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VICTORIAN BAR NEWS ISSUE 156 SUMMER 2014 A very good fellow VICTORIAN The Hon Michael McHugh AO QC on James Merralls AO QC Why we need a federal BAR anti-corruption body NEWS by Stephen Charles

Ten years Sir Owen Dixon’s papers at the top Bar lore Two Chief Justices celebrate a milestone

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MBA1729_08B_VIC Bar Full Page Ad_Oct14.indd 1 5/11/2014 4:13 pm ISSUE 156 SUMMER 2014 VICTORIAN

Editorial 50 Legal profession uniform law: A fair vanity 3 regulation of lawyers has changed THE EDITORS BAR MICHAEL MCGARVIE Letters to the editors 4 54 Commercial arbitration in Asia: Chairman’s report 6 NEWS is the Victorian Bar camping out? From the new Chairman 8 GEORGINA SCHOFF Around town 58 Dr Cliff Pannam QC: advocate, Bar portraits: united at last 9 teacher, scholar, friend SIOBHÁN RYAN GEORGE GOLVAN Indictable Crime Certificate 14 61 Musings on the case of the Committee launch chimney sweep’s boy GEOFFREY EAMES CLIFF PANNAM The French Australian 17 65e Bar lor lawyers society AMY BRENNAN 9 65 Owen Dixon the barrister – Bar v LIV hockey match report 18 no case too small ROBERT HEATH ANDREW DENTON 70 A step back in time An evening with Lord Neuberger 19 VICTORIAN BAR NEWS VICTORIAN BAR NEWS 73 H.B. Higgins: federal father, judge, International commercial 20 rebel JOHN RICKARD arbitration JOHN ARTHUR Copyright: the international 21 Back of the lift agenda CLAIRE CUNLIFFE 78 Silence all stand Victorian Bar and Law Institute 22 81 Vale of Victoria conference 2014 JESSE J RUDD 86 Gonged Victorian Bar Pro Bono 24 40 87 Victorian Bar readers – awards 2014 September 2014 SALLY BODMAN 87 Victorian Bar council 2014-2015 News & views 88 Quarterly counsel Bon anniversaire: 10 years into 26 44 the reign of two Chief Justices Boilerplate GEORGINA SCHOFF & GEORGINA COSTELLO 90 A bit about words – Scrabble Wake up and smell the money: 31 JULIAN BURNSIDE the case for a federal ICAC 92 Red bag blue bag STEPHEN CHARLES 93 Cabs on the rank The James Merralls visiting 36 94 The music column ED HEEREY fellowship in law MICHAEL McHUGH 95 The wine column SARA HINCHEY A whale of a time: Australian 40 96 Restaurant review SCHWEINHAXETTE advocacy in the International 97 Casenote MICHAEL WHEELAHAN Court of Justice MARK DREYFUS 104 Book reviews PAUL DUGGAN, Well-versed: poetry 43 94 J.D. MERRALLS, MICHAEL WHEELAHAN, for Lachie Carter JEREMY TWIGG AND ROSS MACAW CAMPBELL THOMPSON 111 Legal friends of the Melbourne Open justice and the internet: 45 Recital Centre MEREDITH SCHILLING what should the approach & HANNAH PELKA-CAVEN be in Victorian courts? 112 Verbatim GEORGINA SCHOFF

ISSUE 156 SUMMER 2014 VICTORIAN BAR Editorial NEWS A fair vanity

Editors: Georgina Schoff QC and Georgina GEORGINA SCHOFF & GEORGINA COSTELLO, EDITORS Costello. Victorian Bar New editorial committee: Georgina Schoff QC, Georgina Costello (Editors), Robert elcome to Victorian Bar News edition 156, where we Heath, Anthony Strahan, Maree Norton (Deputy display some of the talents of the Renaissance men and Editors), Catherine Pierce, Justin Hannebery, Annette Charak, Brad Barr, Jesse Rudd, Denise Renaissance women of the Victorian Bar. Among our Bennett and Sally Bodman. barristers are poets and painters, multilingual men and Contributors: (In alphabetical order) Paul Adami, women, some singers and some scholars, an abundance of authors and William Alstergren QC, John Arthur, Richard athletes and a rockstar or two (perhaps rockstar is overstating it, but Attiwill QC, Brad Barr, Nick Batten, Denise Bennett, Georgia Berlic, Sally Bodman, his Honour Wlegend of the Bar, Brian Bourke, did once sit next to Ernest Hemmingway Judge Bowman, Amy Brennan, Philip Brown, on a small plane flight from Cuba to Miami). Julian Burnside AO QC, Annette Charak, the Hon In our News and views section, Dr Cliff Pannam QC has brought a well- Stephen Charles QC, Georgina Costello, Clare Cunliffe, Andrew Denton, Andrew Donald, the known old case alive in his case note. Over the page you’ll find George Hon Mark Dreyfus QC, Paul Duggan, the Hon Golvan QC’s tribute to Dr Pannam, whom he describes as a Renaissance Geoffrey Eames AM QC, Garry Fitzgerald, Bill man. James Merralls AO QC, who is profiled in a speech by the Hon Gillies, Lesley Glick QC, George Golvan QC, Justin Hannebery, Paul Hayes, Sam Hay, Robert Heath, Michael McHugh AC QC on page 36, has himself written a scholarly book Ed Heerey, Sara Hinchey, Katrina Howard, Ross review which you will find on page 105. Macaw QC, Michael McGarvie, the Hon Michael We bring you a new section of the magazine - Bar lore - where we McHugh AC QC, Jim Merralls AM QC, Peter O’Callaghan QC, Cliff Pannam QC, Hannah Pelka- feature photographs of a long lost Owen Dixon brief and continue our Caven, Jim Peters QC, Catherine Pierce, John series of historical profiles. Rickard, Adam Rollnik, Jesse Rudd, Siobhan Ryan, Elsewhere in Bar lore, we have extracted from the Bar News of 30 years the Hon Justice Santamaria, Meredith Schilling, Georgina Schoff QC, Geoffrey Steward, Anthony ago an ethics bulletin about tight restrictions on passing out business cards Strahan, Campbell Thomson, Jeff Thornton, and an article entitled “I put a case on computer”. Consider the contrast Jeremy Twigg SC, Frank Walsh AM QC, Michael between that time and this while you read about the contemporary debate Wheelahan QC Photo contributors: Peter Bongiorno, Jette Baggs- on whether court proceedings should be streamed on the web on page 45. Sargood, John Dever, Justin Hill, Katrina Howard, VBN 156 introduces the first of some new regular columns. In our David Johns, Nicole Papaleo, Neil Prieto music column, Ed Heerey tunes in to digital radio. In our wine column, Cover photo: Peter Bongiorno Sara Hinchey provides timely tips for summer drinks. Our “first and Illustrations: Guy Shield last cab on the rank” column contains a Q & A with our most senior Publisher: The Victorian Bar Inc. Owen Dixon Chambers, 205 William and junior barristers. If you have any ideas for a new kind of Bar News Street, Melbourne 3000. Registration column, please send a note to [email protected]. No. A 0034304 S. The inaugural “first cab” is Peter O’Callaghan QC, the man whose This publication of Victorian Bar News may be cited as (2014) 156 Vic B.N. Opinions expressed name adorns the Bar’s portrait gallery. Beautiful photographs of the are not necessarily those of the Bar Council gallery opening grace pages 9-13. Justice Crennan (who was, to continue or the Bar or of any person other than the author. our theme for this edition, described as a “Renaissance woman” by Advertising Justice Alan Goldberg in 2003) spoke at the gallery opening. All enquiries including request for advertising rates to be sent to: Mr O’Callaghan has written the obituary for Howard Fox QC, describing Ms Sally Bodman him as a barrister “fluent in Latin, Greek and modern languages, including The Victorian Bar Inc. Swahili”. Santamaria JA has written the obituary for Ian Denis McIvor, 205 William Street, Melbourne 3000 describing him as a man who “read everything and read widely. He knew all Tel: (03) 9225 7909 of Dickens and all about Dickens.” photo by peter bongiorno Email: [email protected] Design and Production: The Slattery Media Group; www.slatterymedia.com Contributions: Victorian Bar News welcomes contributions to [email protected].

Back row: Anthony Strahan (Deputy Editor), Denise Bennett, Jesse Rudd, Justin Hannebery, Brad Barr, Maree Norton (Deputy Editor) Front row: Annette Charak, Georgina Schoff QC (Editor), Georgina Costello (Editor), Robert Heath (Deputy Editor) Barristers past and present, TO who you will read or read about Letters THE Editors

editorial in these pages, remind us of the unique opportunities that life as a member of an independent bar affords us all to be Renaissance men and Renaissance women.

Our regular columnist, wordwatcher Julian Burnside AO QC, has discovered the Collins Scrabble Dictionary and thrown away his tiles in disgust. His is a must-read article for summer board game players. We are also pleased to publish photos of the launch of former Bar News editor’s book, Excursions in the Law by Peter Heerey. Michael Wheelahan QC, a great leader of our bar, has penned a thoughtful note on a case which has some notoriety: Yara v Oswal, as well as a book review of a weighty defamation text written by Dr Matt Collins photo courtesy of jacinta forbes sc QC and the welcome to Justice Beach. The Hon Stephen Charles QC courageously puts the case for a federal anti-corruption body in his article, adding to his earlier article in edition 153 regarding Victoria’s IBAC. In these days of touting and huggery, when so much of our collective energy as a Bar is Thank You! focused on the need to win work, barristers The VBN committee thanks all contributors to our summer edition past and present, who you will read or for 2014 and wishes you all a lovely summer vacation. read about in these pages, remind us of the unique opportunities that life as a member of an independent Bar affords us all to be Renaissance men and Renaissance women. Old school tired This edition has been a joy to compile. We inian Stephen had a only a single year at Scotch? And the other thank our excellent team on the editorial chaps at the Bar still spoke to him? And later, chaps even allowed committee. We also thank Denise Bennett for Nhim to join the Melbourne Club? Quelle horreur! her administrative assistance and cheerful We learnt this in the Bar News Winter edition (Ninian Stephen at the efficiency. To Justin Tomlinson, who edited the Victorian Bar). last three editions, we extend our gratitude. Tantalisingly, we also learnt that, as a German-speaking 15-year-old, Finally, it gives us great pleasure, as the first Stephen had excellent seats at the Nuremberg Rallies. So, what did team of Georginas to edit the Victorian Bar the now-famous advocate and judge make of seeing arguably history’s News, to bring you our cover story on the 10- most famous demagogue perform live? Alas, the Bar News moved on to year milestones of Chief Justice Warren and Stephen’s early career as an Arthur Rob’s delivery boy without telling us. Chief Justice Bryant. Our courts and our Bar In Stephen’s long and varied career, there surely must be stories more are lead by fine men and women, whose skills interesting to Bar News readers than how he overcame the privations of were honed here among the collegiate cut and having attended different private schools to his barrister peers. Even if thrust of practice. Enjoy this fair vanity of pages such trivia was ever interesting or relevant (hard to believe), surely the by and about our barristers and please send us Bar is not so old school that the Bar News should pander to it now. correspondence about what you like and don’t Paul Duggan like reading. After all, you are men and women of letters. (Grange Rd Kindergarten, class of 1970; Sacred Heart, Georgina Schoff and Georgina Costello, Editors Sandringham, class of 1978; St Bede’s College, class of 1984)

4 VBN VBN 5 editorial With Respect f all the places in which a plaintiff, humiliated, intimidated and, in some ill-treatment of practitioners in open Odefendant or lawyer might expect cases, reduced to tears by a few judges court serves only to undermine not only to be treated with decency, courtesy and and magistrates who have become the confidence of a particular client in respect, the courtroom should rank first. notorious for their ill-treatment of those their own legal representative, but to Overwhelmingly, that legitimate who appear in their courts. undermine the public’s confidence in the expectation is fulfilled by judicial officers The effect upon those practitioners legal profession more generally. who regularly discharge their duties who have been so treated has often Emotional and psychological fragility conscientiously and with civility. been profound. Self doubt has been amongst our members is not uncommon, Regrettably however, there are a exacerbated, fledgling confidence yet is often difficult or even impossible handful of judicial officers who do not extinguished and some have had their to discern. The consequences that such behave in the discharge of their duties self-esteem so adversely affected that gratuitous insensitivity has the potential with the courtesy and propriety that they have entertained, and in some cases to cause does not bear contemplation. distinguishes the vast majority of their pursued, alternative careers. It would go a considerable way to brethren. Like any profession, the legal solving the problem if those who are Just as judges and magistrates discuss profession is made up of people whose elevated to judicial office took time with one another the legal practitioners abilities, experiences and talents vary. to remember how hard it might have who appear before them, we as Some are more able and experienced been for them at times to perform their practitioners share with one another our than others. Rather than denigrating the functions as lawyers. It would perhaps experiences of them. less able or less experienced, judges and solve the problem altogether if they It has become clear in recent times magistrates ought to be doing their best treated those in their courtroom as that some young, inexperienced and to nurture, encourage and assist them. they themselves spent their careers as often female practitioners have been Judicial officers, like members of the practitioners hoping to be treated. mocked, derided, belittled, bullied, legal profession, serve the public. The Geoffrey Steward

“The last Bar News looks excellent. Congratulations.” Erratum Meredith Schilling Dear Georgina and Justin, “Just a quick note to say well Thank you for the coverage done on the bar news, it looks given by you to my article fantastic, well done. I don’t and portrait published in know how you find the time…” the winter edition of the Andrew Broadfoot Bar News. I hope it was well accepted by members “Brilliant work on the latest of the Bar. issue of Bar News. The best Unfortunately there is I can remember reading. one error which I failed I don’t know where you to pick up in at least six find the time!” readings of the draft. The Stewart Maiden correct surname of the artist is Holt. Her full name is Marge Holt. I have drawn this error Have your Say Write to to her attention and the the Editors at Victorian suggested rectification is Bar News, Owen Dixon to request its publication Chambers, 222 William in the next issue of the Street, Melbourne, VIC . 3000 Frank Walsh or email vbneditors@vicbar. com.au

VBN 5 Chairman’s report letters to the editor letters to

WILLIAM ALSTERGREN

n 2014 the Bar Council has sought to Brandis QC, State Attorney-General the Hon Robert position Victorian barristers as the leaders Clark MP, five High Court Justices, the Chief Justice of of our profession. We are justly proud of Victoria and representatives of all our courts. My thanks the expertise, professionalism, collegiality go to our guest speakers, the Hon Justice Hayne AC and and commitment to justice that we find in Jeremy Ruskin QC. Each gave very fine speeches that abundance among Victorian barristers. were as entertaining as they were thought provoking. I A crucial role of the Bar Council is to demonstrate thank those on the organising committee, the Bar Office, the excellence and value of barristers and to make a good the Bar Band and Bar Choir for helping make this such a business case for briefing barristers. To this end, memorable event. I started the year by meeting with most of the major law Victorian barristers continue to do enormous amounts firmsI to seek their views about the role of the Bar and of pro bono work. The 2014 Pro Bono awards celebration the profession generally. After that, I met with solicitors took place on 16 October 2014. During the year the in Melbourne and regional Victoria; and with corporate Pro Bono Committee enlisted the support of the clerks counsel and government solicitors across Melbourne. to develop a survey for measuring the amount of pro I championed barristers at a variety of functions, dinners bono work undertaken, its commercial value, type and and CPD sessions including in suburban and regional the source of referral in fee books or their electronic Victoria and in Malaysia. It was both a privilege and a equivalent. I thank Jane Dixon QC and the committee pleasure to represent our Bar in this way. for their fine work and look forward to reading the This year, the Bar hosted the first whole of legal results of the survey. I thank Nicole Dawson of the profession CPD conference in Victoria with the Law Bar Office for her outstanding work as coordinator Institute of Victoria and the judiciary. Over 300 attendees of the Duty Barristers’ Scheme. heard from eminent speakers from across the Bar, the During the year, the Bar launched a pilot scheme for the judiciary, law firms, government regulators, in-house provision of pro bono representation for unrepresented counsel and the State Attorney General. The conference parties seeking leave to appeal to the Court of Appeal. was a great success and has created much interest in Aimed at assisting the Court of Appeal to clear backlogs, the Bar and its members from other parts of the legal the scheme will provide an opportunity for junior counsel profession. to work closely with senior counsel and senior juniors in The Bar Council enjoys a constructive relationship higher courts. with Attorneys-General Senator the Hon George Brandis The Bar Council has worked hard this year to improve QC and the Hon Robert Clark MP. We are grateful to equality at the Bar. We are pursuing a number of projects, the Attorneys for their support of and contributions to including mentoring projects and unconscious bias the Bar, including for their attendance at numerous Bar training. Bar Council recently met with the Victorian functions and CPD sessions. Members of the Bar Council Human Rights and Equal Opportunity Commissioner on have enjoyed meeting with Shadow Attorney-General other ways to enhance equality at the Bar. Martin Pakula MP on a number of occasions. We are also I congratulate our Bar News Editors, Georgina Costello grateful for the support that former Federal Attorney and Justin Tomlinson and the editorial committee for their General, Mark Dreyfus QC provides to our Bar. two outstanding editions of Victorian Bar News while I On November 7, 2014, the Bar officially opened the have been Chairman. The Victorian Bar News Committee Owen Dixon Chambers West extension levels 19 to 24, has now been reorganised with Justin’s resignation and adding 82 new chambers. A large part of the $31 million the return of Georgina Schoff QC as an editor of this project was funded by BCL. Edwin Gill retired as CEO edition. A new app has been added this year for those and Managing Director of BCL in August. On behalf of the wishing to read Bar News on-line. For those hungry Bar, I thank Ed, Chair of BCL - Michael Wyles QC - and for history, this year we have added to the website past the BCL Board and staff for their work. editions of Victorian Bar News and annual reports going The 2014 Bar dinner was again held in the beautiful back to their first publication. Myer Mural Hall. It was a “sell out” with 550 in attendance After seven years of outstanding service to the Bar on the night. Honoured guests included the Governor of Stephen Hare is retiring. We are grateful to Stephen for Victoria, his Excellency the Hon Alex Chernov AC QC, all he has done in this time. He will be missed. A national Federal Attorney-General, Senator the Hon George search is underway to find a new CEO. We expect to

6 VBN VBN 7 I championed barristers at a variety editorial of functions, dinners and CPD sessions including in suburban and regional Victoria and in Malaysia. It was both a privilege and a pleasure to represent our Bar in this way.

announce a new appointment before Christmas to start early in the New Year. I congratulate my predecessor Fiona McLeod SC for her work as Chair. I congratulate Jim Peters QC on his election as Bar Chairman. I thank the Hon Justice Jonathan Beach who was at our Bar for more than 26 years, the last four as a member of the Bar Council, serving as Honorary Treasurer, Vice-Chairman and at times Acting Chairman. On behalf of the Bar Council and members I express my thanks to the staff of the Bar Office. They do an enormous amount of work on behalf of members and are the “engine room” for many initiatives and projects. I particularly thank the Bar Council’s excellent Executive Assistant, Denise Bennett. I also thank Ross Nankivell for his support of our court welcomes and farewells, and other functions. I thank all the members of the Bar Council and especially Vice- Chairmen, Jim Peters QC and Paul Anastassiou QC and Honorary Treasurer David O’Callaghan QC for their support during the year. I have this year relied upon all members of the Bar Council and thank them for their support. I also thank Honorary Secretary, Paul Panayi and Assistant Honorary Secretaries, Matthew Hooper and Barbara Myers for their work in supporting this Bar Council. Finally, the work of the Bar is heavily dependent on the contribution of many members who volunteer collectively many thousands of hours of work, through the Bar associations, committees and individual effort. Thank you all.

15 November, 2013

VBN 7 is the growing absence of junior counsel in criminal matters in the lower courts. The Bar is a most letters to the editor letters to competitive labour market. It is constantly being refreshed with new members who are of exceptional skill and talent. It is in the public interest that government organisations avail themselves of this specialised body of expert advocates for the benefit of those who are particularly vulnerable in the criminal process. There are a number of important projects which will be completed or implemented in the coming year. They include dealing with coroprate counsel directly, the Indictable Crimes Certificate, which was recently launched, the new constitution and, finally, the appointment of a new CEO. At the time of writing this report, the search for a new CEO is well underway. The Bar Council has established a working group to review the Readers Course exam. The Readers Course is constantly reviewed to ensure that it meets the needs and objectives of our Bar. The working group is part of that process. I look forward to the coming year with both optimism and with determination that our Bar Council should continue to promote its members’ interests and keep that as its foremost principle. From the New Chairman Finally, I thank the retiring members of the previous Bar Council and welcome those re-elected and JIM PETERS newly elected. We look forward to serving the Bar this year. Will am delighted to be the understanding of the value in Alstergren QC wrote in this column Chairman of the new Bar briefing counsel at an early stage. last year that his focus would be Council. I look forward Counsel should be briefed early on “engaging and strengthening to the next year and and appropriately. The skills, relationships with solicitors, the meeting the challenges expertise and value that our Courts and the community and facing our Bar. The members bring to the resolution working to improve opportunities primary role of the Bar Council is of disputes in courts, tribunals and for barristers”. Will has done all that to facilitate getting work in for the otherwise is invaluable to clients. and more by tireless personal effort, entire Bar. I intend to continue in Costs are saved if skilful specialist working closely with the Bar Council the initiatives currently underway advocates are briefed at an early and Bar Office staff. The Bar as a inI this regard. A great deal of work stage. whole has benefited from his efforts. has been done this year in engaging I also intend to continue to engage He leaves it in great shape. I feel a the entire profession, whether they government, the profession and the great responsibility as successor to be private firms, in-house counsel or public in wider issues relating to such an outstanding and respected government solicitors, and furthering the rule of law. A matter of concern Chairman.

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United at last

The Victorian Bar portrait collection BY SIOBHÁN RYAN, ART & COLLECTIONS COMMITTEE MEMBER

he list of artists reads like a roll call of Archibald Prize finalists recently re-named the Peter O’Callaghan QC Gallery. T- John Longstaff, Archibald Colquhoun, William Dargie, Many will be familiar with Archibald Colquhoun’s glorious Ivor Hele, Judy Cassab, Rick Amor and Paul Fitzgerald. Their full length portrait of Sir Owen Dixon in ceremonial robes, subjects are just as eminent in their own fields. Depicted are a with white gloves, court shoes and black stockinged feet. Prime Minister, three Governors General, seven Justices of the It has been hanging in the vestibule in the Owen Dixon West High Court, Attorneys General, State Governors and Justices of foyer along with other portraits including Andrew Sibley’s the Supreme Court, the Federal Court and the Family Court. All Sir Zelman Cowen, Judy Cassab’s Sir Charles Lowe and Peter were members of the Victorian Bar. These are the subjects of the Churcher’s Chief Justice Marilyn Warren. However, the works Victorian Bar’s portrait collection, which now hangs cohesively appeared unconnected, forlorn and at odds with their surrounds for the first time in the foyer of the Owen Dixon West building; until the guiding hand of Carr Design, Jan Minchin of Tolarno Galleries and Mark Chapman of Chapman and Bailey brought the collection to life. The re-hang has also brought together other works from all corners of the Bar precinct. Some members may see for the first time, the striking painting of Sir John Latham in full wig with lace cuffs and jabot beautifully rendered against a cerise background. This portrait, by Charles Bush, was sitting on the floor in the bar office. Another fine work, a small oil painting of Sir Leo Cussen attributed to Sir John Longstaff, has come from the Neil Forsyth Room; as have the marvellous drawings of Maurice Ashkanasy, Frank Costigan and George Hampel by John Spooner, the celebrated Age cartoonist, himself a former lawyer.

9 VBN VBN 9 ...by bringing the collection together in the Peter O’Callaghan QC Gallery we will be reminded of the great collegiate spirit of the Victorian Bar and that, in turn, this will inspire future generations to add to the collection. around town around

Members can nod in passing to the been left for future commissions. the gallery were also able to attend. Their gentle portrait of Sir Douglas Menzies The Owen Dixon Chambers West presence added to the conviviality and painted by Archibald Colquhoun in foyer was repainted on the last esprit de corps of the occasion. Members 1940 when Sir Douglas was a junior weekend in August and the installation of the families of Joan Rosanove QC, barrister aged just 33. This painting was was completed over two days. The Sir Arthur Dean, Sir Richard McGarvie hanging in Douglas Menzies Chambers Committee sought advice from Jan and Sir Norman O’Bryan posed for for many years and now joins the other Minchin from Tolarno Galleries on the photographs by their parents’ and works including Colquhoun’s portrait of protocols of placement and aesthetics. grandparents’ portraits. Sir Owen Dixon painted 26 years later Jan generously gave her expertise Senator Brandis spoke warmly about in 1966 and Ivor Hele’s portrait of Sir pro bono. The re-hang was done by the collegiality of the Victorian Bar and Douglas’ cousin, the Prime Minister, professional installers, Chapman & Bailey. the great contribution of members, Sir Robert Menzies. Mark Chapman, who has installed many such as Sir Owen Dixon and Sir Robert The Bar has also received timely gifts exhibitions here and overseas, said it was Menzies to Australia’s legal and public from the Hon Margaret Lusink, a former an unusual job because he was hanging institutions. justice of the Family Court. One is a portraits from different generations and Justice Crennan officially opened the portrait of her mother, Joan Rosanove pieces that were not uniformly presented, gallery and in returning to Owen Dixon QC painted in London in 1952 by Flora such as one might find in a contemporary Chambers West where she once had Lion, whose “home front” scenes gallery. However, the space adapted well, chambers, spoke of her long friendship commissioned during the Great War even taking into account its potentially with Peter O’Callaghan QC. O’Callaghan hang in the Imperial War Museum. difficult granite walls. The new colour, QC is the Bar’s most senior member, The other is Margaret’s own portrait which was selected specifically to offset having signed the Roll in 1961. Among painted around 1975 by Dudley Drew. the paintings to their best advantage, has his many contributions to the profession Both women sat in their wigs and gowns. a harmonising effect, as does the lighting; was his chairmanship of the Bar Council’s Several of the artists represented in the both of which were selected thanks to standing committee responsible for Bar’s collection were Australian official the skilful eye of Sue Carr and Dan Cox administering the construction of Owen war artists, notably Ivor Hele, William from Carr Design. In the tradition of the Dixon Chambers West. Justice Crennan Dargie and Charles Bush and, more Archibald Prize, we asked the installers spoke of his accomplishments in that recently, Rick Amor and Peter Churcher. Mark, Mark and Martin to nominate their challenging role and also of his court- The Bar has commissioned favourite portrait and can report that craft and his wit. She included one of his photographic reproductions of the Andrew Sibley’s portrait of Sir Zelman jokes in her speech, which he topped with Menzies and Rosanove portraits Cowan won the “Packing Room Prize”. another in reply, of course. which now hang in the foyers of The official opening of the Peter The re-hang of the Collection is Douglas Menzies Chambers and O’Callaghan QC Gallery and the complemented by work undertaken Joan Rosanove Chambers. unveiling of the collection on Wednesday, by the Art & Collections Committee The re-hang is an initiative of the 8 October was a splendid Bar occasion. to establish a dedicated portraits Bar’s Art & Collections Committee. The presence of their Excellencies, the page on the Vicbar website featuring Chairman Peter Jopling QC says that the Hon Alex Chernov QC, Governor of reproductions of the portraits and project began several years ago with his Victoria and Mrs Chernov, together biographies of the sitters and artists. It is realisation that, although the Bar had a with Chief Justice Marilyn Warren well worth a look to acquaint members number of significant portraits, there was and Justice Crennan of the High Court with the rich traditions, both legal and no sense of there being a collection which and the Hon Senator George Brandis artistic, of the Victorian Bar. enabled us to both celebrate and pay our QC, Commonwealth Attorney General The Art and Collections Committee respects to our esteemed colleagues and and Minister for the Arts added to its is equally delighted to announce that their contribution to our Bar, the rule of significance. the Bar has commissioned a portrait of law and the wider community. It is hoped The Bar Chairman, Will Alstergren QC the Hon Michael Black QC, retired Chief that by bringing the collection together in warmly welcomed the guest of honour, Justice of the Federal Court of Australia. the Peter O’Callaghan QC Gallery we will Peter O’Callaghan QC and his family, as The portrait will be painted by Ms Louise be reminded of the great collegiate spirit well as many sitting and retired justices. Hearman, the winner of the 2014 Moran of the Victorian Bar and that, in turn, this It was especially pleasing that so many Portrait Prize. When completed, this will inspire future generations to add descendants of distinguished Victorian new portrait will be hung in the Peter to the collection. To this end, space has barristers whose portraits now hang in O’Callaghan QC Gallery.

