No. 144 WINTER 2008
WELCOMES READERS’ SIGNING ENDING THE TEN O’CLOCK RUSH LITIGATION AND ADR CONSTRUCTION LAW CONFERENCE
ISSN 0159-3285 0159-3285 ISSN SUPPORT FOR INDIGENOUS BARRISTERS ESSOIGN CLUB ANNIVERSARY LAW WEEK WRAP BAR DINNER THE WORLD GAME AT THE BAR
VICTORIAN BAR NEWS Winter 2008 1 VICTORIAN BAR COUNCIL VICTORIAN BAR NEWS
*Executive Committee Bar Council Chairs of Standing Committees Editors A *Peter Riordan SC, M.W. (Chairman) of the Bar Gerard Nash QC, Paul Elliott QC D *John Digby QC., P.G. (Senior Vice-Chairman) Applications Review Committee and Judy Benson G Michael J Colbran QC, G Digby QC, G.J. Editorial Board (Junior Vice-Chairman/Honorary Treasurer) Clerking Committee Julian Burnside QC, Graeme Thompson D *Fajgenbaum QC, J.I. G Colbran QC, M.J. H Tobin SC, T. Editorial Secretary Council Committee D McLeod SC, F.M. John Stevens G Colbran QC, M.J. H McGarvie SC, R. Editorial Committee D Terence Forrest QC Duty Barristers Scheme Committee John Kaufman QC, Ian Freckelton SC, L Phillip Priest QC D Alstergren, E.W. William F. Gillies, Carolyn Sparke, D *Moshinsky, SC, M.K. Editorial Committee for In Brief and Georgina Schoff, Paul Duggan, Richard Brear, L Hannebery, P.J. Website News Section Carmela Ben-Simon, Catherine Button, D Kate Anderson (Assistant Honorary Treasurer) D McLeod SC, Ms F.M. Jennifer Digby, Noam Shifrin and D Scott Stuckey, SC Equal Opportunity Committee Peter Lithgow (Book Reviews) D *Sara Hinchey SC D McLeod SC, Ms F.M. G Anderson, K.J.D. Design/production Ethics Committee G Daniel Crennan Ron Hampton G Davies SC, J. D Burns, A.G. David Johns (Photography) B Miguel Belmar Salas Health and Wellbeing Committee Published by The Victorian Bar Inc. B Sharpe, M.R. L Priest QC, P. Owen Dixon Chambers G *Penny A Neskovcin (Honorary Secretary) Human Rights Committee 205 William Street, Melbourne 3000. B * Simon T Pitt (Assistant Honorary Secretary) D Fajgenbaum QC, J.I. Registration No. A 0034304 S Ethics Committee Indigenous Lawyers Committee G Golvan SC, C.D. Opinons expressed are not necessarily D Davies SC, J. (Chairman) those of the Bar Council or the Bar or C Meagher ED, QC, D.R. Law Reform Committee of any person other than the author. G&J Willee RFD, QC, P.A. D Garde QC, AO, RFD, G. G&J Santamaria QC, J.G. Legal Assistance Committee Printed by Impact Printing D Titshall QC, M.R. A Richards QC, A. 69 –79 Fallon Street, Brunswick Vic. 3056 F Gobbo QC, J.H. Legal Education and Training Continuing This publication may be cited as A Manly SC, R.J. Education Committee (2008) 144 Vic B.N. H McGarvie SC, R. D Ruskin QC, J. D Moshinsky, SC, M.K. Advertising G&J Shwartz, A. Legal Education and Training Readers’ Mal de Silva P Williams, I.S. Course Committee The Victorian Bar Inc. D Kirton, C.E. B Hill QC, I.D. 205 William Street F Shiff, P.L. New Barristers’ Standing Committee Melbourne 3000 D Alstergren, E.W. B Pitt, S.T. Telephone: (03) 9225 8681 D Shaw, C.E. Past Practising Chairmen’s Committee F Costigan QC, F.X. Professional Standards Education Committee G&J Willee RFD, QC, P.A. Professional Standards Scheme Committee A Derham QC, D.M.B. Victorian Bar Dispute Resolution Committee S Heaton QC, M.
2 VICTORIAN BAR NEWS Winter 2008 ISSN 0159-3285 No. 144 WINTER 2008
EDITOR’S BACKSHEET 14 Judge Paul Lacava 50 The anniversary of the Essoign Club 4 Barristers in Perspective 16 Judge Jane Patrick 53 Creating Justice 17 Judge Peter Wischusen 55 Support for Indigenous barristers CHAIRMAN’S CUPBOARD 57 Inaugural Patron of the Women OBITUARIES Barristers Association 5 Strategic plan will reinforce the value of being a member 19 Douglas Graham QC 22 Charles Sweeney SPORT 60 The World Game at the Bar ATTORNEY-GENERAL’S COLUMN NEWS AND VIEWS 8 Legal system not above workplace 25 Bar Dinner LAWYER’S BOOKSHELF reform 26 Speech by Ross Gillies QC 33 Response by John Coldrey QC 62 Book reviews CORRESPONDENCE 38 Improving the dialogue between 9 Letters to the Editors courts and the media 40 Ending the Ten O’Clock Rush WELCOMES 42 Law Week 2008 more popular than ever 10 Justice Peter Vickery 45 Litigation and ADR Construction Law Cover: The Great Hall, NGV, venue of the 12 Justice Emilios Kyrou Conference 2008 Bar Dinner
Welcome: Justice Welcome: Justice Welcome: Judge Welcome: Judge Welcome: Judge Peter Vickery Emilios Kyrou Paul Lacava Jane Patrick Peter Wischusen
Bar Dinner Law Week wrap Readers’ signing The World Game at the Bar
VICTORIAN BAR NEWS Winter 2008 3 EDITORS’ BACKSHEET
Barristers in Perspective
Barrister bashing has always been the sport in barrister bashing simply obfuscates of politicians and the media – certainly the whole issue and detracts from the real not of Kings. It is a bit like bear baiting, or debate. bull fighting. Those who engage in it know These attacks must cause bemusement that the animal is easy prey and enjoy the amongst the vast majority of the Victorian pleasure of blood sport, the blood sport of Bar. The vast majority of the Criminal Bar stirring up the tall poppy syndrome, and performs Legal Aid work. To tar them in appealing to the ‘chip on the shoulder’. this manner is extremely unfair. Those There is no rational exchange of ideas but barristers who quietly perform many simply resort to a stream of slogans. hours of pro bono work must also find the The latest round is nothing new. A read remarks wide of the mark, indeed those of the Herald Sun and TheAge newspapers who are signing up for the Bar’s new duty during June paints barristers in a very roster scheme to assist in the Magistrates’ poor light. If one is to believe the quotes in has been in place in the common law for Court would be wondering whether it is the papers, barristers are deliberately rail- hundreds of years should be radically worthwhile ‘grandstanding’ as part of a roading the whole judicial system, which changed. duty roster scheme. includes the administration of civil justice There is no doubt that there should But is it all just a question of social and legal aid. be a discussion of reform of the judicial engineering? Barrister bashing is just part ‘Troglodyte’ is the new buzz word system, both criminal and civil. But does it of attacks made on the professions over thrown about by politicians and the press. serve any purpose for this debate to make many years. The medical profession is Barristers are troglodytes – a caveman or statements of this nature? continually under such attack. There is the cave dweller or a person who is deliber- At least the newspapers published a re- push to promote the para-medical as well ately ignorant or old-fashioned. Not only sponse from the Bar. As the Chairman of as the para-legal. In the dental profession are barristers ignorant and old-fashioned the Victorian Bar Council, Peter Riordan there is the rise of the dental hygienist but deliberately so. The main aim is to SC stated the attack was a misrepresenta- and technician and now we see a push maintain their usual fees of $14,000 a day tion. Mediation is universal in disputes in for nurses to be operating, under certain and to ignore the justice system as a Victorian civil cases. It is not a new thing. restrictions, medical practices. whole. There was no doubt that getting Judges This edition contains a report of the Bar According to editions of The Age and the more involved in the resolution process Dinner. Ross Gillies QC’s speech at the Herald Sun in June of 2008 the Attorney- was critical but it was not of any use to dinner was noteworthy not only for its wit General has suggested that barristers’ fees refer to some barristers who might charge but particularly concerning his comments are putting justice out of the reach of many $14,000 a day when the vast majority work on the Bar as a whole and how the Bar Victorians, particularly when you have for a fraction of that rate. operates as a profession. It was good to see some barristers charging $14,000 a day. Robert Richter QC and Julian Burnside the Attorney-General present at the dinner Barristers are described as grandstanders QC were also quoted as saying that refer- and it is to be hoped that future discussion using the courts as a vehicle to display ring to the fees of one or a few barristers of the whole judicial system can be made their acting talents and increase their bank was not helpful in the overall debate on the in a more rational atmosphere. balances. Therefore it is argued that the judicial system. The inherent problem was The question of acting judges has caused whole adversarial system might be past that of inadequate Legal Aid funding. If further dispute between the Attorney- its use-by date. As barristers are the major the State Government provided adequate General and the Bar. The Victorian Bar’s cause of the civil backlog in the Victorian Legal Aid then there would be ‘access to policy has always been to oppose the Courts, the whole adversarial system that justice within the community’. To engage appointment of acting judges as, it would
4 VICTORIAN BAR NEWS Winter 2008 seem, is the policy of the Law Institute CHAIRMAN’S CUPBOARD and many other bodies. Barbara Cot- terell, a Magistrate for many years, was appointed an acting Judge for five years. The Bar Council resolved that it would not attend Her Honour’s welcome as it would seem to be support for the prin- ciple of acting judges. Many people at the Bar disagreed with this decision, particularly since Barbara Cotterell was an extremely well liked and intelligent Strategic plan will reinforce the member of the Bar and the Magistracy before her promotion. Her welcome was well attended by many in the pro- value of being a member fession who hold her in utmost respect. However, this cannot detract from the over-riding principle of the Bar’s oppo- The Bar, like other successful member- sition to acting judges. ship organisations, is responding by im- THE EDITORS plementing a clearer style of governance and decision-making, underpinned by a commonly understood and accepted state- ment of mission and values. This includes a clear statement of time-defined organi- zational objectives – and is embodied in the Bar Strategic Plan. We began this process over 12 months ago with the formation of the Strategic Planning Committee. The Committee’s Mediation killed the first focus was to examine the challenges radio star and opportunities for the Victorian Bar For the late Douglas Graham QC (in commercial organizations this would and David McLean SC be referred to as the SWOT analysis Strengths, Weaknesses, Opportunities and Threats). THE STRATEGIC PLAN So many faces round this place The Committee worked to develop I don’t know now Next July, the Bar will celebrate 125 objectives based in the core traditions years of service founded on traditions of and values of the Bar – and I take this So many people signing the Roll independence, superior service delivery opportunity to thank Mark Moshinsky SC I don’t know how and exemplary conduct; of advocacy and his Committee for their outstanding in support of law reform and access to work on this vital project. So little work to be divvied up justice; and commitment to pro bono The Bar’s five-year Strategic Plan brings contributions to the community. new emphasis to planning for and manag- Among so many Successive generations of barristers ing the often competing demands of com- have absorbed these living traditions in mercial decision-making and efficiency How’s a man or woman to keep body & pupillage and in the collegiality of practice with the missionary zeal needed to re- soul together? at the Bar. spond to the needs of members. The These traditions are embedded in the Strategic Plan can be found on the website Lean pickings at the Bar values that are fundamental to a barrister’s at
VICTORIAN BAR NEWS Winter 2008 5 We will review our performance against time will include consolidated accounts BAR PAPERS the Strategic Plan at regular intervals and of the Bar including Barristers Chambers report to members on that performance. Limited), the date for the Annual General Following up on our submissions to the Meeting has been pushed back to October. VLRC Civil Justice Review and the report The Bar Council election will also be in we commissioned, the Bar issued papers THE YEAR IS CLOSING October. on Smarter Dispute Resolution and on the This year, the Bar committed to consider- use of The Docket System. able external examination of our operating REFORM OF CIVIL JUSTICE SYSTEM environment as we sought to focus atten- REPORT MEDIA COMMENTARY ON COURTS tion on areas of stress within the justice STATISTICS system. In the last Chairman’s Cupboard, I referred The Bar Council has not spared itself to the Bar’s report Reform of the Civil Fuelled by the release of figures from the from similar internal and external scrutiny, Justice System: A Major Opportunity to Centre for Corporate Law and Securities beginning with the May 2007 independent Improve Justice and Boost the Victorian Regulation, the media has highlighted consultant’s report into governance and Economy. The Bar’s report emphasizes that the lopsided proportion in the number management at the Bar. The Council has the pillars for reform are: effective case of judgments in the Victorian Supreme considered, and implemented as appropri- management; appropriate rules; and judi- Court compared with the number of ate, the recommendations of that report cial excellence – but that all this needs to judgments in the Supreme Court of New within the year just passed. be underpinned by a collaborative and South Wales. Another major step was the Bar Council supportive profession. The lack of standardized metrics be- weekend planning conference to examine The impact of this report is already tween the courts complicates meaningful the Strategic Plan and settle its objectives evident. It was cited several times in the comparison, and barristers practising in and priorities. Victorian Law Reform Commission’s Civil these courts will know that comparison is This was followed last month by the Justice Report and by the Chief Justice in not simple. engagement of consultants to undertake her speech at the official launch of that It should also be remembered that the a high-level review of governance and the report. reform process in the Victorian Supreme administrative structures and practices of Notably, the Chief Justice’s own work in Court started later than that in the the Bar in relation to barristers’ chambers reforming the Supreme Court is supported Supreme Court of New South Wales, and and the relationship between the Bar and by the recommendations of the Bar’s that Victoria has made significant progress Barristers Chambers Limited. report. in the last five years. Due to report by the end of August, the Also, the President of the Law Institute of Victoria, Tony Burke, based his column review will focus on the effectiveness of UPDATE REPORT ON CRIMINAL on law reform in the June Law Institute governance structures and administrative LAW LEGAL AID FEES practices relative to what members judge Journal largely on the Bar’s report. they require in respect of accommodation, This wide acceptance and use of the As it did in 1997, the Bar engaged Price- communications and other services. material, information and insights of waterhouseCoopers to examine the impact Last month’s media commentary on the the Bar’s report – commissioned by the of the real decline in fees paid to barristers work of Barristers Chambers Limited was Bar with funding support from the Legal by Victoria Legal Aid. regrettable and did not accord members of Services Board – and its translation into The key finding of the 2008 report is that, the Board and staff the recognition they direction and support for Civil Justice over the last 15 years, barristers practising deserve for the very valuable work they do, reform is all very positive, particularly in legal aid criminal law work experienced and have done for many years. now, as the Government assesses and a real reduction in fees income of between weighs the recommendations of the VLRC 25% and 40% compared to a real rise of Civil Justice Report. 15% in other professions. CHANGES IN ANNUAL REPORT, AGM Barristers’ willingness to devote them- AND ELECTION TIMES CHIEF JUSTICE AND ATTORNEY- selves to legal aid criminal work has been As the Annual General Meeting draws GENERAL MEET WITH BAR an access-to-justice pillar in the frame- near, the Council, committees and Bar COUNCIL work of the criminal law justice system in administration begin their ‘reckoning’ of Victoria for many years. Another key find- achievements for the year. The Chief Justice met with the Bar Council ing of the 2008 report that is scarcely sur- Reflecting the greater emphasis on com- at its 22 May meeting and spoke on the prising, but a cause for significant concern, munication with members, this year’s reform process occurring at the Supreme is the connection of this drastic reduction Annual Report has been redesigned and Court. in real fees income with the 26% fall, over expanded to give barristers more informa- The Attorney-General met with the the last three years, in the number of bar- tion about the work of the Bar, its govern- Council at its 29 April meeting and risters practising in legal aid criminal law ance and its performance. outlined preliminary areas for emphasis in work. To accommodate the later delivery of the Government’s policy statement Justice The analytical research in the 2008 the Annual Report (which for the first Statement 2. PricewaterhouseCoopers report stands in
6 VICTORIAN BAR NEWS Winter 2008 stark contrast to the extravagant figure Magistrate Ian Gray for his support of the Bar have completed the survey but so which, at least as it was reported in the venture. far only a handful from other Australian media, was presented as indicative of what The Duty Barristers Scheme is a signifi- Bars. barristers earn – a figure which must relate cant addition to the Bar’s work and com- Depression is a significant issue through- to so few barristers that it is irrelevant to mitment to more effective access to justice out the legal profession in Australia and the real issue of the cost of justice. for more Victorians. overseas and can lead to tragedy – both In the last survey of pro bono work professional and personal. performed by barristers for the 2004–05 Other parts of the survey are directed to BAR HEALTH AND WELL-BEING year, it was estimated the Victorian Bar solicitors and to law students. Completion COMMITTEE Legal Assistance Scheme dispensed in time for the survey is estimated at between excess of 10,700 hours of pro bono work The name of the Bar Care Committee was 15 and 20 minutes. by barristers valued at over $3.4 million. changed, after discussion at the Strategic It can be taken on-line at:
VICTORIAN BAR NEWS Winter 2008 7 ATTORNEY-GENERAL’S COLUMN
Legal system not above workplace reform
The structure of Australian workplaces to find a decent balance between their has changed dramatically over the last 30 work arrangements and their parental and years. The changing economy, new tech- carer responsibilities. nologies and a diverse range of cultures That is why I am pleased to say that and generations that make up today’s from 1 September this year, discrimina- workforce require organizations to re- tion by an employer unreasonably refusing examine and re-think their operations. to accommodate a worker’s parental or Our judicial institutions are not immune carer responsibilities will be unlawful. The to these changes and we need to examine Government has amended the Equal carefully how we can transform outdated Opportunity Act to assist parents with workplace structures and the culture right young children to return to work by across the justice system. including family responsibility as a ground Whether it is private law firms, private of unlawful discrimination. practice, or the Bar, all our legal institu- Many workplaces are slow to see it, but tions need to be assessed as to whether improving work and family balance bene- they have structures that may discriminate fits employers, employees and their fami- against particular sections of the commu- lies; it helps retain skilled staff; saves on nity – the most obvious being women and recruitment and training costs and ulti- low-income earners. mately boosts productivity. There is no doubt that we have seen a All modern companies and workplaces change in what we once referred to as the are moving to family friendly practices and legal ‘fraternity’. Slowly, the archaic male- opportunity briefing practices for those legal organizations should be no exception. dominated legal culture is shifting towards firms seeking to undertake government Just because practices have been in place a workplace that more accurately repre- work. Since we first started reporting the for centuries does not mean they cannot sents the diversity of talented and accom- briefing arrangements, the overall percent- be changed. plished women in the sector. age of briefs to women barristers under For example, in the UK, the Bar was Of course, there are still significant the panel arrangements has increased facing a drain of young talent as its ‘best impediments to overcome in terms of from 42% in 2003–04 to the latest figures and brightest’ lawyers were unable to un- equality of briefs provided to women and released in June this year showing the dertake pupillage training due to the huge workplace structures that make it difficult number of briefs for women at 52% – with debts incurred and a shortage of work dur- for women to progress to senior levels. 28% of fees being invoiced by women. ing training. Since coming to office, this Government In my view, one of the key problems As a result, in 2002, the English Bar has sought to address the gender imbal- for women lawyers is the lack of flexible Council introduced a funded pupillage ance across all parts of our legal system working arrangements. At the moment, scheme whereby lawyers training to be- and I hope that we have contributed some- senior women lawyers are running the come barristers received a financial pay- what towards a shift away from the bad old gauntlet at work while still maintaining ment until they finished the course. days of male exclusivity. the market share of running the home. All chambers in the UK are required The Government’s Legal Services Panel It is deplorable that working parents and to make an award of a financial payment has for some years now required equal carers may face discrimination for trying of just over £800 per month to a pupil for
8 VICTORIAN BAR NEWS Winter 2008 the non-practising period of pupillage LETTERS TO THE EDITORS and then guarantee certain receipts for the initial practising period during pupillage. Dear Editors Dear Editors This is something that needs to be seriously considered here. In recording the death of the late I am a Senior Barrister, one-time Director Presently in Victoria, lawyers seeking Howard Ednie in In Brief No. 371 (3 of Barristers Chambers Limited and to be admitted to the Bar have to pay April 2008), the author stated that former Chairman of the Building more than $3,500 to complete the Bar Howard had signed the Bar Roll in Committee for the construction of Owen Readers’ Course. October 1955 and ‘read with Olaf Dixon Chambers West. There is no provision for readers to Moodie-Heddle (later Judge Moodie- When I came to the Bar in 1961, in less receive any form of financial or other Heddle), a Common Lawyer’ described than prosperous circumstances, I was able support during the 12-week course. For as ‘a very great advocate in the days to live at the Bar rent free whilst reading, the final six months of reading a reader when the Victorian Bar was described as and thereafter on a monthly tenancy. may accept briefs, but at this stage the vigorous’. I moved from smaller to larger chambers reader will be looking to take on work I compliment the author of In Brief on on the same basis. that helps them to understand the prac- this apt description of Moodie-Heddle I am aghast at the front-page article tical application of things they have and the Victorian Bar back then. of the Financial Review of 4 July. This learnt, and this work may not provide a ‘ “O’Bryans” Advertisement’ reveals a Heddle was indeed a powerful sustainable income. group of barristers who are not only intent advocate, affeared of nothing and no A funded readership scheme could on biting the hand that fed them but one, and one of the leaders of the be established by the Victorian Bar to taking it off at the elbow. Common Law Bar. I am not familiar pay readers a nominated amount for It’s almost certain that the O’Bryans with his antecedents, but the name Olaf the duration of their readership. The and the other tenants of Melbourne and actual funded amount would have to be suggests Viking ancestry. Dawson Chambers all came to the Bar as carefully considered but, for instance, After he took silk he successfully led the beneficiaries of the system which, as could be linked to the minimum salary me in a very difficult personal injuries above, allowed the young barrister a rent- paid to legal trainees. case against the Tramways Board who free period whilst reading and thereafter a This could ensure entry to the were tough opponents. He led all the monthly tenancy. This did not require the Victorian Bar is not limited to those evidence and cross-examined all the put-up of money of tens and hundreds of who have the financial means to sit the witnesses. To emphasise the importance thousands of dollars to gain admission, Course or who can afford to go without of the case to the plaintiff, he insisted we as was the case in the New South Wales income or with limited income while both maintain a severe composure in Bar, the only relevant comparable Bar to reading. front of the jury. He forbore reading the Victoria. This Victorian system is now the There also appears to be little oppor- transcript but knew all the evidence one that they snipingly and hypocritically tunity for lawyers to undertake the word for word. criticise, presumably to attract tenants to Victorian Bar Readers’ Course on a I believe he regarded his spell as a their Chambers. part-time basis as is available in the UK. County Court Judge as one of gentle In the light of current legislation, there Having the ability to undertake the retirement after many successful years at can be no objection to barristers ‘making Readers’ Course on a part-time basis, the ‘vigorous’ Common Law Bar. There a quid’ by buying their own chambers. and having a course that is flexible did not seem to be as much pressure on But to attempt to pull down the house enough to enable this to occur regularly, the County Court then as there is in which they once lived by slanted and would I am sure attract a more diverse nowadays. inaccurate comments is deplorable. cross-section of the community, but GEOFFREY COLMAN QC PETER J O’CALLAGHAN QC particularly women, to a career at the Bar. Like many other workplaces across the country, our judicial institutions GRANTS FOR LEGAL PROJECTS should be encouraged to adopt more The Legal Services Board Victoria is currently offering grants of up to $50,000 for projects flexible workplace arrangements that that are relevant to Victoria and which: respond to modern community de- • lead to improved laws and legal services; mands and create a dynamic platform • enhance access to justice; and for the delivery of justice. • better inform consumers of legal services. ROB HULLS MP Applications close on Friday 12 September 2008. Attorney-General Application forms and program guidelines are available on the LSB website at
VICTORIAN BAR NEWS Winter 2008 9 WELCOME Supreme Court
Justice Peter Vickery
Address by Peter Riordan SC, Chairman of the Victorian Bar Council, on Wednesday 28 May 2008
What an extraordinary country we live where you lived in graduate student in. The announcement of your Honour’s housing. Your stated intentions, while in appointment was made on the same day as London, were to further your study of the that of Justice Kyrou, and yet your back- law and…find yourselves the right woman grounds, while equally interesting, are so to marry; and on arrival you set about both very different. tasks with enthusiasm. For example, Justice Kyrou’s father was Ultimately you were both successful on a shepherd who could not speak English the first. You at Kings College, and Elliott but brought his family to Australia for at the London School of Economics, each his children’s education. Your father was earned the London university degree, a judge, an army General and a war hero. Master of Laws. That is not to say that you did not face However, only Elliott was successful on obstacles in your path to success. the second. While in London, he met his Your Honour was educated at Mel- future wife. bourne Grammar. I am assured your failure in the second You recovered and graduated with a task was not due to any lack of dedication Bachelor of Laws from the University of to the search. Your Honour even went to Melbourne in 1971. the lengths of joining a Scottish highland You served articles with Hugh Graham dancing group – possibly the ultimate in of Madden, Butler, Elder & Graham (now skirt chasing. Elliott mocked you, saying Deacons). You were admitted to practice that the most attractive skirts there were five to this Court: the late Justice Flatman, in August 1973. on the men! Justices Whelan, Hargrave and Coghlan You remained with Madden Butler Elliott remained in London to teach at – and, of course, your Honour. as an employee solicitor for about a year Queen Mary College at London University. Throughout your time at the Bar, before you and Paul Elliott (now QC) You did the summer program at The your Honour has excelled as a true trial tired of 1970s Melbourne and took off Hague Academy of International Law, advocate. You have been described as for London. then returned to Melbourne and taught in fearless and unrelenting; and as one of the You had an inauspicious beginning. the Legal Studies Department at Latrobe bravest counsel at the Victorian Bar. After training across the Nullarbor, the University from 1975 to 1977. In Fletcher Construction v Lines you ship on which you had booked passage You established and taught there a argued, in total, for an extraordinary from Perth was seized for debt. course in human rights from both national 12 days in the Court of Appeal. Your You negotiated a replacement flight on and international perspectives. junior describes the scene as the Court, Pakistani airways, which was a nightmare: You came to the Bar in March 1978 and constituted by Justices Charles, Buchanan a milk run with stops at Singapore, Bang- read with Michael Black, now the Chief and Chernov, attempting to corral you kok and Lahore, just to name a few. Justice of the Federal Court of Australia. like a calf in a cattle yard. But just as they Apart from a number of other disasters, Your practice at the Bar has been mainly appeared to have you encircled, you would Pakistani Airways was faithful to the in commercial and administrative law; escape their clutches. Muslim prohibition against alcohol – not and in engineering, environmental and At trial, that case also illustrated your exactly what you two young men had in planning law; and in human rights law. masterful cross-examination. mind. You took silk in December 1995 – a year Your opponents worked with an expert But London was great, and so was of strong appointments. Of the 11 silks that engineering witness for days and days, London House in Mecklenburgh Square, year, six have achieved judicial office so far, preparing him for the expected marathon
10 VICTORIAN BAR NEWS Winter 2008 cross-examination on the technical minu- outset in 1972, and continued to be a very More recently, you were the ICJ Special tiae in his evidence. active volunteer until 1980. Rapporteur in relation to the situation of In four or five questions, you demol- Your community contributions include David Hicks, Guantanamo Bay and the ished the witness’s credibility – and sat your role as a founding member and United States Military Commissions. down. patron of the Butterfly Foundation – a Your list of recent publications covers a You virtually moved to Tasmania for charitable foundation that supports young range of issues, including: a year for the Tasmanian Highway Case. Victorians, particularly young women, • an appreciation of the judicial career You opened the case with quotations from with eating disorders. The Butterfly Foun- of United States Justice Sandra Day a treatise on roman roads. De Architectura dation has established a public health day- O’Connor on her retirement; by Marcus Vitruvius, written in the first care centre, the first in Australia. • liquidated damages and penalties in century before Christ. No wonder it You are also a member of the leadership contract law; became the longest civil case in Tasmanian council of Whitelion, which provides men- • complementary civil law remedies for legal history. toring and employment programs for destruction of documents; Your junior in that case was Lee Sealey, young people out of home care, or in the • international sale of goods under the now Tasmania’s Solicitor-General. He has youth justice system. United Nations Convention; flown in to be here this morning. Your human rights law work through • as well as many pieces on human rights Despite your Honour’s outstanding the International Commission of Jurists and Guantanamo Bay. professional work, your career is marked has been extraordinary. You have been a scholar and a teacher. by your extra professional contributions. In 1999, you co-ordinated the assistance You have been an outstanding barrister, When the Fitzroy Legal Service opened of with a substantial practice of major cases, its doors in December 1972 you were a • the Australian Defence Forces, and have made time for the very substantial volunteer. • the Australian Federal Police, good works I have described, playing an Those who did found the service wish • the Victoria Police, important role in the public discussion of they’d had the resources of everyone that • specialist trauma counsellors, and human rights and human rights law. has since claimed to have been foundation • volunteer Victorian lawyers On behalf of the Victorian Bar, I wish volunteers. to gather evidence of crimes against your Honour long and satisfying service as You were a volunteer from the very humanity in East Timor. a Judge of this Court.
