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VICTORIAN BAR NEWS ISSUE 166 SUMMER 2019/20 VICTORIAN BAR NEWS

What is ‘GOOD LEGAL WRITING’? Where Lessons from the bench we come and elsewhere from II

Who are Reflections on our new SUMMER 2019/20 Key‘Advocates Visual 22 for Change’ Silks?

166 Plus: Our interview with the Chief Justice of the Family Court ISSUE 166 SUMMER 2019/20 VICTORIAN editorial Editorial 50 Where we come from II The power of our community: 5 BAR HAROON HASSAN AND VERONICA HOLT telling stories, saying what we 56 Advocates for change: lessons from think, helping each other a consciousness-raising experience THE EDITORS NEWS NATALIE HICKEY Letters to the editors 7 60 Turn that frown upside down? Who’s taking that speccy? 9 Why happiness may be overrated Reflections of a two-term president 10 NATALIE HICKEY AND MEG O’SULLIVAN MATT COLLINS 62 Hands up: your student The future is ours to build 13 engagement committee at work KATHERINE LORENZ AMANDA BURNNARD, ERIN HILL AND GERARD O’SHEA Around Town 64 What remedies are available under Stephen Charles AO QC: 16 the Charter? a princely portrait by 36 THE HON JUSTICE PAMELA TATE, JUSTICE Ralph Heimans AM OF THE COURT OF APPEAL SIOBHÁN RYAN 66 Professional negligence claims The Federal Government’s 19 at the Bar treatment of Timor-Leste LEGAL PRACTITIONERS’ LIABILITY THE HON STEPHEN CHARLES AO QC COMMITTEE Junior Bar Conference 2019 21 68 Free access to legal information— VERONICA HOLT AND HADI MAZLOUM Are we taking a basic civil liberty Victims of crime in thecourtroom: 22 for granted? guide for judicial officers launched ANTHONY PERL AND RICHARD HUNTER ANNETTE CHARAK Bar Lore Launch of the Good Conduct 23 70 The Bar and the Eureka Guide (second edition!) Treason Trials JESSE RUDD 40 DR PETER YULE AND DR GONZALES The International Commission 24 VILLANUEVA of Jurists, 2019 dinner CAMPBELL THOMSON Back of the Lift v Solicitors football match 26 74 Adjourned Sine Die DUGALD MCWILLIAMS 75 Silence all stand Barristers take home the 29 76 Vale silverware at last! 84 Victorian Bar Readers JENNIFER BATROUNEY 86 Victorian Bar Council 2019-2020 News and Views 89 2019 Silks Q&A To prorogue or not to prorogue 32 Boilerplate BY PETER HEEREY AND DAVID FELDMAN 94 Interview with the Honourable 36 50 A bit about words Chief Justice Alstergren JULIAN BURNSIDE CARMELLA BEN-SIMON 96 Red bag blue bag AND ANNETTE CHARAK 98 Then and now - chambers Improving our written submissions 40 with views THE HON ANNE FERGUSON, THE HON CAMPBELL THOMSON IN CONVERSATION MELINDA RICHARDS, THE HON KEVIN LYONS WITH PHILIP DUNN QC AND DION FAHEY 43 A third edition of Jesting Pilate 100 The stage versus the cage – the JUSTIN WHEELAHAN sanctity of life, as seen by others 44 An interview with Jock Serong HADI MAZLOUM JUSTIN WHEELAHAN 102 Tips for the day to day – Taxing The Last step to technical 47 matters: judgments and settlements excellence: how to proofread MICHAEL BEARMAN ANNETTE CHARAK 56 VBN 3 ISSUE 166 SUMMER 2019 VICTORIAN BAR Editorial NEWS

Editors: Natalie Hickey, Justin Wheelahan and Annette Charak. Victorian Bar News Editorial Committee: Natalie Hickey, Justin Wheelahan, Annette Charak (Editors), Maree Norton, Brad Barr, Jesse Rudd, Campbell Thomson, Tony Horan, Haroon Hassan, Hadi Mazloum, Carmella Ben-Simon, Veronica Holt, Reiko Okazaki, Meg O’Sullivan, Denise Bennett, Amanda Utt and Sarah Harrison Gordon. Contributors: Professor Kate Auty, Jennifer Batrouney QC, Michael Bearman, Miguel Belmar, Carmella Ben-Simon, Oren Bigos SC, Matthew Bromley, Amanda Burnnard, Julian Burnside AO QC, The Hon Justice Tony Cavanough, Annette Charak, The Hon Stephen Charles AO QC, Phillip Coish, Dr Matt Collins AM QC, Art STANDING L-R: Denise Bennett, Jesse Rudd, Campbell Thompson, Sarah Harrison-Gordon, Hadi Mazloum, Veronica Holt & Collections Committee, Legal Practitioners’ SEATED L-R: Carmella Ben-Simon, Annette Charak, Justin Wheelahan, Maree Norton, Natalie Hickey Liability Committee, Georgina Costello SC, Robert ABSENT: Meg O’Sullivan, Tony Horan, Brad Barr, Haroon Hassan, Reiko Okazaki, Amanda Utt Craig SC, Lisa De Ferrari SC, Renee Enbom SC, David Feldman QC, The Hon Chief Justice Anne Ferguson, Marita Foley SC, Malcolm Harding SC, Matthew Harvey SC, Her Honour Judge Anne Hassan, Sam Hay SC, The Hon Peter Heerey AM The power of our community: QC, Natalie Hickey, Erin Hill, The Hon Judge Fran Hogan, Veronica Holt, Richard Hunter, Richard telling stories, saying what we Knowles SC, Katherine Lorenz, The Hon Justice Kevin Lyons, Hadi Mazloum, Ian McDonald SC, Murray McInnis, Dugald McWilliams, Ronald think, helping each other Meldrum QC, Paul O’Dwyer, Reiko Okazaki, Patrick O’Shannessy SC, Gerard O’Shea, Meg O’Sullivan, Patrick Over, Anthony Perl, Maurice NATALIE HICKEY, JUSTIN WHEELAHAN, ANNETTE CHARAK Phipps QC, Karina Popova, Diane Preston, Neil Win. Win. Rattray, The Hon Justice Melinda Richards, Jesse Rudd, Siobhan Ryan, Charles Scerri QC, Bruce Shaw, Charles Shaw SC, Jeremy Slattery SC, John vibrant sense of community springs from the pages of Bar News Unbeatable extras. Exceptional value. Smith, Rozeta Stoikovska SC, The Hon Justice Pamela Tate, Campbell Thomson, The Hon Justice Issue 166. There are interviews galore, more stories about where Andrew Tinney, His Honour Judge Michael Tinney, we came from, tales of sporting endeavours, legal tips, strongly At Mercedes-Benz, it’s a win-win with outstanding value and extras across an exhilarating line-up. Jack Tracey, Dr Gonzales Villanueva, John Werner, expressed opinions, and experiences imparted. It calls to mind the expression, Featuring the GLA 180 with Metallic Paintwork, B 180 with Panoramic Glass Sunroof, C 200 Sedan Justin Wheelahan, Peter Willis SC, Dr Peter Yule, ‘strength lies in differences, not similarities’. 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No. A 0034304 S The publication of Victorian Bar News may be Written submissions are included in many pre-trial timetables as a matter of • Pick-up and drop-off or access to a loan car when servicing your vehicle.[4] cited as (2018) 164 Vic. B.N. course. Courts now frequently hear and determine ‘on the papers’ applications Opinions expressed are not necessarily those of the and appeals. Did the term ‘on the papers’ even exist 15 years ago? We asked Visit your participating retailer today. Bar Council or the Victorian Bar or of any person other than the author. Julian Burnside QC. He may not know exactly when it came into usage, but Advertising: All enquiries including requests says the term rather speaks for itself. for advertising rates to be sent to: This focuses the mind on what we should write. For some, the urge to Sarah Harrison-Gordon Victorian Bar Inc. channel our inner Margaret Atwood is joyful. For others, it is more desirable photo courtesy of peter bongiorno Level 5, Owen Dixon Chambers East to prepare income tax statements in an airless room. Whatever the case, 205 William Street, Melbourne VIC 3000 Tel: (03) 9225 7909 writing legal submissions can feel at times like wrestling a wild beast. Email: [email protected] To help understand what makes persuasive written advocacy, we asked Illustrations, design and production: the decision makers. Sincere thanks to Chief Justice Ferguson, and to Justice Guy Shield — www.guyshield.com ^ Offer available on new, standard specification GLA 180 Urban Edition, B 180 Sport Edition and C 200 Sedan & Coupé Printed by: Southern Colour Richards and Justice Lyons for their reflections. The article will tell you which Sports Edition ordered and delivered between 1 November and 31 December 2019 unless extended. Offer excludes rental, www.southerncolour.com.au Supreme Court judge has not yet reached the stage to enjoy ‘any part of government and national fleet customers. Not available in conjunction with any other offer. Offer is not a chance to win. Contributions: Victorian Bar News welcomes 1 2 writing a judgment’. Visit www.mercedesbenz.com.au/win-win for full terms. Corporate Programme is subject to eligibility Available at authorised contributions to [email protected] participating Mercedes-Benz retailers on new and demonstrator passenger cars only. Scheduled servicing is provided through Are there lessons from writing fiction which can help the legal writer? a Service Solutions Pay Upfront Plan, up to 3 years or the relevant mileage-based servicing interval applicable to your model, Jock Serong, former and celebrated Australian author, suggests, whichever occurs first. Please refer to the Owner’s Manual or an authorised Mercedes-Benz retailer to confirm the service interval for your vehicle. 3Not applicable to all models. 4Within 25 km of the servicing retailer and subject to availability. Only available during the period of complimentary servicing offer. Visit the website or your authorised retailers for full terms and conditions. VBN 5 TO Have your Say Victorian Bar News encourages letters to the Editors on topics editorial ‘distillation’. If an idea has not been interview with us. The responses are to fight for your client on two fronts: Letters THE ranging from the meaningful to the mundane. Write to the Editors at Victorian reduced to simple speech, he says, it’s forthright. The result is a thoughtful in court and in the press. This is a Bar News, Owen Dixon Chambers, 222 William Street, Melbourne, VIC 3000 just a series of ideas and you haven’t and open contemplation of his gripping tale of the protagonists, editorial editorial Editors or email [email protected] reduced it far enough. Honour’s period to date as the head from the pending History of the Bar We celebrate the launch of a Third of two jurisdictions, the Family Court project. Edition of Jesting Pilate in this issue. and the Federal Circuit Court. As we head into the court This expanded edition elucidates The Advocates for Change vacation, are we placing too much Sir Owen Dixon’s standing, not only program, the brainchild of Justice pressure on ourselves to be happy? as a jurist, but as an exponent of Maxwell, President of the Court of Dr Brock Bastion from the School Remembering Jack Winneke clear legal writing. He also authored Appeal, brought groups of barristers of Pyschological Sciences at the observations such as, ‘A barrister together to discuss ways in which , suggests we he editor, JP, mentoring her as was required. From the foyer we could enjoys life but for a short interval, the barristers could support and advocate lower our expectations. This follows Pardon this rather long letter about Jack Winneke. hear a good deal of very loud swearing. The voice was a interval between the time when he is for women at the Bar. More than fascinating research into the causes I was sad to hear of his death. woman’s. Sporadically and repeatedly we heard ‘f--- off, doing nothing and when he is doing 18 months later, his Honour has of depression in Western society. By a strange coincidence his obituary appears in the f--- up and piss off’. nothing else’. reflected on, what he candidly admits, Finally, we farewell retiring president Tsame Bar News as the article about the ‘c word’. In my The JP did some squirming. No feature on good legal writing was an experimental process. of the Victorian Bar, Matt Collins AM experience Jack Winneke responded to the use of the The police orderly at the door periodically got up from would be complete without For those who thought only some QC who reflects on his two-terms and ‘c word’ in just the right way. his seat, left the courtroom and returned. The swearing considering the last step to technical form of declaratory relief was legacy. We wish him the very best, and This story comes from across the Nullabor and the would stop and then it would start again. excellence: how to proofread. To do available under Victoria’s Charter of a well-deserved rest. We also welcome Magistrates’ Court at Esperance. A thin and hunted-looking young man entered the this effectively, and to help the brain Human Rights and Responsibilities, Wendy Harris QC as the incoming Sitting in the court there it was usually the case that court with his vastly overweight solicitor advocate. They to slow down, one idea is to start from things have moved on. Justice Pamela president, who will no doubt feature in Wednesday’s list passed without incident. Most people were walked to the Bar table. Contemporaneously the swearing the middle. Tate of the Court of Appeal shows forthcoming issues. on their near-best behaviour on the first day of the circuit. in the foyer stopped. This issue, we have an unprecedent how the Charter can furnish powerful None of the above could be Following an uneventful Wednesday, litigants often The lawyer started a submission for an adjournment, number of contributors from remedies. possible without the efforts of the relaxed overnight. Thursday was often a circus. rather pompously talking about the ‘researches he had members of the judiciary. To devote For history buffs, the spotlight is on VBN Committee, our motivated and One particular Thursday, I was sitting with a blue rinse undertaken’ in the matter. The JP settled down. the extra time to engage with us, the Eureka Treason Trials. Did you diligent collaborators. Please share deserves special mention. know that, back in the day, members your ideas with us too. We wish you Chief Justice Alstergren has of the Bar could moonlight as well for the festive season. been generous with his time in his journalists? Consider the opportunity The Editors

Judge Carlin Welcome, County Court of Victoria, 3 October 2019 A Bench to delight US Supreme Court Justice Ruth Bader Ginsburg: Her Honour has famously said that there will be enough women on the US Supreme Court “When there are nine.”

(L-R): Judge Dawes, Judge Cannon, Judge Hampel, Judge Lawson, Chief Judge Kidd, Judge Carlin, Judge Sexton, Judge Pullen, Judge Wilmoth, Judge Quin. Inset (L-R): Judge Dawes, Judge Quin, Judge Cannon, Judge Pullen, Chief Judge Kidd, Judge Carlin, Judge Lawson, Judge Wilmoth, Judge

photo courtesy of les o’rourke of les courtesy photo Sexton, Judge Hampel.

VBN 7 6 VBN Who is it taking editorial At the back of the court a haunted The whole court leapt to its feet. the speccy? youngish woman sidled in with three The JP took an audible gulp of air The Irish Courtesy of an Intervarsity football small children. They all sat directly and slid off her seat.

editorial match between Melbourne and next to the court orderly, right at the The lawyer actually stopped legacy on back, right near the door. The swearing talking long enough for me to say - Monash Universities, May 1973, in the foyer had stopped. ‘adjourned to next month’s list, your here is a quick quiz: The lawyer droned on. The JP client’s bail is continued. Call the our courts Can you name the player taking this took copious notes. The children next matter’. ear Editors, 1 spectacular mark, as captured by started clambering over their The woman and the children The valuable advice mother, grabbing her hair, pulling turned right and exited the court. The Age in May 1973? by Red Bag about the her coat, twisting the hem of her I told the man to sign his bail at the For bonus points, who is the Bar table in VBN Issue 165, Winter colourful cotton dress, jockeying counter in the foyer. He was running opportunistic crumber (No 12) D2019, p. 84 arises in an interesting 2 for knee space. up the aisle, backwards, watching historical context. ready to step in if an error occurs? The woman suddenly drew breath the bench. His lawyer followed at We are used to a Bar table where and yelled ‘f---ing shut up’. a waddle. Do any of the other players look instructing solicitors sit facing The orderly jumped up and The story made it back to the 3 familiar? counsel and with their backs to grabbed the woman’s arm. She headquarters court at Kalgoorlie the judge. ANSWERS ON PAGE 93 shrugged him off and settled the before I did. This arrangement, unique in three children. She remained seated. It also made its way across the , follows the Irish practice. I watched with interest, motioning Nullabor as I shared it with old In the 19th century many of the the orderly to sit down. The JP had colleagues at the Bar. judges in Victoria had Irish rather stopped writing. I am reliably informed that when than English origins. The yell worked: the children sat Jack Winneke heard the story, he You will see the same setup in quietly for a few short moments. asked ‘what did the magistrate the Four Courts in Dublin today. The lawyer droned on. The accused do?’ When he was told that I just The direct lines of sight, judge kept glancing around at the woman adjourned the matter and bailed to counsel, counsel to instructor, and children. He was sitting on the the accused I am also told he simply can work efficiently. edge of his seat. said ‘good on her’. For example The children got restive again. The I know he was a great advocate Judge to counsel (somewhat woman cuffed them gently from time and judge but I think Jack Winneke testily): I don’t seem to have the to time. They were around her neck, was wasted in the superior courts letter of 22 July. sliding off her knee, watching the ... we would have loved to have him Counsel to judge (obsequiously): orderly, and grabbing his arm as they in the people’s courts, the place My apologies your Honour. shimmied to and fro. of poverty, pain and sometimes— Counsel to instructor: Where’s Finally the woman, pushing, humour—and humanity. that bloody letter? pulling and shoving a melee of He was a good man. Sincerely children, YELLED—at the top of her Professor Kate Auty The Hon Peter Heerey AM QC voice—‘pay attention to the c--- up Professorial Fellow University the front’. of Melbourne

ear Editors, Observed Morry Nightingale and wife Ruth seeking some solace from the rigours of the conference at the performance of Giselle at the DSt Petersburg Opera House. Emperor Morry deigned to give the audience an imperial wave pre-performance from the Czar’s box. Such proved to be a highlight of the night for the “Emperor”, who later decided to make a late night visit to the River Neva to see the drawbridges raised, only to be confronted by five gypsies looking for a target—in the subsequent melee, while Morry and Ruth were not hurt, the “Emperor “ afterwards noticed he had lost his wallet. Roving Reporter from the St Petersburg medico-legal conference: Judge McInerney.

8 VBN VBN 9 Our cohesion depends editorial upon honouring the

editorial values that define and PRESIDENT’S REPORT unite all of us.

Reflections of a two-term president The other half of our membership (which, by age, I will join next February) is over 50 years of age and MATT COLLINS overwhelmingly male. It is impossible to generalise about that cohort, The two-year term of Matt Collins AM QC as president of Privileges of leadership other than to observe that our more the Victorian Bar—the longest in some decades—has been senior members tend to feel a very Perhaps the greatest privilege of being president is the amply documented in each edition of the Victorian Bar deep and abiding connection to the connection you feel with the members of our Bar, with News published during his term, his weekly messages in Bar and its traditions. I tried to be a all their glorious idiosyncrasies. We have well over 2,100 In Brief and the Bar’s Annual Report. In this article, VBN vocal champion of the Bar’s historical practising members, not to mention our community of asked Matt to reflect on his time at the helm. legacy through, for instance, support judicial and other official office holders, academics and for the Peter O’Callaghan QC portrait did not set out with the intention of serving retired members. We still function, in many ways, however, gallery, the Victorian Bar Legends two terms as president. Rather, as my as if we were a much smaller institution. The division of program, BCL, the Essoign Club, intimidatingly distinguished predecessors roles between the Bar Office and the Bar Council is not well our tradition of honouring members had done, and advised me to do, I attempted understood. And so, on most days, the president is contacted who pass away by the publication of to hit the ground running, articulating at about all manner of issues, from concerns about whether obituaries, and speaking whenever my first post-election Bar Council meeting the Bar is doing enough to recycle chambers rubbish, to possible at judicial welcomes and my priorities for the year ahead. I wanted the Victorian split infinitives and hanging participles in CPD notices in farewells (on my count, about 70 such Bar to be more outward-focused, raising its profile in the lifts, to the quality of catering at a Bar event. We are a events in the two years of my term). the media and broader community as an authoritative college, proud of our open-door policy. I tried to make time I do not believe that demographic repository of legal excellence. If we could position for any member who wanted to see me, no matter what the differences in our membership barristers in the eyes of the public and potential clients issue. And in that way, I tried to understand the issues that I represent a schism. They do, however, as pre-eminent providers of legal services, I thought, matter to the whole of our membership. Most of the issues point to the need to remember, always, we would increase market share and work opportunities that came to my attention were far from trivial. I found it that our cohesion depends upon for all members. I wanted us to be more confident— particularly rewarding to be able to assist members who honouring the values that define projecting ourselves publicly, but also feeling increasingly were struggling, whether it be by a chat over a cup of tea, and unite all of us—which include comfortable internally, as a modern, accessible, engaged assisting them with an application for support from the our commitment to independence, and diverse institution. I wanted to broaden the Barristers’ Benevolent Fund or in obtaining counselling, photo courtesy of wayne harley legal excellence, the administration response. They also presented us their introduction and been copied in conversation about what it means to be a barrister in or escalating and resolving matters of concern to them. of and access to justice, and the rule with an opportunity to review our other jurisdictions. the 21st century, which I believe lies in maintaining a of law. Those values are timeless, and internal disciplinary processes and Another memorable challenge was steadfast focus on the values that have always defined Cohesion and collegiality change need—must—never be at their strengthen our relationship with the constitutional reform process us—independence, excellence and leadership—while I was greatly influenced by the results of our largest expense. our regulator, the Legal Services which culminated in mid-2019 at a ensuring that we constantly seek to raise standards ever demographic survey, the State of the Bar, released Commissioner. special general meeting, at which and welcome the best and brightest based on merit, by Nous Group in March 2018, relatively early in my Challenges Then there was the challenge of more than 100 amendments to the not background. And I identified some particular first term. I spent a lot of time reflecting on what the The past two years have been a responding to our Wellbeing at the Bar’s constitution were approved. projects that I wanted to see advanced: an overhaul results meant for maintaining the cohesion of our college. challenging period, in a number of Victorian Bar survey (University Two out of 16 special resolutions of our internal policies, reform of the way we manage The report showed that about half of our practising ways, for the Victorian Bar. Most of Portsmouth, October 2018), failed, despite my support for them. pro bono referrals, increased attention to health and members are under 50 years of age. That cohort comes obviously, there were the revelations which revealed, among other After the special general meeting, wellbeing, a revamp of member communications, close to a 50:50 split between women and men and has in late 2018 that a criminal law things, disturbing levels of bullying, the Bar Council convened for a drink constitutional reform and improvements to governance, been, as a generalisation, very supportive of efforts we barrister who practised at our particularly in the courtroom. We or two in the Essoign. Some Bar among others. have made to make the Bar more inclusive for women Bar between 1995 and 2008 had met that challenge by engaging councillors were despondent about I returned to my chambers after that first meeting and people from culturally and linguistically diverse or been used by Victoria Police as constructively and collaboratively the failed resolutions. I, genuinely, to find a BCL IT technician tinkering with my LGBTI backgrounds—their criticisms were usually that an informer, and had engaged in with heads of jurisdiction, starting was not. I reminded the council that computer, activating the presidential e-mail account we were not doing enough or moving too slowly. They egregious breaches of her ethical with the Chief Justice, the Hon we had prosecuted an incredibly ([email protected]). Within seconds my embraced initiatives like the adoption of policies against, obligations. Those revelations Anne Ferguson, and developing ambitious program of reform, which inbox and calendar were unrecognisable. And so began and improved grievance mechanisms to address, sexual presented a serious challenge to all Australian-first judicial conduct had overwhelmingly succeeded. what has been, for me, an unforgettable two-year harassment, discrimination and bullying, and our support of our professional reputations. They policies and protocols, which have We had ignited passion among experience; one I would not trade for anything. for gender equitable briefing policies. demanded a decisive and very public worked well in the year or so since our membership, showing their

10 VBN VBN 11 editorial engagement with and commitment to As the door closes behind me people I need to thank—but I must the Bar, and democracy had prevailed. It has been one of the great privileges single out my exceptional executive After a time, I went over to join a group of my professional life to serve as team, Wendy Harris QC, Simon editorial of members who were celebrating their president of our remarkable Bar. Marks QC and Sam Hay SC; our past success in contributing to the defeat of In this article I have not touched on and present CEOs Sarah Fregon one of the two failed resolutions that so many things I would like to say and Katherine Lorenz; and three I had championed. I asked if I could about the operations of Bar Council; dedicated executive assistants join the group for a drink. We debated the work done in the Bar Office; the Denise Bennett, Liz Ingham and all manner of issues over the course of commitment and work of our Bar Liz Barr. an hour or two. As the Essoign closed, associations and committees; the Serving a second term as a senior member of the group grasped importance of BCL, the Barristers’ president was an experiment. my shoulder and suggested that I Benevolent Fund, the Victorian Bar Surviving it at times was a test. should think about standing for a third Foundation and others; integrating Others can judge whether the term as president. I left with a smile our library with the Law Library experiment succeeded or failed. on my face—as advocates, we respect of Victoria; our involvement with Continuity of leadership and the robust debate and discussion, and the Law Council of Australia and extended time frame within which the things that unite us well and truly the Australian Bar Association; our to execute change did, however, exceed any differences we might have extraordinary readers’ course and enable us to deal with a large from time to time. CPD program; and the privilege of number of issues that had been in There were many other time- engaging regularly with so many the too-hard basket for too long. consuming challenges in my time stakeholders who value and respect I struggle to conjure up any regrets. as president which, in order to our Bar, including heads of state, The greatest tribute I can pay to safeguard the interests of the Bar, heads of jurisdiction and judges, the Victorian Bar is to say that I leave had to be managed sensitively and and first law officers and their my leadership role with a greater confidentially. Sometimes the best shadows, among many others. appreciation—and love—for the place response to a crisis is to manage it I would have liked to dedicate an than I had when I embarked upon it. without fanfare. article to identifying the many, many That is, I think, no small accolade.

CEO REPORT The future is ours to build

KATHERINE LORENZ

ast month, the Victorian Bar put the endeavours in the community—what makes the Victorian finishing touches on its 2020-24 strategic Bar special is its membership. Our strategic plan captures plan. While the plan is more akin to a the essence of where we want to go. guiding architectural design than a detailed I joined the Victorian Bar as CEO just over a year ago. construction blueprint, the discussion at Bar At the start, I was warned to expect the unexpected and Council did focus the mind on how to build it has certainly been an interesting year. My feet were a better organisation. barely under the desk when the Royal Commission into LHow does an organisation 135 years young maintain the Management of Police Informants was announced. its relevance, stay vibrant and change with the times? And there have been a number of noisy topics to manage, The answer is the same as when the Victorian Bar was but also many more wonderful initiatives, across the founded—by being member-focused. The strategic plan Bar. Some topics receive front page news, others are less has been developed with the Bar’s purpose at the core: conspicuous. to ensure the Bar and its members thrive, now and into Space prohibits a deep discussion, but a few initiatives the future. The new strategic plan aims to represent of note include: our members’ interests and support their practices by » Member wellbeing—since the Bar’s landmark Wellbeing fostering excellence and promoting their unique skills. at the Victorian Bar survey last October we have From the legal skills of our counsel, to the collegial increased our focus on health and wellbeing with commitment to new initiatives, through to philanthropic initiatives ranging from judicial conduct policies and

12 VBN VBN 13 Vic_Bar-VIC.pdf 2 26/11/19 4:19 pm

The Victorian Bar is and will always be member-focused.

editorial Anything less than this and we will lose sight of the collegiate nature of this great institution.

more wellbeing-focused CPDs to expanding our health and counselling providers; » Governance—we’ve reviewed and renewed our governance framework to strengthen our 1 ability to function as an independent Bar; » Corporate Counsel Engagement—a pilot program developed to increase understanding among in-house counsel of the ease and value of using barristers and see more legal work coming to the Bar; » Victorian Bar Foundation’s Student Achievement Awards—investing in the future of the Bar by recognising 15 of Hume City’s brightest young legal minds with awards of $1000 from our Foundation and $500 from Hume City; C » Peter O’Callaghan Gallery—unveiling 2 fabulous portraits recognising leaders M

of our profession which were able to be Y commissioned through the generosity of CM members and the broader legal community; » Essoign Club survey—seeking members’ MY views on potential improvements and CY

increased involvement; CMY » RACV Club—a membership deal negotiated K for our members at competitive prices. The year ahead will see us continue to work in this important area of reframing corporate and general public understanding of what barristers provide. Given the many programs and initiatives, challenges and opportunities, it is important from time to time throughout the year to step back and ask, “so why are we doing this?” and,

“what principle is involved?”. In other words: 3 “So how does this support our members?” The Victorian Bar is and will always be member-focused. Anything less than this and we will lose sight of the collegiate nature of this great institution. And if there is anything specific we can do to make the Vic Bar evolve, grow, thrive and connect with our members better than we are currently, please let me know. A copy of the Vic Bar 2020-24 strategic plan is available on our website.

1. Launch of Gallery Extension 2. Presentation of the Professional Standards Council Certificate 3. Visit from a member of the District Bar Association, Ludhiana, Punjab, India 4. Readers Ceremony and Dinner on 2 May 2019

14 VBN 4 around town

Stephen Charles AO QC: a princely portrait AROUND by Ralph Heimans AM Tow n SIOBHÁN RYAN, ART & COLLECTIONS COMMITTEE he Peter O’Callaghan QC Gallery Foundation’s latest commission, unveiled on 2 September 2019, is an example of the magic released Twhen two stars of their professions collaborate on a work. In this case, it was Stephen Charles AO QC sitting for a portrait by Ralph Heimans AM. The former, a Supreme Court Prize winner who came straight to the Victorian Bar from law school in 1961, was the sought-after junior to the great barristers of that era: Oliver Gillard, , , S.E.K Hulme and Keith Aiken. He stayed at the Bar for 25 years until appointed to the Bench in 1986. Stephen Charles’ contribution to barristers was immense: decades of service on the Bar Council, including as chairman in 1985 and 1986; three years on the council of the Australian Bar Association, including a year as its president; service as the chairman of the Bar’s ethics committee and the Bar readers’ course committee. His contribution continued even whilst on the Bench, through his chairmanship of the committee that commissioned the landmark Report on Equality of Opportunity for Women at the Victorian Bar and his readers’ course sessions, from which so many of us benefited. Since 2012, he has chaired the silks review committee, known as the preliminary evaluation committee. Of course, Stephen Charles’ influence goes beyond the Bar. He was a foundation judge of the Victorian Supreme Court of Appeal and his AO citation is “For distinguished service to the law and to the judiciary, particularly in the areas of commercial arbitration and mediation, to judicial administration, and to legal professional organisations.” Lately, he has been an advocate (and often an agitator) for a national integrity commission. But it is Stephen’s contribution to the Victorian Bar which warranted the foundation commissioning this portrait. In his welcome address at the unveiling, the foundation chair, Peter Jopling AM QC, called Stephen Charles “A prince of our Bar”. And, so he is. Appropriately then, the artist commissioned to paint him, Ralph Heimans AM, is internationally renowned for his paintings of royals. In 2013, Heimans painted Her Royal Highness Queen Elizabeth’s diamond jubilee portrait, a majestic work which places her back in the Westminster Abby Coronation Theatre where she was crowned 60 years earlier. In 2017, he painted her consort, Prince Philip, the Duke of Edinburgh, on his retirement from public life at the age of 96. Here is another architecturally magnificent setting, this time in the Grand Corridor in Windsor Castle. Touchingly, at the end of the corridor is the Tapestry Room where Prince Philip’s mother and maternal grandmother were both born. Heimans’ 2006 portrait of Princess Mary of Denmark is a much loved work. The portrait depicts the princess amongst the splendour of Fredericksburg Castle near Copenhagen, but reflected in the mirror is the

16 VBN VBN 17 around town The Federal around town around Government’s treatment of Timor-Leste

THE HON STEPHEN CHARLES AO QC

The following is an extract from the 2019 Griffith Criminology Institute Biennial Tony Fitzgerald Lecture marking the 30th anniversary of the Fitzgerald Report, presented on Thursday 22 August 2019 by the Hon Stephen Charles AO QC in Brisbane. The lecture traced the evolution of anti-corruption bodies from Frank Costigan’s Commission to state bodies investigating corruption in WA, NSW, Queensland and Victoria. During his oration, Stephen Charles spoke in favour of the introduction of a Commonwealth watchdog with ‘real teeth’ to combat corruption in the Federal Government and our security services. He used the exemplar of the closed proceedings against ‘Witness K’ to propound his thesis that a national integrity commission capable of combating corruption is essential.

image of Constitution Dock, in her home For this portrait however the image of in any politicians and some town of Hobart. Twelve years later, in the mirror was replaced by the image of the Crown public servants have 2018, Heimans painted the Crown Prince suggested that is Frederick of Denmark, in the same room. Princess and their four children “a pretty clean polity”, that For this portrait, however, the image of corruption is not a problem Hobart in the mirror was replaced by the Supreme Court. They are the historical and wrote him an encouraging letter. requiring the attention of image of the Crown Princess and their presidents of the Court of Appeal. Heimans responded by asking that the a National Integrity Commission. If there is force in the four children. Apart from Kirby, only the faces of the judge sit for a portrait. They remain argument that corruption follows money, power, and Heimans has painted eminent first and second presidents, Sir Gordon mutual admirers and the Hon Michael influence,M there can be little doubt that Canberra is the Australians, among them Dame Quentin Wallace (1966–1970) and Sir Bernard Kirby is said to have been instrumental repository of the greatest proportion of each in Australia. Bryce, Dame Elizabeth Murdoch and Sugarman (1970–1972) are glimpsed. in securing the all-important commission And Australia has presently no body in Canberra with Paul Keating. More recently, he Kirby P (1984–1996) is represented of the Queen’s diamond jubilee portrait. the function or wherewithal to guard against and expose painted the distinguished Russian as he is in life: in line, but out of step, The personal narrative element in corruption in the federal area. pianist and conductor laureate of the and yet to don the heavy full-bottomed Heimans’ works discussed above is As to federal matters, I should mention the following. Symphony Orchestra, Vladimir wig. His head turns toward the viewer also present in the Bar’s portrait of There is now proceeding in the Canberra Magistrates’ Court Ashkenazy, whose connection with with an attitude of interest, tinged with the Hon Stephen Charles AC QC. a prosecution against an ASIS officer (Witness K) and a Australia began in 1969, when he toured mild irritation. The portrait has the title, The work is situated in the library of solicitor (Bernard Collaery), alleging they have infringed as a young pianist. Radical Restraint: A Portrait of Justice the Victorian Supreme Court. The s 39 of the Intelligence Services Act 2001, by communicating But the work which resonates most . rows of red and green law reports are information that relates to the performance by ASIS of with lawyers is Heimans’ portrait of the For this portrait, artist and sitter the familiar markings of the sitter’s its functions. This prosecution is proceeding in absolute Honourable Michael Kirby, painted in found each other. The up-and-coming occupation, but hidden in this work is an secrecy, so absolute that the matter is not even listed in the 1998, early in Heimans’ career. In this Heimans had heard Kirby speak at a antique clock-face, which is a Charles court’s daily record of proceedings. The events giving rise to work, Kirby shares the stage with six portraiture prize opening in 1996 and family heirloom. Finding it is an additional the prosecution are believed to be the following, and all are other judges dressed in the fur-trimmed, was impressed. Kirby, meanwhile, had reward, which close scrutiny of this on the public record. They are covered in Kim McGrath’s crimson robes of the become acquainted with Heimans’ work superb work will forever bring. book, Crossing the Line, first published in 2017, and recently