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From the Launch 1. Portraits in the Gallery 2. Peter O’Callaghan QC 3. Michael O’Bryan QC, Norman O’Bryan AM SC and Mrs Margarte O’Bryan in front of the portrait of the Hon Sir Norman O’Bryan 4. Ursula Whitehead with portrait of her father the Hon Sir Arthur Dean (upper right) 5. The granddaughters of Peter O’Callaghan QC 6. The Hon George Brandis QC

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From the Launch 1. Guests at the Launch 2. Bar Chairman William Alstergren QC 3. His Excellency the Hon Alex Chernov AC QC and Neil Brown QC 4. Three generations of O’Callaghans 5. Dr Maggi Ryan and Siobhán Ryan 6. Peter O’Callaghan QC greeting Chief Justice Warren and Justice Crennan looking on 7. Richard McGarvie QC and Michael McGarvie (Legal Services Commissioner) in front of the portrait of the Hon Sir Richard McGarvie 8. The Hon Justice Crennan AC 9. The Hon Peg Lusink AM 10. The Hon Chief Justice Warren AC, the Hon Justice Crennan AC, Peter O’Collaghan QC, His Excellency the Governor Alex Chernov, George Brandis QC AG, Peter Jopling AM QC, Will Alstergren QC

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10 VBN 13 around town around Indictable Crime Certificate Committee launch

Victorian Bar News is pleased to publish the following speech delivered by the Hon Geoffrey M Eames AM QC at the launch of the Indictable Crime Certificate Committee held on 30 October 2014 at the Essoign Club.GEOFFREY EAMES

hairman of the Victorian Bar, performed by Victorian solicitors. First, and with few exceptions, they Cdistinguished guests, ladies and In addition, I thank Chief Judge will never get rich from criminal work. gentlemen. Rozenes for his constant support, Second, their performance as an Thank you Mr Chairman for your especially in allowing associates from advocate will be closely scrutinised and introduction. the County Court to provide invaluable occasionally - even frequently - criticised. I welcome you all to the launch assistance both to me as Chief Justice The criticism will sometimes be unfair or of the Indictable Crime Certificate and also by training the Nauruan ill-informed. Sometimes, if we are honest Committee (ICCC). judicial staff. with ourselves, the criticism will sting Unfortunately, due to a clash of All of those responses to the needs of because there is some truth to it. That is events neither Chief Justice Warren nor an inexperienced foreign judicial system something all advocates wish to avoid. President Maxwell of the Court of Appeal were very much in the best traditions of Good trial advocates, whatever their are able to attend tonight’s function, the Victorian Bar and judiciary. experience, are self-critical. which is a pity because both of them The ICC scheme is a positive response Criminal advocacy presents huge have been enthusiastic supporters of the to recommendations of the Victorian Law challenges for any practitioner. ICC program. Reform Commission report on Jury Trial Although the Victorian Bar has Notwithstanding the absence of Directions, and the accreditation and always encouraged its members to the Chief Justice I want to take the training programs which it proposed are provide assistance and advice to each opportunity to publicly express my also in keeping with the best traditions other, and to share experience, criminal gratitude for the wonderful leadership of the Bar, which has long espoused work is often a lonely exercise: late and support she provided to the judiciary excellence in advocacy. nights of solitary preparation, and and to the people of Nauru in response The new proposals follow on from difficult tactical choices having to to the undermining of the rule of law in pioneering advocacy training from people be made on the run. Nauru in January 2014, which resulted in such as George and Felicity Hampel, Bob In no other field are the the removal from office of the Resident Kent, John Coldrey, Ian Hill and so many consequences of poor advocacy so Magistrate and of myself as Chief Justice. more, over more than 30 years. drastic. A visit to a client in the cells I acknowledge, too, the support and The ICC program has much to do following conviction is never pleasant, encouragement I received from the with the rule of law. The presumption of and is a particularly depressing Victorian Bar Council and members of innocence means very little if it is defended experience if you know that your the Bar, not only in their statements by an incompetent or under-prepared performance as an advocate was below of support for the Nauru judiciary in advocate, just as the protection of the the standards you set for yourself. On 2014 but throughout my time as Chief community under the rule of law is not the other hand, nothing can be more Justice since December 2010. Victorian safeguarded by incompetent prosecutors. thrilling than to have your client walk barristers provided pro bono advocacy ----- out of court, with you, after being training and also worked with Nauruan Most barristers who specialise in acquitted due to your efforts. That practitioners in providing pro bono criminal trial advocacy throughout possibility is what drives barristers legal representation for detainees. I their career can have the following to conduct criminal jury trials. acknowledge, too, the pro bono work expectations: If you are a prosecutor, the satisfaction comes from knowing that your care and Criminal work is often a lonely exercise: late nights skill ensured that a just outcome was obtained in a fair trial, one that of solitary preparation, and difficult tactical choices will withstand scrutiny by the Court having to be made on the run. of Appeal.

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From the Launch 1. Jacob Fronistas OAM, His Honour Frank Walsh AM QC 2. His Honour Chief Judge Michael Rozenes AO 3. The Hon Justice Elizabeth Hollingworth, The Hon Geoffrey Eames AM QC , The Hon Justice Mark Weinberg 4. Jane Dixon QC, James Peters QC, Nicola Pachinger 5. Kristie Churchill, Ashlee Cannon and Julie Condon 6. The Hon Geoffrey Eames AM QC, The Hon 4 Stephen Charles QC 7. Robert Richter QC 8. Rod Gray and Catharine Sedgwick 5

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The ICC will certify to the public practice. Likewise, careful and intelligent individual’s competence many factors will and to the funders that the advocate is preparation can substantially overcome a need to be carefully addressed. No one competent to conduct such trials and lack of experience. who has practised in criminal law could indictable matters (including appeals and Whilst the ICC program concerns a pretend that they have never made errors bail applications) and to do so efficiently. declaration of competence, most criminal that might have cost their client dearly. The program will have particular value barristers aspire to excellence, not mere Hopefully, experience and advocacy for young and inexperienced advocates, competence, and they recognise that training can reduce or eliminate some of offering support and valuable training, they must not just acquire, but must the potential for error. and giving confidence that they are maintain, knowledge of the complexities The objective of the Committee is ready to enter the arena, including of criminal law. ultimately to protect the community by criminal trials. The Committee overseeing this setting high standards of competence The scheme, however, offers support program understands that the for those who wish to practice in and peer review to all advocates, certification of competency will quickly indictable matters. At the same time, however many years’ experience they lose credibility if the process is nothing the Committee must adopt processes have chalked up. Experience is not more than a rubber stamp for mediocrity. that are both fair to the practitioners always valuable; bad habits learned But the Committee also understands and recognise that criminal practice, in early can be repeated over a lifetime’s that when there is doubt about an common with all legal practice, is not an

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From the Launch 9. Gabrielle Östberg, Jacqueline Stone 10. Diana Price, Astrid Haben-Beer 11. Professor The Hon George Hampel AM QC, Judge Felicity Hampel 12. Sergio Petrovich, Tony Burns, Simon Bright, Will Alstergren QC 13. Peter Morrissey SC 14. Carolyn Burnside, Colin Hillman QC 14

exact science. Mistakes, even serious Victorian Bar, gained as a member of international reputation for the errors of judgment, do not necessarily its many committees and as a former Victorian Bar. demonstrate that a practitioner is not Chairman. In addition he brings his There is much work for the competent. broad experience as a foundation Committee to do before the scheme The Committee must take seriously member of the Court of Appeal. is underway. We must settle and all allegations of incompetence, lest Each of the other members of the publish the rules and procedures that the certificate lose its value. But an Committee brings special skills to the will be followed and determine the allegation of incompetence might be task, and their leadership has been factors that will justify a certificate of uninformed or otherwise unreasonable, endorsed by the members of the Bar who competence being granted, maintained even if made by a trial judge. have elected them to the positions that or withdrawn. We must consider The combined experience of the they now hold on the Committee. appropriate continuing education members of the Committee should give The administrative support will be programs that will be relevant to all you confidence that the process will be provided by a small but skilled unit practitioners, as well as programs for both fair and appropriately rigorous. comprising Jacqueline Stone and those who require additional or ongoing The Committee is very fortunate to Gabrielle Ostberg. support or training. have the services of the Honourable The Committee will offer support and This is a voluntary scheme and one Stephen Charles QC as deputy Chair. In encouragement to advocates whose I hope that all current and aspiring determining what rules and procedures performance is below par. In that respect, criminal barristers will want to support. the Committee should adopt Stephen the Committee will be continuing the fine Your presence tonight demonstrates that will bring his vast experience of the tradition of mutual support and ongoing support, for which we are grateful. history, traditions and practices of the advocacy training that has gained an I look forward to working with you.

16 VBN VBN 17 around town The French Australian Lawyers Society

Great company, fine wine and some beautiful music – A Bastille Day treat for Francophile lawyers AMY BRENNAN

veryone dining at The French Brasserie our Bar, Marian Clarkin, gave a very speak at the launch, the Honorary French Eon the 18th of July this year was comprehensive and fascinating speech Consul Madame Myriam Boibouvier- treated to a stirring a cappella rendition about the history and characteristics Wylie. Madame Boibouvier-Wylie of Edith Piaf’s classic, ‘Non, je ne regrette of Champagne. In between the music spoke of the importance of a number of rien’. The singer was the Bar’s very own, and speeches, those present took great co-associations and societies currently very talented, Natalie Vogel. Although pleasure chatting to each other in a active in Melbourne, including the French undoubtedly much appreciated by mixture of French and English, with a Chamber of Commerce. her wider audience, she was in fact couple of other languages bandied about The most recent function, held in performing to a fortunate group of for good measure. August, involved a wine and cheese around 40 lawyers attending a Bastille The French Australian Lawyers Society tasting night at Crockett Chambers. Day celebratory dinner organised by the has been reinvigorated this year under The Society has members and is French Australian Lawyers Society. the stewardship of its current president, active in Melbourne, Sydney and Paris. Several other French-speaking also a barrister, Marie Wilkening-Le Brun. It will be hosting further social events in or Francophile barristers were in The Society has held three functions, all Melbourne and Sydney in the near future. attendance, as were a large number of of which have been very well attended It will also be presenting a professional solicitors. All partook in a delicious three and received. seminar series involving, amongst others, course meal and had the pleasure of The Society’s Melbourne launch the French Chamber of Commerce and sampling some delectable Champagne function was attended by over 60 Industry. Those barristers interested in thanks to the sponsor of the dinner, lawyers and other legal professionals knowing more about or in joining the Champagne house Devaux Cuvee D. in May. The Society was lucky enough Society should consult its website at: Another multi-talented member of to have a very special guest attend and french-australian-lawyers.com.

Several other French-speaking or Francophile barristers were in attendance, as were a large number of solicitors.

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Bar v LIV hockey match report

ANDREW DENTON

he 31st annual barristers v solicitors hockey match the midfield, maintaining possession and finding passes T was held on 30 October 2014 at the State Netball where there seemed to be none. Hockey Centre. On the whole, it was a great effort by the Bar and the The sun was shining and the mood was optimistic at the match was approached with great spirit – as were the start of the week, with 19 fresh, healthy players confirmed. drinks afterwards. Finally, special mention must go to Judge Regrettably, due to a series of unfortunate and unexplained Burchardt, who made his debut in this event 25 years ago, events throughout the week, that number (along with the and is still making an important contribution to the team optimism) had dwindled come game time. In the end we took with his defensive efforts. to the field with 12, which number was quickly reduced to 11 The Bar was represented by: Tom Lynch (GK), Morgan Brown, following an early injury. Robert O’Neill, Judge Burchardt, Nicholas Tweedie QC, James The team was captained by Robert O’Neill, who led from Batrouney, Andrew Denton, Alexis Agostino, Michael Dever, behind all game. His impressive frame and years of experience Ross Gordon, John Morgan, and Brian Kennedy. down back ensured it was difficult for the solicitors to get through on goal. O’Neill was joined in defence by our superstar recruit, Morgan Brown, who produced a game so strong that she snapped her stick in two. Stuart Wood QC took to the role of coach like a duck to water, patrolling the sideline menacingly in full suit and tie and thick sunglasses. With the game tightly balanced at half time, Coach Wood motivated the troops with the inspirational line “I thought photos courtesy of john dever you guys would be 5-0 down by half time. Not to be offensive but, on paper at least, they are a much better team than you.” With those words ringing in our ears, the team went on to a gallant defeat of 3-1. The clerks were well represented with Michael Dever and Ross Gordon providing great targets up forward and applying a heap of pressure to the solicitors’ defence; Gordon scored our BACK ROW: Stuart Wood QC, Alexis Agostino, Andrew Denton, Brian Kennedy, Robert O’Neill, Tom Lynch, Nicholas Tweedie QC, James Batrouney FRONT ROW: Michael Dever, only goal. As always, Nicholas Tweedie QC was a standout in Morgan Brown, John Morgan, Judge Burchardt, Ross Gordon, Richard Brear

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(Left-Right): Lord Neuberger, James Merralls AM QC, Will Alstergren QC, Philip Crutchfield QC, Rodney Garratt QC The cost of justice, Pre-Raphaelites, impressionists, Sphinxes and chatterboxes: an evening with Lord Neuberger

n Friday evening, 8 August disquiet as to the legal costs which were case during oral argument; ‘Sphinxes’ – O2014, the Victorian Bar and the incurred by the successful appellants judges who barely utter a word during Anglo-Australasian Lawyers Society “to establish and enforce their right oral argument; and ‘chatterboxes’ – (AALS) were privileged to host the to live in peace in their home”.3 He judges who are overly interventionist). Right Honourable Lord Neuberger of mused that a fixed costs regime (similar Importantly, Lord Neuberger emphasised Abbotsbury, President of the Supreme to that which applies in Germany) that cases are better developed and Court of the United Kingdom.1 Lord might be appropriate in the future to the court is better assisted during oral Neuberger was welcomed by Victorian ensure citizens have more affordable argument when “judges don’t bully Bar Chairman, Will Alstergren QC, and access to justice if levels of legal costs, counsel or try to score points, but introduced by AALS Victorian Chapter systemically, cannot be better managed. rather ‘push’ counsel on their case or President, Rodney Garratt QC. The Q&A session following the argument”. The McPhee Room in Owen Dixon address, expertly facilitated by Commbar This was Lord Neuberger’s second Chambers was filled to overflowing President, Philip Crutchfield QC, was visit to the Victorian Bar, his previous visit with a broad assortment of judges and most entertaining as his Lordship being in 2009. He continues to be one counsel as his Lordship addressed the revealed some candid views on advocacy of our favourite speakers to Owen Dixon gathering on his chosen topic, “Nuisance (“nowadays, the best advocates are Chambers and both the Victorian Bar and Costs”, which stemmed from the as good as they’ve ever been, and and the AALS very much look forward to United Kingdom Supreme Court’s the worst are better than they welcoming again in the future. decision this year in the case of once were”) and different 1 It is conventional for AALS addresses Coventry v Lawrence.2 In keeping judicial styles (‘Pre-Raphaelites’ by distinguished speakers to be with what has become a matter – judges who read all of the conducted under the ‘Chatham House Rule’. The above summary of Lord of universal concern written materials in detail before Neuberger’s address has been approved throughout the the case commences; for publication by Lord Neuberger. common law ‘impressionists’ – judges 2 Coventry v Lawrence [2014] UKSC 13; world, Lord who skim over the Coventry v Lawrence (No 2) [2014] Neuberger written arguments, UKSC 46. highlighted preferring to engage 3 Coventry v Lawrence (No 2) at [35]. the Court’s more with the

18 VBN VBN 19 The Right Honourable Lord Neuberger of Abbotsbury Kt PC Albert Monichino QC, Bronwyn Lincoln, Prof Doug Jones AO, John Arthur around town around

Albert Monichino QC, Caroline Kenny QC, Karyl Nairn QC, John Arthur

Albert Monichino QC, Dr Gavan Griffith QC, Eugenia Levine International commercial arbitration

Three fire-side chats with prominent international arbitration practitionersJOHN ARTHUR

n conjunction with the Victorian Bar hearing that “it was just like an episode HSF who is also on the board of the Iand Commbar, the Australian Branch of LA Law, but without the sex”. Ms MCAMC. Professor Jones is a partner of the Chartered Institute of Arbitrators Nairn spoke with deep understanding with Clayton Utz. Between 2008 and (CIArb) recently hosted a series of three of the differences and similarities 2014 he was president of the Australian ‘fireside chats’ with prominent Australian between litigation and arbitration and Centre for International Commercial international arbitration practitioners, Ms the cross-cultural pressures faced by Arbitration (ACICA) and in 2010 served Karyl Nairn QC, Prof Doug Jones and Dr international arbitration practitioners, as global president of CIArb (and is Gavan Griffith QC. including the lack of favour in which presently chairman of its centenary The first event, which featured Karyl cross-examination is held in civil law celebrations). He is an author of a Nairn QC, was held on 30 July at the countries. She highlighted the success of leading text on domestic arbitration1 and new Melbourne Commercial Arbitration Australian practitioners in international holds professorial appointments at two and Mediation Centre (‘MCAMC’), commercial arbitration and encouraged Australian universities. He addressed Level 4 of the William Cooper Justice local practitioners to look to Asia for recent developments in putting Australia Centre, looking out over the dome of the work in the field by building links with on the international arbitration map, magnificent Supreme Court building. practitioners and institutions in that including the 2010 amendments to the The event was attended by Justice Croft, region. The panel asked insightful International Arbitration Act 1974 (Cth) global law firm partners, barristers and questions, which addressed many of and the new uniform national domestic young lawyers. Ms Nairn QC was joined the important issues in international arbitration legislation - the Commercial in conversation by Albert Monichino QC, arbitration. Ms Nairn addressed the Arbitration Acts - modelled on the FCIArb, President of CIArb (Australia) questions with great knowledge and UNCITRAL Model Law. He discussed and Caroline Kenny QC, FCIArb. Ms experience, but also with humour and the importance of the separate states of Nairn is global co-head of Skadden Arp transparency. Australia working together to promote International Litigation and Arbitration The second event, held at the offices Australia as a hub for international Group, based in London, and a Fellow of Herbert Smith Freehills (‘HSF’) on arbitration. He commented on Australia’s of CIArb. In discussing her career, she 28 August, featured Professor Doug strengths, its talented legal profession, the spoke of her first case in a local court Jones AO, one of Australia’s leading facilities available, and noted that “it is a in Western Australia (where she hails international arbitrators and practitioners, great place to visit”. He talked personally from) in the 1980s, where her successful in conversation with Albert Monichino about how he got into international client announced to her after the QC and Bronwyn Lincoln, a partner of arbitration and dispute resolution which

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is a “very competitive space”, and what an exciting and amazing challenge a Copyright: the international agenda practice in international arbitration posed. According to Professor Jones, the key Dr Francis Gurry addresses members of the profession to success in international arbitration is on the future of copyright in the digital marketplace “persistence”. The third and final event in the series CLAIRE CUNLIFFE was held on 9 October, at the MCAMC. Dr Gavan Griffith QC, a Queen’s Counsel n 21 August 2014, CommBar, internet treaties by WIPO and national at the Victorian Bar of over 30 years the Arts Law Centre and the laws which made provision for digital standing, prominent international O Intellectual Property Society of Australia rights management. The international arbitrator and a former solicitor-general and New Zealand jointly hosted a framework for copyright, established by of Australia, was joined in conversation presentation by Dr Francis Gurry on the Rome and Berne conventions, was left by Albert Monichino QC, and Eugenia Copyright: The International Agenda. largely intact. Levine, also of the Victorian Bar. What The Hon Peter Heerey QC chaired the Next, Dr Gurry explained that the ensued was an engaging discussion, presentation, which was well attended appearance of legal digital content was a characterized by Mr Griffith’s typical by intellectual property practitioners, response by rights holders to the digital wit and intelligence, on topical issues including barristers, solicitors and marketplace, as business models were in investor-state and international academics. adapted to the new reality. Initially, this commercial arbitration. The discussion Since 2008, Dr Gurry has been the content was based on the systems used in addressed the lively debate in Australia director-general of the World Intellectual the real world – for example, iTunes allows about: the inclusion of investor-state Property Organisation, headquartered in users to “purchase” a song, although some dispute settlement clauses in investment Geneva. He is also a chair of the United space-shifting was enabled (that is, it is agreements; the growing arbitration Nations’ Committee of Management. Dr possible to store the copyright material on market in the Asia Pacific region; the Gurry lectured in law at the University of more than one device simultaneously – for steps that Australian legal practitioners Melbourne before joining WIPO in 1985. example, a computer and an iPod – unlike, need to take to be competitive in that His text, Gurry on Breach of Confidence, for example, CDs, which can only be used market; the potential for Australia is still the leading publication on the law by one playback device at a time). to develop as a seat for arbitrations relating to confidential information. Finally, Dr Gurry posited that we are involving disputes between Australian Dr Gurry suggested that the most entering a third and more revolutionary and Asian parties, particularly in the significant current issues in copyright all phase of adaptation to the digital resources sector; and the need for courts related to the adaptation of copyright marketplace, which has moved from a to refrain from applying conventional to the reality of a global digital content model of ownership to a model of access, common law standards when reviewing marketplace. Dr Gurry considered that using streaming and subscription services and supervising arbitral decisions, and to digital technology posed two challenges such as Netflix and Spotify. adopt a non-interventionist approach. for creative works. First, “reproducibility”: Dr Gurry also discussed exceptions The podcasts of each of these events a work created using an enormous to copyright and their limits, and raised are available for members of the Bar at: amount of skill and labour and cost can interesting points for discussion relating www.vicbar.com.au/member-resources/ be reproduced almost instantaneously, at to educational institutions and libraries cpd-education-resources/recent-cpd- very low marginal cost and to a very high (including the vexed question of who or podcasts-papers. quality. Second, “escapability”: a work what is an educational institution or a For those wishing to join CIArb or learn which is digitally reproduced and made library in the digital age). He discussed about its activities, go to: www.ciarb.net.au. available on the internet can be accessed some of the possible ways in which To mark the Centenary of the CIArb anywhere. That is, the internet has the interests of rights holders could be next year, CIArb Australia will conduct revolutionised distribution. balanced against the needs of developing its 2015 course in Sydney from 18-26 Dr Gurry outlined three phases of countries in the digital marketplace. April 2015. CIArb Australia is now taking response to the digital marketplace. After a lively question and answer enrolments for the course: www.ciarb. He suggested that initially, the digital session, the seminar participants enjoyed net.au/sites/www.ciarb.net.au/files/files/ marketplace was met with fear by rights drinks at the Essoign Club. ciarbdiplomacourse2015flyer.pdf holders, who resisted the development of John Arthur is a CIArb Fellow and member technologies such as MP3 and peer-to- of the Victorian Bar was the MC for each of peer software, with the consequence that the international arbitration events. file sharing technology such as Napster 1 Commercial Arbitration in Australia, proliferated and litigation ensued. This Thomson Reuters, 2nd Ed, 2012. phase was also marked by the passing of

The Honourable Peter Heerey AM, QC and Dr Francis Gurry 20 VBN VBN 21 Victorian Bar and Law Institute around town around of Victoria conference 2014

High stakes law in practice and the courts JESSE J RUDD

he Victorian Bar and the Law Institute of litigation. Among other topics, the the Federal Court, Ross Ray QC, Tim Tobin Tof Victoria hosted the inaugural panel discussed the risks and benefits SC, Nicole Wearne (Partner, Norton Rose joint conference on Friday 17 October of offshore legal processing and Fulbright), Ken Adams (Partner, Herbert 2014 at the Melbourne Convention and outsourcing, and the vexed question Smith Freehills) and Brooke Dellavedova Exhibition Centre. Attendance was solid, of oral evidence versus witness (Principal, Maurice Blackburn Lawyers). as was representation by members of the statements in commercial cases. The panel outlined some of the unique Bar. The theme of the conference, “high For the day’s third session, Justice features of class action litigation, such stakes law in practice and the courts”, Jack Forrest of the Supreme Court, David as expert evidence, largely in the context was explored through eight separate O’Callaghan QC, Michael Wheelahan of the recent Kilmore East bushfire trial. panel sessions covering a broad suite of QC, Roisin Annesley QC and Maryjane A key issue identified by panellists was topics. Each session was presented by Crabtree (Executive Partner, Allens the difficulty in assessing quantum at a panel of experts, including members Linklaters) considered the overarching an early stage of class action proceedings. of the judiciary, barristers, solicitors and obligations in the Civil Procedure Act For the mid-afternoon session, corporate counsel. 2010 (Vic). The panel discussed some participants were invited to choose The Chairman of the Bar, Will important recent cases and considered between a session on the role of regulators Alstergren QC, and the President of whether the overarching obligations cover in enforcement and litigation, presented the Law Institute of Victoria, Geoff new ground for practitioners. by Wendy Peter (General Counsel, Legal Bowyer, officially opened the conference. Presenting an Australian and and Economic Division, ACCC), Michael Chief Justices Warren and Allsop then international perspective on arbitration Kingston (Chief Legal Officer, ASIC), Fiona delivered the first session. Their Honours were Justice Middleton of the Federal McLeod SC, Justin Brereton, David Ablett provided a judicial perspective on Court, Justice Croft of the Supreme (Senior Executive Lawyer, Australian current developments and challenges Court, Albert Monichino QC, Martin Government Solicitor) and Ross Freeman in conducting litigation in the Supreme Scott QC, Peter Megens (Partner, King (Partner, Minter Ellison), and a session and Federal Courts. In confronting the & Spalding, Singapore) and Bronwyn on litigation funding, presented by Justice challenges of modern litigation, Chief Lincoln (Partner, Herbert Smith Freehills). Gordon of the Federal Court, Peter Riordan Justice Warren spoke of a “litigation This session explored the challenges and QC, Samantha Marks QC, David Leggatt contract” between the bench, counsel opportunities for Australian practitioners (Partner, DLA Piper) and Jason Betts and solicitors, obliging each to cooperate in the arbitration space. From a judicial (Partner, Herbert Smith Freehills). to ensure the proper administration perspective, Justice Croft emphasised the The final seminar of the day was of justice and better outcomes for importance of predictable and competent entitled, “the collision of public relations litigants. Chief Justice Allsop outlined jurisprudence in ensuring that our and the law – managing strategic legal developments in the Federal Court which jurisdictions attract arbitration work, while and PR objectives”, presented by will see the Court divided into nine Justice Middleton outlined the need for Will Houghton QC, Robert Richter QC, “significant areas” under a new “National trial judges to resist the parties’ attempts Julian Burnside QC, Leon Zwier (Partner, Court Framework”. The goal of the to raise every factual and legal issue at Arnold Bloch Leibler) and framework is to effectively produce nine the enforcement or judicial review stage Tony Hargreaves (Partner, Tony national courts, each with expertise in of arbitration proceedings. Drawing Hargreaves & Partners). the relevant “significant area”. on his experience as an arbitration Upon completion of the final session, Next, Justice Judd of the Supreme practitioner based in Singapore, Peter the Hon Robert Clark, Victorian Attorney- Court, Allan Myers QC, Caroline Kenny Megens offered an interesting insight General, delivered the closing address. QC, Philip Crutchfield QC, Louise Jenkins into current arbitration developments The conference was a success, both (Partner, Allens Linklaters), Chris Fox in South-East Asia. in its content and in the opportunity (Partner, King & Wood Mallesons) Class actions were on the agenda for it presented for participants to meet and Raechelle Binny (Head of Dispute the first session after lunch. The panel other members of the profession. Resolution, National Australia Bank) consisted of Justice Jack Forrest of the Its organisers have set a high standard presented on cost effective management Supreme Court, Justice Jonathan Beach of for the years to come.

