But I’m not complaining. I have been extremely fortunate to have been charged with the responsibility of deciding an array of cases with a social policy dimension: for example, what is meant by “fair” trading, when girls can play football with boys, when is

14 immensely proud to have been the leader The senior staff of VCAT — the present councillors and council officers; I appreci- of VCAT. and immediate past CEO, the present ate that. The fact that I have decided to leave and immediate past Principal Registrar, As this is a farewell speech, I sup- the Bench before becoming entitled to a and the Listing Co-ordinator — have all pose it is customary to now talk about pension has attracted comment. Certainly provided me with tremendous service. the Department of Justice. Well, I have such a decision does not fit the conven- The staff of VCAT play a critical role in found the Department — and in particular tional paradigm. But I have spent thirteen achieving high standards of service; and in Penny Armytage and John Griffin — to be years in public life — five as a local coun- delivering justice to the quarter of a mil- enthusiastic supporters of VCAT and what cillor, two and a half as a tribunal member, lion parties who use the tribunal’s services the tribunal stands for. Of course, we can one and a half as a commission head, and each year. always do with more money. But I have four as a judge and as head of Australia’s I have also received wonderful and found a high level of co-operation and largest tribunal — and I am engaging in loyal support from my associates over shared vision with departmental officers. my own, personal, paradigm shift. I sup- the years; and from my secretary, Robyn I thank them for that. pose the difference is that I have not con- Weeden. I do not want to forget the practitioners centrated this public service in the last who appear before the tribunal. Anyone part of my career, but have spread it out, who has sat on a court or tribunal will moving from challenge to challenge. For know that the attitude of practitioners me, that has worked. The fact that I have contributes so much to work satisfaction. I wish to emphasise that when I came to My first case was not a welcome introduc- VCAT the organisation was already strong decided to leave the Bench tion: I was asked to rule on some twenty under the leadership of Justice Murray before becoming entitled evidentiary questions by enthusiastic Kellam. I hope I have made it stronger. to a pension has attracted counsel. As so often happens, as the case Certainly I am convinced that many of the developed the rulings turned out to be changes that have strengthened VCAT are comment. Certainly such largely irrelevant. I described the expe- now embedded; and that the tribunal will a decision does not fit the rience at the time as like sitting an oral continue to prosper. conventional paradigm. examination. Fortunately that experience The leader of any organisation depends did not set the trend. Rather I have found on others. And often it is those “others” practitioners — both lawyers and non- who contribute so much to the success of lawyers — immensely helpful, co-opera- the organisation. Outside of VCAT, I have also received tive and honest in their dealings with the The Vice Presidents and Deputy valuable support. From my fellow heads tribunal. Presidents of the tribunal have provided of jurisdiction, from the Attorney- In any job the support of family is me with enormous support. In some ways General, from my fellow judges on the important. The job as President of VCAT each of these presidential members has Supreme Court, from the Judicial College is no exception. I have been blessed with a been running their “own” tribunal, effi- of Victoria, from Crown Counsel and from close and loving family. I thank Jenny and ciently and without fuss, whilst drawing on Court Network. I recall the judicial pay my children for all their support. the overall strength of VCAT. John Billings dispute of Easter 2004 with affection; In my early days here the then CEO runs the Guardianship List with great care and the professional training days we John Ardlie was asked how things were and competence. Sandra Davis, Marilyn have held at VCAT with the support of the going with the new president. He replied Harbison and Cate McKenzie have been JCV. And notwithstanding decisions like that VCAT was going for a ride and he outstanding contributors, particularly in Buttigieg v Shire of Melton, VCAT has was getting on board. I know some had anti-discrimination. Anne Coghlan is effi- had excellent relations with successive hoped for a longer ride. But the trip has ciency personified; Michael Macnamara Ministers for Planning and the Department been rewarding, rarely boring, and the is a brilliant lawyer; Bernadette Steele of Sustainability and Environment. VCAT vehicle is still intact. It’s now time for a manages residential tenancies and civil has also been served by the Victorian new driver. claims with new ideas and energy; and Government Solicitors Office, Victorian Cathy Aird runs our Domestic Building Legal Aid, the Public Advocate and Notes List with aplomb. The indefatigable Helen State Trustees. I have also been fortu- 1. “The ideas of economists and political phi- Gibson presides over the Planning and nate to enjoy constructive associations losophers, both when they are right and Environment List; and we now have Mark with professional organisations such when they are wrong, are more powerful Dwyer on board and in charge of land as the Victorian Bar, the Law Institute, than is commonly understood. Indeed the valuation. John Bowman is a great civil the Victorian Planning & Environment world is ruled by little else. Practical men, all-rounder — a “civil” all-rounder, that Law Association, the Municipal Group who believe themselves to be quite exempt is an odd expression for a Collingwood of Valuers and the Planning Institute of from any intellectual influence, are -usu supporter. I thank all these presidential Australia. ally the slaves of some defunct economist. members for their support. I also thank In my time I have sought to engage Madmen in authority, who hear voices in former presidential members, including with the stakeholders of the tribunal, par- the air, are distilling their frenzy from some Richard Horsfall, Damien Cremean and ticularly local government. I think I have academic scribbler of a few years back.” The Michael Levine. spoken to almost 50 councils over the past General Theory of Employment, Inter- VCAT is also fortunate to have many four years. I want to say that my dialogue est and Money (1935) Ch 24 “Concluding talented and dedicated members, who with local government has been valuable Notes”. shoulder most of the day-to-day workload. in explaining Victoria’s planning appeal 2. The General Theory of Employment, Their contribution has been outstanding. system. I have been warmly received by Interest and Money (1935). 15 Obituary Wake to Celebrate the Life of Peter Ross Hayes QC

Speech by Ross Robson QC, at a wake held on 7 June 2007

Celebrate Peter’s Life e are gathered here today to celebrate the life of Peter Hayes who Wpassed away on Monday 21 May 2007. We were all shocked and stunned by Peter’s death. It affected many of us far more that we had expected. I hope these few words will do justice to our remarkable friend. Peter Hayes was born on 30 October 1948, the second son of Bob and Nancy Hayes and brother of Robert. Peter attended Carey Grammar School before moving on to Scotch College. He gradu- ated from Monash University B Juris, LL B (Hons). Peter was articled to Michael Winneke at Gillott, Moir & Winneke. Peter was admitted to practice on 1 March 1973 and signed the Bar Roll that day. He read in the chambers of the Honourable Clive Tadgell AO, QC. Peter took silk on 29 November 1988. Peter provided extensive service to many Bar organizations, too many to list.1 His clerk Glenn Meldrum wishes his loyalty and support for his list to be remembered. Peter was a unique individual, the like of whom we will probably never ever meet again. His vibrant and warm personality made a significant impact on all he met and each of us in this room who had the privilege of knowing him will have special memories of Peter that we will cherish forever. Peter Ross Hayes QC. Peter had wonderful qualities. He was warm, generous, witty and compas- Jokes About People at someone else’s expense that was not sionate. He wore his heart on his sleeve Peter had an endearing characteristic of spiteful or hurtful. and all who came into contact with Peter being able to make jokes about a person were struck by his genuine friendliness that the butt of the joke could laugh Companion and easy charm. Peter loved people and along with. One of my favourites is Peter’s When Peter first came to the Bar, those delighted in their company. He could gain observation to his junior when in earnest fortunate enough to be encompassed the confidence and friendship of a person conversation with Roger Gillard: “Don’t within his orbit were constantly enter- as soon as he met him or her. The stories interrupt Roger when he is interrupting.” tained by the stream of stories and that I am about to relate could be multi- This epitomises the quickness of Peter’s experiences that he generously shared. plied many times. wit and also the way he could have a joke Peter emanated energy, enthusiasm good

16 humour and affection, which those that to the Federal Court, and said: “Michael, the sheer energy and force of personality circled around him basked in. He was a I heard a rumour you are to be appointed that emanated from the north-east corner great companion. Every minute was an Chief Justice of Victoria.” Michael, seeking which was the happiest spot in the build- adventure, stimulating and fun. The old to establish the strength of the rumour, ing. saying “never a dull moment” must have said to Peter: “Who started that rumour?” been coined with Peter in mind. Peter paused as if searching his memory Loyalty to Friends As I mentioned previously, Peter and then said, “I think I did.” Peter maintained a great friendship read in the chambers of Clive Tadgell, Peter gave the Mr Junior Silk speech in with the late Ian Sutherland and Peter an experience for both Clive and Peter. 1989. One of the judges he was toasting Kennedy, his close friends from Monash. Peter was a “fashionable junior” and he was Mr Justice Fullagar. Peter said that his Peter’s eulogy at Ian Sutherland’s funeral often acted as junior to Stephen Charles, Honour was busy writing his three-volume will surely rank as one of the finest ever Alex Chernov and Bill Ormiston. They all work on how not to hear a case, loose-leaf heard by those that were there, that sad became firm friends and perhaps assisted service of course. Only Peter could get day. He spoke with such empathy, knowl- by the experience they all later sat on the away with a comment like that. edge and sincerity that those fortunate Court of Appeal of the Supreme Court of enough to hear it were deeply moved and Victoria, along with Peter’s pupil master State of Chambers retain wonderful memories of Ian. Clive Tadgell. His chambers had to be seen to be One of Peter’s first trips overseas as believed. He went through briefs like The BoomGate counsel was as junior to Stephen Charles: hot dinners and each brief when finished A picture of Peter’s life would not be a trip that took them to San Francisco with was cast into the corner onto an complete without the full story of the to confer with a major corporate client. existing mountain of documents. Peter car park boomgate. Peter and Mary had At the conference with executives of had a constant stream of people in and been invited to Canberra to provide the client, Peter in his usual enthusiastic out of his chambers: colleagues, juniors, some youthful company to their Royal manner offered all sorts of opinions and solicitors, secretaries, clients and friends. Highnesses Prince Charles and Princess advice. Stephen could hardly get a word Peter loved talking. After court if the Diana during their first royal tour of in. After the conference, Stephen turned phone didn’t ring he had his secretary Australia. Mary went on ahead and Peter to Peter and said “I think it is a good idea ring around several of his favourite solici- left, naturally, at the last moment to head to let your leader kick a goal occasionally.” tors and leave a message to call Peter. out to the airport to fly to Canberra. He One of the great aspects about Peter was When they rang back, Peter would give left his car park pass behind and his that he was the one who would tell you the impression that they were instigating entreaties to the car parking attendant to that story and many similar stories at his the contact and chew over every aspect allow him to leave without the card fell on own expense. of the cases they were working on deaf ears. Peter crashed his car through together. the boomgate as you would expect and ASIO managed to get to Yarralumla to carry out Peter had the knack of paying attention Peter Understood People his duties. A few days later back in cham- to what he considered was important and Peter understood people. For example, bers, we were all surprised to see a mem- ignoring what he thought was unimpor- if he was offered a piece of confidential ber of the Victorian Police Force arrive at tant. On one occasion, he was briefed by gossip he would usually reply, “No need Peter’s chambers asking to see “a Mr Peter ASIO in an inquiry into the security serv- to worry — it won’t go beyond the 16th Hayes” about a damaged boomgate. I don’t ices. A whole bevy of serious-looking men floor.” As all who practice at the Bar know, know what Peter said to the constable but turned up in his chambers and wheeled in that is a pretty accurate prediction of all was sorted out to the satisfaction of a huge safe. Peter was given strict instruc- what usually happens to gossip. the police and the car park owners. One tions that the secret documents that ASIO Peter also understood himself. In a thing we can be sure of is that Peter would provided him with were to be locked in famous Western Australian case, Peter’s not have mentioned Prince Charles or the safe every night. He was instructed instructors had obtained a psychologi- Princess Diana. Peter was no name drop- to memorise the combination. Naturally cal profile of the other side’s client that per. Peter was completely oblivious to every morning Peter had forgotten the pointed out some unusual characteristics. rank and title. To Peter, all that mattered combination and the same group of men Peter’s junior and instructing solicitor was the person. would return to open his safe. I am sure were shocked to see that the analysis also that the ASIO officers were often surprised fitted Peter’s personality and showed it to Peter’s Readers to find a half-eaten sandwich or other item Peter with completely straight faces, hold- Peter had 11 readers: Stephen O’Bryan, of food along with the top secret papers in ing their breath. As Peter read the profile Peter Costello, Graeme Clarke, Nunzio the safe. If perchance a document was not he started to laugh and said as he tossed it Lucarelli, Michael Hines, Charles Scerri, locked up I am sure we can all sleep easy, away, “Sounds like me.” Jocelyn Scutt, Paul Anastassiou, Blair confident that our national secrets were Ussher, Kathy Williams and Godfrey safe as only Peter could locate a document The Sixteenth Floor Cullen. Each of his readers treasured in the sea of paper in his chambers. The sixteenth floor of Owen Dixon their only too brief time with Peter. Peter Chambers West — those lucky few who took silk in 1988 and as is the custom his Mischievous shared that floor with Peter will never eleven readers entertained him to a din- I think we should add mischievous to forget the experience. Andrew McIntosh, ner. Peter’s speech in response treated Peter’s endearing characteristics as well. Chris Maxwell, Kim Hargrave, Simon his readers as his cricket team from the For example, one day, Peter met Michael Whelan, John Larkins and many more Western suburbs and described their Black in the street, before Michael went who are still at the Bar will forever recall character and legal abilities in cricketing

17 terms. If I recall correctly Peter Costello sibly any other barrister at the Bar. Often one of the giants of the Victorian Bar and and Don Bradman may have been men- he took these cases on a “no win, no fee” a wonderful human being. tioned in the same sentence. basis. The investors in Pyramid would not Peter was kind and generous to all have received a penny but for the efforts Mary and particularly to his readers and those of Peter and his junior Michael Hines, Mary and Peter married in 1972. After just starting at the Bar. He would ensure instructed by the late David Fogarty of nearly 30 years of marriage they sepa- each of his readers got juicy briefs as Deacons. Against all odds he battled rated. Any celebration of Peter’s life soon as they were able to take briefs, usu- the State of Victoria and ultimately won must acknowledge the unfailing love and ally junior to Peter. Kate McMillan read through. There were many more cases support Mary gave Peter during their in the chambers of Peter’s good friend like Pyramid. They were difficult as often marriage and the dignity and patience she Ian Sutherland. For three days after she the life savings of his clients were at risk. displayed during their marriage. signed the Bar Roll and became eligible These cases are very emotional as so to take briefs the phone remained silent. much rides on the outcome. Despite the Summary On the fourth day it rang. It was Peter. toll they took on Peter, he could never How do we sum up Peter’s life? Once in “Kate, can you do a couple of consents in turn a victim of injustice away from his a lifetime comes along an individual that the practice court for me?” Her successful door. He had the gift of getting straight to with the sheer force of his personality and career was off and running. Peter had obvi- the point and encapsulating his arguments humanity leaves an indelible mark on all ously heard from Ian Sutherland of Kate’s in a way you could not forget. He was the fortunate to meet him and share his life plight and typically lent a hand. One could barrister to have in a last ditch fight. He with him. Peter was such a man. How multiply stories like that one hundred- was the barrister to have in any fight and would you describe him: Woody Allen fold. the huge practice he had bears testimony — Oscar Wilde — F.E. Smith. You can’t Being a junior to Peter had its risks, to the view that the profession had for his — he was one out of the box and we are however. Peter would often say just abilities. all richer for having known him and poorer before a case was to begin: “Look you start Peter railed against any hypocrisy that for his passing. Vale Peter. the case. I’ll be across in ten minutes.” A he saw in the law. He argued for proce- day or so later he would turn up to make dures to speed up cases and reduce tech- Note the final submissions and usually win the nical delaying tactics. He was a relentless 1. Peter served on the Bar Library Committee case. On the other hand, many of Peter’s advocate for justice. in 1973 and 1974 and, briefly, on the New juniors carry with pride the red bag gen- Barristers Committee in 1974. He was Assist- erously bestowed by Peter in recognition Peter’s Children ant Honorary Secretary of the Bar Council of their efforts in acting as Peter’s Peter dearly loved his children Sarah, from March 1984 to May 1985, and Honorary junior. William and Jane. We all remember the Secretary from May 1985 to February 1986. wonderful photograph of them that In that connection, he was a member of the Peter’s Support for Justice Peter had in his chambers and the pride Applications Review Committee, the Read- Peter was a wonderful and courageous he expressed in their achievements. It is ers’ Practice Course Committee, and the Bar barrister. There are some things that important that they know the high esteem Executive Committee. He served on the Bar should be said, however, to show his true Peter was held in and the great friend- Company Law Committee in 1986–87. Peter character. Over the last twenty years, ships he forged at the Bar. They should served as Chairman of his List Committee Peter took on more hard cases than pos- know and be proud that their father was (List M) from 1991–1992 and 1994–1994.

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18 News and Views Singing Judge Billed with Monash Professor of Embryonic Stem Cell Research at the County Court

“The race is on. And if we don’t do it the Americans or someone else will. We have the medical science, the know-how and now all we need is the money,” said Alan, the pioneer of human in-vitro fertilisation (IVF) techniques. The County Court generously hosted the evening and the very talented Judge Liz Gaynor, the mystery singing judge, entertained and charmed all present with a brace of Irish ballads — proving the acous- tics of the County Court. Unaccompanied her clear voice filled the hall and left the audience silently in awe of her musical accomplishments. Cure MS currently supports Professor Claude Bernard, Multiple Sclerosis Research Lab who works with Professor Alan Trounson. Professor Bernard is inter- nationally renowned for his research into the underpinnings of MS and the development of new therapies for people with the disease. To donate: 1. Make a cheque payable to Cure MS 2. Send your credit card details by phone or fax Card no: ———————————— expiry date: mm yy Address: The Treasurer, PO Box 5044, The very talented Judge Liz Gaynor, the mystery singing judge. Glenferrie Sth, VIC 3122 Fax: 03.9815 0132 he daily murmur of lawyers and and Stem Cell Laboratories at Monash All donations over $2 are tax deduct- their clients disappeared last night University, told the 180-plus guests that ible and will be receipted by Monash Twhen Waldron Hall was opened he is ready to do the first clinical trial University. to supporters of Cure MS, a passionate using stem cells which will impact on a Cure MS Committee: Sarndi Addison, group of volunteers who raise money for cure for auto-immune diseases like multi- Goldie Batrouney, Belinda Burke, Jenny scientific research into a cure for the auto- ple sclerosis and diabetes. The cost of the Davies, Amanda Derham, Margie Lilley, immune disease multiple sclerosis. Alan trial will be in the order of $15 million and Felicity Sladen, Sandy Rush, Gill Thomas, Trounson, Professor of Stem Cell Sciences the funds need to be raised before the trial Di Diamond Walford, Jill Wells, Jennie and Director of Monash Immunology can proceed. Wilmoth.

19 News and Views Historic Reopening of Banco Court in the Supreme Court

Prue Innes

The historic Banco Court in the Supreme Court was reopened on Tuesday, 15 May, after extensive refurbishment works, taking the court back to its original 1884 appearance.

uided by our heritage archi- tecture consultants, we have “Grenovated the court to restore the design features of the 1880s, while ensuring it is a thoroughly modern and comfortable court,” the Chief Justice, Justice Marilyn Warren, said. “The Banco Court work represents the completion of the first stage of works in the Melbourne Legal Precinct Masterplan, and other major works at the court will follow, including work on other courtrooms and other areas of the court. “The Court congratulates the Government on its commitment to delivering the highest quality court facilities for Victoria,” the Chief Justice said. Using contemporary photographs and design features of Queens Hall at Parliament House as a guide, the paint- work is a pale whitewash that resembles what would have been in the original courtroom, and the 1880s décor has been faithfully recreated. The chandelier is a replica of the chandelier in Queens Hall, and the old crimson carpet has been replaced with navy blue. The woodwork has all been restored, and a new dock for prisoners has been built. The original Bar table has been restored. The court will be considerably more comfortable, with underfloor heating, air conditioning, and cushioned seating. A state-of-the-art audio-visual system has been installed with two large plasma screens, the lighting has been upgraded, and electronically operated doors will be

20 Chief Justice Warren. Attorney-General Rob Hulls.

more easily operated by disabled people as well as enhancing security. Double thickness windows will reduce external noise, and a new sound system has been installed. “Our heritage building is a magnificent court complex, but it must be kept suit- able for the demands of modern litigation. We are confident that these works will be enjoyed by all court users,” the Chief Justice said.

21 News and Views State of the Victorian Judicature Address

Delivered by the Honourable Marilyn Warren AC, Chief Justice of the Supreme Court of Victoria, Banco Court, Tuesday 22 May 2007

INTRODUCTION the file, the written submissions, the as former busy barristers, are skilled his is the first time in the history of witness statements or depositions, at moving things along. They do not the courts of Victoria that the Chief the Law Reports that apply, the appli- receive training on courtroom time and Justice has delivered a state of the cable Act or Acts of Parliament and, motion, but based on experience and T sometimes, Hansard, to understand instinct most judges are pretty good judicature address. It is an event that now occurs, it seems, almost annually, across what was intended when the law was at it, certainly so far as the Supreme Australia and overseas in the common law introduced. Sometimes, such prepara- Court is concerned, and I would expect world. Usually, on those occasions, the tion can be done quickly, one hour, two other courts. Judges do not like to see address focuses on important matters of hours a day. Sometimes days or, in a big public money wasted because parties principle, such as the application of the case, weeks. Barristers and solicitors are unprepared, not ready or technol- rule of law and judicial independence. put in hours, days, even weeks, some- ogy lets us down. When that happens, Invariably, there are occasions when the times months to prepare their clients’ judges, in my experience, will usually addresses focus on providing an overview case. move things along and not stand for any of the state of the judicature in the rel- If you cumulate that time, let us say prevarication, procrastination, obfusca- evant jurisdiction. It is the latter that I will three days’ preparation for a two-party tion or incompetence. However, there particularly focus on this evening, given case, it leads to a two-party prepara- are constraints imposed on judges by that it is the first time such an address has tion time of six days. Generally, by rulings of the High Court and appellate been given in Victoria. comparison, judges try to pull together courts. Ultimately, a judge must see In the address, I will focus on the fol- sufficient time for a day’s preparation. that justice is done. lowing areas: It has been said that the Bench should There are times when cases take First, judge time and the value of that always be a step ahead of the Bar. longer than expected. For example, commodity to the governmental structure In addition to this snapshot of court the Pong Su drug trafficking case of modern society. preparation, there needs to be time for took 135 court days over its original Secondly, the judicial role, including judicial reflection: what is the issue in estimate, the Salt Nightclub case the impact of court governance structures the case? What are the problems faced took 132 court days over its estimate, and public expectation and perception of by either side? Is there something that the Strawhorn police corruption case the role. the parties have overlooked or made a involved, in effect, three trials, a total Thirdly, an overview of Victorian courts mistake on? of 244 court days. Recently, Premier and tribunals. Sometimes a judge will be assisted Building Services v Spotless Group Fourthly, the future for the Victorian by high calibre, very experienced legal & Ors ran for 71 days. judicature, in particular, the role of the representatives. Sometimes the parties Of course, these overruns have a Supreme Court, the changing roles of will only be able to afford a very junior ripple effect across the Court because other jurisdictions in the State, the impact barrister. Sometimes the parties have the Court engine has to keep running, of technology and the role of judicial to represent themselves. This creates a a bit faster and harder, up hill with the leadership in the future of the Victorian pressure for judges who must see that same amount of fuel — judge time. judicature. justice is rendered “without fear, favour The Supreme Court has led the way or affection”. In the Supreme Court we in Victoria in judicial management with now have an Unrepresented Litigants’ the Commercial List and other special- JUDGE TIME Co-ordinator who saw 385 individuals ist lists. The most precious commodity any court in her first year. We are now - work Since 2004, criminal trials have has is judge time. By judge time, I do not ing with the Victorian Bar to develop been more intensively judge man- simply mean the time a judge sits in court. a no cost, volunteer duty barrister aged and that has been accelerated Judge time is made up of many compo- service for the higher courts in since January 2007 with matters nents. Victoria. coming before a judge within 14 days 1. The time spent on court prepara- 2. The next component of judge time of the end of the committal hearing. tion: the reading of the papers of is time in court. Generally judges, Since January 2007 much stricter

22 requirements are made of civil par- 4. Lastly, in the overview of judge We, at this Court, have begun an impor- ties before a trial date is allocated. time, there is what I will call tant process. In summary, first, each party knows “other” time. It is made up of involve- In summary, the survey revealed what the other party’s evidence will be, ment in court management and admin- that all judges work long hours, some secondly, the case will have undergone istration, court committees (both far too long, that judges’ workloads are at least one round of mediation and, internal and external) law reform unsustainable for health reasons and that thirdly, a certified trial estimate from processes and general extra-curricular steps ought be taken to reduce the strain. counsel retained in the case will have work such as speaking to the Bar, the Significantly, the survey disclosed that the been given. Without the evidence, profession, other courts, universities, situation is not simply one of working long mediation or a certified estimate being professional groups and the public hours (many people in modern society on the table, a trial date will not be generally. Judges are very much in have to do that), but it was the danger- given (except in very unusual circum- demand. Included in the “other time” is ous level at which judges are working on stances). judicial education. a sustained basis that was of concern. It has not stopped with trials. Judges recognise that they must This reality is borne out by retirements Equally, there is much more intensive keep up to date with the law, remain of judges before the compulsory age and judicial intervention and management in touch with the community and its often after the minimum service. This of both criminal and civil appeals. expectations and mix with their col- has particularly been the experience with Listing has intensified, particularly leagues from other courts so as to appellate judges. in sentence and accident compensa- share ideas and innovations. Most judi- The Court has set about internal steps tion hearings. A new master has been cial education in the Supreme Court to improve the quality of judicial life and, appointed to manage and direct civil is done in judges’ own time (on leave, importantly, to ease the judicial burden appeals. A new practice direction has at lunchtime or before or after court). by allocating reasonable time to write the been applied to civil appeals essentially Roughly, based on internal surveys, I judgment straight after the case finishes. to strip appeals down to their bare would estimate that most judges spend This is proving possible by the new prac- issues and to identify matters that war- over 20 per cent of their time on the tice directions that demand responsible rant a fast track approach. “other” category. time estimates from parties. The benefit 3. The third component of judge time Before that estimate is leapt upon to the community is that judgments are is the after court process of writ- to suggest that if judges drop the starting to be delivered in a timely way: ing the judgment. Sometimes it is “other” time category of the work for example, in commercial cases within possible to deliver judgment on the there would be a 20 per cent increase six weeks, in the Practice Court either spot. Certainly that is encouraged and in the available judge time, that is immediately, or within a week. One if there is enough preparation time for simply not so. The “other” category is phenomenon is apparent. The Court is a judge, it is more likely. Now for those important and in some aspects, com- shifting responsibility for the conduct of who may not understand, the judgment pulsory. Let me give a few examples: cases more towards the profession rather is the explanation for the outcomes. the Adult Parole Board, the Forensic than the focus being entirely upon the Judges are not allowed to say “you win, Leave Panel, the Council of Legal judge and his or her capacity to conduct you lose” they are required by law to Education, the Council of Judges, the trial or preside over the appeal. One explain their reasons for their deci- the Judicial College of Victoria, the of the worst strains that a judge faces is sion. In a criminal trial a jury is able Victorian Law Reform Commission, the outstanding judgment. We are look- to say “guilty” or “not guilty” without internal management committees, ing at all avenues to ameliorate that explaining why, but for every decision various user and consultative commit- strain, but it is difficult without additional the judge makes before the verdict and tees, extensive advisory committees, judges. Recently, the State Government later, when deciding the sentence, the working parties and steering groups announced funding for two additional judge has to explain how the decision established with government with judges and one additional master for was reached. This requirement, to give respect to court funding and the Supreme Court. There was also an reasons for the decision, is imposed on resources. announcement for two additional judges judges in all trials and appeals, both Judges do not clock on at 9.00 am, for the County Court. The funding is the criminal and civil. The reasons cannot take lunch between 1.00 and 1.30 beginning of the recognition by govern- be written by someone else perhaps pm and then clock off at 5.30 pm. ment of the importance of cases being the way a report or memorandum Unfortunately, judges work very, very heard, managed and decided as quickly as might in government or private enter- long hours. Their work practices are possible. Victoria must be able to match prise. The reasons must be those of not ideal but it is the only way they can up with its interstate and interjurisdic- the judge and no one else. They must get through their work, render justice tional comparators. Victorian citizens be set out logically, find and state the according to law and keep their court should be confident the serious criminal facts, the issues, the law and how and going. trials and appeals will be disposed of by why the judge reaches a particular The work practices of judges pro- prompt, energetic and sharp judges — not conclusion. Deciding the case and vides the context for judge time. In the slow, tired and worn out judges. preparing the reasoned analysis is the last year the Supreme Court conducted Equally, Victorian business and litiga- hardest thing a judge does. It is our an internal occupational health and tors should be able to bring their cases fundamental role. Our judgments are safety survey of its judges. It is com- to Victorian courts to be disposed of in our “product”. They fill the Victorian pleting another on the masters. Such the same way. There should be no need Reports and occupy the judgment survey work is probably the first of its to resort to other jurisdictions save for websites. kind in the world, certainly in Australia. jurisdictional reasons.

