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Contact Us Customer Relations Phone: 1800 100 161 (Lines are open 8.00am-8.00pm EST Mon-Fri) Email: [email protected] Fax: 1800800122 Web: www.lexisnexis.com.au No. 128 AUTUMN 2004

Contents EDITORS'BACKSHEET 5 The New Despotism CHAIRMAN'S CUPBOARD 7 Judges' Remuneration ATTORNE~GENERAVSCOLUMN 10 Justice Statement a "Groundbreaking Analysis of the Attomey-General's Entire Portfolio" PRACTICE NOTES Welcome: Sue Welcome: Stephen Obituary: Allayne 12 Legal Practice Act 1996 Crennan QC William Kaye Kiddie 13 Legal Profession Tribunal- Publication of Orders WELCOMES 16 Justice Susan Crennan 17 Justice Stephen Kaye OBITUARIES 19 Aliayne Kiddle 20 Leslie George Crisp ARTICLES 22 Independence and the Bar 26 Bush Lawyers David Hicks' US Servicesjor the Opening oj the Legal Year NEWS AND VIEWS Military Lawyer Visits 30 Exchange Chambers Melbourne 32 Unveiling of Tapa Cloth 34 Bar Reception for Pro Bono Practitioners and Farewell to Samantha Burchell 38 Services for the Opening ofthe Legal Year 45 Major Michael Mori, David Hicks' US Military Lawyer, Visits Melbourne 46 Justice Gaudron Opens Gaudron Chambers in Republic Tower 47 The Balance of Improbabilities 48 Verbatim The Opening oj Gaudron The Victorian Bar's Children's 49 The Victorian Bar's Children's Christmas Party Chambers by Justice Gaudron in Christmas Party 52 The New Silks - and Their Way to the Top The Republic Tower 54 High Court Welcomes Victorian New Silks 55 Launch of Compulsory Legal Education Program 56 Solomon Islands' New Solicitor-General Farewelled 57 A Bit About Words/Shifting Sands 58 A New Supreme Court Building? I Think Not. 60 Ten Years of the Women Barristers Association 61 New Wine Colunm in Association with the Essoign SPORT New Silks Welcomed to High Court Ten Years oj the Women Barristers 62 Golf: Bench and Bar Golf Day in Canberra Association 64 Termis: Bar Graciously Surrenders Trophies 65 Yachting: Wigs & Gowns Bar Sport: LAWYER'S BOOKSHELF 66 Books Reviewed 70 CONFERENCE UPDATE

Cover: New readersjrom the Pacific region were welcomed by Chairman Brett on 1 March, who unveiled the Tapa Cloth donated by reader Jennifer La'au - see story page 32. Golf Tennis Yachting Victorian Bar Council

VICTORIAN BAR COUNCIL Chairs of Standing Committees of the Bar Council for the year 2003/2004 Aboriginal Law Students Mentoring Committee *Executive Committee G Golvan S.C., C.D. Clerks: Applications Review Committee W *Brett QC, RA (Chairman) G Howard QC, AJ. B *Ray QC, W,R (Senior Vice-Chairman) Charitable and Sporting Donations Committee B *McMillan S.C., Ms C.F. (Junior Vice-Chairman) D Riordan S.C., PJ. D Fajgenbaum QC, J.1. Conciliatorsfor Sexual Harassment and Vilification QC, AJ. G *Howard B Curtain QC, D.E. F *Dunn QC, P.A. A *Shand QC, M.W, (Honorary Treasurer) Counsel Committee F Dreyfus QC, M.A. G Crennan S.C., M.J. G Crennan S.C., M.J. Equality Before the Law Committee D Beach S.C., D.F.R A Richards QC, Ms A F *Quigley S.C., Ms M.L. (Assistant Honorary Treasurer) Ethics Committee D Riordan S.C., PJ. B McMillan S.C., Ms C.F. D McLeod S.C., Ms F.M. D Jones, 1.R Human Rights Committee W NealD.J. D Fajgenbaum QC, J.1. R Doyle, Ms RM. Legal Assistance Committee D Duggan, Ms AE. G Howard QC, A J. D *Gronow, M.G.R Legal Education and Training Committee B Coombs, Ms D.J. BRay QC, W,R L Hannebery, PJ. Continuing Legal Education Committee D Connor, PX. Nettle, The Honourable Justice D Moore Ms S.E. (Honorary Secretary) G Anderson, Ms K.J.D. (Assistant Honorary Secretary) Accreditation and Dispensation Sub-Committee B Young QC, N.J. Ethics Committee Readers' Course Sub-Committee B McMillan S.C., Ms C.F. (Chair) G Santamaria S.C., PD. H Merralls AM, QC, J.D. S Willee QC, PA New Barristers' Standing Committee S Lally QC, w'F. R Doyle, Ms RM. P Bartfeld QC, M. Past Practising Chairmen's Committee F Gobbo QC, J.H. G Berkeley QC, H.C. F Dreyfus QC, M.A. Professional Indemnity Insurance Committee G Lacava S.C., PG. A Shand QC, MW H Lewis S.C., G.A. Professional Standards Education Committee A Macaulay S.C., C.C. S Willee QC, PA M Clelland S.C., N.J. G Gordon S.C., Ms M.M. Victorian Bar Dispute Resolution Committee R Batten, J.L. S Martin QC, w,J. L Lane, D.J. Victorian Bar Theatre Company Steering Committee F Shiff, Ms PL. H Wilson QC, S.K.

VICTORIAN BAR NEWS Georgina Schoff, Paul Duggan, Printed by: Impact Printing Editors Peter A Clarke, Nicola Gobbo, 69-79 Fallon Street, Gerard Nash QC, Paul Elliott QC and Victoria Lambropoulos, Richard Brear Brunswick Vic. 3056 and Peter Lithgow (Book Reviews) Judy Benson This publication may be cited as Editorial Board David Johns (Photography) (2004) 128 Vic B.N. Julian Burnside QC Published by The Victorian Bar Inc. Jack Rush QC Owen Dixon Chambers, Advertising Graeme Thompson 205 William Street, Melbourne 3000. Publications Management Pty Ltd 38 Essex Road, Surrey Hills, Editorial Consultant Registration No. A 0034304 S Victoria 3127 David Wilken Opinions expressed are not necessarily Telephone: (03) 9888 5977 Editorial Committee those of the Bar Council or the Bar or Facsimile: (03) 98885919 John Kaufman QC, Olyvia Nikou S.C., of any person other than the author. E-mail: [email protected] William F. Gillies, Carolyn Sparke,

4 Editors’ Backsheet The New Despotism

HATEVER the merits or demerits of the invasion of Iraq by the W“coalition of the willing”, and irrespective of the cause of the events of 11 September 2001, it is clear that we are now faced with a major worldwide terrorist problem. In a sense, the die has now been cast, whether on 11 September or earlier, or even later. The reaction of the west, and especially the apparent irrelevancy of the invasion of Iraq, has given a boost to Islamic extremists. Whatever the causes of that problem, there is a danger that in reacting to it and in an attempt to protect our “freedom”, we will in fact sacrifice our freedom. It is 75 years since Lord Hewart published his criticism of unbridled bureaucracy entitled The New Despotism. It is over 50 years since Lord Shawcross in his closing address at rule of law in the name of “freedom” and Reform Commission to be expressing Nuremberg said of the situation where “national security”. concern at the ambit of the “anti- a nation abandoned any pretext at The common law principles relating terrorist” legislation introduced in this observance of the rule of law: to bail and the statements in Magna country since the events of 11 September Carta and in the Bill of Rights appear to 2001. When the state, either because as here its enshrine the principle “nulla poena sine The Australian Law Reform leaders have lusted for power and place, or lege”, the presumption of innocence and Commission has recently released a under some specious pretext that the end the principle of equality before the discussion paper. But it does not appear may justify the means, affronts these things, law. Therefore, one would expect that to be one that it is concerned to curb the they may for a time become obscured the legal profession, acting in a powers of the executive or the excesses of and submerged. But they are imminent responsible and orthodox fashion, would the bureaucracy. It is a paper concerned and ultimately they will assert themselves speak out against special anti-terrorist with “national security”. In that paper it is more strongly still, the imminence more legislation. made clear that the principle of open and manifest. And so, after this ordeal to which One of the most important roles of the fair justice has to be balanced against the mankind has been submitted, mankind lawyer is to act as an independent buffer national security of the state. itself — struggling now to re-establish in between the power of government and It may well be that the price of all the countries of the world the common the rights of the individual. Therefore, “freedom” is the abolition of the rule of simple things — liberty, love, understand- one would assume that provisions for law. But, if that be the case, what is this ing — comes to this court and cries, ‘these detention without trial and limitations on “freedom” we seek to protect? are the laws — let them prevail’. access to legal assistance would have the Once one starts to water down the legal community up in arms. One would rule of law as stated in the Bill of Rights Detention without trial has been certainly expect the Australian Law and Magna Carta, and as since developed fashionable under a number of regimes: by the courts, freedom atrophies. the France of Louis XVI, pre- and post- The state must defend itself from revolutionary Russia; Argentina and terrorists but once the rule of law ceases Uruguay under the Juntas; Nazi Germany Our concern is with the to be sacrosanct then clearly those “who to name but a few. More recently the erosion (at a national and hate freedom” (whoever they may be) French in Algeria and the British in international level) of the have won. Northern Ireland have used detention When there is a special set of rules without trial as a method of fighting rule of law in the name of governing the trial of certain criminals, against those considered to be terrorists. “freedom” and “national and justice for any individual is required Our concern is with the erosion (at a security”. to take second place to the needs of the national and international level) of the nation state, we no longer have a liberal

4 5 democracy merely (if we are lucky) a has watered down the importance of “the whether direct or indirect, upon members choice at the polling booth as to who shall day”. of the judiciary. be our master. It appears that a proposal was put It was for this reason that an forward which would have had the independent tribunal was established to MOVING ADMISSIONS BY NUMBER effect of removing the last vestiges of determine judicial salaries. It is perhaps an inevitable price of recognition of the individual from the The refusal of the Victorian “progress” that there is no longer room admission ceremony. That proposal, as Government to implement the latest — or time — for the gracious things in we understand it, has now been scrapped determination of that tribunal creates life. The sing-a-long around the piano or at least adjourned. At the same time an unfortunate situation. It means that was replaced by the cluster around the the mouthing of the magic formula the executive intends itself to determine radio, by the gawping at television, and “I move that [Alvin Purple Bloggs] be what remuneration is appropriate for now by the solitary person huddled over admitted to practice as a barrister and members of the judiciary. As a matter the computer “talking” to people he or solicitor of this Honourable Court. I so of principle this undermines judicial she has never met. move on the certificate of the Board independence. In the last 50 years university of Examiners” has been abandoned in There is no difference in kind between graduation ceremonies have become favour of a shorter formula: “I so move” refusing to implement a determination more and more impersonal as the need which, while shortening the proceeding, for an increase in judicial salaries and a to “process” more and more graduates detracts in no way from the importance decision to reduce judicial salaries. diminishes the time available for, and the of the individual in the ceremony. Once it is accepted that judicial value attributed to, the individual. We welcome the initiative, which we salaries may be determined by the Some of us still remember that at the believe came from the Bar Council and executive, the executive has the power end of years of study and a year of articles, which has resulted in the saving of the to” punish” a recalcitrant judiciary or to or perhaps in some cases after five years ceremony. “reward” a compliant judiciary. The fact of articles, the time came when we could that members of the judiciary may have actually join the legal profession. It was JUDICIAL INDEPENDENCE sufficient courage and integrity to ignore an important moment in our lives and We have devoted a considerable amount the capacity of the executive to control in the lives of our parents, spouses or of space in previous issues of Bar News their remuneration and, if it so wishes, others who had assisted or borne with us to the question of judicial independence. to do so on the basis of “performance”, during the years preceding admission. It We stress that judicial independence which theoretically could be measured was an important day and one fitting for requires not only that there be no by the number of decisions which pomp and ceremony to reflect our sense interference with the executive (or the implement the policy of the executive is of achievement. legislature) with the judicial process, irrelevant. The very existence of such a The numbers have grown since we but it also requires an inability of the power undermines the independence of were admitted to practice. That, of itself, executive to put pressure of any kind, the judiciary. The issue is not how much Victorian judges and magistrates should be paid. Rather the question is: who should determine this? The clear answer is that it should not be the executive. The only fetter on John Larkins executive power is the power exercised by the judicial arm of government. That furniture power must be exercised free from all actual or potential interference, direct or indirect. The refusal of the state government individually crafted to implement the determination of the judicial remuneration tribunal is a Desks, tables (conference, dining, potentially serious interference with coffee, side and hall). judicial independence. Folder stands for briefs and other items BURIED TREASURE The Editors note with some concern that in timber for chambers and home. a member of the Editorial Board and a regular contributor, Julian Burnside, has been named a “national treasure”. Since Workshop: no one has yet realised the significance 2 Alfred Street, of the editors and each of them, we can North Fitzroy 3068 only assume that we remain “buried treasures”. Like Lassiter’s Reef we lie Phone/Fax: 9486 4341 here (X marks the spot) waiting to be Email: [email protected] uncovered. The Editors

6 7 Chairman’s Cupboard Judges’ Remuneration

HE Victorian Government judges may not be reduced. This is explicit has acted very wrongly in its in section 72(iii) of the Commonwealth Tannounced intention, made public Constitution, and implicit in relation to over the Easter public holiday weekend, State judges. It also includes periodical to reject the salary determination of review to ensure that the remuneration the Judicial Remuneration Tribunal. “is and continues from time to time to be It is to be hoped that the Government sufficient and that it is properly protected will reconsider this decision, and that from reduction and erosion”: Sir Anthony members of Parliament will not vote in Mason, Consultancy Report: System support of the proposed rejection. for the Determination of Judicial Victorian Supreme Court judges now Remuneration (February 2003) paras have the lowest salaries of all Australian 3.3 and 3.26. “Direct reduction of judicial State or Territory Supreme Court judges. remuneration is an obvious violation The carefully considered determination of of judicial independence. An indirect the independent Judicial Remuneration reduction is also a violation of judicial Tribunal would have moved Victorian independence”: Ibid at para 3.4. Supreme Court salaries towards parity In order to ensure a fair determination with the Federal Court and with their and safeguard judicial independence, States and Territories counterparts. The every Australian jurisdiction has a only reason given in the public disclosure process for review of judicial salaries, of the Premier’s announced intention to allowances and leave that is independent reject that determination is that it is “out of government. The Commonwealth of step with community expectations”. citizens … In our democratic tradition, Remuneration Tribunal makes determin- The Premier was quoted as saying, judicial independence has been secured ations for Members of Parliament, “We’re not saying that Victoria’s judiciary by two important conventions. The first is Ministers, senior public servants, other don’t deserve a pay rise, but a salary by providing judges with security of tenure public office holders and federal judges: increase of that size was far beyond … The second is by providing judges with Remuneration Tribunal Act 1973 (Cth) community expectations of a fair and security of remuneration. s.7. The Territories follow federal judicial reasonable wage increase.” It was also salaries. Tasmania has an arithmetical reported that: “The Government is These are not my words. They are formula based on South Australian and considering linking future judicial pay from the Second Reading speech on Western Australian judicial salaries, with rises directly to movements in federal the Judicial Remuneration Tribunal an annual calculation by the Auditor- judicial salaries.” There is an obvious (Amendment) Bill 2001 by the General and automatic adjustment at contradiction in the latter statement, in Attorney-General, Rob Hulls, only a little the beginning of each financial year. that the Judicial Remuneration Tribunal over two years ago. Every other State has an independent determination moved in exactly that Security of remuneration includes tribunal. The New South Wales Tribunal direction, but is, apparently, to be the principle that the salaries of serving was established in 1975. It was not until rejected. twenty years later, in 1995, that Victoria Of course the Government and established its Judicial Remuneration the Parliament have a role in the final The carefully considered Tribunal, and initially that tribunal had decision in relation to judicial salaries. power only to make recommendations, There is, however, a delicate balance to be determination of the not determinations. struck between the three constitutionally independent Judicial It was a matter of notoriety that the separate branches of government, the Remuneration Tribunal Victorian Tribunal recommendations Executive, the Legislature and the “were often overridden by the Judiciary. would have moved Government, leading to controversy”: Victorian Supreme Court Sir Anthony Mason, Consultancy Equality before the law requires the impar- salaries towards parity with Report: System for the Determination tial administration of justice … Impartiality the Federal Court and with of Judicial Remuneration (February requires a judiciary which is independent of 2003) at para 4.47. In 2000, in response both Parliament and the executive arm of their States and Territories to a report of the Victorian Tribunal government. This separation of powers is counterparts. that described the system as “most a precondition of the liberty of individual unsatisfactory”, the Bracks Government

6 7 commissioned an extensive review by allowances or conditions of service; (iv) Victoria was expected to increase from Mr Frank Honan, former Chairman of any other relevant local factors”: section 2.8 per cent in 2002–03 to 3.25 per cent the Public Service Board, and now one 12(1A)(h), Judicial Remuneration in 2003–04: Judicial Remuneration the three members of the reconstituted Tribunal Act 1995. The amendments Tribunal Report No. 2 of 2003, paras Tribunal. That report concluded that also require the Tribunal to take into 52 and 54. The Tribunal noted that, the Victorian Tribunal was the least account “the importance of the judicial apart from the general assertion that independent of any in Australia. function to the community; the need a slowed economy would “impede the In introducing what became the to maintain the judiciary’s standing in State’s capacity to continue to deliver Victorian Judicial Remuneration the community; the need to attract high quality court services to Victoria”, Tribunal (Amendment) Act 2002, the and retain suitably qualified candidates the Government did not address the Bracks Government emphasised the to judicial office; [and] movements in issue of the State’s capacity to meet the connection between the independence judicial remuneration levels in other claimed increases in judicial salaries: of the Tribunal and that of the judiciary: Australian jurisdictions”: section 12(1A) Ibid at para 54. The Tribunal found that “[T]he Honan report found that the (a)–(d). Previously, the Act had not laid the Government’s desire to limit judges, [Tribunal] lacked an appropriate level salaries for consistency with its 3 per of independence and that this had cent public sector wages policy did not the consequence — and this is very take into account specific factors relevant important — of impacting on the judicial The Bracks Government’s to judicial office: Ibid at para 58. independence of Victorian judicial submissions to the Tribunal Most significantly, the Tribunal officers.” included the assertion that found that “the New South Wales and The Bracks Government said there federal jurisdictions are comparable to had been a greater non-acceptance of the Victorian economy Victoria in terms of jurisdiction, nature recommendations on judicial salaries had slowed, although and complexity of cases and workload” by previous Victorian governments than the then most recent (para 45), and that Victorian judicial in any other Australian jurisdiction. It (December 2003) Victorian officers were performing similar duties described the process of the previous and at a comparable standard to their Liberal Government in rejecting Tribunal Economic News indicated counterparts in other jurisdictions recommendations as “nothing short of that economic growth in (para 57). The Tribunal found that scandalous”. “The overall purpose [of the Victoria was expected to the Government had failed to present amendments] is to ensure that Victoria any argument why Victorian judicial has an independent judiciary, unfettered increase. officers should be paid less than their by political interference.” “[I]n its new counterparts: para 57. structure, the [Judicial Review Tribunal] down any criteria, providing simply that When the Tribunal wrote its report, it will be more independent. We need an the Tribunal was to “inform itself in such did not have the most recent adjustments independent structure determining manner as it thinks fit; and may receive in Queensland and Tasmania. The judicial salaries, allowances and leave written or oral statements” and to “report Queensland determination was tabled entitlements for judges.” … on the question whether any [and if so in Parliament on 6 April 2004. The Significantly, the 2002 amendments what] adjustments are desirable”: sections Tasmanian adjustment that will take vested in the Tribunal responsibility and 12(1)(a) & (b), 11(1) and 13(2). effect 1 July is calculable as a matter of power to assess and take into account The Bracks Government’s submissions arithmetic. “factors relevant to Victoria, including to the Tribunal included the assertion Every Australian jurisdiction except (i) current public sector wages policy; that the Victorian economy had Victoria has implemented, or is implemen- (ii) Victoria’s economic circumstances; slowed, although the then most recent ting (the Queensland Tribunal has (iii) the capacity of the State to meet (December 2003) Victorian Economic indicated parity over four rather than a proposed increase in judicial salaries, News indicated that economic growth in three years), parity with the federal

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8 9 jurisdiction following the exhaustive statement on this issue that the message and holidays”. The Age quoted a senior review by the Commonwealth Remuner- she has from her “listening tour” is that Supreme Court judge as saying, “I ation Tribunal in November 2002. the community wants the Supreme Court start at 7 a.m., go home at 7:30 p.m. The present Victorian Supreme Court to be the best in the country, and she and do another three hours at night. judge’s salary of $227,100 is now, and asks, “How can I achieve that when the At weekends, I’m lucky to get three- unless increased will continue to be, the government acts in this way?” The other quarters of a day off. It is terrible for lowest in the whole of Australia by about heads of courts and VCAT supported the the family. At the same time, there is $30,000. It will be $37,449 less than the Chief Justice’s statement. tremendous satisfaction in the job. It’s a salary of a Tasmanian Supreme Court The Government’s intention to reject very privileged position.” judge, and about $31,000 less than the the Tribunal recommendation was made The Government’s vague (“out of salary of a New South Wales Supreme public in the Herald Sun on Saturday step with community expectations”) Court judge or a Federal Court judge. 10 April 2004, during the Easter public and contradictory (“The Government is Repeatedly the Government has holiday long weekend. I spoke to ABC considering linking future judicial pay voiced its commitment to getting “the News Radio, and my comments were rises directly to movements in federal best and brightest legal minds on judicial salaries”) statements so far made [Victorian] judicial benches”. In 2003, public do not justify the announced the section 75B of the Constitution intention to reject the well informed Act 1975 was amended to permit Victoria cannot expect to and carefully reasoned determination appointment an interstate practitioner continue to attract or retain of the Judicial Remuneration Tribunal. or judge not admitted in Victoria as a “the best and brightest The Premier is apparently to meet with judge of the Victorian Supreme Court. the heads of courts and VCAT. It is to be The Government called throughout legal minds” on the lowest hoped that meeting will be productive, Australia for expressions of interest Supreme Court judicial and that the Government will reconsider in appointment as Chief Justice of the salaries in the whole of its position. If not, individual Members of Victorian Supreme Court. Australia. Parliament should take responsibility for The Bracks Government has now scrutinising the basis for any resolution appointed the heads of all three to disallow the Tribunal determination. Victorian Courts and of VCAT, Chief Justice Marilyn Warren, Chief Judge included in the ABC radio news bulletins BAR DINNER Michael Rozenes, Chief Magistrate that morning. I gave an interview to On a more cheerful note, this year’s Bar Ian Gray and VCAT President Justice ABC Television News, and part of that Dinner will be held at Zinc in Federation Stuart Morris. All are regarded as first interview was included in the television Square on Saturday 29 May. Last year’s class appointments. At Chief Justice news on Saturday evening. I issued a dinner was a huge success. This year’s Warren’s welcome, the Attorney-General media release on Tuesday April 13. I have dinner promises to be as good, or even referred to the legislative broadening of made comments to numerous reporters. better. Dr Kristine Hanscombe S.C. is qualifications, and to the advertising. He With Law Institute of Victoria President, Junior Silk. Justice Simon Whelan is observed that Chief Justice Warren was Chris Dale, I have sought an appointment the after dinner speaker. The Frank the first Chief Justice “to be appointed with the Premier to discuss the matter, Walsh Vicbar All-Stars will play and from an unprecedentedly wide pool of and Chris Dale and I have written joint Sarah Fregon will sing. Speeches will be candidates”. letters to the Premier and to each brilliant, but short. I encourage members Victoria cannot expect to continue to member of Parliament. to come, and to book early. Last year’s attract or retain “the best and brightest Chief Justice Warren has described dinner was a sellout. legal minds” on the lowest Supreme Court the hard work of Supreme Court judges: judicial salaries in the whole of Australia. “around 60 hours per week, some even Robin Brett QC Chief Justice Warren said in her public 70 hours or more, and on weekends Chairman

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8 9 Attorney-General’s Column Justice Statement a “Groundbreaking Analysis of the Attorney-General’s Entire Portfolio”

OR those of us who work every and of life in Victoria. The Statement day in and amongst the law, the recognises that justice intersects Fprinciples on which it is based with economics, infrastructure, the seem self-evident. For those who environment, education and community practice in a specific area, from criminal services; and that it impacts on the to discrimination law, its virtues and opportunities that Victorians confront, shortcomings are obvious. Across the and on their confidence to embrace such spectrum of the legal system, we discuss opportunities and to avoid the traps of the successes and the challenges that we alienation, disadvantage and self-doubt. perceive before us on a daily basis. Yet Just as crucially, the Justice Statement absent from this field is a place for these is grounded in a declaration of the value discussions to converge — an opportunity of the rule of law, and constructed on the for us to examine the breadth of the basis of four values which the Government legal system, its impact on the lives of believes are fundamental to a properly all Victorians, and to articulate what it functioning democratic society: equality is that we value about the law and why. and the role of an independent judiciary Nowhere has there been, until now, a site in protecting this equality; fairness; at which we can appraise the need for accessibility and effectiveness. reform or improvement with the benefit With this background and these values of detailed context and collaborative in mind, the Statement will be guided insight. by the themes of “Modernising Justice” That is why the Justice Statement is every thing we do, harnessing creativity and “Protecting Rights and Addressing an exciting, and fairly radical, exercise. and flexibility, and ensuring that the law Disadvantage” to consider possibilities To be released in the coming months, the is capable of delivering justice to the most for modernising criminal law and Justice Statement is a groundbreaking marginalised sectors of the community. procedure, civil disputes, the Courts and analysis of the Attorney-General’s entire Importantly, the Justice Statement the Legal Profession; and for protecting portfolio. It involves a vision for our recognises that justice should be human rights; addressing the causes of justice system that goes beyond our reflected in people’s daily lives and over-representation of disadvantaged time in office and focuses on the greater interactions, that it has something to groups in the criminal justice system; benefit of the community rather than say about every facet of Government improving responses to victims of crime on political point scoring. It is the most and improving legal information, advice comprehensive analysis ever undertaken and assistance. of the way our system operates, and the Detailed consideration of subjects first time that every stakeholder within The Statement will be of such complexity and depth will my portfolio has been brought together to guided by the themes of obviously serve as a platform for the evaluate the forces that will affect them in “Modernising Justice” and announcement of numerous proposals, the coming decades and identify ways to which I do not wish to pre-empt here. make their services meaningful to every “Protecting Rights and Equally importantly, however, I hope that Victorian. In short, the Justice Statement Addressing Disadvantage” the Statement prompts unprecedented is about taking a holistic approach to discussion across Government, the

10 11 profession and the courts, and within the are available and adaptable to the needs every member of the community with wider community, about the kind of legal and particular vulnerabilities of the a map and signalling openly the terrain system we want for Victoria in the 21st disputants. Perhaps most importantly, which Justice will explore in the short century. this is my belief because I am convinced and the long term future. In doing so, As just one of many examples, an that the law can only benefit where the Statement urges the participation of area that I believe is ripe for discussion parties feel they have participated in all those who feel passionate about the and scrutiny is the area of civil disputes the decisions that will ultimately affect protections and the possibilities of the and, within it, the subject of appropriate, them. law. I encourage all of you to take the or alternative, dispute resolution. All More and more people share this time to read the Statement and reflect, societies need to find effective ways belief, and the use of ADR has grown and I look forward to numerous lively for resolving disputes between their exponentially across the State and discussions in the years ahead. members. While these disputes may around the country over the last 25 years be private, Governments still play an or so. However, this growth has not been Rob Hulls important role in establishing the means accompanied by a systematic or planned Attorney-General development, or even by a consistency on the part of those who facilitate or assist in these resolution processes. Consequently, It is my belief that the methods currently used range from starting point for the neighbourhood processes designed to resolution of any civil minimise formality; through private and court-based mediation to fully fledged dispute should be the commercial arbitration proceedings. TAILORING lowest possible level of Some providers belong to professional intervention. associations, while others engage in ADR Suits tailored to measure as part of other professional activity, a breadth which makes it impossible to Alterations and invisible by which these disputes can be resolved quantify the level of demand for these mending in order that the rule of law may be types of services. effective and justice be achieved. We need to have a discussion within Quality off-rack suits As readers of this journal have learned the Victorian community about what Repairs to legal robes to their mutual benefit, the traditional we want from dispute resolution and method of dispute resolution has been how best to cement and improve the Bar jackets made to order adversarial and highly dependent on myriad methods available. Consequently legal advocacy to navigate the law’s the Justice Statement will undertake to complexities. While this method is most promote this discussion, in order that appropriate for more complex matters, it appropriate dispute resolution methods is my belief that the starting point for the are made more accountable, accessible LES LEES TAILORS resolution of any civil dispute should be and effective for every Victorian. Shop 8, 121 William Street, the lowest possible level of intervention. This is just one path among many down Melbourne, Vic 3000 This is my belief because of the which my portfolio will head over the Tel: 9629 2249 enormous value I see in minimising the coming years and, as with the many other Frankston costs of disputes, in providing more undertakings in the Justice Statement, I Tel: 9783 5372 efficient resolution and in ensuring that am convinced it will be a fruitful one. The non-adversarial processes and remedies Justice Statement is unique, providing

10 11 Practice Note Legal Practice Act 1996 Determination of Contributions to Fidelity Fund for the Period 1 July 2004 to 30 June 2005

HE Legal Practice Board, acting under Division 1 of Part 7 of the Legal Practice Act 1996 has determined that the classes of Tpersons required to pay a contribution and the contribution payable by members of each class, for the period 1 July 2004 to 30 June 2005, are as set out below. Approved Clerks, Interstate and Foreign practitioners must pay any contribution to the Legal Practice Board by 30 June 2004. All other practitioners must pay any required contribution to the Law Institute of Victoria by 30 April 2004.

