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VICTORIAN BAR NEWS ISSUE 160 SUMMER 2017 Red white and who? VICTORIAN Observations on the USA BAR Chief Justices NEWS at the MCG

The Bar in Broadmeadows

Western Bulldogs Premier lawyers behind the scenes

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Contact [email protected] call us on +44 207 242 6471 or sign up for a free trial at iclr.co.uk ISSUE 160 SUMMER 2017 VICTORIAN BAR Editorial NEWS Making history 3 40 Celebrating Justice Hayne THE EDITORS KATHLEEN FOLEY Letters to the editors 4 42 Relocating David Levin QC THE HON JOHN DIGBY Message from the incoming 5 2016-17 Bar Council President 44 : Premier JENNIFER BATROUNEY QC lawyers behind the scenes ROBERT HEATH Around town The London 2016 International 6 Bar Lore Commercial Law Conference 48 The 1986 Parliamentary Commission (London 2016) 18 into the conduct of Justice VBN Lionel Keith Murphy The Bar in Broadmeadows: 8 THE HON STEPHEN CHARLES an event with Hume City Council 58 The Library of Sir ANGELA LEE JAMES MERRALLS AM QC Chief Justices join barristers 10 62 A history of the Victorian Bar at the MCG: Joint ABA CHARLES PARKINSON and Vic Bar conference JILLIAN WILLIAMS Back of the Lift Important new portrait 14 64 Adjourned Sine Die for our Bar’s own gallery SIOBHÁN RYAN 66 Silence all stand International arbitration update 16 22 69 Vale DR VICKY PRISKICH 78 Gonged For the public good: 18 79 Victorian Bar Readers the 2016 Pro Bono Awards 80 New silks Q&A HAROON HASSAN 28 84 Victorian Bar council Hockey: All in the family 21 VBN Boilerplate News and Views 86 A bit about words QC Gun laws: the American 22 88 Music Column ED HEEREY QC predicament LACHLAN ARMSTRONG QC 91 Ten tips for weight control MATTHEW TOWNSEND AND SIMONE BAILEY Observations of American Courts 28 CAMPBELL THOMSON 92 Off the Wall SIOBHÁN RYAN Open justice: The Bar, the Bench 34 95 Book Reviews and the Open Courts Act 96 Assessor Typologies ANONYMOUS NATALIE HICKEY 98 2016: Thespian Year in Review Refugees and the rule 39 58 THETA GAMMA of law on Nauru 100 SCHWEINHAXE ANTHONY KROHN Restaurant Review

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Editors: Georgina Schoff QC and Georgina Costello. Victorian Bar News Editorial Committee: Georgina Schoff QC,Georgina Costello,Anthony Strahan,Maree Norton,Annette Charak,Justin Wheelahan,Catherine Pierce,Brad Barr,Jesse Rudd,Natalie Hickey,Justin Hooper,Georgie Coleman,Denise Bennett,Sally Bodman Contributors: (In alphabetical order) Lachlan Armstrong QC, Simone Bailey, Jennifer Batrouney QC, Julian Burnside AO QC, Annette Charak, the Hon Stephen Charles QC, Georgina Costello , Graeme Davis, The Hon Justice John Digby, the Hon Ray Finkelstein AO QC, Garry Fitzgerald, Kathleen Foley, John Glover, Justin Hannebery, Penny Harris, Harron Hassan, Sam Hay, Paul Hayes, Robert Heath, Ed Heerey QC, the Hon Peter Heerey AM QC, Natalie Hickey, Will Houghton QC, The Right Honourable Sir Robin Jacob, Anthony Krohn, Angela Lee, Benjamin Lindner, Peg Lusink, Peter Matthews, Hadi Mazloum Making history , Ron Merkel QC, James Merralls AM QC, Frances O’Brien QC, Justin O’Bryan, O’Connell SC, Charles Parkinson, Dr Vicky Priskich, Siobhan Ryan, GEORGINA SCHOFF & GEORGINA COSTELLO, EDITORS Siobhan Ryan, Rohan Scheid, Georgina Schoff QC, Meredith Schilling, Geoffrey Steward, Robert Taylor, Campbell Thomson, Matthew Townsend, Peter Willis ictorian Bar News serves many purposes. When first QC, Christine Willshire and Richard Wilson. published, it brings our members up to date with recent Photo contributors: Peter Bongiorno, Annette events and the current news and views of our Bar. The Charak, George Coleman, David Cook, Justin photos of our members around town help us put faces to Hooper, Hannah Pelka-Caven, Jim Peters QC, names, as do the pictures of new silks, new readers and Catherine Pierce, Neil Prieto,John Rickard, Adam new Bar Council members. Rollnik, Jesse Rudd, Siobhan Ryan, The Hon Justice Joseph Santamaria, Meredith Schilling, Georgina In the longer term, Victorian Bar News is a record for posterity: a Schoff QC, Stephen Sharpley QC, Geoffrey Steward, history of the Victorian Bar. Sometimes this is not apparent until one has Anthony Strahan, Campbell Thomson, Jeff Thornton, cause to read an issue from years gone past. But in this issue, where we Jeremy Twigg and Michael Wheelahan QC. publish both an article written by James Merralls AM QC and an obituary Cover Illustration: Guy Shield for him, history seems to have turned the pages. Vale Jim. Publisher: The Victorian Bar Inc., Level 5, Owen V Dixon Chambers, 205 William Street, In this issue, we also publish an article by Charles Parkinson VIC 3000. Registration No. A 0034304 S. announcing the commission of a proper history of the Victorian Bar to be The publication of Victorian Bar News may be cited written by the renowned historian Dr Andrew Yule. This commission is a as (2016) 160 Vic B.N. Opinions expressed are not grand and useful undertaking for our Bar. As Parkinson suggests in his necessarily those of the Bar Council or the Bar or of article on page 62, by looking to the past, we may see how to go forward. any person other than the author. Still on the topic of history, our readers will be unable to put down the Advertising: Hon Stephen Charles’ article on the 1986 Commission into the conduct All enquiries including request for advertising rates to be sent to: of Justice . Charles, who was among the counsel assisting Sally Bodman the Commission, recounts (in as much detail as he is permitted to) the The Victorian Bar Inc. extraordinary circumstances of that unfortunate episode in Australian Level 5, Owen Dixon Chambers legal history, and the questions of law that it raises. Charles is a regular 205 William Street, Melbourne VIC 3000 and brilliant contributor to Victorian Bar News and to so much else at Tel: (03) 9225 7909 the Victorian Bar. We are grateful to him. Email: [email protected] photo by neil prieto Design and production: The Slattery Media Group; Another Victorian Bar commission is the portrait of one of the giants www.slatterymedia.com of our Bar, the Hon AC QC. This portrait was unveiled Contributions: Victorian Bar News welcomes recently and now graces the walls of the Peter O’Callaghan QC Gallery, contributions to [email protected] taking its place in the Bar’s pictorial history. We cover that event on pages 14. LEFT TO RIGHT: Georgina Schoff QC, Justin Wheelahan, This issue, in fond remembrance of our wigged history, we have Catherine Pierce, Georgina Costello, Jesse Rudd, Brad Bar, included photos of children dressing up in the wigs and gowns of Sally Bodman, Maree Norton and Natalie Hickey (Absent: Annette Charak, George Coleman, Justin Hooper and Anthony Strahan). VBN 3 editorial various judges and barristers. Wearing wigs is now a mere The red white and blue also suits another theme of this memory for most of us, but the gowns are here to stay, and issue: in this year of Trump (perhaps also an underdog), Message below you can see some future lawyers trying on the idea we are pleased to publish two articles about the United editorial editorial of being a barrister. States. Lachlan Armstrong QC’s insightful discussion of You may notice a lot of red, white and blue in this the difficulties besetting the possibility of gun control in from the issue and on its cover. We hope you will forgive us for the United States of America, and Campbell Thomson’s football in summer, but we thought it important to sharp observations of American courts, capture celebrate this year’s victory of the underdog. We know something of present day America. Bar Council you will enjoy Rob Heath’s terrific article about the We wish you a safe and pleasant summer processing beloved Bulldogs and how some members of our Bar the highs and lows of 2016, before the Bar begins the next saved them from being relegated to history. year in its history. President

JENNIFER BATROUNEY 2 TO 1 Letters THE t will be an honour for Editors me to lead our Bar in 2017. In doing so, I will work collaboratively with the new Bar Council Wigs—The members and the Bar’s London scene capable CEO, Sarah Fregon, for the benefit of all counsel. A colleague from the U.K, who The recently elected Bar Council wishes to remain anonymous, aka 4 4 5 is an outstanding team comprised The Rt. Hon. Sir Robin Jacob QC, of leading barristers from all fields formerly of the Court of Appeal of I of practice. While many have served England and Wales, is a keen reader on Bar Council before and bring this of Bar News. He writes: valuable experience to the table, Fine Ode to the Wig by Peter we also have many new members – Heerey in last Bar News. Echoes of and their fresh perspectives will be Wordsworth, or even Keats. important as we the issues confronting the Bar and the wider Our LCJ got rid of wigs, gave us a legal profession. new uncomfortable (wool - too thick) My vision for the Victorian Bar is to gown. They have stripes depending ensure that the Bar and its members on rank - CA gold, HCJ red, continue to thrive. The Bar Council The Victorian Bar must continue President, Paul Anastassiou QC. One Circuit judge purple and registrars/ 6 with my leadership will advance to be a strong, independent and of the highlights of his Presidency masters pink, my dear. When 5 the professional excellence and authoritative voice to safeguard the for me was the function he organised gathered together we look like a performance of Victorian barristers rule of law. The work we do - both in Broadmeadows where her Southern Baptist Choir. Nothing like by giving them the support they need Kids in Wigs as barristers and on Bar Council – Honour and Chief law reform. to continue to produce high quality 1. Hugh Roberts (aged 2) filling in matters greatly to our society and Justice encouraged for Arthur Roberts in 1983. work. We will promote barristers’ Remember Astbury J: “Reform? 2. Connor Heerey our justice system. We will work schoolchildren to dream that one day, distinctive skills amongst clients, Reform? Aren’t things bad enough 3. Mathilda Wilson, daughter of collaboratively with civil society they too could hold one or the highest Anna Wilson solicitors and the broader community. already?” 4. Emma Heerey and legal institutions to support judicial offices in the land. It was an While we look to BCL to enhance 5. Justice Mandie in chambers the justice system in and inspirational day – I hope to be able The Bar refused to take its wigs off with grand-daughter Rania. our built environment, we will 6. Kathryn Ross, daughter of federally, and to advocate for to emulate this function next year. and carry on as normal. So solicitor continue to provide a variety of Georgina Costello. improved access to justice. It will Paul is a great friend and mentor to advocates went out and got wigs too. 7. Lachie Curtain, grandson of services to members of the Bar to David Curtain QC, in 2016. be a busy year and I relish the me and I look forward to his ongoing enhance their physical, mental and opportunity to make my contribution support throughout my term. financial wellbeing. The Victorian to the great institution that is the I wish all our members a safe and Bar is a warm and collegiate Victorian Bar. enjoyable break over the summer community and we will nurture this Have your Say Write to the Editors at Victorian Bar News, Owen Dixon Chambers, 222 William Street, Melbourne, VIC 3000 Finally, I pay tribute to the and look forward to working with all by facilitating mentoring amongst our or email [email protected] excellent work of the outgoing of you in 2017. members.

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AROUND 1. Philip Crutchfield QC addressing a crowd of conference attendees 3. Datuk Professor Sundra Rajoo 4. Paul Anastassiou around town around Tow n QC and Paul Hayes 5. Daniel Crennan SC, Raini Zambelli, Andrew Bailey and other dinner guests 6. The Hon Susan Crennan AC QC 7. Samantha Marks QC and Simon Marks 2 The London 2016 QC 8. William Alstergren QC, Paul Anastassiou QC and Sandra Anastassiou 9. The Gala Dinner, Middle Temple Hall International Commercial 10. Barbara Myers 4 11. Natalie Hickey and Chris Fox. 12. Chief Justice Marilyn Law Conference Warren AC and Lord Clarke 13. Laurence Rabinowitz QC 14. Laurence Rabinowitz QC and Philip Crutchfield QC VBN

joint undertaking of CommBar (Commercial Bar Association of 7 Victoria) and the aptly named ComBar (Commercial Bar Association of AEngland and Wales) produced the inaugural London 2016 International Commercial Law Conference (ICLC) which took place at the Inner and Middle Temples in London over two days in June 2016. The conference happily coincided with the Supreme Court winter vacation, and featured an impressive range of speakers from the commercial benches and Bars of Melbourne and London led by Chief Justice Warren, Lord Clarke, The Hon Susan Crennan AC QC, Lady Justice Arden, Lord Justice Jackson, Justice Jonathan Beach, Justice Digby, Dame Geraldine Andrews and His Honour Judge Wilson. Over 150 delegates participated in a solid conference 5 6 program comprised of eight business sessions which addressed pertinent topics

such as ‘The Cost of Commercial Justice’, ‘New Frontiers in Investment and 10 9 Finance Litigation’ and ‘State Courts and International Commercial Arbitration: A Comparative Analysis’, to name a few. Adding unexpected colour to the experience was that the conference occurred the week after the Brexit vote. 8 The theme of the event, The Future of International Commercial Dispute Resolution, therefore assumed a sense of immediacy not predicted by the organisers nor, to be frank, by most of the attendees. Panel sessions involved impromptu future-gazing about how the commercial legal world might look – in the next 12 months and in the years ahead. The conference had been launched in an assumed context of globalisation. But in a disrupted world where ‘local’ is the new ‘global’, the future for commercial disputes and their resolution is more opaque than ever before. These matters, and many others, provided the delegates with ample scope for an exchange of views at the Gala Dinner in Middle Temple Hall (a candle- lit black tie event attended by nearly 200 people) and the Drinks Reception in Temple Church Courtyard. They were memorable and special occasions the 11 12 13 attendees will not easily forget. Special thanks are due to the London 2016 ICLC Organising Committee and the Bar Office, for making this ambitious event happen. Not only is it the first time an Australian state bar or specialist bar association has conducted a legal conference abroad, but the London 2016 ICLC has also positioned the Melbourne commercial bar alongside our London counterparts on the world stage at a time when the practise of commercial dispute resolution is becoming more global in nature. The London 2016 ICLC was an unqualified success. Hopefully, it will be the first of many such undertakings pursued by the Victorian Bar and CommBar in the future.

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1. Wendy Harris QC and Justin Wheelahan with students trying on robes 2. Paul Anastassiou QC and The Hon Justice Gordon 3. Students. 4. The speakers, members 7 8 10 of the Bar, councillors and students 5, 6 & 7. Students 8. David O’Callaghan QC and student 9. The Hon Chief Justice Warren AC and students 10. Students trying on robes 11. Students

applies the highest values”. Her Honour their Honours, members of the Bar and The SEC was established in 2010 The Bar in Broadmeadows: an event likened the work of a barrister to a university representatives. Several gowns with the objective of ‘demystifying’ scriptwriter where “you make your own were made available and it was great the Bar by providing young Victorians movie script and then you get to act the to see the students trying them on and with a better understanding of the with Hume City Council part out”. taking ‘selfies’ dressed as barristers. work of the Bar, and of the pathways to Justice Gordon told the students that Mr Anastassiou, a native of the becoming a barrister. This is primarily working as a barrister is “unbelievably north-western suburbs, targeted the done by arranging for barristers ANGELA LEE, CO-CHAIR, STUDENT ENGAGEMENT COMMITTEE intellectually challenging” because “each City of Hume, one of Australia’s most to speak to students at Victorian case is different” and “the subject matter diverse metropolitan areas. He noted universities and secondary schools, n 16 August 2016, students from the northern suburbs encouraging anyone with an interest in law to have the you deal with is only limited by the that, “the Bar has a growing number of and by providing mentoring and heard inspiring speeches from the Hon Chief Justice self-belief to follow that path. breadth of human activity”. Her Honour people from diverse backgrounds and work experience. OWarren AC and the Hon Justice Gordon about the Mr Anastassiou’s message was clear – the Victorian Bar highlighted the attributes of a barrister cultures and among the Bar we speak The SEC plays a vital role in importance of the legal system and the sense of fulfilment is open to all comers on merit, irrespective of socioeconomic as including the ability to be a listener, more than 37 languages … We want to inspiring and encouraging students that one can achieve through a career at the Bar. background, ethnicity, gender or religion: “The law is open an inquisitive learner and of course, the ensure we continue to grow and reflect from all socio-economic backgrounds The Hume Global Learning Centre in Broadmeadows was to anyone … Talent and hard work are the criteria for a career desire to give something back to society. the communities we act, serve and work to consider the legal profession as filled with around 200 Year 11 and 12 students, teachers and in the law”. Barristers Angela Lee, Shaun with”. This is important because the a career path. The Committee has parents from eight different schools for a Student Information Cr Helen Patsikatheodorou, the Mayor of Hume City Council, Ginsbourg and Hadi Mazloum spoke law mirrors societal values. As Justice received a positive response from Session, “Future Careers in the Law”. The event was hosted by welcomed the opportunity for young people who attended to about their paths to the Bar, the life of a Gordon said, the legal profession shapes students at the event, and is in need of the Victorian Bar and the City of Hume. engage with two of Australia’s highest judicial officers, who barrister, and the support, mentoring and our legal system because barristers barristers who can provide mentoring The session was the initiative of the President of the both spoke fondly of their time at the Victorian Bar. work experience available by the Bar’s in particular “choose the cases that or work experience opportunities. If Victorian Bar, Paul Anastassiou QC. He expressed his Chief Justice Warren described it as “the best job I ever had” Student Engagement Committee (SEC). come before the courts for us to hear you are able to assist, please contact commitment to reaching out to students from all walks of life, and explained that at the Bar “you work in an environment that Afterwards, the students mingled with and determine”. [email protected].

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around town around Chief Justices join barristers at the MCG: Joint ABA and Vic Bar

conference 1. Patrick O’Sullivan QC, Prime Minister Malcolm Turnbull David O’Callaghan QC Will Alstegren QC 2. Bill Gillies and Peter Cawthorn QC 3. Sam Hay and Raini Zambelli 4. Andrew Tragardh Justin Wheelahan Hamish Redd 5. Sally Peters, Leon Zwier, Jim Peters QC and Christopher Hughes QC 6. Nicole O’Hare , Michael Rivette and Sonia Stewart 7. Jane Needham SC, Fiona McLeod SC and Chris Gunston SC 8. Helen Tiplady, Rowena Orr SC and Michael Borsky JILLIAN WILLIAMS

4 5 6 he legal fraternity left its staid that the courts were experiencing William Street precinct on 27 and in NSW. T28 October 2016, for Melbourne’s The morning then broke into three iconic sporting centre, the MCG, to separate streams for panel discussions attend the National Conference, a first on: the role of the regulators (ACCC/ time joint initiative of the Victorian Bar ASIC) in enforcement and litigation; and the Australian Bar Association. The ‘Future Directions in Patent and other IP conference was a great success and Litigation’, and ‘Declaratory Relief in Tax provided many topics for discussion Cases’. In the ACCC/ASIC regulators among the many barristers, solicitors, in- panel, the recently released Federal house counsel and other attendees. Court practice notes were discussed The conference’s theme, ‘The National and Wendy Peters (ACCC) shared the 8 Profession in a Global Legal Market’ was Commission’s preference for truncated canvassed through an engaging two day or ‘brief’ pleadings. Michael Kingston agenda of speakers and panels from the (ASIC) discussed how the Commission Bar, Bench, major firms, government and perceives its role in bringing proceedings. corporate lawyers. The second sessions for the morning The day commenced with a welcome provided choices between ‘Employment Government and Corporate Affairs by David O’Callaghan QC, and a short Law - Boral Litigation), ‘Commercial Specialist, and Fiona de Jong, CEO, speech by the Commonwealth Attorney- Arbitration in Asia, What is the Future?’ Australian Olympic Committee, shared General, the Hon. George Brandis QC, and ‘Corporate Responsibility and Risk their corporate in-house experiences. on the complexities of the increasingly Management and Directors Duties’. That evening a cocktail party was global practice of law at the bar. The afternoon sessions presented hosted at the Glasshouse to conclude the The Honourable Chief Justice of the panels on construction law, class actions day’s festivities. High Court, Hon. gave and native title. This was followed by a Day two of the conference opened with the key note address, introducing a panel session on ‘What Corporate Clients a panel session on High Court Appeals panel comprising all of the chief justices, want from the Profession’. convened by Wendy Harris QC. The 7 chaired by Chief Justice Warren. The The final session provided a lively panel discussion was opened by the Hon panel opened with suggestions on what debate on the interrelationship between Justice Michelle Gordon who outlined The conference was a tremendous success and was capped off with the closing the appropriate collective noun was for Public Relations and Litigation’. The panel her top tricks for clear and effective address by the Prime Minister a group of chief justices, a gaggle or participants, Shadow Attorney-General written advocacy; Noel Hutley SC of a pride were among those suggested. Mark Dreyfus QC, Allen Myers QC, Bret the New South Wales Bar discussed his Next followed a lively debate series Kinsey, as well as Katherine Brazenor, Hughes QC Chev LH and the Honourable Their Honours discussed new trends in Walker QC, and Leon Zwier, Partner, experience of oral advocacy at the court; in the form of the National Advocacy who was the contestant for the Northern AC QC awarded the prize Supreme Court litigation, including great Arnold Bloch Leibler, provided differing Victoria’s Solicitor-General, Richard Niall Competition. The Competition, chaired by Territory. Contestants had been given to contestants from the South Australian case management in civil and criminal perspectives. Mr Myers discussed the QC, spoke of statutory construction; and Mark Costello, pitted state and territory only 48 hours to prepare. Popular talks and Western Australian bars. proceedings, self-represented litigants potential for the creation of conflicts , QC, discussed Special finalists against each other, each delivering included ‘Superman or Batman’, and The morning was rounded off with a and the benefits of (and need for) judicial between a barrister’s duty to the court Leave applications, and how two thirds of a punchy five minute talk on their choice ‘social media’. After some lively and highly panel on modern litigation and the move mediation. Chief Justice Bathurst spoke and to the client. Panel guests, Gillon appeals this year have been determined from a list of topics. The Victorian Bar animated performances, the judging towards a paperless office. The panel was of the internationalisation of litigation McLachlan, CEO, AFL, Kerry Wilcock, on the papers. was represented by the gifted Daniel panel, constituted by the Honourable Tom chaired by Michael Wheelahan QC. The

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Hon. Justice Margaret Beazley, President 4 5 of the NSW Court of Appeal, discussed her experience of real time transcripts in the court room and said that the use of technology in litigation hadn’t necessarily made it cheaper. Rowena Orr QC and Catherine Button made observations about the increasing trend of firms to brief electronically; and Peter Butler, Partner of the Herbert Smith Freehills, and Belinda Thompson, Partner from

Allens, spoke of their experiences with 1. Gavan Griffith AO QC, Helen Tiplady, Albert Monichino QC, Bronwyn Lincoln, Kanaga Dharmananda SC, Paul Hayes e-court in large litigation. and Alistair Wyvill SC 2. Chief Justices Kouraki, Grant and Murrell. 3. Chief Justice Bryant AO. 4. Chief Justice French. In the other morning session 5. Chief Justice Allsop. Christopher Hughes QC of the with Chief Justice John Pascoe (Federal this a backdrop of a splendid Racing Queensland Bar chaired a lively Circuit Court), Fiona McLeod SC (Vic Carnival party hosted by Lord Mayor discussion by the Honourable Justice Bar), Stephen Keirn SC (Queensland Bar), Robert Doyle and a threat to Phar Lap’s James Judd (Supreme Court of Victoria), Arthur Moses SC (NSW Bar), and Sarah remains, the hypothetical made for a Jim Peters QC, Mark Livesey QC of the Pritchard SC (NSW Bar). sensational and entertaining panel. South Australian Bar, and Louise Jenkins, The last session, was a hilarious The conference was a tremendous Partner, Allens, and Chris Fox, Partner and entertaining Hypothetical led by success and was capped off with the at King & Wood Mallesons on modern Matt Collins QC, based on a suspected closing address by the Prime Minister, trends in expert evidence. terrorist plot at the Melbourne the Hon. Malcolm Turnbull, speaking The afternoon sessions included Museum. Julian Burnside QC was on the important role the bar plays topics such as the future of litigation advising his refugee protégé, an in Australia and the increasing global in Crime and Civil Law and Aboriginal innocent bystander working at the dimension of modern day litigation. Incarceration, convened by Matthew Museum, seeking to sue the ‘Herald Particular thanks are due to Will Howard SC, as well as a panel on Foreign Age’ for defamation. Jeremy Ruskin Alstergren QC, Bar CEO Sarah Fregon, Affairs and the Legal Challenges of QC, representing the journalists, and Sally Bodman from the Bar office, International Terrorism and Human was more than eager for Judge Sara for their tremendous work organising a Rights, convened by Julian McMahon, Hinchey to hear him at length. Add to terrific conference.

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The course is designed to provide an introduction to the main principles of International arbitration update international arbitration and to allow around town around candidates successfully completing the BY DR VICKY PRISKICH course to become Associate members of CIArb. he growing interest of Australian practitioners in Room, award-winning chef and owner, Guy Grossi, welcomed International Council for international arbitration was demonstrated by the guests before CIArb Australia Vice President, Caroline Kenny Tnumbers attending the many events put on by CIArb QC introduced Special Guest Speaker, Justice Middleton, Commercial Arbitration Australia in 2016, including a number of new events. National Co-ordinating Judge of the International Commercial (ICCA) Congress Arbitration Practice Area at the Federal Court of Australia. ICCA holds a congress every second CIArb Asia Pacific Diploma Class 2016 with co-course directors Albert Monichino QC and Francis Xavier SC (from Singapore) and members of the faculty at Maxwell Chambers, Singapore. Justice Middleton delivered an erudite and entertaining address year for the presentation and discussion entitled “Some Reflections of a ‘Statutory Decision-maker’ on of papers on different aspects of Commercial Arbitration (ACICA), and Vickery of the Victorian Supreme Court. Consensual International Commercial Arbitration”. Dr Vicky international dispute resolution, including two representatives of the Australian Other international arbitrators who spoke Priskich, Deputy Victorian State Convenor CIArb Australia, international arbitration. It is the largest Government. at the conference included Dr Fuyong delivered the vote of thanks. international dispute resolution seminar Early registrations for the ICCA Chen, Deputy Secretary of the BAC/BIAC, Sponsored by the Victorian Bar and CommBar, the sold out in the world. Congress 2018 are now being accepted. Elliot Geissenger, President of the Swiss lunch attracted guests from Melbourne and interstate, including The next Congress will be held in For further details see the ICCA website: Arbitration Commission, as well as experts senior executives from Asialink, BHP Billiton, KordaMentha Sydney from 15 – 18 April 2018. The http://www.icca2018sydney.com. from Italy, the UK, Hong Kong, Australia, and senior partners from global firms Holman Fenwick Willan, event is expected to attract a large The Hague, Malaysia, and Singapore. Corrs Chambers Westgarth, Norton Rose Fullbright, Allens, number of participants from all parts In 2017, Australian Arbitration week Left to Right: Prof Jeffrey Waincymer, Julie Soars, the Hon Justice Middleton, the Hon Justice Australian Arbitration Week Davies, Neil Kaplan, Caroline Kenny QC. MinterEllison, Herbert Smith Freehills and Baker & McKenzie. of the world. The Beijing Arbitration Australia’s annual major arbitration event will be held in Melbourne. Also in attendance were current and former judges of the Commission/Beijing International is Australian Arbitration Week. On 22 International Arbitration Series, Federal Supreme Court, members of the Bar and academics. Arbitration Center (BAC/BIAC), one November 2016, CIArb Australia co- Court of Australia of the largest and most established presented an international arbitration arbitral institutions in China, is also conference with the Business Law section In March 2016, the International Arbitration Series was launched the exclusive Diamond Sponsor for the of the Law Council of Australia and ACICA, in the Federal Court of Australia in Melbourne. Running over ICCA Congress 2018. which was held in Sydney at the Federal two years the lecture series is a joint collaboration between the On 30 August 2016, an Australian Court of Australia. This year’s theme was Federal Court of Australia and CIArb Australia. The series was delegation led by Caroline Kenny “New Horizons in International Arbitration” initiated by CIArb Australia Vice President, Caroline Kenny QC, in QC presented a seminar in Beijing to and brought together eminent keynote conjunction with Justice Davies of the Federal Court. promote the ICCA Congress 2018 to speakers and panels from Australia and The first event of the series focused on a range of cutting- China. The event was partly sponsored around the world. Gary Born, President edge legal issues regarding the role of the courts in international by the Victorian Bar (whose logo was of SIAC Court of Arbitration, delivered a commercial arbitration. It featured a distinguished panel prominently displayed on the advertising keynote address at the conference and was comprising Caroline Kenny QC, Professor Jeff Waincymer, Neil CIArb Asia Pacific Diploma Course held in program for the event) and attended by the special guest speaker at the annual Kaplan CBE QC SBS, and Julie Soars. Singapore over 100 Chinese arbitrators and dispute CIArb Australia dinner held at Sydney The event was hosted and chaired at the Federal Court in This year saw the Inaugural CIArb Asia Pacific Diploma Course resolution lawyers. Participants included Tower. The conference was opened by Melbourne by Justice Middleton and was video cast across in International Commercial Arbitration held in Singapore a judge from the Supreme People’s Court, Chief Justices Allsop and Bathhurst and Australia via the Federal Court’s video conference network, over nine-days (20 – 28 August 2016). Students came from representatives of the Australia and panel leaders included Chief Justice Martin facilitating engagement with the profession across the country. 11 countries and included members of the Victorian Bar. The the Australian Centre for International of the WA Supreme Court and Justice Chief Justice Allsop delivered the Welcome Address from Sydney. course was the result of a joint venture between the Australian, Three other seminars in the series were held: “Evidence in East Asia and Singapore branches of the CIArb negotiated by Left to right: Dr Vicky Priskich, Albert Monichino QC, the International Arbitration” featuring the Hon Jim Spigelman CIArb Australia President, Albert Monichino QC. Under the Hon Justice Middleton and Caroline Kenny QC. AC QC (Sydney), “Costs Issues in International Arbitration” terms of the joint venture, the course will be held in Hong Kong featuring Professor Doug Jones AO and Professor Janet Walker in 2017 and in Australia in 2018. (Sydney) and “Jurisdiction Issues in International Arbitration” CIArb Australia also held the Accelerated Route to Fellowship featuring Albert Monichino QC, Bronwyn Lincoln from course over the weekend of 15 - 16 October 2016 in Melbourne, Corrs Chambers Westgarth and John Kelly from K&L Gates which was led by course director Caroline Kenny QC. The (Melbourne). Next year seminars will be held in Perth, Adelaide course is a fast track to CIArb Fellowship. The course attracted and Brisbane, as well as Sydney and Melbourne. barristers and solicitors from Melbourne and across Australia. Grossi Florentino Business Lunch On 20 May, CIArb Australia also held the enormously popular Introduction to International Arbitration course in In July 2016, CIArb partnered with Grossi Florentino to Perth. Sponsored by King & Wood Mallesons, it attracted launch its annual business lunch. Held in the beautiful Mural candidates from across Australia and the Asia Pacific.

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3 1. Chris Horan receives the Victoria Bar Pro Bono trophy from the Hon Tim Wilson MP 2. Will Alstergren 3. Jarrod Williams and John Desmond 4. Joh Kirby (Victoria Law Foundation), Stuart Webb (Migration Review Tribunal) 5. Haroon Hassan, Emily Porter 6. Christopher Tran receives the Daniel Pollak award from the Hon Tim Wilson MP 7. Áine Magee QC, Melanie Szydzik, Brian Walters QC, Julian Burnside AO QC

Regarded as a “talented barrister” who recognises the pro bono contributions of

6 achieved “exceptional outcomes”, counsel between 7 – 15 years call. he was recognised for making an Once again the Committee was unable enormous contribution through fearless to choose between our joint award winners. representation of applicants in the Federal Kathleen Foley was recognised for Circuit Court and the provision of training her work as junior counsel to Mark to other lawyers working in this area. Moshinsky QC (now his Honour Justice Siobhan Kelly has also undertaken Moshinsky of the Federal Court of significant amounts of pro bono work Australia) in North Australian Aboriginal since signing the bar roll in 2013. Justice Agency v Northern Territory [2015] She was honoured for her “fearless HCA 411 which challenged the validity of »» Brown v Tasmania [2016] HCA advocacy” on behalf of Duncan Hart (a “paperless arrest” laws in the Northern For the public good: the 2016 Pro Bono Awards (judgment reserved), a case part-time Coles worker from Brisbane) in Territory, which enabled police to lock challenging the validity of Tasmanian the Fair Work Commission, both at first individuals up for four hours for minor anti-protest laws on the basis of instance and on appeal. offences. The case resulted in the High HAROON HASSAN ON BEHALF OF THE PRO BONO COMMITTEE inconsistency with the implied freedom On appeal Siobhan (unled) was opposed Court placing important limitations on of political communication. to two silks and three juniors briefed on the use of the laws. ne of the hallmarks of the Victorian Bar has been Rights Commissioner) on behalf of the Commonwealth Chris was described by his clients as behalf of Coles and the Shop Distributive Kathleen was described as the its unstinting commitment to pro bono work over Attorney General. “extremely attentive” and “brilliant to and Allied Employees Association Alliance “epitome of efficiency, diligence and Omany years. Each year members of the Victorian Bar In selecting this years’ winners, the Pro Bono Committee work with”. (the SDA), respectively. The subsequent excellence” and was commended for contribute thousands of hours and many millions of dollars’ was faced with the unenviable task of selecting from a rich Min Guo and Anastasia Smietanka decision of the Commission in favour of being both “thorough and consultative”. worth of legal services for the “public good”. As Chief Justice pool of nominees who have made extraordinary contributions were both highly commended for their Mr Hart gained national media attention Rolf Sorensen was honoured f or Warren remarked at the 10th Anniversary of the awards in 2010: through their pro bono work. Below is the list of the 2016 award pro-bono contributions in this highly- for setting aside an enterprise bargaining his tireless and ongoing work over 10 winners. We applaud their efforts and congratulate them on contested category. agreement affecting tens of thousands years with the AED Legal Centre, a While law firms are encouraged to perform pro bono work as their awards. of lowly paid workers across Australia. specialist Community Legal Service an incentive or condition to winning government legal work, for The Ron Castan AM QC Media reports estimated the scale of representing people with disabilities. barristers it is different. Were it not for the commitment to the The Daniel Pollack Readers Award Award underpayments at between $70 - $100 In particular, he was nominated for his highest ideals of the Bar displayed by those who provide pro Christopher Tran Angel Aleksov & Siobhan Kelly million per year. As a result of this advocacy in Butterworth v Independence bono work, it would not happen at all. Named after Daniel Pollack who joined the Bar in 2007 but who This award is named after the late Ron important decision a number of other Australia Services [2015] VCAT 2056, a The Pro Bono Committee continues to explore ways to tragically passed away after just 18 months at age 29. It recognises Castan AM QC. It recognises the pro bono agreements struck by the SDA are now discrimination case brought by a disabled encourage barristers to record the value of their pro bono work. the pro bono contributions of those who have signed the roll in the contributions of counsel between 2 – 6 being scrutinised. AED client against her employer. By recording and recognising the efforts of our members who past 2 years. years call. “It is a case that has fundamental Rolf was praised for his “empathy” undertake pro bono work we are able to better quantify and This year’s winner was Christopher Tran. He was recognised The judges could not split this year’s repercussions for many of the most and his commitment to his clients. analyse the enormous contribution made by our members to for his tireless pro bono work in a number of capacities. Some of joint winners. This is fitting as they both vulnerable employees in Australia”. “His generosity with [his] time, skills the administration of justice. the many high profile cases he has undertaken since signing the signed the roll in 2013 and presently The Susan Crennan AC QC and knowledge are second to none”. In 2014 the Pro Bono Awards became a biennial event. This bar roll include: share a room together in chambers “[Without] people like Rolf [AED] would year guests and nominees gathered in the Supreme Court »» Murphy v Electoral Commissioner [2016] HCA 36 which coincidentally named after Ron Castan. Award not be able to operate”. Library on 16 November to pay tribute to this year’s award challenged provisions of the Electoral Act, which set a cut off on Angel Aleksov was nominated for Kathleen Foley & Rolf Sorensen Arushan Pillay was highly commended winners. The awards were presented by the Hon. Tim Wilson enrolment and therefore disenfranchised many thousands of his “exceptional contribution to the This award is named after former High in this category for his work on the MP (the Member for Goldstein and former Australian Human people. pro bono sector, in particular [his] Court Justice Susan Crennan AC QC inquest into the death of Numan Haider refugee and asylum seeker [work]”. a trailblazer and leader of our bar. It (along with Megan Fitzgerald)

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The recipients and distinguished guests, L-R Pat Zappia QC, Norman O’Bryan Am SC, The Hon tim Wilson MP, the Hon Chief Justice French AC, Chris Horan, Kathleen Foley, X, Christopher Tran, Angel Aleksov, Siobhan Kelly, Melanie Szydzik, Megan Fitzgerald,Ray Ternes

interest in which counsel have acted pro bono. counsel to pro bono work over many years. The Ron Merkel QC Award BACK ROW: Matthew Goldberg, Ross Gordon, Latrobe Valley residents formed a This year’s deserving winner was All in the family Norman O’Bryan AM SC Patrick O’Sullivan, Deputy President Richard Clancy, community group (Voices of the Valley) Chris Horan QC who was recognised Andrew Denton, Stephen Sharpley QC, James Wilton, This award is named after former Federal Keith Kendall, Barnaby Chessell; in response to the Hazelwood Mine Fire in for his “substantial and extraordinary VBN Court Justice Ron Merkel QC who has FRONT: Rob O’Neill, James Batrouney, Carole Shanks, 2014, which burnt for 45 days, blanketing commitment to pro bono over a significant Judge Philip Burchardt, James Tierney, Nick Tweedie QC. demonstrated an unwavering commitment the community in smoke. period of time”. to social justice and human rights throughout he Victorian Bar regained the exploitation of any player - took an The fire resulted in deep Latrobe Valley This included recent important Federal his time as member of the bar. It recognises Scales of Justice Trophy in this early scoreboard lead. The solicitors hit concern about the short and long term Court proceedings (heard concurrently) the pro bono contributions of counsel between year’s match against the Law back. At half time the Bar was slightly impacts on community health. Through which challenged the systematic delay in T over 15 years call and those of silk. Institute of Victoria. Nobody was more ahead. Judge Burchardt moved the ball fund-raising, community activity, lobbying the processing of citizenship applications Norman O’Bryan SC was declared the pleased by the victory than Bar News faster than a judge leaves the bench on and advocacy, the group has managed for refugees who arrived in Australia by winner of this year’s award. His successful editor Georgina Costello, who is married a Friday afternoon. Ross Gordon retired to highlight the issue their community boat: BMG16 v Minister for Immigration and nomination focussed on his crucial and to the captain of the solicitors’ hockey early with a “hammy” and announced continues to face. Voices of the Valley Border Protection and BMF16 v Minister for multifaceted work in aid of a law reform team (Paul Ross, Blackwood Family it was his last game for the Bar team. continues to work to provide a voice for Immigration and Border Protection (judgment campaign launched by eight key sector and Lawyers). The Scales of Justice trophy Noticeably affected by the game day public concerns over direct impact and reserved). professional bodies to fix the fundraising had been on display in their bedroom pressure, Ross announced that he would long-term health, welfare, economic and Chris was also cited for his “enormous laws that apply to charities and other not- for much of the past two years following retire, not only from hockey, but also from environmental effects. effort and skill” in arguing M64 v Minister for-profit organisations across Australia. back to back wins by the solicitors. Gordon and Jackson this year. Deputy Melanie, Megan and Ray (instructed by for Immigration and Border Protection (2015) “Having ready access to Mr O’Bryan’s The future looks bright for the Bar, with President Richard Clancy played fairly Environmental Justice Australia) appeared 327 ALR 8; (2015) 90 ALJR 197, a test case … expertise and high-level legal thinking rising star - Andrew Denton - winning the and worked hard. Stephen Sharpley before the Inquiry. “[They] effectively that challenged Ministerial policy under the about the workability of law reform options, Rupert Balfe trophy for best on ground. QC in goal never looked taxed. Carole balance[ed] advocacy for their clients humanitarian visa program which adversely has been core to launching and gaining Fresh talent like this should ensure that Shanks from Green’s List ran around like with assistance to Justice Teague and affected family reunion visa applications considerable traction with the campaign. the trophy can remain in other bedrooms a busy clerk. Nick Tweedie and Barnaby the board, reviewed large amounts of sponsored by refugees who had arrived in A campaign that has the potential to bring for years to come. Chessell’s play in midfield was very well evidence at short notice including complex Australia by boat. about much needed law reforms that have Incoming Bar President Jennifer planned. Matthew Goldberg’s forward epidemiological and medical evidence, and “Chris epitomises the idea that the been stalled for more than a decade”. Batrouney QC usually ropes in her two sons thrusts were criminally effective. In the all in the context of very high community best social justice advocates are the best to play for the Bar team. James Batrouney end, the Bar’s players pushed through The Public Interest /Justice expectations”. lawyers. His efforts in pursuit of fairness played again this year, even though he was perennial back and knee pain to win 5:2. and access to justice are admirable and Innovation Award The Victorian Bar Pro Bono in swot vac for his university law exams. Both teams enjoyed the beers and an example to the profession. Chris is Melanie Szydzik, Megan Fitzgerald and We look forward to having both Batrouney BBQ put on after the game by Burgess Trophy a humble, quiet achiever and incredibly Ray Ternes boys on the field next year. Paluch Legal Recruitment. The game was Christopher Horan QC deserving of this award. We cannot This award acknowledges innovation in the The Bar – ably captained by played fairly, nobody squabbled with This prestigious award recognises a long recommend him more highly.” delivery of justice or cases of significant public employment and OHS barrister Rob the umpires and there were no appeals standing commitment and contribution by 1. Chris Tran also appeared as junior counsel in this matter. O’Neill who ensured there was no against the result.