23 As a further measure to support and management. However, there will always Court of Appeal has generally had a clear- assist judges, the Supreme Court is devel- be circumstances beyond the control ance rate of about 100 per cent but the oping, for consideration by government, a of the Court: surges in criminal activity, time for finalisation of the civil appeals new status of senior judge whereby judges improved police investigation, technologi- is in the order of 12 months, well above will not simply retire at 70, but subject to cal advances in forensic science, the qual- the six to eight months acceptable to the agreement by the Attorney-General and ity of counsel both for the prosecution legal community and judges. In criminal the discretion of the Chief Justice be able and the defence and the ordering of re- appeals the clearance rate has remained to stay on a part time basis as is now com- trials by the Court of Appeal. Government above 100 per cent resulting in a reduced monplace in North America. increased judge numbers by three during backlog. However, the impact of appeals The judges of the Supreme Court are 2005–2006 but the numbers will need to from long criminal trials already deter- very pleased at the recent State Budget be reviewed and, if necessary, rejustified mined will doubtless have an impact. We announcements and its marking for the by the Court in 2008. I believe, at this are yet to observe that impact. first time in the history of the Court point, those additional judge numbers will Of course, there are always judicial the assessment and analysis of the true be required for the types of reasons I have management techniques available. The numbers of judges needed to meet the canvassed: delays, work volume, timeli- Victorian courts and tribunals have all litigation needs and expectations of the ness and judge health. embraced mediation, both external and Victorian community. court-based. There is mediation now I have spoken of judge time and placed offered by the Court of Appeal. From it in the context of judicial health. Judge top to bottom of the judicial hierarchy time must also be placed in the context There is mediation now in Victoria, mediation is a primary judi- of court delays. Internal research con- offered by the Court cial expectation. Indeed, it started in the ducted by the Court in the last 12 months County Court through Justice Kellam and disclosed that there is general agreement of Appeal. From top to expanded to the Supreme Court through between the Victorian legal profession bottom of the judicial Justice Smith many years ago, I daresay, (barristers and solicitors) and the judges hierarchy in Victoria, as a national leader. of the Supreme Court that acceptable I hope to explore other ADR ini- delay times in the Supreme Court ought mediation is a primary tiatives, including the effective Canadian be: judicial expectation. technique of judicial dispute resolution • Criminal Trials — six to eight months at least on a pilot basis. We are also • Civil Trials — four to six months (with exploring other means of shortening judgment within one to three months) I turn then to our civil trial workload. cases: CHESS time, stripping to bare • Appeals — six to 12 months. Internal research by the Court disclosed a issues and joint expert positions. We have We do not meet expectations across 45 per cent increase in civil matters initi- engaged with interest in the Victorian the board yet, although the increase ated in the five-year period 2002–2006. Law Reform Commission reference on in judge numbers will be invaluable in There was a commensurate 40 per cent civil procedure. The Supreme Court achieving that goal. Indeed the period increase of matters finalised in that period provided a detailed submission identify- 2000–2006 was difficult for the Supreme (achieved, in part, by a clearing out of ing the extensive arrangements already Court and, indeed, other jurisdictions. At “old wood”, redundant files not recorded). implemented by the Supreme Court that one point, criminal lodgements increased However, between 2002–2006 the clear- reflect the announced thinking of the by 50 per cent. This was partly due to the ance rate was consistently below 100 per review. In this regard, in many respects policy implemented by the Court from cent resulting in an increaseed backlog. the courts are ahead of the reformers. February 2004 that the Supreme Court In the two years 2004 and 2005, no civil Public statements are sometimes made to would return to hearing major criminal trial having been allocated a trial date was suggest that there is a lot more that could trials, not only homicide cases. As a marked “not reached”. However, in 2006, be done in courts to speed up court proc- result, the Court heard and will continue there were 14 instances. Cases that are esses. The fact is, most Victorian courts to hear appropriate cases such as major unable to be given a judge on the fixed by varying means have exhausted their drug trafficking, police corruption and ter- date are unacceptable. The cost to the presently available court tools: mediation, rorism matters and, in due course, major parties is substantial and it leads to injus- wider ADR, varying levels of judicial man- and complex corporate matters, sexual tice. The solutions lie in the justification to agement — in effect a docket or quasi- offences and other criminal cases. At the government of the need for greater judge docket system, the application of the same time the policy decision as to non numbers, better pre-trial management “rocket docket” approach of the District homicide cases was implemented, a long now achieved through the civil practice Court of Columbia in the US. There is series of underworld cases came into the directions and expanded availability of not much left. Indeed, before the Woolf Court that increased judges’ workload. court-based alternative dispute resolu- reforms were introduced in England, a For some time, the number of outstand- tion. study was made of the Victorian Supreme ing criminal trials in the Supreme Court I would add one rider — the conse- Court Commercial List and Victorian has stood around 80, it used to be about quences of the Charter of Human Rights measures were adapted for England. 50 and rarely over that number. Currently, and Responsibilities Act 2006. It will What we now have in Victorian courts the figure of 80 is constant. The Court is commence a new jurisdiction for Victorian is, ultimately, a tough “rump” of cases, taking all steps to reduce that number, courts and tribunals, in particular, the (about three per cent of cases started) including the allocation of additional Supreme Court, and we are yet to know that are hard fought, tough to decide judges from civil to crime and early and the impact on courts’ workloads. and take a deal of judge time whether ongoing pre-trial judge intervention and As for appeals, in civil matters the they are trials or appeals. What is more,

24 these cases, from judges’ viewpoint, are such as competent and timely justice for have progressed a long, long way in the relentless. all citizens. In the latter case this prereq- last ten years. However, in a context of Consideration of judge time also uisite can only be delivered if there are the limited commodity of judge time, all includes the changing nature of judge sufficient judges to do the work. judicial appointees ought to be capable of work both at this time and in the near Of course, if government commits quickly sharing the workload competently future. We see a different type of criminal to increased judges the courts must be and responsibly — unless government and civil trial these days (and inevita- accountable to the community. This compensates for diversity by funding bly, different issues arising on appeals). does not mean some crude accounting extra, more experienced appointments Criminal trials have become longer and or auditing method that interferes with to meet the time needed for more diverse more complicated. The English experi- judicial independence. It means at least appointees to be able to reach their full ence in the Jubilee Line case that fell two things: first, courts collecting detailed potential. It is undesirable for the judge away after almost two years and the Blue data as to what they do, how long things time of a competent, experienced judge Arrow case which lasted 13 months dem- take, how many things and the types to be further burdened or distracted by onstrate how challenging complex litiga- of things they do and then making that the training of an intellectually capable tion will be in the future for Victoria. When data publicly available; secondly, it means but inexperienced judge. Perhaps the we observe the federal experience of the courts must demonstrate and engage in a solution lies in the appointment of part- or C7 case, we read that the length of these dialogue with government and the com- full-time retired judges to be on hand to cases was the fault of the parties, their munity about what they do. provide advice, training and counselling to lawyers, the prosecution, the defence, Let me give examples: at my invita- new appointees. indeed, anyone but the judge. Judges tion the highest levels of government are These comments should not be inter- continue to voice frustration at lawyers’ accepting my personal invitation to tour preted as indicating the courts are cur- behaviour. The Victorian Supreme Court the Court and talk to us about our work; rently suffering from the appointment recently completed the commercial trial all members of Parliament are shortly to of judges requiring such assistance. in Spotless after 71 court days (judg- be invited to do the same; earlier in Law However, if diversity rather than experi- ment is reserved). Another commercial Week 2007 judges took members of the ence and immediate capability become case, BHP is due to start in August 2007 public on “talking tours” of the Court. the dominant factor in appointment estimated to last eight months. The Court Much of what I have said might sound considerations, extra judges would be has the Benbrika terrorism trial in hand as if Victorian courts and tribunals are required to maintain the existing work with an estimate of 12 months preceded gloomy places. Not so. All Victorian judi- capacity of the courts. by about five months intensive pre-trial cial officers are proud of their institution However, even the most competent management. There are the two civil mat- and honoured by the privilege given to and experienced judges should be able ters of Gunns and, also the Biota pharma- them to serve the Victorian community. to rely on the counsel before them. In ceutical case. In Biota the parties cannot We are universally committed to achieving cases, advocates owe a duty to the Court give an estimated duration except to say the highest quality of justice for the com- to assist it in doing justice, even if it “a very long time”. Gunns, it is estimated munity we serve. Are there any obvious means going against their clients’ inter- will last more than twelve months. solutions to propose to government? ests. Sometimes, this obligation needs to Ultimately, there is a limit to judges’ 1. Expansion of the jurisdiction of be reinforced. A little while ago, it was capacities. The announcement of the VCAT but with security of tenure for suggested that the Victorian commercial VLRC of the endeavour to shift the bur- all members to ensure judicial inde- Bar (and the reputation of its commercial den, including the ethical responsibility, to pendence. lawyers generally) had declined signifi- the legal profession is welcome. That said, 2. Legislative provision to shift more cantly because of the size of the profes- it will still fall on the judge to ultimately of the litigation burden to the sion, generational change, the reduction enforce the goal. Business interests, gov- lawyers: to give judges expanded of commercial litigation by alternative ernments, treasury officials, the media legislative power to compel expedition dispute resolution measures and, impor- and, most importantly the community, all measures in both civil and criminal tri- tantly, the erosion of the stature of the express frustration sometimes at how long als. Commercial Bar and legal profession, the cases take. Their frustration should not Combined with appropriately increased latter for various reasons. From a judge’s be vented on judges. In our democratic judge numbers these measures would see perspective, the highest quality counsel society we have an adversarial system: Victoria forge ahead in court systems. is important. The Court of Appeal has the case must be proved by the accuser Clearly linked to the timely dispatch repeatedly commented on the problems or the claimant; the case must be decided of court business is the quality of judicial arising where inexperienced prosecutors by an independent party, the judge. The appointments made to the courts and and defence counsel appear in trials. It privilege of that system comes at a cost. In tribunals and the quality of the advocates has also insisted on counsel fulfilling a the Supreme Court we have done almost who run the cases before the courts. supportive role to the Court on appeals. everything we can within our power — as It is essential that those appointed to The Office of Public Prosecutions and things stand the tool-box is exhausted busy trial jurisdictions bring the intellec- Victoria Legal Aid have responded at both and there is a limit to what can be asked tual strength, experience, work capac- trial and appellate levels to the call of the of judges. To maintain and build a modern ity and personal commitment to fit in Court. democratic society there are some basic quickly and share the workload. Much is Twenty years ago senior counsel gen- prerequisites — the tangible essentials said these days about the importance of erally appeared for both sides in major of adequate education, health, transport cultural, gender and social diversity in criminal trials, including homicide cases. and economic infrastructure and, also, courts and tribunals. Of course, it is very Regrettably, that has changed and seems the provision of those intangible elements important and our courts and institutions now to be shifting back. This is partly

25 reflected in the numbers of crown pros- Supreme Court can override everything, South Australia, although there are local ecutors who are senior counsel and, very even what governments do. So, if a citizen variations to the model. The Separate importantly, the preparedness of senior thinks government has done something Executive Model applies in South members of the Victorian Criminal Bar to against or outside the law, that citizen has Australia. The Federal Model applies in accept the sometimes less well paid pros- the right to go to the courts and the courts, the federal courts system. In Victoria, ecution or defence brief because of their generally speaking, have the power to do we have the Executive Model. What are commitment to the administration of jus- something about whatever has happened. the benefits and disadvantages of that tice in this state. It is often insufficiently The courts also play the same role in legal model? That question cannot be answered recognised just how much the Bar and disputes between citizens. The courts exhaustively at this time but I will provide the profession contribute to the system are also the place where the criminal some comment on the Executive Model. for limited or, even sometimes, no reward. law is enforced by the prosecution. The Sometimes there are problems for courts If those barristers were not prepared independence of the judiciary means that where time is taken up persuading Justice, to do so the system would break down. whenever in court every citizen, govern- Treasury and Premier’s Departments as to Equally, the Bar and the profession make ment, institution or corporation is entitled the needs of courts. It may be difficult in a substantial contribution to the court to know that the judge will decide the a competitive environment to persuade system for no payment at all through what case independently, without any party departmental officials why an item is is called the pro bono system. Given the feeling or sensing that the judge is biased important, more important and deserving numbers of unrepresented litigants in the or pressured to decide one way or the of support than something else such as Supreme Court alone, large slabs of judge other. a new police building, hospital or educa- time would be lost without the support of In Victoria, the way judges work, judge tional institution. This means that courts those barristers and lawyers. It is a benefit time is affected by something called court have to spend a lot of time persuading and government reaps cost free because of governance. Across Australia and around educating government departments and lawyers’ commitment to the legal system the world there are three systems gener- justifying their position. So, a disadvan- that the Victorian community expects to ally available. First, there is the executive tage of the Executive Model is the time enjoy. system where the courts fall under a required of courts to participate in that As for the Victorian Commercial Bar government department, which provides system. Another disadvantage is the jock- and profession, the judges of the Supreme funding for judges’ salaries, court staff, eying for position that courts find them- Court think they are pretty good and administration, computers and buildings selves in; having to compete for resources capable of matching it with the best. I and services, even the paper judges write and funding for something so fundamental expect with the widely consultative and on and the pens they write with. The as the “rule of law”. intensive approach now taken to the judges are not employees of the govern- Perhaps the greatest disadvantage of appointment of senior counsel in the State ment department, but everything else to the Executive Model is that it is at odds an even stronger Bar will emerge who will do with judges and courts is fairly much with “judicial independence”. One of the impose higher standards on the legal pro- provided by and under the control of that main participants in litigation in Victorian fession and vice versa. They will also push government department. The government courts is the State Government (through judges that much further to stay one step department, in turn, is under the financial the State of Victoria, individual ministers, ahead of those in front of them in court. control of the Treasury and Premier’s heads of government departments includ- My only suggestion to Victorian barristers departments, which have to be persuaded ing the head of the Department of Justice and lawyers is that they should communi- as to how much funding to give to a court and the Crown). The litigation includes cate more to each other, government, the for its operations, judges and staff, com- challenges to ministerial and administra- community and the media about the good puters, the building environment and all tive decisions where citizens challenge things they do and the human interest the things that make a court work. Before the State, personal injury claims against stories that usually lie behind those who the government department and the government authorities, electoral chal- have been helped. Treasury and Premiers’ departments will lenges and naturally, criminal and sum- approve any funding they need to know mary prosecutions and appeals. Reverting THE JUDICIAL ROLE that the courts are fitting in and perform- back to my brief description of judicial I turn next to the judicial role. Some of ing in accordance with government policy. independence, can Victorian citizens be this topic I have covered in talking about This is a very simple description but basi- satisfied that their judges are truly inde- judge time. I hope you have a better cally that is how the Executive Model of pendent where one day they are meeting knowledge of what we do day in, day out. court governance works. to persuade government officials why more Now, I need to focus on some things the The second system is where the gov- funding is needed and then, the next day, person in the street might regard as high ernment gives a parcel of funding it thinks hearing a case where the government is a sounding. These are called the rule of law is enough directly to a court or a court party? I wish to say that in my experience and the independence of the judiciary. authority that is not part of any govern- of working in Government (which started Lawyers use those terms often but usually ment department. The individual court in 1974) relations between the courts and do not explain them. I will try. The rule or the court authority then decides how the Department of Justice (and its pred- of law means that our society is not just the funding is to be spent. This system is ecessors) has never been better. Both the governed by Parliament and politicians. It called the Separate Executive Model. The courts and the Department of Justice have means that our society is controlled by the third system is called the Federal Model worked hard to achieve a cooperative but law. The law is made by Parliament and, and provides for substantial administra- as independent and respectful arrange- often, by the courts under the Common tive autonomy for federal courts. ment as might be possible. Indeed, the Law system. The law is interpreted, The Executive Model of court govern- Victorian example of the Executive Model applied and enforced by the courts. The ance applies in all Australian states except is among the best of its type. The ques-

26 tion is, can judicial independence be truly Central to public expectation and per- proved effective at overcoming recidivism achieved under this model? ception of the courts is the role of judicial and associated social problems elsewhere. Are there any benefits of this system? education. Victoria is in a very advanta- Problem solving courts, nowadays called Firstly, the courts do not have to be trou- geous position. It has the benefit of the therapeutic justice, doubtlessly will help bled by the minutiae of government struc- Judicial College of Victoria to meet local to redirect some individuals from what tures; it is all provided for them. Secondly, education needs and the National Judicial was previously inevitable journey to the via the departmental structure they have a College of Australia to meet needs that higher courts — a very desirable out- voice within government that can be very could only be met on a national scale. As a come. effective. Thirdly, the community has the result, all judges, magistrates and tribunal Since 1 January 2007 the County Court benefit of a very cost effective system that members have the benefit of orientation has exercised unlimited monetary juris- compares very favourably in economic and update programs, awareness and diction in all civil matters. As yet there terms with the other models. community relevance programs, as well has not been an identifiable shift of civil There has been discussion raised again as theoretical and practical legal training. litigation from the Supreme Court to the recently about court governance models. There is an expectation by the heads of County Court. Patterns of forum of choice At some point it would be desirable to the Victorian courts and tribunals that all will be worked out by practitioners in achieve uniformity, or at least consist- judges, magistrates and tribunal members time. The County Court is the main trial ency, between states so that state courts will actively participate in ongoing judicial court of Victoria and it is appropriate that adequately reflect acceptable independ- education. There is now broad acceptance it exercises unlimited monetary jurisdic- ence and standards alongside those courts that all judicial officers should have at tion. The Court also has the range of judge within other systems. Perhaps it is a topic least five days provided per year for judi- numbers and a built environment that for the Standing Committee of Attorneys- cial education. This time is over and above reflects its busy trial volumes and status. General. judge time and viewed as a minimum. The The only observation to make is that it is The last component of the judicial remaining aspect of judicial education is to generally desirable that the more complex role I will address is public expecta- observe that adequate provision comes at and significant civil cases should be heard tion and perception of the courts. The a cost which has been recognised by gov- in the Trial Division of the Supreme Court importance of the media to the courts ernment. As judicial education expands in to be determined at an authoritative level cannot be overstated. The media provides Victoria, in all likelihood so will its cost. to obviate, where practicable, the need the community with a window into the for a significant matter being determined courtroom. The media now involves the THE VICTORIAN COURTS authoritatively via a court of three judges printed, filmed, electronic, digital and Generally, across the board the Victorian on the Court of Appeal. One fact is evi- blogged forms. The community knows courts are functioning well. Their detailed dent; the criminal 32 and civil workload much more about courts than ever before. position, function and performance is of the County Court, the main trial court This is very good. Indeed, this morning, well explained on the various websites in Victoria will remain constant for the for the first time in Victorian legal his- of the courts including annual reports. foreseeable future. tory an admissions ceremony for new However, it is appropriate to observe Next, I turn to VCAT. Its workload has Australian lawyers in the Banco Court important changes in jurisdictions that grown greatly, now hearing over 90,000 was prepared for a podcast. Generally, have occurred in the last two years and cases per year. It is efficient in terms of the it is in the public interest to know what which will continue into 2008. dispatch of its business and its cost. While courts and tribunals do day in, day out. First, the Magistrates’ Court. Since 1 many of its disputes are small, each one Sometimes the media leads a campaign of January 2006 it has exercised power in is very important to the individual litigant. criticism of courts, and individual judges’ civil matters up to $100,000. In criminal VCAT has proved to be a relief valve for performance. Provided the criticism is matters the court has extensive summary the courts. The court system would have not personalised, pejorative, abusive or jurisdiction including matters that not laboured without its existence. There are sexist then judges will generally accept long ago were indictable offences heard in rights of review on an error of law to the robust criticism as part of the job. Yet, it the County Court or, even still, are tried as Supreme Court from VCAT decisions. should be remembered that judges do not indictable in some interstate jurisdictions. There has been a general increase in answer back and that convention should The right of appeal in criminal matters to numbers of appeals, particularly planning not be disabused by the media. In Victoria the County Court remains. The right of appeals. One particular phenomenon of it has rarely occurred. Sometimes, opinion review on error of law to the Supreme VCAT is its unlimited monetary juris- polls are conducted by the media to test Court also remains. There has been a diction in important areas, such as fair judges’ community standing, performance steady increase in those types of appeals trading and domestic building contracts rating or acceptability. Generally, those to the Supreme Court. — in those areas it has what is known surveys are indicative of very little except The increase of power of the as exclusive jurisdiction. Cases that only how many took the time over breakfast, Magistrates’ Court has raised its impor- a few years ago would have been heard morning tea or lunch to view an item and tance and status in the Victorian courts in the Supreme Court are heard now in then respond. Usually the numbers are system. It has also added to the appellate VCAT. This of itself demonstrates the modest and not scientifically sufficient to work of the Supreme Court. need for security of tenure of tribunal provide an accurate indication of the com- The Magistrates’ Court has also members. munity’s opinion. They convey a view and embraced dramatic innovations with the At this point, I have little more to say no more. Governments and courts should Drug Court, the Koori Court and more about the Supreme Court except that its be circumspect in reacting to them. recently the Neighbourhood Justice work appears to continue to become more Nevertheless, they are often interesting Centre. These problem-solving courts at difficult and complex. This will continue and make interesting reading. the lower end of the court system have as the Court hears more prosecutions by

27 the Commonwealth Director of Public lent facilities and the Supreme Court In the County Court there is a similar Prosecutions and enforcement 33 pro- is undergoing an upgrade to expand brevity in the legislation despite that there ceedings by the Australian Securities and its IT capacity. It also has a world are soon to be 59 (together with five act- Investments Commission. It should usu- leading edge e-litigation practice ing judges) constituting the court. By con- ally be the case that Victorian individuals direction. The Supreme Court even trast, the legislation for the Magistrates’ and corporations are prosecuted when has an e-master. In March 2008 the Court and VCAT is more reflective of appropriate in the superior court of the roll out of the Department of Justice the size and complexity of those institu- state. The only other observation about Integrated Court Management System tions. There are also the related juris- the Supreme Court is that in all likelihood (ICMS) will commence, starting with dictions of the Children’s Court and the over time there will be an expansion of the the Supreme Court. The facility will Coroner’s Court. In Victoria, unlike South appellate function of the Court commen- match the courts with the profession Australia, each court is separate and surate with the expanded powers of the and provide one-stop electronic filing, functions entirely separately from other lower courts and tribunals. What would electronic file management and, most courts (other than on appeals or judicial previously have been heard and decided importantly, enable even better data reviews). It might be that government at first instance before a Supreme Court collection to better explain the court would wish to overview and modernise judge will come before the Supreme Court story. court governing legislation. Such a project exercising an appellate function, rather 2. ADR: Mediation is now accepted as may tie in with any consideration of court than a trial function. part of the court system in Victoria. governance models. So far as the overview of Victorian It saves immeasurable judge time and I raise these matters under the rubric courts is addressed, I emphasise that provides extensive savings to govern- of leadership. When it is thought about, judges, magistrates and tribunal members ment. Without mediation the court generally, court leaders are not trained to are under constant pressure to decide system would have collapsed. Given be leaders. They come to lead significant cases. The court system in Victoria is busy. the success of mediation, the courts institutions and are assumed to know Let us look at the finalisation numbers for should have the confidence to pilot instinctively how to perform. Judicial 2005–2006: other methods of dispute resolution, leadership in modern courts is challeng- • In criminal in particular, in appropriate cases, ing. Recently, the heads of Victorian courts Supreme Court — Trials: 61 (including judicial dispute resolution. Given the (the Chief Judge, the Chief Magistrate pleas 182) impact of technology and IT on courts, and I as Chief Justice) participated in a Supreme Court — Appeals: 426 the challenge lies before us to find the National Judicial College program for all County Court — 450 (including pleas next wave of innovation that will revo- Australian court heads. It included a sen- 2,294) lutionise the courts and tribunals as we ior judge from Canada and a leader of the Magistrates’ Court — 125,432 (includ- know them. corporate sector. The program was inspir- ing 24,705 crimes family violence 3. Leadership: as courts and tribunals ing and innovative. A few weeks ago, with matters) become larger the traditional struc- the support of the Department of Justice, • In civil tures of internal management and lead- the group of five leaders of the Supreme Supreme Court — Trials: 227 (all cases ership become more cumbersome and Court commenced a training program on finalised 5,296) provide a poor fit. If I take the Supreme leadership. It involved the President of Supreme Court — Appeals: 362 Court, its original legislation contem- the Court of Appeal, Justice Maxwell; the County Court — 2,361 (all cases final- plated a council of judges (made up of Principal Judge of the Criminal Division, ised 6,016) four) who were responsible for admin- Justice Teague; the Principal Judge of the Magistrates’ Court — 9,234 istering the Court. The role of the Chief Common Law Division, Justice Smith; and VCAT — 89,475 Justice was not defined and for over the Principal Judge of the Commercial and These figures highlight the points: 150 years was traditionally regarded as Equity Division, Justice Byrne; and myself justice takes time and judge time is a com- the leader of all but one among equals. as Chief Justice. The program involves our modity to be valued and used wisely. Contrast this with other jurisdictions meeting and learning from leaders in gov- where judicial roles, functions and government, the military, private enterprise, THE FUTURE ernance are well defined. In Victoria, the community and other sectors as to I have tried to provide a broad-ranging there have been additions to Supreme how to improve our leadership roles and overview of the courts and tribunals of Court legislation to describe the role translate that improvement into the Court Victoria from a perspective of the judica- of offices such as the President of the to facilitate the ongoing modernisation of ture. I wish to conclude on three topics: appellate division of the Court, the the institution. It is, we believe, the first information technology, alternative dis- Court of Appeal and, also, the Senior program of its kind in any court, at least pute resolution and leadership. Master. The Chief Justice’s function in Victoria. 1. IT: Victorian courts and tribunals remains undefined. The Court will The judiciary of the Victoria is one of have been transformed in technology shortly expand to 37 judges and nine which all Victorian citizens may be proud. uptake in the last three years. It is now masters (who, possibly, in due course I hope these remarks assist discussion in expected that judges, staff and court will become associate judges) — very the future development and improvement users will have basic computer skills. different from the four judges who con- of the state of the Victorian Judicature. Probably, the time is close when IT stituted the Supreme Court in 1852. That is the completion of my remarks. I competence will be a prerequisite for Further, the legislation does not recog- thank you for you attendance. judicial appointment. Most courtrooms nise the modern internal structures of A copy of this address is now available across the State now have computer the Trial Division and the roles of the on the Supreme Court website: www.sup access. The County Court has excel- Principal Judges. remecourt.vic.gov.au.