Fidelity Fund Contribution Rates 2004/2005

Class of Persons Contribution AUTHORISED TO RECEIVE TRUST MONEY 1. An approved clerk or the holder of a practising certifi cate that authorizes the receipt of trust money (other $210 than an incorporated practitioner) who received, or was a partner or employee of a fi rm, or a director or employee of an incorporated practitioner that received trust money exceeding $500,000 in total during the year ending on 31 October 2003. 2. An approved clerk or the holder of a practising certifi cate that authorizes the receipt of trust money (other $105 than an incorporated practitioner) who received, or was a partner or employee of a fi rm, or a director or employee of an incorporated practitioner that received trust money not exceeding $500,000 (i.e. $0–$500,000) in total during the year ending on 31 October 2003. INTERSTATE AND FOREIGN PRACTITIONER 3. An interstate practitioner or a foreign practitioner (not including a body corporate) who has established a $210 practice in Victoria within the meaning of section 3A of the Act and received, or was a partner or employee of a fi rm, or a director or employee of an incorporated practitioner that received trust money in Victoria, exceeding $500,000 in total during the year ending on 31 October 2003. 4. An interstate practitioner or a foreign practitioner (not including a body corporate) who has established a $105 practice in Victoria within the meaning of section 3A of the Act and received, or was a partner or employee of a fi rm, or a director or employee of an incorporated practitioner that received trust money in Victoria, “not exceeding” $500,000 (i.e. $0–$500,000) in total during the year ending on 31 October 2003. EMPLOYEE PRACTISING CERTIFICATE AND NOT AUTHORISED TO RECEIVE TRUST MONEY 5. The holder of a practising certifi cate that authorises the person to engage in legal practice as an employee $50 but holds a practising certifi cate that does not authorise the receipt of trust money “and” who is employed by a legal practitioner or fi rm that is authorized to receive trust money. EXEMPT PRACTITIONERS 6. Corporate practitioners, sole practitioners not authorised to receive trust money, employee practitioners NIL employed by a legal practitioner or fi rm not authorized to receive trust money and employees at community legal centres are not required to make a contribution.

THE ESSOIGN Open daily for lunch See blackboards for daily specials Happy hour every Friday night: 5.00–7.00 p.m. Half-price drinks Great Food • Quick Service • Take-away food and alcohol. Ask about our catering.

12 13 Practice Note Legal Profession Tribunal — Publication of Orders

NDER section 166 of the Legal Practice Act 1996, (‘the practitioner commenced work on a direct access Act’) the Victorian Bar Inc (‘the Bar’), as a Recognised brief before both the practitioner and his client UProfessional Association, is required to provide the had executed standard terms of engagement following information in relation to orders made by the Legal approved by the Victorian Bar Council and Profession Tribunal (‘the Tribunal’) against its regulated completed that work without such terms ever practitioners: having been executed. (iii) Charge 3 — in wilful or reckless contravention Name of practitioner: James Jackson Isles (‘the practitioner’) of rule 177 of the Bar’s Rules of Conduct the 1. Tribunal Findings and the Nature of the Offence practitioner failed to pay certain fees for direct (a) Findings access work into a trust account established The Full Tribunal found the practitioner guilty of: pursuant to the Act in circumstances where he (i) Charge 1 — misconduct as defined by paragraph had not forwarded a memorandum of fees to the (a)(i) of the definition of ‘misconduct’ in section client. 137 of the Act by wilful contravention of rule (iv) Charge 4 — the practitioner persistently accepted 188 of the Bar’s Rules of Conduct in that the briefs from or on behalf of the complainant firm of practitioner received cash from various clients solicitors without delivery of a backsheet in wilful on account of fees which did not pass through the or reckless disregard of an instruction or direction hands of his clerk. from its principal that he accepts briefs from the (ii) Charge 2 — unsatisfactory conduct as defined by firm only upon delivery of a backsheet. paragraph (b) of the definition of ‘unsatisfactory The practitioner pleaded guilty to the charges. conduct’ in section 137 (b) of the Act in that the 2. The Orders of the Full Tribunal made on 15 October 2003 practitioner contravened rule 176 of the Bar’s were as follows: Rules of Conduct by commencing work on a (i) In relation to Charge 1 the practitioner is direct access brief before both the practitioner reprimanded and fined the sum of $5,000.00 and his client had executed standard terms payable to the Legal Practice Board by 14 of engagement approved by the Victorian Bar December 2003. Council and completed that work without such (ii) In relation to Charges 2, 3 and 4 the practitioner is terms ever having been executed. reprimanded. (iii) Charge 3 — misconduct as defined by paragraph (iii) The practitioner is to pay the Bar’s costs of and (a)(i) of the definition of ‘misconduct’ in section incidental to these proceedings to be assessed by 137 of the Act by wilful contravention of rule the Registrar or Deputy Registrar of the Tribunal 177 of the Bar’s Rules of Conduct in that the in failure of agreement. practitioner failed to pay fees for direct access 3. As at the date of publication no notice of appeal against the work into a trust account established pursuant Orders of the Full Tribunal has been lodged. The time for to the Act in circumstances where he had not service of such notice has expired. forwarded a memorandum of fees to the client. (iv) Charge 4 — unsatisfactory conduct as defined by Name of practitioner: Damian Peter Sheales (‘the practitioner’) paragraph (ab) of the definition of ‘unsatisfactory 1. Tribunal Findings and the Nature of the Offence conduct’ in section 137 of the Act in that in (a) Findings disregard of an instruction from the principal of The Full Tribunal found the practitioner guilty of: a firm of solicitors the practitioner persistently (i) Charge 1.1 (i) — unsatisfactory conduct as defined accepted briefs from that firm without delivery of in paragraph (b) of the definition of ‘unsatisfactory a backsheet. conduct’ in section 137 of the Act in that in breach (b) Nature of the Offence of rule 106 of the Bar’s Rules of Conduct he failed (i) Charge 1 — in wilful or reckless contravention to inform his instructing solicitor there was a real of rule 188 of the Bar’s Rules of Conduct the possibility he would be unable to appear in Court practitioner received from various clients amounts to conduct the case. on account of fees which did not pass through the (ii) Charge 1.1 (ii) — misconduct as defined by hands of his clerk. paragraph (a)(i) of the definition of ‘misconduct’ (ii) Charge 2 — in wilful or reckless contravention in section 137 of the Act by reckless contravention of rule 176 of the Bar’s Rules of Conduct the of rule 108 of the Bar’s Rules of Conduct in that

12 13 he handed over his brief to another counsel grounds to believe that there was a real to conduct the case without the knowledge or possibility that he would be unable to attend consent of the instructing solicitor. when the proceeding was mentioned before (iii) Charge 2.1 (d) — misconduct at common law in the Court on 20 September 2001; that he requested his clerk to send tax invoices (ii) further or in the alternative, wilfully or to his instructing solicitor claiming a fee for recklessly in breach of rule 108 of the appearances he had not made. Bar’s Rules of Conduct handed the brief to (iv) Charge 3.2 (a) — misconduct at common law in another counsel without the knowledge or that he received from his instructing solicitor a consent of the complainant. fee on the basis of a false representation he had (ii) Charge 2.1 — the practitioner is guilty of appeared in Court when he had not appeared. misconduct at common law within the meaning (v) Charge 4.1 — misconduct as defined by paragraph of paragraph (a) of the definition of ‘misconduct’ (a)(i) of the definition of ‘misconduct’ in section in section 137 of the Act in that the conduct 137 of the Act by reckless contravention of rule alleged is such that a practitioner of good repute 108 of the Bar’s Rules of Conduct in that he and competency would regard it as disgraceful handed over his brief to another counsel without or dishonourable in that he requested the the knowledge or consent of the instructing clerk to send a tax invoice to the complainant solicitor. which represented to the complainant that the (vi) Charge 4.3 (a) — unsatisfactory conduct as practitioner had appeared for the client on 20 defined by paragraph (ab) of the definition of September 2001 and that he was entitled to claim ‘unsatisfactory conduct’ in section 137 of the Act a fee in the sum of $2,200.00 including GST for in that having undertaken to pay another counsel’s that appearance when in fact he had no such fees agreed upon he failed to do so. entitlement. (vii) Charge 4.3 (b) — misconduct at common law in (iii) Charge 3.2 — the practitioner is guilty of that he was paid fees by the instructing solicitor misconduct at common law within the meaning on the basis that he had appeared in Court when of paragraph (a) of the definition of ‘misconduct’ he had not appeared. in section 137 of the Act in that the conduct (viii) Charge 5.1 — unsatisfactory conduct as defined in alleged is such that a practitioner of good repute paragraph (ab) of the definition of ‘unsatisfactory and competency would regard it as disgraceful or conduct’ in section 137 of the Act in that he dishonourable in that the practitioner received failed to comply with the instructing solicitor’s from the complainant the sum of $2,200.00 on reasonable requests for information concerning the basis of the false representation that he had the progress of his work in relation to the brief. appeared for the client on 20 September 2001. (ix) Charge 8.1 (a), (b), (c) and (d) — misconduct at (iv) Charge 4.1 — the practitioner is guilty of: common law in that knowing the case was listed in (a) misconduct within the meaning of paragraph Court in Sydney on 30 November 2001 he — (a)(i) of the definition of ‘misconduct’ in 1. did not travel to Sydney; section 137 of the Act; or 2. did not appear for the client; (b) unsatisfactory conduct within the meaning 3. handed the brief to appear to another counsel; of paragraph (b) of the definition of 4. agreed upon a fee to be paid by the practitioner ‘unsatisfactory conduct’ in section 137 of to the other counsel. the Act; (x) Charge 10 — unsatisfactory conduct as defined in in that he, having been briefed by the complainant paragraph (b) of the definition of ‘unsatisfactory to appear for the client on each occasion that conduct’ in section 137 of the Act in that he the committal proceeding was before the Court contravened rule 74 (b) of the Bar’s Rules of wilfully or recklessly in breach of rule 108 of the Conduct by failing to reply to correspondence Bar’s Rules of Conduct handed the brief to another from the Ethics Committee within the time counsel for the purpose of appearing on behalf of limited. the client when the proceeding was mentioned (b) Nature of the Offences before the Court on 30 November 2001 without (i) Charge 1.1 — the practitioner is guilty of: the knowledge or consent of the complainant. (a) misconduct within the meaning of paragraph (v) Charge 4.3 — the practitioner is guilty of (a)(i) of the definition of ‘misconduct’ in misconduct at common law within the meaning of section 137 of the Act; or paragraph (a) of the definition of ‘misconduct’ in (b) unsatisfactory conduct within the meaning section 137 of the Act in that he: of paragraph (b) of the definition of (a) having undertaken to pay to the other ‘unsatisfactory conduct’ in section 137 of counsel the amounts agreed, failed to do so the Act; within a reasonable time or at all; in that he, having been briefed by the complainant (b) had been paid amounts by the complainant to appear for the client on each occasion that the on the basis that he had appeared personally proceeding was mentioned in Court (‘the brief’): on 20 September 2001, and was later paid (i) wilfully or recklessly in breach of rule 106 of a further amount of $2,200.00 on the basis the Bar’s Rules of Conduct failed to advise that he had appeared for the client before the complainant that he had reasonable the Court on 30 November 2001.

14 15 (ix) Charge 5.1 — the practitioner is guilty of: (viii) Charge 5.1 — the practitioner is reprimanded. (a) misconduct within the meaning of paragraph (ix) Charge 8.1 (a), (b), (c) and (d) — the practitioner (a) of the definition of ‘misconduct’ in is reprimanded and his practising certificate is section 137 of the Act; or (b) unsatisfactory suspended for a period of three (3) months. conduct within the meaning of paragraph (x) Charge 10 — the practitioner is reprimanded. (b) of the definition of ‘unsatisfactory (xi) The practitioner is ordered to pay to the Bar its costs conduct’ in section 137 of the Act: of and incidental to the hearing fixed by the Full in that he failed in breach of section 92 of the Tribunal in the sum of $68,000.00. Act to comply with the reasonable requests of 3. As at the date of publication no notice of appeal against the the complainant to provide to the complainant Orders of the Full Tribunal has been lodged. The time for information concerning the progress of work in service of such notice has expired. relation to the brief. (x) Charge 8.1 — the practitioner is guilty of Name of practitioner: Julian Rohan Hamilton misconduct at common law within the meaning of (‘the practitioner’) paragraph (a) of the definition of ‘misconduct’ in 1. Tribunal Findings and the Nature of the Offence section 137 of the Act, in that the conduct alleged (a) Findings is such that a practitioner of good repute and The Full Tribunal found the practitioner guilty of competency would regard it was disgraceful or unsatisfactory conduct as defined by paragraph (b) of dishonourable in that: the definition of ‘unsatisfactory conduct’ in section 137 (a) he had not travelled to Sydney on 30 (b) of the Act in that he contravened rule 4 of the Bar’s November 2001 for the purpose of fulfilling Rules of Conduct. his obligations to the client in relation to the (b) Nature of the Offence brief; The practitioner contravened rule 4 of the Bar’s Rules (b) he had not appeared before the Court on of Conduct by communicating with the person charged behalf of the client on 30 November 2001; at the Victorian Civil and Administrative Tribunal with (c) he had handed the brief to another counsel hearing and determining a case during the course of for the purpose of making the appearance; the proceedings. (d) he had agreed with the other counsel upon a 2. The Orders of the Full Tribunal made on 18 December 2003 fee to be paid to the other counsel by him. were as follows: (xi) Charge 10.1 — the practitioner is guilty of: (i) The appeal by the practitioner against the decision of (a) misconduct within the meaning of paragraph the Deputy Registrar of the Tribunal of 25 July 2003 is (a)(i) of the definition of ‘misconduct’ in allowed. section 137 of the Act; or (ii) The Orders of the Deputy Registrar of 25 July 2003 are (b) alternatively, of unsatisfactory conduct set aside. within the meaning of paragraph (a) of (iii) The practitioner is reprimanded. the definition of ‘unsatisfactory conduct’ in (iv) The practitioner is to undertake a course of section 137 of the Act: counselling and education on the subject of the ethics in that he wilfully or recklessly contravened rule of barristers including the expression of those ethics 47(b) of the Bar’s Rules of Conduct by failing in the current Rules of Conduct of the Bar. The course to respond to correspondence from the Ethics is to be as directed by the Chairman for the time Committee. being of the Continuing Legal Education Committee 2. The Orders of the Full Tribunal made on 10 December 2003 of the Victorian Bar Council (‘the Chairman’) or his were as follows: authorised deputy. If required to do so by the Victorian (i) Charge 1.1 (i) — the practitioner is reprimanded. Bar Council, the Chairman or his authorised deputy is (ii) Charge 1.1 (ii) — the practitioner is reprimanded. to report to the Victorian Bar Council on the nature (iii) Charge 2.1 (d) — the practitioner is reprimanded and of the course of counselling and education required his practising certificate is suspended for a period of and whether or not the practitioner has satisfied those three (3) months. requirements. (iv) Charge 3.2 (a) — the practitioner is reprimanded and (v) The practitioner is to pay to the Bar its costs of and his practising certificate is suspended for a period of incidental to the proceedings before the Deputy three (3) months. Registrar and the Full Tribunal fixed by the Full (v) Charge 4.1 — the practitioner is reprimanded and his Tribunal in the sum of $3,500.00. practising certificate is suspended for a period of three (vi) Stay of 90 days for payment of the costs. (3) months. 3. As at the date of publication no notice of appeal against the (vi) Charge 4.3 (a) — the practitioner is reprimanded. Orders of the Full Tribunal has been lodged. The time for (vii) Charge 4.3 (b) — the practitioner is reprimanded and service of such notice has expired. his practising certificate is suspended for a period of three (3) months.

14 15 Welcome Federal Court Justice Susan Crennan

Honour’s reading was a fairly standard instituted an occasional award with Sydney Friday morning in the equity the title of “Invisible Nominal Junior”. jurisdiction for Dr Bennett. He was due There were often a number of contenders to appear in fifteen matters before five but Your Honour — and I have to say different judges sitting simultaneously. Justice Finkelstein — were usually the Dr Bennett gave Your Honour six of these winners. mentions to do alone in five courts. This Your Honour had two readers — Colin assignment, daunting already, was no Golvan S.C. and John Billings, who is now doubt made even more daunting by the Deputy President of VCAT. Your Honour fact that Your Honour had only ever been took silk in 1989, a very early appointment inside a courtroom once at that stage, that reflected Your Honour’s rapid rise to having begun reading immediately after leadership at the Bar. Counsel who have the completion of Your Honour’s law appeared as juniors with Your Honour degree. speak of Your Honour’s extraordinary A year later in March 1980, Your organisation and thoroughness and how Honour signed the Victorian Bar Roll, much they learned working closely with having completed your reading. In Your Honour. They speak also of Your Melbourne, Your Honour had a further Honour’s generosity in praising their short period of reading with Fred Davey, work to the instructing solicitors. now Judge Davey of the County Court. Your Honour has argued a number of Your Honour practised extensively in constitutional cases, both as junior and intellectual property law. However, Your silk since taking silk. Your Honour was, for Honour also developed a wide general example, in the landmark section 92 case The first women to be appointed practice which included everything from of Cole v Whitfield, led by the Victorian prosecuting white collar crime — the Solicitor-General Hartog Berkeley QC as Chairman of the Victorian Bar Pyramid Building Society directors — to and Brian Shaw QC. Your Honour has Council, Susan Crennan, was on constitutional law, administrative law, had complex cases concerning the 3 February 2004, sworn in as a arbitrations, mediations, construction privatisation of infrastructure, such as member of the Federal Court and engineering law, extradition and the arbitration in Varnsdorf v Fletcher, of Australia. We set out below appeals, including criminal appeals, as and Murraylink which Your Honour did well as all aspects of commercial law. last year. the speech of Welcome given on As a junior, Your Honour continued the Your Honour has had a number of behalf of the Victorian Bar by practice of juggling multiple appearances important appeals, most recently Tahche, the Chairman of the Bar Council, that had commenced so spectacularly on in which Your Honour represented the Robin Brett QC. your first day. Indeed, Your Honour was Victorian Director of Public Prosecutions one of a number of very busy juniors who in the Court of Appeal and in the High engaged in this sport and consequently Court. In denying special leave the AY it please the Court. It’s a sometimes have found themselves High Court accepted Your Honour’s particular honour and pleasure jammed and unable to appear with their submissions that standards of fairness by Mfor me to welcome Your Honour leaders. the Crown are not directly enforceable by Justice Crennan on behalf of the Victorian Your Honour was once embarrassed the accused or anyone else by prerogative Bar and of the Australian Bar Association by having cases in Sydney and Melbourne writ, judicial order or action for damages and to extend warmest congratulations on the same day; one with the then — a matter of some significance to upon Your Honour’s appointment as a Chairman of the Victorian Bar, now barristers who prosecute for the Crown. judge of this Court. The President of Justice Chernov; the other with the then Although Your Honour has been a the ABA, Mr Ian Harrison, is in court in President of the Sydney Bar, now Justice leader in cases relating to scientific Sydney this morning and has asked me Gyles, both of whom are present in Court processes, Your Honour has never claimed to convey his regrets at not being able to today. Melbourne yielded to Sydney and a high degree of practical technological be here, and his personal best wishes and Justice Chernov appeared alone and was skill. During the Varnsdorf arbitration, congratulations. very understanding. for example, which concerned some It was in the first week of February Alan Goldberg QC, as His Honour gas-fired turbine electricity generators, 1979, 25 years ago to be exact, that Your Justice Goldberg then was, who also Your Honour was on a view of one of Honour signed the New South Wales frequently led Your Honour, was so the engines in company with engineers Bar Roll. Your Honour’s master was Dr impressed by the ability of his juniors from the United States. Your Honour David Bennett. The very first day of Your to accept multiple briefs that he managed, inadvertently, to lean against

16 17 the emergency stop button, shutting Independent Compensation Panel of the down the entire plant. The major issue in Archdiocese of Melbourne, and a member that case was Your Honour’s client’s claim of the advisory board for the Graduate of interruptions in the availability of the Program in Intellectual Property at the plant. The weekly availability report for Melbourne Law School. For a number that particular engine recorded “plant of years, Your Honour was a member stopped by QC”. of the Royal Women’s Hospital Ethics In 1993, Your Honour was the first Committee, and the Board of the woman elected Chairman of the Victorian Australian Book Review. Bar. Your Honour was a courageous and Your Honour’s husband Michael is effective leader in very difficult times. a senior counsel at the Victorian Bar. Under Your Honour’s leadership, the Bar Your son Daniel is also at the Bar. One Council introduced significant reforms, daughter, Brigid, is an historian and including the introduction of limited writer. Your other daughter, Kathleen, direct access and co-advocacy. Those is studying arts and law at the University reforms were not without considerable of Melbourne. Your Honour’s children are controversy. Perhaps most notably, Your in Court today, as is the senior of two Honour led the way in constructively grandchildren. Your Honour’s mother addressing the serious issues of access to and your five brothers and sisters are justice by establishing a scheme for pro also here to celebrate Your Honour’s bono legal assistance in civil cases. The appointment. Your Honour’s father, sadly, Law Institute supported and joined the died some years ago, but not before he Bar in the project and the government had seen Your Honour well established. bravado got the better of young Stephen. supplied seed capital. David Bennett once described Your In the days when a fountain pen was a In 1994, Your Honour became the Honour as not at all a frivolous young necessary part of early education, and first woman President of the Australian person. Although those who have perhaps to show his bravery in the face Bar Association. Your Honour has been attended Your Honour’s St Patrick’s Day of disbelief, he up-ended a bottle of Swan described as a vigorous President who parties and been greeted at the door by blue ink — in his mouth. Some old friends fostered national discussion on public Your Honour beating a bodhran, which knew him as “Kaye, the blue-tongued interest pro bono work. At the Bar, in is an Irish drum, might initially think lizard”. addition to service on the Bar Council otherwise. A moment’s reflection on He proceeded to Monash University and committees, most recently on Justice the breadth and depth of Your Honour’s where he undertook a combined course Nettle’s continuing legal education achievements shows that Bennett was in arts and law. He graduated Bachelor committee, Your Honour has served as a quite correct. of Arts in 1972 and Bachelor of Laws senior mentor and taught equity regularly The Victorian Bar and all of the (with First Class Honours) in 1974, in the Readers’ course. independent Bars of Australia wish sharing the Supreme Court Prize. During Outside the Bar, Your Honour is Your Honour a long, distinguished and his law course he won the prizes for a member of the Council of the Univers- satisfying service as a judge of this Court. the top student in the law of contract, ity of Melbourne, Chairman of the May it please the Court. administrative law, property law and constitutional law. As a student at Monash University, he was known for his modesty, indeed humility, and excellence. When asked how he went in an exam, he would always say “I’m hopeful I’ll pass, with a bit Supreme Court of luck”, but inevitably he came through with a fine result, in many instances topping the subject. Justice Stephen Kaye He was articled to Mr G.E. (Eric) Permezel of Blake & Riggall and was admitted to practice in April 1975. He HE appointment of Stephen Stephen Kaye was born in Victoria on continued to work as a solicitor at Blakes Kaye QC as a judge of the Supreme 13 December 1951, the son of William for another year after admission, signing TCourt on 16 December 2003 was a Kaye, of counsel (as he then was) and the Bar Roll on 26 February 1976. great loss to the Bar and a huge gain to Henrietta Kaye, neé Ellinson). He read with John Winneke QC (now the Bench of the Court. He attended Scotch College, Winneke P of the Court of Appeal). He His Honour was one of the few Melbourne, matriculating in 1968 and had various chambers beginning with the generalists practising at the Bar, and was awarded the prize for Dux of the salubrious Hooker chambers, with other won the respect of the Bench, the Bar School, achieving four first class honours, struggling but now eminent barristers, and the solicitors of Victoria. He is the a special distinction in Latin and a such as Burnside QC, and finally moving second Kaye J to grace the Bench of the distinction for General Excellance. into a room on the 5th floor of ODCW Supreme Court and, it is hoped, not the But it was not all plain sailing. As when that building opened in 1986. last. a junior school boy at Scotch College, He had seven readers, Philip Marzella,