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VICTORIAN BAR NEWS Winter 2008 11 WELCOME Supreme Court
Justice Emilios Kyrou
Address by Peter Riordan SC, Chairman of the Victorian Bar Council, on Thursday 22 May 2008
I appear on behalf of the Victorian Bar Yours was one of ten families to emigrate to welcome your Honour’s appointment to that year from your village. this Court. You arrived in Australia aged eight and Your Honour’s intellect, meticulous care a half, speaking no English. and thoroughness are legendary. Your parents and brother, Dr Theo It has been reported that your Honour is Kyrou – all in Court today – lived first in ‘only the second solicitor to be appointed an army camp that doubled as a migrant to the Supreme Court bench’. hostel – then rented a succession of single You are, in fact, the third. rooms. Justice Rosemary Balmford practised You attended three different primary for many years as a solicitor, and was schools: Eastmeadows, then Broadmead- a partner at Whiting & Byrne. She, of ows, then Dallas North. course, was appointed to this Court by the Incredibly, for one who arrived in somewhat more circuitous route via the Australia speaking no English – and, in County Court. those first four unsettled years, attended Like your Honour, she was a winner of three different primary schools – you were the Supreme Court prize. equal top-student of the Dallas North The other solicitor on this Court was, primary school. of course, Justice Bernard Teague, who You went on to be dux of the Upfield retired in February this year after more High School. than 20 years distinguished service. Your parents both worked on the I understand that your first rotation in assembly line of the Ford Factory. You ing partner of HWL Ebsworth, Solicitors), your articles year was in litigation, and that, once worked in a truck factory. Mike Ferraro (whose family is from Italy on your first day at Corrs, you shared an You won a Ford Motor Company – now global general counsel at BHP office with Justice Teague – then a partner Tertiary Scholarship, and held it for the Billiton), and Joe Tsalanidis (whose family at Corrs. whole five years of your combined Law/ is from Greece, now at the Bar). I understand that Justice Teague became Commerce course at the University of In contrast to the way you were treated and remains a mentor and good friend. Melbourne. in your youth by many other Australians, Let me outline your extraordinary story. Apart from occasional absences to you included in this circle of friends Your Honour was born in the village attend lectures, you worked in the law Dan Brealey (now a partner at Freehills, of Sfikia in northern Greece where your library from opening to closing pretty well Solicitors), a tall Anglo, whom you tease parents were tobacco farmers. Your father every day. mercilessly on that account, and because says that as a child you were a bit slack You sat in the same place, near the peri- he had gone to Haileybury College. working around the farm but you may be odicals and the toilet, on the first floor of You valued the experience the four of forgiven. You were less than eight years old the old law library on the quadrangle. you had in the state school system and and, as will be revealed, your work ethic You were one of a group of five law you were all resolved that, when you had picked up. students who have remained best friends children, they would go to state schools. The family migrated to Australia in 1968 now for more than 25 years. Your eldest son John was the first child – the year after the April 1967 coup d’etat in Four of you are from immigrant work- in the group. And you were the first to which a military junta ousted the civilian ing class backgrounds: Juan Martinez sell out on the idealism and send him to government. (whose family is from Spain – now manag- Scotch College.
12 VICTORIAN BAR NEWS Winter 2008 The others followed suit, and all the A distinctive feature of Handy Hints they were dashed when I learned that it is children of those in the group ended up is the flash of humour that begins each full of law books. going to private schools. chapter. However, there was one case lost and it You make and keep friends. Now, more For example the chapter Instructing in was your fault. than 25 years after law school, the five of Court begins with: ‘Lawyers are people It was a case in Sydney and you were to you still get together for dinner at least a who write a 20,000 word document, and fly up on the morning with Ray Finkelstein couple of times a year. call it a “brief” ’. (now Justice Finkelstein). They’re all here today. Indeed, Mike The chapter on Learning From Mistakes He picked you up in his 1960s Daimler Ferraro returned from London early starts: ‘Lawyers, unlike doctors, are unable very early in the morning. It was still pitch in order to be here – and only arrived to bury their mistakes’. black! in Melbourne early this morning. Juan I have digressed. Let me return to the The Daimler got a flat tyre on the Eastern Martinez also returned early to be here, chronological account. You were at the Freeway. but only from Sydney. University. Finkelstein didn’t have the tool for One of your vacation jobs through law Although enrolled in the pass-degree taking off the ornate wheel spinners – so school was in the office of Chief Parlia- Commerce course, you obtained Honours you called the RACV to change the tyre. mentary Counsel, John Finemore QC. in all nine Commerce subjects, and won An hour went by – you both waited for Another of your vacation jobs was the exhibition in six of them. the RACV with increasing irritation – and in 1982 as research assistant to Gordon You obtained Honours in all 16 Law rising panic. Lewis at the Law Institute – later Judge subjects – the exhibition in 11 of them. You cancelled one flight and re-booked Lewis, who was then Secretary of the Law You won the Supreme Court Prize, and on a later flight. Institute. graduated Bachelor of Laws with first class Finally, Finkelstein in a rage called the This was before you even began articles Honours, and Bachelor of Commerce. RACV only to be told that the man who or worked in a law firm. You served articles at Corr & Corr (now called had said he was on the South- Judge Lewis recognized your intellect Corrs Chambers Westgarth), and were Eastern Freeway and the serviceman was and extraordinary industry and put you there for more than seven years, becoming still driving up and down looking for you. to work on research for what became the a partner in that firm. You finally got there at least in time to book, Lewis and Kyrou’s Handy Hints on You then moved to Mallesons Stephen reinstate the case and live to fight another Legal Practice. Jaques, where you have been a partner for day. That book is now in its third Australian some 17 years. Otherwise, counsel you have briefed edition, with its second South African An impeccable career, made a little nau- speak only of your high intellect, your edition forthcoming. seating by the fact that I could not find a meticulous care, your thoroughness and You were not only researcher and person who could say anything critical of your courtesy. All this promises distin- co-author – you were the business you. guished service as a Judge of this Court. manager, and arranged the South African My hopes did rise when I heard that in On behalf of the Victorian Bar, I wish publication. your home you have a very large cellar, but your Honour long and satisfying service.
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VICTORIAN BAR NEWS Winter 2008 13 WELCOME County Court
Judge Paul Lacava
Address by Peter Riordan SC, Chairman of the Victorian Bar Council, on Thursday 5 June
So who would have thought? When I said In your professional life you have always you might want to do the next welcome been one to get quietly on with the job. – this is not what I had in mind. Early in your career you demonstrated this I appear on behalf of the Victorian attribute in a different context. In fact you Bar to welcome your appointment to this were downright sneaky. Court. While at Herbert Geer & Rundle you You bring to the Court more than 34 struck up a relationship with the attractive years experience in the law – 6½ years as a young secretary to one of your partners, solicitor, then 27½ years as a barrister – of Graham Robertson. Neither Graham nor those, 7½ years as Senior Counsel. anybody else at the firm knew what you May I say, you also bring integrity; re- were up to – until you announced your serve with passion; professional commit- engagement to Anna – now your wife of ment with a little life balance. almost 30 years. In an age of ever-narrowing specializa- Your decision to come to the Bar must tion, your Honour is in the grand tradition have been driven by a desire to be able to of the all-rounder-silk – appearing one express yourself to somebody prepared day in a major criminal trial; and, when to listen. This was obviously never a that’s over, in a major commercial cause; phenomenon of your home life because appearing for the prosecution; and for the you have always been subject to female defence. domination. Your success has been well deserved, Growing up, you were the middle child those hard-working family law barristers earned through hard work. between two sisters, and with Anna you at the conference, to be your Master and You were educated in Pascoe Vale at the have had four gorgeous daughters – whom you came to the Bar in October 1980. Blessed Oliver Plunkett Primary School, I am told play you on a break and about You established a remarkably broad then at St Joseph’s CBC North Melbourne. whom, Frank Costigan says, you speak general practice in crime, including mur- St Joseph’s has produced its share of with ‘the kind of warmth that only an der and complex fraud; in commercial eminent judges, including Sir James unbiased father has’. causes, arbitrations and appeals, and Gobbo (who served some 16 years on However, the precipitating event that lengthy building disputes; as counsel the Supreme Court), recently retired led you to chance your arm at the Bar was assisting, and representing witnesses, in Judge Len Ostrowski (who served nearly apparently a conference in Hawaii. It was a inquiries by corporate regulators – most 24 years on this Court) and Justice Paul family law conference (I knew you had a recently, of course, in the Cole Royal Coghlan (appointed to the Supreme Court broad practice but I didn’t know it extended Commission into payments made to the last year). to family law). Anyway, at the Hawaii con- Australian Wheat Board under the Oil For By all accounts you were a hard-working ference there were the usual hard-working Food program conducted by the UN. student at Melbourne University Law recognized family law barristers like Jeff The Cole Commission was a challenging School and served articles with Michael Sher, Bill Gillard and Glen Waldron. brief and the Commissioner did not make Roet of Herbert Geer & Rundle. I am not sure what they told you about life easy for you. It was suggested that After admission in March 1974, you the similarities between life in Hawaii and your client was involved in some largish remained with the firm, and became a life at the Bar but you were converted. You inducements to the former Iraqi regime. partner there. arranged for Roger Gillard, another of You must have been working very hard and
14 VICTORIAN BAR NEWS Winter 2008 not watching much television because you going friendship and willingness to share did not recognize the team from Chaser’s your knowledge and experience. War on Everything when they accosted Your service to the Bar has been out- you as you left the Court at a luncheon standing. FORTHCOMING adjournment. You described the incident You come to the Bench from nearly to the Commissioner after lunch as follows four years on the Bar Council, the last two INTERNATIONAL – I read from the transcript. of those years as Junior and then Senior, Vice-Chairman. CONFERENCE As we were leaving the building just after You have been a tower of strength, the luncheon adjournment, the media through some difficult times; and you Children and the Law: were filming my client and myself and my have always ended up with the tough jobs. International approaches junior – we don’t make any complaint As Senior Vice-Chairman, you were the to children and their about that…save for this: there was a presumptive successor to the chairman- person who apparently has some sort of ship – and, much as we delighted in your vulnerabilities vendetta against the AWB who presented appointment to this Court, the Bar will himself in the doorway downstairs, thrust sadly miss your leadership, your commit- Prato, Tuscany, himself in front of the cameras, and ment; and your steady hand. 7–10 September 2009 between the cameras and our client, to the You served ten years on the Ethics extent that he was within two to three Committee – the most important and inches of his face, asking our client to sign onerous committee work at the Bar – and a very large cheque – when I say ‘large’, you were Chairman of that Committee about three feet wide – that was made for the last two of those years. out for many hundreds of millions of You also served on the Applications In one stroke, the silks who enrol in this dollars, so that this person could send it to Review Committee; the Equality Before program will be serving the community; Saddam Hussein. the Law Committee and a bucket load of the juniors will have the experience of others. You have undertaken the construc- working with the silks; and legally aided It’s not only your daughters and the Chaser tion of the Bar Care Scheme. clients will have the benefit of being repre- who can pull the wool over your eyes. One You have always worked with Legal sented by a silk with junior. pre-season, you noticed a large scar on the Aid. You did so as a solicitor – as we’ll no There are many instances I could quote back of the leg of one of the North Old Boys doubt hear from Mr Burke. You did so as of your adherence to principle but I will players (who is nicknamed ‘Jex’ because of counsel. relate only one. his tight curly ‘afro’ hairstyle). Anyway, You were briefed to represent VLA There is much talk about the Independ- you enquired about the scar. The response itself in a number of cases in which the ent Bar and the cab-rank rule at Bar din- from Jex was that he had had a hamstring application of the Dietrich Principles in ners; but you have walked the walk. transplant over the summer. It will warm section 360A of the Victorian Crimes Act One authority for which you did a the hearts of the Plaintiff Personal Injury were hammered out. substantial amount of prosecution work Bar that you accepted without question To your substantial cost, you have learned that you had accepted a defence that hamstring transplants were possible. accepted briefs to represent legally aided brief and demanded that it be returned. Opponents have had less luck in pulling clients – most recently in R v Matthey – the You explained your obligations under the the wool over your eyes. In 2000, just case of a woman charged with the murder cab-rank rule, and the importance of that before taking silk, you teamed up with of four of her five children. principle and the place of the independent your good friend Doug Meagher in the No jury was ever empanelled because, Bar in the administration of justice. Seal Rocks arbitration to give your new after you successfully submitted to the trial Suffice it to say that, following discus- employer a terrible thumping. judge that the inadmissible expert evidence sion with the authority, you honoured your You have the distinction of appearing should be excluded, the presentment was obligations in place of your personal inter- (with Uren QC) in the last Victorian not proceeded with. ests – and, as requested, you returned appeal to the Privy Council, Montana Your junior in that case was Frank all prosecutorial briefs you were then Hotels v Fasson in 1986. Gucciardo. He apparently was excellent. holding. You and the other counsel in that case – they should make him a judge one day. Your Honour is principled, courageous enjoyed the personal hospitality of Lord The Senior Counsel Legal Aid Scheme, and independent. You will be a great Bridge in his London flat, and there got to on which you’ve worked closely with VLA Judge. meet other members of the Privy Council. Managing Director Tony Parsons for about On behalf of the Victorian Bar, I wish In the 7½ years since taking silk, you a year, is close to opening in final, polished your Honour long and satisfying service as maintained the extraordinary breadth of form. a Judge of this Court. your practice. This is a modern revival of the tradition On a personal note, I want to thank you Those who had the privilege of working of silks committing to take one criminal for your support and say it has been an with you as your junior gained immensely Legal Aid brief a year at junior rates, with honour to work with you – and we must from the association, and from your on- a criminal law junior. have that game of golf.
VICTORIAN BAR NEWS Winter 2008 15 WELCOME County Court
Judge Jane Patrick
Address by Peter Riordan SC, Chairman of the Victorian Bar Council, on Friday 2 May 2008
I appear on behalf of the Victorian Bar You tutored in, among other things, to welcome your Honour’s appointment to criminal law and torts. this Court. While tutoring there, you met an Your Honour has served as a Victorian Englishman, Robert Evans. His fields of Magistrate for more than eight years. particular interest and expertise were You have been an outstanding Magistrate. jurisprudence and contracts. Only in November last year, you were Such is the perversity of academic assigned to be the Regional Co-ordinating bureaucracy that, given he had those inter- Magistrate of the new Moorabbin Justice ests, he was of course assigned to criminal Centre. law and torts. You bring eight years of valuable experi- He says he learned a lot about criminal ence as a Magistrate to your role as a Judge law from you. on this Court. You must be an absolutely fascinating You went to school at Firbank, and to criminal law teacher because not only Law School at the University of Melbourne. has Robert become one of the principal After completing your degree you began criminal law teachers at Melbourne; but articles; but the law, which had so engaged he is present in the jury box today as your you at the University, became oppressively husband. dreary – at least in those articles – so much Chief Magistrate Ian Gray described so that you decided that you would change you as ‘a hard worker, an engaging and a to a caring profession as a teacher. sometimes “feisty” presence, and a good You completed a Dip. Ed. and then colleague all round.’ in the Victorian Equal Opportunity Com- taught General Studies and History to I am told that, before leaving Melbourne mission. adolescent boys at the Watsonia Technical Uni, you led the tutors’ revolt which played You came to the Bar in May 1995. You School. a part in bringing down the then Dean of read with Ramon Lopez. A noble endeavour, to be sure – but even the Melbourne Law School. Lopez recognized your aptitude for the the dreariest conveyancing must have Plainly your Honour should not be Bar and its traditions very early in your looked good when you were trying to underestimated. However, that was more reading – when you produced two crystal impart the delights of humanities to the than 20 years ago. glasses, engraved ‘his’ and ‘hers’ for the Watsonsia Tech boys. You must have mellowed because at least after-work drop of scotch. In any event, you then moved to Sydney when you moved from the Magistrates’ You enlivened your Readers’ Course. and Canberra for about ten years. Court, you left Ian Gray still in place as You, John Buxton and Gerry Butcher were By the time you returned in 1985 you had Chief Magistrate. known as the Three Musketeers. Of all the three fine daughters: Narida, Marion and You left the Law School in May 1988 Readers’ Course photos, your class has the Georgina. and this time completed your articles. broadest smiles, and yours is the only photo You started tutoring in the Economics You also completed work for the Master in which everyone has a glass in hand. Department of Latrobe University in early of Laws degree at Melbourne that year. You established a strong practice at the 1985. You were admitted to practice in July Bar, mainly in equal opportunity, employ- You soon won appointment as a tutor, 1989. ment law and crime. in the Law School of the University of You worked as a solicitor in the Mel- No surprises there. As to crime, not only Melbourne; and then promotion to senior bourne office of the Commonwealth had you tutored in crime and been with tutor. Director of Public Prosecutions, and then the Commonwealth DPP, but your reading
16 VICTORIAN BAR NEWS Winter 2008 with Lopez was on the fifth floor of Owen woman not to be underestimated, you tor under the Legal Practice Act 1996 for Dixon East – and you yourself were able to appeared for the Commonwealth in a complaints against legal practitioners. get chambers on that floor. medifraud prosecution. Your opening line You were appointed to the Magistrates’ This was the floor of some outstanding before commencing what turned out to be Court in January 2000. criminal barristers including: Chris Dane, a particularly rigorous cross-examination You were, as a Magistrate, fair, just and Geoff Flatman, Bob Kent, Betty King, of the accused was: ‘Now doctor, this won’t courageous. You were always well-prepared Lillian Lieder, Remy Vanderwiel and hurt a bit’. and thorough. You did the hard yards, Michelle Williams – in alphabetical order, At the Bar, you served two years on the delivering written reasons in appropriate of course. Bar Human Rights Committee and two civil cases. You appeared before the Equal Oppor- years on the Committee of the Women I am told by one of your fellow readers, tunity Commission, the Anti-Discrimina- Barristers Association. who has appeared before you that you are tion Tribunal, the Australian Industrial For the whole of your five years at the ‘mostly tolerant of members of the Bar’. Relations Commission and in the Magis- Bar, you were a Victorian Bar Conciliator On behalf of the Victorian Bar, I wish trates’, County and Supreme Courts. for sexual harassment and vilification. your Honour long and satisfying service as In keeping with your reputation as a In 1998 you were appointed a Concilia- a Judge of this Court.