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News ViewsAND Gun laws: the American predicament

LACHLAN ARMSTRONG

he past year has seen yet more mass shootings in the USA, and the predictable vitriol of the gun debate in that country exacerbated by the Presidential election campaigns. But the year also featured the “sit-in” by the congressional Democrats after the Orlando nightclub horror, and the cri de coeur from President Obama, both pressing for gun reform. We tend to wonder how things could have reached such a pass. We hear American references to their “constitutional right to bear arms”, and we know that constitutions might constrain legislative action, but that constitutional provision is about militias, isn’t it? So what’s the problem? Didn’t militias fade Tout with muskets? But it’s not so simple. Before we offer any opinions about gun control in the USA, we should acknowledge the extent to which their constitution does create an obstacle to reform. The Americans face a problem that Australian governments, in the wake of the Port Arthur massacre, never did. This article will attempt to give some context to the US “right to bear arms”, and then examine their courts’ attempts to balance the constitutional right against growing concerns for public safety. The results are considerably more nuanced than media reporting might suggest. It is important to start by acknowledging the peculiar historical circumstances in which the US and its Constitution emerged. The right to bear arms takes its colour from that context. The Bill of Rights In short, in the mid 1700s the Americas comprised a set of 13 British colonies. Each had a separate provincial government with fairly full power to make laws within its own territory. But by the 1770s local resentment at British taxation had driven the colonies into revolution. They formed a loose military alliance and then, as the fighting continued, they held a series of conventions in Philadelphia to coordinate their campaigns. Those conventions led, eventually, to the Declaration of Independence in 1776.

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“militias”. In times of danger, constitutional and historical context.3 …as lawyers we should respect the difficulties the civilian population mobilised, The underlying right referred to in Americans confront in achieving reform. served and then resumed civilian the second half of the clause was news and views news life. But when they were called up, an individual right to keep and bear That last aspect seems odd given But importantly, other elements they brought their own guns.1 arms for any customarily-lawful the militia aspect of the Second of the new DC laws were novel – Third, despite various checks purpose, including hunting but Amendment, but put that to one side. the requirements for registration and balances constraining federal especially self-defence. Even permission of arms for self- of rifles, licensing of owners of any power under the new Constitution, Heller was the first of two defence and other lawful purposes is firearms, additional licensing for the Founding Fathers – deeply important decisions. It had limited very broad. How do they manage any owners wanting “concealed carry” learned men like Thomas Jefferson initial impact, because it concerned laws constraining such a right? of their firearms in public, and a ban and James Madison – knew from long a law made under federal legislative The answer is best demonstrated by on “assault weapons”. The absence historical precedent that the first act power – an ordinance of the federal the course of the Heller litigation itself, of any tradition for these restrictions of any tyrannical government is often District of Columbia – and there was after the Supreme Court decision. meant they did constitute “burden”, to disarm its opposition. They wanted a separate line of cases holding that That is, DC urgently passed and so for these the Court moved to remove that as an option for their the Second Amendment did not apply new laws. Instead of outright to the second step in the analysis – own new federal government. to State laws. bans, it attempted a tight system identifying “the appropriate level Those three factors explain why, That limitation dissolved in of registration of firearms, and of scrutiny”. of all the ten amendments in the 2010. In McDonald v. Chicago4 the periodic licensing of owners. “Scrutiny” here refers to the Bill of Rights, the second in the list, Supreme Court emphasized that in The new laws were then three measures of public-interest right after freedom of speech and the aftermath of the US Civil War challenged in Heller II.5 The or “means-end” justification that association, is the right to bear arms. of the 1860s, the Constitution had challenge was summarily dismissed US courts might apply to allow a The language of that “Second been amended again. The Fourteenth at first instance, but it is the appeal law that otherwise infringes some All the controversy over gun control in the US Amendment” is clumsy by modern Amendment had been adopted to that is illuminating for present constitutional protection. Rational- depends fundamentally on the alternative meanings standards. It is, at least, succinct. ensure that the freed slaves of the purposes. basis review requires only that the of that awkward clause It reads: defeated Confederate South not only The DC Circuit appeal decision regulation be rationally related had the same “rights and privileges” highlights the process of enquiry to a legitimate state interest. “A well regulated Militia, being At the time of the Declaration But the Americans went as white citizens but also had those the US courts make to determine Intermediate scrutiny requires the necessary to the security of a free State, it was not clear what system further than their later Australian rights protected against infringement whether a law impinges too far government to demonstrate that the right of the People to keep and bear of government might replace counterparts in one critical respect. by their resentful local legislatures. on Second Amendment rights. there is a reasonable fit between Arms, shall not be infringed.” British colonial administration. The original US Constitution This was not a trifling problem – It is a two-step process, that: the challenged regulation and a What was clear, however, was that was criticised for being careful All the controversy over gun control the Court’s précis of racial violence substantial government objective. “(1) asks whether the challenged law independence, if won at all, would not to delineate power between the in the US depends fundamentally in the aftermath of the Civil War Strict scrutiny requires the burdens conduct protected by the endure unless the territories could State and Federal governments, on the alternative meanings of that makes harrowing reading. There government to prove the restriction Second Amendment and (2) if so, withstand ongoing British retaliation. but not clear about the rights of awkward clause. The narrow reading were cogent reasons why the right to is narrowly tailored to achieve a directs courts to apply the appropriate That imperative for common defence “we the people” as against the focuses on the opening words. It bear arms was explicitly mentioned compelling government interest. level of scrutiny.” was a critical factor driving the new government. And so, almost argues that the only right being in the 1860s debates, as one needing Heller I had said that rational-basis American provinces to form a union. immediately, a set of ten amendments protected is one to bear whatever protection from State infringement. In the first step, the courts look at review would not be appropriate Initially they agreed upon some was added. Those amendments arms might be necessary for use in a Thus, the problem confronting historical records to assess whether in Second Amendment cases. But weak “Articles of Confederation and comprise their Bill of Rights. formal, State-regulated militia force. modern American lawmakers: the conduct being regulated was two things are then made clearer Perpetual Union” in 1781, in the later But the broad view argues that the federal law is bound by the Second already constrained in the 1790s by Heller II. stages of the War of Independence. The Second Amendment reference to “militia” seems to build Amendment, and State law is bound or 1860s, being the dates of the First, the appropriate level of Those Articles proved unworkable, At this point we need to widen the upon an assumption of an existing, by the Fourteenth Amendment, to Second and Fourteenth Amendments scrutiny will vary from law to so in 1787 they were replaced lens again. There were some peculiar underlying right to bear arms. The respect what the Supreme Court has respectively. If it was, it is unlikely to law, depending on the severity with the original US Constitution features of the War of Independence, opening words might explain why held is an essential right or privilege be protected now. of the burden (say, a ban versus and the federalist structure that and of the society that predated it, that right needed protection, but of American citizenship. Thus Heller itself (“Heller I”) mere licensing) and how close it endures today. that influenced the Bill of Rights in what really matters is the second half had indicated that longstanding approaches to the “core” of the Thus the former colonies became its treatment of “arms”. There were of the clause, which is an unqualified Laws after Heller restrictions on firearms for felons Second Amendment (described as States. Each retained a jurisdiction at least three clear factors at play. statement of the right. Now arises the most interesting and the mentally ill would likely “self-defence in the home”). In short: to make laws within its own territory. First, America in the 1700s was For many decades the narrow view question. Heller concerned a local remain permissible, even on its new “a regulation that imposes a substantial But sitting alongside was a new still frontier country. The pioneers prevailed, even at Supreme Court ordinance restricting the storage of expanded construction of the Second burden upon the core right of self- “federal” government, with power had ample need of guns, for hunting level and quite unambiguously.2 loaded handguns in private residences. Amendment. 6 And in Heller II, the defense protected by the Second to make laws on matters across and self-defence. But in 2008 the Court reconsidered The majority insisted the ruling would historical record led the appeal Court Amendment must have a strong States, or between the States as a Second, the young nation couldn’t the issue. In District of Columbia not undermine most existing gun laws, to hold that the new law requiring justification, whereas a regulation that group and foreign nations. It is, afford and didn’t want a “standing” v. Heller it held, by majority, that nor entitle private citizens to demand registration of handguns was not imposes a less substantial burden should of course, the basic model that army of professional soldiers. the broad view was better justified “dangerous and unusual weapons” like novel, and so ought not be regarded as be proportionately easier to justify.” Australia later copied. Instead, there was a tradition of by the language, and by the “M16s and Stinger missiles”. a “burden” on the right to bear arms.

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4. 561 US 742 (2010). Second, the DC Circuit followed requiring intermediate scrutiny. magazines, were sufficient burdens and what guns, and how soon. But unlikely to change. The mechanisms other early post-Heller I decisions But in June 2016 the Ninth Circuit, on Second Amendment rights as to what’s left is enough to perpetuate for amending the US Constitution 5. Heller v. District of Columbia, 670 F.3d 1244, 1248 (D.C. Cir. 2011) (Heller II). in holding that registration and sitting en banc as 14 judges in Peruta require strict scrutiny. ready access by almost anyone to are, if anything, even more restrictive news and views news licensing requirements were only v. San Diego, found by majority that Again, the Court simply remanded weapons incomparably more lethal than in the Australian Constitution. 6. Nonetheless, mental-illness restrictions will also be closely a “modest” burden on the core restrictions on hidden weapons were the matter for further evidence and than the flintlock muskets of the War Finally, the reality is that the US scrutinised: see e.g., Tyler v. Hillsdale Second Amendment right. so longstanding and widespread, rehearing, but its observations along of Independence. gun problem is no longer just a County Sherriff 775 F.3d 308 (2014) As such, intermediate scrutiny across the USA, that concealed carry the way do not augur well for the We should be horrified at the endless question of legal nicety or political (US Court of Appeals, Sixth Circuit). was appropriate. was not conduct within Second ban. That is, the majority accepted reports of gun violence in the USA, will anyway. Past laws and continuing 7. Peruta v. City of San Diego (US Court But recall there was another Amendment protection at all.7 fairly readily the proposition that it but as lawyers we should respect the cultural expectations have seen of Appeals, Ninth Circuit) (unrepd), 9 June 2016. element to the DC laws – a full ban And Peruta reveals a tension in was reasonable for private citizens difficulties Americans confront in some 350 million firearms put into on “assault weapons”. Since Heller I the basic two-step enquiry. The in modern urban America to want achieving reform. Many legislatures circulation. There is nil prospect of 8. 813 F.3d 160 (2016) (US Court of Appeals, Fourth Circuit). had already indicated that M16-style dissentients accused the majority of to equip themselves for a “home have enacted sophisticated gun-control effective confiscation. It is hard to 9. Interestingly, the Fourth Circuit held fully-automatic rifles (and anything focusing just on “concealed carry” defence” situation in which the regimes, testing the limits of the Second dismiss the argument that new laws a rare en banc rehearing of the Kolbe worse) would fall outside Second and ignoring the context that other sensible weapon of choice would be Amendment. And their courts have now would only disarm the law- appeal in May 2016. As at August 2016 Amendment protection, the phrase provisions of the relevant Californian something capable of emptying a transplanted into this post-Heller world abiding citizens. the decision is reserved: 4th Cir. 2016 docket 14-1405. “assault weapons” in Heller II was laws also banned “open carry”, so that 30-round magazine of military-grade a body of principle that in fairness 1. Indeed, some of the colonial treated as meaning anything in the “public carry” overall was severely ammunition in under 6 seconds. does reflect a conscientious, carefully- legislatures had laws requiring able- 10. E.g., in Friedman v. City of Highland Park 136 S.Ct. 447 (2015) (Scalia & range of semi-automatic weapons constrained. The minority’s analysis is It is a little startling. informed attempt to balance the public bodied freemen to keep weapons of a certain standard and in good order, Thomas JJ dissenting from denial of such as, most famously, the AR-15 – forceful; but at the same time, it gives But despite misgivings over benefits of gun control against the ready for use at short notice in the certiorari); Shew v. Malloy (US 15- the civilian version of the M16. barely a nod to the historical record. examples like Kolbe,9 overall one mandates of their Constitution. local militia force, sometimes “at a 1030, cert den 20 June 2016). minute’s notice” – hence Paul Revere Notwithstanding that it was a The majority did arguably favour must acknowledge that the US Views will differ as to the 11. Heller v. District of Columbia, 801 F. 3d and the “Minutemen”. ban, the Court held it was not a history over text, but the minority courts in the short time since Heller desirability of the constitutional right. 264 (D.C. Cir.) (Sep 2015) (Heller III). “severe” burden on the right to certainly favoured text over history. I have developed an impressive But that is a quite different question 2. United States v. Cruickshank 92 US 542 (1876); United States v. Miller 307 self-defence (or, incidentally, the The deference paid to history jurisprudence. It demands evidence from whether it should be observed US 174 (1939). right to go hunting). In effect, where is therefore one variable between and subjects it to a structured analysis while it endures. And the Second 3. District of Columbia v. Heller 554 US there were plenty of other firearm judges and between circuits. A but is always, explicitly, deeply Amendment itself is exceedingly 570 (2008). choices available, a ban on one second variable arises from Heller I’s conscious of the need to balance the option was only a modest constraint. observation that pre-1790s attitudes public interest in gun-control against Intermediate scrutiny applied. toward self-defence did not extend the imperatives of the Constitution. And here is the crunch. The to “dangerous or unusual” weapons. Heller I unleashed waves of Heller II Court did not itself decide Put to one side the consideration litigation, and waves of law reform the fate of the DC laws. Having that almost any modern firearm in response. The ebb and flow will confirmed “burden” and clarified would have been unusual by continue, and interestingly the the appropriate scrutiny, it simply 1790s or 1860s standards. Even Supreme Court has declined several remanded the case to the lower the “originalist” interpretation in applications for review of lower-court courts. The parties would be able to Heller I seems to permit the Second rulings on post-Heller gun controls.10 lead further evidence as to whether Amendment to keep pace with It is worth noting, then, the eventual the challenged laws satisfied the technology. The issue in the second outcome of Heller itself. After Heller relevant means-end test. variable is whether a given court II the DC legislature further adjusted Heller II is a neat demonstration of regards a particular category of its regulations, but there was another the method of analysis deployed by firearms – usually meaning “assault round of challenges. Ultimately, in the US courts in Second Amendment weapons” like AR-15s – as being Heller III, the DC Circuit allowed some cases drawing directly on First “dangerous or unusual” despite their but disallowed other restrictions.11 Amendment jurisprudence. Usefully, popularity in modern America. Importantly, each of them was the it also provides a virtual checklist of And that issue closely relates to a subject of specific evidence and careful the main gun-control measures that third variable – the readiness with “means-end” analysis, and where DC US legislatures have attempted in the which a given judge will regard failed adequately to justify a particular wake of Heller I. a given regulation as sufficient restriction, it was ruled invalid. But Heller II was only one decision. “burden” to require strict scrutiny. Almost every element of it has gone The second and third variables are The American predicament the other way in one or other of the evident in Kolbe v. Hogan in February This, then, is the American different circuit courts. 2016.8 The Fourth Circuit there predicament. Their constitution For instance, Heller II treated differed from the DC Circuit in Heller enshrines an individual’s right to the DC licensing requirement II and ruled that a ban on semi- bear arms for self-defence. The for “concealed carry” as a novel automatic weapons like the AR-15, post-Heller cases have affirmed some regulation, and therefore a burden and related bans on large-capacity restrictions on who can possess guns,

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CAMPBELL THOMSON

Brooklyn landlord had not provided a safe fence on the roof. etween the first and the second So Ms Smith, where do you live? - On Brooklyn Heights. Presidential debates, on Thursday 6 Do you own or rent? - I rent an apartment. October 2016, there was a farmers’ market in the square in front of What do you do for a living?- I teach high school. the Kings County Supreme Court Ever had a dispute with your landlord? - No. in Adams Street, Brooklyn. On a wide table many varieties of heirloom tomatoes ranging Do you have any issues that could prevent you from judging this from yellow golf balls to crimson baseballs sat gleaming case fairly?- It’s personal. in the sun. Nearby the statue of Christopher Columbus The questioner looked at counsel for the landlord who wondered where the new world was heading. was taking notes. They whispered and then asked Ms Inside the Courthouse, blue marker pen scribble B Smith to join them outside the court room. They returned on a white board in the Registrar’s Office on the th7 a few minutes later. There were no more questions for floor told us which courts were sitting. Ms Smith. My partner and I were on holiday. We’d walked over A similar process followed with other potential jurors. Brooklyn Bridge. We passed by where Walt Whitman Each counsel asked similar sets of questions. They were printed Leaves of Grass. She rolled her eyes when I unfailingly polite and obliging. After about an hour they quoted Whitman’s poem about the death of Lincoln, that took a break. canny trial lawyer. It does not mention him by name. I introduced myself to both counsel who were chatting I am always curious about how countries handle the in the corridor and explained I was a trial lawyer from rule of law. I’ve heard a Prosecutor at the Old Bailey Australia where we can’t ask jurors questions. cross-examine an accused about a gruesome murder. Where’s the Judge? I asked. I’ve seen opposing counsel in wigs wave their briefs at Oh, he’s out the back somewhere. We don’t need him the bench to make their points in the Jaipur Court of for this... Appeal. I’ve been to Lurigancho prison outside Lima, So what happens if you two have an argument? They where guards wave whips as thick as fire hoses, to looked at each other in amazement. It was clear they had advise a man charged with trafficking cocaine. been opponents many times before. We entered a court on the 11th floor of the Kings County So the Judge has nothing to do with it? Counsel for the Courthouse. 16 men and women of various ages, races, respondent told me: classes and states of dress sat randomly in the body of the We don’t normally need him. It’s different in Federal cases court. One man read the New York Times. Its pages, half where the Judge asks the questions… as wide as those of the Herald Sun or , rested on I later read that this was a voir dire as explained in the back of the seat in front of him. Others sat bored and Implementing New York’s Civil Voir Dire Law and Rules, by fidgeting, unable to use their cell phones. Ann Pfau, Chief Administrative Judge, New York State. The only official was an African American in a blue It states at point V.C.4: uniform with the badge of the State of New York on his shoulder and an automatic pistol on his hip. On one side Counsel should make every effort to settle disputes without of the empty bench was the flag of the United States, on court assistance. If such efforts fail, counsel shall bring the the other was the flag of the State of New York. Above the dispute to the attention of the assigned trial judge or Judicial bench were the words IN GOD WE TRUST. Hearing Officer. Two men entered from a side door. Both were in their These guys knew what they were doing. The Judge forties with sun tans, slicked back hair and outfits from could have left to play golf. Suits. One carried a board with paper on it. They sat on the bench side of the bar table. One of them looked up De Toqueville’s Democracy in America and asked Ms Smith would you please raise your hand? In 1831 the French aristocrat Alexis de Toqueville Ms Smith was a red haired woman of about 35. travelled the United States for nine months to investigate The questioner was counsel for a plaintiff who had its prison system at the behest of the French government. fallen off a flat roof after a party. The plaintiff alleged his He did not only look at US gaols. He also examined its

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number plate searches on all the The detective was a former infantry officer with a buzz cars nearby. The accused owned cut. The back of his suit bulged from the pistol holstered one of the cars. The detective news and views news on his belt. had uploaded the photo from the accused’s driver’s license. Well counsellor, what do you say? What will he get if he goes down? The detective explained this in said the Judge, still standing behind Ten to twenty. And I offered him further cross-examination when the his black leather office chair. probation. This is a complete waste of jury came back. The defence counsel stood at time. Any redirect? asked the Judge. the bar table with his client sitting Outside the lifts I saw the defence No, said the prosecutor. beside him. counsel. We exchanged cards. I asked A retired senior detective then gave The People have no case. Their only him to let me know what happened. expert evidence about drug dealing witness is an accomplice. There’s no He didn’t. I’ve never met a lawyer in the Bronx. He’d been a senior corroboration. who was keen to tell me about his member of the narcotics squad for The photographs of the bag going failures in court. a decade. The thrust of his evidence into the apartment corroborate the De Toqueville would have made was that it was common for drug accomplice. Motion denied. notes on this trial. The lack of dealers to use cleanskins like the It took less than thirty seconds. deference to authority in America accused as couriers. He was the last What are you going to do? asked the impressed him. politics. In 1835 he published the The detective was a former infantry witness the People called. Manhattan Judge. The Judge clearly directed the drama first volume of Democracy in America. officer with a buzz cut. The back A female juror in the back row was On Wednesday 12 October after I will call several witnesses, said but no-one bowed and scraped to him. In it he wrote: of his suit bulged from the pistol writing furiously. She handed some the second Presidential debate, Defence Counsel. He wore a simple black robe over his holstered on his belt. He told the jury papers up to the Judge. He looked at The jury, and more especially the we went to the Supreme Court in Well go ahead, said the Judge, and shirt and tie. He sat and spoke on the about his surveillance in the Bronx. them for a moment and said: civil jury, serves to communicate the Manhattan on Centre Street. It’s brought the jury back into court. same level as all the other participants. He saw the accused carrying a bag spirit of the judges to the minds of all a few blocks south of Chinatown Counsel to the side bar. The defence counsel called his The citizens of King County had from an apartment to a parked car the citizens; and this spirit, with the where angry Maine lobsters sell for client’s father. The court officer elected him to a 14 year term that occupied by two men. The accused Before he left his chair he pushed habits which attend it, is the soundest $10 a pound and close to the original unclipped a velvet rope, like those in expires when he turns 70. entered the car and put the bag down on an object like a snow cone. preparation for free institutions… it headquarters of the NYPD which front of night clubs. It separated the between the two front seats. The It emitted a dull white noise. invests each citizen with a kind of is almost as grand as our Supreme body of the court from participants Judge Lopez Torres detective saw through binoculars that He and the two counsel whispered magistracy, it makes them all feel the Court. in the trial. He left and returned with On 16 January 2008, the US Supreme the men opened the bag and looked together and then the Judge sat duties they are bound to discharge The courts for criminal trials are a short, skinny, balding man with a Court decided New York State Board inside it. down, turned off the white noise, toward society; and the part which in a building dating from 1941. It’s stoop. of Elections v Lopez Torres et al. Other police then ran from cars answered the questions that were of they take in Government… they were showing its age. A wooden ramp Mr Henriques gave evidence in Justice Scalia delivered the opinion nearby and arrested all three men. In little moment and called a recess. better informed about the rule of law, outside allows for wheelchair access. Spanish through an interpreter. He of the Court. He set out the history of the bag, under some children’s clothes, I introduced myself to the retired and they were more closely connected In the foyer where security screening was from the Dominican Republic how delegates elected to a political were packages containing two pounds detective. I explained that ice was the to the state. Thus, quite independently takes place is a pictorial monument but had lived in the Bronx for party convention choose the party of heroin and one pound of cocaine. big problem for our police. of what the jury contributed to dispute to Court staff who died in 9/11. twenty years and was a US citizen. nominee for Judge at a general No further questions. Heroin is back on top here. Lots of resolution, participation in the jury I asked at the Registrar’s Office He struggled to answer questions. election. Independent candidates The defence counsel walked slowly ODs in Brooklyn right now, he said. had salutary effects on the jurors why only two courts were sitting The Judge intervened, kindly, and required nominating petitions with to the lectern. He was slight, bearded I told him I’d seen a deal that themselves. in the busiest criminal court in the discovered the man was illiterate. the signatures of up to 4,000 voters. and about thirty. The only issue morning in the subway at West 4th country. He washed dishes at a country In 1992, Lopez Torres was the In 2014 legal academics in a Cornell seemed to be whether the accused Street in Greenwich Village with a It’s Yom Kippur, a clerk replied. We club in New Jersey. So did his son. first Latina woman elected to the University study questioned jurors knew he was carrying narcotics. The wad of cash exchanged for a bulging goys were abashed. On the day his son was arrested, a Civil Court for Kings County, the in seven states. They found that civil detective agreed that the accused had paper bag. Upstairs on behalf of the People, friend was going to pick them up at level below the Supreme Court. jurors were more likely to vote after no prior convictions. Then defence We’ll call you as a witness, he smiled. a young female Assistant District 8am to take them to work. Then the She claimed that after her election jury service. They also found there counsel asked: It was dark and they were both Attorney was directing testimony boss rang to say the party had been following a Democratic Party was no boost in civic participation black, I replied. from a detective. Her questions were You’d never seen the accused before cancelled and they didn’t need to nomination, party leaders demanded following civil jury service but that Back in court I asked one of the court clear and precise. had you? come to work. she make patronage hires. She jurors after criminal trials increased officers about the Judge. The geography of the court meant The point was that the drug bust was refused. She claimed this caused the their civic engagement. Only in a photograph. He only hears trials. He was a the detective sat in the stand only a at 10.15 am. It was only a coincidence party to oppose her unsuccessful NSW, WA, QLD, SA and the ACT defence attorney for a long time. Not few feet to the Judge’s left, on the same The Judge sent the jury out and said: that the accused was home when a candidacy at future Supreme Court have all passed laws to permit trials like some of them who only get here level. The jury box was a little further cousin, the accomplice, came round nominating conventions. In 2004 she in criminal matters by Judge alone. You walked into a minefield, counsellor. because of who they know. to the left of the Judge at right angles and asked the accused to take some and other candidates who had failed I’m with de Toqueville. The institution How do you want to handle it? The Judge wandered back into to his bench. The prosecutor stood at kids’ clothes to a friend nearby. in similar situations sued the New of jury trials is vital for a functioning court. The jury was out. No one said a lectern in front of the end of the jury After some discussion, the detective The court adjourned for lunch. I York Board of Elections. They claimed democracy. anything. No one stood. The defence box furthest from the Judge. agreed to say that police had done introduced myself to the prosecutor. that the election laws deprived voters counsel shuffled his notes.

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the time but you can’t fool all of the A Latino court officer, with a And are those the verdicts of you people all of the time. handlebar moustache and his all? asked the clerk, as the cameras gut spilling over the belt of his flashed. Yes. news and views news Lincoln also made a short speech on khaki uniform, marshalled the The Judge then asked defence a battlefield in which he said: photographers and TV cameramen. counsel if he wanted the jurors …this nation, under God, shall have No pictures of the jury! He ordered. questioned individually. He did. The a new birth of freedom – and that The black Assistant DA entered responses were the same. government, of the people, by the and paced around nervously. The The Judge thanked and discharged people, for the people, shall not perish defence counsel went in and out the jury. He thanked counsel for their from the earth. a side door talking to his client, a professionalism. He set a date for the Los Angeles slender Asian American woman who sentencing hearing. should have been in school. The I left and Ubered back to our hotel. On 13 October 2016 we were in Judge entered. My driver was a black woman LA on our way home. My partner I understand we have a verdict. with close cropped hair in a zig zag relaxed while I went downtown. Bring in the jury. pattern. She was from Compton. Frank Gehry’s Disney Hall, with The foreman handed several pieces She’d been to High School with its sinuous curved cladding in of paper to the Judge. He read them gangsters but she was cheerful about shiny titanium alloy, like his Bilbao and handed them to his clerk who the future. Guggenheim Museum, is astonishing. read the words, difficult to believe, I’m votin’ for Hil’ry! factory. We passed the razor wired Nearby is the Supreme Court I’ve never met a lawyer who was keen to tell me back to the jury. There What about the droughts and all walls of Sing Sing Prison. of California, Los Angeles. I took about his failures in court. were multiple guilty verdicts on the bushfires recently? Isn’t there an There are over 2.2 million people refuge there from the glaring heat. charges from murder to armed earthquake waiting to happen? I asked. and candidates of the rights to Justice Scalia died this year. in American prisons, almost 1% of I found a court where a trial robbery and assault. We’ll work it out somehow… gain access to the ballot and to The Senate has obstructed President the adult population. 4.7 million was ending. associate in choosing their party’s Obama from putting forward his are on parole. candidates, violating their First replacement. A President-elect Mandatory sentencing, especially Amendment rights. Trump will have no such difficulty for drug offences, has led to They won in the District Court and may be able to appoint two more incarcerating huge numbers of poor and in the Second Circuit Court of Justices to the Court. Blacks and Latinos. Bill Clinton Appeals which held they possessed In Hurricane Bob Dylan sings: was responsible for some of these a right to a “realistic opportunity to draconian laws, enacted to appease a How can the life of such a man/Be in participate in (a political party’s) fearful electorate. the palm of some fool’s hand?/To see nominating process, and to do so There is no real difference between him obviously framed/Couldn’t help free from burdens that are both working on a chain gang as a but make me feel ashamed to live in a severe and unnecessary.” prisoner or a slave. land/Where justice is a game. Justice Scalia disagreed, saying In 1855 De Toqueville was pained there was no constitutional and astonished…that the freest requirement for a “fair shot” at Plea Bargaining Power people in the world is…the only party nomination. The rest of District Attorneys are elected. one among civilized and Christian the Court concurred. They have many Assistant District nations which yet maintains personal Justice Stevens added that Attorneys running cases under servitude… Slavery dishonours there was a distinction between supervision. These Attorneys have labour, it introduces idleness constitutionality and wise policy, the power to make plea offers that into society. quoting his predecessor, Thurgood bind the court. With unrepresented In 1860 as a Republican, Lincoln Marshall, who remarked that or poorly represented accused, this was elected with under 40% of the Constitution does not prohibit can lead to the innocent pleading the popular vote but 59% of the legislatures from enacting guilty to forestall the possibility College delegates. The slave states stupid laws. of worse punishment. Only courts seceded before his inauguration. Justice Kennedy added: The rule of should determine guilt and just The American Civil War over law, which is a foundation of freedom, punishment. slavery ended in 1865. Maybe it still presupposes a functioning judiciary continues. Remarkably, many blacks respected for its independence, its Mandatory Sentencing and Latinos did not recently exercise professional attainments, and the We took the train up the Hudson their right to vote. absolute probity of its judges. And it River to Beacon to see the private Lincoln said: may seem difficult to reconcile these Dia contemporary art collection in You can fool some of the people all of aspirations with elections. a former Nabisco cardboard box the time and all of the people some of

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Open Courts Act 2013 (Vic) (OCA) The act may be brief, but it is deceptively complex. was effective. In a story containing evocative language such as At the Supreme Court’s initiative, Justice hopes that other jurisdictions news and views news ‘suppression city’, The Age reported the pilot duty barristers’ scheme will join in the scheme”. that Victorian courts were still issuing was established. In April 2015 Meanwhile, the OCA itself hundreds of suppression orders a year, Chief Justice Warren made a is being reviewed. On 9 November 4 despite the enshrining into statute written request to the then 2016, the Victorian Government via the OCA of a presumption of open President of the Victorian Bar announced that Frank Vincent AO access to justice in Victoria.5 (Jim Peters QC) expressing interest QC will review the OCA and consider What The Age did not report in devising a mechanism to whether it strikes the right balance was that major media outlets were deal with the many suppression between people’s privacy, fair no longer regularly contesting order applications made under court proceedings and the public’s applications for suppression orders the OCA that were then unopposed. right to know. Whether there throughout Victoria.6 The reasons Jim Peters referred the matter should be overarching consistent were understandable. Media to the Chair of the Pro Bono principles relating to suppression outlets lack the resources to do this. Committee (Pat Zappia QC), who and prohibition orders will be one However, the practical result was formed a sub-committee with of the matters investigated. that many, if not most, applications Richard Wilson as Chairperson Asked if there was one thing for suppression orders lacked a to explore the possibility of that stood out for him about the contradictor. providing the assistance sought OCA, Haroon Hassan responded, Chief Justice Warren was moved by the Court under the auspices “The Act may be brief but it is to respond to The Age report, of the Pro Bono Scheme. deceptively complex. It is not penning an opinion piece in defence A proposal prepared by Haroon well understood”. In fact, navigating of suppression orders.7 Warren CJ Hassan outlining a potential pilot the statute and relevant authorities contended, “To suggest, as The Age for a duty barristers’ scheme is not for the faint-hearted, has, that courts make orders without was unanimously adopted by the particularly because some of justification, even casually, is wrong. Pro Bono Committee. A formal the key concepts are buried It undermines confidence in, and memorandum from Jim Peters QC, in apparent exceptions. respect for, the judiciary”. Pat Zappia QC and Haroon Hassan The following short quiz about Concluding her opinion piece, was submitted to the Chief Justice the provisions of the OCA is the Chief Justice observed: so that further work could be intended to exemplify some coordinated between the Bar and the Byzantine elements (detailed “To further strengthen public Court to explore the feasibility answers are in end notes8): confidence in the process, the of conducting the pilot and to Supreme Court will soon utilise a Is there a difference between a establish a formal protocol for generous service of the Victorian Bar, suppression order and a closed court the scheme. where barristers will appear – free of order? (Hint – Yes) Currently the pilot scheme is charge – when requested by a judge, limited to the Supreme Court. It Does an applicant for a suppression to make submissions on public interest will be reviewed at the end of the order need to give notice to the court grounds, in the absence of any other pilot scheme period to consider that the application is to be made, so contradictors such as the media. This whether it should be extended to that relevant news media organisations is an initiative of the courts themselves other jurisdictions. The OCA has can be notified of the application and Open justice: The Bar, the Bench together with the Victorian Bar, one broad-ranging application, including have an opportunity to oppose it? (Hint of the state’s most highly respected to the County Court, the Victorian – Yes) independent legal bodies.” Civil and Administrative Tribunal, and the Open Courts Act Is the notice in Q2 required if the The pro bono OCA duty barristers’ the Coroner’s Court and other application is for a closed court order? scheme commenced its pilot phase prescribed courts, tribunals, (Hint – No) How a duty barristers’ pilot scheme is helping practitioners and the Supreme Court. NATALIE HICKEY on 1 May 2016. Under the bodies or persons. stewardship of the Pro Bono Whilst there has been a limited Is the notice in Q2 required if the Committee, and to aid the OCA take up of the scheme so far, the application is for a pseudonym order? he principle of open justice is a proceedings are exposed fully to scrutiny and criticism.2 duty barristers’ scheme, the Chief Justice has pointed out that in (Hint – No) cornerstone of our judicial system. The Therefore, it is the ordinary rule of the Supreme Court Victorian Bar now has the benefit of those cases where it has been applied public administration of justice is said that proceedings should be conducted publicly and in Is the notice in Q2 required if the comprehensive guidelines (modestly it appears to have worked well. A to maintain confidence in the integrity open view.3 application is to prohibit or restrict entitled ‘Background Principles’) spokesperson for the Supreme Court and independence of the courts.1 Abuses Well, that’s the theory. access to a court or tribunal file? available to all barristers about how told VBN:“The Court is indebted to cannot flourish undetected when In 2015, a public debate erupted as to whether the (Hint – No) the OCA is intended to work. the Bar for its assistance. The Chief T34 VBN VBN 35 news and views