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translated into Portuguese, and The only possible reason for this flagrant Junior Bar published in Lisbon. The facts are departure from the principle of open justice is to well known in Australia, and I have news and views news been writing of them since 2014. hide from the Australian public the full tale.... Conference 2019 Going back at least to the 1970s, to act with good faith. Australia’s and their Property. In customary there has been dispute between VERONICA HOLT AND HADI MAZLOUM use of the information so obtained, international law, States and their Australia, Portugal, Indonesia and obviously in bad faith, was a form of property are immune from the Timor as to an appropriate maritime contractual fraud which would have domestic jurisdiction of another n Friday 21 June, members of the junior boundary between Timor and entitled Timor-Leste to withdraw country. The raid and confiscation Bar congregated in the Neil McPhee Room Australia, the point of the dispute from any treaty with Australia also involved a flagrant invasion of for the 2019 Junior Bar Conference. A jam 1 being the allocation of revenues from O acting in such a way. It resulted in legal professional privilege. packed Continuing Professional Development day various oil and gas fields in the Timor Australia being able to achieve a Assume these events had ensued, where participants walked away with 6 CPD 2 3 Sea. As it happens, the majority favourable position in its negotiations happened while court action was points. The conference commenced with breakfast of these fields are closer to the with Timor-Leste, which it used to proceeding in Australia. The much with members of the Bar Council mingling with foreshore of Timor-Leste than they advantage both for itself and the larger, wealthier party decides it risks conference participants. The first session was a are to Australia’s. Australian company Woodside. losing in the proceedings. So it raids discussion between Dr Matthew Collins QC and the On 30 August 1998, the people of At some time after 2007, Witness the office of its opponent’s solicitor, Commissioner of the Victorian Legal Services Board East Timor voted 78 per cent in favour K was prompted to complain to the seizes its documents, including (VLSB), Ms Fiona McLeay. Ms McLeay reflected on the of independence. This was followed inspector-general of intelligence about a draft affidavit of the principal regulation of sexual harassment across the profession by the Indonesian military and militia the legality of the bugging operation. witness and the legal advice of the and on the VLSB’s projects around promoting and launching into a devastating campaign The inspector-general is believed to solicitor, and then takes steps to raising awareness around wellbeing. of destruction. On 20 September, a have agreed that Witness K’s evidence prevent that witness getting to court. Following on from this session, Phillip Corbett QC, United Nations peacekeeping force could be disclosed in any related legal It would be difficult to imagine a Roxanne Burd and psychologist Bri Hayllar, led a left for East Timor to quell the violence proceedings. In 2013, the Timorese more serious contempt of court, and presentation and discussion on resilience, providing then occurring. East Timor was now Government briefed Bernard Collaery those who conspired to orchestrate insightful, practical tips on how to protect wellbeing an independent nation. Australian to represent its interests in relation to those actions would be gaoled for in professional and personal contexts. This session aid was therefore given to enable the the Sunrise dispute. In that year Timor- their contempt. When the matter was followed by morning tea. new nation to set up governmental Leste took its case to the Permanent came before the International Court In the next seminar Dr Suzanne McNicol QC and other facilities. Talks continued Court of Arbitration in The Hague, of Justice, the opinions of the 17 and Dr Ian Freckleton QC spoke about professional from time to time between Australia declaring that it wished to withdraw judges and their shock and disgust at legal privilege; specifically, the difference between and Timor-Leste on the question of from existing treaty commitments with Australia’s actions are immediately common law and Evidence Act privilege and how the relevant maritime boundary. At 4 Australia, and citing the surveillance evident from their judgments. to avoid waiving privilege. Juliet Forsyth SC then one point, AusAID sent construction activity as evidence of Australia’s bad Late last year the attorney-general presented on technology at the Bar, identifying useful workers to assist with construction faith in the conduct of negotiations gave his consent to the prosecution apps for barristers and demonstrating how e-briefs of the Palácio do Governo in Dili, leading to the treaty. It intended to of Witness K and Bernard Collaery. can be used to maximise a barrister’s efficiency. the building in which the Timorese call Witness K to support its argument There is no justification whatever This was followed by a networking lunch where prime minister and cabinet held their in court. for the prosecution to be proceeding several silks attended to meet conference participants. meetings. ASIS operatives, posing Australia’s immediate response in total secrecy. The facts of ASIS The next session was an evidence master class where as construction workers, placed was to cancel Witness K’s passport. bugging, and ASIO raiding and participants split into different seminars based on their surveillance devices in meeting rooms, ASIO then raided Witness K’s and confiscating are already well practice areas. Barristers Steward Bayles, Rosalind which allowed ASIS to listen in to Collaery’s homes and Collaery’s known and matters of wide public Avis and Zubin Menon ran the criminal law evidence Timor-Leste’s cabinet discussions, office. It seized large quantities of discussion. The only possible reason seminar. Barristers Jennifer Batrouney QC, Kateena which included cabinet’s deliberations documents from Collaery’s office, for this flagrant departure from the O’Gorman and Gareth Redenbach ran the commercial as to Timor’s negotiating position both including a draft of Witness K’s principle of open justice is to hide law evidence seminar and Dr Richard Ingleby ran the 5 as to the boundary and the future affidavit and Collaery’s legal advice from the Australian public the full family law evidence seminar. These sessions were division of oil and gas revenues. as to Timor-Leste’s entitlements and tale of mendacity, duplicity, fraud and followed by afternoon tea. 1. Chistopher Lum, Nick 6 The allegation was, then, that the Elias, Emma Poole, Daphne its strategy in the court. criminal misbehaviour with which Róisín Annesley QC then ran a session on Australian Government obtained Foong 2. Nawaar Hassan The actions of ASIS in bugging the Australian Government and its common ethical dilemmas and shared some 3. Kylie Weston-Scheuber, an enormous and hugely unfair Julia Lucas 4. Daniel Briggs, Timor-Leste’s Cabinet rooms was an intelligence agencies have treated cautionary tales. The session concluded with some advantage in the negotiations which Haroon Hassan, Jonathan act of criminal trespass, its use of the our near neighbour Timor-Leste. pointers on how these issues can be appropriately Wilkinson, Evelyn Tadros followed. Anyone who has ever been 5. Daniel Nguyen, Judy Ma, eavesdropped information a fraud on It would also be hard to think of a managed. The day finished with a short but involved in commercial negotiations Goran Nikolovski 6. Victoria the Timorese. To raid the offices and stronger case for the public interest sweet discussion by legalsuper, with some tips Blidman, Jonathan Wilkison, will need no persuasion as to the Meg O’Sullivan home of the Timor-Leste’s solicitor demanding publication of the events for barristers on managing their superannuation. advantage that comes from knowing was a breach of the UN Convention for which Witness K and Bernard Participants met for a last hurrah in the Essoign. the other side’s negotiating position. on Jurisdictional Immunities of States Collaery are now being prosecuted. An event not to be missed in 2020! Negotiating parties are expected

20 VBN VBN 21 around town Victims of crime news and views news in the courtroom: guide for judicial officers launched

ANNETTE CHARAK

udicial officers in Victoria now have access to Australia’s first guide designed specifically to help them identify and respond to the needs and interests of victims of crime. Developed by the Judicial College of Victoria, the guide is informed by therapeutic jurisprudence and a trauma-informed approach. Above: Judge David Sexton; John Cain, Solicitor for Public Prosecutions; Fiona McCormack, J Victims of Crime Commissioner; Justice John Champion; Lucy, the OPP’s support dog It details what judicial officers and court staff can do to limit the potential for the court experience to dynamics of family violence and the acute emotions re-traumatise a victim of crime, whilst still meeting of family members where a crime has resulted in a loss the significant legal, institutional and professional of life. demands of an adversarial system. In the context of sexual offences, where there is most The official launch of the guide, held at the College likely to be a dispute about whether a person is a victim on 1 August 2019, was attended by representatives of crime, guidance is given about suitable terminology, Launch of the Good Conduct Guide of the victims of crime consultative committee, acknowledging that the very status of ‘victim’ may be victim support agencies, the Criminal Bar, the Office in dispute. of Public Prosecution and attendees from across the “I congratulate the Judicial College of Victoria on the (second edition!) Victorian judiciary. production of such an excellent resource for judicial It goes without saying that the challenges the guide officers,” said Fiona McCormack, Victims of Crime JESSE RUDD is intended to meet are considerable. In our adversarial Commissioner. It’s wonderful to see this kind of effort, criminal justice system, victims are not parties to particularly in the context of broader reform that is seeking are is the Victorian barrister who doesn’t have access proceedings. They have traditionally had no formal role to improve victim experience of the current justice system Unlike the first edition the second edition to a well thumbed copy of the Good Conduct Guide, beyond acting as prosecution witnesses when required. and reducing the potential for re-traumatisation.” authored by Róisín Annesley QC. Concise and practically has a wider audience than Victoria by virtue Engagement with the criminal justice system can have Justice John Champion of the Supreme Court, who R focused, the book has long stood as the go-to manual for of its treatment of the Uniform Law a profound effect on their wellbeing. officially launched the guide, noted that “the guide navigating the ethical issues facing practising barristers since Understandably, the process has often been reported provides an excellent exploration of the key challenges its publication in 2006. Uniform Rules of Conduct, to remind barristers of their duties as traumatic for victims—some describe the process as for the legal profession in responding to the needs and However, with the introduction in 2015 of the Legal to the court and clients, and to provide practical guidance in more distressing than the crime itself. Thankfully, there interests of victims. It clearly sets out a trauma-informed Profession Uniform Law in Victoria and New South Wales, matters of professional ethics and etiquette. Unlike the first have also been instances in which victims have felt safe approach for prosecution, court staff and judicial officers.” it is fair to say the regulatory landscape for barristers has edition, the second edition has a wider audience than Victoria and engaged, thus enabling post-traumatic growth. At the launch, Justice Champion chaired a panel changed dramatically. Fortunately for all of us, Róisín has by virtue of its treatment of the Uniform Law. Róisín has The 40-page guide is the distillation of an enormous comprising Fiona McCormack, John Cain, the Solicitor been hard at work in the intervening period updating the endeavoured to retain the thinking behind the former Victorian amount of data collected and refined over two years. for Public Prosecutions, and Judge David Sexton of the Good Conduct Guide. The second edition was officially launched Rules where relevant, while recognising that the Uniform Rules It recognises the diverse needs and interests of victims County Court, previously a criminal defence counsel. at a ceremony in the Richard Griffith Library on 3 June 2019, are broader. of crime and addresses a wide range of matters that The panel discussion focused on one chapter of the guide: where attendees were treated to an engaging speech by the Finally, Róisín pointed out that the publication of the revised may be relevant for judicial officers. These include the key challenges for all parties involved where victims eponymous author. Good Conduct Guide has not been a solo effort. She thanked the victims’ cultural and linguistic differences, religious are appearing as witnesses. Róisín spoke of the diverse ethical issues that have come to executive and administrative staff of the Bar for their assistance beliefs and practices, and disabilities. The guide also The guide sagely recognises that victim participation her attention as a long standing member of the Bar’s Ethics and funding (a copy of the guide has been provided to all Bar tackles the particular sensibilities of Aboriginal and in an adversarial system is a developing area and that no Committee, expressing hope that her work has assisted in the members free of charge), her colleagues for assistance in Torres Strait Islander victims and LGBTI victims single approach will cater to all. resolution of such issues. She explained that the second edition editing, her family, the Ethics Committee, and all members and the vulnerabilities of children and young people. The guide is available online at https://www. has the same aim as the first, namely, to give context to the of the Bar for their input and support over the years. It seeks to help judicial officers understand the judicialcollege.vic.edu.au/node/1318.

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around town around The International Commission of Jurists, 2019 Victoria dinner 1

5 2 CAMPBELL THOMSON 4

asmanian sparkling wine and a string quartet greeted guests at the annual fundraising dinner for the International TCommission of Jurists, Victoria at the RACV Club. The dinner sold out. Judges, lawyers, law students and legal academics hobnobbed en masse before taking their seats. ICJV Chair, Guy Gilbert SC, summarised the year: the community opening of the legal year in Waldron Hall, the international criminal law moot for law students in the Federal Court, hosting Collin Andrew as the ICJV Victorian Bar international fellow from Malaysia, submissions to the in the Minogue case, submissions on proposed changes to Victorian contempt laws, and a seminar exploring the Victorian legal community response to the Medivac crisis. The dinner’s theme was the 40th anniversary of the UN Convention on the Elimination of Discrimination against Women. Ian Henderson, former ABC news reader, led a panel discussion with Michele O’Neil, ACTU president, Felicity Broughton, The dinner’s theme was the 40th anniversary of the UN Convention on the deputy chief magistrate and Fiona McLeod SC, International Bar Elimination of Discrimination against Women. Association diversity council member, on what had happened in relation to the rights of women since 1979. Listeners enjoyed starters of goat cheese tart or scallops and main courses of blue-eye cod or lamb cutlets. ICJV president, 7 Justice Bromberg, then interviewed Collin Andrew, who is counsel for UNHCR in Kuala Lumpur. Last year he won the release from detention of seven Rohingya children in a habeas corpus application in the High Court, which found their detention breached Article 22 of the UN Convention on the Rights of the Child. Collin hoped his time with the readers’ course, with judges in the Federal and County Courts and with barristers in different areas of law will benefit him on his return to Kuala Lumpur. Last year’s ICJV Bar reader, Ranitha Gnanarajah, spoke by video from Sri Lanka about her human rights law work there, which includes briefing forensic pathologists to do DNA testing of remains in a mass grave near an army camp—a legacy of the civil war. Tragically, she hopes testing will discover her father who disappeared. Artworks, dinner for four at Saxe restaurant, a suit/shirt/tie/ 1. Robert Stary, Justice Melinda Richards, James Dowsley and Georgina Connelly. 2. Julie pocket square package from TM Lewin, cases of wine and Condon SC, John Kelly SC and Ashlee Cannon. 3. Justice Mordecai Bromberg, Felicity Broughton, Michele O’Neil and Fiona McLeod SC. 4. Paul Smallwood, Daniel Gurvich SC many other items sold by silent auction. The dinner was an and Campbell Thomson. 5. Felicity Broughton, Michele O’Neil, Fiona McLeod SC and Ian entertaining success. Funds raised will sponsor the next ICJV Henderson in the panel discussion. 6. Guy Gilbert SC 7. Anthony Schultz, Guy Gilbert SC, Isabelle Skaburskis, Collin Andrew (ICJV Victorian Bar Fellow) and Sarah Porritt. Victorian Bar fellow.

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here is something about the football matches between The Bar players were introduced to Daniel Star shone, taking the ball about 45 metres out the Barristers and Solicitors that brings out good weather. their coach, Phil Egan, former indigenous and running directly to goal. The words of his coach were Barristers Although everyone was kitted out for a game of football, and 100-game champion at Richmond. around town around T the scene at the Sir Doug Nicholls Oval in Thornbury was more Assisting Phil Egan was Mark Eustice, still ringing in his ears: spectacular individual efforts. This suited to a day at the beach than a game of football: 25°C and a who had previously played for Essendon, prompted Dan to execute a beautiful blind turn (although v Solicitors gentle westerly breeze. Forget football boots and mouthguards, Richmond and Sydney and who, after there was no one to avoid) and belted the ball deep into the most important weapon in any footballer’s arsenal on that his life in football, had struggled with day was the 50+ sunscreen. substance abuse and mental health the forward line football match This year’s match had a new format: the teams would be issues. Mark, like some of the previous the proceeds raised by the event to an greyhound on steroids and had an engine mixed with men and women. In a heavy recruitment drive, the volunteer coaches Reclink organises indigenous sporting initiative in Alice bigger than a V8 super car). Mick Dever, Sunday, 6 October 2019 Bar managed to recruit some quality female footballing talent to coach on days like these, is among Springs. What better place to play this representing sponsor Dever’s List, slotted including Iona Miller, Jess Kay and Shenae de Carr, as well as the very people who benefit from the match than on the ground that bears in on the other back pocket. – Sir Doug Nicholls Oval current County Court associate and Collingwood VFL player, wonderful work that Reclink does. The the name of the first indigenous person The halfback line, the engine room Lachie Howe (all 200cms and 100kgs of him). Lachie easily venue was chosen especially for this to be knighted, the first to be appointed taking the Bar from defence into attack, DUGALD MCWILLIAMS qualified for the Bar team, having just passed the Bar exam and event. Reclink, the principal organiser of to vice-regal office and the first to be was Dugald McWilliams with Chris intending to do the readers’ course in March 2020. the match, had committed to donating selected to play for Victoria in football: Edwards adding some height, together Sir Doug Nicholls. with Nick Goodenough. Ben Maunder, Dugald McWilliams The most telling battle was lost off In the forward line we boasted and his son, the ground before the game had even immense talent including Pat Gordon and Max McWilliams started. Whilst the Bar’s captain, Dugald Hayden Rattray. We also had a couple McWilliams, had gone to great lengths of rings-in. Marty Kennan had just got to secure the services of Lachie Howe, off a plane from New York and couldn’t because the Solicitors were short, the wait to get to the ground to help the Bar Bar team management (excluding in another quest for glory. Ben Maunder McWilliams!) took it upon themselves was recruited under the liberally applied to offer Howe’s services to the Solicitors. ‘family member’ rule and qualified This would have to rank as one of the because our captain is his uncle. Most greatest footballing travesties since importantly we had the first father/son Ron Barassi moved from Melbourne to combination on the field since Mordy Carlton in 1965. Bromberg played with his son back in However the Bar was not deterred. 2006 at the Western Oval when we were What we lacked in height and talent was coached by Crackers Keenan. Daniel amply catered for by our determination. Star QC was immensely proud to be Phil Egan primed the team with some taking the field with his 15-year-old son, choice pre-game inspirational words. Asher. We also had plenty of run off the He wasn’t interested in teamwork. He bench with that evergreen footballer, Pat wasn’t interested in the one-percenters. O’Shannessy, warming the pine to give us The path to victory was through glorious a well-needed injection of run throughout individual efforts, through blind turns, the match. players selling candy to their opponents, The whistle blowers were led by Mark banana and checkside kicks, Dusty Gibson SC and did a fantastic job all day. Martin fend offs and, the pièce de Another of our organisers, Pat résistance: drop kicks. That was all the O’Shannessy, gave us the obligatory Asher Star and Dan Star QC inspiration needed. safety briefing and reminded us that we We were very strategic in our on-field all had to work the following day. Despite set up. Mick McGrath was the Rock thinking that we were all still 19 years old of Gibraltar in defence. He conceded (apart from Asher Star who is only 15!), happily that he was definitely not quick it was important to maintain the spirit of off the mark but knew how to punch. the game. He was clearly born to be a fullback. After a stirring rendition of Advance Simon Fuller, one of the organisers of Australia Fair, the Solicitors won the this great day, slotted in the back pocket toss and kicked with the breeze to the to take on the resting Solicitor ruckman eastern end. (not that the resting ruckman needed The battle from the first bounce was any rest because he was fitter than a frenetic. The all-female midfield from

26 VBN VBN 27 around town around town around The second half did not disappoint. Whilst the Solicitors continued to dominate in the midfield, the Bar team remained competitive. Beautiful hard inside work from Pat Gordon, Marty Kennan and Asher Star meant that we were often the first to clear the ball out of the stoppages. Mick McGrath was a tower of strength at fullback, belting the ball back in to play with a torpedo at most kick outs. Chris Edwards pleased the coaches no end when he took a mark directly in front of goal. True to the directions of his coaches, he played on and kicked a beautiful checkside goal. To complete the picture, McWilliams took a mark in the middle of the field, played on and ran down the left wing and (somewhat miraculously) managed to pull off a left-footed drop kick which actually hit its target. The product was another goal for the Bar and McWilliams retreated to the BACK ROW: Harrison Georgiou; John Morgan; Rob O’Neill; Alex Besson; James Teirney; Stephen Sharpley QC; Stephen Parmenter QC; halfback line to a barrage of cheers and Alex Schwarcz; Tom Evans. FRONT ROW: Mark Batrouney; Nick Tweedie SC; ; Judge Philip Burchardt; Carole Shanks. high-fives from the coaching staff as he passed the bench. The final whistle sounded and the Bar Barristers take home the silverware at last! ended up on the wrong side of the ledger but nonetheless had a wonderful time. JENNIFER BATROUNEY The best players were announced in the club rooms after the match: Lachie Howe for the solicitors (he’ll be playing for the he annual hockey match between Bar and Bench and solid performances were put in by James Tierney and Nick Bar next year!) and Marty Kennan for the the LIV was held in stormy conditions in Hawthorn Tweedie SC. Barristers. Ton Thursday 17 October. Rob O’Neill captained an As the game wore on, the not-necessarily-fit barros were Days such as this are not possible enthusiastic Bar side against a young and confident LIV side. relieved that two young chaps (ring-ins you say?) had their both teams battled it out hard and the individual efforts. This prompted Dan to without a committed organising Judge Burchardt, a stalwart of the team, fronted the goals back. Mark Batrouney and Alex Schwarcz tore up the field Solicitors got the first clearance. The execute a beautiful blind turn (although committee. Thank you very much to for the first part of the game and held the Law Institute at bay with the ease of those that are just a bit too young to actually wind played havoc throughout the day there was no one to avoid) and belt the Hayden Legro from Legro Lawyers, all the under heavy pressure, conceding one goal but saving numerous be at the Bar. Not one, but two Batrouneys were on the field, and in the first quarter the Solicitors put ball deep into the forward line. Reclink staff and our three committed other opportunities, until he was rescued by late-arriving with Mark on the opposite side to his brother James—now on 2 goals 5. Some inaccurate kicking The Solicitors got away from us a little organisers from the Bar, Pat O’Shannessy, man-of-the-match Stephen Sharpley QC—a most formidable a legitimate solicitor after many years playing as a ring-in from the Solicitors kept the Bar well in the in the second quarter, even though they Simon Fuller and Matt Fisher. monster goalie. barrister. Proud Mum and Australian Bar President Jennifer match, with the Bar scoring 1.1 in the first. were kicking into the wind. This was mostly Thank you also to the sponsors, John Morgan must have been causing trouble Batrouney QC watched from the sidelines. There were some fantastic individual attributable to Lachie Howe, one of the Adviceline Lawyers, Zaparas Lawyers, because someone tried to take him out (or In the end, the sheer grit and determination of the Bar efforts. Simon Fuller’s beautiful Dusty principal architects in our ultimate demise. Maurice Blackburn Lawyers, Green’s did he fall?), leaving him sporting a bloodied prevailed and we took away the cup after a narrow 2-1 fend off sent one of the Solicitors’ players At half time, the direction from the List, Dever’s List and Lennon’s List. knee and rueful smile. The lone female, Carole victory. flying. Marty Kennan got a tonne of the coaching staff was to focus on our Needless to say we are looking at Shanks from Green’s list, was a terrier with Wary not to kill the collective golden goose, the ball and kept us in the match. individual efforts. Phil was happy to greater commitment next year from the ball and invaluable in the mid field. Bar were careful to maintain good humour with In the second quarter we were kicking have seen a number of Dusty fend offs the remaining clerks. List A, Foley’s, List The Bar’s goals were scored by the solicitors and enjoyed a few bevvies and a with the wind. Daniel Star shone, taking and gave Dan Star a huge wrap for his G, Holmes List, Meldrum & Hyland, Stephen Parmenter QC and guest sausage after the game. the ball about 45 metres out and running blind turn, but he still wanted to see Howells’ List, Svenson Barristers, player Harrison Georgiou. Denton Thanks to the faithful umpires, Tony and directly to goal. The words of his coach some banana kicks and was yet to see Patterson’s List, and Young’s List, played with the freedom and pace that Mark, and our loyal support crew, Trish Elliott were still ringing in his ears: spectacular a drop kick. you are all on notice! older members of the team lacked, while and Richard Brear.

28 VBN VBN 29 James and Mark Batrouney news and views news and views news PETER HEEREY News A Rogue Prorogue n 28 August 2019, the Queen ordered that the UK Parliament be prorogued from a date between 9 and 12 September until 14 October 2019. &Views On 24 September, an 11-member Bench of the UK Supreme Court held that the prorogation was “null and void and of no effect … [it was no more than] a blank piece of paper”: OR (Miller) v The Prime Minister [2019] UKSC 41. To prorogue In so holding, the Supreme Court reversed a unanimous decision of the Divisional Court constituted by the Lord Chief Justice of England and Wales, the Master of the Rolls and the or not to President of the Queen’s Bench Division: R (Miller) v The Prime Minister [2019] EWHC 2381. The equivalent Scottish intermediate prorogue court had come to the opposite conclusion: [2019] CSIH 49. Prorogation Prorogation is made by the Sovereign, formally on the advice BY PETER HEEREY AND DAVID FELDMAN of the Privy Council but in reality on the advice of the prime minister. It ends a session of Parliament and with it any arlier this year, Australians uncompleted legislation. with a legal bent watched in fascination as the Queen The length of prorogation prorogued the United There is no statutory provision governing the length of Kingdom Parliament upon prorogation. Currently, it has usually been under ten days, but in the advice of Prime Minister the past much longer; on five occasions since 1980, there have Boris Johnson, only for the UK Supreme been instances of prorogation for more than ten days, the longest E th Court to determine that the advice and being 21 days. Earlier in the 20 century, there were still longer length of prorogation was unlawful. Was periods: 17 August to 5 November 1901, 18 September to 27 the Supreme Court’s decision correct? October 1914 and a further prorogation to 11 November, 1 August In the spirit of ‘reasonable minds differ’, to 28 October 1930. two legal luminaries, the Hon Peter Heerey In the recent case, the proposed prorogation was on its face AM QC and Professor David Feldman, QC for a period of up to 34 days but, as the Divisional Court noted, (Hon), FBA Emeritus Rouse Ball Professor of given the expected party conferences recess of approximately English Law and Emeritus Fellow of Downing three weeks, the sitting days lost would be far fewer: one to three College Cambridge University, reach opposite in the week commencing 9 September and four during the week conclusions on this important question. commencing 7 October. A submission to the prime minister by Nikki da Costa, the director of legislative affairs at 10 Downing Street, included the calculations just mentioned. Prime Minister Johnson’s notes on the submission included the following (upper case and underlining in the original): As Nikki notes, it is OVER THE CONFERENCE SEASON so that the sitting days lost are actually few.

Judicial review of decisions made pursuant to the Royal Prerogative Such decisions are not necessarily immune from judicial review. The question is not the source but the subject matter. The

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essential question is not whether did not find it necessary to consider Parliament by evading the statutory unlimited discretion was exacerbated Courts regularly reshape or reinterpret constitutions there is a political hue, as is often that ground because it raised “some prohibition in article 9 of the Bill by the prime minister’s refusal to to cater for new exigencies. Continuity in the principles the case concerning individuals, different questions.” However, the court of Rights 1689, which provides that affirm on oath that the reason offered news and views news but whether there is an absence had opened the doors to scrutiny of “Proceedings in Parliament ought not for the length of the prorogation—the justifies novelty in the use to which they are put. of judicial or legal standards by the reasons actually given. Perhaps it to be impeached or questioned in any need to prepare a Queen’s speech— This is a legitimate exercise of the judicial role, which to assess the legality of the seemed to the members of the court a Court or Place out of Parliament.” was true. This particular claim gave executive’s decision or action. potentially embarrassing step too far. The Supreme Court’s contention rise to a risk of arbitrary government, a job which judges have been doing for hundreds Nevertheless, the Supreme Court did that prorogation is not a “proceeding free of parliamentary scrutiny, of years in many countries. The Divisional Court’s not hesitate to plunge into the factual in Parliament” is highly semantic. because a prime minister who wants conclusion merits as a basis for concluding there For example, it contends that the to evade ministerial responsibility to which they are put. This is a legitimate The Government argued that was justiciability. In particular, it prorogation is “not the core or Parliament could simply recommend exercise of the judicial role, a job which Article 9 of the Bill of Rights 1689 The Divisional Court concluded that relied on a kind of reverse floodgates essential business of Parliament. prorogation for an indefinite period judges have been doing for hundreds prevented the court from giving the decisions of the prime minister argument. The executive could Quite the contrary: it brings that core (subject to any requirement for annual of years in many countries. a remedy which would ‘question that Parliament should be prorogued prevent Parliament from exercising or essential business of Parliament legislation on the armed forces and This does not make it proceedings in Parlyament’, because at the time and for the duration chosen its legislative authority for as long as to an end.” Professor Finnis deals so on). It had been held as early as unproblematic. It poses questions the Commissioners’ announcement of were “inherently political in nature and the executive pleased. To the obvious effectively with this at pages 7–8 of The Case of Proclamations (1611) Co as to how one decides which prorogation in the House of Lords on there were no legal standards against answer that, inter alia, the executive his article. Rep 74 that the Crown has only those constitutional principles are 9 September was, as Professor John which to judge their legitimacy.” In would need Parliament’s approval of prerogative powers which are allowed judicially enforceable and when. Finnis has written, ‘self-evidently summary, those considerations were: supply to run government services, Conclusion it by common law, that they have limits, This will no doubt be worked out in a proceeding in Parliament’. The »T he need to prepare the the Supreme Court dismissed this as As a matter of logic and historical and that the courts are responsible for future cases. Limiting the scope of a issue for the court, however, was the government’s legislation for the a practical constraint [which offered] consistency, the decision of the ensuring that the Crown stays within power by reference to the effects of lawfulness of the prime minister’s Queen’s speech. “scant reassurance”. Trying to run a Divisional Court is the more them. No question of justiciability its purported use usefully avoided advice to prorogue Parliament and »P arliament would still have time government without legal authority convincing. The Supreme Court arose where the issue was the extent the need to deal with questions of Her Majesty in Council’s subsequent before 31 October to debate Brexit to spend money would seem to be a does not dispute what the Divisional of a prerogative power, which the justiciability in relation to the prime making of an Order. Neither of these and the government’s withdrawal problem more than “scant” (“limited, Court emphasised: the need to rule of law and separation of powers minister’s motives, and was not steps was a proceeding in Parliament. negotiations. not large”: Macquarie Dictionary). identify judicial or legal standards put squarely in the remit of courts, as novel (see, for example, R (UNISON) Professor Finnis sees an analogy » A number of days within the period As Emeritus Professor John by which this particular exercise of distinct from a question “concerning v Lord Chancellor [2017] UKSC 51, between prorogation and giving royal of prorogation would ordinarily be Finnis AC QC points out in The the prerogative could be scrutinised the lawfulness of the exercise of a SC). Nevertheless, it requires courts assent to Bills, which is regarded as in recess for party conferences. Unconstitionality of the Supreme by courts. The Supreme Court’s only prerogative power within its lawful to predict what the political effects a proceeding in Parliament, despite »T he current parliamentary session Court’s Prorogation Judgment (www. attempt to meet that criterion is the limits”. The distinction between want of actions will be, and also, when taking place elsewhere. But legislation had been the longest for the policyexchange.org.uk and Quadrant assertion that the prorogation was for of power and misuse of power thus setting the bounds of a power, to necessarily involves the ‘Queen in previous 40 years. November 2019), the judgment too long—a ground which dissolves retains significance in English law, decide whether a purported exercise Parliament’, whereas prorogation » Ms da Costa’s advice was that undercuts the genuine sovereignty of on factual analysis. notwithstanding claims that it was laid of it is justifiable. Parliament has stops Parliament’s non-legislative it was increasingly difficult to to rest by Anisminic in 1968. to be prorogued periodically to end functions which occur without royal fill parliamentary time with While the outcome was novel, and start sessions, and short periods participation. The analogy between appropriate work. If new bills were DAVID FELDMAN the court reasoned from settled do not jeopardise constitutional legislating and prorogation is tenuous. introduced, either the existing constitutional principles: ministerial principles. The proposed prorogation, The court was correct to hold that session would have to continue for A Legitimate Exercise of the responsibility and parliamentary however, was unusually long by Article 9 did not deprive the court of another four to six months or they sovereignty. Unusually, however, modern standards and much longer jurisdiction over decisions and acts would be introduced knowing they Judicial Role the court treated the principles as than was necessary to prepare for relating to prorogation. would fail at the end of the session. he UK Supreme Court’s effect of frustrating or preventing, legally enforceable limits on the a new session. No other reason or The UK’s constitution depends on Those considerations were spelt out decision in R (Miller) without reasonable justification, the prorogation power. Ministerial justification had been offered, and politicians exercising constitutional in the da Costa submission. It does not v The Prime Minister, [Parliament’s] ability to carry out its responsibility to Parliament is often there was no evidence that the prime functions in good faith. When faith in appear to have been suggested in the Cherry and Others v constitutional functions… In such a used to justify not interfering in minister had discharged what the that is undermined, both Parliament litigation that they were inaccurate or Advocate General for situation, the court will intervene if political decisions, but is now a court held was a “constitutional and the courts are prompted to not genuinely held assessments. Scotland [2019] UKSC 41 the effect is sufficiently serious to fundamental principle capable of responsibility…to have regard to take unusual steps to ensure that concerned the legality of the prime justify such an exceptional course.” being enforced by courts. Implications all relevant interests, including the executive may be effectively The Supreme Court’s minister’s advice to the Queen. The The Order in Council providing that of parliamentary sovereignty now the interests of Parliament”. The scrutinised at a time of crisis. Tadvice was to order the prorogation Parliament was to be prorogued for decision include a court’s duty to protect exceptional circumstances made it *Professor Feldman spoke with of Parliament for a period of more that period was similarly unlawful. One of the arguments by the Parliament’s ability to legislate against easy for the court to decide that the Justice Debbie Mortimer on the than five weeks in the run-up to the The Government’s case was that the appellants in the Supreme Court a prime minister if prorogation would prime minister had acted outside the Limitations of Judicial Review on UK’s withdrawal from the European prerogative power to prorogue had relied on what was said to be an threaten fundamental constitutional scope of the prerogative, but future Tuesday 8 October 2019 at the Federal Union, then set for 31 October 2019. no legal limits, so there was no legal improper motive of the prime principles. Courts regularly reshape cases might not be as easy; having Court of Australia as a guest of The court held that that advice was standard by which an exercise of the minister in preserving the option of or reinterpret constitutions to cater to predict the effect of a prorogation ’s ‘Judges in outside the scope of the prorogation power could be reviewed; it was non- a no deal Brexit without obstruction for new exigencies. Continuity in the may make it hard to say whether it is Conversation Series’. The conversation prerogative because it “has the justiciable. Courts’ dislike of claims to by Parliament. But the court said it principles justifies novelty in the use to lawful or not. quickly turned to the Miller decision.

