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167 VICTORIAN BAR NEWS WINTER 2020 The Victorian Bar funds two independent services where members ISSUE 167 WINTER 2020 and their families can access crisis support and counselling. VICTORIAN editorial

46 Reflection: the act of serious Editorial BAR thought or consideration Despite everything, we have 5 TEMPLE SAVILLE a stellar issue of Bar News! NEWS 48 A Readers’ Digest THE EDITORS VERONICA HOLT Letters to the Editor 6 52 A view from the big smoke President’s column 8 ADAM CHERNOK WENDY HARRIS 54 Human rights and rule of power in CEO report KATHERINE LORENZ 10 COVID-19 times in Victoria FELICITY GERRY AND Around Town JENNIFER KEENE-MCCANN Wigs and Gowns Squadron 12 (WAGS) Annual Sailing Day 57 Business and human rights during JULIE R DAVIS the COVID-19 pandemic Jewish opening of the legal year: 14 SHANTA MARTIN remembering legal luminaries 32 59 Reimagining proportionality ANNETTE CHARAK in a global pandemic Community opening 15 RICHARD EDNEY of the legal year 2020 62 How I ruined America Opening of the legal year: Red Mass 16 (and possibly the world) ANONYMOUS QC Supporting Djirra on International 18 Women’s Day 65 Poetry for the pandemic NATALIE CAMPBELL AND LAURA HILLY Bar Lore The 2020 Flagstaff Bell 19 66 When Monash law students’ CAROLINE PATERSON hoax created law folklore News and Views JACK HAMMOND Truth or consequences: an 20 70 The Nazi Volksgerichthof interview with Dan Crennan QC 38 (People’s Court) JUSTIN WHEELAHAN BRIAN WALTERS AND CAMPBELL THOMSON Back of the Lift Cyber snippets—why you 24 72 Adjourned Sine Die should be worried 73 Silence all stand HEATHER HIBBERD 75 Vale Our Top Courtroom Dramas 26 NATALIE HICKEY Boilerplate The virtual advocate 30 90 A bit about words ERIK S. DOBER JULIAN BURNSIDE 93 What unwanted sexual attention Iso Stories feels like, and what we should do 34 Advocacy in the age of Coronavirus 59 about it COVID-19: Up close and personal 38 95 Book reviews JOHN GURR Excerpts from a Bar diary 40 98 Grammar pedant in the plague year ANNETTE CHARAK CAMPBELL THOMSON 99 Then and Now: Barbara Cotterell Iso life 43 and Sarah Fisken FABIAN BRIMFIELD CAMPBELL THOMSON My experience of giving 44 100 History and storytelling birth in lockdown PETER HEEREY LUCY LINE 102 Being a line umpire for Tennis Experiencing the whiplash 45 Australia and its recovery KAREN MAK NATALIE HICKEY 66 VBN 3 ISSUE 167 WINTER 2020 VICTORIAN Editorial BAR NEWS

Editors: Natalie Hickey, Justin Wheelahan and Annette Charak. Victorian Bar News Editorial Committee: Natalie Hickey, Justin Wheelahan, Annette Charak (Editors), Maree Norton (Deputy Editor), Carmella Ben-Simon, Campbell Thomson, John Tesarsch, Tony Horan, Temple Saville, Brad Barr, Jesse Rudd, Hadi Mazloum, Veronica Holt, Shanta Martin, Denise Bennett and Amanda Utt. Contributors: Jennifer Batrouney AM QC, Oren Bigos SC, The Hon Michael Black AC QC, Her Honour Judge Katherine Bourke, Fabian Brimfield, Hugh Burchill, Kate Burke, Robert Burns, Julian Burnside AO QC, Natalie Campbell, Annette Charak, The Hon Stephen Charles AO QC, Adam Chernok, Jennifer Clark, Eleanor Coates, Georgina Costello SC, Julie R Davis, Brenton Devanny, Erik S Dober, Tessa Duthie, Richard Edney, Renee Enbom SC, Kylie Evans, Top row (L-R): Denise Bennett, Shanta Martin, Temple Saville, Campbell Thomson; 2nd row (L-R): Annette Charak, Justin Garry Fitzgerald QC, The Hon Jack Forrest QC, Wheelahan, Brad Barr; Maree Norton. 3rd row (L-R): John Tesarsch, Natalie Hickey, Jesse Rudd; Hadi Mazloum Bottom row (L-R): Felicity Gerry QC, Bill Gillies, Katharine Gladman, Tim Veronica Holt, Amanda Utt, Carmella Ben-Simon; Tony Horan. Glass, John Gurr, Jack Hammond QC, Wendy Harris QC, Paul Hayes QC, John Heard, The Hon Peter Heerey AM QC, Heather Hibberd, Natalie Hickey, Despite everything, we have Dr Laura Hilly, Paul Holdenson QC, Veronica Holt, Simone Jacobson, Ben Jellis, Peter Jopling AM QC, Jennifer Keene-McCann, Dr Bryan Keon-Cohen AM a stellar issue of Bar News! QC, Richard Lawson, Lucy Line, Katherine Lorenz, Karen Mak, Melissa Marcus, Shanta Martin, His Honour Judge Michael McInerney, Murray McInnis, NATALIE HICKEY, JUSTIN WHEELAHAN, ANNETTE CHARAK Julian McMahon AC SC, Ron Merkel QC, Simon Moglia, Stephen Moloney, Allan Myers AC QC, Daniel Nguyen, Caroline Paterson, The Hon Justice ack before lockdown, our editorial committee debated Phillip Priest, Mark Purvis, Uthra Ramachandran, Siobhan Ryan, Robert Sadler, Temple Saville, Anna themes for our Winter issue. One such option was Svenson, Campbell Thomson, Robert Thyssen, technology. This, at the very least, received a tepid Fiona Todd, Bronia Tulloch, Priya Wakhlu, Ian Waller QC, Brian Walters AM QC, Stephen Warne, Justin response. Well, how times have changed people! Wheelahan, Michael Wise QC, Michael Wood, Chris At Bar News, we are the eyes and ears of the Bar, Wren QC, RNJ Young. lucky enough to receive and communicate your stories. Photography: Allstar Picture Library Limited/Alamy Stock Photo, Alona Photo, Andrew Curtis and the Barristers never cease to surprise us with their hidden talents! Monash University Archives, Lily Crennan, Fizkes, When coronavirus hit in March, it felt like the tide was being sucked out kseniiavladimir, SongQuan Deng, Tony Baggett, before a tsunami. We muddled our way through it like everyone else. Forced Catholic Archdiocese of Melbourne, Ian Dagnall Computing, Picturelux/The Hollywood Archive, The home, we took our own tentative steps together into an online world. For Monash Reader, World History AF Archive Bmany, our first Zoom meeting together was in fact our first Zoom meeting Publisher: Victorian Bar Inc., Level 5, Owen Dixon Chambers East, 205 William Street, Melbourne ever. We tried out virtual backdrops. Some enjoyed peering into each other’s VIC 3000. Registration No. A 0034304 S rooms, whereas others found reading delayed online body language utterly The publication of Victorian Bar News may be cited exhausting. We learned from each other which practice areas had stopped as (2020) 167 Vic. B.N. Opinions expressed are not necessarily those of the Bar Council or the Victorian completely, and which continued to chug along. We also debated films. Bar or of any person other than the author. You will see our Top Courtroom Dramas inside. Advertising: All enquiries including requests for Through all of this, we were determined to bring you a publication in the advertising rates to be sent to: Elizabeth Gray middle of this year—in one form or other. With a history of almost 40 years, Victorian Bar Inc. most will agree that this issue will be historically significant. The High Court Level 5, Owen Dixon Chambers East library retains back copies for the record. We wanted to ensure this point in 205 William Street Melbourne VIC 3000 time was documented for posterity. To that end, a huge thanks to the powers- Tel: (03) 9225 7111 that-be for enabling us to distribute a print issue. This looked sketchy for Email: [email protected] a while as there were health risks to be managed and costs to be saved. Illustrations, design and production: As everyone was at home, the purpose of a hardcopy magazine seemed to Guy Shield www.guyshield.com disappear. It is uncertain whether we will have a print or digital future, but Printed by what we can say, right now, is that we have a hard copy magazine. We hope Southern Colour it helps bind the fabric of our community together. www.southerncolour.com.au We will return to our halcyon days. In the meantime, enjoy the reminders Contributions: Victorian Bar News welcomes contributions to [email protected] of our immediate past. There are beautiful photos of sailing boats and lawn

VBN 5 editorial bowls. We are reminded of Jewish, secular and Catholic examined. We have tips and tricks for managing, openings of the legal year, and an International Women’s respectively, cyber security and online hearings. Family Violence Day event. We bookend our issue with Karen Mak’s tale For those who are historically-minded, Brian Walters QC ‘How times editorial editorial hy should the victim of family violence have to leave of being a line umpire during the Australian Tennis Open. takes us back to Berlin, inside Hitler’s People’s Court. This home and seek refuge? Let’s not get too used to our ‘new normal’. dealt with so-called political crimes in a manner which change’ The issue of family violence should be a matter of Turning to COVID-19, we would like to express our serves to remind us of the centrality of the rule of law. concern to all members of the community. h, the days before technology gratitude to John Gurr for sharing his story of testing We also have an interview with Daniel Crennan QC, Over many years the Victorian Bar hosted numerous and virtual court rooms. positive for the disease. He went through a harrowing now two years into his commission as Deputy Chair at breakfasts in support of White Ribbon Day and has continued to Stephen Parmenter QC found experience with his family. We can all learn much from ASIC. Dan explains his role in establishing ASIC’s Office demonstrate a commitment to raising awareness and dealing with the this little gem when reading the 1982 John’s first-hand experience. We also want to thank Adam of Enforcement, and ASIC’s “Why not litigate?” mantra. important issue of family violence. OEnglish case of Prudential Assurance Chernok for his honest, nuanced and poetic account We asked Dan, amongst other things, about whether WWhite Ribbon Australia went into liquidation late last year. The Co Ltd v Newman Industries Ltd of surfing as catharsis, to ameliorate his grief after the COVID-19 means ASIC will take the foot off the pedal liquidators announced that a WA charity called Communicare had agreed (No 2) [1982] Ch 204 at 209 per untimely passing of his close mate and fellow barrister, on enforcement. to take over the assets of White Ribbon. Notwithstanding the liquidation Cumming-Bruce, Templeman the much-loved James Westmore. If you would like a distraction from the pandemic, look and financial mismanagement of White Ribbon Australia, its long-held and Brightman LJJ: As for life in lockdown, your pictures tell a no further than Jack Hammond QC’s inside story of the objective of raising awareness about family violence remains important. thousand words. Now is the time, literally, to look famous Campbell McComas (aka Professor Granville The great length of this judgment has Men, like myself, who were White Ribbon Ambassadors were not seeking into each other’s lives. Such vivid, different, uplifting Williams) hoax at Monash University in 1976. It is a naturally caused us to consider whether to do anything other than raise awareness and demonstrate male support photographs. Thank you! classic tale. We challenge you not to laugh out loud. it would be sensible to hand down a for those victims of family violence. Though it is four years since I was We have poetry and personal reflections. Lucy Line A special thanks also to our featured and guest writers typed or printed version, as an alternative involved as a director or ambassador of White Ribbon, the issue of family gave birth in lockdown. Fabian Brimfield, against his who have helped us with Back of the Lift and our regular to the many hours in court which violence is still a significant issue for me. tropical backdrop, has a warning about using Zoom for sections, making up a third of the magazine. This time, will inevitably be spent on delivering Despite the best efforts of police, other emergency services and the work after using it personally. Campbell Thomson has our usual Red Bag/Blue Bag column has been replaced our judgment. We have rejected this courts, the fact remains that a significant percentage of family violence channelled Daniel Defoe in his journal of a plague year. by a junior and senior perspective on an issue far too obvious and convenient expedient for remains unreported. It is also a fact that by the time the police attend the Temple Saville reminds us to think of medical personnel prevalent: unwanted sexual attention. two reasons. First, the appellants have scene of a reported crime and make an arrest or a court order is obtained, going through hell in New York. Veronica Holt also gives Finally, thank you Guy Shield! Guy helps with our been found guilty by the trial judge of a the event has usually happened. us an insight into our readers who joined the Bar in the magazine layout and is a passionate illustrator. He was civil conspiracy in circumstances which, It is unfair to expect well-trained police to act as social workers. It is not midst of an unprecedented global lockdown. We also challenged like never before this time round. The results subject to stricter procedures, could their job. They are not specifically qualified for that task. have a splendid satire from ‘Anonymous QC’ about being are beautifully evocative. equally well have led to their conviction Fortunately, a new generation of members of the community have Trump’s ‘adviser’. As he said to the editors, “I had way too What is inside the cover is a remarkable story of our on a charge of criminal conspiracy. In adopted the view that any form of family violence should not be tolerated. much time on my hands”. Bar—individually and as a whole—over the past few such circumstances we think that … we The fundamental issue confronting all of us is the issue of what some The legal implications of life in lockdown months. We feel that challenging times will not end soon. should express our conclusions orally in may see to be an entitlement to control other persons. are worrying for many. There are articles about Please tell us your thoughts and ideas, submit stories, open court. Secondly, the delay which It is crucial for all of us, men and women, to play a role and not leave the human rights and the rule of law. The principle of give us photos, and we will do our best to publish them. would be caused by typing or printing and matter to politicians, the courts, the police or other emergency services. proportionality to sentencing, when considering Contact us at [email protected]. then proof-reading a written judgment We need to think about meaningful solutions that will be available at an prisoners locked down during the pandemic, is also The Editors suitable for handing down would postpone early stage of any relationship where the likelihood will be that difficulties judgment over the Long Vacation. develop into serious harm or, as in too many cases, death. Murray McInnis, May 2020 TO Have your Say Victorian Bar News encourages letters to the Editors on topics ranging from Letters THE the meaningful to the mundane. Write to the Editors at Victorian Bar News, Owen Dixon Chambers, 222 William Street, Melbourne, VIC 3000 Editors or email [email protected] A gleeful member of the species Hide and squeak Zoom Drinks of the juniors appearing with me in the Royal Commission at the Bench into the Management of Police Dear Editors, Informants. Before today’s drink n the 4 March 2020 within the article, though, was Re: End of week drinks via Zoom. I received this terrific drawing edition of the Australian the following: I see that Bar News is compiling from one of the juniors, Caroline Financial Review, Liz Main a photo-essay portraying our Neither Mr Horgan’s nor Justice Dawes. It reflects our work provided what was, on its face, work environments in the time Dixon’s concentration was broken together as a team despite being aI straightforward report of a of coronavirus. I don’t have when Justice Dixon’s tipstaff spread across Victoria at the day in court during the Banksia a photograph, but I have this unsuccessfully attempted to use moment. Those in the drawing class action proceedings. The drawing that you might like. a waste-paper basket to catch a with me are Caroline, Siobhan protagonists included Justice Every Friday afternoon, I share mouse that ran past the judge’s Kelly and Holly Jager. John Dixon and barrister a drink via Zoom with some bench during their discussion. L-R: Siobhan Kelly, Renee Enbom SC, Holly Jager, and Caroline Dawes. Renee Enbom Samuel Horgan QC. Buried photo courtesy of bigstock: stock photo id 295165945; kseniiavladimir VBN 7 6 VBN PRESIDENT’S COLUMN editorial The uncertainties editorial Managing expectations about practice, and the consequences of isolation, when the world turns have taken their toll on many, and mitigating upside down those impacts across different member cohorts WENDY HARRIS is a priority.

s I look back on November I am incredibly fortunate to have strong advisors and profession and the community 2019, when I was honoured contributors in the Bar staff, the Bar Council, the Bar navigate their way through the to take on the mantle of Executive, BCL, our committees and associations, and pandemic. It is by living our core President of the Victorian among our members who have helped me frame VicBar’s values of excellence, leadership, Bar, there were some key COVID-19 response to meet that objective. That response independence and growth that the things that I wanted to is fourfold and, at the time of writing in late May 2020, Victorian Bar and its members will achieve during the next 12 months. All of these were is ongoing. continue to play that vital role in framed within our strategic objective of ensuring that The first is to ensure that we have in place the the justice system throughout 2020 the Bar, and our members, thrive, and continue to do so. mechanisms to support our members’ physical and and into the future. I’m extremely Amongst other things, we needed to make the market mental health. The uncertainties about practice, and the optimistic that our Bar will come out andA community more aware of the Bar’s core values of consequences of isolation, have taken their toll on many, the other side well positioned to use excellence, leadership, independence and growth, the and mitigating those impacts across different member this experience to enhance the way latter value being particularly pertinent to the Bar’s cohorts is a priority. we work, the services we offer and stature, health and diversity. The second is to support our members’ financial client and community perception of 2020 was to be the year of increased engagement wellbeing in every way that we can—this means assisting our value proposition. by VicBar as an institution with those across the legal members to continue practising in a virtual environment, Among the lessons learned, profession and the community, specifically with our and to ensure that those in government and government some might be offered by the instructing law firms, government and corporate clients, agencies understand the peculiar financial position under priority and lifestyle adjustments the judiciary, the Law Institute of Victoria and other Bar which barristers operate so that the relief packages also that have been forced upon us. I Associations, and the legal and public organisations that apply to barristers in need. I have also been extremely have spent the past several months are our partners in the administration of justice. It was grateful for the transparent, collaborative and cooperative bunkered down with my twin to be the year of comprehensive reviews of our cradle- approach that the courts have taken in addressing the daughters at our little house on the to-grave education offering and the way we identify and challenges thrown up by the situation as best they can. Mornington Peninsula. We have meet the health and wellbeing needs of our members; The third is to support the infrastructure on which found hidden upsides to life in of seeking to improve fee recovery for our criminal the foundations of the Bar, its culture, its accessibility iso-land. For me, that has included members, and of enhancing our mentoring architecture. and its collegiality rest. What sets the Victorian Bar the opportunity for a long morning And in February things were looking pretty good! Then, apart from all others around the country and, frankly, run among the kookaburras and the in mid-March, the world turned upside down. Over the the globe is the ability for barristers to access, through eucalypts, extra time spent with my next few weeks, as the pandemic developed, I received BCL, affordable, flexible rentals in the heart of the court girls (including in my new capacity emails and calls from colleagues—from very senior silks precinct with accompanying technological and IT support. as French and Maths tutor), and through to some new and junior barristers whom I’d Preservation of this infrastructure is critical to ensuring the luxury of not having to rush unfortunately not had the opportunity to meet in better that we have the necessary foundation on which to out of the house in the morning to times. It was clear from very early on that I needed to rebuild, post-pandemic. make that first 8am meeting. These reset my expectations of what leading the Bar meant in Finally, and intimately connected to coming out the upsides—and the conscious effort 2020, and how we could be clear in our communications other side, is to continue, to the extent possible, our that friends and family have made to and transparent in our actions to fulfil our new objective member education, support and market engagement stay virtually in touch—have made for the year. strategies. This is not a time for isolation—it is a time the restrictions much easier to bear Our “COVID-19 strategic objective,” if you’d like to call to step up, to be innovative, responsive and adaptable at a personal level, and have left me it that, was to bring the Bar as an institution, and our and, indeed, to seize the opportunities that this crisis has with a determination not to let go too members, through to the other side—with practices intact presented. I have seen Victorian Bar members produce readily of the things that can help to and the foundations of the Bar strong so that we could some brilliant virtual events and publish exceptional mitigate the pressures that afflict us continue to thrive into the future. thought leadership that is helping our clients, the legal in our professional lives.

8 VBN VBN 9 CEO REPORT editorial editorial Adapting and Thriving

KATHERINE LORENZ

minously, it was work. This was particularly true for Friday 13 March remote court appearances and day- when I realised our to-day tasks and meetings needed world would change, to maintain barristers’ practices. significantly, in the The VicBar team supported BCL in short and medium- communicating about the hardware term. During that week, we had and software members would need started to receive emails and calls to operate in this new environment, from members about the potential and organised CPDs to make sure health risks of being in chambers that everyone had the opportunity to Oand going to court. It was then that upskill and continue a viable practice the VicBar team began planning how during the lockdown. we would navigate the impending This meant postponing or moving crisis so we could continue to provide all CPD and other events to an online existing services to members and forum. The readers’ course which spearhead new initiatives to meet the had only just begun, posed a bigger growing demand for assistance. issue. With restrictions and the threat Fortunately, the objective was of illness looming, our education very clear: to support our members team revamped the whole course to throughout the crisis and ensure that front-load as much of the “in-person” a strong and thriving Bar emerged on training as they could. Through a the other side. Everything we have phenomenal effort, they moved done since Friday 13 March has been the remainder of the course to an to further this approach. online platform, meaning that the 48 The health and safety of members readers joined our Bar as originally was uppermost in our minds. We anticipated on 7 May. worked hand-in-hand with BCL Regular liaison with courts and to put in place the protocols to the wider legal profession was also follow if one of our members or critical. Members will recall the staff tested positive. The 10 days considerable uncertainty of those leading up to the announcement of early days. There was growing alarm to ensure that those needing access jury trials were suspended. As I said The financial impact has been devastating for a Stage 3 restrictions were quite tough. over litigants and lawyers who to justice were served by the judicial above, our key strategic aim was to Members, quite understandably, were exhibiting cold and flu-like system even in the difficult days of bring as many of our members as number of our members. expressed different—often polar— symptoms, crowded court corridors, the pandemic. Heads of jurisdictions possible through to the other side of views about the pandemic’s likely and the need for the judiciary began regular correspondence with the lockdown with thriving practices transparently to members is key; will look like. Future readers impact, the strength or lack of to provide reassurance around us, and we distributed these daily, intact. The financial impact has been so we “hijacked” the health and of this special commemorative government response, and what we continuity arrangements. sometimes twice daily, to members devastating for a number of our wellbeing page on the VicBar COVID-19 edition of Bar News should do about it. As an example, We worked with the Courts in our COVID-19 updates. It was this members. I’ve been working with the members’ website as a portal to will know the answer to this—and some members asked for chambers’ Council, heads of jurisdiction and collaboration across the profession Bar Executive and our VicBar team consolidate our COVID-19 related I hope they will look back at this doors to be shut tight, whilst others other parts of the profession— in Victoria, in concert with other to communicate the government’s information and resources. We feel time not only as one of disruption wanted “business as usual”. particularly the Law Institute of State and Territory Bar Associations, relief measures and how barristers that it is important that members but also of adaptation—that We followed government Victoria—to support the courts’ that meant that workarounds were can access those, put together a plan easily access additional support as the Victorian Bar grasped the guidelines. critical decisions to ensure the developed quickly and innumerable to waive or significantly reduce Bar they need it. opportunity to marry effective With the mediation centre closed continuation of the administration problems were solved. subscription fees for members in At the time of writing, we are still technologies with strong and and barristers and VicBar staff of justice. While each court and We also recognised that, for some need, and provide proactive support. in “lockdown”. We don’t know when independent advocacy to serve the working from home, technology was tribunal faced different logistical members, their practices evaporated, We have always understood or how we will return to “normal” judicial system and those seeking always going to be key for remote issues, they had a common objective overnight, particularly when new that communicating often and —or indeed what the “new normal” justice in the community.

10 VBN VBN 11 Panache 111 (Egils Stokans) Winning yacht Wingara (L-R) – Crew member Andrew Arblaster, Skipper John Hall, Barrister Andrew TowAROUND n Combes, Marg Meldrum and Ron Meldrum QC. around town

Wigs and Gowns Squadron (WAGS) Annual Sailing Day

JULIE R DAVIS

White Pointer (L) (Rebecca Badenoch) and he sun was shining and there overlooking magnificent St Kilda harbour Addiction (R) (Richard McGarvie QC) was a 15-knot breeze. Perfect. On and across the bay to Williamstown beyond. Thursday, 19 December 2019, One or two glasses of fine wine were

a group of very excited barristers also enjoyed. Robert Galbally, winner Justice John Digby and solicitors lined up at the end Mid-afternoon, Rattray and Digby of the Thorssen Trophy and Julie Davis of the Royal Melbourne Yacht Squadron marina announced the race results. Two yachts in St Kilda. Inclement weather in two previous were disqualified for crossing the start years had relegated the mariners to lunch line early. Another failed to sail around Tearlier than anticipated in the club’s Olympic the elusive ‘C’ mark. The winner of the Bar. Not so this time. Enthusiastic planning, Neil McPhee QC trophy (although third perfect conditions and renewed interest from across the finish line) was Wingara (John sailors and crew saw seven yachts and 55 Hall). The second and third place-getters, participants line up for the start. respectively, were Panache 111 (Egils Stokans) Justice John Digby, the owner of a splendid and Aranui. Liberty (Robert Galbally) was cruising yacht named Aranui, assumed presented with the Thorssen Trophy (which the mantle of honorary commodore of the is a broken channel mark light—a long story) Retired County Court Judge Stuart Campbell, WAGS. Skippers and crew (an assortment for good sportsmanship to much applause Peter Rattray QC and of barristers and solicitors, experienced and and camaraderie. Neil Rattray. novice sailors among them) gathered for It was a great day out. If you would like to Renaissance (Peter H Clarke) the race briefing at 11am. Immediate past hear the story of the Thorssen Trophy and have Wingara (John Hall) commodore, Peter Rattray QC, set the course a relaxed, fun day with friends and colleagues, and start times at five-minute intervals keep your eyes open for the WAGS Notice of between yachts. Those assembled heard Race to be published in November 2020. Rattray direct the fleet to sail to Station Pier, Participants in the 2019 annual WAGS thence to a buoy marked ‘C’ somewhere west day were: of the Squadron and to return to the finish » Robert Galbally (retired solicitor and a line adjacent to the Squadron Tower at the member of the RMYS Committee) on his Liberty (Robert Galbally) end of St Kilda pier. yacht Liberty with six crew; Peter Rattray manned Ian McDonald SC’s » Egils Stokans (retired solicitor) with his chase boat to ensure all yachts sailed a proper yacht Panache 111 and three crew; course. Less concerned by Rattray’s focus on » Rebecca Badenoch (family law solicitor) tactics, McDonald, with Neil Rattray and Julie on White Pointer, a Sandringham Yacht, Davis, kept up with the fleet while taking with six crew; photos. The task of finding the buoy marked » Richard McGarvie QC with 12 crew on his ‘C’ proved problematic. yacht Addiction; After a very pleasant, sunny sail around » John Hall with six crew on his yacht Wingara; the course, the yachts returned to the RMYS » Romauld Andrew on his yacht Tandanya with marina to tie up and adjourn to the clubhouse four crew; and for lunch. Skippers and crew enjoyed a » Peter H Clarke on his timber motor yacht delicious barbecue cooked on the balcony, Renaissance with seven crew.

12 VBN VBN 13 around town Jewish opening of the legal year: 1 2 Community around town around remembering legal luminaries opening of the ANNETTE CHARAK* legal year 2020

he Jewish opening of the legal year was marked on VBN 28 January 2020 at the East Melbourne synagogue. TAlong with some beautiful musical liturgy, traditional readings about justice and the role of law, and a legal prayer he BottledSnail Jazz Combo plays as guests file composed by the late Maurice Ashkenazy QC, it was an into Waldron Hall in the County Court on Monday occasion to celebrate two members of the legal fraternity who T3 February 2020 for the Community Opening of had passed away in the previous year. In the presence of several 3 the Legal Year, hosted by the International Commission of family members, Ray Rosenberg was remembered by Simone 01. The Hon Justice Lesley Taylor Jurists, Victoria. presents the John Gibson award to Jacobson, one of Ray’s former readers, whose tribute to him David Burke. 02. The Hon Justice President Maxwell speaks about the rule of law. It requires appears in these pages. Chris Maxwell AC. 03. Poet Elena independent judges, access to courts, supervision by courts Gomez, with Felicity Gerry QC Ian Waller QC paid tribute to his father, Emeritus Professor and Campbell Thomson looking of executive power and treating like cases alike to provide Louis Waller, a man who left his mark on generations of Monash on. 04. Ngiyampaa singer song- certainty and predictability. He then stresses the importance writer, Pirritu Brett Lee. 05. Malaz University law students. Justice Mark Weinberg has described Mohamed-Bakhit, student of learning through uncertainty and acquiring wisdom through him as a “great teacher, one of the best I ever encountered.” 06. Vanessa Bleyer, solicitor doubt. He says judges need to be curious, sceptical and open. Julian Burnside QC has said, “Louis Waller was spectacular—he Jill Redwood describes how 80 per cent of East Gippsland’s was probably the best teacher I’ve had anywhere at any time.” forests were destroyed in the recent bushfires. She had battled for Professor Waller, born Pinchas Leib Waligora in Siedlce nine hours to save her Goongerah property. Fortunately, the old 4 Poland on 9 February 1935, arrived in this country at the age 5 growth forests of Brown Mountain, which she and Environment of three. He began his law studies in 1952 and found the East Gippsland had litigated to save from logging in the Federal course exacting and exciting. Among his teachers were several Court, were spared. She thanks the lawyers involved in that case. (including Zelman Cowen and David Derham) who sparkled The instructing solicitor in the Brown Mountain case, Vanessa as models for what he decided he himself wanted to become: Ian Waller QC with Emeritus Bleyer, then speaks about environmental litigation strategy and Professor Louis Waller AO, Jewish a “public teacher of law”. opening of the legal year, 1990. the need to co-ordinate experts from different fields. In 1964, he joined the newly established law faculty at ICJV President, Justice Lesley Taylor, then awards the John Monash University as the Sir Leo Cussen Professor of Law, influence was deep and far-reaching. In 1989, he was made Gibson Award for the best contribution to human rights in a position he held for 36 years. From 2000, he remained active an Officer in the Order of Australia. He was particularly Victoria to David Burke, legal director at the Human Rights at Monash as Emeritus Professor. proud that the citation recognised his contribution as a Law Centre. Justice Taylor says, “David spearheaded the In 1984, Professor Waller was appointed the first chairperson “public teacher of law”. Jack Fajgenbaum QC described profession’s response to the medical transfers of asylum of Victoria’s newly created Law Reform Commission. There, Louis’s story as “one of a three-year-old child who arrived in seekers from Manus Island and Nauru. He has been he helped produce reports that led to ground-breaking reforms Australia, speaking only Yiddish, who rose to greatness as a instrumental in assisting law firms to take on proceedings at a to the criminal law. He also chaired the committee that wise scholar, a dedicated teacher, an outstanding academic moment’s notice.” David responds that collaboration between considered the social, ethical and legal issues arising from and educator, a ground-breaking law reformer and a master professionals is more important than ever with 400 people IVF. The report of the Waller Committee led to landmark of the English language, crisp, clear and precise. In accordance still in offshore detention after seven years. world-first legislation that would change forever the lives with the biblical command, he always pursued justice and The Melbourne poet Elena Gomez reads two poems of those struggling with infertility. pursued it justly.” from her recent collection, Body of Work, which was highly Louis often remarked that his work in law reform involved Ian said his father enjoyed attending the services marking the commended in the 2019 Premier’s Literary Awards. dealing with profound issues affecting the beginning and the Jewish opening of the legal year, welcoming the opportunity to Two students, sponsored by the Skyline Foundation, which end of life. A feature article in The Age in June 1982 stated see friends, colleagues and former students. And, at a deeper assists gifted pupils from disadvantaged backgrounds to that “The professor’s respect for human life is informed by level, it was an occasion which recognised and celebrated two finish high school, discuss their aspirations. Malaz Mohamed- his religious belief.” It quoted him as saying, “I am Jewish; it is fundamental aspects of his life: the law and his Jewish faith. Bakhit is to study law at Melbourne University and Tariq part of the fabric of my life.” Ian commented that his father’s Professor Waller died on 8 October 2019. Among the items Ismat, Wathaurong man, looks forward to studying nursing. appreciation of Jewish values and his awareness of Jewish collected from his office at Monash University were several Finally, Ngiyampaa singer songwriter, Pirritu Brett Lee, history influenced his involvement in law reform, particularly to framed photos. They included one of Louis and Ian standing wraps up proceedings with a number he had taken on the assist disadvantaged and marginalised people. outside East Melbourne synagogue at the opening of the legal 2019 Homelands international tour. Guests then mingle over Through his teaching, his work in law reform and his active year, exactly 30 years ago. He will be missed. morning tea catered by the Asylum Seeker Resource Centre. involvement on legal and ethical committees, Professor Waller’s *With thanks to Ian Waller QC for his significant contribution 6 Thanks to John Dever for sponsoring the event.

14 VBN VBN 15 Opening of around town the Legal Year: around town around Red Mass

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he first recorded Red Mass was celebrated in the Cathedral of Paris Tin 1245 and spread to most European countries thereafter. The Votive Mass of the Holy Spirit held annually on the first day of the Michaelmas Law Term in England and Ireland was called the Red Mass because the celebrant was vested in red, and the justices robed in scarlet. The Red Mass is like any other Roman Catholic mass, except the prayers of the faithful are focused on legal admistators dispensing justice, and the many afflicted by injustice throughout the world. The traditional Red Mass was celebrated at St Patrick’s Cathedral on Tuesday 28 January by Archbishop Peter Comensoli to mark the opening of the legal year—his Grace’s first Red Mass since becoming Archbishop of Melbourne. The mass was well attended by the judiciary this year, and a procession of judges, magistrates, tribunal members, judicial registrars, court officials and barristers preceded Archbishop Comensoli into the Cathedral. Archbishop Comensoli gave a sermon on the ancient Greek concept logos in the gospel of St John and St Mark—taking some present back to Fred Ellinghaus’s contract lectures on eros, logos and unconscionability as undergraduates. The Archbishop’s message was that the logos of Jesus, in word and deed, is a law, a rule and measure, for human flourishing. True justice cannot flourish unless mercy is allowed to flourish, for mercy is always attentive to the truth of the persons involved. At this point, the Archbishop’s sermon was interrupted by a protestor. Archbishop Comensoli stood down briefly from the pulpit to listen to the protestor, and then returned to complete his sermon. The archbishop then invited those present to be courageous in their commitment to telling the story of justice and mercy in our society. After the Red Mass, Archbishop Comensoli invited the judiciary and members of the legal profession and their families into the cathedral presbytery for tea, and convivial discussion.