WELCOME County Court
Judge Peter Wischusen
Address by Peter Riordan SC, Chairman of the Victorian Bar Council, on Thursday 1 May 2008
I appear on behalf of the Victorian Bar your Honour has good friends; or else they to welcome your Honour’s appointment to just can’t remember the 70s. this court. There is a story of a VW Beetle chock Your Honour has been at the Bar 27 full of Monash Uni students pulled up late years. You have long been one of the leading at night by the police. There was a strong barristers in the accident compensation smell of alcohol and the police had no jurisdiction. doubt that they were about to lay a drink Your appointment adds to the already driving charge. But as the VW expelled formidable strength of this Court in that numerous students, which one was the area. driver was not so clear. You stepped for- You went to school at St Patrick’s Wan- ward, declared yourself the driver (to garatta, St Mary’s Bendigo, Bendigo High the surprise of some) and, to the amaze- and Wattle Park High. ment of the constabulary, passed the To avoid any misunderstanding, I breathalyser test with flying colours. should say that these frequent changes of You served articles with Michael Stewart school were not the result of the schools’ of Godfrey Stewart, Frank Curtain & Co. dissatisfaction with you, but rather your You signed the Bar Roll in March 1981 family’s moves. and read with David Blackburn, now You graduated in Economics and Law retired. from Monash University. Your first accommodation out of read- Monash Uni in the 70s – I was sure that ing was in Tait Chambers. You and Brian there would be some good dirt there. But McCullough shared chambers and, in
VICTORIAN BAR NEWS Winter 2008 17 fact, a telephone until you gerried up a Cover. It persuaded the Government to She specializes in Commonwealth work- functional split so you each had a line (of amend the Act in 2003, so as to require ers compensation in the Commonwealth sorts). the employment to amount to a significant Administrative Appeals Tribunal and the You began in the old fashioned way with contributing factor to a large array of inju- Federal Court. the usual variety of briefs in the Magis- ries and diseases. It was not long after Ann came to the Bar trates’ Court. However, even today, people who suffer that you bought a house in North Fitzroy, You have, however, for many years now from accidental traumatic injuries at work just around the corner from then Justice specialized in compensation cases. enjoy a statutory entitlement to WorkCover Merkel and soon-to-become Justices Michael O’Loghlen QC, with whom you compensation, and the outcome in Hegedis Buchanan, Warren, Whelan and Morgan. often appeared in cases, recalls two nota- is responsible for that entitlement. It’s taken a little longer for that salubrious ble cases in which you obtained outcomes The second case, is not so well known: address to work for you, but here you are that so startled the Victorian WorkCover VWA v Syrad in 2003. today. Authority that it persuaded the Govern- The plaintiff worker had been badly The house was, in fact, nearly your un- ment to amend the Act. disfigured by multiple acid burns in an doing. One day you were pruning the ivy The first case is so well known that it is explosion at his workplace. cover on the brick wall surrounding your referred to, universally, as Hegedis. WorkCover obtained reports from swimming pool. One lunchtime, the unfortunate Mr several independent medical specialists, Somehow, the legs of your ladder slipped Hegedis was relaxing in his employer’s who conducted independent medical into the pool – taking you, with your elec- amenities room and peeling an apple with examinations. Each assessed an 85% im- tric pruning shears in hand, with it. Fortu- a knife. He somehow cut his hand. pairment. nately, the ladder stuck firm with about There was no doubt that Mr. Hegedis was WorkCover took issue with one of the a foot to spare before you would have in the course of his employment at the independent assessments, and sought what become the subject of an experiment into time – but: it called ‘clarification’ from one of those the conductivity of chlorinated water. • the apple was his apple; medical specialists. You are a devoted husband and father to • the knife was his knife; Prompted by Workcover, that specialist your wife and two daughters. • he wounded himself; and reduced the assessment to 57%. You are an exceptionally good recrea- • no employment activity caused the You argued that the original assessment tional swimmer and snow-skier and a keen accident. of 85% should stand, given that it was golfer. Though not serious, the wound required based on independent examinations and I’m told that next year will be your minor surgery; but WorkCover refused to assessments; and should be accepted over tenth year in the Pier to Perignon Swim at cover the cost of that surgery, arguing that the later assessment prompted by Work- Portsea, in which you always do well. Mr Hegedis had not suffered ‘injury’ Cover. And you are a founding member of the within the meaning of the Accident Com- Her Honour Judge Lewitan agreed, as Aardvark Ski Lodge at Mount Hotham. pensation Act because his employment was did the Court of Appeal. You are, as I’ve said, a leading advocate not a significant contributing factor to his WorkCover was so spooked by the in your field of accident compensation; injury. notion of being bound by independent and have been for many years; and the Bar The Magistrate agreed. medical assessments that it procured has no doubt that you will make a great However, you successfully appealed to amendments to the Act in 2004, the effect addition to the Court. the Supreme Court; and held it in the of which was to install the VWA as the On behalf of the Victorian Bar, I wish Court of Appeal; and again in the High ultimate repository of medical knowledge. your Honour long and satisfying service Court. Your wife, Ann McMahon, is also at as a Judge of this Court. The wider implications horrified Work- the Bar.
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18 VICTORIAN BAR NEWS Winter 2008 OBITUARY
Douglas Graham QC
Douglas Graham, born on 25 August 1939, the Privy Council as a junior. He took silk front of Owen Dixon Chambers (long died at Cabrini Hospital on 16 April 2008. in November 1978 and was Solicitor- before designating them as ‘East’ was nec- At the time, he was in private practice at General for Victoria for ten years (1992– essary). Douglas was a congenial neigh- the Bar, to which he had returned in 2003 2002), then returning to practice at the bour and the three of us enjoyed warm after ten years as Solicitor-General of Bar. companionship. Douglas was plainly cut Victoria. out for the Bar, not only intellectually but Upon Douglas’s death, the Victorian Since then, The Honourable Clive Tadgell through his deep appreciation of the col- Bar Council posted this obituary on its AO QC has written a fine obituary for legiality that it offered. This appreciation website: publication in The Age. Those two obituar- also was a constant for the rest of his life. ies cover admirably Douglas’s professional Douglas was a regular at lunch in the It is with deep regret that the Bar Council career and some of his personal life. To Owen Dixon dining room and enjoyed the informs members of the Bar of the death avoid undue repetition, Sally, Douglas’s company he found there and in chambers today of Douglas Graham QC. wife, asked me to write this obituary from generally. He missed this Bar companion- Douglas Graham graduated with an the different point of view of a friend and ship while Solicitor-General, when he was Honours Law Degree from the University colleague of Douglas, who made a start located at the eastern end of the city. of Melbourne and served articles with with him at the Bar in 1964. In fact, telling In 1966, Douglas undertook the task of Robin Elder of Madden Butler Elder & of Douglas in his early Bar years tells much being the Bar’s Assistant Honorary Secre- Graham. He was Associate to the Right of Douglas when, long afterwards, as tary and then Honorary Secretary. Quite Honourable Sir Victor Windeyer of the Solicitor-General, he was at its very head. typically, he managed these roles with High Court. He signed the Bar Roll in Constancy was one of Douglas’s virtues. efficiency and without fuss. In the context October 1964, and read with Peter Brusey. So many of Douglas’s predilections were of the Bar today, it is difficult to appreciate In 1966, shortly after coming to the Bar, lifelong. From student days, Douglas loved the unselfishness and scope of his contri- he became Assistant Honorary Secretary Jaguar cars. There was an interlude in this bution. At that time, apart from the loyal and then Honorary Secretary for a total of pleasure, however, while he was Solicitor- Miss Brennan, there was nothing of the some five years. He and Chief Justice General. An officious department message administrative support that the Bar has Michael Black were the first two barristers required him to suspend driving his Jaguar today. elected to the Bar Council in the newly to work and to use his issue Toyota. When The chambers Douglas set up were created category of counsel of less than six he set up his first chambers, Douglas pro- dignified, well bookshelved and soft to years’ standing. He served on the Council cured a redoubtable polished wood desk. sole and seat. Clients entering Douglas’s for six years – three years as a junior and Typically, despite the advent of computers room would have found a courteous man, three after taking silk, and as Vice-Chair- and changing fashions, Douglas retained it conservatively dressed, in whom a fusion man. as his working desk throughout his career. of modesty and confidence projected (until Douglas Graham did important Bar Douglas always enjoyed golf and had a something tickled his sense of humour) Council Committee work. He chaired the neat swing. In recent years, a dodgy knee an air of reserve. In the setting of that Fees Committee, the Rules and Conduct forced him out of the game but it did not room, with the Supreme Court cupola as Committee and the Law Reform Commit- obstruct his enjoyment of his lifelong loves a background for Douglas as he sat at his tee. He served on the Ethics Committee. of listening to music, playing bridge and desk, his clients would have felt confident He served on the Chief Justice’s Supreme watching cricket and football. that they were in safe hands. Court Library Committee for 17 years. In 1965, Douglas, Patrick Pender (also a Douglas was industrious and worked He had a distinguished career at the Bar Jaguar driver) and I secured our first neatly, usually with his jacket on, and with- for more than 43 years, appearing before chambers, beside one another, high on the out making a hoo-hah about any work
VICTORIAN BAR NEWS Winter 2008 19 burden. Mr Ron Beazley, the former Gov- the party emerge from the building and (no ‘Quincy’) had a distinctly odd look on ernment Solicitor, remarked upon this commence to cross William Street but, by his face as he rose to make his bow. quality at Douglas’s farewell as Solicitor- then, the baby had changed hands and it A high peak of Douglas’s career as a jun- General. Referring to the ultra-urgency was Douglas who was carrying the baby. ior was the brief for BP Refinery (Western- and difficulty of work for the transfer by Long after, if teased about his ‘control’ as port) Pty Ltd in the 1977 legal proceedings Victoria of industrial powers to the Com- a junior of the ‘Undefended Adoption between it and the Shire of Hastings. The monwealth, he said: ‘As always, Douglas List’, Douglas could share the joke. Privy Council decision included the iden- worked at his best under extreme pressure Douglas had a wonderful, dry sense of tification of five indicia for the implication and notwithstanding the importance of humour and a warm chuckle to go with it. of contractual terms. The indicia have been the issues and the size of the task, the job It is said that, having just taken silk and his familiar to lawyers ever since. A few years was done within the required time frame.’ new robe not yet ready, John Winneke had ago, Douglas recounted to me a remarka- From the start, Douglas never showed to borrow a silk robe from the diminutive ble tale about the lead-up to that case, the anxiety about whether work would come Neil Forsyth QC for the silks’ induction way the five indicia came into being, and in. His confidence was justified. It was ceremony. Given John’s height, there was of events at the hearing before the Privy not all that long before tapes on the briefs an obvious problem with sizing. Going Council itself. Thinking that it was a piece on his desk included, among the red, an down in the lift for the ceremony, John was of legal history that should not be lost, I increasing number of white-taped Crown unfortunate enough to run into Douglas, made a record of what he told me and briefs on questions of law for advice or who glanced across and said: ‘What are showed it to Douglas who confirmed its argument. There was ribbing (prescient, you wearing Winneke? A mini skirt?’ accuracy. What follows is based on that as it turned out) that he was ‘marked out’ Douglas’s sense of humour apparently record. by the Crown for big things. Douglas briefly deserted him, improbable as the The matter was heard first in the County must have been pleased with the way his occasion may seem, while he was being Court and then, on a case stated, by the practice was developing but gave no sign admitted to practise in the Australian Full Court of the Supreme Court. The of pride about it. Even at a time when he Capital Territory. Douglas’s admission fell Full Court unanimously found an implied was receiving work interesting enough to being moved by the junior solicitor who term contended for by the Shire. In both to make any junior excited, Douglas was had handled the paperwork necessary those hearings, Keith Aiken QC with never one to brag. in those days. On the morning of the Douglas as junior represented BP. The There was one occasion, however, when admission hearing, the solicitor enquired question was where should BP choose as Douglas did talk about a brief that had of the senior litigation partner about the its venue for an appeal. There were three come in at the last minute from his clerk. form of words he should use to move possibilities: the High Court of Australia, He mentioned after lunch one day that the motion. The partner, not knowing the Privy Council, or arbitration pursuant he had just been asked to appear before Douglas and assuming that Douglas had to a relevant statutory provision. Since a Master in an adoption. He spoke more a middle name of some sort, recited the BP was an English company, the Privy with puzzlement than anything else. None standard formula, commencing: ‘I appear Council was selected and leave to appeal of us had ever heard of a barrister before to move that Douglas, er, Quincy Graham was successfully sought in the Full Court. a Master concerning an adoption. Sure be admitted to practise…’ Before the appeal could be heard, Aiken enough, solicitor and female client soon At the admission, sitting in the seat be- QC was appointed a justice of the High appeared in the foyer, the woman carrying hind the moving solicitor, Douglas was to Court of Australia, and Brian Shaw QC a baby. Not long afterwards, the little hear the solicitor say, on cue: ‘I appear to was briefed to lead Douglas in the Privy group emerged from Douglas’s chambers move that Douglas Quincy Graham be ad- Council. and went down in the lift. Below, one saw mitted…’ . Apparently, Douglas Graham In London preparing for the appeal,
Pen City
20 VICTORIAN BAR NEWS Winter 2008 one evening before the fire after dinner at be properly found in the contract a different judges heard the matter. Of those nine, six Brian Shaw’s flat, Brian Shaw and Douglas implied term. The term he suggested (including two in the Privy Council) held prepared a list of five conditions which would have the effect of solving BP’s against BP, and, three, the critical three, they would submit had to be satisfied to problem. In fact, BP’s legal representatives held in its favour. find an implied term. had previously considered the possibility Douglas has left behind Sally, whom he The case commenced inauspiciously for of successfully contending for such a term. married on 16 January 1969. It was a sunny BP. The hearing began on 25 April 1977 Both counsel and solicitors had rejected it wedding day with the reception held in the – Anzac Day. Just after eleven o’clock. as ‘utterly hopeless’. garden of his parents’ house. In one of her Brian Shaw stood up to commence his The picture changed, however, as a result seven published books, The Card-Carrying submissions on behalf of the appellant. As of Viscount Dilhorne’s suggestion. Given Cook, Sally wrote: ‘I didn’t actually meet he did so, the ominous sound of a bugle the earlier reservations, Shaw was reluctant my future husband at the bridge table but I playing The Last Post in could be heard at first to put the point. There was discus- certainly got to know him there. A year from an Anzac ceremony at the nearby sion as to whether Douglas would put it or so of weekly bridge gave me time to cenotaph in Whitehall. when, according to Privy Council practice, observe an admirable sense of humour, At lunchtime on the first day, Lord he made his submissions as junior counsel. patience and good manners’. Simon ‘meandered down from the dais’ to Ultimately, Shaw put the argument sug- Sally and Douglas shared much, partic- speak to junior counsel for the respondent, gested, although he did so as an ‘alternative ularly, according to Sally, sheer fun. From John Winneke. The ageing Lord Simon, submission’. It was this ‘alternative submis- earliest days, they travelled the world then frail after a stroke, had formerly been sion’ that won the appeal, in a three to two widely, but especially to visit Sally’s parents the United Kingdom Solicitor-General. majority decision: BP Refinery (Western- in her original homeland, England. They John’s father, Sir Henry Winneke, had port) Pty Limited v The Shire of Hastings enjoyed their Portsea holiday house with formerly been Victorian Solicitor-General (1977) 180 CLR 266. its wicket gate on to the course of the and was, at that time, Governor of Victoria. In his dissenting judgment, Lord Sorrento Golf Club. On the bay, the family In a wavering voice, Lord Simon said Wilberforce was scathing about this argu- played about in their motorboat, Eupho- to Winneke: ‘I used to know your father ment suggested from the Bench which he ria, so named by Sally ‘for its feeling of when he was Solicitor-General. I believe said: ‘had never been formulated in writ- false buoyancy’. that now he is the Governor of the colony.’ ing and has assumed a “protean” charac- Sally and Douglas had two children, As it happened, John’s leader was Sir James ter’. Among other criticisms, he said that it Amanda and Virginia, who both live in Gobbo, who, himself, was later to become ‘was not put forward in either court below, Melbourne. Amanda has followed her Governor of ‘the colony.’ nor taken or hinted at in the appellant’s father into the law. They had a fair and At the commencement of the second printed case’. loving father whose judgment in family day of the hearing, Lord Wilberforce (who In the course of his earlier submissions, matters was as sound as in the law. wrote the minority dissenting judgment), Brian Shaw had put the five conditions Douglas was diagnosed with leukaemia suggested to the appellants that they might that he and Douglas had nutted out before in January 2007. The ravages of the disease have been better off if they had chosen to the fire. They attracted no particular atten- eventually brought a weakening of Doug- appeal by way of arbitration, rather than to tion during the hearing, although Douglas las’s resistance and a series of crises which the Privy Council. It was another bad start recalled their being noted by at least one Douglas bore with bravery and stoicism to the day. member of the panel. It was with amaze- until the end. In mid-morning on the second day, the ment that Douglas read the conditions Vale, Douglas Graham. case took a more benign turn for BP. In the repeated almost verbatim in the reasons: DAVID BENNETT course of argument, Viscount Dilhorne at p. 283. suggested to Brian Shaw that there might Altogether in the various hearings, nine
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SubBarNews_Mar08.indd 1 19/02/2008 2:12:22 PM VICTORIAN BAR NEWS Winter 2008 21 OBITUARY
Charles Sweeney
Charles Augustine Sweeney (Sweeney), would have been effectively destroyed. by assessor Dr H D Morgan). He found who died on 22 December 2007, adorned In later years Sweeney told of the chaos of for the Morrisons, and the case then went the Victorian Bar in a period when the Bar accompanying the wounded Commander on Appeal to the Full Court (Herring CJ, was replete with great advocates, appear- Collins in a launch across choppy seas to Lowe and Fullagar JS) who reversed the ing before strong and distinguished judges. HMAS Shropshire, as the battle continued decision. Sweeney was born in Tasmania on 27 to rage all around. The Morrisons then unsuccessfully April 1915. He was educated in Melbourne, When Sweeney returned from the appealed by Special Leave to the High finishing his schooling at St Kevin’s College, War, in December 1945 he married Betty Court (Rich, Dixon and Webb JJ, in dissent Victoria Parade. He graduated from Need and enjoyed a loving and fruitful Latham CJ and McTiernan J). The report Melbourne University with Honours in marriage. He is survived by his wife and records that Arts and Law and later completed a Master four children, Charles QC (a member of of Arts. He was President of the Newman this Bar), Catherine (Walter) a solicitor, Sweeney (with him R V Monahan KC) College Students Club, captained the and William and Francis, both doctors. presented the argument for the Appel- College First 18 and played for University Sweeney returned to the Bar and quickly lants, and Monahan the reply. Blues. He was an Australian Champion became and remained an outstanding ad- Handballer, a competent golfer, and in later vocate. He developed a large all-round The saga continued. An Application times a keen bowler and bridge player. This practice including common law, (particu- for Leave to Appeal was made to the incomplete list of his early achievements larly in running down cases), the Licensing Privy Council. In Whose Baby (Duck and presaged a most distinguished career in the Court, and appearing before the Australian Thomas 1984) there appears law. Broadcasting Control Board for the then Sweeney did articles with Oswald Burt eagerly sought after television licences. Jack Galbally was questioned…about the and then joined the Bar in 1939. He read Of the many leading cases in which possibility of a further Appeal to the Privy with J V Barry, later the renowned Justice Sweeney appeared, there was none more Council in London. He said ‘If Mrs Mor- Barry of the Supreme Court. He very notable than R v Jenkins (ex parte Morrison) rison could walk to London I would have quickly had a burgeoning practice, which 1949 VR 277 (TheWhose Baby Case). no doubt she would start this afternoon’. was interrupted by the Second World War. On 22nd June 1945 Mrs Jenkins and He said ‘There is only one thing that is In 1942 Sweeney joined the Royal Naval Mrs Morrison had each given birth to a stopping her, money’. Volunteer Reserve and served as an Officer female child in the same room at Kyneton until 1945. Hospital within five to ten minutes of This was overcome. On 21 October 1944 Sweeney was on each other. Mrs Morrison alleged that To that time Sweeney and the others board HMAS Australia in the battle of she was given the child (Nola) to which had acted pro bono. When Galbally and Leyte Gulf. The Australia was the first Mrs Jenkins gave birth, and that her child Sweeney flew to London ‘both of them had allied ship to be hit by a kamikaze (‘divine (Johanne) was given to Mrs Jenkins. About paid their own fares’. wind’) attack. An unknown pilot flew his four years later Mrs Morrison sought a writ Garfield Barwick KC happened to be in plane into the ship’s superstructure above of habeas corpus to have Nola delivered to London for the Bank case, and he was the bridge, spraying burning fuel and her and her husband. Jack Galbally (for briefed to lead Sweeney. Allan Taylor KC, debris over a large area. Captain Emile the Morrisons) briefed Sweeney led by R (also there for the Bank case) with him Dechaineux and 30 other seamen died and V Monahan KC and Bernard Nolan (for Else Rae-Mitchell were the opposition. 64 were injured. Fortunately for Sweeney the Jenkins) briefed E Hudson QC and H The Privy Council, after hearing argument, and other crew members, a 200 kg bomb Winneke. took just twenty minutes to deny Leave to failed to explode. Had it done so the ship The matter came before Barry J (assisted Appeal.