28 News and Views Bar Dinner Speech

Jeremy Ruskin QC

has changed. I am not going to give you a highly emotional lecture upon a topic close to my heart, namely the rule in Foss v Harbottle, especially now that Graeme Uren has explained what it is. Finally I am not going to say a word about the rise and rise of Justice Tony Pagone — hereinafter referred to as “Phoenix J.” — except to say welcome to the new job; or is it the old job? or is it the new Tony? or is he — as I have often suspected — a covert Italianate Doppelganger? I don’t know, but what I do know is, concerning the next appointment to the Supreme Court, the smart money’s on ... Stuart Morris. Rather I have decided to take my lead tonight from the beginning of a speech given by one of our honoured guests, Justice John Middleton, upon the occasion of his thirtieth wedding anniversary. Middleton J. held a lavish dinner to celebrate this event and he commenced his speech this way: “You all know my wonderful wife” (he paused for a minute or two to remember her name) and continued “but now its time to talk about me”. So now it is time to talk about me (not him). Unfortunately our time is limited. But to do justice to this important topic I have chosen to talk tonight about three marvellous lawyers, no longer with us, whose path I was lucky enough to cross. The first is Neil McPhee QC, whom I met in the following troubled circumstances. In the 1970s my mother, the famous journalist, wrote a column in the Australian Jewish News, in which she belted the living daylights out of anybody whose views she disagreed with, often members of the family and of course judges who gave light sentences. I see some of you here tonight. On this occasion into her focus came Jeremy Ruskin QC. one Frank Knopfelmacher. Knopfelmacher was an academic, an intellectual, whose r Shand, honoured guests, dis- The good news is that I am not going views were slightly right of those of tinguished guests, frenzied true to follow the multifarious advices I have Andrew Bolt, if that is possible. Mbelievers, millionaire shareholders been given in relation to this speech. I am He was Czech, who spoke with a heavy in Slater & Gordon and, of course, my fel- not going to read the full text of my bar- accent out of the side of his mouth. He low underdogs. mitzvah speech, although nothing much famously said on ABC television: “The

29 President, Australian Bar Association Stephen Estcourt QC.

Chairman of the Bar, Michael Shand Justice Elizabeth Curtain, David Curtain QC, David Beach S.C., David Martin, QC. Michael Fleming, Justice Tony Cavanagh, Justice David Byrne and Justice Richard Tracey. only good communist is a dead commu- said “Yes, but she’s your client”. He said to Frank Knopfelmacher and blames me, nist!” “But she was your mother before she was but we are beginning to work it through For some reason he annoyed my my client”; I said “but I had no choice” and with an expensive therapist. mother, and in her column she gave him a that went on for a while. McPhee was a brilliant lawyer with couple of rockets, variously describing him In the end marshalling unusual courage a labyrinthine mind. In another life he as Australia’s most appalling self-hater. I said to McPhee: “Look, Mr McPhee, I’m advised Machiavelli. Here is an example of This was said to be defamatory and a only an articled clerk and I know nothing his tricky behaviour. letter of demand arrived at my mother’s about this defamation stuff but I am ada- In 1992 the Herald Sun published home, when I was doing my articles at mant that my mother should not apologise an editorial about the then Police Galbally & O’Bryan. under any circumstances. Is that clear?” Commissioner, Mr Kel Glare, which he It was necessary therefore to see A sly look came over his face — a look regarded as defamatory and a writ was the famous defamation expert, Mr Neil that I got used to many times in the years McPhee QC. My mother was kept outside that followed — and he said, “Bring her and in I walked. I met a small man with a in.” large frown and a gruff voice. He said — I My mother strode in and before any think a little impolitely — “I have read all introduction she said, “Under no circum- In a carefully understated this crap your mother wrote. Tell her to stances am I going to apologise.” McPhee opening Sher told the jury: apologise.” said “I quite agree with you. I wouldn’t “Why don’t you tell her” I said. “No, apologise myself. But the problem is this: “This is the most serious I said, you tell her,” said McPhee. “No, your son insists that you do and he’s an libel anyone could ever you tell her,” I said and this went on for expert in this area. You must be very publish about any person a while. proud of him.” Twenty-five years later my anywhere in the world.” Then he said, “She’s your mother.” I mother is still furious she ever apologised

30 Ruskin makes a point.

John Richards S.C., Kim Galpin and Michael Ruddle.

issued. Sher QC acted for Glare. In a care- a torrent of tears crashed into the polka incongruence that, if I may use a couple of fully understated opening Sher told the dot. words from a jurisdiction in which I prac- jury: “This is the most serious libel anyone I thought we’d reached the tie- tice, it was reasonable foreseeable that could ever publish about any person any- breaker. they would fall to the floor, proximate to where in the world.” On the morning of the third day the trial Sher, which they did. McPhee told the jury: “It’s just a little Judge, Justice Frank Vincent, who is one Sher swung around, and glared at bit of fair comment — that’s all. And it of our honoured guests, gave a lecture to McPhee. His face was like thunder. He is fair comment that stops the tanks of the readers before court time. In 45 min- looked like a wild man from an Emily totalitarianism from thundering down utes — as you would expect — his Honour Bronte novel. I was sitting between these William Street.” taught the readers the whole of the crimi- two, and I felt like the lawyer in the Steven In a carefully crafted non-leading ques- nal law, liberally interspersed with helpful Spielberg movie “Jurassic Park II” who, tion, Sher asked Glare: “How distraught autobiography. Then the Judge said this: sitting on the toilet, is approached on each were you when you read this completely “I’ve got this libel trial. Two of Australia’s side by a tyrannosaurus and torn apart. I disgraceful article?” Glare gasped, looked greatest barristers are appearing in it. You wondered: was Sher going to kill McPhee at his feet, looked at the jury, looked at can come with me to court and watch how in the 11th Supreme Court? Worse was the judge, stood to attention, clenched his they operate. But one thing I can promise I going to perish in some act of serial teeth and said: “Sorry, your Honour, ... just you: there will be no personal bickering or strangulation? Even worse, was I going to expressing ... emotion.” personal attacks of any kind.” survive and have to do the case myself? McPhee asked our witness, the writer It was five-to-one that morning. The Had I read the brief? I think we all know of the editorial, Piers Ackerman: “How did case was looking bad. McPhee suddenly the answer to that question. you feel when Mr Sher told the jury that started to rustle his papers in a loud way. Consumed with these selfless reflec- you were a malicious journalist?” A large He then placed four arch lever folders, tions, a miracle happened: the Judge said polka dot handkerchief was produced and one upon the other, with such geometric it was lunch time. Sher thundered through

31 the court door leaving some of the hinges in tears; McPhee sauntered off as if he was going to the footy. At 2.15 Sher continued to eviscerate Ackerman. Body parts hit the floor. Then I heard it. Three little noises. Sher swung around again. This time, placing his hand in the traditional Wyatt Earp pose, with the index finger as the barrel, he pointed straight at the head of the Judge and said: “He’s doing it!” “What?” said the Judge with a look of panic. “I said he’s doing it!” said Sher. “That’s what I thought you said,” said the Judge. “Mr Sher, who is doing this thing?” Sher said: “McPhee! McPhee! Mr McPhee! He is the one who’s doing it!” “Okay, okay, Mr Sher, can you tell what he is doing?” Sher replied: “Biro! Biro! He’s clicking his biro. Indeed it’s worse, much worse. He is clicking a series of biros, he Justice Ken Hayne, Justice Michelle Gordon and Justice Bill Gummow. is clicking them seriatim, he is clicking them deliberately, and he is clicking them loudly. This is part of a vast pre-planned forensic tactic!” “Stop!” said the Judge. And then, like the great judges, adopting what I call the placebo tone, the Judge said: “Members of the jury, a matter of law has arisen, and as you know that is my function. Or putting it differently, the lions have got out of their cage and are trying to eat the trainer. I’m going to try and put them back in but in the meantime why don’t you pop into your jury room and I will see if I can sort it out.” And then in what I regard as the greatest judicial understatement of the twentieth century, which deserves its own place in the Guinness Book of Records next to those guys with long fingernails, Vincent J said, “I fear, Mr Sher ... you may have become emotional.” The throng. The Judge then said, “Stand up, Mr McPhee.” The little Scot stood up and looked at his feet, rather in the style of ter of fact, ... I didn’t do anything.” “Yes barristers remembered the wise words a seven-year-old caught in scripture class you did,” said the Judge. “I didn’t see it of Vincent J about role models, and the with a shanghai. In the pocket of his Bar but in your case there is a presumption of next day in the Magistrates’ Courts, from jacket were eight biros. I am sorry to say guilt. You’ve been doing it all your life.” Northcote to Kaniva, the biros were click- five were set in the immediate pre-click Well, it was not a good day for the ing: “They were doing it.” position. “What have you got to say?” said defenders of the fourth estate. The As my good friend Mae West would the Judge. McPhee said: “Well, ... as a mat- defence of fair comment seemed to have have said of McPhee, “When he was good dissolved into the ether, our witness had he was very very good, but when he was been murdered by Sher and our Senior bad he was better.” ..... The Judge then said, Counsel rebuked by the Judge. So it was a pensive McPhee who walked back with I realise I am so young as I look down “Stand up, Mr McPhee.” me at the end of the day. After a little upon you all from this comfortable spot The little Scot stood up while he said: “The Judge is a bit odd isn’t where one of you is going to be lucky and looked at his feet, he?” I said: “They’re all odd.” He said: “No, enough to be next year — look for a but I mean what do you think about this red spot under your plate — that I did rather in the style of a presumption of guilt — that can’t be right not know my next person of interest, seven-year-old caught can it?” I said: “But, Neil, it’s only in your Cairns Villeneuve-Smith as a barrister. He in scripture class with a case.” He smirked and then said: “I guess famously defended an Aboriginal called shanghai. there’s a fair bit in it.” Stuart and was ostracised by the Adelaide But, you know, the readers and young community and came to Melbourne. He

32 gave a terrific speech at a Bar Dinner many years ago when he told the story of his marvellous father Villeneuve-Smith KC who famously went to jail for telling the Judge he was nothing but a posturing self- aggrandizer. Luckily we don’t have judges like that in Victoria ... please don’t point. Villeneuve-Smith was a wonderful common lawyer who famously pole-vaulted his friends into immortality by writing a long epic poem about a case on circuit, which can be read in the Bar Chamber. If you ask Geoffrey Nettle, Justice of Appeal, he will tell you it contains 112 dactylic hexam- eters, which is helpful. The Villain (as we called him) knew how to play the barristers on a break. Here is how he dealt with one victim. “And so I finish my summary of the address of Counsel for the plaintiff, Mr Simon Wilson QC and Paul Elliott QC. Tobin. If I may say so it was most helpful and relevant. I now come to the address tion, accusing it of containing ineluctable in case, the Judge said to me in a voice of Counsel for the defendant, Mr Ruskin. shibboleths. “Quite right,” said the Judge, as I recall it, tinged with calm: “Mr Ruskin Here it’s a bit difficult to know where to “if we knew what they were — but I will — where are we!!?” I said, “I imagine we’re start. I don’t want to do him an injustice allow the objection anyway.” still on page two of the appeal book.” He (he’s about to do the greatest injustice We then came to the hard part of the said: “How on earth did that happen?” I since the slave trade), but if I understood case — causation. Clothing myself in my said: “I can’t imagine, your Honour.” He him at all (he didn’t) he put to you the fol- sensitive new-age voice, which was a kind said: “Well it’s your fault! Why do you lowing astonishing proposition (eyebrows of a hybrid of that Judge whose picture I always complicate things? This is a simple moving rapidly): because that plaintiff is a saw in the paper a couple of weeks ago, case. Look, the Judge saw the plaintiff, the hairdresser she cannot have a sore neck. that dreadlock rapper Justice Michael Judge liked the plaintiff. I read the tran- Do you remember him saying that? He Kirby, and Ertha Kitt — I swooned, or script and I liked the plaintiff. We all liked then ferociously appealed to your com- crooned: “Ms Harris, did you notice a seat the plaintiff ... you lose” — all reduced mon sense. Well you will know what your belt mark on your tummy?” I know what to a concise 90-page judgment with 150 common sense is on the one hand and Mr you’re thinking: only a common lawyer footnotes. Ruskin’s version of it on the other, and could craft such a magnificent question. Did I just hear Justice Tony Cavanough you will ask yourself whether one bore Trapped like a rabbit in the lights, Ms. say: “What’s wrong with that?” Could any remote relationship to the other. This Harris looked at the Judge and said: “I someone make sure he has an early is of course a matter for you (more rapid don’t know what to say.” The Judge said: night? eyebrow movement). Then Mr Ruskin “Don’t worry. I do — and I will. In the ..... said to you many times: She can’t have it meantime just be yourself.” “Oh, thank From the monstrous injustices of Judge both ways, she can’t be a hairdresser and you!” she said and then turned to me and Villeneuve-Smith and the Court of Appeal, have a sore neck. She can’t have it both bellowed “What the bloody hell would you to a forensic rock star, Frank Galbally. ways, she can’t have it both ways. Well know, you little turd!” — which was true, For those of you who didn’t know Frank ....this is just a comment of mine. She can though not entirely responsive as the Galbally (whom we called “Mr Frank”), ...! and she has...! And she did! The plain- Judge was kind enough to say in his rea- he was the pre-eminent practitioner of tiff got record damages, but as McPhee sons for judgment. Amazingly we lost the the Criminal Law in the 1950s, 1960s and used to say “You’ve always got to be in case. But discontent, we strode across the 1970s. He was a tall, fine-looking man the big cases — even if they’re self-gener- road to the Court of Appeal. Now there’s a with a velvet voice. He quoted from the ated.” top spot. It is an ethereal haven of wisdom Bible. He sure knew how to massage those And so I was lucky to be the counsel of and justice, and so tranquil it’s like going vowels. choice in the next case for the TAC again to a yoga class. I was lucky enough to work in his office before the same Judge. It was a difficult On this occasion the Chairman of the for six years or so with such famous peo- case involving Ms Harris who was involved Court was the indomitable Mr Justice ple as Tony Howard, now Judge Howard, in a bad car accident and 15 minutes later Ormiston. And so the appeal went like one of our honoured guests, who in those had a miscarriage. I know what you’re lightning. days rather regarded himself as the think- thinking — coincidence. But the Judge Anyway ... towards the end of the ing woman’s Che Guevera — metrosexual, for some reason had trouble understand- fourth day, when we had discussed every of course, knowing Tony. The paradox of ing this. single case that had ever been decided in Frank Galbally was this. If you were guilty My opponent was the magnificent South Africa upon this elusive topic of you went to Frank Galbally who got you Howard Fox QC, a barrister who spoke causation, frolicked through the ecclesi- off and then you weren’t guilty. Swahili and used big words in English. He astical reports and had a fulsome look at I used to nick off and watch his final constantly interrupted my cross-examina- the Berne Convention on copyright just addresses in murder trials. They typically

33 who tried summary offences. They could be a tad right wing. If any of us mortals told them about the standard of proof, the eyes might glaze over, but when Mr Frank said, “Now, you must be completely satisfied and beyond all reasonable doubt!”, it was like an entirely new concept. And Mr Frank would say: “Andrew, we have a Proudman v Dayman case.” I don’t know if Proudman and Dayman works as well as it did in the 1970s but the way Mr Frank used it, it was authority for the proposition that if you had an honest and reasonable belief in anything at all, you would get off. And it is a true story that when Mr Winton Hayes knocked off a Rolls Royce and replaced the registration number with “WH-007” ... you guessed it, he had an honest and reasonable belief that he was James Bond; and he refused to answer any questions from the prosecution, including his name, on grounds of national security. Winton is still driving today, probably chauffeuring Tony Mokbel around Brighton so he can report in to his favourite Judge, the great E.W. Gillard J. Mr Frank’s greatest case was the Krope murder trial in 1978. Bill Krope had killed his father — in self-defence, with 27 bul- lets, as you would. This trial was vintage Mr Frank. First it was a domestic killing. Second Bill Krope’s mother was charged with conspiracy to murder after she had gone on television saying that the killing was a good idea — I suspect with the blessing of Mr Frank. And most importantly of all, Bill’s sister was the reigning Pre-dinner drinks in the museum. Miss Australia, Gloria Krope. I mean, how many of you have been began like this: Placing his hands in the Registrars at the central desk would stand able to look the trial Judge in the eye and final benediction position, he would say: in line to serve him. The conversation say, “We now call Miss Australia!” And into “They took his broken body from the would typically go like this: “Good morn- the witness box strode the gorgeous Gloria cross, and laid its bleeding form upon his ing, David”; “Andrew, Mr Frank.” “Yes, in riding boots, straight off the cover of mother’s lap. And if you wish to see this of course, Andrew”. “What have you got Vogue, to receive Mr Frank’s contrivedley pitiful scene forever portrayed in marble, I today, Mr Frank?” “Well now ... who have absent-minded question — “Is your full invite you to view the magnificent “Pieta” you got, Andrew?” “We have Magistrate name Miss Australia?” by Michelangelo himself, in Vatican City, Smith.” “No, I don’t think so.” “What about Mr Frank delivered his final address at in the country of Italy.” Mr Jones?” “No, that will not do at all. about 11.30 on a Thursday morning, timed Thus the jury were given a thumbnail What about the Justices?” The Justices of to coincide with the sun coming through sketch of religion and fine arts but more the Peace were three men (in those days) the windows of the 12th court, so as to give importantly would understand that Mr the illusion of a halo above Mr Frank’s wig. Frank’s client (the killer) was at least as This confirmed to the jury that which they worthy as Christ if not a whole lot better. already knew, namely that they were in the And that is how you get a 90 per cent The paradox of Frank presence of a supernatural advocate. acquittal rate in over three hundred mur- Galbally was this. If you Mr Frank’s final address commenced der trials. were guilty you went to this way (again placing his hands in the As a young articled clerk or solici- final benediction position): “2000 years tor, you would follow Mr Frank to the Frank Galbally who got you ago Aristotle said ‘We cannot love those we Melbourne Magistrates’ Court. People off and then you weren’t fear!, ... And if you find my client Bill Krope would swoon and gasp as the great man guilty. guilty of murder, then pack your bags and walked in to register his appearance. get out of Australia!”

34 News and Views

Some of the jury members began to cry and I wondered whether it was the sheer power of the address or the fear of deportation. Bar Dinner Speech I was there when both of the Kropes were acquitted. I saw tears in Mr Frank’s eyes — perhaps he was not supernatural after all. The enthusiastic young articled Justice John Middleton clerk Terry Forrest, now the famous Terry Forrest QC, raced up to him and said: “Congratulations, Mr Frank!” “Thank you Tony!” said Mr Frank. “Terry, Mr Frank.” r Chairman, distinguished guests, Its sole purpose is to institutionalise by a “Of course, Terry. Now listen carefully, ladies and gentlemen. court direction the already existing prac- Terry. Bill Krope, his mother, Gloria, John M On behalf of the honoured and tice of Justice Finkelstein not to accord Walker QC (who acted for Mrs Krope) and esteemed guests I thank you for your natural justice, to decide the case himself I are going to walk down Lonsdale Street invitation to the 2007 Bar Dinner. I am without recourse to the submissions of to St Francis Church to pray and to thank delighted to be here tonight and be intro- counsel, and to otherwise quickly dispose God for what He ... and I have achieved duced by the song “What a Wonderful of the proceedings. The introduction of ... and Terry ... for Christ sake tell the World”. And so it is. the Fast Track List has accomplished press!!” The format of Bar Dinners has changed much for Justice Finkelstein’s anxiety Mr Frank could turn error into triumph over the years culminating in the “razzma- levels now that his approach has been such as when he appeared before Sally tazz” of tonight’s event with photographs formally condoned by the Federal Court Brown, now Justice Brown, one of our and music, but one thing has remained itself by way of a practice direction. honoured guests in her previous incarna- constant — that is the tendency of speak- Personally, I find the intrusion of any tion as the Chief Magistrate. In the course ers to talk about themselves. I have been litigation into my life to be the root of all of his emotional plea, it was pointed out allocated approximately 10 minutes to stress. I try in all legitimate ways to avoid to Mr Frank that he had addressed Her speak. I was given free rein as to what I it. Going to court otherwise interrupts a Worship — on no less than 19 occasions should talk about so in my allocated time perfect day. I try to focus upon “trees of — by the appellation — “Sir!”, when as Her I am going to speak to you about myself. green, red roses too, skies of blue, and Worship pointed out, she was in fact and Ten minutes is hardly enough time, but clouds of white”. It is difficult to do this without doubt, one of those other people, I will do my best, and give edited high- in the courtroom although the design of called a woman. Mr Frank grasped the sen- lights. I am quite upfront about the con- the Federal Court allows me to gaze (in sitive gender issue in both hands, looked tent of my speech. Unlike Ruskin, I will thought) to the skies of blue and clouds Her Worship firmly in the eye and said not pretend to talk about Frank Galbally, of white. As a judge, going to court not profoundly: “In this matter, Your Worship Neil McPhee and others, but in reality tell only means having to hear the case, which is completely correct!” There followed an you all about the important part I played in itself involves listening, mastering the avalanche of apologies of such variation, in their lives. issues, controlling the trial process, but intensity and duration that Sally soon I thought some of you might be inter- one then needs to either decide on the realised that if she wished to leave the ested in what it is like to be a judge in the spot or reserve one’s judgment. We are building alive and by midnight, it would be wonderful world of the Federal Court told by Justice Heydon in a speech pre- necessary to give Mr Frank’s ghastly and of Australia, if only out of curiosity. For sented in Darwin in August 2006 that if entirely undeserving burglar a bond. And those of you who do not keep a diarised possible it is desirable to deliver judg- so the greatest advocate in the Western note of such things, I was appointed on ments ex tempore. This adds the extra World left the Melbourne Magistrates’ 31 July 2006. This coincided with the burden of having to know something Court triumphant — as usual. beginning of a concern in all courts with about the case before your associate ..... occupational health and safety issues and writes the judgment. As I look back on my own bewildering the management of stress. We all have dif- Then there is the stress of account- career, festooned as it has been with ferent ways of dealing with these issues. ability. This arises whether one actually forensic catastrophe — of the type that Mr In dealing with stress, it is important to hears a case or not. Michael Wheelahan Shand was kind enough to remind you of ascertain for oneself the cause of stress, S.C. has taken it upon himself to keep a in his introduction — I think often of these so to the extent possible, one can avoid score of the number of judgments handed brilliant lawyers, Neil McPhee, Cairns situations which give rise to unnecessary down by those three judges appointed to Villeneuve-Smith and Frank Galbally. To feelings of anxiety. the Federal Court in the middle of last the extent that I have succeeded in this My good friend Justice Finkelstein has year, namely Justices Jessup, Tracey and great racket in which all of us here tonight dealt with stress by being instrumental Middleton. It is like the stats in football. variously engage, it is because they have in the pilot of the Fast Track List which The basis of the accountability is that inspired me and made me laugh. To the has been introduced into the Victorian each judgment placed upon the internet extent that I have failed, fairness demands Registry of the Federal Court. I liked the whether it be as a single judge or as a that I blame them entirely. earlier name, the “Rocket Docket”, and member of the Full Court is given one As the Talmud says: “Their memory is the reference to me as one helping out point, and if you are appealed success- a blessing.” with the list as “Johnny Rocket”. I should fully that point is deducted. If the High Thank you all for listening. Good night, point out that this List has not been intro- Court of Australia positively goes out of good luck and don’t click your biros! duced to help practitioners or litigants. its way to be critical of your judgment,

35 Internet are not counted by Wheelahan. I am involved in many judicial activities outside the field of judgment writing. No points are allocated in respect of such judicial activities, no matter how time- consuming or important. I only mention these matters because they explain the fact that, by now the more astute of you would have guessed, I am coming third. In fact, although Wheelehan hasn’t investigated this aspect, Justice Gordon only appointed in the last month or so, is probably well ahead in the judgment count. Apart from accountability, there is also the stress associated with the pos- sibility of criticism and the pointing out of a judge’s shortcomings in the public arena. It is best to avoid getting involved in what the press may characterise as “landmark” decisions. If the journalist agrees with a decision, he or she refers to you politely as Justice John Middleton; if he or she doesn’t agree with you, it’s either just John Middleton or in one case recently Middleton. Judges, of course, have never been keen to expose or admit their shortcomings. Prior to the opening of the Royal Courts of Justice in England in 1882 by Queen Victoria, Lord Chancellor Selborne called a meeting of the judges at which a draft of the address to the Queen was considered. It contained the phrase “Your Majesty’s Justice John Middleton. judges are deeply sensible of their own many shortcomings”, whereat Master of the Rolls Jessel strongly objected saying an extra point is deducted. If the High a little bit more tactful than to say sim- “I am not conscious of ‘many shortcom- Court of Australia goes further, and in ply “I agree”. When Lord Justice Morton ings’ and if I were I should not be fit to sit a unanimous judgment, says that your having expressed his entire agreement on the bench”. After some wrangling as conclusions “were arrived at without with a judgment of the Masters of the to the terms of the address Lord Justice notice to the parties, were unsupported Rolls added “If I delivered a judgment, Bowen suggested a compromise: “instead by authority and flew in the face of I should only be repeating in less felici- of saying that we are “deeply sensible of seriously considered dicta uttered by a tous language what has already been said our many shortcomings” why not say that majority of this Court” as the High Court by Lord Greene MR”, judicial courtesy we are “deeply sensible of the many short- stated in Farah Constructions Pty Ltd & plainly indicates that the two worded comings of each other?”. So far as public Ors v Say-Dee Pty Ltd, handed down on judgment of Lord Justice Tucker “I agree” criticism is concerned, perhaps I should 24 May 2007 setting aside orders of the was intended to follow the judgment be happy that the press have only had a Court of Appeal of New South Wales, then of Master of the Rolls Lord Greene and few occasions to comment upon or criti- all accumulated points are deducted and not Lord Justice Morton. I only mention cise my published judgments. Of course, you start from scratch. these examples to indicate that even in a on the Wheelahan count, there are so few On the plus side, a mere concurrence concurring judgment, apart from putting of them. One recalls the incident of the in a judgment of another member of the aside the rigorous intellectual endeavor Birmingham newspaper which contained Full Court is given a point. Whilst one in determining whether or not one a criticism in the following terms of may make jokes about the habitually should concur, care must be taken in the Justice Darling who was holding the local concurring judge, even the shortest of expression of the concurring judgment assizes in England “… If anyone can imag- concurrences has its potential difficul- itself. ine Little Tich upholding his dignity upon ties. Thus when Lord Justice Stirling The length, quality and extent of intel- a point of honour in a public house, he has expressed his concurrence with a judg- lectual endeavor in my judgments has not a very fair conception of what Mr Justice ment of the Master of Rolls and said “and I influenced the score. I do not place all Darling looked like in ruling the Press do not think I can usefully add anything”, my judgments on the Internet, as some against the printing of indecent evidence. the third member of the Court Lord others do, in an endeavor to improve His diminutive Lordship positively glowed Justice Cozens-Hardy might have been the stats. Judgments not placed on the with judicial self-consciousness. No news-