16 17 Richard McGarvie, Gary Cazalet, Maree He is a keen supporter of the promoting our collegiate spirit. The “open Kennedy, Warren Mosley, Boyd Cohen Hawthorn Football Club and played door policy” had real meaning for him. and Kerri Judd. They all testify to his footy himself for many years for the Old Many junior and not so junior barristers Honour’s industry, generosity and sound Trinity Football Club. How he came to would appear unannounced at his door advice. play for that club remains a dark secret. for counsel and assistance. Mostly he At the Bar, his work took him to He was an aggressive and competitive would give them time there and then. If all fields, although predominantly in sportsman, but always with a sense of he couldn’t immediately assist, he would the civil area. In his typically modest fun and fairness. He went in hard, indeed always remember to give the inquirer a way, he described his practice as a so hard that he injured himself in many call when he was free to do so. general practice in civil law, personal ways. He represented many fellow barristers injury (including medical negligence), He is a great family man and a loyal before the Ethics Committee and the commercial law, defamation and criminal friend. He met his wife Karen following Tribunal. After one such effort a “stack” law. a severe break of his leg brought about of cases of wine appeared in the middle In truth Stephen Kaye specialized by his ferocious approach to amateur of his chambers as a tribute to his in many areas. His skill in the area of football, playing for the Old Trinity advocacy. defamation was profound. His ability Football Club. The break was very severe Stephen was a member of List B, and to deal with difficult questions in and he was laid up in the Royal Melbourne was a tower of strength through the final many areas was remarkable, from wills Hospital. Karen was working at the Royal illness of Barry Stone, both to Barry and to property law, personal injury to Melbourne Hospital and by pure chance his wife. He was a member of the List professional negligence, insolvency to was with a cousin of Stephen’s at the Committee for a number of years and a insurance, administrative law to general time of a visit. That was the spark that great supporter of Michael Green as the contract, crime to family law. Given time lit a wonderful marriage. It also ended his new clerk, providing loyal and dedicated to prepare, there is nothing he could football career. Not before time. There is assistance in his new role. not, indeed did not, turn his hand to. His hardly a body part that he didn’t injure: He is a dedicated walker. Most preparation was a legend. Every case was back, arms, legs, head, nose, and all bits mornings he can be seen vigorously given his absolute commitment. between. exercising around his home patch in Kew. As a junior he appeared in some Stephen and Karen have four At lunchtime he is always available as a notable trials, including the case of the children, Roslyn (third year Law Arts companion in a turn around the Flagstaff Silver Gun Rapist (let your imagination at Melbourne), Michelle (first year Gardens. He even jolts those football fill in the detail) as junior to Phillip Dunne physiotherapy at Melbourne), Natalie knees in regular jogging. QC, the Toxic Shock case1 as junior to (year 10 at MLC) and Michael (year 8 at No person is without faults. But it John Winneke QC, the Waverly Transit Scotch). is hard to fault Kaye J. There is the case2 as junior to John Winneke QC He was elected to the Bar Council annoying habit of leaving the pantry (again and many more times as well) and in 1996 and served until 2000. He door open, or the light on; of opening the Ken Morgan Toyota case as junior to was Chairman of the Aboriginal Law the windows in the middle of winter Bill Gillard QC3. He also appeared in the Students Mentoring Committee from (fresh air never hurt anyone!) of wearing infamous and long running Occidental 1999 until his appointment, a cause those Australian icons — the rubber and Regal Insurance case before that he championed whilst a member thongs — on any occasion, summer or O’Bryan J. of the Bar Council. That Bar Committee winter; and discarding his shoes at the He took silk in 1991 saying, at the works with Justice Eames’ Indigenous first opportunity and padding around time “I need a challenge and a new Law Students Mentoring Committee, chambers or home in his socks. gown”, typical of his modesty and self- and with the Indigenous Lawyers and The Bar welcomes his appointment. deprecating wit. Law Students Association (in the After taking silk, he appeared in establishment of which the Bar Council NOTES many long and particularly difficult provided considerable assistance). 1. Thompson v Johnson & Johnson Pty Ltd, trials. He acted for the auditors in the Some 29 students have entered the Murphy J., 29 June 1989 (unreported). Estate Mortgage litigation before Smith Bar Mentoring Program over the years 2 . Waverly Transit Pty Ltd v Metropolitan J, in a hugely successful defence in the since its establishment. He was Bar’s Transit Authority (1988) 16 ALD 253 Transport Industry Insurance Co v representative on the Civil Litigation (O’Bryan J, 2 June 1988); On appeal: [1991] Masel, before Eames J4 and for the CFA Committee of the Supreme Court from 1 VR 181. in the Inquest into the Linton fires. He 1995 until 2003; and served as a Director 3. Ken Morgan Motors Pty Ltd v Toyota appeared in many reported cases in of the Melbourne Bar Pty Ltd. Motor Corp Australia Ltd, Ashley J 6 widely different fields of law, including Stephen has always given generously November 1992 (Unreported); On appeal: Koorootang Nominees Pty Ltd v ANZ of his time, skill and knowledge in [1994] 2 VR 106. Banking Group Ltd5 (trusts); Registrar the service of fellow practitioners, 4. [1998] VSC 114. of Titles v Fairless6 (Torrens system); particularly members of our Bar. Indeed 5. [1998] 3 VR 16. Linsley v Petrie7 (estoppel-insurance); he was and is devoted to this institution 6. [1997] 1 VR 404. Lew v Herald & Weekly Times Ltd8 and has given it his unswerving loyalty. 7. [1998] 1VR 427. (defamation), and so the list goes on. He has always believed in serving and 8. [1999] 1 VR 313.

18 19 Obituaries Allayne Kiddle

nurturing our spiritual needs and artistic Berkeley, Allayne Kiddle and I. talents, but also in upholding the mens Her style appeared at fi rst sight to sana in corporsano dictum. In further- be arrogant. She was very positive and ance of this we slept on open verandahs unafraid to say: “That’s not the way it with only canvass blinds to shelter us from was done in the Temple”, or at the Law the blast of winter winds and rain. We rose Courts. Most of us originally thought at 6.00 a.m. and after stripping our beds and she was English. In many ways she throwing the bed clothes onto the verandah had become such. It was clear that she railing, we hurried to the bathroom where enjoyed her time at the Temple and at we showered in icy cold water. Three nights fi rst found it hard to adjust to the more a week we indulged in a hot bath. pragmatic environment of the Victorian Bar. When one came to know her one Subsequently, when her parents realised that the apparent arrogance was moved to Melbourne, she enrolled at not arrogance but merely a directness St Catherines and, on matriculation in that stemmed from a complete lack of 1939, she enrolled as a medical student self-consciousness. She was never afraid at Melbourne University. to ask a question, never afraid to reveal She had studied dancing and had her own ignorance, never afraid to take become a most accomplished tap dancer. a contrary view if she believed in it, all Apparently, she danced at the Tivoli while of this without any real consciousness she was studying as a medical student. of self. She seemed to have no concern In late 1940 she abandoned her as to whether she was making a good medical course and her dancing at impression or a bad impression. She was ARCELLE Allayne Kiddle the Tivoli to marry Geoffrey Kiddle. just not concerned with impressing in (“Allayne”) was a remarkable His family owned a sheep station any way at all. Mwoman who packed into her 84 near Tumburumba and another near As has been noted previously in years a breadth of experience that few of Deniliquin. In 1940 those places were Bar News she was the third woman (it us manage to achieve. She signed the Roll much more remote than they are today seems) to sign the Roll of Counsel and to of Counsel in 1959. She transferred to the and she spent much time at the station practise at the Victorian Bar. non-practising list in 1966. She died on near Tumburumba and endeavouring to As a woman at the Bar she did not 29 December last year. keep up with her husband and his father expect to be treated in any special way. In 2002 she published privately a book on horseback. But she did expect to be treated as an of reminiscences, which she entitled During the war her husband served in equal. In her book of reminiscences she A Most Peculiar Child. If a biography the army and she acted as a ARP warden says: of Allayne Kiddle were to be published in Melbourne suburbia. it would properly be entitled “A Most In London in the early 1950s she There has been much talk in recent years Remarkable Life”. was pursuing a dancing career, and had of prejudice against the women. I can only A Most Peculiar Child captures in a contract as a solo dancer with BBC say that I did not fi nd either the Benchers vignettes pictures of a time which is Television. On medical advice she gave or the members of the Bar prejudiced. In now long gone. Speaking of her early up dancing. It was then that she decided fact I found them the very reverse. If the childhood spent in Sydney she says: to enrol for a law degree at the London solicitors were prejudiced, I do not know. I School of Economics. She graduated did not fi nd them so. But then I do not look When I was very young, hansom cabs com- with Honours from LSE and joined the for prejudice and I do not fi nd it. If they peted with taxis, trams and buses for pas- Middle Temple in 1956. She returned to had been, I would not have blamed them, sengers. Even then they were an obsolete Melbourne and signed the Roll of Counsel because, by and large, they had no women method of transport, nevertheless, I was in 1959. when I went to the Bar, except Joan Rosa- fascinated by the top hatted coachmen, It was at this stage that I fi rst met her. nove, and she had a very specialised prac- sitting in a high seat on the top of the cab, The name “Marcelle” was never used tice. It is quite clear that she herself did not controlling their snorting horses with a long and “Allayne” seldom. In the English suffer from prejudice insofar as matrimonial whip. As a special treat I was occasionally tradition — and in the old tradition of matters were concerned. Having had noth- allowed to ride in one of these amazing the Victorian Bar — she expected to be ing but men to brief, in all other matters, for conveyances. called “Kiddle”. years and years, I would say they were just I came to know her well when in about slow to change over to the fact that they In about 1930 she became a boarder mid-1960 an overfl ow of young barristers now had a choice. a Fensham Girls’ School in the southern from Selbourne Chambers found them- highlands of New South Wales. She selves housed in Condon’s Building. In a When the Bar Dinner for 1960 came describes her life at Fensham in about warren of tiny rooms in a narrow-fronted around she said to Hartog Berkeley and 1930 as follows: building, half of which was taken up with me that she wanted to attend the Bar a printer’s business, were Garth Buckner, Dinner and asked could she go with us. The Head Mistress believed not only in Peter Furness, Garrick Gray, Hartog We agreed. Prior to that time no woman

18 19 had attended a Bar Dinner. Subsequently, Nothing, however, in our small lives com- Although we speak of recollecting the past, Allayne spoke to Joan Rosanove and pared with the chase on a hot day down all we really remember is our perception they came to the Bar Dinner together. the street to catch him with his cart, as he of former happenings at the time of their Berkeley and I were unnecessary. Joan travelled from house to house delivering recall. Once we censor those moments by Rosanove did not attend any subsequent blocks of ice. deleting them from our memory, or trans- Bar Dinners. Allayne Kiddle continued to His van contained very large blocks forming them in such a way that they no attend. of ice that required chipping into smaller longer bear any relationship to past events She was not only a pioneer woman blocks before they could be carried indoors. we embark, whether we realise it or not, in the law and a superb dancer. She To do so he placed a sugar bag on his shoul- on the writing of fiction. Memory, unlike was also an excellent photographer. der and a block of ice on the bag. If a spell of fiction, has no story or plot. It consists of Photography was something to which very hot weather was anticipated he would no more than a series of incidents recalled her father introduced her when she was a be asked to place an extra block or two in haphazardly. young child. In the 1970s she was made a the copper. Fellow of the Royal Photographic Society What pleasure it gave us to see him It was a remarkable life, a pioneering of London. breaking the ice with his ice pick. Then, life; the world is poorer for her passing. She retired from the practising list when the slivers of ice came sailing in our As Warren CJ wrote after reading A Most in 1966. But that was not the end of direction, to try to catch them. How we Remarkable Child: her intellectual activity. In 1994 at the licked and sucked those pieces … An icy age of 75 she completed a Bachelor of pole (developed much later) licked sedately It was fascinating to read about such a full Arts Degree, and in 1997 she obtained within the confines of one’s own garden was and richly life. Even more so, as a woman in a graduate Diploma in Writing from very different from those chips of ice which the law Mrs Kiddle achieved an enormous Swinburne University. Whether her we garnered from the ice man. amount. Along with Joan Rosanove QC writing owes anything to that Diploma and Molly Kingston she blazed the path is hard to tell. It is, however, undoubted She was also a wise woman, not that paved a way, much easier for women that she writes with perception and necessarily in her personal relations but like me. touch. Speaking of the “ice man” of her in her understanding of the world about G.N. childhood she says: her.

Leslie George Crisp

EORGE Crisp was born at Charters Cardwell/Hinchinbrook seems to where he continued to form positive Towers in North Queensland on 25 have provided a positive, nurturing relationships and furthered his sporting GOctober 19l9. He was the eldest of environment. George recalled it as a interests in tennis, cricket, rugby and five children, and his father was a railway stimulating, liberating place and tme, rowing. Via school and the fellowship of fettler; his extended family were graziers where people travelled by goat and the West End Methodist Church, as well and miners around Charters Towers and rail cart, where prowess in sports and as the aptly named and nearby Magnetic Ravenswood. athletics was valued over possessions, Island, George met and wooed the love of George’s family were “battlers”, but and where school was actually a positive his life, Alice (Lally) Kennedy. They later at least his father had work. His brothers influence, so much so that after leaving honeymooned on Magnetic Island. and sister recalled nothing but a Cardwell he remained friends with his old George had to leave Townsville High happy and productive childhood. His headmaster. An old studio photograph of School after Intermediate, to help his father’s work took him to Cloncurry, George shows him as a young boy in his family. He left behind an impression so George spent his early school years Sunday best, without shoes. No money best summed up in the comments (kept with paternal grandparents at Charters for shoes, but no need, and yet the money by his mother) by his French teacher Towers. He remembered them fondly, for a photograph was found. That milieu on an essay: “Mon Cher Georges. Je and later joined his family at Cardwell produced five charming and dignified vous felicite”. He rejected the offer of and Hinchinbrook Island on their return people who went on to lead balanced and an apprenticeship in fitting and turning from “out West”, where he continued contented lives. They never needed, nor with the railways (won over hundreds his schooling at Cardwell State School could justify, laments about the bad old of applicants), toyed with the idea of from 1929. Part of the attraction of days, or a rough trot. teaching, but opted for the Townsville Hinchinbrook at the time was its George and family moved to office of the Public Trustee. orchards. Townsville for his final schooling, War intervened and George enlisted in

20 21 George returned to Townsville in 1945 such qualities to be abundant, and George to marriage and the Public Curator’s “returned” to the Bar, without rancour or offi ce. He and Lally had a house built and regrets, because he enjoyed that too, but produced three boys. Between 1948 and it was not the same. 1951 George completed the Queensland Nonetheless, George and Lally were Solicitors’ Board examinations, largely by freed to pursue golf, tennis, skiing, travel reading Blackstone under a tree at home. (a Winnebago across North America, the He then re-enlisted in the RAAF in 1952, Flinders Ranges, camping at Bright, trips and via a series of postings found himself back to Queensland) and the inevitable in Melbourne in 1955, having another (once unthinkable) bowls, although house built in Beaumaris, the last house. George did continue to ski well into his His career with the RAAF as a later seventies, something he started at Legal Offi cer and Judge Advocate was Mt Etna in 1943. George was also able to long, unblemished and interesting. He continue a favourite lunch engagement, travelled a lot, more so because he the Ceylon Tea Rooms with his sons. preferred Beaumaris to Canberra, the After moving to Beaumaris, George choice of domicile being a limitation on felt that the typical Beaumaris lifestyle his fi nal rank, which was a small matter was as good as it gets, and he and Lally to George. He retired from the RAAF in remained absolutely and obviously in the early 1970s having by then completed love, much to the amusement of others. a Diploma of Criminology and a course in In a way, George found and fashioned a Italian. Then it was off with Lally to the lifestyle which mimicked his early years. Alfa factory in Milan to pick up a new He accorded his family enormous respect the RAAF, trained as a narrigator/bomb Alfa Spyder for a long tour of Europe and independence, exposed them to aimer and found his way to 459 Squadron and parts of North Africa. On his return, sport (particularly sailing) the outdoors near Tobruk, at Marsa Matruh, by way of when he signed the Bar Roll, George and and encouragement in studies. As in a battered tramp steamer from Panama the Alfa were a common and distinctive the case of most people in Beaumaris, to West Africa, then by air via Timbuktu. sight on Beach Road. He read with there was much exposure to water, and His fi rst experience of travel stimulated Alistair Nicholson. probably far too much to sun. Unlike an appetite for it from then on. George spent a good deal of his time at Cardwell, shoes were affordable, but still His war service was distinguished, the Bar as a member of the Small Claims very optional. involving anti-submarine sweeps, convoy and Residential Tenancies Tribunals George has been described as a escorts and night-time nuisance bombing where his courtesy, patience, experience true gentleman, and in every sense he of airfi elds at Athens and on Crete and and dignity were assets. No doubt they was. It was a privilege to travel life’s Cos, the latter all carried out in “coastal were also tried, but George couldn’t have path with such a wonderful man. His white” “camoufl age”. on 16 June 1943 enjoyed it more. It is a pity that those in a companionship is greatly missed. George and company were called upon to position to decide such things perceived rendezvous with naval vessels to sweep for the U-97, a very successful U-boat which had that morning sunk a cargo vessel. The U-97 was the fi rst U-boat through the straits of Gibraltar, was the vessel under discussion when the Enigma Code was broken, and was the inspiration for the book and fi lm Das Boot. The rendezvous was missed, a lone search was undertaken and the sub was found. Kapitanleutnant Trox, to the dismay of his crew, had surfaced to inform La Spezia of a few recent successes. George and his pilot realised that although they had depth charges, what was required was a risky low level attack for a direct “dry” hit. That would involve Newton’s fi rst law of motion, and it did, but although the aircraft was later written off, they remained to facilitate rescue efforts and drop the dinghy.

20 21 Articles Independence and the Bar A paper delivered to members of the Victorian Bar at a seminar on professional ethics. Part of the Compulsory Continuing Legal Educaton Program of the Victorian Bar held at Owen Dixon Chambers, Tuesday 16 February 2004

By S.E.K. Hulme AM QC

Y text consists of some remarks made by Australia’s greatest Mjudge, Sir Owen Dixon, on the occasion of his swearing in as Chief Justice of the High Court of Australia, sitting in Sydney on 21 April 1952.1 Let me say, once and for all, that Dixon did not treat such occasions as excuses for loose thinking and patronising courtesies. When he spoke on such occasions, he spoke publicly, his words were considered, and he meant every word he said. The series of remarks begins:

I think it is hardly useful to refer to the past except to explain the present. But my work at the Bar covered a period when I was younger and when perhaps according to the ordinary nature of man he derives greater pleasure and excitement from his activities.

I read that passage to remind you all, the more senior as well as the more junior, that the practice of the law will probably never bring you more enjoyment than it is doing right now. This is it, what you have now, day by day. The toil, the long hours, the struggle to build a practice, the struggle to pay the taxes when you do so, the loss sometimes of valuable parts of family life: but justifying them all, the challenge, the contest, the camaraderie, the periodic taste of success, the feeling, occasional but to be treasured, that this case finished the way it did because it was you who was there that day, not S.E.K. Hulme AM QC. anyone else. These satisfactions belong to the barrister, not the judge. Dixon was one of the most satisfying ways of making The activities at the Bar are greater than a barrister for nineteen years, and a judge a living that this world offers. It is to what those on the Bench, and the responsibilities for thirty-four. He always spoke of his is happening now that in later years you are no less. years at the Bar more fondly than his years will look back with nostalgic memory. Ask on the Bench. Take heed. Appreciate the any judge. By and large, you will work harder, fun and enjoyment now, while you pursue at a wider range of professional tasks,

22 23 Articles

before and during and after the case, without violence with disputes between the government, nay, not even the Bar than the judge is asked to do, and will citizens, and with disputes between Council itself — can control how he goes bear throughout the same responsibility government and citizen. In the system about the performance of his work. He to get things right as does the judge. I Australia has inherited and adopted, the needs no authority to ask a question. He would apply to counsel some remarks court system provided by government needs no authority to refrain from asking Dixon made as to solicitors: includes the Bar. To that extent the Bar it. It is left to him. It must be left to him. is part of the total system of justice which And he cannot avoid responsibility for I would like to say that from long experience government provides and for which the decision he makes. on the Bench and a not much shorter expe- government has a responsibility. It may not have occurred to you rience at the Bar there is no more important Then comes the curiosity, the anomaly, that this far-reaching independence is contribution to the doing of justice than the the near-contradiction. In the central something not demanded of any of the elucidation of the facts and the ascertain- passage of this part of his address, Dixon other three learned professions. ment of what the case is really about, which continues: The doctor will of course remain at all is done before it comes to counsel’s hands. times subject to his Hippocratic oath, but But because it is the duty of the barris- he may properly work for a hospital, or a I would say that in most cases the ter to stand between the subject and the corporation. most productive stage of these processes Crown, and between the rich and the poor, The clergyman retains something is not in fact before the case comes to the powerful and the weak, it is necessary of his own conscience, less or more counsel’s hands, but while the case is in that, while the Bar occupies an essen- according to the church for which he counsel’s hands. How often have you not tial part in the administration of justice, clerges. But he works for an organisation, found that you cannot handle the case the barrister should be completely inde- and obeys it. satisfactorily without first dismantling pendent and work entirely as an individual, The soldier belongs to an organization, the brief and re-assembling the papers in drawing on his own resources of learning, and obeys it. a different order, most often simply but ability and intelligence, and owing alle- Nor of course does anything like this strictly chronological, and in the process giance to none. independence exist outside the four becoming perhaps the first living person learned professions, in the corporate to develop a coherent picture of the world, or indeed anywhere in the world particular little group of facts. Even more of business. is the delineation of the issues arising By and large, you will work from those facts the task of counsel. This They go whither they are sent. They toil at work is hard, and it can be tedious. But harder, at a wider range of what they are directed. until you have achieved it, you are likely professional tasks, before to beat the air, impressively perhaps, but and during and after the By contrast, of the barrister this without doing your client much lasting case, than the judge is independence is required. Alongside his good. duties to the court and the public and the asked to do, and will bear Bar, he has of course his great duty to his The Bar has traditionally been, over the throughout the same client. But even to him, the barrister does centuries, one of the four original learned responsibility to get things not surrender his independence. What he professions. sells to his client are his services. He does right as does the judge. not sell himself. And he sells his services, You will notice that Dixon says four, not the control of them. not three as is often but wrongly said by To make all this possible, the barrister the ignorant, who in fact present different It is because of this role that the must have no allegiances. Subject to the groups of three out of the four. The four barrister cannot let himself be controlled usual exceptions, the barrister is available original learned professions were the in the conduct of his work by the to all. The pressures on him in these church, the army, medicine, and the government or by anyone else, save as respects will be many, the temptations law. There is another ancient profession, regards compliance with known rules and at times strong. If the Bar is to remain older perhaps than any of them. But codes of ethics applicable to him. healthy, with barristers “really” available persons who write books do not regard You will see the paradox. It is the duty to all, these he must resist. So: The mere that profession as learned. of the government to provide the system. fact that you have acted for someone Dixon turns to the curious, the The system includes the Bar. But for the does not give rise to a right or obligation anomalous, the almost contradictory system to work, the government cannot to refuse to act against him. position that the Bar occupies in control, save in that limited disciplinary Retainer rules must be understood, the administration of justice. The sense, what the barrister does. The and enforced. A general retainer does starting-point is straightforward. system the government is bound to “not” bind counsel not to appear against provide includes an entity the ordinary the giver of the retainer. It compels him, The Bar occupied that position in tradi- activities of the members of which it if offered a brief against the giver, to tion because it formed part of the use and cannot, consistently with that system, notify the giver and inquire whether the service of the Crown in the administration control. Putting the client aside for a giver wishes to brief him in the matter. If of justice. moment, the barrister has duties to the the giver does, then counsel must act for court, to the public, and to the Bar of him. If the giver does not, counsel is free The government of any livable country which he is part. But while he behaves to accept the brief against him. must provide a mechanism for dealing himself within the rules, no one — not Delivery of a special retainer entitles

22 23 counsel to be briefed in the matter in understanding (non-secret) matters, You have no right to work. No one concerned, if it proceeds toward court. such as how customer accounts work, choosing to make his living providing Not many years ago I received a special does not entitle it to require that you services has the right to require that retainer from an interstate company with not act against it when later requested society be so organised that people want which I had had no previous connection. to do so. his services. All you have is the right to I heard no more until I read in the paper In great cases, great corporations will offer your services, and the right to hope that the matter was already in court. tend to push you to carry out your work that sooner or later someone will ask you After making a few inquiries, I wrote to as a loyal member of “its” corporate team, to supply them. If you are a taxi, as you the Melbourne firm which had handled not as the spearhead of the independent are often assured you are, remember that the retainer on an agency basis for an legal team acting for the corporation. a taxi-driver has no right to require that interstate firm, and told them I was The increasing use of word-processors people shall not choose to walk home, suspicious that special retainers had and electronic analysis of transcript are or catch a bus, or even another taxi: no been delivered to the few counsel in making pressures of this kind increasingly right, even, to require that no one build a Australia experienced in the particular strong. Act for them with pleasure, and light railway out to Tullamarine Airport, field, not with the intention of briefing hopefully reward, but treat them with though real taxi-drivers often forget them at all, but to make them unavailable care and circumspection. that. to the other side. Inquiries by an initially In general, all attempts of outsiders Then you will have the right to wait to rather hurt Melbourne firm showed that — even of clients — to instruct you how be paid for the services you rendered. this was pretty clearly the case The to act, must be resisted. And if you do begin to get ahead, you excuse offered from interstate was an This independence has its price. will face those iniquities of provisional intention to brief in the event that the You may find that you envy people tax which await the self-employed matter spread interstate. Even if the elsewhere their big pay packets, the big person when at last he begins to have a unlikely story were true, that was not a comfortable office which awaits them, rising income. proper use of a special retainer. their apparent security, their right to And if you get further ahead, you will Attempts of regular customers to work, the relatively painless way the gradually become overworked, at the inhibit your activities improperly must tax they must pay is administered out of cost of your family life. To quote Dixon be resisted. The fact that at cost to their pay packets week by week. again, socially this time rather than on a itself a bank has helped to educate you Whereas you? formal occasion: TJ7771_VIC_Bar_Ad.qxd 22/1/04 9:57 AM Page 1

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Geoffrey Gibson

Bush lawyers are like flies. They are a pest. We generally use the term to refer to people who are not qualified in the law, or much else. They have some knowledge but nowhere near enough to warrant a ticket to be able to charge for it; they are dead keen, which makes the first problem worse; and they do not know when to shut up. We also have known them from time to time within the profession, both sides of it — it would be a bad mistake to suggest that exclusive practice at the Bar gives some form of immunity from the disease.