16 VBN VBN 17 Photo caption: Jenny Firkin QC, around town Natalie Campbell, Laura Hilly, Franceska Leoncio and baby Mila around town around

Supporting Djirra on Further Resources International Women’s Day If you are experiencing or concerned about someone experiencing NATALIE CAMPBELL AND LAURA HILLY family violence the Left: L-R Marita Ham, Mark Hebblewhite and Hilary Bonney, barristers—winning team for the Bar and Bench. following services Above: L-R Barrister James Moore, best dressed; Judge Heather Riley, captain of the jirra is an Aboriginal community We raised over $1000. Little did we know that may assist: Bar and Bench team; Geoff Dickson QC, president of the FLBA. controlled organisation where culture this event would occur on the precipice of a DJIRRA: Dis shared and celebrated, and where pandemic that would escalate the current crisis 1800 105 303 practical support is available to all Aboriginal in family violence. Efforts to contain a public 1800 Respect women and particularly to those who are health crisis necessitating a community-wide national helpline: The 2020 Flagstaff Bell currently experiencing—or have in the past lock-down intensified the experience of family 1800 737 732 experienced—family violence. Djirra works violence for many. Women’s Crisis Line: CAROLINE PATERSON toward a future where all Aboriginal women are Both the Family Court and Federal Circuit 1800 811 811 strong, safe, independent, healthy and positive Court moved quickly to fast-track cases in Men’s Referral Service: he evening of Friday 21 February 2020 was a mild and Everything came down to the last match on the green. in their lives, culture and communities. which there was an increased risk of family 1300 766 491 clear night. It was perfect weather for the second annual Barristers Marita Ham, Mark Hebblewhite and Hilary Bonney— Its work is preventative, early interventionist violence resulting from COVID-19 social Lifeline (24 hour Flagstaff Bell, when the family law profession comes not known for their hand-eye coordination—were firmly in and responsive and supports Aboriginal women restrictions. There was also a prompt response crisis line): T together at the start of the new year for a casual spit-roast a losing position until former bowls champion, Judge Grant to tell their stories and find solutions that work from family violence services, including 131 114 dinner and to try their hands at lawn bowls. Riethmuller, stepped in and started offering unsolicited advice. for them. Djirra, to ensure access and continuity of Relationships Australia: The competition pits solicitors against the Bar and Bench. No This dramatically improved their performance. They managed Djirra is the Woiwurrung word for the reed, critical services. Barristers practising in the 1300 364 277 prior experience is required and its absence, in fact, may be an to win the last two ends of their match, clinching victory for the traditionally used by Wurundjeri women for area showed resilience and responsiveness Vic Safe Steps crisis advantage. James Moore, who came to the Bar in May 2019 and Bar and Bench. weaving. Weaving gave Aboriginal women in managing this additional caseload. response line: read with Joe Melilli, wore a fabulous pair of loose sweat pants with Judge Heather Riley of the Federal Circuit Court was thrilled the opportunity to come together, share their The reduction of face-to-face services, 1800 015 188 multi coloured knee pads, teamed with a striped tee shirt and blue to accept the Flagstaff Bell on behalf of the Bar and Bench from stories and knowledge, support each other and travel restrictions, stress caused by lockdowns NSW Domestic jacket. This earned him an impromptu best dressed award. Family Law Bar Association President, Geoff Dickson QC. Her find solutions. and economic uncertainty mean that more Violence Line: This year, we had a terrific crowd of 170 barristers, solicitors, Honour was heard saying how pleased she was that this would For International Women’s Day, an event than ever Djirra’s services need our support. 1800 656 463 judges and their associates, with approximately 110 of those give her bragging rights for the next 12 months as the trophy took place on Level 16 of Aickin Chambers to Please go to givenow.com.au/fvpls to donate having a go on the green. After 13 matches, the scores were tied takes pride of place in her chambers. celebrate and raise funds for the work of Djirra. to Djirra now. at 6.5 matches per team. The third Flagstaff Bell will be held on Friday 19 February 2021.

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Truth or Consequences: An Interview with Dan Crennan QC

JUSTIN WHEELAHAN AND CAMPBELL THOMSON

BN found Daniel VBN: Dan, how is it different Crennan QC working being where you are from being a from home from barrister running cases? Sydney over Zoom, DC: Well, there’s a number of seated in front of obvious differences. I don’t go to a framed Martin court anymore, I’m not working for Kantor photograph of Paul Kelly a client, nor am I strictly speaking next to the street sign for a town being employed by anybody. I’m a called Truth or Consequences in statutory appointee. The way the New Mexico. It seems a fitting home Office of Enforcement is structured, Voffice for the ASIC commissioner I am the current chair of any of and deputy chair who has been the committees in which we make described as ASIC’s new “cop on the decisions or provide guidance as, and sometime more difficult than, ASIC by ASIC. Rather, the review Di Pasquale and Andrew Bailey, gain a different type of collegiality, beat”, and a “Rudolph Giuliani-like relating to enforcement. the forensic decisions you might was an internal review led by one conducting interviews and analysing which is not sort of the whole figure”. Tumbleweeds may well be make as a barrister. We have to think of the commissioners, the deputy the records and policy documents. VBN: What was it like for you Bar collegiality, or Bar Council rolling through the physical offices about the effect of our decisions, for chair, being me with an external We conducted quite a broad review personally moving from your role collegiality—but you share with of ASIC, closed due to COVID-19, but example, on the public list, the ASX. panel. So that was the design of the as to how decision-making took place as an independent member of the your fellow commissioners (without the work of enforcement quietly goes review, which included engaging a at ASIC relating to enforcement. We Victorian Bar to this regulatory role? being melodramatic about it) very VBN: Tell us about the review on from home. VBN took the time commercial silk, being Michael Wyles made various recommendations, one DC: Mildly traumatic is probably significant responsibilities to society you conducted that led to the to ask Dan some questions about QC, Deputy Commissioner Leanne of which was to establish a separate the best description. You do lose as to the efficient running of the establishment of the office what the new job is like, neo-Kantian Close of the AFP, Professor Ian office of enforcement within ASIC that independence, which is part of markets and the economy insofar as of enforcement. organisational philosophy, COVID-19 Ramsay, the Harold Ford Professor that conducted all enforcement one of the precious possessions of it relates to regulatory activities. The DC: That was a little bit unusual. The storm chasers, and that elusive of Law at Melbourne Law School, investigations applying uniform rules a barrister. On the other hand you decisions you make are as difficult review was not conducted within concept of fairness. and two junior barristers, Andrew and procedures.

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One of the criticisms the Royal a matter of deterrence, this lacked home is a challenge of itself. One of VBN: A lot of corporations are under People in the media and others—lawyers and their Commission made was that the some utility—notwithstanding that, the other difficulties we have is that pressure of possible bankruptcy, supervisory part of regulatory perhaps, a declaration amounted to we know, for example, that it’s going loss of markets, etc.—does that clients—persistently ask me about what fairness means. news and views news work—which necessitates closer public denunciation. That Bill passed, to be more difficult to respond affect the way you operate? contact with the regulated— and the Act received royal assent on to notices. DC: We do have a significant role High Court, Professor Colin Mayer not a word that’s commonly used potentially undermined enforcement 13 March last year. So, with this new There is an understandable in insolvency and monitoring the of Oxford University and the British in the English language. That’s decisions. For example, a preference arsenal of higher civil penalties and concern, and we’ve spoken in markets and the market participants Academy, and Catherine Livingstone, not to say that the judges have for enforceable undertakings might longer custodial sentences, we’re in Canberra about this to various people very closely. We have a whole group Chair of the CBA, moderated by misunderstood what the word have been prevalent in the past a much better place to justifiably use including government, of scammers of people who do that. We have been Dr Bob Austin of the University means, but it’s just that what the where contraventions of law may the courts to achieve specific and who are using the difficulties asked to engage in consultation about of Sydney and the NSW Bar that conception of what it is, and how have taken place, and litigation didn’t general deterrence. faced by people during COVID-19 changes and rules about solvency. took place at the Supreme Court it relates to commercial dealings— take place. In fact, the legislative Coming from the Bar, I was to extract money from them, or So, it does affect our work. Trading of NSW. The panel discussion was either in relation to consumers or in framework that was in place prior naturally orientated towards litigation whatever it might be. We did keep a whilst insolvent is going to be a about a purpose-driven corporate relation to our legislation—is very to the passing of the Penalties Bill in any event. And that perhaps might very close eye during the bushfires big issue. COVID may change that environment, responding to the mixed. President Maxwell made the was perhaps more conducive to have been one of the reasons that I on the insurance circumstances to some extent. Under the guiding work of the British Academy and observation that perhaps that word a negotiated outcome due to the was asked if I could take on leading and what’s called “storm chasers” principles of our Act, we have broader Professor Mayer’s recent work, may have seen its day. Whether or not unavailability of civil penalties for the enforcement aspect of ASIC at in America—where unscrupulous obligations to the market integrity. Prosperity, and was in part about that’s correct I’m not sure, but we will many key provisions such as s912A the time. individuals will speak to those who Whenever we make decisions, we fairness. Justice Edelman said (and I be running fairness of the Corporations Act and s47 of VBN: What model did you use for have suffered damage or whatever, have to think through this particular am completely paraphrasing) that if cases under 912A and the corollary the Credit Act. the establishment of the office and invent and profit from false prism in a sense, and we have to think you ask a lawyer to work out whether section in the Credit Act, for The ‘Why not litigate?’ Socratic of enforcement? services in relation to insurance. So, about the market, and we have to some conduct amounted to failing example. Within the next year discipline is essentially a procedural DC: It was a model that Max Weber, we are acutely aware of that. That's think about the Australian economy. a fairness obligation, they’re likely or two, we’ll have an emerging discipline of asking ourselves that a neo-Kantian formulated in a another difficulty. So, anything that is deleterious to to say, “Well that’s too nebulous and body of jurisprudence that tells question when making enforcement German organisational philosophy But in terms of the COVID-19 the economy, or assists the financial difficult to work out”. But if you ask those that seek to make money decisions, both at executive and work called On Bureaucracy. It environment having an effect on system, is something we have to take the same lawyer if the same conduct out of others in our society in Commission level. The kernel of set out some fundamentals which our appetite for litigation, that’s not into account. We do have to think is unreasonable, they’d readily answer industries we regulate what the the decision-making is, “If we’re not he believed should be observed the case. It’s just that we will have to about those things very carefully. the question, which demonstrates that content of that obligation is. You the words in statutes just need to be need some cornerstone legislation prioritise investigations. Litigation VBN: How has your classical understood as to what they are, and in a commercial environment that’s The kernel of the decision-making is, “If we’re not that’s on foot is in the hands of education influenced your the concept of fairness is now very well understood to embed in that the court, so we’ll participate in philosophy at the Bar or at ASIC? going to litigate, why not?” much part of the current regulatory regulated population some basic litigation in any way the court is able DC: Those things are immeasurable. architecture. That’s why I have concepts of how they interact with to conduct, but it’s really about the There’s quite a distance between going to litigate, why not?” Inevitably by bureaucratic organisations, referenced the many manifestations those that they sell things to, or investigations and how we manage first-year university and when I that leads to a more litigation- recognising that they had to make of that moral reciprocity concept provide products to, or whatever. that, and we are careful managing came to the Bar. I would say it’s hard orientated approach. It does not decisions, and those decisions had (which has a degree of self-interest that part of it. to tell, but certainly being exposed VBN: You also need to be able to equate to a “litigate everything” to inform and influence the broader to it). The concept of fairness is a at Melbourne University to not just regulate people who consider footing but rather an identification of society—no matter what they were VBN: What about ASIC as an deeply embedded concept in human Roman history and Greek history themselves not subject to a lot the matters appropriate for litigation. about. So, the features of Weber’s organisation? We’re clearly thinking. So, to say that it’s too and their languages, but to broader of outside control. That didn’t occur in a vacuum, and model include clear accountability going through a huge social difficult to understand demonstrates civilisations such as Phoenician and DC: Someone said something like it wasn’t just responsive to criticisms for decisions that are made, there’s transformation at the moment. either a misunderstanding of what’s Sumerian and so on, does give you that to me, I think it might have been by the royal commission. It was very clear lines of authority, ongoing Can you comment on your own referred to by the use of the word an insight into how moral dilemma former Senator “Wacka” Williams, closely related to the introduction education and so forth. They’re pretty experiences as a commissioner? fairness in legislation, or ignoring or societal issues were dealt with— and I replied that if they continue to of penalties by the passing of the basic sorts of things, but when we DC: For my part, the ability to millennia of thinking. albeit rather brutally in the past. think that, they must not have been Penalties Bill. The Act introduced established the office of enforcement use Zoom and the telephone That concept “do unto others …”, for VBN: And is there a big future paying attention, because things penalties for a whole vast raft of we introduced those concepts as has meant that a lot of what I do example, permeates human thinking. for unfairness given the current have changed. I must say, the leaders provisions in several Acts which very important—be accountable for in my position can be continued. It turns up one way or another in split on what constitutes of most large institutions, I think, found ASIC’s regulatory remit. your decisions, everyone must know It is a bit difficult not having many different cultures that have had unconscionability? do understand that the landscape Effectively, the Act added civil who is accountable for the decisions, face-to-face contact. When you’re no contact with each other really at DC: Well that’s interesting. President has changed, and they’re making penalties to provisions that before who makes these decisions, when making decisions in a group, there the time. Maxwell gave a speech about significant steps to embed in their then carried no civil penalty and why. really is no replacement for being People in the media and that, and said that fairness could organisations a respect for the law consequences and significantly in physical contact with each other, VBN: So is COVID going to change others—lawyers and their clients— be an appropriate substitute for and the regulator, and to endeavour to increased existing penalties. because it’s like being in court with the “Why not litigate?” approach? persistently ask me about what unconscionability. One of the respond to suspected contraventions Previously, in seeking relief for three judges. You’ll watch them DC: No, it won’t. There are challenges fairness means. I took part in a problems with unconscionability by reporting them to the regulator, contraventions of s912A, for example, carefully, and in addressing people, that the agency itself faces during panel discussion in October last is there’ve been a lot of conflicting and dealing with the consequences. all that we could seek from the court and trying to present your view of COVID-19. For example, working at year with Justice Edelman of the views about what it means, and it’s was the making of a declaration. As what should be done.

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They try and trick you into letting Cyber snippets – them in by sending emails that look like something you should open and read, why you should often from familiar service or utility companies like Australia Post or AGL be worried What to do if you receive an email asking to share files HEATHER HIBBERD* » Don’t just click on the link—even if it looks legitimate— as it may be from a compromised account. » Phone the sender via a confirmed legitimate phone yber incidents in the legal profession are on number to confirm they have sent the email to you the rise and everyone should be worried. This and ask what information the file-sharing platform is not just a job for your ‘IT guy’, nor is it just actually needs from you before you decide whether to something for your clerk to be responsible for. open the link in the email. It rests squarely within your duty to protect » If the purported sender knows nothing about the email, your client as well as protecting yourself and advise them to report it to their IT security managers your reputation1. While as barristers you may not be immediately. dealing directly with clients’ money—where most of the C » Report the email to your IT security managers. cyber-crime is targeted—you do hold client confidential If you have already opened the link and entered your information that may be exposed and you could email account credentials, your email account has unwittingly be a conduit for allowing cyber-criminals into probably been compromised. You must immediately your client’s or instructing solicitor’s computer system. investigate the compromise and take steps to contain The majority of the notifications and claims we the risk of a data breach. If you have one, implement see currently relate to what is called business email your cyber security response plan. If you don’t have one, compromise. The law firm, the client, or someone on see our Cyber Security Guide information about how to the other side has had their email system infiltrated and develop a response plan. the criminals have been able to either intercept an email being sent, or received and changed crucial information, How to safeguard your system especially bank account payment details. Enable multifactor authentication (MFA) immediately, How does it happen? as it will prevent anyone who may have obtained your password from being able to access your system from Hacking their own device. You can set it up so it is just required This is the cybercriminal equivalent of the cat burglar once when you use a new device, or every time you log who tries to break into your system through: in. It usually involves having an app on your phone that » brute force attacks in which they set up a program prompts you to approve access when signing in. You or that just keeps trying every option to crack your your IT manager should be able to set it up very quickly. password. If you don’t have a program in place to For more detailed information about cyber hygiene lock your system after a certain number of attempts, practices and how to reduce your cyber risk, see PLC’s they can just keep trying. But even where there document-sharing emails circulating within the legal Cyber Security Guide for Lawyers, a practical guide emails from friends or known work colleagues or other are lock-out functions in place, that doesn’t prevent community that look like they are legitimate emails from to help practitioners be cybersafe, along with our firms that practitioners regularly deal with. them from coming back in a few hours or days and other law firms. When you click on the link, it takes you additional risk management cyber resources on our The emails take two different forms. One type of email trying again; or to a fake Microsoft sign-in page or to a document-sharing website. LPLC also offers a free online cyber course, contains malicious software (malware) either in a link or » buying passwords on the dark web from major hacks platform such as Skyfish or Dropbox. These emails won’t details of which were recently sent to all barristers attachment you need to click on to download, or in some of organisations like Facebook and banks. If you use the necessarily be caught by anti-spam filters because they by the Victorian Bar. We encourage all barristers to instances just opening in your email view may be enough. same password for multiple accounts this leaves you often come from legitimate law firm email accounts that participate.

The software can do various things including: illlustration by guy shield exposed. have been infiltrated by cyber criminals. *Heather Hibberd is the chief risk manager of the Legal » shutting everything down; If you click on the link you will be asked to put in your Practitioners' Liability Committee » harvesting your keystrokes—including your login details Social engineering email credentials: username and password. By doing for any accounts you use—email, banks etc; and 1 Legal Services Board + Commissioner, Cybercrime: a The confidence trickster is the physical world equivalent this you will be giving the cyber-criminals access to your growing threat to lawyers and clients https://lsbc.vic.gov.au/ » collecting other data from your system: contact details, here. They try and trick you into letting them in by email account. The criminals are then able to monitor newsupdates/news/cybercrime-growing-threat-lawyers- documents etc. and-clients; Legal Practitioners’ Liability Committee, Cyber sending emails that look like something you should open your correspondence silently and look for cyber fraud The second type of email purports to send you some claims are on the rise https://lplc.com.au/risk-management/ and read, often from familiar service or utility companies opportunities, including sending further phishing emails cyber-security/. documents. There has been a spate of fraudulent like Australia Post or AGL. More recently we have seen to everyone in your contact list.

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The Firm Perhaps showing my age, I finished reading the book, The Firm, on the eve of starting my articled clerkship. news and views news Our Top I saw the film soon afterwards. It didn’t help that my workplace specialised in tax law. I spent the first few Courtroom months lost in conspiracy theories. Still, unlike Mitch (Tom Cruise), I never scored a house, a new car, had my student loans paid off, or scored a trip to the Cayman Dramas Islands. I might have swung to the dark side myself if I had Gene Hackman telling me what to do. Natalie Hickey If you close your eyes and think of all the great performances (Hal Holbrook, Ed Harris, David Strathairn), one that stands out is Holly Hunter. A chain-smoking o many movies. So many candidates. secretary, she becomes Mitch’s wing-woman as he tries to The Bar News Committee has sought unpick the sorry mess he has found himself in. to identify the best courtroom drama, To be frank, little—if any—of the action in this ever. The discussion started before film happens in a courtroom. The lesson it provides lockdown. It continued through Zoom though, is an enduring one: you can always win a meetings. There were nominations. case on a technicality. Winning is winning. There were debates. Popcorn recipes were Sperfected. The process ended with a popular vote. There can, of course, only be one winner. Philadelphia Bruce Springsteen’s haunting and melancholy "Streets of Philadelphia" won the 1993 Oscar for Best Original Song. The movie itself went on to become a classic. It was lauded for being the first Hollywood big-budget film to acknowledge HIV/ AIDS, homosexuality and homophobia. A lawyer (Tom Hanks) appears at work with a visible lesion. When fired by his law firm, he suspects the reason is because they know he has AIDS. He hires a homophobic small-time lawyer (Denzel 10Honourable Mentions Washington) who is reluctantly willing to take on a wrongful dismissal suit. Any decent Top 10 list wanted to watch Rocky X. Roger Ebert considered the movie ground-breaking, likening must build the suspense For other contenders, it to Guess Who’s Coming to Dinner, the first film about an with a countdown. Yet it consider Bridge of Spies, interracial romance. But, how often do you see Philadelphia was impossible to have a Amistad, Anatomy of available on re-runs? There was also a lawsuit brought by the single candidate for our a Murder (although the family of Geoffrey Bowers which subsequently settled. Events in No. 10. It was Muhammad guffaws in the courtroom the film were very similar to the life of Bowers, an attorney who Ali’s Greatest Fight which by the reference to sued the law firm Baker and McKenzie for AIDS discrimination in led to our vote. The title “panties” is not exactly a one of the first such cases. Tom Hanks, when interviewed for the is absurdly misleading. #MeToo moment), and one documentary, The Celluloid Closet, said that scenes between him It focuses on the United mustn’t forget Kramer v and his lover, played by Antonio Banderas, were cut—including States Supreme Court’s Kramer. one of them in bed together. Despite the movie’s mixed legacy, shenanigans when working Interestingly, A Cry in the Primal Fear Philadelphia was an important milestone. out how to deal with boxer Dark (Evil Angels) is listed If you are looking for courtroom drama with a dose Muhammad Ali’s infamous as No. 9 on the American of (young) Hannibal Lecter, it might be time to dust Demi Moore, Kevin Bacon and Kiefer Sutherland. So, if by now refusal to be drafted to the Film Institute’s list of Top off Primal Fear. Yet another movie of the 1990s, this A Few Good Men you are not sure, this was a full-on Hollywood movie with mega- Vietnam War. Christopher 10 Courtroom Dramas features Richard Gere in his post-Pretty Woman "You can't handle the truth!" It takes most of the movie watt star power. Plummer plays Justice but did not feature in our hey-day. He is a Chicago defence lawyer. Edward to get to the immortal scene where Jack Nicholson Here, the courtroom scene is a court-martial. Two US marines John Marshall Harlan discussions. We love Meryl Norton, a shy teenage altar boy with a stutter, is his totally loses it. It’s probably the single reason why have been charged with the murder of a fellow marine, Santiago. II. Danny Glover plays Streep, but her rendition of client. He is accused of killing beloved Archbishop Rushman. he was nominated for a best supporting actor The defence team has an uphill battle. The term “code-red” Justice Thurgood Marshall. The dingo’s got my baby! However, as with all the best courtroom dramas, there is much Academy Award. Aaron Sorkin (West Wing) wrote “ ” suddenly takes centre stage. Finally, there is the big risk Tom It’s thrilling for lawyers, may not convince everyone. more to the story than meets the eye. Richard Gere must the screenplay, which he adapted from his own play. Rob Reiner Cruise must take when his legal strategy is at a complete dead- perhaps less so if you navigate the twists and turns to arrive at a pretty twisty ending. directed. Tom Cruise—again—was the star, closely followed by 9 end. He calls Colonel Jessup to the stand…

photo courtesy of allstar picture library limited / alamy stock photo 26 VBN VBN 27 news and views photo courtesy of world history archive / alamy stock photo Legally Blonde kay, so courtroom “drama” is her way through, is independent, forms Ostretching it. But this is the movie positive female relationships and of news and views news that brought the ‘bend and snap’! course, overcomes stereotypes against Nothing was going to stop some blondes. Naturally, by the end of the trial members of the Bar News Committee in her first court case ever, she is lead from voting for it. counsel and wins the day. How to describe this giant of The ‘bend and snap’ scene, where Elle American cinema? Elle Wood (Reese explains to her new friend, Paulette, how Witherspoon) is a modern heroine. She to get the attention of the UPS guy, has is a blonde sorority girl obsessed by left a lasting impression on Witherspoon. beauty and fashion. To win It is reportedly the most asked back her ex-boyfriend, request she gets from people. “I Elle decides to obtain a have a feeling I will be doing Juris Doctor degree at the bend and snap until I Harvard Law School. am 95,” she claims. Not exactly a model This is a really silly film. of feminism, we hear But if you smile and feel you say. But in the really good when it’s over, To Kill a Mockingbird THE RUNAWAY WINNER IS … process, she works what’s not to love? Sometimes you read the appeal. They are packing their books in school and The Castle 12 Angry Men bags, pending eviction. Lawrence wondered why the hell The Castle scored he Kid”, as the jurors call him, reveals himself to be a Queen’s

photo courtesy of world history af archive / alamy stock photo they made it onto the double the number is a youth from the slums. His Counsel! He is interested in the “T curriculum. James of votes of any ethnicity is not specified but we know Kerrigan’s case! This leads to a Joyce anyone? What other nominee. It is it is likely a factor. He is the defendant, trip to the High Court in Canberra. is the point of all those one of the greatest charged with the murder of his father. The jury It leads to section 51(xxxi) of the long sentences? Then Australian films ever is composed entirely of white men. The deck is Constitution becoming part of the along comes a book that resonates with made. This courtroom surely stacked against him. Enter Henry Fonda. Aussie vernacular (well, almost). students. Even more rarely, that book drama is more than just ‘the vibe’. The conflict occurs within one room. The The home, built on love and becomes a great movie. The legal question is vital: can jurors want to get on with it. The evidence is shared memories, forms part of Harper Lee wrote a sensitive tale the Government compulsorily clear. Life awaits them outside the four walls. impassioned advocacy. The end that deserves to be taught. The acquire the Kerrigan’s Coolaroo Come on already, let’s go. A vote is taken. There is result is a court win, a life-long #BlackLivesMatter movement serves only house right next to the airport, only one person holding out. It is Juror No. 8 friendship between Lawrence to highlight the currency of the message. for $70,000? If the Government —Henry Fonda. The ensuing action is essentially and Darryl, as well as trips to Gregory Peck, in one of the finest stories is right, the family will be evicted the absorbing experience of watching how one Bonnie Doon (‘Ah, the serenity’).

photo courtesy of picturelux / the hollywood archive / alamy stock photo stock / alamy archive / the hollywood of picturelux courtesy photo ever put to film, is beautifully cast as from their home. The money man can turn a jury. The quietly spoken architect If anyone thought any other movie Atticus Finch. In 2003, the American Film offered could barely cover a small causes the jurors not just to test the so-called was going to take top spot, Tell Institute named Atticus Finch the greatest apartment. “ clear evidence, but their morals and values. ‘im, he’s dreamin'. movie hero of the 20th century. What lies in the movie’s ” Jury duty is verboten for barristers, so this is the Atticus, a lawyer in small town success? Is it the warmth of those closest fly on the wall experience we can get. Alabama, strongly believes that all quintessential Aussie battlers? people deserve fair treatment. He is Darryl Kerrigan’s poolroom? His appointed to defend Tom Robinson, a neighbours or Dennis Denuto?

Erin Brockovich black man accused of raping a white Darryl is certainly the beating photo courtesy of neftali / alamy stock photo Before featuring in those Shine settlement of $333 million, and a bonus woman, Mayella Ewell. He accepts the heart of the movie. But it is Lawyers ads, Erin Brockovich was the for Erin of $2 million. case, heightening tension in the town. His Lawrence Hammill (beautifully eponymous heroine of the movie and In the end though, it is the courage children experience racist taunts. Tom played by the late, great Bud even cameoed as a waitress. Directed of the heroine, her cash-strapped is found guilty, despite the persuasive Tingwell) who saves the day. by Steven Soderbergh, it was the status, her refusal to be ignored, and arguments of Atticus. As Atticus exits Lawrence has come to watch vehicle which led to Julia Roberts’ her insistence that she be given a job the courtroom, the black spectators rise his son, a barrister, in court. He best actress Academy Award. by her lawyer (played by Albert Finney) to show their respect for him. makes pleasant small talk with There is a court room drama at the which leaves an indelible memory. In There is more, of course, to the tale. Darryl, who is awaiting the court’s centre of the movie. Erin’s diligent efforts his breakout role, Aaron Eckhart as Robert Duvall played “Boo” Radley, marking decision after Dennis Denuto’s find evidence that the groundwater of a her boyfriend, George, is particularly his film debut. This is a classic film. Dust appalling advocacy. Lawrence is small town in California is contaminated. charismatic. Some would say, the best off your old VHS tape and watch it. the breath of hope. He turns up at

photo courtesy of world history af archive / alamy stock photo stock / alamy af archive history of world courtesy photo There is a huge win involving a thing in the film. their home after the family has lost

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than usual in a virtual hearing when far greater scope to employ electronic a document, provide it to the The virtual advocate a speaker is monotonous. Variety presentation tools. By using the court (and, of course, your remains key. Variations in tone, pace ‘share my screen’ function that opponents) before the hearing; news and views news and pitch will fall on grateful ears. most of the platforms have, you can the associate can then manage its ERIK S. DOBER You may find it useful to have a use any tool on your computer to display. Of course, always make sure slower pace and employ longer pauses enhance your presentation. Of course, that you distinguish an aide memoire than usual for virtual hearings. This you must obtain leave of the court from evidence. ideolinks and internet conferencing tools dropouts. This is a worst-case scenario for advocacy: will give you the opportunity to ensure before doing so. have been around for years. The legal that you cannot be heard at all. Bandwidth is shared the tribunal is following along and give Here are some useful ways you can Confidence is compelling profession has been slow to adopt the with other users. If you are at home, make sure the kids them the opportunity to ask questions. employ the share screen function: Following these tips will make you technology. Until now. Now we have no are not streaming a movie at the same time you are Discourtesy, interruption and » Show a document in PDF or MS appear more confident in your virtual choice. And it is likely here to stay. conducting a hearing. aggression are each starker in a Word and speak to it hearing. A confident advocate is a Barristers can capitalise on their » Arrange to dial into the virtual hearing room in virtual hearing. Pay particular care if » Use in-built highlighting and more compelling one. Do not cede strengths as specialist advocates through effective advance so that the parties can test the system before you are cross-examining witnesses. typing features to draw attention to that confidence. You would not attend use of the technology. This article sets out tips for how. the presiding officer arrives. Objecting during cross- parts of the document in real-time court and say to your judge or the First impressions still matter Rules of formality apply examination can be difficult in a » Use annotation software—such as instructor that you are uncomfortable virtual hearing. The witness may Epic Pen—to annotate anything speaking publicly. The same is true Your physical presentation in court matters. The same The default in a virtual court hearing is to replicate the V have already answered before you at all on your computer screen: of virtual hearings. Do not apologise is true in a virtual hearing. But you have greater control etiquette and rules of formality that apply in a physical manage to get the objection out. documents, websites, photographs, in the hearing for your discomfort over your appearance in a virtual courtroom than courtroom. Here are some common issues: Accordingly, it may be the one videos or inexperience with the technology. a physical one. There is opportunity to stand out. » To stand or not to stand: Standing is generally preferred exception where a fast, hard, loud » Use a PowerPoint, Prezi or other Just as in a physical court room, Here’s how: for advocacy. First, it conveys appropriate respect for the “objection!” is important when the presentation. Using presentations you will need to adapt when the » Dress as you would if attending court. court; if the court officer asks you to stand, you must. occasion demands. has gone in and out of style. When unexpected happens. Show command It is a sign of respect. Some judges Second, it is better for voice projection and therefore a Eye contact still used effectively, they can be highly of the situation. continue to robe for virtual hearings. powerful advocacy tool. Thirdly, it can also be a polite way matters. Know where persuasive. Many of the tips above will Take their lead. of objecting or interrupting someone else. Why would you your camera is and Just as if you intended to use an be familiar. The principles » Wear dark clothing. Patterns can surrender this tool when you do not need to? However, look at it (not at the electronic presentation tool in court, of advocacy are the same. have a distracting effect on video. there are pitfalls in an online setting. The most common screen). Place your you need to discuss your plan with It is the application that » Your camera should be placed at your is that the camera looks up a person’s nose when they notes close to your the court. Usually the associate differs. This means that eye level. Otherwise the view is likely to be unflattering. are on their feet. Therefore, if you intend to stand whilst camera so you appear to be making will control access to the ‘share my virtual hearings are an » Ensure lighting is behind the camera and not behind speaking, ensure you have set up your camera in a way eye contact whilst speaking. screen’ function and you will need to opportunity for the Bar to you. Brighter light will improve the quality of the video. that enables you to remain in view while seated and give them advance notice if you want demonstrate its specialist skills. » Your background should not be distracting. A bookshelf while standing. Structure to use it. If you simply want to rely on Let it not go to waste. or your chambers in your background is fine if they » Eating and drinking: As with courtroom A structured argument is are tidy. An alternative is to blur out your background advocacy, food and drink—with the ordinarily more compelling. In or to impose a virtual background. These features are exception of a glass of water—should a virtual hearing, it is essential. available in some technology platforms. not be visible to the bench. At the outset, clearly articulate » Punctuality: Also, as with a a roadmap for what you will Preparation matters more than before courtroom, be in the hearing space discuss. The intellectual preparation for a court hearing needs no before the judicial officer or arbitrator Your structure will be more explanation. You also need to prepare your technology. arrives. When in doubt, make contact obvious if you have provided a » Test your audio and video in the chosen technology with a court officer or associate beforehand written outline ahead of time. platform ahead of each hearing. Become familiar with to understand when you should dial in. You should Even if you may not ordinarily turning your video on and off, muting your microphone only leave with permission or after the judicial officer do so, consider providing a and adjusting volume. or arbitrator has left. This is foremost a courtesy to written outline of submissions » Your audio needs to be clear so the tribunal, but it also minimises any appearance of ahead of most hearings. This that people can understand you. ex parte communications. should mean you are briefer Practise with a colleague so they can In recent times courts have introduced practice notes when you are on your feet. identify any potential problems. A that address virtual hearings. These occasionally set out common one is feedback where your matters of etiquette. Check for practice notes ahead of Use the new tools of microphone picks up the audio from the each appearance. other participants and relays it to them. This is easily advocacy cured by wearing a subtle set of headphones. Use the old tools of advocacy Electronic presentation » Have a strong internet connection. Video hearings drain Your existing advocacy skills should be employed during tools are not new. They are bandwidth. If you have a poor internet connection, a virtual hearing. If anything, virtual hearings will compelling—when they work. it is likely your video and audio will be spotted with emphasise styles of address. It will be more noticeable Virtual hearings can give you illlustrations by guy shield by illlustrations

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Legal in lifeLOCKDOWN

Our Victorian illlustration by guy shield by illlustration Bar in lockdown. Chaos, collaboration, determination, resilience, and fun. For our photo essay, read on!