22 VICTORIAN BAR NEWS Winter 2008 Some months later Barwick wrote to It was the practice of the Board to require I must say that your departure from Barry saying the lodgement of a case, and the Board practice in our Court will be very much was ‘reluctant to allow alterations to the regretted. May I with very great respect, be permit- contents of a case’, except as to minor Sir Edward Hudson ted to say how well your Judgment read details, and any application to modify and how convincing and entirely satisfac- one’s case was furiously opposed by all the The Commonwealth has been fortunate tory to my mind it appeared. other applicants. enough to induce you to accept a position on the Arbitration Bench. May I congrat- Ten minutes before lunch Sweeney was Barry’s biographer writes of his great dis- ulate you. I have always admired the logi- asked whether he would prefer to com- appointment and concern at the appellate cal presentation of your case… mence his case after lunch. Sweeney said: decisions. Sweeney was of the same view. Sir Charles Lowe Sweeney took silk on 21 May 1955. His I have no objection to starting now. I do practice as a leader was wide and extensive. not propose to make any opening address. We shall miss you around the Courts, He was a brilliant advocate, urbane, concise, Perhaps the formalities can be attended especially in the Bourke Street ‘slums’. always imperturbable, and a most incisive to before lunch, if I call my main witness No more shall we hear you trying to cross-examiner. and he can verify our case. cross-examine a Polish woman with her This was demonstrated in many juris- ‘Very well,’ said the Chairman. monosyllabic answers reported by the dictions including the Licensing Court. Sweeney thereupon called the secretary interpreter in long and eloquent English Post-war legislation, having removed the of his client company who, having been sentences complete with gesticulation. numerical limitation on liquor licences, sworn, verified the volume which was the Sir Arthur Dean opened the floodgates of applications. case. By now, the exodus from the Board- These were pursued by a formidable Bar, room was starting, papers were being Before I resigned I thought you were a including, R V Monahan QC, J P Bourke gathered up, and Counsel were strolling certainty for our Supreme Court and I QC, J O’Driscoll QC, Don Campbell QC out, with no one bothering about what regret you are not there. and of course Sweeney. The Licensing was happening. Sir Russell Martin Court, chaired by Judge Archie Fraser ‘Now witness,’ said Sweeney unper- with Magistrates Frank Field and Ron turbed by the dwindling audience. ‘For Atchison, was often a stressful Tribunal to As one who often had the pleasure of pages 7 to 21 do you substitute the pages appear before, particularly when the Judge watching you work at close hand – usually I now hand you’. was ‘in form’. In that milieu the coolness to the detriment of my clients – I have ‘Yes,’ said the witness. and cogency of Sweeney was outstanding. no doubt that you will fill your role with The same procedure was followed Thus when, with typical derision, the Judge distinction… smoothly for very many of the other pages attacked the financial standing of Sweeney’s John Starke of the original case…which were admitted client saying: as part of his client’s case without objec- In his time on the Commission, Sweeney tion, nobody appreciating that what was There’s hardly enough in this balance sheet participated in a number of notable cases, being done was virtually the presentation to pay your fees. including important basic wage decisions. of a new case. In 1970 Sweeney was appointed the After lunch all fury broke out when his Sweeney replied: Federal Judge in bankruptcy, replacing Sir opponents discovered how smoothly Harry Gibbs. Sweeney had effected his fait accompli. I would be obliged if your Honour would On 2 November 1970 in somewhat Their rage was the more so, because not distract me with such doleful com- wavering handwriting Sir Owen and Lady Sweeney was a Victorian Silk and the ments. Dixon wrote: Counsel aggrieved hailed from Sydney. They did not know our Charlie. Sweeney was a courageous, competi- We send you our warm congratulations tive, but always cool advocate, of which Sweeney was appointed to the Com- on your appointment to the Court of coolness Kevin Anderson (later Sir Kevin) monwealth Conciliation and Arbitration Bankruptcy. I, Owen Dixon, made friends remarked: Commission in 1963. Whilst one does not with Judge Clyne, when we were students expect messages of congratulations to be at the Melbourne University – and we I have no doubt that behind those pale less than effusive, from letters to ‘Charles’ remained friends until his death. You blue eyes there burns coals of fire. or ‘Charlie’ the following excerpts reflect will find the jurisdiction interesting and I obvious respect and admiration. hope you enjoy a long tenure of office. If Likewise in Fossil in the Sandstone you chance to find it possible to visit me I Anderson writes of Sweeney appearing You would have graced any bench and I shall be very pleased to see you. before a Board empowered to award Tele- have some pangs of regret that we are to vision Licences, of which it was said,‘ the be deprived of your polish and ability. We Prior to and after this letter Sweeney successful applicant has a licence to print will miss you. visited Dixon on a number of occasions. money’. Sir Alistair Adam The Federal Court of Australia was estab-
VICTORIAN BAR NEWS Winter 2008 23 lished on 7 February 1977 when 17 of 18 In April 1961 Sweeney wrote to the judges were appointed, Sir Nigel Bowen as Bar Council proposing the retention of Chief Judge having been appointed one Equity Chambers ‘upon the basis that the BAR COUNCIL ELECTIONS month earlier. Sweeney, who was fifth in accommodation will soon be necessary COMING UP seniority, eventually became the longest to house an overflow from Owen Dixon serving Judge, and sat in Courts across all Chambers’. Ballot papers will be forwarded the States and Territories of Australia. After strenuous negotiations, the Bar to all members of the Bar on David Habersberger QC at Sweeney’s Council resolved that Counsel’s Chambers 22 September 2008 farewell extolled Sweeney’s judicial Limited should take a new lease of the attributes. Fourth Floor of Equity. Sweeney’s power- and must be returned to the ful influence was a substantial reason in Victorian Bar office by close Those qualities have always been evident a number of renowned Silks and Juniors of business on in Your Honour’s work as a Judge. Cour- remaining in Equity. His efforts emulated 9 October 2008 tesy and civility to both practitioner and those of Sir Eugene Gorman KC in 1931. lay person, patience and tolerance of the Remember to vote! inexperienced Junior Counsel, elegant At his farewell he said of Equity phrasing of Reasons for Judgment were Chambers that it ‘had at least its fair share the hallmarks of Your Honour’s judicial of talent, as may be seen from the fact that work. among its 39 occupants were 19 future Judges…’ statistical details…But on the other hand, There were many other tributes, and Of ‘Pat’ Gorman he said at his farewell: I had to take care not to deprive myself of comments. a farewell. In the late forties Sweeney was a mem- I came there (to Equity) as a school boy ber of the Committee of Counsel, which in with dreams of the Bar, having the oppor- It was a marvellous farewell befitting the 1954 was renamed the Victorian Bar tunity to call on Eugene Gorman KC, then retirement of the Federal Court’s eminent Council. at the height of his great powers. He and longest serving Judge. received me kindly, but I was not then to This obituary does not refer to the many Sweeney whose Chambers were in Equity know that he was to be a generous guide, and notable services outside the law, which was involved in the perennial problem of philosopher and friend to me for the rest Sweeney so generously and efficiently accommodation for the Bar. In 1931 Sir of his life. provided. They have been referred to in Eugene Gorman obtained from Equity the excellent and touching obituary by his Trustees Ltd a lease of the Third Floor of He concluded with typical wit and daughter Catherine Walter, from whom Equity Chambers. This greatly relieved irony: she and her husband John, a deal of the the pressing problems of providing material which appears herein came. accommodation for the Bar. In 1931 there I must say that I still recall the odd case Catherine wrote: were 165 barristers at the Bar, 27 of whom here and there which I should have won, were accommodated at Equity and the but did not. But on such a day as this I will His was a life characterized by rugged balance (save two at 480 Bourke Street) in permit myself the licence of saying, even good health and no complaints. It was Selborne Chambers. In later years, Coun- in this distinguished company, that that only in the last years of his life that a sel’s Chambers Limited took leases of was always the fault of the Court, even the twelve-year battle with Parkinson’s disease Chancery House, Saxon House and Eagle Highest Court in the land… . finally started to take its toll. Through all Star, the Fourth Floor of Equity Chambers I learned from the sage guidance of the that period he was sustained in particular and sub-let these Chambers to barristers. solicitors who were adventurous enough by the love, care and devotion of his wife, On 30th May 1958 a special meeting of to brief me and from their instructions in Betty, who selflessly looked after him in the Bar authorized and directed the Bar the running. To them I say in the words of the final years of declining health. He died Council ‘to continue with efforts to obtain the old music hall days, my wife thanks peacefully at the age of 92 years on 22 premises to house the whole Bar…’ you, my children thank you, my grand- December 2007 surrounded by family. A Sweeney and a number of other barristers children thank you and I thank you… I private family funeral was conducted by in Equity objected to the idea that the Bar also learned from my opponent, from my Father Hayes for him at St Peter’s, Toorak, should be housed in one building, with leaders, and eventually from my juniors, the Church he attended for more than 50 the obvious consequence that Equity that is from those who turned up. years. Chambers should be vacated. Of his decision to retire he said: Thus ended a great life and career in When the Bar Council in March 1961 the law, and one which met and easily directed Counsel’s Chambers to terminate One of the advantages of a life appoint- complied with the highest standards and its lease of the Fourth Floor of Equity ment is the freedom to choose one’s own traditions. Chambers, Sweeney indicated that he was time of retirement. It is not a choice I have Vale, Charles. prepared to take over the Fourth Floor. made in haste as you will gather from the PETER J O’CALLAGHAN QC
24 VICTORIAN BAR NEWS Winter 2008 NEWS AND VIEWS
BarD inner June 2008
VICTORIAN BAR NEWS Winter 2008 25 Speech by OOD EVENING, sisters and brothers. A year ago Chris O’Neill invited me to Join his table at the Bar Dinner and I accepted the invitation. He said to come along Ross Gillies QC Gand give Ruskin a cheer along because he needed every bit of encouragement that was available. I agreed to go because after forty years at the Bar I hadn’t been to a Bar Dinner and I thought it was an appropriate time to break the ice. So I have sort of done okay in the last twelve months, coming from maiden attendee to holder of the main brief and I am hap- py to note that Judge O’Neill’s done well too, because the last twelve months have been kind to him. He came to the dinner as a knock-about Common Law jury tyro and now he attends as an honoured guest, His Honour Judge Chris O’Neill. Chris of course has embraced the job of Judge, He is immaculately charging juries and deciding cases and he is also engaged in the government of the Court, much to the glee of the Chief Judge. He and the multi-lingual and multi-talented Sandra Davis run the government side of the Civil List and if that accolade doesn’t get me priority in getting my cases on nothing will. When I agreed to take this brief to address you this evening, the Chairman Mr Riordan expressed some concern. He said, ‘I want a draft of the speech because we have had misfortune in past years because of a perceived lack of political correctness which has been a propellant and certain people have left’. He confirmed, ‘We must have no walk- outs this year. I have had a turbulent time in my time as Chairman of the Bar Council and I don’t want anything to go wrong because this is my culminating event, I sort of feel like a bride planning a reception’. I replied, ‘Riordan, if you’re the bride I really pity the groom.’ He said, ‘Just one thing, if you won’t give me a draft of the speech, unreservedly undertake to be politically correct and absolutely millimetre perfect in that regard PREVIOUS PAGE: Crowd scene because we must have no walk-outs’. I promised and he said, ‘I trust the promise will be
26 VICTORIAN BAR NEWS Winter 2008 Attorney-General Rob Hulls, Carolyn Burnside and Chief Judge Michael Rozenes David Gillard with his father the Honourable E W Gillard QC
honoured’ and I thought that if he believed evening is out but nevertheless not make types of food and that is worth knowing. It that he was a fool. me a candidate for special counselling. details who wants to sit with whom and I have a problem with political correct- There are many esteemed and honoured that means who wants to ingratiate them- ness because in this day and age basically guests here this evening. It was in previous selves with whom. Certain tables are the only section of the community that can years a tradition for the speech maker in packed to the gills because such tables are be safely satirized is the majority. However, this position to specifically advert to all much cooler to be on than others to be on. it is not so much fun satirizing the major- such guests. That’s not possible tonight as Then there is a more intriguing ‘I do not ity if you are a member of the majority. we have over thirty honoured guests and I want to sit near, I do not wish to be in the There are lots of protected minorities but would be part-heard at midnight if I had same quadrant of the hall as…’ they can’t be touched. I would be required to cover the field. In any event because So adopting that approach I’ll miscella- to apologise and receive special counsel- someone is an honoured guest it does not neously refer to half a dozen or so or more ling and guidance for the rest of my days make them a mortgage holder on emi- of you during the course of this speech and were I to breach a canon. It is unfortunate nence, importance, notoriety or being in- we should start with the High Court. The because minorities tend to be so fault rid- teresting. The honoured guests have all High Court commands that sort of respect den but I just mustn’t do it. received accolades of their own. Judges and hierarchical attention rather than be- On the other hand, if one is a member have been welcomed to the Bench and ing buried in the midriff of the speech or of a minority, it is permissible to satirize people have stood and bowed and heard a even lower. not only the majority but also any minority detailed oration about their achievements Susan Crennan AC is the first member group. A minority member satirizing his and how grand it is that they’ve been of the High Court to be mentioned, not own is not regarded as being discrimina- appointed and they have basked in that because I am elevating her seniority wise tory: he is seen to be engaging in ironical deserved glory. above Justice Kirby and Justice Heydon humour. I suppose I could secure such a What I propose to do is to take random but after all she has recently received her freedom by joining a minority, but which candidates from the audience. This miscel- Australia Day Honour. I don’t see much one would have me? laneous approach will embrace some of of Susan these days because I don’t often If during the course of this speech there our eminent and honoured guests who appear in the High Court and I might say are walk-outs that would be bad luck and a coincidentally are interesting enough to that is not a consequence of our Court of source of upset to the Chairman but I sup- warrant a mention but essentially every- Appeal usually getting it right. pose as a consolation there would be more one is at risk. Everyone is a potential target I last saw Her Honour when we together chocolate soufflés for Simon Wilson at the and that is a device to ensure continued travelled Route 66 to Chicago to the Aus- end of the evening, and I can say that of attention. tralian Bar Association Conference and I Simon of course because he is a member I have in front of me a detailed list of all do think that there is a strong prospect of the majority and the big fellow will un- in attendance this evening. It is an interest- that Her Honour will succeed the Honour- blinkingly take it and probably have per- ing list. It indicates who wants to eat a cer- able lan Callinan as the roving interna- sonal retribution against me before the tain type of food, who is allergic to certain tional-conference-attending High Court
VICTORIAN BAR NEWS Winter 2008 27 Justice Sue Crennan and Judge Paul Lacava
Judge. If she does that it would be good because not only is it always pleasing to see Susan, one always knows that when a High Court Judge attends a conference the taxa- tion deduction is in the bag. Justice Michael Kirby is the most famous judge in Australia, although I hear Bill Gillard interjecting saying ‘only since I retired’. Fiona McLeod has spoken about me having an inclination to say ‘no’. Coinci- dentally I was eavesdropping on a conver- sation that his Honour was having with a waiter a moment ago and the waiter en- quired, ‘Is something wrong, your Hon- our?’ Justice Kirby said, ‘No’ and the waiter persisted. ‘Well, every time I ask you a question you tend to say “no” ’, and his Hon- our said, ‘What do you mean by that?’ and he said, ‘Well, I have offered you this wine and that wine and this food and that one… and you keep on saying “no” and I’m a bit concerned you are not having a good time’. His Honour said, ‘I like to say “no”. I really like to say “no” and that means I am having an excellent time so just don’t worry.’ The waiter remarked and said, ‘But I’d like you to say “yes”. ’ His Honour said, ‘Don’t wor- ry, I prefer to say “no”, ’ and the waiter re- plied, ‘Look, I note you’re on a table for ten; if I were to put you on a table for three as an example, would that please you be- cause then in addition to dissenting you Chairman of the Bar, Peter Riordan SC
28 VICTORIAN BAR NEWS Winter 2008 could be sitting in a very distinct minority’. His Honour said, ‘Well, the word chokes around my vocal cords but I would concur with that proposal’. Justice Dyson Heydon is here tonight. This must be a first for Dyson being in a room such as this with someone else who bears the some Christian name: Dyson Hore-Lacy. The similarities don’t end therein because as an example his Honour Justice Heydon sits in a celestial jurisdiction, the High Court where the angels sing all gloria in excelcius as the jurisprudential atom is divided time and time again. Dyson Hore-Lacy on the other hand sat in a heavenly jurisdiction, albeit at the other end of the spectrum in the Coroner’s Court, but work which was nevertheless suitably adjacent to the Good Lord. In addition, of course, Justice Justice Sue Crennan and Andrew Maryniak Heydon is a celebrated author of texts, including Cross on Evidence. Dyson Hore- Lacy knows all about the rules of evidence but he tends to break rather than comply with them, but that has nothing at all to do with his understanding of the topic. Other legendary works of his Honour Justice Heydon include his trade practices book, which is a standard reference, and again it might astonish you to know that Dyson Hore-Lacy has had a passionate and abiding interest in trade practices: he raced a horse by that name for four or five years. I want to mention Barry Watson Beach because he is someone who is irresistible to me. Everyone here would remember Barry as a judge – a judge of great authority and capacity to get work done. LEFT TO RIGHT David Shavin QC, Justice Michael Kirby, the Chairman, Jane Dixon SC and Fiona Ellis Not so many these days would remem- ber him as a barrister and I can tell you he was a fine barrister. He was a top common he would not take another brief. Percy I’ve got a bit of paperwork to do and I’m law silk at a time when the Common Law maintained, ‘Look, Barry, Chick Lander concerned that the work will become statute Bar was exceptionally powerful, with nu- has got a brief for you on Monday in barred if I don’t attend to it so I’m not going merous really strong advocates and he was addition to the brief which you already to Court next week.’ He said, ‘You’re what?’ more than competitive with each of them hold,’ Lander was the founder of Lander I said, ‘I’m not going to Court. I’ve got to do and I mention counsel such as Crockett, & Rogers and was a leading common law the paper work. I’ve got six or seven time Kaye, Coldham, Wheelahan and the list solicitor. Barry replied, ‘I’m not interested. bombs quietly ticking away on my desk and goes on. Barry could more than accommo- I don’t want someone else’s throwback. I each one of them will bankrupt me if I get date all of them but his main aggression, won’t do it.’ Percy threatened, ‘Well, that sued because they’re statute barred’ and his main courage was not in fighting Bill would make me angry and Chick angry’, then I used the Beach formula and said that Kaye or Bill Crockett; it was in fighting one, Barry retorted, ‘Well, that doesn’t concern is that and walked off. Percy Roy Dever…, our clerk. me one bit, I’m off, goodbye and that is I had been in my chambers for only a Percy Dever was a fine clerk but was that’, and he strode out of Percy’s little rat short while when the phone rang and it also a bully, cajoler, a twister and a turner hole that he called his office. was Percy Dever. He said, ‘You’re sick’. I and one who rode his barristers very, very I was suitably impressed by this so I said, ‘No I’m not’. He persisted, ‘Yes, you hard. I remember inspirationally listening bowled up, regarding the direct approach as are, you’re sick. You don’t want to go to to Barry saying to Percy one day how being the appropriate one, and said, ‘Percy, court, you must be sick. You don’t want to
VICTORIAN BAR NEWS Winter 2008 29 Tom Bathhurst QC
Fiona McLeod SC The Great Hall make any money, you want to just sit up in examination’ as he snapped a latex glove was a cardiologist and to this day I am your chambers like a commercial barrister onto his dominant right hand. Members, wondering about what a cardiologist was drawing affidavits and stuff like that. In I saw stars. doing with a latex glove. Barry, that’s one I fact I’m so worried about you I’ve made an When I got back to chambers after the owe you. appointment for you to see a doctor.’ medical examination, Percy said, ‘Did you As I go through the list of distinguished At this stage my bravado went and I find the doctor very thorough?’ I said, ‘I and other guests here tonight I see Allan reverted to being compliant and mur- certainly did’. Myers QC, holder of the Queen’s Birthday mured, ‘Yes, Percy’. He barked, ‘Get up to As a coincidental irony the doctor’s Honour of AO. Allan is not easy to get out 98 Collins Street and you’ll see the doctor’. name was ‘Bottomley’. His name was Dr these days he is so busy. He is the richest I dutifully attended and was met by the Keith Bottomley and he was well known to lawyer in Australia but he can come here physician who stated with a gleam in his those in the common law and those in the because he can have a meal with his friends, eye, ‘You’ve come here for a very thorough compensation jurisdictions. However, he he can have a drink with his friends, he