1 Gibbs J in Russell v Russell (1976) 134 not limit or otherwise affect the making Is the inherent jurisdiction of the performs his or her role as amicus overlooked, acting as an adviser to 1976 contains no requirement that CLR 495, 520. of an order or decision by a court or Supreme Court to make a suppression and if counsel is required to cease to the Court, making suggestions as to this be done. 12 tribunal (meaning no notice is required) 2 Ibid. order retained? (Hint – Yes) act for any reason. matters appearing on the record or The content of the OCA is, of that conceals the identity of a person by news and views news restricting the way the person is referred What they could say was that in matters of practice, and making course, a matter for Parliament. In 3 Ibid. Is the OCA a ‘one stop shop’ statute to in open court (s.7(d)(i)) OCA and see they were approached by the Court submissions on important questions the meantime, “The Supreme Court 4 Bachelard, M., Court suppression orders ABC-1 and ABC-2 v Ring and Ring [2014] in relation to suppression orders and for assistance late on a Thursday of law arising in proceedings. of Victoria looks forward to the Hon. still issued in their hundreds in Victoria; VSC 5); Q5: No – s.7(d)(iii) OCA; Q6: closed courts? (Hint – No) The Age, 13 October 2015 edition. Yes - Whilst common law power to make afternoon and were able to prepare In the end, the Court declined to Frank Vincent’s review”. an order prohibiting or restricting the 5 ss.4 and 28 OCA. The distinction between suppression detailed written submissions within a make a suppression order, but did For counsel, and affected courts publication of information in connection orders and pseudonym orders is short timeframe and to appear before make orders prohibiting general and tribunals, the OCA must be 6 This was conveyed to the Court by with any proceeding is abrogated (s.5(2)), representatives of the major media and any implied jurisdiction of a court vexed, because the non-specialist Justice Riordan the following Monday access to the court file. understood and applied. outlets at a meeting of the Supreme or tribunal to make such an order is would expect the ‘suppression’ of a morning to assist him in determining The ‘Background Principles’ To that end, Richard and Haroon Court’s Communications Committee in negated (s.5(3)), it is expressly stated person’s name (manifested in the the application as amicus curiae. prepared by Richard and Haroon encourage counsel to sign up to 2015. in s.5(1) that “Nothing in this section limits or otherwise affected the inherent use of a pseudonym) to be caught Reflecting on the experience, are a truly impressive resource the OCA duty barristers’ pilot 7 Warren, M, In defence of suppression jurisdiction of the Supreme Court”; Q7: by the notice requirements in the Richard Wilson said that the for barristers confronted with the scheme on the basis that it is very orders, by Victoria’s Chief Justice; The No – Subject specific legislation (e.g. Age, 19 October 2015 edition. OCA. However, pseudonym orders information initially provided prospect of an OCA application. The rewarding and interesting work. s.121 Adoption Act 1984, s.32F or s42BQ Evidence (Miscellaneous Provisions) Act are a unique kind of order sharing to counsel under the OCA duty document extends to 28 pages with a The protocol for the scheme between 8 Q1: Yes – A suppression order prohibits or restricts the disclosure by publication 1958, Division 1 of Part 13 Serious Sex detailed table of contents for the time the Bar and the Supreme Court or otherwise of a report of the whole Offenders (Detention and Supervision) poor, and is available to all barristers is available to barristers on the Act 2009) remains unaffected (s.8 OCA). the participating barrister appears as amicus curiae or any part of a proceeding, or any on the Vicbar website. Victorian Bar website. information derived from a proceeding 9 Open Courts Bench Book notes at 6.5.1. (s.17 OCA), whereas a closed court order and not as a contradictor. Richard and Haroon explained Otherwise, for barristers generally prohibits or restricts persons or classes 10 At [5]. that, “the Principles document was interested in understanding how of persons from being present in court 11 Part 2 OCA, s.10(1) and s.11(1). common features with suppression barristers’ scheme was the Form born out of the need to be able to the OCA works, the ‘Background (s.30 OCA); Q2: Yes – three days’ notice is required (s.10 OCA, also see Order orders and closed court orders, but 82A (Notice of application for ‘skill up’ members of the Bar who Principles’ document published 12 In the Federal Court of Australia, the 82 Supreme Court Rules and Practice making of suppression and non- which have developed their own suppression order) which an might not have had expertise in the on the Victorian Bar website is a Note No. 4 of 2013); Q3: No – the notice publication orders is dealt with in Part jurisprudence.9 applicant is required to file when area and who wanted to participate tremendous help. provisions in s.10 OCA only concern VAA of the Federal Court of Australia suppression orders; Q4: No – the Act does The decision of Hunter v AFL & seeking a suppression order under in the pilot scheme.” Act 1976. Anor [2015] VSC 112 reflects the the OCA. This is the document Richard added, “In approaching conundrum. This was a case where circulated to media outlets.11 Whilst the task of drafting it there was the applicant gave notice that he not much information is provided in already a lot of material in the intended to apply for a suppression the Form 82A document, Richard and bench-book published on the order, not appreciating that he need Haroon were able to discern that the Judicial College website. In our not have done so because, properly application was in the common law paper we wanted to synthesise the construed, the application was for division of the Court and involved a operation of the Act in the context a pseudonym order. Justice Dixon civil claim by a minor. of the operation of the pilot scheme observed that this had the effect After accepting the referral (and to (hopefully) make it easier for of generating substantial media with the consent of the applicant), counsel who chose to volunteer publicity for the applicant’s proposed the Registry supplied Richard and their time”. proceeding overnight and that Haroon with a copy of the summons Choice of forum issues inevitably Our 3 principal lawyers, Wendy Jenkins, Paul Ross and Marita Bajinskis are Accredited Family Law Specialists. morning.10 Such publicity need never setting out the orders sought by the arise. A commercial plaintiff seeking have occurred because notice was applicant, together with a supporting to protect confidential information We provide expert legal advice regarding: not required. In any event, his affidavit from the applicant’s solicitor in, say, a trade secrets case, faces Honour decided that a pseudonym and a copy of the proposed writ with a stark choice between issuing in • Marriage and defacto relationships order was not justified and the the names of parties and persons the Supreme Court of Victoria or • Separation application was refused. to be suppressed. This assisted the the Federal Court of Australia. To • Division of assets The first matter referred under preparation of the written outline seek procedural protections around • Care of children the OCA duty barristers’ scheme counsel provided to the Court. confidentiality in the Supreme • Child support and maintenance had some similar characteristics to Importantly, under the duty Court of Victoria, the plaintiff would • Financial Agreements (pre-nuptial or the Hunter case. Asked about the barristers’ scheme, the participating have to navigate the OCA and cohabitation agreements) experience, Richard and Haroon barrister appears as amicus curiae contemplate notifying the media, • International family law matters were suitably circumspect. Counsel and not as a contradictor. Counsel the absolute last thing one would involved in the OCA duty barristers’ does not stand in the shoes of an normally want to do. By contrast, Level 3, 224 Queen Street, Melbourne VIC 3000 T 03 8672 5222 scheme are obliged to keep opposing party, but rather assists the in the Federal Court of Australia, www.blackwoodfamilylawyers.com.au confidential and secure information Court to make the correct decision. the plaintiff need not worry Liability limited by a scheme approved under Professional Standards Legislation they receive when accepting a This might involve calling the Court’s about informing the media of any referral under the scheme. Those attention to reported and unreported application for suppression, because obligations endure after counsel decisions which might otherwise be the Federal Court of Australia Act 20131101 Vic Bar News Blackwood Family Lawyers.indd 1 11/1/2013 11:53:53 AM

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ANTHONY KROHN

here is a kind of Big Bang, an explosion questions posed by the Convention, and precedents in and coalescence of legal concepts, in the these jurisdictions are of assistance to the Court on Nauru first cases heard and decided in a new in determining its own jurisprudence. Justice Kirby’s jurisdiction. When the new jurisdiction “fine appellate tooth comb” from Wu Shan Liang1 was is the determination of appeals by cited in arguments and has now appeared in a judgment people seeking asylum in Nauru as of the Court on Nauru,2 as has the judgment of Merkel refugees, it has great importance for the rule of law in J. in Paramananthan v Minister for Immigration and the Pacific, and in the common law world generally. It is Multicultural Affairs3 and the UK authority of Bugdacay.4 also a development in which Australian barristers and In preparing and arguing refugee appeals in Nauru, solicitors, including members of the Victorian Bar, are Australian lawyers, including members of our own Bar, Tactors. Cahal Fairfield, Richard Knowles, Nick Wood, have the privilege of assisting the Supreme Court of Matthew Albert, Angel Aleksov, Liam Brown and I have Nauru to develop the law of Nauru while simultaneously all been involved in appearing in the appeals, for the attempting to do justice for individual applicants for appellants or for the Republic. asylum. In their work on these cases in Nauru, Australian The Supreme Court of Nauru is a superior court of lawyers contribute to the development of an international record in the common law world, and the judges of the jurisprudence in the application of the Convention. Court this year began hearing cases in a new jurisdiction, The Court on Nauru has heard a number of cases over hearing appeals on a point of law from decisions of the the course of this year, and the growing body of judgements Refugee Status Review Tribunal (the Tribunal) of the show that the court has been closely engaged with the Republic of Nauru. questions raised on the appeals, and has given reasons It is notorious that, for the last few years, people who which will add to the store of precedents of general use come by boat to seek asylum in Australia are transported in international as well as local jurisprudence. Some to Papua New Guinea or to Nauru for processing of their judgements have been given (and are published on Paclii), claims to recognition and protection as refugees. This while others are still reserved. policy is the subject of fierce debate, but, for as long as Appeals lie from the Supreme Court of Nauru, with it continues, the involvement of the Supreme Court of leave, to the , which of course Nauru is an important and genuinely positive aspect applies the law of Nauru, not of Australia, rather as of the situation. the Privy Council applies the laws of the different March of this year, the Supreme Court of Nauru began jurisdictions from which appeals lie to it. It remains to to hear and decide what is meant by “a point of law” such be seen whether there will be such appeals, either by cases could be completed before as to ground an appeal, under the Refugees Convention the Republic of Nauru or by applicants for protection. The involvement of the Supreme Court of Nauru counsel left the island, and some late Act 2012 of Nauru, against a decision that a person is not An important and positive aspect of these appeals is the sittings to enable counsel to travel back is an important and genuinely positive aspect recognised as a refugee. If an appeal succeeds, the matter is very fact that they have been provided for by the Parliament to Australia to prepare for cases there. of the situation. remitted to the Tribunal to be determined according to law. of Nauru, they are occurring, and that the independence The temperature is challenging – 31, or The Court has grappled with questions about the law of the Court, and its decisions, are respected by the 3 Paramananthan v. Minister for 32 or 33 degrees almost every day with room provided us, as a wig block for of refugee status, which all need to be determined freshly executive government of Nauru. The rule of law is therefore Immigration & Multicultural Affairs; a minimum of about 27 or 28 degrees visiting barristers.) Minister for Immigration & Multicultural in the law of Nauru, such as what is required by natural operating and respected on Nauru in the determination of by night. There is air conditioning of Whether the processing of refugee Affairs v Vijayakumar Sivarasa [1998] justice and procedural fairness in determining a refugee applications for recognition as refugees. FCA 1693 (21 December 1998), cited in the fierce industrial kind, so that in applications continues on Nauru or claim, what questions and claims must be determined Counsel of our Bar have been involved in the appeals, DWN072 v. Republic of Nauru [2016] court we needed our wigs and gowns not, the Court has already made a NRSC 18, [28] per Khan J. by the Tribunal in order to discharge its task according along with barristers and solicitors from other States. and bar jackets, and our glasses fogged permanent and important contribution to law, or in what circumstances is relocation within a The experience has been a privilege, and challenging in 4 R. v Secretary of State for the Home up when we stepped out into the fierce to the rule of law. Watch this space. Department, ex parte Bugdacay [1987] AC country reasonable and possible, such that protection in many ways, dealing with clients with various experiences equatorial sun. There are also unusual Judgments of the Supreme Court of 514, 531F per Lord Bridge of Harwich,, cited Nauru is not required. These are questions which the of deep distress. The judges as well as the lawyers have in DWN113 v. Republic of Nauru [2016] hazards – a coconut fell about 30 feet Nauru may come to be persuasive international Convention Relating to the Status of Refugees been concerned that appellants in situations of distress NRSC 18, [33] per Crulci ACJ. onto the spot where I had just walked authorities in Australian refugee law. (the Convention) poses to every jurisdiction which seeks have access to justice and are heard. There has also been This article reflect the author’s views on my way into court one morning. to determine the status of refugees. Other jurisdictions, the great experience of a close knit and hard working 1 Minister for Immigration and Ethnic and experiences and not the position I am sure that if it had connected, I Affairs v. Wu Shan Liang [1996] HCA 6; including the common law jurisdictions of the United community of the profession on Nauru, in equatorial heat. of the Government of Nauru nor the would not be writing this. (As I could (1996) 186 CLR 259, 291 per Kirby J. Kingdom, Canada, the United States and Australia, have The Court sits long hours when needed to get through the Supreme Court of Nauru. not bring the nut back to Australia 2 DWN113 v. Republic of Nauru [2016] for a number of years grappled with the concepts and work, including, so far, one sitting on a Saturday so that through quarantine, I have left it in the NRSC 18, [32] per Crulci ACJ.

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In short, it mattered to him to get to It was Ken’s deep commitment to the law, and his Celebrating Justice Hayne the right answer. Other justices often search for the right answer in every case, that made agreed in his analysis. According to news and views news him so exacting of counsel. Chief Justice French, Justice Hayne KATHLEEN FOLEY authored 412 judgments during A few years back, there was a For a start, there was a formal his time on the Court, 400 of them small dinner to celebrate Ken’s 15 application process, not just a tap on in Full Court matters.1 The Chief This is an edited extract of a speech given by Kathleen Foley he worked, but it was much more than that. I saw it in year anniversary on the High Court. the shoulder. He hired from all over Justice noted that many of those were at a dinner at the Essoign Club on 25 November 2015 to the fact that he recognised and felt the importance of Former associates came from all over the country. If you were a stand-out judgments in which other members mark the retirement of the Honourable Kenneth Hayne AC the work that was being done – both for the individuals the globe to attend, a testament to student, it didn’t matter if you came of the Court joined. QC from the High Court of Australia. involved in the litigation, but also at the broader level, the importance of those relationships from somewhere that wasn’t Sydney It was Ken’s deep commitment to enneth Madison Hayne is nothing the importance for the public interest of the questions and the regard each has for Ken. Not or Melbourne, or that your university the law, and his search for the right less than a pillar of our nation’s legal invariably at issue in High Court cases. only associates though – Ken had a was lesser known. And, unusually for answer in every case, that made him community. Most Victorian barristers For some in the law, there is a deep interest in close and loyal relationship with his the time, there was generally a 50/50 so exacting of counsel appearing in know the key features of Ken’s legal questions of pure legal principle. The facts are a bit of an chambers staff and registry staff over gender balance among his associates. cases before the Court. He would career. He came to the Bar in 1971, having annoyance, really – what is of most interest is the abstract many years. Such relationships speak As I stand here, a West Australian press counsel, dissect the argument graduated as a Rhodes scholar with a question of legal theory. For others, it is the opposite. volumes about a person. who came to the Victorian Bar on being advanced and present it back: BCL from Oxford. He took silk in 1984. He was appointed a They love a good trial, the human story behind the It also speaks volumes about Ken’s advice, I can tell you that years is this what you’re saying? And if so, justice of the Supreme Court of Victoria in 1992, and three case and the facts. For this kind of person, the law Ken that so many of his associates later those hiring practices make a K what about this? And if that is right, years later to the Court of Appeal upon its initiation. In 1997, is a bit of an annoyance. have been drawn to the Bar, both in real difference. Perhaps part of the doesn’t it mean this? Invariably this Ken was appointed to the High Court of Australia. Justice Hayne fell into neither camp. Or, rather, he is Victoria and elsewhere. In Victoria, reason Ken eschewed a parochial was accompanied by a sinking feeling Ken was a justice of the High Court for just shy of 18 one of those rare people who fall into both. He excels in Ken’s associates span the time period approach to hiring was that he was on the part of counsel. Over time, years. When one thinks of the work done by the High the highest levels of abstract legal thinking, and yet does from David Bennett and Stephen born in Gympie. Perhaps Ken was there is no doubt that Justice Hayne Court in a single year, the incredible impact of Ken’s 18 not lose sight of the fact that cases involve real people, Donaghue who came in 2000 and less concerned with an applicant’s developed a fearsome reputation years on the Court starts to dawn on you. During his time and that the course of litigation can be life-changing 2001 respectively, to Chris Tran and pedigree, because he was the first for his grilling of counsel. It might in judicial office, the man who was a formidable intellect for those caught up in it. In my observation, this led Ben Gauntlett who signed the bar roll lawyer in his family. Whatever the also be said that Sydney barristers and advocate at the Bar made his mark as a formidable Justice Hayne to develop an approach to the judicial in 2014. In a recent High Court case, reasons, his decision-making in that seemed particularly sensitive judge. Indeed, for many, it is hard to imagine the High task that had the following key features: First, he was there were no less than four former regard has been to the benefit of the about it. Court without Justice Hayne. concerned with legal process as well as legal principle. Hayne J associates at the Bar table, Bar as a whole and will continue to And yet it was clear to me that the I was Ken’s associate for just one year. That is the He understood the importance of proper process to the silk and junior counsel. be, for years to come. motivation for pressing counsel in standard period of time for an associate, and it is admittedly effective functioning of the Australian judicial system. The number of Hayne J associates It was difficult to work out how to this way was because Justice Hayne short. Nevertheless, associates have a unique opportunity to He felt keenly the responsibility of our legal system – practising at the Victorian Bar end this speech because so much more was thinking deeply about the learn about the judges for whom they work. Some of what to litigants – to adhere to a just process. is just one aspect of Ken’s deep could have been said. There are some issues, and asking the fundamental you see is interesting but not terribly useful. The fact that Secondly, he was committed to the common law as a contribution to the Bar over decades. deliberate gaps. Ken’s relationship with question – what does justice require Justice Gummow had a preference for very cute leather tradition. With this, came a love of legal history. In 2013, Over the years, Ken has remained Justice Gordon and his children are here? For him, that meant justice slippers instead of proper shoes, for example. Or that Justice Justice Hayne presided over the case of Rutledge v State closely connected to the Victorian essential parts of his life, but parts best according to law, no matter the Callinan chose to decorate his chambers in black and red of Victoria, in which Mr Rutledge challenged the validity Bar. He has given seminars in suited to a different forum and to a consequences. And he saw counsel as velvet, evoking images of a 19th century bordello. of the Victorian Constitution. There was a question about readers’ courses since he was a different kind of speech. I hope I have having a responsibility to be thinking A year as an associate provides a greater opportunity – the form the royal assent needed to take. Counsel for junior barrister. As a High Court provided some small insights, knowing as deeply about these issues as the to observe the Judge at work, and to see what you might the State, feeling clever and knowing of Justice Hayne’s justice he found the time to speak full well that no speech can truly do High Court would have to. Given learn about the Judge’s process, the Judge’s way of getting predilection for historical matters, relied upon Sir Henry to each and every readers’ course. justice to the career of Ken Hayne. the nature of the High Court’s work, into the cases and resolving them. What I observed of Jenkyns’ work, British Rule and Jurisdiction Beyond the He was a trustee of the Bar Super That career has been, and continues to thank God he pushed counsel to their Justice Hayne was, first and foremost, that he took his job Seas, published in 1902. Counsel was trumped by Justice Fund, and a member of the Bar’s be, marked not only by his intellect and limits in this way. incredibly seriously. This isn’t the same as taking oneself Hayne, who in the course of oral argument asked if Disciplinary Tribunal. tenacity, but his dedication and service. Ken’s robust interactions with incredibly seriously. The High Court is full of such people counsel had read what Alpheus Todd had to say on the In reflecting on Ken’s contribution Service to the Victorian Bar. Service to counsel did lead some to think that – and I’m really just thinking about the associates. But subject, in the 1894 edition of Parliamentary Government to the future of this profession of the Australian Bar. Service to the High working for Ken would be an equally Ken somehow recognised that one shouldn’t mistake the in the British Colonies. ours, it occurred to me how important Court of Australia and the judiciary challenging experience. In fact, Justice importance of one’s job for the importance of oneself. I Importantly, though, his commitment to the common it has been that Ken was a decade generally. Service to future generations Hayne’s chambers were a great place am sure being married to Justice Gordon played a major law did not result in a slavish adherence to tradition. He or more ahead of the game when of the profession through his teaching to work. He has the best sense of role in that – I really can’t imagine a better person to keep understood the differences in Australia’s legal system, it came to applying an equitable and mentoring of so many. For all of humour. He respected his staff. Ken’s feet planted firmly on the ground. And I know that with its unique constitutional framework. He also approach to his hiring of associates. that, and so much more, the Victorian As an associate, he was interested parenthood was another factor – he remarked to me once understood the need for the legal system to be responsive ten years ago, when I was an Bar is deeply grateful. in your views about the case – that it is hard to think too highly of yourself when your to social change, and the delicate work involved in getting associate, there were still judges at expected you to debate the issues 1. Transcript of French CJ’s remarks to child looks at you and groans “oh, Dad”. the balance right, the balance between continuity and the High Court who chose associates farewell Hayne J, ceremonial sitting with him, to seriously engage, so as The responsibility of being a justice of the High change. The commitment to the Australian legal system is according to the narrowest set of in [2015] HCATrans 105 (13 to ensure his thinking and his May 2015). Court weighed heavily upon him. I saw it in how hard something that runs incredibly deep in Ken Hayne. criteria. Justice Hayne was different. reasoning was tested.

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In 1974, David and Norma were David uses his skills and database organisation in a Relocating David Levin QC married at Churchill College, Cambridge. 1977 marked the birth frighteningly effective manner. news and views news of David’s first child, his beloved JOHN DIGBY daughter Rachel – born at Cambridge. of computers. David Levin was, Citylink legislation. He has also Daniel and Kirra were born later in however, not the first to employ new been retained in many other expert Melbourne. Shortly after Rachel’s forms of information transfer. David appointments. David has often been This is an edited version of a speech delivered by in due course an MA. In 1971, David met a delightful birth, David and Norma decided to Levin was from the “get-go” at the the Court’s preferred mediator in the Justice John Digby at a dinner at the Essoign Club on 25 Australian girl, Norma Webb, at what the Poms called emigrate to Australia. There followed forefront of the forensic utilisation of Victorian Supreme Court and Federal August 2016 “Kangaroo Valley” - Earls Court. a memorable interview at Australia computers at the Bar. From about the Court proceedings. t is a pleasure and an honour to say In 1972, David took his final Bar exams and was called House where the first question from early 80s, David’s chambers sported a He has presented and published something about my friend of almost four to the Utter Bar of the Middle Temple in London. The the interviewer, (who knew David Compaq, which was about the size of many papers, including regularly decades, David Samuel Levin QC. David, has aspiring barrister’s Master was FE Beezley, later a Crown was married to an Australian lass and a small washing machine. undertaking seminars as part of the practised as a barrister at the Victorian Bar Court Judge, and the cost of his pupillage in the Middle therefore had a clear entitlement to David’s mastery of the circuit Bar readers’ course. for some 44 years, 19 of those years as silk. Temple was 1000 guineas. David was keen to join the live in Australia), was “Why do you board, computer chip, floppy disc My professional experience Dinners such as this are seldom arranged peloton of competing young barristers in Cambridge. want to emigrate to Australia?”, to and Internet is deployed with great opposed to David always brought at the Victorian Bar. That such an event is taking place By 1973, David had set up Cambridge’s first which David haughtily replied “to effect and to his client’s considerable home to me what Victorian barristers tonight, and is so well attended, speaks unequivocally independent chambers, at 92 Regent Street, with learn the language”. The interview benefit. To brief David Levin was to and solicitors well knew. He is an of the respect and affection so many at this Bar, and in two fellow Cambridge undergraduates and a London went downhill from there. But by retain a first class barrister and get incredibly hard working and capable Melbourne’s legal profession, have for David. University lawyer. Their beginnings were humble. On August 1977 the Levins had reached a lot more “bang for your buck” as barrister, who had always mastered It also seldom occurs that Victorian barristers issue the first day the four fledgling lawyers occupied their I these shores. a result of his ability to utilise the his brief and developed that extra “Press Release” like statements. Levin however, in effect, new chambers, they were profoundly unfurnished – the David signed the Victorian Bar Roll powers of these devices. edge with his use of technology. did so in respect of this event. I expect that his objective young tenants literally sat on the floor and discussed on 10 November 1977 – as the sole David, from the outset of his time In every case David had all the was to convey with precision the import of this dinner. their future and how on earth they were going to pay inducted member on that occasion. at the Victorian Bar, was a great documents, issues, and his arguments In this regard, David authorised the following statement their clerk’s guaranteed salary. David is no doubt proudly David read with John Larkins, later contributor to the Bar. in a spreadsheet type database to be published: aware that Fenners Chambers are very much alive and John Larkins QC. I was fortunate He took six readers: Dr Peter readily accessible, cross-referenced, are now operating at 3 Madingley Road, Cambridge, with David has established salubrious chambers at home in enough to read with John Larkins, as Freckleton, James Peters (now footnotable, hyperlinkable, etc. As 54 barristers. Clifton Hill and intends to practice more as an arbitrator his next pupillage after Levin. QC and former President of the his opponents and supporters know, It is well to recount a fact or two about David in his and mediator and less as a litigator so as to enable him David’s journey at the Victorian Victorian Bar), Timothy Secull, David uses his skills and database Cambridge days, because they provide something of to spend more time with his wife, Norma and family, fund Bar was a happy one from the outset. Peter Sest (now QC), Sean Hardy organisation in a frighteningly a contrast between the David there and the David we raising and, of course … cycling. His engaging and friendly manner and Michael Wise. effective manner. know. First, it is said there was a time before David was immediately won him friends, and David was a director of Barristers’ David is never rude or churlish. Note please that there is no mention of the “R” word. besotted with bicycles, and when he was from time to his intellect and diligence ensured Chambers Limited for seven years. He never gossips. He always treats David, I am told, exhibits a neurotic reaction if ever the time (apparently) something of a swiller. that before long there were plenty For nine years, he was a director his juniors with great respect and “R” word is mentioned in relation to him. David’s colonial persona is so clean living and of briefs. of Bar Fund Pty Ltd, the trustee of gives them opportunities to develop. You will have noted that the invitation for this evening disciplined: most of us have been exposed to his penchant From his earliest days in the Bar’s superannuation fund. He David has been unfailingly adroit described David as “the Wig on Wheels”. In 2003, David for gluten free salad wraps washed down with a chilled Melbourne, David and Noel Magee, was a member of the Bar’s Dispute in all he has done as a barrister convened an interest group at the Victorian Bar known 2016 naturally aerated, low sodium mineral water. now of course Noel Magee QC, Resolution Committee for nine and, although a tough opponent, as the Wigs on Wheels (formally, the Victorian Bench He is the only barrister I have known to take his own formed a friendship. Noel Magee who years and chairman for two years. always generous and fair. In Court and Bar Bicycle Users Group). This group has, over 13 sandwiches to a Bar Dinner. Things were apparently is, as some of you may know, a skilled Between 1997 and 2008, David was you have to put up with his ultra- years, held a number of “Lycra Breakfasts” at the Essoign somewhat different in the old country. At Fenners carpenter, renovated the kitchen in a member of the Legal Profession efficient, heavy persona before the Club, ride to work days and longer rides in the Victorian Chambers, David was heavily bearded and known to his the Levin’s first Melbourne home. Tribunal. He served on the Victorian Court. However, as soon as you countryside. colleagues as “Sammy”. He was prominent in the Fenners Noel and David were responsible Bar Supreme Court Building Cases leave Court, David lets out a laugh David is very much a MAMIL (a Middle Aged Man in Chambers sporting activities including rowing in the for instigating the Victorian Bar’s List Users’ Group. Between 2003 and throws his head back with that Lycra). The everyman’s Macquarie Dictionary defines a Chambers XIII, dubbed the “Legal Eagles”. David stroked Children’s Christmas Party in the and 2006, David was the president smile that resembles the gates of MAMIL as, particularly, a middle aged man who rides an the crew. Botanical Gardens. of the Victorian Society for Luna Park. expensive racing bicycle for leisure, wearing professional At least one of David’s propensities at that time can be David’s early practice at the Computers and the Law, and before David also has an outstanding style body-hugging bicycle jerseys, bicycle shorts and inferred from the rowing top he can be seen wearing in a Victorian Bar was diversified. that, its treasurer from 1998 to 2003. singing voice, which comes out of other adornments. number of photographs taken in the 70s. David’s rowing He practied in the bankruptcy David is a member of prestigious that relatively modest frame with the David was born in London in 1950. He soon shed his singlet reads “Cheers Charles”, the explanation of which jurisdiction, across many commercial chartered institutes of arbitrators volume and power you would expect trainer wheels and, after an adolescence so virtuous it has is that David’s crew was sponsored by a local brewery, areas and more and more so in and accredited mediators. from Demis Roussos. contributed nothing to this speech, David’s application, “Charles Wells”. This came to pass because the brewery construction and engineering law, He has acted as an expert including David is the paragon of a good drive and intellect ensured that he was destined for a first had singled David and his crew out as paragons of good an area in which he has become in relation to the Western Link of barrister and, a great chap. We all class tertiary education. custom, that is, they drank volumes of “Charles Wells” a well-recognised leader. the Citylink Project – expressly wish him many more happy miles By 1971, David had graduated in Economics and Law beer and, I understand, were given a case of beer every David has contributed greatly to nominated as an expert pursuant ahead and hope we regularly see from Cambridge University. David took a BA (Hons) and time they competed. the Bar in the area of forensic use to the provisions of the Melbourne his bicycle in the BCL cycle park.

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Galimberti also learned since the 1860s. He was a chest from 30 yards away. He felt that, using players from founding member of the “Save aggrieved when the VFL outlawed Footscray and Fitzroy, the the Dogs” committee, which this mode of disposal. news and views news VFL planned to create was formed to keep the team »» In about 1986, Ginnane and a new team called the at the Western Oval. His father, Robertson began joining Vassie “Fitzroy Bulldogs”. Ron Palmer, is a life member each weekend to support the Dogs. Galimberti took swift of the Club – he was the team All three subjected themselves action, calling journalists at 3AW and manager of the Thirds in 1954; and for repeatedly to the ritual pain and The Sun. On 3 October 1989, The Sun many years he was the Senior team’s suffering that came with being a published a front-page piece titled official timekeeper. Another relative, Dogs supporter. Judge Ross Howie “VFL clubs to merge: Bulldogs and Ambrose Palmer, was an Australian sometimes joined them.2 At home Lions Linked in Footy Shock”. boxing legend who played 83 games games, they stood on the terrace Over the next day or so, supporters for the Footscray Seniors in the 1930s at the Barkly Street end. They began to gather at the Western Oval and 1940s. cheered on-field acts of courage headquarters of the Club. Stephen There would be no fees for the and doggedness; but there were no Palmer was one of these supporters. barristers, although the matter glory-days. At that time, he was a keen Dogs fan required considerable commitment Initially, for the legal team, it was not and young solicitor at the City-based in terms of time and effort. So, why entirely clear what had happened. law firm Rogers & Gaylard. On 3 take on the brief? Each barrister was Galimberti had no details of the October 1989, Palmer heard a 3AW a life-long Dogs supporter; and each merger plan; and, not surprisingly, radio interview in which Fitzroy’s one had long and deep connections the League had not published any. President, Leon Wiegard, said that with the Club and the suburb of Moreover, it was not clear who was Footscray should accept the merger Footscray. controlling the Club. The legal team as a “done deal”. Palmer was not »» Justice Ginnane grew up in thought that an administrator had impressed. He went down to the Footscray. His Honour’s late father, taken control of the Club’s assets. The Western Oval, helping Peter Gordon John Ginnane, was a legendary lawyers developed an argument that, and Denis Galimberti formulate solicitor in Footscray for more under the terms of the VFL licence, a plan of action. The following than 35 years before joining the the VFL was required to give the Club occurred: Victorian Bar. 30 days’ notice of the merger plan. Western Bulldogs: Premier »» Gordon accepted Palmer’s »» Robertson’s great uncle, Joe Marmo, At about 3pm on Thursday 5 suggestion to commence legal had played in three VFA flag- October 1989, the barristers and proceedings challenging the winning teams. His father, Roy their client went to the Supreme lawyers behind the scenes authority of the VFL to carry out Robertson, played for the Footscray Court of Victoria. They went into the proposed merger. Seconds in the 1930s. Court 15. The lawyers wanted an »» Bravely, Irene Chatfield put up her »» Vassie had been watching the Dogs, injunction stopping the VFL and ROBERT HEATH hand to act as the plaintiff. The risk week in, week out, for many years. the VFL-appointed directors from of an adverse costs order makes it Indeed, along with Robertson, he implementing the merger plan. ohn Harms writes very well. After the Footy is also about suffering and suffering can be uplifting. a big ask for anyone to take on that saw E.J. Whitten use his famous A small group of supporters followed drought-breaking grand final victory, Suffering is the natural state. It is honest. And how we respond role. She was an invalid pensioner “flick pass” to hit Johnny Jillard’s the lawyers and Irene Chatfield into at a club supporters’ function, the to that suffering is elemental. Suffering can bring us together whose commitment to the Club coach of the Western Bulldogs, and only when we understand the suffering of others can we was legendary. She wore a long, Palmer and Robertson, Western Oval, Footscray, 7 October 1989 , read the following understand the fullness of joy. home-knitted scarf to which she passage from John’s book “Play On had pinned hundreds of badges At approximately 4.30pm on 1 October 2016, thousands (a Sporting Omnibus)”:1 depicting Footscray players (“my of Bulldogs supporters experienced the fullness of joy boys”). JFooty is about these things. It confirms your suspicions that about which John Harms wrote. The members of the »» Palmer persuaded the partners of there is something more. It alerts you to the existence of the “Footscray Fightback” legal team – Justice Ginnane, Rogers & Gaylard to act for Irene soul. It invites you to be faithful and loyal. It demands you be Graham Robertson, Stephen Palmer and Alan Vassie – Chatfield on a pro bono basis. faithful and loyal. And just when you are doubting it you see experienced that same fullness of joy when the final siren »» Gordon and Palmer put together a game which makes you realise why you are so enthusiastic sounded. Shared pain had given way to mutual joy; and the team of barristers – Ginnane, about it. that joy was intensely sweet given the nature and extent Robertson and Vassie, each of of the Club’s problems in early October 1989. You see courage, you see commitment, you see personal whom received a brief from Rogers In 1989, Dennis Galimberti was Footscray’s CEO. On sacrifice, you see skill and you see beauty and you are uplifted. & Gaylard to advise and appear, 2 October 1989, at the Best & Fairest award night, a Footy is one of the few places in contemporary life where you also on a pro bono basis. director told him that the VFL was planning to terminate experience the transcendent. Palmer was a committed Footscray fan Footscray’s licence to participate in the competition. – his family had lived in the suburb

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»» Ginnane and Robertson were present at the euphoric meeting of Club members to elect a new board. news and views news Ginnane acted as chairman of the meeting. Fortunately, amidst the celebrations, Robertson or Palmer remembered to put up the necessary resolutions to replace the VFL- appointed directors and rescind the initial merger resolution.9 The Club survived – thanks, in part, court. The lawyers had to act quickly power to transfer Hawkins, Libba and to the efforts of the lawyers and their All Safir wants because the VFL had begun to others to another club. client. Paradoxically, that triumph in implement the merger plan. On the following day, his Honour late 1989 opened the way for further Justice Ken Marks was sitting in encouraged the parties to talk, shared suffering, including Preliminary for Christmas is Court 15. His Honour was a wise, accepting that the Club should Final losses in 1997 and 2009. careful judge. He was also decisive; perhaps have some time to pay its Robertson, Vassie, Ginnane, Palmer and his sense of right and wrong debts. Eventually, the parties agreed and Chatfield endured that suffering. was informed by a set of diverse life that the hearing should be adjourned They understood its significance. It 3 freedom and safety. experiences. Ginnane argued the to late October. Critically, the VFL brought them together, along with 30 days’ notice point. Robertson was agreed not to pursue the merger other Dogs supporters. Ultimately, it Ginnane’s junior for this hearing.4 until that date. Irene Chatfield had enabled each one to experience the One of the League’s barristers, Tony obtained a reprieve for the Club; and, fullness of joy on the sounding of the Nolan, came into the courtroom. in the words of Club historians, that final siren of the 2016 Grand Final. Justice Marks offered the parties 24 reprieve “unleashed an extraordinary Yes, Harms is right – in football, hours to present further evidence. communal energy”.5 The rest is “You see courage, you see commitment, Having received an undertaking from history, of course. you see personal sacrifice, you see Nolan that the League would put As to the events following the skill”. In the events of early October Cancer Charity Ad the merger on hold until 4.15pm the hearings, some additional matters 1989 one sees like qualities in the next day, His Honour adjourned the should be recorded: lawyers and their client. hearing to the following morning. »» Ginnane, Palmer and Robertson did 1 John Harms, Play On (a Sporting By this stage, Stephen Palmer had not stop working to save the Club. Omnibus), Text Publishing Co, 2003 done some investigative work. He On Sunday 7 October 1989, along 2 For many years, Judge Howie’s father sat discovered a few important things: with thousands of other Dogs fans, as a Magistrate in Footscray. Stand up for fairness and decency. Your donation today »» After the Club’s directors had they attended the famous “Fight 3 Ken Marks, In Off the Red, Black Inc. resigned, the League had put Back” rally at the Western Oval.6 Books, 2006 – Melbourne Grammar boy, creates powerful change for people seeking asylum. forward three new directors. Over $400,000 was raised that day.7 Lancaster bomber pilot, member of the Australian Communist party (briefly), »» Under the Club’s constitution, only »» A week or so later, Ginnane, and a top QC. For years, Safir* has waited on the decision Building a new life in limbo is like swimming members of the Club were eligible Palmer and Robertson attended 4 Alan Vassie joined them at the Bar table that will change his life forever. Will he get against the tide. Safir just needs someone to serve as directors. Palmer the fundraising concert at Hamer on the following day. believed that the new directors Hall in the Arts Centre. One of the protection or be sent back to the country to stand with him, and believe in him. 5 John Lack, Chris McConville, Michael were not members of the Club. jazz bands featured a trumpeter he fled? Small and Damien Wright, A History of Your support helps the Asylum Seeker »» Also, two thirds of the Club’s named Jonathan Beach – a Wynton Footscray Football Club: Unleashed, p. 258 directors had to be directors of the Marsalis fan, a regular at Sunday A medical professional, he was targeted Resource Centre (ASRC)—Australia’s largest company running the Footscray afternoon jam sessions at the 6 After the hearing on the Friday by extremist groups in his home country. independent human rights organisation for afternoon, at an impromptu press Tankerville Arms, and a future social club. Palmer didn’t think that conference, Galimberti urged Dogs fans But the government’s unfair policies mean people seeking asylum—fight for a better, the new directors were directors of Justice of the Federal Court of to attend this rally. Over 10,000 people there is no guarantee of safety in a system safer future for Safir and thousands of heeded this call. that company. Australia. that seems set up for people like Safir others just like him. »» Finally, the new directors had »» In late October 1989, after the Club 7 Footscray supporters purchased

stickers, one of which read “Up Yours the man by This is the name chosen his story with us. shared who bravely Landy Kim by Photo to fail. told the players that their playing had raised sufficient funds to stay in * #TheirStoryOurStory Oakley!” contracts had been transferred to business, Gordon and Lynne Kosky the Ltd. met with the League bosses to regain 8 Kerrie Gordon and Alan Dalton, Too Tough to Die, p. 131 On the strength of these matters, the control of the Club’s VFL licence. team came up with a new argument Ginnane was on hand to provide 9 The minutes of the meeting show that Palmer proposed the resolution A donation of $200 can provide 2 weeks of safe housing. – if the appointment of each new advice, if necessary, concerning the appointing the new directors to the Donate now at www.asrc.org.au/bar or call 1300 DONATE. director was invalid, they had no status of that licence.8 board of the Club.