32 VBN VBN 33 news and views Interview with the news and views news Honourable Chief Justice Alstergren

CARMELLA BEN-SIMON AND ANNETTE CHARAK

hief Justice Alstergren’s large corner chambers overlook Flagstaff Gardens. Closed glass doors reveal a balcony from which to enjoy the view, although his Honour says that he has never actually stepped onto the balcony, as he is too busy traversing the country trying to implement change to reduce the backlog of cases. His Honour sits at the helm of two large courts, having been appointed CChief Judge of the Federal Circuit Court (FCC) in October 2017 and Chief Justice of the Family Court on 10 December 2018. Both courts have been plagued by delays. In December, it will be one year since his Honour became the head of both courts. VBN caught up with him to find out what he has achieved as Chief Justice in his first 12 months and the ways in which he expects to reshape the two courts. Before his appointment, his Honour had been a member of the Victorian Bar since 1991 and Queen’s Counsel since 2012. During this time, he served as the last “chairman” of the Bar Council and as president of the Australian Bar Association. VBN: In the early 2000s, you were captain of the Australian bobsledding team and later Olympic coach of the women’s team. Do you bring any of that experience to your new role? CJ: One thing about bobsledding is that you start up a hill on a 1.5-kilometre track and you go down at 120km/hour with no brakes. I’ve always thought momentum is a great thing and I’ve brought that to my new role. The trick is to get others to come with you. As Paul Keating once said, “you have to be committed to achieve change.” VBN: It’s a big job merging these two roles as head of two very large courts. What are the challenges? CJ: The biggest challenge facing both courts is delay and backlogs that are unacceptable. In real terms, Australian families are spending far too much time in our court systems. This often leads to greater stress on families, especially children, as we are unable to hear important cases as quickly as we should. Also, in some cases, people are spending disproportionate amounts of money on fees compared to the assets they are fighting over. To combat these problems, we are required to look at the systems we have in place with our existing resources. There are two different entities. That means two sets of rules, two sets of forms, and two sets of case management principles. The cases are managed in entirely different ways. There are even two different ways in which the courts identify risk. However, as entities, the courts are in fact interdependent. Each relies upon the other; the FCC carries a great deal of the workload, allowing the Family Court to concentrate on the most complex cases. It is obvious that the rules, forms and case management principles need to be harmonised.

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We will be asking the government for more two days. The ones that we did not the Court during those callovers was registrars for the family law caseload and more settle have been listed for trial as amazing and demonstrates why it is early as possible. This has allowed one of the leading Bars in the world. news and views news judges particularly for migration. us to deal with parenting cases, From the most junior to the most especially ones in which children are senior, Victorian Bar members were The best example of that is the eight months from starting, we will at risk, much more quickly. prepared to roll up their sleeves and Family Court, which began in 1975, have the first draft and hopefully, We’re able to look at how the work through cases that had been in and the FCC, which started hearing early in the new year, we can put it resources in both courts complement the system for years. Almost 70 per cases in 2000. Before 2000, the Family to the judges for their input. We will each other, and to operate as a cent of those cases settled. Having Court was doing 100 per cent of the then have meetings in every registry proper national court. We can mediators at the court and the family law work. By about 2005, the around Australia and invite the deploy resources, either by video profession prepared to co-operate two courts were doing about 50 per profession in for proper consultation. link or by moving judges, in a meant that we could say to litigants, cent each. That quickly grew to the All going well, by May next year, very short time period. “look, you’re here anyway, you’ve paid FCC performing 88 per cent of the we should have a new set of rules. all this money, you’ve got someone work. Regardless of the differences The level of collaboration and co- VBN: So, you don’t have to reach who’s independent, they’ll give you a in complexity, the idea of having operation already demonstrated by an agreement with another head of hand.” This meant that litigants had separate rules and separate forms the judges on the working group has jurisdiction? a dignified way out of the system. for two courts that do the same kind been excellent. CJ: I make decisions in consultation No one was forcing them to mediate. of work is extraordinary. It leads The second thing is we’re looking with the leadership teams in both At the callovers, I’ve had litigants in to confusion, a waste of precious at how best to manage the volume of courts. I’ve developed a corporate person standing up in the body of the resources and duplication. So, it cases coming in to both courts. structure where I’ve got a leadership court and saying to me, “Thank you, makes perfect sense to try and The dockets in the FCC are getting team of six instead of only one judge this is the most positive thing I’ve solve that issue with a single set of far too big despite our best efforts. under me. In the FCC, I have judges seen in three years.” rules, forms and case management Over 17,000 pending family law in charge of various areas around We, and here I include myself, principles. cases require judicial determination the country. I’ve got a Deputy Chief are all very blessed to have the I’ve said from the outset that what (virtually a year’s worth of work). Justice of the Family Court as well opportunity to help people in the is required, objectively, is the best In migration, the filings over the as the heads of case management in most dire circumstances they face. set of rules—the most sensible, most past four years have grown by each registry. I rely on the leadership Often people find themselves efficient rules—for the litigants, approximately 60 per cent. The group to advise me and make unrepresented, whether it’s because professionals, and of course the backlog has already grown to over recommendations about how we they can’t get legal aid, or they courts. To achieve this, a working 10,000 pending migration cases and it can implement changes between haven’t got the funds, or they have group was established. It was not looks like we will have more pending the courts. used all their available funds. By appropriate that either the Deputy migration work in two years than The science shows that the longer litigation goes VBN: How does harmonisation of the providing pro bono assistance we Chief Justice or I dominate the family law cases. rules work when you’ve got migration have the great gift of being able to on the more detrimental it is to children and the working group. I wanted a totally We will be asking the government and other areas? provide them with an opportunity to independent Chair, someone who had for more registrars for the family mental health of people involved. People shouldn’t CJ: At this stage, we are only going get out of the system, which is good no bias from sitting on either court law caseload, and more judges, to harmonise the family law rules. for everybody. necessarily be in this forum. hearing family law cases. The Hon Dr particularly for migration. This will The FCC Rules in relation to general Litigation, particularly in the Chris Jessup QC, who is a true leader be based on a proper business case. and litigants. They should be settling things. One, this may not be the federal law are already harmonised family law courts, is so devastating of the Bar and of the Industrial Bar You can’t case manage a migration in six months. forum you need, there are other with the Federal Court Rules. emotionally to people, whether it’s and was responsible for development case the same way as a family law So, we want to bring in a new set of forums or indeed you can settle a property case or a parenting case of the Federal Court Rules, thankfully matter. ADR is just not going to work VBN: In Brisbane and Melbourne, during case management principles, which now, and once you start in the system, or both. The science shows that the accepted the appointment. To provide in migration cases. Migration makes the blitz callover, barristers mediated require parties to come to the first you can get out of it. Two, so often longer litigation goes on, the more the family law expertise, eight serving a much bigger demand on judge time. pro bono. Do you have a view about the return explaining what their case people forget about what is in the detrimental it is to children and the judges were asked to join the group, I’m not suggesting for a moment that role of barristers doing pro bono work? is, identifying what the issues are children’s best interests, not in the mental health of people involved. three from each court and two that judges are not also needed in family CJ: I do. In Melbourne we between them, and identifying what parent’s best interests. People shouldn’t necessarily be have been on both courts. We also law, but in migration we do have to commenced callovers of cases in discovery or disclosure is needed. in this forum. Separating couples VBN: You said that the blitz callovers retained two excellent barristers from have more judges urgently. the FCC almost immediately after I In a property case, they will be sent shouldn’t necessarily have to go to in family law matters were very the Victorian Bar, Emma Poole and What can we do with the existing took over. We had lists of barristers to alternative dispute resolution a court, apart for a formal decree. successful. Is that something we’re Chris Lum, to provide the drafting resources? We’ve done a lot of willing to conduct mediations and within a couple of months, before Where people mediate in good going to see on a regular basis? resources. tweaking with family law work, arbitrations (in property cases) things have become too static or too faith early, they should and often CJ: Absolutely. For example, we have To put this challenging project into getting the older cases out of dockets with their fees and availability. Each entrenched. do settle, rather than waiting two, far too many cases over two years some perspective, the courts have not and having blitz callovers, and that’s had also agreed to assist the court We’re going to introduce an three or four years. By that point old in the system. Every case in that been able to come up with a unified working dramatically well. We called on a pro bono basis if needed. The audio-visual presentation for they have paid disproportionate category is currently being reviewed. set of rules in 19 years. But, by the over 250 cases a few weeks ago in goodwill that the members of the litigants to watch in the court. We’ll amounts of money in costs, having Unless it is a highly complex end of November this year, in only Brisbane; we settled half on the first Victorian Bar showed to litigants and use actors and we’ll emphasise two devastating effects upon children parenting case that needs to remain

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VBN: There has been criticism from I’d also refute the allegation that somehow we’re We brought all the files down here regular contact. We have quarterly jurisdictions. I also probably bring a some in the media that the FCC judges so we could summarise them and meetings via Skype and we’re sharing bit of an energy to the whole thing as putting children’s lives at risk. In fact we’re moving do not have the training and experience prepare, then they went back up. information about managing the well as creating a lot of momentum. news and views news cases on more quickly where there is identification to hear complex family law matters. That was all paper files, it wasn’t court and about innovations and I’m looking at realistic ways that Do you agree? of risk. electronic. The orders are placed on decisions. we can try and improve the system Absolutely not. It is both misleading the court record, but we must get without being a bull in a china in the system for safety reasons, before, and it hasn’t worked—we and inappropriate for a small VBN: Do you do anything to support the someone to print them out and put shop. I’m bringing in an energy of every case will be called over by June look at how quickly we can list it minority within the profession to mental health of judges today? them physically on the file. We’re reform where I can look at things 2020. On an ongoing basis, we will be for trial. But in the main, people are make these claims. The FCC has CJ: I’ve now established health working towards an electronic court from a generic point of view. For calling over cases at least twice a year taking the opportunity of saying highly capable, intelligent judges of and wellbeing committees in both system. We are testing an electronic instance, we’re bringing in real in the major registries and in smaller “no I’ve had enough of this.” A lot of great integrity and skill dealing with courts. The chairs and the committee court file in Townsville. We’re waiting data; understanding the data, registries as needed. I did it in Hobart them have spent disproportionate a variety of jurisdictions. The courts members are very good at doing to see how that goes. Anything to do getting a proper data set that we recently. I’m doing it in Canberra amounts of money. Or parenting have also introduced new intensive health checks on judges. We’ve got with computers seems to take a lot can rely upon and make relevant now in both courts. In Melbourne, cases aren’t being heard as quickly induction processes and mentoring professional relationships with longer than it should. I’m anticipating measurable outcomes, and looking we’ve settled almost 70 per cent of as they should. Or circumstances programs to ensure judges are given physician services. If we need to see that we will have an electronic court at the ramifications of what we’re cases called over. In Brisbane, almost have changed, and they want an the skill and knowledge to deal with anybody, the court will obviously filing system up and running soon, doing. People say numbers aren’t half settled, and about the same in opportunity to get out of it if they these areas. This of course includes pay. We’re very active in mentoring: but it will probably take six months to important, but they are important Adelaide. In Sydney, it was about can. They might recognise that family violence training, which is from other judges inside the courts, roll out. That means that all the new in any modern society. Any modern 38-40 per cent. maybe this isn’t the right forum for available to all judges and staff. from superior court judges and from files coming in will be electronic—but court must have very good empirical them, and they can sort out their There are judges across Australia retired judges. There are always VBN: You’ve also had a small claims not the old files. data. We also must make sure differences. Or there may be some who have learnt new areas of the people in any organisation that pilot in Brisbane. What is that about? we’ve got quality outcomes and miscommunication between them as law whilst on the Bench, whether VBN: What about video link facilities require support. CJ: That’s just starting now. We’re are not over-labouring the judges. to what’s really in issue. We haven’t it be crime, taxation, common law and technology for witnesses? We also want to make sure they looking at property claims of smaller Improvements shouldn’t come at ever said to people, and nor would or family law. They often become CJ: The problem with having are properly supported in relation asset pools and running them judges’ expense, particularly their we, “you have to settle.” If they’re leaders in these new fields and some solicitors appear by phone is how to things like reserve judgments. A differently. We have a specialist mental health. unrepresented, we make sure they’ve become appeal judges. many times the court is put on hold. judge may be overworking. Because judge and registrars assisting parties, We must make sure that we have a got the duty lawyer’s advice. We’re Family law is no different and the It’s so inefficient. It becomes an they’re such fine people, a lot of the and we try to fast track them and proper business case for reforms, to very careful to give unrepresented motivation for such comments is inconvenience for the courts. But judges take off their holidays and get the formality out of it. It’s been ensure they will lead to a desirable litigants any opportunity to get any questionable. with parties in regional areas and judgment writing time to hear more very successful. We also piloted the outcome. We have to be able to advice they can, and we give them parties where there is serious risk, cases because they’re so worried Discrete Property List, where we’ve VBN: Most cases should settle but there measure the outcomes and we have pro bono mediators if we possibly we are looking at opportunities to use about the litigants. Sometimes you got a registrar handling, at first are some that can’t, for example, a to make sure that when we go to can or a registrar at a conciliation technology. have to say to them, “no you’ve instance, all property matters. During relocation case. government and say we want more conference. And we review any We also want to use information actually got to take some time out.” the pilot phase, the registrar settled CJ: We try to get cases on quickly resources, we are able to say “here’s orders to make sure the parties technology to explain to people what So, I’ve now put a protocol in place in about 70 per cent. We have now if we know there is urgency, for a business case for it, these are the haven’t made a mistake and that processes they must go through, both courts. If they get to six months rolled out the Discrete Property example if the kids are about to go to efficiencies we’ve already put in they’re totally happy with the orders. whether it’s migration, family or and they’ve got judgments outstanding, List in Brisbane and Sydney, and a different school or they’re going to place, and this is what you can expect I’d also refute the allegation that, otherwise. Obviously, e-filing is a big we start asking for an explanation it will commence in Melbourne in relocate or Christmas is in issue or out of the resources you give us.” It’s somehow, we’re putting children’s thing and we’ll have electronic court and asking what we can do to support January 2020. whatever the factor might be. These total accountability. Part of that is lives at risk. In fact, we’re moving files. We might even look at actuarial them. After nine months, we let them callovers are allowing us to review transparency. We have to make sure VBN: What do you say to the criticism cases on more quickly where there tables to give people the opportunity know that if the judgment is not these cases in situ. Sometimes things we’re very transparent about what that there is pressure on parties to is identification of risk. And with of working out, if they can agree on delivered within a certain period, have happened that require a really we’re doing and about our results. settle? both the harmonisation of the rules what the contributions might be, we’ll take them out of court until it’s urgent hearing, and if you can solve CJ: It’s absolute nonsense. You have and with the case management what their settlement should be. finished. This is to ensure that people that particular issue, the rest of it VBN: There’s going to be another cases where nothing’s happened principles, we’re making sure that It would be an indication. It’s used don’t get themselves in a situation, falls away because people are then inquiry, do you think that’s going to for two years or a year-and-a-half, on the first piece of paper that any overseas and I think it’s a thing we particularly in a high-volume court, satisfied to be able to go on with their make any difference to your work? apart from solicitors writing letters party issues in either court, they can do to allow people to understand where they get too far behind. lives and can find an arrangement to CJ: We welcome any informed to each other. There may not even be give us information about whether what outcome they can expect and In Melbourne we’ve also got yoga do so. With anything we do, we give suggestions that will assist and any applications. In the meantime, there’s a risk and what the risk is. We what the outcome could be if they classes for judges on a Wednesday, a return date within six months, so any objective information about people’s lives are turned upside can then treat that information as could agree on some of the facts. which are very popular. the case isn’t just sitting there. The improving the system. However, down. We give them an opportunity is appropriate and apply additional profession seems to be very happy VBN: You mention overseas, do VBN: You’ve brought in ideas about regardless of legislation, regardless to come into the court. We ask them resources if we must. Even if it with it. you have any contact with heads of corporate leadership and corporate of any inquiry and regardless of to consider what’s still in dispute. happens during the litigation, we jurisdictions overseas? governance. What else do you bring politics, or what’s said by tabloid Would they like the opportunity to make sure that we put in place VBN: How are you using technology? CJ: I’ve established a very good that’s different from what your journalism, we will improve this discuss their matter today and try systems so that it is addressed CJ: We still have paper files. For relationship with the judge in charge predecessors did? system internally. We’re not going to to settle? If they’re resolute and say very quickly. The difficulty is that instance, in the Brisbane callovers, of the family law section of the CJ: I think I’ve brought an awareness wait for people to tell us things we they don’t—they’ve had mediation sometimes we’re not told about risk. we wanted to do 250 cases in a week. High Court in England and we’re in of and approach from other already know.

38 VBN VBN 39 news and views

arristers are encouraged to improve Justice Lyons: Delete the (often pejorative) adverbs the quality of their written submissions. and adjectives. But how to do this? Seminars can help. Lessons from the Bench Ken Hayne AC QC has been an advocate and However, it is rare to receive feedback proponent of Bryan Garner’s method of framing or tips from the very people we must arguments with ‘issue statements’ that take Mastering the art persuade, being those we appear before. the form of major premise and a minor premise To help guide us through the maze of what works, and what is followed by a question. Are issue statements what doesn’t, we are delighted that Chief Justice Anne of modern advocacy helpful? ‘GOOD BFerguson, Justice Melinda Richards and Justice Kevin LEGAL Lyons from the Supreme Court of Victoria have shared Chief Justice Ferguson: Framing the issue as a question the WRITING’? —improving our with readers some of their thoughts and insights. judge has to answer is helpful. If you think about it, the approach by a barrister should be: what would help me if Can you recall an occasion, when reading written I was the judge? What would I want to know? Essentially submissions, when it struck you that the writer was that comes down to the question that the judge has to written submissions particularly effective in their style or approach? answer. So framing the question and the answer in What was it that struck you? written submissions is a good approach. THE HON ANNE FERGUSON, THE HON MELINDA RICHARDS, THE HON KEVIN LYONS Chief Justice Ferguson: Good structure and clarity of Justice Richards: I find a statement of issues to be expression always make for persuasive writing. The best enormously useful, both in running the trial and in written submissions nearly always have both. writing my judgment. It is an effective way of ‘sweeping Justice Richards: I recall reading the third of three sets of the porch’ of issues that have fallen by the wayside or written submissions in a case where there were some have been agreed before trial. It is a touchstone for unfamiliar concepts and a great deal of relevant case law. relevance throughout the trial. And it helps me to write a I had read the other submissions, both of which were shorter judgment in less time. reasonable, but which had lost me in lengthy discussion It works best when counsel can agree the statement of of the authorities, and had left me feeling confused. The issues close to the trial, and then structure their opening third set of submissions was a breath of fresh air. The and their closing submissions to address the issues. When first page set out, clearly and succinctly, the propositions that hasn’t happened—for example where there is a self- made by the party in support of the conclusion it urged represented party—I will sometimes provide my own draft me to reach. The balance of the submissions followed statement of issues and invite comment before finalising it the structure set on the first page. The submissions were and asking the parties to use it in their closing submissions. both concise and full of substance. They synthesised the Justice Lyons: I have had no experience with them. But principles to be drawn from the numerous authorities. I find statements of issues for trial invaluable: even if There was no turgid waffle. In parts, they were really they require modification at trial or during the process of interesting. After reading them, I felt that I understood writing the judgment. the issues that I had to resolve in order to decide the case, and what authorities I needed to read first. Happy judge. How can advocates write simply and clearly without detracting from the complexity of the law? Justice Lyons: On the eve of a busy directions day, I received short submissions (1½ pages) from counsel for Chief Justice Ferguson: Often the law is not as complex as the defendant setting out the four issues in dispute, what submissions suggest. One approach is to first outline a the defendant wanted and why. It was concise, focussed— skeleton of the key principles and then elaborate on them and a great help. to the extent necessary.

Consider the types of things, when confronted Justice Richards: Pay heed to George Orwell’s rules from with written submissions, which lead to an ‘inner Politics and the English Language: groan’? What would you like to see eradicated from 1. Never use a metaphor, simile, or other figure of speech written submissions, never to be seen again? which you are used to seeing in print. Chief Justice Ferguson: Submissions that spend time on 2. Never use a long word where a short one will do. weak arguments. 3. If it is possible to cut a word out, always cut it out. 4. Never use the passive voice where you can use the active. Justice Richards: I dislike a long excursion through the case 5. Never use a foreign phrase, a scientific word, or a jargon law, unless (which is rare) it is necessary to the issues I word if you can think of an everyday English equivalent. have to decide. It is particularly aggravating if there are 6. Break any of these rules, sooner than say anything outright long slabs of text reproduced in the submissions, without barbarous. a synthesis of the relevant principles.

40 VBN VBN 41 A Third Edition of Jesting Pilate

news and views news what is JUSTIN WHEELAHAN ‘GOOD LEGAL WRITING’? ord Wilberforce said, “There is no such thing as a substandard Dixon but from time to time there I would like to remind those present—as I have is Dixon at his superb best.” Sir Ninian Stephen been reminding myself—that the story of Sir Owen noted that Sir Owen’s pellucid prose displayed Dixon’s judicial career really begins here, in this court and “that same happy fluency of style, that felicity in the in this library. As many of you will know, Sir Owen’s first L experience of judicial life was as an acting judge of the expression of deeply held conviction and all the civilised rationality of the man.” Supreme Court of Victoria for a period of just under six An issue of VBN devoted to good legal writing would months, commencing on 21 July 1926. Today being the 24th be incomplete without mention of the launch of the third of July, that is just over 93 years ago. edition of Jesting Pilate, and other papers and addresses As Phillip Ayres points out in his celebrated biography by Sir Owen Dixon, published by Federation Press, and of Sir Owen, it was a remarkably productive period for launched on 24 July 2019 in the Supreme Court of Dixon A-J. Of the reported single judge decisions from that Victoria Library. period, Dixon was responsible for 16, more than three times It was Jim Merralls QC who originally saw the need that of any other judge. for a new edition. After his passing, the Hon AC and the Hon The first of two reported decisions was given on I would add one more rule, which Write plainly and directly about the issues that AC assumed the task of editing. They have 2 August 1926, the hearing having taken place is to avoid using double (or triple) the judge has to decide. Concise, well thought out contributed, respectively, ‘Sir Owen Dixon: The on 23 July (two days after he started). The 1926 volume of the Victorian Law Reports then negatives if possible. submissions are more effective (and welcome) than Communist Party Case, Then and Now’; and ‘Sir Applying these rules will help, Owen Dixon Today’ to the Introduction titled includes two decisions from 9 August, one each as Orwell said, to cut out “all lengthy, rambling ones. ‘The Standing of Sir Owen Dixon’, which charts from 11, 15, 16 and 25 August and two from 27 prefabricated phrases, needless Sir Owen’s career as a jurist, and his influence on August! In no case had he reserved his decision dialogue. But the extra effort is don’t have an opportunity to elaborate repetitions, and humbug and the jurisprudence of the High Court. for more than a few days. Such industry, such worth it. Well-formulated, tightly or add anything after my reasons are vagueness generally”. As the editors state in the preface: productivity, puts us all to shame! written submissions are far more published. So I enjoy the challenge of Rules 2, 3 and 4 are particularly powerful. They are far more likely thinking carefully about how I express The signature essay, “Jesting Pilate”, written at the height And, as Ayres suggests, one need only dip into one or helpful in achieving clear and simple to persuade. The risk of your good myself and doing the best that I can to of Dixon’s powers, is full of his mature preoccupations: “If two of those judgments to recognise the unmistakable writing. It is hard to avoid breaking points being lost in too much rhetoric make my reasons clear. I enjoy writing truth is an attribute which can be ascribed to a purely legal Dixon style. In one case, a question had arisen as to rule 5 in legal submissions, but it is is reduced. summaries of judgments. And while conclusion then it should be within our reach.” As with the whether the phrase “business of a class usually carried on always possible to use English rather the summaries are not a substitute for more complex version of this point in the Banking Case,1 in a shop” was so vague and so uncertain of application as than Latin. Justice Richards: Write plainly and the full written reasons, summaries do Dixon’s severe and realistic qualifications look backwards to make the relevant Council by-law bad for uncertainty. directly about the issues that the Justice Lyons: Spend time give an opportunity to write for and to Roman law and to Bacon and forward to Foucault and His Honour thought not: judge has to decide. Concise, well formulating and identifying the engage with the broader community. Rawls. It is Dixon’s characteristic restraint which guarantees thought out submissions are more There are difficulties of definition familiar in other key propositions of law you rely the continuing vitality of his remarks, notwithstanding ever effective (and welcome) than lengthy, Justice Richards: Writing in order to branches of law as to when particular instances come on based on your analysis of the evolving conceptions of truth and justice. rambling ones. understand and determine an issue within some general conception in whatever language relevant authorities. It will assist is a different exercise from writing Mrs Rosemary Merralls provided the editors with it may be expressed. It is no doubt unfortunate that you in identifying the key factual Justice Lyons: Be as short and concise to advocate and persuade. I find unpublished materials, diaries, and correspondence, which general language and general expressions are resorted findings you seek the court to as possible. See also 2 and 4 above. that writing is often the best way to enlarged the editors’ perspectives, and enabled them to add to, but it was not intended to impose upon the municipal make. It will assist the judge in inscription image courtesy of federation press. And finally, on a personal note, is organise my thoughts on a complex previously unpublished material. The third edition includes authorities any greater degree of precision than is understanding your case. 2 there an aspect of the process or issue. It is satisfying to find that the two articles from Jim Merralls, ‘The Rt Hon Sir Owen Dixon, customary in the draftsmanship of ordinary legislation. Now is your chance to tell construction of judicial writing process of writing has unpicked a OM GCMG, 1886-1972’, originally published in the ALJ, and Now it must be acknowledged that, at the end of this barristers how they can improve which has surprised you (in a good knotty problem and brought me to ‘The Library of Sir Owen Dixon’—which first appeared in brief period, Dixon declined the offer of permanent their written submissions! If way)? What do you most enjoy? an answer. Issue 160 of these pages. appointment to the court, having (as he later put it) there is an insight you would At the launch, Justice Maxwell, the Chief Justice Ferguson: I have a very keen Justice Lyons: I have not reached “made up my mind that I would never be a judge.” We like to impart not covered above, President of the Court of Appeal, introduced interest in good communication and the stage where I could say I have nevertheless claim some small part of the credit for the we would love to share it with the Hon Susan Crennan AC and Professor the positive effects it can have. Writing ‘enjoyed’ any part of writing a extraordinary career which followed. our readers. Michael Crommelin, Zelman Cowen is one of the most enjoyable aspects judgment. Maybe enjoyment will Professor of Law at Melbourne Law School, Chief Justice Ferguson: It is more of my role. It gives me an opportunity come with time! 1. Bank of New South Wales v Commonwealth (1949) 76 CLR 1 at 340. to launch the new edition. What follows is difficult to write concise, tight to explain the decisions that I make. 2. Gill v City of Prahran [1926] VLR 410, 413. an extract from that speech. submissions than a long, rambling I only have one chance to do that. I

42 VBN INSET: A first edition of Jesting Pilate with the inscription “to Windeyer J with most affectionate regards from Owen Dixon” VBN 43 news and views

of the Migration Act (1958) to get because what you’re saying to your When I wrote that scene, I was still you going on On the Java Ridge? unconscious brain is ‘let’s do this the practising (as a lawyer, I mean. I’m Writing Tips For Barristers I’d be more likely to read legislation same way we did it yesterday, and still practising being a novelist.) I what is ‘GOOD as a way of getting to sleep at the end the day before...’ That’s only going took some actual court transcript and LEGAL An interview of a writing day... to reinforce the sticking points. You copied the font and formatting (the WRITING’? I do have little routines to get need to break habit, do something numbered lines, courier typeface, going, though. My current one is else, sneak up on the problem. caps lock across the top, etc.) and with Jock watching the last five minutes of the dropped my scene into it, then put Ken Hayne AC QC has advocated Nick Cave doco, Twenty Thousand it on an email, subject line “Did you for Bryan Garner’s method of Days on Earth. It’s concert footage hear about this?” I sent it to a few Serong framing arguments with ‘issue of Cave playing Jubilee Street in the lawyer friends. When the replies statements’. Do you plan out the Sydney Opera House, overlaid with came back along the lines of “OMG! JUSTIN WHEELAHAN structure of a novel beforehand, him narrating his thoughts about Who was this?”, I had a feeling the or does it evolve? creativity. It’s remarkably beautiful: scene was about right. I’ve written five novels, and I think I’ve ock Serong practised as a barrister and his words, but also the edit, which approached all five in differing ways. solicitor between 1995 and 2013. He was builds with the music and interleaves The best advice you got from Sometimes, yes, I’ve planned a member of the Victorian Bar for six images of Cave as a younger man: your editor was that you can cut carefully. Preservation is an example years, primarily in the areas of crime and “All of our days are numbered. We vast amounts out of a story, and of a very mapped-out story (and it’s native title. He took a sea change from cannot be idle. To act on a bad idea is you’re only going to improve it. probably no coincidence that the the Melbourne Bar to Port Fairy, where he better than to not act at all. Because Does the same principle apply to novel is concerned with geography, worked for a Warrnambool law firm. After moonlighting as a the worth of the idea never becomes legal submissions? as much as with people). With Java writer for Surfing World and founding Great Ocean Quarterly apparent until you do it.” Yes, but there’s a limit. If you cut J Ridge and Backyard Cricket I wrote magazine, Jock traded his job in as a partner to write fiction There’s an Elizabeth Gilbert down to the bone, it makes reading towards the ending, not knowing full-time. His novels are published in Australia, France and interview with Tom Waits from about harder, because all of those adjectives what I’d find there. I suspect this is a Germany, and have received accolades in Australia, the 2002 about his song writing methods. and adverbs, which appear otiose, in point at which fiction writing departs US, and England. The working title for Jock’s forthcoming It’s plain mad, and it’s a reminder fact have a role in digestibility. They from legal writing. historical novel is Guncarriage—a sequel to his most recent that it’s okay, perhaps even necessary, assist the reader in sliding between You’re hardly going to write an book Preservation, reviewed in our last issue. VBN took to let go of rational thinking and ideas, pausing for breath. At the level advice, or a judgment, with mindset, the opportunity to chat to Jock when he was back in town let the wheels spin. David Foster of language, we do actually need well, let’s just wander in here and see teaching writing at the Judicial College, about Lord Denning, Wallace’s 2005 commencement some lipids to keep our coats glossy. where the story takes us... back yard cricket, and weeding out the dross. address at Kenyon College, entitled Nobody wants to live on pulses and This is Water, breaks my heart still. I In your first novel, Quota, there steamed fish. Lord Denning had a knack for opening lines, like, must’ve read it a hundred times now. is a great scene where the You can think of editing in two “In summertime, village cricket is a delight to protagonist, a barrister, tells a ways: either parsing the language everyone.” (Miller v Jackson [1977] QB 966). What Jim Raymond says you should sardonic supercilious magistrate word by word and line by line; or was your first line in The Rules of Backyard Cricket? draft your submissions like what he really thinks about him, removing concepts, paragraph by I had to look it up! There’s quite a lot of thought in the you are explaining the case which leads to a contempt charge paragraph. Obviously the latter is editing stage about how to open the novel, set the right to a neighbour over the back and disciplinary action. Was more efficient in terms of reducing pace, reveal things in the right sequence, so often what I fence. How can barristers write it cathartic to live vicariously word count, but it takes confidence think is the opening line, has in fact wound up somewhere clearly about legislation that’s through your characters and to know you can safely ditch entire back in chapter eight. But the lines were: Byzantine in its complexity? write what you could never say at blocks of analysis. The broken white lines recede into the blackness as we hurtle Distillation. Another way of thinking the Bar? I think we all know when we’re forward. Do you remember this? I knew it in childhood; this about Occam’s Razor is that any idea It was—I suppose most advocates reading legal writing that’s as tight as feeling of the irretrievable past slipping away behind the car. worth its salt should be reducible have felt that way at some stage a drum. The language inspires trust These things, gone and unrecoverable. to simple speech. If it’s not, then it’s or other, that overwhelming urge in the logic. a series of ideas and you haven’t to just let fly. Clients, onlookers, My memory of it—and bearing The lines are a recollection of things I was thinking reduced far enough yet. But I think even court reporters don’t seem to in mind I was no expert at all— when I was ten and I broke my collarbone playing also Raymond might be making grasp this; that there’s an argument was that reading submissions to a with the cousins at my grandfather’s house. Sitting assumptions about his neighbour. going on but it exists within a set of court was an excellent measure of in the back of the car, looking out at the night sky What if the neighbour’s really smart invisible parameters that have tensile whether you’d edited tightly enough. feeling sorry for myself with my arm in a sling. I was and you can be as florid as you want? strength, are built from experience, If I was on my feet and my eyes a moody kid. I thought the world had come to an end. Walking’s very helpful for this strategy, ethical rules, respect for the were frantically darting all over the Stendhal read a few pages of the French Civil process. Or pulling weeds. Any light institution. There’s a corollary to this: document looking for the crucial set Code each morning as a model of clarity when physical activity that has a rhythm arguing with a loved one and they of words that would frame the idea, writing The Charterhouse of Parma. Did you read a to it. I think very often being at your explode with “Aargh! Stop being such then that probably meant I hadn’t few sections of Subdivision B of Division 8 of Part 2 desk is the worst environment of all, a lawyer!” pulled it together in the drafting.