30 VICTORIAN BAR NEWS Winter 2008 joking about that and I know you’re teasing us and I know you don’t take it seriously and are trying to upset people like me who think there is a faint possibility that someone’s getting it and they are not. So I am taking it as a joke and I do tell everyone else to take it as a joke and a tease, but just in case you have found someone who is getting $14,000 per day and just in case there is that sort of money around, would you give me just a slight clue as to where it is because I’ll do the rest, I’ll do the rest…I don’t need much, I don’t need much of a clue at all. Mr Attorney is also a bit tired of suggestions that judicial appointments have been politically oriented, just as Justice Gillard dislikes the connection between him and Mokbel. The Attorney has had enough of the contention that those in Jason Pennell, Denise Bennett and John Riordan favour with the Labor Party get a better go than those who are not. That’s wrong of course but he wants to do something about it. He is not going to do anything drastic can reminisce with his friends and he can years both as leading counsel and as judge like appointing supporters of the Liberal also keep an eye on his paintings. In fact, I should not have him go down in history Party to the Bench but he thinks that he think Allan might even own this building. as the man who sprung Tony Mokbel. He might put a Tory into Government House. Allan is an altruist and a benefactor but I was a much too grand a judge and a much He thinks he might do that. He hasn’t told don’t know that it includes throwing in the too grand a barrister to have that epitaph. me who is a candidate but I think that Sir venue for tonight’s dinner. Being present, Don’t forget that Bill was the one who Richard Stanley might be someone he has Allan does not have to worry about a above his chambers’ door had the hardly in mind. There is a logic to this because Sir Caravaggio or a Canaletto walking during self-effacing inscription ‘The Great EW’. Richard has been edging closer and closer the course of the evening. Gillard, because of his association with to Government House over the years. He Justice Jack Forrest was kind enough in Tony Mokbel, has become something of resides in Airley Street, South Yarra, and his welcome to invite me to the Bar table, the Melbourne equivalent of ‘Laurel and has been buying property after property I was very pleased to accept that honour. I Hardy’. moving down the hill and thus closer to sat up at the Bar table beneath the Forrest Mr Attorney is in attendance. Mr the gardens surrounding Government family in the jury box, and as the welcome Attorney, Bill did advise me that he has a House. I can see Sir Richard as Governor unfolded I realized the true purpose of Jack great embarrassment about the amount of under the ostrich-plumed hat awarding placing me in a conspicuous position. It money that has been spent locating and bravery awards to those counsel who stand was so he could publicly humiliate me with bringing Mokbel back to Australia. Gillard up in the Court of Appeal for the VWA, talk of my greed and my preoccupation for does have a reputation for meanness which and absentmindedly stroking his mullet as the fee rather than for the legal principle. I now wish to dispel, because Mr Attorney, he is wont to do. Jack was very frequently my junior and I would ask you to relay this to the Colin Lovitt is here tonight conveniently over a long period of time. On reflection I Treasurer, Bill Gillard has chosen to partly under a spotlight so I can see him on table should have had Jack sitting at the edge of defray the cost of bringing Mokbel back 29. Colin Lovitt a colourful counsel and an this stage as an equivalent to me sitting at to Australia by entirely waiving his judge’s aggressive counsel, as many judges have the Bar table. I could then invite him to tell pension. discovered, be they Supreme Court judges you of the many occasions when he said to I might say, Mr Attorney, it is very good or Brisbane magistrates. His aggression me, ‘Oh, I think your fees are a bit on the to see you here this evening, I want to em- hasn’t been confined to vocal aggression. light side, it’ll take a bit more, it’ll take a bit phasise that you are only here as an acting He has had to defend himself and the more than you’ve got on it’. guest and that as a consequence you get no honour of his friends physically at the The Honourable E.W. Gillard is here and dessert. On one view you are lucky to get Carlton Football Club on more than one he was the top trial Judge in this State up the main course. occasion. I have known Colin for many to the time of his retirement. He is getting I have noted the recent publicity that has years. As a young barrister he was in every a bit tired of his name being mentioned been given to your views about barristers’ card game from one end of Lygon Street to in the same breath as one Tony Mokbel. fees and in particular the issue of silks’ fees the other. They were big card games and He says that his performances over the of $14,000 per day. Now look I know you’re he was a big player and he rejoiced under
VICTORIAN BAR NEWS Winter 2008 31 been instances where barristers, whether they be altruistically inspired or more likely self-promotionally inspired, talk to the press in a critical tenor as to what is going on at the Bar and about alleged conduct of certain counsel. In my opinion public criticism of the Bar by a barrister is a deplorable thing to do. This is not a case of talking solidarity, it is not a case of pulling down the shutters on the system for fear of public scrutiny. We have in our Ethics Committee and Tribunal organizations which very jealously guard the standards and reputation of the Bar. Anyone who has appeared before the Committee or Tribunal either as a defend- ant or as counsel will know what I mean. I regard it as a minor victory when I escape with my own right to practice intact after representing someone. There is thus no need for anyone, from a public viewpoint, to be concerned if someone doesn’t speak freely to the press about what is going on at the Bar. Sarah Fregon and Will Alstergren organizer of the dinner One problem attendant to a barrister speaking out against the Bar in public is that that barrister gives himself an elevated the unflattering name, ‘The Embarrister’. There is evidence of the same problem status. The public tends to think that the He was so called because of his conduct. on the Bench. The late Judge Michael informant is reluctant to be speaking out It is good to see ‘The Embarrister’ here Higgins was an ornamental Judge, one against the Bar when usually the contrary tonight and no doubt he’ll be going off to who worked and worked and worked and will be the case. It thinks that there is a fair shuffle the cards until 4am later on in the obliged the litigant at every turn of the possibility that what the person is saying is evening. track. The index of suspicion is very high true, for otherwise the risk would not be What I want to do at this stage, mem- that he died from overwork. taken of speaking out. bers, is move from the hilarious to some- The examples which I have stated are Such presumptions of accuracy are ill- thing more serious. It relates to practice at extreme. I argue cases with extravagance. founded. Public critics of the Bar show no the Bar and to the fact that whilst we re- However, there is a very real need for bar- reluctance to make a statement. gard ourselves as being a confederation it risters and judges to keep an eye on one However, my main reason for disap- is nevertheless a very loose confederation another. It is important to say to colleagues proving of counsel engaging in public crit- within which there is a subconscious ‘How are you going?’ and a need to sit on icism of the Bar reposes in the fact that brutality and selfishness. These character- the edge of someone’s desk and enquire you just don’t do it. Whether it is your own istics are probably spawned by the fact that ‘Are things all right with you?’ It is impor- religion, whether it is your own race or we are sole practitioners and independent tant there be encouragement within the whether it is your own family, you don’t contractors. It is easy enough on an occa- ranks. Thus if someone has heard good turn on your own. You don’t turn on your sion like this to feel a strong sense of news about a barrister then such good own because it is a really canine thing to togetherness but it really should permeate news should be communicated. It may be do. It is deplorable. our day to day lives much more. Whether for example that Justice David Harper has Let me say in conclusion that we have one is a judge or a barrister there is no one noted off the Bench that one Joe Bloggs all been blessed since we first walked up really to look out for you like a partner or did a very good job in a recent case before the steps of Owen Dixon Chambers on day a fellow employee. him. It would be a really good thing to do one at the Bar. True it is that some have We have had situations where barristers’ to advise Joe Bloggs that his Honour was been more blessed than others but we have lives have got out of control. As an impressed by his performance. This is all all been blessed. The very good reason for example, Brendan Griffin, a silk who was part of what I perceive to be an obligation this rests on the fact that there is no better doing very, very well at the Bar died by his to keep an eye on one another. racket in the cosmos than being a barrister. own hand. Further Peter Hayes QC, who As an adjunct to this issue of life in a The future is good. The future is iron clad did not die by his own hand but died in confederation, I wish to say something of for a very good reason, and enemies of the a situation where his life was pretty much the issue of barristers speaking out against Bar should note it: God loves barristers. out of control. barristers in a public forum. There have
32 VICTORIAN BAR NEWS Winter 2008 for the free feed and that some, or all, of those mentioned by Ross Gillies would be contemplating the obtaining of legal advice, if only they had access to a decent lawyer. I am certain that all of them would be delighted at the choice of this venue, which is the repository of so much great art. Regrettably, I must confess that there is no discernible link between my ancestors and art. In fact, my uncle frequently used to say, ‘I don’t know much about art, but I know what I like!’ In my uncle’s case what he liked were nudes. At this stage I really should apologize for not having a Power- Point presentation. Otherwise I could have illustrated my uncle’s taste. I think it was Oscar Wilde who said, ‘Art must be obscene to be believed.’ Certainly this sentiment would have reflected my uncle’s views. Fortunately, I have been rescued by my family from this narrowness of vision. Over the years I have been taken to every major gallery in Europe where I have witnessed some magnificent hangings – some would say appropriately for a Judge. Of course we visited the Louvre. Think- ing about this I was reminded of the American who was telling his Texan friends of his trip to Paris where he visited the Louvre. ‘Did you all see the Mona Lisa?’ queried the intellectual in the group. To which the traveller responded, ‘If it was in there, I seen it!’ Some years ago at the Uffizi Palace in Response on behalf of the Honoured Guests by the Florence, I encountered Jack Keenan QC – one of our Honoured Guests. I’m sorry Honourable John Coldrey QC about this name dropping – but it’s not every day I get to meet Jack Keenan. He was dressed in a gaberdine coat and felt hat. This was surprising since it was mid- summer but, as they say in the Court of HE HONOURABLE Justice Kirby, simplest method is to cross out the letters Appeal, ‘nothing turns on this point.’ the Honourable Justice Heydon, ‘ice’ in the word Justice. So, for example, a Anyway, Jack remarked, as he gazed up the Honourable Justice Crennan, With Compliments slip now reads: ‘With at the magnificent architecture, ‘Amazing Tand the rest of youse. (I know where my the Compliments of Just John Coldrey.’ people these Medici, they remind me very bread is buttered. I might still have some There appears to be a tradition for the much of the Galballys.’ I could only agree. appeals in the pipeline.) speakers at these dinners to talk about The NGV has a unique facade which is I welcome this invitation from the Vic- themselves. In my case, in the ten minutes quite a contrast to that of the art gallery torian Bar Council to speak to you tonight allotted to me, I’m not sure I can do justice of New South Wales. The front of that as part of my therapy for R.D.S. – R.D.S. to such a complex and fascinating subject building is emblazoned with the names of being Relevance Deprivation Syndrome. – so I might take a little longer. the world’s great classical artists. However, You have no idea how depressing it is First, however, I am supposed to re- the skilled artisans responsible for this for we retired judicial pensioners to take spond on behalf of the Honoured Guests. have produced something really special. If the piles of unused stationery, and alter Whilst I have not consulted with any of you ever go to look at it you will see that them for future use. I can tell you that the them, I am sure that they would be grateful they have created the name Michel Angelo
VICTORIAN BAR NEWS Winter 2008 33 in two parts. Mr Angelo, or Mick, as we I just ignore those wine experts who think was wandering down Collins Street at might call him in the spirit of mateship, You should lay down red wines before you 2.00am, only to pause outside a resident might even have been chuffed at this drink; chemist whose proprietor was a Mr Paul. approach. No more for me the cellar, rack, or shelf, Responding to the staccato rattle of gravel I must confess that had I the talent I I drink the stuff and then lay down myself! flung against an upstairs window, a head would have loved to have been an artist. appeared and growled, ‘What the hell do Nevertheless, some of my colleagues at the You can see why it was a small prize! you want?’ Bar were kind enough to say I partially While on the topic of poetry, Peter ‘Are you Paul?’ inquired Villeneuve- succeeded in my artistic aspirations. To be Cook and Dudley Moore had a wonderful Smith sweetly. quite frank with you, their actual comment sketch where Dud suggested a game called ‘Yes’, was the grunted reply. was. ‘You really have become a bullshit Sausage and Mash. You read a book or Tell me, did you ever get a response artist.’ poem out loud, substituting the word to your charming little letter to the Despite this assessment, I have ‘sausage’ for every word beginning with ‘S’ Ephesians?’ persevered, and I can reveal that I have and ‘mash’ for every word beginning with In his army days Cairns was confronted produced several paintings in my spare ‘M’. He gave this example: by a rather officious senior officer who time. I have brought a photocopy of one tapped him on the chest with his baton, of them here tonight in the hope of getting ‘I mash go down to the sausage again remarking at the same time, ‘There’s shit it assessed by Allan Myers as President of To the lonely sausage and the sausage on the end of this stick, soldier’, only to be the National Gallery Trustees as a possible And all I ask is a tall sausage and a sausage met with a smart salute and the response, acquisition. I have entitled the work ‘Head to sausage her by…’ ‘Not on this end, sir.’ of a Man Number 11 – in the style of Van He was subsequently charged with Gogh.’ Of course, the cultured amongst you insubordination. Art has not escaped the attention of will have picked that as Sausage Fever by During the course of the Beach Inquiry, limerick writers. Their efforts cover a vast John Mash. Villeneuve-Smith cross-examined many spectrum of artistic endeavour. To give a Do you want to try another? ‘Sausage / a hapless police officer. Some, who had few examples: sausage / sausage/ sausage by the sausage / difficulties with their memory, were met sausage.’ She sells sea shells. with the solicitous inquiry, ‘Is there no Said the Duchess of Alba to Goya Of course any application of this tech- small oasis of recollection in the vast desert ‘Paint some pictures to hang in my foya!’ nique to the criminal law would be quite of your mind?’ It was bad enough to be So he painted her twice; inappropriate. I refer particularly to the burdened with an arid intellect, but even In the nude, to look nice, heinous crime of mash and the various worse was to be a witness who, having And then in her clothes, to annoya. sausage offences. ventured a particularly unfortunate answer, That’s enough ‘arty’ material. was psychologically shirt-fronted with the Van Gogh feeling devil-may-care, Words are the currency of the law. courteous query, ‘May the Chairman use Labelled one of his efforts ‘The Chair.’ Whilst the words of Judges have a degree your last answer as a yardstick by which to No-one knows if the bloke of permanence, it is a sobering thought, measure your truthfulness as a witness?’ Of Perpetrated a joke, (and I apologize for that), to realize that the course the poor bastard had to answer yes. Or the furniture needed repair. forensic exploits of the heroes of this Bar Villeneuve-Smith was more subtle in his are soon forgotten; their quotable quotes, treatment of instructing solicitors. On one That’s a bit contentious, but at least it’s or cross-examination, buried forever in occasion, one of that necessary breed failed not about a head. reams of discarded transcript. to pick him up from the steps of Owen And finally, my favourite of this artistic One of my own heroes was Judge Cairns Dixon Chambers to transport him to the genre: Villeneuve-Smith, who was a fearlessly in- Supreme Court at Geelong for a running dependent advocate. I had the privilege of down case and he was forced to take a Whilst Titian was mixing rose madder, working with him in the Beach Inquiry. As taxi. At the Court, an offer of settlement His model posed nude on a ladder; most of you will know, this was an inquiry was soon forthcoming. Villeneuve-Smith Her position to Titian suggested coition, into police misconduct chaired by our reported that, whilst it was acceptable, So he climbed up the ladder and had her. honoured guest Barry Beach. His coura- before any settlement was announced geous findings so outraged the Victoria to the Court, he would be seeking leave As for my own attempts at verse, some Police Force that its members embarked to amend the statement of claim. His sensitive person remarked that my poems upon a work-to-rule campaign. This was bemused opponent agreed. Particular (e) would be remembered long after those somewhat ironical, because if they had ‘Failing to sound a warning device’ was of Shakespeare, Yeats, and T.S. Eliot were worked to rules in the first place, the in- duly added. Subsequently, the instructing forgotten – but not until then. quiry would never have been necessary. solicitor received the back sheet which However, I did win a small prize in The Villeneuve-Smith was renowned for included the annotation: ‘Amendment of Age newspaper Wine Rhyme Contest. his mischievous wit. It is alleged that statement of claim’, followed by a dollar Since it has some connection with tonight’s on one occasion, probably after a Bar figure commensurate with the taxi fare to activities, I’d like to share it with you: Dinner, he, together with some colleagues, Geelong, together with a very generous tip.
34 VICTORIAN BAR NEWS Winter 2008 Ross Gillies QC, Michelle Britbart, Paul Halley, Nikki Wolski and Ross Middleton
Judge Phillip Misso, Tim Ryan and Judge Iain Ross Jeremy Twigg, Ailleen Ryan and Andrew Kincaid
Sometimes, it is the words used by the gious fanaticism. This assertion was vehe- I was appearing before a Magistrate named client that cause the problem. mently denied. Ultimately, I called my Stott, who regarded himself as operating One example I remember vividly was in client to give evidence. The Clerk of Courts the Supreme Court at Oakleigh, or Moonee a maintenance case. It was heard on the requested him to take the Bible in his right Ponds, or Fitzroy. My client had been day that man first walked on the moon, al- hand and repeat ‘I swear by Almighty God’. charged with running a brothel. The pros- though this event did not make any dis- At this point, my client turned to the Mag- ecuting sergeant rose to his feet to be met cernible impression on the Ferntree Gully istrate, and in a loud voice, declaimed: immediately with the comment, ‘How do Magistrates’ Court. I was opposed to Jus- ‘Make ye not an oath! Matthew 5 verse 34’. you say this information sheet discloses an tice Gillard, (as his Honour then obviously We never quite recovered from this unfor- offence, sergeant?’ had the potential to be). My client, the de- tunate forensic setback. The information was imperiously hand- fendant husband, had been left by his wife, There are times when silence, or quasi ed down from the bench. The sergeant whose major complaint related to his reli- silence, is the best course for the advocate. studied the original, and I studied my
VICTORIAN BAR NEWS Winter 2008 35 Jane Dixon SC
copy. I could see absolutely nothing wrong ceased partner. The only problem was that sanity/murder in which I was junior to with it. she had shot him. He was, however, a per- Charles Francis QC – another icon of the ‘Is there anything you want to submit, son who, as the Criminal Bar would say, Bar. It’s one of my favourite anecdotes. I sergeant?’ ‘needed killing.’ The applicant had pleaded know a number of you have heard it be- ‘No, Your Worship,’ responded the be- guilty to manslaughter and had been given fore, but not in the Great Hall NGV Inter- wildered sergeant. a bond. Because of her low level of moral national. Our client, who I will call Harry, ‘Is there anything you want to say, Mr culpability, I decided that the forfeiture (since that was indeed his name), suffered Coldrey?’ rule should not apply, and upheld her from alcoholic dementia. When, in the A nasty moment! This is a situation re- claim. middle of a drinking bout, he and his quiring all of an advocate’s forensic skills. I Some time later I received, from Justice friends were faced with a liquidity prob- rose to my feet and, one third sycophant, Kirby, a copy of a judgment of the New lem, Harry, who exhibited leadership one third hypocrite, and one third oppor- South Wales Court of Appeal on the same qualities, fatally despatched a rooming tunist, I replied, ‘There is nothing I could topic. He was then the President. Justice house colleague called Bert, with an axe. usefully add to what Your Worship has al- Kirby described my judgment as ‘princi- He and his friends were drinking the flag- ready said.’ pled yet flexible,’ (or vice versa), and gave it ons purchased with Bert’s money, when ‘Very well’, said His Worship, ‘the infor- his judicial approval. I was delighted until police broke up the party. mation will be dismissed.’ I read on and discovered that he was in the At my first meeting with Harry he In the foyer of the courthouse the pros- minority. His colleague, Justice Roddy announced, ‘What I desire is oblivion.’ I ecuting sergeant grabbed my arm and, Meagher, had written, ‘There is something had to inform him that this was beyond with the look of desperation of a man who faintly comical about the spectacle of the capacity of Legal Aid Victoria. would be required to write a report for his Equity Court Judges attempting to sort On reflection, I am not certain all their superiors, inquired, ‘What the hell was homicides into piles of conscionable and clients would agree with that assessment. wrong with the information?’ unconscionable ones.’ He found my deci- Harry went on to explain his actions: In retrospect, I admit to a certain level sion to be heresy. Well, at least I was ‘There was a full moon on that night, Mr of guilt that I derived some pleasure in described as ‘an Equity Court Judge.’ But, Coldrey, and a full moon does strange responding, ‘Wouldn’t have a clue!’ as history records, shortly after this judg- things to men’s minds.’ The trial in Mel- Meeting Justice Kirby here tonight re- ment Justice Kirby was elevated to the bourne before Mr Justice Anderson went minded me of the time I was forced to sit High Court, whilst Justice Meagher so well that, at the end of the psychiatric in the probate jurisdiction. I was faced remained stationary in New South Wales. evidence, and before any final jury ad- with a woman seeking benefits for herself So, your Honour, I think we got it right! dresses, Charlie Francis persuaded the and young child under the will of her de- I’d like to finish with the story of the in- Judge to charge the jury briefly, and send
36 VICTORIAN BAR NEWS Winter 2008 them out to determine whether they need- ed to hear any more, or whether they were prepared, at that stage, to find Harry not guilty on the grounds of insanity. At 12.55pm after Mr Justice Anderson had completed a mini-charge which force- fully emphasized Harry’s mental short- comings and, as the jury were about to retire, Harry stood up in the dock and called out, ‘Your Honour, I would like to make a statement.’ (This was the era of the unsworn statement.) Not to be outdone, Charlie Francis leapt to his feet and announced that, since we had closed our case no statement was pos- Gabi Crafti and Josh Wilson Michelle Florenini and Matthew Stirling sible. The Judge was not so sure that Harry could be shut out that easily. Fortunately, at that point, he adjourned for lunch. We met Harry in the cells and explained that the case was going well and there was absolutely no need for him to make any statement. ‘It’s my case, isn’t it?’ ‘Yes.’ ‘Well, I want to make a statement. I’m not as silly as they say. I’ve had a lot to do with psychiatrists, and I can fool them.’ ‘Listen, Harry,’ said Charlie, ‘Nobody’s saying you’re insane at the moment. If you needed money for grog now, you wouldn’t go killing someone with an axe to get it.’ ‘Bloody oath, I would!’ Somewhat depressed we left Harry to his lunch. Before Court resumed I encoun- tered Harry in the anteroom. ‘I’m sorry for my outburst before lunch, Mr Coldrey,’ he said, the screws hadn’t Michael Gronow, Paul Connor and Fiona Connor given me my Valium, and I was a bit up- set.’ ‘That’s OK, Harry, I understand.’ ‘It’s still my case isn’t it?’ Honour duly did. Once again the jury rose By that stage Harry’s desire for oblivion ‘Yes.’ to retire, at which point Harry interjected, was being shared by his counsel. ‘Then I still want to make a statement.’ ‘Your Honour, I would like to give evi- The jury finally retired and Harry sat What followed was one of the few dence on oath.’ Not to be outdone, Charlie relaxed in the dock. ‘Well, you’ve had your genuinely unscripted, unsworn statements leapt to his feet. ‘He can’t do both,’ said say, Harry, what do you think will happen?’ of the decade. Charlie, ‘he’s already had his go.’ ‘Ah, Mr Coldrey, they’ll find me not guilty Harry told the jury: ‘I killed Bert. I done But his Honour was not so sure Harry on the grounds of insanity.’ it with the axe. He was a mongrel and a dog. could be shut out that easily. And 15 minutes later they did. I knew what I was doing. There’s nothing Harry took the oath with all the aplomb One week after the trial I ran into the wrong with me. I have had a lot to do with of a senior sergeant: ‘Ladies and gentle- Judge’s Associate who was one of those psychiatrists and I can fool them. Thank men, I killed Bert, I done it with the retired naval types. you.’ axe. He was a mongrel and a dog and he ‘I was very interested about that busi- Mr Justice Anderson then enquired deserved to die. I knew what I was doing. ness of the full moon,’ he said. ‘So I looked what should next occur. Charlie Francis There’s nothing wrong with me. I’ve had a it up in Moore’s Almanac. You might be urged him to add to his mini-charge by lot to do with psychiatrists and I can fool interested to know that it was a new moon informing the jury of the weight to be them.’ For good measure Harry added, that night.’ attached to an unsworn statement, com- ‘I’m a Roman Catholic and I knew what I My time is up! Good night and good pared with evidence on oath. This his was doing was wrong.’ luck!