46 VBN for Customs and Excise. He was a very active but his dissenting judgment, later vindicated by events sometimes controversial Attorney-General; his principal demonstrating her innocence, is highly persuasive. achievement (among many) was the passage of the

Family Law Act and, always a strong advocate of civil The National Times allegations bar lore liberties and human rights, he also drew up a Human On 25 November 1983 The National Times newspaper BAR Rights Bill and set up the Law Reform Commission and published a story7 that in February 1980 police had bar lore the Trade Practices Act 1974, which established the Trade commenced a crime intelligence operation against a Practices Commission. His reputation for eccentricity Sydney solicitor reputed to be a “Mr Fixit” for organised and radicalism was enhanced by his raid on ASIO’s crime in Australia. It was alleged that the solicitor’s Melbourne headquarters in March 1973, which attracted telephone had been bugged in 1980 in circumstances Lore hostility and Murphy had to answer to an aggressive where the solicitor was said to have “fixed” the outcome Senate Committee. Another of his significant reforms of a court case involving an international drug trafficker. was the establishment of a systematic legal aid service The solicitor’s conversations were said to have included for all courts. conversations with a New South Wales magistrate and a judge. The conversations indicated amongst other things The 1986 Appointment to the High Court that the solicitor and senior public officials were involved Sir died on 29 November 1974, and on in fixing judicial proceedings. 10 February 1975 Lionel Murphy was appointed in his Parliamentary place. He was unquestionably a highly regarded lawyer, The Age tapes but his appointment was very controversial. Sir Garfield On 2 February 1984 The Age newspaper in Melbourne Barwick, then Chief Justice, told Whitlam that Murphy published a story8 alleging that it had obtained access to Commission into was “neither competent nor suitable for the position”.2 various secret tapes containing excerpts of transcripts Whitlam wanted a judge better disposed to Labor than of telephone conversations illegally taped by the New the other members of the High Court at that time, most South Wales police. Under lurid headlines such as “Secret The conduct of of whom he would have regarded as very conservative. tapes of judge, Sydney solicitor’s phone was tapped” and When Justice Murphy visited the chambers of his “Phone taps reveal crime web”, it was alleged that an predecessor, he said of the volumes of British law reports unnamed judge was taped during telephone calls to the Justice Lionel which filled those shelves, “I want all these to go” and solicitor’s office in 1979 and 1980. It was alleged that the replaced them with reports of the United States Supreme judge had promised to ask a prominent New South Wales Court.3 His entry in the Australian Dictionary government figure to help secure a public service job for Keith Murphy1 of Biography4 says of Murphy – a man connected with the solicitor; and that the judge had rung back to say that the job had been lined up. Then, on “From 1975 to 1985 Murphy took part in 632 decisions, 6 March 1984 the judge was named in the Queensland dissenting in 137, and writing opinions or short statements in STEPHEN CHARLES Parliament as being Justice Murphy9, and the solicitor as 404 cases. His distinctive judicial method, in a relatively Morgan Ryan. Ryan was in 1982 facing charges of forgery conservative court, was of overt legal realism. Dismissive and conspiracy, and was alleged to be a friend of Justice Editors’ note: The Honourable Stephen Charles was an of the rules of precedent and the more arcane, forensic Murphy, having briefed him while he was still at the bar. inaugural member of the Victorian Court of Appeal from techniques of appellate reasoning, he preferred the bold Justice Murphy later denied that Ryan was a close friend 1995 to 2006. In 1986, he was senior counsel assisting the law-making approach of American judges, such as William of his, in an unsworn statement in his second trial. Commonwealth Parliamentary Commission of Inquiry in O. Douglas: broad statements of underlying principles, liberal relation to Justice Murphy. His obvservations in this article assumptions of constitutional implications, and an appeal to The first Senate Committee are based on public information and do not disclose matters democratic ideals and the nature of the society that operated A Senate Committee was established on 28 March 1984, its of which disclosure is prohibited by the Parliamentary the Constitution. Murphy’s judgments were brief and to the task being to discover whether The Age tapes were authentic Commission Repeal Act 1986 (Cth). point and drew upon a wider spectrum of non-legal sources than and genuine and if so, whether Justice Murphy’s conduct judges were accustomed to use. Adventurous and innovative, he ionel Murphy was, from the outset, a very involved misbehaviour which could provide grounds for pleased those who shared his views, while others saw him as the successful lawyer, but his first degree was his removal from office under s.72 of the Constitution. The epitome of a lawless judge. He went wigless, except on the most a Bachelor of Science with Honours in inquiry heard evidence from the Chief Magistrate of New ceremonial occasions.” Organic Chemistry. He followed this with an South Wales, Mr Clarence (Clarrie) Briese and the New Honours Degree in Law. He was admitted to Notwithstanding his rather hostile reception as a South Wales District Court Judge Flannery about what they the New South Wales Bar in 1947 and rapidly judge of the High Court, Justice Murphy became an alleged were improper attempts by the judge to influence established himself as a labour/industrial lawyer. He took important contributor to the High Court’s interpretation them in respect of the criminal charges faced by Morgan silk in 1960, and was elected to the Senate in 1961. He of the Constitution, as exemplified by his approach Ryan. The first Senate Committee, which consisted of Lbecame Opposition Leader in the Senate in 1967. to ss. 90 and 92 in judgments such as Buck v Bavone.5 Labor Senators Michael Tate, Nick Bolkus and Rosemary In 1969 Gough Whitlam appointed him Shadow He was also a profound believer in the jury system. In Crowley, Liberal Senators Austin Lewis and Peter Durack Attorney-General and, when Labor won the 1972 election, Lindy Chamberlain’s appeal against her conviction6 and Democrat Senator Don Chipp all agreed that, in effect, he was appointed Attorney-General and Minister Justice Murphy was in the minority with Deane J, and nothing could be made of the conversations on the tapes

48 VBN VBN 49 and that the tapes and transcripts strong terms. According to Briese, shattered”. Briese then suggested again informed the Committee that charges of attempting to pervert the On 3 September 1985 Justice gave no basis for any possible finding the judge then said to him “and I will there were two possible ways that the judge would refuse to appear. course of justice, based on the Briese Murphy was sentenced to 18 months of misbehaviour by Justice Murphy. tell you about another wrong case Ryan had of getting around the After hearing all the evidence, and Flannery allegations. Justice imprisonment. After referring to

This conclusion was vindicated when of conspiracy too and this is against problem, he could either persuade Commissioner Wickham took the Murphy was committed for trial on the evidence in glowing terms of his bar lore the tapes were referred later to the Morgan Ryan”. Justice Murphy then the magistrate not to commit him, view that the Briese allegation of both charges on 26 April 1985. This honesty, integrity, good character and Stewart Royal Commission which, in criticised the Crown for its habit of or he could apply for a “No Bill”. an attempt to pervert the course was the first occasion that a justice reputation, and his public service to bar lore its report made a finding that although “tossing in a conspiracy charge if a Several days later Justice Murphy of justice was proved beyond a of the High Court had ever faced the community Cantor J continued – 16 the transcripts were “authentic” in the case is not very strong”. Briese said again rang Briese and Briese says reasonable doubt. On the other criminal charges. He continued to sit “After most anxious consideration I sense that they really did emanate he had the impression from the judge the judge then said to him “and now hand Commissioner Connor said during February 1985, but did not sit have firmly reached the conclusion that from the NSW Police Force, The Age that he had heard the evidence and what about my little mate?” He was no such proof was possible and from the beginning of March 1985, it would not be proper for me to allow transcripts could not be accepted as thought that the case was very weak. adamant that the question was asked that if “misbehaviour” in s.72 of leaving the Court to dispose of its these significant subjective factors reliable evidence of conversations. Briese did not suggest that Justice with such emphasis as to suggest the Constitution meant criminality, business with only six judges. to displace the need for a custodial Justice Murphy did not give evidence. Murphy asked him to speak with a link between the inquiry and the Parliament could not find Justice He made a written statement to sentence. The failure by me to impose The Committee’s deliberations the magistrate hearing the Morgan preceding conversation. Murphy guilty of “misbehaviour”; the committal, which was published such a sentence would amount to ended in an equal division, the Labor Ryan case, nevertheless Briese Briese was cross examined by Justice on the other hand, Commissioner by the Sydney Morning Herald,14 the countenancing by a member of members finding that even on a said he would make some inquiries Murphy’s counsel, and although Connor observed “in four years as a it commenced – the judiciary of conduct by a judge balance of probabilities the evidence about the matter to see what the the judge did not give evidence to bench clerk to Victorian magistrates, “I am completely innocent. I am angry which strikes at the very foundation of Mr Briese did not establish a situation was. Briese said that he the committee, his version of these in 23 years at the Victorian Bar, in at these false charges. I did not attempt of our system of impartial justice. The prima facie case of misbehaviour by did so because he felt that he was events, in which he denied a number 10 years on the Supreme Court of to pervert the course of justice. To do conviction of a judge for such an offence the judge, the two Liberal members under pressure to take some action of the assertions made by Briese, was the ACT, and in six years on the so would be a betrayal of what I have must result in a penalty which reflects holding that there was a prima facie in relation to the case because of the put to him (Briese) by the judge’s Federal Court of Australia I have not fought for all my life.” the abhorrence and disapproval of this case of misbehaviour, and Senator possibility of some wrong happening counsel. In particular, the judge encountered anything comparable court and of all right thinking members Chipp being unable to reach any in his court. Before the judge left denied that in the first call he said he (with Murphy’s behaviour). It would Justice Murphy also took legal steps of the community, and, at the same finding without hearing evidence Briese’s house, Briese claims that had a matter he would like to discuss be unfortunate if Parliament or the seeking to overturn the decision of time, stand as a dreadful warning to from the judge. Justice Murphy told him that he but not on the telephone, saying public were to gain the impression the magistrate to commit him to trial. all who might similarly transgress. might be able to do something about that he explained the call as being that it was accepted or normal The application for judicial review The evidence of Clarrie The commission of this crime has done obtaining an official government car in response to several messages he judicial behaviour.”11 He said the was heard by Toohey J in the Federal 10 a terrible injury to the administration Briese for his use. Shortly after this visit had received from Briese reminding judge was “lending the prestige of Court and dismissed on 29 May 1985. of justice and in the minds of many has Mr Briese first met Justice Murphy by the judge, Mr Briese asked the him of his standing invitation to his high office to an attempt to gain The trial commenced on 5 June adversely affected and raised doubts at a dinner at the home of Morgan magistrate hearing the case about return his hospitality. Justice Murphy on behalf of an old friend some 1985 before Justice Cantor. The as to the integrity and standing of Ryan on 10 May 1979, the dinner the strength of the evidence against denied that he said that there was information which neither he nor his prosecutor was Q.C. and every judge in this country.” also including Murray Farquhar, then Morgan Ryan, and was told that another wrong case of conspiracy friend should have had”.12 Tom Hughes Q.C. represented Justice the Chief Stipendiary Magistrate there was enough for a prima facie and that being against Morgan Ryan, Senator Bolkus held to the view Murphy. The facts alleged against the The hearing of the appeal of New South Wales, and Mervyn case although it was not that strong. claiming that Briese first mentioned he had taken in the first Senate judge followed generally those set out The appeal was heard by the Court Boyd, then NSW Commissioner of Briese did not tell the magistrate that the Morgan Ryan case. Justice Committee. The other three Senators above in the paragraph headed The of Appeal and Court of Criminal Police. Mr Briese and Justice Murphy any inquiries had been made of him Murphy denied that he offered to however and the two Commissioners Briese Allegations. Justice Murphy Appeal of NSW, sitting jointly (because met again on several occasions at a about the matter and emphasised obtain a government car for Briese, found that on the balance of gave evidence on oath and was questions of law reserved by the Sydney restaurant, at the High Court to the magistrate that the case was and denied that he rang Briese probabilities, Justice Murphy could cross-examined by Mr Callinan. trial judge had been referred by the and at Justice Murphy’s Canberra one entirely for his judgment. A few to ask about the inquiries he had have been guilty of behaviour serious He was later acquitted on the High Court to the Court of Appeal home over a period 1980 to 1981. days later, Briese said he received made about the Ryan case. Justice enough to warrant his removal count relating to Judge Flannery, and criminal issues were involved) Early in 1982, Mr Briese received a another telephone call from the Murphy also denied that he used the from the High Court. As Professor but convicted on 5 July 1985 on the on six days in November, and on telephone call at his home from the judge who asked him about the expression “my little mate”. Blackshield13 put it, “four of the six count which alleged that between 28 November the Court quashed judge who, according to Briese, said inquiries he had promised to make participants in the second Senate 1 December 1981 and 29 January The second Senate the conviction and sentence. The he had a matter which he would like about the Ryan case. Briese asked Committee had found that Murphy 1982, whilst a justice of the High Court held that the trial judge had to discuss but not on the telephone. Justice Murphy whether he would be committee could not be guilty of any criminal Court of Australia he attempted to misdirected the jury on the use that Briese said that in response to the attending the reception at the State A second Senate Committee inquiry offence. But five of the six participants pervert the course of justice in that could be made by them of evidence call from the judge he invited the office block that evening and told was commenced on 6 September had found that he could be guilty of he attempted “to influence Clarence of good character and on the standard latter and his wife to dinner with him the judge he would see him there. 1984. The Senators once again “misbehaviour” in the constitutional Raymond Briese, chairman of the of proof with regard to motive and also and his wife at their home in Sydney. At the reception Briese told Justice were Senators Michael Tate, Nick sense: that is that it would be possible bench of stipendiary magistrates in in the rejection of certain evidence of Before dinner was served, and while Murphy that it was his impression Bolkus and Austin Lewis, and in for Parliament to take that view.” the said State to cause Kevin Jones, conversations between Justice Murphy Mrs Briese was preparing the meal, that the magistrate seemed to have a place of Senator Chipp, Senator a stipendiary magistrate in the and his wife and Justice Murphy and the judge, his wife and Briese had different view of the Ryan case from Janine Haines. These Senators were The first trial said State, to act otherwise than in his secretary. A new trial was ordered.17 a discussion in the lounge room. the judge and it was his guess that assisted by two former judges, John The Director of Public Prosecutions, accordance with his duty in respect of Briese said the judge then raised Ryan would probably be committed Wickham from Western Australia and Ian Temby Q.C. then recommended the hearing of committal proceedings Neville Wran’s contempt the question of a social security for trial. Briese said Justice Murphy Xavier Connor, from the A.C.T. and on 21 November 1984 that Justice against one Morgan John Ryan of On the day that Justice Murphy’s conspiracy case, and criticised it in responded “the little fellow will be Victoria. Justice Murphy’s counsel Murphy should be prosecuted on two charges of conspiracy ….”15 appeal was successful, Mr Wran,

50 VBN VBN 51 The acquittal of Justice Murphy did not end cases for Ryan’s firm when he was at Government decided to set up a whether there be misbehaviour rests retired judges, the Hon. Sir George newspaper comment about his actions... the Bar, but he was never indebted Parliamentary Commission of Inquiry with the grantor, subject of course, Lush, the Hon. Sir Richard Blackburn to him and they were not close to inquire and advise the Parliament to any proceedings on the part of OBE and the Hon. Andrew Wells Q.C.

friends. Justice Murphy said he had whether any conduct of Justice the removed officer. In the case of The Act required the Commission bar lore then the Premier of New South of the charges alleged, in effect, that approached the Chief Judge of the Murphy had been such as to amount misconduct outside the duties of his to conduct its hearings in private Wales, agreed to give an interview Mr Wran either intended to use or was District Court, Judge Staunton, and in its opinion to proved misbehaviour office, the misbehaviour must be unless special circumstances bar lore at the request of some reporters. reckless and indifferent in using words asked him whether Ryan could get within the meaning of s.72 of the established by a previous conviction required a public hearing and to A transcript18 showed the following – that would interfere with or prejudice an early trial, and said of this that “To Constitution. by a jury.” report by 30 September 1986. Mark the course of justice, or influence my mind this was perfectly proper, all Section 72 (ii) relevantly provides Weinberg, Alan Robertson and I were “Q. Mr Wran what comments do you have Todd’s statement had been in potential jurors to acquit the accused, it would mean was that he would be that the Justices of the High Court appointed as counsel assisting the today on the re-trial of Lionel Murphy? substance repeated and approved or his conduct in so speaking was dealt with according to law as soon and of the other courts created by Commission, and Counsel acting for in many textbooks, (e.g. all editions A. I was very satisfied with the Court of likely to have that effect. as possible.” The only witness called the Parliament shall not be removed Justice Murphy were Roger Gyles of Halsbury’s Laws of England). The Appeal decision. I agree that there The Premier’s words, for the defence was Justice Murphy’s except by the Governor-General in Q.C., Marcus Einfeld Q.C. and Dr principal text on the Australian was a clear miscarriage of justice and notwithstanding that there were secretary, Ms Rhonda Shields. The Council, on an address from both Annabelle Bennett.26 Constitution,24 also cited and I think the sooner the final step in plenty of others asserting that Justice Judge was acquitted on 28 April 1986. Houses of the Parliament in the same apparently approved it. At least three what’s been a very very prolonged Murphy was innocent of the charges session, praying for such removal The first challenge to the The Decision to set up a senior silks had given advice in the and sad affair is taken the better. amounted to a clear contempt of on the ground of “misbehaviour or context of the allegations against Parliamentary Commission court.19 The NSW Court of Criminal Parliamentary Commission incapacity”. In 1986 there was little Q. So you’re convinced he’ll be found Judge Murphy, one of the judge’s Justice Murphy immediately applied Appeal was most unimpressed that of Inquiry or no direct authority on the meaning innocent after this re-trial? counsel, David Bennett Q.C. having to the High Court seeking an the Premier, a Q.C. and politician The acquittal of Justice Murphy did of these words. The leading authority advised in support of the narrowest interlocutory injunction to prevent A. I have a very deep conviction that of long experience of the law and not end newspaper comment about on parliamentary government at view of “proved misbehaviour” to the the Commission from sitting on the Mr Justice Murphy is innocent of politics, should have held a press his actions, and other allegations the time was Dr Alpheus Todd,23 effect that private misconduct falling grounds that it did not authorise any wrongdoing. conference to proclaim Justice about allegedly inappropriate who wrote – short of a criminal offence could any investigation to be made of him Murphy’s innocence, immediately behaviour on his part were raised Q. What do you base that conviction on? “Before entering upon an examination never amount to “misbehaviour” and and that Mr Wells was disqualified after the announcement of the in the press. There remained the of the Parliamentary method of that in addition it could not amount from taking part in the inquiry.27 A. My knowledge of Mr Justice Murphy and success of his appeal and the question whether it had been procedure for the removal of a judge to “proved misbehaviour” in the Shortly after “The Age tapes” had the facts as they emerged in that case. decision to retry him, and fined him appropriate for him to comment under the Act of Settlement, it will be absence of a criminal conviction in been published, the Chairman of the $25,000. Nationwide News Pty Ltd, to the Chief Magistrate about the After some intervening questions the necessary to inquire into the precise a court. The first Senate Committee Australian Law Reform Commission, the publishers of the Sydney Daily strength of the case against Ryan interview continued. legal effect of their tenure of office had been advised by Bill Pincus Q.C. Justice , had been Telegraph, which had published the when the matter was being heard “during good behaviour”, and the remedy in terms which supported giving reported as saying that the discussion Q. Mr Wran … why do you think the jury Premier’s remarks under banner in the Magistrate’s Court. Professor already existing, and which may be each House of Parliament freedom between the solicitor and Justice found Lionel Murphy guilty? headlines, was fined $200,000. Blackshield later accepted (as resorted to by the Crown, in the event of to decide what private misconduct Murphy about the appointment previously noted) that five of the six A. Well I think the Court of Appeal has misbehaviour on the part of those who constituted “misbehaviour”. The of someone to a high position in The second trial participants in the Senate Committee explained that. There was a clear hold office by this tenure.” Attorney-General had obtained the the NSW public service and his Justice Murphy was retried before had found that he could be guilty miscarriage of justice and the judge opinion of the Solicitor-General, agreement to lobby the politician who Hunt J and a jury on 14 April 1980. of “misbehaviour” in the “The legal effect of the grant of an office directed the jury in relation to the Dr Gavan Griffith Q.C., which was would make the appointment were He was retried only on the charge constitutional sense. during good behaviour is the creation offence in a way which was totally that proved misbehaviour was to “the sort of thing [that] goes on all alleging that he had attempted to Professor Blackshield later of an estate for life in the office.” Such wrong and therefore the jury was asked be established to Parliament but the time in judicial circles”, and that influence Mr Briese, the charge argued that the jury verdict made it an estate is terminable only by the to give a decision in relation to this Parliament was not at large to define the intervention of judges in such concerning Judge Flannery having impossible for any attempt to remove grantee’s incapacity from mental or whole matter which was based upon it by reference to its own standards matters was “part of the nether world been disposed of in the first trial. The Justice Murphy from the High Court bodily infirmity, or by his breach of good erroneous directions from the judge. or views of suitability for office or of the legal arena”. Justice Wells, principal evidence was again given to be based on an allegation of a behaviour. But like any other condition moral or social character or conduct. then a judge in the South Australian Q. So do you expect a different verdict on oath by Mr Briese. Justice Murphy criminal offence, but accepted that or estate, it may be forfeited by a breach An anterior conviction would suffice, Supreme Court, was reported to have from a new trial? did not give sworn evidence, as he it could still be argued that although of the condition annexed to it. That but in addition Parliament could said in court the following day that the had during the first trial, but made his conduct had been shown to stop is to say, by misbehaviour. Behaviour A. Oh yes. itself find by proof in an appropriate article not only imputed corruption an unsworn statement from the floor short of criminality, it still amounted means behaviour in the grantee’s official manner, in proceedings where the to judges but implied that they were Q. So you’re blaming the judge for the of the court, on which he could not to “impropriety” sufficient to warrant capacity. This behaviour includes, offender had been given proper from time to time willing to act in guilty verdict? be cross-examined.20 Justice Murphy removal.22 first, the improper exercise of judicial opportunity to defend himself, that flagrant defiance of constitutional said21 he had never suggested that Mr Justice Murphy was criticised for functions; second, wilful neglect of A. That’s what the five Appeal Court there had been misbehaviour.25 principles governing the separation of Briese speak to the magistrate who not giving evidence on oath or calling duty, or non-attendance; and, third, a judges did. It’s not a question of The Commonwealth Parliament powers. Counsel for Justice Murphy was hearing Morgan Ryan’s case or evidence of good character at the conviction for any infamous offence, blame, it’s a matter of being able to then passed the Parliamentary claimed that Mr Wells would be that he do something about the case second trial. Articles were published by which, although not connected with pinpoint the fact that there was a Commission of Inquiry Act 1986, unable to bring an impartial and and denied that he had said to Mr alleging that other judges on the the duties of his office, the offender is clear miscarriage of justice.” assented to on 14 May 1986, which unprejudiced mind to the Inquiry. Briese “What about my little mate”. High Court would refuse to sit with rendered unfit to exercise any office or set up the Commission. Three The court immediately rejected the When the Premier was later He said he had known Ryan for him, but he resumed his seat on the public franchise. In the case of official commissioners were appointed, all application on this ground saying28 – prosecuted for contempt, particulars more than 30 years and had handled bench. Then, however, the Federal misconduct, the decision of the question

52 VBN VBN 53 “The remarks made by Mr Wells were and Dr Bennett argued that the word antecedents, but in circumstances in calling for removal, the High Court would are unlikely to be found wanting in his of it can no longer be trusted to do his made long before the Inquiry was set up “misbehaviour” in s.72 extended which it cannot be assumed that the have power to intervene if asked to do so.” conduct when not acting in office. If they duty. What he has done then will have and were not made in reference to the to conduct falling only within draughtsman intended to reproduce are said to be genuinely possessed and destroyed public confidence in his judicial Sir Richard Blackburn said32 –

Plaintiff or his conduct but to rebut the either or both of two categories, the British antecedents.” not feigned, they would stand uneasily character, and hence in the guarantee bar lore assertions attributed by the writer of the namely, misconduct in office, as “All the foregoing discussion relates with conduct in private affairs that that that character should give that And later– article in the newspaper to Mr Justice that expression was understood to the question whether “proved testifies to their absence. he will do the duty expected of him bar lore Kirby. We, of course, do not know whether at common law, and conduct not “[M]y opinion is that the word misbehaviour” in s.72 of the Constitution by the Constitution. At that point s.72 There are, however, other qualities which Mr Justice Kirby did make remarks to that pertaining to the holder’s office “misbehaviour” in s.72 is used in its must, as a matter of construction, be operates.” do not carry the same guarantee of effect. However, in our experience, it would amounting to an infamous crime of ordinary meaning, and not in the limited as contended for by counsel for stability, integrity, and respect for the law Commissioner Wells also concluded not be right to say that judges commonly which the holder had been convicted. restricted sense of “misconduct in office”. Murphy J. In my opinion the reverse in private life. For example, a man may that if the Houses of Parliament intervene to influence the making of public They argued that since none of the It is not confined, either, to conduct of a is correct. The material available for possess profound learning, intellectual pronounced to be misbehaviour service appointments or that there is a allegations asserted a conviction, they criminal nature. resolving this problem of construction adroitness, an accurate memory, and, that which, at least arguably, was practice inherited from England whereby could only be supported if the facts suggests that “proved misbehaviour” This interpretation can be said to leave by using them, adequately discharge not, that would be justiciable in judges descend into some shady nether asserted amounted to misconduct in means such misconduct, whether judges open to the investigative activities the duties of many public offices; but, the High Court. world of dubious behaviour. The remarks of office. Subject to further argument criminal or not and whether or not of the contemporary world, and so to without more, he could not discharge Accordingly, the objections of Justice Mr Wells amount to no more than a denial on the scope of the concept of displayed in the actual exercise of judicial expose them to pressures to which, in the the duties of judicial office. Murphy’s counsel to the 14 specific that judges, to his knowledge, engage in misconduct in office, they argued that functions, as, being morally wrong, interests of independence, they should allegations of conduct pressed by conduct of the kind allegedly described by all or at least most of the documents demonstrates the unfitness for office In short, a man’s moral worth, in general, not be exposed. counsel assisting, all failed. Mr Justice Kirby, conduct of a kind which would be found to fail to allege facts of the judge in question.” pervades his life both in and out of office. Mr Wells regarded, understandably, as capable of constituting misbehaviour. The other side of this is that, however And later– It is not surprising to find, therefore, Later events contrary to accepted standards of judicial Counsel assisting argued that s.72 s.72 may be interpreted, judges are that if in general affairs of life beyond After the hearing of argument in behaviour. It would be preposterous to hold had presented to the Australian not immune from the activities to “In my opinion the word “proved” in the his judicial functions, a judge displays the Parliamentary Commission, but that the expression by a judge of generally nation a provision that was and which I have referred, though it may be section implies that Parliament may aberrations of conduct so marked as to before the Commissioners’ reasons held views as to the standards of judicial was intended to be a new creature; that there is a higher incentive for the adopt such method of proof as it sees fit, give grounds for the view that he lacks were completed and handed down propriety should be thought to disqualify that the authorities relied upon by investigator if there is a possibility that but may not address arbitrarily without the qualities fitting him for the discharge on 19 August, Justice Murphy him from acting in a judicial capacity.” counsel for the Judge did not make he may procure a removal. Judges and in adverting to the question of proof. In of his office, the question is likely to arise resumed sitting as a Justice of the good the proposition they were said this context Federal judges in particular, each case, Parliament must decide, first, In answer to the claim that the whether he should continue in it. Such High Court. However, his counsel to establish; and that even if they did, must be safe from the possibility of whether there is proved misbehaviour, Commission Act did not authorise a question cannot be resolved without informed the Commissioners of the Constitution had, by necessary removal because their decisions are and secondly whether bearing in mind investigations to be made, the establishing standards of conduct by medical advice that Justice Murphy implication, rejected it; and that the adverse to the wishes of the government the great importance, implied in the court said:29 reference to which the consequences of had an advanced state of cancer, in word “misbehaviour” should receive of the day. Section 72 intends to afford Constitution, of the independence of the fervent misconduct may be assessed.” its secondary stages, and that there “The mere conduct of private inquiries, its natural meaning in the legislative this by requiring proof of misbehaviour. judges, it should address for the removal was no cure and no treatment. As in what we must assume would be and constitutional context in which They cannot, however, be protected from of the judge.” And later– soon as the Commissioners and a responsible manner, is not likely to it appeared. the public interest which their office Commissioner Wells stressed that “It is only to be expected that High Court counsel assisting were advised of cause any real damage to the plaintiff’s Extensive reference was made by tends to attract. If their conduct even in the language of s.72 must “so far as judges like everyone else, will vary in his medical state, the hearings of the reputation. Further no one requires all counsel to the Convention Debates matters remote from their work, is such may be, allow for the preservation character, temperament and personal Commission were adjourned sine special authority at law simply to make (Adelaide 1897) and Melbourne that it would be judged by the standards of judicial independence” but at the philosophy. But there is, I have no doubt, die and the Federal Government inquiries. There is no suggestion that the (1898) in support of their arguments. of the time to throw doubt on their own same time “The same public who a clear distinction between, say, mere supported Justice Murphy’s right Commission would be considering the Detailed reference was also made to suitability to continue in office, or to must respect a High Court judge’s eccentricity of conduct or the proven to sit and moved to close down holding of a public hearing before this court case law, extracts from text writers, undermine their authority as judges or independence is, in my view, entitled proclamation of personal views upon the Inquiry. The Parliament passed is asked finally to determine the issues.” parliamentary papers containing the standing of their courts, it may be to expect from him a standard of some matter of public concern, on the the Parliamentary Commission of opinions claimed to be authoritative, appropriate to remove them.” competence and behaviour that one hand, and plain impropriety, on the Inquiry (Repeal) Act 1986, which The 14 allegations and extracts from comparable And later– are consonant with the national other.” was assented to on 25 September legislation. presented to the importance of his judicial function.” 1986, which repealed the Act Each of the three commissioners “[i]t is for Parliament to decide what is Commissioner Wells continued– commission Commissioner Wells said33 – setting up the Commission of rejected the argument pressed by misbehaviour, a decision which will fall By 21 July 1986, counsel assisting “The issue raised by s.72 would thus Inquiry, and effectively terminated Justice Murphy’s counsel. to be made in the light of contemporary “The office of judge differs markedly the Commission had drafted 14 appear to pose questions of fact and the Commission. The presiding commissioner, values. The decision will involve a concept from that of many other public officials. specific allegations of conduct by degree. Somewhere in the gamut of In the meantime on 5 August Sir George Lush31, said – of what, again in the light of contemporary The performance of his duty calls on him Justsice Murphy for the Commission judicial misconduct or impropriety, a 1986 the Commissioners had already values are the standards to be expected to display, of a high order, the qualities to consider.30 The question then “Section 72 must be construed against High Court judge’s conduct, outside decided the Commission would not of the judges of the High Court and other of stability of temperament, moral and arose whether the facts alleged in the background that it was designed the exercise of his judicial function, take any further evidence pending courts created under the Constitution. The intellectual carriage and integrity, and these documents were capable of to bring into existence an entirely that displays unfitness to discharge the advice on the Justice Murphy’s health present state of Australian jurisprudence respect for the law. Those and other constituting “misbehaviour” and that new State. It was being written on a duties of his high office can no longer be and adjourned until 19 August, the suggests that if a matter were raised in like qualities of character and fitness argument was heard on three days clean page. It was creating institutions condoned, and becomes misbehaviour date when Parliament was expected addresses against a judge which was not for office, if displayed by a judge in later in July. For the Judge, Mr Gyles based largely but not wholly on British so clear and serious that the judge guilty to resume. on any view capable of being misbehaviour the exercise of his judicial function,

54 VBN VBN 55 Another undecided question is what role the High 1  There are two articles of particular wife to give evidence, and that “if you Michael Kirby in relation to the of Rights 1689. After the Act of assistance on this subject. Justice Roslyn don’t do these three things, we’ll win this Court can play in all this? propriety of judges descending Settlement, judges’ commissions Atkinson of the Queensland Supreme case. If you do any one of them, we’ll “into some shady netherworld became valid “quamdiu se bene Court was Associate to Sir , lose”. The judge followed their advice. Chief Justice of the High Court in 1986.