AIMS that evolution, and then see if the result USH lawyers coalesce in different is that such a lawyer breaks all of the pockets. At one time you could rules of advocacy. On the principle that Bfind them in certain Courts of Petty it is easier to teach people how to avoid Sessions, generally in the outer suburbs or bad advocacy than how to practise good the bush. At another time you could find advocacy — you cannot put in what God them before specialist tribunals which has left out, said the professional coach in encouraged closed shops and discouraged Chariots of Fire — the exercise may be Geoffrey Gibson legal analysis except for the esoteric lore instructive. applied by the tribunal (which the unini- specialist area under narrowly confined tiated could never understand) or the INCIDENTS constraints do not also see themselves even more esoteric law that you invoked There is frequently a constitutional as acting subject to the general law, or at to get them before a real judge when you background, either in the charter of least they forget what it is like to practise wanted to throw your weight around and the relevant tribunal or, in the case under the general law, and their vision remind them of who the real lawyers were of the industrial area, the Australian becomes blinkered as a result. What you (your becoming an honorary member for Constitution, which focuses some minds get is the kind of formalism that fascinates that purpose). Garth Buckner QC was a on issues of form and power from the small minds and puts off everyone else; it paradigm in the area of town planning very start. Because of the nature of our is the sort of thing that brings the law into at the Victorian Bar. The late R.C. (Bob) Constitution, artificiality crept into the contempt; it is the product not of learn- Taylor held something like a fiefdom at creation of industrial disputes for the ing, but of the absence of learning. What Frankston. A definitive if sad case was purpose of invoking the Commonwealth you also get is a communal celebration of the industrial area. You can also see a lit- power, and it appears that the issue of lore, and the safety — indeed, the superi- tle of it from time to time in some aspects whether anything is within power arises ority — of knowing that you know more of crime or personal injuries where some in just about everything they do. It is the than the uninitiated. But lore is not law, lawyers may appear on one side only in a sort of argument you get on some boards and what you are getting is at best shal- narrowly specialised area. of companies or the committee of a char- low. It reminds you of that unkind remark If as a professional lawyer you have not ity or academic institutions where people someone — Carlyle? — passed about the been exposed to a bush lawyer before, you who have nothing else to do wonder about French: so full of vehemence, so free of might feel like the Christian travellers dur- the extent to which the constituent docu- depth. ing the Dark Ages on first being exposed ments of the body empower certain kinds Frequently advocates are appearing to the glory of Islamic art of the Marinids of action. There must be something in before people who have no legal training at Fez or of the Fatimites at Cairo when our nature that promotes gratification in or insufficient legal training. This was hesitantly their mystic appetites sought, being able to say that a proposed course the case in the old days with magistrates, it is reported, “under the appearance of of action is beyond power and therefore although it is not now. Then, too, you fancy and caprice the reality of a secret unlawful. It is the kind of argument that could also find yourself in front of the logic and a mathematical coherence”.1 But does encourage people to be judges and justices. But the same problem can be your search will be unrequited. the fact that it is in their own cause does there with the AIRC Commissioners. It I want to look at some of the incidents not discourage most of them. is also there in front of many tribunals. of what turns a trained lawyer into a bush It is part of this problem that people Many of the members of those tribunals lawyer, and see the consequences of who see themselves as operating in a may have some legal training; they may

26 27 Articles

have a ticket; they may even have prac- usually incomprehensible and the onus waste of time and which looks like it must tised for seven years; but many of them on counsel correspondingly higher. It is be plain boring even for the perpetra- have not had enough experience in run- necessary for counsel to have independ- tor. Some of these advocates just do not ning proceedings in the nature of a trial ence and expertise and it is desirable that understand that their job is to persuade to be able to preside over one sensibly counsel be seen to have independence the person in front of them, not to appeal enough to make it work. We do not ask and expertise. It is worse than useless for to the people behind them. GPs to conduct brain surgery; we should the Crown to serve up someone whose We are all familiar with the felt need to not ask solicitors who are GPs and who main function is to spout the party line. give the punters a return on their money have not been specially trained and have (It is a different problem, but I might say — to give them their day in court and to experience for the task to act in the posi- that one of the reasons the NCA got into allow them to think that the ratbag on the tion of judges. trouble with some white collar crime is other side has finally got the shirt-front But this does not trouble most of the that its representatives did not know what they have been asking for since birth people appointed to these positions. A they were talking about — there was no — but cheer-leading and flag-waving safe club-like atmosphere develops with one from corporate law or the big end of should be reserved for arenas designed to the lawyers who appear there — you town to say what happens in the world cope with them. Bonaparte expected to be scratch my back and I will scratch yours. outside.) cheered by his men, but not Wellington — Fractious outsiders are dismissed as smart The relevant contests may not be one he dismissed cheering as “coming danger- alecs. (It is like a juristic apartheid.) The on one, but are more likely to be one ously close to an expression of opinion”.3 lawyers behave like lawyers, at least on against a team, or even one represented (The duke won, or, at least, Bonaparte the surface, even though the parliament by lawyers who act for very many others lost.) Not the least of the difficulties will have gone out of its way to say that in the same capacity against a team. One occasioned by this form of communal the tribunal should conduct itself infor- example is of a worker complaining of role playing is that if the judge blows the mally. The tribunal does not mind — it can unfair dismissal, either before the AIRC whistle, or, better, hands out an occasional be pleasing to behave like someone who is or in court. The contest is in substance shirt-front, to bring the game into line, the a judge and so behave when responding likely to be a contest between the union assembled cheer squad glares plaintively to what appears to be an eloquent address and the solicitors acting for the union and and caustically because, they are saying, that sounds as if it must be the product the employer’s solicitors acting for the the judge is so obviously loaded against of some learning. Advocates who confine employer. In that case, the result is likely them. Their champion has personalised themselves to these sorts of tribunals to be more like a war than a game, and a the contest. Some of these champions and become perceptibly loose in their demean- war which can be seen from both sides as their entourage are not beyond intimidat- our when they have to do something in a part of a class war — and that label does, ing the tribunal, or at least the other side real court. The cross condescension is not I think, adequately describe the relevance or their witnesses. likely to cut much mustard there. It is like of this kind of posturing for Australia in In a number of these areas the action rain being the great leveller for football 2003. This mind-set can lead to murder- before the court or tribunal may in sub- teams and F1 motor cars. ous assaults on language in the name of stance be just a show — not a sham, but a In some areas, the lawyers are ideo- ideology that call to mind the memorials show — while the real action takes place logically split and therefore typed. They to border guards they used to have on the elsewhere, in forums for negotiations therefore appear to be more identified east side of the Berlin wall — “treacher- where there are no barriers to the lan- with their side and to that extent less ously murdered by fascist gangsters”.2 guage employed or the threats uttered, or independent. I gather this can be a prob- Experience in forensic contests suggests in the columns of the newspapers whose lem at the moment in certain personal that when sensibility goes out the window, accounts may or may not have a substan- injury areas where the tightly controlled sense goes out soon afterwards. tial resemblance to the truth, whatever purse strings of the defendants discour- Sometimes the advocates have to put that is. There may be an air, generally age counsel from flirting with the other on a show for those of the team who unacknowledged, of artificiality or unreal- side. There has been a deep ideological have turned up on the day, even to the ity in the forensic process. You sometimes split in Australia in the industrial area for extent of counsel for the Crown in some walk into a court and see the cavalry generations: it is very hard there to prac- Commonwealth tax cases having to do disporting themselves and you wonder tise on both sides. Some little time ago something for the morale of the plethora where the real action is taking place. This, there was a disquieting suggestion that of dark-suited, glum-faced civil servants too, takes the edge off the need for preci- the Crown in Victoria in revenue cases sitting behind them. This can lead to even sion or concision – why work up a sweat would not be briefing people who had less impartiality, and to grandstanding and trying to be short and sweet when none of accepted a brief to appear against it, but chest-beating that is for everyone else a it matters anyhow? I gather that there is now no foundation This used to be the case with the foot- for this suggestion. That is just as well, for ball players’ football cases in the eighties. a variety of reasons. In tax cases the court They would be argued by reference to or tribunal is entitled to look for the high- There has been a deep issues of freedom of trade and other high est degree of independence from counsel ideological split in notions. The real parties could not care for the Crown, and is also entitled to get Australia in the industrial less about any of that — they were only guidance from counsel who have the interested in who was trying to get what requisite level of experience and practice area for generations: it is player and at what price. That, everyone on both sides in order to be able properly very hard there to practise knew, would be determined only by the to understand and explain the legal and on both sides. market, in some grubby, tribal, smoke- commercial issues at stake. The law is filled room, and not by the court. The

26 27 only interest in the court proceedings was Gowers: “What a man cannot state, he often off-set by a level of deference that how much of a premium their costs would does not perfectly know, and conversely, borders on the obsequious. put on the transfer fee. A lot of litigation the inability to put his thoughts into There is a propensity to take technical is commenced to take negotiation to words sets a boundary to his thoughts.”4 or formal points that more refined juris- another stage — it may be just negotiation (The author of that remark had almost dictions would dismiss out of hand and by another name. There are, after all, very certainly not yet heard of Wittgenstein, which more mature lawyers would profes- few people who have the means or the sionally decline to put up with. This used drive to commence a legal process with no to be the case with .05 cases and some other purpose than to seek a favourable areas of town planning and still appears judgment. The style of the bush to bedevil some aspects of the industrial The menu therefore includes: lawyer may be described process. For some, no point is too thin, 1. a determination to put form over sub- as rhetorical, or florid and no ground too shallow, to run an argu- stance and the pursuit of lore; ment. It is like confirmed punters watch- 2. a communal lowering of standards; — like that of a bucolic ing two flies climb up a wall — they cannot 3. partisan identification; Rotarian toastmaster. help themselves. These advocates have no 4. membership of a team engaged in idea of the dangers of mere cleverness. similar battles (as part of a war) and but the two may have had something in Judgment is not among their blessings. the consequent failure of individual common.) Sometimes the wordiness is Good technique may be necessary for an responsibility; such that it is hard to discern a syllogism, artist, but it is very far from being suffi- 5. paid for table-thumping; and this can be unsettling for those judges cient. It is the lack of judgment in these 6. and actual or apparent immateriality or who still believe that the logic of a case people that really hits you between the irrelevance. should be exposed. eyes and puts the wind up you. To this should be added The method is characterised by repeti- These advocates like to have a script 7. sense-numbing and mind-narrowing tion. Anything said less than five times is and to stick to it. They are put off easily specialisation. not to be taken seriously. In particular, and they are careful to stay on cue with This sort of thing may be okay in our if there is a key phrase — something their own programme. Because these salad days when we are green in judg- profound and satisfying like “industrial advocates are attuned to their own script, ment, but the trouble is that, unlike harmony”, or “amenity of the neighbour- and to what I might call the vibes of their Cleopatra, these advocates cloy the appe- hood” — it must be hammered until it own side (with apologies to The Castle), tites they feed. takes off with the force of its own tom- and because many of them are more con- toms, like “Ein Volk, Ein Reich”, to choose cerned about their own performance and METHOD an uncomely example of a useless slogan. their own face than anything else, they The style of the bush lawyer may be (How many slogans are useful?) People forget that their first job is to persuade described as rhetorical, or florid — like who are put off products that engage in the people they must first get to know that of a bucolic Rotarian toastmaster. It repetitive advertising are not good targets and understand. This is, you would think, looks like this kind of advocacy requires for this kind of advocacy. You get the feel- elementary to the role of any advocate. this kind of prose — it may be long on ing that the idea is not so much to per- We should not blame the people before soul, but it is short on both brevity and suade you as to wear you down. whom bush lawyers may be accustomed wit. It is certainly long. The clarity of a There is more sincerity, actual as well to appear. Putting entirely to one side submission is frequently in inverse pro- as apparent, I think. This is partly the the hugely vital part played by the jury, portion to its length (and to the length of product of the commitment to the team, there must be a place for tribunals made its main words). Purveyors of waffle raise and to showing the flag, but mainly the up of people who are not lawyers — why doubts about their brains. They might bear product of the ideological split and conse- are we shy of calling them lay people? Are in mind the 1921 departmental report on quent lack of objectivity or, as some would we so conscious of status symbols? — but teaching English cited by Sir Ernest say, professionalism. But this sincerity is almost by definition, there is no place for such tribunal members who become bent on playing lawyers. This represents not just a contradiction in terms, but a confu- sion of purposes. (To end of 2004 [neg.]) Lawyers are commonly engaged in Room to Sublet seducing lay tribunal members with some RENT: $602 PER MONTH of the folderol of the courts. You see it with commercial arbitrators and specialist Inclusive of services including: fax, photocopier, cleaner and kitchenette assessors all the time. When this happens, • Deakin Chambers at Level 9, 271 William Street (non BCL). the parties do not get the result they have • Internal room. agreed on in their contract or that their • Excellent, collegiate set of chambers with approximately eight other barristers parliament has prescribed in its statute. It specialising in crime. is also dangerous. If you are lying on the • Partially furnished if required. table waiting for the knife in that warm, • Would ideally suit criminal barrister. drowsy state, and someone looms up out of the mist with a mask and a scalpel, and Please contact Oscar Roos (List M) on 9602 4900 or 0412 842 397 ASAP. you say that you expect that they do this all the time, and the answer is no, but

28 29 they have nearly finished reading Gray’s were said to be always desperate, but say; candour is about saying what you Anatomy and they feel that they are the never serious.5 mean. full bottle, your rational self would want The issue of sincerity is important. The quality of sincerity is often linked to hope that this was the purest of hal- Bush lawyers are big on sincerity (as to the quality of enthusiasm. Bush lawyers lucinations. are mob orators and lay preachers). This are enthusiastic. “Enthusiasm” has had a So, the elements of style of the bush makes them a hit with people who think mixed history in religious circles. It has lawyer include: that sincerity is the one thing lawyers not been smiled on in juristic circles. An 1. colour (or floweriness); surely lack. It is thought that barristers English judge, Lord Devlin, reminded 2. repetition (bang-bang-bang-bang- are obliged to indulge in pretence — since us that enthusiasm means taking sides bang); even the “guilty” have a right to coun- and cannot therefore be a judicial virtue. 3. heart-on-sleeve; sel — and pretence is the opposite of sin- “But enthusiasm is rarely consistent with 4. casuistry (yes, with apologies to those cerity. This is a misconception. Barristers impartiality and never with the appear- products of learning carried down from are not paid to be sincere — indeed, they ance of it.”6 Since the Bench and the the medieval schoolmen, casuistry); are expressly forbidden to give personal Bar are part of the one professional con- and endorsements to their clients or the case tinuum, advocates who see themselves 5. a tramlined adherence to the route of of their clients. Sincerity is the reverse of as lawyers by profession should bear this march. In short, not just the absence objectivity, and is likely to be the enemy of stricture in mind. The counsel we most but the denial of professionalism. professionalism. admire are those who are at home with If advocates are trained not to have any the process of the court and help to make CONSEQUENCES personal belief in the causes they press, it work; they are part of the furniture, like Lawyers are now chary of describing the issue of sincerity does not arise. It the Bench and the Bar table. themselves as learned in the law. They makes no more sense to inquire if coun- The attachment to form, and the should not be. The standing of a profes- sel is being sincere in making a submis- addiction to argument for the sake of it, sion does, I think, entitle it to withstand sion than to inquire if a surgeon is being are defining elements for bush lawyers, the annihilating urge of the equalising sincere in making a diagnosis or recom- and their most annoying qualities. In their drive to mediocrity. Learning in the law mending surgery. We do not ask doctors need to start something over anything, is a valid and politically acceptable mark whether they sincerely wish to treat us. A they resemble compulsive gamblers; they of distinction from, say, encyclopaedia surgeon may curl up her lip if told that the would rather have a fight than a feed. In salesmen or politicians. Forget where we patient on the table is a 40-a-day Marlboro their capacity to find grounds for division are on popularity ratings, the punters are man, but she will not if she is acting pro- and discord, where rational lawyers see entitled to have their legal interests rep- fessionally let any ideological aversion none, they resemble the paranoid. They resented by thoroughbreds rather than stand between her and the execution of seem repelled by the centre and attracted show ponies. The advocates we admire her oath. to the edges. Advocates who go straight to are those who wear their learning lightly, Barristers do not have to like or believe the periphery annoy those, on the Bench not twirled like a scarlet-lined cape for a their clients; indeed, they are forbidden or at the Bar, who like to find and stick to big night out at Turandot. That learning to reject clients just because they cannot the point. culminates on the Bench in a muffled bring themselves to like or believe them. The determination to pursue every query from Tom Smith or an apologetic In truth, barristers who believe or like possible line of argument is in truth a murmur of Richard Newton or a soft, sim- their clients too much can be a pest, to repudiation of the very idea of profes- ple, but possibly terminal hypothesis put their clients and to themselves. Once you sional judgment. The failure of profes- by Sir William Deane. understand that advocacy in court is not sional nerve is probably the principal The addiction of bush lawyers to a function or reflection of the personal cause of the failure of our system as we repetition goes hand in hand with their belief, let alone the ideological conviction, speak. It is also likely to lead at any given addiction to slogans or catchphrases. The of the advocate, you understand that sin- time to the breach of what many regard best that can be said is that these addic- cerity has nothing to do with it. Advocates as the first rule of advocacy — you put tions represent an absence of thought. have an obligation of candour, but that is your best point first and you do not spoil Parroting is no substitute for analysis and very far from being an obligation of sincer- it with a dud point. You should not debase exposition — it is a weak camouflage for ity. Sincerity is about meaning what you your own currency. A school of advocacy their absence; repetition is no substitute should give people experience in listening for persuasion — it commonly puts peo- to arguments. You will soon learn how ple off. You should start — you should at unsettling it is for a judge who is just gain- least start — by assuming that the person Once you understand that ing confidence and respect for counsel being addressed is up to their job. They advocacy in court is not to lose both when a sound and sensible should get the point, and until they show proposition is followed by one which is otherwise, they should be trusted to get a function or reflection suspect but which is presented with the the point the first time. Every repetition of the personal belief, same apparent force and confidence. The is a separate insult, a further blow to the let alone the ideological judges go quickly from seeing through a case being put. If you can find a garage conviction, of the glass darkly to seeing face to face, and attendant and say you want $20 worth they do not like what they see. Small argu- of super, and then say it again twice, advocate, you understand ments may be the prerogative of small you might get more than a funny look in that sincerity has nothing minds — there may be the problem of a response. These advocates might derive to do with it. big name in a small town — but they do from the last of the Habsburgs — who lose friends and they do not win cases.

28 29 News and Views

Following the script is a similar problem bush lawyer may have for some the old that involves a breach of a fundamental world charm of a rustic drunk, but real rule. Advocates are there to persuade the lawyers who behave like bush lawyers court, not to justify or protect themselves. demean their profession. Bush lawyers Exchange Two things are required - the communi­ may have their uses - like someone say­ cation of an argument and the ability to ing something at a wake when no one else engage in a dialogue to support, clarify or can think of anything warm to say about defend it. Good judges need this assist­ the departed - but their uses are limited. ance; bad judges do not seek it; disastrous Professionals may not be as colourful, but EMBERS of the Bar will have judges do not understand the process. If their uses are not so limited. A dispassion­ become accustomed to receiving, you have a ticket, and you are not illiter­ ate surgeon might get on your nerves in Min relatively recent times and ate, and you are not out of your depth, the some ways, but a passionate one is likely throughout 2003, letters, memoranda first part should not be too hard; it is the to find much worse ways to get on your and notices from Barristers Chambers second that calls for art, just as finishing nerves, and other things as well. When you Ltd advising of an absolute shortage of in golf or painting may call for touch. This get into big trouble, either in medicine or chambers available for rental as a result is not something that it is easy to teach. in the law, you want someone to look after of the renovations being undertaken in you whom you can trust, someone who is Owen Dixon East. Barristers have been not just trained and paid to look after you, exhorted to share chambers and have Advocates are there but who is called for that purpose. You do been offered inducements to do so. The to persuade the court. not want someone whose own vanity is rules about remaining with mentors after more important than your prospects or a reading period have been relaxed. not to justify or protect who cares more about their standing or However, it has been obvious that, themselves. Two things their future or your politics or your sexual overall, the availability of space has been are required - the preference. You want someone who is will­ at an absolute premium. * communication of an ing and able to do the best job. You do not It is in these circumstances that a new need an amateur, you need a professional. entrant has emerged - as if in answer to argument and the ability Real lawyers are privileged to be called a prayer - offering space in premises on to engage in a dialogue to to answer that need; most of them forget the 16th floor - the penthouse - of 530 support. clarify or defend it. just how privileged they are; but the rest Little Collins Street. It is sited a stone's should be left to the Mortein - prefer­ throw from VCAT in one direction and But you only show ignorance if you remain ably from the old style delivery system the Legal Profession Tribunal in the locked on the tramlines of your own singu­ - front-end round-barrel, rear end pump other, but is a bit of a hike to the Court lar path and heedless of the directions of action, scatter-gun spread, full bore. precinct proper. Having attended the the traffic cop. It is like the other problem launch as the sun was setting, the views - look Mum, no hands - when a station­ NOTES are indeed panoramic over the Docklands ary lamp-post is looming up. Counsel who 1. The Birth of the Middle Ages, H.St.L.B. and back to the CBD. decline to engage directly in the required Moss, Clarendon Press, 1935, 184. Exchange Chambers, developed by the dialogue with either the Bench or the Bar 2. The Ghosts of Berlin, Ladd, UCP, 1997, Asian Pacific Building Corporation and engage in a form of desertion. 201. located on the top floor of the Exchange 3. Napoleon, Paul Johnson, Weidenfeld and Towers Building, was launched on 5 MORAL Nicolson, 2002, 55. February 2004 and offers the prospect Flies buzz all around you, they create an 4. The Complete Plain Words, HMSO, 1973, of chambers with a difference. While awful racket, they get in your face, and, 3. barristers are accustomed to looking at unless dealt with, they go forth and mul­ 5. Wittgenstein's Vienna, Janik & Toulman, an existing room to decide if it is suitable, tiply. They have done nothing for the rest Elephant Paperback, 1996,241. Exchange Chambers is at present of us in the meantime. The style of the 6. The Judge, Devlin, OUP 1981, 5, 17. only a floor plan over which various configurations of space can be finalized or purpose built, subject to demand, individual requirements and necessity. The floor at the launch was marked out with tape to show how various chambers and reception areas could be utilized - comprising up to 34 rooms with islands for secretarial and reception services. This plan has since been revised

*However, as at 10 March, BCL advise that 102 rooms will be generated over 2004 as follows: 16 on Level 6 of Joan Rosanove Chambers (April); 11 on Level 2 of Douglas Menzies Chambers (September) and 75 in Owen DL'Con East (November).

30 Exchange Chambers

chambers may be purchased — outright by owner-occupiers, or as an investment for lease — or tenanted, providing a range of options not generally available to barristers. The starting price for purchase of chambers on strata title is $175,500.00. The concept, however, incorporates some features which will be available to all tenants and occupiers no matter what confi guration the chambers ultimately take. For example, mediation rooms, conference rooms and video- conferencing facilities are all available on site; telecommunications and IT hub cabling enable state of the art equipment to be utilized to ensure that all occupants will have access to high- speed internet connection; a reception service is available. A legal library is under consideration. Facilities such as secretarial assistance, word processing, A typical room in Exchange Chambers, complete with offi ce furnishings. photocopying, and para-legal work (fi ling documents at court) is available on a user pays basis. There is even an expression of interest from a Clerk in having an offi ce on site. Tenants in addition will also have complimentary access to the building’s gymnasium, sauna and change rooms. It could be worth considering and is certainly worth an inspection, especially if the need for chambers is urgent or there is no ready or timely alternative.

Judy Benson

Spectacular views from Exchange Chambers. THE to a confi guration of 24 rooms However, are still “on the drawing board” and there ESSOIGN if a group of barristers wished to design are opportunities to customize the suites the space differently from the current as required. Each room will, according to Open daily for lunch plan there is the capacity to develop a the prospectus, be sound protected. See blackboards for daily specials scheme to suit that purpose, because Another feature which distinguishes the internal walls, fi xtures and fi ttings Exchange Chambers is that these

30 31 News and Views

Robin Brett welcomes new Readers and unveils Tapa Cloth. Unveiling of Tapa Cloth Donated by Pacific Island Reader Jennifer La’au during the Welcome to New Readers function at Owen Dixon West on 1 March 2004

N Monday 1 March 2004 practises with the well established firm In 1995, the Bar conducted a week-long at a reception to mark the of Ridgway Blake Lawyers in Port Vila, Civil Litigation Advocacy workshop in Ocommencement of the March Vanuatu. Vanuatu. 2004 Bar Readers’ Course, Chairman Eleven lawyers from Vanuatu have Four days before the 1 March 2004 Robin Brett QC unveiled the Tapa Cloth participated in the Readers’ Course since reception, tropical cyclone Ivy hit presented to the Bar by Vanuatu lawyer 1992 including, in the recently completed Vanuatu, with gusts at more than 200 Jennifer La’au in gratitude for the Bar’s March 2004 course, Carol Singh and kilometres per hour. We were concerned commitment to the Advocacy training Lent Tevi — pictured at the reception for the people there, and glad that Carol of lawyers in the South Pacific region. standing in front of the Tapa Cloth with Singh and Lent Tevi were able to be in Ms La’au attended and successfully the Chairman and the two other South Melbourne for the reception and for the completed the Readers’ Course four Pacific Readers, Nirrie Eliakim and Readers’ Course. years ago, in March 2000. She now Jacinta Murray from Papua New Guinea. The Bar provides places in the

32 33 News and Views

Readers’ Course to lawyers of the South headed a team that taught a course presented to us, to which have now been Pacific without charge. We have done that on the Papua New Guinea Leadership added Jennifer La’au’s Tapa Cloth. since 1987. We’ve had at least one person Code for the Ombudsman’s Commission The making of Tapa Cloth is a long every year since then. On average, we and specialist public prosecutors. and ancient tradition in the South Pacific have five South Pacific lawyers each year Government lawyers from Fiji and — in Melanesia, from New Guinea to — a total of eighty-one people over the Vanuatu also attended that course. Vanuatu, in Fiji, and on most of the last seventeen years. They have come In the fourteen years that the Bar has high islands of Polynesia from Hawaii from Papua New Guinea, Vanuatu, been teaching these courses, twenty- to Tahiti, the Marquesas, Tonga, Samoa, Indonesia and the Solomon Islands. The one members of the Bench and Bar Niue, the Cook Islands and New Zealand. South Pacific Readers have included a have taught in Papua New Guinea and Tapa Cloth is hand-made from the beaten number of women. Vanuatu: Justices Vincent, Coldrey, bark of the Paper Mulberry tree. It is painted with dyes made from berries, roots, leaves and bark, and burnt tree resin. It is left to dry in the sun. A former art director of University of the South Pacific has likened the designs to the mysteries of elven paintings in Celtic lore — patterns of white, black and brown “tumbling and rolling, a playful pattern of light and dark, like that of a child’s toy … The patterns give life, like the old mysteries of elven paintings in Celtic lore. From them one feels the richness of a life full of purpose. The rhythm of an inner felt music, to move to in a functional dance that carries one through the magic of each dawning day. … The tapa cloth, the real tapa, is one that holds the patterns of life, showing the heart the path that leads back to the dawn of time where the patterns of the ancients began.” Tapa Cloth plays an integral role in weddings, funerals, and chiefly and royal ceremonies. Our Tapa Cloth is from the Kingdom of Tonga. The Tapa Cloth has been magnificently framed and hangs in the foyer of Owen New Readers from the Pacific region Lent Tevi,Carol Singh,Jacinta Murray and Dixon Chambers West. The delicate cloth Nexrie Eliakim with Robin Brett. is 3.20 by 2.35 metres. Bar Executive Officer Anna Whitney was responsible for In addition to having lawyers from Harper and Eames; Judge Crossley and investigating what needed to be done for the South Pacific in our Readers’ Course Magistrate Lesley Fleming; DPP Paul its preservation and appropriate display, here, we conduct full-time, week-long Coghlan QC and Chief Prosecutor Bill and for organising all that. Eva Gaitatzis advocacy skills workshops in Papua New Morgan-Payler QC; the late Bob Kent of Fine Arts Interiors advised, managed Guinea. We have also conducted a civil QC, Ross Ray QC, Chris Canavan QC, and co-ordinated the preparation of the litigation advocacy workshop in Vanuatu. Rowan Downing QC, and Michael Tovey delicate cloth for framing, and its framing These workshops began in 1990. The QC; Andrew McIntosh (now shadow and hanging. Abigail Hart did the textile enthusiasm and commitment of the late Attorney-General), Geoffrey Steward, conservation work. Louise Bradley did Bob Kent QC were the foundation and Frank Gucciardo, Martin Grinberg, the conservation quality framing. We drive of these workshops from 1990 until Robert Taylor, Paul Lawrie, Julie Condon thank them for their excellent work. his untimely death in 2001. and Ronald Gipp. If you have not already done so, we The Bar began teaching in the Papua From the very beginning, Barbara encourage you to come and view the Tapa New Guinea pre-admission course at Walsh has organised everything, and Cloth. Hanging opposite the Tapa Cloth the Legal Training Institute. We still do she holds the record with twelve trips to are the two Images of Women in the Law that, and now also conduct workshops Papua New Guinea and one to Vanuatu. portraits: a contemporary photographic for prosecutors, public defenders, the The Papua New Guinea Ombudsman’s study of Justice Sally Brown by artist Attorney-General’s department, the Commission presented the Bar with a fine Josephine Kuperholz, and the more Ombudsman’s Commission, the Judiciary, portrait of a tribal warrior. That hangs traditional photographic portrait of the and teacher training. in the Neil McPhee room, along with a five women who have been appointed In the twelve months or so from the number of carvings, masks and story to the Victorian Supreme Court by artist end of October 2002 to last November, boards presented over the years. The Murray Yann. They also are worth looking the Bar went to Papua New Guinea four Bar values its connections with the South at. All are in the foyer of Owen Dixon times. Most recently, Justice Harper Pacific and the many kind remembrances Chambers West.