44 VBN VBN 45 » Don’t isolate yourself: we should try to be as collaborative as musicians. Any idea that can survive a verbal The last step to technical news and views news wrestle with an agile colleague over what is a coffee is a worthy one. ‘GOOD excellence: how to proofread LEGAL If you could meet any fictional WRITING’? legal character, would it be ANNETTE CHARAK Atticus Finch? I think it’d be Eamon Redmond, the eople judge. They judge in all kinds of situations, Read on paper rather than on screen and read out loud to judge in Colm Toibin’s The Heather including when reading our documents. Our pick up slips, like a missing word or a wrong tense or structure. Blazing. Or David Wenham’s immortal readers—instructors, leaders, opposing counsel, When writing something particularly complex or sensitive, Johnny Spiteri in Gettin’ Square. P judges—are sometimes forgiving, acknowledging how easily try to have someone else read it to ‘test’ that your document Which Australian High Court one can make a mistake and this misspelt word might just be does what you want it to do. judge is the best writer in your a typo. Other times, they are less forgiving, particularly where More generally, if you are even vaguely unsure of something, opinion? the “mistakes” are numerous. As barristers, we are assumed look it up online or revisit a grammar or usage text, such as I couldn’t answer this in to know the rules of grammar, usage and spelling, but some the Economist Style Guide or Fowler’s Modern English Usage. For contemporary terms, but I remember barristers admit—readily, or not so readily—that their background or to shore up your punctuation skills, take some thinking Mabo No.2 was a high- knowledge of grammar is sketchy. And even with a thorough time with such delights as Mary (“Comma Queen”) Norris’s water mark, and not just because I knowledge of grammar and usage, we make mistakes Between You and Me or Lynne Truss’s Eats, Shoots and Leaves. love the subject matter. It felt to me (for interesting neuro-psychological reasons that I will None of this guarantees that you won’t make mistakes, but like there was a massive conceptual not explore here). there’ll be fewer of them. And your readers might judge you challenge laid before the court, to do Getting the content of our documents right goes without well for it. something that had few antecedents saying. But what can you do to produce technically excellent Annette Charak was an editor at Butterworths Law Books (now and enormous ramifications. It written work? To begin with, allow yourself time to reread the LexisNexis) for 10 years. reads like people grappling with document after a break. Even 15 minutes while you do something something ethereal, as much as legal, else can make a difference, as we tend to see what we expect to and forming a series of sharply see, not necessarily what is there. Clear your head and return to It was—I suppose most advocates have felt that different intellectual alliances and your document and you might see a little more of what is actually way at some stage or other, that overwhelming urge oppositions: two joint judgments, on the page. Read for sense separately from technical errors. Check to just let fly. two lone hands in the majority and a robust dissent from Daryl Dawson. headings separately from body text and check names, The thinking in each judgment references and citations as a separate exercise. Which bears out the old notion that document—the legislation, the seems to emanate from an entirely Something that some professional editors abhor, but I find experience is what you get right after transcript, the authority you’re separate intellectual reaction, like useful with long documents is to start rereading from the you needed it. citing—the other shows the it was a Rorschach test for their middle. The beginning is often polished, but attention can document you’re writing. If you What was your advice to the understandings of tenure. wander as you read on. Or read different sections in an ad were doing the process longhand, judges at the Judicial College? I like contrarians, too—Lionel hoc order. A variation on this is to read the sentences of your this is what you’d be looking at: In no particular order: Murphy, and Michael Kirby because document in reverse order, from the last sentence to the first an open book and a pad of paper »T hink of drafting long works as a he would reliably tip the conventional one. It will slow you down, but that will help you pick up things on the desk; so why not replicate bell curve: the piece will get longer thinking about the problem on its you’ve overlooked and your brain is refusing to register. that method? When we raise and and longer as the ideas tumble head, whether you agreed with him drop windows in one screen, we’re out; it’ll briefly plateau as you take or not. putting a small barrier in the way. stock of what you’ve assembled, » Never delete: cut text away and When Napoleon met Goethe he then it will begin to reduce. keep it in a “dump” document. said, “There’s a real man!”. Do » In any tough period of drafting It’s amazing how often you need you feel more like a real man there’s value in reading small it again. now you are writer? bursts of something beautiful and » Resist the terror that editing down is Not in any bear-wrestling sense. unrelated before, or even during, costing you all sorts of gems. You’re All writers are subject to a measure the task. (Try some Australasian revealing Atlantis by lowering the of imposter syndrome: any minute now poets—Omar Sakr, Selina Tusitala sea level. Or something. they’re all going to find me out. I’m a Marsh, or a novella like Max ABOVE: One reason why » Write to convince yourself, not to pretender, a fraud, I got away with it for proof-reading is important: Porter’s Grief is the Thing With defend yourself against criticism. a while but the jig’s up, etc etc. “Because failing to Feathers). proofread can have tradegic Defensive writing is timid writing, I feel like I’m living a little bit tragic consequences” For »T here’s value in having two whether it’s the Court of Appeal or closer to my abilities: that’s about as more, see ‘69 excellent screens: one shows a source reasons why proofreading is Marieke Hardy you’re afraid of. high as I’d put it. important’ at Vappingo.com.

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Charles Scerri QC He went on to work at Mallesons, where he was elevated harles Scerri QC is no stranger to sleep deprivation. to the partnership. He came to the Bar in 1986 leaving It comes with the territory when you are father to 11 behind a successful career as a solicitor just as he and news and views news children and have (at last count) 18 grandchildren. Clare were expecting their seventh child! He says he It is, to put it mildly, an extraordinary achievement. was motivated to go to the Bar because he wanted to run Charles, in his typically humble way, showers praise interesting cases and as a solicitor, he would sometimes on his loving wife Clare whom he met at Sunday only get to work on one trial per year. school and married in 1973. Despite his enormously successful career in the law, At the wedding of Adrian and CBut Charles’ story starts half a world away in Malta. He was of his 11 children only one (his daughter Catherine) has Shivaun, 2018 the eldest of Richard and Josephine Scerri’s six children. It was followed in his footsteps and studied law. She now works in On his parents’ momentous decision to immigrate to Melbourne the Philippines with Bahay Tuluyan (House of Welcome) diversity at the Bar and in the profession more broadly, in 1954 that eventually led him to our Bar. It wasn’t all plain an NGO which cares for and supports street kids. Catherine Charles notes that in his personal and professional sailing, indeed Charles recalls being sea-sick for all six weeks has two foster children whom she is seeking to adopt and life he has hardly ever experienced any prejudice. of the sea voyage from Malta. He was only three-and-a-half- Charles sincerely hopes they will all be able to travel to Overwhelmingly, Charles considers that the legal years old at the time. Australia to attend the Scerri Christmas celebrations. profession has been accepting and supportive. Richard and Josephine moved to Australia because of their desire to provide all their children with access to a better education and a better future. The Scerri family initially settled Lisa De Ferrari SC to Canberra to be an associate to the Honourable Justice in Brunswick. Charles recalls that having relatives from Malta McHugh of the . At the Court she isa De Ferrari SC once seriously considered VERONICA HOLT AND HAROON HASSAN living close by made the transition to life in Australia much was exposed to interesting cases and had the opportunity pursuing a career as an architect. Instead of easier. Whilst Charles’ memories of the early days in Australia to see great advocates in action. She then worked with designing buildings, today you are far more likely are vague, he remembers that the major cultural difference the Australian Government Solicitor for a year, primarily We are delighted that our stories of to find her honing her craft in appeals and trials for him was food. Family functions were a celebration of great doing advisory work. members of the Bar from diverse where she carefully constructs elegant arguments and food including traditional favourites, such as Maltese soup L Lisa was motivated to come to the Bar because she cultural and racial backgrounds robust submissions on behalf of her clients. and ravioli. wanted to work in litigation as well as undertake advisory has resonated so well. In Part II, Charles attended Saint Ambrose’s primary school in It took me a while to find out what I wanted to do. How was I work. She decided to try it at the Bar for one year. She we discover more about the family Brunswick and later went on to St Bernard’s where he going to make a living? … When I told my parents that I was was called in 2002 and was appointed silk in 2017. It history of our Victorian barristers. completed his high school education. He says his decision to giving up my PhD studies in computer science and going to certainly seems to have been the right choice after all. study law was influenced in part by his admiration of Raymond try law, my mother said, ‘It’s about time you did something Lisa considers that the way she has structured and Burr’s iconic television portrayal of 1960s TV lawyer Perry practical’. Not sure what she would have thought about developed her practice has been influenced by her Mason and a love of debating. architecture. upbringing, mainly in Italy, and being an outsider. Charles enrolled in law and commerce at the University of Lisa’s mother left Launceston in the 1960s and went Not having grown up here, not having gone to school here, Melbourne. His very last law exam was on his 21st birthday. travelling around the world, and on her travels in Italy she not having gone straight into law after high school, and His first job was as an auditor. Whilst working full time, he met Lisa’s father. Lisa was born in Rome, to an Australian my family background; all these factors have meant that completed his commerce degree and went on to complete a mother (of Scottish and Welsh background), and an Italian I have been an outsider. Which has its advantages and Master of Laws degree (with four children in tow by this stage). father (born, however, in Libya). During her childhood she disadvantages. There are barristers who have a linear career Scerri Family, Anglesea, travelled between Australia and Italy, spending periods of path, and then there are others, like myself, who choose a January 2018 time in with her extended family. She regarded different pathway to the Bar. The way you form connections Australia as her second home, at the time. is different. But that is the good thing about the Bar. In her early 20s, Lisa moved to Australia on her own. Lisa says that she has been very fortunate to have been She initially lived in Canberra and enrolled in computer supported by many great barristers throughout science at the Australian National University. For a time, her career. she considered a career in academia, enrolling in a PhD in computer science, but decided that it was not for her. A career as an academic was too abstract, I realised. I didn’t want to just do research over many years and write peer-reviewed papers. I wanted to do something more immediately practical. A lot of my friends had studied law and some had gone on to practise, so I thought I would try it, study law, for a year and see if I liked it.

Lisa enrolled in law at the University of New South Wales. When she graduated, she worked in Sydney as a solicitor at Mallesons. She then moved back ABOVE: Lisa and her family, Melbourne 2017. RIGHT: Lisa (back, right) and her family, 48 VBN Rome, 1971 VBN 49 Reiko Okazaki Rozeta Stoikovska SC eiko Okazaki was born in Akashi, ozeta Stoikovska SC was born in Bitola, North news and views news in the west of Japan, near the Macedonia, when it was part of the now former, city of Kobe. She studied her Federal People’s Republic of Yugoslavia. Rozeta undergraduate law degree at Rimmigrated to Melbourne in mid-1968 with her parents and Waseda University in Tokyo, Japan. Later, younger twin sisters. She was nearly 10 years old and did not Reiko completed her Master of Laws at the speak a word of English. The new life, University of California in Los Angeles in R Rozeta and her Rozeta and her sisters went to Footscray Primary School, on 2009 and was then admitted to practice at twin sisters in Geelong Road and walked together to school every day whilst Melbourne the New York Bar. Reiko then decided to her parents coped with life for the first time as factory workers. come to Melbourne to establish her practice At primary school, Rozeta was one of a few migrant children. in Australia and so in 2012, Reiko left for She recalls that not being able to speak English was challenging Melbourne, travelling here on her own. She for her at the start. However, she remembers that her teacher was 27 years old. would sometimes take her out of class to teach her and she was Reiko’s decision to leave Japan was in part accompanied by another young migrant student from Greece— due to cultural perceptions about women. Mary. A lifelong friendship ensued between the two students. Women in Japan face unequal opportunities For Rozeta, the biggest cultural difference between Australia and widespread harassment in the workforce and Macedonia was the language barrier and the fact that her and society at large. The qualities necessary to teachers changed the spelling and pronunciation of her name. practise my craft such as critical thinking and For much of Rozeta’s primary and high school life, she accepted open communication are discouraged by my this. Later in high school Rozeta reclaimed her Macedonian own culture, particularly in women. name. Rozeta went on to complete high school studies at Reiko’s grandmother would often say to her Maribyrnong High School. Here, there were students from a that she walked and talked “wrong” because diverse range of backgrounds because there was a migrant she stood up straight and spoke the truth. reception hostel close to the school. Midway through high It was difficult for my grandmother to school, Rozeta decided that she wanted to become a lawyer. understand why I believe everyone deserves Her decision was in part due to her experience acting as an respect, or why I must work so far away in order interpreter for family friends: to live an authentic existence. Perhaps I can Rozeta, with her husband When people needed interpreters, I was relied upon. I was borrowed Ken and children Reert and never reconcile this; I feel all the more grateful to by friends of the family and used to interpret for them. In this role, I Natash, Melbourne, 2017 Australian society, the legal community and the saw arrogant and discriminatory practices. This, combined with the Victorian Bar that has welcomed me. Rozeta and her family, in coats made by Rozeta’s stories my parents would come home with, stories from the factory father, a master tailor, Macedonia, 1966 Reiko notes that in Japan, deference to floor where migrant workers had been discriminated against, authority and prioritising the perfect façade particularly female workers, influenced my decision to practice law. means that problem solving in open court is At a young age, Rozeta became aware of the existence of considered one of the worst nightmares for an unfairness and decided that she could have an impact on this individual. Reiko hopes that her background by becoming a lawyer. She was also motivated by a desire to and experiences prior to being called to the have an independence her parents did not have. Moreover, her Victorian Bar make her more relatable to parents encouraged her and her sisters to obtain an education clients and instructors. as the path to prosperity and importantly, dignity: On diversity in the profession, Reiko has taught law subjects at Monash University for I decided that law would be an area where I could determine my the past four years and notes that the student own fate. In my own young mind I imagined that law would give body is quite diverse. She has also often been me the freedom to be my own boss. I thought it would give me approached by her students for career advice independence and a voice. asking what it is like to be a young woman Rozeta studied law at the University of Melbourne. She later immigrant at the Bar. She is hopeful that more worked as a solicitor for two years and came to the Bar in 1984. students from diverse backgrounds will follow She believes she is the first Macedonian barrister in Victoria. her example and join the ranks of the Bar. Rozeta met her future husband during the readers’ course in March 1984—also a member of our Bar—Ken MacFarlane. They have been married since 1987 and have two children, Natasha and Robert. Reiko, at her graduation ceremony from Waseda University, 2008. INSET: Reiko, 1987

50 VBN VBN 51 Karina Popova Miguel Belmar I was also a nerdy kid and one amily plays an important and significant part in Karina iguel Belmar was born in Santiago, Chile. of the things I Popova’s life. She draws on cultural influences from He moved to Australia with his family in her father’s Bangladeshi culture as well as her mother’s September 1978. He was six years old at was interested in FEastern European culture. the time. He did not speak a word of English when he first was reading about Karina Popova’s parents met at medical school in Ukraine. Her arrivedM in Melbourne and his parents spoke very limited mother is half-Russian and half-Ukrainian and her father is English. He grew up speaking Spanish at home and politics. Bangladeshi. Karina was born in Donetsk, in the former USSR, English at school. which later became Donetsk Ukraine and, more recently, Donetsk Miguel has distinctive memories of the early days in think it was that personal People’s Republic. Australia—which was so different to Chile. One of the drive which pushed me Karina lived in Donetsk until she was 10 years old and as a most prominent memories is the first time Miguel visited through my studies. I was result was multilingual. Her first language was Russian and at a supermarket: also a nerdy kid and one of the things I was interested in was school she learnt to speak Ukrainian. In her early childhood We didn’t have supermarkets where I grew up. We had reading about politics. Many politicians had law degrees and years, Karina spent some time with her family in Bangladesh and weekly street stalls and a tiny corner store. I remember I thought that the law must be empowering. I also enjoyed so she also spoke Bangla growing up. It wasn’t until 1995, when seeing my first supermarket full of food and being impressed. watching LA Law. There was a Latino lawyer in the show. Karina and her family immigrated to Auckland, that she learnt to speak English. His family initially settled in a migrant hostel in Miguel enrolled in a law degree at Monash University Her parents left Ukraine because they wanted a better life for Springvale, which is now a retirement village. It briefly and aspired to come to the Bar. He enjoyed mooting at their children: operated in the ‘90s as an immigration detention centre. university and was attracted to the lifestyle of a barrister, Miguel remembers that there were families from all over specifically, the independence. Miguel was also conscious My parents were concerned about the pervasive violence and the world staying at the hostel including many from South of living up to the opportunities provided to him by his corruption and what it would mean for me and my sister growing America and South East Asia. Miguel attended Springvale parents’ decision to move to Australia. up. People were getting robbed in our local dog park. There were Primary with many of the children from the hostel. It was He says his resolve to join the Bar was strengthened bodyguards outside of the local school. It was not a safe place. You a culturally diverse upbringing. One of the first challenges when he read judgments and noted the names of the had to bribe anyone and everyone to get anything done. for Miguel was being slotted into grade one, in a barristers appearing in those cases – many with non- In 1999, Karina’s family immigrated to Melbourne. When she arrived completely different environment, where all lessons were Anglo surnames: he learned they were Jewish. in Australia with her family, she immediately noted certain cultural taught in English. After primary school, Miguel went on For me, reading those appearances as a student, and differences including family, food and humour. She says: to secondary school, in Dandenong. It was during his high speaking to Jewish mates at university made me realise school years that Miguel started thinking about studying Cuisine is much more exciting in both Ukraine and Bangladesh. To that being culturally and linguistically diverse, was not law. Miguel reflects: this day, I find traditional Aussie food, that is, roast and three veg very a barrier to a career at the Bar. bland. I think, how could you take such perfectly good ingredients and Children at my school were not encouraged to aim to study He has still found that to be the case and has experienced make them taste so unappealing. law. The school was doing well if you got into university. I only support from colleagues. started to develop this interest in law in high school and I In terms of attitude and humour, Karina found that there is a big difference between Australia and Ukraine, as well. Karina Miguel with his Miguel, outside suspects she has inherited her mother’s Eastern European dark grandmother in his childhood Santiago, Chile, 1995 sense of humour and sarcasm. home in Karina’s decision to study law and practise as a barrister Santiago, Chile, 2015 was influenced greatly by her upbringing in Ukraine. Karina’s extended family (on her mother’s side) are all still in Ukraine. Of her motivation to study law and become a barrister she says: I wanted to be part of an impartial legal system, where people got a fair go and where the outcome didn’t depend on bribes. To this day it influences the type of work I do pro bono. If I think there has been an abuse of power or an attempt at a cover up I am much more inclined to say ‘yes’ to a pro bono brief because I think it’s that kind of work that keeps the legal system in the (mostly) good shape that it is now.

Karina notes that she has not encountered any challenges at the Bar because of her upbringing, but says that people often ask her at social functions: “But where are you really from?” If I say Ukraine, people seem confused because I’m not as fair skinned as most Ukrainians – and then I have to explain about my TOP: Karina and her father, Dhaka, 1988; MIDDLE: Karina and her mother, parents … maybe from now on I can just direct them to this article! Donetsk, 1989; ABOVE: Karina and her family, Dhaka, 1997

52 VBN VBN 53 news and views Advocates news and views news for Change: lessons from a consciousness- raising experience

The word ‘consciousness’ derives from the Latin conscientia. Until the early 17th century, consciousness was used in the sense of moral knowledge of right or wrong, what is today referred to as conscience. (Christof Koch, 2004)

onsciousness-raising, in the modern sense, has its origins with New York Radical Women, a 1960s women’s liberation group in New York City. The concept involved regular meetings in people’s homes. Women talked about the issues in their lives. Consciousness-raising quickly spread throughout the United States and beyond. Works, Csuch as Carol Hanisch’s famous essay, “The Personal is Political”, ensured that consciousness-raising groups were not some form of psychological therapy. They represented a valid form of political action. Fast forward several decades, and consciousness- raising has found a surprising new home. A 2018 notice from the Law Institute of Victoria provides the context: Solicitors are to be invited to join Justice Chris Maxwell’s gender equality campaign. The President of the Court of Appeal will write to individual solicitors and firms inviting them to join Advocates for Change to help achieve equity, including pay equity, in the legal profession. Justice Maxwell lit on the idea of starting Advocates for Change for barristers after becoming a Champion of Change in 2015. In that role, he has publicly encouraged equality within the profession and criticised sex discrimination. Justice Maxwell has convened two groups of male barristers—one comprising senior counsel, the other junior counsel. The groups started meeting a year ago to discuss ways in which they could support and advocate for women at the Bar. Both groups have heard from women barristers on their experiences of discrimination. Now, he would like to see men and women from the solicitor arm of the profession join the discussion, with a group starting in October.

54 VBN VBN 55 initiative. Would she attend these system. I think that the most important committing to learn more, and to do meetings and bring other women? benefit of the Advocates of Change more. The supportive nature of the Justice Maxwell met with them in process was to raise awareness.” environment encourages openness news and views news chambers in advance. They wanted and creates a feeling of solidarity.” to know what it was about, and what What were some Justice Maxwell acknowledges his their involvement would be. debt to his unofficial female focus Kathleen says, “We didn’t know action items? group, who helped drive the agenda. what to expect or how the sharing of Discussion in the groups focused on “It simply would not have worked our experiences would be received. what an individual (male) barrister without them.” After a period of time Nevertheless, we all spoke frankly could do to make a difference. The free they asked him, “Where are we going about our lives as women barristers— exchange of ideas and experiences with this?” He recalls being told, the good, the bad and the ugly. I felt was most instructive. For example, “We’ve done the show and tell”. many of our male colleagues had when one senior barrister said that So, after four meetings with each their eyes opened to the different he always kept a list of female junior group (eight in total between them), experiences of women at the Bar. I counsel by the phone to facilitate he proposed that the meetings for think the process is an important part recommendations to instructing barristers in late 2018 would be the of the work being done at the Bar to solicitors, others said they would adopt last. The groups agreed. “We felt we achieve greater equality between men the same practice. had reached a level of awareness, and women.” At each meeting, individual and individual responsibility, Fifteen women in all attended the barristers would report back on what where formal meetings were “Advocates for Change” meetings they had done since the previous no longer required. I hope that over the period 2017–18. They came meeting. Thus, one barrister had there will continue to be a ripple from a mix of practice areas and made a point of recommending a effect as a result of the ongoing Background seniority (although most were juniors). female junior whenever he himself efforts of individual participants”. The Male Champions of Change, of Justice Maxwell had already publicly supported and They spoke frankly of their own was unavailable; another had stepped In the role of President, his Honour which Justice Maxwell is a member, promoted … gender equitable briefing… Establishing experiences, some commenting that in when he perceived that a female keeps a close eye on the Court of has received publicity over the past this was the first time they had been barrister was being spoken to Appeal statistics. At the initiative decade. As it should. When it began in Advocates for Change was his own idea. able to do so in a safe environment. inappropriately; a third said that he of Justice Tate, the Court has for 2010 with eight Australian leaders, the It is, of course, important to respect had made a welcoming phone call to the past four years recorded encouraging 15 senior and 15 junior opening comments were positive. concept was a novelty. The Victorian the confidentiality of what was a female barrister newly admitted to appearances by gender. His Honour members of the Victorian Bar to work The seminal moment was when one group, established in 2015, has 24 discussed during these sessions. It is his list. says, “The percentage of female together to advance the position of participant said, “It’s a terrific idea members. At its heart is the idea that equally plain that the candour of the The process of reporting back counsel with speaking parts in the women at the Bar. but I’m feeling uncomfortable being men in leadership positions should female participants made attendees reinforced both the collaborative Court of Appeal remains stubbornly So, how did Justice Maxwell find in a group of men. It’s exclusionary. be made accountable for driving sit up and listen. Raw and unfiltered nature of the exercise and the sense of and dispiritingly low. This is the experience? We don’t know what women actually change on gender equality within stories told first-hand had a powerful accountability to each other. especially true in civil appeals.” “It was surprisingly successful”, experience at the Bar.” It was agreed their organisations. In other words, it’s impact. Yet it was not all bad news. Practice Notes encouraging trial his Honour says. “It’s a reflection that women should be invited to the time that men “stepped up” to support There were also warm and positive The solicitors’ program counsel to be briefed on appeal, of the quality of the participation. next meeting. the efforts which women have been stories, including tales of great His Honour is equally positive about and to share the advocacy burden It succeeded way beyond what I’d His Honour refers to this as part of making for decades. mentors and how they had helped. his solicitors’ Advocates for Change between junior and senior counsel, hoped, due to the participation the learning experience. His initial A key feature of Champions of Charles Scerri QC, who participated program. One group is made up of have an eye on improving equivalent of both men and women. The Bar male-only model for Advocates for Change is accountability. Each year in the senior counsel program, says, managing partners and other senior gender representation, as well should be proud of what its members Change was based on his experience the group publishes a progress “I work with women solicitors and partners, the other of mid-level as ensuring that junior counsel are doing ...” with Male Champions of Change. Yet report. This outlines what members barristers very often, and with six lawyers and senior associates. There benefit from the experience As to the origins of the project, he realised swiftly the need for the have worked on, naming the daughters, I thought that I was aware has been a steady shift from talking of appellate advocacy. “Through participating in Champions group to hear about the day-to-day contributions of organisations. of gender issues. Only very rarely have about policies and procedures to of Change I’d been learning a lot from experiences of female barristers. The Progress requires lots of experiments, I found resistance to the briefing of sharing experiences and ideas in Conclusion the work being done by the leaders junior counsel group acknowledged and lots of listening and learning. a woman junior. However, I was very a frank and open way. The groups It is unclear whether his Honour of companies. I wanted to see if this the benefit of male-to-male This is openly acknowledged in the surprised and disappointed at the recently decided to continue meeting has been fully backgrounded in mutual learning could be replicated accountability but soon followed the annual report. prevalence of inequality experienced in 2020. the history of 1960s consciousness- in discussions with barristers”. After lead of the senior group by inviting Justice Maxwell had already by women at the Bar. Some ‘raw and raising. Yet what the President set out asking people for names, he invited women barristers to join. publicly supported and promoted unfiltered stories’ certainly were The experience overall to achieve, and did achieve, is precisely the aforesaid 15 senior and 15 junior Justice Maxwell then spoke to the adoption of the Law Council of shared. If we remain unaware of the Asked to reflect on the overall the “personal is political” philosophy counsel. They all said yes. They were junior barrister Kathleen Foley. His Australia’s gender equitable briefing gender inequality issue we will not experience, his Honour is very underpinning the women’s liberation all men at that stage. Honour was familiar with Kathleen’s of barristers’ policy. Establishing address it. And it must be addressed positive. “The goodwill has been movement. He recalls the first meeting clearly. own engagement in and advocacy Advocates for Change was his own because inequality is fundamentally overwhelming”, he says. “Everyone Natalie Hickey It was the senior counsel group. The of the CommBar equitable briefing idea. The concept initially involved unjust and has no place in our justice who chooses to participate is

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n a study, Brock and his research colleagues examined how 100 people responded to We find meaning Turn that frown upside down? Ian experience of failure. They were asked to solve anagrams, some sets of which were when we push ourselves solvable while others were not. In the case of participants who solved few anagrams news and views news outside our boundaries (because they had been allocated the unsolvable ones), the researcher expressed some surprise and disappointment saying, of comfort, when we are Why happiness may be overrated “I thought you may have gotten at least a few more but we’ll move on to the next task”. experiencing life to its Some participants dealt with this experience in a normal (bland) testing room. Others NATALIE HICKEY AND MEG O’SULLIVAN were in a testing room decorated with positivity slogans (‘stay happy’), self-help books extremes. on happiness, and a photo of the researcher with friends enjoying themselves on holiday. What was found? Participants who experienced failure in the happy room were three he Duchess of Sussex, Meghan Markle, ourselves because we don’t feel well enough, Brock adds. times more likely to ruminate on the cause of their failure, being the anagram task, than recently said when promoting her “What we know in psychology, is the concept of those in the bland room. The more these people ruminated, the more negative emotions documentary Harry & Meghan: An secondary disturbance”, he says. “People walk through barristers are likely to report similar they experienced. African Journey, “It’s not enough to just the door anxious about feeling anxious. A lot of panic is outcomes. survive something. That’s not the point fear of having a panic attack. This leads to agoraphobia— of pollen, not ‘what’s wrong with comfort, when we are experiencing What about if we are in the of life. You have got to thrive. You have people stay inside. The more you place a value over it, the you’”, he says. life to its extremes”. He notes that moment of feeling down? “Let it be”, got to feel happy.” She said this when providing a rare more it makes you feel worse. The more you run away Brock says, “My interest has been some of our most important social he says. “It will pass. The more willing glimpse into the challenges of royal life. from it, the more extreme the reaction.” driven by a tendency [of people] to connections are those which come you are to let the emotion be, it will Dr Brock Bastion, an associate professor in the School Depression is listed as the leading cause of disability overvalue happiness and to fail to from negative emotions shared, not pass”. Brock also advises, “Let other of Psychological Sciences at the University of Melbourne, worldwide. Yet, the research shows an interesting pattern. see some of the value in negative positive emotions. After all, some of people in. The sharing of negative Twould likely take issue with this statement. His research Depression is far more prevalent in Western cultures, experiences”. We have a negative our professional experiences may be emotions can be very valuable”. on well-being has concluded that promoting happiness such as the United States, Canada, France, Germany side for a reason. He observes, all the sweeter because they come off He personally finds exercise may have a downside. Valuing our painful and negative and New Zealand, than in Eastern cultures, such as “It’s evolutionary; without it we a low period. incredibly important. Whilst one may experiences in life may, in fact, provide a critical pathway Taiwan, Korea, Japan and China. Brock says this shows might not survive”. He adds, “We Speaking of barristers, our not find Brock in a yoga class, he to achieving a meaningful and well-lived life. that depression is a modern health epidemic that is need painful experiences to be workloads are notoriously high. says, “it is hard to think of anything Brock says, “The problem with the happiness also culturally specific. People have reported the same happy.” For instance, “After a long Is that such a bad thing if we are else when exercising hard”. He movement is that it says we shouldn’t have negative level of negative emotions across these cultures, he day when you have a glass of wine, getting satisfaction in our work? also recommends good nutrition. feelings. The happiness movement does not accept explains. However, in the East, negative feelings have the euphoria is not there if it has Brock responds that challenge Whilst he cannot lay claim to have negative feelings and being comfortable with them.” He not translated as much into depression. He suggests been an easy day.” He also refers to necessarily involves adversity, any expertise in the area, he values explains that a key aspect is the perception people have that Western cultural values which prize happiness are a runner’s high, and the physical work, and pain. This is known in health, including healthy eating. of how others view them. When people are expected to playing a role in promoting the depression epidemic. effort associated with this. “We psychology as ‘the challenge / Sleep is also important. “People come feel happy, they tend to feel worse. The concept He is keen to look at the environmental factors which know that effort creates value”, he threat theory’. “So, when we are in for psychological practices, but if of ‘wellness’ can cast a value judgement give rise to depression rather than for a GP to says. “If it’s easy, we don’t value it challenged by our work, we develop they are not eating well or exercising so that we end up feeling bad for medicate it. “If people sneeze, we may think in the same way. If we fail to expose personal resources to cope with it is harder to assist”, he says. ourselves to the prospect of failure, the work.” However, he warns that, “The shorter-term benefits make we don’t put ourselves to the test.” “when demand outweighs the you feel better”. Brock prefers to focus on meaning resources to cope, performance Accordingly, the next time rather than positivity. “Meaning is goes down”. He says, “As long as someone seeks to empower us with very important”, he says. He contrasts you are challenged—and positively “You’ve got this!” or some other hedonic well-being to the eudaimonic engaged —then that’s okay. But we positive slogan, the answer may approach. The latter focuses on need to still look after ourselves”. lie in responding, “No, I don’t!”. meaning and purpose including Apparently, psychologists can track There is something quite social connections. “Meaning often stress to a physiological level. They comforting about that. runs in opposite to happiness”, he can track heart rate, pulse rate, and says. For example, he refers to the blood pressure. They can therefore Dr Brock Bastian is the author of fact that parents will often report see people shift from challenge to The Other Side of Happiness (2018). higher levels of meaning, but lower threat mode. His work has been featured in The levels of happiness. What tips can he recommend to Economist, The New Yorker, TIME, One gains the impression that barristers? “Keep your expectations New Scientist, Scientific American, Brock is not a fan of the wellness low!”, Brock says. “Most mental Harvard Business Review and The movement. He says that mindfulness, illness is driven by displaced Huffington Post. His innovative when one doesn’t feel stressed and is emotion. There is no mandate that approach to research has been in a calm state, is a good place to be. we have to be happy on Christmas acknowledged with the Wegner “But you don’t find meaning”, he says. Day. Social pressure gets ramped up. Theoretical Innovation Prize. He has “We find meaning when we push After Christmas our private patients delivered popular talks, such as TEDx ourselves outside our boundaries of ramp up”, he says. Many family law St Kilda. photo courtesy of darren m baker (bigstock 324956920) m baker (bigstock of darren courtesy photo

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Students completing the SEC pilot program SEC committee member Sebastian Reid in December 2018 speaking at a local high school in 2018

Student Shadowing The experience was incredibly rewarding; there Hands up: your Some years ago, the SEC began offering students the honestly was not a single minute I found unenjoyable. opportunity to spend time with barristers. In 2016, the Student Engagement SEC matched 53 students with barristers; by 2018, this I learnt a lot, not only about law, but also about the work number had grown to 163 students. environment in general. I met a host of truly amazing As student numbers increased, but the number of people and just had a lot of fun overall. STUDENT TESTIMONIAL Committee at work available barristers did not, the SEC adopted a different approach. As part of a pilot program in December 2018, tertiary and secondary students attended a multi-day AMANDA BURNNARD, ERIN HILL AND GERARD O’SHEA The SEC has a strong online presence both structured program together. As well as shadowing at www.vicbar.com.au/students and on our barristers, the students toured chambers and attended VicBar for Students Facebook page. earching for a new year’s resolution? The sessions with the Supreme Court of Victoria and the Student Engagement Committee is here Juries Commissioner. Law Week: advocacy in action to help. Read on for how you can make a The SEC ran a further pilot program for Victoria The SEC also participates in Law Week, difference in 2020. University students in late 2019. Instead of attending in an annual event run by the Victoria Law one block, students shadowed barristers over several Foundation. In 2018 and 2019, SEC members What We Do weeks, giving barrister volunteers and students increased staged original live performances at the County The Student Engagement Committee (SEC) flexibility. It was a great success. Court to showcase the role of a barrister. Swas formed in 2011 with the objective of making the In 2020, the SEC intends to focus on tertiary students, Victorian Bar an accessible and attractive career option running similar programs with other universities. We Need You for budding legal practitioners. Eight years on, the SEC Students from culturally or linguistically diverse The work of the SEC continues to provide information and inspiration to backgrounds will receive priority for placement in depends on the generosity students across Victoria. these programs. and availability of VicBar An insight into life at the Bar members. We encourage all barristers to consider hosting SEC members attend law school careers a student in 2020 and beyond. The time I really enjoyed going around fairs and present at both universities and commitment is as much or as little as you are and viewing all the court cases and high schools, speaking directly to students able to give, and SEC members are on hand to about life at the Bar. The SEC contributes participating in a mock trial… The time assist if the barrister volunteer suddenly to law school careers publications as well, becomes unavailable. I have spent with you will help me to publishing the Victorian Bar’s Becoming So, make this your new year’s resolution for SEC committee a Barrister booklet. In 2018, the SEC also make decisions about my future study 2020: put up your hand to host a student and member, Shaun contributed to the inaugural VicBar Open Ginsbourg, writer and career options over the next few join us in our efforts to reach as many students and director of Day, welcoming university students to the as possible. Contact [email protected] Law Week live months and beyond STUDENT TESTIMONIAL Bar with presentations and panel discussions. performances. today to register your interest.