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VICTORIAN BAR Pro Bono AWARDS

SALLY BODMAN

he winner of the 2014 Victorian Bar the Beverley Uranium Mine in South Bar members who do pro bono work TPro Bono trophy, Brian Walters QC, Australia, fought for human rights through the Bar’s Pro Bono Scheme is one of the many members of our Bar principles relating to the Tyler Cassidy administered by Justice Connect, the who not only believes strongly in equal Coronial Inquest, lead the team fighting Duty Barristers Scheme and through access to justice for all Victorians; but the deportment of Stefan Nystrom who private connections with community who also channels that belief into direct had lived in Australia since he was 25 legal centres, community groups and action providing countless hours pro days old, and defended environmental individuals. bono to those in our community in need and peace protestors (including former This year’s event was held amid the of assistance. leader of the Greens Bob Brown, and Gods, Myths and Mortals at the Hellenic Brian Walters is a deserving winner. Neil Smith aka ‘Hector the Protector’). Museum (at the former Royal Mint For more than thirty years he has These are just a few of his pro bono building). Jane Dixon QC, Chair of the consistently given his time to those contributions. Bar’s Pro Bono Committee, welcomed otherwise unable to have their voices Winners were announced in six guests and introduced guest speaker the heard. He has represented victims award categories at an event held Honourable Ron Merkel QC, a long- of police misconduct at a protest at to thank the hundreds of Victorian term and passionate supporter of the

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1. Ron Merkel QC and Aggy Kapatiniak 2. Chair of Pro Bono Committee, Jane Dixon QC 3. Andrew Mansour 4. Tim Goodwin, Georgia Cooley, Megan Tait, Daniel Robinson, Hadi Mazloum 5. Aggy Kapatiniak and John Kelly 6. Ron Merkel QC and William Alstergren QC 7. Ron Merkel QC and Astrid Haben-Beer accepting on behalf of Daniel Aghion 8. John Kelly accepting an award on behalf of Kristen Walker 9. Romesh Kumar, Ben Kelly, Dean Churilov

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Scheme, after whom one of the annual contribution to environmental law and »» Public Interest/Justice Innovation Award: awards is named. Merkel spoke about his human rights. Jason Pizer QC, Emrys Nekvapil and own personal commitment to levelling »» Daniel Pollack Readers Award: Joel Silver Fiona Spencer for their work in Bare v the playing field in providing dignified for pro bono assistance to consumers in Small, assisting an African youth who access to legal representation for all, and Banking Law and in volunteer work was the subject of police misconduct. touched on the highlights of some of his »» Ron Castan AM QC Award: David Yarrow The Bar congratulates the winners and many rewarding experiences in pro bono for pro bono assistance in the Muckaty nominees of each award and thanks all work over the last few decades. Station litigation in the Northern Territory those who continue to give selflessly Each of the award categories recognise »» Susan Crennan AC QC Award: Kristen of their time. Special thanks also to the the commitment to pro bono at varying Walker for pro bono assistance in Pro Bono Committee for their effort in levels of seniority and time at the Bar. refugee, transgender and environmental organising the event, in particular issues Award recipients for 2014 were: Maya Rozner whose energy and »» Ron Merkel QC Award: Daniel Aghion flair was heavily evident in the success »» Victorian Bar Pro Bono Trophy: Brian for pro bono advice and advocacy for of the evening. Walters QC for his outstanding pro bono homeless people

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Bon anniversaire 10 years into the reign of two chief justices

Victorian Bar News interviewed Chief Justice Warren of the Supreme Court of Victoria and Chief Justice Bryant of the Family Court of Australia to discuss their 10th anniversaries. GEORGINA SCHOFF & GEORGINA COSTELLO, EDITORS

hief Justice Warren’s articled clerk in public service in 10th anniversary was Victoria. After her admission to actually in November practice in 1975, she worked as a 2013, but she graciously solicitor in the government sector. agreed to this joint Her Honour gained management interview, quickly pointing experience as deputy secretary of out that this year, she is helping Chief the Law Department of Victoria, and CJustice Bryant to celebrate her 10th. was a senior policy adviser to three This article is published, in respect Attorneys-General of Victoria before of Warren CJ’s anniversary, nunc she was called to the Victorian Bar pro tunc. in 1985. At the Bar, she practised T he Honourable Marilyn Warren as a barrister in commercial and AC QC was appointed a judge of the administrative law and took silk Supreme Court in 1998 and became in 1997. is a third-generation lawyer who the eleventh Chief Justice of the The Honourable Diana Bryant graduated with a Bachelor of Laws Supreme Court of Victoria in 2003. AO was appointed Chief Justice of from the University of Melbourne Her Honour is also the Lieutenant- the Family Court of Australia on 5 and a Master of Laws from Monash Governor of Victoria, Chair of the July 2004. Before her appointment, University. She was a director of Judicial College of Victoria, Chair of she oversaw the establishment Australian Airlines from 1984 to the Council of Legal Education, and of the Federal Magistrates Court 1989. Her two-state background Chair of the Courts Council, Court (now the Federal Circuit Court of and experience in governance and Services of Victoria. Given Warren Australia) as its inaugural Chief advocacy make her an ideal leader CJ’s busy workload, it makes sense Federal Magistrate from 2000 to 2004. of Australia’s national Family Court. that she was a champion squash Before that appointment, Bryant CJ Bryant CJ is also the patron of player, who represented the state practised at the Victorian Bar from Australian Women Lawyers. of Victoria and won the Australian 1990, where she specialised in family By chance, it was Chief Justice championships three years running. law, particularly at the appellate Bryant’s birthday when Bar News Warren CJ completed her articles level. She was appointed a Queen’s interviewed both chief justices of clerkship as the first female Counsel in 1997. Born in Perth, she in Chief Justice Bryant’s sleek,

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modern chambers. It is a stylish Chief Justice Warren walked up William Street from workspace high up in a corner of the her chambers in Victoria’s historic Supreme Court Commonwealth Law Courts building, overlooking Flagstaff Gardens and building to this very contemporary setting to join Chief William Street. Contemporary art Justice Bryant for the interview and a cup of tea. hangs on white walls, bright with natural light from the large windows far and their aspirations for their chief justice. The second, equally – without a chesterfield in sight. respective courts. important, aspect is to administer Chief Justice Warren walked up According to their Honours, the the work of the court, because a William Street from her chambers role of chief justice has two main fair, efficient and independent court in Victoria’s historic Supreme Court aspects. The first is to provide is essential to the community’s building to this very contemporary leadership in the judicial tasks of confidence in our judiciary and our setting to join Chief Justice Bryant hearing and determining cases. democracy. A well-functioning court for the interview and a cup of tea. This is a well understood function with a reputation for excellence and We asked both women about the role for which a life at the Bar might high morale in turn attracts the high of chief justice, their experiences so reasonably be expected to equip a calibre judges required to perform

26 VBN VBN 27 Chief Justice Warren credited Chief Justice Bryant is particularly impressed by her remarkable feat in bringing about first with winning the admiration and respect of her true independence of Victorian news and views news colleagues; secondly with repositioning the Family courts from the executive arm of Court as a superior court of record with an appellate government. This has been done through the establishment of Court jurisdiction; and thirdly with building the court’s Services Victoria, an independent reputation both in Australia and internationally. statutory body overseen by the Courts Council, which Warren CJ judicial work. In this respect, the role body of jurisprudence equal to any chairs. Bryant CJ explains that a of chief justice requires leadership superior court. recurring topic of discussion for chief and managerial qualities not By working with the Federal Circuit justices in Australia is the difference necessarily found in barristers. Bar Court to share resources and in case between the Commonwealth model News readers might consider that, management, a task that is by no of independence from government, before appointment as a judge, the means complete, Bryant CJ says that a “one line budget”, which gives managerial experience of many, if not the Family Court has for the first federal courts the independence to most, barristers is limited to hiring a time been able to find its niche as decide how to spend their allocation, personal assistant and undertaking a superior court. Now, the Federal and the state model which has volunteer positions on not-for-profit Circuit Court does the bulk of first required their state counterparts to boards and school councils. instance family law work, leaving reach financial accommodation with During our interview, both women the appellate and most complex first state governments on every spending were generous with their time instance work to the Family Court. requirement. Bryant CJ points out and in their support of each other. Having served as the inaugural Chief that such independence has been Both have faced similar challenges Federal Magistrate, Bryant CJ was seemingly very difficult for state and might justifiably talk of their well placed to facilitate the process supreme courts to achieve and that achievements, yet each preferred to of the two courts moving in different only Victoria has done it. She credits highlight the achievements of the directions. this great reform to Chief Justice other. It was illuminating to hear hief Justice Bryant is particularly Warren’s “persistence, determination, their observations; after all, one chief enthusiastic about the court’s brilliant strategy and ability to create justice is well qualified to comment role at The Hague in relation confidence in the Court”. The reform on the performance of another. Cto international conventions faced considerable opposition but Chief Justice Warren credited concerning, for example, child now that it has been achieved, Chief Chief Justice Bryant first with abduction and adoption. She enjoys Justice Warren is quietly pleased with winning the admiration and respect the court’s long-standing relationship the smooth transition, which saw of her colleagues; secondly with with the religious courts in Indonesia, the transfer of all the court’s assets repositioning the Family Court as a relationship established early and the budget to Court Services a superior court of record with an in her time as Chief Justice. This, Victoria in July this year. This new appellate jurisdiction; and thirdly in turn, has helped foster shared administrative model will initially with building the Court’s reputation understanding and knowledge demand much of her time but she both in Australia and internationally. between nations and access to justice expects that it will all settle down We note some have observed that in Indonesia. Internationally, the in the future. This is a remarkable before Bryant CJ’s appointment, Family Court is seen as a leader in landmark for the judicial arm of there was a reluctance to publish its field. With its unique, specialised government in Victoria. judgments, no doubt due to the jurisdiction, it regularly hosts And then there is the achievement difficulties posed by section 121 international delegations and is of each Chief Justice in transforming of the Family Law Act 1975 (Cth), well placed to take a leadership role the working life of her court. Chief which prohibits the publication of on issues like child abduction and Justice Bryant observes that being any account of proceedings that surrogacy. The Chief Justice is able to a judge can, in many ways, be a identifies a party. Bryant CJ overcame lend her authority and reputation to lonely job and the work is relentless. these difficulties by establishing help achieve international outcomes The cases that come before her the court’s Judgments Publication to deal with these issues, as she Court involve the most difficult of Office, which ensures that judgments recently demonstrated when she circumstances. The judges of the are anonymised so that they can be spoke publicly about the need to act Supreme Court too have to deal on published. According to Warren CJ, on international surrogacy. a daily basis with horrific events. Bryant CJ has transformed the court Of Chief Justice Warren’s many Warren CJ resolved early on in into one that produces a significant achievements, Chief Justice Bryant her stewardship to achieve “a high

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Warren CJ resolved early on in her stewardship to achieve “a high level of judicial happiness”. Bryant CJ agrees that an important aspect of the role of chief justice is to engender collegiality through the encouragement and support of the judges working in the court.

level of judicial happiness”. Bryant administrative law proceedings. This the opportunities afforded by CJ agrees that an important aspect growth in the Court’s work might be modern technology to improve of the role of chief justice is to attributed to a number of factors, not access to justice. The court has an engender collegiality through the least of which is the community’s interactive website, parts of large encouragement and support of the confidence in the Court. Her class action trials may be viewed judges working in the court. This stewardship has seen the replacing remotely via online streaming, and task is particularly challenging in of masters with associate justices and this year the Red Crest electronic the Family Court where the judges the expansion and elevation of their filing system was introduced for are spread across the country. Bryant role, together with their involvement cases in the Commercial Court. CJ tackles the problem, in part, by in alternative dispute resolution. The Supreme Court was the first in ensuring that she sits on full courts in This is part of the Court’s focus on Australia to have a Twitter account each registry as often as she can. supporting and assisting parties in with thousands of followers, it has The model of leadership that resolving their disputes. It has also hundreds of friends on Facebook, Warren CJ has chosen demonstrates seen dramatic reform in criminal, and its judges have been known her desired outcomes. Traditionally and shortly, civil appeals. to ‘blog’. the role of Chief Justice was that of Both these women have driven the Warren CJ hopes to see the an autocratic, omnipotent leader. administrative and structural changes Bar and other members of the In Chief Justice Warren’s court, a necessary to place their courts in the profession bring what power and sensible democratic and collegiate best possible position for the future. influence they might have to achieve model prevails. The President So what challenges and aspirations her goal of a new Supreme Court of the Court of Appeal has his do they have for the remainder of building for Melbourne. “We have a responsibilities and the principal their tenure? In the case of the Family beautiful Supreme Court building judges look after their various Court, Chief Justice Bryant identifies of historic importance,” she says, Divisions. In this way, responsibility the need for separation of the “but it shouldn’t be an excuse for for the conduct of the business of administration of the Federal Circuit not providing proper and modern Court is shared between the judges, Court from the Family Court. She says accommodation.” and the judges themselves are happy. that whilst the direction the Court is The role of Chief Justice is This in turn attracts eminent people headed in is a good one, it would be terrifically demanding. The to judicial office, the reputation nice to end her time as Chief with performance of the Chief Justice of the Court is enhanced, and the improved administrative arrangements is pivotal in the good standing of community is better served. in place. Bar News observes that with a court. In Warren and Bryant CJJ, Under Warren CJ, the Supreme her background as a “divorce lawyer”, their courts have found capable Court has also seen a realignment her Honour is well qualified to lead leaders, who have improved the in the nature of its business. The this disentanglement. administration of justice with Court increasingly deals with Warren CJ immediately identifies panache. While carrying out much serious corporate crime and, in the built environment of the hard work, both women have the common law area, large class Supreme Court as her next challenge. maintained a calm appearance and action trials. Under the Chief The Supreme Court of Victoria won great respect from the judges Justice, the Commercial Court is housed in a heritage building they lead. Victorian Bar News has been established, which is a that is increasingly unsuitable for congratulates Chief Justices Warren national leader in civil litigation. the conduct of technology-driven and Bryant on their achievements There has also been exponential litigation. Under Chief Justice thus far and wishes them every growth in environmental law and Warren, the Court has embraced success in the challenges ahead.

Warren CJ hopes to see the Bar and other members of the profession bring what power and influence they might have to achieve her goal of a new Supreme Court building for Melbourne. “We have a beautiful Supreme Court building of historic importance,” she says, “but it shouldn’t be an excuse for not providing proper and modern accommodation.”

28 VBN VBN 29 news and views 30 VBN news and views

Wake up and smell the money: the case for a federal ICAC

STEPHEN CHARLES*

arlier this year the Prime Minister, cleansing wind purifies the air in Canberra and stops asked by a reporter if there ought to abruptly at the outward boundaries of the Australian be a Commonwealth Anti-corruption Capital Territory. In this context it should be noted that Commission, replied “No,” saying that the Federal Government each year purchases tens of he thought Canberra was a “pretty clean billions of dollars of goods and services. In and between polity.” It is possible that not many people the years 2006 and 2009 the Defence Department alone agree with him, certainly if the Australian’s front page spent more than $48 billion. In 2009 there were more than article (10 October 2014) is correct. That article quoted a $45.5 billion worth of tenders sought by this department. survey by Griffith University’s Centre for Governance and Corruption is usually well-hidden, it is difficult to Public Policy, showing that the Federal Government now discover and expose, and it needs a body with the powers rankedE third behind state and local government on the and bite of the NSW ICAC to achieve this result. And the crucial issue of trust. Commonwealth ought to be an enthusiastic supporter of In May this year the Australian Greens leader, Senator the creation of such a body since it is a signatory of the Christine Milne, introduced in Parliament a bill to create United Nations Convention Against Corruption (UNCAC), a national anti-corruption body, saying at the outset that a member and chair of the G20, and a member since “the Federal government is the only jurisdiction without 2013 of the Open Government Partnership. Article 36 of the infrastructure to confront corruption”. Senator Milne UNCAC requires Australia, as a state party to: continued to make a powerful case for the creation “ensure the existence of a body or bodies specialised in of such a body, it being the third time that the Greens combatting corruption through law enforcement. Such body or had put before the Federal Parliament a bill to “crack bodies or persons shall be granted the necessary independence down on public sector corruption and promote integrity … to be able to carry out their functions effectively and without in our public institutions” by creating such an office. any undue influence. Such persons or staff of such body or Unsurprisingly, the bill was once again voted down. bodies shall have the appropriate training and resources to The principal argument in favour of a federal anti- carry out their tasks.” (Emphasis added) corruption commission can be very shortly stated. Corruption occurs when and where money, power and No such body or system has been established by influence are found and persons pursue them in a the Australian government. Instead, the government criminal or improper way. Each state government now created a specialised anti-corruption body, the Australian has an anti-corruption body because each controls Commission for Law Enforcement Integrity (ACLEI) money, power and influence in great quantity. But by but initially confined its jurisdiction to the activities of far the largest quantity of each is in the control of the three law enforcement bodies, principally the Federal Commonwealth government in Canberra and there is no Police (AFP) and the Australian Crime Commission, obvious justification for assuming or asserting that some and has since added the Australian Customs and Border

30 VBN VBN 31 Accountability Round Table submissions to the for the head of one agency not Attorney-General’s Department in 2012 noted referring a matter to the integrity commissioner. In the ART’s view, its news and views news at least nine examples of corrupt conduct. arguments have been made good by the happening of a succession Protection Service, the Australian any information or allegation that of scandals in the Commonwealth Transaction Reports Analysis raises a corruption issue in that arena, occurring while ACLEI was Centre (AUSTRAC), the Crimtrack agency. The government’s approach the only body supposedly in charge Agency, and prescribed aspects to preventing corruption has of investigating any corruption in of the Department of Agriculture. therefore been that no single body that area. There is now an inquiry underway should be responsible, rather that The following instances are merely as to whether ACLEI’s jurisdiction there should be a range of bodies and examples of the misconduct likely should be extended to cover the governmental initiatives to promote to be produced in an environment whole Department of Agriculture, accountability and transparency. of money, power and influence. the Australian Securities and The shared responsibility also Most of the examples which follow Investments Commission (ASIC), relies on the obligation imposed have been contained in submissions the Attorney-General’s Department on each agency to refer issues made to one or other section of the and the Australian Taxation Office involving corruption to the integrity Commonwealth by the ART since (ATO). But even if these bodies are commissioner. 2010 under the chairmanship of the brought within ACLEI’s jurisdiction, All these issues have repeatedly Hon Tim Smith QC. Many of them it will still not have jurisdiction over been taken up by the Accountability were first exposed by investigative most public servants, members of Round Table (ART), a non-partisan teams of the Fairfax newspapers, parliament, their staff, the judiciary body of individuals concerned usually either in The Age or The or most federal bodies or persons to pursue the achievement of Sydney Morning Herald. making decisions or providing accountability and transparency in First, the Australian Wheat Board services involving the expenditure of government throughout Australia, (subsequently, AWB Ltd). During public funds in the Commonwealth. in a series of submissions to the Iraq War, Australia was a party The Office of Integrity governments at the federal level to trade sanctions which limited Commissioner and ACLEI were since at least the start of January the sale or supply to Iraq of goods established by the Law Enforcement 2011. The ART’s concerns are that or products. AWB had a statutory Integrity Commissioner Act 2006 even with the bodies presently monopoly in the export of Australian (the LEIC Act). The scheme of under consideration, the jurisdiction wheat. It exported wheat to Iraq this Act is to place various bodies of ACLEI is inadequate, and but to facilitate these transactions it under ACLEI’s jurisdiction, and Australia needs a single national made payments contrary to the trade to give ACLEI the primary role of anti-corruption body covering the sanctions. That this was occurring investigating law enforcement- whole Commonwealth sector. The for a lengthy period was the subject related corruption issues, giving ART has been concerned that the of allegations by, inter alia, AWB’s priority to systematic and serious risk of corruption is continuing to competitors. There was no single corruption. ACLEI also collects increase exponentially. But most of body or dedicated system with the intelligence about corruption all the ART seeks to challenge the responsibility to investigate AWB’s in support of the Integrity absence of a single body responsible performance in selling wheat to Iraq, Commissioner’s functions. The for investigating Commonwealth and it was only after troops entered LEIC Act functions, however, by corruption. The danger of a Baghdad and documents came to establishing a framework under multi-body approach with shared light revealing this practice that a which the integrity commissioner responsibility is that it results in no royal commission was established. and the relevant agency heads are body having ultimate responsibility AWB’s personnel claimed that the to prevent and deal with corrupt and each body involved being likely practice was well-known to the conduct jointly and cooperatively. to assume that all is well because Australian government. Be that as it The arrangement accepts that each there is someone else making sure may, any internal systems that should agency will have set up internal that nothing corrupt is occurring. Not have uncovered the practice had corruption controls and will maintain only does this mean that corruption failed, and there was, as now, no body continuing responsibility for the can fall through the gaps between with the responsibility to ensure integrity of its staff members. The the various bodies, but also, since that AWB was abiding by the trade LEIC Act then requires the head of the system depends on cooperation sanctions in operation. an agency in ACLEI’s jurisdiction to between the bodies and their heads, Next, the foreign bribery notify the integrity commissioner of there can be a variety of reasons allegations concerning Note Printing

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Australia (NPA) and Securency, two Guernsey, Jersey, the Bahamas, concentrated on drug traffic and companies which produced and United Arab Emirates and Hong counter-terrorism and were reluctant sold bank notes to the Australian Kong. The Age reported that the to deal with fraud matters, and would government and to overseas Securency Board authorised the only deal with official misconduct governments. Allegations of foreign payment of more than $18 million to which touched on criminality at the bribery dating back to 1999 involving tax havens between May 2006 and top end of the spectrum because it had NPA arose in 2007. In 2007, the September 2009. other priorities. NPA Board became concerned ART submissions to the Attorney- As recently as September 17, 2014, about management’s slowness in General’s department in 2012 noted a man who worked for the Australian implementing a request by the at least nine examples of corrupt Bureau of Statistics pleaded guilty Reserve Bank (RBA) that it review conduct involving a range of public in the Melbourne Magistrate’s Court and strengthen its policies about agencies including companies to passing inside information on the engagement of foreign agents. closely associated with the RBA, an employment, trade and retail figures The deputy governor of the RBA Assistant Commissioner of Taxation, moments before they were released received a written briefing from an evidence of corruption of the Defence to the market to a banker who used NPA employee containing admissions procurement system, bribery of an the data to make trades on currency that Malaysian and Nepalese agents ATO inspector, corruption of at least markets based on which direction of NPA had paid bribes for NPA. 15 Customs and Border Protection the Australian dollar was expected The NPA board discussed the issue officers and rorting of allowances by to move. The scheme was alleged to and decided the matter should be employees in the Attorney-General’s have reaped $7 million for the banker handled internally. These events and Department. In May 2012 information in illegal foreign exchange trades. the conduct of NPA and Securency was revealed from a top secret Since 2012, the community has had been the subject of a continuing Polaris Task Force Report of “rampant been made aware of the disclosures campaign by The Age. The NPA Board corruption” involving customs and following the NSW ICAC’s and the RBA have maintained that quarantine officials, port workers investigations into the activities the NPA board sought appropriate and organised criminals. The Public of the former NSW Minister for information and advice, responded Services Commissioner’s State of the Mining, Mr Ian Macdonald and appropriately to the information it received and relied on the advice The Federal system is the biggest and weakest of all it was given. After 2009, the saga continued with Securency. In May the nation’s electoral funding regimes. 2009 the RBA became aware of bribery allegations against Securency Services Report of 2010/11 indicated the Obeid family and the many from reports in The Age, which that at least 2,120 Australian Public recent revelations in ICAC hearings resulted in an AFP investigation. Service (APS) employees were concerning political donations on Reports in The Age in July 2011 investigated for suspected breaches both sides of the political spectrum indicated that nine people had been of the Commonwealth Code of in NSW. Some argue that NSW is arrested in relation to alleged bribery Conduct involving dishonesty, theft Australia’s most corrupt political by Securency in Malaysia, Nigeria (including identity theft), misuse of jurisdiction, others that the most and Vietnam. Later two Austrade Commonwealth resources, misuse of serious disclosures relate to land officials were identified as having information for private gain, misuse use decisions which are not a facilitated contacts with overseas of authority or power or conflict of federal concern. The opposing government officials alleged to be interest. argument is that the allegations corrupt. A Sydney Morning Herald in NSW are investigated because Further reports in The Age claimed investigation led to reports in NSW has Australia’s most effective that the full list of tax haven accounts September 2011 by Linton Besser anti-corruption system. As Mike used between 1999 and 2009 was that there had been over 3,800 Seccombe argued in the Saturday greater than had been previously internal investigations of APS staff Paper in May this year, “the laws reported and raised serious questions in nine departments and 1,300 in NSW are the most stringent of about the level of scrutiny applied in the Department of Defence; in all, a low declaration threshold by the RBA-appointed board the previous two years 83 internal ($1,000), tight caps on donations directors. More than $30 million investigations in the ATO; and in the and prohibitions on some donors was alleged to have been wired by previous 12 months in 10 agencies, 21 including property developers …” By the two companies to accounts in allegations of corruption, 65 of conflicts contrast, Seccombe said, the federal Liechtenstein, Switzerland, Belgium, of interest and 47 cases of fraud. But system is the biggest and weakest the Seychelles, the Isle of Man, Mr Besser also found that the AFP of all the nation’s electoral funding

32 VBN VBN 33 If East Timor’s allegations are made good in the Arbitral Tribunal in The Hague, Australia will be stigmatised in the international community as having been guilty of news and views news an indefensible fraud.

regimes. There are no prohibitions on representatives of the Casino shared disclosed. A mere $485,000 of the any class of donors and no caps on Mr Katter’s fascination with “Red Ted party’s total income of $18,500,000 the size of donations or expenditure. Theodore”. for the election year 2010/11 was Seccombe argued that “the effect of Mr Oakeshott then, evenhandedly, sourced to corporate industry or this is to make it all but impossible reminds us that it wasn’t just them. individual donors. There are alleged for an outsider to determine exactly Union slush funds directly determine to be hundreds of “associated who has given exactly how much to who gets into Parliament for the ALP, entities,” businesses, companies which politician, and to what end.” and control what decisions are made. unions and foundations, such as the Political donations are made by It nearly brought down the 43rd Free Enterprise Foundation, set up many people out of a genuine desire Parliament with the intrigue of to collect money and pass it on to to fund and support the political Craig Thomson. the parties. Similarly there are clubs party of their choice, and without Mr Oakeshott continued: such as the Treasurer’s North Sydney any ulterior motive. The principal Forum which charge membership “Then there was the late Paul Ramsay, problem with political donations fees (up to $22,000 in the case of one of the biggest LNP’s donors, who is, however, that for many others the North Sydney Forum) to aggressively opened his pockets when they are a means to buy access business figures and lobbyists the private health insurance debates and influence which is not available in return for access. were on. Or the various industries – to the general community. As former More recently, the special case such as alcohol and tobacco – when Senator Rob Oakeshott put it of the litigation between Australia the tax models or plain packaging were recently: and East Timor has raised the being considered. Famously, it was the question of whether the Australian “The real threat [to Australia’s future] coal industry not Tony Abbott who security services should also be is within government itself. It is the killed the mining and carbon laws, both subject to greater investigation for increasing corruption of our public through direct donations or third-party improper behaviour. In 2004 the decision-making by influence gained advertising.” Commonwealth was negotiating with through record levels of private The amount of money that may the Democratic Republic of Timor- donations. The only colour Australia be involved in these donations Leste (East Timor) to share revenues needs to fear is the colour of money in is potentially enormous. Kelvin from the oil and gas deposits under its democracy. Cheque book decision- Thompson in a recent speech in the Timor Sea called the Greater making is the silent killer of necessary the Federal Parliament referred Sunrise Field. Since December 2013 reform.” to the company Australian Water East Timor has alleged that during Oakeshott in his comment in Holdings as a case study in the these negotiations ASIS used the the Saturday Paper of October 18-24 politics of greed, operating as a cover of Australia’s aid program to continued: funnel for vast amounts of money install listening devices inside the for political lobbying for both the East Timorese Cabinet Room and “I saw these “coincidental” donations Labor and Liberal parties. He quoted elsewhere so that Australia could spy with my own eyes”. the NSW ICAC’s counsel, Geoffrey on sensitive information. Woodside He then draws attention to the Watson, SC as saying in April Petroleum, hoping to exploit the timing and size of donations made this year that one of the nation’s gas fields, was working with the by casino interests “when Andrew largest developers had hidden his Australian government to secure the Wilkie’s poker machine legislation donations to the NSW Liberal Party best possible deal. The allegation of was in its eleventh hour”. He via the Free Enterprise Foundation. the solicitor acting for East Timor, observes that the “Liberal National Donations to this body, he said, were Bernard Collaery, is that the director- Party picked up at least $300,000 immediately re-donated to the party general of ASIS and his deputy just days before” Tony Abbott met in a “systematic subversion of the instructed a team of ASIS technicians those interests to discuss those electoral laws”. Mr Thompson said to travel to East Timor in an elaborate same issues. Mr Oakeshott goes on that a 2012 Fairfax Media analysis of plan, under cover of Australian aid to note that Bob Katter’s Australian returns to the Australian Electoral programs relating to the renovation Party received $250,000 when Commission showed in the case of and construction of the Cabinet it was discovered, following a the Victorian Liberal Party, that only offices in Dili, to insert listening private meeting with them, that a handful of donors were publicly devices into the wall, which were to