32 33 News and Views Bar Reception for Pro Bono Practitioners and Farewell to Samantha Burchell

Edited speech given by Anthony Howard QC, Chairman, Legal Assistance Committee, at a reception held at The Essoign on Wednesday 3 March 2004, to acknowledge the pro bono contribution of members of the Bar and to farewell Samantha Burchell on her retirement as co-executive director of PILCH.

ADIES and gentlemen, on behalf be available to assist juniors in their of the Bar’s Legal Assistance work. Since 2002 the Asylum Seekers LCommittee, I welcome you to this Sub-committee has worked actively reception to acknowledge and thank in this area and liaised closely with counsel who have in the past 18 months a number of refugee agencies. The undertaken pro bono work on behalf of scheme also provides significant the Legal Assistance Scheme, PILCH, the assistance to prisoners and persons with Federal Court Order 80 and the Federal intellectual disabilities or mental illness. Magistracy Part 12 schemes and those There are two special features of the who have performed other pro bono work operation of the scheme that I want to which is not part of a formal scheme. mention: This is the first such reception hosted • First, the “one-stop shop” facility by the Bar. We are also here to farewell whereby the PILCH scheme is Anthony Howard QC. Samantha Burchell who is retiring as co- conducted alongside the Legal executive director of PILCH, but more Assistance Scheme, the Law Institute’s or her services. The Bar’s enthusiasm to about her shortly. scheme and the Homeless Persons help underprivileged persons is not new The Legal Assistance Scheme has Clinic. This is an Australian first pro — this has always been a part of the Bar’s been operated by PILCH since July bono model which provides existence. A short story well illustrates 2000. It costs the Bar about $84,000 per consistency, efficiency and economic the point. year of which approximately $63,000 is administration. I’m sure you all know the beautiful reimbursed by the Legal Practice Board. • Secondly, most fruitful relationships seaside resort of Lorne. I can remember Accordingly, our thanks must go to the have been established with the as a young boy sitting on the steps of the Board for its significant contribution. courts at both state and federal well-known Cumberland resort eating In June 2003, Susannah Sage was level. Barristers are often called Rainbow Chocs (the best ice-creams from appointed as the part-time solicitor/ on by the courts to assist in urgent Colac). Next door to the Cumberland was manager of the Bar’s scheme. She is and difficult circumstances. I want a beautiful old courthouse. Sadly, it is now supervised by the PILCH co-executive to particularly acknowledge the no longer. In the early 1960s a group of directors, Emma Hunt and Paula O’Brien. presence here tonight of the leaders running down barristers went on circuit On your behalf I want to extend our of the courts along with registrars to Geelong for the week. As happens, deepest gratitude to this team for the and administrators. They include within two days they had settled all excellent work which they do for the Chief Justice Marilyn Warren of the their cases. Someone suggested they Bar. Supreme Court, Chief Justice Michael spend the rest of the week at Lorne. A broad range of cases are dealt with Black of the Federal Court and Chief They went down that afternoon and by the scheme. Currently, a substantial Judge Michael Rozenes of the County had a big-slap up dinner that night. The amount of work is done for asylum Court. next morning they decided they would seekers, refugees and in the migration Presently about 400 barristers all pay a visit the courthouse. And so it law area generally. Last year the Bar volunteer their time and expertise to the was that shortly before 10.00 am, three conducted a number of seminars to train various schemes. This represents a very silks and four juniors walked into the up young practitioners in this field and pleasing 27 per cent of the Practising List Lorne Magistrates Court. An unfortunate also established a mentoring program of approximately 1,500 barristers. Every defendant had been charged with being so that experienced counsel would barrister is encouraged to volunteer his drunk and disorderly. He was sitting in

34 35 News and Views

the back of the court, slumped over in He reappeared a little while later and with something in the vicinity of $437 the corner, looking the worse for wear. the matter was called back on. Again, million worth of free legal advice in one He was unrepresented. The senior silk the seven barristers took their places year alone! To me, admirable as they are, was seen to speak quietly to a local at the Bar table. The sergeant stood up these figures suggest that governments solicitor. The deal was struck. When the and announced: “We won’t be leading any at both state and federal levels are failing matter was called on for hearing, three evidence in this matter, if Your Worship in their duty to provide adequate legal silks and four juniors strode forward and pleases”. “Yes” said the Magistrate “the aid to the Australian community. This took their places at the (rather small) charge is dismissed”. This was pro bono situation is not improving. Between Bar table. Much to the amazement of the in action! 2000 and 2003, the Legal Assistance local prosecuting sergeant, the senior That sort of commitment on the part of Scheme has seen a very significant silk announced his appearance with his lawyers is, as I say, nothing new. In more increase in the amount of work it has six juniors — “If Your Worship pleases, recent times, it was confirmed in some been called upon to perform. For I appear with my learned friends Mr startling figures provided by the former example, in 2000–2001, there were 147 Silk, Mr Silk, Mr Junior, Mr Junior, Mr Commonwealth Attorney-General, Daryl enquiries and 50 referrals. By 2002–2003 Junior AND Mr Junior on behalf of the Williams QC, at the National Pro Bono the enquiries had almost doubled, at 289, defendant AND the plea is ‘not guilty’”. Conference held in Sydney in August and there had been a 40 per cent increase The defendant looked confused. Shell- 2002. At this time, the Attorney estimated with 70 referrals. shocked, the sergeant asked for the that in 2001–2002 throughout Australia, Each of you has played an important matter to be stood down. The Magistrate solicitors performed 1.7 million hours role in a vital community service did more and adjourned the court. and barristers 489,000 hours of pro bono performed by the Bar, one of which we all Shortly thereafter, the prosecutor was work. That is 2.189 million hours which can and should feel justly proud. Keep up seen to enter the Magistrate’s chambers. equates, at a conservative $200 per hour, your involvement. The Legal Assistance

Victorian Bar Legal Assistance Scheme Case Summaries R Guy Gilbert of counsel accepted a referral to advise an R Richard Harris of counsel undertook to advise and Masylum seeker concerning judicial review of a decision Mrepresent a VBLAS client suffering mental illness, to refuse him a protection visa before the Federal Magistrate. referred from the Consumer Law Centre Victoria (CLCV). In preparing the case counsel was assisted by Mr Stephen The client had deposited much of her belongings with a Meade from Middletons Lawyers as pro bono solicitor. The storage company at a time when she was seeking hospital case was referred to the VBLAS by Victoria Legal Aid who admission for treatment. Some months later the client sought were unable to act but were concerned that the client receive to recover the goods without success. She repeatedly sought assistance given his major psychiatric illness and inability to to gain a copy of the storage agreement as well as offering understand English. Mr Meade visited the client to receive a financial settlement for the return of her belongings. The instructions at the Thomas Embling Hospital with the help of storage company would not respond. Counsel, with CLCV an interpreter. While final instructions were to withdraw from instructing brought proceedings for recovery of goods or the court proceedings both counsel and Middletons remained damages. While recovery was not possible, Counsel secured on the record to assist the client in his application to the an Order for $5,000 in damages. Minister for Immigration Multicultural and Indigenous Affairs and to challenge the costs order sought by the Australian S Caron Beaton-Wells and Mr Justin Serong of counsel Government Solicitor. Mworked together with pro bono instructor Mr Henrik Lassen partner at Herbert Geer and Rundle to achieve an R Jason Harkess of counsel appeared in Broadmeadows outstanding and rare success on behalf of an asylum seeker MMagistrates’ Court for a client referred to VBLAS from detained at Port Hedland WA before the Full Federal Court. Coburg Brunswick Community Legal Centre. While the Counsel appeared before his Honour Justice Carr by video VBLAS does not routinely accept petty criminal matters, link between Melbourne and Perth. The case involved the this client faced a number of assault charges and was refused review of a decision to refuse a protection visa by a delegate Legal Aid due to a conflict. The client was recognized as of the Minister, affirmed by the Refugee Review Tribunal unable to adequately represent himself given his youth, drug (RRT) and appealed unsuccessfully to a Federal Magistrate. and anger issues. The notable efforts of counsel resulted in Extensive and complex submissions were made by Counsel the client being given a Community Based Order without to the Federal Court and as a result His Honour remitted the conviction. In substantially similar circumstances Mr matter to the RRT and awarded costs in favour of the client. Sergio Petrovich of counsel agreed to appear in Heidelberg The client was subsequently referred to Migration Agent Magistrates’ Court for a client charged with three charges of Mr Kon Karapanagiotidis at the Asylum Seekers Resource unlawful assault, intentionally causing injury and recklessly Centre for the preparation and representation at his second causing injury. Counsel’s successful negotiation resulted in RRT hearing. all indictable offences being withdrawn and the client facing only the unlawful assault charge. Counsel put mitigating circumstances before the Magistrate and the client received a $300 fine without conviction.

34 35 Samantha Burchell being presented with her farewell gift by the Honourable Chief Justice Warren.

Committee and the Bar Council thank of co-executive director with Emma Hunt important human rights issue and there you and all those who stand ready to and later Paula O’Brien until February were mutterings around the PILCH offi ce perform pro bono work. this year. Sam’s arrival at PILCH in 1999 of — “its more than a game”. It may not It is now my pleasure, on behalf of came at a pivotal time in its development. be politically correct, but the VCAT case the Bar, to farewell Samantha Burchell She set about consolidating all of its was affectionately known at PILCH as the who is retiring after working for 41⁄2 activities, and the organisation and its “footy chicks’ case”. years as the co-executive director of work fl ourished. Sam was instrumental Sam has been described by a number PILCH. Sam’s background is impressive. in driving the agreement with the Bar of her co-workers as “hard working, She fi rst completed her articles and then for the establishment of the current meticulous and a creative thinker — a worked as a solicitor at Wisewoulds. In Legal Assistance Scheme. Under her pleasure to work with”. I can say from 1991–1992 Sam worked as an Associate guidance, PILCH established its fi nancial my own experience, having worked with to Justice Heerey in the Federal Court. In independence. Of special note, Sam Sam now for the past three years, that 1993 she came to the Bar and remained worked to secure the legal department this is very accurate description of her until 1999. She practised in general civil of the National Australia Bank as the and her work ethic. She is a dedicated law, family and criminal law. Sam was fi rst corporate member of PILCH, and and professional public interest lawyer the Assistant Honorary Secretary of the set up the “one-stop shop” model I have who has made both a contribution Bar from 1996 to 1999, a member of the already mentioned — both Australian and a commitment to this important Legal Assistance Committee from 2000 fi rsts. community service. Those of you who had to the present, a member of the Women Whilst at PILCH, Sam has been bacon and eggs this morning will know Barristers Association from 1996 to 1999 involved in a number of major public the difference between contribution and a member of the New Barristers interest cases including the Tampa case, and commitment. You will know that in Committee from 1993 to 1995. which was heard in the Federal and High the case of your breakfast the chicken In 1999 the Bar Council granted Courts in 2001, and more recently in the made a contribution, but the pig made a Samantha special leave from the Bar so VCAT application by three adolescent commitment! that she could take up her position at girls wanting to play football in a mixed Other than having written extensively PILCH where she has shared the position competition. The matter concerned an and delivered conference papers on pro

36 37 bono, Samantha’s other professional be greatly missed by her colleagues and This seemed to be an apt metaphor for achievements of special note are: clients. tonight’s occasion. Sam’s departure, • accredited mediator since 1997 What of Sam’s future? She is not whilst disappointing for her many friends • member of the National Pro Bono immediately returning to the Bar. Facing and colleagues, is not quite as serious Resource Centre Steering Committee “pro bono burnout”, she proposes to as that faced by Socrates who, on his 2001–2002 and Board 2002–2003 take a deep breath and have a rest! involuntary retirement from life, said: • member of the Federal Attorney- She will have more time to spend with “Calm yourselves and try to be brave.” General’s Pro Bono task force 2000– her husband, Albert Monicino, who is a Sam, on your voluntary retirement, the 2001 successful commercial barrister, and her Bar thanks you for a job well done. • member of the Advisory Council, two delightful children. She is not only I will now call on the Chief Justice who Victorian Law Reform Commission moving house next week but at the same will, on behalf of the Bar, present a gift to 2003 to the present. time restoring an old bluestone church Samantha. It is clear that Sam’s interests and near Daylesford. So, she has plenty to do. [Chief Justice Warren then presented achievements are conspicuous and wide I couldn’t help noticing in today’s Age, Samantha with a gift on behalf of the Bar ranging. She is a valued and respected in the shipping news, of the arrival and and Samantha made some remarks by practitioner in the pro bono field and will departure of the Victorian Reliance. way of reply.]

Reply by Samantha Burchell to Tony Howard QC at Victorian Bar Legal Assistance Scheme Function

HIEF Justices and colleagues: Sir Owen Dixon went on to say: given a substantial amount of funding to When I received the invitation “… the barrister should be completely the Bar to provide for the administration Cto this evening’s function I felt independent and work entirely as an of the Scheme. entirely overwhelmed. Although I very individual, drawing on his own resources For organisations to come together much appreciate such a generous of learning, ability and intelligence, and in a way that the Bar and PILCH have farewell gesture, I do not feel worthy. owing allegiance to none.” requires the motivation, commitment The role I had at PILCH for the last 41⁄2 It is this quality of independence and efforts of individuals. In this context years has been a privilege and a pleasure. that makes barristers’ contribution to I would like to thank Garrie Moloney who I had the rare opportunity to work in pro bono work so valuable. There are as Honorary Secretary of the Bar Council an organisation where I was passionate occasions that come to mind where the made an enormous personal contribution about its underlying objectives, in fearless independence of counsel working to the formation of the scheme by running particular that of access to justice for pro bono has been striking. The Tampa it on a voluntary basis from 1996 to 2000. all. I have been involved in a change case is a notable example. But there I’d also like to express gratitude to David of the culture and manifestation of pro are many other occasions considerably Bremner, the Executive Director of the bono work in the law. I have had some more unremarkable where barristers, Bar, who with his calm and wise ways has unique professional experiences. And unfettered by ties or conflicts, have made often gone beyond what would normally I have worked with some amazingly an enormous contribution. In this context be expected to simply make things gifted, creative and generous lawyers. It the work of so many members of the Bar work. And I would like to especially is these people that are truly deserving of to assist asylum seekers, particularly acknowledge Tony Howard QC whose acknowledgement and thanks. those held in immigration detention in energetic leadership helps to motivate, On the occasion of his swearing in as remote parts of Australia, is particularly guide and maintain the commitment of Chief Justice of the High Court in 1952, deserving of praise. all involved. Sir Owen Dixon said: “… it is the duty At this point I would like to personally Finally, I would like to thank each of the barrister to stand between the and on behalf of PILCH convey some and every member of the Bar who has subject and the Crown, and between the heartfelt thank yous. expressed willingness to participate rich and the poor, the powerful and the Over a number of years the Scheme and has given of their time, skill and weak …” and PILCH have enjoyed the support expertise. It has been a pleasure to work That duty is given true meaning in (financial and otherwise) of the Bar together. the context of pro bono work. Every Council. I would like to particularly As for me personally, I have embarked day barristers, like many lawyers, acknowledge two former chairmen, on a bit of sabbatical. According to represent people who are vulnerable, David Curtain QC and Mark Derham QC, Chief Justice Warren’s well known disadvantaged and otherwise voiceless. who made the leap of faith and supported assessment of the five ages of women, I They do so without any expectation of the PILCH initiative of bringing the major am smack bang between the “energetic fee or even acknowledgement or thanks. pro bono schemes in Victoria together in and ambitious” phase of my life on the With their particular skills in advocacy a way that is now the envy of many other one hand, and the “cool, calculating and they provide such clients with access to states in Australia and overseas. driven phase” on the other. That being a system, which is largely adversarial in I would also like to acknowledge the the case I think I need to pause and take quality, and which would otherwise be generous financial support of the Legal stock. inaccessible. Practice Board which in recent years has

36 37 News and Views Services for the Opening of the Legal Year St Paul’s Cathedral The Reverend Doctor Dorothy Lee, Professor of New Testament Studies, The Uniting Faculty of Theology.

Deuteronomy 6: 4–13, Mark 12: 28–34 In the fi rst place, the tricky question the lawyer asks Jesus is a question N the four Gospels, there are a good fundamentally about where the centre many stories about lawyers, not all lies. “Which commandment is the fi rst of Iof them favourable. Indeed, to be all?” What, in other words, is the centre perfectly frank, the majority are probably of the law? What’s the most important rather negative. Today’s reading from the thing about the law? It’s a vital question Gospel of Mark, however, is a shining and a question much disputed in the exception: A scribe — that is, an expert Jewish world of Jesus’ day. And Jesus in matters of law — approaches Jesus chooses to answer it at face value. He’s in what seems at fi rst a hostile manner a good Jew. He answers the question by and with a trick question in his hand, going straight to the very heart of the Old and ends up being bowled over by Jesus’ Testament. And he outlines what the law, answer. At this stage in the Gospel, we’re with all its fumbling and its qualifi cations Justices Batt, Phillips and Ormiston. expecting yet another confronation and its omissions and its wordiness, what between Jesus and the authorities in the law at its best, at its heart, is really Jerusalem. But in fact that isn’t the case. trying to achieve. The story ends up being one of those rare And that’s pretty important stuff. We moments in the Gospel of Mark where need, as society to be asking ourselves the sun breaks through the clouds. Jesus this same question: What is the centre and a lawyer fi nd themselves in perfect of law? What is its heart? What is it agreement. really on about? Because one thing Now the Bible itself has a lot to say on that characterises us humans is our the subject of law. You may have heard truly appalling memory, no matter how people saying that the God of the Old effi cient or well-organised we think Testament is a god of law, while the God we are. We keep forgetting what our of the New Testament is a god of love lives, what our professional institutions and grace. But nothing could be further are really on about. Our lives are so from the truth! Our two readings, from frantically busy that we rarely have time Deuteronomy and from Mark, both cohere to centre ourselves; to ask ourselves perfectly: their message is identical. what our profession, institution, what our The God of the Bible is a god both law contribution to society, is truly about. and love, a god of justice and mercy, in And so today for the start of the legal both testaments, a god who demands year, the Gospel challenges us to ask this The Reverend Doctor Dorothy Lee. the very highest ethical standards but central question: what is the heart of the who shows also the deepest levels of law for us, and what are our professional to have a conversation. “What is the fi rst mercy. Law and grace in the Bible are lives really on about in light of that? commandment?” Where does the heart of not mutually exclusive. You can’t take The answer demands an extraordinary the law lie — for me, for you? And what your pick and side with one or the other truthfulness from us — about ourselves difference does that make to the way we — not unless you want to walk away from and about the world we live in — a depth live our professional lives? the position on these matters that God of insight and wisdom. The irony is that Secondly, the whole weight of the law, himself takes. to have these qualities goes right against in Jesus’ answer to the scribe, turns on So, what is it about our readings today our culture which is often so obsessed the issue of love. Love, in Jesus’ view that might help us understand this vital with superfi cial image and success, that and in the view of the Old Testament, nexus between law and love, between it’s very hard for us to even fi nd the stands at the very centre of the law. justice and grace? centre, let alone stay there long enough Now at fi rst glance you may think that’s 38 39 News and Views

Judges’ Associates.

Justice Balmford. Judges Harbison, Wood, Duckett Justice Robert Osborn. and Neesham.

Entering the Cathedral, Justices Group of Judges with Canon Anne Wentzel, Dr Dorothy Lee and Ormiston and Hayne. Reverend David Richardson. absurd, that law and love are opposites; the one hard and uncompromising, the other soft and rather wet. But that’s certainly not the biblical view. For a start, love isn’t soppy and sentimental. Love doesn’t mean sweeping nasty things under the carpet. Love isn’t about making things seem good when they’re really bad. It’s not about letting innocent people be walked over by Justice Hansen. Justice Nettle with Judge Wood. Victoria Strong, reading the those who are unscrupulous Second Lesson. and manipulating. “Love,” says St Paul, in one of the most exquisite passages of the New Testament, “bears all things, believes all things, hopes all things, endures all things.” That’s a pretty tough kind of love. It’s the sort of love that enables us to face the very worst about our world, about ourselves. It demands integrity of us, but equally honesty when we fail. It’s the kind of love that may from time to time lose heart but never gives up entirely: Justices Chernov, Ormiston Archbishop Peter Watson. Judge Nixon. not on any one, not on our and Hansen.

38 39 society and its institutions, including the as the neighbour dimension. Indeed, in egotism and self- centredness. law, not on ourselves. Bible, the God aspect comes fi rst. Love So whether we name God or not, God And love isn’t just about the of God is a call against idolatry, against is present as the mystery at the heart of individual: it has a social and political putting anything or anyone in the place of things, a mystery that embraces every dimension — it’s concerned also about God. If we want to use language that’s less aspect of our lives. And that means that, social justice. It’s prepared to make the religious, we could say we need to have a whether we’re speaking about our society hard, self-sacrifi cing decisions that will sense of transcendence, an awareness of and the way it’s run, or talking about prevent our society becoming more and mystery that is beyond us and yet among institutions like the law, or discussing our more torn apart between the haves and us. That sense of mystery is what helps relationships to one other, we’re not just the have-nots, between the comfortable us to give other people the respect and speaking of ourselves. There’s another insiders and the desperate strangers dignity they deserve as human beings. reference point, another dimension that who come knocking on our doors. Of It’s what enables us to treat the earth intersects with everything we say and do. course, law can’t manufacture love, not with respect instead of abuse. You don’t And that dimension is more worthy of even in the Bible, but it can point us have to be a card- carrying Christian to our love and our reverence and our best in the right direction; it can ensure, as recognse that there is this other aspect efforts than anything else in all the world. much as possible, that the innocent are to life — this sense of spirituality — that In that spirit, with that attitude, we are guarded, the vulnerable protected, the is present in all that’s good and beautiful indeed, like the scribe, “not far from the rights of the destitute maintained. In the and worthy in our lives and institutions. kingdom of God”. Bible, the law is particularly concerned Without it, we descend into our natural for the needy, the disabled, the poor, the uneducated, the outsiders. If the law can’t create love, it can certainly help to St Patrick’s Cathedral safeguard it, to be the banks of the river, as it were, giving structure and direction. Love and the law go hand-in-hand; RED MASS should not lose sight of how our children they’re allies and ultimately friends. HE Red Mass for the legal might inherit a better world. Thirdly, and fi nally, the answer Jesus profession upon the occasion of The President of the Law Institute, Mr gives the scribe holds together the Tthe opening of the legal year was Chris Dale, and the Senior Vice-Chairman vertical and the horizontal. “You shall celebrated by the Most Reverend Denis of the Victorian Bar, Mr Ross Ray QC, love the Lord your God with all your Hart DD, Archbishop of Melbourne at St read the lessons. heart, and with all your soul, and with all Patrick’s Cathedral, East Melbourne on 2 A full transcript of the homily delivered your mind, and with all your strength,” February 2004. by his Grace is published below. says Jesus, quoting our Deuteronomy The annual Mass was attended by the passage. And, then, because Jesus isn’t Governor Mr John Landy, the Attorney- My dear Friends, going to be confi ned by just one question, General for the State of Victoria, Mr Rob Forty days after his birth, the parents he adds: “The second is this, ‘You shall Hulls and many judges, magistrates and of Jesus took him to the Temple in love your neighbour as yourself’. There other members of the legal profession Jerusalem “observing what stands written is no other commandment greater than who sought God’s blessing for the work of in the law of the Lord”. It is this event, by these.” Not one commandment then but the legal profession in the year ahead. two. Not one dimension to love but two; The homily delivered by the not just a horizon encircling the earth Archbishop discussed the Judeo- but also the sky above us, reaching up Christian tradition of God as the ultimate and up. lawgiver and supreme judge and the And so we’re called, on the one hand, Catholic Church’s faith in the growth to love one another — to love the other of a body of international law based who is our neighbour. Luke’s Gospel upon “universal principles” of justice tells us — in another conversation with and human rights and the development a lawyer — that our neighbour isn’t of institutions to administer it. In this just the person next door but also the context and with respect to international stranger we meet in the street, the one relations His Grace quoted the Pope who whose totally alien to us in every possible has said that the law favours peace and way, even our enemy. Jesus tells us that we must prefer the force of law to that this “neighbour” has as much right the law of force. to our love and goodness, our social His Grace observed that those in the justice and integrity, our compassion legal profession “are called to serve … in and sense of fairness, as the people who the search for justice, in respect for truth, are like us, the people we feel at home in the promotion of equity, in the right with. Uncompromising love of the other, ordering of society, in the punishment of regardless of who and what that other is, crime and the healing of the wounded by stands at the very centre of the law. it, in the protection of the rights of all, But there’s more to it than that. Like especially the weak” and reminded us Jews and Muslims, Christians believe that that we are often the guardians of liberty the God dimension is just as important and human dignity and that as such we

40 41 Chris Dale speaking with the Most Reverend Denis Hart D.D. Archbishop of Melbourne.