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Brenton Devanny – Following a Federal Court hearing Ron Merkel QC leading Dr Laura this morning conducted without wearing shoes. ADVOCACY Hilly – Ron Merkel addressing the Full Court of the Supreme Court of Tasmania in the matter Iso Stories in the age of of Cawthorn v Citta Hobart Pty Ltd & Anor. Laura reports that she and Ron appeared from “Court Room Level 22, Owen Dixon CORONAVIRUSn April this year, a judge in Miami West”. Simeon Beckett from issued a broadside to attorneys Sydney appeared on behalf of the who were dressing inappropriately Appellant. The Full Bench sat from on camera. His letter, posted on the either their home or chambers, Weston Bar Association website, with the Respondents appearing referred scathingly to seeing from Court Room 2 in Hobart. lawyers in casual shirts and blouses. One male (With thanks to the Chief Justice lawyer appeared shirtless. One female lawyer of Tasmania for permission to appeared still in bed, under the covers. publish.) Victorian barristers have also had to adjust toI online hearing room etiquette, and to the challenges of working from home. Bar News put out the call for photographs of what this Paul Hayes QC – Paul was very keen to tell Bar News that new life looks like. It appears everyone is fully Katharine Gladman his set-up was ‘satire’. We note that Donald Trump has Ben Jellis – clothed, which is a good start. The results are – Ready for County been taking that line of defence too. “This is me diverse and delightful. Thank you to everyone Court hearings via ‘working who contributed. Zoom … from home’ in my home chambers.” Shanta Martin - “Our Bar News committee meetings are not so different via Zoom, just a little more relaxed.” Peter Jopling AM QC

Robert Sadler – Rob says he has been hunting for a virtual background that actually works AND makes him look better.

Michael Wise QC – Michael clearly enjoys all the gadgetry. The lighting and microphone are very ‘best practice’.

Campbell Thomson – Jennifer Batrouney AM QC, “The view from my desk.” with Moose and Minnie – “I have just had a judgment handed down via Webex from the Supreme Court in South Australia. The judge did not need to know about the slippers … (or Moose and Minnie).”

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Siobhan Ryan and Garry Fitzgerald QC – Michael Wood – “You can “’Closed Court’.” see my ‘PA’ named Abigail (known to her friends as Abby), a nine-year-old Staffordshire terrier who has Iso Stories been attending my Family Law mediations. Abby loves to join mediations so that she can make new ‘e-friends’ and ensure that morale is high for everyone. My only concern is that she will (perhaps understandably) ask for a share of my mediator’s fee, such is her popularity with counsel and clients alike.” Stephen Warne – “Improvisation is the spice of life.”

Melissa Marcus – “A personal training session with my daughter Madeline.”

Eleanor Coates - “This is what working from home looks like while being a parent, teacher and barrister in 2020...with a bit of poetic licence!” Daniel Nguyen – “My wife Kerry and I had fun staging some photos. Chris Wren QC – “’The Inspiration for my These are with our recent additions Celine and George (both four Aspiration in my Isolation’—This has been my months now).” out-of-home-office distraction! Redwoods at Warburton planted in 1935 and their aspiring Natalie Campbell – juniors planted in Flinders in COVID-19.” “One-year-old Edith working from home.”

Anna Svenson – “Working remotely from our Bronia Tulloch – “This farm in South year my daughter Georgina Costello SC – (Left) Appearing in the Gippsland with Alexandra, aged 6, Full Federal Court using Microsoft Teams; (Right) my pet cow made me a reversible Mid-week lunch break during iso. ‘Jersey Girl’.” sign for Mothers’ Day.”

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COVID-19UP CLOSE AND PERSONAL

JOHN GURR

his is Fletcher; he’s been stick reminds me of those long skinny sticks used sleeping in my wardrobe!” to hold fairy floss at school carnivals. Open your mouth, “Oh well,” the senior stick out your tongue. Down it goes to the back of your constable replied, smiling, throat for a quick scrape. Repeat in both nostrils for “I guess he’s got to sleep good measure. somewhere.” I was lucky, in that I ‘passed’ and received a positive It was Friday, 10 April 2020, the third day in a row that result on my first test. My wife was not so fortunate. the police had come to visit. The previous week, I had As I was recovering, Luisa—who had to date been fine tested positive for COVID-19. The police were checking —also began to fall ill. Her symptoms were at the scarier that our three boys were properly self-isolating. Somewhat end of the spectrum: fatigue, a dry cough and, most “Tanomalously, although our boys were required to isolate, troubling, a claustrophobic shortness of breath, “Like my wife was not—at least initially. Luisa had initially someone sitting on my chest.” It was sufficiently bad at received a negative result for COVID-19, at the same time one point to warrant an overnight stay in hospital, with as I had tested positive. She was in the clear. Our boys, the requisite barrage of tests. Five separate times over however, who had not been tested and had shown no two weeks, the fairy floss stick disappeared down Lu’s symptoms, were required to remain in the house. throat and up her nostrils. Five separate times, the swab My COVID-19 experience had begun some three weeks came back negative. And yet, officially, the result was earlier. I had come down with a persistent fever and positive. By the end of it all, Lu had been at the Austin so chills. At first, I tried simply to work through it, fortified often she was on first name terms with all of the staff on by increasing doses of Panadol. Eventually, however, the the COVID-19 ward. crushing fatigue forced me to raise the white flag. I sent I am convinced that, although unwell herself, Lu emails to my instructors letting them know I would be willed herself to remain symptom-free whilst I was sick, out of action for a while and that some looming deadlines because we could not have afforded as a family to have would not be hit. Their response (and from colleagues at both of us knocked out at the same time. It was only once the Bar) was both universal and humbling: health and I was on the mend that she gave herself permission to be family must come first. So, I slept. sick. A real superwoman! I was initially diagnosed—remotely—with influenza. Lu and I have now fully recovered. Our boys were As I had not been overseas or otherwise required to stay in isolation for two weeks exposed to a known case, COVID-19 after Lu was symptom-free. On 12 May was not suspected. I was advised not 2020—39 days after being locked in—they to present for testing. That changed, were finally able to leave the house. During however, when a family friend, who that time, they were brave, resilient and had recently visited, received a positive remarkably patient. Fletcher also had his diagnosis. Off we trooped to the Austin sixth birthday in isolation. This year, Hospital for testing. however, his birthday party will be a The swab test is unpleasant, little bit later than usual. although mercifully quick. The test

VBN 39 illlustration by guy shield by illlustration particulars. Prosecutor for 40 minutes. Halfway 05 Audio link Iso Stories would normally read out through, the video link with resumes. Mr X ZOOM DAY THE WEBEX 13 April 00 Thank summary. It’s 16 pages. We prisons drops out. We get realises this. Judge fates for PLEA all have it. Judge agrees to some minutes’ down time assures Mr X he will 09 One day before Easter. 29 trusty Rancilio take it as read. until it resumes. diligently read all April First virtual plea Silvia espresso machine and tendered materials. Asks in County Court. 45 Judge invites me 25 Mr X, counsel grinder. Contemplate virtual

Iso Stories if anything of substance 9 Associate sets up to speak. Emphasise for co-accused, filed travel through coffee beans 10 11 not in materials? Mr X WebEx link, emails detailed difficulties in prison during 13-page plea submission from Peru, Java or Kenya. summarises submission instructions. Have used pandemic: 23-hour-a-day so if the video link breaks on appropriate sentence. 30 Prepare for two Zoom, have some idea of lockdown, no visits, only down, Judge will have Prosecutor takes five 09WebEx hearings. what to expect. Mate says urgent medical appointments, what he needs to say. minutes in reply. Judge Decide on chinos plus appeared in Court of Appeal limits on phone calls and Mr X explains chaotic & asks question. Prosecutor suit jacket, shirt and by WebEx and had to robe fear that if COVID-19 infects violent childhood endured needs instructions. Texts stripy bow tie. for the occasion so had to go anyone, it will quickly by his client. instructor who’s elsewhere. 30 Judge comes to chambers. Found it spread. To speak to me by 50 Judge says Can I Gets quick response. on bench after difficult to get point across. phone the previous day, 10 just stop you there, Mr prosecutor, counsel for Associate says judge will client was frisked before & 12 20 Judge adjourns X? Audio link has dropped co-accused & I exchanged be robed and in court. We afterwards by prison officer to date to be fixed out. Judge can see & hear Mr 13 gossip, having joined do not need to robe, can be without gloves or a mask. for sentence. Hopes for X. Mr X cannot hear Judge. meeting 10 minutes ago. anywhere with video link. Social distancing in gaol week after Easter. Leaves Judge tries interrupting. Judge reads brief pre-trial Discard notion of hoodie next to impossible. Call client bench. Stand & bow, Gives up. Mr X passionately ruling. Goes my way. Then & trackie dacks. Don pin to give evidence about how expose midriff again, explains how client’s father revises another ruling. stripe suit & most colourful & why he will rehabilitate click “leave the meeting.” injected client with heroin at This cuts down the coming bow tie. From Zoom himself despite recidivist past. Stare at blank screen. early age. interlocutory appeal by experience, know location On my feet, metaphorically, half. Yippee… is critical. Set up laptop in bungalow, at same level as 30 Judge 2 comes on face (Mate’s tip: don’t have DOMESTIC BLISS 11bench. Confirms pre- laptop camera zooming up sentence detention. Reads April 00 Radio paper bags when she could Bored doctor son yearns nostrils). Behind me bright out immaculate reasons National fill containers at Source… for more drama in Alfred painting by Larrakia artist, 07 for lengthy sentences. Both 14 news: Tim Emergency & texts link Prince of Wales. 30 At desk in prisoners upset. Judge and Brooke-Taylor, Goodies to latest Strokes album, bungalow. Attempt prosecutor leave so we can 20 Join WebEx as comedian, dies aged 79 from 10 New Abnormal. appeal submissions. speak privately with clients. instructed. Tipstaff COVID-19. Make partner tea 10 After two paras, watch 10 Assist vegan Counsel for co-accused on screen in court. Client and toast & return to bed. Wallabies–All Blacks game daughter cook stir agrees will be tough to beamed in from Barwon Check emails, Instagram, 19 from years ago when fried tofu and vegetables overturn on appeal. prison, co-accused from Facebook, Age headlines & Wallabies won. with red curry paste & 00 Discuss prospects Metropolitan Remand New Yorker posts on phone. coconut milk. Pretend rare of appeal with Centre, in white & green Partner & daughter say not 00 Sandwich on 13 rib eye steak. instructor. Lament recent T-shirts respectively. safe to go to Vic Market. back deck 13 similar case with huge press Haven’t seen each other in sunshine. 30 Debate TV 00 Vic Market. Park coverage that must have since committal. They joke Partner asks viewing in living CAMPBELL THOMSON in empty car park. 20 impacted. Consider possible & skylark, pose for camera. 08 when will room: The Bridge, Great Go to regular stalls. Pay ground Judge did not prune creepers. British Bake Off or 25 Crown prosecutor with card. Sanitise card. properly take into account Konchalovsky’s Asya’s joins, in suit and Giovanni, tomato go-to 20 Ignore warnings impact of COVID-19 on SITTING DUCKLING 10 Happiness? Watch tie & clearly in office man, explains won’t let his re old guys & ladders, prison sentences. March 40 Cycle around. Cannot see its Near Little Lonsdale a 14 Konchalovsky in bungalow. at OPP. Counsel for elderly parents help out. climb on roof & clear into mother. Pick it up. Put it disconsolate duck quacks 00 Bar News 08 co-accused enters jigsaw Cleaners wander about with overhanging vegetation. 40 To bed. Read 29 chambers rather carefully in outside pouch next to woman from Parks 14committee meeting from chambers in robes. detergent sprays. Can’t hand three pages of than taking the tram. 142 of backpack. Intend to Victoria, speaking into 30 Bike-ride into city. 22 by Zoom. Bar has decided over plastic or paper bags Boswell’s Life of Johnson: new cases of COVID-19 in deposit nearer Yarra. phone. Reunite duckling 30 Judge comes on Little traffic. Bodies can’t afford hard copy issue. for reuse. Social distancing 16 when a man is tired of Australia today. Overcast, Young woman with mother, cycle on bench. We all try to in Carlton Gardens soak up Bummer. Discuss various 10 no issue: no-one here. London, he is tired of life. traffic light. Stop at corner approaches. to chambers. Think apt stand. Various cameras autumn rays. digital formats. Run through Hope to be in London of Russell and La Trobe. Directs me metaphor for our times. capture midriffs. 35 Home. Cop prospective content. Fun 05 Mitigate exercise again some time this Notice duckling huddling around We are not alone. Only Make virtual appearance. criticism from catching up with pals, 09 with two Negronis. decade. beside light pole. Look corner. feel like sitting ducks. Associate takes prisoners’ daughter: bought nuts in 18 exchanging gossip.

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CHAMBERS DRINKS BY ZOOM Iso Stories April 00 As 30 18Chambers Martini Maker, organised Zoom alternative. Cocktail shaker full of iced Negroni & bowl of olives next to laptop.

05 Gabi comes on 18screen. We wonder Bar! Legend. Dion’s horse, run live in Brisbane with 10 Big debate about if others will join, then Wings of Pastrami, runs no convenient flights. Keith 19loosening lockdown ten more faces appear its first Group 1 race on says his pre-selection restrictions. All agree work with champagne, various Saturday. Brind says he’ll delayed by COVID-19 will dry up. Brind gets concoctions involving gin take a plunge. Further but reasonably confident. call to dinner. All agree to and juices, plus lime cordial toast for Sandip settling on Secretaries leave our Zoom repeat Zoom cocktails in for Fatmir mid-Ramadan. new house. He whinges re for greater virtual fun two weeks. Waves & smiles Toast Brind for 50 years at defamation case about to elsewhere. all round.

WEBEX INTERLOCUTORY APPEAL May 00 Alarm OK, sends me to ‘waiting leading question. His head am ahead on points but STORIES FROM ISOLATION 8 06 goes off but room’. Elderly client fills screen. Justice Forrest who knows. already awake, comes online from son’s remarks dryly, “That’s a 30 Throw off suit, going over arguments. In house in Gippsland. My line of argument for the throw self on couch. tracksuit, make cup of tea. opponents—silk, junior closing address you hope 12 Sun shining outside. Have Draft opening remarks in and instructor—gather in you won’t have to make.” lunch on deck. Exhausted. ISO LIFE long hand. big office at OPP. Justices Finish, thinking could have So much energy exerted for FABIAN BRIMFIELD Weinberg & Forrest link in been much worse. 00 Twenty-minute such a short appearance. from home offices in suits. exercise routine. 15 OPP silk argues any of us are getting used to appearing gesticulated wildly and pointed to her phone whenever she 07 00 Gillies texts to see Cereal and orange juice. 15 President Maxwell trial in public interest, in court by phone or video whilst safely wanted me to look at a text she had sent me. That led to 11 if on for Zoom drinks Shower and suit up with in robes comes would be acceptably 17 ensconced at home or in chambers. the comment from the bench: “Mr Brimfield, I think your 10 at 6pm with Boyce and best shirt & bow tie combo. onto bench in Blue Court. fair despite many years’ I report back from the front line (or front-facing camera, instructor might be in pain…”. No judge, but I was. Howden. Sure thing. Checks we can all see and delay, missing witnesses, asM it were) after a few personal experiences. Judges are not immune from technical maladies either. hear each other. Invites implausible allegations & 00 Gillies on screen Some weeks ago, I was briefed in a civil hearing in the Spare a thought for Chief Justice Blow of the Tasmanian me to speak. My opening prosecution witnesses that 18in suit from chambers County Court, to be conducted Supreme Court, who recently remarks are a dialogue undermine their own case. with whisky in hand. His by Cisco WebEx. There were had to interrupt a Zoom hearing between two blokes in Questions seem to indicate probate practice totally three solicitors, three counsel, “It can be tempting to adopt a nom- because someone was knocking at a pub to demonstrate court not buying it. unaffected by plague. the clients, and at times two his front door. 10 To bungalow. trial would be abuse Boyce and Howden zoom expert witnesses. Each appeared de-festival. Just be sure to change it Lastly, a cautionary tip. Some of 20 Silk concedes a Organise materials of process & should be in from home in T-shirts. by video, so on my screen there you may be using Zoom to host 08 specific error, still back to your real name before you around desk, plan for likely stayed. Could flop badly 12 My pink grapefruit daiquiri were up to ten little boxes with parties with your friends and maintains trial should questions. Try to neutralise but seems to work. Go slides down nicely. Gossip faces including those of the judge use Zoom again for Court.” accomplices on weekends or after proceed. President opposing submissions. through indictment to show exchange proceeds—who’s and his associate. hours: a perfectly reasonable and safe way to maintain thanks counsel, asks for Worry opening remarks problems with each charge. in, who’s out; what’s next… The hearing, listed for a single day, turned into three days contacts with others. It can be tempting, when engaging comments on process, gimmicky. Extract principles from after an expert witness with poor internet connection was in such virtual gatherings, to adopt a nom-de-festival. Just if technology adequate. 15 Gillies has to get recent cases. List necessary frequently disconnected. The judge eventually required the be sure to change it back to your real name before you 45 Go online as Despite occasional frame home for dinner. jury directions to try to 19 witness to give evidence in person. use Zoom again for court. Yours truly almost appeared as instructed to freezes & brief audio drop Check Boyce OK for 09 show absurdity of process. I had told my instructor that if she needed to Anastasia Beaverhausen in the commercial court some contact court. Associate outs, worked pretty well. run next morning, wave Justice Weinberg leans communicate with me, she could do so by using the instant days ago, only to change my name again just before the checks audio & video Decision reserved. Reckon goodbye. forward & asks helpful message feature on the Cisco application. Instead, she judge connected. Phew.

42 VBN VBN 43 Iso Stories STORIES FROM ISOLATION of prudence or malice. In any event, I experienced six hours of (technically unnecessary) labour. Surgery then My experience of commenced and I gave birth to a Experiencing whiplash healthy boy.

Iso Stories GIVING BIRTH IN LOCKDOWN In the five days I spent in hospital and its recovery postpartum, I was not permitted to NATALIE HICKEY LUCY LINE leave the ward floor, due to COVID. No-one was receiving visitors and a here are only a The next fortnight saw the gave birth to my first- her to deviate from policy. Another friend who tried to send me flowers handful of occasions Australian legal system in transition. born child during the time, at a late-stage ultrasound scan, was informed that the hospital was when I have felt I was due to start a trial. The judge COVID-19 lockdown. I saw for the first time my child’s not accepting flower deliveries for such shock and instructed the parties not to hand up In the lead-up to the face in great detail. I was suddenly patients. By day five, I was feeling panic, combined documents during the hearing; they birth, COVID-19 was and unexpectedly overcome with newfound sympathy for, and with a sense that the were to be submitted by email one initially treated by my the emotion of that moment. As I solidarity with, cruise passengers future has lost all certainty. hour before the start time each day. obstetrician as being not a big deal lay prone and wiped tears springing stuck on COVID-stricken ships! The first time was when I was in Later in the week, the Chief Justice and a bit overhyped, and then, in a from my eyes with my fingers, the After our son and I returned home, Year 12. My school principal was vacated all listings in the Federal swift reversal as the virus spread to visibly alarmed obstetrician who my husband and I enjoyed the quiet shot through the rear window of Court. The trial was gone. I came looked well dressed. It was such a Australia, as a very big deal. It was a was performing the scan blurted out, and privacy the COVID lockdown his home. He was the victim home to tell my partner the contrast to our normal business wear. scary time. I had seen a YouTube video “Don’t touch your face!” brought, smothering our baby T I of attempted murder. The news. He was watching People worried about the mental of a barber in China maintaining social Paradoxically, COVID-19 in kisses and doting over news was a bolt out of the World War Z on television. health of colleagues. "She feels the distancing at work by performing a brought us some his every whimper and blue. It was on the front We watched Outbreak pain of the world", shared one person haircut using a razor attached to a meaningful benefits coo. This family time page of newspapers. We together over dinner. with me. broomstick—if I contracted the virus, during this period. My was so enjoyable that arrived at school to be told Soon, working from home As the months have passed, a sense would my scheduled C-section be husband, who usually my husband declared he was in a critical condition. became the new normal for of calm has returned. Our Stage 3 performed by scalpel and broomstick? works full-time in an that he hoped that His name was similar to a Family everyone. An instructor told me lockdown has become something less. Whenever I attended the hospital office, started working lockdown lasts forever! Court judge. People speculated it over the phone that when this was The mood is one of re-emergence. for a pre-natal appointment and had from home in the weeks It was a rare sentiment, was a case of mistaken identity, or all over, we were either going to be Our grocery stores are fully stocked my temperature taken upon entry, I leading up to the birth. This I am sure. that a disgruntled former student ‘swamp rats’ or ‘smoking hot from all once more. We appreciate face-to-face anxiously awaited the result. meant that I felt very supported We benefited from our friends’ was involved. We were frightened the incidental exercise’. She was the contact. Restaurants are re-opening. As the curve in Australia continued and we were able to enjoy some lockdown-inspired cooking bonanzas, and worried. Our principal knew second instructor that week who told I went for a walk and saw a hot-air to ascend, increasingly stringent special time together in our last days as they dropped their culinary creations every student’s name and we cared me she was still in her pyjamas. It was balloon in the sky. The colour was a hospital policies made my pre-natal as a family of two. at our doorstep. Flower deliveries a great deal for him. I also worried 11.45am. celebratory red. It was restorative. experience a little harder and more My waters broke on a weekday and presents also arrived in a new for myself. This was my last year of I continued to over-shop at No one was ever charged stressful than usual. As a precaution, morning five days before my lockdown style; Australia Post desisted school. It was early in a year that had supermarkets. My parents for shooting my former my husband was prohibited from scheduled C-section. At what used to from entering through our gate, instead been thoroughly mapped out. had returned from the USA school principal. He attending any of my obstetric be peak hour, the roads were all but electing to hurl parcels over our fence The second time was on Friday, and were self-isolating. recovered from his injuries. appointments and scans, despite empty as we drove towards the city onto our deck; luckily baby items are all 13 March 2020. Events were being They needed me to shop Many years later, we caught having no symptoms of the virus or hospital. Thanks to COVID, all danger sturdily constructed. Floral deliveries cancelled across the Bar. American for them. They were going up and had a chat. He had risk factors. For a few long weeks, I was of a movie-style birth in the car while took on the vibe of a teenage prank: a actors Tom Hanks and Rita Wilson through enormous amounts changed careers. Now, he was terrified he would develop a raised stuck in gridlocked traffic was averted. loud knock would be heard at the door were hospitalised on the Gold Coast. of orange juice and raspberries. a marriage celebrant, presiding temperature and be forbidden from As I had spontaneously gone into and the florist would literally run away Even the Australian Treasurer The shelves were largely bare. A over the ceremony of a friend and attending the birth. labour, I had not fasted for surgery. before it could be opened, leaving a Peter Dutton had tested positive disembodied recorded voice told colleague. Fortunately, his mind had Some of the anti-COVID measures When I breathlessly arrived at (welcome) surprise for us to discover. for COVID-19. The next day it was shoppers not to abuse staff at this been put to rest as to the identify of I witnessed, no doubt implemented hospital, expecting “all systems go”, A couple of weeks after birth, I was pandemonium at supermarkets and difficult time. Could society be his attempted killer. A confession with good intentions, seemed farcical my obstetrician instead asked me back working from home, my newly chemists. All the toilet paper had breaking down? I drove home one had been made to undercover police, in practice. A receptionist at an to describe my breakfast menu, flexibly working husband and I gone. A media report featured a day with a boot of supplies I did not although it could not be used in ultrasound clinic sternly informed commented (gratuitously?) upon sharing child-care between our work woman who said, "there’s nothing left need. I felt quite rattled. My partner court. My school principal said he did me, as I attended upon the reception its significant size, and cheerfully commitments. Our son even featured to buy at the shop except Gyoza. I’ve was working on a jigsaw on the not care and was grateful to know desk to book an appointment, that announced to me, “Technically, we in some Zoom meetings! never eaten Gyoza". The terms ‘self- dining room table. He looked up at who it was. It meant members of I would need to ring her to book, as could commence surgery immediately, The COVID lockdown, a difficult isolate’ and ‘social-distancing’ were me when I arrived with a calm air his immediate family, all suspects at social distancing meant she was only but my assistant obstetrician and I time for many, will be, for my ubiquitous on every news channel. and relaxed smile. one time, were now exonerated. He allowed to book appointments over have had a conversation, and we agree husband and me, forever coloured by That sense of shock, foreboding, of Soon, I learned how to navigate told me that being shot had led to an the phone. Sadly, my advocacy efforts that, because you’re a barrister, we the happiest and most meaningful ricocheting from moment to moment, online meetings via Zoom and Skype. epiphany for him. He changed his life on my own behalf, amounting to, “But will wait six hours.” It was not entirely event of our lives: the arrival of our had returned. Barely anyone wore make-up or as a result. I’m right here!”, failed to persuade clear whether this decision was born son. We love you, William.

44 VBN VBN 45 Iso Stories “She was required to give up her days off; she would go home, eat dinner, walk the dog and then return to retrieve more bodies until midnight.” Iso Stories

refrigeration units” was noted and York-Presbyterian hospital described the electronic system for recording her as “a hero who brought the highest death certificates kept freezing from ideals of medicine to the challenging overuse. She was required to give front lines of the emergency up her days off; she would go home, department.” Dr Lorna Breen had not eat dinner, walk the dog and then previously suffered from mental health return to retrieve more bodies until issues but had been struck with and midnight. By text message to Blitzer recovered from COVID-19. The Dr. she described herself as “Feeling Lorna Breen Heroes’ Fund has now pretty depleted.” been established to provide mental Dr Lorna Breen died in April 2020 health support to healthcare providers. by suicide, her death was reported on Whoever you are, you too will have various online news sources. She was a story. Your story may be short, your 49 years old and the emergency room story may be grand, or your story may director at the New York–Presbyterian be somewhere in the middle. Tell your Hospital. She was working on the front story, hold your head high and tell it line in the fight against COVID-19. with pride. Make the time to listen Before her death, she had described to others, their stories are unique. to her father the “onslaught of patients These times and our experiences are who were dying before they could even something wilder than the imagination

Times Square, New York, March 21, 2020 be taken out of ambulances.” The New could conceive.

STORIES FROM ISOLATION Reflection: the act of serious thought or consideration TEMPLE SAVILLE

ithout a doubt COVID-19 has had an this reflection. I want to briefly introduce you to the stories impact on every one of us. For some, of Dr Lorna Breen and Kim Zambito, both courageous and more so than others. Some seven worthy of serious thought and consideration. weeks on, I sit at my dining table, Kim Zambito is a 29-year-old mortician from New looking out my window observing the York. She has been working throughout COVID-19 once busy Lonsdale Street and now and observes that of recent times her work is different. see only a few cars. I wonder where we are at, and where we Jonathan Blitzer of the New Yorker published an article are going? on 22 April 2020 in which he describes Kim, her work and I confess that I found this situation quite difficult to begin her feelings. It was usual for her to pick up two bodies per with, the move to working from home, the uncertainty, the day before COVID-19, then it increased to six or seven Wlack of control. However, time heals all wounds and things being called in overnight. “All of a sudden, I’m only seeing happen for a reason. Nowadays, I am content. I do not people dying of pneumonia,” she said. The difficulties

photo courtesy of songquan deng/bigstock of songquan courtesy photo propose to write further about myself or my experiences in with locating bodies in what was described as “chaotic

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night drinks. “One of the readers Tim Glass has a paid Zoom account and on Friday nights, people tune in and im Glass is in the hot seat to work in other jurisdictions. out throughout the evening with on Who Wants to Be A As a police prosecutor, Tim worked a drink in hand for a chat. We’ve Millionaire. $50,000 is on predominantly in summary crime stayed connected and formed the line. The question: Who wrote and wanted to work in higher friendships this way.” Tthe novel The Host? For some, this courts and also in indictable crime Tim is a serious Carlton supporter, question might have signaled the and in defence work. Tim has loves cricket and watches American end. But Tim knows the answer, significant experience prosecuting sport, including the NBA and NFL. thanks to his sister. sexual offences, where he gained He has missed watching sport Tim knows that the author of The experience dealing with tendency during “iso” but Brooklyn 99 has Host is the author of the celebrated and coincidence evidence. Tim provided some reprieve. (and despised) Twilight series. He is reading with Paul Lawrie and can visualise the novel in his sister’s wants to cultivate a practice at the bookcase. Answer: Stephanie Meyer. Bar principally in criminal and Tim comes to the Bar having family law. previously been a police prosecutor For Tim, studying the readers’ with Victoria Police, where he fell course online has been relatively in love with appearance work. straightforward, given that he did Over 18 months, whilst working his law degree online. “It has been full time, Tim enrolled, studied and different to what I was expecting, completed his Bachelor of Laws but I have been engaged and have degree at Victoria University online. learnt a lot. There is autonomy of Tim’s decision learning and there is flexibility to come the Bar was in part due which is important for me because I to his love of advocacy but also have an 11-month-old.” A highlight A because he wanted to gain exposure for Tim has been the Zoom Friday Tessa Duthie essa Duthie’s Tessa is reading with Marc guilty pleasure Felman and intends to develop (we all have them!) a predominantly employment is The Bachelor. A fact that and industrial relations based Ther fiancé, Richard Hampton, practice at the Bar. Tessa always embraced when planning a wanted to come to the Bar, The Bachelor themed wedding a view which was cemented DIGEST proposal in January this year. when she went into practice Readers’BY VERONICA HOLT Flowers, ribbons, balloons, and realised that “barristers do champagne and a speech to all the fun things”. For Tessa, n 7 May 2020, 48 new readers were created, and reading and assessment put previous contestants to the best part of being a lawyer signed the Bar Roll and material distributed. Within three weeks, the shame found Tessa saying was being in court: “All of my commenced their practice, readers had transitioned to online learning. unequivocally “yes”. favourite days at Gadens were whilst the COVID-19 Here, we profile a few readers in this short, Tessa comes to the Bar with when I was in court, on my feet. restrictions were on foot. and by no means exhaustive, “readers’ almost five years’ experience I was really happy at Gadens; They are the first readers to digest”, about their experiences during the as an employment lawyer at I learnt so much there. But it sign the Bar Roll virtually and start their Bar readers’ course. This piece reminds us that Gadens, where she was an was time for a change and I careers virtually. They are the first cohort our readers are the future of the Victorian associate in the employment always wanted to go to the Bar to have experienced the readers’ course in Bar. It important that we support them as advisory team. Tessa worked on and it seemed like the right time a pandemic. When the course started on much as we can going forward, whether it a variety of employment-related for me.” 5 March 2020, it started in the usual way: be through mentorship, devilling, bringing O matters, such as restraints For Tessa, online learning on level 1 of Owen Dixon East, where firm juniors into matters or facilitating solicitor of trade litigation, industrial through the Bar readers’ course friendships were formed, WhatsApp Groups introductions. disputes and unfair dismissals. has presented an invaluable

48 VBN VBN 49 Iso Stories opportunity to gain exposure to online easy to tune into lectures and that a In addition to running most days, platforms and to develop online significant volume of material has as an avid The Bachelor fan, Tessa Priya Wakhlu advocacy skills: “It’s been an important been covered throughout the course. participates in former contestant Sam riya Wakhlu Willem C. Vis Moot, and the grand excited to sign the roll and I am learning curve for me and I think it is Tessa also considers that online Wood’s daily live workouts from the is no stranger final of the Foreign Direct Investment surrounded by good friends and important for readers to get familiar delivery offers a degree of flexibility comfort of her living room. Tessa has to juggling. International Arbitration Moot family,” she says. Although, she is less

Iso Stories with the technology, because for the and autonomy for readers. also rediscovered her grandfather’s While working Competition, and I realised advocacy enthusiastic about transitioning from foreseeable future, this is how we will Tessa has taken time during this hand-made crib board and taught full time as an was something I was interested in. her isolation uniform and back into be conducting appearance work.” Tessa “iso” period to do some of the things her fiancé, Rich, the game she used to associate at When I started working, I worked corporate wear. reflects that it has been incredibly she did not have time to do before. play with her grandfather as a child. HWL Ebsworth Lawyers, Priya was out quickly that barristers do all the the convener for the 2019 annual fun work. For me, the Bar seemed Victorian Women Lawyers (VWL) like the natural career pathway.” Uthra Ramachandran Warren Moot and is a past VWL Priya is reading with Patrick Noonan executive member. She was also a and hopes to develop a practice in thra Ramachandran has something that early on in my career “It’s been great, we have flexibility P Rising Star finalist in the Big Law commercial law and defamation law. 30 years’ experience as an I always wanted to do. Having had and that’s important to me because category for the 2019 Lawyers Weekly Priya has learnt a lot from the Indian classical dancer. In the opportunity to see barristers I have children.” Women in Law Awards. It is no readers’ course, particularly in 2019 she performed in Highlights of through my experience at Middletons In 2015, Uthra co-founded surprise that during her time in “iso”, relation to oral advocacy. “We started Uthe Geetha Govinda and Parampara: and the court, I knew that’s where the Diverse Women’s Mentoring Priya has taken on new challenges, with the Andrew Palmer QC week The Making of Dance. I wanted to be, but wanted to get Association. Uthra is the current including taking up running (which and, in the course of that week, I did Uthra is no stranger to the more experience before going.” Uthra president of this organisation. Its she now hates about “8 per cent less” a defence closing and also got the turmoil of change. At 16, Uthra is reading with Sarah Keating and purpose is to promote diversity of than she did at the start of the stage 3 opportunity to cross-examine and immigrated from Botswana and comes to the Bar as a generalist with women in the professional services restrictions) and online yoga with an lead evidence. There has also been a came to Melbourne, completing experience in crime, commercial, tort sector, including the legal profession, instructor based in India. focus on online advocacy throughout years 11 and 12 at The Mac. and administrative law. Uthra is also through networking, mentorship Priya comes to the Bar with the course and I have done a plea, Robertson Girls’ High School. “I was interested in regulatory work and its and leadership training. Uthra is almost six years’ experience at a criminal moot and an injunction a strange, exotic person, who had intersection with administrative and also a board member of WIRE. HWL Ebsworth Lawyers, where she moot. These experiences have been turned up from Africa and spoke criminal law. WIRE is the only Victoria-wide, worked principally in commercial invaluable, particularly given the a few languages, including Tamil, The readers’ course has been an free generalist information, support litigation and defamation law. Priya’s transition to electronic appearances.” English and French,” recalls Uthra. important stepping stone for Uthra and referral service for Victorian work was largely trial-based and Whilst Priya did not anticipate “No one could place my accent. It and she is grateful that the course women and non-binary and this exposure to trial work at the starting her career as a barrister was a combination of Afrikaner and was not cancelled. It has had its gender-diverse people. start of her career, led her to the Bar. from her dining room table, she British. Most people thought I challenges, she says, but overall? “I did several moots at university, is looking forward to signing the was Canadian.” including reaching the finals of the Bar Roll and getting started. “I am Uthra went on to study a Bachelor of Laws and a Bachelor of Arts at the University of Melbourne. She started working at Middletons and was admitted in 2008. “I left shortly after John Heard Not much in the March 2020 had to be delivered to (my clerk) I was admitted, because at that point readers’ course was “normal”. We had Tammy Young and kept safe until the I was already thinking about going our final assessment moots brought restrictions were lifted. No photo to the Bar.” From Middletons, Uthra forward two months at around two with loved ones. No prancing about worked at the County Court of Victoria hours’ notice just in case we went chambers in my new “drag.” as an associate to his Honour Judge into lockdown, which ended up being Howard (as he was then). This was the the case. Suddenly all face-to-face first time Uthra had been exposed to sessions were cancelled and went Even rites of passage crime and she enjoyed the experience: “ online via pre-recorded videos or “It opened my eyes to an area of law such as the time-honoured Zoom sessions. Even rites of passage that I hadn’t experienced before and such as the time-honoured trip to trip to Ludlows took I found I really enjoyed it.” Uthra Ludlows took on a new cast. Here worked as an associate for a few years on a new cast. Here I I am in March 2020, in an already before taking up a position at the empty shop, getting fitted for robes am in March 2020, in court as a researcher in both civil and pre-lockdown. When the robes (and crime whilst teaching at Monash. an already empty shop, a wig) came back post-lockdown, For Uthra, going to the Bar was Government restrictions on all getting fitted for robes always the ultimate goal. “It was non-essential travel meant they just a matter of timing; but it was pre-lockdown.”

