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SUMMER EDITION A brief meditation on artificial intelligence Guidance for NSW Barristers in the wake of lawyer X Updated sentencing statistics on the Judicial Information Research System CONTENTS THE JOURNAL OF THE NSW BAR ASSOCIATION | SUMMER 2019 02 EDITOR’S NOTE bar 04 PRESIDENT’S COLUMN news 06 OPINION ws The bar needs to fight for its future 6 The future of the Bar – a response 8 EDITORIAL COMMITTEE A brief meditation on artificial intelligence, Ingmar Taylor SC (Chair) adjudication and the judiciary 10 ne Gail Furness SC The consequence of delay in Local Court criminal matters 13 Anthony Cheshire SC Farid Assaf SC 14 RECENT DEVELOPMENTS Dominic Villa SC THE JOURNAL OF NSW BAR ASSOCIATION | AUTUMN 2019 14 Penny Thew Scrutinising Two-Candidate Preferred Counting in the High Court Daniel Klineberg Australian Securities and Investments Commission bar Catherine Gleeson v Kobelt [2019] HCA 18 16 Victoria Brigden Claims for quantum meruit 18 Kevin Tang Belinda Baker Female Genital Mutilation and Statutory Construction 20 Stephen Ryan A Majority of the Victorian Court of Appeal Uphold Cardinal Joe Edwards Pell’s Conviction for Child Sexual Assault Offences 22 Sean O'Brien Kavita Balendra The UK Supreme Court finds that Boris Johnson’s Ann Bonnor prorogation of Parliament was unlawful 24 Christina Trahanas Trouble in Paradise Papers: privilege may not found a cause of action 26 Bar Association staff members: Michelle Nisbet Vale the Chorley Exception 27 Cover image: Rocco Fazzari 28 FEATURES Guidance for NSW Barristers 28 ISSN 0817-0002 A Message from the Free State of Prussia to Hong Kong 30 Views expressed by contributors 34 to Bar News are not necessarily Are there implications of New South Wales Court filing trends? those of the New South Wales The updated and enhanced sentencing statistics on Bar Association. the Judicial Information Research System 36 Contributions are welcome and Revealing Secret Clerks' Business 38 should be addressed to the editor: The Constitutional Significance of the Australian Bar 42 Ingmar Taylor SC Greenway Chambers Library Databases 48 L10 99 Elizabeth Street 53 LEGAL HISTORY Sydney 2000 DX 165 Sydney Australian Racism: The Story of Australia’s First and Only Black Premier and Chief Justice – Sir Francis Villeneuve Smith 53 Contributions may be subject to Debtors’ Prison and the Rules of the Prison 58 editing prior to publication, at the discretion of the editor. 62 NEWS Antipodean Advocacy: Queenstown 2019 joint conference 62 Honouring members with 50 years' service at the NSW Bar – Experienced Barristers Program 64 Experienced Barrister Program 65 Bar News is published under a National Indigenous Legal Conference 2019 66 Creative Commons ‘free advertising’ license. You are free to share, copy 2019 Senior Counsel 68 and redistribute the material in any The NSW Bar Association: Website renovation 69 medium or format. You must give appropriate credit, provide a link to Bar Practice Course 01/2019 and 02/2019 70 the license and indicate if changes Tutors & Readers Dinner 71 were made. You may do so in any reasonable manner, but not in any 72 APPOINTMENTS & RETIREMENTS way that suggests the licensor 78 OBITUARIES endorses you or your use. You may not use the material for commercial 83 REVIEWS purposes. If you remix, transform or 99 ADVOCATUS build upon the material, you may not distribute the modified material. 100 THE FURIES The Journal of the NSW Bar Association [2019] (Summer) Bar News 1 EDITOR’S NOTE Officers of the Court of the silk. He was no less surprised (and amused) at the thought that a floor member would contemplate such a thing. While honesty and straight dealing remain a core element of practice as a barrister, other aspects of practice are changing. Undoubtedly in some ways these are changes for the better: the bar is becoming more diverse and increasingly embraces the efficiencies that technology can provide. However, as a number of authors in this edition identify, not all the change is positive. For a start, while the number of practising barristers continues to increase (now 2412 in 2018/19, a 7.5% increase over the last 5 years) the number of cases that are commenced is decreasing. Farid Assaf and Penny Thew (Are there implications of NSW Court filing trends) report on the decline in court filings over the last 13 years: filings in all State Courts are down by almost 45% in total, which can only have been partly offset by a 13% increase in Federal court filings and the increasing uptake of Alternative Dispute Resolution. Working at the Bar as a sole practitioner carries with it financial challenges and risk. Anthony Cheshire (The bar needs to fight for its future) discusses some of these changes in barrister practice. He focusses on a worrying trend of viewing barristers as merely