Governor John Landy and Mrs L.I.V President Chris Dale Landy arrive at St Patrick’s. giving a reading. Robert Ray QC Senior Vice- Chairman of the Victorian Bar giving a reading.

Procession entering St Patrick’s Cathedral. Most Reverend Denis Hart D.D. Justice Vincent and Sir James Archbishop of Melbourne. Gobbo after the service.

Governor and Mrs Landy and Attorney-General Rob Hulls after the service. Most Reverend Denis Hart D.D.

40 41 a happy coincidence, which we celebrate inequality and exploitation, of damage to you may need to find a way to speak to us today on the feast of the Presentation of the environment, of disrespect for human with the prophet’s voice. the Lord, as we gather once more for the life and human dignity. It is customary at this Red Mass to traditional Red Mass at the start of the We must demand of our leaders invoke the inspiration and help of the legal year. honesty in public life and public policy. Holy Spirit on our work in the year In the Judeo-Christian tradition God is As the Pope has said recently, law favours ahead. I would like to do so in the the ultimate lawgiver and supreme judge. peace, and we must prefer the force of words of Stephen Langton, Archbishop His creation is ordered by laws which law to the law of force [Message for of Canterbury, at the beginning of the reflect the divine wisdom: their intricacy World Day of Peace, 01.01.04, n. 5]. 13th century. Cardinal Langton was an and complexity are an ever-present In fact, Jesus spoke rather rarely energetic and creative ecclesiastical reminder of the awesome nature of the about the law on its own. For him law legislator, whose influence on church creativity of God. has a constant companion, for he usually law was considerable. He was influential In the human realm, the law was spoke of “the law and the prophets”. in the framing of Magna Carta, at great considered the greatest of God’s gifts to When his parents took him to the temple cost to himself. He was also the author his people Israel, a law given to Moses in fulfilment of the law, they found a of the famous poem Veni Sancte and also written in the human heart. prophet waiting for him there. Her Spiritus, which we use as the sequence We Christians treasure above all the name was Anna. When she saw Jesus, at Pentecost. The longings, which it “new commandment” of love of God and “she praised God, and spoke of the child expresses, are our own as we commence love of neighbour which the Lord Jesus to all who hoped for the deliverance our work once more in the service of our taught in word and deed. of Jerusalem” [Lk 2.38]. When he was community: The Catholic Church, of course, has transfigured on Mount Tabor, he was its own body of law, and over many seen with Moses, representing the law, Come, Holy Spirit, centuries has been a strong voice for the and Elijah, representing the prophets. and send out a ray philosophical tradition of natural law, a You know better than any of us what of your heavenly light. law established by reason, universal in law is and how it works, but what of Come, father of the poor; its precepts and binding in its authority, prophecy, the biblical companion of the come, giver of gifts; because it is rooted in the dignity of law? Prophecy is linked to contemplation. come, light of our hearts. the human person, and ultimately in The prophet, because he knows how to the wisdom of our Creator. The Church listen to the voice of God, sees into the Come, best of comforters, continues to insist that the natural law heart of things. The prophet does not sweet guest of our soul: must be the foundation for the building scorn the law, but he demands that law sweet refreshment, of any human community. It enshrines serve the cause of justice, that it vindicate rest in our toil, the common principles that can bind the rights of the weak and the poor, that cool in the heat, us all into one human family which it insist on truth and integrity, that it relief to our pain. transcends our differences. It expresses strive to heal what is broken, and that, the dignity of each person and his or however imperfectly, it represent for us O most blessed light, her fundamental rights and duties. It some vision of what we hope our society fill the deepest hearts provides a necessary basis for civil law, might be, and of how we ourselves should of those who believe in you. with which it has an essential connection act towards one another. Without your divine power [cf. Catechism 1956–1959]. Moses is not Elijah; a lawyer and a we have nothing in us, Pope John Paul II and his recent prophet are not the same. Your work is nothing that is not wounded. predecessors have spoken with great constrained by all kinds of limitations, and insistence and determination about the rightly so. You are occupied principally Wash what is unclean, importance of the natural law, and have with what our society considers the water what is parched, done so with special urgency in the field boundaries of acceptable behaviour and heal what is wounded; of international relations. In fact, the the transgression of them. bend what is stiff, growth of a body of international law But you are also the custodians of warm what is cold, based on universal principles of justice a long tradition of reflection on the guide what has gone astray. and human rights, and the development horizons that beckon us and the social of institutions to administer it, is one of ideals which inspire us; you are often Give your seven holy gifts the great signs of hope in modern times. the guardians of our liberty and our to your faithful ones The world community increasingly human dignity. This requires a kind of who trust in you. wishes to have laws which do not merely contemplation: it takes us to the heart Give virtue its reward, preserve international stability, or which of things. Sometimes, especially when give us salvation at the end, see peace merely as the absence of we forget what our ancestors learned, or give us the joy which lasts forever. war, but rather to have international when we lose sight of how our children agreements which strive to address the might inherit a better world, or when we Amen. root causes of violence and injustice, do not consider the law that the Creator of preventable disease and famine, of has written in his world and in our hearts,

42 43 Melbourne Hebrew Congregation

HIS year’s Jewish opening of Justice is a fundamental upon which gallery the likes of which many of the the legal year was at Melbourne the world endures; the judge who renders congregations’ parents or grandparents THebrew Congregation in St Kilda a correct judgment is a partner of God in would ever have witnessed in their Road. creation, he said. countries of birth. Rabbi David Rubinfeld gave a sermon The congregation was also addressed The service closed with a particularly in which he discussed a reading from by synagogue president Mr Leonard rousing rendition of the hymn Adon Olam the Ethics of The Fathers and the Yaffe. delivered by Rabbi Rubinfeld to the up Scriptures. He welcomed the attendees and tempo tune of Waltzing Matilda. In that reading Rabban Shimon ben noted the presence of members of the Gamliel said that the world exists upon Bench and a representative of the State three things — truth, judgment and Government. peace. Mr Yaffe observed that it was not a

Larissa Halonkin, Justice Kellam and Margot Maylan.

Alex Lewenberg, Justice Linda Dessau, Rabbi David Rubinfi eld and Chief Judge Rozenes.

Sharon Burchill, Larissa Halonkin, Justice Habersberger and Emily Howie.

Katy Barnett, Deborah Mandie, Justice Mandie, Mrs Marilyn Mandie and Evelyn Martin Ravech QC and Judge Rachelle Danos. Lewitan A.M.

42 43 News and Views Buddhist Temple

WO thousand and four was the second year that a Buddhist TCeremony was held to mark the opening of the Legal Year. The ceremony once again took place at the Fo Guang Yuan (Buddha’s Light) Temple in Queen Street, Melbourne. The organisers of the ceremony were keen to ensure that it refl ected the different schools of Buddhism active in Australia. In this task they were ably assisted by the Buddhist Council of Victoria who arranged for the attendance of various ordained members of the Buddhist community from both the Theravadan and Mahayana traditions. Approximately 40 participants, including David Andrews, solicitor, Holding Redlich, speaking on behalf of the legal a number of members of the Bar, profession at the Buddhist ceremony. distinguished guests Justice David Byrne of the Supreme Court and representatives from the judiciary of the County Court were offi cially welcomed by the Reverend J Kai and the nuns of the Temple. After a Dharma talk by the Venerable Santindriya of the North Victorian Buddhist Association, David Andrews, solicitor and partner at Holding Redlich, spoke on behalf of the legal profession about the relationship between the law and Buddhism. The Venerable Thich Phuoc Tan of the Quang Minh Temple in Braybrook led a meditation before Making an offering of light to the Participants listen to a lecture participants were given the opportunity Buddha. delivered on behalf of the Fo Guang to make an offering of light to the Buddha Yuan Temple. “as an expression of generosity, a symbol of non attachment and an accumulation Thanks are extended to those who and solicitors Angela Perry, Lian Liu, of merit and wisdom”. The formal part of attended and supported the event; the Andrew Linton and Tom Rowen, who the ceremony was closed with a transfer Buddhist Council of Victoria, especially were indefatigable in their organisational of merit by the Venerables Ananda and Brian Ashen and Michael Wells; the efforts. Thich Phuoc Tu of the Buddhist Society hosts at the Fo Guang Yuan Temple; Oscar Roos of Victoria.

Opening Hours: TUESDAY, WEDNESDAY and THURSDAY 9am to 3pm

44 45 News and Views Major Michael Mori, David Hicks’ US Military Lawyer, Visits Melbourne

Sara Hinchey

N 11 March, 2004, Marine Major 1.15pm to hear this most impressive and Michael Mori was interviewed articulate man speak, inter alia, about his Oby Kerry O’Brien on the 7.30 experience so far, his concerns about the Report. Amongst other things, Major system and, of course, his concern for Mori spoke frankly about the process the plight of his client. Many who wanted which his client, David Hicks, presently to hear Major Mori speak had to be faces and the fundamental flaws in the turned away because of a lack of space. system presently proposed by the US It was, truly, an unprecedented show of Government for trying those being held solidarity amongst lawyers, and a riveting at Guantanamo Bay. and lively hour of discussion. That interview sowed the seed of an Major Mori has promised to keep idea, and the following day, I successfully the Bar informed about the progress contacted Major Mori while I was visiting of the case against his client and may Adelaide. well return to Australia later this year Much to my delight, upon hearing to gather more evidence in support of of the Victorian Bar’s interest in and the case. We wish him well in his position on the issue, Major Mori agreed endeavours and commend the to meet with members in order to obtain extraordinary stance he has taken against their views on the plight facing Mr Hicks the system imposed upon detainees at in the US. Guantanamo Bay. His outspoken support So it came to be that on 17 March, of his client’s position and the courage 2004, despite only one day’s notice, he has displayed in defending the rule literally hundreds of barristers squeezed of law against ignorance and fear, is themselves into the Neil McPhee room at inspirational. Sara Hinchey.

Major Michael Mori. Barristers squeeze into the Neil McPhee room.

44 45 News and Views News and Views

Justice Gaudron officially opens the chambers, with occupiers Richard Maidment, Stephen Whybrow and James Glisson. Justice Gaudron Opens Gaudron Chambers in Republic Tower

AUDRON Chambers was launched approximately September 2004, when • The second type of membership by Her Honour on 5 March 2004. Richard Maidment is moving in. The is a “license” arrangement. This is GIt is a small set of chambers in rent is $1,500.00 per month. designed for low usage members of the Republic Tower, 299 Queen Street. Also, there is an option to sub-let chambers who do not require their The chambers are on Level 22 and a secure designated car park until own room, but want access to the have magnificent facilities, including September for an extra $330.00 per conference room on a booking basis, spectacular views over the courts, parks, month. want a place to hang their robes, Docklands and the bay. Each of the rooms have mail delivered and have a set of has a full-width balcony. There is a large chambers with which to identify. This conference room/library and access to a arrangement has been working very well-equipped gym and 25-metre pool. well for one local barrister and three There are two categories of interstate counsel. No access to gym membership: or pool in this category. The fee is • Room with shared use of conference $275.00 per month. room. As mentioned the room has No long-term contract required for a balcony, spectacular views. It has either situation, rent paid monthly in full-length windows and sliding advance, on a month to month basis. door. Full access to gym and pool. I Jeanette Morrish QC speaking to the Anyone interested can call Jeanette have one room left for sub-let until gathering. Morrish on 9670 0500 or 0416 087268.

46 47 News and Views News and Views The Balance of Improbabilities

By Richard A. Lawson

OME time ago I was press longer than four pages. Even the ganged into a meeting that start of a CV is something calling Shad fallen short of a quorum. for careful study. Some start at Year Those there were grateful: I 12, some at admission to practice. listened, voted and did my best By contrast, applicants may begin to be polite. My reward was to be by noting their batting average added to a committee that the from their time in the under nines. meeting was appointing. And, ever But I digress. Let me return to the since, I have been a member of this deluxe 17 pager. committee. Something to add to The thing that was noteworthy one’s CV, as they say. about these particular 17 pages, The committee’s work is not very unlike many efforts of a similar taxing. Its main task is to examine length, was that I didn’t start other people’s CVs, being ones nodding off half way through which from time to time, it receives reading it. The applicant, so he from would-be barristers. Over the said, was in his late forties, happily years I have read several hundred married with four adolescent of these documents. All this reading children. At least he had age as is better described as having been a point in mitigation. Unlike a 23 an education rather than a chore. year old, this man had four decades It may be that I have become an of achievements to catalogue. expert in CV analysis (assuming Nevertheless. the more one read CV analysis to be a recognised the more one started thinking field of expertise). “CV analysis “unprobably good”. experience” being itself something The crunch came at pages 11 to to add to one’s CV. 13. This was a list of 43 professional The fascination with these little committees with which the autobiographies is enduring. They applicant claimed to be, or to have can be long, short, smug, selective, been, linked. His wife, I thought, modest, heart-felt, optimistic, The author at his improbably good holiday house. was to be likened to Mrs James informative, mis-leading and/or Cook left to her Yorkshire stone ridiculous — and many other things as true as the official version relied upon. cottage while her husband-navigator was besides. But I am happy to say that I have One of these extra versions is improbably off exploring for years at a stretch only ever read one that was demonstrably good and the other improbably bad. The 43 professional committees untrue. Indeed, I could imagine myself writing were divided into three groups by the The helpful point is to understand that a CV that, on one view, would see me applicant. He was or had been an active a CV, of all the adjectives just mentioned, short-listed for an Australia Day honour. member of 15. He was or had been a is almost always selective. It seems that But I could also imagine myself writing a “normal” member of 14 more. And he most people, when sitting down to the CV that would probably see me locked was “passively connected” with another task of writing their CV (or adding to it up. Generally speaking, the CVs one 14. And then I saw it. My close reading as they say), do not have Lord Atkin’s gets to read are pitched at one to two disclosed that for five years he had been phrase in Donoghue v Stevenson in steps below the “improbably good” level simultaneously an active and a passive mind, namely, “… when I am directing which is, of course, many steps above the member of the same committee. my mind to the acts or omissions which “improbably bad”. I grinned. One might even say I was are called in question”. In short, the good The one that I have read that was smug. Too much time spent in my youth bits go in and the bad bits stay out. demonstrably untrue ran to 17 pages. looking for non-existent flaws in postage I have formed the tentative view that The length of a CV, by the way, is a matter stamps had paid off — finally. I became many of us have a couple of extra CVs that warrants its own consideration. Here “active” myself at our own committee’s inside us straining to get out. These other I admit to prejudice and/or discrimination next meeting. Something to add to one’s two versions are more selective but just — mistrusting as I do anything much CV.

46 47 News and Views News and Views Verbatim

Before proceeding further, the Court notes Dr Emmerson: I think if one looks to see Gardening Duties that this case involves two extremely lik- the counsel involved — K.R. Handley QC, County Court of Victoria able lawyers, who have together delivered with him J.J. Garnsey and Mr Fleisch of some of the most amateurish pleadings the London Bar … 21 June 2002 ever to cross the hallowed causeway into His Honour: I withdraw that suggestion Coram: Judge G.D. Lewis Galveston, an effort which leads the Court then, Dr Emmerson. Buttigieg v Eldridge Glen Pty Ltd and to surmise but one plausible explanation. Victorian Workcover Authority Both attorneys have obviously entered Dalton QC and Waugh for the Plaintiff into a secret pact — complete with hats, being cross-examined by Gillies Tough handshakes and cryptic words — to draft Gillies: What other things have you done their pleadings entirely in crayon on the Federal Court of Australia in the garden apart from the possibility of back sides of gravy-stained paper place Melbourne 15 June 2000 sweeping on the one occasion, pulling out mats, in the hope that the Court would be Coram: Finkelstein J. the weeds on one occasion …? so charmed by their child like efforts that Telstra Corporation Ltd v Desktop Plaintiff: Nothing since — my husband their utter dearth of legal authorities in Marketing Systems Pty Ltd & Anor usually does the gardening and the their briefi ng would go unnoticed. Whatever Emmerson QC and A. Ryan for Applicant mowing of the lawns. actually occurred, the Court is now faced Shavin QC and G. McGowan for Gillies: Yes, I’m sure he does usually, with the daunting task of deciphering their Respondent but I’m asking about what you’ve done? submissions. With Big Chief tablet readied, At the close of an eight-day trial in a Plaintiff: None — well, it’s all I can thick black pencil in hand, and a devil-may- diffi cult and complex copyright case, and afford doing. care laugh in the face of death, life on the before reserving judgment: Gillies: No digging at all? razor’s edge sense of exhilaration, the Court Plaintiff: Yes, there was one occasion. begins. Mr Shavin: This is clearly designed to Just in case it’s on video, I bought a be a test case and if there was guidance couple of little plants, a little thing, and given by Your Honour to the participants I just did a couple of turns and put some Some Are More Equal in the marketplace it may minimise the little plants in the soil. It was about a half necessity for a large number of these a dozen or so. Than Others cases to go one after the other. If Your His Honour: What do you mean when Honour pleases. you say, “Just in case it’s on video”? That Federal Court of Australia His Honour: Thank you. Thank you all gives me the impression you think you 17 June 2001 very much. I thought constitutional cases should own up to that one because it Coram: Heerey J were tough, but no longer. I will adjourn might have been seen? Welcome Read-Time SA v Catuity-Inc sine die. Plaintiff: No, Your Honour. It’s just J. McL. Emmerson QC and A.J. Ryan for something I said. I shouldn’t have said it, Applicant I’m sorry. D.K. Catterns QC for Respondents (Discussion about form of orders made in High Court case) Expressing Judicial Dr Emmerson: There’s liberty to apply as to the mode of assessment. There’s Dissatisfaction a certifi cate of contested validity and Most of us have experienced the situation there’s an order dealing with the costs in which the court calls into question the that had occurred up to that stage. form of our pleadings or the logic of His Honour: Sorry, have I missed T H E our submissions. Few, however, have something? Was there an injunction at been subjected to the sort of criticism all? which District Judge Kent in the United Dr Emmerson: There’s a declaration of ESSOIGN States District Court at Galveston infringement. Open daily for lunch expressed in Bradshaw v United His Honour: There doesn’t seem to be Marine Corporation Inc. In granting any injunction. See blackboards for daily specials the defendant’s application for summary Dr Emmerson: There doesn’t seem to judgment on 27 June 2001 His Honour be an injunction, no, Your Honour. Happy hour every Friday night: said: His Honour: Perhaps counsel just forgot 5.00–7.00 p.m. Half-price drinks to ask for it.

48 49 News and Views News and Views

Father Christmas (Paul Elliott QC) handing out the presents. The Victorian Bar’s Children’s Christmas Party

HAT do Twister the Clown summoned them to a beautiful rotunda in And so it was decided that Santa had and Milo the Magician have in the leafy environs of the Royal Botanical to be transported from the garden gates Wcommon? Both stole Santa’s Gardens [soon to be renamed the Senior to the beautiful rotunda in a golf cart. sleigh. Or more correctly commandeered Peoples Open Environment for Passive Faster and less cruel to reindeer. And Santa’s cart at the Children’s’ Christmas Recreation] — SPOEPR. so in early years, a dear old lady, a friend party in the Botanical Gardens. There the children frollicked whilst of the gardens, would drive Santa to the The story goes this way … Once the grown ups lingered on merino rugs children where simple gifts and lollies upon a time the good barristers had with a chilled picnic goblet of fresh were distributed amongst laughter. But children. They mothered or fathered orange juice. recently youth has taken over. Young babies whether they could afford it or But things change. Progress is keen people in uniforms who don’t not — because they had been taught that inevitable. Times must move on. So believe in Santa now drive the cart. having lots of kiddies and big families was Santa’s sleigh was judged to be too It came to pass that these modern the right thing to do. slow for modern day deliveries. Simple youth fell under the spell of Twister the And so there were lots of bean bags wooden toys, candy sticks and hoops Clown and Milo the Magician. In modern and deep breathing — no matter whether were replaced with game boxes, DVDs, days a Christmas party with Santa is not the naughty solicitors were paying computers and gender-free international enough. Children at parties need to be outstanding accounts or not. And it came dolls. Santa was on a tight schedule. entertained by clowns and magicians to to pass that Father Christmas noticed the Every six minutes had to be charged to fill their TV-infested minds. Some years good barristers. For years and years he a client ago while Santa performed, Twister

48 49 Father Christmas.

Ellena Kouris. Alfred Kouris. Ed Remer and son William.

Tony Burns and Deborah Morris with Georgia Burns, Sarah Burns and Cassie Stefanovich.

Santas cart being helped along by Mitchell Schomburgk and Nick Elliott. Santa Claus with Christian and Miranda Gronow.

Vicki, Ellena, Alfred and Paul Kouris.

Katrin and Carena with twins Robbie McIntosh and Francesca Halse. Prudence and Andrew Halse. Kester and Markus.

50 51 Santa arrives. Patrick Campbell. Milo the magician with lunch.

Daniela Klempfner with Hugo Who hasn’t got a present? (left), Carl and baby Hugo.

disappeared with the car, leaving Santa Because the number of children at the children that Christmas was not usual for to trudge kilometres back to the gates in Bar has grown and in line with current all, and that the name of the “gift giver” 40 degree heat. policy, an association has been formed be changed from Santa Claus (S.C.) to This was never to be repeated. But to deal with the issues of Christmas. Queer Claus (Q.C.) but this motion was just like the promises of politicians it The association has been called lost narrowly. Some Catholics wanted all came to nought last year. Santa, after The Christmas Bar Association, or CBA. Father Xmas (F.X. or F.C.) but this nomer handing out refrigerators, fee books and The CBA decided that a permanent was seen to have religious overtones. In good cheer to the hordes of barristorial Santa suit should be purchased to the end it has been decided that the gift youngsters, found himself stranded. Milo save hire costs. However, great debate giver known as Santa Clause (S.C.) be had fled with the young woman and the arose as to the nature of the costume dressed in multi-coloured overalls with cart. and its symbolism. Many said that Santa’s a woollen beanie. Advertisements for the It was a long hot walk back. But wig should be abolished. It was an job will be inserted in the legal pages in a Santa met many interesting folk on that outdated symbol of an unwanted colonial gender-free manner. trek. Excited Taiwanese tourists who past. The photographs on these pages snapped at him assiduously. Dutiful Some wanted it to be made clear to testify to the success of the party as Japanese who bowed and offered him tea. shown by the joy and fun on the faces An incredulous Norwegian blonde who of the children. Michael Gronow and his couldn’t believe that Santa ever left the hard-working secretary Lisa Utting are North Pole, let alone ventured out into 30 It was a long hot walk to be thanked for all the hard work they degree heat — she assured him that she back. But Santa met many put in in organising the event. Santa’s was going to show their photo together to costume can be inspected in Michael’s everyone back home to prove it. interesting folk on that chambers by appointment. But the Bar has now moved swiftly to trek. deal with these problems and others. Santa Claus QC

50 51 News and Views The New Silks — and Their W

Name: Name: Cameron Clyde MACAULAY Elspeth Anne STRONG Date of Signing Bar Roll: Date of Signing Bar Roll: 24 November 1983 25 May 1989 Areas of Practice: Areas of Practice: Commercial Law, Trade Intellectual Property, Trade Practices, Insurance, Professional Practices, General Commercial Negligence, Corporations, and Mediation Property, Retail Tenancy, Readers: Trusts, Superannuation, None. Telecommunications. Reaction on Appointment: Readers: Delighted and honoured. Karen Streckfuss, Stanley Isaiah Reasons for Applying: and Dean Guidolin. After 14 years at the Bar I Reaction on Appointment: considered it was time the nature Elated and honoured. of my practice had been that I had Reason for Applying: worked with (or been opposed to) I felt it was time to do so. silks from fairly early on. Some of these had taken appointments and one whom I admired greatly Name: had died. The judge to whom I had Timothy James GINNANE been associate also died this year. Date of Signing Bar Roll: Applying seemed to offer me the 11 October 1979 (Read with Alex chance to do more of two things Chernov) I enjoyed — working up court Areas of Practice: matters with the assistance of a Administrative Law, Employment/ team and acting as a mediator in Industrial Law, Trade Practices, superior court proceedings. Commercial Law. Readers: Name: R. Taranto, N. Batten, D. Lane, John NOONAN B. Lacy, Bruce Shaw, S. Wood, J. Date of Signing Bar Roll: Maclean, C. Fairfield (Split with N. 1984 Green QC) and Jonathan Forbes. Left to right from back: G.Thomas S.C., J. Champion S.C., Areas of Practice: J. Peters S.C., T. Neal S.C., J. Delany S.C., M. Gordon S.C., Reaction on Appointment: Common Law. Grateful to many people. F. McLeod S.C., T.J. Ginnane S.C., C. Macaulay S.C., Readers: N. Clelland S.C., M. Bromberg S.C., G.J. Clarke S.C., Reason for Applying: Andrew Clements, Anna Bogan New challenges. and Sasha Manova. D.J. O’Callaghan S.C., J.J. Noonan S.C., S.G. O’Bryan S.C., Reaction on Appointment: P. Riordan S.C., D.S. Mortimer S.C., E.A. Strong S.C., Name: Delighted. K.P. Hanscombe S.C. and J.L. Parrish S.C. Mordecai (Mordy) Reason for Applying: BROMBERG Time to accept a new challenge. Date of Signing Bar Roll: Name: Name: June 1988 James William Sturrock Kristine HANSCOMBE Name: PETERS Date of Signing Bar Roll: Areas of Practice: Debbie MORTIMER Primarily Employment and Date of Signing Bar Roll: 27 November 1989 Industrial Law but also Date of Signing Bar Roll: 26 November 1987 Areas of Practice: Administrative and Trade 25 May 1989 Areas of Practice: Commercial, Administrative, Equity. Practices Law. Areas of Practice: Commercial. Readers: Administrative and Public Law, Readers: Readers: Judith Bornstein, Andrew P. Steven J. Moore, Peter C. Rozen, Anti-Discrimination. Matt Walsh, Peter A.P. Clarke, Dickenson, Jenny Firkin, Richard James D. Gray and Malcolm Readers: Andrew Hamlyn-Harris, Edward Antill and Arushan Pillay. Harding. Juliet Forsyth, Lisa Sarmas and Heerey, Peter Fary, Daniel Crennan Reaction on Appointment: Lisa De Ferrari Georgie Costello. Reaction on Appointment: and Andrew Broadfoot. Delighted. Delighted. Reaction on Appointment: Reaction on Appointment: Thrilled. Name: Reason for Applying: Honoured. James Lloyd PARRISH Like the feel of silk! Reason for Applying: Reason for Applying: New challenges. New challenges. Date of Signing Bar Roll: 1 September 1978 Areas of Practice: Accident Compensation/Common Law.