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within the meaning of s 47(1)(f) of relief or remedy in respect of an act under the United Kingdom’s Human the Corrections Act”. or decision of a public authority on Rights Act 1998 (UK). However, In Baker15 the applicant sought the ground that the act or decision awards of damages made by the news and views news a permanent stay of a criminal was unlawful, that person may seek courts in the United Kingdom prosecution on the ground that he that relief or remedy on a ground of have been modest. They do not had lost the opportunity to be dealt unlawfulness arising because of this reflect awards in tort.25 Awards with by the Children’s Court. He was Charter.19 are discretionary and are not to be a child at the time of the offending made unless necessary to afford just The terms of s 39(1) are difficult but an adult by the time he was satisfaction. They are often viewed and have given rise to multiple charged. He alleged that the delay by as a remedy of last resort. Moreover, interpretations.20 The need for the Director of Public Prosecutions the United Kingdom Supreme Court another cause of action has to file criminal charges against him recently reaffirmed that where been described as a ‘piggy-back’ in the Children’s Court before he damages are awarded this is not so requirement;21 that is, reliance on became ineligible to be dealt with much to compensate for losses but the Charter is supplementary.22 A in that jurisdiction amounted to rather “to uphold minimum human litigant can rely on an independent a breach of the right he had as a rights standards and to vindicate cause of action if the same conduct child to the protection of his best those rights”.26 gives rise to the Charter complaint. interests.16 There are many forms of relief To succeed in litigation in respect of In Bare v IBAC17 the Court made available under the Charter that a human rights breach there is no a declaration that the decision of perform the primary purposes of: requirement that the other cause of the Director of the Office of Police (1) bringing infringing conduct action be successful. It is arguable Integrity not to investigate Bare’s to an end; (2) vindicating rights allegation of mistreatment by police The terms of s 39(1) by declaratory relief or by orders

photo credit: photon (bigstock 310959226) officers, but instead to refer the directing a public authority to take What remedies are available under the Charter? complaint to the police for internal are difficult and have or refrain from taking action; and (3) investigation, was unlawful, of no given rise to multiple seeking to ensure future compliance force or effect, and contrary to with human rights standards under THE HON JUSTICE PAMELA TATE, JUSTICE OF THE COURT OF APPEAL interpretations. s 38(1) of the Charter. In addition, law by deterring repetitions of it made an order in the nature of unlawful conduct. that there is no requirement that the hen I have a conversation with a » Exclusion of evidence;7 certiorari quashing the decision There is a great deal more that other cause of action survive a strike- barrister that turns to Victoria’s and “remitted [the matter] to the could be said about the remedies » Habeas corpus;8 out application providing, of course, it Charter of Human Rights and Independent Broad-based Anti- that are available for breaches of is not merely a colourable attempt to Responsibilities,1 there is one » Declarations that decisions made were unlawful;9 and corruption Commission … for it to human rights under the Charter. attract jurisdiction. This issue has not question that is guaranteed to arise: make a fresh decision in relation to Nevertheless, this summary might » Orders remitting decisions to be re-made according to yet arisen for determination. what remedies are available under the correct course for dealing with assist a busy barrister. law.10 If you can seek a stay of proceedings the Charter? Quite properly, barristers are seeking to [Bare’s] complaint, under s 58 of at common law in respect of an act or 1. Section 1(1) of the Charter of Human protect their client’s interests and are keen to know how In the Barwon Prison Case11 the Court declared as the Independent Broad-based Anti- Rights and Responsibilities Act (2006) decision of a public authority, then, if the Charter might be used to support the relief the client unlawful decisions made by the Governor in Council that corruption Act 2011”. provides: ‘This Act may be referred to the circumstances also give rise to a as the Charter of Human Rights and needs. This is a response to that question. established a youth justice centre and remand centre at Where a remedy has been refused breach of human rights, you can also Responsibilities and is so referred to Section 38(1) of the Charter imposes an obligation on an adult maximum security prison, Barwon Prison. The it has not been on the basis that the in this Act’. W seek a stay of proceedings by reason public authorities to act compatibly with human rights Court also prohibited the Secretary to the Department remedy is not available for a breach. of that breach.23 Similarly, if you can 2. Certain Children (by their Litigation and, in making a decision, to give proper consideration to of Justice and Regulation from detaining children at a There are also other paths to relief Guardian Sister Marie Brigid Arthur) bring judicial review proceedings human rights. A contravention of this obligation renders place of detention that had been declared unlawful and that do not rely upon a breach by a v Minister for Families and Children seeking to quash a decision of a [No 2] (2017) 52 VR 441, 594 [535(c)], the conduct or decision unlawful. Under the Charter the directed the removal of one of the plaintiffs from Barwon public authority.18 government department, and obtain 598 [550], 607 [584]–[586], 608 [588(b) following remedies have been granted, or sought but Prison to a youth justice precinct.12 The Charter does not itself (c)] (the Barwon Prison Case). Where a mandatory injunction, then, in the refused on the merits, for a breach of human rights by a In Castles v Secretary of the Department of Justice13 the enumerate the remedies that are I have described the effect of an event of a human rights breach, you order, or its exact terms are quoted, public authority (that is, a breach of the obligation under plaintiff successfully sought declaratory relief against available. can seek that same form of relief under the source is the order made by the s 38(1) of the Charter): a refusal by the Secretary of the Department of Justice This is in part because there is Court. The decision (published or the Charter regardless of whether the under the Corrections Act 1986 (Vic) to enable a low- no Charter-specific cause of action. unpublished) may not itself include » Prohibitory injunctions;2 administrative law action succeeds. the terms of the orders made. security prisoner to continue with in vitro fertilisation However, rights can be relied on in a This is precisely what happened in the » Mandatory injunctions;3 treatment, consistently with her right under the Charter legal proceeding in Victoria if another 3. Barwon Prison Case (2017) 52 VR Barwon Prison Case.24 441, 594 [535(b)], 598 [550], 607 [585], as a person deprived of her liberty to be treated with cause of action is also relied on. » A permanent stay of a criminal prosecution;4 Section 39(3) expressly excludes 608 [588(b)(ii)]. See also Slattery v humanity and with respect for her human dignity.14 Section 39(1) of the Charter reads: Manningham CC (Human Rights) an award of damages for a human » Orders in the nature of certiorari quashing a decision;5 The court made a declaration that “IVF treatment [2014] VCAT 1442 where VCAT If, otherwise than because of this rights breach. This stands in ordered the Manningham City Council for the plaintiff’s infertility is both necessary for the » Setting aside of orders made;6 Charter, a person may seek any contrast to the remedies available to revoke a Proscribed Prohibited preservation of the plaintiff’s health and reasonable Person Declaration and directed it to

62 VBN VBN 63 provide training on the Charter to its was unlawful by reason of s 38(1) 16. Charter s 17(2). VICTORIAN BAR Councillors, Chief Executive Officer of the Charter of Human Rights and and Directors. Responsibilities Act 2006 (Vic)”. See 17. (2015) 48 VR 129. also Minogue v Dougherty [2017] VSC MEDIATION CENTRE 4. Baker (a pseudonym) v DPP [2017] 18. For example, see Taha v Broadmeadows news and views news 724 [97] where the Court declared Magistrates’ Court [2011] VSC 642 VSCA 58 (Baker). MEDIATION CENTRE that the decision of a prison officer (affirmed on appeal in Victoria Police 5. Haigh v Ryan [2018] VSC 474 [97]– to return the plaintiff’s mail to Toll Enforcement v Taha (2013) 49 VR [98]. The Court made an order “in the sender unlawfully interfered 1) where the Court quashed orders the nature of certiorari … quashing with the plaintiff’s right to receive of a magistrate that each plaintiff be the decision of the defendant … correspondence uncensored by prison imprisoned pursuant to s 160 of the withholding four Tarot cards from the staff and in making the decision Infringements Act 2006 (Vic) for failing plaintiff for error of law on the face of the officer failed to give proper to pay instalments on outstanding fines the record, being the failure to comply consideration to the plaintiff’s rights for traffic offences. The Court held with s 38(1) of the Charter in that to privacy and freedom of expression that the magistrate misinterpreted proper consideration was not given under the Charter. See further Bare v s 160. See also Nguyen v DPP [2019] to the human rights of the plaintiff IBAC (2015) 48 VR 129. VSCA 20 [103]–[107]. See further under ss 14 and 15 of the Charter”. 10. Matsoukatidou v Yarra Ranges Council Cemino v Cannon (2018) 56 VR 480, 524 The application for access to the (2017) 51 VR 624, 683 [183]. The [155] where the Court made orders Tarot cards was to be reconsidered in Court set aside orders of the County in the nature of certiorari quashing a accordance with law. Court and remitted the matter, which decision of a magistrate who refused an application by an Aboriginal person 6. PBU v Mental Health Tribunal [2018] involved two self-represented litigants, to a different judge for hearing and to transfer criminal proceedings to the VSC 564 [283]. The Court set aside the Koori Court Division of the Magistrates’ orders of VCAT, and the earlier orders determination according to law. See also Bare v IBAC (2015) 48 VR 129. Court. The magistrate, not being a public of the Mental Health Tribunal, that authority, was not held to have acted Purpose-built mediation and two persons be subjected compulsorily 11. (2017) 52 VR 441. in breach of s 38(1) of the Charter but to electroconvulsive treatment. See to have committed “errors of law on also PJB v Melbourne Health (Patrick’s 12. The relevant terms of the order were: the face of the record being the failure conference rooms in the heart Case) (2011) 39 VR 373, 456 [374]– “1. The two Orders in Council … being to properly exercise the discretion [375], where the Court set aside the decisions of the Governor in Council conferred by s 4F(2) of the Magistrates of Melbourne’s legal precinct. an order of VCAT made under the that established a youth justice centre Court Act 1989, both in terms of the Guardianship and Administration Act and remand centre at the Grevillea Unit provision itself and the effect of s 6(2) 1986 (Vic) to appoint an unlimited of Barwon Prison (Grevillea Precinct) as (b) of the Charter of Human Rights and administrator over a disabled person’s a remand centre and as a youth justice Responsibilities 2006 on the exercise of estate. centre under s 478(a) and (c) of the the discretion”. The effect of s 6(2)(b) Children Youth and Families Act 2005 related here to the right of the accused 7. DPP v Natale (Ruling) [2018] VSC (CYF Act) respectively, were unlawful 339. The Court excluded evidence to equal and effective protection against under s 38(1) of the Charter of Human discrimination in the context of court The Victorian Bar knows how important the mediation process of admissions under s 138(1) of the Rights and Responsibilities Act (the Evidence Act 2008 (Vic) on the ground procedures, including through the use Charter). 2. The Secretary is prohibited of the Koori Court as a special measure is. We’ve put our experience and knowledge into creating the that the evidence had been improperly from detaining children at a place of and unlawfully obtained, including by designed to protect against indirect detention that has been declared to be discrimination on the basis of race. right space to support parties through mediation. reason of a breach of the Charter. The unlawful. 3. The transfer decision made relevant paragraphs of the ruling are: … under s 484(1) of the CYF Act … to 19. Emphasis added. [101] Under s 138(1), the defence cause the removal of Marco Gillespie- has established that evidence of Jones [a pseudonym] from Parkville 20. There are two principal competing WE OFFER the admissions was improperly to the Grevillea Precinct was unlawful constructions of s 39(1): see Bare v and unlawfully obtained. The under s 38(1) of the Charter. … 6. … the IBAC (2015) 48 VR 129, 258–9 [394]. prosecution has not established that defendants by their employees, agents, the desirability [of admitting the 21. Dame Sian Elias, ‘A Voyage Around delegates, or howsoever otherwise be, Statutory Protection of Human Rights’ • Modern neutral decor with abundant natural light evidence] outweighs the undesirability and are, restrained – (a) from detaining, of admitting the evidence, especially (2014) 2 Judicial College of Victoria or continuing to detain, at the Grevillea Online Journal 4, 14. • Business room and printing facilities having regard to the conduct of the Precinct, any person in or deemed to be police, which breached the right of in, the Secretary’s legal custody; (b) from 22. See Bare v IBAC (2015) 48 VR 129, 257 • Reception and administration services the accused to an interpreter [under s detaining Marco Gillespie-Jones at the [392]. 464D(1) of the Crimes Act 1958 (Vic)], Grevillea Precinct, who must forthwith • Fully equipped kitchen with tea & coffee 23. Baker [2017] VSCA 58. breached the obligation of police to be removed to detention at either making facilities obtain an interpreter and defer the Parkville or Malmsbury Youth Justice 24. In the Barwon Prison Case none of the questioning until one was present, Precincts”. administrative law grounds succeeded. • After hours operation available and breached the obligation of police under the Charter to ensure that the 13. (2010) 28 VR 141. 25. R (Greenfield) v Secretary of State for • Video and teleconferencing facilities accused received equal and effective the Home Department [2005] 1 WLR 14. Charter s 22. The Court also ordered protection against discrimination. 673, 684 [19] (Lord Bingham). • Central location within Melbourne’s legal and [102] Evidence of the admissions will that the “Plaintiff has a right pursuant therefore be excluded. to s 47(1)(f) of the [Corrections Act 26. D v Commissioner of Police of the business precinct 1986 (Vic)] to such treatment while Metropolis [2019] AC 196, 221 [64] 8. Antunovic v Dawson (2010) 30 VR 355, she is in the custody of the First (Lord Kerr with whom Baroness Hale • Secure free Wi-Fi 358 [4]. The Court ordered that the Defendant, subject to the Plaintiff and Lord Neuberger agreed, quoting applicant be immediately released paying the costs of the treatment from Lord Brown in Van Colle v Chief from a Community Care Unit. (including costs of medications, Constable of the Hertfordshire Police courier charges, blood tests and any [2009] AC 225, 285 [138]). 9. Burgess v Director of Housing [No 2] extraordinary attendance of medical [2015] VSC 70 [5]. The Court declared practitioners but excluding any escort that a “decision of the First Defendant or transport costs)”. [the Director of Housing] to apply … for a warrant of possession … 15. [2017] VSCA 58. vicbarmediation.com.au P 03 9225 6930 E [email protected] Level 1 & 3, Chambers, 180 William Street Melbourne 3000 64 VBN Litigation - Building (6%) Revenue (0%) Litigation - Building (9%) Revenue (0%) Other (8%) Property/Lease (1%) Other (3%) Property/Lease (0%) Litigation - Property/Lease (9%) Commercial (3%) Litigation - Property/Lease (9%) Commercial (2%) Litigation - Personal Injury (11%) Criminal (4%) Litigation - Personal Injury (13%) Criminal (1%) Family (11%) Wills/Estates (6%) Family (6%) Wills/Estates (3%) Litigation - Commercial (41%) Litigation - Commercial (5%) news and views

Settlement of litigation Professional negligence claims at the Bar Other problems with conduct of litigation

news and views news Failure to advise/consider strengths and weaknesses of claim/defense

LEGAL PRACTITIONERS’ LIABILITY COMMITTEE Dissatisfied litigant Problems with pleadings rom time to time, barristers ask LPLC about Settlement regrets the most common causes and areas of claims. Errors and omissions in advisory opinions Settlement regrets most often happen in personal As the compulsory professional indemnity injury litigation but also appear in commercial and Failure to act/appear insurer for Victorian barristers since 2005, we family law litigation and frequently involve ‘door of are well placed to answer the question. Delay prejudicing client's case the court’ settlements. Typically, the explanation for the While the incidence of claims against barristers is recommendation to settle includes concerns about aspects Fee claim prompting counterclaim Fmuch lower than for solicitors, there are some regularly of the client’s credibility. These are legitimate concerns that occurring themes in the claims profile for barristers that Other an advocate needs to warn a client about, although ideally deserve risk attention from practising barristers. this would not happen for the first time at the door of the Not attributable Most risky area of practice court, where a client may feel pressured into settlement Errors concerning identification and joinder of parties with little time to consider the matter carefully. Commercial litigation has consistently been the most Acting without instructions/authority numerous (42 per cent) and costly area of claims for No authority to settle barristers. This is followed by personal injury litigation. Allegations against arbitrator/mediator/court expert The common scenarios in ‘no instructions to settle’ We have also seen a slight increase in the family law allegations involve more than one client, typically a Acting with a conflict of interest/duty area which is consistent with the claims against family husband and wife or business partners, where one says law solicitors. Defamation later they didn’t give instructions to settle. It is important 0 20 40 60 80 100 120 The errors that count to confirm instructions from all clients or confirm that Mistakes most frequently arise around the settlement one client has the authority to consent to settlement. of litigation relating to either settlement regrets, no Whether instructions to settle were given will turn on the The best evidence will be the client’s signature on the terms of settlement, or a authority to settle, allegations of unfair pressure to settle evidence. Where there is no written evidence of instructions, or problems with release documentation. it becomes harder to defend. The best evidence will be copy of the draft orders to be handed to the court..

Fig. 1 Number of Claims by Area of Law 2005-2019 Fig. 2 Number of Claims by Area of Law 2005-2019 the client’s signature on the terms of In Studer v Boettcher [2000] future claim. settlement, or a copy of the draft orders NSWCA 263, the court accepted that Finally, the release sometimes does to be handed to the court. ‘Signing it is appropriate for lawyers to put not deal with how the underlying up’ a client in this way is the best risk pressure on clients to do what is in proceeding is to be disposed of, management to avoid allegations of the client’s best interest. Persuasion leaving it open later for a party to breach of authority to settle. is acceptable—even forceful pursue the matter further. persuasion—so long as it is devoid Late night or ‘door of the court’ Unfair pressure to settle of self-interest. However, a lawyer is settlements often contribute to these Clients often allege that a barrister not entitled to coerce a client into a errors. Try and build in time to review pressured them to settle by: compromise, even if objectively it is settlement deeds with fresh eyes. » swearing at them in the client’s best interests. Think » intimidating them through raising carefully about the impact of your Stay vigilant one’s voice, finger-pointing, talking behaviour on the client. While many barristers will never over the client, or in one case, wig- face a professional indemnity claim, throwing Problems with releases it is important for everyone to stay » using legalese, instead of plain- Sometimes there’s a simple mistake vigilant, particularly if you practise in English explanations in the drafting of the release so the higher risk areas. Barristers of all » behaving impatiently and rudely it doesn’t accurately record the seniority levels need to keep in mind » threatening to abandon them agreement reached or records it in a the issues raised in this article when Litigation - Building (6%) Revenue (0%) Litigation - Building (9%) Revenue (0%) » departing the settlement way that it is difficult to implement. dealing with settlement to avoid Other (8%) Property/Lease (1%) Other (3%) Property/Lease (0%) conference before it is finished. In some claims the release is either becoming a professional indemnity Litigation - Property/Lease (9%) Commercial (3%) Litigation - Property/Lease (9%) Commercial (2%) These behaviours can leave a lasting drafted too widely to prevent a future statistic. Litigation - Personal Injury (11%) Criminal (4%) Litigation - Personal Injury (13%) Criminal (1%) impression on clients and fuel claim that the client intended to Family (11%) Wills/Estates (6%) Family (6%) Wills/Estates (3%) allegations of undue pressure and bring, or it is drafted too narrowly Litigation - Commercial (41%) Litigation - Commercial (5%) coercion. and does not eliminate a possible

66 VBN VBN 67

Settlement of litigation

Other problems with conduct of litigation Failure to advise/consider strengths and weaknesses of claim/defense

Dissatisfied litigant Problems with pleadings

Errors and omissions in advisory opinions

Failure to act/appear

Delay prejudicing client's case

Fee claim prompting counterclaim

Other Not attributable

Errors concerning identification and joinder of parties

Acting without instructions/authority Allegations against arbitrator/mediator/court expert

Acting with a conflict of interest/duty

Defamation 0 20 40 60 80 100 120 news and views

online. The raw statistics tell a story Rider Problem’, which is said to Free access to legal information - Are we of success: occur when those who benefit from » over 800 databases of Australasian resources, public goods, or services news and views news legal information: legislation, case of a communal nature do not pay for taking a basic civil liberty for granted? law, treaties, law reform reports, them. Operating as a not-for-profit journal articles; organisation, AustLII is reliant on BY ANTHONY PERL AND RICHARD HUNTER* » over 2 million documents donations to maintain and build interconnected by over 80 million its service. hypertext links; Andrew Mowbray says of AustLII’s s the Australasian Legal education is the fundamental precondition for political » about 700,000 page accesses each funding model: “AustLII was created Information Institute development, democracy and social justice.” day (230 million per year); to ‘free the law’ in Australia from the (AustLII) approaches its Education is the dissemination of knowledge, which » among the top 1000 most accessed various monopolies restricting it up 25th anniversary, readers then empowers and promotes more effective participation websites in Australia. to the mid-90s, and to innovate may be surprised to learn in society. Knowledge is more than just information; it But these raw statistics mask a in the provision of legal that this ubiquitous legal must include facts and skills acquired through experience. deeper way in which AustLII has information systems. We resource is a not-for-profit organisation, dependent on There are consequences for failing to value the difference changed the legal landscape in believed that it would be in regular donations to maintain its service. This raises between knowledge and information. Australia. AustLII revolutionised the interests of institutional questions about the value of free information. Do we What of information about the law? access to justice and the rule of stakeholders to collaboratively The AustLII take it for granted? What does AustLII need from us to “Free access to the law is a human right. It is something law, by making legal material freely support a free access model.” frontpage, 1997 maintain momentum? we must never take for granted, especially where A available to anyone with an internet In Victoria, The Victorian Bar In this digital age, the lines between information and we value transparency and democracy.” This was the So, who does pay for connection. Association is an ISP provider for knowledge are becoming increasingly blurred. The risk is underlying rationale that led to the creation of the AustLII? Newer generations of lawyers have all barristers in Victoria. It has been undervaluing the vital role knowledge plays in ensuring Australasian Legal Information Institute (AustLII), says been brought up on technology and for many years the largest single “Donations need to pay for our civil liberties. Access to and understanding the law Founding Co-Director, Andrew Mowbray. on the ability to access and deliver identifiable user of the AustLII the expectation that AustLII is one of those foundational necessities to maintaining a Prior to 1995, there was no generally available free information to their mobile service. AustLII identifies over 2 remains free. Our struggle is the civil society. free access to case law or legislation in Australia. devices. They expect AustLII will be million ‘hits’ a year from the vicbar. expectation we will always be there, “Knowledge is power”, is an often-quoted line Government printers provided legislation for purchase there with little thought of what is com.au servers. without truly valuing the depth attributed to Sir Francis Bacon. In more contemporary and commercial publishers sold law reports. Lawyers involved in making the information But yesterday’s revolutionary of information provided. Imagine times, Nelson Mandela stated, “Education is the most relied on access to an adequately resourced law library, available. They do not consider who innovation, particularly if it becomes the challenges and costs of finding powerful weapon which you can use to change the either located on their own premises or at a court, is paying for it. as successful and ubiquitous as such a comprehensive alternative. world.” Bringing these two ideas together, in an editorial professional association or university library. For many There is an underlining current of AustLII has become, can seem It would place significant barriers published in 2012 by then editor-in-chief of Deutsche new barristers or small firms, maintaining a library was a need for information to be freely familiar and forgotten, assumed to on all citizens if they had to pay for Welle, Ute Schaeffer writes, “Knowledge is power, and an almost unaffordable cost. available. However, where something be there and available, because it has access to a service that provided such For the general public, access to legal information was is free, someone is always absorbing always been there. comprehensive and integrated legal even more fraught. One had to purchase legislation from the cost, be it through a direct Is AustLII being taken for granted? information resources,” says Chung. government bookshops, visit a state library and trust in financial outlay or a voluntary labour Does that mean free access to the AustLII continues to plan the media to fairly and accurately report the outcome of force. The media sector tends either law is taken for granted? Does that strategically for its future. Its goal is to court cases. to adopt a user-pays subscription mean our civil liberties are taken for be recognised and accepted as critical The advent of the World Wide Web in 1993 enabled the model, or politely to request a fee. granted? national legal research infrastructure, dissemination of content on a much broader scale. Legal Most media (outside of those paid for So, who does pay for AustLII? providing comprehensive legal academics with an interest in law and technology realised with taxpayer funding) are covered “AustLII asks all those who use information, integrated through the possibilities for the publication of legal materials. with advertising to subsidise costs. its services to make an annual the use of cutting-edge information In 1995, AustLII, under the co-direction of Graham AustLII has been providing free contribution that reflects the value technology, enabling free and effective Greenleaf and Andrew Mowbray, was developed as a joint access to an ever-growing resource they receive from it”, says Philip access to law for the community and facility of the Faculties of Law at the University of New of reliable legal information for Chung, AustLII’s Executive Director. supported by a secure and sustainable South Wales and the University of Technology Sydney. almost 25 years. About a decade ago, “We cover our costs but we don’t really funding base. Mowbray explains, “From inception our intention the AustLII Foundation Limited, a earn enough of a surplus to build a “Imagine if we had the financial in creating AustLII was to provide free access to the not-for-profit company limited by strategic reserve fund that will secure resources to achieve our ambitious Australian public to the essential legal information guarantee with charitable objectives, our existence in the long term.” goals,” says Philip Chung. “We would needed for the rule of law and democracy to function was established to sustain the The Victorian Bar makes a regular be an Australian innovation the envy effectively. In doing so, we believed we would also provide operations and maintenance of annual contribution. List A Barristers, of lawyers around the world.” a service of great value to academic research, the legal AustLII’s Australian databases, and Dever’s List and Greens List also profession, the business community and to courts and *Anthony Perl is an AustLII to secure a long term funding base contribute. There are also generous government as well.” communications consultant and through donations from users. donations from a number of individual Since that time, AustLII has grown to be the largest Richard Hunter is the AustLII It could be argued that the AustLII barristers. But the truth is that the Australian provider of free access legal information development manager. Foundation suffers from the ‘Free majority of users are not donating.