50 VBN VBN 51 Iso Stories ‘frothers’ [surf tragics] in the carpark. The Police Airwing chopper hovering “I got hold of one of those foam paddleboards clubbies use just A view from the big smoke over the beaches is a majestic wedgie scanning for a feed. Kerferd Road pier before lockdown started. It barely floats me, is a lurid yellow ADAM CHERNOK* becomes a grand promontory. The and has a rubbery fin that makes the whole mess sway and

Iso Stories rainbow lorikeets now visiting in great t’s been a little over a month since I’ve been me. Cut short. Since then, I can feel the itch to be back out flocks are, well, they’re still cheeky buck when it catches a dribble of wind swell.” home. My mate Westy died less than a month there crawling around under my skin. Westy still hasn’t lorikeets. But there’s heaps of them and solid and breaking all the way to do the Molokai anytime soon. before that. Cycling into town for a party in answered me. these days. And cockies. And sea birds. through. Westy’d just got himself a But by the time this is over, I reckon Warrnambool on a Saturday night, he was hit Now I haven’t seen a eucalypt in weeks. Haven’t waxed All of which I don’t reckon ever visited flash new wetsuit. Talked a big game. I’ll have the paddle strength of a by a ute. A few excruciating weeks visiting a board. Haven’t woken up feeling creaky in a swag with in the numbers they are now. Then ended up going for a bash in Murray steamer. the ICU and then the funeral. After that, once my breath hanging in the air. No campfires for me. My And then there they were. A pod of the punishing shorie, just like the I’ve lived by the bay most of my life. the hangover cleared, I packed up the car and headed up skin’s not encrusted in a fine layer of salt. I haven’t sat, dolphins. Right fucken there. Right old blokes, while I paddled out. I got Aside from various defections north to the South Coast alone. Lay off the turps a bit. Get my surrounded by jarosite and scrub and the blue, looking there in the bay on sunset, cruising. smashed. Westy had himself a grand of the river, it’s always been close head straight. Camp each night. Surf as much as humanly out to sea, waiting for a set. The insignificance I feel— As ethereal as an apparition can be. old time. by. A stand in for the wild coast. An possible. As it happened, I lucked onto a bit of swell caged in my home, effectively jobless, thinking about But real. It’s as though they were I’ve been for a paddle pretty much understudy. I read in the paper that thatI was hitting most parts just right. Westy was saying Westy, trapped in time—is very different to the feeling of saying, “She’ll be right. We can all every day since I got back. I’ve been what many of us are going through goodbye. I talked to him regularly on that trip. Bastard insignificance I’m jonesing for so badly right now. be playful again soon. Everything’s watching the season slowly changing with this virus thing is a form of never answered back, of course. Not directly anyway. But I got hold of one of those foam paddleboards clubbies gunna be okay.” The crescent arch of here too. The water’s not as cold as grief. Grief for the temporary loss of there were moments where it did feel like I had a bit of use just before lockdown started. It barely floats me, is a their dorsals as they dived. Their lazy raw Southern Ocean swell, but it’ll our normal lives. Grief over the loss luck on my side. lurid yellow and has a rubbery fin that makes the whole ease. It brought a few amongst the do. I’m learning to read the currents of jobs. Or worse. Grief caused by I finished up in Mallacoota for a few days. The waves mess sway and buck when it catches a dribble of wind gathering crowd to silent tears. But better too; knowing when to give uncertainty. Grief that the West Coast that a couple’a local crew shared with me were some swell. I love the bloody thing. It’s probably the only thing everyone there heard them. Everyone it gas and when I can just let the has been on the cook and I’ve missed of the most memorable I’ve ever had. Not waves of any keeping me from totally losing my shit. understood. current do the work. I go out about it. Grief that the closest I’ve gotten sort of consequence. Only three or four foot most of the It helps to suspend disbelief, of course. If you squint out When that really big storm hit, 200m off the beach to the yellow to any juice is mindless scrolling time. Although there was one day when it really turned the big smoke city that cradles it, it’s still a big sky down the wind ripped across the bay like posts marking the bathing/boating and swiping. More grief? Fark! After on. These were memorable waves because of the blokes there on the water in the bay. I barely recognise that city I haven’t felt in years. Huge surges line and then paddle between them Westy, I reckon I’m just about done that selflessly hooted me onto them. They had lost skyline anyway, these days. I still make a point of doing a thundered up the beach. It was up to like a man possessed. I reckon I do a with that. There’s a lot of good in all ’most everything in the fires. Then the virus took their surf check, stand out on the stormwater drain at the end the cobblestone retaining wall north couple’a K a day, but I’ve got no idea, this. The natural world is sucking livelihoods. And yet, they were welcoming and stoked and of the street and survey conditions for a bit. Ignore the of St Kilda. A couple of old blokes in really. Could be just a few hundred in a big relieved breath. My little full of tall stories and local lore. fact I’m going to get in either way. Then a mad dash home dick togs and swim fins were having metres. All I know is I paddle until community by the bay feels more The soundbites of news I’d been getting were sounding to get the kook stick. “It’s pumping!” I shout to neighbours a body womp out there mid-arvo. my arms are cooked. Sometimes connected than ever. And down the progressively dire. Toilet tickets. Cruise ships. Lockdowns. incarcerated in their front yards. “You going out, mate? Loving every minute of it. The storm battling wind chop in the face the end of the road, there’s a mysto break Respirators. Mum’s been crook for years. And the old Get amongst it!” I cop bemused smiles and headshakes— had dumped piles of plastic shit all whole time. Other times it’s a mirror; that might just light up tomorrow. Rooster’s not far behind. So I pulled the ripcord on the that nutter’s at it again. up and down the beach when I went looks like if you pricked the water * This article first appeared in trip early to head back to the big smoke and be near them. The tarmac is a bush track fringed with melaleuca. out the next morning. That was a with a pin, it’d defy gravity and geyser White Horses. ‘Westy’ is a reference to Could have done with another couple’a weeks at least. The plane tree leaf litter underfoot is Gondwanan. The week ago, I think. back into the sky. It always smells James Westmore, remembered in the The trip was a necessary part of the grieving process for teddy bears put out in people’s windows morph into other Months ago, I tried to get Westy faintly of petroleum. Don’t get me Back of the Lift section of this issue out at Lorne Point when it was big wrong. I’m not going of Bar News.

52 VBN VBN 53 Iso Stories

Coronavirus Act were found to have been incorrectly charged.14 No such review of policing has yet occurred in Victoria. Without transparency, governments are failing to assess whether policing is accurate and in fact Charter compliant. Against HUMAN this background, rather than assess operations, worryingly, Victoria Police have pushed for expanded powers to continue post-pandemic.15 RIGHTSand rule of power in COVID-19 Policing COVID-19 times in Peaceful Assembly in Victoria In limiting the freedom of movement for Victorians, there are limits on VICTORIA Victorians’ ability to assemble FELICITY GERRY QC AND JENNIFER KEENE-McCANN peacefully and protest, rights which are also protected under the ransparent and knowable Charter.16 An April car cavalcade measures that err on the side protest against detention of asylum of protecting human rights. seekers in Victoria was issued more In theory, that is how the ‘rule than $40,000 in fines for infringing of law’ governs, even in times Victoria’s ‘Stay at Home Directives’17 of emergency. but a socially distanced protest at the In defining the ‘rule of law,’ the Mantra Hotel on 16 May 2020 was Hon Kevin Lindgren QC made this allowed to proceed without fines. This distinction: “The expression signifies not a legal rule, but is dangerously close to having to seek more generally rule by ‘law’ as distinct from rule by power, permission to protest which would of Victoria (CHOV) was empowered to issue enforceable free of legal constraint, whether by a democratically elected be a derogation too far. The dangers “Directions” and infringement regulations.2 The PHWA government, a tyrant or otherwise.”1 It is this rule by law that COVID-19 Policing of Free Movement for human rights defenders seeking stipulates that the measures taken pursuant to it must There have been clear limitations is likely in Victoria as well.11 Is policing provides limits on the exercise of power. These limits are the to assemble have been graphically on abide by the principle of proportionality, which provides on Victorians’ freedom of movement discriminatory? Without transparency, basis for the protection of human rights. display in Hong Kong, where lawyers that decisions and actions should be proportionate to the protected by article 12 of the ICCPR it is difficult to know. Yet, in Victoria—as likely in most jurisdictions—the hectic have been arrested for not seeking T risk, and should not be arbitrary.3 and section 12 of the Charter. The Kennedy provides an apt example push to flatten the curve has raised important questions permission to protest.18 These stipulations largely reflect international limits on purpose of preventing COVID-19 of concern.12 Dwayne Kennedy—an about how and whether the state has considered the legal state powers to restrict enjoyment of human rights. Under transmission may be laudable but Indigenous man, homeless, with limits restraining it under the rule of law. We argue there is international law, certain rights, such as the right to life, there was a lack of clarity on how limits significant vulnerabilities and whose a lack of transparency in the operation of powers and it has cannot be limited.4 However, for other rights, international to movement should operate, leaving sister died in custody in January— COVID-19 largely been left to the legal profession and courts to clearly human rights law accepts there will be exceptional significant discretion to the police was arrested and issued with an articulate such limits in order to protect Victorians’ rights Prisoners’ Rights circumstances in which those rights can be restricted. tasked in Operation Sentinel.9 At the infringement notice “for unlawfully to movement, health, and life—and that a ‘protection’ Under Article 4(1) of the ICCPR, these restrictions must time of writing, Victoria Police have being outside his place of residence after-the-fact is hardly a protection at all. of Health and Life be necessary, proportional, and non-discriminatory. not released location data to determine during the COVID-19 outbreak”.13 Where protecting Victorians’ ‘Necessity’ relates to the relationship between how and where infringements have Previously bailed and not required free movement places a negative limitation of the right and addressing the emergency;5 been given. Data in New South to attend court, Mr Kennedy was obligation on the state, protecting Powers in Emergency, but ‘proportionality’ relates to duration and scope of the Wales indicates that marginalised detained for two weeks. Significant Victorians’ right to health and not Unlimited measures taken;6 non-discrimination relates both to how communities are receiving the greatest intervention by lawyers was required life places a positive obligation to The primary legislative instrument in Victoria relevant the measures are crafted and how they affect sections of policing during the pandemic with the to protect Mr Kennedy’s rights and “take measures to prevent, treat to public health emergencies is the Public Health and society.7 The Charter of Human Rights and Responsibilities highest number of infringements.10 secure his release. and control epidemic and endemic Wellbeing Act 2008 (Vic) (PHWA). It is under the PHWA Act 2006 (Vic) (the Charter)8 provides similar ‘limits to This proportion of infringements did In the UK, prosecution lawyers diseases”.19 These measures are vital that the State Minister for Health declared a “State of limits’. If the limitation is not necessary, proportional, or not correlate to rates of infection. have reviewed finalised cases to the for protecting the rights of those Emergency” and through which the Chief Health Officer non-discriminatory, those rights predominate. Advocates suggest such a disconnect end of April. All cases under the detained by the state.

54 VBN VBN 55 Iso Stories The right to health is reflected of existing concerns, particularly duty to take reasonable care for in Article 12.1 of the International around the isolation of children. Of prisoners’ health28 and ordered Covenant on Economic, Social and particular concern was the decision an independent assessment to Cultural Rights, 1966 and three to regulate isolation through the include the implementation of any BUSINESS and more of the seven core human Omnibus (Emergency Measures) Act recommendations. In a transparent 20 Iso Stories rights treaties signed by Australia. 2020 (Vic) (Omnibus Act) which corrections system, such an HUMAN RIGHTS Comparative jurisdictions read a was enacted on 23 April 2020, the independent assessment would right to health into the right to life— same day it was publicly released. already exist. notably a non-derogable right.21 A Although guided by health experts, during the COVID-19 right to life is found in section 9 of the Omnibus Act was subject to no the Charter and a right to health can advance public scrutiny, consultation Conclusion be read into section 5. or debate.26 Rather than controlled In a society governed by the rule PANDEMIC The World Health Organization release of vulnerable prisoners of law, there are legal limits to warned that prisoners and detainees to suitable accommodation and restricting human rights. Those legal SHANTA MARTIN are “more vulnerable” to COVID-19 providing presumed rights to bail, limits are meant to be considered than the general population22 and the the Omnibus Act provided increased and respected by the State—the n times of public emergency, the state retains breaching human rights during these first few months UN High Commissioner for Human powers, including judge-alone trials. power of which those rights keep the duty to protect human rights, but what of the pandemic, ranging from the machinations of Rights has called on governments The importance of the state in check. Rather than considering is the role of business? The impact of the companies involved in complex international supply to take urgent action to protect duty of care to prisoners was and abiding by those limits, in a activities of business enterprises during chains, to the activities of small business operators. the health and safety of people in seen in Rowson.27 Mark Rowson time of crisis when states should be such times can be as significant as those of By way of example, the operations of Melbourne detention.23 sought orders to be released from vigilant to protect rights, Victoria the state. Whether as employers, suppliers abattoir, Cedar Meats, has been the source of one of the Despite public concern,24 Victoria’s Port Phillip prison on the basis has increased powers, resisted of goods or providers of services, business enterprises largest clusters of coronavirus infections in Victoria. The pandemic response in the context of of the risk of COVID-19 in light transparency and largely left it to impact our daily lives in myriad ways. business was reportedly informed at an early stage that criminal detention has been to isolate of his pre-existing health issues. legal action to check power and There are multiple instances of business operations two workers had tested positive, but did not immediately and lockdown25 against a background Ginnane J restated the state uphold the rule of law. I permission supplied

1 https://www.ruleoflaw.org.au/wp- 9 https://www.premier.vic.gov.au/police- Discrimination, 1965 art 5(e)(iv); content/uploads/2012/10/Lindgren- out-in-force-to-keep-victorians-safe- Convention on the Elimination of All Rule-of-Law-Its-State-of-Health-in- this-easter/. Forms of Discrimination against Women, Australia-2012.pdf. 10 https://www.thesaturdaypaper. 1979 art 12; Convention on the Rights of 2 For greater detail, see the Quick com.au/news/health/2020/04/18/ the Child, 1989 art 24. Reference Guide for Victorian Lawyers compliance-fines-under-the- 21 See Case of Cyprus v Turkey, 25781/94, produced by Raphael de Vietri and microscope/15871320009710. Judgment (Merits), ECtHR, 10/05/2001 Felicity Gerry QC at https://www. 11 http://www.policeaccountability.org.au/ [219]; Oyal v Turkey, 4864/05, Judgment lexisnexis.com.au/en/COVID19/ policing/policing-the-pandemic/. (Merits and Just Satisfaction), ECtHR, blogs-and-articles/a-quick-reference- 12 Re Kennedy [2020] VSC 187. 23/03/2010. guide-for-criminal-lawyers-in-victoria- 13 https://www.abc.net.au/news/2020- 22 http://www.euro.who.int/__data/assets/ This is Berenice, a client’s during-the-covid-19-pandemic. 04-22/vulnerable-indigenous- pdf_file/0019/434026/Preparedness- mother. The photo was taken by 3 Section 9 PHWA sets out the ‘principle man-jailed-over-police-errors- prevention-and-control-of-COVID-19- Berenice’s daughter on Anzac of proportionality’. coronavirus/12165342. in-prisons and youth detention centres. 4 International Covenant on Civil and 14 https://www.cps.gov.uk/cps/news/cps- pdf?ua=1. Day, just a couple of days before Political Rights (ICCPR), art 4(2). announces-review-findings-first-200- 23 https://www.ohchr.org/EN/ Berenice turned 100 years old 5 CCPR General Comment No. 29: cases-under-coronavirus-laws. NewsEvents/Pages/DisplayNews. (Berenice is a WWII veteran and Article 4: Derogations during a State of 15 https://www.theage.com.au/national/ aspx?NewsID=25745&LangID=E. Emergency [3]. victoria/police-push-for-expanded- 24 https://www.greenslist.com.au/greens- staunch pacifist!). For the last 6 Ibid [4]. pso-powers-to-continue-post- blog/jury-is-out-why-shifting-to-judge- several years, she had enjoyed 7 Ibid [8]. pandemic-20200520-p54uu2.html. alone-trials-is-a-flawed-approach-to- a daily visit from her daughter, 8 It is recognised that the Charter does 16 Under Section 16(1) and Section 15(2) criminal-justice. not give rise to a cause of action in respectively. 25 https://www.ombudsman.vic.gov.au/ who was usually Berenice’s only and of itself. However, a breach of the 17 https://www.sbs.com.au/news/ our-impact/news/unlawful-and-wrong- visitor. When the aged care Charter can be litigated alongside an melbourne-refugee-protesters-fined- solitary-confinement-and-isolation-of- facility instituted a complete existing cause of action. Moreover, 43-000-for-breaching-coronavirus- young-people-in-victorian-prison-and- courts have some oversight of rules. youth-justice-centres-ombudsman/ lock down, Berenice was entirely legislative measures through the 18 https://www.theguardian.com/ 26 A discussion of the importance of isolated and for the first time interpretive rule in s 32(1). This rule world/2020/apr/18/police-in-hong- scrutiny and the potential consequences in decades was not seeing her provides that “so far as it is possible to kong-arrest-14-activists-amid- of such an exercise of power will be do so consistently with their purpose, autonomy-warnings. addressed in a longer article. daughter at all. After sending all statutory provisions must be 19 CESCR General Comment No. 14: The 27 Rowson v Department of Justice and some “lawyerly letters”, the interpreted in a way that is compatible Right to the Highest Attainable Standard Community Safety [2020] VSC 236 at [2] facility finally allowed a brief visit with human rights”. See Momcilovic v of Health (Art. 12) (44). (Rowson). R (2011) 245 CLR 1. 20 See also International Convention on 28 Rowson [11]. on Anzac Day - but only outside the Elimination of All Forms of Racial through the bars of the facility.

56 VBN VBN 57 Iso Stories “Perhaps now more than ever, governments need to reaffirm the responsibility of business entities to respect human rights” inform its staff that they could stay families is clear; the limits have often As business activities affect every away from work and did not provide been imposed without being time- facet of our lives, the actions of

Iso Stories face masks to those who continued to limited or accompanied by sound and business enterprises can either bolster work.1 A worker from a non-English transparent analysis of the need for or undermine human rights. While speaking background also reported the restrictions, thereby potentially some businesses will seek to ensure being afraid the business would breaching the prohibition against respect for human rights, others dismiss employees who chose not to arbitrary interference with the family; will not—whether inadvertently or work for fear for their health (which and the effect of complete isolation deliberately. The absence of clear laws Cedar Meats denied). The response may have seriously compromised and regulations as to what conduct is of the operators of Cedar Meats the mental and physical health of permitted by business can easily lead to the risks posed to its workers vulnerable seniors. to misconduct that has serious impacts illustrates the heightened importance The Guiding Principles on Business on the human rights of individuals in a public emergency of business’s and Human Rights, endorsed by across all walks of life in Australia. respect for the rights of employees the United Nations Human Rights During this pandemic, perhaps now to work and to safe and healthy Council in 2011,6 emphasise that more than ever, governments need to working conditions.2 states have a duty to protect human reaffirm the responsibility of business The impact of private operators rights, while business enterprises have entities to respect human rights, on the enjoyment of other human a responsibility to respect human including by ensuring effective laws to rights during the pandemic is also rights, and both have responsibilities compel protection of those rights and apparent. For example, in the aged care to facilitate access to remedy if to provide access to remedy if they are sector, decisions of private operators rights are breached. Importantly, the breached. have impacted the rights UN Guiding Principles apply to all 1. https://www.theguardian.com/ to health,3 liberty of movement,4 business enterprises, regardless of size, world/2020/may/08/cedar-meats- and freedom from arbitrary or sector, location, ownership or structure, knew-of-two-covid-19-cases-for- several-days-before-telling-staff- unlawful interference with privacy, and the UN Guiding Principles apply they-could-stay-home. family and home.5 In Victoria, multiple equally in a public emergency. 2. International Covenant on Economic, Sentencing of offenders and COVID-19: private operators of aged care facilities While it is essential that businesses Social and Cultural Rights, articles 6, have gone beyond government take steps to avoid infringing human 7, 11, 12. directions and placed elderly residents rights during the pandemic, there 3. Ibid, article 12. in complete lockdown, contrary to is no doubt that states retain the 4. International Covenant on Civil and REIMAGINING Care Facilities Directions issued obligation to protect individuals from Political Rights, article 12(1). pursuant to section 200 of the Public undue interference with rights by 5. Ibid, article 17(1). PROPORTIONALITY Health and Wellbeing Act 2008 (Vic) private entities.7 In times of great 6. UN Human Rights Council, Human uncertainty, such as conflict or public (PHWA). The Care Facilities Directions rights and transnational corporations imposed some restrictions on visits emergency, legislative and regulatory and other business enterprises, in a by families to residents in order measures are often the state’s most July 2011, A/HRC/RES/17/4. See GLOBAL “Guiding Principles on Business effective means to protect people from to reduce the risk of infection, but and Human Rights: Implementing allowed continued daily visits. Those human rights abuse by companies. the United Nations ‘Protect, Respect restrictions were time-limited and, The absence of mandatory measures and Remedy’ Framework” (2011), PANDEMIC available at https://www.ohchr. can lead to uncertainty and a lack RICHARD EDNEY in view of the vulnerability of elderly org/Documents/Publications/ residents, arguably necessary and of adequate protections. In the aged GuidingPrinciplesBusinessHR_EN.pdf. proportionate to the risk. However, care sector, for example, at present, 7. See for example, Storck v Germany, he global pandemic produced would otherwise be the case and are unlikely some aged care facilities denied all neither the Victorian government nor (Application no 61603/00), 16 June by COVID-19 has had to have physical contact with family and friends visits despite there being no cases of the Federal government has imposed 2005, in which the European Court pronounced and immediate for the foreseeable future. of Human Rights interpreted Article COVID-19 and without instigating a requirement on private operators 5(1) of the European Convention impacts on the Victorian It is unclear when the Victorian criminal means by which relatives might visit to demonstrate that the measures on Human Rights as imposing criminal justice system. justice system will again be fully operational. illlustration by guy shield residents in a safe and suitably distant they impose are lawful, necessary and positive obligations on states to COVID-19 has been a factor But there remains a need for offenders to put in place measures providing fashion. Private aged care operators proportionate. Instead, government effective protection of persons at risk, in recent Supreme Court decisions to grant be sentenced for crimes in a COVID-19 have also restricted the right to free has preferred to issue non-mandatory including reasonable steps to prevent bail to accused on serious criminal charges1. environment. What follows is an attempt to movement of residents well beyond guidance. Such a situation leaves a deprivation of liberty of which the Jury trials have been postponed for a comprehend what punishment might look authorities have or ought to have 2 3 those allowed by law. The impact of residents and families with little power knowledge. considerable—and uncertain —period . like in this environment, especially for those the decisions of private operators on and a lack of means to compel respect TAdditionally, prisoners are enduring conditions who have committed offences that warrant the human rights of residents and for their human rights. of confinement that are more onerous than a custodial sentence.

58 VBN VBN 59 has ceased, following the suspension be resolved on the particular facts of Iso Stories of personal visits on 21 March 2020. any individual case.”10 Proportionality: the All prisoners who are remanded in One possible way to take into nexus between crime custody are subject to an automatic account onerous prison conditions 14-day quarantine period in lockdown.9 is to ‘modify’ the proportionality and punishment Partial lockdowns of the most populous principle on a temporary basis so

Iso Stories A cardinal principle under Victorian prisons are in place. The the nexus between the punishment Australian sentencing law is that ability of program providers to provide and the crime does take into account any punishment imposed upon an services to prisoners has also been COVID-19 prison conditions. Onerous offender should be proportionate severely compromised. conditions of confinement have, in to the offence committed.4 These ‘COVID-19’ prison conditions certain circumstances, already been Proportionality is basal to our will likely be transformative of the recognised as a legitimate matter in system of criminal justice. Under experiences of prisoners and will determining the length of a prison modern criminal justice systems, make doing time harder. And even sentence for an individual prisoner ‘deprivation’—whether it be as restrictions and social distancing because of that prisoner’s particular of freedom, time or money—is regulations reduce over time in the characteristics.11 There is, therefore, fundamental to penal sanctions broader community, prisons are likely some existing recognition of the and the measurement of to be at the very end point of any ‘modification’ of the proportionality ‘proportionality’. such relaxation. So these restrictive principle on the basis of prison Imprisonment stands at the apex regimes and this ‘harder’ time is conditions.12 of criminal sanctions. The ‘pains likely to subsist for prisoners for a Of course, COVID-19 prison of imprisonment’5 are, in theory, significant period. conditions are different because confined to the deprivation of liberty they are necessarily indiscriminate and the necessary incursions into and apply independently of any ‘freedom’ that inhere due to the Taking into account particular characteristic of a prisoner. nature of the prison setting.6 Any mitigation because of COVID-19 COVID-19 has caused a further and more onerous prison prison conditions should therefore be dramatic reduction in the freedom conditions caused by of broad application. in an overburdened criminal justice of prisoners in custody and the 1 Re Broes [2020] VSC 128; Re McCann 11 R v Van Boxtel (2005) 11 VR 258. The onerous prison conditions system19—can also be understood as [2020] VSC 138; Re Tong [2020] VSC connection of prisoners to others in the COVID-19 141; Re JK [2020] VSC 160; R v JB [2020] 12 R v Stevens [2009] VSCA 81 at [20]. See What then should be the approach instituted by CV have been put in reducing the ‘punishment’ aspect of also R v Davies (1979) 69 Cr App R 319 outside world. In short, imprisonment VSC 184; Re Nicholls [2020] VSC 189; Re to sentencing offenders who have place to benefit prisoners and staff. the proportionality calculus during Guinane [2020] VSC 208. at 322 (Lord Lane CJ); DPP (Vic) v Faure has become more onerous. (2005) 12 VR 115; Milenkoviski v Western already served time, or are likely But a wider utilitarian benefit also the time of COVID-19. 2 Re Broes [2020] VSC 128 at [37] (Lasry J). Australia (2014) 46 WAR 324 at [151]- to serve time, under such onerous divests to the Victorian community. [157]. 3 Legislation has been passed to permit conditions, which are necessitated by The bearing of such a cost by judge alone trials to occur in Victoria if 13 R v Merrett (2007) 14 VR 392. COVID-19 and a public health emergency and have prisoners doing ‘harder time’ for the accused consents. Conclusion 14 Markovic v The Queen (2010) 30 VR 589. nothing to do with a prisoner’s status the wider community is a matter Sentencing of offenders, like so prison conditions 4 Veen v The Queen (1979) 143 CLR 458; Corrections Victoria (CV) responded or conduct in custody? that ought to be recognised in the many other spheres of life under Veen v The Queen (No 2) (1988); Hoare v 15 R v RLP (2009) 213 A Crim R 461. quickly to the COVID-19 pandemic In the Court of Appeal decision of sentencing calculus. To that extent, COVID-19, is different, and the The Queen (1989) 167 CLR 348; Boulton v 16 R v Smith (1987) 44 SASR 587. The Queen (2014) 46 VR 308 at [64] & [67]. because of the grave consequences Brown (aka Davis) v The Queen [2020] the operation of the proportionality contours of punishment will morph See also Sentencing Act 1991 s 5 (1) (a). 17 R v Verdins (2007) 16 VR 269. if an outbreak occurred within the VSCA 60, COVID-19 was raised as principle should be adapted to and change as the Victorian criminal 18 Phillips v The Queen (2012) 37 VR 594. 7 5 Gresham Sykes, The Society of Captives prison system. That response was a matter to be taken into account in account for the harsher prison justice system attempts to not only (1958). based on sound epidemiological re-sentencing. Justices Priest and conditions produced by COVID-19. be fully operational again, but also to 19 DPP v Bourke [2020] VSC 130 at [32] 6 See generally John Dilulio, Governing (Jane Dixon J). science and conformed to an Weinberg described themselves as The benefit of this modified punish offenders in a humane and Prisons (1987). approach advocated by the World being “hesitant to express a general proportionality analysis is that it can just manner. 20 Individual prisoners—if they 7 Department of Justice & Community are of good behaviour—will also Health Organization for imprisoned statement of principle regarding how be used as a legitimate and practical At the moment, prison conditions Safety, Novel Coronavirus (COVID-19): be automatically considered for populations, who are far more this court (and others) should deal justification for the Victorian criminal are harder because of a desire to Information for Courts Regarding ‘Emergency Management Days’ from vulnerable to transmission of the with this crisis as regards its effect justice system as it deals with ensure the containment of COVID-19 Corrections Victoria Operation (2020). CV because of the disruption and deprivation that COVID-19 has caused 8 COVID-19 virus. upon relevant sentencing principles”. COVID-19. It also provides a way to during a public health emergency. 8 World Health Organization, to prison regimes. Whether or not they Preparedness, Prevention and Control of are granted will be a matter for the

The prophylactic measures imposed They did, however, accept “that the comprehend and justify the array of But there is a personal cost to all illlustration by guy shield COVID-19 in Prison and Other Places of by CV have meant the sequestering situation is causing additional stress other mitigating factors that are likely prisoners who serve time in those Executive following the sentencing of Detention: Interim Guidance (2020). the prisoner. In those circumstances, a of prisoners, as far as possible, from and concern for prisoners and their to be prominent in pleas in mitigation very difficult conditions. A COVID-19 9 Corrections Victoria, Deputy sentencing court would not normally physical contact with the outside world families, as it is for every member during the pandemic. Some of those ‘version’ of proportionality offers Commissioner’s Instructions, DC1.11A have regard to that possibility when to prevent COVID-19 from being of the community”. Their Honours matters—which include delay,13 a justifiable means to ensure the Protective Quarantine of New Reception imposing sentence. transmitted into the prison system. All ultimately concluded that “the extent family hardship,14 age,15 poor physical legitimacy of imprisonment as a Prisoners During the COVID-19 Pandemic (28 March 2020). physical contact between prisoners to which that may be taken into health,16 mental illness,17 and the means of punishment in the time and their family members and friends account, if at all, will be a matter to weight to be given to a guilty plea18 of COVID-19.20 10 Brown (aka Davis) v The Queen [2020] VSCA 60 at [48].