VICTORIAN BAR NEWS Winter 2008 37 Improving the dialogue between courts and the media A speech given by Justice Michael Kirby at the Law Foundation’s Legal Reporting Awards, Melbourne, 8 May 2008
here is a problem between the disillusioned with the media: their bold- a natural development, adapting to the media and the courts. It is a source as-brass assertions of high motives and alterations in modern communication. But of frustration in both camps. Many their supposed dedication to truth, justice for many judges, they are afraid that over- Tin the media think that judges are pomp- and the Australian way. For judges, seeing close proximity will lead to manipulation. ous out-of-touch gits who have insufficient media coverage of cases in which they Tiny grabs from complex trials will be love for free speech and inadequate respect participate, they know that there is often a extracted to maximise shock, horror and for the free press. Things are not helped by big gap between what the public gets told outrage. Distortion of news about the the strange dress that judges sometimes and the actuality at the workface. courts will be increased. Some judges have to wear, the elevated platform on Judges lament the disappearance of might be tempted to play to the gallery which they are seen doing their job, the most dedicated legal correspondents. They and forget the most important people in obtuse language they often use and the realise the power that the print media the courtroom – the parties to the case. power they wield – including over the me- still has (despite the falling sales) over the The Australian judiciary has recently dia. Although increasingly relics of the daily agenda of talk-back radio, and hence become aware of the research findings of past, wigs are a special target of media political discourse. Yet secretly, judges are a legal researcher, Dr Pamela Schulz. comments. Even the High Court judges rather proud that they are the one branch She has studied newspaper headlines and are usually portrayed in cartoons wearing of government, and one of the few places stories in her home State, South Australia, wigs, although we have not done so since in society, that cannot be overborne by from 2002 to 2006. Her study produced a 1986. media power. consistent pattern of reporting which, she When media comes into direct contact There is some merit in the perspectives believes, amounts to an attempt by head- with the judiciary, it tends to dislike the on both sides of this divide. It is the nature lines to establish what she calls ‘discourses fact that judges are less susceptible than of the judicial role that judges must be cut of disapproval and disrespect’. She thinks other branches of government to media off from daily contact with the media and that this is designed to intensify criticism pressure and seduction. In defamation similar sources of influence. Too close an of the courts, to enlarge disapproval and cases, contempt proceedings, decisions association might lead to the same degree disrespect for their work and to promote a on FOI disputes and cases affecting the of contamination that can be seen with the damaging public attitude of fear and mis- big commercial investments of the media, political branches of government, occa- trust. Piled on top of distrust of politicians, the judiciary of Australia comprise the sionally the bureaucracy and sometimes churches, the monarch and officials, who untouchables. If you have as much power with other formerly respected institutions, will be left to protect the public in the dire in society as the Australian media have, such as the universities and the churches. predicament described in the headlines? and you meet an immovable object like the The lesson of life seems to be that getting You guessed it: only the media and their judiciary, the shock to the system can cause too close to the media exposes those who editorialists – supported perhaps by one frustration and anger. This sometimes do so to the peril of dancing to the media’s or two politicians who dance to the dismal spills over into the unworthy thought that tune. That is why most judges realise that tune. this is a group of over-mighty officials who it is best to keep a distance. Dr Schulz collects the many screaming need to be cut down to size. It is a very I suspect that this is the reason that headlines that give rise to this reaction. A Australian reaction. most judges are not in favour of television lot of these concern the tried and trusted For their part, the judges are often cameras in courtrooms. For me, this is just field of sentencing of offenders. Everyone
38 VICTORIAN BAR NEWS Winter 2008 can have an opinion on this subject. Although Australia’s imprisonment rate is now edging to be one of the higher rates in the world – much higher than most European countries – few sentences are sufficient for certain commentators. ‘An outrage’, the banner screams. ‘Call for inquiry grows’. ‘Premier orders DPP to appeal’. This is the ‘fear discourse’. But it is backed up by an attack discourse with descriptions of judges as ‘Holidaying at taxpayer’s expense’ or ‘Summer nick-off’. More ‘Outrage’. ‘This is not justice’. And so forth. In interviews recorded by Dr Schulz, Australian judges reacted to these attacks in an generally restrained way. They sup- ported the principles of a liberal democ- racy. They expressed acceptance of the media’s right to report and also to criticise. But they regretted the lack of real under- standing about the courts. They cared about criticism and puzzled about how to counter ignorant and inaccurate report- Justice Michael Kirby ing. They admitted that being a judge in Australia is not being in ‘a popularity contest’. Judges know that they generally have to ‘cop it sweet’. After all, their oath is to get into the electronic age and to with justifiable criticism where that is to administer justice ‘without fear and speak directly about the dedication, warranted, as it sometimes is. I honour favour’. wisdom and devotion that judges usu- notable journalists in this class who have Still, there are things that we can do to ally display in their often tedious and died in the last year – including the out- improve the relationship between courts stressful daily work. standing Roderick Campbell of the Can- and the media, without getting so close One of the interesting reports in Dr berra Times. I acknowledge a few fine that judicial, or for that matter media, Schulz’s study describes how courts in exemplars who have left the media for independence would be endangered. the Netherlands have been prepared to greener pastures, like Marcus Priest of the • Judges need to understand media pres- redirect justice reporting by appointing Australian Financial Review. I congratu- sures – especially deadlines and brevity. Persrechters or ‘press judges’. These are late the winners of this year’s Legal Report- • Judicial reasons need to include pithy serving members of the judiciary who ing Awards. Awarding prizes for good summaries that can be picked up to give will go on television and radio to explain journalism on legal matters is admirable an accurate idea to the public of what justice messages accurately. According and a step in the right direction. But more the courts are on about. to Dr Schulz, these commentators have is needed. For the good of our society and • Media liaison officers in the courts need helped develop a keener sense of the actual its institutions of justice, it is time to think to be more proactive. work that judges do, of its difficulty, of its of radical solutions. We all have a stake in • Maybe judges need to reconsider cam- importance and of why superficial reports raising the standards. eras in the courts under strict condi- and alarmist headlines are often false and tions. Indeed, this is already happening misleading. at all levels. Maybe it is time for us in Australia to REFERENCES • The appointment of specialist court re- work towards something similar. Sadly, if porters is an urgent requirement. Spe- we wait for most media outlets to provide Pamela Schulz, Courts on Trial: Who Ap- cialist court reporting has actually fallen quality reports of what really goes on in pears for the Defence? Courts, Communica- off during my thirty years’ service in the our courts, we may wait a very long time. tion and Confidence: A Critical Discourse judiciary. Media want it short, sweet and interesting. Analysis of Politics, the Judiciary and • The media need to understand better Judges know, it is often not like that. Media Reporting Justice, University of the judicial role, and maybe judges need The age of infotainment is upon us. But South Australia, Doctoral Thesis (2007). to take more time to explain it. the judiciary itself needs to help find a Pamela D Schulz, ‘Rougher than usual • In the age of electronic media, sticking workable antidote. I respect the small media treatment: A discourse analysis of to printed handouts is no longer good group of legal journalists who try hard media reporting and justice on trial’ (2008) enough. The judiciary somehow needs to report the law as it really is, including 17 Journal of Judicial Administration 223.
VICTORIAN BAR NEWS Winter 2008 39 Ending the Ten O’Clock Rush
he Magistrates’ Court has been greatest cause of diminished confidence in waiting demanded of parties to court working on modernising its listing the Court is delay. Waiting to get heard is proceedings. practices. The purpose has been to only one facet of delay, but it is a recurring The inclusion of these initiatives in the Tdevelop greater listing flexibility to manage source of criticism of the Court. new listing protocols has been based on the high volume case-load and achieve de- The question posed by the research was the positive results of their piloted intro- lay reduction. The traditional ten ‘ o’clock should this matter be addressed by this duction at several venues of the Court. The rush’ has intensified many pressures at the Court and if so, in what way. In my view, Geelong Court piloted a 9.30am mention Court. It is obvious that bulk listing affects a it has to be, and measures are needed to list list and a listing of all driving applications number of factors: in ways that reduce the time people are at either 9.30am or 2pm. Prosecutors and • waiting times waiting at Court for cases to be reached and legal practitioners have embraced these • separation of parties heard. It has become apparent from work staggered listing arrangements. There has • case scheduling done by the Court on safety and security also been very positive feedback from the • making the best use of magistrates time, that reducing the numbers of people wait- court user groups at Geelong because of and ing around for their cases also reduces the the introduction of a 2pm listing time for • managing the expectations of court likelihood and risk of incidents occurring single and consolidated guilty pleas, and users. at courts, which benefits everyone. some family violence matters. If the Court is to meet its obligations to It is simply no longer acceptable for The positive effect of staggered listing the public, it has a responsibility to utilize Courts to bulk list virtually all matters times in improving time certainty and the its resources efficiently and to provide the at ten o’clock. The new listing protocols experience of the court user community best service for the community. To this end, introduce a more sophisticated, more cali- has been evident at the Sunshine, Frank- we have been consulting widely with all brated and better way to handle this ston, Heidelberg and Broadmeadows court users to identify areas of concern and important procedure of the Court. Courts. There has been encouraging feed- potential improvements. back at court user group meetings held by The significant role that professional these courts. WHAT WILL THE NEW LISTING users will play in assisting the Court to Following on from these early successes PROTOCOLS DO? make the most of the potential gains the Melbourne Court introduced a program offered by greater listing flexibility in The two main aspects of the initiatives of staggered listing on 28 April 2008. This managing a high volume caseload cannot introduced by the new listing protocols program includes the listing of all first be underestimated. are: mention hearings at 9.30am, and subsequent 1. A Wider Listing Timeframe: A wider mention hearings and guilty pleas at overall timeframe has been implement- 11am. Specific listing times now apply to WHY ARE THESE CHANGES ed, within which cases are listed day by individual courts following observation NECESSARY? day for the purposes of accommodating of where the main delays were occurring For many years, the Court has published certain sorts of cases earlier in the day at the Melbourne Court. For instance its listing protocols for the general or at other specified time periods. in Court 1 all summary contest callover information of the public and professional 2. Time Certainty: Measures have been matters are listed at 9.30am. Parties are now users of the Court. It has also been the included to introduce as much time offered time certainty that their matter will operational principle guiding registrars in certainty as is reasonable and practic- be heard within 30 minutes of a specified listing the Court’s high volume caseload. able in a volume court environment. time in Court 7 and Court 8 where parties The need to move beyond the crude The new listing protocols will consolidate make a request for this no later than the day ten o’clock rush has been supported by the early gains already made in reduction before their hearing. Similarly, Court 12 comments made within the court user of delays, standardize case listing through- offers staggered listing and time certainty community. Recent research conducted out the State while maintaining some for committal summary pleas of guilty. for the Magistrates’ Court 2015 Court flexibility for smaller and country courts, Many of the Court registry staff have User Consultation Project showed that the and ensure greater time certainty with less reported that the success of these piloted
40 VICTORIAN BAR NEWS Winter 2008 initiatives has only been possible due to the support of legal practitioners and bar- risters. These professional groups have assisted the Court by informing and ex- New barristers’ clerk appointed plaining the new listing timeframes to their clients. I am very encouraged by the support and engagement of legal practi- The Victorian Bar has appointed and granted a licence to a new approved clerk, tioners and barristers in making a success Mark Laurence, who commences 1 July 2008. Mark follows in the footsteps of of the piloted listing initiatives and look Peter Roberts who retired on 30 June 2008. forward to continuing to work with them. Mark is well known around legal circles to many barristers, solicitors and legal personnel after almost 31 years in the legal arena. He started as a Clerk WORKING WITH THE of Courts working at numerous magistrates’ courts then was seconded in PROFESSIONAL USERS OF 1981 to help set up the Criminal Trial Listing Directorate as an independent THE COURT body responsible for the listing of criminal trials in the Supreme and County Courts. Readiness for hearing is an issue that He commenced working as assistant clerk to Peter Roberts in November continues to be of concern for both the 1987 and has continued in that position until his appointment. He also worked Court and professional user groups in in the financial services industry from 2001 to 2003 as a risk planner, provid- terms of managing time effectively and ing advice to lawyers. Mark has a thorough knowledge of the courts, barristers efficiently. The Court is always interested and solicitors’ practices as well as a comprehensive knowledge of the law and in consulting legal practitioners and its operations and disposition. Also he knows the legal structures in place to barristers to discuss and consider ways give informed communication to help the courts in case flow management. of addressing issues that affect the timely Mark states that he is well aware of the need for change to bring clerking readiness for hearing. services into the 21st century, for example, the use of electronic payment Recently the Court has been in the systems and fee collection systems to facilitate multiple payment options process of developing an electronic filing including eftpos and credit card collection. appearance system (EFAS) to work with His list is open to applications from barristers and solicitors and adopts an professional users to achieve time efficien- equal opportunity policy. cies for the Court and greater convenience The List will be known as Laurence’s List, Clerk P, Lower Ground Floor, for parties to proceedings. The Court Owen Dixon Chambers West. appreciates the very productive consulta- tion forums held with the profession about the EFAS application. EFAS will be a web- based application that allows professional users of the Court to access the Court list to add representation to a case, enter an appearance and request an adjournment, or enter an appearance and update hearing details. Court registry staff will be able to � ������������ better coordinate the list at each venue of the Court by using the online entered � � � ���������� information. I invite your comments and suggestions as we move forward with the introduction ��������������������� of the new listing protocols and encourage you to discuss these changes with your ����������������������������������� clients and colleagues. The success of the ������������������������ protocols is dependent on the continuing productive and collaborative relationship ����������������������������������������� between the Court, prosecuting agencies �������������������������������� and the legal profession. IAN L GRAY Chief Magistrate ��������� ����������������� ������������������ �������������������� �����������������������������
VICTORIAN BAR NEWS Winter 2008 41 Law Week 2008 more popular than ever
Each year Law Week finds new ways to year’s Law Week proved to be the biggest and a lively and highly entertaining promote greater understanding of the law ever, with more events and more organiza- Monash Great Law Week Debate, which within the community. We aim to reach tions coming on board to host events. This once again was extremely well attended. new audiences, raising understanding and year 150 organizations including law firms, All of these events contribute to a message access to the law and legal services. This courts, government departments and a of invitation, for people to discover the year our theme of ‘Reaching Out’ had us range of public benefit organizations pro- rich culture of our law and justice system focusing on reaching people with special vided over 200 events across the State. At- and celebrate the vital role it plays in our needs, and others who may not otherwise tendance numbers were also up with many society. find easy access to legal information and events boasting a packed house. The Arts Law Centre of Australia, Multi- services such as rural Victorians, seniors, The range of events on offer was broad cultural Arts Victoria and the Victorian youth, Indigenous Australians and multi- as ever, including a fully subscribed Arts Law Consortium brought us Arts Law cultural communities. session held by Deborah Randa from Week in the week following Law Week. Law Week is coordinated by Victoria Disability Discrimination Legal Service They provided a range of free legal infor- Law Foundation and the Law Institute of on ‘Disclosing Disability in Employment’; mation seminars for artists, arts organisa- Victoria and is supported by the City of a one-day seminar by the Law Institute of tions and the creative community. This Melbourne. Held from 12–18 May, this Victoria on ‘Legal Essentials for Seniors’; year a joint launch was held for Law Week and Arts Law Week at the Supreme Court of Victoria, with the ‘Passion exhibition’ as inspiration. ‘Passion’ is a unique Arts Law Week initiative combining the forces of law professionals and visual artists to create visual art work. By uniting the legal profession and artists, two seemingly disparate communities, ‘Passion’ stimu- lated new ways of raising awareness and understanding of cultural identity and human rights. On the Education front, the focus on ‘Reaching Out’ was also reflected in the thoughtful entries received in the annual Law Week school poster competition. Deakin University, Victoria University and the Commonwealth Bank provided spon- sorship, and 250 students entered from 50 schools across the State. Prizes were awarded by Chief Magistrate Ian Gray to a crowd of students, their proud families and visitors at the Courts Open Day. The Honourable Chief Justice Marilyn Warren AC addresses the launch audience in the Supreme VCAT’s Mediation Moot provided a Court Library. humourous exploration of the processes
42 VICTORIAN BAR NEWS Winter 2008 Judge Felicity Hampel, Professor The Honourable George Hampel AM QC and Passion Artist, Suteaul Althe involved in hearing a building dispute at There was a mock trial at the Supreme VCAT, and many questions were received Court that was presided over by Justice from a clearly engaged audience after- Harper, and at the County Court tours wards. were offered of the high-security, high-tech The Victoria Law Foundation Legal ‘smart-courts’ and an explanation of the Reporting Awards proved a very special jury process by Rudy Monteleone, the Juries occasion this year. The Honourable Justice Commissioner. Whilst at the Magistrates’ Kirby AC CMG presented a stimulating Court a Mock Court Hearing of an historic address in which he quoted research by early case was held to celebrate the Court’s Dr Pamela Schulz that shows much media 170th Anniversary and Chief Magistrate coverage amounts to ‘discourses of disap- Ian Gray awarded prizes to the winners proval and disrespect’. In holding journal- of the School Poster competition. At the ists accountable the judge asked journalists Children’s Court a tour was offered of the to reflect on how this affects the work of court complex and a presentation made by the courts in implementing and promot- the President, Judge Paul Grant. In regional ing justice. The Honourable Chief Justice Victoria, tours were offered of local courts Chief Magistrate Ian Gray with Nimue Shirvington, Marilyn Warren AC joined Justice Kirby throughout the week. winner of the regional prize in the Law Week in recognizing the recipients of the various Thank you to all who participated in or School Poster Competition, and Johann Kirby, awards. contributed to the best Law Week ever. We Executive Director, Victoria Law Foundation For the first time ever, all courts were look forward to seeing and working with open with tours on Courts Open Day held you again in Law Week 11–17 May 2009. on Saturday 17 May. The Supreme Court JOADY DONOVAN alone recorded 450 entries through security.