Justice Murphy resumed sitting for 30 years at least access to any of dubious behaviour”. gesserint” (during good behaviour), Her excellent article, The Chief Justice 21 The judge’s unsworn statement was bar lore on the High Court early in August document containing material relating When the Commission ceased which meant that if they did not and Mr Judge Murphy: Leadership in a reported in The Australian, 22 April 1986, by Jennifer Falvey. 1986 and participated in two cases, to the conduct of Murphy J. The sitting, lengthy cross-examination behave, they could be removed, but Time of Crisis is published in the papers bar lore of Emmanuel College, University of 22 Blackshield, above n.1 at p.253. the judgments in which were handed reasons of the Commissioners were of some of the potential witnesses only by a vote of both Houses of Queensland, No. 5, June 2008. Secondly, down on 21 October 1986. Justice nonetheless published both in the had already been forecast. The Parliament. This was the result of Professor A. R. Blackshield’s chapter 23 Parliamentary Government in England, Roslyn Atkinson34, who was then Australian Bar News of 1986, and in the Commission had been required to various Stuart monarchs (particularly “The Murphy Affair”, is contained in the 1892, 191-3. book Lionel Murphy, A Radical Judge, 24 Quick and Garran, The Annotated the associate to Gibbs CJ, recorded Australian Law Reports, under the title conduct its inquiry as quickly as a James II) sacking judges or edited by Jocelynne Scutt at p. 230. It is Constitution of the Australian the circumstances in which these “Murphy v. Lush.” The views expressed proper consideration of the material influencing their decisions, and was a cogently argued polemic by a writer Commonwealth 1901, 731-3. judgments were handed down in the by the Commissioners were, however, would permit (s.7(2)) of the Act) to assure judicial independence. It is who is convinced the judge was entirely innocent, and needlessly hounded to 25 These opinions were each referred to following passage35 – adopted by the Parliamentary Judges’ and to report by September 30, 1986 no longer a fear of royal intervention his grave. The article gives a well- in the Cabinet-in-Confidence Minute Commission of Inquiry conducted (s.8(2)) unless the date was extended. that makes such independence informed and critical perspective from “The judgments in both cases were mentioned in endnote 10. in Queensland into the behaviour of The Commissioners would probably essential, but rather of governments, the viewpoint of a strong supporter of handed down on 21 October 1986. In Justice Murphy. 26 All counsel were later appointed to the Justice Vasta and Judge Pratt, which have fixed draconian limits to the both State and Federal, whether neither were the judgments of Mr Justice Bench, Mark Weinberg and I to the was presided over by Sir Harry Gibbs time permitted for cross-examination, concerned (for example) by judicial 2 Australian Dictionary of Biography, Court of Appeal of Victoria, the others to Murphy decisive in terms of the result “Lionel Murphy” by Brian Galligan. the Federal Court of Australia. in 1988 and 1989.36 They were also which in turn might have led to claims activism in the High Court, or what is reached; but in them he made important considered, and mentioned with of unfair treatment and a denial of thought to be too lenient sentencing 3 Hocking, Jenny (1997). Lionel Murphy, 27 The events that followed are all recorded statements of principle with regard to A Political Biography, Cambridge in the High Court’s decision, Murphy v approval by the Hon. Peter Heerey Q.C. natural justice and to a lessening of the in the criminal courts. The fact that both criminal and constitutional law. University Press, 228. Lush (1986) 65 ALR 651. in his report to Parliament concerning impact of any recommendations which Alpheus Todd’s approach to provisions The judgments were handed down in 4 Galligan, Brian, above, n.2 28 Murphy v Lush (1986) 65 ALR 651 [10]. the conduct of Vice-President Lawler might have been made to Parliament such as s.72 of the Constitution had circumstances of extreme urgency. The of the Fair Work Commission. They in any way adverse to Justice Murphy. been almost universally accepted by 5 (1976) 135 CLR 110. 29 Ibid at [12]. court received word that Mr Justice also received approving comment from As Justice Roslyn Atkinson said in her text writers before the Commissioners 6 Chamberlain v The Queen (No. 2) (1983) 30 The Act which terminated the Murphy was near death. If he died before 153 CLR 521. Odgers’ Australian Senate Practice37, paper40 because of the terms of the reached a different view leaves it Commission imposed strict secrecy on the judgments were handed down, the those involved in the Commission’s work 7 Wilkinson, Marian. “Big Shots Bugged”, which, in a lengthy discussion of the Repeal Act the 14 charges cannot be as a real possibility that the High and makes it impossible to specify the reasons written by Mr Justice Murphy National Times, 25 November-1 removal of judges under s.72, states examined and, unless the Act is ever Court might now disagree with the allegations or describe the preparatory would have had to have been destroyed. December 1983, 3. that British and American authorities repealed or amended, they will remain Commissioners’ conclusions. Even work undertaken. That there were 14 Knowing that his judgments could not 8 Murdoch, Lindsay & Wilson, David. such allegations is discussed in the accept the wider view of the meaning unresolved in perpetuity. if the wider view of the meaning be published after his death, the Chief “Secret Tapes of judge, lawyer”. Commissioners’ reasons for decision of “misbehaviour.” At this time, so far as I am aware, of misbehaviour taken by the which are public documents. Justice immediately listed the matters for 9 “How the Murphy Case unfolds”, Sydney The Parliamentary Commission the reasons of the Commissioners Commissioners is accepted, a question the judgments to be delivered without Morning Herald, 29 April 1986, 4. 31 Reasons for decision of Sir George Lush was terminated before any have not been considered by any remains at what point an allegation published on 19 August 1986, reported the publication of pamphlet copies which 10 The following is based upon a Cabinet- evidence had been called. Professor appellate court or the High Court. is “proven” and whether this stage is in (1986) Australian Bar Review 203, were normally produced but which in-Confidence Minute, Appendix 5 208, 209-10. Blackshield said38 that the decision After the reasons were delivered, only reached by Parliament becoming sent by the Attorney-General (Senator would have held up the publication of the to terminate it was an act of folly, Murphy J’s counsel made application satisfied (a) that the relevant facts Gareth Evans) to Cabinet on 31 August 32 Reasons of Sir Richard Blackburn ibid judgments for 48 hours. Justice Murphy 1984. at p.221. a last injustice to Justice Murphy to the High Court, seeking to have been established and (b) that in died within an hour of the publication since it gave rise to a final crop of challenge the charges, but the Court all the circumstances removal of the 11 Quoted by Justice Atkinson, above, n.1 33 Reasons of The Hon. Andrew Wells QC of the judgments. It was Sir Harry who at p. 3. ibid at pp. 228-230. insinuations that there must have refused to deal with the application judge is justified. was responsible for these last judgments 34 King v The Queen (1986) 161 CLR 423; been something to hide. It certainly and referred it back immediately to Another undecided question 12 See also Professor Blackshield, above, of Mr Justsice Murphy being published. n.1 at pp. 246-7. Miller v TCN Channel Nine Pty Ltd prevents any examination now of the the Commission without commenting is what role the High Court can Without his actions the judgments would (1986) CLR 556. 14 allegations, since s.7 of the Repeal on the allegations. The Hon. Peter play in all this? Would the High 13 Ibid at p. 248. have to have been destroyed.” 35 Above, n.1, Justice Atkinson’s paper, p. 18. Act imposes severe sanctions for Heerey in his report to Parliament Court have jurisdiction to consider 14 Sydney Morning Herald, 27 April 1985, 9. 36 Queensland, First Report of the Justice Murphy in fact died on 21 revealing any information about the concerning the behaviour of Vice- the lawfulness of a decision by 15 R v Murphy (1985) 158 CLR 596, 597. Parliamentary Judges Commission of 41 October 1986. All the High Court allegations. Professor Blackshield has President Lawler also quoted parliament to remove a high court 16 Edited text of Justice Cantor’s judgment Inquiry, for Sir Harry Gibbs, Sir George judges attended his State Funeral himself characterised the charges from the Commissioners’ reasons, judge? Two of the parliamentary reported in Sydney Morning Herald, 4 Lush, and the Hon. Michael Helsham, (1989) pp. 9-10. in Sydney on 27 October 1986. The as containing “no surprises or fresh describing them as “scholarly commissioners – Lush and Wells September 1985, 7. th Chief Justice himself continued to sit revelations” and the thrust of his and convincing”. – thought so in the case of Justice 17 R v Murphy (1985) 4 NSWLR 42. 37 13 ed. Ch 20. in court for only a matter of weeks comments is that the 14 charges The absence of later appellate Murphy. The United States Supreme 18 Director of Public Prosecutions v Wran 38 Blackshield, above, n.1 at p. 256. thereafter. would not have led to any action by court consideration leaves untested Court thought that court did not have (1987) 7 NSWLR 616 at 618-620. 39 Murphy v Lush (1986) 65 ALR [10]. the Parliament. At the same time it the Commissioners’ reasons such jurisdiction in a 1993 case.42 19 R v Castro Onslow’s and Whalley’s Case 40 Footnote 1, Justice Atkinson’s paper, above Unresolved questions might be said that the High Court’s relating to the meaning of the words There are good reasons now for (1873) 2R 9 QB 219, 226. n.1, at p. 17. The Parliamentary Commission of comments39 on the application to “misbehaviour” and “proven” in Parliament to consider whether the 20 Freehill Hollingdale & Page were then 41 Report to Parliament delivered February Inquiry Repeal Act 1986 appears to remove Commissioner Wells for bias s.72. Provisions such as s.72 were Repeal Act should itself be repealed the judge’s solicitors. The history of 2016, at p.14 at [3.1]. have been hurriedly drafted and its show that the six judges dealing introduced by the Act of Settlement or amended, as Justice Atkinson Freehills (published 2011) states at 269 that the judge was advised by Freehills’ 42 Nixon v United States 506 U.S. 224 (1993). meaning is not entirely clear. The with that application plainly did not in 1701 as part of the Glorious has impliedly suggested. Professor team not to give evidence, not to call legislation presumably has prevented share the views attributed to Justice Revolution, together with the Bill Blackshield would doubtless agree. character witnesses, and not to call his

56 VBN VBN 57 In his chambers in both cities, Dixon had quite large collections of text books as well as the basic

reports. The texts were classical bar lore works rather than recent books or editions. Of those that he regarded as the most important, he had copies in both collections as well as in his home library. He was fond of telling a mischievous story about a visit to Lord Denning’s home at Whitchurch in Hampshire. Denning took him to his library and produced a prized possession: a copy of the third edition (1868) of Bullen and Leake’s Precedents of Pleadings, the edition before the Judicature Acts (Denning had been a joint editor of the ninth (1935) edition). The volume was displayed with pride. Dixon said that he could not resist telling Denning that he owned three copies of the third edition: one in each of his chambers and another at home. Dixon’s main working library and his general library were at home where he wrote most of his judgments. Until 1937, the Dixon family lived at “Beechfield” in Trafalgar Road, Camberwell. In along the eastern and western walls and the other cities visited by the that year, Dixon inherited the entire and around the window at the south. Court and in London. His favourite contents of the library of Sir John In the south-west corner was a small bookseller was AH Spencer whose Higgins—books and furniture. Dixon alcove which he used as a study. It Hill of Content bookshop survives at had developed a close friendship was there that most of his judgments the top end of Bourke Street. Under with Higgins—who was the chairman thereafter were written. The library Mr Spencer’s ownership, the shop of the British Australian Wool had no heating. In winter, Dixon stocked second hand as well as new 1 Realisation Association—when he worked with the warmth of only a books. Mr Spencer kept an eye out The Library of Sir Owen Dixon appeared before the High Court single or double bar electric radiator. for books which might interest Dixon. and the Privy Council in the post- The collection in that library He advertised “No library is too large war skin wool and wool tops cases. comprised a multitude of legal works, and no parcel of books too small for JAMES MERRALLS* Higgins had no children and he including a set of the United States me to purchase”. had come to act as a confidant of Supreme Court Reports, reports of The works of classical authors were Dixon in matters concerning his appeals from India to the Privy Council editions of scholars Dixon respected, library is both a collection building in Darlinghurst. In neither place was there an career. Dixon needed a bigger house from 1918 to 1950, Selden Society in particular Gilbert Murray and of books and the place adequate court library. The library in Melbourne was in the to accommodate his own growing publications and myriad sets of books, Dixon’s mentor at Melbourne where it is housed. I centre of the building. It contained sets of the basic English library as well as the inheritance. He such as the Cambridge histories of the University, Professor TG Tucker. Dixon shall say a little about and Australian reports and statutes, a set of Halsbury’s purchased “Yallambee”, a sprawling Ancient World, the British Empire and said of Tucker: “You knew you were both concerning the Laws of England, Australian and English digests and a few single storey house in Higham Road, various periods from the Middle Ages in the presence of a penetrating mind library of Sir Own Dixon. recent editions of popular text books. A bare bones library. East Hawthorn. The attraction of onwards. Those histories were kept in that was at once robust, clear and Throughout his judicial career he possessed three The Justices depended substantially on the Supreme Court the purchase lay not so much in the small revolving book stands scattered sensitive, and that it was accompanied collections of books: one at his home and one in each library across the lane. The Sydney library was meagre. The house itself but in a long building throughout the building. by an unremitting enthusiasm for of his chambers in Melbourne and Sydney. library room was also occupied by typists. There were few at the rear. Originally stables, it had The collection was the working classical studies of every kind.” When The High Court was itinerant during the whole text books and the Supreme Court library was nowhere been adapted by a previous owner library of a scholar, not that of an he visited Gilbert Murray at Boar’s ofA Dixon’s time in office. It had two fixed locations: near. The Commonwealth had acquired the libraries of for amateur theatricals. A curtained antiquarian. Dixon was an inveterate Hill, Dixon was delighted to find him Melbourne, which was the principal registry, and Sydney, some of the past Justices which were housed in Justices’ stage remained at the northern end. fossicker in bookshops new and reading an early tragedy of Aeschylus where it occupied a wing of the Central Criminal Court chambers, but they were mainly sets of law reports. Dixon installed high bookshelves second hand, in Melbourne, Sydney in an edition prepared by Tucker.

58 VBN VBN 59 Maitland and Sir William Holdsworth. linguistics to solve the mystery of the He was an avid collector of Maitland’s scripts which had baffled scholars for works and read each volume of more than a century.

Holdsworth’s History of English Law Dixon died on 7 July 1972. The bar lore on its publication. He enjoyed the executor of his will was a trustee company of Holdsworth on two of company. The company administered bar lore his visits to England and spoke of his estate with brutal efficiency. his scholarship with respect and “Yallambee” was sold to Preshil praise. He also valued Sir William School, which gutted the interior to Harrison Moore’s Constitution of construct classrooms. The surviving the Commonwealth of Australia. Of balance of the book collection was Moore he said: “A gentle manner, valued for probate at $1,834. With learning infused with the true spirit Mr AH Spencer long gone, it was of liberalism, a complete grasp of dispersed in many ways. Many of legal principle to the exclusion of all the legal books had been sold to that was mere dogma and a lively the Commonwealth during Dixon’s building a library. The contents to Dixon when he was Australian interest in constitutional and legal lifetime under the supervision of of the house and the remaining Minister in Washington during the development, these are the qualities Judge Woinarski, a long-standing contents of the library were sold at war. The books were not arranged that ensured his hold on the minds friend of the Dixon family, who in auctions conducted by Leonard Joel by subject matter. Some sets were and hearts of the men he taught.” 1965 had assembled a collection of Pty Ltd, whose rooms were then broken between shelves. A bidder Dixon was inclined to speak of Dixon’s occasional addresses and in McKillop Street. No inventory, complained of this only to be told others’ interest in biographies papers for publication under the let alone catalogue, was made of by the auctioneer, who was draped with amusement. Sir Adrian title of Jesting Pilate. Those books those books or of the books given languidly across the lectern, “You Knox, for example, was “a highly are now in the High Court library to . The sales can bid for the second shelf if you intellectual man without any in Canberra. An inventory was were poorly advertised. I heard of like. What does it matter? They’re intellectual interests”. “He would compiled, comprising 26 pages. one, I think the last, by chance. The only books.” read biographies, he would read By rough calculation there are books were sold by shelves. There Only books. We are here today to history, he would read this, that and more than 1,000 items. Page 14 was little competition—mainly from celebrate “only books”, but without the other.” Yet Dixon did not disdain provides a fair sample. The sets of second hand booksellers—and I was the cynicism of that auctioneer. reading biographies himself as long histories and many of the volumes able to buy three shelves, which 1 A short talk given by J D Merralls as that activity was relegated to its of classical work were given to included part of the collection of in the Library of the Supreme Court proper place. Monash University, then recently judicial biographies and various on 22 July 2016 as part of the series “Legal Luminaries and their Books”. I have a number of biographies of established and in the process of books that had been presented English and Australian lawyers which came from his library. He had a keen recollection of their contents. I was Editor’s note I wondered about a certain expression. be lower case, why not ceo? The words surprised to find in a work published I would not be receiving messages like the State and Justice (of the High Court) The range of Dixon’s reading of Dixon read the works of most of in 1837, entitled The Bench and the Bar, following, which I received in relation to are capitalised in the Constitution. I classical texts is revealed by notes the well-known British poets and many of the anecdotes about early ANNETTE CHARAK an earlier piece: prefer to adopt the constitutional form. in his diaries and his journals of novelists of the nineteenth century. nineteenth century barristers and “I was not aware of some of the details The expression ‘on the strength’ is voyages overseas. Aeschylus and Apart from Kipling, twentieth judges he recounted verbatim. Among diting anything written by James of Bar News style and so adopted CLR conventional English. See Shorter Sophocles are prominent among century authors interested him little. the books acquired from him for the Merralls was a breeze and a style with which I am familiar. CLR uses Oxford English Dictionary (1993), Greek authors, and Horace and Virgil His favourite novelist was Trollope, High Court library were no less than E challenge: a breeze because he wrote words to 100 and figures beyond. strength: Phrases. It should be retained. among Roman. Dixon’s biographer whose acute studies of provincial 65 volumes of judicial biography. with punctilious care; a challenge I wish also to retain the last sentence of Philip Ayres says that there was life in Victorian England appealed One personal story illustrates I do not like capitals but the CLR because I had to be ready to defend any the second paragraph on p6 as there is no book closer to Dixon’s soul than to his own temperament. He also Dixon’s own intellectual interests. I requires them in certain cases. I agree changes I made. widespread ignorance about the titles Aeschylus’s Agamemnon. “It reflects enjoyed Dickens, Thackeray, George visited him when he was recovering with most of your conversions. The I had just finished editing his piece on for citation of cases reported in CLR. his fatalism.” Eliot, especially Middlemarch, from bronchitis. I found him, propped word President in the reference to Owen Dixon’s library when I learned that, He read the whole of the and Sir Walter Scott. The poets he up in bed, reading a large red- Sugerman should be retained. You I shall probably alter fn 3 when the sadly, I would not have to go through surviving works of Aristotle. appreciated most were Keats and, covered volume which he told me have rightly capitalised Chief Justice table for 2014 is published in vol 253 the delightfully painstaking process of They had an important influence perhaps oddly, Byron. Many works of was the architect Michael Ventris’s on pp 4 and 5. The expression ‘state next week. The word ‘acquired’ should checking changes with him this time. I on his approach to Australian all these authors were in his library. account of the deciphering of the and Commonwealth’ in the second be substituted for ‘assumed’ in the last would not be exchanging emails with him constitutional law. He was fond His diaries record him regularly Minoan linear B scripts. Dixon was paragraph on p 4 looks odd, even sentence.” where I explained that I’d made certain of quoting Aristotle, in classical reading from them to his children. amused that it had taken a young though one is generic and the other changes to accord with Bar News style or I shall miss these exchanges. Greek, often without the benefit The two recent legal authors whom architect with no professional specific. CEO? If vice-chancellor is to of translation. he held in highest regard were FW knowledge of archaeology or

60 VBN VBN 61 Dr Yule is an exceptional historian. He has written brilliant biographies of the two greatest figures in Melbourne’s financial history, WL Baillieu and Sir Ian bar lore Potter, as well as numerous commissioned histories including that of Monash Law School. bar lore

entertaining book Judging for the War Memorial. Importantly for this People: a social history of the Supreme project, Dr Yule is able to capture Court of Victoria 1841–2016 (which wonderful anecdotes and colourful was supported by the Victorian characters, while maintaining a strong Bar and is reviewed in Bar News historical narrative. Issue 159, 34-36). The origins of In the latter part of 2016, BCL the Victorian Bar can be traced formally commissioned Dr Yule to back almost 180 years, and the Bar, write the history of the Victorian Bar. through its members, has played an The leadership of Michael D Wyles important role in the development QC, chair of BCL, and its board, in of Victoria and the Commonwealth. supporting this project, warrants great We should also be looking to our praise. BCL intends to gift a copy of the past when asking how we should go book to each of its tenants. forward, to see how the institution BCL has appointed a history project took shape. committee to liaise with Dr Yule: Early last year, Peter Jopling QC, Kenneth Hayne QC, Jopling, Harris, who chairs the Arts and Collection Ryan and me, as well as Geoff Bartlett Committee of the Victorian Bar and from BCL. has long advocated a new history Work on this project is now of the Victorian Bar, established a beginning. In the initial phase, Dr steering committee (comprising Yule will be collecting materials with Jopling, Wendy Harris QC, Siobhan the help of two research assistants, Ryan and me) to identify the best Dr André Brett and Dr Gonzales historian to write a new and fulsome Villanueva. Both Dr Brett and Dr history of the Victorian Bar. After a Villanueva recently completed long process, including consultation doctorates in history at the University with several leading historians, the of Melbourne. They already have committee identified Dr Yule as impressive publication records, the best-qualified candidate and extensive research assistance recommended to the Bar Council that experience working on major projects he be engaged to write the history. with some of Australia’s leading Dr Yule is an exceptional historian. historians, and have taught a wide of practising barristers. Additionally, He has written brilliant biographies of range of undergraduate history important episodes in the Bar’s history, the two greatest figures in Melbourne’s and politics subjects. A history of the Victorian Bar known only to those who lived through financial history, WL Baillieu and Any members of the Bar, past them, are being lost with the passage Sir Ian Potter, as well as numerous or present, or others with personal of time. commissioned histories including that or passed-down information or CHARLES PARKINSON It is important for the Victorian of Monash Law School. His histories materials that they would like to Bar as an institution to have its are both enjoyable to read and contribute to the project are now ne of Australia’s (BCL), is scheduled to be completed his retirement as a justice of the continuing history recorded. We scholarly and have been the subject invited to do so. During 2017 and leading historians, in late 2020. As well as the publication Supreme Court, published A Multitude should take pride in and celebrate of popular and academic acclaim. He 2018, Dr Brett and Dr Villanueva Dr Peter Yule, has of the history, the project will involve of Counsellors: a history of the Bar of the history of the Victorian Bar, co-authored The War at Home, a book will be based in room 818, level 8, been commissioned the preservation of materials collected Victoria. Since that time, the changes at much as the Supreme Court on the home front in the First World 555 Lonsdale Street, generously to write a major history while researching the history, including the Victorian Bar have been profound: celebrated its commemorations for War, which Professor Geoffrey Blainey provided by BCL, and would be of the Victorian Bar, oral histories from past and present the increase in the number of the 175th anniversary of Supreme described as “one of the best slices of delighted to chat with anyone who from its earliest days in the late 1830s members of the Bar. barristers, the rapid expansion of BCL Court sittings in Melbourne earlier Australian social-economic history calls in with reminiscences, old to the present. This significant project, This history of the Victorian Bar (which was only established in 1959), this year. Those commemorations I have ever read”. Dr Yule has most records, photographs or gossip. which is being generously supported has been long awaited. It is almost 50 the changes in legal education, and included a series of events and recently been working on a major They can also be contacted by Oby Barristers’ Chambers Limited years since Sir Arthur Dean, following the seismic shift in the demographic the publication of the candid and research project with the Australian email at [email protected] 62 VBN VBN 63 OF THEliftBack OF back of the lift In this Back of the lift section of the Victorian Bar News, the Bar THE liftBack conveyed to junior barristers his love and seek clarity as to how to progress who retired as a judge of the County acknowledges the appointments, retirements, deaths and other honours of of the life of a barrister and of the it efficiently, and would not stand for Court in late 2016, was a selfless past and present members of our Bar. Adjourned Sine Die importance of the barrister’s role in obfuscation. contributor to the Bar for 30 years. Adjourned Sine Die 64 standing between state and citizen. He When sitting in trials and pleas, He was a leader of the criminal bar is remembered as being the life of the his Honour was fair and efficient. and went on to serve Victoria with was always well prepared – one of County Court of Victoria party at chambers functions. He loved He encouraged counsel to get to the the highest integrity as a judge of the County Court of Victoria his juniors speaks of the attention to His Honour Chief Judge Rozenes AO, QC new technology – at his instigation point and jettison unmeritorious County Court for ten years. PETER MATTHEWS 64 detail that went into the preparation of all the Aickin Chambers barristers arguments. His rulings and reasons He was president of the Law a proof of evidence from a client. His His Honour Judge Anthony Howard acquired computers, which was at the for sentence reflected his mastery of Students’ Society at Monash MICHAEL O’CONNELL AND GEORGINA COSTELLO 65 cross-examination was precise – “razor time a real innovation. legal principle and were succinct and University, and a staff member of Lot’s sharp”, according to another junior. His juniors speak of his delivered without delay. His sentences Wife. He was articled to Frank Galbally Silence All Stand 84 He was able to develop a rapport with inclusiveness; he himself had been reflected a keen sense of the need to at Galbally & O’Bryan. He signed the The Supreme Court of Victoria a witness where needed. His strategy an engaged and questioning junior balance competing considerations, Bar Roll in 1975, and read with John The Hon Justice Maree Kennedy 66 was considered, reflecting clarity of and he in turn encouraged his juniors and his capacity for compassion Walker QC. As a junior, three leaders FRANCES O’BRIEN purpose and minimal risk. There was to be the same. Another aspect of where appropriate. Appeals against gave him red bags –Sue Crennan QC always pragmatism and flexibility in The County Court of Victoria his practice was that he appeared his Honour’s decisions were rarely and John H Phillips QC (as they then his approach. His Honour Judge Gregory Lyon 67 for both prosecution and defence, successful. were), and Peter O’Callaghan QC. Having learned the value of strong JUSTIN HANNEBERY and was equally comfortable in each His Honour suffered a serious brain He married Linda (who is now the and collegiate chambers through Her Honour Judge Samantha Marks 67 role. Those opposed to him when he aneurism in 2015. As reflected in his Governor of Victoria, her Excellency occupying for a time a room on the SAM HAY prosecuted say that he was fair and speech at his farewell, he has made the Honourable Linda Dessau AM) in His Honour Chief Judge first floor of Owen Dixon East (which The Magistrates’ Court of Victoria always approachable, and open to an extraordinary recovery. Those who 1982. He is rightly proud of their two then included George Hampel, Alan Rozenes AO, QC settling a matter where appropriate. have seen him since speak of his sons, who have themselves studied law. Magistrate Sarah Leighfield Goldberg, Cliff Pannam, Ron Merkel, GEOFFREY STEWARD 68 Bar Roll No 1028 He understood the value of forming an continuing progress. As always, his Tony is a model example of a balanced John Walker, John Phillips, Jack Magistrate Urfa Masood GRAEME DAVIS 68 effective team, perhaps most famously wife Barbara has been by his side. His person. Aside from his busy career, he n March 2016 a ceremonial Lazarus, Philip Dunn, Jeremy Rapke, during his time as Commonwealth Honour spoke at both his welcome and has made the time to spend with his farewell marked the retirement Ian Hill and Con Heliotis), his Honour Vale 65 Director of Public Prosecutions with farewell of her unwavering support family, kept fit swimming long distance of former Chief Judge of the became a key member of Aickin Marc Thuraine Bevan-John JOHN GLOVER 69 his deputy and friend, Ed Lorkin. and wise counsel over the years, and of in the ocean and enjoyed many County Court, Michael Rozenes. Chambers upon their establishment The Hon Alan H Goldberg Apparently it was said of the two: “here his love of being a parent and mentor friendships. He tells great stories and AO QC RON MERKEL AND RAY FINKELSTEIN 65 TheI occasion, a video recording in 1983. On one side of the floor was a they come, the big bastard and the to his children Ben and Georgia. He is that person at a party who can make of which may be viewed on the strong group of commercial barristers Gary Albert Glover VBN 70 small, powerful one”! said at his farewell he was looking conversation with anyone. County Court website, was a fitting (Alan Goldberg, Ron Castan, Ray The Hon John Joseph Hedigan QC His Honour’s appointment as Chief forward to spending time with his As a barrister, Tony had a booming celebration of his Honour’s life and Finkelstein, Ron Merkel, Cliff Pannam WILL HOUGHTON 71 Judge was met with universal acclaim grandchildren. We wish his Honour a practice and was a fearsome cross career as a leader of the criminal and John Middleton), whilst on the Theodorus Johan Cornelis Lusink 72 and he was outstanding in the role. long, happy and fulfilling retirement. examiner. He had fabulous attention Bar, Commonwealth Director of other was an equally strong group PEG LUSINK His judicial colleagues speak of his PETER MATTHEWS to detail and prepared cases to within Public Prosecutions and Chief Judge. of criminal barristers (including, at James Donald Merralls AM QC 72 door always being open for them, and an inch of their life. He was constantly Much was written about him by his various times, John Walker, Graeme PETER WILLIS of the almost constant procession of encouraging to junior barristers and cousin, George Hampel, in issue 158 Morrish, Robert Richter, Philip Dunn, Constantine Nikakis VBN 73 his colleagues seeking to speak to was incredibly generous with his time, of Victorian Bar News. This article Tony Howard, Peter Faris, Julian Kenneth John Oldis GARRY FITZGERALD 74 him throughout the day. As always, wanting to impart what he knew to recounts further memories and Leckie, David Galbally, Mark Taft, Dr James Rangelov VBN 74 he brought his energy, warmth and those new to the Bar. When he took silk reflections of his Honour’s peers and Roy Punshon, Lilian Lieder, Jeanette William Ross Ray QC ROBERT TAYLOR 75 sense of humour to his work. He was in 1992, he brought a great generosity colleagues. Morrish, Paul Grant, Felicity Hampel, Brian Scheid ROHAN SCHEID 76 “Michael” to colleagues and staff. He of spirit to the relationship between He was the complete barrister, Stephen Shirrefs, Ian Gray, David Lynnette Schiftan QC VBN 76 was loyal. He showed considerable leader and junior counsel. bringing his quick, deft mind and Parsons, Reg Marron, Paul Marin, Leigh Andrew Thompson 77 political acumen, forging good He was great company to his considerable personal charm to the Guy Gilbert, Ed Lorkin, Campbell BENJAMIN LINDNER relationships with government, just barrister colleagues on level 27 Aickin task of persuasion. Equally at home Thompson, Richard Pirrie, Michael David Clifford Turner JUSTIN O’BRYAN 78 as he had previously as Chair of the Chambers, who included: Michael in front of a jury or appellate bench, O’Connell and Gerard Mullaly). His Criminal Bar Association during a time Rozenes, John Walker, Graeme David Willshire CHRISTINE WILLSHIRE 78 he was able to distil the essence of an Honour’s practice in commercial crime of great change in the criminal law. Morrish, Robert Richter, Philip Dunn, issue, be it a difficult legal matter or flourished in this environment, but Gonged 78 Many barristers will have His Honour Judge Peter Faris, Julian Leckie, David a complex set of facts, and convey it ranged across all types of criminal encountered his Honour in the 9am Galbally, Mark Taft, Roy Punshon, Victorian Bar simply and effectively. He could be matters whether legally aided or Anthony Howard mention list, in which he sat frequently. Lilian Lieder, Jeanette Morrish, Paul humorous and self-deprecating. He privately funded. In time he came to Bar Roll No. 1192 Readers Course 79 Out his Honour would stride each Grant, Felicity Hampel, Stephen shared his friend Ray Finkelstein’s be head of the criminal law chambers, morning to a packed court 2.9. He ohann Wolfgang von Goethe Shirrefs, Ian Gray, David Parsons, Reg New silks Q&A 80 ability to engage an audience with and was an inspirational leader was always courteous and his sense said that you can judge the Marron, Paul Marin, Guy Gilbert, Ed his enthusiasm for the task at hand. and mentor, always making himself Bar Council 2016-17 84 of humour was never far beneath the character of a man by how he Lorkin, Campbell Thompson, Richard His irrepressible energy earned him available to his colleagues for succinct surface, but he would quickly move to treatsJ those who can do nothing for Pirrie, Anthony Thomas, Gerard the nickname “The Wriggler”. He and sage advice where needed. He the core issues in the matter at hand him. Anthony (Tony) Howard QC, Mullaly and the writers of this piece.

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As a judge, he stamped his authority achievements in the law reveals his Honour’s work practices the gab and that indefinite quality on the Court. He was a very hard Silence all stand why his appointment was both at close quarters over the past known as wonderful charm.” worker, who was known for his unsurprising and welcomed broadly decade can attest to his diligence, When she came to the Bar, its back of the lift back attention to detail. He demanded by the profession. skill and sheer discipline as he gender profile reflected Carey’s. That high quality advocacy and thorough His Honour was admitted to was entrusted with the carriage fact perhaps fuelled her commitment preparation from those who appeared practice in 1984. After completing of weighty matters, both in their to its progress: she has been one of before him. As one colleague put it “he The Supreme Court of Victoria articles at Hall & Wilcox he content but also often in the amount its most active members. She has made you be your best self”. Tony was commenced his career in criminal of material required to be mastered. been Honorary Treasurer of the Bar always well-prepared and in command caw, initially as a solicitor advocate That his Honour’s appointment Council, convener of the Woman of the material, and conducted his The Hon Justice Maree Kennedy with Chris Pease. He signed the comes after exposed form in such Barristers’ Association and a member cases with rigour and a firm sense of Bar Roll on 24 November 1988 and high profile venues as the Bushfire of many Bar committees. She has Bar Roll No. 2485 justice. read with now Director of Public Royal Commission, the OPI public taught advocacy to prosecutors in During his time at the Bar, Tony was he Supreme Court has been Her Honour’s achievements at the Prosecutions John Champion SC. hearings, High Court appeals and Uganda. She sits on the public policy chair of most things, including the a worthy recipient of an Bar and then as a Judge have earned As junior counsel his Honour the “Opes Prime” prosecutions for and advocacy committee of Berry Essoign Development Committee from experienced hard working her widespread respect in particular was quickly identified as that rare the Commonwealth DPP shows that Street, providing her legal talent to 2002-2003; the List G committee; the Judge of the County Court on the for her talent and work ethic. type of criminal advocate, capable his efforts did not go unnoticed. assist survivors of domestic abuse. legal assistance committee (2002-2004) Tappointment of the Honourable Judge Anderson recently of successfully running complex His Honour was an exceptional In addition to having a thriving and the applications review committee Justice Kennedy. acknowledged her contribution and lengthy matters, especially contributor to the Bar and court practice and her service to the (2003-2004). He instigated the Bar’s With her wide commercial to the development of the County in the “white collar crime” area. profession as Criminal Bar community, her Honour spent her first silk mentoring program and was experience as a barrister and a judge, Court Commercial List commenting His reputation in these matters Association Chair, Bar Council years at the Bar diffusing tensions elected repeatedly to Bar Council. her Mandiesque approach to decisive that her Honour helped create a was further enhanced when he member, Ethics Committee member as an effective mediator of complex He continues to offer his wisdom decision making and administrative “powerhouse of innovation”. His successfully completed a Doctoral and Indictable Crime Certificate disputes and being a supportive and leadership as a member of dexterity, her Honour brings an Honour noted what was a pilot Degree at in 2003. Committee member. He has been a friend and generous mentor. Leslie various community and not-for- invaluable combination of skills of 600 matters now attracts 6500 His thesis on insider trading laws committed advocacy coach through likens her calming influence to a profit organisations. He is a trustee to the Court. matters annually with her Honour’s was the basis for his book The Law of the Australian Advocacy Institute. yoga master’s. Her devotion to her of the Royal Melbourne Hospital Her Honour was educated at Loretto prodigious capacity for work and Insider Trading, published in 2005. Of more importance than all these readers (during and beyond their Neuroscience Foundation, founding Nomanhurst and Genazzano FCJ prompt decision making being but His Honour combined his things is that his Honour remained Reading period) and her juniors Chair of the Convent Kew. She was articled at some of that contribution. commercial crime practice with a over the journey a friend and great has been described as absolute and Lawdons coterie and a Board member Arthur Robinson & Hedderwicks with Her Honour is also a fierce strong presence in Supreme Court support to many of his colleagues around-the-clock. One junior recalls of the youth mentoring organisation Andrew Guy (now Allens). After an advocate for junior practitioners murder trials, often briefed by Victoria in Crockett Chambers, and her as unflappable before a hostile Big Brothers, Big Sisters. associateship with Justice Keely of the and closely mentors her associates Legal Aid. He was appointed as a generous and more than Court of Appeal, and as a silk with a Tony was a “champion of change” Federal Court she returned to Monash with many now pursuing careers Senior Counsel in 2005, the year he occasionally funny mentor genuine interest in his young family. for women barristers, before it was to tutor full time and completed her at the Bar and as solicitors in commenced in Crockett Chambers. to those appearing as his junior. Her composed, inquiring and an official thing to be one. He was LLM during that two year stint. She commercial litigation. Those of us who have observed JUSTIN HANNEBERY gentle nature will dispose her on the Bar’s equality before the law signed the bar roll in 1990 and read Outside of the law her Honour perfectly to service on the bench. committee, a member of the 1998 with the now Honourable Justice Kaye. is an avid reader, an excellent chef Her Honour Judge Samantha Marks SAM HAY Steering Committee which produced Given to the unvarnished comment and enjoys getting away with her Bar Roll No. 2333 the report “Equality of Opportunity of her early days at the Bar when family to Apollo Bay. Her Honour also for Women at the Victorian Bar”, and commercial briefs for women were considers her two now adolescent y her appointment to wanted to be a nun. Unfortunately, The Magistrates’ Court part of the Law Council of Australia even rarer than women barristers, children and the success of her the County Court, Judge she wasn’t Catholic. A doctor, but she of Victoria working group that developed the she says “you had to be a bit mad to marriage to Patrick Cussen her most Samantha Marks continues couldn’t handle seeing blood. Law model equal opportunity briefing do it and we were.” important achievements – although her impressive service to the legal was the path eventually chosen, to policy for female advocates in 2004 Her Honour was appointed silk she says they are matters still in the Bprofession and the state of Victoria. the great benefit of the profession. Magistrate Sarah and 2005. in 2002 and soon thereafter in 2007 extended interlocutory stages. Judge Marks was born an advocate She completed articles at Blake Leighfield The Victorian Bar wishes Anthony appointed a Judge of the County Court. FRANCES O’BRIEN and a bibliophile. At 16, she won the & Riggall, with long hours and Bar Roll No. 3684 Howard every best wish for a long Victorian Plain English Speaking late errands. (She was once woken and fulfilling retirement from the law The County Court of Victoria competition. She originally entered outside Jeff Sher QC’s chambers after he appointment of Sarah and applauds the work he is doing for an early stage of the competition with waiting hours for a conference to Leighfield to the magistracy Victoria in conjunction with and by a keen eye on the initial prize: three end.) It took only one performance of Victoria is an indisputable supporting his wife, the Governor. His Honour Judge Gregory Lyon books. She completed her schooling by Alex Chernov QC and Leslie boon to the administration of justice Again Tony is a leader. This time at Carey (which was transitioning Glick, and the running of her own Tin this state. Bar Roll No. 2299 he is the model of the new cliché: to co-ed and where she was one of trial in Warrnambool, to inspire her There are some who have, “behind every great woman is a great n 18 October 2016, the His Honour’s appointment comes only a few girls). Notwithstanding departure from the firm. She read however, lost an asset of man”. Governor in Council after a 28-year career at the Bar, her academic success in those years, with Leslie and George Golvan, who inestimable value: solicitors who MICHAEL O’CONNELL AND appointed Gregory Lyon the last 11 as silk. Even a cursory she realised that her first two career describes her as having “great legal can no longer brief Sarah; readers GEORGINA COSTELLO OQC as a Judge of the County Court. examination of his Honour’s preferences might not work. First, she skills, tremendous energy, the gift of who can no longer be mentored by 66 VBN VBN 67 back of the lift

