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Barnewsthe JOURNAL of the NSW BAR ASSOCIATION | WINTER 2013 Contents 2 Editor’s note 66 Bar history 3 President’s column The conviction of Frederick Lincoln McDermott 5 Bar Practice Course 01/2013 Kevin Ross Murray: barrister 6 Opinion and citizen soldier Barristers and elected office Cover: The Australian Senate. Photo: Alex John Mortimer: an appreciation Proimos 12 Recent developments Judges, barristers and NT reminiscences 33 Maurice Byers Address Finality 86 Appointments 42 Features 92 Obituary On deployment to Afghanistan 93 Crossword by Rapunzel Marriage equality 94 Bullfry 96 Book reviews Lawyers and commercialism Our Reconciliation Action Plan 99 The Last Word 64 Bench and Bar Dinner 2013 100 Poetry barnewsTHE JOURNAL OF THE NSW BAR ASSOCIATION | WINTER 2013 Bar News Editorial Committee ISSN 0817-0002 © 2013 New South Wales Bar Association Views expressed by contributors to Jeremy Stoljar SC (Chair) This work is copyright. Apart from any use as permitted Bar News are not necessarily those of Greg Burton SC under the Copyright Act 1968, and subsequent the New South Wales Bar Association. amendments, no part may be reproduced, stored in Arthur Moses SC Contributions are welcome and should a retrieval system or transmitted by any means or Richard Beasley SC be addressed to the editor, Jeremy process without specific written permission from the David Ash copyright owner. Requests and inquiries concerning Stoljar SC. reproduction and rights should be addressed to Kylie Day the editor, Bar News, c/- The New South Wales Bar 8th Floor Selborne Chambers Daniel Moujalli Association, Basement, Selborne Chambers, 174 Phillip 8/174 Phillip Street Nicolas Kirby Street Sydney, NSW 2000. Sydney 2000 Daniel Klineberg DX 395 Sydney Catherine Gleeson Victoria Brigden Contributions may be subject to editing Caroline Dobraszczyk prior to publication, at the discretion of Kathryn Millist-Spendlove the editor. Susan Cirillo Fiona Roughley Chris Winslow (Bar Association) Bar News | Winter 2013 | 1 EDITOR’S NOTE The doctrine of advocate’s reached by the court below. years after McDermott’s conviction immunity is of particular interest and thirty six years after his death This issue of Bar News also to barristers. The decision of the in 1977, the Court of Criminal includes a piece by Chief Justice High Court in D’Orta-Ekenaike v Appeal reviewed McDermott’s Bathurst on the question whether Victorian Legal Aid (2005) 223 conviction on a reference by the lawyers are a help or a hindrance CLR 1 established that the central attorney general. In the light of to commercialism. The chief public policy sustaining that new and cogent evidence that justice concludes that lawyers and immunity is the need for finality in had come to light since his trial, the legal system play an important litigation. the court entered a verdict of role in facilitating efficient business acquittal. As the High Court observed in operations. D’Orta-Ekenaike, ‘A central and In this issue we also examine the Later in this issue Ian Barker QC pervading tenet of the judicial lives of two notable barristers. recounts some of his favourite system is that controversies, once Philip Selth has a piece on Kevin anecdotes of life at the bar, resolved, are not to be reopened Murray QC, a prominent and drawing on his more than fifty except in a few narrowly defined formidable Sydney silk in his day. years in practice. cases’ (at [23]). And Emily Pender has a piece on In his discussion of the principle John Mortimer QC, well known as This central and pervading tenet in of finality in the Sir Maurice Byers the author of Rumpole and other its many guises is explored in this Address Gleeson AC QC remarks: works. year’s Sir Maurice Byers Address by the Hon A M Gleeson AC QC, In the criminal area, a striking Other articles in this edition of which Bar News is delighted to example of the collision between the Bar News include James Renwick publish in this issue. interest of finality and the need to SC on his recent deployment recognize, and where possible, in Afghanistan, a look at two As the address shows, the principle remedy a miscarriage of justice is a important recent decisions by the of finality is an important part of case where, after rights of appeal have US Supreme Court on marriage many areas of the law. been exhausted or time for appeal has equality by Jonathon Redwood, elapsed, there is evidence that a For example, the variety of conviction was wrongful. and a discussion by Rebecca Gall estoppel which prevents a party of two cases which examine the taking a point which could One such collision is discussed extent to which a judge can rely reasonably have been raised in elsewhere in this issue in an article on ‘cutting and pasting’ counsel’s earlier litigation is sustained largely by Caroline Dobraszczyk on submissions into judgments. by the public