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be constructed under the Australian rather implicitly to accept, that the corruption have been increasing in aid program. Mr Collaery alleged bugging operation took place. recent years for a variety of reasons. that the ASIS operator decided to If East Timor’s allegations are made These include the increase in blow the whistle after learning that good in the Arbitral Tribunal in The government control of information, a former minister, who had held a Hague, Australia will be stigmatised the ever increasing need for relevant ministerial portfolio at the in the international community as funding of political campaigns, the time of the 2004 negotiations, had having been guilty of an indefensible methods employed by government become an advisor to Woodside fraud and grossly unethical activity and the failure to enact legislation Petroleum after his retirement from against East Timor, and having to provide adequate controls and politics. East Timor then launched a attempted to prevent the fraud transparency, the commercialisation case before an International Arbitral being proved in evidence by actions of government services and projects, Tribunal in The Hague to have the which in ordinary court proceedings the development of lobbying, the oil and gas treaty declared void would be regarded as a most serious inadequacies of any attempt to as obtained by fraud. East Timor contempt of court. Last month it control that activity and make it intended to prove its case by calling was alleged that the Australian transparent in a timely manner, and as a witness before the Tribunal the Government has now asked the AFP the failure to stop or control the ASIS operator who was the former to investigate if Mr Collaery and flow of ministers and their staff to director of all technical operations the ASIS agent can be charged with the lobbying industry on retirement in ASIS. However officers of ASIO disclosing classified information, from their positions. Combined with these factors there is an increased It is high time that a comprehensive independent risk of corruption resulting from the integrity system was created for the Commonwealth, impact on major vested commercial interests of the significant changes incorporating a general purpose Commonwealth anti- that will be needed to address the corruption agency. problems posed by climate change and the exhaustion of natural raided the offices of Mr Collaery in supposedly in relation to the resources, including energy, water Australia, seizing files and electronic revelations that Australia spied on and phosphate. material, and the passport of the East Timor during sensitive oil and Relying on cooperation between a retired ASIS operator who was to give gas treaty talks. This appears to be a range of bodies covering only part of evidence in The Hague was cancelled. further admission by the Australian the activities of the Commonwealth The Attorney-General, George Government that the allegations of was never a satisfactory approach to Brandis QC, has confirmed that he East Timor are justified. If no bugging the prevention of corruption in the approved the warrants to conduct the operation was undertaken by ASIS federal area, and has been shown raid, saying that ASIO requested the on Australia’s behalf, there would be to be ineffective. It is essential search warrants on the ground that no classified information to divulge. that there be in place a single the documents and electronic data Even if the raid on Mr Collaery’s independent body with overarching in question contained intelligence office is not to be categorised as a responsibility to expose and prevent relating to security matters. Both contempt of court, ASIO’s officers corruption. Mr Brandis and the Prime Minister and the Attorney-General’s office It is high time that a have defended the raid on Mr can only be regarded as having taken comprehensive independent Collaery’s office and the use of the part in an attempt to prevent the integrity system was created for search warrants as being done in fraud being proved in the Tribunal. the Commonwealth, incorporating the national interest, and to protect At the very least, the evidence so far a general purpose Commonwealth Australia’s national security interest. available to the public raises serious anti-corruption agency with The Government now says that concerns that would thoroughly educative, research and policy it will not comment on security justify investigation by an anti- functions and all necessary matters. It would seem, however corruption commission with effective powers, and which is subject to that the only secrets likely to be powers. The whole affair suggests parliamentary oversight. disclosed by the ASIS officer would a prevailing attitude in the senior *The Hon Stephen Charles QC is a former relate to the identity of ASIS officers levels of government and Australia’s Judge of the Court of Appeal and in any bugging operation and the security services that Canberra “can Supreme Court of Victoria. He lectures at Melbourne University Law School operational methods used by ASIS get away with anything.” Master’s Course on the law of royal for that purpose. It is noteworthy that The ART’s case for the necessity to commissions and other public Inquiries. Australia’s response to East Timor’s set up an anti-corruption commission He is an executive member of the Accountability Round Table. major claim appears not to deny, but in Canberra argues that the risks of

34 VBN VBN 35 The James Merralls visiting news and views news fellowship in law

On Wednesday 28 May 2014, the Hon Michael McHugh AC QC launched the James Merralls Visiting Fellowship in Law at the Supreme Court library. James Merralls AM QC and the Dean of Melbourne Law School, Professor Carolyn Evans, also made speeches. The Fellowship honours the contribution made by Mr Merralls to the Australian legal profession, in particular through his editorship of the Commonwealth Law Reports for almost 50 years. Victorian Bar News is pleased to publish this speech delivered by Michael McHugh.

t is a great honour to speak this evening is that Jim and I

be asked to speak in The Hon Michael share a passion about horse racing; support of the James McHugh AC QC his interest being in the breeding Merralls Fellowship. of horses and mine in their Let me begin by performances on the race track. In thanking all those other words, he’s a breeder; I’m a who have made donations to the punter. Fellowship and encourage those I can’t remember the time and who haven’t to pledge tonight to circumstances in which I first met make a significant donation in Jim Merralls, but I remember very supportI of it. Ms Diane Costello clearly when I first became aware will gladly sign you up before you of his name. It was on reading leave the building. Over $400,000 a two-part article that he wrote has already been pledged and called “Judicial Power Since The the aim is to raise $500,000 by the Boilermakers’ Case: Statutory end of 2015, which, as they say, is Discretion and the Quest for Legal certainly doable. Standards”, which was published in Volume 32 of the The notion of a Visiting Fellowship is not only a Australian Law Journal in January and February, 1959. splendid idea with long term benefits for the development It was a brilliant analysis of that power. For many years of Australian law as well as for the University of while I was at the Bar, that article was my bible whenever Melbourne but, given the extraordinary contribution Jim I had to deal with a question concerning judicial power. Merralls has made to the law of Australia, no Australian I don’t know what Jim would think of recent High Court lawyer is more deserving than he is to have a visiting decisions on judicial power, such as Kable. I suspect he fellowship identified by his name. We should congratulate would not regard them favourably. those who conceived the idea of creating a visiting I also remember vividly the only first instance case scholarship program in the name of James Merralls. It I had against him while I was at the Bar. It was heard was an inspired decision. Jim has given you the details by Mr Registrar Marshall in the Federal Conciliation of the scholarship program and what it seeks to achieve and Arbitration Commission, an unlikely place to find and this relieves me of the task of doing so. It allows me Merralls QC who was more likely to be found debating to confine my remarks to the Jim Merralls I know, a much the application of the rule in Andrews v Partington or admired and loved lawyer and a true Renaissance man. the extent of federal legislative power. The issue in the Jim Merralls is an erudite and scholarly lawyer like arbitration case was whether jockeys were employees all – well, like most – members of the Victorian Bar. So it and, if not, whether the arbitration power of the has perplexed me as to why I should be asked to speak on constitution extended to independent contractors. The this important occasion, because my understanding has case arose out of an application by a union to amend long been that Victorian lawyers regard us NSW common its eligibility rules. I was appearing for the good guys, lawyers, as Rudyard Kipling might have said, as a “lesser the Australian Workers Union, and Jim was appearing breed” of lawyer, if indeed they regard us as real lawyers for the dark side, the principal Australian Racing Clubs, at all. I suspect the most likely reason for choosing me to conservative bodies who were strongly opposed to the

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unionisation of jockeys. I suppose and was Dean of the College for 18 appears as a reporter in the title in the era of Dyson Heydon’s royal months. page to volume 103 of the reports. commission, the AWU would now be Jim was admitted as a practitioner The CLRs are now up to volume regarded as the dark side. Needless on 1 April 1960 and signed the Roll 249. So Jim has been associated to say, Jim won the case. of Counsel on 27 April the same with the reporting of 145 volumes As a racing man, it must have given year. He was number 616 on the Roll. of those Reports. him great pleasure to confer with and Number 617 was that formidable In May 1969, Jim became editor call as witnesses well-known trainers trial lawyer, Neil McPhee, who in of the CLRs. He is still the editor and ex-jockeys, such as Jack Purtell, his later years was much in demand today and his 45 years of service in who had won three Melbourne Cups by Sydney solicitors to the dismay that position has passed the 40 years and a Caulfield Cup. In the course of certain members of the Sydney (1895-1935) of Sir Frederick Pollock’s of the case, Jim rather reluctantly, Bar, particularly those who practised editorship of the Law Reports. The I thought, tendered a report on the in the defamation field, such as reporting of High Court cases in 1969, racing industry which should be Tom Hughes. In 1960 and 1961, Jim when Jim became editor, could fairly compulsory reading for served as the associate to Sir Owen be described as a mess. On becoming all those, such as Philip Crutchfield, Dixon. That was an experience of editor, Jim was presented with a who like to own racehorses. which anyone would be proud, and number of tea chests of judgments That report showed that, for every Jim certainly has been proud of it. I and transcripts of argument in more dollar an owner invested in owning doubt if anyone would dispute that than 100 cases. As Justice Sundberg and training racehorses, on average Jim’s associateship with Chief Justice said in a speech at the Australian the owner got back only 22 cents. Dixon has been one of the driving Club in honour of Jim in February There is good reason to believe forces of his life and has greatly 1999: that the only worse recreational influenced his view as to how the “Jim’s first and daunting task was investment than buying a racehorse common law should be developed. to get rid of the backlog. This took a is buying a yacht. On commencing practice at the long time, but was achieved by the Jim was born in Canberra in Bar, Jim read with the great equity appointment of new and enthusiastic 1936. He received part of his early lawyer, Richard Newton, whose reporters and the pensioning off of education at The King’s School, unhappy early death deprived the old non-performing ones. It took Parramatta although I would not nation of a great judge. Jim took silk more than 10 years to achieve an be so bold as to claim that that in 1974. His practice at the Bar has acceptable six months turnover NSW institution – where the radio mainly concerned constitutional between judgment in a case and personality, Alan Jones, once taught matters and cases on the equity side publication in the Reports.” and Sydney silks, such as Bret of the court where his services have Justice Sundberg also said that, Walker, SC studied – was responsible been in great demand throughout from the beginning of Jim’s role for Jim’s later success in life. After his career. As you would expect as editor, he insisted “upon a his stint at The King’s School, Jim from his work as editor of the useful but not overburdened head acquired a Victorian domicil of Commonwealth Law Reports, his note – in most cases the facts, the choice when his parents moved to cases were prepared and argued decision and the propositions of Victoria. He completed his secondary meticulously and, unlike most of his law for which the case is authority.” education at the Church of England New South Wales contemporaries From the practitioners’ viewpoint, Grammar School. In 1954, he who prepared their cases the night the advantages of a concise but entered the Faculty of Law at the before the hearing, his arguments comprehensive head note to a case University of Melbourne, winning were prepared well in advance of the cannot be overstated. In the early numerous awards during his course. hearing date. I once called on him in 1980s, the New South Wales Bar Jim was on the editorial boards chambers and seeing a line of law Council was so concerned with the of Res Judicatae and the reports on the desk in front of his increasingly lengthy headnotes of Melbourne University notebook, innocently asked, “Is the Australian Law Journal Reports Law Review, which took this for tomorrow’s case?” “No,” that it wrote to the editor declaring, over the function of he replied in a surprised, if not somewhat sarcastically, that usually the former Journal. He disbelieving, tone, “It’s on in a a quicker understanding of a case was, therefore, one of couple of month’s time.” could be obtained by reading the the founding members of In 1960, Jim commenced main judgment than by reading the the Law Review. He was his long service, now totalling head note. resident Law Tutor at 54 years, with the The Commonwealth Law Reports Trinity College Commonwealth Law under Jim’s editorship are the model for 12 years Reports. His name which all law reports should strive

36 VBN VBN 37 James Merralls A little while ago I referred to Jim as a Renaissance musical comedies and stage plays man. I used the term in the sense of describing a for Nation. In doing research for this speech, I greatly enjoyed reading them. news and views news person who has wide cultural and sporting interests Someone should consider collecting and is expert in several of them. and publishing them. They are everything that in my opinion a review to emulate. The present Chief Justice the last 40 years, many of whom have should be. Views may differ as to what and two former Chief Justices of the gone on to high judicial office.” makes a good review, but to my mind High Court have heaped praise on the a review should have a key theme, As Chief Justice Gleeson has said, standard of the Commonwealth Law disclose a thorough understanding of “as to the value of [Jim’s] contribution Reports under Jim’s editorship. In the the work or activity being reviewed, [to the success of the CLRs] there preface to volume 180 of the Reports, disclose a knowledge of similar works can be no argument.” Sir Anthony Mason said that Jim “was and provide evidence to support its A little while ago I referred to Jim largely responsible for the very high conclusions. It should be analytical, as a Renaissance man. I used the standard we have come to expect of evaluative and where appropriate, term in the sense of describing a the Reports.” His praise has been critical. By those criteria, Jim’s reviews person who has wide cultural and echoed subsequently by Chief Justice deserved a First. sporting interests and is expert in Gleeson and Chief Justice French. His reviews showed an extensive several of them. It is no doubt true As Chief Justice Gleeson has said: knowledge of the subject and its that no one can be a Renaissance cultural context, whether it was a “the selection of cases suitable for man in the true meaning of that term stage play, a musical comedy, a novel, inclusion in the Commonwealth Law and that more often than not the a film or a famous author. As might Reports is a primary task of the editor. term is used in an ironic rather than be expected of a person in his early This is a heavy responsibility. It requires accurate sense. But that said, no one 20s, his views were expressed with the confidence of the publishers, the who knows him would deny that Jim self-assurance and confidence. They subscribers, and, above all, of the Court has a wide range of interests that go were invariably hard-hitting and itself. That confidence is sustained by beyond the law. Nor would anybody often iconoclastic. The reviews also Mr Merralls’ professional eminence familiar with the legal profession demonstrated that his knowledge as a barrister, his extensive legal deny Jim’s expertise in legal matters, of the theatre and cinema extended knowledge, and his personal integrity but what may surprise some of you beyond Australia and showed a deep and commitment.” is his interest and expertise in such understanding of contemporary and matters as the novel, the cinema, A secondary but nevertheless very historical art forms in England, the the stage, the musical comedy important task of the editor is to United States and in some cases and the breeding and performance assign a reporter to each judgment. France. How he acquired such of racehorses. All those who have served as knowledge at such an early age is a Between 1959 and 1964, Jim was reporters of the Commonwealth Law minor mystery. a regular contributor to one of the Reports testify as to how closely Jim No matter how famous the author, best magazines ever published in has involved himself in the entire playwright, singer or director, Jim’s Australia – Nation, which was an process of reporting and editing those reviews did not hold back their intellectual powerhouse. Contributors Reports. In the speech of Justice criticism. Thus, in reviewing JC included Robert Hughes, later the Sundberg to which I earlier referred, Williamson’s production of “My Fair art critic for Time Magazine and he said that the edited copies of his Lady”, he wrote of its star: the author of several well-known “early attempts bore more of the books; Dr John Bray, the poet who “The 22-year-old Irish actress Bunty elegant Merralls’ script than of my later became Chief Justice of South Turner is out of her depth as Eliza. She own typescript.” The citation for the Australia; Sylvia Lawson, the has a sweet singing voice and makes Doctor of Laws (honoris causa) that writer and literary and film critic; a charming gamin but loses control Melbourne University awarded Jim Charles Higham, who subsequently as Galatea. Where is that ‘beautiful correctly states: established a high reputation as a gravity’ which awes the Ambassador’s “James Merralls leads by example. His film critic in the United States; and wife? Miss Turner enters the Embassy meticulous correction and editing of my old client, the poet and author Ball looking like a grinning ninny. law reporters’ draft reports, together Max Harris, whom I once defended Where is the ‘pedantic correctness of with his own reports being models of in a defamation action brought pronunciation and great beauty of tone’ concision and clarity, have provided against him by Frank Hardy. at Ascot? Miss Turner commits the invaluable guidance as well as In the years 1959-64, Jim wrote inexcusable crime of bobbing her head specialist education to the reporters of numerous reviews of novels, films, and speaking too quickly.”

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He was critical of Patrick White as a the English theatre the nice balance Telegraph. He too is something of playwright, declaring: between mannered abstraction and a Renaissance man, having written reality which is required by the play, books or monographs on philosophy “I am not convinced that he has the and he is given excellent performances and Charles Darwin. playwright’s faculty to let his characters by Vivien Leigh and Sally Home For those interested in racing, Jim’s go so that it is their dramatic relationship as the bad and good angels. Miss articles in The British Racehorse are that we the audience see before us. Leigh played Paola under Jean-Louis a joy to read. They contained concise Charades are not an art form.” Barrault’s direction in the original essays on the winners of the leading Of CP Snow’s, “The Conscience London production of this translation races run in New South Wales and of the Rich”, one of the novels in by Christopher Fry, and the great Victoria during the year. Needless Snow’s “Strangers and Brothers” Frenchman’s hand can be detected in to say, there was a short piece on series, Jim wrote: her controlled under-playing. There are Beer Street, although no mention no bravura passages here but pared was made of Jim’s connection with “The weakness of Snow’s method is feline intensity. The tones and rhythms the horse. Part of what Tim Whiffler readily apparent. The novelist has a of her speech cleverly simulate French wrote of Beer Street was: temptation to write with his eye more dramatic style, though her low tones on the whole sequence than the part in “The Caulfield Cup was won in dashing are apt to be lost in the large theatre.” hand... Sir Charles is apt to forget his style by the four-year-old Beer Street function as a storyteller and to write A true Renaissance man must have (by Lanesborough – Trap by Landau), about his themes”. an interest and expertise in sport as who made most of the running…Beer well as culture. Jim’s principal sporting Street was bred at Devonport on the Inevitably, Jim’s trenchant criticisms interest has been thoroughbred north coast of Tasmania by his part provoked anger among the victims breeding and racing although he is owner Dr Michael Wilson…As a three- of his reviews. Some of them were also a keen follower of cricket and year-old Beer Street won the Queen so angry that in earlier times they has an encyclopaedic knowledge of Elizabeth Stakes, 10 and ½ furlongs at may have taken a horsewhip to all the statistics. As many of you here Launceston in the presence of H.M. The him. Writing of the director, Wal will know, he was a part owner of Beer Queen. He is a tough, resolute galloper Cherry, Jim said, among many Street which won the Caulfield Cup in whose racing style is reminiscent of his other criticisms: 1970 at the handsome price of 15/1. But paternal great-grandsire…” “Tennessee Williams encourages Cherry immediately before Beer Street won The setting up of the James Merralls to indulge to an absurd extent in the the Herbert Power Handicap the week Visiting Fellowship is a partial high-powered showmanship to which before, he was priced at 50/1 for the payment of the immense debt that his direction is always prone. His hectic Caulfield Cup. Acting on Jim’s advice, practising lawyers owe this eminent treatment of ‘Camino Real’ served only many members of the Bar cleaned barrister, great Victorian and great to expose the gimcrackery of Williams’ up by taking the 50/1. Trinity College Australian. The Australian nation has worst play, and greater attention to the celebrated the win that Saturday partly paid this debt by making Jim a meaning of the words might have secured night with much wine courtesy of the Member of the Order of Australia but at least a modicum of artistry.” generosity of Jim. Many students at he deserves more. Trinity were also beneficiaries of the Nation gave Cherry a whole page I congratulate and thank the 50/1 price including Frank Callaway, to respond. University of Melbourne and its who probably had the only bet of his Similarly, the director, Barry Pree, Dean for the foresight in agreeing life on Beer Street. commenced his answer to Jim’s to set up the Fellowship in honour Given his writings for Nation, criticism of various performances of this great man and lawyer. In it should come as no surprise to with the words: conclusion, I would also like to you that for some years Jim wrote thank Justice Susan Crennan for “This time your drama critic, James twice-a-year articles for The British her assistance in obtaining research Merralls, has gone too far. His summing Racehorse under the name Tim materials for this speech. up of the theatrical scene in Melbourne Whiffler, a poorly bred horse which during 1960 is just plain pathetic!” won the Melbourne Cup in 1867 and *VBN notes that in order to endow was the best horse of his generation. the Fellowship, a minimum of $500,000 Of course not all Jim’s reviews were I don’t know what attracts writers on is required. At present, pledges critical. Thus, in his review of the breeding to use that pseudonym. The and donations of close to $440,000 translated French play, “Dual of Angels” Sydney professional gambler, Arthur have been received. To support the at Her Majesty’s Theatre, he wrote: Harris, is also a breeding expert and Fellowship contact Kate Barnett, “Robert Helpmann’s production used that name for several years Director of Development, Melbourne achieves as closely as is possible in while writing for the Sydney Daily Law School on 03 9035 8747.

38 VBN VBN 39 The Attorney-General enjoyed a whale-watching trip off the coast of Sydney before The Hague in June 2013 news and views news

A whale of a time: Australian advocacy in the International Court of Justice

MARK DREYFUS

fter a long legal battle with Background Japan over its ongoing whaling In 1986 a worldwide moratorium on commercial whaling program in the Southern Ocean, was negotiated and agreed under the framework of the on 31 March this year, the International Convention for the Regulation of Whaling. International Court of Justice Although Japan agreed to be bound by the moratorium, (the ICJ) delivered a historic and it then continued to kill large numbers of whales in resounding decision in favour of Australia. As Attorney- the Antarctic, claiming that it was doing so under an General, I had the honour of appearing as counsel for A exception to the moratorium that permits whaling for Australia during the oral proceedings before the ICJ last “scientific purposes”. year, and I’ve outlined a few reflections on that unique Australia never accepted that Japan’s whaling program experience here. was for scientific purposes, and maintained that Japan

40 VBN Attorney-General and Member news and views for Isaacs Mark Dreyfus QC, in the Peace Palace where the ICJ sits

was in fact continuing its commercial whaling program, concealed in the lab-coat of science. Japan’s ongoing whaling program resulted in the slaughter of thousands of whales, and by so flagrantly subverting its legal obligations, it also made a mockery of international law. For more than 20 years Australia engaged in diplomacy to try to convince Japan to end its whaling program. Yet Japan continued with its whaling program, and so on 31 May 2010 the then Labor Government initiated legal action against Japan in the ICJ. Appearing before the ICJ As the court of nations, there is an expectation that the states appearing before the ICJ will be represented by their most senior legal officers. For common law nations such as Australia, this means that the As the court of nations, there is an expectation that Attorney-General will usually appear to argue part of the case, and in the states appearing before the ICJ will be represented particular to open and to conclude by their most senior legal officers. the oral arguments. Of course, the case was an enormous undertaking and cultural traditions. In addition to cases before the ICJ. We broke with that took years to prepare, and so the 15 permanent judges, if a nation that practice and called two expert I appeared with a truly excellent appearing does not have a national scientific witnesses, whose evidence team of lawyers and counsel that on the Bench, that nation is entitled was integral to our case. Japan included Bill Campbell QC (Agent to appoint an ad hoc judge for the responded with an expert scientific of Australia), the Solicitor-General case. This practice would appear to witness of its own. With witnesses Justin Gleeson SC, Professor run counter to the assumptions we rarely called, cross-examination is Laurence Boisson de Chazournes, make in domestic courts about the something of a novelty at the ICJ. Professors James Crawford SC, need for impartiality, and for the Justin Gleeson QC put on quite a Philippe Sands QC and Henry appearance of impartiality. However, show for the Court, with an elegant Burmester QC. the ICJ has a unique position in the and piercing time-limited cross- The Peace Palace where the ICJ global legal and political system, and examination. It seemed that the sits has a marvellous history, deeply national representation is expected. judges, particularly those from entwined with the development of Because Australia does not civil law jurisdictions, were deeply international institutions and law. The currently have a national sitting interested in the process. courtroom is quite grand, even by the on the Court (unlike Japan), Another notable feature of standards of our more impressive I nominated Professor Hilary appearing before the ICJ is the Australian courtrooms. Charlesworth from the Australian relatively overt presence of politics. The ICJ is a unique institution National University to be our ad hoc Political commentary was at times in which to appear as counsel, and judge in the whaling case. With 16 entwined with the substantive it was a very different experience judges sitting in a single row that legal arguments being made. Japan to appearing before an Australian runs the length of the court room, also sent senior political figures to court. To begin with, the ICJ Bench maintaining eye contact with the The Hague, some of whom I knew is made up of 15 permanent judges, Bench, as I usually try to do, was no from previous (and much more who serve nine-year terms. These easy matter. friendly) international negotiations judges are drawn from the different Another significant difference on climate change. Domestic and member states of the Court, and so from Australian proceedings is that international media interest in the represent a diverse range of legal witnesses are not often called in case was also constant and intense.

40 VBN VBN 41 Attorney-General and member for Isaacs Mark Dreyfus QC, second from right, with the Australian legal team at the International Court of Justice, The Hague, L-R, Professor Laurence Boisson de Chazournes , Philippe Sands QC, Henry Burmester QC, Professor James Crawford AC SC, Solicitor-General Justin Gleeson on his right and Bill Campbell QC on his left. news and views news

But none of this is to suggest The whaling case was only the second time Australia that a case before the ICJ is a has taken a matter to the Court. primarily political contest. The ICJ is unequivocally a court of law, and Australia has taken a matter to the dispute between our nations will it resolves the disputes before it Court. The other case was brought now open the way to an even in accordance with the relevant by Australia in 1974, when Labor stronger friendship and closer international law. Indeed, I have Attorney-General Lionel Murphy led cooperation in the future. However, been to many diplomatic events, legal action against France to bring since the ICJ decision, the Abe and our legal battle with Japan its nuclear testing program in the Government has indicated to the was certainly not one of them. The Pacific Ocean to an end. International Whaling Commission case was characterised by forceful Our victory against Japan was also Japan’s intention to resume advocacy from both sides, each intent historic because it was the first time ‘scientific’ whaling in the Southern on winning the case. In this respect that an international environmental Ocean, allegedly in a manner at least, the matter did resemble convention has been litigated and that is consistent with the ICJ’s domestic litigation. enforced in this way. I hope that ruling. A number of political and Australia’s bold and pioneering legal implications arise from this Implications of Australia’s legal action opens the way for other disappointing announcement from victory nations to hold to account states the Japanese Government. It is that are trying to avoid or subvert now essential that the Australian Australia’s victory against Japan their legal responsibilities for our Government stands firm against any before the ICJ was historic for several shared environment and resources. attempt by Japan to circumvent the reasons. Although Australia has While Australia won convincingly ICJ’s decision, and that Australia appeared as respondent before the against Japan in the courtroom, continues to strive to uphold our ICJ on several occasions, the whaling it has been my hope that the legal victory, our principles, and the case was only the second time resolution of this long-running international rule of law.

