| Contents | 2 Editor’s note 4 President’s column 6 Letters to the editor 8 Bar Practice Course 01/10 9 Opinion A review of the Senior Counsel Protocol Ego and ethics Increase the retirement age for federal judges 102 Addresses 132 Obituaries 22 Recent developments The 2010 Sir Maurice Byers Address Glenn Whitehead 42 Features Internationalisation of domestic law Bernard Sharpe Judicial biography: one plant but Frank McAlary QC several varieties 115 Muse The Hon Jeff Shaw QC Rake Sir George Rich Stephen Stewart Chris Egan A really rotten judge: Justice James 117 Personalia Clark McReynolds Roger Quinn Chief Justice Patrick Keane The Hon Bill Fisher AO QC 74 Legal history Commodore Slattery 147 Bullfry A creature of momentary panic 120 Bench & Bar Dinner 2010 150 Book reviews 85 Practice 122 Appointments Preparing and arguing an appeal The Hon Justice Pembroke 158 Crossword by Rapunzel The Hon Justice Ball The Federal Magistrates Court 159 Bar sports turns 10 The Hon Justice Nicholas The Lady Bradman Cup The Hon Justice Yates Life on the bench in Papua New The Great Bar Boat Race Guinea The Hon Justice Katzmann The Hon Justice Craig barTHE JOURNAL OF THE NSWnews BAR ASSOCIATION | WINTER 2010 Bar News Editorial Committee ISSN 0817-0002 Andrew Bell SC (editor) Views expressed by contributors to (c) 2010 New South Wales Bar Association Keith Chapple SC This work is copyright. Apart from any use as permitted Bar News are not necessarily those of under the Copyright Act 1968, and subsequent Mark Speakman SC the New South Wales Bar Association. amendments, no part may be reproduced, stored Arthur Moses SC in a retrieval system or transmitted by any means or Contributions are welcome and Jeremy Stoljar SC process without specific written permission from the should be addressed to the editor, copyright owner. Requests and inquiries concerning Chris O’Donnell reproduction and rights should be addressed to Duncan Graham Andrew Bell SC the editor, Bar News, c/- The New South Wales Bar Carol Webster Eleventh Floor Association, Basement, Selborne Chambers, 174 Phillip Street Sydney, NSW 2000. Ingmar Taylor Wentworth Selborne Chambers Richard Beasley 180 Phillip Street, David Ash Sydney 2000. Kate Williams DX 377 Sydney Kylie Day Jenny Chambers Cover: A tribal mask from Papua New Catherine Gleeson Guinea. Photo: iStockphoto Bar News | Winter 2010 | 1 Chris Winslow (Bar Association) | Editor’S note | good in his public career. likely answer is that it will depend upon the individual but there would seem to In the period since the last edition, be a powerful case for an increase in there has been a spate of judicial federal retirement age. Tony Cuneen’s appointments, including three to the piece on the Judges Retirement Act Sydney Registry of the Federal Court 1917 provides an interesting historical and two to the Supreme Court. More counterpoint. are expected. The Federal Court also has a new chief justice in Patrick Keane This is by far the longest edition of who has a national reputation as an Bar News ever published. One of the outstanding jurist. Chief Justice Keane reasons for its length is the fact that an has agreed to be interviewed in the next increasing number of members have issue of Bar News. One topic on which taken the time to contribute articles, his views will be sought concerns the notes and opinion pieces of high quality continuing desirability of the Federal on varied subject matters. These Court having no permanent full court. contributions are much appreciated, I really do think that members of the Bar can make a contribution to public There is a perception by many that the as is the work of the Bar Association’s life; they understand that in the court has become so large that not to publications manager, Chris Winslow, debates that occur in the political have such an appellate court has the who has principal responsibility for process, facts are important, principles potential to lead to a certain unevenness the physical production of Bar News are important; that there needs to be in judicial pronouncements. On the which is done to a standard to rival any focus on what is relevant rather than other hand, to sit both on appeal and at professional journal any where in the what is extraneous or misleading. The first instance, no doubt delivers a variety world. virtues of disinterested debate and of challenges and experience that is objective consideration of the issues I Bar News, as a publication, not only attractive to current judges. think flow from an experience of reflects the intellectual energy and practising law, and can contribute to The corollary of the recent spate curiosity of the bar in respect of topics the level of our political discourse in of appointments is the creation of of current and historical interest, but Australia. an expanded pool of retired senior also serves as an important journal of The late Hon Jeff Shaw QC judges who