60 VBN VBN 61 flew back to Australia at whole “gon” of the Pentagon scouring barrister from Melbourne Australia Iso Stories the beginning of March, the world for any mention of his would get to hang with the President, after 17 months as name), but he eventually read it, and and various world leaders, in the adviser to the President he genuinely believed that I believed White House! of the United States. I that he was the duck’s nuts. Every morning at 10.00 exactly, came back on a crowded On 9 August 2018, at about 3am, a black Lexus would arrive at my Iso Stories plane, full of people wearing face- my phone buzzed on my bedside apartment to pick me up and take masks, to bunker down in my home table. It was an international number, me to the back entrance of the town and wait for the end of the so naturally I put it on silent and White House. All the advisers would pandemic. On the day I left the White went back to sleep. When I woke up gather together in the waiting rooms House,I the President solemnly shook that morning there were two voice outside the Oval Office (“the OO”, my hand and told me how much he messages, the first from Nick, who although we pronounced it “OOph!”, would miss me. Readers who have spoke with an American accent, like a punch in the guts) and wait been paying attention to recent and the second from Donald Trump for the President to get out of bed. White House Press Briefings may himself. I actually spat my coffee out Sometimes we were waiting until the have noticed the deterioration in the in shock, all over my toast. early afternoon. President’s ‘messaging’ since I left. (I He said he’d read my article, and I know a lot of those people knew know, it was coming off a low base.) he thought it was “so amazing” and that the piece I had written was It was satire, or at least the “very, very right”, and he wanted me heavy-handed satire. But they didn’t President’s failure to understand it, to work as his adviser. Surely this reveal that, at least not to the Trumpet. that brought all this about. Members was a joke, perpetuated by one of Job security was a misnomer in the will recall a piece I wrote for this my colleagues who was very good at White House, and anyone who had publication in June 2017, praising doing voices? (Boyce, for instance, the courage to tell the truth usually Donald Trump after his first few is pretty good at doing Court of got fired. Sometimes the President months in office. It was the conclusion Appeal judges, but I wasn’t aware couldn’t handle the truth, unless he’d that eventually caught his eye: his repertoire stretched to Trump.) just made it up himself. A couple of hours later, I spoke to We spent a lot of time waiting for After his first 100 days in Office, Nick at the White House, offering me the President, on Instagram, and Donald Trump has proved himself more money than I could ever make on our phones, reading the news, to be the most adept and masterful, as a (mostly) competent criminal trial and keeping up to date with Twitter, the most tremendous and wonderful barrister. I insisted on a FaceTime which was critically important. President the United States has ever call so that I could see him in the Almost the first thing the President been lucky enough to have. No doubt Oval Office, which is where he was. did, when he eventually blunder- history will record that he was the Surely this was a practical joke bussed his way past us, was to point most capable and brilliant leader the too elaborate even for Halphen or at some random person and say world has ever seen. Burnside? They would have had to “What did I just tweet?“ or “Did you In the weeks and months after build a giant set. see what I just tweeted?”, while its publication, my practice as a Two weeks later, I was in that very chuckling to himself. trial barrister continued as usual. place, with the President towering My purported role in the White Occasionally, colleagues who knew over me, squinting down at me, House was to advise the President that I was the anonymous author shaking my hand. Up close, he really about everything, but I spent most of would murmur their appreciation for is very orange. Tremendously orange. my time just agreeing with him, and the article, sometimes in a crowded He said, with imposing gravitas, explaining to the serious policy guys County Court lift, sometimes in “Good to meet you Colin,” (he why his latest idea was so brilliant. passing on the street, robes wafting pronounced it Koh-lyn) “that was Which was sometimes tricky, because behind us. Most people I spoke to a good article you wrote.” He was he could contradict himself in the were amused by it: some raised very solemn. “It was very accurate.” same sentence. their eyebrows, some thought it was Of course it was. “What do you think Koh-lyn?” he

‘tremendously funny’. (They were the Washington DC is a lovely city, would say. illlustration by guy shield ones who really got it.) so I was looking forward to a great Or: “Well, let’s ask the Mel-bawn No one I spoke to, and I mean time there. It was an unexpected guy what he thinks.” absolutely no-one at all, took it adventure, and I thought it was all I usually started with “The seriously. quite amusing. I just had to keep a President is absolutely right”, no Except Donald Trump. I have no straight face, and not let on that my matter what incoherent absurdity idea how the article came to his original article was dripping with he’d just come up with, peppered attention (although he does have one scorn and irony, and this criminal my next few sentences with some

62 VBN VBN 63 Iso Stories ‘plainlys’ and ‘obviouslys’, and then do that?”) would disappear like “Where’s Consuela?” he would say. rounded it off with a ‘clearly’ or two. a Washington snowflake on his “Ask her what she thinks of Jillian Once I said that he was resolute, and orange nose. Mele.” (FNP) he looked puzzled and thought I was The first month was fun. I met But although there were others, for talking about his desk. Angela Merkel in the second week. some reason I was his go-to guy. So

Iso Stories As advocacy goes, it was easy. I remember the way she looked at the I went on supporting the President THE FINAL HEARING Robert T Burns I had been well-trained all those President. She was literally trying to and his absurd and fanciful ideas. I years ago by George Hampel in the kill him with her eyes. There was a felt really bad sometimes, like when I The life they had before has gone readers’ course. Know your audience. lot of that. Another common response had to say that his idea to “bomb the And all that’s left is this final song. I only had to persuade one person was aghastness (if that’s a word), with shit out of Tehran” was obviously the For three whole days they have fought Poetry that I was serious, and that was the world leaders literally losing control only sensible thing to do. That was Arguing for orders that they had sought. for the President; everyone else knew that of their lower jaws. (I meant ‘literally’, the moment when Mike Pence saved Now before a Judge sitting up there high what I (and he) was saying was like actually literally.) millions of lives by pointing out that Awaiting judgement they wonder why. rubbish. There was actual eye-rolling By the time the second month Dana Perino (FNP), on the massive Their marriage was so often stressed at times, but only when he wasn’t came around, I was getting anxious, television on the wall, was laughing And to fix the problems they did their best. looking; the rest of the time there was and it wasn’t so much fun anymore. at something Sean Hannity (FNP) PANDEMIC When did the distance and drifting start had said. We all had to be quiet while Before that day they broke apart? some factotum turned the sound up, On that day one was quite relieved It was like an orchestra in there sometimes, everyone and the President tried to work out HELP! (APOLOGIES TO THE The other thought they’d been deceived. BEATLES) working together to get him off one train and onto another. if it was about him. Thankfully, what Each was blind to the other’s needs Oren Bigos SC I’d just said was lost to history. All No communication, it sowed the seeds. Just mentioning Hillary would usually do the trick. those people in that orchestra were The children want them to restart anew Help! Coronavirus, thinly disguised contempt—for me. Everyone was a bit skittish, because really just trying to stop bad things When parents split, it’s what children do. Bank balances in minus, I only had to keep talking until the there was a lot of hiring and firing from happening, as much as possible. Collateral damage from their parents past Communicating only through devices, President got distracted by someone going on. I wanted to get fired too, but There was just no space for good They have suffered long, and it will last. Help! saying his name on “Fox and Friends” that would have involved revealing ideas in the OOph! Their parents won’t know where they’ll live Usually this didn’t take long, because that I actually had independent I missed Melbourne, and I missed Until the Judge says to whom to give. Our Bar has not escaped COVID-19, they talked about him a lot. And he thoughts, and if the President got being a barrister, standing up in And now the Court will make the decision It’s affecting silks and juniors and everyone in loved it. a sniff that my original article was court, having opponents openly scoff About children and the property division. between. Everyone was in on it. Sometimes satire, and he’d been hoodwinked for at my submissions, having judges These days have been at enormous cost Assistance being offered to pay the chambers rent, there were 20 people in the Oval months, well, I don’t know. He is a dismiss them without batting an And when they leave both will have lost. Isolated, we regret the money that we’ve spent. Office, all apparently working together very powerful man, and his security eye, and occasionally having people Days like this just never arise to nullify the President. I saw so guys have guns, and he should know actually grapple with them, whether With those prepared to compromise. Help us stop the workflows going down, many potential wars and economic all the nuclear codes (“Who’s got or not they had any substance. We can’t wait for things to turn around… catastrophes averted by a five-star the codes? Mike, have you got Instead, there I was in the White Getting used to electronic briefs, but we prefer general suddenly pointing out that the codes?”). House, for 16 months and 23 days, ours bound, there had been a change in a Fox News He often said things like “I know slowly chipping away at America’s Will the ‘old normal’ return, please? Personality’s (FNPs) hairstyle, or that people.” And “I think about things. soul, and probably helping to destroy there was a new Mercedes ad. It was I’m a very smart guy.” He wasn’t. And the planet. Getting used to appearing in virtual court rooms, like an orchestra in there sometimes, “I know a lot of people.” And once I’m not proud of it. But I didn’t vote Video hearings on Webex, Teams and also Zoom. everyone working together to get him he said “I could have been the best for him. Client conferences no longer feel the same, off one train and onto another. Just sniper in the Marines, I can see a I’m sure readers can imagine my But there’s only an invisible microbe to blame. mentioning Hillary would usually do long, long way. So, so far.” I was a bit relief when Scotty from Marketing the trick. scared. And I was trapped. decided to call us all home, and I had Help us stop the workflows going down, But the best distraction was any So was Jacob, the young German the perfect excuse to get out of there. We can’t wait for things to turn around… negative publicity about Trump guy who’d posted a YouTube video on “Mr President, I have to go home. Getting used to electronic briefs, but we prefer himself. He would completely lose the climate change conspiracy in the I don’t know if you’ve heard, but ours bound, his train of thought, and his United Nations and now had to feed there’s a virus going ’round.” Will the ‘old normal’ return, please? masterstroke of buying up all of Trump fake stats which the President “What? That Crooner (sic) thing? China’s manufacturing industry, promptly forgot, or couldn’t get That’ll blow over by the weekend.” or having breakfast every morning right, making them even more fake, I think he liked me, and I’m sure with Putin to “keep him happy”, and a Mexican grandmother who there was a little tear in his eye as or sending a team in to hypnotise had tweeted about how she loved he stood at the door and solemnly North Korea (“Mass hypnosis, we his hair, and was now his Fashion/ nodded his head, his tie flapping in can do that right? Our people can Wall/Mexico/Immigration adviser. the Washington breeze.

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When Monash law students’ hoax created law folklore

BY JACK HAMMOND QC

large portrait hangs in the Clayton campus of the Monash Law School Library. It commemorates a famous (or perhaps infamous) law lecture delivered some 44 years ago, on 5 May 1976: a small group of Monash law students,A aided and abetted by a former Monash Dean of Law, perpetrated a hoax which still raises smiles throughout the Australian legal profession. Professor Granville Williams QC, PhD, LLD, FBA, Alternative Professor of English Law in the University of Cambridge, the alter ego of then law student Campbell McComas, addressed more than 450 students, law faculty staff and other lawyers crammed into Monash Rotunda lecture theatre R1. The lunchtime lecture had to be shifted at short notice from the planned much smaller lecture theatre L3 in the law school when it became clear that an almost unimaginable number of people, from both on and off campus, intended to attend. photo courtesy of andrew curtis and the monash university archives. portrait by irene clark by portrait and the monash university archives. curtis of andrew courtesy photo 66 VBN VBN 67 which should interest most students rimmed spectacles, bow tie and a and staff. slightly out-of-date suit, Professor But most importantly, the lecture had Granville Williams, stood beside to be a plausible mixture of erudite Professor Louis Waller, ready to material and fictional law and facts. present his lecture. Naturally, it had to involve a Professor Waller had prepared bar lore compulsory law subject which a masterly piece of obfuscation. students could not afford to miss. His introduction bears repeating: They settled on criminal law. Ladies and gentlemen, the president The lecture was to include a of the Law Students’ Society has critique of DPP v Morgan [1975] asked me to introduce the speaker this 2 WLR 913, a recently reported afternoon. It’s an invitation I’m happy English criminal case which involved to accept. This is a unique occasion in the mental element of the offence of the history of the Monash Law School. rape. It was prescribed reading for I commend the Law Students’ Society law students. for their great initiative. I don’t think it’s Campbell, an accomplished necessary for me to speak at length in amateur actor, was to be the visiting introducing the speaker, and I shan’t do professor. so. Time is limited, and what he has to As the chosen field was criminal say is, on this occasion, of much more law, they were concerned that significance than anything I could say. former Monash Dean of Law and its most senior criminal law lecturer, Ladies and gentlemen: the speaker. Professor Louis Waller, might know Campbell began his lecture. the real Professor Glanville Williams, At that point, he was supposed to and expose the hoax. They visited hold aloft fictional exhibits from an Professor Waller in his faculty room. invented Cambridge Museum of Law They intended to tell him of their On the day, a longish-silver-haired, glued-on bushy and explain their history. plan, to ask him what he thought of They were: eye-browed academic, wearing black horn-rimmed it, and if he approved, to ask him to » the bottle of Stone’s ginger keep it secret. spectacles, bow tie and a slightly out-of-date suit, beer (which still had part of a That gave Campbell and Jack the idea of creating an They started to do so. Before they decomposed snail in it) from Professor Granville Williams, stood beside Professor could finish, he laughed uproariously English professor of law. He would be a guest lecturer Donoghue v Stevenson; Louis Waller, ready to present his lecture. and could not stop giggling. He » a piece of charred wood from the at Monash and speak on a topic which should interest willingly approved it and regaled moments had occurred, including the proceeds to a Monash University wharf in Wagon Mound No 1; them with stories of university Campbell’s response to an fund in memory of the late Professor most students and staff. » the cricket ball from Bolton v Stone; students’ pranks and stunts which unexpected question from Arie Louis Waller. » the pair of large woollen underpants The audience were led to believe, They had noticed during law occurred in his time as a student. Freiberg, a then Monash law tutor. The Professor Granville Williams from Grant v Australian Knitting by campus notices and posters put lectures that most students rapidly Campbell and Jack seized the Steven Stern, a law student, recorded story has passed into folklore, Mills; and up by the Monash Law Students’ took voluminous notes, apparently moment. They asked Professor Waller the event on a large reel-to-reel tape. repeated by many who believe they » a pair of socks, being the only Society, that they were to hear the without taking much time to whether he would be prepared Jonathan Shiff, another law student, were there. clothing worn by an intruder in real Professor Glanville Williams, think about what was being said. to introduce Professor Granville took a number of excellent photos. And the portrait in the law library R v Collins. a notable English criminal law Students rarely sought to question Williams to the audience. Subsequently, the original tape remains as a constant reminder that, However, in his rush to the lecture academic and author. the lecturers, for clarification or He immediately agreed. recording was reproduced in cassette in fact, it did occur—unless that and theatre, Campbell had left them in In fact, a senior member of the law otherwise. They then enlisted the President of form. The cassette cover featured this is a hoax! the law faculty room he used as his faculty had drawn to the attention of Of course, the students had the Monash Law Students’ Society and a photo of Campbell as Professor Where are the main perpetrators make-up and dressing room. Marshall Segan, the then-president no reason to doubt, did they, that a few select fellow students to assist Granville Williams. now? Ever the seasoned trouper, he of the Monash Law Students’ what they were being told must and prepare the ground for the lecture. The cassettes were sold by the Campbell McComas died on called on one of the audience (his Society, the spelling “error” in be true? Even if they did not fully Campbell and Jack then wrote the Law Students’ Society for $2.50 each, 8 January 2005. brother, Malcolm McComas) to fetch the promotional material. Some understand it, they accepted it lecture, with a provocative title which which enabled it to fund a photo- Professor Louis Waller died on them. Meanwhile, he entertainingly of the posters then were seen to because of their lecturers’ status they thought would attract a wide copying machine for the use of 8 October 2019. ad-libbed his way out of trouble have been “corrected”. and obvious expertise. audience: “When ‘No’ means ’Yes’: students in the law library. Jack Hammond QC is very much until the exhibits arrived and then The hoax lecture had been That gave Campbell and Jack the Rape, Consent and the Law”. Later, the cassette recording was alive and on the Victorian Bar List of resumed his written script. conceived and written by two Monash idea of creating an English professor On the day, a longish-silver- transferred to CDs. Retired Counsel. The lecture was a huge success. law student friends, Campbell of law. He would be a guest lecturer haired, glued-on bushy eye-browed Currently, re-mastered CDs are Marshall Segan is also alive and in Additional memorable unscripted

images courtesy of the monash reader, july 1976 of the monash reader, july courtesy images McComas and Jack Hammond. at Monash and speak on a topic academic, wearing black horn- under consideration, to be sold with business, not law.

68 VBN VBN 69 you mean ‘Scoundrel Schulenburg’?” Freisler screamed at him, “Soon you will be The Nazi Volksgerichthof When asked whether he was ashamed roasting in hell!” Dr Wirmer bowed curtly and gave of his actions, he answered, “I am the immortal retort, “I’ll look forward to your

proud that we sought to rid the world bar lore (People’s Court) of one of the greatest murderers in Honour’s own imminent arrival.” history.” Later he said, “We resolved to bar lore Brian Walters take this deed upon ourselves in order refusing to let him to wear a belt or Fabian von Schlabrendorff, a to save Germany from indescribable tie, allowing him only a rumpled suit, lawyer, having been tortured for a misery. I realise that I shall be hanged Hassell cut a stylish figure with his long period, was brought before the n 27 February 1933, Berlin’s immense outside. The entire courtroom heard him shout, “One day for this, but I do not regret what I did pocket handkerchief and his poised People’s Court on 21 December 1944. Reichstag building was set on fire and there will be another kind of justice! One day they will go and only hope that someone else will bearing. At one point in the trial, he There were five other cases that destroyed. Only the shell remained. It down in history!” succeed in luckier circumstances.” calmly told a foaming Freisler, “Herr day. He was last in the list. At the was a shocking act of terrorism. Following Sophie told Freisler: Lawyer Joseph Wirmer, long President, I have not lived 62 years to conclusion of the session, no time the fire, the alleged perpetrators were Somebody, after all, had to make a start. What we wrote and banned from practice for assisting be told by you that I am a liar.” was left to deal with his case. He was tried before judges of Germany’s highest said is also believed by many others. They just don’t dare victims of the regime, defended Many organisations were required to returned to prison. court: the Reichsgericht. Marinus van der Lubbe was express themselves as we did. himself with great dexterity—always send representatives to observe these Schlabrendorff was brought back to convicted. However, his four co-accused—all officials of calmly accepting that he was about proceedings. One of the witnesses to court on 3 February 1945. As his case the Communist Party—were acquitted. Freisler sentenced all three defendants to death. They to die. At one point he said, “When I Hassell’s trial was 25-year-old junior was called, air raid sirens sounded. The acquittals outraged Adolf Hitler, and prompted walked to the guillotine a few hours later; Probst was hang, I will not know fear. But you—” officer, Helmut Schmidt. In 1946, The court hastily sought shelter in him to establish a ‘People’s Court’ to deal with so-called executed before his family even knew he had been arrested. O Freisler screamed at him, “Soon you Schmidt wrote to Hassell’s widow Ilse, the vaulted cellars of the building. ‘political’ crimes. Legally qualified judges sat with lay will be roasting in hell!” Dr Wirmer whom he did not know, describing the The crump and clamour of a terrible representatives (or ‘assessors’)—typically, Nazi Party The July Plot conspirators bowed curtly and gave the immortal trial. He expressed an enduring sense bombardment followed, culminating officials. Adherence to legal procedure was token. Trials After the failed attempt to assassinate Hitler and stage a retort, “I’ll look forward to your of shock at the proceedings. Schmidt in the deafening crash of a direct were brief, and often no evidence was heard. Typically, coup d’etat on 20 July 1944, some 5000 persons were tried Honour’s own imminent arrival.” described the trial as “a mockery hit. As part of the ceiling collapsed, the accused were given only a few hours’ notice of the in the People’s Court. When the trials began in August Hans-Bernd von Haeften, a lawyer of justice” and “a singular staged it burst into flames. A beam fell allegations against them. They were obliged to use 1944, the courtroom was decked out with swastikas. A and diplomat who had supported the performance by Freisler combining on Roland Freisler. He died with court-appointed counsel, but generally had no bust of Hitler stared over the judges’ shoulders. Freisler coup, said he did not regard his actions Goebbelsesque intelligence and Schlabrendorff’s file in his hands. opportunity to consult with them. opened the proceedings with a statement casting aside as treason, describing Hitler in open demagogic loquacity with the jargon When Schlabrendorff returned to The court was used for show trials designed to make any pretence of judicial impartiality: court as “the incarnation of evil in of the rabble.” Hassell had hardly court on 16 March 1945, the war was the German people ‘healthy’ by cleansing the ‘disease’ Today it is the task of the People’s Court of the German world history”, at which point his trial been able to finish a sentence without almost over. He was able to prove that of treason. The accused were almost always convicted, Reich to pass judgment on the most horrific charges ever was brought to an abrupt end. Freisler interrupting him in the most he had been tortured—something and the usual penalty was death—the court imposed brought in the history of the German people. Traitors have Claus von Stauffenberg’s cousin, insulting manner. Finally Hassell that remained illegal, although tens of thousands of death sentences. come amongst us. Led by the murderous scoundrel, Colonel Cäsar von Hofacker, could expect no remained silent, and let all the abuse widely practised, throughout the Hitler had clear views about judges: Stauffenberg, a rabble of criminals, with the character of pigs, mercy, but he was coldly determined and accusations flow off him like Nazi period. He was acquitted of all I desire only judges who have the requisite personality—but has, in the very hour of Germany’s need, tried to murder one when he addressed the court. Freisler water off a duck’s back. Schmidt spoke charges. The Gestapo simply arrested in that case they must be very generously reimbursed. I need of the greatest leaders in the history of the world. angled for an apology, “And do you of Hassell’s “exemplary conduct” him again. He was informed that the men for judges who are deeply convinced that the law ought not regret your part in this evil as he faced Freisler, and concluded, decision of the court was obviously To ensure humiliation, the defendants were denied ties, not to guarantee the interests of the individual against the conspiracy?” Hofacker responded, “I “He was a truly noble man, and an error, and he would not be hanged, belts, braces, and false teeth. The great Field Marshal von state, that their duty is to see to it, above all, that Germany regret that I was not chosen to carry too noble for this world.” Schmidt but shot instead. He was required Witzleben, without his dentures, mumbled as he held up does not perish. out the assassination, because then would later become Chancellor of to sign an acknowledgement that he his trousers in court. it would not have failed. But I in no West Germany. had received this information. Many All those who sat on the court were appointed by Hitler The worth of the prisoners’ legal representation can be way regret that I attempted to save Not all those who faced the times Schlabrendorff came close personally. From August 1942, the president of the court gauged from the following statement by Witzleben’s court- Germany from the destruction to People’s Court were condemned. to death, but he survived the war was Judge Roland Freisler. appointed counsel, Dr Weissmann, in his final address: which Hitler and his evil cohorts are Eugen Gerstenmaier carried off his to become one of Germany’s most The White Rose The court’s decision has, in effect, already been rendered leading us.” Freisler said, “Do not dare pretence of being a naïve minister respected lawyers and judges. when, in a miraculous act of deliverance, it protected the to use this court in this way! I will of religion, unschooled in political The independence of our courts and For distributing leaflets criticising the regime, students Führer for the sake of the German people. The deed of the not have—” And Hofacker answered, matters. His reward was a lengthy judiciary is a fundamental safeguard Hans and Sophie Scholl and Christoph Probst—part of a accused stands, his guilt is manifest, and the perpetrator will “Be quiet now, Herr Freisler, because prison sentence instead of death. for citizens in a democracy. The group calling itself ‘The White Rose’—were tried before go down with it. today it’s my neck that’s on the block. Ewald Loeser, former deputy mayor People’s Court provides a powerful the People’s Court four days after their arrest. When the In a year it will be yours.” of Leipzig, had been involved in the demonstration of what can happen Scholls’ parents Robert and Magdalena were denied entry, Count Schulenburg, who had liaised between different In September 1944, Ulrich von coup and would have been minister when that independence is removed. Magdalena said to the guard, “But I’m the mother of two branches of the conspiracy, gave a particularly stirring Hassell—former German ambassador of finance in the new administration Brian Walters AM QC is the author of the accused.” The guard responded, “You should have account of himself, despite Freisler’s almost apoplectic to Italy and an important member of if the coup had succeeded. At his of TREASON: Claus von Stauffenberg brought them up better.” Robert Scholl forced his way attempts to stop him. Freisler kept referring to him as the anti-Nazi resistance—was tried trial, he feigned amnesia. He was and the Plot to Kill Hitler an into the courtroom and told the court that he was there to ‘Scoundrel Schulenburg’ but at one stage forgot himself and before the People’s Court. Despite the committed to a sanatorium, where he interactive book for the iPad available defend his children. He was seized and forcibly escorted said ‘Count Schulenburg’. The count corrected him, “Surely Nazis’ attempt to humiliate him by survived the war. from Apple Books.

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In this Back of the lift section of the Victorian Bar News, the Bar acknowledges the OF One is always a better lawyer after a In 2016, led by the DPP, her appointments, retirements, deaths and other Back THE lift Silence All bracing session working with (and now, Honour appeared in a Crown appeal honours of past and present members of our Bar. appearing before) her Honour. against sentence on charges of back of the lift back Stand There is little at which Justice Nichols dangerous driving causing death. Adjourned Sine Die Adjourned Sine Die does not excel. She is a superb host and It was terrible driving. But the Supreme Court of Victoria Supreme Court of gifted cook (the writer has never left her offender was a young man with The Hon Kevin Bell AM QC 72 Victoria house hungry or thirsty). Her loyalty to autism, cognitive impairments and Silence All Stand her friends is paramount. Her kindness debilitating depression. The gravity The Hon Justice to those in need is expressed through of the offending was high but the Supreme Court of Victoria Supreme Court of Victoria her generosity: to young juniors looking moral culpability of the young man The Hon Justice Lisa Nichols 73 Lisa Nichols for work, a recommendation for a was low. To make matters worse, the County Court of Victoria Bar Roll No 4032 Her Honour Judge Anne Hassan 73 The Hon Kevin Bell AM QC brief; to friends in need of company, an case had settled late by which time ustice Lisa Nichols was invitation to dinner, delicious food and the young man was no longer eligible His Honour Judge Kevin Doyle 74 Bar Roll No 1977 Her Honour Judge Fran Dalziel 74 appointed to the Supreme wine and invigorating conversation; for youth detention. It could not have ften, but not always, a ceremonial sitting for the retirement Court of Victoria on 22 to clients and colleagues alike who been more complex. Her Honour was Vale of a justice of the Supreme Court of Victoria is an occasion OctoberJ 2019. need someone in their corner, fearless being prepared for a most difficult Raymond Rosenberg 75 marking more of an ending than a beginning. On the Much has already been said about advocacy. However, she is not perfect. part of her new role. Peter Murley 75 O occasion of Justice Bell’s recent farewell from his 15 years of service her Honour’s impressive curriculum She once dropped a container of glitter Her Honour took readers Mable Christopher Johnson 76 as a justice of the Supreme Court of Victoria, there was a strong vitae. The highlights are as follows. eyeshadow on the floor of the MAC Leong and Jordan O’Toole, who said Patricia (Patsy) Mary O’Hara Tucker 77 John Higham OAM 78 sense that after his retirement from the court, there would be much She undertook law studies at Monash counter at Myer. She is allergic to she was a terrific mentor—always John Wadsley 78 more to come. University and won the Supreme spreadsheets. Occasionally, she is late interested in the work her readers Michael Gros 78 On 12 March 2020, the Banco Court was full of friends, family, Court Prize. She completed articles to drinks. were doing and, even beyond the John Seymour Monahan (‘Ginge’) 79 colleagues and several current and former judges, including his at Slater & Gordon and was a partner Her Honour’s appointment to reading period, always available as a Robert Todd AM 80 Honour’s close friend, Chief Justice Alstergren. We all came to three years later. In 2007 she came to the Supreme Court of Victoria is a sounding board. Richard Edward Cook 81 celebrate his Honour’s long and distinguished legal career. The the Bar and took silk nine years and significant benefit to the court and Her Honour has also been a James Westmore 82 Solicitor-General for Victoria, Dr Kristen Walker QC, together with 364 days later. Just shy of two years the community, and to her family member of the Barristers Animal Eugene Trahair 83 His Honour Frederick (Fred) George Davey QC 83 Simon Marks QC and Sam Pandya, representing the Victorian Bar later, she was appointed a judge of the and friends who rejoice in this most Welfare Association and the Bar’s Peter John O’Callaghan QC 83 and Law Institute of Victoria, respectively, each spoke. Supreme Court. Her Honour’s progress deserving appointment. Equality & Diversity and Pro-bono His Honour Chester Stewart Keon-Cohen AM 84 Common themes amongst the various speeches were his Honour’s through the law can only be described KATE BURKE Committees, a readers’ course The Hon Barry Watson Beach AM QC 85 hard work ethic, creativity and curiosity: qualities that he brought as meteoric. Apparently, NASA has advocacy coach, a mentor for Michael Joseph Louis Dowling QC 86 to the comprehensive review undertaken of the Victorian Civil been in touch, seeking advice on how County Court of the Diverse Women’s Mentoring Richard Stanley QC 87 and Administrative Tribunal during his time sitting as president to achieve such rapid acceleration. Association, and a volunteer at the Robert Langton 89 Victoria Ian Thompson 89 from 2008-2010. The significant contribution his Honour made to At the Bar, Justice Nichols quickly Darebin Legal Service and Sudanese the development of the law in Victoria on the Charter of Human became a leader in the areas of Her Honour Judge Australian Integrated Learning. Rights and Responsibilities was also widely recognised by all of class actions, mass torts, consumer Anne Hassan In 2018, her Honour gave the junior the speakers. His Honour’s decisions on the charter have been protection and environmental law. counsel speech at the Bar dinner. She Bar Roll No 3644 Gonged! formative in establishing a charter jurisprudence in Victoria and Her work was always conducted with quoted Socrates on oral advocacy: will no doubt continue to be read for years to come. compassion and the highest standards udge Hassan was admitted to “He was against paper. It threatened His Honour’s speech offered a rare insight into what appears to of respect and duty to the law and to practice in 2001 at which time the spoken word, which was more 2020 AUSTRALIA DAY HONOURS have been a driving force in his legal career. His Honour is very her clients. Her intellectual honesty Jshe was associate to Justice authentic and less open to distortion Fiona McLeod AO SC clearly a man driven by public service and whose commitment to is without question. Her intellectual Warren (as she then was). because of the presence of a critical The Hon Hartley Hansen AM QC such service appears to come naturally, without reservation. His abilities are, frankly, intimidating. Her Judge Hassan signed the Bar Roll interlocutor who would challenge Michael Wright AM QC Honour thanked colleagues and highlighted the enduring support capacity for hard work is legendary. in 2003, joining Dever’s list, reading and question any loose or sloppy David Curtain AM QC during his career of his family, especially his wife, Patricia Byrnes, At times, her work habits have caused with Jane Dixon and embarking on a utterances.” Dr Suzanne McNicol AM QC a member of the Victorian Bar. A particularly touching aspect of family, friends, and colleagues to use 15-year career at the Criminal Bar. Then, on what follows after Dr Sam Ricketson AM his Honour’s address was directed to his 16 associates, whom he words not fit for the editorial standards In case after case, for defence or advocacy, her Honour quoted Warren Tom Danos OAM described as teaching him, not only learning from him. of the Victorian Bar News. Yet, however the Crown, her Honour saw the real CJ, that reasons for sentence should 2020 QUEEN’S BIRTHDAY HONOURS Given his long-standing interest in legal education and much one might rue the long hours person amidst the law and developed be written more simply and briefly— The Hon Justice Susan Kenny AM distinguished career in public and human rights law, it may not and sad midnight dinners from the a reputation for having an eye for in an accessible way that they might The Hon Justice Shane Marshall AM come as a surprise that his Honour will now continue his public à la carte menu of the 7-Eleven hot detail and an ability to grapple with a more readily be published and, more The Hon Robert Redlich AM QC service as professor of law and director of the Castan Centre food unit (the writer recommends number of conflicting legal principles. importantly, read. Martin Bartfeld AM QC for Human Rights at Monash University. We thank him for his the sausage roll), the result of those In the Court of Appeal, her Honour May her Honour have joy in the Jennifer Batrouney AM QC significant contribution as a justice of the Supreme Court of Victoria long sessions at the desk reveals an appeared alone and with leaders, appointment, and long, satisfying and Carolyn Douglas OAM and wish him all the very best for the next stage in his career. essential truth: being gifted can take including Champion J, Kidd J, Judge distinguished service as a Judge of OTHER APPOINTMENTS KYLIE EVANS you far, but without hard work, success Trapnell, Silbert SC, McArdle QC, the County Court. The Hon Justice Michael Sifris - Court of Appeal is both impossible and unsatisfying. Elston QC and Kissane SC. SIMON MOGLIA