42 VBN news and views Well-versed: poetry for Lachie Carter

CAMPBELL THOMSON

Where is the gold of the The dead man’s and the prisoner’s Mums look in each others’ eyes wattles last year And they’re bringing in the verdict this for Lachie Carter after Villon cold morning. Where went the fire between long tanned legs Why won’t the jurors look at me, the Where is the chord plucked that pale faced prisoner cried then disappears Just stand up straight, just stand up Where is the King Parrot strobed straight, the grey haired Tipstaff said by the sun Why doesn’t someone shake their Where is the gold of the wattles head, the pale faced prisoner cried last year You’ll get a notice to appeal, the grey haired Tipstaff said Where fell the apt phrase that nailed the appeal This cold morning The bookie’s clerk sat up the back has Where is the leader whose words tears wet on her cheeks could fight fear For Lachie Carter after Danny Deever by While down the front the butcher has Where is the crest of the weekend’s Kipling his hands deep in his jeans best wave What is the buzzer sounding for, the And the foreman screws his notes up Where is the gold of the wattles last pale faced prisoner cried tight into a little ball year You’ll find out soon, you’ll find out For they’ve found a guilty verdict this soon, the grey haired Tipstaff said cold morning. Where is the Blue who screamed Why do my hands shake like dead over the pack leaves, the pale faced prisoner cried What do you think I’m looking at, the Where is the jock who says gay is not I’ll go and see, I’ll go and see, the grey pale faced prisoner cried queer haired Tipstaff said Just ask your brief, just ask your brief, Where flee the mad shrieks of small the grey haired Tipstaff said kids at play He’s sweating and the tie on loan is So can I kiss my Mum goodbye, the Where is the gold of the wattles last tight around his neck pale faced prisoner cried year The families sitting down the back are You cannot touch, you cannot touch, in their Sunday best the grey haired Tipstaff said Where’s the last stride of the mare in When the jury has decided one short the Cup phrase will fill the room The prisoner’s counsel packs her bag Where is the shiver of Bream on a For they’re bringing in a verdict this and leaves without a word spear cold morning. And both the Mums are sobbing as Where flew the quip with the last they take him down in cuffs drop of wine Why do the lawyers sit so quiet, the But the Judge is only wondering what’s Where is the gold of the wattles last pale faced prisoner cried for lunch up in the Swine year. They’re waiting too, they’re waiting With another guilty verdict this cold Where is the gold of the wattles last too, the grey haired Tipstaff said morning. year? Why did you call another guard, the pale faced prisoner cried Campbell Thompson has had several It’s in the rules, it’s in the rules, the poems published in the last year, grey haired Tipstaff said including in The Age, The Australian, Overland, Steamer, Cordite, and They have been deliberating for a week Rabbit and has a poem currently without a peep shortlisted for the Newcastle Poetry The Judge’s charge was spare and Prize. straight and did not give a hint

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Open justice and the internet What should the approach be in Victorian courts?

GEORGINA SCHOFF

“Publicity is the very soul of justice. It is the keenest The open justice principle has not to spur to exertion and the surest of all guards against date been held to require courts to permit improbity. It keeps the judge himself while trying the filming and broadcasting of proceedings. under trial” 1 To the contrary, photography is prohibited in Australian courts, save where permission The Internet is an irresistible force for change, is given. When permission will be given is sometimes in unexpected ways. In the past few a matter entirely within the discretion of years it has, with almost no fanfare, completely the court. transformed public access to legal proceedings. Occasionally, the media has been permitted One example is the ease with which information to film and broadcast the delivery of judgment about proceedings, including judgments and in a trial that has attracted considerable public court documents, may now be obtained from interest. However, to broadcast the delivery court websites. More fundamentally, however, of reasons for judgment or sentence does not recent royal commissions have demonstrated significantly contribute to the openness of that, through the live webcasting of proceedings, court proceedings. After all, the reasons for we can all ‘virtually’ be in the court room. Given sentence or judgment of the court have always the apparent success of these and other uses of been published, albeit in writing, and today are the technology, it may now be time to examine readily available to be downloaded from court whether and to what extent court proceedings websites. It is the evidence and submissions should be webcast. that precede judgment which allow the public Generally speaking, the principle of open to understand the judgment, when delivered, justice requires that, except where it is and to have a properly informed opinion of our absolutely necessary in the interests of justice, legal system. court proceedings are to be conducted publicly The practical reality is that most people and in open view.2 The fundamental importance (even people with a real interest in the of the principle has been recognised by the proceedings) do not have the time or High Court. In Russell v Russell, Gibbs J held: 3 inclination to travel to court to observe the The rule has the virtue that the proceedings proceedings. Nor can members of the public of every court are fully exposed to public and readily obtain a transcript of what occurred. professional scrutiny and criticism, without which Certainly in Victoria, transcripts of proceedings abuses may flourish undetected. Further, the in our courts are the subject of commercial public administration of justice tends to maintain arrangements and are not freely available. confidence in the integrity and independence of The same is true of proceedings in the the courts. The fact that courts of law are held Federal Court of Australia.4 Whilst rulings and openly and not in secret is an essential aspect of judgments may be easily downloaded from their character. It distinguishes their activities from court websites or austlii.com.au, members those of administrative officials, for “publicity is of the public otherwise rely upon reports of the authentic hallmark of judicial as distinct from proceedings published by the media. The administrative procedure.” media has historically played an important role

44 VBN VBN 45 5 as the eyes and ears of the public Game Changer: Peter Hanks QC and Neil Young and the principle of open justice QC (seated) argue the Essendon Football case before Middleton J in the precence of TV cameras. recognises that nothing ought be photo courtesy of the federal court of australia news and views news done to discourage the making of fair and accurate reports of judicial proceedings conducted in open court, including by the media.6 Media reporting of proceedings can, however, often be unsatisfactory. Most of us will have read media reports of cases in which we have been involved that bear little resemblance to what actually occurred in court. This is due to many factors, and one should not underestimate the skill required to condense one day of court proceedings into four or five of parts only of proceedings, court in Australia to permit the media paragraphs. It is a difficult task for sensational promotion of aspects of to film and broadcast the delivery of a a lawyer, let alone a journalist who proceedings and the placement of judgment. Not surprisingly, the judge might be in quite unfamiliar territory. advertising during broadcasts might presiding was Sackville J. In 1998, Whilst there are some conspicuously all conceivably have an adverse effect the Federal Court permitted the first good reporters who work regularly on the administration of justice. live broadcast of the delivery of a in Victorian courts, many cases are Such concerns have, in addition to judgment in the proceeding brought not covered by experienced court concerns about the intrusive and by the Maritime Union of Australia reporters. Then there is the difficulty disruptive effect of filming, largely against Patrick Corporation. that every time we read a media influenced judges in Australia (and Most State Supreme Courts have report it is necessarily second-hand in other common law jurisdictions) to taken similarly cautious steps. and will always reflect the editorial refuse applications to broadcast. The Victorian Supreme Court decisions of the publisher. The media However, that view has not been has, however, been somewhat of a decides what cases to report, what universally supported. In 1994, the trailblazer. Since about 2007 it has parts of the proceeding to include in Access to Justice Advisory Committee been exploring the possibilities any report, and what prominence to led by Ronald Sackville QC, later afforded by the internet. Initially it give the report. This all has the effect a judge of the Federal Court of experimented with the webcasting, of filtering the account available to Australia, (the Sackville Report) in real time, of ceremonial sittings members of the public. recommended that the Federal Court in the Banco Court. Since then it has In the past, it has not practically of Australia should consider the extended its use of the technology been possible to film and broadcast establishment of an experimental to webcast the opening and closing court proceedings except via the program to allow the broadcasting submissions in class action trials electronic media. Such broadcasts of proceedings and encouraged that involve large sections of the require the presence in court state courts with criminal jury community. In addition to the ‘live of at least one cameraman and trials to do the same. stream’, podcasts are subsequently inevitably involve some intrusion That recommendation resulted available to be downloaded from in the proceeding. Whilst advances in the appointment of the the Court’s website. In the case in technology have reduced the Federal Court’s Director of Public of proceedings arising from the disruptive effect of filming for Information and since that time Kilmore East-Kinglake Bushfire, the television7, one can readily think of the Federal Court has cautiously technology was utilised to allow the reasons why it may be undesirable experimented with broadcasting on a large number of plaintiffs (a class far that the filming and subsequent case by case basis. In 1995 it allowed too large to be accommodated within broadcasting of court proceedings the media to film and broadcast mute the Court) to view the proceedings be conducted through the media. For vision of the opening of a trial and remotely through a secure link paid instance, the selective broadcasting in 1997 it became the first superior for by the firm of solicitors acting on their behalf. The High Court, too, is making Media reporting of proceedings can, however, use of the technology. Although not often be unsatisfactory. streamed live (there is a delay of

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up to a few days), most appeals can Webcasting allows those members of the public now be watched as a podcast via the who cannot come to court to form their own opinions Court’s website. A single fixed camera about the proceeding and the evidence based on their at the back of the courtroom affords those watching with a view of the observations of what actually occurred, rather than bench only. This is of exceptional through reports in the media. benefit to members of the public with an interest in court proceedings, adopted by our courts, which is to by the proceeding and how to report members of the media who wish to broadcast via the media. An example it. It seems to me that this is one case report on proceedings and lawyers is the Essendon v ASADA case8, a where the public would have been with a professional interest. Few of us Federal Court proceeding in which well-served by a broadcast of the ever have the opportunity to appear there was great public interest, at evidence as well as the submissions. in the High Court, nor can we easily least here in Victoria. Acknowledging The affidavits were available to ‘pop over the road’ to watch and that great public interest, the first be read on the Court’s website learn. However its benefits would instance judge, Middleton J, allowed (after appropriate redactions and be greater if the webcast was in two ABC cameramen to be present in some days after the event) and the real time. court to film a directions hearing, and witnesses were either public servants Webcasting allows those members subsequently, the opening arguments, performing public roles or football of the public who cannot come to but not the evidence, in the trial. personalities with public functions, court to form their own opinions The feed was made available to most of whom had given press about the proceeding and the all media organisations for conferences in relation to the matter. evidence based on their observations broadcasting and the media In September this year the NSW of what actually occurred, rather than organisations, rather than the court Parliament passed legislation through reports in the media. bore the cost of the broadcast. creating a presumption in favour Useful insights into what can now Significantly for the purpose of permitting the recording be achieved, technically at least, of the present discussion, the and broadcasting of judgments, can be gleaned from the recent use physical presence of the media verdicts and sentencing remarks of webcasting technology in royal makes a difference. Throughout the (“judgment remarks”) in criminal commissions. The Royal Commission broadcast of the Essendon v ASADA and civil trials in the Supreme into Trade Union Corruption hearing the cameras moved from and District Courts of NSW. The currently being conducted by the Hon the judge to the barristers and, on Courts Legislation Amendments Dyson Heydon QC, webcasts all of its occasions, showed close-up images (Broadcasting Judgments) Act 2014 proceedings in ‘real time’. Members of those in court, including James (NSW) provides that the Court of the public may watch the live Hird, a party and witness in the case, must permit an application to webcast via the commission’s website. and his wife. This licence afforded to record and broadcast judgment There appear to be three fixed the cameramen is in stark contrast remarks by one or more news cameras: one films the commissioner; to the fixed cameras in the Royal media organisations unless certain the second films the witness; and Commission model. Perhaps it was defined exclusionary grounds exist the third films counsel and the court not disruptive, but the close-ups of and it is not reasonably practical to room. All three views appear on the members of public and witnesses implement measures of recording screen. Importantly, too, relevant sitting in the body of the court seems or broadcasting which will prevent witness statements are uploaded onto to me to be somewhat intrusive, the broadcast of any thing that gives the Commission’s website promptly at least in comparison to the fixed rise to the exclusionary ground. following any rulings on admissibility camera employed by the Royal The exclusionary grounds reflect and a transcript of the proceeding is Commission. One was aware those matters that would otherwise uploaded at the end of each day. of the media presence and, prevent the media from publishing A similar model was adopted inevitably, a certain amount material, for instance, where there by the Victorian Bushfires Royal of editorialising occurred. is a suppression or non-publication Commission and is currently Interestingly, the public was not order or where the broadcast would employed by the Royal Commission permitted to watch a broadcast of pose a serious risk to the safety into Institutional Responses to the witnesses giving their evidence. of any person identified or would Child Sexual Abuse, although in the Instead, members of the public were be prejudicial to other criminal later case there are obviously many required to rely upon accounts given proceedings. Further, images that private sessions that are not webcast. by journalists. Many of these were identify jurors, the accused person This model may be compared dedicated sports writers who were, or a victim or their immediate to the approach more commonly with due respect, completely baffled family may not be recorded.

46 VBN VBN 47 proceedings, (if it is not already), we RATINGS BONANZA: A view from Middleton J’s bench ought be in a position to act. This would be a significant change

news and views news to the way our courts operate, and there are many factors to consider. The importance of each factor might differ from case to case, and the issues that I raise here are not intended to be exhaustive.9 Many judges and members of the legal profession express concern about the effect that the knowledge that their evidence may be viewed by a large and unknown audience may have on a witness. Not only may some witnesses be less prepared to give evidence, but it may increase the discomfort associated with the giving of evidence. Others are concerned Given the changes that are taking place in other about the adverse effect upon a

photo courtesy of the federal court of australia of the federal court courtesy photo jurisdictions, it may now be time to consider to what witness’s privacy. The same concerns extent and by what means our courts in Victoria should are always present when a person who is not a willing participant permit the publication of recordings and of their own is required to give evidence; the proceedings. question is one of degree. And the right to privacy must, in all but the In his second reading speech the and the cost is borne by Sky News, most exceptional cases, give way to NSW Attorney-General said that ITN, BBC and the Press Association the principle of open justice. Pain the bill was subject to thorough News Agency. A slight delay in the and humiliation have never been a consultation with the Chief Justice broadcast (about 70 seconds) enables sufficient basis on which to supress of NSW and the media to ensure the video journalist to interrupt the the identity or evidence of a witness.10 that the legislation would operate broadcast if something is said which One senior member of our Bar who to the mutual benefit of each. He might inadvertently breach some was recently called as a witness commended the bill to the House restriction on reporting. before a royal commission told me: on the basis that it would enhance Given the changes that are taking “My experience of giving evidence that the principle of open justice and place in other jurisdictions, it may was live streamed was that it probably “recognised the demands of the now be time to consider to what slightly increased my apprehensiveness modern technology-driven age in extent and by what means our about giving evidence prior to the event which we live”. courts in Victoria should permit the because I was conscious of the fact In the UK too, courts have adopted publication of recordings and of their that my friends, family and colleagues an approach to open justice that own proceedings. For all the reasons may tune in. If I was to make a hash involves the media. Proceedings of discussed above, I think that it is of it, I would do so in a more public the Supreme Court of the United desirable, if possible, that the media way than would otherwise be the Kingdom can be viewed via a ‘live’ not be involved. In the end it may case. I wouldn’t overstate the extent webcast made available by an all come down to a question of cost. to which this added to the stress, but arrangement between the Supreme Although, for example, the Federal it was probably one factor among Court and Sky News which is Court has some of the necessary many. Once I entered the witness box, accessed via the Sky News website infrastructure to live webcast its own however, I literally did not give the (the Court owns the copyright). proceedings, I understand from my issue of live streaming another thought. Further, last year, the Crimes and discussions with Mr Bruce Phillips, Once I had engaged in the process of Courts Act 2013 (UK) was amended the Court’s Director of Public answering questions, I was oblivious to enable the ‘live’ broadcasting of Information, that live webcasting to the fact that the proceedings were proceedings in the United Kingdom is not inexpensive. But costs in this being broadcast. Court of Appeal. A single video- area of technology will inevitably fall, journalist has been employed to and when it becomes cost effective It is difficult to say whether my oversee the filming and broadcasting for courts to live webcast their own experience of the process would be

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typical of that of a person who is not would soon adjust to this new climate due to media interest in reporting familiar with the adversarial system and forget all about the fact that the proceedings. and cross-examination etc. I tend proceeding is being web-streamed. Ultimately it seems to me that to think that most of us are much Indeed, the benefits to the profession the internet provides us with the more focussed on our immediate of being able to watch and learn means to truly realise open justice. surroundings (the lawyer asking the without having to give up a morning to Finally, we have the means to inform questions, the judge/magistrate/ attend Court are likely to far outweigh the public about what goes on in commissioner hearing our evidence and any additional pressures. And there our courts without the filter of the perhaps the people in the gallery) than is also the question of the effect that media. In this way, we can strengthen we are about less immediate factors, such increased publicity might have on our legal system and the public’s such as a camera and the knowledge the reputations of individual barristers confidence in it. that the evidence is being broadcast. and the public perception of the role of I also think that most people would barristers generally. 1 Jeremy Bentham’s rationale for the open justice principle was adopted by the probably become quite quickly If we were to adopt a presumption House of Lords is Scott v Scott [1913] absorbed in the task of listening to and in favour of the live webcasting A.C. 417, at 447 answering questions. Once absorbed, of court proceedings, the most 2 Scott v Scott [1913] AC 417 at 477-8 per the mind does not readily permit important issue to be considered Lord Shaw of Dunfermiline. distracted musings about how we would be to what extent the judge 3 Russell v Russell (1976) 134 CLR might be playing on tv. I suppose that ought have a discretion to disallow 495 at 520. In Victoria, section 28 of might be different in situations where the webcast and how that discretion the Open Courts Act 2013 (Vic) now sets up a presumption in favour of a witness is in the box for a day or two, might be exercised. The NSW Act hearing a proceeding in open court to where the natural rhythm of giving gives us an example of how this which a court must have regard when evidence over an extended period key issue might be tackled. There determining whether to make an order closing a court to any extent. perhaps permits a little more time for is no reason why current legislative the mind to wander”. prohibitions upon the identification 4 Transcripts of proceeding before the High Court are freely available on its of certain witnesses or members The Sackville Committee observed website. of the jury ought not, in the first that studies in the United States 5 Attorney- General v Guardian instance, be sufficient. Further, the Newspapers (No 2) [1990] 1 AC 109 at had shown that the televising of common law and, more recently, 183 per Sir John Donaldson MR, (the court proceedings had not had Spycatcher case) legislation governing suppression a measurable effect upon the orders12 provide appropriate 6 Hogan v Hinch (2011) 243 CLR 506, 532 participants.11 And it should be [22]; Rogers v Nationwide News Pty Ltd protections. Whether to allow web- remembered that the disadvantages (2003) 216 CLR 327, 335 [15]. casting of proceedings when there is associated with court appearances 7 In 1981 the Supreme Court of the an order for witnesses out is another already exist, but the present system United States in Chandler v Florida issue to be considered. Juries are ruled that advances in technology meant leaves it to the mainstream media instructed not to make independent that an absolute ban on televising was to decide on whom and how heavily not justified and that each application enquiries about cases on the internet these burdens will fall. to film and broadcast must be judged on and perhaps witnesses could be its merits: Chandler v Florida (1981) 449 We should also consider the effect directed that they were not to view US 560; and see generally the excellent that larger audiences might have on article by Daniel Stepniak ‘Why proceedings on line, if such an order our practice as barristers (although Shouldn’t Australian Court Proceedings were necessary. Delayed webcasting be Televised?” (1994) UNSW Law Journal this may not be directly relevant to or podcasting might be might another 345. the issue of open justice, it is a matter alternative. 8 Essendon Football Club v CEO of ASADA that will be of concern to members There are cases where webcasting [2014] FCA 1019 of the Bar). The possibility that will never be appropriate. Obvious 9 All of these issues, and more, are one’s colleagues are watching your examples are proceedings in considered in the Sackville Report and cross-examination from chambers by Stepniak, Ibid at fn 7, (although in the Family Court, proceedings is sure to increase the pressure on the different context of broadcasting involving minors and proceedings through the media). counsel. One member of counsel who where legislation or suppression appeared before the Bushfires Royal 10 Scott v Scott [1913] AC 417 at 463 per orders prohibit the identification of Lord Atkinson. Commission complained to me that her witnesses or parties. Nor would it mother, watching proceedings on-line 11 Stepniak, ibid fn 7 at 362. be possible to have a camera that from home, kept texting and emailing 12 Open Courts Act 2013 (Vic) captured images of a jury.13 But ‘helpful’ suggestions and giving her those are all issues that are well 13 For example, Juries Act 1967 (Vic), s. the wind-up as she had a bridge 69; Family Law Act 1975 (Cth), s 121(1); settled at law and with which our game to get to. I suspect that counsel Adoption of Children Act 1984 (Vic), s. courts already deal on a daily basis 121(2).

48 VBN VBN 49 news and views news Legal profession uniform law: regulation of lawyers has changed

MICHAEL McGARVIE

he rules that apply to practicing as L a w. 1 The breadth of that rule-making provision should a barrister in Victoria are about to be borne in mind when reading the Uniform Law. change. The Victorian and New South Wales Governments will soon adopt a Regulatory Structure uniform regulatory regime covering the The existing Victorian Board and Commissioner will legal profession in both states. Many perform all the operational and regulatory functions aspects of legal regulation will remain unchanged. Other required under the Uniform Law.2 They will operate areas will see significant changes to the powers of the under the oversight of two new inter-jurisdictional regulators and the obligations placed upon lawyers. This bodies – a Legal Services Council and a Commissioner article explains the changes with a particular focus on for Uniform Legal Services Regulation – which will be TVictorian barristers. responsible for setting inter-jurisdictional policy and The most recent push for a truly national legal guidelines. The Victorian Board and Commissioner will profession regulatory regime began before I was also perform functions that are specific to the regulation appointed Legal Services Commissioner. In 2009, the of the legal profession in Victoria. The delegated model Council of Australian Governments (COAG) initiated adopted in Victoria will continue, with the option of these reforms with the goal of establishing a single functions being delegated to the Victorian Bar and the legal profession regulatory regime across Australia to Law Institute by the Victorian Board and Commissioner.3 enhance consumer protection, reduce costs and simplify The professional associations will also have a role administration. Nearly 5 years later, I am pleased to see nominating members of the Legal Services Council4 and this project bearing fruit. Admissions Committee5, and developing the Uniform It is true that the reforms are not ‘national’ – the Legal Rules relating to legal practice, legal professional conduct Profession Uniform Law (Uniform Law) will initially only and continuing professional development.6 commence operation in Victoria and New South Wales, Not all existing regulatory bodies will be retained. The home to over 70 percent of Australia’s licensed lawyers. I Council of Legal Education and Board of Examiners – am, however, optimistic that COAG’s goals will be largely responsible for educational requirements and compliance realised and I hope other jurisdictions will sign up when with admission requirements under the Legal Profession they see the benefits achieved across our two states. Act 2004 (LPA) – will be replaced by a Victorian Legal With commencement pending, the purpose of this Admissions Board. That Board will assess applications article is to help you prepare for legal practice under for admission to the Victorian Supreme Court and will the Uniform Law by identifying what will change and accredit Victorian law courses and providers of practical what will stay the same for Victorian barristers and their legal training.7 clients. This article is not a comprehensive guide to the new regime. Indeed, in the absence of the subordinate What Won’t Change for Victorian Barristers legislation (under development at the time of writing), it The Uniform Law includes transitional arrangements is impossible to provide definitive guidance beyond the to minimise the disruption caused when the new text of the Uniform Law. I encourage you to familiarise legislative regime is adopted. For example, practising yourself with the new legislation and check the Victorian certificates granted to barristers under the LPA will Legal Services Board and Commissioner’s website for the continue to have effect.8 People who are approved clerks latest information. immediately before the commencement of the Uniform The subordinate legislation – the Legal Profession Law will be taken to be approved clerks for the purposes Uniform Rules (Uniform Rules) – may be made for any of the Uniform Law.9 Contributions to the fidelity fund matter that the Uniform Law requires or permits to be determined under the LPA will remain payable by specified in the Uniform Rules, or that is necessary or approved clerks under the Uniform Law 10 and the terms convenient for carrying out or giving effect to the Uniform and conditions of professional indemnity insurance

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approved under the LPA will remain It is important that barristers and approved clerks 11 approved under the Uniform Law. are aware of new obligations in relation to costs Looking beyond the transitional period, the Uniform Law appears to fairness and disclosure. re-affirm a number of the substantive chosen by the barrister undertaking specified in the Uniform Rules) legislative rights, responsibilities, the reading program; and will not be required to pay annual approaches and objectives applied »» Comply with any other contributions to the fidelity fund under the LPA. requirements specified by the set by the Victorian Board.23 Annual Practising Certificates Victorian Bar.16 contributions will however, remain Barristers will still lodge their In addition, the Legal Services payable by approved clerks.24 practising certificate applications Board may impose a discretionary Managed Investment Schemes with the Victorian Board under the condition limiting the practising Prohibitions on law practices Uniform Law if Victoria is their rights of a barrister until the barrister promoting or operating managed principal place of practice.12 The has complied with the statutory investment schemes will apply Board’s delegate for this function may condition.17 (albeit in Victoria after a three year be the Victorian Bar, as it currently is. Once satisfied, the statutory transitional period).25 Subject to the Practising certificates granted to condition need not be complied with Uniform Rules or approval granted barristers will authorise the holder to again unless the Board otherwise by the Victorian Board, all law engage in legal practice as or in the directs.18 practices will also be prohibited from manner of a barrister only.13 This is a Supervised Legal Practice providing legal services in relation legislative extension (or clarification) Barristers are currently exempt to managed investment schemes of the LPA, which defined barrister as from the requirement that legal where an associate (employee or “an Australian legal practitioner who practitioners engage only in partner) of the practice has an engages in legal practice solely as a supervised legal practice until they interest. There will be no transitional barrister”.14 have completed a certain period of period for incorporated legal Barristers will not, however, be such practice.19 That exemption is practices and related entities. They precluded from also engaging in legal carried across to the Uniform Law.20 will be prohibited from conducting practice as volunteers at community managed investment schemes from legal services, or otherwise on a pro Professional Indemnity Insurance commencement.26 bono basis.15 As for all local lawyers, barristers will The Uniform Law allows for the still be prohibited from engaging in Readers’ Course Legal Services Council to make legal practice in Victoria unless they Under the current regulatory Uniform Rules which prohibit law hold or are covered by an approved framework, an Australian lawyer practices and related entities from professional indemnity insurance wishing to practise as a barrister providing specified services or policy under the Uniform Law.21 in Victoria will generally do so by conducting specified businesses.27 Approved policies are those either becoming a member of the Victorian issued by the Legal Practitioners’ Barristers’ Clerks Bar. This requires applicants to Liability Committee, or approved by Currently barristers’ clerks may complete the Bar readers’ course the Victorian Board in relation to: be approved by the Victorian Bar and serve a reading period. These »» community legal services; to receive trust money on behalf requirements will continue and will »» lawyers engaged in practice for of barristers.28 This arrangement is be codified under the Uniform Law. or on behalf of a community legal continued under the Uniform Law, A statutory condition will attach service; and remains restricted to trust money to practising certificates granted »» corporate or government lawyers that is provided in advance for future to Victorian barristers. Under that who provide pro bono legal services legal services to be provided by condition barristers will need to: outside a community legal service; barristers.29 »» Undertake and complete, to the or satisfaction of the Victorian Bar, »» Australian-registered foreign What Will Change for a reading program specified in lawyers.22 the Uniform Rules or otherwise Victorian Barristers approved by the Victorian Bar; and Fidelity Fund Contributions Costs Fairness and Disclosure »» Read for a period specified yb the Unlike most lawyers applying for Although they will not apply where the Victorian Bar with a barrister who a practising certificate, barristers client is a law practice,30 it is important is of a class or description specified (as well as government and that barristers and approved clerks are in the Uniform Rules or otherwise corporate lawyers and any other aware of new obligations in relation approved by the Victorian Bar and lawyers who are members of a class to costs fairness and disclosure. Legal