68 VBN Feature on AustLII in The Australian, November 9, 2005 VBN 69 BAR and etiquette of the Bars of England and Ireland, and did Higinbotham being the goldfields’ correspondent for The press, largely under the much to shape the character of the Victorian Bar. several months leading up to the . influence of liberal barrister/journalists, The etiquette of the Bar restricted the type of work When Michie sold the Herald, Higinbotham became condemned Governor Hotham and Lore barristers could engage in while waiting for briefs to editor of The Argus, resigning in 1859 after conflict arrive, or even while waiting to be admitted. It was with The Argus’s increasingly conservative owners. thousands rallied in Melbourne in the completely unacceptable for a barrister to soil his hands Aspinall, like Higinbotham, had supported himself as a ‘interests of liberty’. with commerce. Journalism, however, was considered parliamentary reporter before his admission to the Bar acceptable and many of the new arrivals worked for in London in 1853. He came to Victoria in 1854 to be chief on 22 February 1855. Stawell, and the acting Solicitor- one of Melbourne’s three daily newspapers, The Argus, parliamentary reporter of The Argus, though he soon General, Robert Molesworth, prosecuted for the Crown. The Bar and The Age, or the Melbourne Herald. The most notable of moved on to join Michie and Higinbotham at the Herald. Richard Ireland, Henry Chapman, Butler Cole Aspinall, these were Archibald Michie, Butler Cole Aspinall and The best-known incident of the gold rush era was Archibald Michie, Thomas Cope and Joseph Dunne, all . Michie and Aspinall combined the skirmish at Eureka Stockade in December 1854 and recent arrivals from England or Ireland, appeared on the Eureka journalism with work at the Bar, but Higinbotham, while its causes have been debated endlessly by historians. behalf of the prisoners. admitted to the Melbourne Bar, worked primarily as a Was it the result of a mass movement of miners seeking John Joseph, a 24-year-old African American, was journalist for most of the 1850s. Michie was a follower of democratic rights or a tax revolt by a small group who tried first, with Chapman and Aspinall conducting his Treason Trials John Stuart Mill and the ‘philosophical radicals’, and had had not shared in the riches from gold? Whatever the defence. Stawell set out the charges against him: making sufficient funds when he arrived in Melbourne to buy the origins of the conflict, after the event public opinion was ‘war against the Queen, with intent to subvert authority’; Herald to advance his political views, calling for a liberal decidedly on the side of the diggers. The press, largely intending to ‘injure the Queen and to force her to DR PETER YULE AND DR GONZALES VILLANUEVA constitution for Victoria, and for concessions to lessen under the influence of liberal barrister/journalists, change her counsellors’; and attempting ‘to compass and discontent on the goldfields. The venture was a financial condemned Governor Hotham and thousands rallied deprive the Queen of her authority in this colony’. The n late 2016 (VBN Issue 160), the disaster and Michie was forced to sell the Herald in 1856. in Melbourne in the ‘interests of liberty’. Despite this charges constituted high treason, for Stawell argued that commissioning of a new history of the George Higinbotham and Butler Cole Aspinall both reaction, William Stawell, the attorney-general, charged ‘conspiracy’ and ‘armed insurrection’ were ‘accompanied Victorian Bar was announced, almost 50 shared Michie’s liberal political views and Michie 13 alleged leaders of the Eureka revolt with high treason. and preceded by overt acts which had a public object’. years after the publication of A Multitude Of employed them both as journalists on the Herald, with The trials began before Chief Justice William a’Beckett For the prosecution, Trooper Henry Goodenough Counsellors: A History of the Bar of Victoria by Sir Arthur Dean. The author, Dr Peter Yule and his research assistant, Dr Gonzales Villanueva, have worked steadily on the project ever since, with publication anticipated for 2021. A taste of their vivid and rich writing is given in the extract below which recounts the trials of theI alleged leaders of the Eureka Stockade revolt and their defence by six barristers, all newly arrived from the Bars of England and Ireland to the infant Victorian Bar. Against the odds, but decidedly with the tide of popular opinion, the accused were acquitted, and the barristers’ reputations were made. However, for some of the barristers, their good fortune did not last.

he discovery of gold in 1851 attracted immigrants to Victoria from around the world. Among them was young barrister Brice Bunny, who hoped to make a quick fortune on the goldfields before returning to the Bar in London. After many months of hard but unrewarded labour, Bunny’s funds were running low and on 28 September 1853 he was admitted to the Victorian Bar, where he built a lucrative practice before becoming a County Court judge Tin 1873. Before 1851 only 13 barristers had been admitted in Melbourne, but Bunny was one of 67 English and Irish barristers who came to Victoria in the following five years. Only a handful tried their luck on the goldfields, with most seeing the Victorian Bar as a more fruitful field for advocacy than the crowded Bars of England and Ireland. The immigrant barristers brought with them the ethics 13 men on trial at the The Eureka Treason trial: depicted in the age, March 10, 1855,

image courtesy of the age courtesy image page 6. (L-R): 1. Timothy Hayes 2. James McFie Campbell. 3. Raffaello Carboni 4. 70 VBN Jacob Sorenson 5. John Manning 6. John Phelan 7. Thomas Dignum 8. John Joseph 5. VBN 71 James Beattie 6. William Molloy 7. Jan Vennick 8. Michael Tuohy 9. Henry Reid recalled a meeting at , where prisoner. Chapman reminded them the men had the right to defend their proceeded’. The question for the Aspinall as a benevolent gentleman together, with Michie, Ireland, those gathered vowed to ‘take the of the four charges and argued that house by force of arms, and that is all jury to determine was whether the and a scholar, though he made Cope, Dawson, Dunne, and Aspinall law into their own hands’ under the none of those intentions had been the incident amounted to. Chapman’s prisoner was guilty of high treason. some eccentric observations of his appearing for the defence. In his

Southern Cross flag, and volunteers proven. ‘What was the character of the speech was met with loud applause A’Beckett explained the legalities courtroom behaviour: address to the jury, Michie said the bar lore stepped forward to take up arms. evidence, as to compassing or levying from the gallery. around assemblages, for the learned trials had become ‘weary, stale, flat, If now and then you fumble among Another trooper testified: ‘I did not war, against the prisoner at the bar?’ In his address, Butler Cole Aspinall counsel had ‘perverted’ the subject. dull, and unprofitable’. The now all

bar lore papers, whilst addressing the jury, that see any other black man’ other ‘than The Southern Cross flag resembled drew upon the prejudices around Treason was an ‘inference from the too familiar matters were raised is perhaps for fear it should be observed the prisoner’. A private of the 40th one used by the Anti-Transportation Joseph’s race and class to argue the other acts when proved’, and anyone throughout the trial. It took the that you have no beard; in order that regiment claimed he saw Joseph, League, which Stawell himself had case was ridiculous: participating in insurrectionary jury seven minutes to find all the proper attention may be paid to your ‘firing, and saw Captain Wise fall marched under; a different flag did not assemblages with the intent of prisoners not guilty. The drama Gentlemen, there he is accused of learning, which is that of a grey-headed instantly’. Chapman objected that in and of itself constitute sedition; the carrying out its objectives was guilty. was over. an intention to subvert the British man; and though it may be said, that the an individual bullet could not be public meetings were for the purposes Justice a’Beckett carefully described The treason trials were Stawell’s Constitution and depose Her Majesty, Eureka Stockade was hoggledy enough, sworn to, but this was countered of resisting the licence system; people the evidence that demonstrated biggest failure, although they did set up here as a sort of political Uncle yet your pop, pop, pop, was also doggledy. by the Judge, who stated that the armed mobilisation, and stated that not ruin his career. On the other Tom, and you must look upon him, direction the gun was pointed was an Butler Cole Aspinall it did not matter if the prisoner fired hand, the successful defence of the I suppose, either as a stupid negro, important point. the shot that killed Captain Wise; that Eureka accused made the reputations a down south man, who had no Justice a’Beckett On the second day of the trial, he was present and bore arms ‘would of several members of the young conception of treason in his head, or … another private in the 40th regiment be quite sufficient’. There could be Victorian Bar. Archibald Michie and that he had some idea, that though a testified that he was a few yards no doubt that Joseph was the man Richard Ireland became the leaders negro, in any British possession he was from John Joseph when he saw him whom witnesses saw at the stockade. of the Bar and were appointed entitled to his liberties. ‘discharge one barrel of a double- Having almost demanded a guilty Victoria’s first QCs in 1863. Michie barrelled gun’ at Captain Wise. For the prosecution, Stawell argued verdict, Justice a’Beckett left the died a wealthy man but, although John Donnelly, also a private in the the evidence was straightforward. decision to the jury. Ireland’s income was huge, it never 40th, testified that he was ‘sure the The stockade was built for the The jury took only 30 minutes matched his expenditure and he prisoner is the man’ who discharged explicit purpose of sedition and to find the prisoner not guilty. The died penniless in 1877. Henry the weapon. Cross-examining, rebellion, and before the Riot Act Argus reported a ‘sudden burst of Chapman combined his career at Chapman said: ‘Recollect this is a could be read a volley was fired from applause arose in the court when the Bar with politics until he was serious question, affecting the life the stockade. Six witnesses identified the verdict was declared’, and The appointed a judge in New Zealand of the prisoner. He has a different the prisoner as being there, four of Age declared it was a ‘complete in 1864. A renowned wit, Butler skin to yours, but his life is at stake.’ them testified that the prisoner had defeat’ for the government and Cole Aspinall rose to be a leader Donnelley maintained he was ‘quite fired a weapon, and one witness ‘the remaining cases are virtually of the Bar, but drank himself to an sure’. A sergeant in the 40th testified claimed the shot that killed Captain decided’. early death. Joseph Dunne became that diggers were being drilled and Wise came from the prisoner’s The government refused to a County Court judge but after marching like soldiers. Under cross- gun. Though people have a right to change course and, one by one, the three years returned to the Bar. His examination, he said: ‘I never saw have a right to assemble, without arms, assemble, said Stawell, they do not remaining prisoners were tried. practice never recovered and in 1877 a flag similar to the Southern Cross to ‘resist the law’; licence burning have the right to take up arms. John Manning was represented by Summing up, a’Beckett stated that he died in a Fitzroy lodging house before the disturbance. There were concerned the individual, and was not They assembled with arms and Archibald Michie and Joseph Henry Carboni’s overt actions constituted after drinking two bottles of brandy plenty of flags flying about, but this a seditious act; the attack was a sudden, erected a stockade with the object Dunne. Again, it took the jury just treason and he hoped that the jury and a dozen pints of stout. Thomas was a very remarkable flag.’ hostile engagement, ‘just as a street riot of levying war. half an hour to acquit. Timothy would not be influenced by previous Cope also became a County Court Thomas Allen was called and is caused very often from the sudden Justice a’Beckett summed up Hayes, who was regarded as the verdicts. But again the jury returned judge. He avoided the temptations of cross-examined by Molesworth, the meeting of two or three individuals, at great length to disabuse many ringleader, was next to go on trial, a not guilty verdict. Carboni recalled, insobriety, but not of the turf, dying solicitor-general: and the after joining of a crowd’; the ‘erroneous principles’ put forth by defended by Richard Ireland. Again, ‘I was soon at the portal of the of bronchitis after catching a cold at Crown’s witnesses were spies, and the defence about the law of high the jury returned a speedy acquittal, Supreme Court, a free man. I thought Flemington in November 1891. What is your Christian name? could not be trusted as they were treason. He dismissed many of the and Hayes was carried through the the people would have smothered me The Eureka treason trials gave Witness: Yes, that is the prisoner. deceptive by nature; the witnesses’ defence’s arguments: that those streets by a triumphant crowd. in their demonstrations of joy.’ liberal and progressive causes in testimonies could not be corroborated at the stockade could act in self- On 21 March, Raffaello Carboni Nine prisoners remained. The Victoria a substantial boost, helping What is your name? and their recollection of the substance defence; that they were justified faced trial, defended by Ireland cases followed the same tired routine, usher in a period of radical reforms Witness: No, I have no pension at all. of the speeches and the attack were in committing such acts because and Aspinall. In his memoirs, the with the same witnesses, and Stawell such as universal male suffrage, the inconsistent, vague, and incomplete; of lawful licence hunting; and that flamboyant Carboni described ‘seemed exhausted and indisposed’. secret ballot and the Land Acts of the The witness had fought at Waterloo the prisoner was charged with high colonial laws differed to the laws of Ireland as a strong, eloquent ‘You are very hoarse’, The Age 1860s. From the perspective of the and offered to sell his military skills treason, not the murder of Captain Great Britain. A’Beckett regretted barrister, whose ‘whole head and crowed after the fifth acquittal, Victorian Bar, the successful defence to the diggers. The offer had been Wise; there was some justification for that these topics were introduced, strong-built frame tell that he is ‘you are doing more in a week to of the Eureka accused gave the Bar refused. the defence made by the parties inside for they had nothing to do with the ready to settle at once with anybody; bring the Government into contempt far greater progressive credentials The defence did not call witnesses, the stockade, as the attacking troops case, but were ‘exhibitions of neither either with the tongue or with the than The Age could do in a year.’ in the eyes of the public than were but Chapman and Aspinall both did not state their business, read the good taste nor good law on the part fist’. He had the ability to ‘exercise a On Tuesday, 27 March, the justified by the personal views of addressed the jury on behalf of the Riot Act, or produce warrants; and that of the counsel from whom they potent spell over a jury’. Carboni saw remaining six prisoners were tried most barristers. image courtesy of state library of victoria collection (h29505). collection of victoria library of state courtesy image 72 VBN VBN 73 back of the lift

The result sometimes felt harsh, but in Launceston and graduated from been held that he was briefed for no-one walked out of Justice Cronin’s the University of Tasmania in both plaintiffs and defendants court feeling they had received 1995. Like many young Tasmanian throughout his career. back of the lift back anything less than a fair hearing. graduates in those pre-MONA days, His success was based on his In return, he received so much his Honour moved to “the mainland”, meticulous preparation for each more than court-room courtesy. commencing his legal career in case, together with his unwavering He earned respect. Victoria in 1996. His Honour worked integrity. His Honour’s preparation Off the Bench, his former as a solicitor until 2003 when he was marked by an initial phase of associates speak of a judge who signed the Bar Roll. extreme pessimism about the case OF was always first into chambers in Those who have come to know his he had to argue, which could be very THEliftBack OF the morning, who maintained an Honour in his years at the Bar will alarming to first-time instructing In this Back of the lift section of the Victorian THE liftBack open door policy, who took the time know him as always immaculately solicitors, as he sought to understand Bar News, the Bar acknowledges the to debate different perspectives presented but this has not always all aspects of the case. His need to appointments, retirements, deaths and other Adjourned Sine Die on a case, who went out of his way been the case. Before coming to prepare included a protracted habit honours of past and present members of our Bar. to mentor those who had the good the Bar, his Honour thought that it of role playing possible scenarios in fortune of working for him. It is would be a good idea to cycle—on a the case, which could alarm not just said that he never passed up an mountain bike—from Melbourne to first-time instructing solicitors. opportunity to determine an ex parte Sydney—in the middle of summer His work on “both sides of the Adjourned Sine Die Family Court application on an urgent listing. He with little but the clothes that he had fence” is indicative of his Honour’s Family Court sat in the duty list by choice. He was a on him plus a map. Unfortunately conformity to the highest and best The Hon Paul Joseph Cronin 74 judge who worked hard and brought for his Honour, the map only standards of the Bar. In his welcome The Hon Paul Joseph Cronin the best out of others in doing so. covered those sections of the road speech, he expressed the personal His presence on the court will be up to Victoria; New South Wales was difficulties involved in one day Silence All Stand Bar Roll No 3318 missed. With a great deal of thanks, unchartered territory. representing victims of industrial County Court of Victoria n early 2007, the late Noel Ackman QC introduced we wish him the very best in his Nevertheless, his Honour (together negligence and then soon after His Honour Judge Arushan Pillay 75 the recently appointed Justice Paul Cronin to a CPD retirement. with Patrick Over, also a member having to cross-examine a victim Her Honour Judge Rosemary Carlin 76 seminar, describing his Honour’s appointment as “an JOHN WERNER of the Bar) took off in the middle of on behalf of an insurer defendant. enlightened choice”. Twelve years later, upon Justice summer, wearing nothing but shorts Despite the difficulties, his Honour Vale Cronin’s retirement from the Family Court of Australia, and a t-shirt the front of which performed both tasks to his very high Leo La Fontaine 77 those words seemed something of an understatement. proclaimed, “Vegetarianism won’t professional standards. Stanley (Stan) Barclay Spittle 77 From the moment he took office, Justice Cronin set the standard cost the Earth”. Despite extreme At the Bar, he gave lengthy service for conduct on the Bench. He heard argument before forming Fred Tinney 78 weather, that t-shirt was worn every to the Bar’s legal systems and pro bono a view. He heard argument from both sides before forming a Silence All The Hon Kevin John Mahony AM 78 day on the journey up the Hume committees. He was also a member view. Even when he had read the papers in advance, his Honour Christopher Smale 79 Stand Highway and beyond. Fortunately, the of the race, ethnicity and cultural understood that counsel (who had actually met the clients) Bryan Maurice Dwyer 79 I journey was ultimately successful, diversity working group at the Bar. sometimes had the advantage of a perspective which he lacked. John Philbrick QC 80 and they made it to Sydney. Despite his Honour’s complete As long as counsel could engage him in a polite Socratic dialogue, Joan Rose Dwyer OAM 80 Perhaps, because of, or in spite of, devotion to his work, he was able to any well-prepared argument received a generous and appreciative Wallace Gervase Meehan 81 this adventure, his Honour continued take time off for virtually all school audience. Where the argument necessitated debate on subject Peter Fox QC 81 to ride his bike throughout his holidays to spend time with his matter outside the Family Law Act—typically within the realm of The Hon Richard Ross Sinclair County Court of career at the Bar, giving rise to other family, including his two young sons. equity, taxation or the Corporations Act—it was a good day in court Tracey AM RFD QC 83 mishaps, which included a broken Further, and beyond the normal for all concerned, or at least those who had done their homework. Victoria collar bone at the corner of William school holidays, his Honour found Victorian Bar Readers 84 He was sympathetic to the inherent difficulties that counsel and La Trobe Streets. Like any keen time during his career at the Bar who appeared before him routinely faced, having to work with Victorian Bar Council His Honour Judge cyclist, the focus of his Honour’s to take two six-month breaks: in affidavit material that did not bear their fingerprints. He also concern immediately post-accident Seattle and in his wife’s homeland, 2019-2020 86 appreciated that counsel did not—in a jurisdiction beset by difficult Arushan Pillay was not for his health, but for the Macedonia. personalities—have the prerogative to impose the wisdom of good Bar Roll No 3648 New Silks Q&A 89 welfare of his bike. The County Court will be better off advice upon clients or instructors who were utterly uninterested in udge Arushan Pillay was Upon coming to the Bar in with his appointment. His Honour hearing it. appointed to the County 2003, his Honour prospered is empathetic; all parties will feel as His Honour never needed so much as to raise or sharpen his Court of Victoria on 16 August and developed a diverse and though their case has been listened voice to impose his presence. He was above that. He could— 2019 after practising as a barrister for thriving practice. He conducted to and dealt with according to justice and did—maintain a pleasant courtroom through intellect, a J 16 years. the majority of his work in the and the law. sophisticated knowledge of the law and force of personality. His Honour spent his early life areas of occupational health and We wish him well in his time on the His Honour’s judgments were characterised by convenient, hip- in South Africa and migrated with safety, administrative law and County Court Bench. pocket summaries of the relevant law followed by clear, unequivocal his mother to Launceston at the age personal injury. It is a testament MATTHEW BROMLEY, PATRICK OVER, findings. He called a spade a spade and made orders accordingly. of five. His Honour was educated to the esteem in which he has MIGUEL BELMAR

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Her Honour Judge demands of long lists and each day delegate of the Australian Securities Baird & McGregor in Ballarat. Fred came to the Bar in 1962 array of the equipment so essential listened to the chorus of human Commission in the early 1990s. Stan came to the Bar in 1969 and and read with Jim Forrest. He was for any pipe smoker. The pipe was— Rosemary Carlin suffering and misfortune. Whilst Leo came to the Bar in 1993, at read with the late Frank Costigan on Foley’s List. He developed a in that age—a more socially acceptable back of the lift back Bar Roll No 2603 justice was blind in her court, her the age of 56. He read with Philip QC. He developed a substantial substantial common law practice and way of smoking, but plainly was not Honour’s empathy and goodness of Tribe and established a practice in and successful practice in workers’ also assisted in a number of Royal without risk. met Judge Rosemary Carlin heart sometimes wept through her administrative law (merits review), compensation and personal injuries. Commissions. He was appointed a Fred had a decent grasp of anatomy nearly 30 years ago in the then judicial blindfold. As a Judge of the commercial law and criminal law. From 2004 to 2011, Stan served prosecutor for the Queen in 1976 and and had more than an inkling of the offices of the Commonwealth County Court, justice is safe in her Leo retired in 2003. as treasurer of the Compensation was in chambers at Nubrik House nature of the condition afflicting him Director of Public Prosecutions Honour’s fair and slender hands. One of the tributes to Leo in the Bar Association. with his good friends, including in the course of his last murder trial in (CDPP)I in Queen Street, Melbourne. DIANE PRESTON newspaper caught my eye. It read, Following his retirement in Alan Dixon. He was a robust and 1982. He was diagnosed with cancer of Her office was bathed in the “Many memories. Parade College. 2015, Stan participated in crews formidable opponent but was always the larynx and had surgery to remove afternoon light and she could not see Other appointments Especially the Butch Maloney for the World Rowing Masters scrupulously fair. He was forced to his larynx, a very sad operation indeed me as I watched her long and slender incident.” Championships. He won medals in retire due to ill health in 1982. for a practising barrister at the height hand guide a red pen across the Michael Whitton QC - appointment Well, what was the Butch Maloney Italy, Japan and Germany. Fred was a quiet, private and of his powers. He was only 51. He lines of print, occasionally pausing as Lord Chief Justice of the incident? Apparently, Leo and Brother In 2015, Stan was named a Legend humble person. He had a very sharp left the law and fashioned a new and to underline a sentence or make a Kingdom of Tonga “Butch” Moloney didn’t see eye to eye of the Victorian Bar. In both trial brain and was an excellent lawyer. different life. So abrupt and complete note in the margins. It was a vision The Hon Anthony North QC over the handing in of an assignment, advocacy and athletics, he was always His four sons remember a man of was his departure from the law that of studied concentration, intelligence - chair of VLRC as a consequence of which they found meticulous in his preparation. He is great discipline. He would retreat many in the profession thought he had and elegance. themselves rolling around wrestling remembered for being a fierce and into his study every week night other died. In the mid-2000s at a Foley’s List In 1983, her Honour graduated on the ground with all students dedicated advocate for his clients, than Friday to spend hours dictating dinner, sons Andrew and Michael were from the University of Melbourne barracking for Leo. Leo was forever as well as being an accomplished interrogatories and statements of approached by Jack Winneke, who, with a Bachelor of Science majoring Vale after a hero to his fellow students. sportsman. Stan Spittle died on claim onto what was then a new- upon seeing our name tags, enquired, in biochemistry and Bachelor of Leo was a club man for most of his Wednesday 17 July 2019, aged 78. fangled reel-to-reel tape recorder. ‘How long is it since your father died?’ Laws. It was not, however, patents and life. He competed with considerable VBN Friday nights were entirely reserved When informed that our father was trademarks that captured her Honour’s success at the Rosanna Golf Club. for a family dinner each week. alive and well, Jack was momentarily imagination but the practice of As for the Flemington Racing Club, Discipline intruded into the nonplussed and then, realising his criminal law. She worked at the CDPP Leo La Fontaine they seldom started without him. weekends. Part of that related to the mistake, said, ‘I’m sorry boys, I thought for six years, signed the Victorian Leo died on Monday, 13 May 2019 , into which you were Fred Tinney’s sons.’ We said Bar Roll No 2852 Bar Roll in 1991, and was appointed at 82 years of age. He was a great all the children were indoctrinated we were. Jack was speechless. But his an associate Crown Prosecutor in eo La Fontaine was born character and will be sadly missed. and their mother converted. mistake was easy to understand. 1998, a Crown Prosecutor in 2000, on 7 April 1937. His father, JOHN X SMITH Weekly journeys to the MCG and Upon retirement, Fred and his wife and a Senior Crown Counsel in the Cliff, was an inspector of suburban grounds to observe regular Phyllis moved down to Queenscliff Northern Territory in 2003, returning Lpolice at Wangaratta. Leo attended Stanley (Stan) thrashings of the Demons were the and lived between there and their to the CDPP as an in-house counsel Parade College in East Melbourne, Barclay Spittle norm. We would never sit under house in Kew. Phyllis opened up an in 2005. Her honour was appointed where he matriculated in 1954. He cover and would never leave before antique and cottage wares shop in Bar Roll No 863 a magistrate in 2008 and a coroner was admitted to practice in 1962 the final siren. the main street. Fred became the in 2014. and worked in various roles at the tan Spittle was born at Sundays were part work, part play. driving force around the house, using Her Honour’s mind travels where Attorney-General’s Department for Skeleton Creek in Far North Often we would go with our father on his renowned discipline to master the evidence leads her, picking her 31 years, before coming to the Bar. Queensland on 12 April 1941 a view. He would visit road accident the necessary domestic skills. He way through stony tracks until she He commenced his career Sand educated at Ballarat Grammar. Fred Tinney scenes connected to his cases to walk became a housekeeper and host has nailed the points of proof. She is as a legal officer in the Crown Stan completed his law degree at the layout and take photographs using extraordinaire. The grandchildren all undeterred by the bogs on the track; Solicitor’s Office (now the Victorian the University of Melbourne. While Bar Roll No 673 a polaroid camera, whilst we would remember Fred’s special sandwiches they present challenges that are to be Government Solicitor’s Office), at university, he was a champion kick the footy. Then back home for and carefully curated lunches and rederick (Fred) Gordon conquered! Indeed, her conquering returning to that office four times to middle-distance runner. In 1963, he the Sunday barbecue, where we often great roast dinners. He became the Tinney, who died on 24 July spirit was laid bare in her prosecution undertake different roles, including was awarded a Full Blue for Athletics retreated into the garage cowering cook, the gardener, even the local 2019 aged 88 years of age, of the first trial to conviction under a period as acting Assistant Victorian by the university for outstanding from the rain. Sunday picnic outings identity who would mow various Floved the law. In particular, he loved Commonwealth slavery legislation Government Solicitor in 1986-87. individual sporting performance. Stan to exotic locations such as Frankston widows’ lawns and maintain—on a the Victorian Bar. He grew up in in 2005 while she was an in-house Leo worked for the police trained under renowned athletics and Belgrave were also the norm. We voluntary basis—the CFA garden. He Ballarat but was educated at Geelong prosecutor at the CDPP. The case department for two years from 1964 coach Franz Stampfl and was the are left with happy memories of long had a deep love of music and books College, where he boarded, and was overturned on appeal but then as a legal assistant, where he gained training mate of Ralph Doubell (who holidays in Ballarat or down at the and developed a strong interest in then at the University of Melbourne, reinstated on a Crown appeal to the valuable experience in advocacy. He went on to win a gold medal at the beach, of such things as our father film as well. He and Phyllis travelled where he was a resident of Ormond High Court, where it established the was the solicitor to the commissioner 1968 Olympics in Mexico City for the hammering in the poles for the beach overseas together. They had a variety College. He was admitted in 1954 modern formulation of the offence of for corporate affairs (Vic) for 11 years 800 metres). windbreak, a windbreak which had of pets, including simultaneously and returned to Ballarat, where he slavery in Australia. from 1975, general counsel for the Stan completed his articles with hand-stitched into it in large letters a blue heeler, a miniature French became a partner of the firm Nevett, As a magistrate and coroner, her commissioner for corporate affairs Ellison Hewison & Whitehead and the family name so that people could poodle and two Siamese cats. An Glenn & Tinney. Honour experienced the relentless for three years from 1987 and a subsequently worked as a solicitor at find us. Or of our father with a vast eclectic grouping.

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Life beyond 1982 had many extraordinary good fortune in having Each of them lived in gratitude for Christopher Smale relations, building and construction Court) and, when Phipps took silk, challenges but Fred never spoke such a learned mentor. Kevin was a the other’s love. One young man, who law, administrative law and criminal with Murray McInnis (later judge of of regret at the cutting off of his lawyer’s lawyer. A seemingly endless worked at the Funds in Court Office, Bar Roll No 2425 law. Chris was the driving force the Federal Magistrates Court). Bryan back of the lift back career. He just got on with life. He procession of barristers would come commented that, no matter what Kevin behind setting up a collegiate group continued to practise at the Bar until profound love of the was incredibly stoic and knew how to his Chambers to seek his advice had on his plate, he always answered of barristers on level 7 of Douglas 1997. He also remained committed to law and the Bar sums fortunate he was to have survived and borrow from his extensive Gabby’s calls “Hello, my love” and Menzies Chambers in 1995, which his successful academic career. up the attitude of and to have known and loved his library. He showed great generosity signed off with “God bless”. remained together and grew into Bryan suffered from a significant Chris Smale, who passed away on 10 grandchildren. For as important as in the finest traditions of the Bar. Throughout his illness, Kevin a much bigger group on level 6 of childhood illness and as a result June 2019, just a week after his 73rd A th his work had been to him, he placed Kevin’s meticulous attention to maintained his strong faith, stoicism Crockett Chambers. 7 DMC, as it started primary education at the age birthday. Before coming to the Bar family well ahead of all other things. detail was legendary. Kevin’s son, and graciousness. He would respond to became known, hosted European of seven years. in September 1989, Chris had honed Our father had the very good fortune Ned, speaks of Kevin enjoying “the inquiries as to how he was faring with (mainly German and Italian) law He left secondary school in Year his administrative and legal skills of meeting our mother Phyllis when pleasantry of pedantry”. his customary humour: “Not out”. It students in their intern year and Chris 10 and resumed studies at Taylors in a wide variety of callings, which they were children in Ballarat. It was Kevin’s brilliant mimicry often had is trite to say that things became very, became a natural mentor and father College to complete Years 11 and 12. made it natural that he would enjoy a great partnership and an enduring us in stitches. He could do Gough very tough. However, right up until figure to many of them. On his many He graduated in law at Melbourne a varied and multi-faceted practice. love. Their marriage spanned 64 years. Whitlam better than Gough, himself, he died, Kevin was kept comfortable overseas trips, often associated with University in 1959 and later obtained Chris completed a B.A. at Though his own health was in decline, as well as some of the most eccentric in the dignity and familiarity of his Bar conferences, he visited them and a master’s degree from the University Monash University in 1970 and Fred devoted the better part of the last members of the legal profession. But own home, in the care and love of his their families. On one of these trips he of Michigan. He worked in New York an LL.B.(Hons) at the University decade of his life to providing loving his wit was never caustic and he was nearest and dearest. bought and commenced the renovation with a firm of attorneys which acted of Melbourne in 1975. After being care and support to Phyllis. inclusive of others. Kevin was a bon THE HON JUDGE FRAN HOGAN of a house in Finnish Lapland, which for one of the parties in the notable admitted to practice in 1977, Chris Fred was diagnosed with liver cancer vivant and shared his enthusiasm must have been one of the more international case of South West remained in and around the Victorian in July 2019 and died within three for fine wines generously. He was a unusual holiday houses owned by Africa, Ethiopia v South Africa, Public Service. He was initially in weeks. He remained at home until serious sweet tooth, with a passion a member of the Victorian Bar. Second Phase. the management services division just days before his death, cognitively for chocolate. Darling Gabby would Chris regarded one of his greatest Bryan was a distinguished and of the Public Service Board, then intact and stoic until the end. He knew make his lunch. One day after he had achievements prior to coming to learned academic. He taught property held several legal officer positions, that his race was run and felt blessed been appointed as the Senior Master, the Bar as his role in transforming law, trusts and equity for many firstly with the Law Department and to have had a bonus 37 years after the then Chief Justice, Sir John Young, Victorian life by reforming the liquor years at Monash University. He was then with the Ministry of Economic the 1982 diagnosis. Fred peacefully asked if Kevin would have a chat over law and turning this State into a admitted to practice in 1961 and Development until March 1983. In slipped away to the strains of a Mozart lunch in Sir John’s Chambers. Kevin vibrant social mecca. At the Bar, he became a lecturer in law and later a June 1983 he became chief adviser piano concerto on the morning of 24 assured Sir John that there would be made the most of the reforms he had senior lecturer at Monash University to the Hon Ian Cathie who was July. Later that same day, two of his no need to cater for him as he would earlier created and threw himself from 1966 to 1977. He remained at the time Minister for Industry, sons presided over cases listed in their bring along a sandwich. Kevin took into this aspect of life with gusto. on the teaching staff at Monash Technology and Resources. He respective courts. Fred would have his lunch box up to join Sir John and, He was into partying, hosting many University until 2009. According to a remained in that position with Ian been pleased. upon opening it, found that Gabby In 1983, Kevin Mahony was such events at his home and playing former colleague he was a “kind and Cathie on his elevation to Minister Fred is survived by his wife Phyllis had packed his number one favourite appointed as the second ever a prominent role in organising generous staff member” and a former for Education and played a major role and by his four sons. —fairy bread! Kevin described it as Senior Master of the Supreme celebratory events in chambers and student said he was a “tough” but in the continuation of Bob Fordham’s THE HON JUSTICE ANDREW TINNEY one of those “minty-like” moments. Court, a role in which he served even at the house north of the Arctic “good” lecturer. introduction and development HIS HONOUR JUDGE MICHAEL TINNEY I think he even offered some to Sir until his retirement in 2012. He was Circle. Through his membership Bryan co-authored a book of senior secondary education in John, who looked bemused. appointed an Associate Justice of of Rotary, he developed projects with Joycey G Tooher entitled Victoria with the introduction of the The Hon Kevin John Only two months after Kevin was the Supreme Court when that office assisting children and their parents “Introduction to Property Law” (5th Victorian Certificate of Education appointed in March 1983, Gabby and came into existence. In 2017 Kevin in Ben Tre Province, one of the edition) published by Butterworths Mahony AM (VCE). When Ian Cathie was replaced Kevin’s beautiful, golden haired, blue- was appointed as a Member of the poorest areas of Vietnam. in 2008 and earlier editions with Bar Roll No 779 as Minister for Education in 1987, eyed daughter, Nellie, was diagnosed Order of Australia for significant Even more than his love of the Gim Teh. That text provided an Chris took on the position of projects evin Mahony (Master with a terrible cancer. Nellie died nine service to the law and to the law and the Bar was Chris’s love of overview of the law in 14 chapters for director in the portfolio policy Mahony to so many) died on months later, at the age of five years judiciary in Victoria, to education, his family: wife Suzanne, daughter students new to the subject and also coordination division of the Ministry 28 July 2019, aged 77 years. and nine months. Their bonny boy, and to professional legal bodies. Serena, son Lucas, granddaughter served as a valuable summary for of Education. There he was seconded Kevin was born in Ballarat and Ned, was still a toddler. The depth of One of Kevin’s great legacies is Sophie, son-in-law Michael and those readers with more knowledge. to the Victorian Post-Secondary Keducated at Marcellin College, their suffering and loss defies words. his stewardship of the Supreme daughter-in-law Candace. The 5th edition was substantially Education Commission, playing a Camberwell and the University I do not know how Kevin managed to Court Funds in Court Office BRUCE SHAW re-written to reflect the then recent leading role in the negotiations which of Melbourne. He was admitted to focus upon his new role. Nor do I know which administers funds paid as developments in property law. The preceded some of the more important practice in 1964 and called to the Bar how Gabby continued to function compensation to people who are Bryan Maurice Dwyer authors included a reference to higher education amalgamations and in 1966, where he read with the Hon in her demanding job as Principal under 18 years old and/or have an statutory material and case law from the creation of Victoria University. Bar Roll No 2524 Justice Ken Jenkinson. of the Junior School of Penleigh intellectual or physical disability. all Australian jurisdictions and the On coming to the Bar in 1989, I know I can speak for Kevin’s and Essendon Grammar. What I do Under Kevin’s leadership, the funds ryan was called to the Bar United Kingdom. Chris threw himself into life at the other readers, Tom Gyorffy, Michael know is that Kevin and Gabby have in trust grew from $60m to $1.3b in 1990 where he read with Bryan is fondly remembered as Bar. His practice was wide, focussing Shand and Jennifer Davies, always been an inspirational model (now $1.855b). Maurice Phipps QC (later a very diligent and knowledgeable on employment and industrial in expressing thanks for our of devotion and support to each other. BJudge Phipps of the Federal Circuit reader. He was always prepared 78 VBN VBN 79 back of the lift