are available to, and record. The extended noting of superior increasingly engaged in, local and court appointments operates both as This distillation of the potential for international commercial arbitrations. a matter of historical record and is also members of the bar to contribute to There can be no mistaking the ever- designed to ‘introduce’ new judges public life was typical of the elegant increasing significance of this shift to those members of the profession mind of the late attorney general, and towards ‘privatised’ commercial who may not have encountered the deserves to be recorded as a mark dispute resolution by highly skilled recently appointed judex in practice. of respect to someone who made a and enormously experienced former The publication of obituaries (of which significant contribution to state politics commercial and appellate judges. In there is a depressingly large number that won respect from both sides of this context, the Recent Developments in this issue) pays respect to much parliament, and the community more section of this issue contains a number missed colleagues and also records the generally. He was also a fine barrister of important notes in relation to many and varied life experiences and and one of the leading industrial commercial arbitration. personalities of our profession. advocates of his generation. Jeff Shaw’s life and contribution to the community The topic of judicial retirement more In recent issues, there has been a heavy is recorded in this issue of Bar News. He generally is addressed by Arthur Moses focus on matters of legal history and, in was honoured with a state funeral at the SC in an Opinion piece in which he particular, the history of the profession Sydney Town Hall, as well as a minute’s advocates an increase in the age for the and of some of its notable members. silence at the annual Bench and Bar retirement of federal judges. A related Such articles, many penned by the Dinner. A number of his legislative question which arises is the extent assiduous David Ash of Frederick Jordan initiatives bear testament to the tangible to which federal judges would take Chambers, are not only of intrinsic difference he was able to make for the advantage of any such increase. The interest but also contribute to the 2 | Bar News | Winter 2010 | | Editor’S note | institutional continuity (and education) Address, which took a fresh approach life of United States Supreme Court of the profession. There has also been a to this annual lecture, focussing judge James Clark McReynolds, is heavy emphasis on matters of practice. upon analytical questions rather than bound to attract attention. There is, of historical or purely constitutional course, a great deal more in this issue, In this particular issue, Ash continues his themes. There is also Michael Kirby’s including an exclusive preview of the march through the careers of members riposte to Justice Antonin Scalia’s view ABC’s forthcoming series Rake, which of the New South Wales Bar who have of the use of foreign authority in judicial follows the life and travails of Cleaver been appointed to the High Court with decision making, a topic also recently Greene - philanderer, serial adulterer, an extended essay on the long life of Sir critically considered by Justice John addicted gambler and member of George Rich in which he focuses on his Basten in the Bar Association’s Law and the New South Wales Bar! For Bullfry relationships with other members of the Values series on the topic of Law and afficionados, Professor Aitken recounts court and, in particular, Sir Owen Dixon. International Thought. Bullfry’s experience as a member of Ash also revives his fascination/obsession the junior bar, many years ago and with the clerihew, reviewing the recently Graham Ellis SC, who has returned to without the benefit of the Bar Practice published Lives of the Governors of New Papua New Guinea as a judge, gives Course. There are lessons to be learnt South Wales in this idiosyncratic form of a fascinating and gripping account of everywhere. verse. his experiences in that jurisdiction. For sheer interest, Geoffrey Watson SC’s Andrew Bell SC Other articles of particular note include essay ‘A really rotten judge’ on the Editor David Bennett QC’s Sir Maurice Byers Have you found what you’re looking for? Digital evidence can prove what you know and uncover what you don’t, but it’s fragile !"#$#%&'()*+$+,$,-+!%".$/.*!012$%"#/3/"#/"+$/.&,4/"2%($+/!5$!4/$/63/4+2$&4,5$+7/$ (,**/(+%,"$+,$34/2/"+!+%,"$,&$/8%#/"(/$%"$(,)4+.$9/$(!"$'"#$07!+$:,)14/$*,,;%"<$&,4. =,$23/!;$0%+7$!"$/63/4+$(,"+!(+$>**!"$9!++?$!.0!++@/*!0.(,5.!) ABCC$ABD$EEB$F$/*!0.(,5.!). GHIJKH$$$$$$$LKMNOPQJK$$$$$$$NQRGN>JK$$$$$$$SKQ=T$$$$$$$TOJU$VOJU$$$$$$$GT>JUT>R leaders in digtial evidence Bar News | Winter 2010 | 3 | president’S column | power to delegate, which in some the council’s view, was an outstanding cases is mandatory.