36 paper can exist except upon its merits, a certainly not the cellar list. Long gone are the Shorter Oxford English Dictionary condition from which the Bench, happily the days when I actually was mentioned gives three senses to the word “luminary”: for Mr Justice Darling, is exempt. There in the press as a favoured patron of the one, a natural light-giving body; two, an is not a journalist in Birmingham who Flower Drum Restaurant. A friend of artificial light; three, a source of intellec- has anything to learn from the imprudent mine at the Bar, Tim Walker, obviously tual, moral, or spiritual light; a person of little man in horsehair, a microcosm of with too much time on his hands and still “light and leading”. In the third extended conceit and empty headedness. One is not over his days as a journalist, sent a sense of the word, Chambers Concise almost sorry that the Lord Chancellor letter in September 1997 to Simon Mann, 20th Century Dictionary specifies the had not another relative to provide for on then the business editor of The Age connotation of “one who illustrates any the day that he selected a new judge from newspaper, concerning an article in the subject or instructs mankind”. among the larrikins of the law. One of Epicure section about my patronage of Excluding for present purposes, as I think Justice Darling’s biographers states that the Flower Drum. The letter was never we may, the proposition that Mr Middleton “an eccentric left him much money. That published because of a restraining order, emits either natural or artificial light, one is misguided testator spoiled a successful but as nearly 10 years has elapsed since it left to grapple with the notion that Mr Mid- bus conductor”. was written, I now feel more comfortable dleton is a person who has by some means Other than avoiding litigation and writ- in publishing it myself. enlightened mankind. I will not waste your ing judgments, and thus public criticism time by a reasoned refutation of this latter by the press, my anxiety level is reduced Dear Sir, proposition, the absurdity of which needs by belonging to a gym and employing at At page four of today’s Epicure section of only to be stated to be realised. great expense a personal trainer. But I your newspaper, reference is made to one Mr Middleton will no doubt seek to draw am not sure it is working to avoid stress John Middleton QC as a “legal luminary”. some comfort from the fourth sense of the altogether. The personal trainer is in a No exception could be taken to the context word given by the Macquarie Dictionary, position to hurt me both physically and in which the name of Mr Middleton QC viz, “a famous person, celebrity”. psychologically. The physical part being appears, it being entirely appropriate that Accepting this fourth sense of the word the fact that exercise hurts; the psycho- he is referred to amongst other persons for the sake of argument, it may be seen logical part is that no matter how much whose public identity is associated with that we return full circle to the reason why the client exercises he can never look as restaurants, but unlike those other per- Mr Middleton’s name was used in the first good as the personal trainer, so there is sons it should be noted that the celebrity place: i.e., a person famous for his lunch- a sort of hopelessness built into the sys- status of Mr Middleton QC is owed entirely ing exploits at Melbourne’s more expensive tem. Lots of jobs allow one to hurt people to his patronage of restaurants and not restaurants. To conclude, I suggest any physically — boxers, police, dentists otherwise. future reference to Mr Middleton QC as a come to mind — but only personal train- Moreover, I question the use of the “luminary” have substituted for the super- ers get to make people feel bad emotion- expression “legal luminary”. My edition of lative “legal” with “lunching”. ally too. I overheard one personal trainer, pointing to an exercise machine, saying to his customer “see the little picture of the guy on the side of the machine, sit down and do what he is doing until you look like him”. Then I heard David Curtain QC protest that the guy in the picture was a John Larkins skinless guy with no genitalia, to which the personal trainer smiled and said “no pain, no gain”. (I was just joking when I furniture referred to Curtain). The other main way to relieve stress on the occasions when it is unavoidable is to have lunch with some friends. My three individually crafted adult children, although still at home, do not respond to my coming home and Desks, tables (conference, dining, hugging them, as is the preferred way of relieving stress found by one member coffee, side and hall). at the Bar, namely Fiona McLeod S.C. Folder stands for briefs and other items (if one believes the press). But even in lunch as a member of the bench one does in timber for chambers and home. not avoid all stress. I find that I am not as welcomed to the Flower Drum restaurant as I once was and now actually need Workshop: to make a booking in advance. My wife 2 Alfred Street, (Judith) and I now have a daily budget North Fitzroy 3068 for entertainment and dining which I must ensure I do not go beyond. My eye Phone/Fax: 9486 4341 now goes only to the portion of the wine Email: [email protected] list which describes the local wine, and

37 The dinner scene.

Well my time has expired. I thank that I am overcompensated. If I am over- fabricated and is completely untrue. I Jeremy Ruskin for his great contribution compensated, I am not overcompensated hope, however, I have entertained. At tonight. He is an excellent advocate and a enough. I am still looking at ways to make the end of a long and hard fought case great contributor to the Bar. We belong to household or other budget cutbacks, in before Sir Edward Woodward involving a great institution, and it is at times like view of my current revenue shortfall. the Toyota company, after the completion this that we can all celebrate together as Judith and I are currently looking at lay- of all evidence and submissions, I stood members of the Bar. Even Ross Gillies QC ing off our dependants (i.e. our kids) in up and stated “Oh, what a feeling!”, and has come tonight, his first appearance at a professional, stress-free manner. This jumped in the air. Tonight after some 10 a Bar Dinner in 40 years. Ruskin thinks he should enable an increase in the daily months on the Bench and avoiding stress, came to hear him speak, when I know he budget for personal entertainment and I leave you with: “Yes I think to myself … came to hear my reply. living. What a wonderful world!”. Some of you may conclude by this 10 This speech has had absolutely no or so minute insight into my judicial life worthwhile content. Most of it has been

38 News and Views Bar Indigenous Lawyers Meeting Colin Golvan S.C. The Indigenous Lawyers Committee of the Bar has launched its Indigenous Barristers’ Fund at a function in May.

rofessor Mick Dodson, a member of the Bar (and currently head Pof Indigenous Legal Studies at the Australian National University), who was in active practice at the Bar in the 1980s, formally launched the Fund, saying that the existence of a Fund to assist Indigenous Barristers “in my time” would have made a big difference in promoting the Bar as a serious career option for Indigenous law graduates. Professor Dodson acknowledged the commitment of the Bar in taking serious Robin Brett QC, Mark Moshinsky, Hans Bokelund, Vinod Nath, Chief Justice steps to enable Indigenous law graduates Diana Bryant (F.C.) and Jack Fajgenbaun QC. to overcome practical financial hurdles in addressing the prospect of professional careers at the Bar, and described his “pride” in being a member of a Bar which was adopting initiatives such as the setting up of the Fund to help overcome the absence of Indigenous representation amongst its members. Abbie Burchill, Treasurer of the Indigenous Law Students and Lawyers Association of Victoria (known as Tarwirri), also spoke at the function. Michael Dodson. Colin Golvan S.C. Abbie is a senior solicitor with the Commonwealth DPP and spoke of the risters, supplementing the initial support by the Bar and Tarwirri (co-ordinated difficulty faced in a particular instance of the Victoria Law Foundation and the by Committee members Paul Hayes and of getting a law firm to accept Indigenous Tallis Foundation. Members of the Bar Daniel Star), with the second round of the law students in its clerkship program. are encouraged to make donations to the program being conducted in July. The function was very well supported Fund (details are available from Denise The result of the various activities of by members of the Bar, including the judi- Bennett at the Bar Office). the Committee is being realised with the ciary (with a number of Federal, Supreme The Committee has continued its long- Bar welcoming its second Indigenous and County Court judges and magistrates established mentoring program, and cur- barrister (after a long gap since Mick in attendance, as well as Justice Ken rently most (of about 20 Indigenous law Dodson’s time at the Bar), with Hans Hayne of the High Court and Chief Justice students studying at Melbourne universi- Bokelund signing the Bar Roll in May. A Diana Bryant of the Family Court), and a ties) are being mentored by barristers. number of Indigenous lawyers have indi- number of Indigenous law students. The The mentoring program has been invalu- cated a strong interest to the Committee Committee has made a point of inviting able in establishing long-term contacts in coming to the Bar, with there being two Indigenous law students to an annual between Indigenous law students and further Indigenous applicants for up-com- social function at the Bar, and the function barristers and has created a considering Readers’ Courses. As a further aid to itself has been very helpful in establishing able amount of goodwill between the Indigenous lawyers coming to the Bar, the contacts between the students, barristers students and barristers over a period of Bar has guaranteed at least one place in and members of the judiciary. years. each Readers’ Course for an Indigenous Following the launch, the Fund has The Committee has also established a applicant and has waived the usual fees received donations from a number of bar- clerkship program, supported financially for undertaking the Course.

39 News and Views The Victorian Bar – Justice Kenneth Hayne Scholarship The Victorian Bar Legal Education Trust

he Bar Council has decided to arship will be awarded to a student whose at various universities offering legal edu- support the establishment of the financial position and sound academic cation to be named in honour of other past TVictorian Bar – Justice Kenneth performance warrants assistance with a or present members of the Bar who have Hayne Scholarship at the Melbourne Law scholarship. contributed strongly to the Bar as an insti- School of the University of Melbourne. The Bar Council therefore seeks your tution and to the development of the law. It has also decided, as a separate initia- support for the Victorian Bar – Justice The award of such a scholarship will tive, to establish in the new financial year Kenneth Hayne Scholarship by way of a provide an opportunity for the Bar to a charitable trust to further legal educa- donation. inform students at the various university tion at Victorian law schools. To comply with University require- law faculties, and the wider public, about The Bar Council invites your immedi- ments and the conditions for tax the Bar, its roles and responsibilities. The ate financial support for the Victorian Bar deductibility of the contributions, Trust will also enhance the Bar’s standing – Justice Kenneth Hayne Scholarship. your cheque or that of your clerk on as a public-spirited professional collegiate Justice Hayne’s contribution to our Bar your behalf should be made payable institution. Several of the major law firms and to the legal community has been enor- to the University of Melbourne to be currently provide scholarships to law stu- mous. This year marks the tenth anniver- forwarded to the Executive Officer of dents and endow academic Chairs. These sary of his appointment to the High Court. the Bar, 5th floor ODCE under cover philanthropic gestures not only assist The Bar Council has therefore decided to of the accompanying pro forma let- students but also help reinforce the ties support the establishment of this scholar- ter addressed to the University of between the profession, academia and ship and to hold a dinner in the Essoign on Melbourne. students. Thursday 13 September 2007 in honour of Members will be given further details Justice Hayne. The proposed charitable of the Trust and encouraged to make Because of His Honour’s links with educational Trust donations once it is established. The Bar the University of Melbourne it has been The Bar Council has resolved to establish Council hopes that the same generosity decided that this first scholarship should a charitable trust to further legal educa- displayed with respect to the Barristers’ be established at the Melbourne Law tion through the establishment of schol- Benevolent Association will ensure that School. arships, prizes and by other means. It is the proposed Trust will fulfil its objec- The Dean of the Melbourne Law planned that the Trust will be established tives. School, Professor Michael Crommelin, has in the next financial year with deductible Should you have any queries relating expressed delight at this initiative. gift recipient status. to this proposal please do not hesitate The precise definition of the criteria The idea for establishing the Trust to contact either myself or the Honorary governing the annual grant of the scholar- sprang from the proposal for the Victorian Treasurer. ship by the University of Melbourne will Bar – Justice Kenneth Hayne Scholarship. Michael W. Shand, Chairman, be settled with the University but it is It is anticipated that in future years Victorian Bar Council intended that in general terms the schol- scholarships or prizes will be established

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40 News and Views

The Victorian Bar — Justice Kenneth Hayne Scholarship Verbatim

he Victorian Bar Council encour- please complete the form below to Tages all members of the Bar to con- enable your donation to the University tribute to the fund being collected for of Melbourne to achieve status as a tax Lack of Knowledge the purpose of establishing this schol- deductible donation. 26 April 2007 arship at the Melbourne Law School of Your donation and the signed dona- Coram: Judge Wodak the University of Melbourne. tion form should be returned to the Kehoe v Coles Myer Limited Many silks and members of the Executive Officer of the Victorian Bar, David Purcell, counsel for the Plaintiff on judiciary have already generously 5th floor ODCE in good time before the hearing of a consent application to provided donations of $1,000. The 30 June. A receipt will be issued adjourn the proceeding. amount of any donation is of course to you directly by the University of in your discretion and will be kept Melbourne. Counsel: Your Honour, the parties have confidential unless you indicate- oth agreed the case be adjourned. erwise. Michael W. Shand, His Honour: What date did you have in If you wish to make a donation Chairman, mind? towards the Victorian Bar – Justice Victorian Bar Council Counsel: About Oaks Day. Kenneth Hayne Scholarship fund, 8 June 2007 His Honour: Could you please put that in English, 1 don’t speak Racing. Counsel: About 7 November 2007. His Honour: That’s two days after Guy The Dean Fawkes Day, isn’t it? Melbourne Law School University of Melbourne, Victoria 3010 Counsel: I don’t know, I’m not a pyro- Dear Professor Crommelin, technician. Donation: Scholarship Fund I enclose my cheque for $———— [I have authorized my clerk to forward you Looking for Furphys $————] as an unconditional donation to the University of Melbourne. In making this gift to the University I express my wish that it be applied County Court to the establishment of an annual scholarship to be styled The Victorian Bar – Justice Kenneth Hayne Scholarship. I understand that the giving of any 17 April 2007 such scholarship will be at the discretion of the Dean, but that preference McCabe v Brotherhood of St Laurence may be given to a student whose financial position and sound academic per- & Anor formance warrants assistance with a scholarship. G.E. Chancellor for Plaintiff and B.Y. Knoester for Defendant. Yours faithfully And prior to that, can you remember any of the sort of events that may have contributed to a panic attack? Things like people — we have a very secure property and a man climbed over our gate and actually came into the house yard and I looked up and there was a

To: Clerk —————————————— strange man standing in the yard and I slammed the door and got very upset. I authorize you to pay $———— as an unconditional donation to the University When you say you have a reasonably of Melbourne. secure property, what is it that secures In making this gift to the University I express my wish that it be applied the property? to the establishment of an annual scholarship to be styled The Victorian Bar We have high and low electric fence and – Justice Kenneth Hayne Scholarship. I understand that the giving of any we have a big lock on the gate. such scholarship will be at the discretion of the Dean, but that preference His Honour: As a matter of curiosity, may be given to a student whose financial position and sound academic per- what did he want? formance warrants assistance with a scholarship. He wanted to buy an old furphy that we (Please sign and print name) had — a furphy’s a big water. I know what a furphy is? Yes, well it was … We’ve got a lot of them here. Well, this one was a rusty old one that was sitting in our property. Those, too.

41 News and Views The Third Women Lawyers’ Achievement Awards

On 8 May 2007 in the Queens Hall of Parliament House Victoria, 200 solicitors, barristers and judges attended the third Victorian Women Lawyers/Women Barristers Association Women Lawyer Achievement Awards, sponsored by Greens List and Brooklyn Legal. The event was attended by the Attorney-General, the Honourable Rob Hulls, the President of the Law Institute of Victoria, Geoff Provis, and the Chairman of the Victorian Bar, Michael Shand QC.

he awards are biennial. The first awards were held in 2003 where the guest achieved professional excellence in her speaker was the now Chief Justice of the Supreme Court of Victoria, Justice field and have influenced other women to TMarilyn Warren. In 2005 the guest speaker was the Solicitor-General of Victoria, pursue legal careers or opened doors for Pamela Tate S.C., and for these Awards, the guest speaker was the Chief Justice of the women lawyers in a variety of job settings Family Court of Australia, Justice Diana Bryant. that historically were closed to them or advanced opportunities for women within Simone Jacobson, the current a practice area or segment of the profes- convenor of the WBA welcomed sion. the guests and said: Therefore the awards recognise professional excellence but much more. The ince the last dinner in 2005, two judges were impressed by the extraordi- Simportant publications of research nary depth of experience and the accom- have been released — the Bendable and plishment of each of the nominees. Many Expendable Report by VWL in 2006, and have achieved success whilst juggling the 2006 national AWL survey on gender other significant commitments to family appearances. Bendable and Expendable and community. has shown there to be barriers to the Each of the award winners has made career advancement of women to senior a contribution to the advancement of partnership level, and the need for flex- women generally and women in the pro- ible work practices to overcome these fession over many years. By their example barriers. The 2006 national AWL survey and by their tireless advocacy for women has shown that women do not appear generally, they show us what can be as advocates in superior Courts in equal Simone Jacobsen welcomes the achieved with passion and commitment. numbers to men. One of the startling assembled guests. In addition to initiatives by the pro- statistics for the Federal Court was fession, we all need inspiration — to be that only 5.8 per cent of appearances profession as well as the Australian com- inspired by leaders of the profession who by senior counsel were by women, and munity.” have overcome the impediments described the average length of hearing by male Reference was made to the exhibition in the Bendable and Expendable report, senior counsel was 119.7 hours whereas about women barristers in Victoria being and the 2006 gender appearance survey. it was 2.7 hours for female senior coun- displayed over law week in May in the As leaders of the profession, they sel. Supreme Court library. The exhibit then create more leaders. Progress occurs Caroline Kirton, then President of moved for some weeks into the foyer of when courageous, skillful leaders seize AWL, said of the survey statistics: “Women Owen Dixon Chambers East. the opportunity to change things for the advocates are not being regularly briefed The judges of the 2007 Awards were better. in more complex and senior matters Her Honour Judge Felicity Hampel, Fiona and are thereby being denied the same McLeod S.C. and Dr Vivian Waller. The Simone Jacobson then introduced the opportunities for advancement afforded judges were the three winners of awards Attorney-General, the Honourable Rob to male advocates. This is a matter which in 2005. Hulls MP, Attorney General for the State should be of serious concern to the legal The individual nominated must have of Victoria.

42 The Attorney-General, the because they don’t wish to desert the rela- then, does appear to be influencing cul- Honourable Ron Hulls said: tively small numbers at the Bar, because tural change. they juggle myriad considerations when Things will not transform completely, believe a quiet revolution has begun in contemplating their career. however, until wider systemic change IVictoria’s legal system: a revolution, or Overcoming this impediment is a com- occurs. First, we need a broader cultural perhaps evolution, in the way that women plex task. It requires change in the ranks shift about the way we work as a society. are represented and participate in the law. of the judiciary and senior positions in the Lawyers are some of the worst offend- This is due in no small part, of course, to law to offer more support and diversity ers in this regard. We have, perhaps more generations of early trailblazers — women to women, who are often appointed at than any others, built professions around like Joan Rosanove who were prepared to an earlier stage in their career. It also long hours, competition and running the beat a path, often alone, through the jun- gauntlet, demanding women fit into these gles of convention and misogyny. parameters or fall by the wayside. For too It is also, of course, due to the genera- long we assumed that “equality” meant tions of women who paved that path after women proving that they could work in them. One only has to take a look around the same way as men — the majority of to see the breadth and depth of talent and whom who have long had the luxury of time that women have offered the law and support at home. For too long we hoped the confidence they inspired in its users that things would improve as more women as a result. entered the profession. Gradually, timidly, inch by inch, legal Instead, however, the victory lies in culture is changing — emerging from professional life evolving — in changing the primordial ooze of exclusivity that the way that all of us work so that nei- held it captive for so long. Of course, this ther the women who continue to assume change was never going to be the stuff of responsibility for community and family great velocity. Centuries of privilege were life nor the men who should do so as never going to be undone in only decades. well feel constrained to say “I have to” However, we are seeing progress and it is care for my kids/partner/elderly parent/ my humble hope that, over the last seven Attorney-General Rob Hulls presents community but feel free to say “I choose” years, the Bracks Government has con- Alexandra Richards QC with her to structure my life this way. tributed to this progress. award. Further, we must come to an under- I feel both privileged and proud that 50 standing as a wider community that the per cent of my appointments to Victoria’s requires the creation and retention of a pursuit and recognition of more women in benches have been women. I have been critical mass — at the Bar, on the Bench, the law does not just benefit the women determined to appoint from the widest in the private, corporate and public sec- concerned, or those who aspire to follow assembly of candidates — a collection tors of the profession — and it is my hope, them. I want to be Chief Law Officer of a that represents the best and brightest again, that the state has contributed to system that benefits from all the -exper that the legal profession has to offer. This some positive change in this respect. tise, energy and experience available to it, is what “according to merit” means and it The Government’s Legal Services Panel a system that better represents those that is precisely because we should appoint on has, for some years now, required equal it purports to assist. the basis of merit, rather than homogene- opportunity work and briefing practices Perhaps most importantly, however, is ity or the old school tie, that we throw the of its members. I have to say, initially the the transformation of public and legal life doors open. figures coming back to us painted a stark so that, by participating, by leading, by Nevertheless, I still encounter throw- picture of the true inequity in the profes- seeing their diversity reflected in power backs to the Jurassic era when consulting sion. structures, women have confidence in over these appointments. Attitudes still Recently, however, the figures are their capacity to continue to drive reform, lurk in some of the less fragrant corners beginning to improve and I’m pleased to stem the flow of benefit to a privileged of the profession that a woman who has to report that, while in 2003/04, 42 per few and open it up to all. “only been at the Bar for 15 years” is a rel- cent of briefs from Panel firms went to This, then, is the ultimate obligation of ative infant, while a woman who drives a women, in 2005/06 it had risen to 52 per every person in this room. For all our con- sports car may apparently be too unsta- cent. Similarly, while in 2003/04 only 21 cerns about the slow pace of change in the ble! per cent of the fees being paid from Panel legal profession, it remains an incredibly These relics are an infuriating diver- firms went to women practitioners, in privileged vocation. With privilege, how- sion, but not a barrier, particularly as the 2005/06 it rose to 32 per cent. ever, comes responsibility — a responsi- number of those who express these views With women at only 20 per cent of bility to use the law to better the lives of is receding as rapidly as their peddlers’ the Victorian Bar membership, women all women, all Victorians. hairlines — either that or they have simply barristers are in fact appearing in all juris- We must remember that it was not learned to keep this trash to themselves! dictions in greater percentages than their long ago that a partner in a major law What is a genuine impediment, how- representation at the Bar. Women were firm earned notoriety for allegedly warn- ever, is the sincerely felt reluctance of briefed to appear in the Supreme Court in ing Articles applicants who had studied many women to accept appointment 28 per cent of matters and they invoiced “feminist legal theory” they would be because they themselves feel they have 24 per cent of the fees, better than the “subject to close scrutiny” for fear that more to prove; because they know national average of 19.2 per cent. The their interest in a “cause” would render that they will be under closer scrutiny; requirement to report on briefing choices, them incapable of objectivity. Strangely,

43 though, for hundreds of years, men have four in 2002. There are now seven. The ing 25 per cent. In the federal appellate valiantly toiled in the cause of their own percentage has gone from 11 per cent to division, all of the women judges in the self-interest without, apparently, suffer- 20.5 per cent. In South Australia there Federal Court sit on the Appeal Division ing the same fate. Perhaps it is just an was one and now three, the percentage and in the Family Court four out of the extraordinary coincidence that, while going from 7 per cent to 21.5 per cent. nine appeal judges are women, including white, middle-class men have occupied In Western Australia there were two, myself, and it is common now to have an senior positions in public life and the law, now four, the percentage rising from 11 all-female bench consisting of members of men are the ones who have benefited. per cent to 20 per cent. In Queensland the Family Court Appeal Division. The hallowed halls of the Melbourne there were seven, now eight, rising from The High Court deserves mention, Club, and of the Parliament and legal insti- 24 per cent to 33 per cent of the bench. In as it always does. We would now, as we tutions of recent history are scarcely sanc- have for many years, find it unthinkable tuaries of serene impartiality. When we for the High Court bench not to include offer an alternative to these harbourers of a woman. privilege, when we celebrate women who In real terms the percentage of just over not only inspire others, but promote the 14 per cent lags behind most of the other wider interests and possibilities of the law, superior courts, and an appointment of a all of us benefit. That is why I am delighted second woman to the High Court bench to be here tonight to present these pres- would certainly send a positive message tigious and well deserved awards. to the community at large and the legal community about the status and appropri- Then the awards were presented to the ate recognition of women. winners. We should not forget that the The awards were presented to Canadians have seen fit to appoint four Alexandra Richards QC; Professor Jenny women judges to the Supreme Court, one Morgan of Deputy Dean of Melbourne of whom is the Chief Justice. We seem to University Law School and Paula O’Brien be a little way off achieving that just yet. of PILCH (winner of the Rising Star In general though, as far as judicial award). appointments are concerned, the percentage of women on the bench is increasing and significantly so in the last five years. The Chief Justice Diana Bryant The appointment of women to benches of the Family Court of Australia throughout Australia has been made by addressed the gathering after the Chief Justice Diana Bryant delivers Governments who are generally elector- announcement of the awards and the after dinner address. ally aware that almost half of their con- said: stituent voters are women and have been Tasmania there is now one. The Northern influenced by an awareness of systemic here is no question that women are Territory has remained constant with one discrimination against women and the Tslowly but surely becoming promi- and in the ACT there are now two. Those need for some activism. nent in the Australian legal community figures are quite significant in my view. Gender analysis has played an impor- and more particularly on the bench. At In District and County Courts (not tant role in raising awareness of issues a regional leadership conference for including Reserve Judges but includ- confronting women in the law. The Australian and New Zealand heads of ing Acting Judges), in NSW there are growth in feminist jurisprudence has been jurisdiction, the first of its kind ever held 17 women judges up from 14 five years remarkable, and many Australian women in Australia, there were seven women ago, forming nearly 26 per cent of the academics have contributed enormously Heads of Jurisdiction out of a total of bench. In Victoria there are 20 women to its development and growth, including 30. The proportion may not seem great judges up from 15, forming nearly 33 Jenny Morgan, who is justly a recipient of but the imagery is, particularly when per cent of the bench, in South Australia, an award tonight. Feminist legal theory they are spread evenly across all juris- two up from one, forming around 11 per is now an accepted part of university dictions, from the Chief Justice of New cent; in Western Australia, eight up from curricula and a number of law journals Zealand to Federal, Supreme, District two, forming nearly 30 per cent; and in are devoted exclusively to discussion of and Magistrates’ Court. That group and Queensland seven up from five, forming women and the legal profession. its representation heralded in my view the 20 per cent of the bench. The profession has also responded positive side of the appropriate recogni- Women have also been appointed to to growing awareness of systemic dis- tion and appointment of women to judicial Courts of Appeal. In NSW there are two, crimination against women by develop- office. in Victoria there are two (including the ing responsive policies and practices. Similarly, the number of women being Chief Justice) and in Queensland there The Law Council of Australia adopted a appointed to judicial office is increasing in are two. national model equal opportunity briefing what I suggest is a generally satisfactory As far as federal courts are concerned policy for female barristers and advocates way. For example, on the NSW Supreme there is of course one woman on the High in March 2004. Since that time, private Court in 2002 there were four women Court, 14 on the Family Court represent- firms, insurance companies and govern- on the bench. There are now nine. The ing just over 34 per cent, six on the Federal ment agencies have adopted the policy, percentage has gone from 6.25 per cent Court representing 12.5 per cent and 12 in including some of the top-tier firms. to 15.25 per cent. In Victoria, there were the Federal Magistrates Court represent- Should we then congratulate our-

44 The awards ceremony dinner in the elegant setting of Queens Hall in Parliament House. selves on our achievements and sit for being “out of touch” and “elite”. It is Has the ‘horse’ of gender equality now back and relax? I hardly need to ask, strange that there would be support for bolted so quickly and so far that we can let alone answer, that rhetorical ques- a narrow conception of merit that per- confidently shut the stable door, secure tion at a function such as this. The very petuates the appointment of stereotypical in the knowledge that our profession has giving of achievement awards, which judges. eschewed discriminatory practices and acknowledge professional excellence and I regret to say that the editor of the views?” influencing and assisting the progress of Australian Law Journal appears from As I have already said, this function other women, makes it obvious that the time to time to be a fellow traveller of itself indicates that the two organisations Victorian Women Lawyers and the Women this kind. You will recall that the article concerned believe that there is still much Barristers Association do not believe that in question argued that the law was to do. their work is anything like completed yet. being “feminised” by the appointment of And there is. One of the effects of the Regrettably, not all members of the women to top legal judge jobs, including appointment of senior and experienced media have yet accepted the legitimacy the Victorian Chief Justice, the Solicitor- women to courts is that it is diminish- of women as lawyers and particularly as General and the then President of the ing the number of senior women in the appointees to senior judicial office. You Children’s Court. profession and at the Bar in particular. will remember the articles written at the One would hope that those whose views Women are still seriously under-repre- time of the appointment of Marcia Neave are so stridently expressed are dwindling sented at the level of senior partnerships to the Court of Appeal, one with the title in number and potency, particularly when in solicitors’ firms. Justice Wears a Skirt. When the Attorney- the subjects of their criticism are perform- The appointment of senior women General took issue with the thesis of the ing well — indeed, as well — as their male from the Bar has not been matched by writer, the author then feigning the air of counterparts. the appointment of Senior Counsel. I someone who is heard and misunderstood, At about the time that these articles use Victoria as an example. At present suggested that it was about “politics” and were appearing in the press I gave a there are 343 women at the Bar and not “gender”. The problem about this is speech to the Australian Women Law 16 women members of Senior Counsel that no similar comments seem to have Students Collective which I entitled, out of 1671 barristers in total and 227 been made about men. subtly enough I thought, “Shutting the members of Senior Counsel. Women rep- These are curious comments from Stable Door — women and judicial office”. resent 20.5 per cent of all barristers but the media at a time when the judiciary is I posed the question at one point “are we only 7 per cent of members of Senior coming under increasing public criticism now satisfied with these achievements? Counsel.