to assist with research of a very common law and developed an These pastimes provided him with in the 1970s, she qualified for Wallace Gervase This course, as with the indelible high standard. enormous personal injury practice, the opportunity to travel to many admission as a solicitor on her first impression that Fox left on all who Bryan died on 31 July 2019 at the enjoying the confidence of his many exotic locations and engage in great attempt, receiving an admission Meehan worked with him, will bear his back of the lift back age of 85. He was a loving father instructing solicitors. John took silk in adventures, often in the company of certificate signed by none other Bar Roll No 2284 influence long into the future and and grandfather to two children, 2007 and retired in 2016. his friends. He also spent much time than Lord Denning, Master of stand as a testament to his qualities. allace Meehan was Paul and Samantha, daughter-in-law John lived his cases. He loved to trout fishing in Tasmania. the Rolls. It drew on every part of his unique admitted to practice in 1973. Catherine, and grandchildren Hana, discuss them with colleagues on a In his retirement John spent many Prior to signing the Bar Roll, character and legal experience, He was employed for 15 Liam, Eleanor, Annabelle daily basis and in excruciating detail. months traveling overseas with his Joan worked for Oakley Thompson, notable for its distinctive, cyclical years as a legal officer in the Crown and William. He had the unique ability to see the wife, Jean Dunn. Galbally & O’Brien, Whiting & rhythm. His life was an unusual WSolicitor’s Office (now the Victorian MAURICE PHIPPS QC funny side of even the most dire John is survived by Jean, his Byrne, Flood Permezel, Patricia mixture of loyal friendships, public Government Solicitor’s Office). MURRAY MCINNIS of circumstance and he frequently children Andre and Penny and Clancy & Associates and AW competencies, private challenges, While still a solicitor, Wallace recounted tales from the courts in their mother Christine, and his Foster. She was also a part-time peripatetic movements, and appeared for the prosecution in which he was centre stage either as grandchildren. tutor at Monash University in 1969 consistent achievements. Magistrates’ Courts all over Victoria. John Philbrick QC hero, villain or the butt of the joke. PAUL O’DWYER, PHILLIP COISH and later a senior teaching fellow at Peter Fox (no middle name) was He prosecuted summary offences He recalled a jury trial before Byrne J, & NEIL RATTRAY Melbourne University. born in Port Moresby in July 1950, the Bar Roll No 1138 under the Health Act and Fisheries where he and Peter Galbally arrived In 1978, Joan came to the Bar middle of five children. He spent his Act, to name just two. This was n Friday, 23 August 2019, John late when the court was already in and read with Ron Meldrum QC. early childhood in PNG and moved valuable experience for him after Denis (“Fearless”) Philbrick session. Both Philbrick and Galbally She developed a broad general with his mother and siblings to he was called to the Bar in 1988. passed away in Urgup, Turkey, made their way to an already practice with appearances in the Melbourne for school. He read with Jeremy Rapke QC. aged 71. crowded Bar table and Galbally rose Magistrates’ Court, Children’s At the University of Melbourne, As a barrister, Wallace also became OJohn had battled serious illness for to make a joint apology stating that Court, Family Court and in building he was a serious law student, but a well versed in s 92 of the Australian some time, characteristically refusing “us big ships turn slowly”. contract cases in the Supreme student nonetheless: so, repairing to Constitution. to yield to its limitations, and was John’s easy manner masked a fierce Court. Not long after joining the the pub, imbibed while reading texts Wallace practised as a barrister intent on closing his tour on the determination. He was a courageous Bar, Joan was appointed as a part- from cover to cover (reputedly then, if until 2004. He died on 12 September beaches of southern Turkey before advocate and a considered tactician. time chairman of the Social Security not later, Byles on Bills of Exchange). 2019 at the age of 82 years. returning to spring in Melbourne. He was meticulous in his case Appeals Tribunal. In 1981, Joan He graduated LLB Hons in 1973, with VBN His death marks the passing of one preparation. He planned his contests was appointed the chairman of the the prize for constitutional law. He of the common law Bar’s most and took great delight in bringing Equal Opportunity Board. completed articles at Ellison Hewison colourful advocates. his plans to fruition. In court, his In 1984, Joan became a senior & Whitehead. On admission to John studied at the University of preparation and communication member of the Commonwealth practice in 1975, he was also admitted Melbourne and resided at Ormond skills came to the fore. He was a Administrative Appeals Tribunal, in the Supreme Court of Papua New College. He enjoyed his student days; concise cross-examiner and his Joan Rose Dwyer OAM where she served for 21 years. Guinea and argued a case in the PNG in addition to academic success, addresses to juries were always During that time, she travelled to all District Court on that visit. Fittingly, Bar Roll No 1377 he won the ‘Mr University’ title. (The direct, pithy and—in contrast to Australian States and Territories. as a solicitor, he acted for the Ok Tedi training involved beer drinking many—refreshingly short. John was a oan was born on 16 May Whilst her decisions were subject copper and gold mine, which long and pie eating and provides at least fierce but fair opponent with a keen 1940. She was educated at to a number of appeals, in her 21 underpinned PNG’s economy. a partial explanation for John’s sense of humour. Presbyterian Ladies’ College, years of service only two appeals In 1976, as Law Council of Australia transition from svelte schoolboy John’s exploits on circuit are Melbourne.J She matriculated in were upheld. Upon retirement from overseas service fellow, Fox spent a athlete to towering Rumpolean legendary, although the details are 1956, at the age of 16, and began that tribunal, she was appointed a year with the Monetary Authority of presence.) generally not fit for publication. studying law and arts at Melbourne member of the Aboriginal Housing Singapore, learning the mysteries of John was admitted to practice in Suffice to say John was a dominant University in 1957. Upon graduation, Board of Victoria and the Mental central banking while working on 1972. He worked as a solicitor in figure in Gippsland for many years. the dean of the law school, Professor Health Review Board, where she sat Peter Fox QC the taxation of international banks Gippsland before signing the Roll of During his long association with Cowen, employed Joan as his until 2016. and the creation of an Asian dollar Bar Roll No 3076 counsel in 1975, after reading with the Gippsland circuit, he fought research assistant and as a tutor at Joan was an avid skier and bond market. For UN agencies, the late David Willshire. Willshire many cases and forged many lasting the university. Joan was admitted to equestrian and continued to his October, as for more than he produced a comparative legal was a laconic wit. He and another friendships. He was a fine exemplar practice in 1962 after serving articles ride with much pleasure until her 20 years past, Melbourne analysis of PNG’s Bougainville barrister were on circuit in Horsham of the circuit maxim “strive mightily at Lander & Rogers. 70s. She had many interests in University Law School copper project and an Indonesian when a solicitor lectured them about in court, but eat and drink as friends”. Shortly after admission, she community affairs and was closely conducted its illustrious LLM course project. On the side, he taught at the what a great barrister John was. John’s chambers were adorned travelled to the United Kingdom involved with her daughters and Tin project finance law. As always, University of Singapore, one of many Willshire was heard to say, “There is with photographic records of his where, in 1962, her first employer grandchildren. students from every corner of such contributions to learning. nothing more boring than a solicitor many interests and achievements was Farrer & Co, whose clients The greatest tribute to Joan’s the globe gathered for lectures by On his return in mid-1977, Fox telling you how great another in a host of activities outside the included the Queen and other memory was the outstanding leading Victorian practitioners in joined Mallesons, Melbourne’s barrister is.” law. He was a keen junior footballer, members of the Royal family. Whilst number of people who attended this arcane area. For the first time, leading banking and finance firm. He In his early years at the Bar, John an avid skier, a mountaineer and a living in the United Kingdom with the celebration of her life. the course proceeded without its was a natural in that work. By 1981, had a flourishing general practice. world-renowned fly fisher (creator of her husband, John Dwyer QC, and RONALD MELDRUM QC co-coordinator: Peter Fox died on he was promoted to partner, with Over time, he specialised in the the eponymous ‘Philbrick nymph’). their daughters Bridget and Tessa the weekend before. Geoffrey Nettle and Charles Scerri.

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The early 1980s was a transition In a typically vulpine turn, in (Sara and Amy); and he never found by out-thinking your opponent, Richard studied law at Melbourne Victorian Court of Appeal. They point in Australian legal and November 1992, Fox joined the World a legal text or law report series that you find the compelling answer. University on a Commonwealth became firm friends. commercial history, with billion-dollar Bank in Washington DC, as counsel, he was not ready to own. He tried to For the last two years, Fox had scholarship, residing at Newman Richard was run off his feet with back of the lift back multi-currency syndicated loan and Georgetown University Law manage his bibliomania creatively— been quietly and uncomplainingly College. Richard was the first, work as junior counsel—so much so facilities for resources and corporate Center, as adjunct professor. From deferring purchase of a new book enduring oesophageal cancer. He and perhaps the only, Protestant that he was elevated to the Inner purposes; the quality and experience March 1994 to June 1996, he ran until it was relevant to a case, but had radical surgery, and returned president of the Newman College Bar in what may have been record of lawyers at firms like Mallesons and MSJ’s New York office. with wide interests and a wide range to practice, his interest in the law, Students’ Club. But he soon got the time in 1991, after only nine years Allens convinced international lead In September 1996, only 20 years of practice, that was often. Having his daughters and life undimmed. hang of the Irish Catholic thing. Once, at the Bar, and only five of them in managers that their loans could be late, Fox came to the Victorian Bar. acquired NHM Forsyth’s State and Mid-year, he was diagnosed with for Lent, he gave up beer and took up full-time practice as a barrister. All governed by Australian law and not He read with Will Houghton and New Zealand reports, he eventually secondary cancer in the liver; his Guinness instead. this notwithstanding a bout of serious the law of England or New York. In Charles Scerri. passed title to colleagues in Joan decline was swift. Richard graduated LLB with ill health in the late 1980s that 1983, no loan was more remarkable At the Bar, Fox had a strong Rosanove Chambers on Peter Fox was complex and Honours in 1969. He then served Richard fought off without missing than that documented by a Fox-led advisory practice. As an advocate, his return to level 18 of Owen compelling: sociable but private, for two years as associate to Sir a beat at work and without making team, acting in exhausted relays he appeared often and successfully Dixon West, but he owned a set simultaneously an insider and Richard Eggleston, a judge of the a single complaint. through 36 hours from approval to in stamp duty and state revenue of US Supreme Court reports to an outsider, traditional but not Commonwealth Industrial Court and As senior counsel, Richard became signing, which funded the 49 per cases. His standing was attested by the end. conventional, deeply loyal, a gifted the ACT Supreme Court. After that, an outstanding leader of the Bar cent owned Elders IXL to make an the representation of the Tax Bar Peter Fox knew his law, deeply. and learned friend, a professional. It he began to teach at the Melbourne with a vast practice, especially in unsolicited takeover of its major and Bench at his funeral. He also He knew how and why the law was my privilege to have known him Law School and as a resident tutor at administrative law, industrial law and shareholder (Carlton & United appeared in regulatory and banking had evolved in a particular way. and worked for him, and then with Newman College. military law. He appeared in courts Breweries), launching the reputation cases: early, he was an unannounced He knew—better than many—the him, throughout my career. His many Richard became a senior lecturer and tribunals across the length and of one John Elliott and his band of junior for the MUA in the Patricks / underlying rationales for typical friends, admirers all, mourn his death. at Melbourne and served as sub- breadth of this country. lieutenants, and the ‘Fosterisation’ Waterfront litigation; he was junior clauses of debentures, mortgages PETER WILLIS dean. He completed a Master of Laws I had the great good fortune to of the world. in Capricorn Diamonds, the last of the and guarantees. He drafted directly degree at Melbourne in 1974. In 1979, be briefed with Richard frequently In 1985, Fox broke new ground, post-takeover greenmail cases, over and elegantly, in a clear and clipped The Hon Richard he became a teaching fellow at the in administrative law matters. He opening a Mallesons office in a stake in the Argyle Diamond mine, left-handed script. He embraced the Ross Sinclair Tracey University of Illinois and completed was a joy and an inspiration to work Sydney, sundering—as between the a neat conclusion after working on its concept of plain English drafting. AM RFD QC another Master of Laws degree there. with. Sometimes we were briefed on two largest legal markets—the old financing 20 years earlier. His longest (But it had to be done properly, In the same year he co-authored opposite sides. As an opponent, he capital city club of firms who acted trial, 105 sitting days in the Supreme without sacrificing meaning and the Bar Roll No 1692 General Principles of Administrative was the best and the fairest. interstate only through longstanding Court of Queensland, as the circle precision of established terminology.) Law, which became a leading text on In 1994, Richard established—as ichard Tracey was a man agents. The efforts of Fox and his of life would have it, was the final For all that he had often kept the the subject and ran to four editions. founding editor—the Australian of conspicuous honesty few colleagues rearranged the legal throes of the winding down of Foster’s hours of an insomniac, arriving no Richard, while still a teacher, Journal of Administrative Law. He and integrity, devoted to landscape, stimulating the creation of Elders Finance (Emanuel Management earlier than noon (when not in court) scholar and academic administrator, served as its general editor for 11 his family, dedicated to duty and Mallesons Stephen Jaques and other v Foster’s). In another notable saga, and working until the small hours, was also a partner in a law firm and years until 2005. He also served for Rcommunity service, kindly disposed national law firms. he was junior to Garde QC in the Peter Fox was the epitome of good appeared as a solicitor advocate at a periods as a reporter and editor of towards everyone, good-humoured In Sydney, Fox gave up alcohol Palais / St Kilda Triangle cases manners and of consideration for high level. At the same time, he was the Victorian Reports and as editor always, completely unflappable, and (cigarettes followed much later) (Bradto), across multiple hearings and others. He guided junior lawyers a part-time presiding member of of the Federal Law Reports. generous to a fault. He was great and, in a whirlwind, met and jurisdictions over four years. with kindness, practical insights, and the Social Security Appeals Tribunal Between 1997 and 2000, both company. He was a great colleague. married Anne Casey, an American. In 2009-11, alongside his practice, wise advice; at the Bar, he mentored where he heard over 1,000 appeals. Richard and I were part-time He was a great and steadfast friend. Given leave of absence to follow he served as a consultant to the Catherine Button, James Moss and Richard joined the Victorian Bar in Commonwealth Human Rights and There was no cunning or his heart, he moved to New York, United Nations special rapporteur Marian Clarkin Hardy. 1982 while still a full-time academic. Equal Opportunity Commissioners. guile about him. Despite his working at Sullivan & Cromwell on business and human rights in Foxy had a profound influence on He read with Graeme Uren. In 1986, Richard was much better at it than extraordinary aptitude for the law throughout 1987 and passing the developing the ‘Ruggie Principles’ many. He was a natural, generous Richard finally left the Melbourne I was. He guided the parties to and for adjudication, his tireless New York Bar exam. He returned (UN Guiding Principles on Business and patient teacher. His instructions Law School for full-time practice settlement in every one of his cases. work ethic and his highly disciplined to Melbourne in mid-1988, in the and Human Rights). for legal practice were simple, if at the Victorian Bar. He practised All of mine ran to verdict. organisational skills, and even though heady days when banking syndicates Fox took silk in 2014. In addition to in some respects traditional: one initially from Equity Chambers, as For many years, Richard was at times he was a strong tip for the relied entirely on the borrower’s longstanding community voluntary should always put on one’s coat when did I. They were not fashionable or senior counsel of choice for High Court, he was not ambitious for ‘negative pledge’ to protect their work and membership of the Bar’s meeting with the senior partner, expensive chambers—in fact they both Commonwealth and State advancement. He was a humble and priority for repayment. The whistle community choir, he served on senior counsel or client; one never were as cheap as chips—but they had governments in administrative law modest man. was blown when Fox briefed SEK many Bar Committees, including spoke ill of a client or an instructor. a significant history and each of us in matters, regardless of the political Richard started adjudicating early Hulme QC, Ray Finkelstein QC for seven years on the Health & While you need to understand the turn got a good start there. stripe of the government. He was in life. He was a football umpire and John Karkar QC with Garratt Wellbeing Committee, and on the commercial context of the matter at Afterwards, Richard moved to a firm adherent to the cab rank at Melbourne High School, and he and Anastassiou to persuade Law Council Business and Human hand, you do not trim your advice. the seventh floor of Owen Dixon rule and he often appeared against umpired in the Victorian Amateurs Justice Barry Beach to appoint Rights Committee. Above all, was his lesson for Chambers West where, for the best government parties as well. A notable for many years. He was pretty good. protective receivers to the Bond Once the smokes went, Fox had litigating: when, on a sticky point, the part of 20 years, he shared a suite of example was Teoh in the High Court He umpired four grand finals in Brewing companies on Friday 29 only two ‘vices’ in his years at the Bar: other side’s case seems the stronger, rooms and a secretary with David in 1995, which raised an important the Amateurs. December 1989. he doted on his daughters with Anne you have to keep analysing it, until, Beach, now Justice Beach of the question concerning the

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relationship between international law, and referred to Richard’s written School and as judge-in-residence had assembled to hear tributes to Tracey was a jurist of truly Victorian Bar law and Australian law, and in judgment as “impeccable”. at Melbourne Law School. However, him at a special sitting of the national significance. Readers which Richard’s client was, Richard sat as a judge of the those plans were overtaken by his Royal Commission in Melbourne. Richard’s door was always back of the lift back September 2019 of course, successful. Federal Court until he reached appointment in December 2018 as At that special sitting, open. His help was always freely Highlights of Richard’s industrial the statutory retirement age of Chair of the Royal Commission into Commissioner Pagone, given. He was always calm and BACK ROW: Johann Ollquist, Eva Weiss, law practice were many. Between 70 in August 2018. At Richard’s Aged Care Quality and Safety. Commissioner Briggs and counsel measured. His judgement was Katherine Wangmann, Vivienne Jones, 2001 and 2003, Richard was farewell, Chief Justice Allsop Richard threw himself into the assisting all spoke movingly of always sound. Kylie Jeans, Mitchell Brogden, Nicole senior counsel assisting the remarked that Richard had done work of the Royal Commission, Richard’s leadership of the Royal Justice David Beach has said that Menegas, Sonari Fernando, Luke McPhie, Cole Royal Commission into great work at the court, and, in travelling widely and hearing Commission. Commissioner there could be no better test for a Nicholas Mutton, Ryan Hartshorne, the building and construction particular, that he had contributed from numerous witnesses. Briggs said of Richard: “He was lawyer faced with a difficult issue James Eley, David Mence, Geoffrey Smith, industry. And in 2005, Richard mightily to the court’s work in Even after his diagnosis with experienced. He was wise. He was than to ask: “What would Richard Bonnie Renou. had the rare distinction as a administrative law, migration law and terminal cancer two months admired. He knew the law like the Tracey do?” MIDDLE ROW: Aylah Lohman, barrister of winning two High industrial law, each being a critical ago, and even while undergoing back of his hand.” We who knew Richard, and Karan Raghavan, Ryan Kornhauser, Court appeals on the one day, area of the court’s jurisdiction and treatment for it in the USA, On the same day, the federal admired him so much, will continue Ella Delany, Jacqui Hession, Rebecca both industrial law matters. each being essential to the economic Richard continued with his work ministers responsible for the to ask ourselves that question, Koralyo, Bethany East, Ganesh Richard was appointed to the and social fabric of this country. as commissioner, making major Royal Commission issued a joint whenever the need arises. Jegatheesan, Paul Annabell, Christopher Federal Court in 2006. On one notable The Chief Justice observed that contributions to the commission’s statement acknowledging Richard’s May he rest in peace. Hibbard, Joel Tito, Kathy Karadimas, day in 2012, decisions of Justice cases in these areas illustrated the forthcoming interim report. “professionalism, compassion and This eulogy was delivered by the Timothy Harvey, Thomas Crouch, Tracey were upheld by no less than capacity of those who held power As most of you know, Richard was leadership”. And the Law Council Hon Justice Tony Cavanough at Morgana Brady, Joel Phillips, Charles 10 judges—by five judges of the to affect individuals through the on his way back to Australia when published a statement describing St Patrick’s Cathedral, Melbourne Morshead, Benjamin House, Martin Federal Court in Jones (on military exercise of that power. It was this, he passed away in the USA on 11 Richard as a “man of the highest on 24 October 2019 after a eulogy Radzaj, Angelo Bartzis, Nina Massara disciplinary proceedings) and by five the Chief Justice said, that Richard October 2019. News of his passing integrity” and referring to “the by Victorian Bar member Jack FRONT ROW: Matthew Gledhill, Rutendo judges of the High Court in Barclay had always understood. first reached Melbourne late in the important and enduring legacy Tracey, dealing with his father’s Muchinguri, Toni Stokes, Daye Gang, (on discrimination in employment). After Richard’s retirement from the evening of Saturday, 12 October of Justice Tracey to Australia’s early life, family life, career in Holly Jager, Kay Chan, Tahlia Ferrari, In Barclay, Justice Heydon described Federal Court, it was planned that (Melbourne time). As soon as 9.15 legal community”. the reserve forces and in military Karen Mak, Justin Lipinski, Therese Justice Tracey as possessing “great he would serve as adjunct professor on the Monday morning, a multitude As my colleague Justice justice, character, personality and Borger, Mihal Greener, Amanda Ila, learning” in the relevant fields of of military law at the ANU Law of Richard’s friends and colleagues Tim Ginnane has said, Richard Christian faith. Lauren Burke, Sally Buckley

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BACK ROW: Patrick O’Shannessy SC, Robert Craig SC, Renee Enbom SC, Oren Bigos SC and Sam Hay SC MIDDLE ROW: Richard Knowles SC, Ian McDonald SC, Matthew C Harvey SC, Nicholas De Young SC OF LANGUAGE and Chris Young SC FRONT ROW: Marylyn Smallwood SC, Georgina Costello SC, Charles Shaw SC, Marita Foley SC, Malcolm Harding SC and Jeremy Slattery SC New Silks How have you celebrated (or plan to celebrate) the occasion? Significant inroad into the wine mountain. Most memorable junior brief? They were all memorable. Shakespeare has been credited with inventing up How have you managed to look after your work/life to 2,500 words and phrases that we still use today. balance in the past 12 months? I haven’t managed that yet; work in progress. EXPOSURE If you were lost on a desert island with one unlimited Adopt one of Shakespeare’s words this holiday season item to eat, what would it be? Mogadon. and your gift will provide opportunities for young people & Guilty/unfashionable pleasure? Not telling John Dever across Australia. what I am doing that day. At the beginning of 2019, could you have used Q A “prorogue” in a sentence? Still can’t. GIVE A GIFT TODAY THAT WILL HELP YOUNG When you ask the 2019 cohort of new Silks Who would you cast to play you in a movie, and why? Harrison Ford: got better as he got older. AUSTRALIANS TOMORROW trivial questions, and receive responses WWW.BELLSHAKESPEARE.COM.AU like, ‘Pavlova. Totally bogan but strangely Patrick O’Shannessy SC irresistible’, you know you are onto What would your 16-year-old self say about your appointment? something. For more of what you ought to So far so good…… know, and never needed to know, see below. Who is the first person you told when you found out the news? My wife How have you celebrated (or plan to celebrate) Ian McDonald SC the occasion? Enthusiastically. How have you managed to look after your What would your 16-year-old self say work/life balance in the past 12 months? about your appointment? I have seen the Reasonably well compared to the previous 27 years Promised Land! at the bar. Who is the first person you told when you If you were lost on a desert island with one unlimited found out the news? Trouble and strife. item to eat, what would it be? Wine

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At the beginning of 2019, could you Doll” and “The Kominsky Method”. and unfashionable, but I love Jeremy Slattery celebrated to some extent and have Most memorable junior brief? have used “prorogue” in a sentence? If you were lost on a desert island watching TV. a plan to celebrate some more. Saving the disabled Mrs Evans’ Yes, although not necessarily with one unlimited item to eat, what At the beginning of 2019, could you SC Most memorable junior brief? home from repossession by her ex- back of the lift back correctly. would it be? It would have to be Tim have used “prorogue” in a sentence? What would your This is a difficult one because there husband’s lenders. Who would you cast to play you in a Tams but not the dodgy knockoffs Yes – but I’m a politics geek. 16-year-old self say about are a few. The one that often stands How have you managed to look after movie, and why? that Santamaria offers me. Who would you cast to play you in your appointment? What’s a QC? out in my mind, mainly because of your work/life balance in the past My son Xavier because he is a very Guilty/unfashionable pleasure? a movie, and why? Richard Burton Who is the first person you told the way it ended, is a case that I did 12 months? After my kids’ weekend fine actor. A Viennese shortbread from Tony for the voice or Peter Capaldi for when you found out the news? for the firefighters union in the Fair sporting commitments, the working (at Dominos). the language. My wife. Work Commission. As my leader and week in chambers seems relaxing… Matthew Who would you cast to play you in How have you celebrated (or plan to I left the courtroom on the last day Favourite book/podcast/film of Harvey SC a movie, and why? Danny Devito. Marita Foley celebrate) the occasion? Lunch with we found ourselves walking through the year? East West Street by Because then people would say: the family, drinks with my colleagues an honour guard of firefighters Philippe Sands. What would your SC “Gosh, you’re much taller than I in chambers, dinner with the parents. positioned on either side of us, If you were lost on a desert island 16-year-old self say What would your thought.” Most memorable junior brief? yelling and cheering. Better still, we with one unlimited item to eat, what about your appointment? Frankly, 16-year-old self A confidential information case later learned that the case was won. would it be? Lindt dark chocolate. I wouldn’t have had a clue. I might say about your Charles Shaw against Demi Moore—unsurprisingly, How have you managed to look after At the beginning of 2019, could have asked whether taking silk had appointment? I have no idea what it settled the night before she had to your work/life balance in the past 12 you have used “prorogue” in a something to do with horse racing or SC you are talking about. Sounds cool get on a plane and come to Australia months? By doing what I could not to sentence? Probably not, though I haute couture (although I wouldn’t What would your though. Do you get a new outfit? to give evidence. work on weekends. have a vague recollection of hearing have known that expression when 16-year-old self Most memorable junior brief? How have you managed to look after Favourite book/podcast/film of the Melissa Castan using it in a sentence I was 16 either). say about your Anything involving dogs and your work/life balance in the past year? For this year, The Passage during constitutional law tutorials. Who is the first person you told appointment? “How did Phil prosecutions. One involved having a 12 months? I invoke the privilege Of Love by Alex Miller. I love most Who would you cast to play you in a when you found out the news? Solomon get it so long before you?” dog called ‘Buddha’ put down. Quite against self-incrimination—I cannot books written by Alex Miller, but my movie, and why? Sacha Baron Cohen The first person I told was Ian Horak, Who is the first person you told a confronting case for someone who give away my trade secrets! favourite remains The Ancestor Game. (sans hair…). who gave me a hug. Wracked with when you found out the news? loves animals—and one which I Favourite book/podcast/film of the If you were lost on a desert island guilt, I then rang my wife. I rang my wife, who did not take blame for subsequent bad karma! year? Boy Swallows Universe. with one unlimited item to eat, what Richard How have you celebrated (or plan my call, so I rang my brother, who How have you managed to look after If you were lost on a desert island would it be? Croissants. I love ‘em. to celebrate) the occasion? On the did not take my call, so I rang my your work/life balance in the past Knowles SC with one unlimited item to eat, what Guilty/unfashionable pleasure? day: lunch with some of my 15ODCW mother, who also did not take my 12 months? See answer to question What would your would it be? Mangoes. Not sure I have a guilty pleasure. buddies and dinner out with my call. Eventually my wife called regarding unfashionable pleasures! 16-year-old self say Guilty/unfashionable pleasure? I did have a pleasure that at one wife and kids. Some champagne me back. Favourite book/podcast/film of about your appointment? I never Bundaberg rum and coke … now time could have been described as was enjoyed. How have you celebrated (or plan the year? Resident Dog. A book thought that you were going to I really have incriminated myself! unfashionable. It was vinyl. However, Most memorable junior brief? to celebrate) the occasion? Dinners about dogs in their architect become a lawyer! At the beginning of 2019, could you now records are back and cool. A trial in the Federal Court, in which with family – Di Stasio with the designed homes. Who is the first person you told have used “prorogue” in a sentence? At the beginning of 2019, could you my expert witness, under cross adults and Tuckshop Takeaway with If you were lost on a desert island when you found out the news? I’m sorry, I don’t understand the have used “prorogue” in a sentence? examination, recanted everything in the children. with one unlimited item to eat, what My wife, Catherine. question. I might have if I had thought of a way his expert report, except his name Most memorable junior brief? would it be? Pavlova. Totally bogan How have you celebrated (or plan to Who would you cast to play you in of putting it into a sentence. It’s a and address. And I wouldn’t have Commissioner of State Revenue but strangely irresistible. celebrate) the occasion? Chambers a movie, and why? A young Bryan great word. cared if he had done that too. v Uniqema – for the privilege of Guilty/unfashionable pleasure? function and dinner with family. Brown. Australian acting royalty! Who would you cast to play you in How have you managed to look after working with the late Brian Shaw; So many unfashionable past times How have you managed to look after a movie, and why? Ewan McGregor. your work/life balance in the past Myer Pty Ltd v Ellery Land Pty Ltd; —so little time! Tap dancing (badly), your work/life balance in the past I select him because he looks better 12 months? I’m almost always home Alston v Cormack Foundation. costume making (particularly for Malcolm 12 months? Probably not as well as than me and he has a great accent. in time for dinner (although I will How have you managed to look after kids—you can never have enough I should have. Harding SC I would be more than happy for him work at night). I work at the dining your work/life balance in the past sparkle!), kids parties, knitting, Favourite book/podcast/film of What would your to play me with that accent. table during the weekends (never 12 months? By punctuating my work growing dahlias, dog photography the year? It isn’t a book, podcast or 16-year-old self say in chambers, if I can help it). Apart with lunch with Tim North. and baking. film, but I thought that the TV series about your appointment? Think Oren Bigos SC from that, plenty of time chilling out Favourite book/podcast/film At the beginning of 2019, could you Fleabag was very good. differently now about what you have What would your at home, cooking, drinking coffee etc of the year? Book—Sapiens—I have used “prorogue” in a sentence? If you were lost on a desert island in mind to do with your life. 16-year-old self with my family. felt clever just carrying it around. No. But I am mad for the word now. with one unlimited item to eat, Who is the first person you told say about your Favourite book/podcast/film of the Film—Never Look Away—devastating Happy to run with anything that what would it be? If it’s a dessert when you found out the news? appointment? ‘Honour year? Favourite book of all time: The but beautiful. involves a rogue. island, something savoury for main My mother, mainly because I found the Work’… (my school motto). Master and Margarita by Mikhail If you were lost on a desert island Who would you cast to play you in a course. out the news on the way to work Who is the first person you told when Bulgakov. Favourite book this year: with one unlimited item to eat, what movie, and why? Someone small who Guilty/unfashionable pleasure? and she was the only one who was you found out the news? My wife. Ransom by David Malouf. Favourite would it be? Hamburgers. alternates between socially inept and Hmmm, where to begin? The answering the phone. How have you celebrated (or plan to podcast: “Life and Crimes” by Andrew Guilty/unfashionable pleasure? raucous. ? occasional deep dive into 1970s How have you celebrated (or plan celebrate) the occasion? With family Rule. Favourite TV series: “Russian Most of my pleasures are guilty country music? to celebrate) the occasion? I have and friends.