50 VBN VBN 51 Miscalculating and overrunning estimated fees will »» cautioning the lawyer; now have significant consequences for lawyers. »» requiring an apology from the lawyer; news and views news »» requiring the lawyer to redo the costs must be fair and reasonable, to know what services their lawyer work in question at no cost or to measured against skill, complexity, can provide, how much it will cost, waive or reduce the fees for the urgency, quality and instructions. what protections exist over the work; They must be proportionately and client’s money and what remedies »» requiring the lawyer to undertake reasonably incurred and proportionate may be available if those services training, education counselling or be and reasonable in amount. 31 The do not meet the client’s reasonable supervised; or nature, terms and amount of costs expectations. »» ordering the lawyer to pay must be disclosed in writing. 32 Government Lawyers compensation up to $25,000 where As under the LPA, the new Uniform Every year a number of barristers such a loss results from the lawyer’s Law provides that where matters move from private practice to conduct. 38 are not likely to exceed $750 in total government legal practice. The costs, law practices are not obliged Uniform Law creates a new category These powers are discretionary to provide a client with a costs of practising certificate that will in each case. A dispute can still disclosure document. The Uniform be relevant to those barristers. be taken to VCAT if it cannot be Law does, however, explicitly allow Government lawyers will have resolved first by the Commissioner.39 for the new Legal Services Council to to hold a practising certificate. Ultimately the Costs Court could also change this threshold amount. 33 Accordingly, this group of barristers be considered in relation to costs The Uniform Law also provides will need to carry a current certificate disputes, but that is a more expensive that for matters above $750 but not whilst working in government. option for consumers where costs are likely to exceed $3,000, law practices Unlike the LPA, the Uniform less than $100,000. need only make a simplified costs Law will not automatically exempt To further assist in the disclosure by providing clients with government lawyers from the resolution of disputes, the Victorian a standard form instead of a full requirement to hold a practising Commissioner will be able to costs disclosure document. The form certificate.36 Consequently, most order mediation, and may close a itself will be developed by the Legal government lawyers practising for complaint if the complainant does Services Council and prescribed in government agencies and departments not participate in good faith. 40 the Uniform Rules. 34 who do not currently hold a practising The jurisdiction of the Victorian Miscalculating and overrunning certificate will need to apply for one Commissioner over costs disputes estimated fees will now have and pay the relevant fee. has also been increased. The significant consequences for lawyers. Commissioner will be empowered If a law practice has not made a Professional Discipline and Dispute to deal with costs disputes where disclosure because the total legal Resolution the bill is less than $100,000 (or costs were not likely to exceed $750, The Uniform Law will introduce a more if the amount in dispute is less or if it made a standard disclosure number of reforms to allow for more than $10,000) 41, and will be able to because the costs were not likely efficient and effective handling of determine the costs payable where to exceed $3,000, and fees overrun complaints. For example, a complaint the disputed proportion of the legal the estimate, the law practice may be made or recorded in writing 37 costs is less than $10,000. 42 must act or risk having their fees to enable the complaint-handling Complainants will also no longer reduced (in full or in part). When process to start as soon as the initial have to lodge money that equals the predicted costs thresholds are contact is made with the Victorian amount of the disputed legal costs breached, the law practice must Commissioner’s office. It is possible with the Victorian Commissioner. inform their client in writing of that a small costs dispute, for This will mean that the dispute the expected change in costs and example, may be resolved ‘on the resolution process may begin as soon make the required disclosure at that spot’ by the officer receiving that as a complainant makes contact with point. Failure to comply with the initial contact. the Commissioner’s office. disclosure requirements will void a The Victorian Commissioner is To further enhance the costs agreement and can amount to given increased capacity to resolve complaint-handling process, staff misconduct. 35 disputes, deal with complaints and investigating complaints will have In my experience, the earlier in improve outcomes for both lawyers more investigation tools such as a professional relationship that a and consumers. The Commissioner can options for search warrants and client understands exactly where now make binding determinations in the power to enter premises. 43 The they stand the better. Clients need consumer matters including: existing obligations on lawyers to

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produce documents, provide written More information information and to cooperate with For more information about the 20. Legal Profession Uniform Law Application Act 2014 sch 1 cl 49(3). the investigator are maintained. 44 application of the Uniform Law in Victoria contact: 21. Legal Profession Uniform Law Application Act 2014 sch 1 cl 211. The Next Steps »» Victorian Legal Services Board and As well as ensuring that the Victorian Commissioner 22. Legal Profession Uniform Law Application Act 2014 s 13. Board and Commissioner are »» Website: http://www.lsbc.vic.gov.au/ prepared for the commencement news/legal-profession-uniform-law/ 23. Legal Profession Uniform Law Application Act 2014 s 73 and sch 1 cl of the Uniform Law in Victoria, »» Phone: (03) 9679 8001 225. my staff and I are undertaking an »» Email: [email protected] 24. Legal Profession Uniform Law educational campaign to engage Application Act 2014 s 128. Michael McGarvie is the Legal with individuals and groups with an Services Commissioner and CEO 25. Legal Profession Uniform Law interest in the legal profession. This Application Act 2014 s 170 and sch 1 cl of the Legal Services Board. will be done in conjunction with the 258. @LSC_Victoria, @LSB_Victoria courts, the Victorian Bar and the Law 26. Legal Profession Uniform Law Institute of Victoria. This engagement 1. Legal Profession Uniform Law Application Act 2014 s 170. Application Act 2014 sch 1 cl 419. will continue to develop into a 27. Legal Profession Uniform Law collaborative process involving all 2. Legal Profession Uniform Law Application Act 2014 sch 1 cl 258. Application Act 2014 s 10. areas of the Victorian legal profession 28. Legal Profession Act 2004 s 3.3.70. and consumers of legal services 3. Legal Profession Uniform Law Application Act 2014 ss 44, 56. 29. Legal Profession Uniform Law across the State. Application Act 2014 s 88 and sch 1 cl The Victorian Board and 4. Legal Profession Uniform Law 133. Application Act 2014 sch 1 sch 1 cl 2. Commissioner’s website will continue 30. Legal Profession Uniform Law 5. Legal Profession Uniform Law to be refreshed with detailed Application Act 2014 sch 1 cl 170. Application Act 2014 sch 1 sch 1 cl 21. information on the Uniform Law 31. Legal Profession Uniform Law 6. Legal Profession Uniform Law Application Act 2014 sch 1 cl 172. and bulletins and fact sheets will be Application Act 2014 sch 1 cl 427. published for barristers, solicitors 32. Legal Profession Uniform Law 7. Legal Profession Uniform Law Application Act 2014 sch 1 cl 174. and consumers explaining how the Application Act 2014 s 10 and sch 1 part changes will affect them. We will 2.2. 33. Legal Profession Uniform Law Application Act 2014 sch 1 s 174, sch 4 also continue to work closely with 8. Legal Profession Uniform Law cl 18. our New South Wales colleagues, Application Act 2014 s 168 and sch 1 sch 4 cl 12. 34. Legal Profession Uniform Law the new inter-jurisdictional bodies Application Act 2014 sch 1 cl 174. and the professional associations to 9. Legal Profession Uniform Law Application Act 2014 s 171. 35. Legal Profession Uniform Law ensure that, as the Uniform Law and Application Act 2014 sch 1 cls 174, 178. Uniform Rules are implemented, 10. Legal Profession Uniform Law Application Act 2014 s 174(2). 36. Legal Profession Uniform Law there will be minimal disruption to Application Act 2014 sch 1 cl 10. both your own practice and to client 11. Legal Profession Uniform Law Application Act 2014 s 176. 37. Legal Profession Uniform Law services. Application Act 2014 sch 1 cl 267. Once underway, there will be a 12. Legal Profession Uniform Law Application Act 2014 sch 1 cl 44. 38. Legal Profession Uniform Law significant responsibility on all of Application Act 2014 sch 1 cl 290. us to make the new scheme work, 13. Legal Profession Uniform Law Application Act 2014 sch 1 cl 47. 39. Legal Profession Uniform Law deliver efficiencies and harmonise Application Act 2014 sch 1 cl 300. regulation. The early success we 14. Legal Profession Act 2004 s 1.2.1. 40. Legal Profession Uniform Law achieve with uniform regulation in 15. Legal Profession Uniform Law Application Act 2014 sch 1 cl 288. Victoria and NSW will provide the Application Act 2014 sch 1 cl 47(5). 41. Legal Profession Uniform Law acid test for its perceived value to the 16. Legal Profession Uniform Law Application Act 2014 sch 1 cl 291. rest of the country. Consumers and Application Act 2014 sch 1 cl 50(1). 42. Legal Profession Uniform Law lawyers alike are entitled to hope that 17. Legal Profession Uniform Law Application Act 2014 sch 1 cl 292. Application Act 2014 sch 1 cl 50(2). by this uniform scheme the goal of a 43. Legal Profession Uniform Law single, nationwide system of regulating 18. Legal Profession Uniform Law Application Act 2014 sch 1 part 7.3. Application Act 2014 sch 1 cl 50(3). lawyers becomes a reality. 44. Legal Profession Uniform Law 19. Legal Profession Act 2004 s 2.4.18(5)(a). Application Act 2014 sch 1 chapter 7.

52 VBN VBN 53 news and views news Commercial arbitration in Asia Is the Victorian Bar camping out?

GEORGINA SCHOFF*

arlier this year, the Chief Justice of the tribunals. The silk replied that he was happy to help, Federal Court, the Hon Justice Allsop, but was unfamiliar with the acronyms. Mr Griffith addressed the Victorian Bar about current despairs that these acronyms are the “patios” of too few developments in the Federal Court. counsel, let alone their professional playing ground. Towards the end of his address, and by way While a few Australians have been appointed to of aside, he observed that the Australian arbitral tribunals sitting off-shore, including Mr Griffith, Bars may have fallen behind when it comes to engaging Professor Doug Jones, Dr Michael Pryles, and latterly, in commercial arbitration. His Honour observed that Murray Gleeson QC and Jim Spigelman QC, it remains the Australian Bars, including in particular the Bars unusual for members of our Bar to be appointed of Victoria and New South Wales, should be taking a arbitrators in international commercial arbitrations, leadershipE role in Asia. He wondered how many of those whether in Australia or elsewhere. in the room could talk authoritatively about the “New York Mr Griffith observes that this is in contrast to the Convention” or the “Model Law” and queried whether English Bar, where sets of chambers maintain an active those who want to be serious commercial litigators in presence, almost to our shores, and have achieved almost this region but are not participating in international a monopoly in appearance work in arbitral disputes commercial arbitration are “camping out”. throughout the Asian region, particularly in Hong Kong This is not the first time such a suggestion has and Singapore. In September this year, Thirty Nine Essex been made. Street Chambers and the Kuala Lumpur Regional Centre A senior member of our Bar who practises as for Arbitration co-hosted the soft opening of KLRCA’s an international investment disputes arbitrator is impressive new premises at Bangunan Sulaiman, in Kuala Gavan Griffith QC. In 1985, as Solicitor-General and Lumpur, where those English chambers have opened Australian delegate to the United Nations Committee a base. The event was followed by the International on International Trade Law (UNCITRAL) at Vienna, Malaysia Law Conference, which he notes had limited he helped draft parts of the UNCITRAL Model Law Australian participation, albeit with welcome support of on International Commercial Arbitration (the Model our Bar Council. Law). We asked Griffith whether, when it comes to How then to address these concerns, and what are all international commercial arbitration, the Victorian these acronyms? Bar is camping out. His answer was a resounding Albert Monichino QC is the current president of “yes”. Some months ago, Griffith says, he enquired by the Australian branch of the Chartered Institute of email of a senior commercial silk whether he could Arbitrators (CIArb). Established in London in 1915, it now suggest names of young counsel who may be interested has 13,000 members in 120 countries. CIArb Australia, as in appointment as secretary to ICC, PCA or ICSID1 one of CIArb’s 40 branches, organises training courses

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How then to address these concerns, and what are all these acronyms?

and educational events and, in particular, enables members of the profession to become accredited arbitrators. Many members of the Bar will have attended the three fire- side chats held this year, which are the subject of another article in this edition and which explored the issues raised by the Chief Justice. Mr Monichino notes that the Convention on the Recognition and Enforcement of Foreign Awards made in New York on 10 June 1958 (the New York Convention) and the Model Law are the twin pillars which underlie the international commercial arbitration system. The New York Convention deals court intervention and party international commercial arbitration with enforcement of foreign autonomy. Although it is designed is recognised as the preferred arbitration agreements as well as for international arbitration, it may method for resolving transnational the recognition and enforcement also be adopted to regulate domestic commercial disputes. It is seen as of foreign awards. One hundred arbitration. A nation state may adopt offering many advantages over and forty-nine countries (including it in whole or in part, or amend or litigation. Mr Arthur explains that most of Australia’s neighbours in the supplement it, as it sees fit. The these include: Asia-Pacific) have acceded to this Model Law is the backbone of the »» neutrality – where disputing parties treaty. In essence, an arbitral award domestic and international arbitral come from different countries and rendered in a New York Convention legislative regimes in Australia. each is distrustful of the other’s legal country is enforceable in another Sixty-seven countries have adopted system; New York Convention country, subject the Model Law and, as such, are »» privacy and confidentiality – parties to a number of limited grounds for commonly referred to as ‘Model Law are able to avoid an open court resisting enforcement. Notably, those countries’. They include Singapore, hearing with its attendant press grounds do not include either error Malaysia and Hong Kong. coverage and, in some countries, of law or error of fact. As a result, a Like the New York Convention, government scrutiny; foreign arbitral award is more easily the Model Law deals with the »» simplicity and flexibility in enforceable than a foreign court enforcement of arbitration procedure – parties are free to judgment. agreements and arbitration awards. choose the procedures that will By contrast, the Model Law, It also deals with other matters, such apply to the arbitration, subject to promulgated by UNCITRAL in 1985, as the conduct of arbitration and the their arbitration agreement and the is a template arbitral law that may setting aside of arbitral awards by the lex arbitri, and are not bound by be adopted by nation states. It was court at the seat of the arbitration. ‘one-size fits all’ court rules; designed to promote harmonisation The grounds for setting aside mirror »» an “internationally recognised of arbitral law around the world, and the limited grounds for resisting harmonised procedural thus embodies a hybrid consensus enforcement in the New York jurisprudence” – combining the between common law and civil law Convention. best practices of both the civil and procedures. The Model Law reflects John Arthur, a member of our Bar common law systems, taking into the twin philosophies of minimum and a Fellow of CIArb, points out that account diffuse cultural and legal

54 VBN VBN 55 news and views news

Jo Delaney (special counsel, Baker & McKenzie), Julie Soars, Caroline Kenny QC, Albert Monachino QC, Profesor Janet Walker (CIArb General Academic Advisor) and Sandrah Foda (NSW Bar)

backgrounds and philosophies; Model Law the force of law in field. Recently, at one of CIArb’s »» expedition – the parties are not Australia. However, for many events at the new Melbourne required to queue up with all barristers representing Australian Commercial Arbitration and the others waiting to be heard in clients involved in an international Mediation Centre, Karyl Nairn national courts; commercial arbitration, the QC, an Australian and prominent »» the ability to choose the ‘judge’; arbitration will be conducted outside international arbitration practitioner, »» party autonomy – giving the parties Australia – probably in Asia. commented that there are enormous control of the dispute resolution Caroline Kenny QC, who is also a opportunities for Australians in Asia process and its procedure; and Fellow of CIArb, the Chair of CIArb but first Australians must raise their »» finally, and perhaps most Australia’s Education Committee and profiles. Prof Doug Jones AO made importantly, transnational the Convenor of its busy Victorian similar comments in another recent enforceability of awards. chapter, says that arbitration has CIArb event held in Melbourne at grown exponentially in the past ten Herbert Smith Freehills.2 Similarly, These perceived advantages years in Asia, especially in China, Dr Michael Pryles, also an Australian are integral to the success of Hong Kong, Singapore and India. In and the foundation President of the international commercial arbitration. her view, Australian practitioners lag Court of Arbitration in Singapore (an Mr Arthur stresses an important behind those from North America organ of the enormously successful qualification: for any arbitration and Britain in recognising and taking SIAC) and previously Chairman process to be effective, it must be advantage of the opportunities in of the SIAC Board of Directors, supported by at least two bodies these emerging markets. She says has often spoken of the need for of national, or local, laws: first, the we need to adopt a united Australian Australians to become better known lex arbitri, which gives legal force approach in seeking out the work in Asia. Ms Kenny says that: and effect to the process of the in those markets and in attracting …we should heed that advice and make arbitration; and secondly, national work to Australia. Expanding the a united effort to establish a profile for laws which enact or legislate for Australian profile in international Australian practitioners overseas. After the enforcement mechanisms arbitration abroad should be the aim all, we have much to offer as counsel, of the New York Convention. of all the Australian Bars and the arbitrators and also as a venue for For arbitrations conducted Australian Bar Association. arbitration. We are close to Asia, not in Australia, the International Ms Kenny’s views, like those of as expensive as our competitors (with Arbitration Act 1974 (Cth.) provides Chief Justice Allsop, are shared by some well-known exceptions), our those mechanisms and gives the other leading practitioners in the lawyers are among the best trained in For many barristers representing Australian clients the world and we embrace the Rule of Law. For this generation and the next, involved in an international commercial arbitration, we should not miss the opportunity the arbitration will be conducted outside Australia – to establish a presence in the growing probably in Asia. arbitration markets abroad.

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Euginia Levine of our Bar points In one recent investor-state arbitration between out that one area that presents Australian practitioners with an Australian company, White Industries, and the particular opportunities is “investor- government of India, the Australian investor retained state” arbitration, a field of arbitration an all-Australian legal team. involving the resolution of disputes between foreign investors and unsuccessful attempts to enforce an that the implications for commercial national governments. Foreign ICC award against an Indian party practice here have not been fully investors are ordinarily granted the before the Indian courts. appreciated, if at all, by many: right to bring arbitral proceedings How can members of our Bar against the government pursuant I think an opportunity is passing us who are interested in doing so raise to investor-state dispute settlement by and a threat is being dangerously their profile and become involved (ISDS) clauses in bilateral investment ignored. A regional set-up would in this growing area of dispute treaties (BITs) and free trade act as both a focal point and bridge, resolution? Ms Kenny points to agreements. While the previous both of which are badly needed. The Fellowship in CIArb, which is readily federal government was opposed to issue is not so much expertise. I see recognised in the global arbitration ISDS clauses, the current Australian the issue as an inaccurate perception community in a way that fellowship government has announced that of our expertise and skills. The of a local arbitration organisation it will consider including ISDSs internationalisation of the firms as they is not. Fellowship in CIArb in free trade agreements on a follow clients has contributed to this signifies a standard of proficiency case-by-case basis.3 because we are not front of mind often in international arbitration and The inclusion of ISDS provisions enough to be accurately evaluated. an affiliation with the oldest and in trade deals and the growth in most prestigious arbitration and Some say it gently and some are cross-border investments has ADR professional membership more forceful. But the international led to a significant increase in organisation in the world. arbitration heavyweights in this investor-state arbitrations involving The Chair of the Victorian Bar’s country all agree that Australia Australian parties. One high-profile International Arbitration Committee, is lagging as a centre for serious example is the ongoing arbitration Martin Scott QC, has a further commercial litigation. And the reason between Philip Morris and Australia suggestion. He says that: is simple. Australian practitioners’ concerning Australia’s tobacco plain involvement in commercial arbitration, packaging legislation, the first ever Acquiring knowledge is the first particularly in Asia, is limited. To catch investment arbitration brought step but what is really required is a up with their regional competitors, against the Australian government collaborative structured engagement members of the Victorian Bar and their under a BIT. by members of the independent Bars peers at the other Australian Bars need Australian investors also have rather than an ad hoc individual to adopt a united approach in building several ongoing arbitrations running approach, which is mostly what a strong permanent arbitration against foreign governments, happens at the moment. The English presence across our region. Only then including the governments of India and New Zealand Bars have done will the image be dispelled of a Bar and Pakistan. The involvement this by individual sets of chambers that is “camping out” when it comes to of Australian parties and issues setting up in Singapore as a base for international commercial arbitration. in these arbitrations presents the region. This is at the least seen distinct opportunities for Australian as a tangible commitment to dispute 1. International Chamber of Commerce; Permanent Court of Arbitration; practitioners. For example, in one resolution in Asia and immediately International Centre for Settlement of recent investor-state arbitration raises a profile. Whatever else came Investment Disputes between an Australian company, from such an undertaking it would go 2. The podcasts of both CIArb events are White Industries, and the a long way to dispelling the impression available to members on the VicBar government of India, the Australian that Australian barristers are website Recent CPD Podcasts & Papers. investor retained an all-Australian disengaged and inward-looking, which 3. Mr Griffith QC recommends the paper legal team. The investor obtained is a persistent comment at the highest on ISDS clauses delivered by Chief Justice French to the Australian Judges a favourable investor-state award levels in the profession overseas. Conference in Darwin this year: after establishing that the Indian http://www.hcourt.gov.au/assets/ Scott shares the view that court system did not provide it with publications/speeches/current-justices/ commercial dispute resolution is frenchcj/frenchcj09jul14.pdf an effective means of protecting its undergoing an irrevocable shift to legal rights (in contravention of the * The author is certainly camping out and international arbitration because could not have compiled this article protection offered in the relevant of globalisation and is concerned without the considerable assistance of BIT), having regard to its lengthy many of those identified.

56 VBN VBN 57 Dr Cliff Pannam QC: news and views news advocate, teacher, scholar, friend

GEORGE GOLVAN

Intoxicated by the blossom colleague” when they were both on the teaching staff at I stay Melbourne Law School. Leaning on the balcony Cliff’s career at the Victorian Bar has been no less Its scent distinguished. He signed the Bar Roll on 8 April, 1967 (the Blends with and intensifies only person to sign the Roll on that day) and read with W. My cup of wine E. (Bill) Paterson (later QC). He took silk on 23 November Li Qingzhao – from Meandering River (1128) 1976, after a mere nine years as a junior, which appears to Translated by Clifford Pannam have been somewhat of a swift progression to achieving silk, bettered only by Norman O’Bryan AM SC, who r Clifford L. Pannam QC took silk seven years after signing the Bar Roll. (Justice (usually known as Cliff) who Crennan of the High Court also took silk after nine years, relinquished his chambers having, however previously practised at the NSW Bar.) at the end of June 2014, but Others who took silk in the same intake included Paul will continue in practise as a Mullaly, Peter Rendit, Michael O’Sullivan, George Hampel, barrister, is generally regarded Howard Fox, Patrick Dalton, John Winneke, John Lyons as one of the great advocates of the Victorian Bar of the and Keith Marks. Cliff Pannam was the junior silk. past half-century. Cliff is of paternal Greek origin and He has always been a formidable and charismatic includes amongst his relatives Charlie Pannam, Alby advocate. One fellow silk recites that, after hearing Pannam, Ron Richards and Lou Richards – all of whom Cliff open his client’s case, he “felt like clapping and Dhad illustrious careers with the Collingwood Football cheering” even though he was on the other side. The Hon Club. The Pannam/Richards dynasty made Collingwood Julie Dodds-Streeton QC, before whom Cliff appeared, the only football club to have been captained by three describes him as an outstanding advocate, with ’superb generations of the one family. intellectual qualities and unequalled legal scholarship, Cliff’s passions were less sporting and more academic who had the intellectual self-confidence to abandon his in inclination. Cliff attended Princes Hill Central School lesser points’. and later Melbourne High School. He graduated from Colleagues describe Cliff as fair and generous. One the University of Melbourne Law School in 1958 with 1st opponent remembers that, after appearing against Cliff class honours, coming second in his class to the late Neil in a hard fought trial, Cliff took him out for lunch in his McPhee QC. He subsequently studied at the University of Rolls Royce to one of his favourite Asian restaurants. Cliff Illinois (LLM) and Columbia University (New York) (JSD). held court each Friday at the Flower Drum, enjoying the On his return to Australia he was appointed by Melbourne hospitality of his good friend and legendary restaurateur, Law School as a Senior Lecturer in Law (1963-1965) and the late Gilbert Lau. Reader in Law (1966-1968). In 1965 he spent a year as a The Hon Alan Goldberg QC has appreciated Cliff’s Thayer Fellow at the Harvard Law School. He was as an hospitality at the annual Boxing Day cricket matches. A outstanding teacher. Dr Ian Hardingham QC recalls his team comprising the cream of the Bar, selected by Cliff experience as a law student in a class taught by Cliff, who and including such handy cricketers as the Hon Ron used the Socratic method of teaching, which was said to Merkel QC, the late Henry Jolson QC, Neil Young QC, encourage critical thinking via an interactive dialogue the Hon Ray Finkelstein QC (in slips) and Cliff, who had between teacher and students utilising a classroom reasonable skills as a high school opening bat, would play environment characterised by “productive discomfort”. a local side from Riddells Creek, occasionally led by the Ian recalls that the class, which included such future legal artist Clifton Pugh, at the picturesque Mt Macedon Sports luminaries as the High Court’s Justice Hayne, was in “fear Oval. Ample quantities of fine food and refreshments and trepidation” of being included in the dialogue, and followed, provided by Cliff. Cliff did not hesitate to “tear strips off” those who were In addition to his career at the Bar, Cliff has had not adequately prepared. But Ian essentially remembers a lifelong fascination with horses and horse racing, Cliff as “a great teacher” and subsequently “a wonderful a general interest in Australian history, a continuing

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His love of China led him to learn Mandarin when he was over the age of 50. He is the author of some splendid translations of Mandarin poetry...

interest in China and its language, Contracts by R. S. McGarvie, C. L. enriched the law with his brilliant food and history, as well as an Pannam and P. J. Hocker and The Law advocacy. He has appeared in interest in his Greek heritage which of Money Lenders in Australia and numerous contested and significant has taken him back to Greece on New Zealand. cases in the High Court, the Federal numerous occasions. Cliff has also written, in his elegant Court and the Victorian Supreme Cliff’s involvement with China style, several books of essays and Court. His appearances in the commenced when as a young poems reflecting the variety of his High Court include Onus v Alcoa teacher at the Melbourne Law extraordinary range of interests and of Australia Ltd (1981) 149 CLR 27, School in 1964, the then Dean, travels. In his book, Of Greece and Legione v Hateley (1983) 152 CLR 406, Professor Zelman Cowen, asked China and a Few Australian Things Commonwealth Bank of Australia Ltd whether, in conjunction with (1st ed. 2006) he wrote of his travels Professor Guest of Cambridge on the island of ‘Mykonos’: University, he would travel to Little known in classical history it Hong Kong to advise the British may have been but the fact is that Colonial Office as to whether funds Mykonos has more to tell than should be provided to establish Delos ever did. A lawyer perhaps a new law school in Hong Kong. can be forgiven for an intellectual He spent some seven or eight attachment to the Sophists. months in Hong Kong, where he My favourite was Protagoras. also taught in the Extra-Mural He taught what the island Studies Department of Hong Kong preaches “Man is the measure University, which was then offering of all things”. But you will a course to qualify local students not learn it in Chora. It is the for the University of London lesson of the stark hills of the external LLB. degree. brilliant azure sea and of stoned During his stay in Hong Kong, and sandy beaches. Cliff formed many close friendships and managed to visit Guangzhou Dr Cliff Pannam QC is an (Canton) in Mao’s China, a year outstanding barrister who has before the start of the Cultural Revolution. His love of China led him to learn Mandarin when he was over the age of 50. He is the author of some splendid translations of Mandarin poetry, including a book of the lyric poems of Li Qingzhao (1084- mid 1150’s), the most famous female poet in Chinese history, entitled Music from a Jade Flute: the ci poems of Li Qingzhao. His love of Australian history led to the publication in 1992 of his book: Sir William’s Muse: The Literary Works of the First Chief Justice of Victoria, Sir William a’Beckett. His love of horses resulted in publication of his treatise: The Horse and the Law (3rd ed. 2004). He has also authored or co-authored a number of leading legal texts, including Cases and Materials on