an additional lawyer (and cost). In person whose knowledge of judge describes the American open bar as what he identifies as a possible reaction to the courtroom advocates is derived from being dominated by lawyers whom Judges reduction in the number of cases, solicitors American TV would find the reality do not trust. “American lawyers are called A increasingly do the work they previously sent of the Sydney bar confounding. ‘officers of the Court’, but this is said with a to counsel. As Cheshire identifies, the bar Not just because we do not routinely pause smile (or a sneer). [In contrast] Barristers are needs to continue to take steps to inform the our cases while we investigate the facts. officers of the Court”. public that not only is it often less expensive We try our hardest to win cases against It reminded me of an observation made our opponents, but we do not cheat or an American legal academic who visited a to brief junior counsel to draft pleadings and mislead them. We may be competitors, but silk at the Sydney Bar. The academic was prepare evidence, briefing at an early stage we share offices and go out of our way to give fascinated by the fact that his friend shared will often assist to identify the real issues in a assistance to other barristers. a floor with barristers who were commonly case and to provide advice on prospects that Walter Sofronoff’s Maurice Byers annual his opponents. He was taken aback that can lead to early settlements. lecture (The constitutional significance of there were no locks on the doors. “There Kavita Balendra (There is a future in the the Australian Bar) ends with a reflection is nothing to stop your opponent just walking Bar – a response) identifies the phenomenon from an American judge on the difference into your room when you are not there and of barristers appearing without a solicitor between barristers in the English legal reading your brief?” he asked. The part of present, which occurs before the Workers system and trial lawyers in America. The that story that I like best was the reaction Compensation Commission. 2 [2019] (Summer) Bar News EDITOR’S NOTE Another change that has been well I have a particular soft spot for good Whether you are a fan of a book review documented is the increasing reliance on historical pieces, and this edition carries or not, you must read Justice Andrew Bell’s written submissions. Advocatus describes two. Michael Kirby’s piece, Australian highly learned and very funny speech given how the modern written submission is Racism: The story of Australia’s First and Only at the launch of Heydon on Contract. It picks Black Premier and Chief Justice – Sir Francis written: in rainbow colours, each colour out gems from the book like sixpences from Villeneuve Smith tells the fascinating tale of representing the input of the many solicitors a Christmas pudding. Bell cites Heydon’s and client officers who ‘assist’ to finalise the third Premier and fourth Chief Justice of Tasmania, whose mother was of African concern as to excessive use of extrinsic a submission, more often than not in the evidence as clogging the arteries of commercial hours before it is due to be filed. descent, and succeeded due to his great talent, despite the outrage that ‘a coloured litigation. He pulls out delicious quotes, This being the summer edition, it has a person is sitting in judgment upon the such as “The cost pressures affecting large firms number of interesting pieces to read during Anglican race’. of solicitors operating under their expensive the annual shut down. Sean O’Brien’s John Bryson QC (Debtors Prison and the business models are notorious. In those A message from the Free State of Prussia to Rules of the Prison) describes a period of our Hong Kong examines how legal systems can circumstances a cynic might say that greater history when debtors were imprisoned. To love hath no managing partner than this – the used to give legitimacy to ‘law by decree’. It deal with the practical problem of a small eruption of large-scale commercial litigation was how the German Government deposed gaol, in 1834 the NSW Supreme Court the democratically elected government of deemed a small part of what is now the against a loyal and valued client.” Prussia in 1932, and he draws a comparison CBD near Circular Quay to constitute the Bell has no compunction about teasing the with the Bill introduced in Hong Kong to boundaries of the ‘prison’. This area, which author: noting that “‘Modern’ is not a term allow the Chief Executive to make ad hoc came to be known as ‘the Rules’, after the of approbation in the Heydon lexicon”; and extradition orders to mainland China, which Supreme Court Rules that determined the identifying that the book’s strong Australian has led to more than 6 months of protests.
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