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At the beginning of 2019, could Who would you cast to play you in Who is the first person you told with a London silk, instructed by a would it be? Biltong—a good source you have used “prorogue” in a a movie, and why? A great from the when you found out the news? My Sam Hay SC Washington firm, for a Swiss client, of protein and is seems indestructible sentence? Insofar as I am not Hollywood golden age—Vivien Leigh, eight-year-old daughter, Eliza. I was Who is the first under a -Australia bilateral in most conditions.

back of the lift back necessarily “anti-rogue”, sure. because she’s Vivien Leigh. Or maybe dropping her off at school when person you told when investment treaty, in Singapore. Guilty/unfashionable pleasure? Who would you cast to play you in a Bette Davis for the attitude. I received the news. I don’t think you found out the How have you managed to look after Political biographies. movie, and why? Meryl Streep? She she understood but I think she will news? Two of my your work/life balance in the past At the beginning of 2019, could brings a lot to any role, doesn’t she? Georgina remember the moment. readers, who were standing in the 12 months? By taking my youngest you have used “prorogue” in a Costello SC How have you celebrated (or plan room when the email came in. to childcare in the mornings and sentence? No—certainly one thing Anne Hassan to celebrate) the occasion? Drinks How have you celebrated (or plan to starting to train for a marathon. I have learned from Boris Johnson. What would your with lots of lawyers and a garden celebrate) the occasion? In the usual Favourite book/podcast/film of Who would you cast to play you in a SC 16-year-old self say pool party with those people who are way: dining and drinking. the year? Book: Berta Isla by Javier movie, and why? Matthew Rhys—he What would your about your appointment? “Now you allowed to see me in bathers. Most memorable junior Marias. Podcast: Revisionist History. is playing Perry Mason in the new 16-year-old self say can be David Curtain” (My 44-year-old Most memorable junior brief? I can’t brief? A very large oppression If you were lost on a desert island HBO series and may be prepared to about your appointment? Law wasn’t self would answer “In your dreams”). pick one. I will never forget 2017. dispute that started in the with one unlimited item to eat, what transition into the less glamorous really on the radar as a profession Who is the first person you told Matt Collins QC and I ran two Supreme Court and ended up in would it be? Valrhona 66 per cent world of commercial law. when I was 16 years old. I think if my when you found out the news? hard-fought and long trials, one the Family Court. On my team Guilty/unfashionable pleasure? 16-year-old self had been told by my My husband, Paul Ross (wise to after the other. The first was for was Cliff Pannam QC, Martin Listening to ’80s pop music during older self that “we” had taken silk, she keep your spouse well informed, The Australian newspaper and the Bartfeld QC, Minal Vohra (now SC) long runs. would have been deeply mystified. particularly if he is a divorce second was Rebel Wilson’s case. Our and Nicole Papaleo. It was great fun. Who is the first person you told lawyer). clients won and both got indemnity How have you managed to look after Robert Craig when you found out the news? How have you celebrated (or plan to costs. That was satisfying after an your work/life balance in the past I attempted to tell my partner, but celebrate) the occasion? Drinks with SC enormous amount of work and 12 months? Poorly. he didn’t answer his phone, so my friends. What would your pressure. Life-long friendships were Favourite book/podcast/film of the mother was the first person I told. Most memorable junior brief? Any 16-year-old self made. Other favourites are Trinity year? The Sam Harris podcast called She too was deeply mystified by time I worked with Gina Schoff QC. say about your appointment? Hairgate with Fink and the Essendon “Making Sense”. what I was saying, but eventually How have you managed to look after What happened to the professional doping case with Jeff Gleeson QC. If you were lost on a desert island worked out that something good your work/life balance in the past 12 sports career? How have you managed to look after with one unlimited item to eat, what had happened. months? Rollerblading with my kids Who is the first person you told when your work/life balance in the past would it be? Roast chicken. Most memorable junior brief? at Caribbean Rollerama. you found out the news? My wife. 12 months? I booked flights out of Guilty/unfashionable pleasure? A junior brief to Gavin Silbert QC Favourite book/podcast/film of the How have you celebrated (or plan Melbourne as soon as I could see an Many (and I’m not telling you any in the retrial of Donna Fitchett, year? Born a Crime by Trevor Noah, to celebrate) the occasion? My floor opportunity and took my family away. of them). a woman who murdered both who weaponises humour against colleagues and readers gathered for Favourite book/podcast/film of the At the beginning of 2019, could you her sons. bigotry. The Year of Living Danishly a few celebratory drinks on the day year? Christine Nixon’s biography. have used “prorogue” in a sentence? How have you managed to look by Helen Russell, an inspiring of the announcement and my wife After my first conference with her, Yes. after your work/life balance in account of Danish lifestyle. and kids organised champagne and my instructors sent me a copy to the past 12 months? I think alcohol If you were lost on a desert island chocolate cake. read. I’m glad they did. Christopher is involved. with one unlimited item to eat, Most memorable junior brief? I was If you were lost on a desert island Favourite book/podcast/film of the what would it be? The muffins at Young SC lucky enough to appear against the Fiji with one unlimited item to eat, what year? Once Upon a time in Hollywood. Earl Canteen. What would your Government in the High Court of Fiji would it be? Mangoes. They are I am not a huge Tarantino fan but this At the beginning of 2019, could 16-year-old self on a number of occasions. Preparing Who is it good to eat and can also be used was a masterpiece of entertainment— you have used “prorogue” in a say about your appointment? whilst looking out over Suva Harbour as a moisturizer. funny, but with melancholy undertones. sentence? To my daughters, “When But if I’m going to be a lawyer, was pretty tough, although walking taking the Guilty/unfashionable pleasure? It’s worth the price of a ticket just you grow up, you may be pro rogue why I am doing all these maths and to court in robes with 100 per cent I like to use pen and paper and speccy? (p9) to hear Jose Feliciano’s exquisite but you shouldn’t marry him”. science subjects? humidity was a mistake…. a hardcopy diary. Apparently that rendition of “California Dreaming”. As Who would you cast to play you in a Who is the first person you told How have you managed to look after Taking the specky is Terry is uncool. with all Tarantino films you will go out movie, and why? Reece Witherspoon, when you found out the news? your work/life balance in the past Forrest (better known as the At the beginning of 2019, could you and buy the soundtrack. because I would like to meet her and My wife, by text message, because 12 months? Ah—this old chestnut! Hon Justice Forrest of our Court have used “prorogue” in a sentence? If you were lost on a desert island because she once played a blonde she was at a school concert and I have three young kids, so “life” of Appeal) No. with one unlimited item to eat, lawyer... couldn’t speak. tends to ensure work is balanced. Crumber: Chris Maxwell Who would you cast to play what would it be? Hot chips. How have you celebrated (or plan to Favourite book/podcast/film of (better known as the Hon Justice you in a movie, and why? Where is this island? Renee Enbom celebrate) the occasion? I celebrated the year? Chernobyl—the HBO Maxwell, President of the Court Certain people involved in the At the beginning of 2019, could you on the day with dinner with my wife. mini-series. Depressing content of Appeal); Second from the SC Commission have identified someone have used “prorogue” in a sentence? I might celebrate in the future by but the science and social/political left: Jack Batten of Counsel. What would your who they consider should play me in I can’t say I used the word “prorogue” buying a new sailing dinghy (please reaction of the Soviet community Intervarsity football match 16-year-old self say a mini-series. I don’t know who it is in 2019 and I can’t say I’ll be using it don’t tell my wife). were fascinating. between Melbourne and Monash about your appointment? How did but I suspect that it is not the person in 2020 either. Most memorable junior brief? If you were lost on a desert island Universities, May 1973. that happen? I would cast. Philip Morris v Australia—appearing with one unlimited item to eat, what

92 VBN VBN 93 boilerplate meaning of the word in the law as “One of a class of Mason’s suggestion, other phrases Given the way the words are printed in the US indictable offences which were formerly regarded had been suggested, including high as less heinous than those called felonies…” and the misdemeanor, maladministration, Constitution ... it is possible that the adjective high Macquarie defines it as “a less serious crime”. The English and other crime. George Mason was was intended to qualify both nouns (Crimes and a delegate to the Constitutional Dictionary (1742) by N. Bailey defines misdemeanour as Misdemeanors). That would raise the question: “an offence or fault” whereas Johnson (1755) defines it as Convention of 1787. (He was one of Boilerplate “Offence; ill behaviour; something less than an atrocious the three delegates who refused to what is a high misdemeanour? crime”. Webster’s International Dictionary (1902) defines sign the Constitution.) So, it seems Bribery, or other high Crimes and “To impede, hinder, prevent”, with misdemeanor (no u) as “(Law) a crime less than a felony” that we do not have to unpick the Misdemeanors). The impeachment supporting quotes from 1380 to and adds a note quoting from Blackstone: idea of high misdemeanour. investigation is a matter for the 1690. Closer to the mark, it is also This becomes clearer, when you “As a rule, in the old English law, offences capitally punishable House of Representatives; conviction defined as meaning “To challenge, consider that, at the Constitutional A BIT ABOUT WORDS were felonies, all other indictable offences were misdemeanors. is a matter for the Senate. The House call in question, cast an imputation Convention, Edmund Randolph In common usage the word crime is employed to denote of Representatives in USA has begun upon, attack; to discredit, disparage” (a lawyer from Virginia) said offences of the deeper and more atrocious dye, while small impeachment proceedings against with supporting quotes up to 1888, impeachment should be reserved High Crimes and faults and omissions of less consequence are comprised only 19 officials—one U.S. senator, with the earliest from Shakespeare for those who “misbehave.” Charles under the gentler name of misdemeanors.” four presidents (including Trump), Midsummer Night’s Dream: Pinckney (from South Carolina) said, one cabinet member, and 13 federal it should be reserved “for those who “You do impeach your modesty too Misdemeanors (Even though Blackstone spelt the word misdemeanours judges. It is notorious that three behave amiss, or betray their public much To leave the City, and commit with a u, Webster drops it in the quotation.) The American presidents have been impeached trust.” These both seem to fit within yourself into the hands of one that Heritage Dictionary adopts a definition, consistent with by the lower house, but they JULIAN BURNSIDE the contemporary understanding loves you not.” (1590). Webster: “(Law) an offence less serious than a felony”. have been spared conviction of misdemeanor. In England, the distinction between a felony and a in the Senate. Andrew Johnson Impeach is also defined as meaning The phrase high Crimes and t is impossible (well, difficult) to be alive misdemeanour were abolished by the Criminal Law Act was impeached by the House of “To bring a charge or accusation Misdemeanours was used often today and not be aware of Donald Trump. of 1967. Representatives in 1868, but not against; to accuse of, charge with”, enough in England to remove And if you are aware of him, it is difficult It is to be noted that many dictionaries still distinguish convicted in the Senate. Richard supported by quotations from 1380 officials. Since 1386, the English to overlook the fact that his conduct as between the ordinary meaning of misdemeanour and Nixon was impeached, but resigned (Wyclif) to 1840 (Dickens). Parliament had used the term President of the USA is (to say the least) the meaning at law. The OED, for example, defines when the Watergate tapes surfaced. If the House of Representatives high crimes and misdemeanours unorthodox. So unorthodox that the US House misdemeanour as follows: On 27 July 1974, the House Judiciary resolves that Donald Trump as the ground on which officials of Representatives has begun an official impeachment Committee passed three articles has engaged in high crimes or I 1. Evil behaviour, misconduct. Now rare. of the Crown could be impeached. enquiry. In American law, the articles of impeachment of impeachment charging Nixon misdemeanors, it will impeach The allegation was used to remove are formulated by the lower house, for trial in the upper 2a An instance of this; a misdeed, offence. with obstruction of justice, abuse him accordingly, but he will not from office officials accused house. A President is not removed from office except by of power, and contempt of Congress. be removed from office unless the b Law. One of a class of indictable offences which were of widely varying acts (not all a two thirds vote in the Senate. He resigned on 8 August 1974, Senate convicts him (by a two-thirds formerly regarded as less heinous than those called felonies; of them criminal offences) It all starts with the US Constitution. before the Senate could hear the majority) of any of the articles high misdemeanour such as misappropriating The American Constitution was the result of the case against him. And Bill Clinton of impeachment resolved by the government funds, appointing Declaration of Independence in 1776. The first draft The New Oxford English Dictionary (1998) defines was impeached by the House of lower house. unfit subordinates, not prosecuting was prepared in 1787, and it was ratified in 1788 after misdemeanour as “a minor wrongdoing” and adds Representatives in 1999, but not Conviction in the Senate is where cases, not spending money Congress voted to transmit the document to the 13 states “Law a non-indictable offence, regarded in US (and convicted in the Senate (there raw politics saved Johnson and allocated by Parliament, promoting for ratification. By 21 June 1788, it had been ratified by formerly in the UK) as less serious than a felony”. were 50 votes against him, where 67 Clinton. Johnson avoided conviction themselves ahead of more deserving the minimum number of nine states required under (It is interesting to see the silent nod to the Criminal votes were needed for a conviction). in the Senate by just one vote. Clinton candidates, threatening a grand Article VII. The first 10 amendments to the Constitution Law Act of 1967 which abolished the distinction between The misdeeds of Nixon and survived conviction by 17 votes. jury, disobeying an order from were adopted in 1789. They are collectively referred to as a felony and a misdemeanour). Clinton are well-remembered by Trump may get a similar result, given Parliament, arresting a man to keep the Bill of Rights: they reflect the English Bill of Rights Johnson does not make such a clear distinction most people. Johnson was President the power of the Republicans in the him from running for Parliament, of 1689—a century earlier—and a couple of additional between ordinary usage and legal usage, when he much longer ago: he was Lincoln’s Senate, even though his erroneous losing a ship by neglecting to moor protections drawn from Magna Carta as interpreted by defines it as “Offence; ill behaviour; something less Vice-President and took office ways have been far more egregious it, helping suppress petitions to the Sir Edward Coke. than an atrocious crime”. after Lincoln was assassinated in than those of Johnson or Clinton. King to call a Parliament, granting Section 4 of Article II of the Constitution provides: Given the way the words are printed in the US 1865; he was in favour of slavery. It would be the great irony of our warrants without cause, and bribery. Constitution (“…high Crimes and Misdemeanors…) The House voted to impeach him times that a President, who has The President, Vice President and all civil Officers of the The common feature of these it is possible that the adjective high was intended to in February 1868, three days after tormented the English language as United States, shall be removed from Office on Impeachment accusations was that the official qualify both nouns (Crimes and Misdemeanors). That he sacked his secretary of war, much as George W Bush did, should for, and Conviction of, Treason, Bribery, or other high Crimes had abused the power of their office would raise the question: what is a high misdemeanour? Edwin M. Stanton, contrary to finally raise the greatest challenge and Misdemeanors and was unfit to serve. The OED definition of misdemeanour (quoted above) the provisions of the Tenure of for English: the meaning of the key Section 4 of Article II provides There is a continuing debate about what is meant by defines it, in part, as high misdemeanour. The phrase Office Act. phrase in section 4 of Article II of the that an official can be removed “high Crimes and Misdemeanors”. “high crimes and misdemeanors” as one of the criteria Which raises the question what Constitution. from office on “…impeachment Nowadays misdemeanour is generally a reference to for removing public officials who abuse their office impeach means. According to the for, and Conviction of…” (Treason,

photos courtesy of yorgos lanthimos/twentieth century fox lanthimos/twentieth century of yorgos courtesy photos a relatively minor offence. The OED gives the current was suggested by George Mason of Virginia. Before OED impeach originally meant

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So, where to begin? The answer The stakes rise though, if you to this question funnily enough is harbor a desire for a career at the also a question: Where do you really common law Bar. This requires a boilerplate want to go and how far would you significant capital investment—in like to travel? Blairgowrie or Fairhaven! While you If you are a commercial might get away with renting a lovely lawyer, then you will be already little place in the tea tree somewhere well-advanced in the development of in your early years, sooner or later your ‘soft skills’ (in and out of court) you are going to need to acquire your as no doubt you will have lunched own little shack with agapanthus regularly with the great and the along the driveway to fully fit into good at Movida Aqui and will have the scene. The Blairgowrie Yacht attended the biennial CommBar Squadron and the Sorrento Couta overseas conferences. However to Boat Club are chocka-block full rise to the heights of this area of of silks and partners of major law practice you need to be prepared firms at cocktail hour and better to go far and make a significant still most of these career beacons financial investment at the same of hope are looking for crew! time. So, skiing in Europe perhaps A marvellous chance to impress or maybe surfing in Noosa? Rumour if I may say so—on-board you can However to rise to the heights of commercial law you has it that Zürs and Lech (favoured demonstrate that you can remain need to be prepared to go far and make a significant RED BAG, BLUE BAG by a glamorous silken couple and calm while getting yelled at, can a particularly sporty Chief Justice) follow directions without question financial investment at the same time. So, skiing in and Cortina D’Ampezzo (which and share the load—just like what Europe perhaps or maybe surfing in Noosa? The Summer Court attracts loads of silks and judges happens in court! The other side of who flock there for the annual the bay requires a much more robust involving environmental restoration, are not being properly compensated CPE Conference to enjoy a spot of constitution as amongst the judges and then post your holiday snaps for their efforts—not so that they Vacation: What to do? tax-deductible skiing and dining and silks who summer in the Surf on Facebook or Instagram, after you can ‘live the dream’, but just so while fulfilling their annual CPD Coast shire. Despite there being no have befriended the public/admin that many of our colleagues can For aspirational juniors yearning for the tips and points quota) are the places to ski off-shoot of the Flower Drum in this law gurus online. Such a shameless live a comfortable life by ordinary tricks that may one day elevate them to senior and après ski—the potential for locale, lunch is the main summer signalling of virtue is bound to community standards. It is in the making a positive impression with sport. Enough said. accelerate your career at the public criminal Bar’s interests, the court’s counsel status, submit your questions to your slope-side style (always skiing Practising in the public/admin law Bar, or otherwise improve interests and the overall community’s [email protected] for our anonymous silk to answer. and never, ever, boarding) while law domain requires a much more your prospects for election to the interests for the criminal justice holding your quarry captive on a ski nuanced approach to nurturing Moreland or Darebin Councils. system to operate in a way which lift is endless. Just look how well it relationships with the leaders of Finally, criminal law and family law. is economically sustainable for Dear Red Bag, worked out for… Well yes, there are this branch of the profession. Come The sad fact is that many criminal all involved. So too the family As an upwardly mobile young barrister, I would like your advice many names which might come to January, these creatures tend to swap and family barristers during January law system. about where best I should go on holiday. mind. On the other hand, if you are the panniers of their commuter bikes can be found in the courts in and So Blue Bag, whatever you get up I should let you know that I may have the taste for Mykonos or not so sporty and are more of the for hiking boots. They disappear around Melbourne. Crime does not to this summer vacation, might I Marrakesh, but not necessarily the budget. I would also appreciate commercial nerdy type, then Noosa trekking into the wilderness which stop, and certainly does not pay leave you with the words of Dickens, your input about how best to ‘bump into’ a learned senior, instructor is for you. Fear not, you don’t need makes them elusive. You might try when it comes to practising in this ‘No space of regret can make amends or member of the judiciary ‘by accident’, when on vacation. to wax up the long board and surf. and contrive a chance meeting on area of the law. The fact that so much for one life’s opportunity misused’ Do you have any winning methods to recommend? For the Victorian Bar’s favourite a hiking trail somewhere, but that criminal work is legally aided and and ‘it is a fair, even-handed, noble Yours, summer playground, Noosa is not would only result in a reasonably that legal aid rates are so appallingly adjustment of things, that while there Blue Bag. about surfing—it is about looking strong inference of stalking and low is a blight on both sides of the is infection in disease and sorrow, sophisticated in your tailored shorts lead to the possibility of you political divide and is something there is nothing in the world so ear Blue Bag, of your senior or judicial colleagues and espadrilles sipping a latte in being dragged into the Corryong in respect of which the entire Bar irresistibly contagious as laughter I see you are learning. over a pistachio gelato in Sorrento, Hastings Street around 11am, while Magistrates Court to respond to must agitate in the interests of and good humour’. DAnd getting it. That’s right, or an Aperol Spritz at the Australian vacantly contemplating where you an intervention order. Perhaps the proper reform of the criminal justice And I so advise. ability has never been a pre-requisite Open, or indeed further away. Those might dine that evening and which better way to curry favour with system. It should be unacceptable Merry Christmas to you and yours to success at the Victorian Bar. It is social connections made away from the establishment has the best wine your senior colleagues in this area to all of us that such important work my learned friend and may I wish people that make the world go round! routine hustle and bustle of William list. Think the lunchtime rush at is to go solo yourself and embark is not properly funded and that you a happy new year full of love, So, what better opportunity Street can form a very solid foundation L’Osteria in Little Bourke Street and on a bit of ‘voluntourism’, in say our brothers and sisters working in compassion, laughter and prosperity. to advance one’s career than to for a rewarding career at the Bar or there you have it—opportunities for Vietnam, or Sri Lanka. Perhaps join the criminal justice system, under Yours ever, accidentally on purpose bump into one eventually on the Bench. self-advancement galore! in on a project building a school or considerable personal pressure, Red Bag.

96 VBN VBN 97 Dion now has a painting on that wall with Robin saying to CPD IN SESSION Then and now - Batman: Hey Batman, I don’t think the Judge is buying what we – Batman slaps Robin and responds – Don’t ever doubt boilerplate meeeeeeee!!! On his desk is a 1939 Imperial typewriter. chambers with views A collection of Japanese whiskies occupies a shelf. Phil recalled clients who walked through this door: CAMPBELL THOMSON IN CONVERSATION WITH 12-month Alan Bond was in a spot of bother about a Van Gogh solo PHILIP DUNN QC AND DION FAHEY painting, The Irises. He came in to see me and said he’d had a stroke a little while ago. I said, “my father just had subsCriPtion

here have always been rumours that a stroke. He has a terrible short term memory. Are you Continuing professional $295 some chambers were bugged. Imagine sure you’re OK?” I had to take a phone call and Bondy the tall tales and true on tape in some went out for 10 minutes. He came back in and said, dusty archive if that were the case. When “my name’s Alan Bond, I’ve got a conference with you.” development by the Bar $199 generations of barristers pass through “You’ve just seen me,” I said! one room, the legends expand: X never I got Tim Watson-Munroe to have a look at him. Tim said for the profession lost a trial, Y made it with an associate on the Banco Court Bondy couldn’t run a milk bar, his mind is so full of holes. bench and Z made the best martini at the Bar. The following week, Bondy negotiated a multi-million dollar In 1982, some barristers established Aickin Chambers deal involving interlocking companies with holdings in oil, on the 27th floor, 200 Queen Street. On one side was boats, islands, you name it. He made a tidy packet on it … Tthe commercial set with Castan, Finkelstein, Goldberg, I tried to ask Dion about his cases for various Merkel, Pannam and Middleton. On the other side was the plaintiffs and defendants. He was warming up when Phil criminal set with Dunn, Farris, Galbally, Grant, Howard, remembered ‘the Munster’, Graham Kinniburgh, coming Leckie, Marin, Morrish, Parsons, Richter, Rozenes and to see him in the wake of the Great Bookie Robbery and Walker. Finkelstein negotiated the lease on behalf of BCL. then Carmen Lawrence when she was on trial for perjury He insisted on a clause allowing him to smoke. The floor in . Dion let the raconteur roll on … was known as Golan Heights. My first wife came up to get her passport out of my desk Philip Dunn QC was in room 2704. Dion Fahey is and tell me she was leaving. I was in a trial before George there now. Bar News interviewed them, admiring the Hampel. I couldn’t go on. Terry Forrest took over, bless afternoon sun making gold a view that stretches from his cotton socks. I was sitting here at 9pm wondering Specialist legal education from the Victorian Bar’s acclaimed CPD north to south through east from Carlton Gardens to where to go when the cleaner walked in, saw me looking CPDprogram isIN now SEavailableSSION for purchase by external subscribers on-line. St Patricks Cathedral, from the Dandenongs to the down and offered me a joint! Then the Red Baron, Robert MCG, to Government House and the Botanic Gardens. Richter, put me up for a couple of months and he bought Recent ugly towers intrude. the house next door for me to stay in. What an amazing According to Phil, all chambers must have a place the Bar is! CPDWhat IN is SE CPDSSION in session? CPDsubjeCt IN SE matterSSION exPerts conversation piece so solicitors remember them. It could Lights flickered on all over the city as dusk descended. CPD in SESSiOn provides online legal education by Sessions presented by eminent panellists, skilled advisors be Richter’s chair that was sat in by Samuel Johnson. Phil drew breath. We had a glass of fizz. the Victorian Bar for solicitors, in-house and government and speakers from across the legal profession. CPD in Phil has a Georgian bookcase that once held volumes Truly, the walls hold stories. There is room for lawyers offering a range of expert seminars and Q&A SESSiOn provides high quality continuing professional in an English mansion. It just fitted along the west wall. many more. sessions with expert presenters from the judiciary, the development from subject matter experts that is relevant, Bar and more. accessible, valuable and responsive to changes occurring within the legal profession.

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98 VBN Victorian Bar Office, Level 5, Owen Dixon Chambers East, 205 William Street, Melbourne 3000 VBN 99 boilerplate The story is that of Benjamin Barker, a barber who who recognises him from times past, leading Todd to kill mar* and Mariam first meet in 2012 while living in adopts the alias Sweeney Todd after spending years exiled Pierelli with one of his razors. ‘A bright idea pops into the Iran. They fall in love and are engaged to be married. to Botany Bay. He is smuggled back to London on a boat head’ of Mrs Lovett encouraging Todd to slit the throats O The stage versus Mariam is with child. She is virtuous and he is naïve. In boilerplate by a young, handsome sailor named Antony. of his patrons while purporting to shave their necks so September 2013, refusing life in a Hadean environment, His crime is brazenly described as ‘foolishness’ by that Mrs Lovett can grind their bodies and turn them into they travel to Indonesia. There, a handsome young sailor Nellie Lovett—the proprietor of a moribund pie shop meat pies. the cage – the named Soetomo smuggles them by boat towards Australia. situated beneath the room where Todd had operated his In the second act, everything is going to plan. Mrs Omar and Mariam long for a better life in a country about barber business—who has lusted after Todd since before Lovett, with the help of a young boy named Toby who which they have only heard good things. Suddenly, the boat his swift banishment to the Antipodes. Todd was foolish had served Pierelli before his untimely death, remarks sanctity of life, as carrying them is intercepted by authorities and before long, because he did not notice that his wife, Lucy, was herself that business is doing well and they are ensuring that Omar and Mariam find themselves separated and each lusted after by Judge Turpin, the ‘pious vulture of the law’ Todd’s victims are ‘strangers and such like wot won’t be forced into an island jail. Having been detained with no that sentenced Todd to life on drummed up charges so as missed’ so as not to raise any suspicion. When Todd slits seen by others charge and with no prospect of a trial, the only crime we to have unimpeded access to Lucy. With Todd out of the their throats, a contraption that he has fashioned with the can accuse them of is foolishness. picture, Judge Turpin proceeds to rape Lucy leading her chair on which his patrons sit, allows him to drop them HADI MAZLOUM The pious vulture of the law is the man responsible for to poison herself. Johanna, Todd and Lucy’s daughter, is through the ground straight to the basement where they creating these island jails. He refuses to offer Omar and adopted by the judge and kept as his ward. Upon being are ground into minced meat by Mrs Lovett and otherwise Theatre is a mirror, a sharp reflection of society – Mariam asylum. A minority of the audience show contempt told by Mrs Lovett that Lucy had poisoned herself, Todd burned in the furnace. Yasmina Reza towards him for this decision only to be later accused of assumes that she is dead. Bedel Bamford is tasked with investigating the stench hespians were graced with a staging of being un-Australian. The rest of the audience shrugs off Todd resumes his vocation as a barber in the room coming out of Mrs Lovett’s chimney upon becoming Stephen Sondheim’s Sweeney Todd at Her his behaviour. above Lovett’s shop vowing to exact his revenge on the aware of it due to a crazed beggar woman spreading word Majesty’s Theatre in late June this year. He deploys his bedels to roam the perimeters maintaining judge (and Bedel Bamford who helped orchestrate the of the ‘mischief’ and what she describes as a ‘city on fire’. and Gina Riley headed order and ensuring the indefinite detention of Omar injustice of Todd’s story). In the meantime, Antony falls in This all culminates in a large commotion where Antony a talented cast to take the audience and Mariam and those around them. ‘I am protecting love with Johanna and plots to steal her from the jail that rescues Johanna from the asylum. While she is hiding through this often haunting yet thrilling Australians from the evils of this world’, he is heard saying Judge Turpin has created for her by way of a locked room in Todd’s barber shop, Todd slits the throats of Bedel musical, made grand by a highly skilled orchestra. on the evening news one day. in his house (and later an asylum). Upon discovering Bamford, Judge Turpin and the beggar woman and almost The performance was a delight and despite some odd A bright idea pops into the head of a jailer, William, who this, Judge Turpin decides that he must marry Johanna kills Johanna who is dressed as a man. Todd hears Mrs direction choices and a few dropped lyrics and musical rapes Mariam in her bedroom which he enters under the himself to ‘protect her from the evils of this Lovett’s screams in the basement. He rushes to help her. imperfections (on the part of the cast), pretence of delivering her clean towels and sheets. When world’. Todd expands his targets to include At this moment, he realises that the beggar woman is in I left feeling as I always do when I am Miriam screams and complains, nobody listens. She self- T all of the affluent men of London after he fact his wife Lucy, who he has just murdered. Furious at fortunate enough to be in the audience harms in protest by swallowing razor blades; nobody cares. is blackmailed by another barber, Pierelli, Mrs Lovett for not telling him that Lucy was still alive, he of a Sondheim show: happy. Omar discovers what has happened to Mariam and tells her that ‘life is for the alive my dear’ and throws her douses himself with petrol and sets himself on fire. Another into the furnace. Toby then slits the throat of Todd who bedel, Henry, rushes with water in an attempt to put out the dies while holding his beloved Lucy in his arms. She was flames. He succeeds in doing so but Omar is not provided virtuous, he was naïve. The end. with the appropriate medical attention in time and he dies If you are unfamiliar with Sweeney Todd, you will have a few days later. no doubt surmised that it is a dark musical. Sondheim Layla, Omar and Mariam’s child, five years old at the time cleverly incorporates humour and wit so as to temper this happened to her parents, sews her lips together. Bedel the gory details with an undercurrent of comedy. Using Charles happens upon this mischievous act and says to her, this reprieve as a shield, the audience deeply empathises ‘at least I won’t have to hear you cry anymore’. with Todd’s plight and are left egging him on to exact The final scene sees a group of people walking through a the revenge that he seeks. The writing is so gripping, gate. There is a sign atop the gate that reads, “Welcome to and Todd’s character so captivating, that the other men Australia”. The audience then sees that it is not Australia killed along the way are seen as mere collateral and are at all, but a big black hole into which they fall to their afforded very little sympathy even if they represent a imminent death. Life is for the alive my dear, and Omar subset of the intelligentsia with which we identify. At and Mariam were, for all intents and purposes, dead soon curtain close, the audience is left deeply sad that their after leaving Indonesia. hero, Todd, has died. They applaud vigorously because The audience applauds. ‘This is how it’s done,’ an older that is how it is done. gentleman says to a young girl sitting next to him. The The audience readily sympathises with the smugglers, audience exits. They will have forgotten what they saw murderers and the falsely imprisoned in this story shortly thereafter, despite the fact they have witnessed through the prism of fiction and musical theatre. But a story about actual humans, even if they are ‘strangers if the story is told slightly differently such as the one and such like wot won’t be missed’, suffering because that follows (which is not a musical and not by Stephen of our action—or inaction, as the case may be. Sondheim), it might well be met with a marked apathy.

Anthony Warlow and * All names have been changed. Facts are extracted Gina Riley in Sweeney from actual stories. Todd The Musical image courtesy of ben fon/the life like theatre company life like theatre of ben fon/the courtesy image

100 VBN VBN 101 PRACTICAL LAW: TIPS FOR THE DAY TO DAY months old. You may thereby be conflicted between giving correct advice (to delay) and breaching 13 boilerplate Taxing matters: judgments a statutory duty (not to delay). 6. Your advocates’ immunity does not extend to settlements.14 Hence, and settlements if you did not consider taxation in settling a case but should MICHAEL BEARMAN1 have, you may suffer unpleasant consequences, including (although not limited)15 to paying the LPLC wenty years ago, I then, only in limited circumstances: its excess from your own pocket: presented a paper with Income Tax Assessment Act 1997 ignorantia legis neminem excusat.16 John de Wijn QC entitled (Cth)2, s 118-75.3 Secondly, the CGT 7. GST can be really hard. C’mon, CGT, GST and Proceeds relief otherwise available to spouses, please!! of Litigation. Ten years later, Daniel related trusts,4 and companies,5 1. Michael has over 30 years’ experience as McInerney and I presented an operates only to defer tax by way of a tax lawyer. He recently ran a shipping Tupdate for the Tax Bar Association. roll-over (if you do not know what case in New South Wales, and learned a Thereafter, I presented further that means, look it up). Finally, there lot of interesting new words. Many of his close friends are family lawyers. updates every three years or so. are no exemptions from income tax, 2. Yes, the legislation has changed since 6 Over the years, an important theme including upon trust distributions you studied at uni. There have been two emerged: too many barristers pay and deemed dividends under Div income tax assessments acts for over 20 too little attention to the taxation 7A7 of the Income Tax Assessment Act years now. consequences for their clients arising 1936 (Cth).8 3. The section applies only to capital gains and losses made by CGT Event C2 from their matters until far too late. 2. Ditto for personal injury lawyers. (s 104-25), which operates when In other words, please do not call me It is true that any capital gains ownership of an intangible ends in to the following effect (especially at tax otherwise imposed upon a way there described. 4.30pm on a Friday): “I am [insert compensation or damages for any 4. Yes, I know family lawyers generally do not need to care what a trust is or name] of [insert list]. I am in a wrong, injury or illness suffered how it works. 9 mediation that has been running personally is “disregarded”, but that 5. Ditto for companies. for [insert time]. My client is about won’t help your client if an amount 6. Ha! to sign terms and I am concerned is taxable as income. 7. Although deemed dividends arising because the other side insists that 3. Settlements in commercial cases because of a family law obligation may my client provide a tax invoice. If do not become tax-free just be franked: s 109RC of Div. 7A. I explain to you what the case is because they are structured as 8. Yes. That’s the Act you remember from uni. about, can you please tell me if my unapportioned lump sums. Yes, 9 Income Tax Assessment Act 1997, client will be liable to GST?” If you really! It is a recent development s 118-37(1)(a)(ii); and if anyone knows do call me in such circumstances, from 20 September 1985.10 what s 118-37(1)(a)(i) means, please let me know. take notice that (a) the volume of 4. Nor do settlements of commercial 10. In all seriousness, claims and my response may damage (i) your disputes become tax free by the settlements concerning underlying hearing, (ii) your phone, or (iii) both, parties allocating compensation assets acquired before 20 September 1985 and (b) unless you are a maritime for “pain and suffering”. That is should be handled particularly carefully lest an otherwise CGT-free status be lost. law specialist, you will probably especially so if pain and suffering 11. “General Anti-avoidance Rules”; involuntarily add to your vocabulary. are not heads of damage arising see Income Tax Assessment Act 1936, I responded to similar effect when from the cause of action alleged. Pt IVA (of which everyone knows but I was asked to provide an accurate, You know who you are. only the High Court understands). concise and—above all—entertaining 5. Subject to the GAAR11 (a future 12 McLaurin v Federal Commissioner of Taxation (1961) 104 CLR 381; Allsop v topic, if the editors will still statement of the law on this topic in Federal Commissioner of Taxation (1965) 1000 words, or less. Since I am unable publish me), a settlement properly 113 CLR 341. to do so, here are some thoughts, in structured as an unapportioned 13 Civil Procedure Act 2010 (Vic), s 19; no particular order: lump sum will be on capital c.f. s 13(1) (whatever it means). 1. Because you are a family lawyer does account.12 Where a party (not being 14 Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1, p. 24 [46]. not mean that you can disregard a company) thereby makes a capital 15 E.g., you might be cross-examined by me. taxation. First, only capital gains gain, the gain may be discounted by 16 Black’s Law Dictionary, 5th Ed (1979), directly related to a breakdown of a half. But that is only if the subject West Publ Co, p 673; alternatively, marriage are disregarded and, even cause of action was more than 12 use Google.

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