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His Honour experienced silk warned the jury not to and forged deep friendships. Her as sufficiently persuaded of his own Judge Kevin Doyle be influenced by the fact that Mr Doyle colleagues and friends value her sharp ability as he should have been. When was a “very pleasant, nice, clever man” intellect and generosity of spirit. She Vale there were no trials or pressing back of the lift back Bar Roll No 3028 or that he seemed to have “made a is admired and respected for her legal paperwork, he loved windsurfing in udge Kevin Doyle’s legal career good point”. His Honour’s practice was achievements and her support of other Port Phillip Bay, striving for personal spanned more than 30 years characterised by his deeply analytical practitioners, especially juniors. She best. He also found time to sit on the J before his appointment as a approach to legal issues, thorough encourages and mentors other women, East Melbourne Synagogue board, County Court judge. During this preparation, sound knowledge of the notably women working in crime. making significant changes to its time, he developed a deep and wide law and judgement of facts, as well as Judge Dalziel’s love of animals is constitution. knowledge of criminal law, appearing careful weighing of the opinions of no secret. She was a member of the Retiring from the Bar in 2016 as for both the prosecution and defence. juniors and instructors. Bar’s animal welfare committee and the ravages of MND took hold, Ray Upon admission to practice in 1987, The Victorian community is is a great supporter of the OPP victim Rosenberg retained his sharp mind his Honour’s first position was as a fortunate to have his Honour join the support dog program. Lucy, the OPP and curiosity to the end. Those close to solicitor in the Dandenong office of what County Court, bringing outstanding pooch, who is trained to provide Ray hope he will be remembered for was then the Legal Aid Commission, intellect, court room skills, compassion comfort to vulnerable witnesses, lives the man of integrity, robust advocate where he was immediately exposed to and commitment to the administration with her Honour and was present at and kindly mentor that he was. advocacy in the criminal jurisdiction as of justice. the judge’s official welcome to the SIMONE JACOBSON a duty lawyer. This was the beginning JENNIFER CLARK County Court in early March. of an enduring practice in crime: At that time, the COVID-19 storm his Honour worked at the Victorian Her Honour Judge was brewing, but was registering Aboriginal Legal Service, then for a year barely a blip on the radar. Two weeks in London before returning to the Legal Fran Dalziel later, the World Health Organization Aid Commission, first as a duty lawyer Bar Roll No 3858 had declared a global pandemic, and then in the indictable crime unit. udge Fran Dalziel studied Victoria’s premier had announced Raymond Rosenberg He came to the Bar in 1995 classics before turning to law, a state of emergency and the courts and appeared in his first trial in completing both degrees with Bar Roll No 1280 were suspending jury trials. This Bairnsdale in 1999, representing one honours. Her first job in the law was J unprecedented arrival on the court aymond (‘Ray’) Rosenberg machines at Dandenong Magistrates’ of four accused. Against the odds, all as associate to the late Justice Peter didn’t slow her Honour. She jumped passed away, aged 70, on Court and a shared, tragic devotion four were found not guilty. Buchanan QC of the Court of Appeal. from the starting gates and has already 25 November 2019, after a to the Melbourne Football Club. Ray In 2002, his Honour took leave of After two and a half years, she left to been reported in some interesting high Rbattle with motor neurone disease. tutored at LaTrobe University and absence from the Bar and went to the do articles at Kenna Croxford. profile press. That she remained calm He was born in 1949 in Launceston, provided legal assistance to at-risk North Australian Legal Aid Service in She was admitted in 2001 and and focused in the crisis is no surprise Tasmania, where his family grew youth on probation, inspired by social Darwin. On return, his trial practice worked as a solicitor in the WorkCover to those who know her. vegetables. His father was a dentist, worker Lily, whom he first met at a was cemented: in demand to appear Division at TAC Law and later at Judge Dalziel said at her welcome serving in the medical corps during dance. (They married in 1977 and had for the defence, and increasingly Mills Oakley, where she practised in that she saw her appointment as a new WWII. When Ray was nine, his father three children.) Peter Murley for the prosecution. He prosecuted personal injuries. But the Bar was way to serve the justice system and the died, leaving Ray to head a household Tall, intense, direct, with a gruff in numerous country circuits and calling and in 2005, she answered the Bar Roll No 793 community. We will all be well served of five children. manner that belied his personal earned a reputation as a top operator: call, reading with Mark Taft, now a with her Honour on the Bench. VBN Educated at Wesley College, Ray warmth, Ray had a general eter Murley passed away on pragmatic, able to see both sides and judge of the County Court. was a member of its senior rowing commercial practice, including in 29 October 2019 at the age capable of resolving issues. These As a student, her Honour had not team. He then attended Monash the areas of banking and finance, of 84 years. qualities were appreciated by circuit been especially interested in criminal Magistrates’ Court University. trusts and insolvency. He appeared Peter was admitted to practice judges and always complemented by work, but her time as an associate had of Victoria Admitted to practice in 1974, Ray unled, and led by silks including Pin 1966 and came to the Bar the great courtroom skills. changed that. At the Bar, she began Her Honour Chief Magistrate did articles with Sackville Wilkes Allan Myers QC and Cliff Pannam same year, where he read with the His Honour conducted many what has developed into a long and Lisa Hannan & Co, and later at Philips Fox. In QC. He could be fierce, challenging Hon Sir Ninian Stephen, then Ivor significant trials in the Supreme fruitful career in criminal law. She was Her Honour Magistrate Hayley Bate August 1976, Ray signed the Bar Roll, instructors and clients alike, Greenwood QC. He established a Court. In 2018, he was appointed involved in the prosecution of several His Honour Magistrate Justin Foster reading with the late Ronald Castan meticulously drafting evidence thriving practice in bankruptcy and a crown prosecutor. It was a well- complex and high-profile matters and His Honour Magistrate QC, whom he greatly admired. He over weeks, if necessary. He was a crime, later focusing on criminal deserved appointment, but lamented was recognised as a fine advocate. Michael Richards was on Duncan’s List and later List generous mentor to his three readers, trials in the County and Supreme by chambers colleagues, who lost the In 2012, she was appointed a crown Her Honour Magistrate G with Glenda McNaught, returning Sandra Horovitz, Simone Jacobson Courts. great company and good humour of a prosecutor. In 2018, she took silk; the Elizabeth Langdon to Duncan’s/Patterson’s after her and Einar Oxnevad. Peter overcame great adversity in valued colleague. same year, she became a senior crown Her Honour Magistrate Kristen Rose departure. His chambers, inherited from Sir his early years. As a child, he spent He had a reputation as a formidable prosecutor, contributing greatly to the Her Honour Magistrate During these early years, Ray Daryl Dawson, were on level 12 Owen eight years at the infectious diseases prosecutor: impeccably fair, with a Court of Appeal practice and the trial Victoria Campbell shared chambers and impassioned Dixon East, alongside Joseph Carney, hospital in Fairfield. He was admitted disarming affability that had great practice. His Honour Magistrate Andrew Halse discussions with Tony Neal, their Michael Colbran QC and Rowan with tuberculosis, then contracted jury appeal. Indeed, in one of his last In Crockett chambers and at the Her Honour Magistrate Helen Murphy longstanding friendship born of a Downing QC. Widely regarded as a polio and spent some time in an cases, a murder trial in 2019, a very OPP, Judge Dalziel found collegiality protracted duel over the sale of sewing formidable opponent, Ray was not iron lung. His mother visited him in

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hospital once a week, but because of Brendan Murphy describes Peter very proud of all his readers and the risk of infection, his brother was as the most generous person you took great pleasure in watching their standards. For some time, he was relaxation—always in the same car, then-traditional probate and divorce only able to see him from outside on could ever meet. In first year law, due achievements. part of a happy quadrant in Latham which he bought new and kept for dichotomy. the hospital lawn. Peter’s daughter to ill health, Brendan failed British Peter was renowned for his fierce Chambers that included Phillip 39 years. Chris was on Dever’s List In 1967, Patsy married William (Bill) back of the lift back Raelene wonders whether this early History of Law. This caused him to advocacy style. Overwhelmingly, Goldberg and David Fanning, both throughout his career at the Bar. The Tucker, a very respected and much- isolation helped him develop the lose his Commonwealth Government however, he is remembered by his now long-serving magistrates. Chris’s staff there will remember him fondly. liked senior solicitor in the office of sharp facility he had for reading scholarship and required him to colleagues as a big-hearted man who annual trips to the country were his RICHARD LAWSON the Deputy Commonwealth Crown faces and body language that served repeat the whole of first year. He was was generous to a fault. As Wayne Solicitor in Melbourne. They were a him so well throughout his years in unsure whether he could afford to Henwood (who shared chambers devoted and loving couple. Colleagues practice. continue with his law studies. One with him for 10 years) commented, noted that they would quite often walk He was discharged from hospital evening, he found fellow student, “You couldn’t help but like him.” to work together from their house in at the age of 11, though he had Peter Murley, at his door step. Peter Peter remained in demand as an South Yarra. to continue wearing callipers. He handed over a blank cheque and advocate for five decades, including In February 1976, Patsy signed the attended school for a year and a half told Brendan to fill in the required successfully defending a murder Roll and began her career at the Bar. before leaving to find work, which amount for his uni fees for the trial in recent years, even as his She read with the author—the sixth of including selling newspapers at the coming year. Although Brendan told physical health declined. He also had his 10 readers, and the only woman. races, and later as a dental mechanic. Peter he couldn’t take the cheque, the pleasure of appearing with his Patricia Mary O’Hara’s signature Peter was supporting his wife and the fact that the offer was made is daughter Raelene on one occasion. She is the 1214th to appear on a Bar Roll two children in the 1960s when he testament to the type of person that recalls him being completely in charge established 76 years earlier but, of returned to school to complete his Peter was. on his feet, speaking without notes the names that appear before hers, leaving and matriculation certificates. Peter mentored nine readers: the and with a command of the evidence. only 25 are those of women. Times He subsequently commenced a Hon Justice Phillip Priest, Michael He moved to the list of retired counsel were however changing although, law degree at the University of Gregurek, Stephen Marantelli, Ian only a few months before he died, as it seemed then, very slowly; in Melbourne, where his classmates Bowditch (deceased), Brian Scheid although many of his colleagues have the previous year only three women included Brendan Murphy, Philip (deceased), Paul Holdenson QC, commented that, at least in his own signed the Roll and, in the year before Dunn and Con Heliotis. A bookmaker John Goussis, Anthony Phillips and mind, “Murls never retired.” that, only one. When Patsy began her friend let him use his apartment as a Simon Lee. He was also an unofficial THE HON JUSTICE PHILLIP PRIEST reading, no more than about 10 women quiet space to study. mentor to many others. ’Murls’ was & PAUL HOLDENSON QC were in active practice as barristers. From 1976, the pace of change A personal tribute from Paul Holdenson QC Christopher Johnson increased and the number of women at the Bar in Victoria began to grow I first met Peter Murley at the Stony Creek races in 1974. He drove me back to Bar Roll No 1406 Patricia (Patsy) Mary O’Hara Tucker substantially, as Her Excellency the Melbourne at the end of the day, and we ate a late dinner at Vlado’s (Michael Hon Linda Dessau AC QC pointed hris died unexpectedly on 11 Bar Roll No 1214 Gregurek’s father’s restaurant). It was the beginning of a lifelong friendship. out in her 1981 Bar News article “A October 2019. He had turned We often met at the races, and Peter was most partial to having a bet. In atricia Mary O’Hara, one the study of law in Melbourne but, in the Necessarily Short History of Women 65 three months earlier, those days, the crowds were large, and there was wealth to be redistributed! C of the pioneer women of context of the Victorian Bar’s historical at the Bar”. Patsy O’Hara went on to having retired from the Bar in 2016. On occasion we shared meals after the races and before the trots. the Victorian Bar, was born connections with Ireland, it may not be develop a thriving practice from Four Chris was educated at Scotch Years later, Peter was very pleased when I got into law school and regularly in Tralee, County Kerry, on the west out of place to note that her birthplace, Courts Chambers. She undertook a College and studied law at the gave me much-needed encouragement. For most of the four years that I Pcoast of Ireland, in March 1931. She Tralee, was on the old Munster circuit as variety of work including—as was her University of Melbourne. He will be studied law, Peter required me to phone him every Friday morning in his was the second of seven children the assize town for County Kerry. There aim, but notably for those times— remembered as a very scholarly man chambers in order to cross-examine me on whatever legal topic I was studying of Thomas O’Hara, a veterinary is also some reason to suppose that commercial work, equity matters and with an intuitively dry wit and as a at the time. This was largely to ensure that I did not miss classes to go to surgeon, and his wife Mary. Patsy was, for a time, a student at Trinity some crime, in addition to a broad scrupulously fair opponent in court. the races! Peter Murley literally got me out of the betting ring and to the Patsy, as she was always called, College, Dublin. range of family law cases. Throughout Chris’s 10 years at Bar table. arrived in Australia in 1955 with the Patsy graduated in 1962, served her It was no surprise that Patsy was Scotch, his father was a senior We appeared together on several occasions. I once led Peter in a case intention of spending some time year’s articles and was admitted to successful at the Bar. She had an English teacher at the college. This before the Queensland Court of Appeal (R v Punj (2002) 132 A Crim here before returning to Ireland. practice in March 1963. acute and insightful intellect and a saw Chris develop a life-long interest R 595). The appeal was booked in for three days, but after arguing the first Instead, after working in an office After admission, she worked as a very independent spirit. It was also in and devotion to literature. Literary three grounds of appeal, we were ‘stopped’ by the Court and the appeal in Melbourne for a few months, she solicitor with Ridgeway Pearce & Co. remarked, rightly, that she was not allusions would arise fluidly in was allowed. Rather than return to Melbourne that night, we went to the enrolled to study for a law degree The firm had a large divorce practice— to be trifled with. As well, she is Chris’s conversation. On one notable greyhound races at Albion Park, and pretended that it was the 1970s all at the University of Melbourne. At a the term then used—and frequently remembered for her charm and wit occasion, it had to be explained to over again. time when most first-year students at briefed Molly Kingston (the seventh and the beautiful brogue that never Chris that not everybody could name At a dinner one night many years ago, Sir Ninian Stephen and Lady the Melbourne Law School had come woman to sign the Bar Roll) who was left her. King Lear’s three daughters. Stephen both spoke to me at length about Peter and what a good-hearted straight from school, Patsy, then in a former partner of the firm. Patsy Patsy retired from practice in 1994 Chris had a wide practice at the person he was. I could not agree more. her mid-20s, appeared as a woman practised in that field too but aimed and continued to enjoy with Bill their Bar, with an emphasis on plaintiff I attribute my achievements at the Bar to having Peter Murley as my of great sophistication and charm, as to have a broad practice and was many common interests, including common law work. I remember him Master, mentor and friend. indeed she was. known as a well-rounded lawyer, with art and their garden. She retained as a generous mentor with high It is not clear what attracted Patsy to an interest in equity as well as the connections with the Bar, attending

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readers’ dinners over the years He was ethical to a fault—a standard John Wadsley Footscray and he joined me there for Conciliation and Arbitration. This and always bringing a breadth of he demanded not only of himself, but several months. His commitment to involved a move to Sydney and interests, wit, and fun to the occasion. of his opponents as well. Bar Roll No 2638 assisting often vulnerable members finishing his degree through the back of the lift back Today, as the proportion of barristers John was humble and self-effacing of the community was outstanding. articled clerks’ course. ohn Wadsley died on 1 February who are women approaches one third out of court. This, together with a Eventually, he did go overseas for John’s first job in Melbourne as a 2020, aged 76 years. of the Bar’s membership, and the wicked sense of humour, enabled a time, including returning to his solicitor was with Maurie Brophy. He J John was raised in Middle proportion of those under 10 years him to develop and maintain deep country of birth, the Czech Republic, then read with the Honourable Sir Park and attended South Melbourne in practice at the Bar is substantially friendships with his colleagues, and travelling elsewhere in Europe Ninian Stephen QC and signed the Technical School. After leaving greater, Patsy Mary O’Hara Tucker will which endured beyond his retirement and to Israel. Bar Roll in June 1962. school, he became a herd tester be remembered as one of its pioneer from the Bar in 2005. On returning to Australia, Michael John was one of the first members in Gippsland, and later joined the women—one who contributed much to But there was much more to came to the Bar and read with David of the Hyland List which was formed Victoria Police, rising to the rank of building the bridge between the past John than his career at the Bar. Perkins. He had a varied practice in the in 1960. Fellow list members at that sergeant in the Fraud Squad. and a less unequal present. John began his brilliant athletics areas of criminal law (where I was able time included silks Jim Merralls, He later studied law at Melbourne THE HON MICHAEL BLACK AC QC career as a schoolboy at St Kevin’s to brief him), family law, commercial Howard Fox, Pat Dalton, and Jack University and upon graduating, was College. He then competed with law and workers’ compensation cases. Keenan and also Brian Bourke. articled to Mr Noel Waters of Waters Melbourne University Athletics Club He undertook all his work at the Bar John’s practice was predominantly Lawyers, solicitors of Cranbourne. and Essendon-EMH (now Athletics in a friendly, diligent and professional in personal injuries, representing He was admitted to practice in 1989, Essendon). He served as president manner. He achieved considerable mostly injured plaintiffs. In his early and in 1991 John came to the Bar of the latter club and in 2017, was success in his time at the Bar. days, he also practised in crime. and read with Russell N J Young. He awarded life membership. Later he was engaged in migration A brief to appear before the VRC practised in the areas of criminal law John was a four-time Australian work, assisting people with their Committee or any racing tribunal and family law. champion, with three consecutive applications for residency and related John Seymour Monahan was a highlight for him. He was a John spent a considerable amount victories over 800m (1977-79). In matters. His efforts and his diligence (‘Ginge’) great circuiteer in the courtroom and of time devoted to several community 1978, he won the 400m/800m double, in these applications, especially in socially. His work extended as far legal services. John resigned from Bar Roll No 666 a feat not achieved by any other relation to people from Sri Lanka, as PNG and Nauru, being the first the Bar for a period and worked for athlete in the history of the Australian was obvious in the number of people ohn Seymour Monahan Australian admitted to practice there. the Victorian Legal Aid Commission Championships. He represented from that background who attended (‘Ginge’) died on 20 February John was a passionate man who took in Bairnsdale. He later returned Australia at the 1978 Commonwealth his funeral at the Lyndhurst Jewish 2020, aged 86. a genuine interest in the plight of to the Victorian Bar, from which Games in Edmonton, Canada, winning Cemetery on Sunday 23 February 2020. Son of former Supreme Court every one of his clients. he eventually retired in 2015. John J a bronze medal in the 4x400m relay, Michael spent considerable time Justice Sir Robert Monahan, John’s John mentored four readers: Joe then commenced a small solicitors’ finishing seventh in the 800m and in Manila in recent years but often future at the Bar was guaranteed. Lenczner, Gabrielle Morgan, Peter practice in Frankston. reaching the quarter-finals of the returned to Melbourne to catch up Living in Glenferrie Road, Kew with Duffy and myself. John enjoyed bushwalking and was 400m. He was selected for the 1980 with family and friends and to appear his two brothers and sister, John was Joe read with John in 1975 and particularly interested in Wilsons Moscow Olympics as captain of the in refugee/migration cases in the educated at Xavier College where he was his first reader. The main John Higham OAM Promontory where he spent many athletics team, but he chose to respect federal courts (the work was often boarded for the last three years of highlights of Joe’s time with John Bar Roll No 1254 happy times. John was a decent human the prime minister’s personal request done pro bono). secondary school. were an introduction to horse racing, being who was liked by most people. ohn was called to the Bar in of him (in writing) to boycott the I maintained contact with Michael John was revered by his siblings, telephone betting in a booming voice, John is survived by his son, John, 1976 and read with the late Games. His best 800m time of 1:45.7 via what I referred to as ‘The Gang’, to whom he was a mentor, protector and John’s greatest passion the and his daughter, Melissa. JJudge Hanlon. He began sharing is the 13th fastest of all time by an an informal dining group of legal and father figure. His younger Melbourne Football Club, which Joe RNJ YOUNG chambers with Ray Elston (later Australian. eagles. Michael’s generosity was brother, Brian, recalls: “whenever I still describes as the Melbourne Club. QC and senior crown prosecutor), John gave back to the sport he Michael Gros evident throughout his life. was wound up in a predicament at I commenced reading with John who became a life-long friend. He loved by coaching and leading More recently, Michael married school, John was my first port of call in 1989. He was a close family initially had a wide and eclectic his club, the Victorian Athletic Bar Roll No 2025 Dativa and had a child, Jessica, over as he would invariably know just friend having met my parents in practice, but ultimately specialised Association (1997-2002) and the whom he was a doting and proud what to say or what course of action Newman days. ichael was a good friend in magistrates’ court motor vehicle Victorian division of Commonwealth parent. to take. This carried over well into Reading with John was a of mine. I met him whilst property damage cases—a forum Games Australia. In 2014, he was We didn’t know that Michael was our adult lives and I certainly wasn’t marvellous experience, being at studying law at Monash in which he excelled, perfecting awarded the Medal of the Order of M unwell. Indeed, he only learnt late the only one regularly seeking John’s the little desk in his very spacious University in the early 1980s. He exceptional skills, particularly in Australia for his services to athletics in the piece that he had cancer in an counsel—of which he was always chambers on the ninth floor of graduated at the end of 1982 and was cross-examination. Soon he had as an administrator. advanced state. It was a shock to hear more than happy to give.” Owen Dixon East, with his devoted admitted to practice in 1983. He did his developed a huge practice. John’s John died peacefully on 20 October that he died in Manila on 18 February John then commenced a Bachelor secretary Barb on the manual articles with a firm in South Melbourne reputation in the courtroom saw 2019, after being unwell for a number 2020. of Laws at the University of typewriter in the entrance to and worked there for a time. him in consistent demand from a of years. He is survived by his wife A great friend and barrister will be Melbourne and was a resident at chambers. He was thinking of going overseas wide variety of solicitors. He had Janine and two daughters, Caroline sorely missed. Newman College during that time. My time with John went far beyond in 1984–85 but had a few months the ability to assess the prospects of and Stephanie, of whom he was ROBERT THYSSEN Part-way through that course, he the time allowed, staying a further before he was to leave. At the time, success of his cases, while adhering particularly proud. was offered the role of associate to four-years-or-so, enjoying his I was working at a legal service in to the highest professional standards. HUGH BURCHILL AND MARK PURVIS Sir Richard Kirby CJ of the Court of generosity and good humor.

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Ultimately, I had to get chambers son Peter, “Not sure Dad would have “He was kind, he was non- appointed as the president of the of my own as John’s booming voice gone very well in isolation, doesn’t judgmental of class or position, he newly created ACT AAT, a position placing bets on his phone account quite fit in with his approach.” had a strong sense of justice, he was that he held until his retirement from back of the lift back was often confusing to the injured Although John was 86 when he died, great at a debate, he was generous to a both tribunals in January 1993. In workers with whom I was conferring. his death was a shock. He was a doer fault, he was a passionate supporter of 1994, in recognition of his services to The Supreme Court jury in Geelong and a goer, a generous, warmhearted anyone who needed his help, he was the development of administrative in the early 1980s who overhead John and loving man who had always been a punter, he was almost universally law in Australia, Robert was made a on the public phone after he had been a very close friend, but particularly in loved, and he almost universally loved.” Member of the Order of Australia. allowed a short break by the presiding later years after my parents died. John is survived by his sons Robert, After his retirement, Robert Justice, had a similar bemused As the packed church at John and Peter, and daughter Jane. served as president of the Legal Aid response. His Honour also wished John is beloved Sacred Heart in John is sadly missed. Commission (ACT), and president good luck with his investment. Sandringham read in the mass- JUDGE KATHERINE BOURKE of the Australian Institute of I was opposed to my former Master book before John left the Church to Administrative Law, an association that once, shortly before he retired. Judge strains of “It’s a Grand Old Flag”: he founded with Allan Hall in 1989. Coish found for the plaintiff. Robert enjoyed his time with John may have retired from the both his readers (among them Allan Bar in July 2008, but he was a regular Archibald QC) and his associates attendee at the Essoign Club for from his years at the AAT, many of lunch where he caught up with the whom he maintained contact with current legal gossip and any other until he passed away on 9 December racing and footy news at the time. His 2019. One of them, Philip Coppel QC, numerous—and convoluted—stories now practising at the London Bar, of betting disasters and close-misses wrote this: Richard Edward Cook were legendary. I came to him in January 1985 as a John was a life member of the raw graduate, with an unexceptional Bar Roll No 1316 VRC and Moonee Valley Racing academic record, and as a somewhat ichard Cook died suddenly and for the college feast of St Beryl, Club. He raced weekly, missing the raw individual. He put up with that, of a heart attack on 19 after kidnapping comedians Peter track only to watch his beloved Dees. gave me an opportunity and, in the December 2019, having Cook (no relation) and Dudley Moore, Notably, John never missed the May process, at once showed me great just survived a five-year battle who spent an enjoyable afternoon at Warnambool Carnival and was a kindness, wisdom and humanity. He Rwith prostate cancer, which was in Burgmann drinking libations on the familiar face walking up the big hill had a fine legal mind. But most of all, remission and thought to have been altar of friendship before appearing with thousands of others to watch his court manner was as good as I have almost cured in a new treatment trial. in Canberra that evening. Thus St the jumps, carrying a can of liquid ever encountered in my 34 years since. As a young man, Richard was Beryl’s Day (she being one of the refreshment in one hand. Judgments were, he would remind Robert Todd AM educated at Auburn Primary School, leaping nuns of Norwich) is still John was also a life member of the me, to be written for the losing side; to then Geelong Grammar School, celebrated each year at Burgmann. MCC and probably the most devout Bar Roll No 583 reflect the fact that he had listened to where he flourished. He was house He was in a tontine with a number of fan of the Melbourne Football Club what that side had to say and that he obert Todd was educated Privy Council. prefect, senior librarian, and winner Burgmann residents, including Peter in living memory. He attended every understood what it was that they were at Guilford Grammar and Robert served as a member of the of junior and senior government Garrett. He completed a Master of game possible and frequently went saying. It is an unusual achievement… then Geelong Grammar; he Victorian Bar Council from 1964 to scholarships. He was involved with Laws at the University of Melbourne. to training. He was always seen By the conclusion of my associateship graduated from Melbourne University 1968 and as legal secretary to the many school societies, including a Richard worked first in London bedecked totally in the ‘red and Robert had fashioned me into a proper Rin 1954 with an honours degree in law. Medico-Legal Society in Victoria from star turn as William the Conqueror at Radcliffe & Co. He was articled at the blue’ at ‘The G’, often carrying lawyer: the disjointed thoughts had He then went to Wadham College at 1965 to 1972. In 1971 he was appointed in the school production of “1066 Russell Kennedy & Cook where his a trident. For many years, he ran been connected; he had shown me the Oxford University, where he graduated to the Taxation Board of Review. and All That”. He was on the PNG father was a partner. His grandfather the Red Legs Social Club hosting technique; he had shown me the point with a Bachelor of Civil Law. He was In 1978, Robert was appointed to the school trip to the Martyrs’ School had also been a lawyer. He was post-game celebrations or mostly, of it all. And, at a personal level, I left a called to the Bar in the UK by the newly created Administrative Appeals at Popondetta with HRH Prince admitted to practice on 1 April 1974, commiserations. happier person than I had arrived. He Honourable Society of the Middle Tribunal, which was then constituted Charles, with whom he struck up a signing the Bar Roll on 10 March John died in Noosa in February had set me on my way. Temple. by Justice Gerard Brennan AC KBE correspondence in recent years. 1977 and read with Douglas Graham where he was holidaying before Robert Todd was my father. He cared In 1957, he returned to Australia and just one other member, Allan After travel overseas, Richard QC and Allan Archibald QC. He had going to a 50th birthday in Brisbane. enormously for his wife Helen, and and joined the Victorian Bar, where Hall AM. This was the dawn of a new completed his law degree at ANU. He three readers: Paul Bravender-Coyle, He had been to Sydney a couple of for each of three daughters and his he read with Sir John Young QC. relationship between government left an indelible mark on Burgmann Mark Purvis and Michele Nancarrow, times earlier in the year to see his granddaughter. He taught us to read He practised as a barrister from and Australians as Australian College, having been elected the first all of whom remember him fondly. sister. He was booked to fly to Sydney Shakespeare, pursue education no 1958 until 1971. While there, Robert administrative law came to life. Burgmann Residents’ Association Richard was energetic, and the Gold Coast to watch the Dees matter what or where, and to care appeared as junior counsel to the In 1989, whilst still serving (BRA) president. He was responsible enthusiastic and eccentric at the later in the year, and of course his about fairness. Victorian Solicitor General in as a deputy president of the for naming the college’s two Bar as in everything else. His Warrnambool accommodation had FIONA TODD applications for special leave to the Commonwealth AAT, Robert was residential wings Barassi and Homer organisational skills did not always been arranged. In the words of his

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match his enthusiasm, and life at it to accommodate 26 students in with that venerable firm Galbally Eugene Trahair In a prescient move in 1965–1966, Peter John the Bar suited him far better than six houses around Fitzroy. Richard & O’Bryan before working as a Judge Davey studied as a research the strictures of a law firm. His believed in the power of sharing solicitor in their Dandenong office. Bar Roll No 1891 student at the London School of O’Callaghan QC back of the lift back original practice was in Masters a meal, and students continue to He left an indelible impression on his Economics in criminal law and Bar Roll No 622 ormer member of the Court Chambers but it blossomed meet every weeknight for dinner colleagues there and later continued company law. Such came in handy Victorian Bar, Eugene eter John O’Callaghan into many areas with an emphasis in Brunswick Street (COVID-19 to work with the firm as counsel. in the late ’80s when he was an Trahair, passed away on 22 was born in Horsham on on wills and estate work. He was notwithstanding) with staff to mentor Jimmy was called to the Bar in May independent director at Quintex, run February 2020, at the age of 72. 8 September 1931. His hard-working and conscientious and tutor them. The college continues 2014. He read with his Honour Judge by the now notorious Christopher FEugene was educated at Xavier father Jerome was born in Eniskeen, and was prepared to take on and under the guidance of a council, Trevor Wraight. His senior mentor Skase. Fred resigned on a point of College and studied law at Melbourne PIreland, and left Ireland at the age run any matter. He had many loyal established by Richard in 2019. was Neil Clelland QC. principle regarding the accounts University. He was admitted to of 14 with an older brother, arriving supporters. Never a shy opponent, he A devoted husband, parent and Jimmy’s abilities as a barrister were and not long afterwards, in January practice in 1973 and came to the in Australia in 1916. He eventually was not afraid to run a case rather grandparent, he is survived by his surpassed only by his dedication and 1991, the company infamously Bar in 1984. He read with the late settled in Horsham and married than settle. wife, Juliet, and his children Alice, preparation of work, which bordered went into receivership with debts Jeffrey Moore QC. His fellow readers Eileen Nolan, a local Horsham girl. Richard authored Jacobs County Jeremy, Elizabeth, William and on the obsessive—that obsession of $1.89 billion. included the Hon Simon Molesworth They had four children. Peter was Court Practice (6th Edition) then, Annabel. being drawn from the wellspring of his Fred was lovingly described at his QC, his Honour Duncan Allen QC and the third, having an older sister and when the Law Book Company BILL GILLIES competitive nature. He is remembered funeral by his son, Justin, as a man the Hon Peter Costello. brother and a younger sister. decided not to continue publishing it, by colleagues on the defence side of of integrity, compassion and grit, all Eugene left the Bar in 1987 to Peter was schooled, until he he privately published The Annotated the Bar table as a brother-in-arms, by mixed with a lighthearted nature. set up practice as a solicitor at was 14, at local Catholic schools in Rules of Court 1996–2019, (‘The Cook opponents as a formidable adversary Fred was a serious student, Camberwell Junction. Horsham. When Peter left school, Book’) as well as a brief textbook, and by the judiciary as an exceptional LLB(Hons) and BCom, and an Vale Eugene Trahair he became a motor mechanic and Upsetting Wills, and many journal practitioner. excellent sportsman, receiving Blues VBN worked for 10 years in his father’s articles. The Cook Book had the In his time at the Bar, Jimmy won for weightlifting and rugby. business, which was conducted rules of the County, Supreme and numerous trials and touched the While at university, he apparently His Honour Frederick from the backyard of the family Magistrates’ Courts all in one volume. lives of countless clients: individuals gifted a chocolate cake to fellow house. By his own account, for which It had the advantage of being pithy up against the might of the state, (Fred) George Davey QC Trinity College friends Jack Strahan, there is some corroboration, Peter and, unlike other practice books, able navigating utterly foreign territory. Bar Roll Nos 681 & 1104 Jack Long and Alan Cornell in the was an outstanding cricketer and to be easily taken to court. It was, More often than not, Jimmy guided college study; shortly thereafter udge Davey was articled to footballer. That is to say, he played in in an admittedly small field, a them through the quagmire to it exploded—everywhere and on Gillott Moore & O’Hearn in a representative cricket team for his best-seller. acquittal. everyone (no Blue for pyrotechnics!!) 1961, signed the Bar Roll in district and played full forward for Outside of the law, his range of Jimmy was a true Renaissance man Fred was an accomplished gymnast 1963, read with Charles Francis QC, Horsham in the Wimmera League. interests was quite extraordinary. with an encyclopaedic knowledge of J with immense strength and skill. He took silk in 1992 and practised at the In 1953, a local doctor, Mark O’Brien, He helped many people in difficult art, literature and music. He was an could scuttle up walls in college and Bar in property damage, building told Peter he should go back to school situations, including arranging for axe man, playing feedback-heavy hang there, thereafter frightening law, commercial law and crime. His because he had more talent than to be the education at Geelong Grammar guitar with the band Buried Horses. persons by landing behind them as readers were Susan Crennan QC, a mechanic in a country town. Peter of children whose parents could He was a sartorialist. He was a they looked for the errant person Judge Meryl Sexton, John de Wijn QC, undertook an adult matriculation not afford to pay, and writing and master chef and gourmand. He was who had knocked at the door. Justin Robert Lancy, Stephen Wartski and course by correspondence at Taylors publishing both his own and others’ a smooth operator, both in and out remembers his father walking around James Westmore Sean McLaughlin. College in 1954. He obtained excellent historical articles and books. For of the courtroom. Above all, Jimmy Central Park, Malvern, on his hands, Judge Davey was appointed a results, won a scholarship and enrolled a short time, he owned and ran Bar Roll No 4684 was a bon vivant—to the point of to the great delight of all assembled judge of the County Court in 1994, in law at the University of Melbourne. Webbers Bookshop, until the realities hedonism—if ever there was one. children. immy Westmore was 34 years chairman of the Domestic Building He lived for some time at Newman of retail caught up with him. He He was also an accomplished Unfortunately, due to ill health, old when he passed away in late Tribunal from 1996 to 2001, and College and then in the Shakespeare had a capacity for friendship and sportsman, playing cricket and Fred retired as a judge in 2007. February 2020 as a result of an thereafter vice president at VCAT Hotel in North Melbourne, where he loyalty and, when not running a case, footy in his earlier years, becoming Judge Davey died on 1 March 2020 accident near Warrnambool. He is (Civil Division) until he retired. had some part-time work. In 1958, lunch. An inveterate letter writer, J a skilful golfer and, more recently, aged 81, and is survived by his wife survived by a big-hearted, generous In the 2000–2001 VCAT annual during the final year of his university his last letter was published by The racing cyclist. Jane, daughter Natalie and son Justin. and welcoming extended family report, the then president, Murray course, he worked full-time as a Australian on 20 December 2019. Those that were close to him knew Tragically he was pre-deceased by and friendship group, as well as a Kellam QC, said of Fred: law clerk in the firm of Brendan He brought his energy and him to be generous of spirit, possessed his daughter Danielle. tight-knit crew of criminal defence Judge Davey’s input into the creation McGuiness & Co. enthusiasm to many causes but of a constantly firing intellect and with Retired judge, Tim Wood QC, advocates. and establishment of VCAT cannot be At university, Peter met Jennifer perhaps his greatest was Brunswick something of a mercurial nature that recently described Fred as a Jimmy was educated at Trinity overstated. In addition to the leadership Hartnett. They married on 21 Street College. Richard conceived was usually endearing. As his beloved “gentleman and dear colleague”— Grammar School. He then studied he provided to the Civil Division, his December 1957. Peter and Jennifer and established the college in 2000 Neil Young sang, “It’s better to burn out Hear, Hear! Arts and Law at the University knowledge of building matters and had six sons, Stephen (a chemical as a residence and community for than it is to rust / The King is gone but Vale Fred. of Melbourne. His scholastic computer technology were of great engineer), David (an obstetrician), students coming from the country to he’s not forgotten.” His infectious lust JUDGE MICHAEL MCINERNEY achievements were numerous. importance in the renovation of 55 King Christopher (a physician), Paul (a university in Melbourne. He was the for life will be deeply missed by the Jimmy was admitted to practice Street and in the establishment of the veterinarian), Robert (an accountant first warden and, over the 20 years criminal defence Bar. in 2011. He completed his articles VCAT Registry. and banker) and Marcus (a lawyer since its inception, he had grown ADAM V CHERNOK