45 Of the 16 women members of Senior in the last few years. It is hard to know And for all of the hyperbole by some Counsel at the Victorian Bar, only two whether this is a lack of experience, those members of the press The Age editorial have more than six years’ experience. One more experienced women having already can be relied on for good common sense. of who is Alex Richards, a recipient of an been made Senior Counsel or appointed, On 25 September 2005 the editorial said: award tonight. Ten of them have less than or whether it is simply a reluctance to take “That the appointment of women to four years’ experience as Senior Counsel on that role because of its obligations. high legal office is still seen as peculiar and the numbers being appointed are con- If it is the former, then we all need to reflects poorly on the community asa cerning as well. In 2004 there were four encourage women in the law in whatever whole.” from 23, a total of 17 per cent. In 2003 areas to obtain appropriate experience in As I have the opportunity this evening there were six from 21, a total of 28.5 all aspects and, at the Bar particularly, to talk to you I want to say something per cent. In 2004 there were two from in all courts and if it is the latter then we about the Family Court and its role in the 11 appointments, 18.9 per cent. In 2005 all have an obligation to encourage other wider judicial landscape. I do so because there was one from 15, 6.7 per cent and in women to aspire to appointment as Senior as someone who has been involved in the 2006 one from 13, 7.7 per cent. Counsel. practice of family law for over thirty years, The concerning figures come from the Clearly it is too early to shut the stable as a solicitor, as a barrister, and as a judge last three years and the last two in par- door. and head of jurisdiction in two courts, ticular: two and then one in the last two In 2005 in a speech at this function, there has been a theme, at some times years. Pamela Tate described the Bar’s subtle more obvious than at others, that family This is not because the Chief Justice of pressure on her not to apply for silk. law is somehow a soft option and that it the Supreme Court is not supportive of the I would hope that that kind of pressure is not real law. This has sometimes been appointment of women as Senior Counsel. would not be applied now and I think it made worse by the fact that there are a She is a clear supporter of the advance- can also be said that the “horse” of gen- number of women who practice in family ment of women. But the problem I think der equity and the law has by no means law. Many do so by choice but as with sys- is two-fold. One is the few women who bolted. Perhaps we can say it’s been taken temic discrimination, there is the added have sought to become Senior Counsel out for a short trot under a tight rein. twist that if women’s status is not seen Alexandra Richards QC: A Profile

The following citation was read prior to Alexandra Richards receiving her award

dmitted to practice on 2 March became the inaugural President of 1981, Alexandra Richards signed Australian Women Lawyers until 2000. Athe Bar Roll on 17 May 1984, and As President, she led an organisa- was appointed a QC on 24 November tion whose principal objective was to 1998. ensure access to justice for Australian Practising in taxation, commer- women generally, and the Board’s cial law, insolvency and ADR, she deliberations primarily addressed is also Chair of the Commercial Bar issues involving equal opportunity, anti- Association’s Revenue Law Section discrimination and affirmative action and Vice-President of the Tax Bar principles. Association. She has appeared in the Alexandra has been at the “cutting High Court of Australia , including in edge” of the formation of three signifi- FCT v Montgomery (1999) 198 CLR cant organizations namely AWL, WBA 639 and FCT v Spotless Services (1996) (being an inaugural committee member) 186 CLR 404. and VWL (being a founding member). In recognition of her commitment Purposes common to all three organi- to pro bono work, she was appointed zations are advancing opportunities for a member of a task force established women in the law and through her lead- by the Attorney-General of Australia to ership and service on those committees advise on the national co-ordination of Alexandra Richards QC she has been instrumental in advancing the pro bono activities of the legal pro- opportunities for women in the legal profession and is a member of the National lence in East Timor in 1999. From March fession. She is the current Chair of the Pro Bono Advisory Council to the to June 2003, she acted as consultant to Equal Opportunity Committee (formerly National Pro Bono Resource Centre. the Office of Prosecutions, International the Equality Before the Law Committee) With an active interest in international Criminal Tribunal for Rwanda (UN) of the Victorian Bar and is also a board humanitarian law, she was selected and based in Arusha, Tanzania. member and executive member of the trained under the auspices of the ICJ to Alexandra served on the steer- Victorian Law Foundation. conduct interviews of victims of the vio- ing committee of AWL and in 1997

46 as being comparable with men’s, then the a specialist superior court, which tailors I think it is also of enormous potential areas in which they predominantly prac- its practice and procedure to best meet benefit to practitioners and advocates, tice will suffer a similar regard. the needs of separated families and par- including of course women. At some times, more in the past than ticularly children. It is a furphy that all lawyers crave the present I hope, women have been This much was acknowledged by the “cut and thrust” of trial and relish pushed into doing family law against their Chief Justice Gleeson at the recent 35th the opportunity to decimate their oppo- wishes. This has led to somewhat of a Australian Legal Convention when he said: nent. It is precisely this fallacious view of backlash, which I think is unfortunate. “As its name implies, the Family Court is advocacy and the qualities a lawyer must For example, whilst I understand the rea- a specialist court, and in certain respects possess to be an “effective” advocate that soning I think it was unfortunate that the its procedures are atypical, and tailored I suspect is contributing to the unprec- Bar’s survey of women in courts did not to its special role. In particular, disputes edented number of law graduates who include a survey of women who practice concerning children are dealt with in are turning away from legal practice as a in the Family Court. It was the only Court a fashion that is self-consciously less career choice. that was excluded. And intentionally or adversarial than the ordinary civil trial The Less Adversarial Trial provides not it sends a message, which I think is process.” a forum in which counsel can exercise unfortunate. The two evaluations reports commis- their skills without being combative and Recently the Family Court has pio- sioned by the Family Court demonstrate aggressive. It is a process that encourages neered a new way of hearing cases about that, in its pilot phase at least, a less the use of incisive and creative reason- children; that is, parenting cases, through adversarial approach brings significant ing and rewards the ability to think and the Less Adversarial Trial, or LAT. benefits to litigants when compared with act constructively rather than destruc- LAT is a significant change in the a traditional trial. tively. approach to trial procedures in Australia. A less adversarial trial is a proceeding I see the Less Adversarial Trial as It has major benefits for those experienc- that does no harm to relationships, that presenting an opportunity to encourage ing family breakdown and who require a tries to change parties from combatants more people — men and women — to hearing before a judge. It is consistent into cooperative parents, that tries to help undertake family law. It is an exciting, with the broader trend in civil litigation parents deal with issues which we always innovative and, ultimately, rewarding step towards stronger case management and understood were there but not dealt with, forward. more active judicial involvement. It is also to provide them with outcomes that will consistent with the Family Court’s role as prevent further conflict, not sustain it. The next awards will be held in 2009.

Pro Bono Swimming Championships

o doubt many watched the ested parties. A protocol was established he was supported by Tony Nolan S.C. and “golden” performances of Michael with the Melbourne Magistrates’ Court, Will Alstergren, who were able to secure NPhelps and Libby Lenton at the Victoria Police, the Games Organisers and what might otherwise have been a life ban recent World Swimming Championships. those representing the pro bono lawyers. to six years. It is understood the coach What few would know is that a number The result was that with this level of intends to fight that suspension as well by of barristers were putting in “sterling” co-operation between all, the matters han- appealing the suspension to the Court of performances of their own in assisting a dled by the Court went through the sys- Arbitration for Sport. number of swimming officials deal with tem smoothly. Matthew Fisher appeared All counsel were briefed by leading their legal problems. for the scantily clad Russian diving coach sports law solicitor, Paul Horvath, who As occurred with the Commonwealth who faced the Magistrates’ Court on was instrumental in setting up and organ- Games in Melbourne in 2006 an number assault charges. Florian Andrighetto had ising the pro bono scheme. of barristers volunteered to be available, the distinction of appearing for the emo- It is appropriate that all are recognised should the need arise, to appear, pro tionally expressive father who was also a and thanked for their contribution to the bono, if any swimmer or official traversed Ukrainian swimming coach, in the result scheme, including those who offered their the law in some way. This did not happen the intervention order was removed. services. by accident but was the result of careful Unfortunately that was not the end of Tom F. Danos planning and meetings, in the months the matter for him as he had to appear prior to the Championships, with all inter- before the FINA Disciplinary Panel where

47 News and Views

New Exhibition of Women

at the Bar As part of Law Week 2007, Victoria Law Foundation and the Women Barristers Association collaborated on an exhibition to highlight the experiences and achievements of some of Victoria’s most prominent women barristers over the past 100 years.

The result, Women Barristers in achievements of women barristers, Victoria Then and Now, tracks the key we can further improve opportunities developments in the history of women for women at the Bar and in the legal barristers in Victoria, providing an profession in general. overview of the personal experiences, “We also hope that the exhibition will challenges, significant achievements and inspire more young women to a career in contributions of women barristers to the law, in particular at the Bar.” legal profession. The exhibition ties in with the ongoing Images and anecdotes, from Joan development of the Victorian Bar’s Oral Rosanove to some of the most senior History project. This multimedia initiative women in the legal profession today, captures the recollections of retired and paint a picture of life at the Victorian practising men and women barristers of Bar against a backdrop of milestones in the Victorian Bar, and is accessible via women’s legal history. www.vicbar.com.au. According to Simone Jacobson, convener Women Barristers in Victoria Then and of the WBA, the exhibition shows how life Now is currently on tour, and will be on for women barristers has changed over display in chambers, schools, universities the years, as both a historical reflection and courts across Melbourne and Victoria. and an ongoing story. For more information contact Simone “We hope that by highlighting to the Jacobson, simonejacobson@vicbar. legal industry and wider community the com.au. challenges faced by, and the significant

48 New Exhibition of Women at the Bar As part of Law Week 2007, Victoria Law Foundation and the Women Barristers Association collaborated on an exhibition to highlight the experiences and achievements of some of Victoria’s most prominent women barristers over the past 100 years.

49 50 51 News and Views Ian Hunter QC Addresses the Melbourne Branch of the Anglo Australasian Lawyers Society Wednesday 14 March 2007

y Melbourne connections go It is a single Society with an Australian back a long way and it is a great Chapter and a UK Chapter. I am delighted Mdelight to have an opportunity to that the Australian Chapter now has two renew them. I first came to Melbourne branches. For obvious reasons I cannot in 1980 after finishing my first case asa speak about the Melbourne branch. But silk in Hong Kong and I decided to return I can say, having been to meetings of the home the long way. It was an opportunity Sydney branch, that the membership is to visit my aunt who had emigrated from rather different in the two countries. In Scotland 40 years earlier and lived in Sydney there is a much greater propor- Balwyn. Then my son who is now 30 met tion of established practitioners whether a girl from Melbourne, came down here, they be barristers, solicitors or judges. In loved it and ended up going to RMIT and London the make-up of our membership is buying a unit down in St Kilda where he very different. The majority of our mem- still lives and works. It was in 2000 when I bership by far comprises young Australian took a weekend off from a Singapore arbi- and New Zealand lawyers who have come tration panel chaired by Andrew Rogers over to the UK to join one of the big firms of Sydney that I discovered the dubious in London. Some of them will of course pleasures of street-side property auctions. join Australian firms like Mallesons and Finally, I have a daughter-in-law who lives Minters (whose support for the London in Sydney and is about to produce our first Branch and indeed the Society in general grandchild. has been unstinting and much appreci- When your energetic secretary, Paul Ian Hunter QC. ated). Many will join firms like Linklaters Hayes, and I had lunch in London about and Freshfields who employ large num- six weeks ago and he invited me to speak begun what has turned out to be a long bers of young Australasian lawyers. And to you, I readily accepted. It gives me the friendship. There was agreement between over the last few weeks I have noticed opportunity to congratulate you on the all three of us in Auckland that with the reports that some of the big US law firms, formation of the Melbourne branch of abolition of state appeals from Australia like Fried Frank, whose presence in the Society and to give you a little of the to the Privy Council in 1986 a real effort London is becoming increasingly notice- background on the origins of the Society, was now needed to maintain and further able, are recruiting Australian and New to the extent that others may not have our close legal connections and traditions. Zealand lawyers. already done so. Until appeals were abolished there had These young lawyers are worked for- The origins of the Society go back been a regular trail from Australia to the midably hard and it is not at all easy to get to 1990 when Gary Downes, Ken UK of the leading advocates and solicitors them to evening meetings for that reason. Handley and I were in Auckland for the coming to London to argue cases. The other difficulty we have is finding Commonwealth Law Conference. It was That idea then germinated although out who has arrived and who has gone my year in office as President of theU nion looking back it seems to have taken a back home. Our database is constantly Internationale des Avocats and I decided long time to actually form the Society. In being updated. The meetings that we to attend the Conference in that capac- the meantime I had been admitted to the have that are most popular are practice- ity. I had met Gary for the first time in New South Wales Bar in 1992 and took directed. For example we have an event Interlaken at the annual conference of silk there in 1994. The Society itself was in June put on by Mallesons on the subject the UIA the previous year and we had formed in June/July 1998. “Working with In House Counsel in Large

52 Transactions: are you providing value?” subverted for political ends. trine of the separation of powers finding That’s just a little glimpse into the sort expression in the works of Montesquieu, of things we are doing in London. The The conclusion of Roy Martins QC, in particular in his “L’Esprit des Lois” in whole of the London Committee joins Dean of the Faculty of Advocates in 1748. It was his contribution to the consti- with me in welcoming you to the fold. We Scotland, was that: tutional debate which played so strongly wish you well and if there is anything we with the founding fathers in the United can do for you in London you have only the independence of the legal system and States who explicitly adopted the notion to ask. I very much hope to develop as the judiciary in particular in Zimbabwe has of the separation of powers. close relations with you as we have with been severely compromised … the coun- In the UK with its unwritten constitu- our friends in Sydney. You will be sent our try’s legal system has been distorted and tion there has never been a complete programs as a matter of course. If you are subverted for the illegitimate maintenance separation of powers. The doctrine has in London at the right time we will be very of political power. been honoured in the breach. Until very disappointed if you do not join us. recently the Lord Chancellor, effectively Turning now to my topic or perhaps And Pakistan. On the three occasions the Minister of Justice, was a member of I should say topics, when I had lunch since independence that military coups the executive sitting in the Cabinet and with Paul I asked what the sexy topics have brought an end to democratic rule participating in political decisions, he was in Melbourne are currently. Hence the in Pakistan the judiciary have failed a member of the legislature i.e. member subject of my address. My input into to impede extra-constitutional regime of the House of Lords and speaker of that both topics is going to be a very personal change but have abetted and endorsed Chamber and he sat as a judge in the one and to some extent, particularly as the change of power. Commentators House of Lords. regards judicial independence, possibly a report that the present military govern- The previous Lord Chancellor, Lord bit controversial. ment, like previous ones, has devised Irvine, is and was a very political animal I do not propose to rehearse at length ways of keeping the judiciary weak. It and declined to take the political backseat the importance of judicial independence uses judicial appointments to ensure that in Cabinet which his predecessor, Lord or the reasons why it is a keystone of allies fill key posts. The Chief Justices of Mackay of Clashfern, had adopted. In his our constitutional arrangements in both the High Courts wield critical administra- early period in office he occasionally sat countries. There is no need to do so in tive powers over the allocation of cases to as a judge in the House of Lords. As a company like today’s. But it is relevant to judges and are accused of directing cases result he came under great pressure from bear in mind that other centres of power to pliant judges. another judge in the Lords, Lord Steyn, in our contemporary society, the execu- I have spoken of Zimbabwe and not to do so and in particular not to do so tive, large corporations and the media Pakistan as examples of gross threats where the actions of the executive were need regular reminding of the central to judicial independence. No one would under examination. He complied with that importance of the principle. think of the United States in the same con- pressure and the current Lord Chancellor, The crucial need for judicial independ- text. Yet there was real concern in 2000, Lord Faulkner, made it clear from the ence in any society that purports to be a in the United States and elsewhere, when outset that he would not take part in the democracy can best be appreciated when a decision of the Florida Supreme Court, judicial business of the House. the principle is seriously eroded or under- whose members had all been appointed Much of the British constitution is mined. Some of us remember Zimbabwe by Democratic governors, was overruled governed by constitutional conven- 25 years ago when it was one of the most by the Supreme Court where the decisive tion, and Parliament by convention has successful African countries. Just look at votes in favour of the second President long respected the independence of the it today. In 2005 a delegation of senior Bush were cast by judges who were judiciary. Only once has a High Court barristers including Stephen Irwin QC, appointees of the first President Bush. judge been removed by resolution of Chairman of the Bar Council in England, In different countries the problems Parliament. That was in 1830 in the case and Glen Martin S.C., President of the Bar raised by the necessity of defending and of Sir Jonah Barrington who was a judge Association of Queensland and Treasurer protecting judicial independence may be of the High Court of Admiralty in Ireland. of the Australian Bar Association, visited of very different orders of magnitude. But Then in 1983 the provisions governing the Zimbabwe. Irwin reported: they still exist. removal of Circuit Judges were operated Let’s go back a bit in time, to 1178 to in the case of a judge who admitted to ... the judicial system in Zimbabwe has been be precise. It was in that year that Henry smuggling. profoundly compromised [in recent years]. II appointed members of his personal Another important aspect of judicial The appointment of the higher judiciary household “to hear all complaints of the independence is that for many years is subject to political interference. Zanu- realm and to do right” — the origins of the judges were handsomely rewarded in PF enforces the removal of judges whose Queen’s Justices of today in the UK. But monetary terms. The difficulties that can independence represents an impediment it was not until the Glorious Revolution of arise when that is not so were vividly to government policy. Judges have been the 1688 that the rule of law was established brought home to me on a couple of occa- subject of psychological and physical intimi- in place of the will of the monarch. This sions. In 1983 I argued a case in the Court dation and threats of violence. Magistrates led 13 years later to the Act of Settlement of Appeal in Nairobi on appeal from the and prosecutors seen as unsympathetic to in 1701 which secured the victory of judi- High Court in Mombassa. I led the head the government have faced actual violence cial independence over the power of the of one of the leading law firms in Kenya. and attacks on their families and property ... executive. I remember him telling me that the local we have concluded that the Zimbabwe jus- Then we come to the eighteenth cen- judges were so badly paid that they were tice system has ceased to be independent tury which was a period of political and allowed to supplement their income and impartial. The legal culture has been constitutional theorising with the doc- by going into business. Unfortunately

53 the judge earmarked as the next Chief I did and still do for James Mackay. But a proposal about which he clearly has con- Justice had been forced to excuse himself Donaldson perceived the Lord Chancellor siderable doubts. because his haulage business had just to be attempting to interfere with the run- The principle of judicial independence gone bust. My friend also told me that for ning of the Court of Appeal and he was is one of the keystones of a democratic a number of years he had written a report also very critical of the way in which the society whose relevance and importance for the World Bank on the justice system reforms in the Courts and Legal Services is as compelling today as it ever was. in Kenya and that he was distressed for Act of 1990 were seen as a threat to the the first time to have had to write that independent Bar and to the quality of the it could no longer be assumed that the administration of justice. Kenyan judicial system was free of corrup- Lord Donaldson spoke out again in The common man no tion. Then a few years later I was involved 2005 just before his death when Tony longer walks backwards in an arbitration in India and I was told by Blair called on the judges not to block the tugging his forelock in a very senior local lawyer that a particular government’s anti-terrorism proposals. He local High Court judge was known to be indicated that the judges would continue the presence of authority taking bribes and it got to the point where to interpret the law independently of what (except possibly in the the local Bar Council resolved to refuse to the government might wish to see happen military). What judges do appear in front of him. and added: No dissertation is needed from me as to is for the most part in the the importance of judicial independence It’s the job of the judges to ensure that the public arena. and the fact that at its root is the protec- government of the day does not exceed its tion of the rights of the citizen against powers which is the permanent desire of all overweaning power, wherever that threat governments. It was born out of the abuses of royal may lie, whether it be the executive, power in the period down to the Act of central or local government, big business The position in the UK in recent years Settlement in 1701. Kings no longer abuse or the media. It is not a perk or privilege has not been improved in this context by their power because they have none. But attached to the office of judge. It is central the wholesale incorporation of European those who are the transferees of such to the rule of law. As Lord Denning said law into English law and the incorpora- powers, namely, governments, big busi- famously in the Gouriet case, which I had tion of the European Convention on ness and the media are no less willing to the privilege of arguing in the Court of Human Rights directly into English law abuse their powers than seventeenth cen- Appeal at its earliest stage: “Be you ever with the Human Rights Act. The frustra- tury monarchs. The principle of judicial so high, the law is above you.” tion of certain ministers who have not got independence remains an eternal one. But There are powerful forces in any mod- the decisions from the Courts that they the context in which the challenges have ern society who are determined, almost were arguing for, particularly on issues arisen in recent years is very different. regardless of cost, to get their own way of immigration and asylum, was at one We live in a very different world to that and who find that the law, and the judges time leading some ministers, apparently of 40 years ago and that fact has to be in who are the embodiment of the law, are seriously, to publicly question whether the forefront our thinking about judicial liable to thwart them. These forces are the powers of the judiciary in relation to independence. For example, we no longer often represented by ambitious and self- judicial review should not in some way be live in a society which is as respectful of righteous people who are not used to curtailed. The proposition is a preposter- authority in general, and judicial authority taking “No” for an answer and who, when ous one, not least because so much of in particular, as it used to be. The common thwarted, are liable to turn on those who what the Bench is concerned with in this man no longer walks backwards tugging they perceive are standing in their way. domain is statutory construction arising his forelock in the presence of authority As democratic societies have become directly out of elucidating the intention of (except possibly in the military). What much more complex over the last 40–50 the legislature. judges do is for the most part in the public years and application of the rule of law Examples in other jurisdictions of arena. Some of their decisions are of genu- has moved routinely into areas of daily life course abound and I am interested to ine public interest and many of those will where its involvement was not previously know more about the challenges to judi- be truly controversial. The courts choose of any great moment — I have in mind cial independence here in Victoria and to go in one direction. There is a respected the rationalisation and vast expansion elsewhere in Australia. body of public opinion which would like to of judicial review — so the pressures on I was fascinated to read the address see a different result. Few judges would the independence of the judiciary have of Chief Justice Spigelman to the Law complain these days about a spirited increased greatly. Society of NSW at the Opening of the Law debate developing in the media about All of us have our own favourite exam- Term Dinner just six weeks ago when he such decisions as long as the debate is bal- ples. For me one memorable example addressed, specifically in the context of anced and well-informed. Unfortunately it was the occasion in 1990 when Lord the institutional arrangements for the often is not. Donaldson famously warned the then independence of the judiciary, a particular It is not just the press who are liable to Lord Chancellor, Lord Mackay to “get your issue concerning the NSW government’s attack the judiciary. It is an increasingly tanks off my lawn”. I appeared regularly proposal to appoint “community repre- popular sport among politicians. Sandra before John Donaldson after the National sentatives” to the Conduct Division of the Day O’Connor, the now retired United Industrial Relations Court was set up in Judicial Commission. He appears to have States Supreme Court Justice, has been 1971 and later when he was in charge of been particularly concerned at the failure speaking about the problem in the States the commercial list and later Master of of the government to consult him as head in recent years. She has been speaking the Rolls. I had a lot of time for him as of the NSW judiciary before going live with out about what she called the danger of