VICTORIAN BAR NEWS Winter 2008 43 The Honourable Chief Justice Marilyn Warren AC, Katy Alexander, Law Institute The Honourable Chief Justice Marilyn Warren AC was the Legal Professional of Victoria (accepting Best Illustration award won by Nigel Buchanan of the who teamed up with Georgia Metaxas, the Passion Artist, pictured here with Law Institute Journal for ‘The tort of deceit and misrepresentations of her artwork paternity’), and The Honourable Justice Michael Kirby
Hugh de Kretser, Executive Officer, Federation of Community Legal Centres (Vic) Inc, and Alexandra Richards QC, Board Member of Victoria Law Foundation, with portrait of Legal Professional Judge Felicity Hampel by Passion Artist, Suteaul Althe
The County Court provided guided tours of the high-security, high-tech ‘smart- courts as well as an explanation of the jury process by Rudy Monteleone, the Juries Commissioner
44 VICTORIAN BAR NEWS Winter 2008 Litigation and ADR Construction Law Conference 22 May 2008
‘…not to praise him’1 G.T. Pagone*
have a sense that we are all saturated may still be much we can do to make it provement does not bring new inefficien- with hearing about the problems of work better. cies, costs and delay. It is important to look litigation and ADR in construction at what makes the system inefficient, costly Idisputes and in commercial disputes gen- and slow to see whether those causes can INEFFICIENT, COSTLY AND SLOW erally. In the short time that I have been be removed with improved outcomes. One the Judge in Charge of the Building Cases Dissatisfaction with the current process of the disappointing discoveries is that List, I have been struck by the level of dis- of dispute resolution is, in short, that it is some of the problems may be caused by satisfaction frequently expressed about the inefficient, costly and slow. Some measure past attempts to make things better. I will way in which construction disputes are re- of inefficiency, expense and delay is inevi- give you some random, and idiosyncratic, solved. The dissatisfaction appears to be table and (although it may be seen as inap- examples. deep, widespread and found throughout propriate to say so) may even be desirable the world.2 Various and varying solutions as a matter of public policy. Inefficiency, Witness statements have been put forward over time,3 with expense and delay deter litigation to some It is now common in much litigation, new or different acronyms giving enticing extent and in part encourage individuals especially in commercial and construction glimpses into some new hope.4 Earlier this to absorb loss or to put up with some level cases, for the parties to file and serve month the Victorian Attorney-General of damage without compensation, and, witness statements or affidavits before the announced a $198.3 million justice pack- in part, encourage other non-litigious res- trial. This practice comes with much hope age as part of the State budget to secure olution or accommodation. There is a of efficiency: it should avoid ambush, it ‘faster access to justice services and new body of learning about the social utility permits (where possible) the judge to read ways to resolve disputes’.5 On 23 April of some bar to discourage litigation and the material in advance of the hearing former Federal Court Justice Madgwick prevent the redress of wrongs. However, without the need to occupy court time was reported as calling for the adversarial every system of dispute resolution should to learn about the material for the first system to be bypassed in favour of a more aim to be efficient, cost effective and quick. time, it potentially limits areas of dispute European-style investigatory system for It must also ensure fairness between the and could save hearing time in court smaller disputes because litigation costs parties and should not permit its ineffi- and, therefore, in theory should make the in such matters are ‘out of control’.6 The ciency, cost and slowness to be used as a system work more smoothly. Sometimes Victorian Law Reform Commission Civil tool to advantage some of the disputants this hope may be realized, but too often Justice review currently underway can be to the disadvantage of others; nor, of there is disappointment. expected to bring some fresh ideas about course, should its apparent efficiency, The reasons for disappointment are not our system in Victoria as a whole and how cheapness and speed give unfair advan- hard to find and lie in the dynamics of it might be improved. tages the other way. It is, unsurprisingly, a the task which comes with the design fix. I can add little to the debate and am question of balance and neutrality. The de- Witness statements tend never to be the conscious that I should refrain from doing tails of any system may favour one party words of the witnesses themselves. They so. I will, of course, say something about over another and the hard task for anyone are frequently the words of a lawyer put in my own Court’s recent practice direction,7 designing a system is to strike the right the witness statement or affidavit with an but I want mainly to express some purely balance between all of the different inter- eye to the client’s ultimate objective. One personal, and perhaps idiosyncratic, views ests so that the system itself is neutral and consequence of this is that the content of about some of the current problems with does not favour one set of interests over a witness statement or affidavit may not litigation and dispute resolution (whether another. reliably convey the evidence of the witness. alternative or otherwise). I do not come Attempts to improve the system should In one case I had there were two witness to praise the adversarial system but there also take special care to ensure that the im- statements by two different witnesses (one
VICTORIAN BAR NEWS Winter 2008 45 an expert and the other a lay witness) of helping becomes the cause of new dis- feature of litigation and provide an oppor- which contained several sentences that putes, cost and delay. tunity to resolve disputes before trial. were identical to the point of including The caution of advisers in preparing for Where successful in resolving disputes, the same grammatical errors. The words litigation is, in my view, a major cause of they have achieved an important objective. were not the kind of words which the lay inefficiency, cost and delay. In saying that I Where, however, disputes have not been witness would use and the expert witness intend no rebuke but, rather, sympathise solved by mediation, the enforced step of agreed that there were errors. A judge with the practitioners. They are frequently mediation or of other ADR will necessarily reading witness statements which are faced with having to make difficult judg- have added to the total cost and delay obviously not written by the witness may ments in circumstances where caution of the ultimate resolution of the dispute. hesitate in accepting the written word as will often (if not more often than not) tend Indeed, in some cases, the additional cost equivalent to hearing testimony from the to result in decisions which make things added by the step may, ironically, have witness directly. longer, slower and more complex. A deci- added to the difficulty of settling at ‘the The very process of production of wit- sion, for example, about what facts to doors of the court’ immediately before a ness statements has elements which may include in a witness statement is often dif- hearing. Many cases that go to trial have undermine the integrity of the trial proc- ficult. A fact need only be established once by that time become disputes about costs. ess. That is because the production by law- by only one witness, but there may be more Each party may have ‘invested’ so much yers of witness statements, often junior than one person capable of doing so. A time and money into the preparation of lawyers, unconsciously substitutes the lawyer preparing witness statements may the trial that the chance of winning a costs lawyer’s evidence for that of the witness. be reluctant to have some fact included order becomes the important ‘possibility’ The language, expression and syntax of the only in one witness statement; or, to put sustaining a litigator’s apparent ‘addiction’ witness statement or affidavit is often that the matter differently, the natural caution to the dispute. of the lawyer, rather than that of the of lawyers will be to have each witness give witness; as is (more worryingly) the ‘spin’ evidence of all facts which each is capable Discovery given by selection and expression of facts. of deposing to (if only to protect the wit- The discovery process is another, if not the In short, all too frequently what happens is ness from criticism of having deliberately major, cause of inefficiency, cost and delay. the very thing which is not supposed to failed to deal with some factual matter). The purpose of discovery is fundamental happen: the evidence given to the judge, Allied to this is the tendency of including to a common law system designed to and to the other parties, is that of the law- at least as much as may arguably be admis- achieve a just and fair result. Ironic as it yer rather than of the witness. In my view sible. In other words, that the lawyer’s cau- may seem, the many explanations of the the role of the lawyer, and especially that tion will tend to put in more rather than function of discovery include many good of the barristers, should be focussed and less material and in doing so may be rely- reasons which suggest that discovery will confined to conveying the actual words of ing, perhaps, on the safeguard that any- make litigation efficient. Simpson SB the witness and ensuring that they are thing which turns out to be inadmissible Bailey DL and Evans EW8 say that ‘[t]he strictly relevant, admissible in evidence may be ruled out (albeit after objection, main function of discovery is to provide and probative. argument, consideration, delay and cost). the parties to civil litigation with relevant To this problem can be added that of One can see by this brief overview how documents before trial to assist them in the length and content of witness state- the production of an aid to efficient litiga- preparing their case for trial or in deter- ments. In many cases there is a tendency tion may readily be the cause of new and mining whether or not to settle before for witness statements to be overly long, lengthy disputes. It is not uncommon for trial’.9 The learned authors reason that repetitive and to contain much that is in- trials to have large blocks of time devoted amongst the benefits provided by dis- admissible. The cause of this is in part an to disputes about admissibility due largely covery are (a) an early appraisal of the re- attempt to assist in readability and in part to what had been put in the witness state- spective cases of the parties and promotion a perfectly understandable caution on the ments by the lawyers to be ‘on the safe side’. of settlement (‘thereby saving time and cost part of those preparing the witness state- Objections to admissibility are, for their and relieving pressure on court lists’10), (b) ments; but the consequence is unnecessary part, also often taken out of caution and to a reduction or savings of costs by ‘reducing distraction, additional argument, delay be ‘on the safe side’. Some litigators may be the issues in dispute and limiting the scope and further costs. I am frequently told that encouraged to object to at least as much as of the trial’,11 and (c) preventing surprise large slabs of witness statements, plainly may reasonably be argued to be objection- and thereby ensuring the determination of inadmissible in form or plainly not rele- able to be ‘on the safe side’. The sum total, cases on their ‘merit rather than on their vant to an issue in dispute, are there to as- of course, is more time, more cost and less tactics’.12 So much for theory! sist the judge by giving context and making efficiency. What is often absent is a robust We should, however, be slow to dismiss the evidence readable. That may be the confidence to keep issues, facts and dis- such justifications as unrealized wishful motive for its insertion, but frequently it putes to a strict minimum. thinking. Indeed, we must be careful not adds to the length of the material and, to allow our thinking to be clouded by the equally understandably, provokes objec- Pre-trial mediation dysfunctional cases when we evaluate the tions which take additional time to formu- Mediation and alternative dispute resolu- effectiveness of discovery. It is probable late, argue about and then to determine. tion were not common when I began to that the process of discovery does achieve Thus, material which began with the hope practise law. They have become a common its objective in most, indeed perhaps in the
46 VICTORIAN BAR NEWS Winter 2008 vast bulk, of cases in which discovery is will seem to the loser) were not taken away a proceeding will be sufficient for a man- compulsory or available. The obligation to otherwise than in a process that is fair to aging judge to know how best the proceed- give discovery is, in any event, an important all and by a person who both is, and can be ing should be managed at that stage. pillar upon which justice is secured. Judges, seen to be, truly impartial. Indeed, it is a frequent tactic for litig- the public and litigants can have confidence One of the many fears expressed, often ators to choose deliberately the timing of in decisions where truth and inconvenient privately, about a judge-managed case sys- a proceeding to suit the initiating party. facts cannot be concealed. On the other tem is a loss of impartiality by the decision A well-prepared plaintiff will have a great hand, there are undoubtedly some cases, maker. The fear may have little foundation advantage at the commencement of a pro- be they a minority or not, where discovery but it should not surprise us that there ceeding: the case will have been thought represents an unreasonable burden. The should be such a fear, because from the through, some evidence will have been challenge for an efficient, cost effective, very start of any case there will be a tussle gathered, and (significantly) the plaintiff timely and fair system is what to do in between the parties to persuade the deci- will have presented the issues in the plead- those cases. sion maker. Every word said, every sub- ings for the judge in a favourable way. To mission made, each document filed, each some extent any advantage thus gained criticism levelled, all evidence tendered, is removed in a non-managed case list, PROPOSALS FOR CHANGE will appear to the other side as a tactic ‘to because the general rules of court provide Recently there have been many calls for poison the well’ of the decision maker’s a process and a timetable (subject, of change and improvement ranging from mind. It is, after all, the very purpose of the course, to exceptions and modifications more ‘hands on’ case management by judg- exercise: to create impressions by fact, evi- where necessary orders are desirable) for es to more referrals to mediation or other dence, conduct, selection and persuasion the parties set at what might be thought non-judicial dispute resolution mecha- to bring about a favourable outcome. to be a standard norm. Where that fixed nisms.13 The drivers and dynamics of each The judge managing a case ensures that and independent standard is replaced by suggestion are different, and the cost and management does not pre-empt decision the decision maker managing the process,
…the expenditure of money in litigation will have had a seriously distorting effect upon rational decision making about the settlement of a dispute.
benefit analysis of adopting one or other making by proceeding down a path which it will be necessary for care to be taken to is intrinsically difficult, and the outcomes may be quick and efficient but is achieved ensure fairness and impartiality. are difficult to predict. They all sound good, at the cost of unfairness to the losing party Another objective should be to mini- they are all worth considering, but none and at the cost of loss of integrity for the mise additional cost in the process of try- comes without risk and cost. system. The party commencing the pro- ing to make things cheaper. Commercial An overriding concern must be that no ceeding may, usually will, and in any event and construction disputes are often funda- ‘improvement’ should come at the cost of usually should, be much better advanced mentally about money. In those cases there undermining the impartiality of decision in the preparation of a case than the party is a real risk that the costs expended in making. It is important that any decision responding. Those acting for the respond- litigation make it financially difficult to against the interests of a person be by a ing side may have had such little familiar- resolve the dispute for no other reason process that demonstrably guarantees ity with the facts and issues that they need than because of the amount of money in- fairness between winner and loser. It is time at the commencement of the pro- vested in pursuing the initial claim. There common for lawyers to repeat the line about ceeding get ‘up to speed’, work out how are many ways about thinking about this the importance of justice ‘being seen to be best to put the facts and issues for their phenomenon but in the end it is always the done’, but, however commonplace or trite, client, and to be of meaningful assistance same set of dynamics: how much have I it remains an essential objective. Contested to the decision maker. This is not always got at risk (or might I win) and how much decision making occurs when individuals so, because in some instances, the cases more will it cost me. A litigant who has al- have inconsistent and conflicting views only get to court after a lengthy period of ready spent $300,000 to pursue a $300,000 and claims about their respective rights. disputation between the parties; each with claim will have little doubt that it is worth The odds are that any decision will be made teams of lawyers. In such cases, the dispu- spending another $50,000 rather than give against the interests and against the wishes tants may all be well prepared and can be up both the initial claim and the invest- of one of them. The losing party, or parties, pressed to a swiftly managed timetable, ment to date even on a claim assessed will be unhappy about the outcome, and but it would be wrong to assume that the at only 40 percent chance of success. The has, or have, a right to expect that their impressions created from hearing from betting odds might have seemed different ‘legitimate rights’ (because that is how it the moving party at the commencement of at the outset if told they would have cost
VICTORIAN BAR NEWS Winter 2008 47 all up $350,000 to pursue a $300,000 claim their lawyers, may be seen as a kind of on a 40 percent chance of success. subcontractor to the judge who undertake In too many cases what is at stake in the time-consuming, costly and difficult the end is the costs spent: so much may ��������� tasks that the decision maker would other- have been spent in getting to the hearing wise need to embark upon personally and � � ������������������������� that the ‘investment’ is too great an directly. The lawyers do the investigating, amount to forgo for the parties to settle. � � �������������������������� checking, testing and analysis which other- In other words, the expenditure of money ������� wise the judge would have to do. It enables in litigation will have had a seriously the decision maker to undertake the final � � ���������������������� distorting effect upon rational decision task without directly incurring investiga- making about the settlement of a dispute. � � ���������������������� tion costs that would otherwise need to be There is, however, a real risk that reform � � ������������������������� paid from some source and, importantly, directed to improving case management enables the decision maker to continue to will condemn litigants to such pre-trial maintain an actual impartiality in the expenditure that the effect will be to process leading to an outcome where there make the overall cost appreciably worse ���������������� will be a winner and a loser. rather than better. Huge costs incurred There is, however, much room for im- in discovery, creation of court books, ��������������������������� provement and I do not wish either to ������������������� preparation of witness statements, etc, do suggest otherwise or to discourage im- �������������� (at least in part) have the effect of locking provements. Some improvement is capable the parties in to a dispute which they may ��������� of being achieved under the current sys- once have found it easier to resolve. �������������� tem with little more than a willingness to change and an eye to the ultimate objec- tives. On 4 May 2008, the Attorney- ADVERSARIAL SYSTEM slower, less efficient and, ultimately, more General announced a pilot project to The adversarial system has much that is costly process. As always, the critical issue permit judges to send disputes out of the wrong with it. Common lawyers frequent- will be that of striking the right balance court room and into mediation.14 I have ly defend it with unreasonable passion and between competing objectives. not yet seen the details of the project but by reference to high principle that some- The reality is that the adversarial system there are existing rules which already times seems unconnected with the real has, or at least can have, a robust vigour permit a great deal to be done in this world. Such passioned defences seem also that may need changing and moulding, direction. Indeed, on 23 April 2008 (not to ignore that many civilized, fair and just but still has much to offer to litigation in knowing of the Attorney-General’s pilot countries do not base their judicial deci- the modern commercial world. Leaving to project) I ordered a matter to mediation sion making on an adversarial system. the parties the task of identifying issues, which I had commenced to hear. Order That said, however, there is much in what gathering and investigating facts and evi- 50.07 of the Supreme Court Rules already we have that is worth keeping, not just be- dence, testing the evidence by cross- empowers a judge ‘with or without the cause it may philosophically be a superior examination, etc, has the desirable effect of consent of any party’ to order any part of a system, but because it has (or can have) leaving to those who know the dispute, proceeding to be referred to a mediator. It practical utility and cost efficiencies. and who have an interest in the outcome, would not have been appropriate for me to A clear example of usefulness and effi- with the control of what goes into the deci- be the mediator because, if mediation had ciency in the adversarial system is the sion making. They, and not the State, bear failed, I might not then have been able to placement upon the parties of the task of the primary cost of preparation, investiga- resume the task of hearing and deciding identifying the issues and evidence. The tion and research. Evidence of fact is put it without an appearance of having pre- State’s role (through judges or other deci- forward, and tested, by those who know judged the outcome by reason of what may sion makers) in deciding a dispute involves the facts and who care about the decision have been said to me on a without preju- investigation of a complaint. The adver- maker getting it ‘right’. Expert evidence is dice basis by either party during the course sarial system places upon the parties the sought, after detailed and at times exten- of the mediation. I am pleased to say that practical cost and burden of working out sive searches, by those with an interest in the mediator in that case succeeded in what is relevant to determine the com- getting the information right and with an having the parties reach an agreement plaint, where to find the facts and evidence, interest in excluding information which is about how to deal with their dispute. and how best to present it to the person wrong. The decision maker will usually be In the context of construction disputes, who must decide. Shifting that role from in no position to know what evidence to the court has this year issued a Practice the parties and placing it on to the deci- seek, who to ask, where to find it, or how Note heralding a new approach to dispute sion maker, may be neither more efficient to test it. Making the decision maker also resolution. It has been set up on a pilot basis nor cheaper. Judicial case management, the primary investigator gives the task to to test the viability of a new approach to which has the judge become the initiating someone with insufficient time and litigation designed to explore the possibility investigating inquirer into issues, fact and resources to do the job properly. Under the that the time presently being consumed, evidence is, rather, likely to produce a current arrangement the parties, through and the expense presently being incurred,
48 VICTORIAN BAR NEWS Winter 2008 by the parties might be moderated by a making litigation less costly, more efficient dispute to move smoothly, quickly and more intense involvement by the court. and faster. without cost. Claims or defences are some- Critical, however, to its success will be the For its part, the profession will need to times without merit and sometimes it is in cooperation of the legal profession and the step up and perhaps to reassert its role in the interest of one or more of the parties to parties. The practice direction is available producing a more efficient, less costly and produce delay at whatever cost it may re- on the Court’s website and its features are faster product for clients and Courts alike. quire. In other words, we should not forget described in paragraph 2: It has long been the law that the barrister that sometimes someone benefits from de- a. A building case should be approached presenting a case in Court ‘is personally lay and cost and wants to encourage delay like any building project, with time responsible for the conduct and presenta- and cost. No system should ignore that as and cost budgeting. tion of [the] case and must exercise per- an active dynamic. However, putting that b. Parties will be expected to have en- sonal judgment’.15 Many of the rules of to one side, there is much room for im- gaged in serious settlement discus- Court are directed at attempts to produce provement in the system as it is, and both sions before the commencement of efficiency. The requirement that a pleading that and any change to it will need the will- the proceeding. be signed, for instance, acts as a voucher ing co-operation of all participants to c. At an early stage a Judge will be as- that the case is not a mere fiction,16 giving make it work. signed to assume responsibility for some assurance to the court by a barrister, the management and trial of the case. as an officer of the Court, that there is sub- * Judge of the Supreme Court of Victoria, Judge d. Judges will be more active and pro- stance in the claim. Rules of pleadings, in Charge of the Building Cases List. active in exercising their powers in rules of evidence and rules of conduct are order to seek to achieve a just resolu- all ultimately directed to the legal profes- tion of building disputes in a speedy sion presenting materials to the decision and efficient manner. maker in a way that limits the dispute for NOTES e. Judges will be mindful of the need not decision making. By the time a case comes 1 ‘Friends, Romans, countrymen, lend me to apply the resources of the parties to trial the issues for decision making your ears; I come to bury Caesar, not to and of the Court needlessly or in a ought to have been reduced rather than praise him. The evil that men do lives after manner which is out of proportion to increased. The role of the legal profession, them, the good is oft interred with their the matters in issue. and the responsibility of the legal profes- bones’. Shakespeare, Julius Caesar III, ii f. Lawyers will be expected to approach sion, is to help in the process of decision (79). their cases co-operatively and with the making by reducing what is left for the 2 See for example, Giudice Marcello Mari- objective of not using the resources of judge to decide. The lawyers ought, in the nari ‘ADR and the Role of Courts’ (2006) 72 Arbitration 49–52. the Court and of the parties needlessly process of preparing for the trial, to have 3 Paula Gerber and Bevan Mailman ‘Con- or in a manner which is out of propor- identified what is in dispute between the struction Litigation: Can We Do It Better?’ tion to the matters in issue; parties, to have reduced the dispute to that (2005) 31 Mon LR 237–257; Justice D g. Lawyers will be encouraged to focus which cannot be agreed between the par- Byrne ‘Building Cases – Some Thoughts on on the central issues in the case. ties, to have reduced the evidence before Innovation’; Supreme Court Practice Note h. Judges will keep the number of direc- the decision maker to that which is rele- No. 1 of 2008; Justice D Byrne ‘The Build- tions hearings to a minimum. vant, necessary and admissible. The skill of ing Contractor and Practice Direction Note i. Where possible, interlocutory appli- the lawyer, and the value which lawyers 1 of 2008’, Paper Presented to the Master cations should be determined on the should add to the preparation for litiga- Builders Association, 16 April 2008. papers. tion, is in predicting the outcomes and 4 ADR (Alternative Dispute Resolution), j. Opposed interlocutory applications applying predictable rules to the issues and PAP (Pre Action Protocol) etc. 5 ‘State Budget 2008’, from the Deputy Pre- will, where appropriate, be referred to facts in dispute. Much of the work which mier and Attorney-General, 6 May 2008. a Master. the decision maker is asked to do in sifting 6 ‘Relief for small litigators urged’ The Aus- k. Where costs of a directions hearing facts, issues and evidence should, in my tralian Financial Review (23 April 2008) 5. are ordered to be paid, they will, if view, have been done by the legal profes- 7 ‘Building Cases – A new approach’, Supreme possible, be fixed. sion before the case comes on for hearing. Court Practice Note No. 1 of 2008. An important feature of the new approach The best outcome of a judge-managed case 8 Discovery and Interrogatories (1984). is what is called ‘a resources conference’ may perhaps be in aspects of the prepara- 9 lbid,1. to be convened shortly after the pleadings tion of a case which enables the lawyers to 10 Ibid, 1–2. are closed. The point of the resources limit areas ultimately for resolution by the 11 Ibid, 2. conference is for the parties to focus on judge. 12 Ibid, 2. the proper management of the dispute in It is likely that no change will lead to a 13 See above at p. 1. 14 Melissa Fyfe, ‘Judgment day looms for a timely, efficient and costly basis. lasting improvement without all involved overloaded legal system’, The Age, 4 May It is too early to see what effect the new in litigation playing their part in the same 2008. approach will have on the conduct of direction. I have said nothing about one 15 Halsbury’s Laws of England Volume 3(1) proceedings. What is important, however, serious obstacle to improvement that (2005 reissue) para 550. is the clear and unequivocal signal from should not go unremarked. The fact is that 16 Great Australian Gold Mining Co v Martin the Court of its willingness to do its part in it is not always in everyone’s interest for a (1877) 5 Ch D 1, 10 (James LJ).
VICTORIAN BAR NEWS Winter 2008 49 The anniversary of the Essoign Club
It does not seem five years since the ‘new’ fitout on the first floor was not plain sail- opening of the Essoign Club on the first ing. Many argued that the Bar could not floor of the refurbished Owen Dixon afford to have such a large space occupied Chambers. Many take for granted that without rent. That rent must be paid or the the Victorian Bar has its own modern and Club disappear. But with strong support successful club with a vibrant restaurant from Barristers Chambers Ltd, plans for and bar. the club went ahead and the successful club Club Vice Chairman Philip Dunn QC premises of today are the result. addressed those who came to celebrate the Philip reminded the assembled gather- five years of successful operation of the ing that ours was the last Barristers Club to club. He reminded all of the past. Of the continue in operation in Australia. The early dining room on the 13th floor of New South Wales Club, with that Bar’s Owen Dixon Chambers. Of the fight to scheme of scattered chambers, not under gain a liquor licence, opposed by all and the control of a central company, closed its sundry public houses in the vicinity of doors some years ago. The other States do William Street and the more wowserish not have similar clubs. He reminded all members of the Bar who feared wanton that the club is central to the collegiate drunkenness and a deterioration of the spirit of the Bar – a place where barristers moral standards within the Bar. Of how and judges can escape, where juniors can the club flourished on the 13th floor, be- meet seniors, and where all can unwind coming the social and collegiate centre of with war stories and idle gossip. He em- the Bar, not only for lunch and drinks, but phasized that the club has gone from dinners, list drinks, and all manner of strength to strength in the five years since functions for the rapidly expanding spe- revelation. Not only is lunch and bar use cialized group and associations of the Bar. increased, but the club is very much the But the 13th floor premis- centre at night for special dinners, drinks, es were fraying at the edges. conferences and functions. Even the famous orange net It was fitting that the centre of the cele- curtains (chosen after much brations was a very large chocolate cake searching and discussion by (pictured on this page ). The cake featured life member Judge Frank ‘the dancing barristers’, the symbol of the Walsh, and then being the club created by Judge Graham Crossley height of fashion in the sev- (Croc), which featured greatly in the 1984 enties) were looking a little Victorian Bar Review. Those present par- forlorn, as forlorn as Owen took of the cake, various libations, and ex- Dixon Chambers itself. cellent finger food – a memorable evening. So Owen Dixon was to be One can only trust that the Essoign Club refurbished and revitalized will continue on and flourish for many floor by floor. But where did decades, and it remains in a building con- that leave the Essoign Club? taining the vast majority of the Bar (both Acceptance of a sleek new East and West). The clamour of a few of
50 VICTORIAN BAR NEWS Winter 2008 the whispering ilk to break up chambers and ‘leave the business of barristers cham- bers to the commercial market’, would eventually lead to the end of the Essoign Club. But those folk live in a tiny section within the commercial law bar, not caring for the majority nor the benefits of Barris- ters Chambers. It is doubtful that they are members of the club, nor indeed that they are real barristers. Of great significance to the success of the club is the work of the club Manager Nick Kalogeropoulos. Without him the club would not have been the success it is today. It was a little unfortunate that club Chairman Colin Lovitt QC could not attend. It is his personality and drive along with former chairmen and commit- tee members that will see five years’ suc- cess turn into ten, twenty and perhaps forever. May the Essoign Club continue to prosper. Martin Randall, David Beach SC, Gerry Butcher, and Graeme Clark SC
Paul Elliott QC and Robin Brett QC Bill Pinner and Rohan Hamilton
Philip Dunn QC, Bill Coady and Judge Michael McInerney David Gillard and Anthea MacTiernan
VICTORIAN BAR NEWS Winter 2008 51 Fiona Ryan, Thomas Ashton, Deborah Mandie and Jennifer Digby Judge Katherine Bourke and Richard Smith SC
Vice Chairman Dunn QC addresses the gathering
Nick Kalogeropoulos, Manager of the Essoign Club cutting the cake
52 VICTORIAN BAR NEWS Winter 2008 Creating Justice
Australian Women Lawyers (AWL) held its second national conference in Melbourne on 12–14 June 2008. The conference was well attended by delegates and speakers from around Australia and New Zealand. Attorney-General Rob Hulls, Chief Justice Marilyn Warren, Fiona McLeod SC and Caroline Kirton at the opening reception
he theme of the conference, on the Bar to consider financial support inspiring keynote address. Her Honour Creating Justice, was inspired by the for Bar readers and a part-time Readers’ spoke of the difficulties of participation of challenge issued by AWL Patron, Course. women in the legal profession in New Zea- Tthe Honourable Mary Gaudron QC who Keynote speaker and incoming patron land and the role of women lawyers in said at the AWL ten-year anniversary in of AWL, Chief Justice Diana Bryant, shaping the law and legal method. September 2007 that ‘the real task that lies spoke on how women working in the Other speakers included Justice Marcia ahead is the work of creating justice, and law might shape our personal response Neave; Pamela Tate SC, Solicitor-General creating justice not just for a section of the to the challenging environment in which for Victoria; Elizabeth Broderick, the Sex community, but for all of it.’ we live. She referred to women who had Discrimination Commissioner; and Chief Chief Justice Marilyn Warren AC and been publicly and privately mistreated by Commissioner of Police, Christine Nixon. Attorney-General Rob Hulls welcomed the legal system and proposed ‘the Teresa Associate Professor Judith Fordham spoke delegates at the opening reception in the Brennan Award’ to recognize the woman of her research on the influences on juries Supreme Court of Victoria Library on worst treated by the law, in memory of the inside the jury room and the impact of Thursday 12 June. At the opening, Chief feminist academic allegedly named post- fear and intimidation on verdicts. Michele Justice Warren spoke of the challenges and mortem as the speeding driver of the car Williams SC spoke of the work of the the privilege of appointment to judicial of a well-known NSW judicial officer. Victorian Sexual Offences unit, providing office, while the Attorney affirmed his The Chief Justice of New Zealand, the delegates with an overview of the changing commitment to appointments and equal Right Honourable Dame Sian Elias, at- way that sexual offences are investigated opportunity briefing principles and called tended the conference and delivered an and prosecuted in Victoria.