her; silks who can no longer lead Sarah probably knew that a than two years in the job. Vale Alan’s parents had deep roots in her (albeit that Sarah led many number of them ‘cooked the books’ Halal food was not part of the Melbourne’s Anglo-Saxon Jewish juniors in a number of trials); in their unsupervised entries, but menu on an initial VALS training history, going back to the early back of the lift back and, most of all, her colleagues she questioned the bona fides of road trip to a remote regional town. 19th century. Harold Cashmore, an in Gorman Chambers who have no-one. Fortunately, her Honour’s hunger Marc Thuraine Bevan-John ancestor on Alan’s mother’s side, lost a colleague whose door and In one of her first days as was relieved when a local Tex founded the Melbourne Hebrew disposition was always open for a magistrate, Sarah granted a Mex café was found to have some Bar Roll No 1510 Congregation in 1837. Alan’s wife, the purpose of providing wisdom, diversion order to an accused. vegetarian options. Rachel Rynderman, came from a arc Bevan-John was escaped with her life after being advice, friendship and support. Unsurprisingly, the accused and After that brief introduction, polar opposite background. Her an archetypically captured by the Nazis when trying to Having acknowledged that as a his family were delighted with her Honour was left to organise Polish-Jewish family survived the “old-style” barrister. hide under a seat in a train. Marc’s university student she did not know the outcome. Upon leaving court, the central Gippsland area, Second World War in Russia before As “straight-as-a-die”, Marc was a father met his mother after the war the difference between a solicitor the accused’s parents commented largely on her own. It was a coming to Australia. Rachel and Alan fearsome,M but honourable, opponent in Alsace, when he was serving in the and a barrister, it is clear that such to their son’s lawyer how much difficult place to work; a very married in 1967 and, despite their — who was always good-humoured British Army of the Rhine. confusion was no impediment to they appreciated the respectful low income area beset with vastly different backgrounds, formed and well-prepared. At the Bar, Marc Marc was admitted to the Victorian her being superb in each role. Her and positive manner in which poverty and social problems. a symbiotic relationship that has established a general civil law and Bar in 1979 and practised here pedigree in the law was second to Magistrate Leighfield had addressed She was an energetic solicitor and provided much enrichment to their commercial practice appearing for almost 35 years. He had eight none. She completed her articles at both them and their son. conscientious at her work. family and friends. Rachel was always mainly in the Supreme and Federal readers, was a founding member of Galbally and O’Bryan, where her One of her new colleagues said to Like so many VALS employees a source of inspiration and strength Courts. Commercial fraud, property List A and served on the Dispute Principal was the legendary Peter me, “Everyone says how intelligent before her, her Honour was called to Alan and their family. disputes and equity matters were Resolution committee for 10 years. Ward. When she was called to the Sarah is. We all know that, but she is to the bar in 2004, reading with Alan’s family was his greatest the sorts of things that concerned Marc’s chambers were adorned with Bar, she read with Duncan Allen (as every bit as kind and fundamentally Tony Lavery and joining the fourth pride and the source of his greatest him professionally. Marc was also an art works, custom-made furniture his Honour then was). good as she is smart.” floor of Equity Chambers, now happiness. His children, Anthony and accredited mediator. and an oar won at Oxford’s Eights It was in her first year at Sarah was somewhat of a ‘black lamentably gone. Caitlin, together with their partners, Marc was born in England and Week regatta. His chambers had the university that Sarah learned that letter lawyer’ with a capacity to Her Honour mainly practised Larissa and Mitchell, and Rachel and educated at Ratcliffe College in ambiance of a “club member” kind she was only one of two students judge no-one, relate to all and do in criminal law. When her time as Alan’s beautiful grandchildren, Tessa, Leicestershire. He graduated of man. Marc liked company. He was in her faculty who had attended her best for every client for whom a reader was over, she took up a Ella, Nathan, Gideon and Guy, all BA (Jurisprudence) from Oxford an excellent raconteur. His broad a government high school. This she appeared. No-one worked room on the fourth floor where she provided constant love and support University and became the third knowledge extended to music, history, revelation had a significant effect harder for their clients than Sarah. remained for some time. to Alan. generation of his family to attend diplomacy and great events as well as upon her, culminating in her Their cases consumed her and After leaving Equity Chambers, From school, Alan’s future career Lincoln College. He obtained a to the law. commitment to assist as many she was indefatigable in providing her Honour established a busy had the stamp of an outstanding Diploma of Education from the Marc was also a source of perceptive ‘novices’ as she could in preparing them with the best representation practice in the Family Division of barrister written all over it. And so University of London. Marc taught advice for fellow-barristers over the them for careers in the law and possible. the Children’s Court. it was, although it might have been briefly, before becoming a Bond Street years. Marc cared about his fellows. He helping them once their careers She will be an outstanding Her Honour prosecuted cases otherwise… art dealer and university lecturer. Marc was humane. As Roald Dahl once said, commenced. Magistrate. We miss her already but for DHS but she also acted on Alan was a brilliant law student. came to Australia at the conclusion of a “Kindness — that simple word. To be Sarah spent almost a decade we are so happy for her. behalf of families and children. When he completed his degree, his round-the-world trip. Fatefully, during kind — it covers everything . . . If you’re as a teacher, advocacy coach and GEOFFREY STEWARD (ON BEHALF OF ALL Her practice extended to the mentor, Sir Zelman Cowen, arranged this time Marc met his Australian kind, that’s it.” assessor in the Bar Readers’ Course. HER GORMAN CHAMBERS MATES) Family Court and Federal Circuit for Alan to undertake postgraduate future wife, Gerri, who was to become JOHN GLOVER In addition, barely a week passed Court, with many appearances studies at Yale University. Alan’s time Marc’s lifetime companion. Together without a school or university work Magistrate Urfa Masood in family law matters, including in the US was a critical period for his they raised a family of three girls The Hon Alan H experience student spending time a career highlight when her Honour political (in Alan’s word “intellectual”) Bar Roll No. 3741 whom Marc cherished. in her chambers. appeared unled in an appeal to Goldberg AO QC awakening, which he described as an Resuming the study of law on Even though she was a Supreme first met her Honour in the Full Court of the Family Court. Bar Roll No. 774 “awakening to the horrors of racism coming to Australia, Marc graduated Court prize winner, Sarah did not February 2003, when she A former colleague from the and the very large number of people LLB from the University of ow can a few words do mention this achievement on her commenced work at the Children’s Court remembers in the world in need of help”. He was Melbourne and received a Diploma justice to Alan Goldberg’s Victorian Bar profile page, such is Victorian Aboriginal Legal Service her Honour as “a wonderful touched by Kennedy’s assassination, in Commercial Law from Monash outstanding life, a life the extent of her humility. inI the criminal law section. advocate, much respected for her Martin Luther King’s assassination, University. More recently, Marc he left after nearly 76 years? In Sarah’s talents extend beyond Her Honour had arrived at VALS impeccable preparation for cases”. the march on Washington and the graduated with an MA in Military Htruth, Alan had two lives: the private the law, being an accomplished with the uncommon background And further “her Honour is a wise effect on US society of the war in History at the Australian Defence life of a loved and loving husband, swimmer and runner at national of an excellent degree with and compassionate person”. Vietnam. In a recorded oral history, Force Academy at the University of father, grandfather and friend; and championship level. With her honours from ANU and time as a The Victorian Bar congratulates Alan said that those events deeply New South Wales. Alan’s—perhaps better known, public usual zest for fitness and health, research assistant to an Assistant her Honour on her appointment affected his sense of justice and Marc had an interesting family life—which reached its highest point she convinced a number of her Commissioner of Taxation. At the and we extend our best wishes for fairness. history. Partly he was French, which in the law, but also encompassed the sedentary Gorman Chambers ATO she quickly progressed to a successful and happy life on the On returning to Australia, he accounts for the spelling of his first arts, music, civil liberties, and, most colleagues, who rarely took 1,000 APS level 6. To PS outsiders this bench. sought political office so that he could given name. His mother was a hero importantly, the affairs of the Jewish steps in a week, to participate in is the level immediately below the GRAEME DAVIS influence some change in the attitude of the résistance in WW2 who barely community. the 1,000 steps per day endeavour. executive service. Not bad after less of Australians. He joined the Liberal

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Party and stood for pre-selection. wise. He did not shrink from making “Don’t be so humble, you’re not that Gary graduated B Juris, LL B in the United States rather than on to win that case against almost No one can know what effect he a finding that a High Court judge had, good”. Those who knew him well from Monash University and served the more traditional and well- impossible odds. would have had on Australia, had as a barrister, engaged in conduct knew that Alan was both humble and Articles with Michael Kelly. He was travelled Oxbridge route. Jack won a Jack’s generosity knew no bounds. back of the lift back he been successful in his attempt to which was an abuse of process. One “that good”. admitted to practice in March 1975. Ford Foundation Fellowship to the After that particular case, Jack took join the political system. Instead he newspaper referred to him as “having He was also inherently likeable. He established his own law University of Michigan from which me and our instructing solicitor had a profound effect on the legal the wisdom of Solomon” and another as During his long career in the law, and firm, Gary Glover & Associates. He he graduated LL M. Although not to lunch. Although the restaurant system—although he never quite lost having “reformed administrative law”. in settling numerous disputes outside practised as a solicitor for 13 years, admitted in any State, he worked with was only a block away from his political desire: Alan and Rachel’s At his Federal Court farewell, six the law in his various roles, he had first in Doncaster; then in Doncaster law firms in New York, Kansas City chambers, Jack asked to meet celebrated “Don’s Party” Election Night years ago, the Chief Justice Patrick the remarkable achievement of never and Box Hill; then in . and San Francisco. me in the carpark below. This I soirées at their home were a feature of Keane, now a High Court Judge said: offending or entering into a strained He signed the Bar Roll in May Upon his return to Australia, Jack did and Jack proceeded to open each State and Federal election. “Alan’s combination of legal relationship with anybody—that is 1988 and split his Reading between undertook Articles with Alan Corr the boot and extract two or three Alan was a brilliant barrister, learning, energy, imaginative no easy task in a profession that is by Constantine Heliotis (now QC) and at Corr & Corr. He was admitted to bottles of the finest burgundy from beginning his career reading with insight, sense of duty, wisdom and its nature adversarial. His one great Noel Ackman (now QC). practice in March 1955. several cases that seemed to reside Sir . Alan appeared fundamental decency is such that I hate was split infinitives and he often He practised at the Bar for a little Jack signed the Bar Roll in May in the boot of the car. A fine lunch in some legendary cases. He acted teeter on the edge of despair at the corrected others. over four years, before returning 1957 and read with Olaf Moodie- was had by all. for Holmes à Court in the attempted thought of the difficulty of finding Alan was a brave and tender man, to practice as a solicitor in his own Heddle (later His Honour Judge His Honour was appointed to the takeover of BHP, then Australia’s a replacement. This combination of a friend to all, and most loyal. All who firm, by then known as Glovers – first Moodie-Heddle). Supreme Court on 30 January 1991. largest company. He acted for the qualities is such as to make him, I knew him have been enriched by his in Kooralbyn, Queensland; then in Jack practised at our Bar for nearly He served until his retirement on 31 Liberal Party in the famous Chook fear, virtually irreplaceable.” presence in their lives. Wantirna South, also with offices in, 34 years, including 17 years as a Silk. August 2001. He found it difficult to Raffle election case where the And all the while Alan was involved When Alan was diagnosed with variously, Queens Road and St Kilda Initially, Jack developed a large and give up his combative nature. Even electoral officer awarded the seat of in numerous other activities: deputy- his Parkinson’s disease, he didn’t let Road, Melbourne. very busy common law practice but, though he was now sitting on the Nunawading to Labor when, after a chairperson of the committee that it affect his life significantly and he He returned to the Bar in February as his skills and experience became Bench, he continued to display his tied vote, the two candidates’ names advised the Victorian Attorney- was not fearful of it. In an interview 1996 and practised as a barrister more appreciated, he extended great virtuosity at cross-examination, were put into a hat and the winner’s General on racial vilification; last December, after the disease on Holmes List in family law and his practice into commercial law. sometimes to the utter discomfort name was drawn out. He acted president of the Victorian Council had progressed considerably, Alan related areas for a little short of 17 ½ Jack appeared in many high profile of counsel appearing. His keenness for Dollar Sweets in its successful for Civil Liberties; board member was asked how he would like to be years until his transfer to the List of cases both at trial and on appeal. of intellect was readily apparent not crushing of a union blockade; with of the TarraWarra Museum of Art remembered. “I’m just happy to be Retired Counsel on 1 July 2013. His skills as a cross-examiner were only in the court room but also in his Peter Costello as his junior. And, and of the Melbourne Symphony remembered as someone who was As a barrister he was well legendary. Whilst he could assume judgments. proudly, he acted for Mr Croon in Orchestra; and, as his great, great able to help others”, he replied. organised, capable and across the an unprepossessing indeed almost His Honour moved between the challenge to Tasmania’s anti- grandfather had been, president of During that interview, Alan said detail. Solicitors who briefed him humble manner in court, Jack had jurisdictions with ease. He was for homosexuality laws, a challenge the Melbourne Hebrew Congregation, he found the loss of independence spoke positively about his use of a mind like a steel trap and could a time the Judge in Charge of the which led to their repeal. which Alan, characteristically, rescued difficult to deal with but something impressive “mind maps” in which reduce even the most recalcitrant Commercial List and the founding In the 1980s, Alan developed a new from financial collapse. He delivered he just had to accept. He said: he would map out the things that witness to a quivering pulp. Judge in Charge of the Major Torts idea for barristers’ chambers, which dozens of papers on a broad range “When you’ve got a wonderful mattered in his case. I was his junior once acting for List. became the model for the rest of the of legal issues, gave classes to law family around you and people who Beyond the law, Gary bred and a senior disgraced banker in a His Honour was a bluff, tough Bar. In the main it involved sharing students and often spoke at his can help you, either professionally or raised horses and had a strong commercial matter. The solicitor came and hard man with that space and facilities. The chambers he grandchildren’s school, Bialik College. otherwise, it makes it easier for you interest in rodeos throughout in leaving our client outside. The quintessential heart of gold. organised and led became legendary. And Alan and Rachel gave generously but harder for them. So you’ve got Australia. solicitor explained that the client had He excelled at the Bar and he The occupants were Alan, Ron to many philanthropic causes . to strike a balance, and striking that VBN lost his job, his marriage and most excelled on the Bench. He was a Merkel, Ron Castan, Ray Finkelstein, Although Alan never sought balance is awesomely difficult.” of his mind and was under the care very modest man who eschewed Cliff Pannam and John Middleton. recognition for his activities, he Alan struck that balance until 23 The Hon John of a senior psychiatrist. The solicitor adulation or flattery. The respect Alan’s natural competitiveness had received many: an Order of Australia; July, when his fortitude, resilience requested that Jack “go easy” on him that this Bar held for his Honour him leading the Bar in introducing scholarships in his name—one at and giant spirit were finally Joseph Hedigan QC in conference, a proposition to which was demonstrated upon his Honour’s high tech into his practice: he was the his old Law School at Melbourne overcome. We no longer have Alan, Bar Roll No 560 Jack readily acceded. The client was last sitting day, a directions hearing first barrister to have a fax machine University and another at the but we have the memory of him, ohn Joseph Hedigan was born then led in and questioned by my in the Major Torts List. Virtually and the first to own a mobile phone. Melbourne Symphony Orchestra; a legacy to treasure. We will miss on 2 September 1931. He learned leader. Half an hour later, he the whole of the senior defamation Alan’s life as a barrister ended in an Honorary Doctor of Laws from you, the Honourable Dr Alan Henry died on 27 March 2016. He had to be led out, sobbing hysterically. bar attended and sat in court. A few 1997 when he was appointed to the Swinburne University; and lifetime Goldberg AO QC. graduated dux of De La Salle College The solicitor gently rebuked Jack informal words of farewell were RON MERKEL AND RAY FINKELSTEIN J Federal Court of Australia. When membership of the Melbourne and then proceeded to the University telling him that he had been warned. said. His Honour, in that gruff and elevated to the Federal Court bench, Symphony Orchestra, an honour he of Melbourne where he graduated LL Jack’s only response was: characteristic manner, thanked the Bar News observed that the Bar proudly shared with only one other Gary Albert Glover B (Hons). those present who noticed what was was “… enormously gratified at the person, Sir Elton John. “If he can’t take a bit of gentle Bar roll No 2216 At that time, Professor Sir Zelman thought to be a tear in the corner of elevation of one of its universally Yet he remained humble questioning in conference, how do you Cowan was Dean of the Melbourne his Honour’s eye as the court rose popular and best-loved colleagues” – throughout his career. In many ary Glover passed away on 20 think he will go in cross-examination?” Law School. Sir Zelman encouraged for the last time. He will be very a rare accolade. speeches Alan referred to Golda April 2016. He was 65 (born 27 his best and brightest students to This was Jack at his fearless best. sorely missed. As a judge he was fearless and Meir’s observation to Moshe Dayan: September 1950). G undertake post-graduate studies He took no prisoners. And he went WILL HOUGHTON

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Theodorus Johan the Australian Armed Forces at honours in 1957. His student work immediately to the Bar, reading with accepted the task on condition that Santamaria spoke profoundly in his an International Military Law is preserved in Res Judicatae and H R (Richard) Newton, paying a fee he could appoint the reporters and, eulogy at a memorial service at St Cornelis Lusink Convention in Ireland. the first volume of the Melbourne of 100 guineas. The pupillage was in particular, that he could engage Paul’s Cathedral when he said that back of the lift back Bar Roll Nos 1209 and 1471 He was the beloved and devoted University Law Review, in case notes abridged when he became associate a recent Oxford graduate, Ross Jim Merralls “exemplified what, at husband of Peg Lusink for 51 years. (the allotted student task) and to Sir Owen Dixon in 1960 and 1961, Sundberg. To the delight of all, Jim a fundamental level, is meant by heodorus Johan Cornelis PEG LUSINK book reviews. He was president of neither the first nor last, nor most served at the helm of the CLRs the ‘independence of the Bar’. The Lusink died on the 21st day the MULR Association and of the famous, of the associates, but one longer than the legendary founding opinions he expressed were only ever of July 2016. He was 95. James Donald Merralls Melbourne University Film Society. with a very special place, nonetheless, editor of the Authorised Reports, his own. … There was an incongruity Born in the Netherlands and The young Merralls displayed for Merralls was entrusted with Sir Frederick Pollock. The results between Jim’s appearance and his Ta graduate of Koninklijk (Royal) AM QC all the assurance, certainty, insight Dixon’s diaries and was anointed as speak for themselves—look on his personality. He was tall, and appeared Militaire Acadamie Breda, Theo Bar Roll No 616 and incisiveness of the Merralls of his biographer. That was one of the works, ye mighty and rejoice: from aloof and detached. Jim’s greatest was taken as a prisoner of war on very lawyer in Australia met any age. His opinions were fully few tasks that defeated him; it may volume 118 to volume 256, from gift was his capacity for friendship. refusing to go to Germany when J D Merralls at some time— formed, forthright and trenchant; but be doubted that he had the distance 1969 to 2016, the authorised reports … there were simply no barriers Holland was invaded at the beginning every lawyer, that is, who since there was no malice, and genuine to write the biography that he of the High Court were subjected to entry: juniors, reporters, his of World War II. He escaped and 1969 opened the Commonwealth warmth was offered to all. No-one considered justice demanded. In time, to Merralls’ selection, scrutiny, and colleagues in chambers; his luncheon walked across Europe reaching LawE Reports. Every member of the could accuse him of being politically the mantle fell to Philip Ayres. painstaking and expert review, as companions; … the solicitors who England 18 months later. On arrival Victorian Bar now in practice knew correct or necessarily discreet, but Merralls took silk in 1974. His he guided his team of headnoters’ briefed him; and the PAs on his Queen Wilhelmina, who had set up Merralls by reputation and most by there was no doubting a certain speech as junior silk, available initial fumbling attempts to compose floor.” To this might be added, young the Dutch government in London, sight, perhaps as he made his way élan: “what can one expect of an now in the digitised archive of this an accurate and succinct summary academics, and the “fellow who had awarded him the Dutch Cross of from Flagstaff Station to his eyrie on institution dressed like a concert journal, is one of the more creative of the disposition of the case and of just sold him a copy of Truth out Merit, House Order of Orange- the 18th floor of West; or his barking of vergers?”. In Victorian Bar News and most amusing of that genre. the facts and argument, and conform the front of chambers” (for the Nassau. laugh at lunch at his table in the No 156, 2014, there is a wonderful As a junior, he appeared often with to the rules of English grammar. form guide, you understand— It was intended that he should meet back of the Essoign; or in his equally summary of the storms stirred by , especially in revenue Merralls’ approach was methodical both seller and newspaper are with the N.E.I. Army in Indonesia as stately and ordered path south down Merralls, as quondam theatre critic and constitutional cases. He had two and invariable: the judgment booklet no longer with us). a 1st Lieutenant Artillerist, but whilst William Street to the mysterious and controversialist, in the 1960s readers, including Ross Robson. As was marked up by hand, pre-edited; James Donald Merralls collapsed on the ship, Indonesia fell, and he and anonymous edifice that is said fortnightly magazine, Nation (“an leader, his practice was best known key passages had a discreet line in as he left chambers in August and disembarked in Melbourne. Here he to be the Australian Club. Every independent journal of opinion”). in income tax, sales tax and stamp the margin to guide the reporter; died within the week, in sight of his was seconded to the A.I.F. serving law student who passed through Equally delightful, and indicative of duties, constitutional law, and trusts and a note with instructions and a 80th birthday, and—as it were—with with the 7th Division until 1947 when Trinity College at the University of the man and his sense of humour, and equity. In published articles pithy summary of the judgment’s his wig on and his wits about him. We he returned home to Holland and Melbourne in the 1960s and 1970s was Merralls the anonymous and in his opinions, he provided value (or defects) accompanied the shall not see his like again. his own Army. In the mid 1950’s he learned law from Mr Merralls. Australian correspondent for the the intellectual underpinning typescript of reasons. Applying the PETER WILLIS resigned to re-locate to Australia, Indomitable, incomparable, humble, leading UK equine breeders’ review, for the adoption in Australia of principles which trainers applied joining the R.A.A.F and serving as a human, Merralls has left this mortal writing under the nom-de-plume, the unincorporated joint venture to the racehorses which Merralls Constantine Nikakis Wing Commander until he reached the coil, this vale of tears, and we who Tim Whiffler (the winner of the 1867 as the preferred structure for bred with success for many years, he statutory rank age of 55. remain are the wiser for his counsel, Bar Roll Nos: 635 and 1227 Melbourne Cup, but a horse with a complex mining, oil and gas, and schooled his reporters, bringing them Theo undertook his bachelor or and the poorer by his passing. most unprepossessing blood-line). infrastructure projects. Merralls’ by degrees from maiden handicaps, onstantine George Nikakis Laws at the Jim Merralls stood out. It’s an On graduation, Merralls took up opinions on trusts were authoritative where scarcely a line of the original passed away on 2 May 2016. He and a Master of Laws at Leiden easy thing to say of a man so tall a research scholarship in the law and departed from at one’s peril— manuscript survived, through stages was 84 years old (born 1 January University Holland. He signed the but it was in his intellect and his school as an assistant to Professor there has been more than one case of increasing complexity, to higher C1932). Bar Roll in 1975 and read with social interactions that he made his David Derham; he tutored in contract where failure to heed his opinion led standards and sterner tests. Con was educated at Christ Alastair Nicholson. During his short mark. An only child, his father a for several years; he also became a litigant to later grief. Merralls could be a man of Church Grammar School, Melbourne time as a member of the Victorian bank manager who in the manner resident tutor in law at Trinity Merralls first reported for the surprises: for many of his colleagues, Church of England Grammar Bar, Theo appreciated the friendship common to many such families (as College in 1958. Generations of CLRs while an associate. His first never more than when he married in School and, on a Commonwealth and assistance that he received from also of school teachers, ministers students recalled his tutorials graced case (vol 103)—on the construction 1993 at the age of 56. It was a perfect Scholarship, at the University of a number of the Reserve Officers who of religion, military and diplomatic with tea and Jatz crackers. Merralls of a patent—was “utterly devoid match (made through the races), and Melbourne. were members of the Bar. staff) moved from city to city, Merralls served at Trinity for 13 years, of human interest”. In 1969, while with Rosemary, he raised Nora and He undertook articles with Irving After about five years as a barrister, was born in Canberra in October including as Dean, until he returned still a junior under ten years’ call, Jamie, the apples of his eye. Plotkin. He was admitted to practice Theo resigned to embark upon his 1936, and educated first in Sydney home to care for his aging parents at he took up appointment as editor Appointed Member of the Order on 6 April 1961 and came straight to farm dream. and for his secondary schooling, at the end of 1972. of the CLRs, initially as co-editor. of Australia in 1999 for services the Bar, signing the Roll on 27 April. Amongst other positions he Melbourne Grammar School, where In his first year after graduation, Politely put, when he assumed the to the judiciary and to the legal He read with D S Sonenberg. held were Aide de Camp, to H.R.H his contemporaries included Bill he published a double article on reins, the series was in a shambles. profession as the editor of the CLRs, At the end of 1964, he left the Bar Prince Bernard of the Netherlands Ormiston, JD Phillips and John Batt. constitutional law in the Australian Publication was late by several he was prevailed upon (eventually) and practised as a solicitor for 11 during an Australian Royal visit, and He excelled academically in that Law Journal and a full length piece in years and reporting was distributed to accept an honorary LLD by the years: 18 months on his own account; Aide de Camp to the Commander very fine company. Matriculating the MULR. After articles with Peter around the states (as the High University of Melbourne in 2013. And then in partnership with I F H Ross General of the N.E.I.Army. He also at Melbourne University in 1954, Balmford at Whiting & Byrne and Court itself went on circuit in a visiting fellowship in his honour for nine and a half years under the had the honour of representing he obtained his law degree with admission in 1960, Merralls came time-honoured fashion). Merralls was inaugurated in 2014. Joseph firm name Rymer Langford & Ritchie.

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Con returned to the Bar in January solicitor would want in a barrister”, November 2016 - coincidentally in the College of Law and Justice at as the bar was a small place. Their lunch the defendant was brought 1976, re-signing the Roll on 12 “a consummate professional” and a an anniversary of Kelly’s hanging. Victoria University. relationship quietly blossomed and into court by a number of prison February 1976. He taught a very courtroom “pugilist”. There, in the inimitable style He is survived by his wife Michelle they were married in 1996. officers. It was clear to all that there back of the lift back popular Magistrates’ Court unit in Coming to the Bar in 1998, Ken of an Irish wake (of which he Rozella and his three children. Ross and I often met for breakfast, had been a significant struggle the Bar Readers Course. He had one read with John Smallwood, now would have approved) - with fond His son Ivan has followed in his usually in the window of a now “out the back”. The prisoner had Reader, Geoffrey Bydder. He was a judge of the County Court of remembrances, some tears and more footstepts and is a student of law at closed restaurant in Little Lonsdale a scratched and bloodied face and involved in the re-establishment of a Victoria. Before that he spent eight laughs - hundreds of people whose Victoria University. A student prize Street called c2. We would eat hands. The prison officers weren’t Greek Orthodox Service to mark the years at Galbally & Rolfe as a lives he touched raised their glasses in Jim’s name will be endowed in his breakfast (Ross – one poached egg looking too good either. annual opening of the legal year. solicitor-advocate. He did his articles to toast him. “Such is life”, which name at Victoria University College on vegemite toast, occasionally Ross refused to continue and On 18 December 1989, he was at Paul Markopoulos & Co. Ken would point out Kelly probably of Law. with bacon, or a soft boiled egg requested the police surgeon appointed the second Judicial He was educated at Melbourne did not say. We are grateful to have Jim was a respected and admired with vegemite toast soldiers and examine the prisoner. The doctor Registrar of the Family Court of High School and the University of known him and he will always member of Greens List throughout black coffee). We would discuss the came into court and informed Australia. He brought compassion, Melbourne, graduating in Law and in be missed. his career at the Victorian Bar. current case (if we were working on Ross that in his view the injuries warmth and insight into human Arts (majoring in history). GARRY FITZGERALD He stood for all that is good and one together), the likely events of were superficial and he was fit to behaviour and a real sense of fair Professionally and personally, honourable in the practice of the law. the day, review the news, particularly continue. Ross expressed some play to the Court. As a Judicial Ken was committed, widely Dr James Rangelov Vale to a good and learned friend Hawthorn and Melbourne football disbelief at this and pointed out Registrar he was regarding by knowledgeable, thorough and VBN clubs and exchange observations what he had seen. The doctor Bar Roll No: 3869 family law solicitors and barristers thoughtful. He was also well- on the passing parade. It wasn’t replied that the prisoner had his as a good decision maker and travelled, engaging, sociable and r James Theodore Ivan William Ross Ray QC surprising that we were often entire genitals tattooed with a a hard worker. funny. Rangelov (Jim) passed referred to as the two old guys on spider web and a spider and that if Bar Roll No. 1215 He served as a Judicial Registrar His main personal interests were away on 28 April 2016. He the balcony in the Muppets, Statler he could put up with that pain he until his retirement in October 2001. history (particularly Australian died a little short of his 57th birthday l oved Ross Ray like a big and Waldorf. was perfectly fit for the hearing. He returned briefly to practice and military); cars; and renewable D(born 19 May 1959). Jim had a number brother. We lost him tragically The number of cases Ross and I Evidence to this effect was given and at the Bar, retiring finally in technologies (he was an early of casual occupations and was a on 22 May 2016. We lost him did together makes it genuinely hard the case continued. September 2003. adopter of domestic solar energy and volunteer at the Fitzroy Legal Service suddenly and much too soon. to select some that give an insight Another experience of mine with On the Peninsula, he enjoyed the Prius hybrid). There was also his for some three years before going to II first became aware of Ross when into his extraordinary qualities as Ross is, I think, unique. I was once music, singing and his “potager” – his tragic love for , the University of Melbourne, from I was in the in either an advocate. interrupted by an objection from my ornamental kitchen garden. When which gave him little reward except which he graduated in Arts and Law. late 1980 or early 1981. I was at the I once saw Ross cross-examine a own leader. Now I know that there asked his occupation, he gave it as resilience. He completed the Leo Cussen Victoria police academy. Ross spoke witness into completely abandoning are some who would suggest that he “potagier”. Ken was an author. He wrote a practical training course and was to my double squad of recruits, her claim in a proceeding. Ross did should have done that to me more VBN carefully researched history, The admitted to practice in May 1989. as he regularly did, on the role of this gently and compassionately, often, but once was enough. Chinawoman, about a murder and He later earned a Ph D at Victoria barristers in the legal system. however it should never be assumed We were appearing before the Kenneth John Oldis trial in the wild gold-boom days of University, writing his thesis on the After resigning from the force that Ross was not to be feared in then State Coroner. Ross was Melbourne in the 1850’s. This won origins of the Victorian Magistracy. and completing my law degree, court. He was. acting for an industry group and I Bar Roll No. 3257 the Victorian Community History He practised as an employee when I decided to come to the Ross prosecuted many, many was acting for one of its members. f there be an afterlife, Ken Awards for 2009. He was also solicitor with I Glenister & Bar, I approached Ross. He was, to murder and other trials involving I was cross-examining a police would be both astonished and working on books about a detective Associates, then with Kiatos & Co my delight, prepared to take me as violent crime. In one prosecution officer. I had broken one of the delighted to be able to learn in racy 1930’s pre-war Singapore before commencing practice on his his reader. involving a particularly violent commandments. I had taken my eye more from Ned Kelly and many and about Elizabeth Scott, the own account as Rangelov, Barristers I moved into chambers on the 4th criminal, at the close of the Crown off the tribunal and was focused otherI historical figures. For their first woman hanged for murder in & Solicitors. of September 1995. Ross and I got case the trial judge asked the entirely on the witness. It was late part it would not be a relaxed chat Melbourne in 1863. He was foundation Deputy along from the beginning. He made accused what he wanted to do, make on a Thursday afternoon. but a rigorous cross-examination His most enduring passion from Chairperson of the Law Institute me welcome and put me at ease. a no case submission, make an Without warning Ross leapt to his by someone who knew his subject schoolboy days was Ned Kelly. He Pro Bono Legal Assistance Scheme; Ross was incredibly busy both in his unsworn statement (this was a while feet and thundered “we object”. backwards – if something interested was a real expert, as many can and worked some 18 months (2001- practice and on the Bar Council, the ago), give evidence or say nothing. I was stunned – I turned to him Ken, he was not a dilettante. testify who accompanied him to 02) as applications manager for that Law Council, the readers’ course, The accused responded that he and said, “what have I done?” Ken died aged just 53 years on 30 Glenrowan and other Kelly sites. His scheme. teaching in PNG and the Pacific. wanted to give evidence but all he “Not you, sit down”, I did October 2016, after seven months article The True Story of the Kelly He also lectured in business law, He also had the responsibility of could see was “that Ross Ray down immediately. Turning to the bench of stoically dealing with pancreatic Armour published in the La Trobe contracts, commercial law, crime Charles, James and Andrew, their there with a grin like a hungry dingo Ross said, “we object to your cancer. He leaves a wife Catherine, Journal in 2000 established that the and employment Law at RMIT and much loved mother Jan having waiting to tear a sheep apart, so if Honour!” and two teenage sons, Alec and Kelly armour had been incorrectly Victoria Universities. passed away. I was never asked it’s all the same to you your Honour I Ross made his point. “All afternoon Ted. The sadness of his family and assembled. Now it is displayed He signed the Bar Roll in to leave the room by Ross for a don’t think I’ll bother”. your Honour has been pecking at friends is profound. correctly at the State Library of November 2005 and read with conference or a call. His attitude was While a robust and fearless your computer and scribbling things He practised as a criminal defence Victoria. Graham Keil (now Magistrate Keil). that, as an aspiring barrister, I would advocate, Ross was also scrupulously on bits of paper. It is plain to all barrister for more than 17 years. His Ken was farewelled by his family He was on Green’s List and practised have to learn to hear things and not fair. On another occasion he was of us that you are not taking notes briefing solicitors described him as and many friends at a memorial in the area of criminal law. repeat them. prosecuting a committal proceeding and you are not engaged in this “a dream to work with, everything a at Como Cricket Pavilion on 11 He continued to teach as a Lecturer Ross and Mara knew each other, in the Magistrates’ Court when after evidence!”