interest in the finality the McDermott case. Frederick of litigation. McDermott was an itinerant shearer who was found guilty in Likewise the need for finality is 1947 of the murder of a man in an important consideration for Grenfell. an appellate court in determining whether to disturb the conclusions In May of this year, some sixty six 2 | Bar News | Winter 2013 | PRESIDENT’S COLUMN No public benefit in single-member corporations model By Phillip Boulten SC services – especially legal aid Inventive new structures have not services. Barristers can even form been on the bar’s horizon. associations with solicitors and But now sufficient members have other non-barristers to allow the signed a petition requisitioning pooling of risks and resources. It a general meeting of the Bar is a brave new world for English Association to consider a barristers. resolution calling on the Bar Time will tell whether these Council to amend the Barristers’ changes deliver public benefits Rules to permit barristers to offer but they are clearly aimed at services through a single-member, reducing the costs of legal services sole director company. I oppose and making barristers’ practices this move. flexible and efficient. The general meeting will be held on 17 September 2013. I trust that At its essence, practise as a the meeting considers the issues barrister involves independence. What seems clear is that the carefully. Prior to the meeting All of us at the private, the Bar Association will distribute independent bar are sole only rationale for this model three legal opinions that the Bar practitioners – employed by no of incorporation is to reduce Council has sought on the issues. one, in partnership with no one and bound by the cab rank rule. We barristers’ exposure to tax. No What seems clear is that the are different from solicitors. We other policy is advanced by only rationale for this model play a different role to solicitors. the move. of incorporation is to reduce The justice system would be very barristers’ exposure to tax. No different without independent other policy is advanced by the barristers. move. No one is suggesting that Our association’s Practice single-member corporations will The basis of our practice has been Development Committee has provide more work opportunities developed over centuries. Because considered some of these English for the bar or that they will cut the we are not bound professionally proposals without formulating a costs of barristers’ services or that to any other person or entity we decided or committed view about they will lead to a more efficient exercise our skills and abilities their utility. It is inevitable that the administration of justice. for the benefit of our clients, no Bar Council will need to consider matter who they are or what they various aspects of barristers’ To my mind, cutting barristers’ tax have done. Solicitors are free practice. payments is a wholly unacceptable to decline to act where we are reason to seek a change in In the moves over the last few required to act. the rules and to convince the years to establish a national set government to make the necessary Yet, the pressure of the legal of Barristers’ Rules and a national amendments to the Legal market has led to major changes legal profession, the New South Profession Act 2004 to achieve to barristers’ practices in England Wales Bar Association fought hard this objective. If we are going to where barristers can now to maintain the existing concept of attempt to change the basis of initiate and conduct litigation an independent bar bound by the practice at the bar, we ought to do and form corporations for the cab rank rule, separate and apart it to deliver a clear public benefit. purpose of contracting legal from legal practice as a solicitor. Bar News | Winter 2013 | 3 If we are going to attempt to The proposal would not only Much work needs to be done. The require amendment to the New onus will fall heavily on our bar to change the basis of practice at South Wales Barristers Rules, both develop and then advocate the bar, we ought to do it to but also significant changes to appropriate policies that will make the Legal Profession Act and the a difference. deliver a clear public benefit. upcoming national legal profession Meanwhile, the Bar Association legislation. is continuing its fight against the To actively seek these changes Further, the proposed changes New South Wales Government’s on the basis of tax minimisation would not be of any assistance proposed changes to the motor would endanger the standing and to those members of the bar in vehicle accident scheme. Andrew reputation of the bar with the government practice, such as Stone and the Common Law government, parliament and the Crown prosecutors and public Committee have had remarkable community as a whole, particularly defenders.
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