52 53 News and Views The New Silks — and Their Way to the Top

Name: Name: Carmen Maria-Francesca Fiona McLEOD RANDAZZO Date Of Signing Bar Roll: Date of Signing Bar Roll: 28 November, 1991 30 May 1991 Areas of Practice: 6 December 2002 (Public Commercial, Administrative, Defender) Common Law. Areas of Practice: Readers: Criminal Law, Crimes (Mental Julianne Jaques, Michelle Wallace Impairment). and Simon Rubenstein. Readers: Reaction on Appointment: None. Thrilled, honoured. Reaction on Appointment: Reason for Applying: Humbled, elated and proud. New challenges. Reason for Applying: I was encouraged by others who Name: felt I was ready. I felt I was ready. John Ross CHAMPION Out of a sense of responsibility and duty to myself, my family and Date of Signing Bar Roll: other barristers. I recognised the 13 October 1977 benefits to VLA clients in having Areas of Practice: access to Senior Counsel. Criminal Law. Readers: Name: Gregory Lyon, Daniel Dwyer, Jim DELANY Michael Cahill, Dianne New and Jamie Singh. Date of Signing Bar Roll: 23 May 1985 Reaction on Appointment: Very, very pleased. Areas of Practice: Commercial, Valuation, Insolvency. Reason for Applying: Life is too short not to have tried. Readers: Alan Kornhauser, Matthew Carey, Caron Beaton-Wells, Dinusha Name: Joseph, Justin Castelan, Tomo Neil CLELLAND Boston, James Barber, Peter Date of Signing Bar Roll: Crofts, David Pumpa and Marita 29 May 1986 Foley. Areas of Practice: Reaction on Appointment: Commercial Crime, General Crime, Pleased. Administrative Law, Tribunals. Reason for Applying: Readers: It’s time. Holding, Gobbo, Tyrrell and Hallowes. Readers: Reason for Applying: Name: Reaction on Appointment: Chris Colman. After many years in practice I Graham THOMAS Delayed. Reaction on Appointment: thought I’d got the hang of it. Date of Signing Bar Roll: Reason for Applying: Thrilled. September 1976 I was pretty sure I wouldn’t be Reason for Applying: Name: Areas of Practice: appointed otherwise. Professional satisfaction. Peter Julian RIORDAN Crime. Date of Signing Bar Roll: Readers: Name: Graeme S. CLARKE Name: 26 November 1992 Hannebery, Vinga, A. Lavery, Saunders, Albert, Lovitt, Maguire Date of Signing Bar Roll: Tony NEAL Areas of Practice: 22 November 1984 Commercial Disputes. and Hoobin. Date of Signing Bar Roll: Areas of Practice: 8 December 1977 Readers: Reaction on Appointment: Pleased. Intellectual Property/ Commercial Areas of Practice: Matthew Bromley, Andrew Fraatz and Justin Lewis. Reason for Applying: Readers: Construction Law, Commercial Law, Margaret Ryan, Jonathan Evans, Native Title. Reaction on Appointment: Hope to have a little more time for preparation and reflection. Jane Gabelich and Ian Horak. Readers: I thought it was nice of them to give a country boy a go. Reaction on Appointment: None. Honoured. Reason for Applying: Reaction on Appointment: Reason for Applying: Relief. I hoped I would get respect. Wrong again. To have a go.

52 53 News and Views High Court Welcomes Victorian New Silks

Victorian new silks assemble injront oj the High Court.

Female new silksjorm a group. The High Court welcome.

54 News and Views News and Views Launch of Compulsory Legal Education Program The Honourable Justice Nettle, Chair, Victorian Bar Compulsory Continuing Legal Education Committee.

R Chairman, your Honours, memberships, to augment them where for the Bar by Mr Ross Ray QC. It will of ladies and gentlemen. One might considered desirable, and to draw them course be for others to judge, but it is our Mbe forgiven for thinking that together into a coordinated Victorian hope that the Victorian Bar Continuing the last thing many of you would wish Bar program directed to the current Legal Education Program will be regarded to hear at this hour of the day at this professional needs of all practising as the leading program of its type. time of the year are observations by me barristers. It is, however, envisaged May I on your behalf thank the about continuing legal education at the and I have little doubt that the program members of the continuing legal Victorian Bar. Thus, I will be brief. will develop over time with increasing education sub-committee who have Self-evidently continuing legal educat- experience and changing circumstances, laboured long and hard to produce this ion is something that is vital to the and that the specialist Bar associations program for you, and commend it to maintenance and advancement of the and their members will continue to you as unquestionably worthy of your already high standards of the Victorian play a leading role in bringing forward enthusiasm and support. Bar. If I may say so, therefore, the Bar new ideas and the development of new Council is to be congratulated upon its programs as part of that development. decision to establish and conduct this It is after all a program devised by the program. Bar for the members of the Bar, and it The content of the program has is they who have the greatest interest in been determined by a legal education ensuring the program’s success. sub-committee comprising a group of Usually there is little profi t in the Bar’s leaders, and each of them comparisons, which are largely a matter has brought to the task a wealth of of subjective perception. But it is natural experience based upon their practice and and I think to be desired that we in their previous involvement in continuing Victona should aspire to lead in whatever legal education at the Bar. we do. The program has therefore been Broadly speaking the aim has developed having regard to what is been to take the best of the programs already on offer in other States, in New previously developed by the specialist Zealand and in the United Kingdom, Robin Brett QC, Chair, Victorian Bar Bar associations for their respective based upon a detailed survey undertaken Council.

Murray McInnis FM, Jeanette Morrish Barbara Walsh, Robin Brett QC, the Paul Lacava S.C. and the Honourable QC and Martin Bartfeld QC. Honourable Justice Nettle and Michelle Justice Gillard Gordon S.C.

54 55 News and Views Solomon Islands' New Solicitor-General Farewelled

Nathan Moshinsky was late last year appointed as Solicitor-General As we all know, Nathan is entering of the Solomon Islands. He faces a major task in assisting to re­ something more like a war zone than a establish law and order following the recent revolt. But he says that tropical paradise. One cannot assume, even now, that the rule of law actually he is enjoying the lifestyle and the challenge. Some of his colleagues applies, throughout the Islands. threw a farewell party for him, and below is the text of the speech I have often wondered, as a relatively given by Kurt Esser at that party. forgotten son in a Jewish family - that boasts a father who was a doctor, and an orthopaedic surgeon in this generation HOSE who are here, all friends Nathan?" he said, shivering, "Because I'm - how a lawyer can be hero in law, in and colleagues of Nathan, would so cold". something like the same way doctors are Tnot have been surprised to hear of By the end of that day, he was proudly often portrayed as heroes. Nathan's appointment as Solicitor-General walking around the lobby of Owen Dixon I always thought the most heroic to the Solomon Islands. For a person who wearing a Panama hat, looking like some thing a lawyer could do was to deliver swims as often and much as Nathan, it's wealthy planter out of a Joseph Conrad an interesting lecture on the rule against probably the best place on earth to be a novel. perpetuities. Solicitor-General! In the meantime, of course, it was Now Nathan has shown us another Close observers of Nathan will have con:firmed that he would be flown to way. What he is doing is truly heroic noticed recently an important change Honiara, and in anticipation of the trip, and I'm sure even he will have his mettle in Nathan's wardrobe, which may have he bought the Panama! So why not wear tested ... although I must say, I couldn't alerted them to a sudden change in it home? think of anyone more suited to the office circumstances. Already, Nathan has made a quick visit than Nathan. He was leading me in a case recently to Honiara and has sampled, personally, Can you imagine the job description? and I went to his chambers early one what professional life might be expected What's needed is someone who morning. There he was on his computer to be like as S.G. in a struggling, not to is an impeccable lawyer, with a vast wearing that black cap, looking for all say impoverished, Third World country. range of both personal and professional the world like something out of a Polish We in Owen Dixon Chambers East experience across lots of diverse areas stetl. When I asked him, "Why the cap, or West, don't know how lucky we are. of the law especially in criminal law, Most of the time our telephones work, administrative law, commercial law, most of the time we have a continuing constitutional law, and a smattering of and uninterrupted electricity supply and human rights law wouldn't go astray. usually our attendance in chambers is not Then you'd need someone with lots of summarily cut short by a tropical cyclone. courage, lots of insight, lots of application Mostly our secretaries can speak English and lots of patience, who would never and usually they know much more about become irritated or frustrated, even in computers and the Internet than we do. very trying circumstances, and someone I can tell you from experience, having who would easily mix into a totally tried to speak to Nathan in Honiara, the different culture, and in fact, someone telephonist isn't quite up to the standard who would actually enjoy the new of Ellen in Glenn Meldrum's office. cultural experience. If we went to the Solomon Islands, Above all you'd need the common we'd all be in for a very rude shock. touch, a sense of humour, plus judgment Nathan tells me that professional life and integrity that are beyond question. in his new place of work isn't full of As you all know Nathan was born nubile bikini-clad lagoon-swimmers and in China, of Jewish parents escaping perfectly mixed, chilled cocktails served Soviet Russia after the Revolution. He by a waiter in the fading afternoon as you was educated in Melbourne and went to look over the water, through palm trees, Melbourne University to study law and Nathan Moshinsky. into the setting sun. arts. 56 News and Views/A Bit About Words

Nathan has had an extraordinarily wide practice. Even now he is happy to appear in any tribWlal, do a murder for either side, try a civil case before a jury, Shifting Sands apply for special leave from the High Court, which he did as recently as last Friday, do a complicated trade practices case, or appear in a nasty, difficult, financial bust-up in the Family Court. For T is a cause for wonder that we where St Audrey lived and died. St a while Nathan worked as a prosecutor in manage to communicate more or less Audrey-Lace was fine and pure, but Hong Kong. I successfully, so many are the changes eventually cheapened to tawdry lace. He is an all rOWlder, the likes of which in the meaning of words over time. The Tinsel has followed the same path. Now we very rarely see at the Bar these days. shift of meaning causes problems for meaning cheap and showy (unfairly I'm sure Nathan's period away will create lawyers as they struggle to draw sensible attached to Sydney, which Melburnians a huge gap in the upper end of Glenn or convenient meaning from statutes refer to as Tinsel-Town) it once had Meldrum's List. or contracts. The difficulty increases in something of the divine spark. It comes As we all know Nathan is a very proportion to the age of the document to into English from old French estincelle serious practitioner of yoga and be construed. which in turn traces back to Latin meditation. Painting is Nathan's great Luckily for our daily conversation, the scintillare - to sparkle or glitter. From love and consuming passion. He needs shift of meaning usually takes decades the same root we have scintilla - a it as a counter-balance to a hectic and or centuries, although newly minted spark ("not a scintilla of evidence") and demanding life as a silk. As a painter he words often go through an early period scintillating ("brilliantly and excitingly is both gifted and highly productive. He's of instability. clever, especially in conversation"). also a great swimmer. Documents written before the start This last definition, which is the Nathan is a great traveller and mixer, of the 19th century are likely to present current popular sense of scintillating urbane, but thoroughly at home in the familiar words whose context will make comes from the New Oxford Dictionary bush and on foreign soil. the astute reader pause to wonder what ofEnglish (1998). It has no equivalent in It really is as if the whole of Nathan's the writer truly meant. For example, in the Oxford English Dictionary (2nd ed, life has been chartered to equip him Henry VI Part 1 Shakespeare has York 1989). A similar sense is recognised by as being a superbly well qualified address Joan of Arc ("la Pucelle") as the Chambers Dictionary (1993), the Solicitor-General for the Solomon Islands, miscreant. Whilst he may have disagreed American Heritage Dictionary (2000) as she reaches an extremely important with her views or her conduct, miscreant and the Macquarie Dictionary (2nd phase in her formative development as in its modern sense (OED2: depraved, ed, 1991, 3rd ed, 1997). The Random a nation. villainous, base) seems not to be what House Dictionary (2nd ed, 1987) In a week we have seen Arnie elected York intended. also recognises this sense, as does the to high office in California, that nice Similarly, but less clearly, Lear's Webster's Encyclopaedic Dictionary of man Mr Ruddock appointed as our exchange with Kent: the same year. Federal Attorney, and that sympathetic It would be misleading to say this gap and charming lady Amanda Vanstone Kent: Now by Apollo, King, in the OED2 is baffling - at least, it would appointed as Minister for Immigration, Thou swearst thy gods in vain. have been Wltil the mid-17th Century. what a relief we have an incumbent who Lear: 0 vassal! Miscreant! Originally, baffle had nothing to do with fits his office! confusion or puzzlement. It referred Nathan, you'll be missed by your The original sense is false believer. to the treatment of a knight who had colleagues and friends. We look forward In times when religious belief was more dishonoured his chivalrous obligations: to your return to chambers whenever important than it is now, it was natural he was (in person, or in effigy) hWlg that might be. To you and to Ann we wish that the word acquired the strong up by the heels, his escutcheon was you good luck. We know you both have pejorative sense given it by Johnson: defaced and his spear broken; he (or the fortitude to meet this new and daring a vile wretch. The original meaning his effigy) was then subjected to the challenge. dates from the early 14th century and abuse and humiliations of the crowd. You've done us proud already, you'll was current Wltil the mid 19th century. The person subjected to these indignities do us proud again. We wish you and Ann The current meaning emerged at the was said to have been baffled, and a every good fortune. end of the 16th Century. Thus, both baffle was a disgrace or an affront. By I'd like to finish by observing an senses were current when Shakespeare the time of Bailey's Dictionary (lOth ancient Chinese, Jewish, Buddhist, wrote. It seems clear that he intended ed, 1742) and Johnson (1755) the only Hindu, forensic ritual, lost in the mists York's comment in the original sense. sense recognised was the modern one. of time, but recently adopted by peoples Lear's comment is made in response to Presumably this was for either of two in the South Seas ... and have Judge Sue a comment about religious belief, but it reasons: the age of chivalry had passed, Cohen, of the COWlty Court, present you may be that he was so vexed by daughters and its usages had lost their relevance; both with alai. and circumstances that he intended the or knights of the realm had so improved A toast to Nathan and Ann. modern meaning and a blWlt insult. their behaviour as to make their public I have discussed elsewhere the slow disgrace no longer relevant. decline of tawdry, which once signified Perhaps the knights exercised their necklaces sold at the fair at Ely Cathedral influence at court to change the system.

57 News and Views

In those days however, influence had a Originally, a distemper was thought somewhat different meaning: it was the to result from a disordered state of ethereal liquid which was thought to flow the humours. The humours were the from the stars and so affect the character four fluids of the body: blood, phlegm, ANew Sup and destiny of men and the behaviour of choler and black choler. Choler is bile. "sub-hmary things" generally. In short, Melos is Greek for black, so black bile is influence was the force which underpins melancholy. Thus the human tempers the pseudo-science of astrology. Strictly, associated with the four humours were I Think No mortal men could not exercise influence, sanguine, phlegmatic, choleric (or but were subject to it. Modern times have bilious), and melancholy. By David H. Denton S.C. reversed that - we seek to influence Each of these words is familiar, but others and deny the theories of the they are not now used as diagnostic astrologers. tools. Only sanguine presents linguistic Early medicine thought disease could problems: because of its connexion be caused by these forces from the stars. with blood, it has oddly ambiguous ECENTLY there has been some The Italian for influence is influenza. meanings. As a humour, people in whom suggestion in The Age that When an epidemic of one disease or it predominates are thought to have "a Rthe magnificent Victorian era another swept the country, it was ruddy complexion and a courageous, Supreme Court Building in the centre referred to as an influenza di febbro hopeful, and amorous disposition". of Melbourne's legal precinct should be scarlatina, or an influenza di catarro, However, it also means "causing or replaced. Such a suggestion does not find and so on. delighting in bloodshed, bloody-minded". favour with many of those who regularly In 1743, an epidemic spread across Thus, unless the context resolves identify that place as their workplace: Italy and then the rest of Europe. A the ambiguity, describing a person as Melbourne's barristers. The informed report in the London Magazine referred sanguine may not improve their humour. criticisms that have been made by Chris to "News from Rome of a contagious Although the primary current sense of Dale, President of the Law Institute, Distemper raging there, called the humour concerns mirth or amusement are directed at the age of the place and Influenza". The name stuck, and became (its adjective humorous has only that perceived difficulties with computer specific to the particular viral infection sense), the earlier sense is called on when facilities, security and acoustics. For whose symptoms are well known. Later we speak of ill-humour or bad humour. many of us sometimes we are probably epidemics occurred in 1762, 1782, 1787, And so the process goes - words grateful not to be able to hear our learned 1803, 1833, 1837, 1847 and a particularly shed old meanings and take on new ones, friends at all! bad one in 1889. The worst recorded and it happens slowly enough that we However, Chris Dale's criticisms epidemic of influenza was in 1918, in can keep pace with the fashion (fashion: should not be ignored. Indeed, many which 30 million people died. originally the action or process of making other observations may also be made. It Note that in the London Magazine, something, a sense retained in the verb is just that I disagree with the need for a the catarrh-like disease was referred to - to fashion a thing). Our language is new building. as a Distemper - a word which then built on shifting sands. There is no doubt that the Supreme signified any "deranged or disordered Paradoxically, the current sense of the Court building is in need of careful condition of the body or mind". Its word sand has been stable since the 9th refurbishment and additional space. primary sense now is the specific catarrh­ Century. The building opened in 1884 to then like disease of dogs (and, according to Julian Burnside accommodate the Supreme Court, the the Macquarie Dictionary, horses). County Court, the Courts of General Sessions and the Court of Insolvency. Each of these Courts, in one way or another, has now been placed in their own gleaming modern building in Melbourne's legal precinct. However, the Court is still where it has been for the last 120 years and is in need of special attention. Each year the building is open during Law Week for a closer viewing by members of the public. What they observe on their tour is that no two courtrooms are the same. They see that some courtrooms are simply beautiful. Others they see are simple. To get between courts they walk along bluestone flagged corridors reminiscent of a penal institution rather than a palace of justice. They wander into the magnificent setting of the Supreme Court Library under the dome styled on the Four Courts in Dublin but see the way the library has been forced to eat

58 A New Supreme Court Building? I Think Not. By David H. Denton S.C.

into areas to accommodate physically joined to the main all manner of legal books. Supreme Court Building They do not see the judges’ for the sake of security and chambers and those of their utility. staff members. If they did If the suggested works they would note these areas are undertaken it is likely are entirely inadequate and that the Court will be able to yet they would understand continue dispensing justice they could not really be from the same venue for much improved upon within another 120 years. Quite the context of the present frankly, I don’t know of building structure. anyone that really wants What the public will to build a new Supreme realise is that the Court is Court building. The building really the same as any old means so much to every Victorian building. It needs lawyer in this State. It is sympathetic renovation and the place we get admitted additions. That is, like any to practice as barristers and place requiring renovation solicitors in the solemnity on limited ground space of the Banco Court; we — it needs to go up. The obtain urgent injunctions aesthetics of the exterior in the Practice Court; we stone work will need to be appear for our clients in replicated by the addition the many court-rooms; we of two further floors. For my welcome and farewell our part I can see no difficulty colleagues as judges; and, whatsoever in a sympathetic we attend the library looking two floor addition all round like generations before us, the perimeter of the Court for that elusive one case to provide new Court authority that can add hope rooms and much needed to our client’s case. new judicial chambers, not As this building is a living only for the judges but for and integral part of the their associates and for the Government of this State support staff of the Court. it has always been only a In my view there is also a David Denton S.C. matter of time before the pressing need to actually building would be required to bring the Masters of the Supreme whatsoever an atrium would provide an undergo some serious building additions. Court back within the Court’s physical area for the benefit of ceremonial and The fact that it has lasted more or less environment. public occasions. Further floors would untouched for 120 years is a testament Whilst considering other useful also allow for the reinstatement of the to those who designed the building with building works for the Court I suggest ground and first floor of the Library to its such great foresight as to its position and that the entire bluestone cobbled uncluttered original state. function within our judicial system. courtyard which surrounds the isthmus- Whilst drawing up my wish-list further Let’s hope the Attorney-General’s like structure of the Library Dome be consideration could be given to adding working party charged with preparing a enclosed within an atrium. Perhaps further floors above what is the Old High master plan for the building’s future takes this could be done in the style of the Court building site. This site has become public submissions and is emboldened to glass pyramid of the Louvre. As the the seat of the Commercial Courts of do what is right for the Old Supremo and Court has no hall or reception area the State but there is a need for it to be Victoria.

58 59 News and Views Ten Years of the Women Barristers Association Supreme Court Library

By Samantha Marks, Convenor

N 11 November 1993, the Women Barristers Association met for the Ofi rst time. Its purposes were, and remain: to provide a professional and social network for women barristers; to promote awareness, discussion and resolution of issues which particularly affect women; to identify, highlight and eradicate discrimination against women in law and the legal system; and to advance equality for women at the Bar and the legal profession generally. On 11 November 2003 the WBA was ten years old. Much has been achieved in that time in pursuit of its goals, by the many barristers who have served on its committee over time and the many members of the Bar, the judiciary and the government who have supported those goals. In 1998 the Victorian Bar Council commissioned the report “Equality of Opportunity for Women at the Victorian Bar”. That report led to a number of positive changes at the Bar, including the creation of the Women Barristers’ Directory which now provides a useful reference point for those seeking to brief female barristers, and for information Chair of the WBA Fiona McLeod with the guest speaker Justice Sally Brown. about the WBA generally. The Victorian Bar has now adopted a Model Briefi ng Victorian Bar has introduced the parental Policy for the briefi ng of counsel at the leave policy, which makes it possible Victorian Bar, and the Law Council of for barristers taking parental leave to Australia has agreed to adopt a model pay reduced rent for six months — a equitable briefi ng policy, the terms of supportive and encouraging policy which which are being fi nalised. The policies has assisted in the retention of female highlight the desirability of all barristers barristers in particular. An increased being selected for their skills and awareness of the presence of women at competency, regardless of gender. the Bar table, and the submissions of the In the ten years that WBA has been WBA, have led to courts adopting a policy in existence, there has been a signifi cant of referring to those at the Bar Table as increase in the number of women being “counsel” rather than “gentlemen”. WBA appointed to the judiciary and to the hosted a session entitled “Women and ranks of senior counsel, and Victoria has Film maker Sarah McLeod receives the Law” at the 2003 Commonwealth seen the appointment of its fi rst female fl owers from her sister Fiona after the Law Conference; presided over various Attorney-General, Solicitor-General and showing of their fi lm “Raising The CLE seminars; has been involved in the Chief Justice of the Supreme Court. The Bar”. commissioning and hanging of portraits

60 61 -

New Wine Column in Association with the Essoign By Andrew Bristow

Bowen Estate Coonawarra Shiraz 2001

HE 2001 Bowen Estate Samantha Marks, Fiona McLeod S. C., Judge Frances Millane, Jeanette Richards, Coonawarra Shiraz is rated Judge Susan Cohen, Felicity Hampel QC, Helen Symon S. C., Fran O'Brien S. C., T as the best ever by wine critic Judge Rachelle Lewitan (absent Pamela Tate S. c.). Jeremy Oliver. Winemakers, Doug Bowen and his daughter Emma have produced a concentrated but silky Coonawarra Shiraz. This wine has a small nose at first and the concentrated fruit becomes more obvious after decanting. It has a deep crimson colour. The wine is peppery and balanced. It is high in alcohol at 13.5 per cent. The fruit is yet to fully develop and it is expected that it will be at its peak drinking in about five years' time. This wine is available at the Essoign Club for $35 a bottle ($30 takeaway). I would rate the 2001 Bowen Estate Shiraz as a "Junior Silk", good quality now but with a number of good years ahead of it.

Guests at the anniversary function applauding after the showing of the film.

in Owen Dixon Chambers of former the Victorian Bar, and interviews with and current female justices; hosted many current judges and silks, and of a many social events for women at the junior barrister being the representative PROOUCEOF AUSTRALIA Bar and their supporters; provided face and voice of the future. As Fiona encouragement to female law students McLeod S.C. said in introducing the at Melbourne and Monash Universities; film, it is "part documentary and part and made submissions on appropriate theatre, and its aim is to record and matters to the Bar Council, the Law reflect in some small way the views of BOWEN ESTATE Council of Australia and government. a generation". The showing of the film COONAWARRA At the ten-year anniversary celebrat­ created a buzz of excitement, and it is SHIRAZ ions of the WBA, which took place prior already in demand by various community to Christmas last year, the historic first groups. Justice Sally Brown spoke at the 2001 screening of the WBA film "Raising the celebratory dinner which then took place QAOYf'N JKJ PRODUCED BY BOWBrt ElTAl!. PrY LTD AIlOOCH J«JHWAY Bar" occurred. The film provides an at the Essoign, being both informative OOONo\WAARA.aaAllST'flAlJot. overview of the history of women at the and amusing with a speech touching on 750ml 13.5% ALCNOL Victorian Bar. It includes historic footage issues of equality and gender bias. of the life of the first female barristers of

61 Sport/Golf Bench and Bar Golf Day

HE Annual Golf Day between the Bench & Bar and the Law Institute Tof Victoria took place at Kingston Heath Golf Club on Tuesday, 23 December 2003. The Bench & Bar team regained the Sir Edmund Herring Trophy. The Bench & Bar team comprised 22 members. The aggregate score of +9 defeated the Law Institute who had an aggregate of +7. The leading score for the Bench & Bar team was produced by Con Salpic, partnered by Stuart Garanziotis (the son of Manny Garanziotis S.C.). The next best score was returned by John Richards S.C. and Rob Shepherd. The weather was fine and the course was in excellent condition for the event. We will return to Kingston Heath in December this year to defend the trophy. The Bar wins. Gavan Rice holds the trophy.

Winners: Con Salpic and Stuart Garanziotis. Cottrill M, on the 15th. Jim Lally bunker on 16th hole. Rod Smith lines up his 40ft put on the 16th, it did not even touch the sides.

Timothy Tobin watches his putt on the 16th green. Watching are Searching the rough for his Judge Keon-Cohen on the 17th, Patrick Dalton, Greg Carr and Gordon Elkington. ball, John Pilley on the 17th. a little excited about his putt.

62 63 Bench and Bar Golf Day

Michael Bishop lends a helping hand to his playing partner.

George Spiliotis, John Richards S.C., James Mangopoulos and Bob Quayle out of a bunker on 16th hole. Robert Shepherd resting at the 15th.