58 VBN VBN 59 v Amadio (1983) 151 CLR 447 The Hon Julie Dodds-Streeton QC, before whom Cliff and Giannarelli v Wraith (1988) appeared, describes him as an outstanding advocate, 165 CLR 543. He also appeared in a number with ’superb intellectual qualities and unequalled legal of cases heard by the Judicial scholarship, who had the intellectual self-confidence to Committee of the Privy Council: see abandon his lesser points’. for example Scholefield Goodman and Sons Ltd v Zyngier [1986] AC 562 and Chase Securities Ltd v GSH that that he could not even begin to advice generously to colleagues. He Finance Pty Ltd [1989] 1 NZLR understand how the rival view could was a tremendous mentor to his 481. In his final appearance before be put”. readers, many of whom acted as his the Privy Council, his opponent Cliff’s legal knowledge in the juniors or sought his valued advice was the recently ennobled English areas of commercial, property, from time to time. Such advice was Silk, Lord Alexander QC, who had corporate and securities and always freely given, with a comment the reputation for being the finest arbitration law are second to such as: “there is a recent article advocate in England. In an article none. He has also developed a about this in the 2005 Law Quarterly entitled “An Appearance”, Cliff specialised practice in the areas of Review”. described Alexander’s performance horse ownership and horse related Cliff is a modern Renaissance man, as “dazzling… although his delivery activities, frequently advising and who made his way in life without was more than a little rich and acting for racing bodies. a silver spoon in his mouth. Cliff’s fruity for Australian tastes”.1 It was Cliff Pannam QC has had a huge contribution to the camaraderie of not one of Cliff’s forensic successes, impact on the Victorian Bar. His the Bar and the diverse intellectual and he was not assisted by the colleagues remain in awe of his passions of this polymath have fact that “Lord Templeton made it forensic skills and breadth of legal enriched us. absolutely clear from the outset knowledge. He gives his time and 1 Victorian Bar News, Autumn 1989

60 VBN VBN 61 news and views Musings ON THE CASE OF THE chimney sweep’s boy

CLIFF PANNAM

here must be very few lawyers who do not recall from their student days the very old case of the chimney sweep’s boy and the jewel which he had found. Tersely reported by Sir John Strange in 1722, more of whom later, it was as follows1: Armory vers. Delamirie In Middlesex coram Pratt CJ “The plaintiff being a chimney sweeper’s boy found a Tjewel and carried it to the defendant’s shop (who was a goldsmith) to know what it was, and delivered it into the hands of the apprentice, who under pretence of weighing it, took out the stones, and calling to the master to let him know it came to three halfpence, the master offered the boy the money, who refused to take it, and insisted to have the thing again; whereupon the apprentice delivered him back the socket without the stones. And now in trover against the master these points were ruled: 1. That the finder of a jewel, though he does not by such finding acquire an absolute property or ownership, yet he has such a property as will enable him to keep it against all but the rightful owner, and consequently may maintain trover. 2. That the action well lay against the master, who gives a credit to his apprentice, and is answerable for his neglect. 3. As to the value of the jewel several of the trade were examined to prove what a jewel of the finest water that would fit the socket would be worth; and the Chief Justice directed the jury, that unless the defendant did produce the jewel, and shew it not to be of the finest water, they should presume the strongest against him, and make the value of the best jewels the

60 VBN VBN 61 The decision itself is still much cited and relied upon

measure of their damages: which Court of King’s Bench in 1722. Who to have them checked so as to ensure news and views news they accordingly did.” was the plaintiff – this boy named that they met the sterling silver Amory? The fact is that we know standard. The common law action in the nothing of him. But we do know In de Lamerie’s time at Goldsmiths’ case for trover involved a claim that chimney-climbing boys were Hall, there was an assay office that for damages being the value of on the lowest rung of the social and checked every silverware piece that personal property which had been employment ladder. Their tasks were was submitted, and, for present wrongfully taken or retained. The dangerous and extremely hazardous purposes, physically marked the name was derived from the old to health; for this they were paid a pieces with three different marks: French – trouvère – meaning “a pittance.4 How on earth did young the marks of the assay office; the find”. In pleading the cause of action Amory become the plaintiff in this mark evidencing the fact that the there was a non-rebuttable fictitious proceeding? Who paid the lawyers piece met the sterling silver standard; allegation that the defendant’s who represented him their fees? If and the maker’s mark. This process, finding of the personal property in they were not paid, what caused them with variations, has long enabled us question was accidental.2 We now to be involved? to trace the provenance of English know the cause of action as being one Second, the defendant. The works in silver; it has also given us for the tort of conversion. reporter, Sir John Strange, made an the word “hallmark”. The ‘water’ of a gemstone refers error in naming him as “Delamirie”. But there was a tax involved in this to its clarity or transparency and its In fact he was Paul de Lamerie, who process. In de Lamerie’s time a duty of brilliance or lustre. was a famous London silversmith. six pence per ounce was charged on all The decision itself is still much Indeed, he is regarded as the finest assayed silver items. This was regarded cited and relied upon, in particular and best eighteenth-century English by the craftsmen as an unfair and in relation to its third point. The first silversmith. exorbitant tax upon their business. two are now trite. As to the third, it We have three examples of his Now back to Paul de Lamerie. We is still an important principle in the work in the National Gallery of now know a good deal about him. A assessment of damages. Handley Victoria: two superbly engraved detailed biography was written by JA of the New South Wales Court waiter trays; and an elegant P.A.S. Phillips in 1935. In addition, of Appeal, with whom Mason P candlestick holder with a snuffer and there are two quite brilliant catalogue and Beazley JA agreed, encapsulated wick-trimming scissors. introductions to important recent it as follows: However, to understand him better, exhibitions of his work written by it is necessary to know something Susan Hare and Ellenor Alcorn.5 “In my judgment the Court should of the law relating to silversmiths in He was born in 1688 in what is assess the compensation in a robust his day. Since the fourteenth century, now the Netherlands. His father manner, relying on the presumption there had developed in England a was a minor French Huguenot against wrongdoers, and resolving system designed to ensure that the nobleman and soldier, who followed doubtful questions against the party production of silverware works of all William of Orange to England in whose actions have made accurate kinds were authentic. Perhaps the 1689. The family lived in London in determinations so problematic.”3 very first example of government- a house in Soho. In 1703, De Lamerie So from 1722 until today, almost regulated consumer protection! Gold became the apprentice of a London 400 years later, the third principle has and silver were too soft to meet the goldsmith, Pierre Platel, who was remained alive and well; and simply artistic needs of craftsmen so, in also of Huguenot origin. Soho, and reflects common sense. But now let order to make them stronger, they the Strand where Platel carried on us leave the legal principles which were alloyed with other metals like his business, were in those days the were the substance of the Lord Chief nickel and copper. It was decreed centre of London’s refugee Huguenot Justice’s decision, important though that in order to qualify as sterling community. In fact the predominant they were, and look more closely at silver at least 925 parts per 1000 were language spoken in the area was the people involved in the case. required to be of silver. French. They had fled persecution First, the plaintiff. It is a great To police this system, the because of their Protestant faith. mystery as to how, and in what Worshipful Company of Goldsmiths De Lamerie ended his circumstances, a mere chimney was established by a charter granted apprenticeship in 1711. He registered sweep’s boy came to be the plaintiff by King Henry III in 1327. From his maker’s mark at Goldsmiths’ Hall in an important damages action the fifteenth century, all London in 1713 at which time he commenced heard before the Lord Chief Justice silversmiths were required to bring his own business. He seems to have of England and a civil jury in the their silver works to Goldsmiths’ Hall spent the two years in between

62 VBN news and views

selling expensive pieces of silverware … for making and selling Great Prime Warden in 1996/7. Devlin has to the rich and famous. His business quantities of Large [silver] been described by a former Crown involved the sale of jewellery as plate which he doth not bring to Jeweller to the Queen, David V well as articles crafted from silver Goldsmiths’ Hall to be mark’t Thomas, as: or gold. However, the main part of according to law. … the greatest designer the business was constituted by the In fact, a very large number of in gold and silver since the design and crafting of fine silver the surviving pieces of de Lamerie’s incomparable Paul de Lamerie articles. silverware only bear his maker’s in the eighteenth century. Paul de Lamerie became the most mark and not the assay office or prolific silversmith of his time. There We are all fortunate enough to purity hallmark. The scale of this was a very good reason why this carry with us examples of Devlin’s activity can be illustrated by the fact was so. He employed large numbers work. Back in 1984 he designed our that most of the vast collection of of skilled creative silversmiths, first decimal coinage. I especially love de Lamerie’s silver once owned by mostly foreign-born Huguenots, who the water rippling over a platypus the Russian Imperial family only worked anonymously, i.e.without on the 20-cent coin, creating a carries his maker’s mark. But all of personal marks. It seems that they marvellous three-dimensional image. this does not seem to have affected created most of the great Rococo Finally, to return to the case of the pieces for which de Lamerie is famous and to which he applied his personal maker’s mark. The story and evidence relating to this side of his business was the subject of a travelling international exhibition of a large number of his silver pieces which were displayed at the Powerhouse Museum in Sydney in April/May, 2008. The name given to the exhibition neatly encapsulated its subject: “Beyond the Maker’s Mark”6. This activity would not have endeared de Lamerie to his rival silversmiths. This is reflected in the many times he was disciplined by the Worshipful Company of Goldsmiths for complaints that he had passed off as his own silver pieces made by others. For example, in 1715 he was found to have “… caused foreigners’ work and got ye same toucht at ye What is clear, however, is that in some way the case was Hall”. We would now describe his conduct as serious passing off or organised or financed by de Lamerie’s business rivals. misleading and deceptive conduct. Then again, de Lamerie showed the spectacular success of his chimney sweep’s boy. It seems clear to a general cavalier attitude to business, counting as it did among its me that there were any number of rival the authority of the Company of customers the aristocracy of England English silversmiths who would have Goldsmiths. Its records reveal a and most of Europe. Indeed, as early financed Armory’s claim in order to string of complaints made against as 1717 he was generally referred embarrass de Lamerie. He was falsely him by other silversmiths, almost to as “the King’s Silversmith”. Also, applying his maker’s mark to the all English. In 1714 he was fined £20 he was to become one of the four work of others and he was also selling for selling silver works which were senior Wardens of the Company of unmarked silver pieces upon which not hallmarked and thus on which Goldsmiths who controlled its affairs. no duty had been paid. He was the no duty had been paid. He was found This was no doubt as a result of the ideal target as he had quickly become guilty of the same conduct again incredible size of his business. the leading Huguenot silversmith in in both 1716 and 1717. On the In this latter respect, our own London. It has been estimated that latter occasion the complaint Geelong-born Stuart Devlin went around this time there were some 40 against him was: one better, becoming the Company’s Huguenot silversmith members of

62 VBN VBN 63 1 (1722) 1 Strange 505, 93 ER 664. the Goldsmiths’ Company.7 They were taken it to some nefarious resented by the English silversmiths, rogue dealer, rather than 2 Cooper v Chitty (1756) 1 Burr. 36. who were constantly making to de Lamerie’s shop? 3 McCartney & Ors v Orica Investments news and views news complaints about their business Furthermore, how would a poor, Pty Ltd [2011] NSWCA 337 at para 148 et seq; and, LJP Investments Pty Ltd v practices to the Company. Its records illiterate, uneducated, young chimney Howard Chia Investment Pty Ltd (No 2) show that a considerable amount sweep have ever been able to retain (2004) 216 CLR 388 at para [74]. of time was taken up investigating an attorney and counsel to take his 4 See generally: Benita Cullingford, those complaints. case against de Lamerie to the Court British Chimney Sweeps: Five Centuries It may even be speculated of King’s Bench? of Chimney Sweeping (2001). that Armory’s appearance in de The detail as to how it all came 5 Both are available on the web: Susan’s, Lamerie’s shop with the jewel was about will never be known. What is by searching for her name and “Paul de Lamerie: At the Sign of the Golden a well-planned setup, organised clear, however, is that in some way Ball”; Ellenor’s, by searching for her by one or more of his English the case was organised or financed name and “Beyond The Maker’s Mark: business rivals. The whole affair by de Lamerie’s business rivals. Paul de Lamerie Silver in the Cahn Collection”. This was an international seems contrived. An impecunious, That is all we know about the case travelling exhibition in 2008. young (and dirty), ill-clad chimney but there is a curious and humorous 6 See: note 5 above. sweep suddenly appears in one footnote, or rather side note, to the 7 The Grove Encyclopaedia of the of London’s finest jewellery and case. The reporter, Sir John Strange Decorative Arts, vol 1, p 54 (2006). silverware shops with a valuable KC, was a respected and successful 8 This appears on p 131 of the piece of jewellery and enquires barrister, who was to hold high office marvellously titled – Epitaphiana: or, what it is and what it is worth. One as the Master of the Rolls between The curiosities of churchyard literature, would have thought that he was in 1750 and his death in 1754. He was being a miscellaneous collection of epitaphs etc (1875). great danger of being reported to buried in the Rolls Chapel and it is the authorities and charged with said that on his grave was engraved theft of the jewellery from one of the epitaph: the houses in which he cleaned the Here lies an honest lawyer chimneys. Surely Amory would have – that is Strange.8

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Owen Dixon the Barrister – No Case too Small

ROBERT HEATH

ir Owen Dixon is rightly recognised as the Philip Ayers in Owen Dixon sheds some valuable light towering figure in the history of the Victorian on Dixon’s first few years at the Victorian Bar. In writing Bar. His achievements and appointments are this excellent biography, Ayers examined Dixon’s 1911 well known. He signed the Roll of counsel on diary at the back of which there was a list headed ‘Fees 13 June 1910; he took silk on 2 March 1922; 1910’. According to Ayers, this list shows that Dixon he became an Acting Justice of the Supreme earned 113 guineas in that year – about one-third of Court of Victoria in 1926; and he was the Chief Justice of which stemmed from his student coaching activities. the High Court of Australia between 1952 and 1964. The list suggests that Dixon earned no fees in S 1 But what about Dixon’s early years as a barrister? How September 1910. quickly did he progress? For how long did he trek through However, the law reports show that Dixon’s fortunes the foothills in order to reach the summit? Did he remain changed swiftly in 1911 and 1912. In late 1911, Dixon’s on the summit? uncle briefed him to argue a case in the High Court of

65 VBN VBN 65 Australia.2 It was a complex case; a Law incorporates the practice of a against Wollard under s. 40 of the related proceeding had reached the now-defunct firm named Buckland & Police Offences Act 1912 (Vic) “as Privy Council.3 It is significant that Nevett. For over 100 years, Buckland suggested”. This position concerned J E Dixon did not brief a silk to lead & Nevett had an office in the the unexplained possession of stolen Dixon in this case. Victorian town of Camperdown. Jeff property. This advice was based on In 1912, Dixon argued a pleading Thornton told Gillies that SLM Law the following grounds: bar lore point before Justice Hood of the had uncovered some of Buckland & “It would or might give the magistrates Supreme Court of Victoria.4 As far Nevett’s old files and briefs, including an idea that the larceny charge was as I can see, it is the first reported briefs to Owen Dixon. He sent a weaker than it apparently is and in decision of the Supreme Court in selection of these papers to Gillies. any event on the evidence before me which Dixon featured. He persuaded One of these briefs relates to it would seem that when the sheep Hood J to strike out parts of the the private prosecution of a sheep were first suspected to be stolen they defence. The report does not show stealing case in the Court of Petty were in Lews’ possession and not whether Dixon’s opponent, Hayden Sessions at Camperdown. The Wollard’s. This would be fatal under Starke, was responsible for drawing informants were the owners of the the decision in Brown v Schiffman the pleading the subject of the stolen sheep. They alleged that 16 ALR 633. “ successful strike out application. a drover named Lewis Wollard Dixon’s High Court practice began had stolen sheep from numerous This advice reflects forensic to grow in 1914. In late September properties around Camperdown. judgment and a good working that year, he was Schutt’s junior Counsel’s instructors acted for the knowledge of the criminal law – an in a trade mark infringement aggrieved owners of the sheep. The area outside Dixon’s normal areas appeal relating to ‘Australite’ gas memorandum to counsel states as of practice. The decision of Hodges burners.5 But his practice in that follows: J in Brown v Schiffman [1911] VLR jurisdiction took off in the next 133 still governs the determination “The accused Lewis Wollard is a drover few years – volumes 20 to 23 of the of unlawful possession charges living at Camperdown, and he has been Commonwealth Law Reports tell the in Victoria. In order to sustain a unemployed for six months prior to story.6 If you have appeared in Court conviction, the prosecutor must show his arrest droving sheep [that] belong Room 1 at 450 Little Bourke Street, contemporaneity of actual possession to Mr Ross of Avoca in and around Melbourne, you should be able to and reasonable suspicion by the Camperdown. picture Dixon appearing at the bar investigating police.9 table in some of these reported … The memorandum then deals cases.7 It is a testament to Dixon’s with the question of evidence. It Sheep stealing is rife in the district and talent that, in the Federated Engine states as follows: has been for years and certain persons Drivers’ case, Blake & Riggall briefed living in and about Gnotuk have always “The two points upon which the case Dixon with a junior to represent a been suspected of the losses. The for the prosecution should be supported substantial trading corporation. accused has been associated with these by further evidence if it is procurable In light of this meteoric rise, suspected individuals.” are (1) The identity of the sheep (2) and with knowledge of Dixon’s The exclusion of the possibility of them subsequent achievements, it is The brief contains 11 witness becoming accidentally mixed with tempting to conclude that he statements and numerous other those the accused had in his charge. practised exclusively in courts of documents. One of the statements superior jurisdiction from about depicts the ear markings used on As to (1) . It should be a matter of little 1914 or 1915. It is difficult to imagine the sheep in one owner’s flock. This difficulty to get evidence from those Dixon appearing in the Court of was a case in which the informants’ working for the informants which Petty Sessions. One draft letter in solicitors had marshalled a would corroborate the informants’ his personal papers bolsters this substantial amount of circumstantial identification. In sheep stealing cases conclusion. The draft letter contains evidence. it is impossible to get too much of this this statement: “I did not practise in In advance of a conference at class of testimony. the Criminal Courts and it was only Selborne Chambers on 5 May 1915, As to (2). If the police have not already by chance that I was ever there.” 8 Dixon sent a short and clearly done so it seems to me that Wollard’s In June 2014, Bill Gillies of the worded memorandum of advice to movements during April should be Victorian Bar received a telephone Blake & Riggall. The Melbourne investigated closely. This is work which call from Jeff Thornton, one of the firm was Buckland & Nevett’s the Police should be able to carry out. partners of the firm named SLM Law. town agent. In this memorandum, If it can be shown that he passed or That firm has offices in Colac, Apollo Dixon expressed the view that it was in the vicinity of the informant’s Bay, Cobden and Camperdown. SLM was “undesirable” to lay a charge

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Dixon did not reject this sheep stealing brief as being too small or unimportant.

property upon which the sheep were probabilities, not with possibilities. or unimportant. Notwithstanding and that the number of sheep he was The difference between the criminal Dixon’s subsequent statement that driving was not so great that strangers standard of proof in its application to he did not practise in the criminal would get in without being noticed at circumstantial evidence and the civil courts, the memorandum reflects the time, his statement that ‘he picked is that in the former the facts must a keen appreciation of evidentiary up some on the roads’ etc. would be be such as to exclude reasonable issues likely to bear on the criminal given a more incriminating turn. Facts hypotheses consistent with innocence, prosecution for alleged sheep suggesting that he must have known while in the latter you need only stealing. Why did he take this brief? where the sheep came from are very circumstances raising a more probable No doubt, he respected the cab rank important because even if they got in inference in favour of what is alleged.” principle. Perhaps he was happy his flock accidentally to appropriate to take the brief because another It is likely that Dixon had a hand in them (as he said he did) with that supporter, Blake & Riggall, was writing these reasons of the Court. knowledge would amount to larceny. involved as the town agent. It is also He would have brought his likely that Dixon well understood The security of the fences and the knowledge to bear on this task; that good work sometimes came from likelihood of the sheep getting on to the and, as this 1915 brief shows, such unlikely sources. roads should be shown if possible.” knowledge did not stem exclusively Lee Aitken dealt with this last from books. Dixon had “real The advice on the second point concept in an address he gave to world” experience in preparing brings to mind a passage from the students in the NSW Bar readers’ and assessing criminal cases. The High Court’s decision in Bradshaw v course.10 In light of Dixon’s language of the memorandum – McEwans Pty Ltd (1951) 217 ALR 1 acceptance of this brief, one passage “In sheep stealing cases it is at 5-6: stands out.11 It reads as follows impossible to get too much of this (footnotes omitted): “Of course as far as logical consistency class of testimony” – suggests that goes many hypotheses may be put Dixon worked on more than one theft “Do not think that the case is too small, which the evidence does not exclude case of this sort. or too big. Sarjeant Ballantine gave positively. But this is a civil and not a Dixon did not reject this sheep advice to the beginner many years ago: criminal case. We are concerned with stealing brief as being too small ‘Never return anything at the Bar –

66 VBN VBN 67 below some key passages from this memorandum: “I have given careful consideration to the very confused legislation relevant to this case. Apart from statutory

bar lore provisions the Company could not, I think, be prevented from continuing the discharge of its washings as at present unless there was thus created a condition so offensive as to amount to a nuisance at common law. … The matter is however governed by two statutory provisions. The first does not operate to alter the criterion of liability but imposes penal consequences for infringement. It is section 280 of the Health Act 1915. This combined with sec. 279(6) would expose the Company to fine upon summary conviction but in my opinion the essential ingredient in the offence is the same as that which I have stated for the common law nuisance. The other statutory provision is that referred to in the case viz. sec. 300. … The second part of section 300 in my opinion causes the Company real & serious difficulty. I never do!’ Lord Hewett had a motto: that, over the next 10 to 15 years, … ‘Do not neglect the day of the little Buckland & Nevett regularly sought fishes.’ Dixon’s counsel. In particular, It follows that if the Council form an two briefs show that Buckland & honest opinion & give it appropriate … Nevett entrusted Dixon to provide expression that the Company is Do not think that you need to be advice in relation to the affairs of doing what tends to the stoppage briefed by a big firm to have ‘quality’ the Camperdown Cheese & Butter of the drain, the Company may work – to begin, all work which gets Factory Ltd. Adopting the language of be restrained from continuing its you into court and on your feet before Aitken, it is likely that this company present system.” any tribunal at all is good work. was one of the firm’s “anchor clients”. The memorandum cuts through Secondly, a large firm has no monopoly The first of these briefs was sent the difficulties with which Dixon on large private clients – a kind man to Dixon in late 1919. It relates to the had been presented. The solicitors in Double Bay running a one-man company’s discharge of washings and the client received unambiguous practice sent me several times to into a drain for which the Shire answers to the posed questions. the High Court for ‘anchor clients’ of Hampden was responsible. In It also conveys the distinct on more harum-scarum cases than I summary, Buckland & Nevett wanted impression that, having given have seen in a lifetime. Thirdly, as any to know whether the company’s sustained consideration to all experienced advocate knows, there is drainage system exposed the relevant matters, Dixon proceeded absolutely no correlation at all between company to liability. to write his advice without the the monetary scale of the matter and A few days before Christmas, benefit of producing written drafts. the legal complexity involved in it.” Dixon sent a handwritten The memorandum does not repeat memorandum of advice to his If Dixon took this brief with an slavishly the relevant statutory instructing solicitors. In order eye on future work, this strategy provisions. Nor does it include to convey the style and flavour was successful. The papers suggest passages from reported cases. Rather of Dixon’s advice, I have set out

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Company of Australasia Ltd (1914) 19 the document alludes to such things, required to tackle these tasks without CLR 237. and such allusions buttress rather the help of a junior. 6 See the following decisions: Green than smother the crisply expressed From the modern perspective, v Worley (1915) 20 CLR 418 (junior opinions. Almost one century after bearing in mind Dixon’s legacy in to Macfarlane); Glenn v The Federal the brief was returned, and knowing the form of reported decisions, it is Commissioner of Land Tax (1915) 20 CLR 490 (junior to Starke); Craine v the course of Dixon’s career, it is a very easy to overlook the concept Soden (1916) 21 CLR 268 (junior to privilege to read this memorandum. that he may have worked on matters Schutt); Federated Engine Drivers’ and The second of these briefs was in the Court of Petty Sessions at Firemen’s Association of Australasia v The Colonial Sugar Refining Company sent to Dixon KC in early 1928. Camperdown. It is also easy to Ltd & Ors (1916) 22 CLR 103 (leading It related to a Supreme Court overlook the concept that, following Stanley R. Lewis); The Welsbach Light proceeding in which the same his brief period as an Acting Justice Company of Australasia Ltd v The Commonwealth of Australia (1916) 22 “anchor client” was the defendant. of the Supreme Court, Dixon KC CLR 268 (junior to Mann); and Stemp The dispute involved the plaintiffs’ could have been called upon to draft v The Australian Glass Manufacturers entitlement to bonus payments in interrogatories from scratch. These Company Ltd (1917) 23 CLR 226 (junior to Mann). circumstances where one plaintiff papers provide a good reminder of had admitted supplying dairy two things. First, if the matter falls 7 Robert Heath, 450 Little Bourke Street, Melbourne (1999) 73 ALJ 124. products to companies other than within counsel’s expertise, the cab the Camperdown Cheese & Butter rank rule applies. Second, for any 8 Philip Ayers, Owen Dixon, The Miegunyah Press, 2003, p 22. Factory Ltd. advocate (including those destined In this brief, the firm asked Dixon for greatness), no brief is too small. 9 See DPP v Pastras [2005] VSC 59 at [20] per Bongiorno J – “The situation to do as follows: (1) advise whether 1 Philip Ayers, Owen Dixon, The described by Hodges J in Brown v inspection of certain documents Miegunyah Press, 2003, p 17. Schiffman is still the case in Victoria should be given; (2) settle the form of when a charge of unlawful possession 2 Cock v Aitken (1911) 13 CLR 461. is before a Court”. proposed resolutions of the company; 3 Smith v Cock [1911] AC 317. (3) draft interrogatories; and (4) 10 Lee Aitken, ‘Analysing a judgment’ or, how to develop a practice (2007) “indicate lines of defence”. The 4 Gill v Colonial Mutual Life Assurance Society Ltd [1912] VLR 146. 30 Australian Bar Review 114. back sheet indicates that Dixon was 5 Remington v The Welsbach Light 11 Lee Aitken, ibid, p. 118.

68 VBN VBN 69 A Step Back in Time

This year the Victorian Bar has uploaded all past editions of Victorian Bar News onto its website.

bar lore irst published in 1971, Victorian Bar News provides an interesting, learned article! Business cards and “with Fand at times whimsical, means of seeing just how far we compliments” slips were permitted, but have come as a Bar. The following extracts from the Spring 1984 not for touting purposes. Particularly apt, edition illustrate this. For instance, this year our Bar Council is to is the article announcing the Bar Council’s be congratulated in its effort to market and promote the Bar. In commitment to build new chambers (then 1984 for the first time members were permitted to publish posed unnamed) which we now know as Owen photographs, but only in association with the publication of a Dixon Chambers West.

From the 1984 Spring edition of Victorian Bar News:

BAR COUNCIL REPORT

ETHICS such as the Law Institute Journal; (a) Photographs for publication (ii) the above amendment does not however permit The rulings concerning photographs for publication a photograph to be published of a contributor (which appear at P 86 of Gowan’s The Victorian Bar) of case notes or book reviews or the like and were amended by adding a sub-rule (d) That sub-rule remains subject to the general rules against is in the following terms - touting and obtaining undue personal publicity; “(d) Subject to the limits provided by sub-rules (b) (iii) the Bar rulings do not prohibit the use of (i) and (ii) and (c), a barrister may permit a posed photographs of barristers engaged in public photograph of himself to be published in association activities with the publication of a learned article or address by (b) Business cards and with compliments slips him” The Bar Council has resolved that Counsel may That ruling was made following a request made by use business cards of normal size and style bearing the Editor of the Law Institute Journal for photo- name, qualifications, business address and telephone graphs of contributors who were members of the Bar. number and “barrister” or “QC”. The card may The Law Institute has been advised by the Chairman not be distributed generally but may be supplied of the Bar Council that - to a witness, client or solicitor where necessary. (i) the Bar rulings have been amended so as to Counsel may also for normal purposes use a “with permit a posed head and shoulders photo- compliments” slip bearing the above information. A graph of a barrister (against a plain featureless business card or “with compliments” slip should not background) to be published in association with be used in any circumstances which could constitute a learned article by that barrister in a publication or could appear to constitute touting.