54 edging towards dictatorship if Republican 20 or more years ago I was constantly urg- I think that is greatly to be welcomed. right-wingers continue to attack the judi- ing that change and reform (all of which Returning for a moment to commercial ciary. has now occurred) should happen more chambers, it is a very long time indeed The issue came to a head for her as a quickly than it did. (over 10 years now) since a leading full- result of the comments of Tom Delay, the My perception is that there has been time member of my chambers went to former Republican leader in the House of in recent years a certain dumbing down in the Bench. The most senior members Representatives, about the right to die the quality of people being appointed to (other than the head of chambers, Gordon case (removal of life support) in Florida the High Court Bench. If I am right about Pollock QC who is still heavily engaged as involving Terri Schiavo. Delay said: “The that then I think it is a matter of great an advocate) are all very busy but largely, time will come for the men responsible for regret which could lead to an erosion of though not exclusively, as commercial this to answer for their behaviour”; and he the independence of the judiciary. On the arbitrators. The London legal market is called for increased scrutiny of “an arro- other hand, as I will explain, I recognise a very specialised one. With a few excep- gant, out-of-control, unaccountable judici- that in some respects things needed to tions, experience used to have it that by ary that thumbed their nose at Congress change. Thirty years ago the leading one’s middle 50s work as a silk began to and the President”. O’Connor’s response members of a leading set of commercial tail off as young solicitors tended to brief was to say that such threats “pose a direct chambers like mine would almost invari- the newly elevated young silks in their late threat to our constitutional freedom”. She ably go on the High Court Bench. Some 30s whom they had instructed as juniors. observed that death threats against judges practitioners in the so-called magic circle The result was that the experienced silks were on the rise and that the situation had sets of chambers were taking silk as early moved on to the Bench. not been helped by a senior senator’s sug- as 35 or 36 years of age and going on the In the last 20 years that has all changed. gestion that there “might be a connection Bench before they reached 50. This meant Speaking personally, it was one of the best between violence against judges and the that by the time they were considering the decisions I ever made not to go on the decisions they make”. With perspicacity Bench they had in all probability paid off full-time Bench. But to some extent in the she commented that if the courts did not the mortgage, educated the children in early 1990s when the decision for me first occasionally make the politicians mad private school (or as we would say, pub- started to raise its head, my decision to they would not be doing their job. lic school) and may well have bought a continue to do what I had been doing for The answer to this issue has surely second home in the country. Essentially some considerable time, namely, engage to be that informed, even if critical and they were reasonably well off. Their salary in commercial arbitration as arbitrator sometimes highly critical, debate is to be as a judge would go to day-to-day living was somewhat pioneering. Today I notice welcomed provided that it is balanced expenses but not expenditure of a capital that in chambers it is increasingly becom- and responsible. Where it is not, it is a or extraordinary nature. In short they had ing the career path of choice for a number judgment call for the higher judiciary as a measure of financial independence. of my younger colleagues. The key is whether to respond and in what form, but Parts of this scenario no longer apply. professional fulfilment which many of us they should not be afraid to do so where Even at the commercial Bar few silks are find is more readily available as arbitrators circumstances require. now appointed before the age of 40. The than on the Bench, together with the fact There has in recent years been quite retiring age of judges is 70. Changes to that family life is a good deal easier than it serious tension in the UK between the judicial pensions brought in a few years would be on the Bench. government and the judiciary. Sentencing ago mean that the point at which a full Returning, if I may, briefly to financial policy is one area where this has occurred. judicial pension is earned was lifted from independence a number of things are Parliament seems determined to limit the 15 years to 20. So 50 is the oldest that any interesting. My impression is that increas- judges’ discretion as to the appropriate one can join the Bench and get a full pen- ing numbers of judges are retiring from sentence to award and the judges under- sion and high flyers are being appointed at the High Court Bench before the statutory standably have been determined to retain, about 46 and upwards. What that means retiring age. Maybe they have decided or perhaps regain, what they would regard in practice is a greatly reduced period in that the pleasures of family life outweigh as appropriate sentencing discretion. The which the would-be judge is earning sig- the increased pension they would achieve previous Chief Justice, Lord Woolf, was nificant sums in silk. He or she is likely to by working on. I am aware (anecdotally more than prepared to defend the posi- be a good deal less financially secure than of course) that a number of retirements tion of the judiciary where necessary to was previously the case. and resignations form the High Court will do so and the present Chief Justice, Lord That is one aspect of the matter and I occur at Easter this year and rumour has Phillips, is following in the same recent admit that it is viewing the matter from it that upwards of 20 new appointments tradition. a commercial Bar perspective. On the are about to be made to the High Court I said I would make some personal other hand, I have always felt that rela- Bench. comments and I turn to these now. I tively young and successful commercial It is for obvious reasons impossible to should emphasise that although I notice silks who are made up to the High Court know but my suspicion is that there may that my CV that you have says that I Bench are not best placed when it comes be people being appointed to the Bench am a Deputy High Court judge and for to participating in the work of the criminal these days who are earning more on the a number of years I was a Recorder of division of the Court of Appeal, telling Bench than they did in private practice. the Crown Court, the views which follow circuit judges vastly more experienced What is wrong with that, you may say? should be treated as those of an outsider in the area of criminal work where they Well, in a sense nothing. What worries me viewing in. I would be the first to admit have gone wrong. My impression is many is that if I am right in this suspicion and that over the last 40 years times have more appointments to the High Court are that some appointments are being made changed. I have no difficulty with that. being made from experienced criminal from the ranks of practitioners who have Indeed when I was involved in Bar politics practitioners than used to be the case and never been able to earn (or perhaps retain

55 after tax) enough to give them real finan- interesting parts of the world but I recall arbitration, ICC (International Chamber cial independence, they may be tempted none as beautiful as that. of Commerce) arbitrations emanating more readily to fall in line with what the From about 1980 onwards I have been out of Paris though regularly conducted executive might like to see happen than involved in increasing amounts of reinsur- elsewhere, LCIA (London Court of might otherwise be the case. ance work. Prior to the late 1970s there International Arbitration), ICSID arbitra- What about judicial promotion? was very little reinsurance work. Since tions under the aegis of the World Bank Promotion from the High Court Bench in then there has been an enormous explo- and all manner of ad hoc arbitrations. England to the Court of Appeal brings with sion of business both in England and in the Then there are a number of practition- it a considerable salary increase. Might States. The reason is simple. The amounts ers in chambers who still engage in some that be a factor for an aspiring-member of of money that tend to be involved are advocacy but to a greater or lesser extent the appeal court to bear in mind? These huge and it is not uncommon for the sums are engaged full-time as arbitrators. The are some of the difficult issues (to which in issue to be so great that the financial work each does depends on their known I confess I do not know the answer) in integrity of insureds, who may even be expertise, which of course differs from relation to matters of promotion. There is Fortune 500 companies or some of the one arbitrator to another. much more promotion from the ranks of biggest insurance players in the market, I was reading recently the report of a circuit judge to High Court judge in recent may be called into question. The reality is sub-committee of the Commercial Court years and I welcome that. On the other that they have no option but to fight and Committee set up to enquire on the work- hand, there is much to be said for the since the business is often governed by ing of the 1996 Arbitration Act some 10 Australian practice (with, as I understand contracts containing arbitration clauses, years after it came into force. Arbitration it, a very few exceptions) of appointing the resulting dispute of course ends up in being private and confidential (one of its from the Bar direct to the court where the arbitration. great advantages for the business com- appointee is likely to spend the greater I will speak shortly about some aspects munity) it is virtually impossible to obtain part of his or her judicial time. From the of my arbitration work at the present time reliable data. But the authors of the report viewpoint of independence of the judici- in the insurance and reinsurance field. But estimate that there are annually between ary the practice has much to be said for first let me speak more broadly about the 5,000 and 10,000 arbitrations governed by it. involvement of my chambers in arbitration the English Act. So there is a lot of work. There is a lot more I could say about over the years. My own work as an arbitrator is divided judicial independence, for example, in Lord Mustill who was a leading silk in up in practice between various types of relation to the Judicial Appointments chambers for many years before he went legal business. There is a certain amount Commission and the introduction of a to the Bench and ended up in the House of straightforward business disputes. For welcome measure of transparency to of Lords was very much in the vanguard example, the Russian business community appointments to the Bench at all levels. of chambers’ involvement in arbitration. appears to hold its local court system in But time is moving on and I do want to say Together with another member of cham- less than high regard so there is a certain something about commercial arbitration. bers, Stewart Boyd QC, he authored the amount of that work coming either to In the time available to me I think the main textbook on the subject, Mustill and London or elsewhere in Europe of that most profitable course is to speak briefly Boyd on Commercial Arbitration. kind. I am involved in a certain amount of about the various different types of inter- There have been some interesting construction arbitration in London. There national arbitration in which members of developments in the shape of chambers are a number of London arbitrators who my chambers are involved, with particular over the years. As I am sure applies here, do little else and are very experienced in reference to my own areas of experience the maxim is “Once a member of cham- the field. I do an occasional such arbitra- in this field. bers, always a member of chambers.” The tion. I joined chambers as a pupil in 1968 practical result is that judges who retire But the bulk of my arbitration work and virtually my first case was a shipping invariably come back into chambers and as arbitrator is in the field of insurance arbitration conducted in the hearing room as often as not they come back as arbitra- and reinsurance and I wanted to close my in the basement of the Baltic Exchange. tors. We maintain a list of door tenants, remarks by talking a little about the dif- You had to cross the floor of the Exchange many of whom are retired judges who ferences in this area between arbitration to get to the arbitration room and since arbitrate from chambers’ address and are in London and in the States where I have women were not allowed on the floor of clerked by chambers’ administration. We been sitting a good deal for a number of the Exchange at that time they could not currently have as former practitioners years. participate in the arbitration. But that was with us and now as arbitrators the Lords Having said that, the first case I would not perceived to be a problem at the time Mustill and Steyn. Lord Millett arbitrates mention is an insurance tribunal which I since there were so few women lawyers, out of Essex Court Chambers, although he sat on in Melbourne four or five years ago. How times have changed — and for the was not in my chambers when he was in It concerned an open cast mine in the better, I hasten to add. Apart from a cer- practice. Sir Anthony Evans, who retired Mojave desert in California and involved tain amount of trade union work which a few years ago from the Court of Appeal, a spat between rival groups of insurers. I did in the early years of the Industrial is busy as an arbitrator; and it would be no I was appointed by one group, and an Relations Court, I did little else but ship- surprise to see Lord Saville, who together English colleague of mine was appointed ping and construction arbitration during with Toby Landau drafted the Arbitration by the other group, and we appointed the 10 or so years until I took silk in 1980. Act of 1996, coming back in to chambers the head of my Sydney chambers, David The first time I sat as an arbitrator was when his duties as Chairman of the Bloody Jackson QC, to be the third arbitrator in 1976 when I chaired a shipping tribunal Sunday enquiry permit. With the obvious and chairman. The case was governed by for an afternoon hearing in Diano Marina exception of Lord Saville they are all Victorian law and was very well argued in Italy. Since then I have sat in some in demand for all types of international by members of the Victorian Bar, so well

56 argued over the course of a week that, if I to support the case of the party that legal friends find it difficult to understand remember correctly, we split 2–1. appointed them. Ex parte communica- (or at least sometimes claim that they do) Reinsurance arbitration in London tions take place up to an agreed point, how an advocate can appear in a case in and the States, which usually means New which is usually immediately before briefs front of an arbitrator from the same set York, often raises the same types of issues are exchanged for the main substantive of chambers. But the same sort of issue and the players in the market are often hearing. What this means in practice can arise in the States where, for exam- the same. But some of the procedures and is that the only arbitrator who can be ple, the reinsurance arbitration world is a indeed approach to the arbitral process is assumed to be wholly neutral is the third relatively small one and it is common for very different. For someone like me who arbitrator and umpire (as they are called advocates and arbitrators in a particular is engaged to a similar extent in both sys- in the States). case to know each other well and to be on tems the divergences are fascinating. That being so there is what to outsid- terms of friendship. The same of course Let me talk in particular about differ- ers would appear to be an extraordinary can apply on the Bench. ences in approach to the process. In the process for selection of the umpire. A In linking up the two parts of this UK I am usually either the third arbitrator considerable amount of time and effort address it has been suggested to me that and chairman of a tribunal composed of is spent by each side drawing up a list of if serious inroads are made into judicial market men appointed by each party or candidates for the post. Each side submits independence parties may choose to have a member of a three-person panel, often a list of three to the other party and that their future disputes resolved by private three silks. I was supposed to be sitting in other then strikes two of the three names, adjudication. I suppose that is always pos- London next week with Ken Rokison QC leaving one on each side. The choice of sible. There have been to my knowledge and Jonathan Hirst QC but I am happy to the umpire is then decided by lottery, in the UK no serious inroads into judicial say the case settled a couple of days ago literally. The two party-appointed arbitra- independence although the threat is so I can put the files I brought down with tors will identify a day in the near future always there, as we can see. That is not me in the shredder and enjoy a few more and one will take evens the other odds. the reason there is so much commercial days with my family in Australia. By the The deciding factor is the chosen digit arbitration. All of the arbitration work that way, when I refer to market men I mean first or second after the decimal point of I am engaged in arises from the fact that former underwriters or brokers. the closing figure of the Dow Jones index the parties have put an arbitration clause But in either case I very rarely remem- for the chosen date. in their contract which may have been ber who appointed me and in any event Different from the UK system it concluded years ago. The case that I was it is entirely irrelevant because what all certainly is. I have made it clear when supposed to be doing next week involved three of us are concerned to do is to get accepting party appointments in the excess of loss reinsurance contracts con- the right answer. I am happy to say that States that when it comes to any decisions cluded as early as 1945. Commercial arbi- my experience is that the market men of importance I will vote my conscience tration is favoured in my opinion (I am not behave no differently in this respect to the and they should not appoint me unless talking now about reinsurance arbitration lawyer-only panels. From the outset there they are prepared to accept that. I know in the States) because the parties wish to is no ex parte communication between for a fact that there are many other US avoid washing their dirty linen in public appointor and appointee. Reasoned arbitrators who approach their duties on and the confidentiality of the proceedings awards are invariably given. a similar basis. But it should certainly not is an important consideration and also In the States things are different, very be assumed that all do. because in areas where the business is different. Efforts are being made there to Just a few words in conclusion. The particularly specialised they like to know embrace a system of three truly neutral subject I have just been talking about that at least one member of the tribunal members of the panel. But it does not raises the issue of personal integrity. has the necessary expertise to bring an appear to be what the industry there yet Whether one is sitting judicially or as an informed mind to bear on the problem. wants and it is not the way it generally arbitrator it seems to me that personal Let me conclude by again wishing happens at the present time. Nor are rea- integrity lies at the heart of what all of us Rodney Garratt QC and his Committee soned awards the norm. do. It is or should be second nature to all good fortune at the Melbourne Branch. I The party-appointed arbitrators to of us. There are all sorts of ways in which sincerely hope I can visit you here just as

a greater or lesser extent are expected the issue can up. Many of our American often as I can.

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57 News and Views We Are Not Americans Yet ... Michael King There are some things that we just do not do. We do not put our hands on our hearts during the playing of the national anthem, put the month before the day in dates, or cut our food into small pieces, transfer our forks to our right hands and then scoop up our food like babies.

ntil quite recently, we tended to and its, in any event, strangeness, were question. None of this (with perhaps some preserve our cultural identity in our long rejected. Every tongue has its exceptions, to be touched on later) can be Uuse of language, too. Our speech, own idiosyncrasies, and theirs were not said to be, objectively, right or wrong. In verbal or written, is our cultural trade ours. Even now, hearing the letter zed a sense, it is just a phenomenon, neither mark. Our method of communicating tells pronounced “zee” still grates on most correct nor incorrect. It may be a matter other people and ourselves who and what sensibilities. We instantly recognise it as of taste. The point, though, is that it is we are. It is merely trite to observe that foreign — but there are many, many other not our language, not our culture. It is the language changes. It develops and evolves. examples. Familiarity breeds a certain imposition or the adoption of something In the process, it successively annoys each acceptance with some people, though. alien. If our use of language defines us, generation (often quite rightly), but it can- Repetition seems to make the alien sound then we should be aware of the definition not stand still. We do not speak or write in normal. Even so, some would argue that we really want. just the same way as our forebears in the we should fight for our Greek in the face Something so elemental and every-day eighteenth century, and they did not use of the Roman onslaught. Pressure from the as the food we eat, literally and figuratively Chaucerian English. latter will not last forever, and the former close to our hearts, is involved. Our names However, is it a part of the gradual evo- is worth keeping. for foods are usually part and parcel of our lution of English that we adopt wholesale, most basic culture and identity. What are in what is really a very short space of time, “... talking something that we to make of it then when, rapidly, chips a whole new way of saying and writing was not very different from are becoming “fries”, bread rolls “buns” things, with all the cultural baggage that English” (as in hamburger “buns”), biscuits “cook- comes with it, from one particular place? It is curious that, although almost every- ies” (try to find a packet labelled “biscuits” Perhaps. We should be aware, though, one has their particular dislikes when it in a supermarket now — even those loudly that we are in a unique position in history. comes to Americanisms, they will use trumpeted as being “proudly Australian There is another nation on earth, kindred others left, right and centre without a made and owned”) and dry biscuits “crack- to an extent, that happens to speak a qualm. While objecting to, say, “sidewalk”, ers”? Relatively recently, historically, little language rather reminiscent of English. It they will still pepper their sentences with sweet high-risen cakes are called “muffins” also exerts a cultural (including linguistic) “tad”, “rookey”, “flashlight” (for torch), (how many children today know that the influence quite disproportionate to its “bathrobe” (for dressing gown), “I guess” age-old type of flattish bread, not dissimi- numbers, but consonant with its economic (once used by novelists and script-writ- lar to crumpets, eaten toasted, with butter power. Churchill famously observed that ers as the surest way of indicating an and honey, are the real muffins? They have the English and the Americans were two American), “I figure” (and the appalling to be differentiated in today’s American- peoples divided by a common language “go figure!”) and “deck”, instead of pack, of dominated supermarket as “English muf- — and his mother was an American. We cards. This last is readily picked up when fins”). Stones and pips in fruit, we are now are divided, though, now hardly at all. playing “solitaire” (for patience) on the told, are “pits”. So, we are offered in shops A top 10 to be avoided: computer screen. Of course, computers (not “stores”) “pitted” olives, cherries and “I guess” “I figure” almost rival television now as dissemina- dates. A serving of something, too, is called “train station” “guys” tors of the American tongue. In addition “regular” — to avoid saying “small”. Lemon “cookies” “store” to everything else, they teach “upper and rind is called “zest” on every cooking pro- “nood” (for nude) “schedule” lower case” (where we say capital or small gram, and cold meats are “cold cuts”. “line” (for queue) letters), “access”, “source” and “impact” as In the late 1880s, Rudyard Kipling, no definite article verbs and American spelling. who himself married an American, wrote Its perceived vulgarity, its incorrect- Now, is there anything “wrong” with any of his first landing in San Francisco after ness according to our standard English of this? Well, that is not really the relevant journeying in China and Japan, “Three

58 hundred thousand ... walking upon real rooms or changing rooms are becoming John Howard”, heard all the time now. He pavements in front of real plate-glass win- “locker rooms”. “Inductions” into “halls of is the Prime Minister, Mr Howard. We do dowed shops, and talking something that fame” is sheer Americanism. not have “Minister Smith”, either. was not very different from English. It was Now, though, we are given the American only [later] that I discovered the difference The stamp of approval style of using what are really descriptions, of speech ... Where we put the accent for- Of course, for a while, most people in the as titles. Consequently, “Box Hill man ward, they throw it back and vice versa; community recognise something as an Tom Brown” (any relation of Neanderthal where we use the long a, they use the Americanism which is being introduced. man?), “truck driver Bill Robinson was short; and words so simple as to be past It will appear in advertising, say, either asked ...”, “crash survivor, Joan Jones, was mistaking, they pronounce somewhere up because the company is American and flown to hospital”. in the dome of their heads. How do these we get their advertisement directly, or things happen?” because advertisers here think that it is Definitely not How those things happened there is clever or smart or the latest thing, show- One of the most noticeable of these one thing. It is not so very difficult to see ing that they are at the leading edge of recent phenomena is the disappearance how they are now happening here. commerce and popular culture. It will be of the definite article. “Prime Minister repeated on Australian television soap The law and sport operas, because the writers also think it Our own field of the law has been assailed smart and that it reproduces what the by American television. The witness watchers of their offerings see every Our own field of the law box has become the “stand”, and wit- single night on the cheap wall-to-wall has been assailed by nesses don’t go into it, but take it. This American television progams. Presumably is in order to give, not their evidence, the popular success of the latter will rub American television. The but their “testimoany”. Security for a loan off on them. They therefore have their witness box has become becomes “collateral” and losing litigants characters speak of “fixing” breakfast or the “stand”, and witnesses “appeal a decision”, instead of against it. a drink, of automobiles and “cookies” and don’t go into it, but take Inexperienced counsel in a Melbourne addressing each other as “buddy”. court has been heard to turn to her At last, it will receive the imprimatur it. This is in order to opponent and say “your witness”. Any of of being used on the news bulletins and in give, not their evidence, these things may be heard nightly on our newspapers and it is accepted, at first self- but their “testimoany”. news services, simply because the script consciously, then brazenly. writers and readers and reporters have Thus, to make things sound more Security for a loan an unvaried diet of American television. serious or dramatic, they borrow from becomes “collateral” and The makers of Australian drama which American news services “heist” for rob- losing litigants “appeal feature court-room scenes have barristers bery, “hike” for rise (in prices), “slammed a decision”, instead of wandering around court, too, while exam- into” for crashed, and “deal” for agree- ining witnesses, or addressing juries or the ment (and, worse, “cut a deal”). Pervasive against it. Bench. Barristers and solicitors are not to American usages appear almost overnight, be referred to as such any more, either, as with the impertinent reference to peo- apparently, but simply as “lawyers”. Well, ple simply by their surnames: even an John Howard” has been observed above. they are, of course, but so is everyone from eighty-year-old nun will be mentioned as “Rod Laver Arena”, too, though, was first the Chief Justice of the High Court down “Smith” (just look at The Age). There have commented on, then joked about, then to the most junior articled clerk, and usu- even been examinations on American tele- accepted. “Hamer Hall” has since followed. ally a more specifically descriptive term vision of the disappearance of finite verbs: It has always been The Robert Blackwood is needed. Firms of solicitors now more listen to any voice-over on a commercial Hall at Monash University — now the defi- and more call themselves “Smith and Co., station”s news story in the evening, where nite article is invariably omitted. So, too, Lawyers”. it has been copied blindly, “John Smith we are served up “A spokesman for Royal It is extraordinary, really, when it is meeting the P.M. today — health, educa- Melbourne Hospital”; “that was played by thought about in cultural terms, that tion and transport among the topics dis- pianist John Lilf”; “Mining giant CRA today games which are not even played in this cussed”. It is a sort of pidgin English. issued ...”; “... took place in Bourke Street country (or by hardly anyone), and all that We have a definite etiquette when Mall today” (which should be pronounced popularly surrounds them, intrude upon referring to or addressing public figures. with a short a — not Maul, to rhyme with our language. It is not enough that people It has changed somewhat since the sev- wall: see the false analogy, below). of all ages wear baseball caps (which are enteenth and eighteenth centuries, but we It was a long struggle on the ABC news singularly ill-suited to keeping the sun off simply do not address the head of govern- to get rid of the introduced “protest” as a the back of the neck in our hot country) ment as Mr Prime Minister, just because transitive verb. Of course, it does take a and windcheaters which proclaim in huge all the television interviewers have been direct object when meaning to proclaim letters that the wearer plays grid-iron or brought up on “Mr President”. He is or maintain (as in, protest his innocence), basketball or baseball or some such thing addressed as “Prime Minister”, just as the but the Americans use it so that it must for a team no-one here has ever heard of. head of a State government is addressed have an almost opposite meaning to what They are also starting to inter-lard their as “Premier” and any other member of they intend, as in “the angry crowd pro- speech with “time out”, “out of left field”, the government as “Minister”. Similarly, tested the law/ the government”s action/ “first base”, “ball park” (as in, e.g., figures), just because they talk of “President Bush” the dictator’s visit”. “touch base” and “hard ball”. Dressing there is no such person as “Prime Minister The ABC, amongst others, though, has

59 not rid itself of the trans-Pacific perni- thing. Indeed, so much American misuse boxes — and, incidentally; losing clues cious misuse of verbs. They would have of the language is through sheer igno- as to the historical development of the it that, in the Olympic Games, “X placed rance. They have never had what could be world”s richest language. “Catalog” and third”. regarded as an authoritative touchstone “dialog” replace our spellings, but to what Verbs as to what was correct or acceptable. On end? If people can’t master catalogue, why the contrary, there were a number of early not introduce “rondayvoo”, as well? When The North Americans will not acknowl- Americans who consciously set out to verandah and yoghurt were borrowed, edge that there are transitive (which take “create” an American language. Webster, they were transliterated into English in a a direct object) and intransitive (which for example, of dictionary fame, became way that attempted to reproduce the way don’t) verbs. Perhaps this has something part of the American search for identity. they were pronounced (the latter, by the to do with their deep dislike of the passive His is a standard reference in North way, has a short o). Why strip away the h voice. In the above example, they could America, to be sure, but not of a brand as the Americans do? simply say that X came third; but as it new language, such as Esperanto, but of A few years ago, the comedian, Shaun stands, one is left asking, X placed what a mangled English — an English shorn of Micallef, called one of his television series third? If they insist on using that verb in “The Micallef Programme”, and said in the sense they mean, they must say “X the first episode that it had been spelled was placed third”. “The way the ABC spells it — the French They do not use the perfect tense, English reveals its way”! This illustrates the extent to which either, but only a simple past tense. They Germanic origins in its our language has been Yankified. It is will not say, for instance, “I have seen it”, vowel changes. It might the French spelling — just as catalogue but only “I saw it”. Both exist in English, or aide or restaurant are — but then it but they have different nuances and be jump and jumped, but is originally a French word. “Program” thus different uses. The latter, simple it is also run and ran. has all but swamped us now, but it is past, would have a speaker of English Swim, swam and swum, merely another example of our friends” (as opposed to American) adding some- pruning. thing further, or else instinctively asking, for example, add an extra “Oh, when?” Americans will say, “I just dimension, as the second You SAY “OO”, I say “you” arrived”, instead of “I’ve just arrived”; is the simple past and the “u” (and eu) is usually pronounced in “You forgot me already?” instead of “Have last the past participle. English as “you” (as in dune or thera- you already forgotten me?” or “We already peutic). Americans pronounce it “oo” did that” (apart from American television, — although, even then, they can use the watch SBS sub-titles for this and other perceived unnecessary “excrescences”, of other sound if they want to: as in beauti- Americanisms). Perversely, though, they otiose letters and spellings. What we might ful, music, fabulous and, well, you; but the are addicted to “gotten”! regard as innocent evidences of evolution, lazy American pronunciation is creeping Apropos of which, they have great dif- development and origins of language were in here: overnight we have, “nood”, “mar- ficulty with the spelling of past tenses. pruned away piecemeal, to reduce words soopial”, “melalooca”, “pharmacootical”, English reveals its Germanic origins in its to a just-recognisable, but stripped down, “psoodo”, “egzooberant”, etc. Sometimes vowel changes here, as every small child simplicity. Simple words for simple folks. there is a half-way house: on the ABC learns. It might be jump and jumped, but However, even this was by no means news, “Attack on the US Consuhlate on it is also run and ran. Swim, swam and consistent nor always logical. “Ax” lost the Arabian Peninsuhlar”. As with all swum, for example, add an extra dimen- its “e”, but not hoe — perhaps a trio of sounds in language, what we hear every sion, as the second is the simple past such implements would have seemed too day begins to sound normal, even if it is and the last the past participle. Perhaps festive to Puritan farmers. Why use two l’s incorrect or of only relatively recent intro- because, as just seen, the Americans in, say, “travelers” or “jewelry” (which lost duction. Our parents and grandparents do not like using the perfect tense, and an e, too), when one could do the work never said “nood”. Pronounce it “nyoud” a therefore not the past participle, they mix of both? It would have been logical to few times and it will sound normal again. up the vowel changes between these and omit one of the l’s in their beloved billion, Americans use the “oo” pronuncia- the simple past. So, e.g., they say “They though, surely? One might have thought, tion anyway, but it is sometimes difficult sunk the boat”, and blaze forth the film too, that the phonetic s would have been to know when they are adopting a par- title, “Honey, I Shrunk the Kids”. They used for both verb and noun in “licence”, ticular pronunciation simply as a result have even invented one, thoughtlessly but they chose the “c” even for the verb. of their frequent “false analogy”, itself a employed here, “snuck”, for sneaked. Why oddly manipulate the word to give consequence of ignorance. In English we They also have great difficulty with the “maneuver” (thus only partly eliminating occasionally use a different pronunciation verb to lie: “Lay down!” and “I was laying the French origin), instead of going the through force of circumstances. So, one on the ground”, have made some inroads whole hog and coming up with “manoo- cannot sensibly very easily use a “you” here. We say come and see, not “come ver”? Similarly with “mustache” — if you sound after the letter r: thus, rude, brute, see”, “go visit”, etc. are going to drop the “o” and stress the etc. — but that is not a template for all Spelling first syllable, why not make a proper job words with a u in them. That is to say, of it and give the world “mustash”? We say “nood” doesn’t of necessity follow. It is not just in the case of vowel changes aeroplane, not “airplane”. However, it is amazing how often that they mis-spell past participles. It is akin to tearing off “useless” archi- Americans do use the false analogy: they “Traveled” loses an l, presumably because tectural frills, such as wrought iron lace- think that they see the word “iron” and so it is simply regarded as too much of a good work, leaving stark, utilitarian concrete pronounce irony “ionee” and environment