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who now works in the finance as a sports administrator. From chambers with Glen Waldron, later form of judicial supervision led to industry). Peter had more than 20 1987 to 1992, Peter was a Victorian Chief Judge Waldron of the County much-needed improvements in grandchildren. Peter’s beloved wife Football League, and afterwards, Court, and signed the Bar Roll in case scheduling and management

back of the lift back died 19 years before Peter. After Australian Football League, Appeals April 1969. of the court’s civil workload. These Jennifer’s death, Peter lived alone. Board member. From 1993 to 1997, At the Bar, he developed a outstanding achievements were In 1960, Peter was admitted to he was chairman of the Australian large personal injuries practice, featured in the Financial Review, practice and, in 1961, he signed Football League Appeals Board and particularly on the Mildura and in 1995 and 1996, and attracted the Bar Roll. He read with Kevin he was an Australian Football League Ballarat circuits during the late interstate judicial attention. Anderson, later a judge of the Disciplinary Committee member in 1970s and early 1980s. A country His Honour retired from the court Supreme Court of Victoria. Peter did 1993 and 1994. He became Chairman practitioner described him as in August 2001 and thereafter focused not take any readers, but he was a of the Australian Football League “outstanding, most industrious and on his expanding family, managing mentor to many throughout his long Appeals Tribunal Board in 1998 extremely efficient.” It seems he his farm (also his residence) at Upper career as a barrister. In 1974, Peter when it was established and pursued a firm policy that cases were Beaconsfield, and playing golf. took silk and remained in active remained the Chairman of that best settled. He was, for many years, a member practice until a few years before board for many years. He was appointed to the County at Royal Melbourne and Barwon his death. He had a distinguished In 1996, Peter was asked to accept His Honour Chester Court by a Labor government in Heads golf clubs. He played regularly, practice in almost every field of law. an appointment as the independent August 1988, where he adjudicated in including on several golf trips Stewart Keon-Cohen AM He appeared in many criminal trials commissioner to inquire into and both civil and criminal jurisdictions. overseas. He hit the ball out of sight, The Hon Barry Watson and in the civil field he undertook advise the Catholic Archbishop of Bar Roll No 874 He was well regarded as a did not enjoy losing, made many licensing, town planning, commercial, Melbourne regarding allegations hardworking, enthusiastic and firm friends, organised events, and sought Beach AM QC is Honour was born in taxation, defamation, personal of sexual misconduct within the judge: a tough sentencer but fair. He election (unsuccessfully) as captain Bar Roll No 494 Melbourne in 1941. His injuries, constitutional and trade archdiocese of Melbourne by persons demonstrated courage and integrity, of Royal Melbourne. father, Bryan, a highly he Victorian Bar mourns practice work at the highest level. with authority in the church. This willing to speak out against improper He also travelled overseas with his regarded orthopaedic surgeon, the passing, on 8 May 2020, Peter was active in circuit work in was a job no one would wish to do, practices, whether in business or wife Sue, favouring exotic destinations— Hwas one reason, it seems, for his of one of its most esteemed Ballarat, Warrnambool, Hamilton and but Peter accepted this community government circles. Practitioners and the Maldives, Easter Island, the professional interest in personal members. Barry Watson Beach was a Horsham. He appeared in many royal responsibility and undertook the clients waiting to start proceedings Galapagos, Antarctica, Borneo, and injuries litigation. His Honour was Tman who strode the legal landscape commissions and boards of inquiry work continuously for more than 20 particularly appreciated his practice Kazakhstan—always, Sue records, “in educated at Scotch College, then of this state from the 1950s until for parties or as counsel assisting. years. In doing so, he served, with of calling the next case late in the search of the natural world.” studied law at Melbourne University judicial retirement on 14 February He participated as counsel or as compassion, those who have suffered day, rather than adjourning the court, On 26 January 2018, his Honour while resident in Trinity College. 2003, with a purpose and a power arbitrator in many large arbitrations. as a result of sexual misconduct thus avoiding further cost and delays. was named a Member of the Order of During these years, following a long that swept all before him into victory He acted as an independent expert in the Catholic church. Peter was In December 1994, aged just 53, he Australia (AM) for services to the law family tradition, he represented all or justice, and commonly both. in many commercial and building subject to entirely unfounded and was diagnosed with cardiomyopathy. and to the Victorian judiciary, and for three institutions at rowing, including Barry Beach never saw barriers— disputes. unfair criticism for the work he Thereafter he managed this often voluntary work with several health the Scotch first eight (1958, 1959) and in life or the law. He sidestepped or Peter was a director of Barristers undertook as the independent fatal illness reasonably well—albeit and community organisations. He was winning Intercollegiate (1962) and jumped them with alacrity. No task Chambers Ltd from 19 October 1982 commissioner. This criticism was very on a strict regime of medication and a founding member and president Intervarsity (1963) when he stroked was too hard for his mind or his body, to 22 May 1992. He was appointed hurtful to him. no alcohol—but was unable to sit in of the Cardiomyopathy Association the victorious MUBC eight in a boat possessing an unnerving capacity to to the special accommodation Peter was a fine advocate, lengthy trials. of Australia; vice-president of the named Keon-Cohen. He also coached see the critical point and the justice committee of the Victorian Bar on renowned for his court craft and Rejecting the prospect of retiring Asthma Foundation for a decade; and Trinity and MUBC crews; played in it. 16 June 1981 to investigate ways wit. He is remembered as a decent, on a pension, and with the active a Kew city councillor, 1985–1989. football for Scotch; pursued what Born on 16 February 1931, he was in which accommodation could be compassionate, wise and just man support of Chief Judge Glen Waldron His Honour died at the family became a lifelong passion for golf; a member of a post-war working provided to the Bar. Peter remained in and out of court. He was a great and Judge David Jones, he designed house at Point Lonsdale on 9 was a strong swimmer and lifesaver generation to whom opportunity chairman of the committee until May raconteur. He had a deep knowledge and vigorously implemented a new March 2020, aged 78 years, utilising at Point Leo; and subsequently abounded in a rapidly expanding 1992. He was the driving force behind of music, literature and film. He system to improve the listing and Victoria’s assisted dying legislation. became a qualified scuba diver, society. Beach seized every the planning, financing and building was the epitome of a good man. management of civil cases in his Following a lengthy, very painful visiting the Great Barrier Reef with opportunity that came his way. He of Owen Dixon Chambers West, He did not speak ill of anyone and court. He reviewed and reorganised a struggle with motor neurone his family: wife Sue, daughter Cathy was given little, and he created which provides a large part of the took criticism with a shrug of his chaotic backlog of about 10,000 cases, disease—a debilitating condition (deceased 2013), and sons George, opportunity by sheer hard work and accommodation for the Victorian Bar. shoulders. Peter relished life in all some up to 10 years old. To pursue for which there is no known cause, Ben and Edward. a prodigious memory and intellect. The committee met at 7.45 every its ages, from boyhood to old age. the ‘Civil Initiative,’ and ably assisted nor cure—his departure was both His Honour graduated LLB in 1964 This was his lifelong hallmark. Wednesday morning for at least He enriched the life of everyone he by his associate, Myles Walker, courageous and dignified, while and was articled to Hector Bathurst The intellect of the young Beach four years during the planning and met. He was a truly good man whose his Honour sat, often five-days-a- involving extensive consideration for at Rodder, Ballard and Vroland, on was recognised early—in the grant building of Owen Dixon Chambers decency and discretion remain a week, from July 1995–1998, listing his family and friends. a salary of £10 per week. He was of various scholarships to enable his West and on many other occasions, model for all. 10-cases-an-hour for callover and He will be greatly missed by his admitted to practice in March 1966, passage into the halls of Geelong as required. Peter was delighted and proud directions. Strict court control was extended family, many professional then worked with Frank Monotti College, which opportunity was Peter was always a sportsman. when the Bar established the Peter introduced, pursuant to new rules and golfing friends, and colleagues. & Co, solicitors, in Dandenong. otherwise not open to the Beach Until the last few years he played O’Callaghan QC Gallery in 2014. with a strong emphasis on mediation DR B A KEON-COHEN AM QC He transferred to the Bar, read in family. At The College, he was both golf weekly, at least. He also served ALLAN MYERS AC QC and case conferences. This enhanced

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a gifted student and sportsman. He even a perceived collapse in the single-handedly and for many years, by the Carmelite nuns at the Good Michael took silk in 1979, and rowed in the Crew. In doing so, he Victorian Police force. shaped the by-ways and the practices Shepherd Convent in Albert Park he should have become a judge. In attacked the Barwon, just like the Bar Beach QC’s commission during of counsel, and the profession, and the and then at Mount Carmel College August 2000, he was appointed as

back of the lift back and the law itself in later decades: 1975–1976, in what became known as practices of the community at large. If in Middle Park. He completed his an assistant registrar at the Court “grab the oar, row as hard as you can, the Beach Inquiry, was to scrutinise your point was not clear in 10 minutes, schooling at Parade College in East of Appeal and then, within a year, get in front, hold on for your life and the conduct of the Victoria Police, either you were, or your point was, Melbourne and enrolled in the as a Master of the Supreme Court, stay there”, he once said to me. Stay and it was to be executed “with without merit. His Honour’s piercing articled clerks’ course through which, supervising the administration of he did. He was a leader in the true as little delay as possible” by the eyes focused on all you were required whilst working part-time, he qualified civil appeals. He retired in 2007. sense and led without fear or favour. command of the Executive Council. to submit until the justice of the for admission to practice. After a Michael was a doyen of the 10th The Geelong College at that time The Government of the day had matter was revealed. When that time short time working as a solicitor, he floor of Owen Dixon Chambers; his turned out some of the finest justices the right person to do so. He sat for was known, we all knew. No bad thing. came to the Bar, signing the Roll in friends included ED ‘Woods’ Lloyd, of the Supreme Court of Victoria of 227 days, took evidence from 240 To have the confidence of his Honour 1963 and reading with Leo Lazarus, Jack Winneke, Alastair Nicholson, that era or any era: Justices Crockett, witnesses and received 766 exhibits in your submission was a merit like later Judge Lazarus QC. Neil McPhee, Hartog Berkeley, Fullagar, Beach and McDonald. It was during 18 months with two additions no other. Michael was to become an Stuart Campbell, Tim Wood, Robert in the McDonald family firm, Wighton to his initial terms of reference. He His Honour was a much-respected excellent barrister. Like most of Monteith and many others, including & McDonald, Geelong, that the young was assisted by Villeneuve-Smith judicial brother to all the judiciary. us, he started in the magistrates’ the authors. He served on the Bar Beach worked as a clerk, and also and Coldrey. The Beach Inquiry held He had an open door, in the same courts and worked his way up to Council from 1972 to 1977, and from Richard Stanley QC studied in the articled clerks’ course, by no power to deal with witnesses way as had been shown to the the higher courts. 1982 to 1987. He also served on Bar Roll No 795 mail and at night. The cost of university in, for what Beach QC described younger Beach. Quick to humour, His practice was in common law, more than 20 committees over three was beyond his family’s reach. as, “contempt, insolence and sheer with a mischievous and happy smile, and industrial and commercial law, decades, including the Industrial Law ichard (Dick) Stanley signed On 2 March 1953, he was admitted rudeness.” This posed no barrier. and a seeming ease in the art of the and included various inquiries, such Practice Committee, the Board of the Bar Roll in 1966. He did to practice, and the young Beach, Beach QC was dealt a tough hand judgment, whether ex tempore or as that into the Ash Wednesday fires. Examiners and the Council of Legal not bother practising as a some three weeks later signed the Bar and through his sheer will and reserved, his Honour was a model for He later appeared for the Shire Education. solicitor as he was always destined Roll at the tender age of 22. Within determination, by the force of himself, a generation who were sufficiently of Mortlake before Sir Norman Michael is remembered fondly by Rto be an advocate. He read with Jim 15 years, Beach was in silk and in hot he produced to Sir Henry Winneke a fortunate to witness his high skill. O’Bryan and a jury, defeating the many for his exuberant generosity, Gobbo (who later served as a Justice demand. Whether as a stuff gownsman landmark report, which was delivered Barry Beach was immensely proud plaintiffs’ claim that the fire that his excellent advice to young and of the Supreme Court and, ultimately, or in silk, Beach held a remarkable under some of the most searing social of his family. He was supported in started at Ballingeich had been old alike, his humour and his Governor) and Kevin Foley was relationship with his clerk, Percy and political pressures of the time. His every way, until her last day, by his caused by sparks emitted by the unquestioned loyalty. appointed as his clerk. Dever. They argued in good spirit and family stood firmly with him in one loved and loving wife Del in the most shire’s road roller. As well as being a first-rate His forensic skills were on show he always held his ground against the of his toughest and roughest briefs. remarkable of ways. Del Beach was For two years in the early 1980s, barrister, Michael was a fine pianist; from the off. In June 1968, he force of Percy. He took six readers: He delivered his report without delay, all any barrister or judge could hope Michael appeared with Stephen he began learning the piano at the appeared at the Ballarat Magistrates’ Jeremy Darvall, his Honour Barry with trademark precision (151 pages), for in a life partner. Beach knew it. Charles and Chris Jessup in the age of five, achieved his A.Mus.A. Court for a client who had returned Dove, his Honour John Dee, David Ross containing 17 recommendations. It A photograph of her rested above BLF deregistration proceedings, when only 15, and later his L.Mus.A. a breathalyser reading of 0.110. QC, the Hon David Ashley QC and powerfully enabled the Government Beach’s right shoulder in chambers travelling around Australia to He was a rarity among barristers in Seemingly unimpressed with Dick’s George McGrath QC. to take steps which were long overdue. and was a constant reminder both to put evidence of the union’s having his own Steinway Grand in skills, the editor of the Ballarat Beach QC was perhaps the youngest Cometh the hour, cometh the man. Beach, and everyone who entered, of misbehaviour in many major his house. Courier penned the following ever common law silk and certainly The judicial career of Mr Justice her significance in his life. For him to building disputes before the judges. He was an outgoing and popular headline: “Technicality beats by age. Beach, unsurprisingly, commenced see his two sons, David and Jonathan, Michael’s considerable skills bon vivant, to whom the good things breathalyser charge”. Whether as junior or in silk, in in 1978. His Honour delivered to the our fellow members, stride as he once in industrial relations law also in life were always important. He In March 1978, I became the second demonstration of his lifelong quality, community of the Bench, the Bar, strode, then each stride again in silk extended to the challenging field was also a great family man. He and of Dick’s eight readers, occupying a he was the master of calculating the Executive, the Parliament and and then ascend to high judicial office, of discrimination and employment his wife Valmai were married for 56 small room in Owen Dixon Chambers. the percentages and risks in any society at large exactly that which were moments of inestimable and law. In the early 1990s, these skills years; they had three children and I had met Dick two years earlier when case and by his discerning mind, was promised: judicial initiative well justifiable pride and joy to him as a were recognised beyond Victoria’s five grandchildren. Michael changed I was a junior solicitor in Ballarat. He conducted all cases accordingly. His placed. Judicial power was repeatedly father and one of the great leaders in borders when he advised the the path of his niece Elizabeth by was already the counsel of choice for precise language as counsel made delivered in the economical dispatch the law of his generation. head office of a major Australian influencing her to pursue a legal plaintiff firms at the regular Supreme his submissions a model of clarity. of justice. It was rooted in an Vale Barry Beach. You gave your all, trading bank in relation to a career. And his musical skills will Court sittings in that town. His arrival His bearing when he opened the understanding of the everyday person always. difficult discrimination matter. live on for many, particularly his on circuit was akin to that of the double doors of court and entered, as well as big business and it was S J MOLONEY With Michael’s help, the matter was neighbours in Mornington who Beatles at the Southern Cross Hotel. with his perfectly straight back and delivered with a strong knowledge of settled, and the bank was able to still, in passing their house, call out The whole office was agog, especially his wig fitting squarely, left no one the various eddies in the common law, Michael Joseph Louis avoid the embarrassment of another to Valmai how much they miss his the female secretaries and lawyers. in any doubt of the command he and in any field of the law. This is the Dowling QC front-page story. playing. It is not for nothing that he This dashing, handsome, champion possessed in any court or tribunal. bailiwick of the Supreme Court Justice Michael had three readers: Alan was known on at least one country amateur footballer (he played for many Bar Roll No 707 Unsurprisingly, all the hardest and in Victoria. It was his. It produced an Stockdale, subsequently treasurer of circuit as the Joe “Fingers” Carr of the seasons for the Old Xaverians and was best briefs of the day were delivered efficiency in the work of the court at ichael Joseph Victoria; Roger Shipton, subsequently Victorian Bar. selected for the VAFA state team on to Beach QC: the collapse of the all levels, Nisi Prius or the Full Court. Louis Dowling the federal member for Higgins; and THE HON STEPHEN CHARLES AO QC three occasions) cast a swathe through Westgate, the collapse of a worker, In the Practice Court, his Honour, M was educated first Matthew Strathmore. AND THE HON MICHAEL BLACK AC QC clients and staff. And he was fearless in 86 VBN VBN 87 court—how could we ever lose a case? never worried about the edges of a Amaca, he recovered another record appeared before me. Although late eldest son, from above. Bar in 1966 and read with Abraham I was soon brought down to earth case. He didn’t panic after the cross- verdict, which again survived the Richard Junior and Dick have He was a wonderful man, a true Monester QC. when, after a hectic day in court examination of his client and he scrutiny of the Court of Appeal. somewhat different styles, I closed friend, and a remarkable colleague. Robert was appointed as a

back of the lift back instructing in a desperate trial, Dick always saw the big picture. He was The second standout case was PQ v my eyes and thought I was back We will miss him enormously, but the magistrate in 1990 and served until ordered me to accompany him on never afraid of going to verdict. He was The Australian Red Cross Society and in that small room in Owen Dixon memories will never leave us. 2008. a run around Lake Wendouree. It a formidable cross-examiner with an Ors. Dick appeared for the plaintiff, Chambers where I had learnt so THE HON JACK FORREST QC In 2000, he was appointed as a was a typical brisk July afternoon outstanding knowledge of science and who had acquired HIV as a result much 35 years earlier. VCAT member. He presided in the in Ballarat. When it started to snow medicine, which he regularly deployed of a blood transfusion. The plaintiff Dick’s capacity to maintain his Robert Langton Credit, Residential Tenancies and quite heavily, I tried to seek shelter with great effect. He was the best re- sued three extremely well-resourced good humour and kindness in the Building lists for eight years, where Bar Roll No 780 but he pushed me on, saying we still examiner I have seen. In his silk gown, defendants, whose six counsel had face of adversity was remarkable and Judicial Registrar Angela Soldani had time for a kick of the footy when he struck an imposing figure. As one agreed not to declare war on each other typified his spirit. He was lovingly obert Langton recently passed remembers him as being “always the we got back to City Oval. Dick always client remarked, “We can’t possibly and to concentrate their attack on the supported by his wife, Sue, and away at the age of 82 years. gentleman.” kept his footy boots in the back of the lose—we’ve got Darth Vadar.” plaintiff’s case. The trial went for six children, Richard, Emma and their R Robert was admitted to Vale Robert Langton. BMW—just in case he was needed. Dick also had that rare ability of months and was the longest civil jury families. And, of course, James, his practice in 1962. He came to the VBN His great friend Jack Bowen had being able to argue both sides of trial in Australian history. It was hard th them gold-plated for his 50 birthday. the case, as demonstrated by his fought, with numerous applications Ian Thompson As a mentor, Dick was appearances in the cases of Coloca to discharge the jury. Ultimately, on extraordinarily inclusive, as all and Thompson. These cases were Christmas Eve 1990, the jury returned ot many reputable legal types sleep with From there Ian became Chief Justice of Nauru his readers would attest: regular heard together. On behalf of Mr a verdict against the Alfred Hospital, pistols under their pillows, nor eat their where he met “Her Majesty”, as he would say, who lunches at Campari, running from the Coloca, Dick argued that it was with a substantial award of damages in meals with a pistol laid neatly next to visited on her yacht. From commissions in Fiji, Mercantile Rowing sheds, tennis at patent that his client was entitled to favour of Dick’s client. theN cutlery. But for Ian Thompson and his wife Mary, rewriting many of Nauru’s laws, being moot master Kooyong (he always had to win a set) claim exemplary damages against Both these cases paved the way for those were the realities of serving as a colonial at Monash Law to sitting as Chief Justice in Nauru, and compulsory kicks of the footy at the employer who had exposed many other grievously injured persons officer in Kenya during what was then called the he was certainly busy. Then followed an appointment country ovals. Being his reader, and him to asbestos. Then, immediately to settle their cases without having Mau Mau uprising. to the AAT, where in time Ian became its Victorian then, on many occasions his junior, afterwards, on behalf of James to go to court, while nevertheless Ian Thompson was born in 1927 and died on 23 deputy president. meant that I came to appreciate his Hardie, he contended that there was receiving fair and reasonable February 2020. He will be known to many After “retiring” in 1993, Ian served as a brilliance as an advocate. He has no authority whatsoever for such compensation. There are many in as a former deputy president of the visiting justice to the Fijian Court of Appeal. been described as the pre-eminent a proposition and that O’Bryan J the community who, almost certainly Commonwealth AAT. He was one of the He also served on Australian insurance jury advocate of his time. When his should strike out that part of the unknowingly, owe a real debt of finest men I have known. industry regulatory panels. record in large and ground-breaking claim. What versatility! gratitude to Richard Stanley QC. Ian obtained a First in Greats (Latin Ian was married to Mary for 63 cases is examined, such praise is Amongst his many forensic But he wasn’t perfect—there were and Ancient Greek) at Cambridge, years and was father to three daughters. patently justified—certainly on the triumphs, two stand out. The first some foibles. The major one was putting him in a rarefied group of Personally ascetic, his family remembers balance of probabilities and in my was Rabenalt v CSR and Midalco his inability to handle technology indisputably fine minds. Unlike many many generous habits: always tipping opinion beyond reasonable doubt. in May 1988—a case made famous in any shape or form. He was a of his fellow classics students, Ian did generously in poor countries, always Dick was involved in numerous by the Midnight Oil song “Blue Sky professional and unrepentant not come from a privileged background. He spending locally the money earnt in landmark cases. As a junior, he Mine”. This was the first time an Luddite. He detested mobile phones attended school at Dulwich College in London that country. formed a close bond with Jeff Sher asbestos producer had been before a and invariably got confused when and university at Trinity College, Cambridge on As his associate in 1990, I observed his careful habits: QC and appeared in many prominent jury in a claim seeking both general cross-examining based on a Google scholarships. The snobbery he endured at school arrive and depart at sensible hours, bring lunch from trials and appeals, both civil and and exemplary damages. The case search—“what in the hell is this instilled in him a deep sense of social justice. home, work hard every minute of the day. He heard a criminal. In 1983 he took silk and had everything: opposing counsel goggle thing?”—or a Facebook Brushes with death started early in Ian’s life very large number of cases, many of them involving almost immediately developed a appointed to the Supreme Court entry—“but where is the book?”. At during the World War II blitzes of London. After complex Commonwealth legislation. Ian never, ever, common law practice without peer. before the trial ended; counsel (fully a directions hearing in a large class university, Ian undertook military service in Egypt. failed to hand down his many written decisions within He regularly obtained massive robed and wigged) appearing for a action that I was managing, I had the He then joined the Colonial Office, serving in several 30 days, no matter what the work load. What a privilege jury awards of damages for badly witness ending up cross-examined temerity to suggest that we consider dangerous postings in Kenya. The pistols weren’t it was for me to observe, as he sought to find the injured plaintiffs. One record verdict by Dick, who was interested to know a more modern technology-based for killing attackers; they were for a quick suicide relevant facts and apply the law, always with a view was overtaken by another. On one why the managing director of CSR approach. Dick responded, “Your if captured by the Mau Mau. Fortunately, Ian loved to the humane, considerate application of law. He was occasion, he received a standing could not afford the plane fare to Honour, I firmly oppose this idea of to play football in local competitions. And Mary was rarely appealed, almost never successfully, but he was ovation at the Essoign—an honour Melbourne. The result was a massive an email trial.” told by a local that Ian was safe with the Mau Mau, truly indifferent to appeals. He would say, “My job is to usually reserved for the owners of a verdict of $675,000 for both general In 2013, I had the rare pleasure because he played football with them. get through the cases and deliver prompt justice. If I Melbourne Cup winning racehorse. and exemplary damages, which Dick of what I suspect is an unusual Ian studied law during his safaris as a district make a mistake it can be fixed.” Characteristic of Dick’s work as a held on appeal. The case paved the experience: to sit as judge on a trial officer in Kenya, enrolling at Lincolns Inn from It was a very different world he worked in at the barrister was his preparation and the way for fatally injured plaintiffs conducted by my mentor. Dick had afar. He became a magistrate in Nairobi, where he Colonial Office, and times have changed. But his was orderly manner in which he conducted to recover damages from asbestos lost none of his capacity to present worked until 1963. His next major posting was to Fiji, a life of humble service, which he carried out with a trial. Although he revelled in the manufacturers and producers. Dick and conduct a trial. A couple of where he became a Puisne Judge. His guests there absolute integrity. court room joust, he was never rude continued this fight for the rest of his weeks later, I had an even rarer included Lord Denning, whose reformist approach JULIAN MCMAHON AC SC to his opponent or the judge, and he career. Over 20 years later, in King v pleasure, when the son of my mentor Ian deeply admired.

88 VBN VBN 89 Boilerplate boilerplate A BIT ABOUT WORDS seems to be confined to modes of It is arguably the western world’s most famous instruction which do not rely on documents. When a documentary document. Its name has a strange history. series on TV results in the inevitable Richard and John both incurred When he had come of age, Henry book available at ABC Shops, the huge expenses in war: the Crusades III swore his allegiance to a modified book of the series is not called a and in suppressing rebellion in version of Magna Carta. That was documentary book. their French domains in Normandy on 11 February 1225. This modified In law, we have lots of and Anjou. Both leaned on their version is the version best known, documents by specialised names, nobles to support the expense. and is closer to our modern thinking including affidavit, writ, indenture John, who had managed to make about basic freedoms. and charterparty. Originally a himself deeply unpopular, met The 1215 version of Magna Carta charterparty was carta partita: a resistance. He made increasing includes many provisions which are charter which has been divided into demands for taxes of various sorts, concerned with taxes. For example: several parts. Traditionally it was including scutage—money paid to cut with an indented line, with the (2) If any earl, baron, or other person avoid military service—and he sold text written both above and below that holds lands directly of the Crown, wardships and heiresses for large the cutting line, like an indenture. for military service, shall die, and at his sums. Henry II and Richard had (Before photocopiers and email, the death his heir shall be of full age and done the same, but John’s nobles indenture was a way of each party owe a `relief’, the heir shall have his resisted. By May 1215, the barons having an unquestionable portion inheritance on payment of the ancient had occupied London and made a of the original document, so the text scale of `relief’. series of demands. was reliably that of the original. In The Articles of the Barons was (12) No `scutage’ or `aid’ may be modern times charterparty came to King John’s pragmatic response. levied in our kingdom without its refer specifically to the charter or In June 1215, the barons met general consent, unless it is for the deed between owners and merchants King John at Runnymede. The ransom of our person, to make our for the hire of a ship.) Archbishop of Canterbury, Stephen eldest son a knight, and (once) to In Latin, a charter (carta) is simply Langton, played an important role in marry our eldest daughter. For these a piece of paper; later in special mediating the dispute and eventually purposes only a reasonable `aid’ use it was a deed, then a written the Articles of the Barons were may be levied. `Aids’ from the city of document delivered by the sovereign prepared and signed. London are to be treated similarly. or legislature, of which Magna Carta Weeks later, the agreement was set is the best known example. It is (30) No sheriff, royal official, or other aside by the Pope: King John, who arguably the western world’s most person shall take horses or carts for was not a reliable person, prevailed famous document. Its name has a transport from any free man, without on Pope Innocent III to declare the strange history. his consent. Deed invalid. The Pope said it was Popular history tells us that Magna “not only shameful and base but And there were plenty of surprises, Carta was an agreement between illegal and unjust.” He declared it null including this: King John and his Barons, signed and void, and ordered King John not on the meadow at Runnymede on (10) If anyone who has borrowed a to observe it. This was in August 1215, 15 June, 1215. So, on 15 June 2015 sum of money from Jews dies before just 10 weeks after the great symbolic many people commemorated 800 the debt has been repaid, his heir shall ‘Magna Carta’ meeting at Runnymede. years since it was signed. But, the pay no interest on the debt for so long The barons were not happy. document that was sealed on 15 June as he remains under age, irrespective John died in October 1216. His JULIAN BURNSIDE 1215 was the Articles of the Barons. of whom he holds his lands. If such a son Henry was only nine years old. It did not become known as Magna debt falls into the hands of the Crown, Henry’s advisors saw that re-issuing Carta for several years. it will take nothing except the principal ocuments exist under many instruct or prove”; then “something written containing the Charter in modified form would King John was the youngest sum specified in the bond. names and in many forms. proof or other information about any subject”. help keep the young king in power. of five sons of Henry II. His oldest Most of the various words for The original pedagogical meaning of document So an amended version was issued The only part of the document brother, Richard, was King, but documents are peculiar to in 1217, under the title “Charter which is widely remembered is found is preserved in one sense of the related adjective went off to fight the Crusades, the law. of Liberties”. At the same time the in Articles 39 and 40: documentary. When documentary is used as an adjective, where he earned his nickname Our commonest word for a Charter of the Forest was issued. The it simply means of or pertaining to a document; but when “Lionheart”. John’s elder brothers (39) No free man shall be seized or Charter of Liberties was the bigger of thing with writing on it is document. It comes from the it is used elliptically as a noun “a documentary (on William, Henry and Geoffrey died imprisoned, or stripped of his rights or the two, and soon became known as Latin docere­­—teach. From the original meaning of lesson television/radio)” it generally means a broadcast with young. Richard died in 1199, and John possessions, or outlawed or exiled, or the Great Charter: Magna Carta. or proof, it came to mean “something which serves to an educational purpose. Oddly, this use of documentary became King. deprived of his standing in any other

D90 VBN VBN 91 photos courtesy of iandagnall computing / alamy stock photo stock / alamy computing of iandagnall courtesy photos boilerplate way, nor will we proceed with force When we hear about “The Bill of Rights” these returned grey-faced from what she against him, or send others to do so, days, we automatically think of the United States except by the lawful judgement of his thought was a mentoring occasion of America. It is not an accident. with a legal luminary, a person she boilerplate equals or by the law of the land. so deeply admired. I can remember monarch adopted the Petition of (40) To no one will we sell, to no one he had circumvented the common how excited she was beforehand. Right and it became the English Bill deny or delay right or justice. law by appointing commissioners Afterwards, she could barely speak, to enforce martial laws and those of Rights. By this path, Sir Edward Together, these became Article 29 of except to describe his heavy hands commissioners had been summarily Coke’s views on Magna Carta gained the 1225 version. on her shoulders. He told her how trying and executing “such soldiers or an unassailable place in the fabric of The modern importance of Magna beautiful she was, as she looked mariners or other desolate persons English law. Carta is largely due to Sir Edward out the window of his hotel room, joining with them as should commit The English Bill of Rights does, in Coke. In 1594, he became Attorney- desperately sorting out a graceful … (any) outrage or misdemeanour some ways, reflect Magna Carta. General and still held that role when escape route in her mind. whatsoever …”; We do not think about the English James VI of Scotland became James I All I’m hoping to do by sharing this, Bill of Rights much these days. When of England in 1603. he had been exempting some from the is to indicate what it feels like when we hear about “The Bill of Rights” Sir Edward Coke, as Attorney- operation of the common law. unwanted attention is received. It these days, we automatically think General, was a favourite of King may feel very exciting to the person The Petition of Right reflected Coke’s of the United States of America. It James because, on many occasions, initiating it. But that’s not the whole distilled thoughts about English is not an accident. The American he had supported King James’s view point, is it? law and politics. In his most famous colonies had been established that the King ruled above the law. In Here are couple of tips which work, the “Institutes of the Lawes by the English when they settled 1606 he was rewarded for his loyalty may assist, when in doubt. Stroking of England”, Coke elevated Magna Jamestown in 1607. By 1773, things and good service by being appointed What unwanted sexual people under the table is typically Carta to previously unrecognised were not going well. The Boston Tea Chief Justice. creepy unless you’ve (consensually) significance. He claimed of it that Party took place on 16 December On the bench, Coke’s view seems been intimate first. The line “my wife it was the source of all English law, 1773, in protest against having to attention feels like, and to have changed. This sometimes doesn’t understand me” is a really and in particular he claimed that it pay taxes to a distant government in happens to judges, to the great average cliché—it does not work. required that the King rule subject to which they had no representative. In irritation of governments. In a what we should do about it Champagne is not some kind of law, not beyond it. He said that Magna 1776 the colonists decided to sever number of cases, Coke CJ insisted seductive witch’s brew. It’s just a very Carta “is such a fellow that he will their ties with Britain and on 4 July that the King ruled subject to law. JUNIOR COUNSEL AND nice drink. To be told you’re beautiful have no sovereign.” 1776 they signed the Declaration of It is a principle we take for granted can feel fantastic, done the right way. The Petition of Right was Coke’s Independence. SENIOR COUNSEL PERSPECTIVES these days, but in the early 17th Done the wrong way, it’s objectifying. way of creating (he would have In 1789 a Constitution was century it was hotly contested. He Red Bag / Blue Bag is taking a short ‘iso’ break for this issue. In its place, The alternative is to come from a said “recognising”) the essential proposed for the newly independent rejected King James’ interference reflections from junior and senior counsel on sexual harassment, following place of being considerate and caring, features of the English Constitutional United States of America. It was a with the operation of the courts. The recent news of alleged misconduct at the highest levels of our court system. aware of boundaries and mindful framework. bold, and unprecedented, venture. King dismissed him from office in of the person you are with. Then, The Petition of Right was The idea of a federation of states with 1616. He re-entered Parliament. A junior barrister’s kiss me at the same time. you have made a wonderful start, adopted enthusiastically by the local as well as a central government In 1627 (the second year of the reign perspective He told me his wife didn’t understand potentially enriched by friendship, Parliament but Charles I would was a novelty back then. The thirteen of Charles I) the King ordered the him. I was stuck. Thankfully, some even if it does not develop as you not agree to it. Charles I, like colonies, anxious about the possible When I completed my first year of arrest of Sir Thomas Darnel and four other students came out of the pub. would wish. John centuries earlier, wanted tyranny of a Federal government, law school, I went to the pub with others, who had refused to advance a One way or the other I found myself to continue raising taxes without put forward 10 amendments to the my first-year law lecturer, his mate, compulsory “loan” to the King. They back outside in the clear night air. A senior barrister’s the inconvenience of Parliament. Constitution. Those amendments who was also a law lecturer, and a sought habeas corpus. The jailer I went straight home, feeling crap. perspective Again, the nobles were unhappy. are known, in America and across group of students. I had led a pretty answered the suit by saying the five Months later I worked up the The Civil War started in 1642. the English-speaking world, as the sheltered upbringing. I was rapt Sexual harassment as a topic is in were held “per speciale mandatum courage to tell a friend who knew Charles lost the war and, in 1649, Bill of Rights. They closely reflected to be having drinks with people I one respect similar to money—just Regis” [by special order of the King]. this person. It wasn’t a complaint lost his head. Then came Cromwell, the English Bill of Rights of 1689 looked up to. It made me feel really not the sort of thing one talks about Darnel’s case in 1627 prompted of any sort. I didn’t label what had Charles II and James II. (apart from the 1st, 5th and 8th special—a great way to finish off the in polite company. Coke to draft for Parliament the happened; it was just wrong. She James II was a Catholic and was not amendments). year. After a few drinks, I felt a hand If it is not already patently obvious, Petition of Right (1628). The Petition confronted him. He said to her, “I popular. His son-in-law, William of The notorious 2nd amendment under the table stroking my leg. It in the workplace, sexual harassment raised, with exquisite politeness, don’t know why I keep doing it.” So, Orange, was persuaded to usurp the (the right to bear arms) has a was the lecturer who was the ‘mate’. is behaviour demonstrated towards various complaints about the King’s there were other women out there? throne of England. In what became parallel in the English Bill of Rights I had barely said two words to him. our colleagues which includes: conduct, including that: I’ve walked past him over the years, of a century earlier. Clause 7 of the Creeped out, I went to a phone box sexually explicit remarks or known as the “Glorious Revolution”, feeling faintly sick. I’m sure he he had been ordering people, like Darnel, English Bill of Rights provides “That outside the pub to let my parents gestures, leering, uninvited physical on 5 November 1688, William landed doesn’t even remember who I am. to be jailed for failing to lend him money; the subjects which are Protestants know I was running late. Suddenly, contact, repeated or inappropriate at Brixham to take the throne. I have not had the ‘ice bucket-with- may have arms for their defence I felt a male body squeeze into invitations to spend time alone or he had been billeting soldiers in private But there was a catch: William champagne-in-a-hotel room’ routine. suitable to their conditions and as the phone box behind me. He said go out on dates, intrusive remarks houses throughout the country against had agreed in advance to accept the That happened to a friend of mine allowed by law”. breathy words into my neck, trying to about physical appearance, intrusive the wishes of the owners; Petition of Right. So, in 1689, the new when we were junior solicitors. She photo courtesy of bigstock 372660088 / fizkes 372660088 of bigstock courtesy photo