VICTORIAN BAR NEWS Winter 2008 53 Solicitor-General Pamela Tate SC, Fran O’Brien SC, Elizabeth Wentworth and Karin Emerton SC Justice Marcia Neave
An Indigenous Forum was also held, discussing the impact of the intervention legislation on Aboriginal communities and raising serious concerns at the lack of consultation with local communities. The speakers called for compensation for the stolen generation, with moving stories of hurt and humiliation. The final sessions included presentations by Professor Gillian Triggs, Justice Shan Tennent, Justice Susan Kenny and Justice Katharine Williams. The conference produced a communi- qué which commits to the elimination of direct and indirect discrimination against women in the legal system and in the ad- ministration of justice. It proposes nation- al and international measures supporting gender equality and the empowerment of women. The statement includes a call for a statutory bill of rights, parental leave policies, specific immigration and dis- crimination reforms, measures to improve the representation of women including Magistrate Felicity Broughton, Michele Williams SC and Robin Hanigan Aboriginal and Torres Strait Islanders in decision-making roles, and a range of international human rights measures in- AWL is extremely grateful for the support Law Council of Australia and Mallesons cluding support for the UN Millennium of their sponsors, including their Silver Stephen Jaques. Our next conference is Development Goals. The statement is Sponsors LexisNexis and the Attorney- scheduled to be held in Brisbane in 2010. intended to guide the direction of AWL General’s Department, and the Supporting policies and activities in the future. A copy Sponsors which included the Victorian Fiona McLeod SC is the President of of the statement is available on the AWL Bar, the Women Barristers Association Australian Women Lawyers. website at
54 VICTORIAN BAR NEWS Winter 2008 Support for Indigenous barristers
The Indigenous Lawyers Committee of the Bar has held its annual function for Indigenous lawyers and law students. The function was attended by almost all of Melbourne’s 30 Indigenous law students.
he function was very well support- ed by members of the Bar, includ- ing the judiciary (with a number Tof Federal, Supreme and County Court judges in attendance, as well as Justice Susan Crennan of the High Court). This year’s function was held in con- junction with the Law Institute of Victoria. The involvement of the Law Institute is seen as vitally important to the success of the Bar’s campaign to attract Indigenous lawyers. There are three Indigenous barristers at the Bar, Hans Bokelund, Brendan Louizou and Munya Andrews, with more expected in coming Readers’ intakes. Despite this success, Hans Bokelund observed in his speech at the function that for the Bar to properly reflect the propor- tion of Indigenous people in the popula- tion, there would be in excess of 50 Indigenous barristers at the Victorian Bar. Dr Mark Rose, Hans Bokelund, Iresha Herath and Colin Golvan SC
VICTORIAN BAR NEWS Winter 2008 55 Helen Christensen, Justice Sue Crennan AC and Daniel Brigg
Hans called on solicitors and barristers Bar. The Fund is tax deductible and con- Members of the Indigenous Lawyers to contribute to the project by assisting the tinuing support is sought from members Committee have also attended this year new Indigenous barristers in getting briefs. of the Bar (details are available on the Bar’s at Deakin University to speak with He proposed an affirmative briefing policy website). Indigenous law students about the Bar’s in the manner of the policy adopted in fa- The Bar has extensive contact with In- involvement with Indigenous lawyers. The vour of women barristers. digenous lawyers and law students through Committee also works closely with the Dr Mark Rose, the General Manager its long-established mentoring program Victorian Indigenous Lawyers and Law of the Victorian Aboriginal Education for students, as well as a paid summer Students Association, Tarwirri. Association, spoke on the importance of clerkship program (which is run in con- In September, the Bar will be hosting a educational and professional opportunities junction with the Supreme Court and the major welcome function for delegates to in addressing issues of reconciliation. He Judicial College). This year, three Indige- the National Indigenous Legal Conference praised the legal profession for its programs nous law students participated in the (being held for the first time in Mel- to promote Indigenous representation in program: Angelic Martin and Josie bourne), and will be providing significant the profession. Clements (studying at Deakin University) administrative support for the Conference The function also provided an opportu- and Joseph Clifford (studying at Mel- as well as financial assistance (through a nity to further promote the Indigenous bourne University). The Bar also has re- grant obtained by the Bar from the Victo- Barristers Fund, which was established in served a place in each Readers’ intake for rian Law Foundation) for the setting up of 2007 to assist new Indigenous barristers in an Indigenous Reader and has waived a Conference website. overcoming some of the financial obsta- the Readers’ Course fees for Indigenous COLIN GOVAN SC cles in commencing their careers at the participants.
56 VICTORIAN BAR NEWS Winter 2008 Inaugural Patron of the Women Barristers Association
On 21 April 2008, 50 women barristers gathered at a function on the 11th floor of Owen Dixon Chambers West to celebrate the Chief Justice becoming the first patron of the WBA.
aroline Kirton, current convenor of the WBA, welcomed to the function the members and friends of the WBA; the honoured guest, the Chief Justice; past convenors of the WBA, being Judge Rachel Lewitan QC from the County Court, Cthe founding convenor, Fran O’Brien SC, Helen Symon SC, Simone Jacobson and Fiona Mcleod SC; two past presidents of Australian Women Lawyers, Alexandra Richards QC and Jennifer Batrouney SC; and Judge Sue Pullen from the County Court. Caroline went on to give the following address:
WBA has never had a patron before. The Honourable Mary Gaudron QC has been the patron of AWL since it was founded over a decade ago. The Chief Justice is the patron of Victorian Women Lawyers. Why do we need a patron? I think it is about symbolism. In the decade since WBA was formed, it has achieved many things. WBA has: • sought to advance equality and equality of opportunity for women at the Bar. This has been achieved especially by promoting awareness of issues which particularly affect women at the Bar; • provided a social network for women barristers; • highlighted and worked towards eliminating discrimina- tion against women in the law. No better example of WBA’s continued support of these objectives is its financial sponsorship of AWL’s Second National Conference (held in Melbourne on Friday 13 and Saturday 14 June 2008. The theme of the conference was ‘Creating Justice’). The Chief Justice is one of the leading female members in Australia. She was appointed Chief Justice of the Supreme Court of Victoria in November 2003. She is the first woman to have been appointed as a Chief Justice in Australia. She is a graduate of Monash University. Fiona McLeod SC with the Chief Justice Marilyn Warren AC
VICTORIAN BAR NEWS Winter 2008 57 Simone Jacobson and Sarah Mansfield Caroline Kirton addressing the gathering
Michelle Quigley SC, Alexandra Richards QC and Susan Brennan
58 VICTORIAN BAR NEWS Winter 2008 The Chief Justice commenced her legal career in the Victorian Public service and was admitted to practice in 1975. She signed the Roll of the Victorian Bar in 1985 and practiced predominantly in the areas of administrative law, commercial law and town planning. In 1997 she was appointed Queen’s Counsel. In 1998 she was appointed to the Supreme Court of Victoria and presided in all jurisdictions, in particular the corporations list and the commercial list of which she was judge in charge. The Chief Justice was admitted to the Degree of Doctor of Laws by Monash Uni- versity in 2004. In June 2005, the Chief Jus- tice was made a Companion in the Order of Australia for her services to the judiciary and the legal profession in the Cornelia Fourfouris-Mack, Amanda Wynne, Fotini Panagiotidis delivery and administration of law in Vic- toria; to social and economic conditions of women; and to forensic medicine inter- nationally. The Chief Justice is the President of the Victoria Law Foundation, Chair of the Judicial College of Victoria, Chair of the Council of Legal Education and Chair of the Victorian institute of Forensic Medicine. On 7 April 2006 the Chief Justice assumed the role of Lieutenent Govenor of Victoria. The Chief Justice has been a long- standing supporter of WBA and VWL. With the Chief Justice as our Patron it sends a clear symbolic message to the Bar, the legal profession and to the wider com- munity that the Chief Justice supports the Fiona Alpins and Alexandra Richards QC objectives of WBA. We thank the Chief Justice for agreeing to be our Patron.
A toast to the Chief Justice followed. Thereafter the Chief Justice responded informally, noting that if women barristers were offered judicial appointment by the Attorney-General they should accept it. She also spoke of the rewards and challenges of being on the bench. SIMONE JACOBSON
Jennifer Digby, Meg O’Sullivan (and child) and Leonie Englefield
VICTORIAN BAR NEWS Winter 2008 59 SPORT The WORLD GAME at the Bar
Group shot of all players in both games, with Melbourne Victory’s Grant Brebner at far right
On Saturday 5 April there were two you may be surprised to learn that despite plays soccer in a women’s indoor soccer only having a team of three (Rebecca team sponsored by Greens List each Sun- soccer matches of note played at Leshinsky, Julia Greenham and Georgina day. It was extremely fair of the solicitors Darebin International Sports Centre. Costello) the women barristers’ team beat not to reverse their decision and claim the solicitors’ team. This was because the back some of the solicitors playing for the solicitors kindly allowed the barristers to barristers’ team after Angela scored the In both matches the barristers played swell their numbers with various solicitors first goal. In addition, Tiffany Veschetti of against the solicitors. and a paralegal who stepped in to help Clayton Utz dominated the Bar’s back line The matches were played in perfect con- out. Thus, without undergoing the ordeal and Annabel Haslam, a solicitor at the ditions on artificial grass. The older mem- of video exercises, several solicitors trans- Victorian Institute of Teaching, was very bers of the teams wished their legs were as formed into barristers temporarily and handy in the midfield. Unfortunately for new as the grass. The referee was an official appeared for the Bar on Saturday. Some the Bar, Tiffany and Annabel have so far appointed by Football Federation Victoria. complained later of a headache, which may resisted pressure to sign up for the Read- Whilst assuming the role of keeping bar- have been from cranium swelling experi- ers’ Course next year. risters in line is something a judge could enced after solicitors became barristers, or The second match was the men’s match. have done, no judge volunteered to wear it might have been from dehydration. The Bar had a full team and a few reserves. the required referee’s shorts. The winning goals in the women’s match The solicitors won 3:2 after a tight con- After dismissing submissions by the were not scored by a barrister or solicitor test. The game was played in good spirit. women barristers’ team for shorter halves, but by Angela Talevska, who is studying There were no yellow or red cards bran- the women’s match commenced. Some of Legal and Dispute Studies at RMIT and dished and even less sledging from the
60 VICTORIAN BAR NEWS Winter 2008 Hamish Austin with a shot on goal
barristers’ team than can sometimes be heard at Bar tables. The solicitors scored the first two goals. The Bar team fought back to level the scores. Hamish Austin scored first, followed by Sebastian Clarke (son of Marcus). The solicitors struck again with a few minutes to spare. The goal scorers for the solicitors were their captain, Chris Ketsakidis of Maurice Blackburn, who scored twice, and The men’s Bar team John Pesutto of DLA Phillips Fox. Magistrate Brian Wynn-Mackenzie pre- sented the inaugural ‘Barristers v Solici- tors’ shield to the captain of the solicitors. Brian also presented the Man of the Match medallion to the Bar captain, Nick Terzio- vski. Nick had been nominated by the referee. Peter Agardy was the coach of the men’s Bar team. Chris Nikou, a partner of Mid- dletons, was the coach of the solicitors’ team. On the day the solicitors had the assistance of Grant Brebner, who plays for Melbourne Victory. The women barristers were without a coach (but somehow won anyway). The Bar won the first match 2:0 and lost the second 3:2. One of our players calculated that the Bar won the day on aggregate. It was a great event, and we look forward to many more like it. GEORGINA COSTELLO Anabel Haslam (left) and Suzy Wilson AND PETER AGARDY
VICTORIAN BAR NEWS Winter 2008 61 LAWYER’S BOOKSHELF
Equitable Obligations: Duties the book’s practical utility. Chapter 10 in- is Australian legislation and case law. Defences and Remedies cludes a discussion of the processes of trac- Topics include the Kyoto Protocol and its By Malcolm Cope ing and following – doctrines often invoked alternatives, the greenhouse trigger, carbon Lawbook Co 2007 in claims against defaulting fiduciaries or emissions and trading, and geological Pages i–iv, Preface v–vi, Acknowledgments their cronies, particularly those who have sequestration law in Australia. There is vii–viii, Contents ix, Table of Cases xi–xl, received the proceeds of a defalcation. also a chapter dedicated to nuclear law. Table of Statutes xli–xliv, 1–470, Unsurprisingly, many words are also de- A number of important climate cases Index 471–488 voted to the essential topic of competing have been determined since 2004, including priorities. the Hazelwood Power Station case here in Equitable Obligations is one of a flurry of Equitable Obligations is an excellent Victoria, the Bowen Basin and Xstrata Coal recent books dealing with the practical work. It provides a lucid outline of the Mines cases in Queensland, and the Anvil aspects of equity. The author confines him- principles governing the obligations of Hill open cut mine case in New South self to analysing the particular duties of fiduciaries and the consequences of a Wales. Each of these cases has a dedicated fiduciaries, including trustees. Broader breach of those obligations. This outline chapter, revealing the torturous path that equitable obligations which arise from is supported by ample reference to recent conservation organizations have had to non-fiduciary relationships (such as those authority. The book is a valuable reference take in protecting the environment. giving rise to the duties to avoid acting for those practising in any of the many An interesting chapter deals with what unconscionably or exercising undue influ- areas of law in which fiduciaries are author James Prest describes as the Bald ence) fall outside the scope of the book, as involved. Hill Wind Farm debacle, which many do the common law duties which attach to STEWART MAIDEN will recall shot the orange-bellied parrot fiduciaries (for example, the contractual to fame yet again. In what could be best and tortious duties owed by professional described as an episode from Yes, Minister, trustees). Dr Prest analyses how Bald Hill not only Chapter 1 provides a short analysis of Climate Law in Australia highlighted the state of climate law in the equitable duties owed by trustees. The Editors: Tim Bonyhady and Peter Christoff Australia, under the previous Howard broader general fiduciary duties of loyalty The Federation Press, 2007 government, but also showed generally and fidelity are explored in Chapter 2. This Softcover 315 pages the lack of legislative response to climate discussion allows the author to explore the change to date. distinction between the natures of fiduci- The editors of Climate Law in Australia Whilst the subject matter is at times ary and tortious duties, and the need for argue a number of factors including a lack dense, Climate Law in Australia is a claimants to carefully delineate between of political will has resulted in Australia’s thoroughly readable text which provides alleging a failure to do some positive act poor greenhouse performance. It was not not only a history of the legislation and (which might give rise to tortious liability) until 2006 that climate change became a cases to date but which also argues that and an allegation that one of the proscrip- major political issue. A number of factors, Australia still has a very long way to go in tive fiduciary duties has been breached. including the most severe drought since response to climate change. Chapter 3 deals with the identification of European settlement, and the appreciation fiduciaries, and describes the recognized of the economic consequences of global classes of fiduciaries. Chapters 4 and 5 con- warming, have generated widespread sider breaches of the duties owed by trus- media coverage. Whilst climate legislation tees and fiduciaries, respectively. Chapter 6 in Australia remains modest it has been Principles of Australian deals with third parties’ liability for such left to courts and tribunals to test weak- Succession Law breaches. Chapter 7 deals with defences. ness in government policy. This compre- By Ken Mackie Chapter 8 describes the range of personal hensive text examines, through the work LexisNexis Butterworths, Australia, 2007 liabilities created by a breach of the duties. of various authors, key federal and State Pages i–liv; 1–316; Index 317–325 Chapters 9 and 10 set out the require- legislation and the main cases brought ments for proprietary relief for breaches of before Australian courts. Principles of Australian Succession Law is the duties, building on the author’s earlier Authors include leading academics such the successor to an earlier text, Outline of work, Proprietary Claims and Remedies. as Professors Robyn Eckersley, David Far- Succession by Burton & Mackie (first ed. Perhaps for that reason, the two chapters rier, Rob Fowler and Jan McDonald, as 1995, second ed. 2000). are a more comprehensive analysis of well as leading practitioners Charles Berg- In his Preface to Principles of Australian equitable proprietary remedies than is er, Kristy Ruddock, Chris McGrath, Alli- Succession Law, the author states that ‘the strictly necessary for a book of this sort. Far son Warburton and Martijn Wilder. aim of the text is to provide a concise, but from being cause for criticism, the detailed Whilst addressing international aspects reasonably comprehensive, coverage of the analysis provided by those chapters adds to of climate law the main focus of the text current law of succession in Australia…It
62 VICTORIAN BAR NEWS Winter 2008 is aimed primarily at the undergraduate Australian Succession Law should find a often considerable, and the cases complex. law student…but may also prove helpful niche on the shelves of practitioners as The authors of this book have also at- to others involved in the area of succession well as others interested in specific aspects tempted to provide a comprehensive work …’ The author has well exceeded this of Australian succession law. with references to authorities from many modest aim and this concise text will be P W LITHGOW of the main common law jurisdictions, in- of use not just to law students but also cluding Australia, Canada, Hong Kong, practising lawyers and others, including Ireland and New Zealand as well as the testators, executors and administrators United Kingdom. Even more impressively, (personal representatives), beneficiaries they have been able to express their views and others interested in the will making Commonwealth Legislation in concise and comprehensible proposi- and estate administration processes. Collection (2nd edition) tions which are well organized into para- The text provides an initial analysis of By LexisNexis, Butterworths, 2007 graphs and subject headings. The result is various aspects of will making including Pages iii–v; 1–92 a clear, concise and authoritative text mental elements, formal requirements, which is easy to use. One can only take revocation and alteration, re-publication The LexisNexis Commonwealth Legisla- one’s hat off to them. and revival of a will. (See generally chap- tion Collection combines the Common- The work commences with introduct- ters 2 to 6). A specific chapter is devoted to wealth of Australia Constitution Act, Statute ory paragraphs setting out the authors’ construction of wills, although clearly the of Westminster Adoption Act 1942, Aus- position about the terminology of ‘rescis- coverage of this topic is not as comprehen- tralia Act 1986 and the Acts Interpretation sion’, including the different meanings of sive as that found in the new work by Act 1901 in one convenient portable edi- the word itself, and the contractual and David M Haines QC, Construction of Wills tion and is 5mm thick × 236 × 166mm. transactional situations when it will be in Australia (LexisNexis Butterworths Whilst not pocket sized, it will slip into a available. They also consider its interac- 2007). brief case, backpack or A4 folder and is tion with independent claims for damages, Chapter 10 is devoted to family provi- much simpler than having four separate equitable compensation and account of sion in the context of testamentary dispo- pieces of legislation. The text is clearly set profits, and the historical foundations of sitions and deals with the ‘new law’ in this out in Times Roman with bold headings, rescission both at law and at equity. The area in all jurisdictions in Australia. making it easy to read. authors then consider the grounds on Although there are distinct differences be- As the legislation is the foundation of the which rescission will be available, includ- tween the various State family provision Australian legal system and federal system ing misrepresentation, non-disclosure, regimes there is also much similarity. It is of government, it is ideal for students and duress, undue influence, mistake, impaired also true that each specific State provision those who are commencing their studies in capacity and unconscionable bargains, must be read in light of specific State court Constitutional Law. Practitioners will also conflict of interest and third party wrong- decisions, nevertheless the coverage in this find it a convenient reference tool because doing. chapter is comprehensive if necessarily of its size and portability. A third part of the book considers general. The publisher has also provided a link rescission by election and by Court order, Further chapters deal with distribution, to its site containing a selection of relevant and a fourth part, the doctrine of restitutio personal representatives and grants of State legislation that can be viewed or in integrum, including mutual restitution representation (see chapters 9, 11 & 12). downloaded in pdf format. at law and equity, proprietary claims and Chapters 13 and 14 deal with the admin- CJ KING other matters. There is also consideration of istration process, particularly the duties, the role of third party rights in the doctrine powers, rights and liabilities of personal of rescission, and other bars to rescission representatives charged with the responsi- including affirmation, delay, estoppel, bility of administering a deceased estate. insolvency, contractual provisions and This chapter is not limited to the mecha- The Law of Rescission other matters. A final section deals with nisms for the collection and distribution Dominic O’Sullivan, Steven Elliott, and Rafal gifts and deeds. of the assets of the deceased but includes Zakrzewski Overall, this is a work of considerable discussion of duties in relation to the Oxford University Press, Oxford 2008 scholarship and utility. These features funeral and disposal of the deceased’s body. lxxiii + 699 pages, including index are rarely combined in a legal textbook. Principles of Australian Succession Law is Notwithstanding its hefty price (even a most useful work. It provides the reader The foreword to this book describes it as though an Australian dollar buys more with access and understanding to principles ‘an ambitious, even a courageous work’. The of a pound than it used to), this is a book of succession law on an Australia-wide writer may or may not be using the word which I would recommend for the library basis. By use of the index and footnotes ‘courageous’ in the sense of Yes, Minister. of any chambers where contractual or specific areas of interest in the text can be Apart from the frequent confusion and commercial work is done. accessed and avenues of further enquiry ambiguity about the use of the term MICHAEL GRONOW developed. While the work is aimed at ‘rescission’, and the multiple meanings students, it is clearly a work that will be which lawyers give it, the legal difficulties of use to a wider audience. Principles of surrounding the concept of rescission are
VICTORIAN BAR NEWS Winter 2008 63 64 VICTORIAN BAR NEWS Winter 2008