Gavin Rice at the 17th. How On the 17th green, Gerard On the 17th, J. O’Callagnan Judge Hart concentrating on about that — it’s in? Hyland. It just missed! gets the ball airborne and then his putt, watched by Judge watches it’s flight. Keon-Cohen. 62 63 Sport/Tennis

T is my sad and painful duty to announce that the trophies for win- “Ining the overall tennis day and for the best performed pair have both been Bar Graciously won by the Law Institute.” Thus the news was conveyed to the assembled players enjoying glorious sunshine on the balcony of the Kooyong stadium on Tuesday 23 Surrenders December, 2003. Unfortunately, the J.X. O’Driscoll trophy for the winning team on the day, in this annual contest between the Bench and Bar against the Law Institute, Trophies and the Flatman-Smith trophy for the best performed pair, both of which had stood so proudly in the Victorian Bar Council chambers for the preceding twelve months, were surrendered to the Institute on what was, apart from the results, an otherwise extremely enjoyable day. The members of the Institute team, no doubt smarting from their previous year’s loss and whipped into better form by their demanding captain, Peter Maybury, thoroughly outclassed the Bar team. Our erstwhile and gallant captain who led us to victory the previous year, Tom Danos, was absent in another jurisdiction, and the team evidently missed his leadership. In the B section Fennessy, despite the handicap of a most unworthy and incompetent partner, managed to strike some blows for the dignity of the Bar, and McSteen and Ray Gibson performed very strongly to win three of their four sets. Elspeth Strong S.C., leading her enthu- siastic junior Howard Mason, promised much but failed to deliver, whilst Rattray Q.C. and His Honour Ryan J. had some success, albeit less than the occasion demanded. Redd and Fraatz were lent to the Institute in order to even up numbers from where they provided valuable sup- port to the Bench and Bar, through their games being counted in our favour. Unfortunately, in the A section we did not make much headway. Senathirajah and Harrington were very competitive but unable to clinch a set. Pauline and Ray Gibson (Bar) Bigmore were in there fighting, and our stars from last year and the inaugural winners of the Flatman-Smith trophy for the best performed pair, Rob Williams and Daryl Brown, were competitive in their first set but fell away afterwards. In short, the Institute won by 17 sets to 8. Wardle and Maybury for the Institute were clearly the best performed pair this year, conceding no sets and only four games in total. Despite the disappointment of the result, the tennis was very competi- tive and extremely enjoyable, and the Peter Boyle (solicitor) David McSteen (Bar) Elspeth Strong (Bar) Howard Mason (Bar) Continued on page 70

64 65 Sport/Yachting Wigs & Gowns

Ross Macaw QC’s motor sailor Marie Louise IV hard on the wind on the waters of Port Phillip.

HE 2003 Wigs & Gowns Regatta was the Thorsen Perpetual Trophy in his 45ft held on the waters of Port Phillip on sloop Capriccio. Whilst the weather con- T22 December 2003. With gale force ditions were far from ideal, they did not winds forecast and a stiff 25 to 30 knot dampen the spirits of those that attended. south westerly from early in the morning, Next year is hoped to be bigger and better the usual large fleet size was somewhat again. depleted. The finale to yet another fantastic day The 2003 Wigs & Gowns Regatta was was the return trip from Hobsons Bay to the first year a change in format has St Kilda aboard Capriccio where Digby’s been introduced to allow for a “cruise in hospitality both pre and post berthing was company” rather than a race, however, enjoyed by all present. the weather conditions, including the Peter Rattray QC, Ross Macaw QC, Next year is hoped to be bigger and odd shower, meant that many crews Melanie Sloss SC and James Mighell at better again. elected to remain on shore at the Royal the trophy presentation. Yacht Club of Victoria enjoying pre-lunch Peter Rattray QC and festivities. QC Memorial Trophy in his motor sailor James Mighell Ross Macaw QC won the Neil McPhee Marie Louise IV and John Digby QC won

64 65 Lawyer’s Bookshelf

Brooking On Building for non-lawyers. The extensive footnotes Law of Costs and further reference section enable the Contracts (4th edn) reader to further explore the case law By G.E. Dal Pont Lexis Nexis Butterworths, 2003 By D.J. Cremean, B.A. Shnookal and and legislative underpinnings, and access other materials that provide further analy- pp. i–cxxxii (Table of Contents, M.H. Whitten Preface, Abbreviations, Table of Lexus Nexis Butterworths 2004 sis and commentary in relation to the law of building contracts. This work is to be Cases and Table of Statutes) 1–1037 Pp. i–l, 1–378, Further References (including index). 379–380, Index 381–390 commended to all those who have an interest or need to understand building N his preface, the author states that the ROOKING on Building Contracts contracts in the Australian context. Ifocus of this book is “on the law pertain- was first published in 1974. Thirty ing to costs in Australia”. Indeed, Law of B P.W. Lithgow years later the book is in its fourth edition. Costs is a cross-jurisdictional, compre- The work, although having a Victorian hensive compilation of the law of costs in focus, is sufficiently detailed and schol- Australia and it deals with all applicable arly to be relevant to building law across Principles of Australian statutes, rules of court and relevant cases. all Australian jurisdictions and includes It does not purport to be a match for other extensive reference to Australian, New Public Law voluminous, multi-jurisdictional loose-leaf Zealand and English court decisions and By David Clark services which include scales of costs, relevant legislation in all States. Lexis Nexus Butterworths 2003 forms and the like. As a single volume The work is aimed at a wider audience Pp. i–xlviii, 1–297, Bibliography text, this work is virtually without peer. than just lawyers and is useful for all those 298–322, Index 323–334 At page I of the prologue, the author concerned with building contracts includ- illustrates the centrality and importance ing owners, builders and contractors, arbi- RINCIPLES of Australian Public of the law of costs in the following way: trators and legal practitioners generally. PLaw is part history, part politics, part legal philosophy, part constitutional law The contractual basis of the building No other area of law can lay claim to so and part administrative law amongst its contract is extensively dealt with, and expansive a pervasiveness to a lawyer’s many characterizations. It focuses on both commentary on the central aspects of practice. The issue of costs is ... central to Federal and State aspects of public law. contract law is illustrated generally by ref- the existence of a legal profession, in the Politicians and commentators (and law- erence to decided building cases. Further, past, at present and into the future. The yers) often talk knowingly about “respon- there is extensive discussion on the reason for this is that costs are the lifeblood sible government”, “legislative power”, the interpretation of contractual documents of the legal profession, crucial to the liveli- “executive” and “human rights”. Lawyers including the operation of the contra pro- hood of the majority of lawyers. Orders more frequently bandy terms such as ferentum rule, parole evidence rule and for costs are, moreover, an effective way “judicial independence”, “judicial review”, the issue of whether reference may be of encouraging settlements, discouraging “separation of powers” and the “rule of had to surrounding circumstances includ- inappropriate behaviour by litigants, and for law”. The great pleasure of Principles ing prior negotiations and subsequent controlling standards in the profession. conduct in interpreting a contract. There of Australian Public Law is that such is a separate chapter on implied terms doctrines and catchphrases are discussed In the following 29 succinct chap- specifically dealing with the implication of and analysed, from an historic and legal ters, Dal Pont places the law of costs in terms such as those regarding workman- perspective in an Australian context. Australia in context by making reference ship, materials, best endeavours, time and Human rights forms a discrete chapter to the comparable statutes, cases and permits. and includes discussion of theoretical rules in our common law contemporaries, There are specific chapters dealing and practical aspects of a Bill of Rights the United Kingdom, Canada and New with tenders and subcontracts. that provides the reader with a satisfying Zealand. Whilst the text has an overt focus Having discussed the contractual overview of the history, current law and on the modern law of costs, context is also aspects, subsequent chapters deal with possible future direction of this debate in achieved by reference, where appropriate, topics including time for completion, rise Australia. to the history and development of the law and fall clauses, payment, approvals and Although Principles of Australian of costs. certificates. The often litigious aspects Public Law looks and reads like a legal The text is divided into seven parts as of building works arising from variations text, it is in fact an invaluable resource for follows: and defects are also dealt with in discrete those involved in or interested in politics Part I — Costs between solicitor and own chapters. and government. The work is scholarly in client Finally, a miscellany of chapters con- its legal analysis and informative as to the Part 11— Costs between party and party sider other aspects of building law includ- history and background of many of the Part 111 — Quantification of party and ing building disputes and the potential central doctrines of Australian public life party costs liability of particular persons involved such as the powers of the executive, legis- Part IV — Costs in appeals in building works such as builders, local lature and the judiciary. Part V — Non-party costs orders authorities, architects and the engineers. Principles of Australian Public Law Part Vl — Costs in criminal cases This excellent work is both authorita- has much to commend itself not only to Part VII — Securing costs entitlements tive and accessible — it will provide guid- lawyers, but also for commentators and Within these parts, the text is divided ance to those experienced in the nuances analysts of political life, and students of into chapters containing plain English of building law as well as providing a prac- Australian history and politics. accounts of all areas of the law of costs, tical and accessible source of information P.W. Lithgow providing statements of “general rules”

66 67 and any deviations there from (where State to integrate land, air and water pol- peppered with witticisms, making it a possible, on a State by State basis). lution controls into a single statute, which pleasure to read. Law of Costs will either have the led the way to a similar approach in all The combination of a comprehensive answer to your query or put you on the other States. table of contents and the alphabetical right path to the answer. It brings together In an era where we are told that each order in which the book’s headings appear a sometimes mystifying area of the law Australian generates an average of one would render an index to this book of less that is in a constant state of flux. The book tonne of waste per annum, this compre- than usual utility. Indeed, an index would is extensively referenced and provides hensive commentary on legal responsibil- add to the book’s already voluminous size an important centre-point from which a ity and liability in the area of pollution law and repeat to a large extent the 69-page line of inquiry can be taken. If you are a is welcomed. Pollution Law in Australia table of contents. However, the absence solicitor or a barrister practising in any seeks to provide a useful tool for regu- of an index denies be reader the ability to Australian jurisdiction, G.E. Dal Pont’s latory authorities, corporate officers, find references to a particular topic within Law of Costs must be in your library. legal practitioners, students and all who other topics and otherwise to cross- are interested in and concerned about reference terms. The result may be that an Kate McMullan S.C. the effects of pollution on our unique important principle is lost to a reader due and Simon Pitt Australian environment. It is successful in to their lack of knowledge as to its precise achieving this goal. nomenclature: for example, what propor- tion of non-criminal practitioners would Pollution Law in S.R. Horgan know to look for the heading “Anunga Australia rules” when dealing with the difficulties Crime faced by an Aboriginal defendant with- By Zada Lipman and Gerry Bates out a full grasp of the English language? Lexis Nexis Butterworths, 2002 By David Ross QC References to other topics which appear Pp. i–xxiii, 1–448, soft cover Law Book Company 2002 within the content of a heading go some pp. v–lxxiv, 1–1045, way toward rectifying that problem. HE authors of Pollution Law in Table of Cases 1047–1164, That minor problem aside the work is a TAustralia inform us that it constitutes Table of Statutes 1165–1214 hardy reference for criminal practitioners. the first comprehensive work on pollution For those who only stray occasionally into law and policy in Australia. There are HIS book is a comprehensive and criminal practice, it is an indispensable seven contributors to the book who tackle Tdetailed reference to more than 300 tool which explains fundamental concepts topics as diverse as the legislation gov- terms relevant to the practise of criminal in plain language and provides compre- erning the manufacture and disposal of law. It is arranged alphabetically by term, hensive references to primary materials hazardous substances, the apportionment with major subheadings set out as sepa- from which submissions can be drawn. of liability for land contamination, waste rate numbered paragraphs and helpfully disposal and management strategies, and identified in the table of contents. Stewart Maiden the methods for dealing with the impact The book covers topics at the black on the Australian marine environment letter heart of the criminal law, as well of pollution caused by ships and from as explaining concepts surrounding its Proof and the land-based sources. practise. For example, it addresses terms Preparation of Trials This work provides an interesting and such as “aid and abet”, “grievous bodily useful overview of both current and his- harm”, “nolle prosequi” and “possession”, By Andrew Palmer torical approaches to pollution control evidentiary rules like corroboration, credit Law Book Company 2003 in the Australian legal landscape. The and the rule in Browne v Dunn (1893) 6 pp. vii–xii, Table of Contents discussion commences with a consid- R 67, and ancillary issues such as counsel xiii–xviii, List of Figures xix–xx, eration of the more modern approaches (ranging from duties and responsibilities 1–164, Notes 165–180, Bibliography to environmental management. Modern through to liability in negligence and the 181–186, Index 187–194 pollution control legislation seeks to unite need to robe) and the correct pronun- HIS is a book about how best to regulatory mechanisms with economic ciation of certain words. The scope of the Tconstruct a case, and then organise incentives in an attempt to move away book is at times astounding but occasion- evidence so as to prove that case in court. from an exclusive focus on pollution con- ally obscure: for example, it includes a The publisher states that the book “fills trol towards the pursuit of environmental description of the steps via which DNA the gap between evidence texts focusing protection and improvements. profiling is carried out, and almost three on the law of evidence and ... advocacy This initial overview is followed by a pages are devoted to a questionably rel- texts focusing on the techniques of trial detailed analysis of the use of economic evant entry on “jazz”. preparation”. The book purports to be the instruments, civil remedies and criminal Where appropriate, headings contain first such text in Australia. Its author is a offences in the environmental law field. references to statutory provisions in member of this Bar and a senior lecturer The imposition of statutory criminal each Australian jurisdiction. The author at the University of Melbourne. liability for corporations and personal makes prolific reference to case law and The book provides a useful toolkit for liability for directors and managers is also frequently quotes both trial and appellate the advocate to use when thinking about dealt with in some detail. It is interesting judgments to assist the interpretation and his or her case. Chapters are logically to note from Zada Lipman’s discussion application of the principles which he organised in the order in which they will of criminal offences and enforcement in addresses. be used in the preparation of a case: Part Chapter Four that Victoria was the first The work is engagingly written and A deals with preliminaries to case prepa-

66 67 ration, including the preparation and use set out to analyse or critique any selection All commercial lawyers at some stage of chronologies, and investigation. The of them. Rather, he explains a number of or another deal with shipping or admiralty. author expounds and propounds the use useful techniques that a practitioner can This is a readable and authoritative text. of adbuction (“the imaginative process adopt in his or her own way, and comfort- of developing working theories of the ably use in practice. Disorganised advo- S.R. Horan case”), retroduction (“the identification cates will benefit from a literal application of tests which can be used to confirm or of many of the techniques described in disprove those theories”) and investiga- the book, and those who already have a Annotated Insurance tion (performing those tests) to formulate structured approach to preparation might and investigate potential theories of one’s find a gem or two which will augment their Contracts Act (4th edn) case. Part B deals with the development existing practice. By Peter Mann and Candace Lewis and proof of a case theory. Part C explains Law Book Company 2003 the final preparations involved in organis- Stewart Maiden pp. ix–xxx, 1–452, Index 453–465 ing a case considering questions of admis- sibility, arranging the order of evidence, HE scope of this work is not com- and preparing the various stages of Tpletely disclosed by its title: it is address and examination. Admiralty Jurisdiction actually an annotation of several related The core of the book is Palmer’s expla- Commonwealth acts and statutory nation of how to create a case theory and Law and Practice in instruments: the Insurance Contracts present the proof of that theory in a way Australia and New Act 1984, the Insurance (Agents and which demonstrates its strengths and Brokers) Act 1984, the Insurance weaknesses. That model can then be used Zealand (2nd edn) Contract Regulations 1985, the Insur- to order the presentation of evidence and By Professor Damian J. Cremean ance (Agents and Brokers) Regulations, structure the arguments to be presented Federation Press 2003 and the Insurance (Agents and in court. Palmer describes a process of Pp. i–xxxii; 1–302 (including index) Brokers) Decision-making Principles determining what evidence is needed No 1 of 1994. It also contains the text to address the factual propositions on T is six years since the first edition of of the General Insurance Code of which the case turns. He explains the Ithis work by Professor Cremean. Like Practice and the General Insurance different ways in which individual pieces the first edition, this edition is a compen- Brokers’ Code of Practice, bereft of of evidence can relate to one another and dious analysis of Admiralty Jurisdiction annotation. to the facts that an advocate must prove, based around the Admiralty Act 1988 While the Agents and Brokers legis- and provides a diagrammatical means by (Commonwealth) and the Admiralty lation was repealed by the Financial which those relationships can be repre- Rules 1999 (Commonwealth) and the Services Reform Act 2001 (FSRA) sented. corresponding New Zealand legislation. regime, it is subject to a two-year tran- Palmer’s analysis of facts, evidence, The concept of proceedings in rem and sitional period and thus remains in the argument and the relationship between the apparent complexity of the various book. The work has been updated to the three is based on scholarly works types of maritime claims can be confusing include reference to the changes achieved identified throughout the text and in a for persons not familiar with this area of by the FSRA. The preface assures readers bibliography. For the most part, he draws the law. that Agents and Brokers legislation will on that well of scholarship without falling Professor Cremean’s text carefully, not survive into the book’s next incarna- into it. Select parts of the text suffer from clearly and authoritatively deals with tion. Presumably it will be replaced by the the description and citation of sources the complexity of Admiralty law and the appropriate provisions of the Corporations included in the body of the text. In a peculiarities of its practice and procedure Act and any other relevant legislation. practical work such as this, those details (for example the peculiarities of arrest, Each annotated section is accompanied would be more appropriately included in bail and caveats against arrest in respect by annotations which include its legisla- the notes section at the rear of the book. of vessels and that wonderful procedure tive history. Usefully, the commencement Liberal use of diagrams and examples for admissions enabled by the “prelimi- date of any amendments is also indicated (the latter frequently drawn from the work nary acts”). where necessary. Important concepts are of Arthur Conan Doyle) assists the reader In circumstances where shipping is defined by reference to precedent and by to understand and digest the text. The the primary vehicle for international cross-reference to other sections where author also provides textual and diagram- commerce it is not surprising that a sub- relevant. Significant space is devoted to matical analyses which illustrate his meth- stantial part of the text deals with juris- a detailed analysis of important decisions. ods on a website, www.evidence.com.au. dictional issues. Obviously, major changes in the new book While that method of presentation is a As with the first edition of Professor include a discussion of cases decided convenient way of removing voluminous Cremean’s work this edition is an in the two years since the previous edi- illustrative matter from the text of the extremely handy practice volume includ- tion, including FAI General Insurance book, readers must worry that the website ing the full text of the legislation and the Co. Ltd v Australian Hospital Care will prove less enduring than the book rules and the author’s commentary. Some Pty Ltd (2001) 204 CLR 641, Moltoni itself. useful precedents are also provided by the Corporation Pty Ltd v QBE Insurance This is an excellent, practical book for author. The case law cited by the author Ltd (2001) 205 CLR 149 and Gibbs advocates and scholars of practical advo- has been updated and provides both a Holdings Pty Ltd v Mercantile Mutual cacy. Undoubtedly there are infinite ways representative and comprehensive analy- Insurance (Australia) Ltd [2002] 1 Qd R to prepare a case for trial. Palmer does not sis of the application of the Act. 17 (to name but a few). While comprehen-

68 69 sive, the text is not overly verbose. works concerning the collapse of Ansett, rent bankruptcies and offences, before The Insurance Contracts Act is not a One.Tel and HIH. This trend seems set to finishing with a brief chapter entitled complete statement of the law relating continue, with at least one further such “Reform and Conclusions”. Many of the to insurance contracts in Australia. The book to be released in the wake of the HIH issues canvassed in those chapters are not common law relating to insurance has Royal Commission. covered in detail by Keay and Murray, and developed over hundreds of years and This review compares two general they are interesting and useful additions involves complicated topics including Australian insolvency textbooks published which contribute to Duns’ rounded dis- subrogation, contribution and uberrimae last year. Andrew Keay has written three cussion of the law. However, the index to fidei (utmost good faith). Where the prior editions of Insolvency: Personal Duns’ book is far less thorough. The book legislation touches on those concepts, and Corporate Law and Practice, and also lacks the helpful bibliography pro- the annotations would be improved by has been joined by Michael Murray in pen- vided by Keay and Murray, which guides reference to textbooks or seminal arti- ning this fourth edition. Keay is a prolific the reader to works that provide more cles which fully describe the operation of author in the field of insolvency. He has detailed or specialised commentary than those important parts of the law. Those written books on various topics concern- can be crammed into a general textbook. changes would make the book more useful ing Australian insolvency law, and his Both books stand out from the raft of to all members of its intended audience. In work is frequently published in local and books on general insolvency law, but for particular, the additions would be appre- international law journals. Michael Murray different reasons. Insolvency Law and ciated by professionals and students who is the general editor of the Australian Policy is an academic text more suitable may not have the passing familiarity with Insolvency Bulletin, and has written for readers interested in the underpin- the concepts that experienced insurance extensively on insolvency outside that ning concepts and history of insolvency. practitioners will. publication. Insolvency Law and Policy It discusses interesting issues confront- Like earlier editions, the book is a is John Duns’ first book on insolvency law. ing legislators and judges in some detail. handy and accessible reference. This He has published numerous articles in the In parts of the book (for example, the up-to-date edition deserves a place in the area, and has also written books on trade chapter on the concept of insolvency) this library of anyone whose work involves practices and consumer protection. is useful for students and practitioners insurance. Keay and Murray have arranged their alike, because a detailed grasp of the legal book in three parts. The first is a general meaning of insolvency and the means of S.J. Maiden introduction to insolvency. Part two deals proving it is crucial in practice. However, with bankruptcy, and part three covers the detailed dissection of theory takes corporate insolvency. Each of the latter away from the practical use of the book Insolvency: Personal parts is divided into similarly structured in some parts. In contrast, Insolvency: chapters beginning with the initiation Personal and Corporate Law and and Corporate Law and of the relevant insolvency process, then Practice is a more rounded, more easily Practice (4th edn) dealing with its effects, the administration accessible guide to the practical aspects of assets in insolvency and the termination of insolvency. Its authors provide practi- By Andrew Keay and Michael Murray of the insolvency process. A separate sec- cal advice and insights which are largely Law Book Company 2002 tion in each part deals with “non-terminal” absent from Duns’ book. For example, Pp. v–lix, 1–540, Bibliography administrations — Part X arrangements they offer advice as to the courts’ likely 541–552, Index 553–573 and debt agreements in bankruptcy, and approach to applications to set aside stat- schemes of arrangement, receivership, utory demands and bankruptcy notices, voluntary administration and deeds of and explain when consent orders are Insolvency Law and company arrangement in a corporate con- commonly agreed to on hearing creditors’ text. The discussion of bankruptcy prior petitions. That practical instruction, along Policy to corporate insolvency creates a logical with the book’s comprehensive index and By John Duns progression given the latter’s continuing logical structure justifies the inclusion of Oxford University Press 2002 reliance on concepts of bankruptcy law. Insolvency: Personal and Corporate Pp. v–lx, 1–512, Index 513–523 The chapter structure, along with its com- Law and Practice as the set text for prehensive index and reasonable internal the Insolvency Practitioners’ Association HE number, size and infamy of recent referencing, make navigating Keay and of Australia’s Insolvency Education Tcorporate collapses have generated Murray’s book a pleasure. Program. some remarkable phenomena: reporting Duns covers much the same ground, and Regardless of the significant differ- of the details of insolvency administra- in a similar order. He discusses insolvency ences between the two books, students tions outside the business pages, letters policy, courts and administration and the and practitioners will benefit from the to the editor about employee entitlements concept of insolvency before embarking presence of either book in their library. and the interaction between business and on a tour of the typical insolvency “life Each is sufficiently broad to provide a politics, and perhaps less predictably, cycle”. However, Duns groups corporate thorough understanding of the basic con- celebrity accountants! Possibly a further and personal insolvency together for the cepts of insolvency law, while containing result of the recent outbreak of large-scale purpose of discussing the mechanics of enough detail and sufficient reference to insolvency has been a flurry of books their operation, allowing him to helpfully other works to guide those who need fur- about and surrounding the topic. Several compare and contrast the two regimes in ther specifics. new textbooks, and new editions of old the course of his narrative. The final chap- books, have been released in the last two ters of his book deal with cross-border Stewart Maiden years, along with general non-fiction insolvency, deceased estates, and concur-

68 69 primarily teaching resources, and their intellectual property rights in relation to Intellectual Property: value for practitioners is limited. plant breeders' rights and circuit layouts Text and Essential This work, Intellectual Property: also are dealt within discrete chapters. Text and Essential Cases, does not suf­ It is interesting to note that although Cases fer from the pitfalls of many text and the Circuit Layouts Act 1989 and Plant materials case books. There is substantial Breeders' Rights Act 1994 have been By R. Reynolds and N.P. Stoianoff outline of the law, together with relevant, enacted for a number of years, there are Federation Press 2003 comprehensive commentary setting out no cases the authors deemed of such sig­ Pp i-xl, 1-545, Index 54-552 the general principles in each area of nificance that extracts were incorporated ntellectual Property: Text and intellectual property law. As an adjunct to into this text. Other areas of "new" intel­ I Essential Cases is a comprehensive the commentary there are extracts from lectual property such as DNA advances work that provides ready access to the law significant cases that represent or high­ and the impact of computer technology of intellectual property in an Australian light salient features ofthe particular area receive only cursory commentary. context. The authors have targeted this of intellectual property law under discus­ Readers of Intellectual Property: text for students, nevertheless the work sion. Thankfully the extracts are found at Text and Essential Cases will find the provides a useful overview of the law of each chapter end, which enables the text text clear and concise. By incorporating intellectual property for practitioners and to be read complete, with reference to the extracts of salient cases at chapter's end others interested in intellectual property extracts if desired. The work has a strong it is possible for the reader to gain a clear law. Australian orientation with many of the insight into the law of intellectual property The usefulness to practitioners of text extracted cases being recent Federal in Australia. This text is commended to books devoted to cases and materials Court decisions. those interested in intellectual property, is questionable - too often they are a There are specific chapters devoted to whether they be students, practitioners series of selected extracts supplemented copyright, patents, designs, trademarks, or others who have a particular interest in by questions, but lacking a coherent com­ confidential information and the protec­ intellectual property law. mentary or analysis. Clearly such texts are tion of business reputation. The "new" P.w. Lithgow

Conference Update

1 May 2004: Melbourne. 8th Annual 9-15 August 2004: Valle Nevado, 4488 5566. Fax: 331 4488 5577. E-mail: Family Law Intensive. Contact Anita Chile. Employment Law and Business uiacentre@wanadooJr. Kwong. Tel: 96023111. Fax: 96703242. Immigration Conference. Contact Dennis 12 September 2004: Beijing. 17th 2 May 2004: Seoul, Korea. 14th Campbell. Fax: 43662 835171, E-mail: International Congress of Penal Law. Annual Meeting of the Inter-Pacific Bar [email protected]. Contact Mr Liang Yi. Tel: 8610 66182218. Association. Contact Convention Team, 24-28 August 2004: Naples. Association E-mail: [email protected]. Han Jin Travel Service Co. Ltd. Tel: 82 Internationale des Jeunes Avocats 16 September 2004: Florence, Italy. Pan 2 726 5556. Fax: 82 2 778 2514. E-mail: 42nd Congress. Contact Association Europe Asia Medico-Legal Conference. [email protected]. International des Jeunes Avocats. Tel: Contact Rosanna Farfaglia. Tel: (07) 8-14 August 2004: Perisher Blue, NSW. 322 3473334. Fax: 322 347 5522. E-mail: 3236 2601. Fax: (07) 3210 1555. E-mail: Australian Medico-Legal Conference. [email protected]. [email protected]. Contact Rosanna Farfaglia. Tel: (07) 29 August - 2 September 2004: 3236 2601. Fax: (07) 3210 1555. E-mail: Geneva. YIA Congress. Contact. Union [email protected]. Internationale des Avocats. Tel: 331

Bar Graciously Surrenders Trophies

Continued from page 64 occasion was once more voted a resound­ evening. The Bench and Bar has this year be interested in participating in the next ing success. The timing ofthe match being returned to being competitive but lacking match to be held during the week prior to during the afternoon again seemed to the fire power to combat the big guns Christmas this coming year. work well, with convivialities on the club­ of the Institute. Maybe there are a few house verandah continuing into the early pennant players reading this who might Chris Thomson

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