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The Coroner responded testily, his grandchildren Milla, Marco and chambers with Mark Rochford QC for Hillard, Rice & Garde in Mildura Judiciary. She left the Court to be directly to him for a tour- he “well Mr Ray I’m not finding this Harry. He was immensely proud of some 12 years. and Ridgeway, Pearce, Freadman General Manager Legislative Affairs became the unofficial, pro-bono cross-examination particularly all of them. During that time it was also my & Murray in Melbourne and was at Coles Myer Limited, of which she tourist guide for the village. High in back of the lift back helpful”. I leant across to Ross and He was my best friend, mentor, privilege to have had my father, Brian admitted to practice in June 1967. became an Associate Director and the mountains of far west Slovenia said, “Thanks, can you stop now?” advisor, partner in crime and battle, move my admission and to have also She signed the Roll in October that the only woman on the Executive lies the spiritual home of Leigh A. He didn’t. His immediate response fearless and honourable opponent, shared chambers with him from 1996 year, reading with Austin Asche (later Committee of the Company. Thompson. was, “There is no way your Honour teacher, trailblazer, raconteur and until his retirement from the Bar in QC, Family Court Judge, NT Chief VBN Leigh developed a love of can make that assessment when you great bon vivant! 2013 at the age of 82. Justice, then Administrator of the Slovenian culture and history and haven’t been listening.” You were a giant of our Bar and I During his time at the Bar, dad’s NT). Her father Dr Phillip Opas QC Leigh Andrew became an authority on World War II After court I thanked Ross for will never forget you. favourite saying, (usually when asked was also a barrister. He represented Thompson prisoners of war in Slovenia and Italy. the career boost and asked if he ROBERT TAYLOR in the Federal Court whilst trying to Ronald Ryan, the last man hanged He learned that some of the older Bar Roll No: 1852 was planning to do that again. He stave off a bankruptcy), who he was in Australia, with courage and people in Kozana had joined the grinned his famous Ross ray grin Brian Scheid appearing for was: “I only act for the determination. When interviewed by eigh Thompson, who was a Resistance and the local partisans and said, “if it’s as much fun as that weak and oppressed”. And he did…. the Law Institute Journal in May 1987 fearless defence barrister; during WW II. That sparked in him Bar roll no: 2249 was of course I will.” He was an accomplished cyclist, Dr Opas said he had wanted Lynne raconteur, passionate an interest in the partisans generally, We were also regularly opposed rian Scheid was born on 20 having won the South Australian to be a scientist rather than a lawyer, L“Slovenia-ophile”, dedicated carer and in particular one Hanna Szenes, and continued to be up until his March 1931, and was 85 at 1952 125 mile road Championship, and he didn’t think she would get any and proud father, passed away on in a Special Operations Executive passing. the time of his death, 9 June and was still competing as a brief. He said he happy to be proved May 2016 aged 64. paratrooper, poet and martyr. After It wasn’t always work… 2016. veteran cyclist up until the age of wrong. Leigh was a non-conformist unearthing a partisan photograph, About eight years ago, Ross rang BBrian Scheid was educated at 74, regularly racing overseas and She practised for more than 15 who disdained dogmatism in all its his meticulous research positively after the Christmas break to tell Rostrevor College, Adelaide, the South around Australia. He was one of years specialising in family law. manifestations. He once owned identified a previously unknown me that a great new restaurant had Australian Institute of Technology the pioneers at the Bar to ride to In 1982, she was appointed to the Burmese and Tonkinese cats - breeds photo of Hanna Szenes, taken just opened under the car park at the (Accounting Diploma) and Monash chambers from Glen Waverley Committee to report he favoured for their independence before she was executed. When not rear of our building. He insisted University (Bachelor of Laws). everyday, and was still occasionally to the Victorian Government on in of spirit. researching the local history, Leigh that we eat lunch there. We did and He commenced work as a doing so up until his retirement. vitro fertilisation. In 1984, she was Before the law, he was executive would travel extensively around it was excellent. Ross, I, and other telegram delivery rider with the He was a keen trout fisherman, appointed to the Commonwealth officer with the Victorian Chamber of Europe, mainly Italy. members of chambers have eaten Post Masters General Office when and in later years became an Family Law Council and, in Manufacturers. As a guest to the MCC Members there so often it came to be known he was 16, progressing to becoming “obsessed Barramundi” fisherman, 1986, became Convenor of its He was admitted to practice in Pavilion in 1972, Leigh arrived as the Joan Rosanove Chambers an accountant with that office after regularly visiting the Territory and Sexual Abuse Subcommittee. She 1978 and practised as a solicitor with dressed in hippie garb, sporting kitchen. obtaining his diploma in accounting the Gulf in Queensland in search continued on the Council as a Judge. Thomas J Nelson & Associates for blond locks below the shoulders. The We travelled to Papua New in 1961 in South Australia. After of that 1 metre prize Barra which Lynne actively supported the next around five years. He came to the Bar traditional Members were aghast, but Guinea together and taught. His this he transferred to the Official he achieved in 2010. generation of women at the Bar. She in 1983 and read with Colin Lovitt he was permitted entry as his shirt commitment in this regard was Receivers Office in Melbourne where He is survived by three of his four was the ninth woman to sign the Bar (now QC). was collared. legendary. He had readers from he worked during the sixties in the children, and five Grandchildren, Roll; one of only three women on a He had chambers in Equity He was a test cricket buff PNG and Indonesia. He travelled bankruptcy field. all of whom have become St. Kilda practising list of some 350. Chambers retired in 2013. He and deeply knowledgeable to the Pacific regularly in pursuit of In 1967 he commenced studying tragics by his influence. She had six women Readers appeared in many criminal trials, about test cricket history. He bettering access to justice and the law part time at Monash University Vale a great mentor, father and best before, in 1984, she became the always appearing for defendants could talk for hours to fellow rule of law. He was the inaugural for seven years whilst he both mate. May he always have tail winds second woman QC in Victoria. In with uncompromising dedication and barrister, Terry Sullivan, about president of the South Pacific worked and helped raise a young and smooth clear waters. His ashes 1985, she was appointed to the compassion. Glenn Meldrum, Leigh’s cricket players in the 19th century, Lawyers Association. family with four children. will be scattered over his favourite County Court, as Victoria’s first clerk of 30 years, reflects that “Leigh the bodyline series, Bradman It was once put to me that he Brian served articles with Evans fishing spot in the Jamieson River, woman Judge. There were, by then, never shirked a difficult trial, and (of course) and types of cricket effectively founded the modern Gus and Holt during 1974. He was forever to join his old fishing mate. some 80 women on a practising always did far more preparation than pitches, all in great detail. area of practice we call OHS or admitted to practice on 2 December Go Saints!!! list of some 960. When appointed he was ever paid for.” As for Aussie Rules, Leigh was occupational health and safety. In 1974. He then practised in the ROHAN SCHEID to the bench, she told Bar News: Leigh and his wife Katja spent a fanatical Carlton supporter, and my view he did, and was still at the Deputy Crown Solicitor’s Office as a ‘I experienced a great deal of time together in their house in enjoyed accompanying his father to forefront to the end. Commonwealth prosecutor from 1975 Lynnette Schiftan QC prejudice as a female barrister, Katja’s village, Kozana, in Slovenia. in the 1970’s. The support he provided to until 1988, prosecuting offences as from the community generally, It is a tiny village in the district of 23 years to the day before he Bar Roll No: 823 members of the Bar at a personal varied as producing liquor with an from solicitors and from the Brda on the present Slovenia-Italy succumbed to bone cancer, Leigh’s level was both discreet and unregistered still to drug importation. ynnette Rochelle Schiftan QC Bench. However, I suffered no such border. They were hospitable and wife, Katja gave birth to their son, invaluable. In our chambers he He was called to the Bar in May passed away on 28 August prejudice from other members of generous hosts to friends from the Andrej. Having completed combined displayed a real concern for our 1988, where he read with Peter Murley. 2016. She was 74 (born 6 March the Bar, who formed a protective Victorian Bar who visited them and Science & Music degrees at ANU, welfare and was truly “head of During his 24 years at the Bar L1942). barrier around me, which I holidayed there. Andrej returned to Kozana in late chambers”. He loved Mara deeply as he practised mainly in the fields of Lynne Schiftan (née Opas) was remember with great affection.’ Indeed, Leigh became an expert 2016, armed with two saxophones. he did Charles (and Alison), James, bankruptcy and company insolvency, educated at Methodist Ladies College When Schiftan resigned from the in the history of Kozana so that Leigh would love that. Andrew, Christian (and Daniela) but also maintained a regular and the University of Melbourne bench in 1988, she was still the only any English-speaking tourists BENJAMIN LINDNER and Alexandra. He was besotted by criminal defence practice. He shared (LL B). She split Articles between female member of the Victorian State that might visit would be referred

76 VBN VBN 77 Victorian Bar readers back of the lift september 2016 David Clifford Turner in its Masters of Laws program. a Director of Barristers’ Chambers Of course, even with the Limited in 1988, 1992 and 1993 and Bar Roll No 3857 determination to master a defined was a mentor to four readers. One of back of the lift back area of the law, the information must those readers, John Philbrick (now any people were come from somewhere. David had QC), fondly recalls his time sharing surprised to learn wonderful library of books to call chambers with dad. of David’s passing upon in his chambers that he shared In all, he spent just under 30 after his name was posted in the lift with anyone who needed it. Certainly years at the Bar, practising mostly onM 2 August 2016. He had been ill for he would be pleased to know that in personal injuries, insurance and a while, but it did not seem to show. the library has now been assimilated family law. His career featured a He always had a great aura of vitality back into the Bar. number of High Court appearances. about him, mainly because he was so David leaves behind his beloved wife Mum and dad were blessed with interested in everyone around him. Yvonne and sons Alex and Nick who five children and two grandsons. We Despite his relatively short period were always referred to as Yvonne, love and remember dad as a brilliant of time at the Bar, David left quite an Alex and Nick as if we all knew them. conversationalist, debater, and an impression. One thing that ensured JUSTIN O’BRYAN avid reader with a big appetite for life that he stood out was that David and a great sense of humour. Dad was treated everyone as if he knew them. David Willshire also a founding member of the North That was regardless of whether he Balwyn Rotary Club and received the did or didn’t know them. Some people Bar Roll No 762 Paul Harris medal in recognition of found that comforting. Some people y father, David his service. found it unnerving. Some people Willshire, just He made his last court appearance BACK ROW: Christopher Wareham, Leigh Howard, Nicholas Cozens, Oliver Cain, Yi-Chuan Chen, Eamonn Kelly, Jonathan Bayly, Tass Antos, Jennika Anthony-Shaw, Bradley Parker, went on-line to work out who the hell missed out on in the Banco Court in 2002 when he Ben Petrie, Emma Heggie, Victoria McLeod he was and whether they did know MIDDLE ROW: Emily Clark, Paul Lamb, Roshena Campbell, Stephanie Hooper, Sarah Zeleznikow, Emily Golshtein, Nicholas Wallwork, Shaun Clement, Mitchell Latham, Andrew Burnett, reaching his 80th birthday. Given how came out of retirement to don his robes Katrina Webster, Sarah Worsfield, Christie Jones, Roshan Chaile, Katherine Rolfe, Wendy Pollock him. All of this was fine with David. It much he enjoyed a celebration, we and move my admission as a solicitor. SEATED: Rachel Chrapot, Franceska Leoncio, Amie Hancock, Katie Manning, Amanda Upton, Bridget Slocum, Natasha Mawa, Alghiffari Aqsa, Margarita Yerusalimsky, Laura Johnston, M Mia Clarebrough, Jillian Williams, Emily Clark, John Maloney was like he was conducting his own made sure that he was sent off in Although he didn’t get to see me sign survey of humanity and prodding a style at his memorial service at the the Bar Roll this year, the photo of dad few sensitive spots along the way. Kew Golf Club. in his Rumpole finery will take pride of Above all else David always showed Fortunately, dad enjoyed good place in my chambers. a genuine concern for his colleagues health, living the golden life of a WITH LOVE, CHRISTINE WILLSHIRE and had a sympathetic ear for those retiree, until around six months in need of one. before he died. He had a short Beyond his usual congeniality battle with cancer during which he David was a serious lawyer with was cared for lovingly by his wife, a comprehensive knowledge of, Pat. They were married for over 50 and interest in, the law. He was years and mum was with him as he particularly knowledgeable in the peacefully passed away in March area of personal property securities 2016, at Cabrini Hospital. law. Before coming to the Bar, David Dad had an adventure-filled Gonged! had worked as corporate counsel childhood, growing up on the with Ford Credit Australia and land in Mildura, the fourth of five later as Senior Solicitor with the Queen’s Birthday Honours, children. At Mildura High School, State Bank of Victoria and then the he excelled on the sporting field Australia Day Awards etc Commonwealth Bank. as well as academically, and was a At the Bar he read with Will The Honourable Raymond House Captain. He was awarded Alstergren QC. Even though he Anthony Finkelstein AO, QC a scholarship to study law at came to the Bar late in his career, Melbourne University, residing at The Honourable Justice he was open to the challenge of Trinity College. As talking was his Arthur Robert Emmett AO developing new skills to be effective main hobby, the law seemed like a as a barrister. He was constantly The Honourable Ian Vitaly Gzell AM, QC natural choice. absorbing new ideas and strategies The Honourable Admitted to practice in 1959, he for life at the Bar. His main area of Alan Robert Stockdale AO practised at Slater & Gordon, then practice was in personal property Alexander Grant Dixon & King. He securities law. He also taught signed the Bar Roll in July 1965, personal property securities law as a reading with Ken Marks (Victorian Senior Fellow of Monash University Supreme Court Judge). He served as

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scholar, official spokesperson of the How do you achieve work/life James Montgomery QC (as his Honour Palestinian delegation to the Middle balance? Golfzon. then was). East Peace Process. I suspect that in Name a restaurant you like. Country What is your favourite song? Gimme back of the lift back her part of the world the “glass ceiling” Victoria. Shelter, The Rolling Stones. is double-glazed. What is one of your guilty Name a painter that you like and tell pleasures? Kicking at the clock. us why. Jeffrey Smart. Timothy Seccull SC Name one person who inspires you. How do you achieve work/life When you were a child, what did My mother. balance? Yoga, and then more yoga. you want to be when you grew up? Name a restaurant you like. Bar Di A cricket ground curator, agricultural John Kelly SC Stasio. scientist, chef and barrister. When you were a child, what did What is one of your guilty What book will you be reading this you want to be when you grew up? pleasures? The odd Mars Bar. summer? Hopefully something travel, A “bannister” like my uncle Jarleth in Name one person that inspires you food or wine related. Dublin. Bryan Stevenson, an American human What was your favourite junior What book will you be reading this rights lawyer and anti-death penalty brief? Stingel v Clark [2006] HCA 37. summer? The Great Terror by Robert campaigner. What is your favourite song? The Conquest. original theme to The Italian Job by What was your favourite junior Penny Neskovcin SC Quincy Jones brief? The re-trial of Bryce Jabaljarri When you were a child, what did you Name a painter that you like and Spencer in Alice Springs, led by the want to be when you grew up? For tell us why. Rover Thomas and Robert indefatigable Marie Shaw QC, in which a fleeting moment I thought I had a Dickerson – both powerful chroniclers we were promised riches beyond our vocation to be a nun. Sister Biddy, my of their respective times. imaginings if we secured an acquittal. primary school teacher, took us to the FRONT ROW L-R: Hamish Austin SC, Penny Neskovcin SC, Timothy McEvoy SC, Michael Borsky SC, Daniel Star SC, Rozeta Stoikovska SC, Andrew Broadfoot SC MIDDLE ROW L-R: Julie Condon SC, Amanda Fox SC, John Kelly SC, David Hallowes SC, Theo Kassimatis SC, Jonathan Evans SC, Tom Cordiner SC TOP ROW L-R: Timothy Seccull SC, Paul Connor SC, Michael Cahill SC, Daniel Crennan SC How do you achieve work/life What is your favourite song? convent and I saw that each nun had her balance? Family, exercise, cricket, Changes constantly. Presently, either own bedroom. Coming from a family of gardening, cooking, food, wine and Rednecks by Randy Newman or Our six children, that was very appealing. What is your favourite song? At the humour. Song by Joe Henry. What book will you be reading this moment, Happy by Pharrell Williams. New silks Q&A Name a restaurant you like. Cumulus Name a painter that you like and summer? The Road to Character, David Name a painter that you like and Inc, Supernormal and Marion Wine Bar. tell us why? Again, a toss-up between Brooks. tell us why. I know little of art, but I In November 2016, the Hon Chief Justice Warren AC appointed the What is one of your guilty Paddy Bedford and Wayne “Iggy” Eager What was your favourite junior recently saw Tintoretto’s The Washing pleasures? Still-warm, freshly-baked – both masters of the second coat. brief? Appearing for Bendigo following barristers as senior counsel in and for the State of Victoria. of the Feet at the Prado Museum. “Sprout and Seed” loaf from Loafer How do you achieve work/life Bank in the Great Southern group I was blown away by his ability to Bread. balance? My family says I don’t have proceedings. I made a lot of friends as create perspective. The viewer has to Michael Cahill SC pleasures? Sleep-ins on weekends. Name one person who inspires you. any when I’m running trials, but I say a result of that brief. step sideways to experience Christ When you were a child, what did Name one person who inspires you. Atticus Finch. I take my unpleasantness out on them What is your favourite song? This is and St John appear to move from you want to be when you grew up? Senator Pat Dodson. and there’s a balance in that. a hard one. For now, I’ll say More Than the right hand side of the massive A Richmond footballer. David Hallowes SC Name a restaurant you like. Rice This, by Bryan Ferry canvas to become the central focal What book will you be reading this Rozeta Stoikovska SC When you were a child, what did Paper Scissors in town. Name a painter that you like and point. Apparently, it was painted that summer? The Hanged Man: The Life When you were a child, what did you want to be when you grew up? What is one of your guilty tell us why. Gustav Klimt, for the way because it was commissioned by and Death of Ronald Ryan by Mike you want to be when you grew up? To open the bowling for Australia and pleasures? Bunking off early to see a symbolism and story behind the Monks to hang in a hallway. Richards. An astronaut, archaeologist or lawyer – play on the wing for Melbourne. film during the day. Beethoven Frieze. How do you achieve work/life What was your favourite junior one out of three ain’t bad. What book will you be reading this Name one person who inspires you. How do you achieve work/life balance? Reading, gardening, brief? Getting an acquittal in Victoria’s What book will you be reading this summer? Stroke of Genius by Gideon Mum: she raised eight kids on her own balance? By trying to get a bit of Macedonian dancing, and enjoying as only people smuggling trial. summer? Whatever Santa brings. Haigh. in a foreign country with no family of exercise every day. many camping trips as possible with What is your favourite song? At the He never includes law books, but I What was your favourite junior her own around and there isn’t an ice Name a restaurant you like. Bacash. my family. moment, Totality by The Peep Tempel. might consider dusting off my copy of brief? The case of the brawl at Percy addict amongst us…Yet. What is one of your guilty Name a restaurant you like. Any Name a painter that you like and tell Gowans so I can work on this “gravitas” Jones’ hotel, in which the Carlton CIU pleasures? I cannot abide reality TV any restaurant that does not push a us why. Adam Cullen, for his striking thing that seemed to feature in several took on the late, great Raef Johanson. Julie Condon SC shows, but I make an exception for “degustation” menu. examination of crime. I’m fortunate to of the lovely notes I have received. Raef beat them in the fight and then When you were a child, what did Gogglebox. What is one of your guilty have one of the paintings from his Ned What was your favourite junior beat them in the trial. you want to be when you grew up? A Name one person who inspires you. pleasures? Having a lie in on Sunday Kelly series in my chambers. brief? Defending a young man What is your favourite song? The ballerina. My partner, Colin. morning with a cup of coffee and How do you achieve work/life charged with hacking into the Nosebleed Section by Hilltop Hoods. What book will you be reading this listening to Macca’s “Australia All Over” balance? Not very well. computer system at Swinburne Name a painter that you like and tell summer? The power of the dog by Don Mandy Fox SC on 774. Name a restaurant you like. Circa, Institute (as it then was) – ironic, for us why. Andrew Seward, because his Winslow. When you were a child, what did Name one person who inspires you. The Prince those who know me, as I can still work improves the look of chambers - What was your favourite junior you want to be when you grew up? Dr Hanan Ashrawi – legislator, activist, photo courtesy of peter bongiorno courtesy photo What is one of your guilty barely drive a computer myself. at least more than the “owl picture”. brief? R v Clare MacDonald, junior to An architect.

80 VBN VBN 81 back of the lift

What book will you be reading this Name a painter that you like and tell Name a restaurant you like. Bacash, Ltd – working with Henry Jolson QC and Tom Cordiner SC the original, I wrote to Arnotts summer? The Good People by Hannah us why. This is an easy one – Karen in Domain Road. Michael Bacash can Graeme Clarke QC. and complained – while the When you were a child, what did Kent. Salter (my wife), who currently paints cook a flounder better than anyone. His What is your favourite song? Right flavour was “new”, it certainly was back of the lift back you want to be when you grew up? What was your favourite junior 1960s Caulfield houses in an wife Fiona runs the place impeccably. n o w, On Hold, by The xx. not “improved”. Needless to say, A helicopter pilot. I was particularly brief? All three committals I did with optimistic postcard way on a nice What is one of your guilty Name a painter that you like and tell Arnotts bent to the force of my written taken with the idea of being in a Robert Richter QC. sunny day. Check out www.karensalter. pleasures? As Dorothy Parker would us why. Tom Alberts – a good friend advocacy and I can once again sate my constant state of almost falling. Make What is your favourite song? com. have said, I like to have a martini, two and a great and playful painter. guilty pleasure. of that what you will. Hallelujah – the Jeff Buckley version. How do you achieve work/life at the very most … How do you achieve work/life Name one person who inspires you. What book will you be reading this Name a painter that you like and balance? I look forward to someday Name one person who inspires you. balance? By trying to take 10 weeks’ Elana Cordiner. summer? I’m not sure I’ll have time to tell us why. Leon Spilliaert. I saw an having the answer to this important Frances Perkins is pretty inspirational. holidays each year. read a book this summer. I have about exhibition of his work and loved it, question. One can only try different She was FDR’s Secretary of Labor. Name a restaurant you like. Andrew Broadfoot SC six months’ worth of New Scientist especially The Bathing Girl. things. Perhaps as much of an architect of the Donnini’s in Carlton. When you were a child, what did and four years of the podcast Stuff You How do you achieve work/life Name a restaurant you like. Not New Deal as FDR himself. What is one of your guilty you want to be when you grew up? Should Know to get through. If I do balance? Exercise and spending a lot exactly fine dining, but I like places pleasures? Owning pinball machines. Captain of the Australian cricket have time, a friend has recommended of time with non-lawyers. like Pellegrini’s or a good Middle Paul Connor SC Name one person who inspires you. team. East West Street by Phillipe Sands. Name a restaurant you like. Eastern restaurant. When you were a child, what did Barack Obama. What book will you be reading this What was your favourite junior Ciccolina. What is one of your guilty you want to be when you grew up? summer? Prince of Penzance: The brief? Seafolly v Fewstone. The subject What is one of your guilty pleasures? In winter, eating hot chips An opening batter for Australia. Hamish Austin SC Extraordinary 2015 Melbourne Cup, matter was risqué, I was opposed to pleasures? Online shopping while while watching Collingwood at the What book will you be reading this When you were a child, what did by Kristen Manning. my mentor for the first time, I was waiting for jury verdicts. footy with my sons (we cannot view a summer? Catherine Hanley, Louis the you want to be when you grew up? A What was your favourite junior instructed by a team of very capable Name one person who inspires you. game without this ritual). Currently, French Prince who invaded England, soldier, preferably in the SAS. brief? Acting for an elderly widow and humorous lawyers, I had to lead David Attenborough. watching a few different series on Yale University Press, 2016. What book will you be reading in the Heidelberg Magistrates’ Court. evidence from a series of witnesses Netflix or Stan late in the evening with What was your favourite junior this summer? A police procedural/ She was being sued for $400 by the who attended by subpoena, and all Dan Star SC Karen while eating cake or chocolate. brief? Roads Corporation v Carter detective thriller. stonemason who had made her late before the excellent Justice Dodds- When you were a child, what did Name one person who inspires you. [2010] VSC 273. What was your favourite junior brief? husband’s headstone. The claim Streeton, with the honour of appearing you want to be when you grew up? Muhammad Ali. What is your favourite song? Tattler, A tie between the Timbercorp class was successfully defended because to collect judgment on her Honour’s The number 1 tennis player in the Ry Cooder (from ‘Paradise and Lunch’, action trial in 2011, as part of a team with the stonemason had misspelled the last day at the Federal Court. world and a Wimbledon champion Timothy McEvoy SC Warner Bros, 1974). Jonathan Beach QC (as his Honour was) deceased’s name on the grave. What is your favourite song? (in the vein of Bjorn Borg, not John When you were a child, what did Name a painter that you like and and Charles Parkinson, and the litigation What is your favourite song? I cannot seem to fix on one favourite McEnroe). you want to be when you grew up? A tell us why. Wassily Kandinsky. Joy, flowing from the Huon corporate Changes all the time. At the moment song. Standouts are: Islands In The What book will you be reading this fireman. Until I was about 10. Don’t tell energy, colour and spirit. collapse in 2006, with Michael Sifris SC it’s Danger Zone by Kenny Loggins, Stream by Dolly Parton and Kenny summer? Fiction only. I have had Peter Marshall. How do you achieve work/life (as his Honour then was). There are only because I watched Top Gun on Rogers; What’s Love Got To Do With It Steve Toltz’s A Fraction of the Whole on What book will you be reading this balance? Hugging my wife and quite a few others that only just miss out. DVD the other weekend. by Tina Turner; The Frog by Infected the bedside table for some time so it summer? The American President. children, playing with the Lex Pistols, What is your favourite song? King of Name a painter that you like and Mushroom; The Final Countdown has the inside running. William Leuchtenburg’s magisterial occasional exercise. Pain by The Police. tell us why. Fred Williams – great by Europa; and Love Yourself by What was your favourite junior study of the Presidency in the 20th Name a restaurant you like. Name a painter that you like and tell Australian contemporary landscapes. Justin Bieber (and to give that some brief? A tie between: Century. And I will finish Dinner with Centonove. us why. Hieronymus Bosch – his vivid How do you achieve work/life credibility, written by Ed Sheeran). ACCC v Safeway - a competition law Edward, A Story of an Unexpected What is one of your guilty pleasures? imagery, to which I was introduced by balance? Fishing. Name a painter that you like and case in my first year at the Bar which Friendship. A delightful little book. Watching the my mum (a teacher, including of art), Name a restaurant you like. tell us why. I found myself completely was effectively a year-long trial before What was your favourite junior win (it is probably best that one’s guilty fascinated me as a child. Caterina’s on Queen Street. absorbed by The Starry Night by van Goldberg J, which then went on appeal brief? Acting, successfully, for an pleasures are enjoyed infrequently). How do you achieve work/life What is one of your guilty Gough in the Musee d’Orsay last to the Full Federal Court, followed by eminent person the subject of an Name one person who inspires you. balance? By taking advantage of any pleasures? I can’t walk into a fishing year – the crowds seemed to evaporate special leave applications to the High Ombudsman’s Inquiry. My father. downtime by putting the phone on tackle shop without spending more and I have no idea how long I was Court (junior to Jack Fajgenbaum QC, What is your favourite song? It divert and just staying home to be a than $100. standing there. Robin Brett QC and Tim Ginnane) - a seems not quite right to describe it as Jonathan Evans SC husband and father – and always being Name one person who inspires How do you achieve work/life case about the price of bread; and a song, but Zadok the Priest. Written When you were a child, what did home to read with my two sons and put you. Nelson Mandela. balance? By sleeping less. That and the recent Essendon/Hird-ASADA by Handel for the Coronation of you want to be when you grew up? them to bed, even if they end up just taking many and long holidays. I don’t Federal Court litigation at trial and an George II. I think it is sublime. I never had a clue what I wanted to getting up again five minutes later … Theo Kassimatis SC think it is really a case of balance so on appeal (junior to Tom Howe QC and Name a painter that you like and become. This continued into university, Name a restaurant you like. Lulo, in When you were a child, what did much as a see-saw, but it seems to Sue McNicol QC) - there is nothing tell us why. Peggy Napangardi Jones. where I finished an arts degree before Glennferrie Road – great tapas. you want to be when you grew up? work out in the end. quite like a footy case in Melbourne. I love her birds, her bush tucker and starting law. What is one of your guilty Bruce Lee. Name a restaurant you like. Mr Myagi. What is your favourite song? To her colour. She died in 2014. She was What book will you be reading this pleasures? Mint Aero bars. What book will you be reading this What is one of your guilty give a slightly non-responsive answer, unique. summer? The Windup Girl by Paolo Name one person who inspires you. summer? Dostoyevsky’s The Idiot. pleasures? Pizza Shapes (original). many of the tracks on the Beastie How do you achieve work/life Bacigalupi. My two-year-old daughter – when she What was your favourite junior When they brought out the “new Boys’s electronic instrumental from balance? Not so well lately. An area What was your favourite junior brief? smiles, everything seems better. brief? My first appearance in the and improved” flavour and dumped 1996, The In Sound from Way Out! for improvement. Pinnacle VRB Ltd ats Expectation Pty Supreme Court. It was during my

82 VBN VBN 83 reading period and I was led by my What book will you be reading this Michael Borsky SC mentor, Judge Allen, in a murder trial. summer? Mad as Hell: The Crisis of When you were a child, what did What is your favourite song? Bruce the 1970s and the Rise of the Populist back of the lift back you want to be when you grew up? A Springsteen’s Growing Up. Right by Dominic Sanbrook. premiership centre half forward. Name a painter that you like and What was your favourite junior What book will you be reading this tell us why. The Impressionists – brief? Bell v Westpac. summer? Hillbilly Elegy. their work is out of focus for one and What is your favourite song? Hard What was your favourite junior all, not just the vision impaired. times come again no more by Stephen brief? Castles v Secretary to the How do you achieve work/life Foster. Department of Justice [2010] VSC 310 balance? By spending as much time Name a painter that you like and (a prisoner’s rights case for the Human as I can spare in the company of tell us why. Lewis Miller. I have Rights Law Centre, junior to Debbie friends or family who care little for followed his career with interest Mortimer QC, as her Honour then was). the law. since I was at university. I like the What is your favourite song? When Name a restaurant you like. subtlety and character of my portrait the Saints Go Marching In (and I don’t Skandeia, in Paliopolis, on the island of Hazel, his muse. get to hear it often enough). of Kythera. How do you achieve work/life Name a painter that you like and tell What is one of your guilty balance? By spending my time with us why. Monet. pleasures? Good tobacco. my family and away from Melbourne. How do you achieve work/life Name one person who inspires Name a restaurant you like. balance? Long holidays. you. My father. Rubira’s @ Swallows. Name a restaurant you like. What is one of your guilty Ciccolina. Daniel Crennan SC pleasures? Netflix. What is one of your guilty When you were a child, what did Name one person who inspires pleasures? Game of Thrones. you want to be when you grew up? you. Sir Richard May. Name one person who inspires you. A spy. Elie Wiesel.

Victorian Bar council 2016-2017

standing (l-r): Andrew Denton (Honorary Secretary), Sam Hay, Karen Argiropoulos, Susan Gatford, Dr Ian Freckelton QC, Ted Woodward SC, Simon Marks QC, Daniel Bongiorno, Elizabeth Ruddle, Justin Wheelahan, Julia Frederico, Nicole Papaleo sitting (l-r): Paul Holdenson QC, Matthew Collins QC, Jennifer Batrouney QC, Wendy Harris QC, Chris Winneke QC

84 VBN VBN 84 THE ART OF CHAMPAGNE SINCE 1836

visuel pommery FLEUR 270 x 205.indd 1 30/07/13 12:08 Boilerplate boilerplate comparatively thin piece of stone ... Despite the limited support we get After that, it’s no surprise that kitten, at least, A BIT ABOUT WORDS or other hard material, artificially from botany for the leaf metaphor, fell out of favour as a reference to women. shaped for some purpose”; “a slab or many of us use the word folio to panel, usually of wood, for a picture refer to a sheet of paper, generally overtones of general inferiority. “sea-weasels or sea-dogs breed or inscription”; and “a small flat or one of superior importance. It comes A fingerling is a creature with the their young whelpes or kitlings”. But compressed piece of some solid directly from the Latin folium (leaf) qualities of size and shape of a finger, the quotations in OED show that, confection, drug, or the like;... a flat and indirectly from French feuille specifically a parr: a young salmon from early in the 17th century, kitling cake of soap”. (leaf). Until the middle of the 19th before it becomes a smolt. A fingerling referred specifically to young cats, A tablet as a delivery mechanism century, a portfolio was readily is also one of the fingers of a glove. and it had a parallel existence with for medication is arguably its understood as a holder containing With this meaning (belonging kitten until the late 18th century. Kitten commonest sense, although iPads loose leaves of paper. At the same to or concerned with the qualities was used occasionally to refer to have reintroduced the much earlier time, it came to mean a receptacle of) the relevant noun or adjective, the young of other animals, such as idea of “a small smooth inflexible or for documents of State concerning -ling comes from the early Teutonic weasels (1495), beavers (1895) and stiff sheet or leaf for writing upon”, a particular subject matter, and it languages (Old English, Old High rabbits (1964). In 1972 Watership which is supported by quotations was a small step from that to the German etc) and it admitted a Down has “Clover’s had her litter. All from 1611 to 1885. metaphorical reference these days number of other useful, but now good, healthy kittens. Three bucks A younglet is a small, young to a defined area of ministerial forgotten, words. So, a ropeling was and three does.” This shows a good, creature—an expression used by responsibility. a prisoner; a hireling was a person healthy mixture of terms generally Rolf Boldrewood to describe poddy It was not until about 1930 that hired to do a particular task; an reserved for other animals. Kitten was calves in A Colonial Reformer in 1890. portfolio came to mean a collection of evenling was a person of equal first used in the early 14th century It is a pity it has fallen out of use. shares or other tradeable securities. quality or merit; a fatling was a calf, and (like most kittens) seems to be Shakespeare referred to kinglets, There is probably a simple reason lamb, or other young animal fatted here to stay. at a time when kings were common which explains why leaf, leaflet and for slaughter. This honour is now From 1870 to 1970, kitten was, as enough to make it useful to folio are so readily understood as bestowed on yearlings. A wasteling OED puts it, “applied to a young distinguish the greater from the relating to a sheet of paper, but I was a thing spoiled for its ordinary girl, with implication of playfulness lesser. Other examples of the suffix don’t know what it is. Oddly, I was use, and discarded as worthless. or skittishness”. The first quotation Letlings & Linglets are found in booklet, brooklet, courtlet, encouraged when I discovered that And a sibling was a person with the in support of this use is DJ Kirwan crownlet, dukelet, hooklet, jokelet and the OED recognises foliole as “one quality of kinship. In Old English, Palace & Hovel: “The ‘Kitten’ is a keylet. Of these, only booklet remains of the compound divisions of a leaf, a sib was anyone related by blood blonde, with black eyes, a pretty, JULIAN BURNSIDE in use with its original, literal a leaflet”. But I was disappointed to or descent. Sibling is now used in babyish face, a profusion of golden meaning. find that foliolet is not recognised. fashionable or sociological writing to hair.” Perhaps not surprisingly, etling and linglet are metaphor. Platelet could theoretically In botany, a leaflet is a small leaf The -let suffix is often confused refer to a brother or sister. the last quotation in support of both made-up words. be used to describe a small plate or (occasionally) a petal. Its more with the -ling suffix. That is a But the meaning of -ling got this usage comes from The Female They do not appear in (say, in a doll’s house); but it is common use is as a small piece function of its mixed etymological confused because Old Norse Eunuch by Germaine Greer. At the dictionary. specifically a medical term these of paper with printed writing on roots. recognised it as a diminutive suffix, page 281 of The Female Eunuch, But they probably days: a reference to the tiny plate- it, usually (as OED points out) for The -ling suffix is seen in such just like -let. So from early times this lacerating sentence appears: seem familiar, or at least like corpuscles in the blood. free distribution. The connection words as foundling, darling, yearling we had suckling, gosling, fishling, “There are the cute animal terms plausible, because they both follow Similarly ringlet, armlet, bracelet between reading matter and botany and underling. In its primary and duckling. From these uses, its [to describe women] like chick, Lfamiliar patterns. They are the sort of and tablet. The commonest meaning is not obvious but we refer, without meaning it denotes a thing which diminutive sense developed an bird, kitten and lamb, only a shade words you might try in a difficult spot of ringlet is “curled lock or tress of hesitation, to leafing through a book, “belongs to or is concerned with” overlay of youth. of meaning away from cow, bitch, playing Scrabble. hair” although it originally signified a and we think—perhaps more self- the adjective or noun to which it Incidentally, by attaching the hen, shrew, goose, filly, bat, crow, English uses affixes—prefixes small ring. An armlet is “an ornament consciously—of each page as a leaf of is attached. So, foundling is a noun -ling suffix to the verb suck we get heifer, and vixen ...”. After that, it’s no and suffixes—wantonly and to great or band worn round the arm”. It only a book. And we understand without describing a person or thing which the noun suckling. But suckling is surprise that kitten, at least, fell out effect. -let and -ling are both easily means a small arm in reference to effort that to turn over a new leaf has been found (more accurately, in also used as an adjective (suckling of favour as a reference to women. recognised suffixes. an arm or branch of a river. To refer signifies a new page in our history. So 19th century London, an unwanted pig, etc) and, because it looks like The OED has no later quotations -let as a suffix invokes a small to a baby’s armlet could only be leaflet is easily understood. child who was given away into State a present participle, it prompted a supporting the usage, and its entry version of the noun to which understood as a weak joke. A bracelet It’s a curious metaphor, because care). Darling (originally dearling) back-formation to create the new for bitch (with its last supporting it is attached. The pattern is is a small bracel: an ornamental ring very few trees have leaves which referred to someone who was dear verb to suckle. quotation from 1956) says “Applied familiar enough: or band worn on the arm or wrist, are capable of being used, directly to the speaker. A yearling is an Another forgotten use of the opprobriously to a woman; strictly, so it was once the same as a ringlet, or indirectly, as writing material. animal a year old; it is specifically diminutive -ling is ketling or kitling. a lewd or sensual woman. Not now plate .. platelet although the two words could hardly Papyrus—the physical and concerned with animals, not children. From 1340, this referred to the young in decent use; but formerly common stream .. streamlet be confused these days. It comes etymological source of paper—is an Perhaps that is because yearlings of any animal, but from 1530 came in literature. In mod. use, esp. a to us from Old French. Tablet has a aquatic plant of the sedge family. Its are generally prized as good eating. gradually to refer to young cats, malicious or treacherous woman; ring .. ringlet number of meanings, only remotely stem is used as the stock for writing An underling was a person who had hence kitten. But kitling continued to of things: something outstandingly Generally, the diminutive formed connected to tables. The OED defines material. It does not have leaves in the quality of being subordinate to refer to the young of other animals. difficult or unpleasant.” illustration by guy shield by illustration by the -let employs some kind of tablet variously as “a small, flat, and the usual sense. another, although it quickly acquired In 1603, Holland described how Germaine Greer was right.