60 “envionment”; they think that they see the with, say, blouse and carouse. Why the A Miscellany word “tire”, so they say “entirety”. This is Americans refuse (cf. refuse as a noun) to There are so many American words, so strong that it even leads them to ignore see this is a mystery. They almost always expressions and general usages which other vowels that are present: caramel is pronounce an s as a z (although, it is true, were once so foreign, so obviously, almost usually pronounced “carmel” and anyone not in mouse) - including when employ- aggressively, peculiar to the United States, who has seen the film “Gentlemen Prefer ing “use” as a noun. Then, of course, which are now either firmly rooted in the Blondes” will recall Marilyn Monroe pro- their perversity shows itself and they say rest of the English-speaking world, like nouncing her friend’s name throughout “housses”! linguistic capeweed, or are lurking, like as “Dorthy”. The second syllable of com- We pronounce an “x” as an “x” - in cane toads on the periphery of Darwin: post, of course, indicates a pole, so the example, through a transmogrification • “Billion” is almost a lost cause now. It is Americans give it a long o and they have due to a similarity of sound, something not just that English and American had long detected a bovine presence in the akin to “egsample” has emerged. Creeping different names for the same thing, and Russian capital. in lately, though, is the American “egzit” that we supinely adopted theirs — as One aspect of pronunciation which , “egscurzhon” and “egzile” (exit and it might be with footpath and sidewalk. seems to cause all sorts of difficulties “excurshion” and exile are surely not too No, we had a separate meaning for bil- these days is that of emphasis. If we think difficult to retain). lion: it actually means a million mil- of any polysyllabic word, emphasis must On the subject of s’s, it always seems lion, as opposed to a thousand million, be placed somewhere. In English it is gen- so odd that Americans cannot accept a which is the American, and therefore erally placed on the first syllable of a word compound plural for what it is and must now our, meaning. Americans, of — but not always. For various reasons (to add an additional s: as in “accommoda- course, talk of “a trillion” when they do with the origin of the word, or the part tions”, “medications” and “protections”. mean a true billion — Heaven knows, of speech it is being used as or for reasons They also like to sprinkle s’s around gen- in the case of money, the latter is big now quite undiscernible), we sometimes erally, as in “anyways” and “for Heaven enough, but “a trillion dollars” sounds emphasise a later syllable. This is simply ’s sakes”. quite mind-boggling. learned, picked up by ear, as are other Prepositions: these are, strangely, a • Schedule, too, is now a problem. Not aspects of speech in all societies. great bother to Americans. They don’t use just in its pronunciation (we can again Thus, in the case of many nouns them when they should, and do use them see the false analogy with the hard pro- — present, record, suspect, contract, con- when they are not called for. They often nunciation of the “ch” in school), but trast, protest, convict, attribute, conflict simply misuse them. Many Americans say even in its use. We used employ it very and so on — the emphasis is on the first “in back of” instead of simply behind; or sparingly — with them it is rampant. syllable. However, when used as verbs, the “outside of”, when we simply say outside Where we say that someone or some- emphasis moves to the second syllable. (outside the room; outside Melbourne), thing is due, they insist that they are There is no hard and fast rule in or “off of”. “skeduled”. They don’t have timetables English, either, regarding words we have However, they also omit prepositions or progamme guides, but skedules. borrowed from the French: some have when we would employ them, as with • As with billion and schedule, the word been thoroughly Anglicised, while others their use of nouns adverbially: so, “I will “trash” has a meaning in English. Iago’s have not. In massage, harassment, garage, see you Monday”— we say, on Monday; “it “He who steals my purse steals trash” e.g., the emphasis is on the first syllable. will be hot Thursday”; “she is poolside”, has the meaning of something tawdry Gerard and Bernard, too, have the empha- “courtside”, etc.; also, “Monday through or meretricious, surviving in our trash sis on their first syllables. In moustache, Friday”, “one through nine”. and treasure stalls at fetes. It does not princess, romance, renaissance, e.g, the For us, the word “in” indicates a pres- mean household rubbish. Although this emphasis is on the second. The last letter ence inside something, but “into” indi- extension of its meaning is not difficult in the Greek alphabet has the stress on cates motion. Americans do not use the to follow, it is not our usage or mean- the first syllable, it is not “omeega”. latter, hence: “he went in the room”; “are ing. Correspondingly, there is no verb People, though, should not run away you coming in the house?” Some are just “to trash”. We do not have trash or gar- with the idea that at least with the idiomatic: we would say he should be at bage cans, but rubbish bins or dustbins. Americans it is all consistent. Not at all. school — the Yanks say “in” school. Precinct, too, is a perfectly valid word In all of the above examples of emphasis, Very likely. Most adverbs in English in English, but usually used in the plu- the Americans perversely employ the very are formed by adding “ly” to the adjective. ral and to describe the immediate envi- opposite of our usage. When the adjective itself already ends rons (often enclosed) of something: as So, too, in adult, aristocrat, pergola and with those letters, it can be seen to call for in the precincts of the court. Now we formidable, where the emphasis is prop- a slight adjustment in usage. That is why are told we have pedestrian precincts, erly on the first syllable, and in estate, in English we have always avoided likely the Greek precinct, the legal precinct, robust, research and laboratory, where it as an adverb. We say “it is likely that ...”, and so on. It used be associated for us is on the second, the American perversity or “It will probably ...”. Creeping in now, with, say, the New York police, but now would have the opposite in each case. though, is another Americanism picked these “precincts” are everywhere. As “S” & “X”: Sometimes in English we up from the television, “The war in Iraq for “down town” (as in “down town pronounce an “s” as a “z”, but mostly not. will likely continue ...”, “She will likely Melbourne”) — what on earth does it We need only consider the differences in come ...”. mean? Why do people use it when none “close” used as an adjective or as a verb, or Another excruciating imported adver- of us ever has before, and what do they “use” as a noun or a verb. Contrast mouse bial expression is “any time soon”, as in wish to convey by it? and spouse (depending on the individu- “The war in Iraq will not end any time • Other Americanisms are not irrational, als concerned, the plural can be “spice”) soon”. either — it is just that they are not a

61 part of our own language. The above- “situation comedy” series, hence our (although we do have “swim-centres”) mentioned sidewalk, fall (for autumn), inundation by it — of asking the boss and “waitrooms”? Speaking of waiting, perhaps even cookies, make reasonable for a “raise”. We can’t even properly we do so in queues, not “lines”. literal sense. However strictly logical a translate it as a “rise”, because the • We use full stops, not “periods”, and case one may make for it, though, why usage did not really occur in English. exclamation marks, not “points”. must the lifts in Owen Dixon Chambers We would just speak of more pay, or • Status and data have a long a (as in tell us that they are “elevators”? Why higher wages. Almost as frequently base) — nor is the latter darta. Era can they not announce the first and paraded before us on the screen has takes a long e, and is not “error”. second floors, and so on, and not “level been the spectacle of Americans “quit- Nobody has trouble with paediatrician, one”, etc.? At least they recognise that ting” their jobs (presumably when they so why omit the diphthong from paedo- our ground floor is not the first floor, as don’t receive a raise). The verb to quit phile and pronounce it with a short e? it is in the good old U.S. of A. in English was borrowed directly from That would be a foot fetishest. • Motor vehicles have a whole separate the French and followed their usage: North American lexicon to themselves: i.e., to physically leave somewhere, Wrong? a bonnet is a “hood”, a bumper bar as in “he quit the room” or “he quit For those who say that the Americanisation a “fender”, a boot a “trunk”, a wind- Melbourne”. It has now largely fallen of English is inevitable and/or desirable screen a “windshield”, and so on. To into disuse, although in the law we still how does one deal with the situation of mend some of these they turn a span- speak of notices to quit. However, we the American usage being not just differ- ner into a “wrench”. Petrol, of course, resign from employment (and there ent, or arguably ugly or misconceived, but is “gas”. “Trailers” mean something dif- are other idiomatic expressions). It is outright wrong according to our usage? ferent to us — they are not caravans. not difficult to see the evolution of the So, for example, in English alternative • The adjective “mean” (close with American usage — it is just that it is means, strictly, the other choice (of two) money) has become, in American, not ours, at least, not until now, when but has come to mean simply another unkind or unpleasant. “Cute”, an even the ABC news tells us of ministers option. Alternate, however, whether used abbreviation of acute, and originally “quitting”. From American television, as an adjective or a verb, means (of two), employed in relation to children to too, the use of “honey” as an endear- first one then the other. The meanings of mean precocious (as in describing ment has oozed into our culture, and the two words are clearly quite different someone like Shirley Temple as being “Hi, honey, I’m home!” is an American and are not interchangeable. Americans “cute”), metamorphosed into mean- cultural cliche. “Pooch” and “mutt” for use alternate (stressing the first syllable ing sweet and, now, even good-look- dogs, as well: what on earth is the deri- of the adjective) when we would say ing. Children, cute or otherwise, until vation of those? “Critter” is presumably alternative: e.g., “he took the alternate very recently stayed the night with a a backwoods’ contraction of creature. route” (pronounced “rout” — see above friend. Now they have “sleep overs”, “Drugs”, for medicines, has been heard re the inconsistency in pronunciation of imported from America. It is amazing, on ABC radio. We could do with a cup borrowed French words). too, that just because teachers (and of tea or do with a change of scenery Or, when the American pilot announces parents) in Australia watch American — Americans could “use” one. to his passengers impatient with the delay television, they have introduced, over- • The ABC news blindly parrots the in taking off, “We will be in the air momen- night, “graduations” for schoolchildren American “travel advisory”— advisory tarily” (with full equal stress being given instead of speech-nights, “principals” what? Do they mean advice? They to each syllable), he will cause alarm in instead of headmasters or headteach- have also adopted willingly “military” those who speak English and take him ers, “canteens” instead of tuckshops, as a noun: “the US military in Iraq”;”A to mean “for a moment only”, but will “grades” instead of marks and so on. spokesman for the Australian military” reassure those who speak American and Soon it will be “flunk” instead of fail, if — military what? Do they mean armed understand him to mean “in a moment”. such a concept still exists. So pervasive forces, or, more specifically in given There are usages adopted here is the American cultural iconography, circumstances, the army or navy? We with alacrity that are new even to the and the apparent need here to identify also have served up the dreadful “tour Americans. “Titled” simply means some- with what is seen daily on the screen, of duty” and reporters pronouncing thing has a title — but it is entitled that advertisers in Australia of neces- the rank as “lootenant”. On the unfor- such-and-such. The former is displacing saries for the beginning of the school tunate occasions when there is a rail the latter, even though many Americans year employ on our television anima- collision to report, we call it a goods still use entitled correctly. Similarly, spell- tions of those rather oddly-shaped train, Americans a “freight train”. They ing adviser with an o is making ground, yellow school buses which are evi- will hopefully instead stop at railway dently the norm there, but have never stations, or just stations, not “train sta- been so much as sighted on our roads tions”. (although how long it will be before • Participles used as adjectives have It is not difficult to see the they are introduced is anyone’s guess). been savagely attacked. Leading actors evolution of the American In Victoria, at least, State schools or have become “lead” (although hope- usage — it is just that it is Government schools are not and never fully not leaden) actors, and there are not ours, at least, not until have been “public” schools as they are corresponding “lead” roles; driving in America (and New South Wales).We schools are “drive” schools, finishing now, when even the ABC have the Associated Public Schools. lines “finish lines” and frying-pans “fry- news tells us of ministers • There is the very odd usage — and the pans” : but riding clubs have not been “quitting”. subject of a thousand plots of American unseated; and why not “swim-pools”

62 although, again, it has not been fully on SBS. Fairly recently The Age changed up”, although the Spaniard or Dane speak- adopted even on the other side of the its century-old spelling of “color”, “flavor”, ing on the screen didn’t say that (inciden- Pacific. It is ludicrous to see in Melbourne etc., by inserting a u. Very well (although tally, the guidelines given to the sub-titles “Financial advisors” plastered across a spelling such words without a u was of must insist on the politically correct “Ms”, building, even when an older sign cor- fairly long standing, in an old-fashioned as it is always used, even if the German or rectly stating “advisers” is still in place way, in English-speaking countries, pre- Frenchwoman referred to was quite dis- beside it. sumably on the understanding that it was tinctly called Frau or Mademoiselle). more Roman). However, this was simply Should our usage be entirely changed, cosmetic and overly obvious. Every other submerged, superseded by what we have Americanism mentioned here has been hitherto regarded as incorrect, for some Should our usage adopted by The Age with a vengeance. reason? Why? We just need to be a little be entirely changed, SBS’s translators invariably insist on such conscious, a little aware, a little thought- submerged, superseded things as “that could turn on a dime”, “he ful before we speak, to retrieve what we by what we have hitherto was attacked in the parking lot” and “wise once had. regarded as incorrect, for some reason? Why? We just need to be a little conscious, a little aware, a little thoughtful before we speak, to retrieve what we once had. Goodbye Regina? There is no such thing as “at age 12”. It is “at the age of”, or, possibly, “aged”. David Ross QC We seem to lose some of the variability, nuance and richness of our own language when we unquestioningly adopt, say, “I wo States have now farewelled the way would be to enact alterations to the guess”. It is used indiscriminately here Queen from criminal cases. They Schedules in the Crimes Act similar to the now, as it is in North America. However, Thave replaced the Queen with the Western Australian model. Check their it displaces everything from “I suppose”, name of the State. The first was Tasmania. Schedule and form your own conclusion. “maybe” and “perhaps” to “I think” and The technique used was a simple one. The simple question, however, is how “I believe”. If we ever wanted to express They amended their Criminal Code in wedded are we to having the Queen in the idea of speculating, we would gener- 2003 by enacting “‘Crown’ means the our criminal courts. Imagine Victoria v ally stress it by saying “I would hazard a State of Tasmania”.1 Brown. The prosecutor would announce guess”, or something along those lines. The second was Western Australia. an appearance for Victoria or perhaps for All of the above words and expressions In recent times the parliament made the State. In directions to the jury the are to be jettisoned now, it would seem, far-reaching amendments to the criminal trial judge would sum up Victoria’s case. even when we are trying to communicate law. One new piece of legislation was Are you aghast? Tassie and WA aren’t. an educated opinion or deeply-held belief. Criminal Procedure Act 2004. Schedule They’re handling it with real style. And All are to be replaced with “I guess”. 1 clause 3 (3) says this: “An indictment I don’t think the Queen would give it a We had in English, too, the idiomatic “I must be commenced in the name of the second thought. She may heave a sigh of reckon”. Elsewhere they use the strangely State of Western Australia”. relief. equivalent “I figure”: but the latter is not Look at a few cases in the law reports And for my part I suppose I’ll now have ours. It is an invader. We do not “figure” to see how it works. First, examples from to become VC: Victoria’s Counsel. things out, we work them out. Tasmania. Some are rulings by trial judges. Once upon a time, the ABC, like the Tasmania v Farmer 2 was on admissibil- Notes BBC, and the leading newspapers of ity of evidence. On the fitness to be tried 1. Criminal Code (Miscellaneous Amend- record, could be turned to for a fairly is Tasmania v Drake.3 ments) Act 2003 section 4 (a). authoritative adjudication. The script for, Now Western Australia. A District 2. Tasmania v Farmer (2004) 148 A Crim R say, the Channel 10 News might sound Court case became important because 99 (Slicer J). as though it had been written by a Los the accused reneged on a promise to 3. Tasmania v Drake (2006) 160 A Crim R Angeles advertiser, but the ABC was give evidence against another accused in 240 (Evans J). just quietly there in the background get- Western Australia v Maharaj.4 And what 4. Western Australia v Maharaj (2004) 36 ting it right. No longer. They now quite about Western Australia v Dick where SR (WA) 52 (Februry DCJ). actively seek to pursue the lowest com- there is a careful ruling on the phrase 5. Western Australia v Dick (2006) 161 A mon denominator. If one wishes to see all “in company”.5 Appeals were Krakouer Crim R 271 at 279 [37] (WA, Johnson J) that is American run riot and foisted upon v Western Australia6 and Houghton v 6. Krakouer v Western Australia (2006) 161 our culture (and if the nightly viewing Western Australia.7 A Crim R 347. on Channel 9 is a little too much to ask), In Victoria it would be so simple to 7. Houghton v Western Australia (2006) 32 simply read The Age or read the sub-titles replace the Queen in a criminal case. One WAR 260; 163 A Crim R 226.

63 News and Views Bar Readers Signing On

n Thursday 24 May 2007, the 48 people who had successfully com- Opleted the March 2007 Readers’ Course signed their respective Rolls — the 46 Victorians, the Victorian Bar Roll; Tom Lowman and Alain-Frederic Obed, both from Vanuatu, the Roll of Overseas Counsel. The Bar thanks the Chief Justice and Judges of the Supreme Court, the Chief Executive Officer of the Supreme Court, Michael McGarvie, and the Librarian, James Butler, for the privilege of holding this ceremony, once again, in the magnificent Supreme Court Library. This is the second signing we have had in the Supreme Court Library — the first was last year, on Thursday 9 November 2006. Until then, at least for the past several years, Readers had signed the Roll in the presence of the Bar Council in the Bar Chairman Shand addresses the Bar Council seated in foreground, Council Chamber. readers. signing at the central library table, the The greater formality and inclusivity Chairman congratulating a reader. of the ceremony in the Supreme Court Victoria has been admitted as a Barrister Library has been well received by the last and Solicitor of the Supreme Court of two groups of Readers, their mentors, and Victoria. The most recent statute govern- those of their family and friends, who have ing the practice of law in Victoria, the been able to attend. Legal Profession Act 2004, substituted, Signing the Roll of Counsel is a sig- prosaically, admission as “a lawyer”, but nificant professional milestone. It is also with the same effect. a matter of personal commitment — per- In other words, so far as the statutory sonal commitment to the independent Bar framework is concerned, there has been and the role of an independent Bar in the no distinction between barristers and administration of justice in this State. solicitors in Victoria in relation to admis- For more than a hundred years, since sion, and the right to practise as one or the the Legal Profession Practice Act 1891, other, since 23 November 1891 when the every person admitted to practise in Legal Profession Practice Act 1891 came

The Chairman congratulates Andrea Lawrence. Anand Naidu (partly obscured) signing the Roll with Honorary Secretary Penny Neskovcin.

into force. On that day, every person who had been previously admitted as a barrister was deemed to have been admitted as a solicitor, and vice versa. A Bar Association was established in December 1891, based on each applicant for membership declaring in writing that he would practise exclusively as a barrister — in substance, the very undertaking required now. The December 1891 Bar Association Readers after the signing, holding practising certificates. lasted about two months. It was

64 cal information and quotations are drawn, concludes that between February 1892 and the establishment of the Committee of Counsel in June 1900, and of the Roll of Counsel in September 1900, barristers continued to practise as such, but without any formal organisation. From 21 September 1900 when, amongst others, Sir Frank Gavan Duffy, Sir Henry Higgins and Sir Hayden Starke (all later of the High Court) and Sir Leo Cussen (later of the Supreme Court) signed the The Chairman making a presentation The Chairman congratulates Alison Roll, this Bar has existed on the basis of to Alain-Frederic Obed from Vanuatu. Sampson. the personal undertaking of each member to practise exclusively as counsel. denounced in the Parliament and in the oughly deplored the Bar’s action.” On 4 On behalf of the Bar Council, the press as a “conspiracy for the purpose of February 1892, the Association dissolved Chairman, Michael Shand QC, welcomed defeating the Act”, of “a desperately and itself. the forty-six new members to the Bar, thoroughly despicable character”, and as Sir Arthur Dean, in his History of their signing the Roll having perfected “this newest form of Communism”. The the Bar of Victoria, A Multitude of their undertaking and made them mem- Attorney-General of the day said he “thor- Counsellors, from which the above histori- bers. So You Want to be a Judge?

hen the young lawyer just out The 10 page application forms for the Local bar associations also evaluate of articles stands in the Banco superior and appellate courts are avail judicial candidates. WCourt and swears, or affirms, able at his website, and contain 61 The comment form asks about the that he or she “will well and properly questions, ranging from the number of candidate’s professional ability, experi- demean” himself or herself (or whatever years of civil litigation or criminal prac- ence and reputation, judicial tempera- the modern version of that oath may be), tice experience, to community service, ment, work ethic and bias. he or she looks up with awe and wonder at to number of languages spoken. Sitting A team of two evaluates candidates those superior beings gracing the judges wishing to be elevated to the for the superior court; teams of four do Bench. appellate bench answer different ques- the vetting for the appellate bench. Each A little later in life, particularly in the tions and submit a different form. candidate is interviewed by one team. case of those who come to the Bar, the The governor has local vetting com- Anyone who submits a negative nascent ambition to join the judiciary mittees in many counties that do their comment receives a phone call for cor- comes to the surface and most of us, own screening. Their proceedings are roboration and the candidate has an consciously or subconsciously, would secret. opportunity to respond. like to receive an offer. Later in life, The governor then sends the appli- After 90 days, the entire commission offers of judicial office are made to some. cation to the Commission on Judicial submits a summary report to the gover- Many decline. Others accept. Some of Nominees Evaluation (JNE), a group nor, with one of four ratings: exception- those who accept find that they thrive of up to 38 people, who evaluate each ally well qualified, well qualified, qualified in the relatively regulated atmosphere of applicant: The commission is an agency or not qualified. Any candidate found not the Court. Others, it seems, desperately of the State Bar, created by statute. The qualified has the right to appeal. miss the freedom and creativity of life at evaluation process, described by one All JNE proceedings are confidential the Bar. commissioner as daunting, is different and commissioners do not make public If the system of judicial appointment for the trial and appellate courts, but the ratings or the basis for the ratings for in California, as described in the April applicants are asked to submit names the trial courts. issue of the California Bar Journal, of 75 people who know them well, as Helen Zukin, a former chair, said JNE were transferred to Victoria, it might well as everyone they’ve litigated with or balances two interests — those of the well put a damper on ambition and cause before or against. candidate and those of the people of many of the best potential appointees to The commission independently seeks the state who are entitled to a qualified set their sights firmly away from judicial input from district attorneys, public judiciary. “We want to be very, very care- office. defenders, judges and attorneys in the ful so there isn’t an error and someone is If you want to become a judge, here’s same practice area. If the county is small, foreclosed” from a judgeship, she said. how it works. Any lawyer in good stand- every lawyer who practices in the county The ultimate appointment power ing with 10 years of practice may submit is asked for input. The goal is to receive a rests with the governor. an application to the governor’s office. minimum of 50 random responses.

65 News and Views Readers from Vanuatu

Will Alstergren

The Victorian Bar celebrates its 99th and 100th readers from the South Pacific Region and Ludlows presents the South Pacific Region readers with their own robes in celebration.

n March 2007, Tom Loughman and Alain-Frederic Oben became the I99th and 100th lawyers of the South Pacific Region to attend and complete the Victorian Bar Readers’ Course. The Victorian Bar Readers’ Course started in 1978 and within eight years lawyers from the South Pacific Region began attending the course. The first lawyer from the South Pacific Region to attend the Readers’ Course was Robert G. Aisi who was from PNG and attended in the 1987 Readers’ Course. Since then there have been 74 readers from PNG, 13 from Indonesia, 18 from Vanuatu and 5 from the Solomon Islands. Many of those ended up being public prosecutors or defenders. Barbara Walsh, the Manager of Legal Education and Training, was the first coordinator of the program and worked with the late Robert Kent QC to develop strong relationships with the law societies and organizations of the South Pacific Region. Barbara has also organised and managed over 20 of advocacy workshops in the South Pacific Region. Barbara has worked extremely hard Will Alstergren, Andrew Tolley (Ludlows), Alain-Frederic Obed, Tom Loughman to ensure that the South Pacific Region and Debbie Morris (Legal Education Officer). readers are well taken cared of and learn a great deal from the Victorian Bar Readers’ Course. Barbara’s role as the Victorian Bar’s legal education officer has now been taken over by Deborah Morris. Barbara continues to run the workshops to the South Pacific region, having already completed a workshop in Fiji in January. She has organised the next workshop with Ian Hill QC as leader to PNG in July. In the case of Tom Loughman, he is from a Public Solicitor’s Office doing civil Alain-Frederic Oben, Tom Laughman cases and defending accused in crimi- Tom Loughman, Alain-Frederic Obed, and Will Alstergren (making nal cases. Tom’s brother attended the Jason Pennell and David Shavin QC. presentation to Vanuatu readers).

66 Victorian Bar Readers’ Course in 2001. long list of volunteer members of Counsel larly the readers in the last few years. He Alain-Frederic Oben works in the Public and the Bench who contribute to the has hosted, on a number of occasions, a Prosecutors office as a prosecutor. Tom course every year. readers’ function to introduce them into Loughman read with Will Alstergren, The course was co-ordinated with an what has been described as the best advo- and Alain-Frederic Oben read with Jason enormous amount of professionalism by cates, outfitter in Australia. Andrew was Pennell, both on the 18th floor of Owen Deborah Morris, with the help of Barbara always concerned that Readers from the Dixon West. Walsh. South Pacific Region did not have the By all accounts both readers enjoyed ability to be able to purchase wigs and their reading period and found the course Ludlows help celebrate the gowns for appearances and often had extremely instructive and useful. Both advocacy training for South to share them in their home countries. lawyers’ advocacy improved dramatically Pacific Region Lawyers Accordingly, Andrew has offered to give during the time as a direct consequence Andrew Tolley, Managing Director of each reader who attends the Victorian Bar of the enormous amount of help that each Ludlows, has been extremely helpful and Readers’ Course from the South Pacific reader receives during the course by the generous towards the Bar and in particu- Region a free gown, bar jacket and jabbo.

Jack Fajgenbaum QC, John Digby QC, Paul Lacava S.C. and Paul Elliott QC.

Tom Loughman and Alain-Frederic Oben were provided with their bar jackets and gowns at a recent function on the 18th floor of Owen Dixon West. Both Alain and Tom were incredibly proud of the opportunity to attend the Bar Readers’ Course and of having their own bar jackets and gowns to take back to Vanuatu. Tom, in his speech to his fellow readers with members of counsel present, thanked Ludlows, the Bar Readers’ Course, his fellow readers and particularly Deborah Morris for Will Alstergren, Michael Shand S.C. (Chairman, Bar Council) and Peter Riordan her incredible efforts during their three- S.C. (Senior Vice-Chairman, Bar Council). month stay.