92 VBN VBN 93 boilerplate questions about one’s private BOOK REVIEW personal life, unwelcome requests or No more. To ignore is to condone. I shall no pressure for sex, sending indecent longer ignore. boilerplate texts and leaving sexually loaded Beyond the Equator remarks on social media. undertaken by the Law Council of fearless advocates who believe It is well understandable why many Australia has revealed that this is in justice and the rule of law and by Nicholas Hasluck AM QC victims choose not to talk about it, let what many of our sisters have had to where integrity, diligence and ability alone formally respond to instances face at some stage or another in their are the hallmarks upon which we PETER HEEREY of sexual harassment. It is distressing legal careers. Consider what discriminate amongst ourselves. It is and a cause for considerable anxiety the experience of sexual harassment about what sort of country we wish and embarrassment for those who, can do to a young female colleague, to live in. Sexual harassment has no awyers and judges Affairs and later Governor-General. extensive library and dining facilities. in the main, are women who have where it can result in those subjected place in this world of ours. can be considered a Sir Paul’s wife Alexandra, the mother Hasluck records seeing leading Tory been subjected to unwelcome to this behaviour actually abandoning We all have a choice as to whether species of the genus of Nicholas, had published biographies figure Lord Hailsham giving “the treatment of a sexual nature by the career they’ve invested so much or not we tolerate sexual harassment. writer. Some have and a history of the convict system in most astonishing feat of oratory their predominantly male and in in and leaving our profession. We can ignore it, or we can support ventured beyond their Western Australia. I have ever witnessed.” many instances, senior colleagues. Imagine for a moment if what those subjected to it and call it out professional word A very useful skill, or discipline, At the beginning of his speech the It can also be risky in terms of one’s happened to our junior barrister who when we see it. output into the worlds of fiction, was Hasluck’s ability to keep detailed audience was totally against him career to formally complain about has courageously shared her sexual I deeply regret ignoring an episode poetry and essays or even, in the diaries and correspondence. An L and, with catcalls and interjections, an instance of sexual harassment. harassment story above, actually of sexual harassment many years case of a former High Court judge, example is a vivid description of a constantly abusive. But he won them For the rest of us, its occurrence happened to your spouse, sister, ago when I was a baby barrister. playwriting. visit to Berlin. After crossing through over. He had presence. He had wit. and recurrence presents an daughter, niece or good female friend. I still remember it clearly. It was But in Australia none could rival East Germany, the diary records the He was cogent. Above all, he was uncomfortable truth about our Yes, you wouldn’t tolerate it either. at a Christmas party in chambers. Nicholas Hasluck the retired Western searches of cars with “their back passionate. ‘Freedom can only be won workplaces that many, particularly Thankfully, nowadays, the large There was a queue at the loo, so I Australia Supreme Court Judge who seats taken out and their roof racks of at the expense of tyranny,’ he declared, men, feel awkward in acknowledging, majority of men at the Bar do not beat a path via the fire escape to has published no fewer than 13 novels, luggage tested by stern sentries with ‘by concern for the common good.’ At let alone addressing this behaviour— sexually harass women and are the bathroom on the floor below. 10 volumes of essays and memoirs, a wooden swagger sticks.” the end of it all the students rose to many simply adopt the attitude, equally appalled as women are, While descending the fire escape couple of collections of short stories, Real time extracts from diaries and their feet in a standing ovation, and “nothing to do with me, not my when it occurs. I have been fortunate I stumbled across a well-known and four volumes of poetry. He has correspondence give an immediacy when the vote was taken his team problem”. to have been mentored by some senior male barrister (who has long won the Age Book of the Year prize and intriguing detail to the narrative. had won. It is the only time in my life However, as is the case with many marvellous male role models—true since retired from practice) who had for his novel The Bellarmine Jug and In his time at Wadham, Hasluck that I have seen an entire audience taboos, all it takes is one card too gentlemen and scholars in every cornered and was slobbering over been twice short-listed for the Miles had as a tutor one Peter Carter, persuaded from one point of view to many for the house of cards to fall, sense of the expression. There a younger female barrister (whom I Franklin Prize. The rather hackneyed “a master in the use of fear as an another on a political subject in the which is what has happened to our are plenty of good guys out there. did not really know), who had had too adjective ‘award-winning’ certainly academic weapon.” A fellow Western space of twenty minutes or so. profession in recent weeks. However, there is still a minority of much to drink and was not really in a applies to him. Australian, David Malcolm (later to It is now regrettably crystal clear men in our profession who just do position to resist the male’s advances. Beyond the Equator recounts a become Chief Justice of that state), As one who has achieved a that no workplace, including the not get it. Perhaps now, in light of I subsequently learned that the male formative period of his life. In 1964, also suffered under the Carter rare degree of eminence in both upper echelons of our profession, is recent events and the conversation had ‘form’. Reflecting on the episode like many of his generation, after regime. In his final winter vacation law and literature, Hasluck has immune from the incidence of sexual about sexual harassment in the legal now, I am sure the approach was not completing his university degree Malcolm had planned to join a rugby some thoughtful comment on the harassment. profession which is now happening invited at the time. I should have he headed off to the Northern tour to Belgium and France, followed relationship between the two fields. Consistent with the legal and like it has never happened before, the stopped and asked if my sister was Hemisphere. The saga includes by a visit to Berlin and Christmas Law he sees as “not a matter of moral authority which accompanies penny will finally drop amongst those OK and supported her. I didn’t. shipboard life on the way to England, with friends in Norway. solving puzzles or saluting abstract our roles as barristers and judges, remaining few. I quickly shuffled past the scene and parties with fellow expats in Carter got wind of this, summoned rights but of getting to grips with we have a social responsibility as a The issue here is not so much avoided the fire escape thereafter. “Kangaroo Valley” (Earl’s Court) and Malcolm to his presence, and told him individual stories.” Literature is “a profession to live by those standards about gender. It is about respect. Turns out the female barrister didn’t touring in mainland Europe. that, if he were to have any chance way of understanding viewpoints we require others in the community It is about us all treating each other stay at the Bar for very long. In Hasluck’s case there were of getting a first in the BCL, the other than one’s own.” to follow. equally as peers, irrespective of No more. To ignore is to condone. the special features of studying Christmas vacation would have to be The book is a fine read. It takes This requires us as individuals gender, sexual orientation, religion, I shall no longer ignore. (successfully) for a BCL at Wadham devoted to work. Malcolm protested, us not only beyond the equator, but and as a college to commit to zero- political views or where we went to To all of my colleagues, now is College, Oxford and, most importantly but to no avail. In desperation he said back again. tolerance of sexual harassment and school. It is about us all supporting the time to join with me in not just of all, meeting a delightful lass from he had to have at least a short break nothing less. each other, looking out for each other saying ‘no more’, but also committing the Cotswolds who became a partner at Christmas. Whereupon Carter Beyond the Equator I say this to my brothers at the Bar, and not taking advantage of each to ‘no more’. Actions speak louder in a long and very happy marriage. replied, “What were you thinking of— by Nicholas Hasluck our sisters have had a gutful of this other, in what is a challenging and than words. Downloading, reading Hasluck commenced with some the morning or the afternoon?” AM QC sort of behaviour and quite rightly so. yet rewarding way to earn a living. and observing the Victorian Bar’s distinctive genetic advantages for a In Hasluck’s experience, a central Australian Scholarly It is toxic. Especially when it is senior It is about us being proud of our Bar Policy Against Sexual Harassment, writer. His father, Sir Paul Hasluck, element of Oxford life was the Oxford Publishing Pty Ltd men in our profession who prey upon and deciding what sort of college we (available on the Bar website at had been a journalist, theatre critic Union. A forum for discussion with PB 282 pp our younger and more professionally wish to be—an inclusive organisation vicbar.com.au/file/5502) is a good and war historian. He entered politics a debating chamber laid out like the RRP $34.95 vulnerable siblings. Recent research of like-minded independent and first step. and became Minister for External House of Commons, it also had an

94 VBN VBN 95 Interpreting Executive Power by Janina Boughey and Lisa Burton Crawford (2020/272pp) RRP $160.00 boilerplate Authority to Decide—The Law of and tests the law’s capacity in setting Investigating Investigating Corruption and Jurisdiction in Australia boundaries by which such conduct may Corruption and by Mark Leeming (2020/368pp) be evaluated… Misconduct in boilerplate Three valuable volumes Misconduct in Public Office RRP $175.00 Public Office That is clearly so and, for reasons Justice in Tribunals by Peter M Hall by Peter M Hall which are obscure, the standards from Federation Press by J.R.S. Forbes (2019/464pp) appear to be slipping. While misconduct Australian Scholarly RRP $150.00 JULIAN BURNSIDE in public office is a common law offence Publishing Pty Ltd Federation Press Publishing Pty Ltd JUSTIN WHEELAHAN in NSW and Victoria, with statutory 282 pp RRP $242.00 eter M Hall QC is a former judge of the equivalents in the Commonwealth, the Supreme Court of NSW. He was appointed Chief ACT and South Australia, prosecutions he administrative law Bar don’t cite clearly explaining these concepts by the editors, John Commissioner of ICAC (NSW) by Premier Gladys for misconduct in public office seem to be much less Homer J Simpson much. Perhaps McMillan, John Basten, Brendan Lim, Bruce Chen, Anna Berejiklian in August 2017. The first edition of the book was common than the conduct they are aimed at. that will change with the publication Huggins, Sangeetha Pillai, Shreeya Smith, Nick Seddon, Ppublished in 2004; the second edition was published in 2019. This is a book which explores its subject in of Janina Boughey and Lisa Burton Dominique Dalla-Pozza, Greg Weeks, Peta Stephenson, In the preface Hall writes: extraordinary detail. So, for example, chapter 5, which Crawford’s Interpreting Executive Power, and Amanda Sapienza. discusses electronic surveillance and telecommunications a new collection of essays published Federation Press has also published a second edition …the Public trust concept is foundational to integrity in interception is divided into 14 different sections. Self- by Federation Press. Matthew Groves has contributed an of Mark Leeming’s Authority to Decide—The Law of government and public administration… evidently, we live in an age when electronic surveillance essay “The Return of the (Almost) Absolute Discretion”. Jurisdiction in Australia. Some text books, like Gurry’s The book is very big, even as law-books go. It runs to has vastly more significance than ever before, and the “I am no fan of legal or other philosophy”, writes Groves, Breach of Confidence, get cited so much they become the more than 1200 pages, and contains chapters on: techniques are developing at a remarkable rate, but the “but even I cannot ignore the greatest American thinker l a w. Authority to Decide is another case in point: many of 1. Integrity and corruption in public office treatment of the subject in Hall’s book is exemplary. Tof our time, Homer J Simpson. Among his many piercing the points in the first edition have now received judicial 2. Corruption investigations—evidential matters Since the first edition, there have been royal commissions thoughts on life was the rhetorical question ‘donuts. support from the High Court, such as avoidance of the 3. Bribery and corruption offences concerning corruption in public matters. So the second Is there anything they can’t do?’” term “accrued jurisdiction”, and cautioning against the 4. Search and seizure under statutory warrant edition discusses the functions, powers and procedures of Groves cites the Marge vs the Monorail, episode 12 from wide use of the term “inherent jurisdiction”. 5. Electronic surveillance and telecommunications royal commissions and anti-corruption commissions. season 4 of the Simpsons, as authority for this proposition. This second edition contains a section on the New interception. On one view, such a large book may deserve a much This segues into a discussion of the analogy Ronald South Wales Court of Appeal and Criminal Court 6. Controlled operations and entrapment longer review than this. But anyone who is interested in Dworkin made between discretion and the hole in the of Appeal, a new account of the role played by the 7. Privilege and public interest immunity the subject of public corruption will, almost certainly, want doughnut in Taking Rights Seriously. “Discretion, like the cross-vesting legislation in requiring some appeals from 8. Commission of inquiry principles to explore this book. It is the sort of book which may only hole in the doughnut,” wrote Dworkin, “does not exist except state and territory courts to be brought to federal courts, 9. Judicial review of commissions of inquiry need to be examined with specific questions in mind. But as an area left open by a surrounding belt of restriction. It and references to some 240 decisions made since the 10. Investigative commissions, the principle of legality it is hard to think of any questions it would not answer. If is therefore a relative concept.” Groves then examines how first edition was published in 2012, lucidly explaining and the right to a fair trial. I needed to express any criticisms of the book at all, there courts have eroded the scope of broad discretionary powers, significant developments in the field. As the author’s would be two only: the index is very brief, just 35 pages for while at the same time the breadth of the national interest preface explains, the book is written for the working Chapters 11-16 deal with ICACs (by whatever name) ‘ a book of over 1200 pages. And it gives little or no attention discretion has become largely beyond the interpretative lawyer, and is “intended to be useful to a practitioner in in NSW (ICAC: Independent Commission Against ’ to the glaring shortfall in Australia’s anti-corruption system: control of the courts. It is great to see one of the three co- answering a particular problem, as well as permitting Corruption), Victoria (IBAC: Independent Broad-based the Commonwealth government seems to be a hotbed of authors of Aronson’s Judicial Review of Administrative Action deeper reflection on issues of principle.” Anti-corruption Commission), Queensland (CCC: Crime corruption and misconduct and yet, we do not have a federal taking Homer J Simpson seriously. J.R.S. Forbes’ Justice in Tribunals is now into its fifth and Corruption Commission), Western Australia (CCC: ICAC. If the Murray-Darling fiasco was not enough, the Groves’ essay is one of the many gems you will find in Federation Press edition. As the preface notes, since its Crime and Corruption Commission), South Australia sports rorts scandal which emerged after the 2019 federal this excellent collection of essays for any barrister who first publication in 1990, the text has been noted with (ICAC: Independent Commission Against Corruption) election added weight to the need for properly resourced has to ponder the depth and breadth of executive power. approval by the Supreme Court of New Zealand, and and Tasmania (IC: Integrity Commission). Sadly, it does corruption fighting at the federal level. The editors explain in the first chapter, “Executive Power Australian federal, state, and territory courts—most not contain a chapter on a Commonwealth ICAC, because The timing of the second edition could hardly be better. in an Age of Statutes”, that the focus of the book is on how recently in the decision of Justice Riordan in Setka v we don’t have a Commonwealth ICAC. Recent and earlier We live in a society in which public corruption seems courts do interpret executive power and should interpret Carol about whether the rules of a voluntary organisation events make it obvious that we need one. to be thriving. But the absence of a properly resourced power. As Justice Edelman notes in the preface: become justiciable when a voluntary association attains Hall knows his subject extremely well. Apart from his federal ICAC is the shadow cast by this book. significance in public affairs. time as a legal practitioner, and as a Judge of the NSW The title to this book reveals the highly ambitious project The essential point of Hall’s second edition is As the author states in the preface, “This book deals Supreme Court, he is Chief Commissioner of ICAC in the of its authors and editors to explain the scope of executive powerfully made (coincidentally, and unintentionally) with the court’s application of jurisdictional limits and State that spawned the Rum Corps: a phenomenon which, power. To do so requires an explanation of executive power, by Donald Trump, whose conduct shows just how much procedural fairness to other bodies—public and private— on one view, has never disappeared. its operation, and the manner in which courts constrain that we depend on honest, competent behaviour by our that decide the rights of individuals.” This new edition In the chapter on integrity and corruption in Public Office, power. The very starting point illustrates the minefield of officials. Consider, for example, Trump’s response to the has useful chapters updating the 2014 fourth edition on he notes that: theory that the authors encounter. coronavirus pandemic and the killing of George Floyd by jurisdiction, judicial control of domestic tribunals, private While codes of conduct and statutory regulation have Minnesota police, coupled with his successful stacking of The minefield of theory surrounding executive tribunals, legal error, the right to be heard, tribunal increasingly been employed to establish standards, the federal judiciary. Right now, various forces are driving power, deference to the administrative state, statutory procedure, bias, reasons, and judicial control of royal constraints and imitations, the important task of ensuring society to the edge of revolution or collapse. In these displacement of the prerogative, and the values that commissions. Justice in Tribunals is an indispensable tool compliance, and of determining what constitutes proper or circumstances honesty, competence and public trust in underpin the application of the principle of legality can for any barrister venturing into a disciplinary or civil improper conduct in particular circumstances, is less certain our officials matter more now than ever before. be navigated a little more easily after reading chapters administrative appeals tribunal.

96 VBN VBN 97 boilerplate Grammar pedant THEN AND NOW boilerplate Barbara Cotterell and Sarah Fisken ANNETTE CHARAK Campbell Thomson he swift implementation of arbara Cotterell signed the Bar you don’t mind if I fucking swear”. social distancing Roll in 1973. Sarah Fisken was in We are sitting at the window table nearest the Bar measures is no the first intake of barristers who in the Essoign and passers by come over to chat. Judge reason to drop sat an entrance exam to do the Lacava discusses the funeral arrangements for Peter spelling standards. readers’ course in 2011. Bar News O’Callaghan with Barbara. David Brustman and Mark Or so one attentive individual seems interviewed them over lunch in the Rochford also stop to pass the time of day. Everyone to have thought in correcting a notice Essoign Club on 12 March 2020 to compare and contrast knows Barbara. in the lifts of Owen Dixon West (see their experiences. When she returned to the Bar after some years in image, right). But was the original use Barbara read with George Hampel when the first floor Italy, Jelena Popovic asked if Barbara would like to be Tof “practice” wrong? The answer is of Owen Dixon East still housed chambers. Merkel, Jolson a magistrate. Chief Magistrate Darcy Duigan phoned not the easy “yes” or “no” one might Band Goldberg were on the same floor. Barbara was the to confirm her interest and then Attorney-General Jim first think. 19th woman at our Bar and shared a desk with Kennan invited her to Spring Street The starting point is simple: verbs Michael Rozenes. At the time there were no for a chat. are spelt with “s” and nouns with female magistrates or judges. Half Sarah’s Years later in 2008, another attorney rang “c”—think advise and advice. This intake were women. She read with Joanne to ask if she was interested in taking a distinction holds true for other pairs Stewart, who now sits on the Federal five-year contract as a County Court judge. like license and licence, and practise Circuit Court. Sarah grew up on a farm near Barbara jumped at it. It was a controversial and practice, despite no difference in Ballarat and first worked in family law at appointment as the Bar maintained that pronunciation. (Curiously, it is also Kennedy Partners. temporary appointments undermined judicial true for prophesy and prophecy.) This Early on, Barbara was junior to Bob Vernon in independence. distinction between “s” for the verb a trial when the Bar was still an Old Boys Club. Other women had already marked the path to the and “c” for the noun is consistent in He told her “Pull your skirt above your knees, County Court. Lynette Schiftan, the first appointed standard UK English. all the jury want to see are your legs…” in 1985, is on the record for having had an However, in standard US English, Within three months she was in a robbery unhappy time. There wasn’t a female toilet on practice—with a “c”—has been trial with Phil Cummins for the co-accused. her floor. She never had permanent chambers of adopted for both the verb and the Barbara’s client, Josie, was alleged to have her own but was shifted into the rooms of judges noun (and “license”—with an “s”— lured a man into the Carlton Garden toilets on leave. for both the verb and the noun). for her mate to rob. Josie was acquitted, When the government changed, Barbara’s Therefore any use of “practise” would Phil’s client was not. appointment was made permanent. She loved the be wrong in US spelling. In Australia, Sarah’s first trial was before Judge Maguire in the job and has only just retired from the reserve bench. both US and UK customary usage are Federal Circuit Court for a mother seeking custody of her When asked how her experience compares with generally acceptable, meaning the child, opposed to John Williams. Williams cross-examined Barbara’s, Sarah says that, in her view, the sexism is more original notice was arguably correct. Sarah’s client about her drinking. Sarah sought to clarify subtle these days. No one raises an eyebrow when a male However, spelling conventions are in re-examination how much a night she drank. “Only barrister dresses flamboyantly but if a woman dresses a question of style, often governed by Beyond this lift notice, a question Beyond this lift notice, about a bottle of saki.” Sarah thought she was bound fashionably she is accused of using her sex appeal. a style guide. Like all style guides, the sometimes arises in the context of a question sometimes to lose so when the judge said “the child lives with the No journalist ever started a story with the cut of Tony VBN style guide is intended—in the lawyers’ admission to practise. Or mother”, she did a double fist pump at the Bar table. Abbott’s suit but every first paragraph of a piece on Julie interests of consistency—to resolve practice? The “practise v practice” arises in the context of When George Hampel was busy in a long trial he tossed Bishop was about the designer of her dress. questions that are neither right nor entry in our style guide reflects a lawyers’ admission to a brief on Barbara’s desk. She recalls he was pessimistic Sarah says that there are now more women wrong, but just a matter of style. common—if not universal—practice practise. Or practice? about its chances. The client was said to have carried out than men in family law so she thinks sexism is rare. UK spelling is more prevalent in in Australia and the UK: to refer to an illegal abortion. All parties were from different parts But she believes that in the commercial sphere male Australia and is therefore adopted for “admission to [legal] practice”; hence of the former Yugoslavia. Robert Redlich prosecuted. silks still think blokes will be more prepared to put up this publication. That means using the noun. In some contexts, one does Barbara was able to demonstrate that it was a false with their tantrums and work through the night. She “practise” for the verb and “practice” see the minority “admitted to practise complaint motivated by ethnic hatred. Her client walked. says that the stellar performance of Rowena Orr in for the noun. This editor therefore [law]”, referring to the action of Sarah has chambers on the third floor of East with a the Financial Services Royal Commission shows skill commends the correction, despite practising law. And only a pedant—or happy gang of family barristers, mostly women. When and preparation, not gender, are what count. She looks recognising that the original author an American—would take issue with she first met her next door neighbour, Trevor Monti, they forward to the day when there is no need for equitable was not wrong. that use of “practise”. went out for a smoke. He said “We’ll get along as long as briefing policies.

98 VBN VBN 99 Inset Top: Barbara Cotterll Inset Bottom: Sarah Fisken boilerplate Equestrian Statue of Godfrey Charles Morgan, History and 1st Viscount Tredgar in Gorsedd Gardens who took part in the Charge of boilerplate the Light Brigade, Cardiff, storytelling Wales, UK

PETER HEEREY

arbara Tuchman (1912–1989) was a leading American historian. She won the Pulitzer Prize twice: for The Guns of August, a history of the beginning of World War I, and for a biography the stories of history. Her of General Joseph Stilwell, a United example is Pearl Harbour. States Army general who served in World War II, the The US authorities Korean War and the Vietnam War. should have learned from One of Tuchman’s works is A Distant Mirror: The history that a surprise attack by Calamitous 14th Century. Published in 1978, the reflection Japan in the midst of negotiations, Bsuggested by the title is that of the 20th century. Along with while dishonourable, was not the Hundred Years’ War, anti-Semitism and popular revolts, unthinkable—exactly the same there was the Black Plague—the latter having so much procedure had been adopted in resonance now. The pandemic has for the moment rather 1904 when Japan opened the Russo- upstaged climate change. But Tuchman’s account of the 14th Japanese War by a surprise attack on century again bears comparison. There was the “Little Ice the Russian fleet at Port Arthur. Age”, which reduced the average temperature of Europe Moreover, the Americans had until the 18th century. Tuchman found the broken the Japanese code, and had Practising History (1981) is a collection of Tuchman’s research ‘endlessly warnings on radar and a constant articles and addresses on the art and craft of the flow of accurate intelligence. But as historian—wonderfully readable and persuasive. As one seductive’, but the Tuchman observes, “Men will not reviewer opined, Tuchman “writes with lucidity and grace writing ‘hard work’ believe what does not fit in with their and a most elegant economy”. plans or suit their prearrangements.” Tuchman’s book has provoked some thoughts about Judgement is “the product of history, storytelling, and how they work. a mass of individual, social, and the heresy of preferring facts which suit the system first”. glorious and the ridiculous which was divided France along political, Research is the starting point for the historian, and political biases, prejudgements, Nevertheless, Tuchman regards emotion as “an essential a nineteenth century cavalry charge religious and social lines for in particular research into primary sources. Tuchman and wishful thinkings; in short it element of history”. History is “emotion plus action against cannon. many years. found the research “endlessly seductive”, but the writing is human and therefore fallible.” recollected … after a close and honest examination of the General Mercier, Minister of “hard work”: Indeed there may be room for just (Another example is Stalin’s refusal records”. Yet poets, limited by no such rule, have often done War, was responsible for the entertainment. As George Wilson, to heed clear warnings of Hitler’s One has to sit down on that chair and think and transform very well with history. original condemnation of Dreyfus my history lecturer and rugby coach attack in June 1941.) thought into readable, conservative, interesting sentences Tuchman’s example is Tennyson’s Charge of the Light and became the hero of the Right. at the University of Tasmania, would While on Pearl Harbour, one that both make sense and make the reader turn the page. Brigade, written within three months of the Crimean Tuchman discovered that, at parties mark on essays, “factually correct, but historical fact that does not get much War battle. of the haut monde, ladies rose to their Communication is what language was invented for. A lacks colour and amusing anecdotes”. attention is that four days after the feet when General Mercier entered collaboration between author and reader. Tuchman quotes “Forward, the Light Brigade!” In an article entitled “History by Japanese attack, Hitler declared war the room. Tuchman comments: Theodore Roosevelt: “Writings are useless unless they are Was there a man dismayed? the Ounce”, Tuchman refers to Pooh- on the US. But Germany’s treaty read, and they cannot be read unless they are readable.” Not though the soldier knew Bah’s explanation in The Mikado That is the kind of detail which to me is obligation only arose if it was Japan Especially for the historian, there is a need to sustain Someone had blundered. that he had added “corroborative worth a week of research. It illustrates who was attacked. As a counter- interest in a narrative of which the outcome is known. Theirs not to make reply, detail intended to give artistic the society, the people, the state of factual, a what-if, imagine the A historian is a storyteller, a narrator who deals in true Theirs not to reason why, verisimilitude to an otherwise bald feeling at the time more vividly than consequences of no such declaration. stories, not fiction. The least the storyteller can do is Theirs but to do and die. and unconvincing narrative”. anything I could write. … It epitomizes, Isolationist feeling was strong in to stay within the evidence. Tuchman is critical of the Into the valley of Death But Tuchman points out that it crystallizes, it visualizes. The reader the US. While there was obviously “systematizers”, who arrange systems and cycles into Rode the six hundred. corroborative detail will often reveal can see it; moreover it sticks in his going to be war with Japan, all the which history must be squeezed so it will come out evenly a historical truth besides keeping mind; it is memorable. more reason for the US not to get In Tuchman’s view, the poem: and have a pattern and a meaning. But history, “wickedly one grounded in historical reality. entangled in European wars. In Practising History, Tuchman disobliging”, can pop up in the wrong place. The human as poetry may lack the modern virtue of incomprehensibility, She cites an example in her writing So to adapt Toynbee, history is just discusses whether we learn from record is illogical. Putting the system first “cannot escape [I like that!] but as history captures that combination of the on the Dreyfus Affair, which bitterly one damn story after another.

photo courtesy of tony baggett, bigstock baggett, of tony courtesy photo 100 VBN VBN 101 You have been selected to work as an CPD IN SESSION official at Australian Open 2020!” In mid-January, I went to Melbourne boilerplate Park to pick up my accreditation badge and my uniforms. I was given a tour of the venue, including the officials’ break room (where we rest between rotations), the employee dining areas, as well as the private tunnels under the arenas that we and the players use Continuing professional to get to our assigned courts. Being a line umpire It was at this point that I really started to appreciate the magnitude development by the Bar for Tennis Australia of the tournament that I was about to be involved in. The venue was for the profession KAREN MAK teeming with activity, a rush of last- minute construction projects being The next time you watch the Australian Open, look carefully—when she is not completed, kiosks being assembled, in a court of law, Karen Mak may be found on a tennis court, working as a line television crews feverishly setting up umpire at the Australian Open. Each January, the world’s best tennis players for the big event, now just days away. compete in front of more than 800,000 fans at the first Grand Slam of the My first day working the Australian season—the Australian Open. But the players aren’t the only ones feeling the Open finally arrived. At 8:15am, I pressure. Line umpires, tasked with accurately making split-second decisions scanned my badge at the entrance on whether the ball is in or out, also feel the heat. The ball can land within of Melbourne Park and walked millimetres of the line and if you get it wrong, you risk being overruled by across the nearly empty venue to the dreaded Hawkeye on live TV. Feedback to line umpires on a close call our designated meeting area. On the is immediate, whether it be a McEnroe-esque player reacting, crowd booing, way, I walked past Stan Wawrinka, a or chair umpire overruling. former AO champion, giving a press ’ve long played performance on a scale of 1 interview and later Naomi Osaka, Specialist legal education from the Victorian Bar’s acclaimed CPD competitive tennis and (unacceptable) to 7 (outstanding) on last year’s AO champion warming up CPDprogram is IN now SESSIONavailable for purchase by external subscribers on-line. have attended countless factors such as accuracy, movement, before an exhibition match. I put my professional matches. voice, and signalling. An average items in my locker and checked the But several years ago I score of at least 4.25 is required to be roster to see which squad I had been decided to try something eligible for selection to work at the assigned to for the day. I grabbed my CPDWhat IN is SESSION CPD in session? CPDsubjeCt IN SESSION matter exPerts new; I applied for a line umpire Australian Open. hat and sunglasses and went to my CPD in SESSiOn provides online legal education by Sessions presented by eminent panellists, skilled advisors position with Tennis Australia. One key to success is to be confident squad meeting. I was anxious, but the Victorian Bar for solicitors, in-house and government and speakers from across the legal profession. CPD in Months later, I attended tryouts. The in my ability and rely on my initial nevertheless excited to begin. The lawyers offering a range of expert seminars and Q&A SESSiOn provides high quality continuing professional tryouts consisted of a combination of impression. I have seen reality of walking onto the court and sessions with expert presenters from the judiciary, the development from subject matter experts that is relevant, quizzes,I instruction on technique and too many line umpires assuming my position behind Bar and more. accessible, valuable and responsive to changes occurring performance assessments umpiring lose their confidence. the baseline was intimidating. within the legal profession. actual matches. After advancing An umpire with self- However, not long after the play through several rounds of tryouts doubt on the court is began, I quickly settled in and Fully resPonsive CPDCategories IN SESSION and passing an eye exam, I was soon pretty transparent, concentrated. Our first one-hour officiating my first match as a line for example, in a shift quickly came to an end. View or listen on your PC, tablet or mobile device, on- Earn your CPD points across all CPD categories - umpire. I was so nervous, standing weak or slightly delayed Our squad performed well; no demand anywhere, anytime Substantive law, Professional skills, Practice management there waiting to deliver my first ‘out’ “out” call. Like making an overrules or Hawkeye challenges and business skills and Ethics & professional responsibility. call, hoping I would get it right. objection during a trial, there is no (at least this time). The job of an umpire doesn’t just time to contemplate or intellectualize. Karen is a member of the Royal take place during the Australian You have to make a decision and act South Yarra Tennis Club and also Open. Throughout the year, local line quickly, or the opportunity is gone. plays at Fawkner Park tennis centre. umpires hone their skills working In mid-2019, after several years She welcomes opportunities to play in tournaments in and around as a line umpire, I submitted an tennis with other members of the Victoria, from junior tournaments to application to work my first Australian Bar. Karen accepts commercial and AMT and professional tournaments. Open. In early October I received the criminal briefs. Her mentor is Susan During each match, the chair email I had been hoping for. In bold Gatford and her senior mentor is Colin www.cpdinsession.com.au umpires evaluate each line umpire’s letters it read: “CONGRATULATIONS! Golvan AM QC. T 9225 7111 F 03 9225 6068 E [email protected]

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