86 VBN VBN 87 boilerplate MUSIC Taurus and Stairway to Heaven, a Boston pub and persuaded him to focusing on the plucked guitar bring the infringement suit. arpeggios in the opening of The second precipitating factor boilerplate Skidmore v Led Zeppelin – Who owns each song. was the decision handed down on 16 In an interview in April 1991, Wolfe May 2014 by the US Supreme Court the Stairway to Heaven? was asked about the possibility that in Petrella v Metro-Goldwyn Mayer, Led Zeppelin had copied the opening a case about the classic Robert de of Taurus, and responded that Led Niro/Martin Scorsese film Raging ED HEEREY Zeppelin members “used to come up Bull. The Supreme Court ruled that and sit in the front row of all [Spirit’s] the applicable statute of limitations shows and became friends and if they would not bar a copyright claim had never heard of the 1960s Californian wanted to use [Taurus], that’s fine.” made many years after the relevant psychedelic rock band Spirit until I came Later in that interview, he reiterated, copying, but would merely limit the across this case. “l’ll let [Led Zeppelin] have the damages claim to the last three years. Spirit formed in 1967 and revolved around beginning of Taurus for their song Shortly after that, on 31 May the teenage guitar prodigy Randy Wolfe. without a lawsuit.” 2014, Malofiy filed his complaint on So the story goes, when Wolfe was 15 years Wolfe never took legal action behalf of Skidmore and the Randy old, he was discovered playing guitar in a music shop by against Led Zeppelin. He died Wolfe trust. The headings of his Jimi Hendrix and they played together in the band Jimmy tragically in 1997, drowning while complaint used the distinctive type James and the Blue Flames. Hendrix invited Wolfe to rescuing his 12 year old son from a font used in Led Zeppelin’s cover travel to London to join the newly formed Jimi Hendrix rip current in Hawaii. His copyright art, and claimed not only copyright Experience, but Wolfe declined because his family wanted I went to a trust overseen by his infringement but also “falsification him to finish school. mother until her death in 2009, and of Rock’n’Roll history.” Sprit released its debut album Spirit in January 1968, since then by Michael Skidmore, a The court moved the case from which broke the Billboard Top 40 chart and included a 2 London-born music writer who had Philadelphia to Los Angeles, rejecting minute 37 second instrumental titled Taurus, written by helped compile new Spirit albums Malofiy’s argument that his hometown Wolfe when he was 15 and featuring an ethereal plucked from Wolfe’s old recordings. was the appropriate venue by reason guitar line and melody. Two factors precipitated the launch of a 1985 Led Zeppelin reunion in Meanwhile a new band was forming in London, out of the current litigation in 2014, 43 Philadelphia for Bob Geldoff’s Live of the remnants of the Yardbirds, and performed its first years after the alleged copying. Aid fundraising concert for Africa. show under the name Led Zeppelin on 25 October 1968. The first precipitating factor In pre-trial rulings, Federal District Shortly after that, Led Zeppelin embarked on its first tour was the entry of a young lawyer Judge Gary Klausner held that the of the United States, ahead of the release of its self-titled from Philadelphia named Francis judgment against him, while leading jury could not hear evidence of other debut album in January 1969. Alexander Malofiy. him to believe that he was only a alleged plagiarism by Led Zeppelin, Led Zeppelin proceeded to become one of the world’s Operating out of a cramped witness rather than a defendant the personal wealth of Page and most successful and influential rock bands, with a string suburban office in a building shared facing financial liability. Malofiy was Plant or their use of drugs and of chart-topping studio albums full of crunchy, bluesy, with a few doctors, Malofiy’s own ultimately barred from practising alcohol (which Malofiy sought to use riff-driven rock. Lead singer Robert Plant was all scream story is a sub-plot in itself. In August for three months. The judge in the to throw doubts on Page’s recollection and swagger, Jimmy Page defined the concept of a guitar 2008, a year after finishing his law Usher case said, “I reluctantly accept that he had never heard Taurus). hero, and John Paul Jones and John Bonham (RIP) locked degree, he smashed a beer glass that Malofiy’s conduct was, at least The trial began before Judge down a prodigious groove on bass and drums. What across the face of a fellow patron at a in part, a function of the grotesquely Klausner in Los Angeles on 14 could epitomise 1970s rock’n’roll indulgence better than Philadelphia pub. He was prosecuted exaggerated zeal common to less June 2016. Plant and Page sat in Bonham’s endless drum solo on Moby Dick? Their sell-out for assault, with apparently damning experienced lawyers.” the court room while eight jurors world tours became notorious as the ultimate in rock-star videotaped evidence, but managed Skidmore met Malofiy while were chosen—seven of the first 14 extravagance and debauchery. Kooyong Tennis Stadium to convince the jury that he acted in Malofiy was representing Spirit’s potential jurors were dismissed, survived the Led Zeppelin onslaught on 20 February 1972. defence of himself and his girlfriend founding bass-player, Mark Andes, including one who declared that his But this glory was still a dream of the future when Led from an aggressive mob. in a battle with the Rock’n’Roll Hall “love for these two guys [Plant and Zeppelin played their first US show on Boxing Day 1968 Before the Taurus/Stairway case, of Fame over the use of his image in Page] is very strong.” in Denver, opening for Spirit and another band called Malofiy brought another copyright tributes to the band Heart—Andes A key issue in the trial was whether Vanilla Fudge. Led Zeppelin and Spirit played at the same claim against various musicians played with Heart for over a decade Led Zeppelin had knowledge of and place on the same day at least twice more, at festivals in relating to the song Bad Girl by but was not inducted with the access to Taurus. On this point, the Atlanta and Seattle in July 1969. the R’n’B star Usher. Malofiy band into the Hall of Fame. Andes case was very different to the Blurred Led Zeppelin’s biggest hit ever, Stairway to Heaven, was was prosecuted for professional wanted to pursue a case against Led Lines case, where Pharrell Williams recorded in London in December–January 1970-1, and misconduct for soliciting an affidavit Zeppelin, but had no legal standing and Robin Thicke conceded that they was released on their fourth album in November 1971. from one of the unrepresented because he did not own any copyright well knew Marvin Gaye’s prior hit Many fans and critics noticed the similarity between illustration by guy shield by illustration defendants and obtaining summary in Taurus. Malofiy met Skidmore in Got to Give it Up.

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The surviving members of Led Zeppelin and Spirit gave different Ten tips for weight control recollections of the interaction boilerplate between them. Page and Plant testified that they never toured with, MATTHEW TOWNSEND AND SIMONE BAILEY shared a stage with or listened to any of Spirit’s music. Former Spirit bassist Larry “Fuzzy” Knight testified uch dietary advice for barristers is nuts, yoghurt and fruit. Perhaps bring leftovers from that he met Page once at a party after advanced by those trying to sell a product dinner the night before. GNC sell compartmentalised a Spirit show in 1973, and that they or service. The net effect of the following lunch boxes that allow you to store several meals for the exchanged musician-to-musician tips for barristers will be a financial saving and an day, chilled. banter for a minute or so in which improvementM in health and wellbeing: Drink two to three litres of water a day. Page said something along the lines Eliminate sugar from your diet. Arguably, the most 6 If we are dehydrated, our bodies will look for water of “great show”. (It is unclear why 1 important means of controlling your weight is avoiding in food, possibly resulting in over-consumption. Drinking Malofiy wished to adduce such sugar, whether added to tea or coffee or as a component this much water isn’t as hard as it sounds: buy a water jug evidence of interaction between If someone took the intro to Stairway to Heaven, of confectionary, fruit juice or dessert. If you for chambers. If you have a full glass of water handy the bands two years after Stairway would you sue? need a sugar hit, eat unprocessed fruit. on your desk, the chances are you’ll consume to Heaven was recorded.) Randy Diet-drinks should also be avoided several glasses throughout the day. If you Wolfe’s sister and Andes testified Page, attempting to show that Page Within a half hour of doing so, the because they can interfere eat lunch at a restaurant, drink a glass but were unable to say whether lied about or misremembered where jury had made up its mind. with your body’s capacity to of water with your meal. they saw members of Led Zeppelin he initially wrote the song. (An I hear you ask: how would this recognise and respond to Avoid alcohol. Alcohol slows at any Spirit concert where Taurus “official” story had developed that case play out in Australia? The two real sugar. 7your metabolism, may contain was performed. Andes said that Page wrote the song by the fireside in key questions would be largely the Avoid energy dense large numbers of calories, he met Plant and played snooker a remote Welsh cottage called Bron- same in Australia: did Led Zeppelin 2carbohydrates reduces your will power to with him after a Spirit show in the Yr-Aur. Page admitted this was false.) have access to Taurus and is there such as bread, rice, eat healthily, and makes you Birmingham club Mother’s. Plant The judge upheld more than half sufficient objective similarity pasta and potatoes. less inclined to exercise. admitted that he went to Mother’s 40 a dozen objections against Malofiy between the two songs such that Choose nutrient-rich In an energy-balanced diet, to 50 times but said, “I don’t have a in about as many minutes. His final Stairway to Heaven reproduces a carbohydrates such as alcohol can also displace recollection of mostly anybody I’ve question, also struck out by the judge, substantial part of Taurus? Unlike green leafy vegetables nutrient-rich food. hung out with”, and said also that he was “If someone took the intro to the United States, in Australia all and smaller amounts of Get enough sleep. If you are and his wife were in a car crash that Stairway to Heaven, would you sue?” these questions would be determined fruit. After eliminating 8 tired, you may find yourself night leaving Mother’s and they were Over the six-day trial, more than a by a judge, not a jury (it remains sugar from your diet, this is eating to find more energy when both hospitalised with head injuries. hundred sustained objections were theoretically possible to request a probably the most effective your body is really after more sleep. In his oral evidence, Page gave an racked up against Malofiy. jury for a copyright case, even in the thing you can do to control Try to avoid using an alarm clock. If you intriguing insight into the process The other key issue in the case Federal Court, but to the best of my your weight. need to get up early, get to bed earlier. of creating Stairway to Heaven. He was, if Led Zeppelin did have access knowledge it has never happened.) Eat protein with every meal. Pay less attention to the scales. Despite described it as an “ambitious piece” to Taurus, is there still a sufficient A small part of a copyright work, 3 This need not be a 400g rib eye steak. 9 the title of this article, body weight is not and said there were various parts extrinsic similarity between the songs? such as a song’s opening, can be a A small tub of plain yoghurt or a 100g can of tuna necessarily the best marker of good health, particularly which were not well received by Each side called expert evidence “substantial part” of the work so long will suffice, but without adequate protein in your meal, if you’re getting stronger through exercise. A better other band-members and were from musicologists in support of their as it has qualitative importance. If your body will look for it in other foods, often resulting indication of weight control is your waist measurement, jettisoned. (The mind boggles as to respective arguments that the songs an Australian judge found that Led in an over-consumption of carbohydrates. Boiling a but even then, measure this infrequently. You’ll feel better what other parts Page had in mind, are or are not sufficiently similar. Led Zeppelin in fact had access to Taurus, few eggs in the morning is a convenient means of from eating well, long before that reveals itself on the given that the final work already Zeppelin’s experts also testified as to a finding of infringement would be stocking up on your protein supply for the day. scales. exceeds eight minutes.) He testified the unoriginal nature of any common wide open; there is certainly a degree Protein powder can also be handy, but is a second-rate Exercise every day. That’s right, every day. And that he resorted to teaching parts to elements. of similarity between the respective substitute for real food. 10there’s a reason this is the last in the list: it’s true bass-player Jones so as to have an After less than a day deliberating, openings, but also some differences. Eat smaller meals, more often. Once you convert to that you cannot out-exercise a bad diet. Lift weights two ally before pitching them to Plant the jury delivered its verdict on 23 You be the judge: get onto YouTube 4nutrient-rich food over calorie-dense food, you may to three days a week, do step aerobics, practise yoga, and Bonham. June 2016, holding that Skidmore and search for “Taurus—Spirit / find yourself eating five or six times a day. Aim to eat a ride a bike, or go for a walk. Mix it up and do what works

Page admitted to finding Spirit’s owned copyright in Taurus and Stairway to Heaven”. smaller meal every two to three hours, including one as for you. You’ll sleep better, enjoy a greater capacity to illustration by guy shield first album amongst his collection that Led Zeppelin members indeed On 26 July 2016, Malofiy filed an soon as you wake and before you go to bed. Planning concentrate, maintain better joint and muscular mobility, of 4,329 albums and 5,882 CDs, but heard the song, but that there was no appeal, which remains pending. Stay ahead can be a logistical challenge, particularly for days and delay the reduction in health that’s generally there was no evidence that he had substantial similarity in the extrinsic tuned. In the meantime, we can only when you are appearing in court, but eating well should associated with aging. the album before 1971. elements of Taurus and Stairway to suppose that Malofiy is sure all that mean never feeling really hungry. Matthew Townsend ([email protected]) is a level Malofiy launched into an Heaven. The decision came after the glitters is gold, and he’s buying a Bring food to work from home. As much as we love 1 CrossFit Coach and masters CrossFit athlete. Simone aggressive cross-examination of jury took one last listen of both songs. stairway to heaven. 5the Essoign, the healthy food options there are limited. Bailey ([email protected]) is a national level boxer and Bring a lunch-box with food to graze on: carrots, celery, Victorian weightlifting champion for her age category.

90 VBN VBN 91 boilerplate Cussen soon became OFF THE WALL… The Bar’s painting one of the most sought boilerplate after and highly paid Portrait of Sir Leo Cussen barristers, renowned for thorough preparation, by Sir John Longstaff clarity of argument and sound knowledge of legal SIOBHÁN RYAN, ART & COLLECTIONS COMMITTEE principles

painting is in need of cleaning he smallest, but collection. In each of these paintings with general composition and tonal and restoration. This will be a one of the most Sir Leo wears a dark three-piece relationships, rather than achieving priority project for the Art & valuable portraits suit and sits crossed legged in an a likeness as such.” Collections Committee in 2017. in the Victorian armchair looking dignified but kindly. Leo Cusssen (1859 – 1933) was A relationship with the Supreme Bar’s collection, In the NGV’s portrait he is flanked born at Portland Victoria, the son Court’s portrait becomes obvious is an unsigned oil by books. of an Irish immigrant grocer. He when they are compared side by of Sir Leo Cussen, attributed to Sir In his recent lecture, ‘Creating a was educated at Hamilton College side. The posture is similar, John Longstaff. We are reasonably Collection: Portrait Painting and the on a scholarship. After initially particularly the relaxed grip confident of that attribution because Peter O’Callaghan QC Gallery,’ the training as a civil engineer, he of the sitter’s right hand. of its likeness to two much larger gallery’s honorary curator, Adam returned to university at the age of The Bar’s work also closely portraits of Sir Leo painted in 1929 Bushby commented on the Bar’s 25 and graduated with an LLB and a T resembles the NGV portrait. and 1930, signed by the artist, John portrait, observing that: Master of Arts. He was called to the However, the arresting eye contact Longstaff. The later portrait hangs Victorian Bar in 1889, read with (Sir) “The small scale of the portrait and with the viewer, which is remarkable just across the road in the Supreme John Madden and got a room in 35 the efficient application of paint on an in the study, is not repeated in Court library, the earlier one is in Selbourne Chambers. He served on apparently unprepared surface of wood either of the finished portraits. This the National Gallery of Victoria’s the Bar Council in 1901 – 2. suggest it is a study, being concerned makes the study stand out. The Bar’s The Australian Dictionary of Biography records that, “working long The Supreme Court’s The NGV Painting hours, Cussen soon became one of painting the most sought after and highly paid barristers, renowned for thorough preparation, clarity of argument and sound knowledge of legal principles”. His reputation as a barrister was such, that it was said that “if a solicitor had a difficult case and did not consult Cussen, he was guilty of negligence.” However, Cussen never took silk. He was appointed to the Supreme Court of Victoria in 1906 and worked until 2 days before his sudden death in 1933. Apart from his contribution to the John Longstaff (1861-1941) was 1918-1919, Longstaff served with Bar and the Bench, Leo Cussen was born in Clunes, Victoria, the son of the Australian Imperial Force as an responsible for consolidating the a store keeper. In 1882, he began official war artist. He returned to live Victorian Statutes, gratis and almost art studies at the National Gallery in Melbourne permanently in 1920, single-handedly. In 1922 he received School in Melbourne. He was the successfully resuming his portraiture a Knighthood for invaluable service winner of the National Gallery’s practice. He won the Archibald Prize to his country. first travelling scholarship in five times during the 1920s and 1930s While a barrister he played for the 1887, which facilitated studies in for portraits of Maruice Moscovitch Bar Cricket XI and from 1907 until Paris, London and Spain. Back in (1925), Dr Alexander Leeper (1928), his death he was the President of Australia in 1895, he established a William Holman (1929), Sir John the Melbourne Cricket Club. He died portraiture practice in Melbourne, Sulman (1931) and Banjo Paterson in 1933. but returned to England in 1901. In (1935).

92 VBN VBN 93 boilerplate BOOK REVIEWS kangaroo court “would be an understatement and an insult to a great Australian marsupial.” Annotated Insurance One celebrated case was Hughes’ appearance on behalf boilerplate Contracts Act Tom Hughes QC: A Cab On The Rank of rugby league player Andrew Ettingshausen, who sued for defamation when a newspaper published a grainy black and PENNY HARRIS PETER HEEREY white photo showing the plaintiff in the shower with other players after a game. The contention, which the jury ultimately his year marks the 30th anniversary of the accepted, was that the plaintiff was defamed because readers commencement of the Insurance Contracts Act he sub-title of this compellingly readable books which are cited from time to time to demonstrate would think he had consented to the publication of this 1984, which governs most insurance contracts biography of Thomas Eyre Forrest Hughes AO how his practice became increasingly lucrative.) revealing photograph. Just what the photo revealed was a in Australia. This year also sees the final stages in QC requires no explanation to the readers of After the 1969 election, Hughes was promoted by Prime central issue. Tthe staggered commencement of the comprehensive Victorian Bar News. Minister Gorton to Cabinet as Attorney-General. This was Hughes’ cross-examination of the New Zealand-born editor legislative amendments introduced by the Insurance Through a career at the Sydney Bar from 1949 to 2012, a time of great controversy over Australia’s participation went as follows: Contracts Amendment Act 2013. As such, this seventh Tom Hughes plied his trade as a barrister for clients in the Vietnam War. A famous incident occurred when a Hughes: It is a penis is it not …? edition of Mann’s Annotated Insurance Contracts Act is Tfamous and infamous, in cases celebrated and routine, group of protesters, led by one Ian Macdonald, attempted Witness: Well, I assume if it’s in that part of the body, maybe it could timely, for both historical and practical reasons. but always with superb advocacy, backed by meticulous to invade the Hughes’ home. (Macdonald was to become a be and maybe it might not be. The Insurance Contracts Act seeks to strike a preparation. New South Wales Labor Minister and still later the subject Hughes: What else could it be? balance between the interests of insurers, the If it were no more than a catalogue of cases, however of adverse findings by ICAC over his dealings with the Witness: I guess it could be a shadow… insured, and members of the public, and the Act famous, such an account might lack insight into Obeid family.) Hughes repulsed the would-be trespassers Hughes:(appropriating the witnesses’ New Zealand accent) Is it a duck? includes provisions relating to the duty of the utmost the character of the advocate whose story is being with dextrous use of his son’s cricket bat. One of the many Witness: I don’t think it would be a duck. good faith, disclosures and misrepresentations, told. But the author, a distinguished historian, has comments was that of journalist and Test cricketer of the the form of the contract, expiration, renewal and had the advantage of frank interviews with many of 1930s, Jack Fingleton: Not surprisingly, as the author notes, the growing enthusiasm cancellation, and subrogation. Hughes’ contemporaries. Also there are some valuable for mediation in recent years had no appeal for Hughes. Footwork magnificent – cannot be faulted. Grip with bat just a As the author states in his preface, the 2013 documentary sources. Ordinarily, barristers do not keep However, behind the style lay substance, based on painstaking little suspect. Perhaps hands should have been closer together amending Act introduced significant changes to the much in the way of records. Indeed, one of the attractions preparation. He was renowned for regularly catching the 5.30 although gap is permissible if stroke is improvised. Act in several areas, including the areas of utmost of the profession is that once the case is over the papers am bus to his Chambers. good faith, electronic communication, the powers of can be handed back. But Hughes was a diligent diarist When McMahon replace Gorton as Prime Minister, The story is not confined to the courtroom. The reader learns ASIC, disclosure and misrepresentations, remedies and keeper of personal papers. Hughes was sacked as Attorney-General, much to the of the failure of Hughes’ first marriage, some relationships, and under contracts of life insurance, the rights of third It is a very Sydney story. Hughes’ father Geoffrey disappointment of many Liberals. By all accounts, Hughes a long and happy second marriage as well as his abandonment party beneficiaries, and subrogation. This edition Hughes was a prominent solicitor. His grandfather, Sir had successfully balanced the political obligations of a of, and return to, the Catholic faith. offers an annotated guide to the new sections, Thomas Hughes, was a Lord Mayor of Sydney. (His Minister with the objectivity required of the Attorney- As well, there is some intriguing gossip about the while helpfully providing the pre-Amendment daughter Lucy was later to achieve that honour.) His great General as first Law Officer. Clarrie Harders, who had personalities and internal politics of the Sydney Bar. The Act sections for comparative purposes, including great grandfather, Thomas Hughes, migrated to Sydney been Secretary of the Department under eight Attorneys, actress Kate Fitzpatrick was said to have called Murray the commencement date for each new section. It from County Leitrim in 1840. Hughes was educated by described him as “the best Attorney-General under whom Gleeson the sexiest man she had ever met, prompting the also offers updated case commentaries since the the Jesuits at St Ignatius’ College, Riverview. He later I served.” comment from Michael McHugh: “Poor Kate. She must have last edition, which was published in 2014. The text graduated from Sydney University. One feature of Hughes’ attitude to life and career, which led a sheltered life.” also includes a guide to the Insurance Contract During the Second World War, Hughes flew Sunderland the author notes in the particular context of a loss in a Hughes emerges from the book as a warm, generous and Regulations, as well as reproducing the General flying boats out of England with the RAAF 10 Squadron. difficult case, was that “just as he was capable of a strong thoughtful man, notwithstanding an initial somewhat austere Insurance Code of Practice and the Insurance The Squadron lost 151 men and 19 aircraft and sank six emotional commitment, he was equally adept at moving impression. He had the same secretary for over four decades Brokers Code of Practice. U-boats. He had, as he modestly puts it, “a relatively lucky on.” After a distinguished war record, he nevertheless and the same farm manager The commentary throughout is well structured and safe war.” did not become involved in ex-service activities. After for three—a good indication and the analysis is comprehensive. In particular, In 1963, Hughes entered politics, winning the seat of leaving the political scene he did not become an éminence of his human side. the commentary and analysis sections in relation to Parkes from the sitting Labor member, Les Haylen. While grise in Liberal circles, but confined himself to donations, A version of this review the duty of the utmost good faith, the insured’s duty on the back bench, although a conscientious attender handing out how-to-vote cards, and writing references was first published in the of disclosure, remedies for non-disclosure, and at the House, he was able to continue his practice at for pre-selection candidates. He moved towards the August 2016 issue of the the general provisions of insurance contracts are the Bar. In 1964, he achieved a notable victory for the moderate wing of the Liberal party, aligning himself with Australian Book Review and detailed and helpful. writer Hal Porter who sued the Mercury in the the Australian Republican Movement, led by son-in-law is republished with the kind This is a very useful text for all general Supreme Court of Tasmania over a review of The Watcher Malcolm Turnbull, and supporting company director permission of the Review. commercial practitioners, offering a comprehensive on the Cast Iron Balcony, which, as the Court accepted, Kevin McCann for pre-selection for the seat of Warringah. guide to the Act now that carried the imputation that Porter had inserted “Anglo- (His candidate was defeated by Tony Abbott.) the 2013 amendments Saxon words”, not out of literary necessity, but to gain Hughes’ advocacy style has been described as Mann’s are fully commenced, as publicity by attracting the attention of the censor. Justice declamatory and theatrical. A characteristic pose was, Tom Hughes QC: Annotated well as a survey of the Neasey found the preview “gravely defamatory” and with “menacing pirouette”, to address the side or even A Cab On The Rank Insurance case law relating to this Contracts Act, awarded damages of £1000. Hughes’ fee was the then the rear of the courtroom. Occasionally there would be Ian Hancock, Federation important and often- 7th Edition not inconsiderable £435-15-0 plus expenses. (Another penetrating wit, as when he said of a trade union hearing Press, 2016, pp xii, 402 used Act. Thompson valuable resource for the author has been Hughes’ fee which had expelled his client that to describe it as a Reuters

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personal history, the details of which individual’s entire offence history, she the Genius writes extremely long Migration Law Assessor are repeated in no less detail in a is a popular choice when addressing reports which are made even longer section curiously titled “opinion”. Verdins. Thus, the Mono-Diagnoser’s by appendices which summarise an boilerplate If you listen carefully when you resumé boasts the completion of article disputing any incremental MEREDITH SCHILLING Typologies read his report, you might hear a over 10,000 court reports, which validity that dynamic variables crackling fire in the background. The can be achieved by using the ‘find afford to static factors alone and the Storyteller has numerous friends and replace’ function with an fundamental problems inherent in ver the past decade, migration law has provided ANONYMOUS in the legal fraternity and is just at offender’s name and resisting the tests of statistical significance. The fertile ground for the development of important home in the court room as he is at a need to undertake any professional Genius is a popular witness by virtue principles of administrative law concerning the twilight soirée attended by his lawyer development activities. Nevertheless, of her ability to confuse opposing relationship between the judicial and administrative branches n R v Miller1 Justice King lamented: pals. More recently, the Storyteller she is available to give talks on any of counsel, but truth be told, not even Oof government. The Migration Act 1958 (Cth), described on The case of Verdins now arises in almost has accepted his learned friends’ her unpublished manuscripts. other psychologists know what the its enactment as “in many respects...... the finest immigration every plea before the courts, certainly in advice to provide a risk assessment, Genius is talking about. charter that the world has yet seen”,1 has seen countless the Supreme Court. It has made the task of which he undertakes by drawing The Advocate amendments, with each successive government seeking to fter deep sentencing judges more difficult, forcing them upon his wisdom and experience, as Each defendant assessed by the achieve its distinct policy objectives through the amendment of psychodynamic textual to consider reports from psychiatrists, but more opposed to any validated risk tools. Advocate is innocent. His lengthy its provisions. Those amendments have, in turn, spawned a vast analysis, VBN have usually psychologists, who have often had only very reports, which identify the victim and increasingly complex body of case law. concluded that the anonymous brief interaction with an offender, who have accepted as The Mono-Diagnoser as the true perpetrator of the crime, The daunting task of mastering this field of legal practice contributorA probably has a complex reliable and truthful the word of that offender as to their The Mono-Diagnoser went to dutifully outline the defendant’s life has been made easier with the recent publication of dual diagnosis exhibiting traits of the state of mind, thought processes or abilities, and relied university with the Storyteller, and history—a tale of woe and tragedy. The Thomson Reuter’s Migration Law: Annotated Migration Act Storyteller’s proclivity for fraternising Iupon the statements by the offenders, as though it was subsequently attended a two-day advocate takes it upon themselves to with Related Legislation. Authored by Ben Petrie, who signed with lawyers and the Genuis’s sworn evidence, to then ascribe to the offender, at least workshop in a mental disorder speak not only for the client, but to the Victorian Bar roll in October 2016, and Natasha Bosnjak, penchant for accumulating post- one of the six limbs of Verdins. I have found over time that became her raison d’être. act as their character witness. While Senior Associate at Clayton Utz, this book brings together in graduate qualifications. VBN only that I am less and less satisfied with reports prepared by Strangely, everyone who attends this knowing how to undertake a risk one single, hard copy volume the full text of the Migration hopes the anonymous author will forensic psychologists who have often spent an hour or psychologist’s office is burdened assessment, the Advocate routinely Act, Migration Regulations 1994 and other related legislation come forward to contribute a judicial less, with the offender before producing a lengthy report with this same affliction, which, uses the clinical over-ride function in as at 19 April 2016. typology for our next issue. that purports to address quite particularly, and directly, incidentally, was removed from the an attempt to prevent the inevitable Each significant provision of the Migration Act is the various limbs of Verdins, usually relating to either Diagnostic and Statistical Manual in miscarriage of justice. 1. [2015] VSC 180. accompanied by commentary covering the scope of the moral culpability or the sentence weighing more 1994 but can still be cured with the its application, critical concepts, key cases and, where The Genius heavily upon the offender. same homeopathic remedy. Given applicable, useful practice points. Petrie and Bosnjak’s The Genius has more degrees than that the Mono-Diagnoser’s mental extensive expertise in the practice of migration law is VBN recently received the following anonymous letter: a thermometer. Like the Advocate, condition of choice can account for an evident in their admirably concise distillation of the illustration by guy shield Dear editors legislation and its history, and their careful identification A colleague has prepared a tongue-in-cheek typology of relevant legal issues and seminal cases. of forensic psychologists—I thought this was the The publication of Migration Law follows the 2015 launch the principle of appropriate venue, but s/he (perhaps rightfully) refused general deterrence must be of Thomson Reuter’s online service, Migration Act Annotated, to have their name attached lest this result in loss of completeley eliminated because which is also authored by Petrie and Bosnjak. The hard copy friends. Or worse! One for the next edition? the subject developed a mild Migration Law complements the online service, providing adjustment disorder when Best wishes. a quick and portable reference tool for both experienced he fell off his bike when he was four... practitioners and newcomers to the field of migration law. Assessor Typologies appears to be a sort of DSM-V This book—which the publisher and authors believe to for the cohort of forensic psychologists described be the first annotated commentary on the Migration Act above. Of course where a diagnostic label from the since its enactment—is an important new resource in this Assessor Typologies is applied to a psychologist, this rapidly-changing area of legal practice. As his Honour Judge should be treated as the beginning, not the end, of Riethmuller states in his forward to the book, “No other the enquiry. civil law litigant has had so many cases in the High Court in the last 20 years [as the Minister for Immigration]. … This The Storyteller overwhelming volume of materials has called out for a work The Storyteller obtained his graduate diploma in such as this for some time.” psychology in 1982 after a lengthy career in an 1. The Hon A R Downer, MP, Minister for unrelated field. After assessing two or even three Immigration. Source: Australian Dictionary of clients in the morning, he dictates his reports during Biography cited in Migration Law Annotated the car ride back to the office. The Storyteller refers Migration Act with related to his protagonist as a “young man” or “delinquent”, Legislation, p ix. Migration Law usually because he can’t remember their name. Thompson Reuters His report is a mere summary of the defendant’s

96 VBN VBN 97 Shaun Micallef and Francis Greenslade in The Odd Couple boilerplate THEATRE child to do exactly as directed and without objection six nights a week for nine whole months?). That said, the Tony for ‘best musical’ has to go to boilerplate 2016: Thespian Year in Review The Colour Purple, brought to us by StageArt and performed at Chapel Off Chapel throughout October and early November. It was, simply put, sublime. It THETA GAMMA deservedly received a standing ovation after every single performance which, in Australian circles, is Melbourne Theatre Company unheard of. helped him in eroding a lot of that privilege he feels so There we have our 2016 theatre year in review. he 2016 MTC season debuted with Ladies in guilty for having). 2017 is shaping up to be exciting and I will be Black. Although sceptical about an Australian The second half of the MTC season gave us crime- reporting back in the next issue on the first half of musical based on the novel by Madeleine St novel-turned-theatre-spectacular Double Indemnity the season. Look out for: John, I suggested the book to my book club ahead of which kept us on the edge of our seats as an almost »» MTC’s Born Yesterday for some quasi-musical Tthe play. I counted four times that I fell asleep while magical, rotating set transported us from one scene to the entertainment reading the book and I found the play to be equally next. Four and a half stars. »» the Malthouse Theatre’s technologically super- soporific. The audience seemed to love it though (as This was followed by Skylight. Toby Wallace was charged The Encounter, a play experienced for did the other book club members the book), which excellent in his non-lead role. The play otherwise the most part through individual headphones that confirmed that, in truth, I am just a sadist who harbours almost brought me to tears with boredom. At interval, each audience member is provided with unreasonable expectations. I discussed the play with other theatregoers only to »» The Book of Mormon playing at the Princes MTC’s ‘Dr Jekyll and Mr Hyde’ approach to its season later find out that Cameron Woodhead and I agreed Theatre from January (which I highly recommend saw us shift to a sad and deeply moving Lungs with Kate that the most realistic thing about the first act was you go see) and Aladdin coming to Her Majesty’s Atkinson and Bert LaBonte—a story about the tribulations the smell of fried onions, as Kyra made dinner. Jasper Theatre in April (which I recommend to your of love. It even throws in a miscarriage. Très triste indeed Jones was next. Another novel-cum-play. Not the most youngens) and stellar performances from Kate and Bert (whose compelling storyline but a rotating set once again kept »» in a less professional capacity: the one, the only, couple name must be Kabe or is it Berka? Burqa?). The you interested. Also: #australiana. Les Miserables being put on by CLOC Musical play was written to be performed on a bare set. MTC Disgraced was another play underpinned by the theme Theatre in May decided that its audience would be disappointed with of race and it was jarring in its message that after 9/11, this and so came the introduction of the Ikea kitchen Muslims are doomed; be they connected with their faith installation on a wheel. It rotated throughout the play with and retaining a sense of patriotism for their motherland crockery, appliances, bins, books flying everywhere. Not or self-loathing and extremely successful MnA lawyers recommended for children the obsessive compulsive. gunning for partnership at a top-tier firm. Spoiler: covert I won’t say much about The Distance which came next. or otherwise, discrimination is here to stay. Suffice it to say that it was a play about women and how The MTC season is being rounded up with Francis they are to be blamed for all the bad decisions that are Greenslade and Shaun Micallef in The Odd Couple. I won’t made in life. The men in the play of course saved the say much other than that it is showing until 21 December day with their wise counsel. Two hours of my life I will and comes highly recommended. Do yourself a favour and never get back but Katrina Milosevic was hilarious. embrace this opportunity to laugh away the doom and Silver lining? gloom that has pervaded the air since November 8. Kip Williams did an excellent job in his direction of Miss Julie, with a set design that was simply remarkable. Malthouse Theatre Another sad story about an intelligent and beautiful Of note from this year’s Malthouse season was its woman who seemingly has it all but who cannot cope production of The Glass Menagerie in May which was with the expectations that her aristocracy imposes upon a brilliantly performed and moving piece of theatre. her. Robin McLeavy did an excellent job in her portrayal The women, in particular, shone and Rosie Riley who of the role and ultimately is helped by those around played Laura Wingfield was captivating and unwaveringly her to realise that suicide is not the answer. Poignantly method in her performance. Her character was also relevant. relatable because, like most of us, she probably suffers Then came the tale of three brothers—Straight White from mild Asperger’s. Men, a play about privilege. Lots of parallels for us to draw here indeed. Happily, the overall message from Musical Theatre the play was that we ought to embrace and exploit our We were also presented with an array of musical theatre privilege. Otherwise we might end up like Jake, the in 2016. Matilda dazzled the Melbourne bourgeois with youngest of the three: depressed and a dire drain on the our very own and hilarious Tim Minchin providing us BY WILLIAM SHAKESPEARE DIRECTOR PETER EVANS economy (though the audience is left wondering whether with an optical illusion in which children perpetually 6–15 APRIL ARTSCENTREMELBOURNE.COM he is a closeted homosexual which might otherwise have appear to be militarily disciplined (read: how do I get my illustration by guy shield by illustration

98 VBN VBN 99 FOOD AND DRINK @ $7 each), and steak tartare ($24). I very much enjoyed the kingfish as the gravlax dressing brought all boilerplate French Saloon of its flavours into sharp focus. We washed all this down with a bottle of 2015 François Cotat Caillottes from A review by SCHWEINHAXE, the Bar’s resident undercover foodie the Loire Valley ($130), a beautiful crisp sauvignon blanc and the perfect complement to all our small plates. By this time, we had left the legal world well behind us. We were not hungry but ordered like we were in a dining room in Game of Thrones! We decided to share the lamb shoulder from Flinders Island ($84) with sides of hand cut chips ($11) and broccolini with capers, raisins and goat curd ($11). The lamb was served in a large pot and we used our cutlery to hack into it. We had a bottle of 2014 S.C. Pannell Grenache ($104) from McLaren Vale, incorrectly noted in the wine list as being from the Adelaide Hills. This is a medium- bodied wine that tastes like a pinot, French Saloon only with more perfume and red First Floor, 380-384 Little Bourke Street (entry via Hardware Lane) fruits, and less dirty grit. A great Telephone: 9600 2142 match for the lamb. Trading Hours: Monday-Friday, lunch, dinner and supper We were full, but were having The taste: French Bar and Bistro, including small plates to share too much fun. Cheese anyone? Oui, The bite: you see the occasional lawyer! merci! So out it came, a selection of Things to chew: oysters, cured meats, dry-aged steaks and cheese three cheeses (75g @ $25), including Things to sip: boutique wines, grappa and French beers a persille de chevre. To cut into the heaviness of the cheese we went for something even heavier: a bottle he scene was a large wooden bar (with a zinc of 2014 Great Western Bin 0 Shiraz set: a traditional bench top) being the dining room’s ($136). Do yourself a favour and buy celebratory lunch HQ. We were served by two French a dozen bottles of this wine, cellar with instructors, waitresses, which added to the them until you have forgotten you 1pm on a Thursday. French vibe of the place. bought them and then drink them! A friend had To get the party started, we ordered The next part gets lost in suggested French Saloon. It sits some beers, including a Gavroche Sur translation. Espresso coffee and a above Kirk’s Wine Bar on the corner Lie Red Ale 8.5% ($14) and a Bridge glass of Capovilla Bassano Grappa of Hardware Lane and Little Bourke Road Chestnut Pilsner 5% ($11). I had ($16). And I don’t even like Grappa! Street. We entered via a small entry the pilsner and it was very crisp with However, it was the perfect finish Ton Hardware Lane and went up a a slight nutty flavour. We ordered a to a lunch of clean and complex narrow wooden staircase. I tripped dozen Sydney rock oysters ($4.50 flavours. Yes, we were the last to on the top stair and made a grand each) and then started to look over leave the restaurant (3.22pm, not entrance by flying at speed into the rest of the menu. too bad). As we left we spied some the restaurant. We had a table by We first decided to share a number barristers sitting on a balcony just the window, overlooking Little of small plates. We had kingfish with off the entrance, enjoying a glass Bourke Street. confit yolk and a gravlax dressing of wine in the sun. The table and chairs are wooden ($18.5), anchovy toast with guanciale The bill was $800.10 for a very in the French bistro style. The (Italian cured pork cheek) and lovely lunch. An indulgence, but surrounds are painted white, with espelette (a kind of pepper plant) (4 worth every centime.

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