67 News and Views The Trial of Ned Kelly — Revisited

Paul Elliott QC

In May 2000 under the auspices of the now defunct Bar Theatre Company, the Bar wrote and produced a play concerning the trial of Ned Kelly. Following the theatrical production of the actual trial, a re-trial was conducted to see whether Ned could have been acquitted.

icholas Harrington directed and co-wrote the play with Tom Wright. NThe then Chief Justice Phillips, having written a book concerning the trial of Ned Kelly, was of great assistance in allowing the production and re-trial to take place in the Banco Court. The Winter 2000 Victorian Bar News contains many photographs and a detailed description of the play and the re-trial. The production was part of Law Week 2000. Because of the limited number of seats available in the Banco Court, many members of the Bar were unable to attend. For many years there has been a number of requests for the video of both performances to be shown in the Essoign Club to a wider audience. Therefore after much prevarication about the quality of the videos and threats of legal proceedings, it was arranged for the videos to be shown at the Essoign Club during Law Week of 2007. But what could not have been fore- seen, in the period between production and re-presentation, was the demise of two leading members of the cast. Therefore it was fitting that the dinner in the Essoign Club in May of 2007 Director Nick Harrington and former Chief Justice Phillips. was dedicated to the memory of Douglas Salek QC and Michael Rush. Michael Rush Kelly before Justice Redmond Barry. In in full remission of the lung cancer that was a Ned Kelly expert. He was one of the the second act he had to undergo the had caused one of his lungs to be removed driving forces behind the production with experience of being cross-examined by approximately a year prior to the per- his detailed knowledge of the Kelly story Michael Rozenes QC (as he then was), formance. Although Douglas was battling and the trial. Even though he had never which was a somewhat more testing time cancer at the time of the production, his acted before, he gave a professional per- than the cross-examination of Kelly’s portrayal of James Gloster, witness for formance as Constable Mclntyre, the chief actual counsel, Bindon (effectively per- the prosecution, was pure Salek. During prosecution witness. His performance was formed by Jim Shaw of the Bar). the course of rehearsals he engaged not memorable because in the first act of the Although in 2000, Michael Rush had only the director, but numerous members production he had to act out the actual no knowledge of the cancer that eventu- of the cast, in a constant dialogue as to evidence of the Constable at the trial of ally struck him down, Douglas Salek was the nature of the accent he was to use.

68 Should it be Somerset, Devon, Dorset is a chilling historical fact that when Kelly Nicholas Harrington addressed those or Cornwall? He listened to multi-vari- informed Barry that he would join Kelly present at the dinner concerning the ous tapes before settling upon a Devon very soon in another place, some few difficulties involved in writing the script, accent, much to the relief of the cast. days after Kelly’s hanging Barry died from directing barristers, and organising lights, It was an emotional experience to see blood poisoning caused by a carbuncle in costumes and make-up in the Banco Court. both Michael and Douglas performing his neck, which troubled him throughout He paid tribute to Doug and Michael and on the video shown in the Essoign Club the trial. to the assistance of the producer Richard in 2007. It brought back memories, not The retrial highlighted the adversarial Bourke who is now in America, and his co- only of their friendship and professional skills of Julian Burnside QC prosecuting writer Tom Wright. talents, but also of the good humour, fun and banter that they brought to all around them during their lives. The dinner and showing of the video was part of Law Week. Those who attended the function, who had not seen the production before, agreed that the standard of acting in the first act and the standard of advocacy expressed in the second act were extremely high. It was Rohan Hamilton, Cahal Fairfield and Paul Lacava S.C., Judge Michael good to see former Chief Justice Phillips Stuart Rowland. Strong and Ross Nankivell.

Rohan Hamilton, David Pannifex Richard Vabre, Simon Wilson QC, Mark Robins and Paul Elliott QC. Bernard Caleo, Nick Harrington and Mei-Leng Hooi.

The audience. present and full of vim and vigour. and Michael Rozenes QC defending. Many The dinner and the play owed a lot to In the first production Bernard Caleo of the actors from the first act reappeared the efforts of Professor Kathy Laster and (not a member of the Bar) was outstand- to be cross-examined in a different man- Joh Kirby of the Law Foundation who ing in his portrayal of Ned Kelly. Simon ner. Mark Robins, in playing one of the were great supporters in getting it put on Wilson QC had taken to the part of Justice witnesses, highlighted that a barrister during Law Week. The dinner and produc- Redmond Barry with great gusto. The playing a witness can be a very difficult tion were also ably organised on behalf exchanges between Barry and Kelly at the proposition to cross-examine. Justice of the Bar by Mei-Leng Hoi and Katie end of the trial sounded theatrical to many Coldrey was suitably judicial in endeav- Spencer, together with Joady Donovan of present, until they were informed that ouring to contain opposing Counsel and Law Week. It is hoped that at some time in these were the actual words used between ensure that Kelly, perhaps, got a fairer the future the Bar will be able to again put the Judge and the convicted Ned Kelly. It trial than he did the first time around. on a theatrical production of this quality.

69 News and Views Are Barristers Snobs? Richard A. Lawson

he other week, someone called me they’ll have had a disaster. And if you’ve ing meeting or an upcoming meal where a snob. It was at a dinner party. One had a disaster, they’ll have had a triumph. everybody who is likely to turn up will be Tof those dos where you’d rather be Either way, it is likely to be a tiresome, under 32: the sort of thing that frightens home watching a bit of telly. I was seated lop-sided conversation. me. It is more interesting if a Bar Notice next to an overly inquisitive woman who Incidentally, if I’ve had a disaster, I take announces a new judicial appointment. was firing questions at me constantly. a solitary stroll in the Flagstaff Gardens Here, however, special care must be exer- And my answers were only upsetting her. and repeat my cross-examination (this cised. When I stated my occupation, she scoffed time effectively) to a large elm tree. But I and said that barristers were nothing but digress. Things are no better if you bump a bunch of snobs. I was taken aback, natu- into a non-barrister. If you give them rally. But was she right? chapter and verse, they won’t know what It is convenient to I don’t think so. We aren’t snobs. It’s you’re talking about. Or they’ll think you concentrate on the lifts in just that if one is trying to make a living by need a very long holiday. Better to say Owen Dixon East. Observing speaking publicly, then displaying a con- nothing. a polite silence is the over- fident manner whilst doing so probably The result of all this is that non-bar- helps. An air of confidence, yes, but not an risters mistakenly see us as quiet, aloof riding principle and practice air of superiority. creatures who have an air of superiority. of lift behaviour. Especially So much is true if one is in court. But Apparent snobs. So what is to be done ? in East. what of other times? Here the explanation Well, if one examines how barristers is less obvious. Out of court we tend to be behave in lifts, one gets a better under- a quiet lot. We don’t walk around discuss- standing of the problem. Behaviour in lifts, On one occasion, I was heading home ing our cases. Barristers passing each by the way, is a subject which has been from chambers in the late afternoon. I other in a chambers corridor or on the neglected by social researchers. When entered an East lift at an upper floor — William Street footpath are content just to Kenneth Clark in Civilisation asked “why the second person on board. High on the exchange a nod of recognition. They don’t did the Roman Empire collapse?”, he con- back wall was a prominent, brand-new Bar want chapter and verse about your latest fined himself to a few remarks — noting Notice announcing a judicial appointment. court drama. If you’ve had a triumph, that Gibbons’ exhaustive treatise on the But, in accordance with the principle and subject had filled nine volumes. And an practice of polite silence, I said nothing. exhaustive study of how barristers behave Then we stop-started all the way in lifts would fill several volumes too. So, down picking up passengers. During this likewise, I will only make a few remarks. descent, the Notice generated a sequence And it is convenient to concentrate on of very audible responses from colleagues the lifts in Owen Dixon East. Observing a who successively entered the lift, a floor at polite silence is the over-riding principle a time, as appears: and practice of lift behaviour. Especially Two floors down: “What a good in East. Yet the silence still allows much appointment!” scope for a shifting atmosphere and mood. Another floor down: “How wonderful, The tension at 9:30 am. can become dis- my old mentor’s been made a judge!” may by 4:30 pm. Then one must consider And another: “Who the hell is he?” the numbers in the lift, the spread of sen- Then the first floor: “Not him, surely!” iority, the proportion in robes, the pres- One could tell that our “first floorer” ence of judges, the presence of bicycle had just finished a long conference in the couriers (brandishing their water bottles Essoign Club. Yet the other speakers were like Tour de France riders), the presence equally surprising exceptions to the prin- of solicitors, of clients or of a cluster of ciple and practice of polite silence. They readers. And, until recently, one needed may have been better advised to take a to consider the presence or absence of a solitary stroll in the Flagstaff Gardens. Bar Notice. I say “recently” because, lately, Speaking up can incline one’s listen- such notices — at least in East — seem to ers to the view that one is envious, bitter, be disappearing from the lifts. twisted or worse. Better to keep quiet and Richard A. Lawson. Bar Notices can announce an upcom- be mistaken for a snob.

70 News and Views Verbatim in America

rom a book called Disorder in the Witness: He said, “Where am I, Cathy?” Attorney: ALL your responses MUST be American Courts, things people Attorney: And why did that upset you? oral, OK? What school did you go to? Factually said in court, word for Witness: My name is Susan. Witness: Oral. word, taken down and now published by court reporters who had the torment of Attorney: The youngest son, the 20 year Attorney: Do you recall the time that you staying calm while these exchanges were old, how old is he? examined the body? actually taking place. Witness: Uh, he’s 20. Witness: The autopsy started around 8:30 p.m. Attorney: Are you sexually active? Attorney: Do you know if your daughter Attorney: And Mr Denton was dead at Witness: No, I just lie there. has ever been involved in voodoo? the time? Witness: We both do. Witness: No, he was sitting on the table Attorney: What is your date of birth? Attorney: Voodoo? wondering why I was doing an autopsy Witness: July 18th. Witness: We do. on him! Attorney: What year? Attorney: You do? Witness: Every year. Witness: Yes, voodoo. Attorney: Are you qualified to give a urine sample? Attorney: What gear were you in at the Attorney: Were you present when your Witness: Huh? moment of the impact? picture was taken? Witness: Gucci sweats and Reeboks. Witness: Would you repeat the question? And saving the best for last ...

Attorney: This myasthenia gravis, does it Attorney: So the date of conception (of Attorney: Doctor, before you performed affect your memory at all? the baby) was August 8th? the autopsy, did you check for a pulse? Witness: Yes. Witness: Yes. Witness: No. Attorney: And in what ways does it affect Attorney: And what were you doing at Attorney: Did you check for blood pres- your memory? that time? sure? Witness: I forget. Witness: Uh ... Witness: No. Attorney: You forget? Can you give us an Attorney: Did you check for breathing? example of something you forgot? Attorney: She had three children, right? Witness: No. Witness: Yes. Attorney: So, then it is possible that the Attorney: How old is your son, the one Attorney: How many were boys? patient was alive when you began the living with you? Witness: None. autopsy? Witness: Thirty-eight or 35, I can’t Attorney: Were there any girls? Witness: No. remember which. Attorney: How can you be so sure, Attorney: How long has he lived with Attorney: How was your first marriage Doctor? you? terminated? Witness: Because his brain was sitting on Witness: Forty-five years. Witness: By death. my desk in a jar. Attorney: And by whose death was it Attorney: But could the patient have still Attorney: Now doctor, isn’t it true that terminated? been alive, nevertheless? when a person dies in his sleep, he doesn’t Witness: Yes, it is possible that he could know about it until the next morning? Attorney: Can you describe the indi- have been alive and practicing law! Witness: Did you actually pass the bar vidual? exam? Witness: He was about medium height and had a beard. Attorney: Is your appearance here this Attorney: Was this a male or a female? morning pursuant to a deposition notice which I sent to your attorney? Attorney: Doctor, how many of your Witness: No, this is how I dress when I autopsies have you performed on dead go to work. people? Witness: All my autopsies are performed Attorney: What was the first thing your on dead people. husband said to you that morning?

71 Lawyer’s Bookshelf

being intellectually stimulating and easy assistance in understanding the codifica- Criminal Laws in to read and comprehend. tion of criminal responsibility and what Australia impact the common law will continue to C.J. King have in interpreting the provisions of the David Lanham, Bronwyn F Bartal, Criminal Code. Robert C Evans and David Wood Principles of Federal J.V. Gleeson The Federation Press, 2006 Pp v–xlix; 1–519; Index 521–526 Criminal Law By Stephen Odgers Butterworths he authors have provided a succinct Taccount of the criminal law over the Thompson Lawbook Co, 2007 Intellectual Property nine Australian jurisdictions. The text is in 263 pages, softcover a convenient compact hardcover form. In he Criminal Code Act 1995 (Cth) Collection 2007 the introduction the authors note that the Tcommenced on 1 January 1997. To Lexis Nexis Butterworths 2007 interpretation of the law by the High Court date many Commonwealth offences are has developed in a way which will have, contained in the Criminal Code Act he Butterworths Intellectual as far as possible, a uniform application 1995 (Cth) and the process of progres- TProperty Collection 2007 comprises throughout Australia despite the differ- sively transferring further offences found the text of the Copyright Act 1968, the ences between the jurisdictions that apply in other Commonwealth legislation con- Designs Act 2003, the Circuit Layouts a criminal code and those that rely on the tinues. Act 1989, the Trade Marks Act 1995, the common law. Stephen Odgers’ work deals exclu- Patents Act 1990 and the Plant Breeder’s The authors’ discourse on the method sively with the provisions of Chapter 2 Rights Act 1994. It also includes some of interpretation provides a matrix for the of the Criminal Code entitled “General extracts of the Trade Practices Act 1974 remainder of the text; one which practi- Principles of Criminal Responsibility”. relating to intellectual property. tioners and students will find helpful. Chapter 2 applies not only to all offences The work includes the Berne The authors postulate a threefold in the Criminal Code Act but to all Convention, the Agreement on Trade analysis of the anatomy of crime in Commonwealth offences committed on or Related Aspects of Intellectual Property order to solve problems more fairly than after 15 December 2001, unless expressly Rights (Trips), the WIPO Copyright Treaty the traditional approach of applying excluded by an Act. and extracts of the Australia–United the physical element (actus reus) and Chapter 2 of the Criminal Code is States Free Trade Agreement (predomi- the mental element (mens rea). To the divided into seven parts, codifying the nantly Chapter 17 — Intellectual Property first two elements, the authors add the general principles of criminal responsibil- Rights and Side Letters relating to those absence of a defence as a third factor to ity, including the elements of an offence, rights). The Collection also includes make up criminal liability. For example, circumstances in which there is no crimi- extracts of the Archives Amendment if a murder is described by reference just nal responsibility (defences), extensions Bill 2006 and the Intellectual Property to the physical and mental elements, it of criminal responsibility, corporate crimi- Laws Amendment Act 2006, together ignores the defence of self-defence which nal responsibility, proof and geographical with amendments made by the Copyright justifies intentionally killing and provides jurisdiction. Amendment Act 2006, the Intellectual exoneration. At the same time the authors The Criminal Code codifies the Property Laws Amendment Act 2006 recognise that what is often referred to as “physical” and “fault” elements, burdens, and the Trade Marks Amendment Act a defence, such as intoxication or alibi, is voluntariness including self-induced 2006. in reality a denial of a physical or mental intoxication and mental impairment. The The legislation includes amendments element of the crime and should not be Commonwealth law in relation to attempts in force as at 1 January 2007. The compi- subject to their proposed threefold analy- to commit an offence and accomplices are lation has a table of contents and each dis- sis. It is perhaps for this reason that the also codified. Terms and phrases such as crete Act also has Tables of Provisions and first chapter is about defences and the “intentional”, “recklessness” and “negli- Amendments but the work suffers from second is on provocation. gence” are defined. not having an overall index. Users should There follows chapters on homicide, The author dissects each part of check the full text of the Trade Practices personal injury, dishonesty, crimes with Chapter 2, providing comprehensive com- Act as they may require recourse to addi- diminished fault elements, preliminary ments and authority including reference tional sections to the extracts included in crimes and accomplices, all of which to the historical underpinnings of the the Collection. For instance, the consumer provide a fresh perspective compared to legislation, the “MCCOC” Report, being protection provisions extracted from the other criminal texts. the Report published in 1992 by the com- Trade Practices Act include Sections 52 Whilst the text in not exhaustive, the mittee set up by the Standing Committee and 53 but not Sections 55 and 55A and authors have succeeded in putting the of Attorneys-General (the Model Criminal only parts of other sections are included criminal law in Australia into perspective Code Officers’ Committee) to prepare a where the whole section may need to be by identifying and focusing on the ele- uniform criminal code for all Australian reviewed. ments of each crime, with references to jurisdictions. The author identifies poten- The Collection is a useful “one stop” important authorities, thus enabling both tial problems with the legislation as well repository of the statutory framework practitioner and student to develop their as providing practical examples of how of intellectual property law. Its principal research in a specific manner to reach the the statutory principles may be applied. usefulness is in conjunction with other correct conclusion. For those involved in Commonwealth texts or cases rather than as a stand alone The text has the added advantage of offences this work provides valuable resource.

72 Schools and the Law legislation and pending legislation. The greater depth of analysis so that the work related legislation includes excerpts from is now a general reference to contract law. By Des Butler and Ben Matthews the Acts Interpretation Act. The foreword Of particular use are the flow charts The Federation Press, 2007 to this volume is written by Emeritus found at the beginning of each chapter Pp 262, Softcover Professor H.A.J. Ford, AM. He reminds dealing with a substantial element of the his concise text by two Queensland us, that the Corporations Act 2001 and law of contract. The flow charts identify TUniversity of Technology academics the Australian Securities Investment and refer the reader to the appropriate provides excellent analysis of the major Commission Act 2001, which commenced paragraph or paragraphs within each legal issues confronting schools, princi- on 15 July 2001, marks a significant stage chapter dealing with particular aspects of pals, teachers and students throughout all in the operation of governments. Such each topic. This enables quick access to a Australian jurisdictions. cooperation is necessary because the particular area of interest for the user. Of The first chapters deal with “children’s Australian Commonwealth Constitution similar utility is the glossary, which also rights” and duty of care/vicarious liability did not give the Commonwealth Parliament refers to appropriate paragraph numbers issues. The authors provide a short history clear plenary powers to legislate about where further discussion of particular of the development of child rights from corporations and financial markets. Prior defined terms can be found. the Dark Ages through to their ultimate to that, cooperation had been by way of The style of the work is easy to read recognition by the United Nations in the an acting uniform of laws. The uniform with footnotes kept to a non-intrusive Declaration of the Rights of the Child accompanying the legislation was first minimum. There is frequent reference 1959 and their relationship in the current enacted in 1961. to cases and the case notes in the text legal context. They also provide commen- At the time the 1961 Act was enacted, are clearly highlighted. At the end of tary on a number of recent cases that deal it contained 399 sections. The Australian each chapter there is a list of suggested with the issues of duty of care and vicari- Company Law and Practice by Wallace further readings for those users who ous liability as they relate to students in and Young published in 1965 was con- require further reference to academic various contexts including in and out of tained in only one volume. Now the treatment of aspects of the law of con- classrooms, playgrounds and on school- Corporations Act runs to some 1,369 sec- tract. related activities outside schools. The tions, ignoring the transitional provisions Understanding Contract Law contin- issues of bullying and the conduct of third contained in Chapter 2. It is a reflection of ues to be a valuable text for students but parties are also discussed. the continuing complexity of the corporate it is also an extremely useful and easy to Statutory requirements for child safety world as well as the willingness of succes- use standard reference for practitioners in is dealt with on a state-by-state basis with sive governments to regulate the market. relation to the law of contract in Australia. the aid of graphs showing the mandatory This edition contains an important P.W. Lithgow reporting requirements of each state relat- foreword which introduces the format and ing to child abuse and neglect. Student content of the new national legislation. It misconduct including truancy, criminal also explains the investigative powers of Equity activity, bullying and harassment is also ASIC and its internal divisions. Both the By S B Thomas and V Vann discussed as well as equal opportunity and criminal and civil proceeds are discussed Lexis Nexis Butterworths Australia, discrimination within schools. and explained. The book includes a com- 2007 Finally the authors discuss the issue prehensive table of changes. Pp i–xvi, 1–283, Index 285–297 of information privacy within the educa- Needless to say this volume is an essen- tion system and the overlap between tial volume for any person who wishes to any years ago when I was a young law Commonwealth and State legislation with practice in corporations law or for that Mstudent, it always seemed that equity respect to the collection, storage and use matter the wider commercial legislation was something seen but not studied. A of “personal information”. There is fur- which necessarily relies upon incorporated sort of legal mirage shimmering gloriously ther discussion on the use of freedom of bodies. on the horizon but not actually able to be information legislation to gain access to J.V. Kaufman grasped by students or their teachers. In material. the course of studying contracts, concepts The test is written in an easy, reader- Understanding Contract of unconscionability and undue influence friendly format and will be useful to would be mentioned. Although in property teachers and principals as well as legal Law (7th edn.) law, equitable interests and assignments were studied, these concepts were always practitioners. By D Khoury and Y S Yamouni exceptions and anomalies. The concepts J.V. Gleeson Lexis Nexis Butterworths Australia, of fiduciary obligations were alluded to in 2007 company law, partnerships and employ- Australian Corporations Pp i–xxvi, 1–480, Glossary 481–485, ment law. The only substantive study of Index 487–499 Legislation 2007 equity seemed to be in relation to trusts, Lexis Nexis, Butterworths nderstanding Contract Law, and seemed to be interminable discussion Uwhen first published, was primarily of charitable trusts, 19th century wills and his edition incorporates the a general text for students in business occasionally the foibles of expectant heirs. TCorporations Act and Regulations, faculties. This work has now developed Equity was never taught as a single the ASIC Act and Regulations, the from that primary aim to be a more com- unified subject. The maxims of equity Corporations (Fees) Act and Regulations, prehensive text increasingly aimed at law would be wheeled out, referred to and the Corporations (Review Fees) Act and students and lawyers. In later editions the put back in their “box” as some sort of Regulations together with other related authors have approached topics with a odd incident of the law. Equally equitable

73 remedies were glossed over as being some- At points the judges’ individuality shines such an important part of human society. thing a successful party could expect hav- through. For example, one quote set- The book provides a readable outline of ing established a cause of action, but rarely ting out a judge’s view that sentencing the elements of Islamic family law, inherit- studied in any depth. is definitively a science is followed by a ance, banking, criminal law, reproductive It was not until the 1980s when semi- quote from another judge explaining how technology, commercial law, and general nal decisions such as Commercial Bank it is an art. However, common themes also jurisprudence, as well as the relevant legal of Australia Ltd v Amadio (1983), emerge, such as the desire to achieve bal- process, laws of evidence and the cultures Baumgartner v Baumgartner (1987), ance between the needs of society and the in which Islamic law is applied. Walton’s Stores (Interstate) Ltd v Maher victim on one hand and the offender on the Hussain includes chapters on Islamic (1988) and Commonwealth v Verwagen other, and that judges tend to find sentenc- History, the position of women in Islamic (1990) seemed to breathe new life and ing, particularly imposing imprisonment, society and Muslims in Australia. interest into equity. In fact, equity had the most difficult task they are called upon Throughout the book, the legal con- always been at the forefront of the law, it to discharge in their office. cepts are presented in their broader cul- just wasn’t taught that way. In the climate of calls for “law and tural and even political frameworks. This new work, Equity, by Thomas and order” at every election and media cam- Each chapter covers a topic in a man- Vann is one of the Nexis Lexis Study Guide paigns for harsher sentences, it is interest- ner that allows it to be read on a stand- Series and it brings together all the coming to hear the judges’ own plea for the alone basis. No doubt busy practitioners mon themes of equity in one book. The retention of sentencing discretion. The will appreciate being able to acquire a solid style is easy to read, and summaries of capacity to tailor the sentence to fit the overview of the application of Islamic law various cases, including facts and issues, individual circumstances is seen by the in their field by reading only the relevant and the decision are set out concisely persons responsible for its imposition as chapters. Over seven pages of references within the text. It is perfect for students vital to achieving sentencing goals. in the bibliography will aid the serious and busy practitioners as a guide to and While we may wish the interviews were researcher to move on to deeper research, through aspects of equity. with 31 of our own Victorian judges, the once this introduction is mastered. While this book is sure to be of great commentary draws heavily on NSW and This second edition has been expanded use to students, it will equally be of inter- Victorian practice and makes frequent to include a new chapter on Islamic laws est and provide accessibility to those reference to publications relevant to of war and peace. This chapter seeks to experienced lawyers who have an interest those jurisdictions in the discussion. It expose some common Western misun- in the law, and the history and develop- also includes material from other jurisdic- derstandings of Islamic teachings and to ment of equity. tions, including the UK and America. In provide an accessible, reliable resource I commend this book to practitioners fact, the bibliography covers no less than for finding the actual content of Islamic who require an overview, particularly 12 densely printed pages. Practitioners beliefs. In view of the ongoing controver- those who may have forgotten much or need not fear that this work is limited to sies about Islamic thinking in this area in only learned a little of equity. Queensland issues. public debate, this chapter is a valuable P.W. Lithgow For the criminal practitioner, reading addition. this book will let you stand for a moment The author does not shy away from How Judges Sentence at the shoulder of the judge, listening to criticising interpretations and applications his or her thoughts. of Islamic law by some Muslim popula- By Geraldine Mackenzie For all of us, reading the judges’ own tions. The tensions between liberal and The Federation Press, 2005 personal thoughts on their methodology, fundamental interpretations of the Quran his interesting book is based on attitudes and approaches can only improve are frankly discussed. Tresearch interviews conducted with 31 our capacity to engage in and understand As the author acknowledges, no small Queensland judges as part of the author’s the on-going debate about sentencing. book could cover the entire topic of PhD. It seeks to explore the practice of L.M.E. Islamic law and culture, and all its varia- sentencing from the perspective of the tions worldwide. In a little over 220 pages, sentencing judge. Islam Its’ Law and it does not seek to be a encyclopaedia of The judges addressed a series of nine Islamic law. open questions, which were presented to Society (2nd edn) The author seems well qualified for each of them in advance of the interview. By Jamila Hussain the task she undertakes. She was born in Many of the judges also spoke generally Federation Press, 2004 Australia, is of Anglo-Irish descent and has with the author, raising topics outside the converted to Islam. She studied Islamic scope of the questions. his is the second edition of an absorb- law in Malaysia for two years, and lectures The book draws on direct quotes from Ting work designed to provide an at the University of Technology, Sydney, in the transcript of the interviews to discuss introduction to Islamic law and culture. It Islamic Law and Asian Law and Culture various principles, from media influence remains as timely and relevant as ever. and at the University of Western Sydney in to sentencing purposes. The commentary Islam is professed as a religion by more Comparative Law. is intelligent and informed. The author is than a quarter of the world’s popula- The book is squarely aimed at persons an academic who teaches and researches tion, including an increasing number of such as this reader, who knew far too little criminal law with a particular focus on Australians. Australian lawyers in family about Islamic law and culture. It provides sentencing. law, international trade and other fields a workable insight into one of the world’s The judges’ comments reveal the will be assisted by gaining a basic working great religions and its legal systems, while private reasoning and decision making knowledge of Islamic law. All of us will be maintaining brevity and accessibility. underlying the sentences handed down. assisted by broadening our knowledge of L.M.E. 74

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