From page 15 of the same edition: THE NEW BUILDING - A POSITIVE STEP awyers are reported to be conservative. Barristers 1975 the Accommodation Committee of the Bar Council more than most. Nothing we delight in more predicted a Bar of 800 members in 1984. It is now nearly L than a fond rehearsal of past triumphs. In 1000. Despite the forebodings of many, it is still seen our centenary year this delight has verged upon self as an attractive calling for over 70 young lawyers per indulgence. And for those who will attend the Centenary annum. There is every prospect that it will continue to Dinner with spouse and companion, this indulgence will be so. approach licence. In 1961 when there were some 200 in active practice, In this year the most tangible indication of the confid· Owen Dixon Chambers was completed. In 1968 when ence which the Bar has in itself and its future has been the number had grown to 280, four more floors were its commitment to the new building on the ABC site. In added.

70 VBN VBN 71 On 13th August 1975 a General barristers on each floor as there is graces the cover of this edition. Meeting of the Bar adopted a at the Bar generally.” The floor layout has been

recommendation that the Bar be determined following an analysis bar lore 1982: Barristers Chambers Ltd housed in one building. Since that of the responses to the recent takes a lease over part of 200 date successive Bar Councils have questionnaire. From time to time Queen Street and establishes Aickin sought to implement this policy in the Bar will be consulted as to other Chambers. various ways. features of the project so that the 1983: A group of some 20 barristers end result as far as possible meets 1975: The favoured proposal was purchase and refurbish Seabrook the special requirements of the to erect a building at 544 Lonsdale Chambers. Meanwhile, the ABC majority of barristers. Street in conjunction with North Subcommittee chaired by O’Callaghan The new building, as yet unnamed Rock Development at a cost of QC had been seeking proposals for the will soon be seen growing behind $23.5m. development of the ABC site. Earlier the County Court building, a 1977: Attention turned to 500 this year the Bar Council resolved to visible monument to the vision Bourke Street. The Bar was to take a recommend to Barristers’ Chambers and enterprise of the Bar. Like long lease from the National Bank. Ltd, that it accept the proposal of Owen Dixon Chambers, which was Leighton Contractors and merchant commenced before any but a few 1978: The Bar rejected a proposal bankers, Schroder·Darling to erect a among us were in practice, the new to purchase the Goldsborough Mort twenty storey building. The proposal building will provide for the Bar of Building. is outlined in Bar News Autumn the future a secure investment and a 1979: A General Meeting ratified the Edition 1984. The Contracts were home for years to come. purchase of the ABC site. signed on Friday 7th September, The Bar has and will have much The contracts provide for Leighton cause to be grateful for the efforts 1981: Bar Council resolved: to design and construct a building to of the members of the ABC Sub- “If a new building is erected on a standard equivalent to that of 200 committee over the past few years: the ABC site it will be the policy Queen Street. It will be completed O’Callaghan QC, Liddell QC, of the Bar Council that in the in stages so that the Bar will take Chernov QC, Webster, Gunst and allocation of rooms in the Building possession progressively in 1986. Isles. there be, as far as practicable, The facade of the new building the same distribution amongst

Spring, 1984 I put a trial on computer (and vice-versa)

David Ross

ou’ve got to understand” said Langslow to the That’s how we found our way into the comuputer shop. man in the computer shop, “that you’re dealing “There must be a way of putting this on a computer” I had with a couple of blokes with fingers like clubs”. insisted. So the two of us with fingers like clubs were talking to We had been briefed to appear for an accused the computer gentleman. We told him that we wanted to put manY facing drug conspiracy charges. The committal had lasted a court case on computer. “Ah yes”, he said “we’ve just done many days. Twenty three witnesses had been called before the a programme for a man in a greengrocer’s shop who wants to “magistrate. The Crown had given us notice of their intention to know what to order”. call an additional eighty witnesses. “Perhaps that’s not quite it”, we said. When I first came into the matter the brief was delivered in “We’ve just done a programme for a woman who runs a boxes. Part of the crown allegation was that the accused had book store so she can tell at any given moment what stock she made money out of his activities. That explained the box full has. Unfortunately she doesn’t know how to use it”. of papers dealing with financial matters. Some of the witnesses We walked out an hour or so later. I had by then hired an had already given evidence before a Royal Commission. We Osborne personal computer with what were said to be floppy expected that we might get access to some of that material. The disks, a printer, an extra V.D.U. which is computer talk for a T.V. reading was going to take weeks. The issues were complex. set and assorted boxes of paper, file covers, cables and some other The prospect was daunting. The mere volume of the paper was odds and ends. “Don’t worry” said the man, “there’s a book of intimidating. instructions that we’ll send along with it”.

70 VBN VBN 71 Conversations with well meaning some heroin deal. If it appeared on the it would bark back “boot error”, friends had caused me to believe that I transcript at page 1297 and occurred on “unknown command”, “B dogs error on wanted a computer with what they call 16.8.78, that might be entered as: SCOTT A” or similar strange things. a Data Base II Programme. The man in WILSON HDEAL 1297 780816 - 2. Let me warn you. Life with a highly the shop agreed. “That is just what you So each event, each incident, found intelligent dog which understands only need” he said confidently. itself in a line of information. German is not always plain sailing. bar lore So it was that at the end of the day I After a time we found that the actual surveyed the brief I did not understand keying of the information into the The Pie Bag Syndrome while sitting behind a machine I computer was taking our fingers like Lest you think that to use a computer is could not use. I looked up the book of clubs a very long time indeed. It was simply to press a button whereupon all instructions. If I put in certain floppy then that great good fortune brought us the answers come out, let me recount discs I would then be able to start the a young lady with the skill to do it for to you the following. One lunchtime Data Base Training Course I was told. us, and a machine of her own at home. Langslow and I were in my chambers. I put the discs in and pressed the We would write out the index and she It had been a difficult morning and buttons. Lights flashed, wheels whirred would key it in. She charged us by the promised to be a more difficult afternoon and printing came on the screen. hour, and very moderately at that. with a witness who had given us little Slowly and painfully it took one We finished up with a pretty good joy. Lunch had been a pie from a bag, through a simple course which seemed index. Overall there is no doubt that coffee from a styrofoam cup, and the air to be aimed at how to develop a mailing it was a time saver. I tested the time was thick with cigar smoke. (Later on system of names. Of course you never element one night in this way. I indexed we found that the computer was allergic know when you will want a list of the transcript using a card system. Time: to cigar smoke. That explained some people whose letter boxes you want 2½ hours. Indexing for the computer. of its obstinacy; and when we did find to have filled with junk I can think Time: 1¼ hours. that out we smoked all the more just to of a few people right now. I wonder The big advantage of the computer spite it.) We asked the computer lots of if the computer can arrange to have index is its capacity to retrieve questions about what others had said wet newspapers blowing across their information. For instance, once we this witness had been up to. It provided gardens as well. needed to find out everything that had us with good information on the screen. I kept at that machine day and been said on the subject of dealings in Time was short. The essence had to be night. I punched information into it hashish oil. The computer turned up the noted quickly. A pie bag was the nearest and sometimes got it back I used it at pages in the transcript where it had been paper to hand so the jottings were done Chambers. I took it home and used referred to in seconds. What’s more, it on it. We trooped off to court. it there. I took it up to Macedon to could do combinations. You could ask Not too long afterwards, it began to Langslow’s weekender that he calls the computer the question, Did Scott emerge that what we had noted over his Farm. and Wilson meet in Sydney in 1977 If the lunch was becoming vital. Then came What I wanted from the machine was information had previously been keyed what must have seemed an incongruous an indexing system. I wanted to be able in it would again give you the reference spectacle. Thousands of dollars of to call up what different people said in seconds. sophisticated equipment had been put to about different things, when events were Warning: Rubbish in, rubbish out. use, and here was counsel cross-examining said to have taken place, who referred What you put into the machine must be holding a pie bag in his hand. At that to what exhibits, what counts pieces of correct, it must be something you will moment the pie bag was the world. evidence related to, and above all where want, and it must be capable of retrieval. in the transcript all this was to be found. Otherwise you’ve wasted your time. Conclusion Slowly the sort of system I wanted Computers are flighty little jobs. But emerged. Just as slowly emerged a The German Dog when put to good use they can save you routine for extracting the information we Principle countless hours. If all goes well it means wanted indexed. you only have to read the transcript I began to see the computer as having Can you imagine a page of transcript once. Those who have been in long trials the qualities of a highly intelligent with these headings, WITNESS PERSON without a computer will probably admit dog which understood only German ISSUE PAGE DATE EXHIBIT COUNT. to reading the whole transcript at least commands. If you spoke fluent German, At the end of each day we would get half a dozen times. then no problems. If you didn’t then you to work on that day’s transcript. Let’s I should add that the accused was must learn enough German to induce it suppose that a witness was talking convicted. I blame the computer for that, to obey you. A slight mispronunciation about another person doing some- thing of course. If there is a successful appeal would have as its only result a blank with some exhibit, or as was more that will be to the credit of his counsel. look. If you tried to force the issue usual meeting another witness to do

72 VBN VBN 73 H.B. Higgins bar lore Federal Father, Judge, Rebel

JOHN RICKARD

enry Bournes Higgins – he was always known as H.B. Higgins or by his full name, never as Henry Higgins – is principally remembered today as the president of the Arbitration Court who, in the Harvester judgment, was largely responsible for the establishment of the basic wage. But he was many other things: a father of federation, though one who opposed the adoption of the Constitution agreed Hupon at the 1897-8 Convention; a ‘friend of Labour’, who was attorney-general in the first, short-lived Watson Labor government; an Irish-born Protestant who, in supporting Irish Home Rule, won the respect of the Catholic community; and, of course, a High Court judge who, with his colleague Isaac Isaacs, helped shift the Court to a more liberal interpretation of Commonwealth power in the 1920 Engineers case. When I published my biography in 1984 I subtitled it ‘The Rebel as Judge’. He was a controversial figure and, indeed, remains so today, as hardline economic rationalists hold him responsible for many of the economic ills they see as a product of wage regulation.

72 VBN VBN 73 Anne consulted an eminent Dublin physician who recommended migration to the warmer and drier climate of Victoria. So urgent did emigration now seem that Anne departed with six of her children in bar lore November 1869, leaving her husband to complete his term on his current circuit, together with their son John, to follow seven months later. The Higginses were impressed by the prosperous vitality of the community they encountered in Melbourne – Wesleyans seemed opulent by the petit-bourgeois standards of the small sect they were used to in Ireland – but Henry found difficulty in gaining the kind of commercial employment he was familiar with. Although he had always H.B. Higgins and wife, Mary Alice professed “a very great aversion to teaching of any kind” (no doubt his Victoria was opening up the possibility of a career stammer was an inhibiting factor), he could only have dreamed of in Ireland. Henry could see the opportunities that teaching might open up. And Higgins was born in 1851 at Wesleyan Connexional School in indeed, initially winning a position as Newtownards, a town 16 kilometers Dublin, a rather grim institution a junior teacher in a private school, east of Belfast in what was later which did provide the rudiments of within a year he had gained the to become Northern Ireland. a classical education. There was, of common schools teachers’ certificate His father, John, was a Wesleyan course, no question of a university and had passed the matriculation preacher, and the family got used education, and Henry found examination. In March 1871 he to moving from town to town employment in a drapery warehouse won the university exhibition in every few years as required by in Belfast, a city he came to dislike, classics. Victoria was opening up the the Wesleyan circuit system. As and then, more happily, in a Dublin possibility of a career he could only nonconformists, Wesleyans had furniture warehouse. have dreamed of in Ireland. difficulty identifying with the Anglo- His brother James had been Melbourne University was barely Protestant Ascendancy represented a bit of a rebel at school and an 20 years old and still a very small by the Church of Ireland, while at embarrassment to his devout father; community, but it was not without the same time regarding the world of at the tender age of 17 James, its academic luminaries. Higgins the Catholic Irish majority as Popish with the approval of his parents, was much influenced by W.E. Hearn, foreign territory. emigrated to the United States. professor of history and political Henry’s strong, determined mother, In the wake of the 1840s potato economy, a man of wide learning who Anne, was largely responsible famine, emigration was always in was a witty and engaging lecturer. for bringing up six sons and two the minds of Irish people, and it is He introduced Higgins to J.S. Mill, daughters in frugal circumstances. possible that his parents regarded Herbert Spencer, Comte, Grote Henry appeared to be a “delicate” James as the advance party for their and contemporary liberal thought child, and at a time when the death own migration to America. Sadly, in generally. Higgins was also becoming of children was common, this meant New York James came down with more sociable in this stimulating that he was the particular focus consumption, and after little more environment and his friends included of his mother’s care and attention. than six months in the New World, Alfred Deakin, Alexander Sutherland He developed a crippling stammer, thin and weak, he was back in the (later, journalist and headmaster) which, as an adult, he would learn arms of his family. He survived and Richard Hodgson (later, a to control, though his speech would another two years, but it was his controversial psychical researcher). always bear traces of it. For some death that triggered the Higgins Alfred Deakin’s sister Catherine years he was, along with his elder family’s emigration. Concerned about recalled them as “a brilliant quartet”. brother James, educated at the the health of her other children, Privately, Higgins was agonizing

74 VBN VBN 75 over his religious faith, particularly for conversation and argument. With parliament in 1878, about a possible the doctrine of hell and eternal friends he went on vigorous walking candidacy, and after some deliberation damnation, and was beginning a shift tours in Victoria, Tasmania and New decided to offer himself in 1892 for

away from the narrow Wesleyanism Zealand; he even found time to work the two-member constituency of bar lore of his father. on a selection he had acquired in Geelong, clearly hoping that the While studying, Higgins was Gippsland. There was now no sign Morrison connection would be to still teaching and tutoring in his of the “delicate” child he had been his advantage. Higgins had started spare time in order to mobilize an in Ireland. out as a conventional, laissez-faire income. He also found time to take In 1885 he married Mary Alice, liberal, but he knew that he would elocution lessons to help him master daughter of George Morrison, have to adapt to the protectionism the stammer, which he considered principal of Geelong College, and which, with the help of Syme’s Age, essential if, on completing his law sister of George Ernest, later known had become the prevailing Victorian studies, he were to be called to the as “Chinese” Morrison. A week after policy. He supported a land tax and, Bar. Nevertheless, when he began the ceremony the couple left on a with the government struggling to his career as a barrister in 1876 he year-long world tour. Less that a year deal with a mounting deficit, regarded chose equity, reasoning that “I might after their return May Alice gave an income tax, although “hateful”, as succeed in laborious work, but that I birth to their only child, Mervyn. inevitable. But however sensible his could hardly succeed in addressing The 17 years since he had arrived policies, his coming from Melbourne, juries”. During his first lean years in Melbourne as a shy, 18 year old which Geelong tended to blame for the he continued tutoring, his pupils youth, uncertain of his future, had depression, was not in his favour. He including the two elder sons of Age seen a remarkable transformation in polled respectably, but fell well short proprietor David Syme. With help his and his family’s fortunes. of the two successful candidates. Two from F.W. Holroyd, with whom he was At university Higgins had already years, later, however, when economic reading in chambers, and Thomas shown interest in public affairs and conditions were even worse and à Beckett, he was soon doing quite was active in the Debating Society, Higgins was better known in Geelong, well; indeed it is remarkable how which had been formed under he was elected to the Legislative quickly he acquired the perquisites the influence of C.H. Pearson, the Assembly. of wealth and position. In 1883 he writer and founding headmaster of Higgins took his place alongside purchased for £1,200 one and a Presbyterian Ladies’ College, who has Deakin as a supporter the new half acres on Glenferrie Road on been described as “the outstanding government led by George Turner, which he built Doona, by colonial intellectual of the Australian colonies”. which was to be in office for five standards a mansion. (Doona, Although a loyal imperialist, Higgins years, during which time restoring alas, was demolished many years became a supporter of Irish Home Victoria’s finances was the dominant ago.) Later, he was to acquire the Rule, an unpopular cause at this time concern. One important reform, Heronswood estate at Dromana as in England and Australia, and when however, which was to be significant his country house. (And Heronswood the Irish nationalists John and William for Higgins’s career, was the 1896 does survive.) When à Beckett went Redmond visited the colonies in 1883 Factories Act, which saw the to the bench in 1886, he clearly he agreed to appear on the platform first tentative venture into wage expected Higgins to be his successor with the speakers, a public act of some regulation. Higgins, faced with at the equity bar, and indicated that bravery. It was enough to rule out what he called “the social problem” he might look forward to an annual admission to the Melbourne Club. This (unemployment, sweating, poverty), income in the order of £5,000, a was the beginning of Higgins’s unusual modified his laissez-faire liberalism considerable sum, particularly at a relationship with the local Catholic and began to accept the need for a time when there was no income tax. community which came to regard the greater role for the state. And Higgins did succeed. He Irish-born Protestant as a friend. That Higgins made an impression was always capable of hard work, Higgins’s cautiousness in financial in his first parliament is borne out while his reluctance to compromise matters made him resistant to the by his surprising success in 1897 contributed to his popularity with speculative spirit which characterized in being elected as one of Victoria’s clients. He was a stern presence in the 1880s, so that he survived the ten delegates to the Australasian court and it was said that “he was collapse of the boom and the following Federal Convention of 1897-9 which always ready to compromise – on the bank crashes relatively unscathed. was to frame the Commonwealth basis of judgment for the full amount But it was in this changed economic Constitution. He had fought an with costs!”. Outside the court he was, environment that he began to give energetic campaign, addressing however, good company, and, with the serious consideration to a political meetings not only in Melbourne and confidence that came with success, career. In 1891 he consulted Deakin, Geelong, but in country towns across was now showing a very Irish flair who had first entered the Victorian Victoria. More significant, perhaps,

74 VBN VBN 75 was that the Age included him was soon cemented when he was one before accepting the offer. “The poor in its preferred list, all of whom of only 13 members of the Legislative fellows need encouragement,” he told were elected. Assembly who opposed the offer of Deakin. After less than four months, From the beginning Higgins was a contingent to support Britain in the Watson Government was in turn cautious about federation, refusing the South African war. As imperialist ejected. But the Arbitration Bill to accept the majority view that fervour was whipped up, Higgins finally passed. bar lore only a federation along American found himself in an uncomfortable That cordial relations were lines was feasible. Federation was position when he faced the Geelong maintained through these political “a mere word” and a “mere question electors in 1900. At his first campaign crises is evident in Deakin of a mode of government”. Although meeting he was asked why he had appointing Higgins, along with not a unificationist, he did see opposed the despatch of troops Attorney-General Isaac Isaacs, to federation as “unification for certain to South Africa. Higgins, in other the High Court in 1906. Higgins was purposes”, and once those purposes respects an imperialist, without a also to take over the presidency had been defined he saw no reason hesitation, responded, “Because of the new Arbitration Court for the Senate being a States’ House, I regard the war as unnecessary which R.E. O’Connor was eager to ignoring the likelihood that the and unjust”. There was uproar, and shed. This was a task Higgins was smaller colonies would not join suddenly many in the crowd were happy to accept, and in his first the federation without some such waving Union Jacks which they case in 1907 he handed down the guarantee. Higgins was, however, had conveniently brought with celebrated Harvester judgment, in an active and constructive member them, soon accompanied by a lusty which he enshrined the rights of of the Convention and his name singing of the National Anthem. the worker “as a human being in is associated with two sections of He lost the election. a civilized community”, entitled the Constitution: section 51.xxxv Undeterred, Higgins redirected his to marry and raise a family. which provide for “conciliation and political ambitions to the new federal Although the legislation under arbitration for the prevention and sphere with the proclamation of the which he made this award was later settlement of industrial disputes Commonwealth in 1901. Although declared unconstitutional by the extending beyond the limits of he had alienated the electors of High Court (Higgins and Isaacs any one State”, and section 116, Geelong, his determined espousal dissenting) Higgins continued to guaranteeing the secular nature of of progressive causes had made him apply the principles of Harvester the Commonwealth, which Higgins popular with radicals inside and in subsequent cases. Trade unions felt was required once “Almighty God” beyond the labour movement. He were soon seeking to bring their had been inserted in the preamble. stood in the liberal interest for the industrial disputes under the When in 1899 it was time to put the working-class electorate of North Court’s jurisdiction in preference Constitution to the voters, Higgins Melbourne, and with the tacit support to the State authorities. Employer found he could not recommend of the infant Labor Party (which he groups, on the other hand, became its adoption. He believed that the was never to join), was duly elected. increasingly hostile, particularly Constitution was not democratic In 1904 the Deakin government, when, in 1909, in a case involving enough, particularly opposing the seeking to enact a modest Arbitration B.H.P. he refused to lower the equal representation of the States in Bill, faced a Labor amendment to minimum wage in the face of the the Senate. He also was concerned extend its provision to State railway company’s threat to close the mine. about what he saw as the rigidity of workers, a move influenced by The Higgins Court was soon the Constitution, and he foresaw that the harsh suppression of the 1903 attracting international attention as amending it might prove difficult. Victorian railway workers’ strike. contributing to the reputation Australia He suspected that conservatives When the House of Representatives and New Zealand were acquiring as regarded a written constitution as a passed the amendment, Deakin “a social laboratory for the world”. bulwark against change. He was one resigned, and the first federal Labor Higgins contributed to this in articles of only two delegates who opposed government was formed under J.C. published in the Harvard Law Review, the adoption of the Constitution. Watson, who asked Higgins to be his which he later brought together in This was the beginning of his Attorney-General. Higgins, a stickler A New Province for Law and Order reputation as a perverse rebel, which for etiquette, consulted Deakin (1922). However, the industrial strife that started to fester during the First The Higgins Court was soon attracting international World War tested Higgins’s patience, attention as contributing to the reputation Australia and he came to distrust Prime Minister W.M. (“Billy”) Hughes, who he saw and New Zealand were acquiring as “a social laboratory as bypassing the Court in ill-advised for the world” attempts to fast-track the settlement of

76 VBN VBN 77 disputes. The High Court did not help Higgins was a man of wide cultural interests. matters when in Alexander it declared His training in the classics stayed with him. that section 72 of the Constitution

required that judges be appointed for effectively overruled that doctrine industrial arbitration system to which bar lore life, and that while the Arbitration Act and the doctrine of reserved powers. his uncle had devoted so much of purported to bestow judicial power on Higgins and Isaacs often appeared his life, but Higgins did his best to the Arbitration Court, the president, to be in alliance, but although they maintain a civilized debate with his being appointed for a seven-year respected each other they were never rebellious nephew. term, could not exercise it. Unhappy close. Higgins was not a centralist Higgins’s concern about the fate with legislation providing for special in quite the sense that Isaacs of Ireland remained with him all his tribunals, Higgins in 1920 gave notice was. Higgins was sympathetic in life, and when he travelled abroad a of his resignation as president of the interpretation of legislation whether visit to his native land was usually Court. One of his last cases before it was Commonwealth or State: he included. He maintained contacts giving up the presidency in 1921 was thought the Court should be reluctant with Irish nationalist leaders, and Timber Workers, in which he granted to find either invalid. He also had a although concerned about the rise the 44-hour week, justifying it in terms greater concern for human rights, of Sinn Fein, never regarded it as of the workers’ right to share in the and was much more cautious than beyond the pale. When he visited fruits of new technology. Isaacs in his interpretation of the Ireland in 1924, in the wake of the If the War had damaged the defence and immigration powers. Civil War, he followed with interest reputation of industrial arbitration, He nearly always wrote his own the Gaelic Revival. There was some it had left its mark on Higgins in a judgments, as he did in Engineers, surprise, nevertheless, on his death more personal sense. As their only while Isaacs wrote the majority that his will was dominated by a child, Mervyn had been the focus judgment which Sawer has described £20,000 bequest to the Royal Irish of his parents’ love and devotion. as “one of the worst written and Academy to assist research into Irish Educated at Melbourne Grammar, organized in Australian judicial language and literature. Ormond College and Balliol College, history”. Higgins’s judgment, on the He died at Heronswood on 13 Oxford, where he had more success other hand, was, according to Zines, January 1929, with Mary Alice and his as a rower than as a scholar, Mervyn “much clearer and more precise”. sister Ina by his side. His colleague had dutifully followed his father Higgins was a man of wide on the bench, Frank Gavan Duffy, into the law. Henry and Mary Alice cultural interests. His training in summed up many of the tributes when were travelling in England when the classics stayed with him. While he described him as “a man of the most war broke out, and while they were a judge, he amused himself making sterling integrity and kindliest nature”. abroad Mervyn enlisted. He survived his own translation of the Aeschylus The Trades Hall Council flew the flag Gallipoli, but was killed at Magdhaba, Prometheus Bound. He had a at half-mast. Soon after his death Mary Egypt, in 1916. “My grief has particular love of poetry, Browning Alice commissioned Nettie to write condemned me to hard labour for the and Whitman being his favourites. He the memoir, Henry Bournes Higgins, rest of my life,” Higgins wrote. served on the Melbourne University published in 1931. During his Arbitration Court Council 1887-1923, in the course of As for Higgins’s legacy, however years Higgins had only joined his which he donated £1,000 for a poetry much argued about, changed, brothers sitting on the High Court scholarship. modified and renamed, industrial in constitutional cases, but when After the death of Mervyn, Higgins arbitration is still with us. in 1920 he referred Engineers to turned more to his niece Nettie and John Rickard is an adjunct professor the Court its membership was very nephew Esmonde, the children of his at Monash University. His biography, different to the pre-war bench, younger brother John. Nettie, a writer H.B. Higgins: The Rebel as Judge, particularly with the departure herself, married the novelist Vance was the Age non-fiction book of of Griffith in 1919 and the recent Palmer, and they did much to keep the year for 1984. He has written death of Barton. When a precocious him in touch with developments in widely in Australian cultural history young barrister by the name of Australian literature. He supported and biography, and his publications Robert Menzies irritated the bench both Nettie and Esmonde, often include A Family Romance: The by laboriously trying to negotiate financially, in their endeavours. Deakins at Home and Australia: his way around the contentious Esmonde served in the AIF, and at A Cultural History, for which he doctrine of the immunity of the end of the War in France, with is currently preparing a new instrumentalities, the Court stopped his uncle’s assistance, went to Balliol edition. In 1997-8 he was the him and decided to permit counsel College, Oxford, to read History. visiting professor of Australian to challenge any earlier decision; While in England he became a Studies at Harvard University. and ultimately, by five to one, it Communist and a harsh critic of the

76 VBN VBN 77 OF THEliftBack OF In this Back of the lift Section of THE the Victorian Bar News, the Bar liftBack acknowledges the appointments, retirements, deaths and other honours of past and present Silence all stand members of our Bar that occurred up to September 30, 2014.

Silence All Stand 78 Federal Court of Australia Federal Court of Australia The Honourable Justice Jonathan Beach The Honourable Justice Beach MICHAEL WHEELAHAN 78 Bar Roll No 2183 Supreme Court of Victoria The Honourable Justice n 30 June 2014 Jonathan Beach briefed for parties in complex royalty Joanne Cameron QC was sworn in as a judge of disputes, insolvency cases, and in ADAM ROLLNIK 79 the Federal Court of Australia leading competition cases. More class The Honourable Justice Beale and was welcomed to the Court by the actions followed, including the Mobil NICK BATTEN 79 Oprofession. litigation, the Longford litigation, The Honourable Justice McDonald His Honour holds degrees in law, Ryan v Graham Barclay Oysters, the GARRY FITZGERALD 80 science, and has a Master of Arts, from Timbercorp Securities litigation and, the University of Melbourne. He was most recently, the Black Saturday Magistrates’ Court of Victoria admitted to practise in 1984, and was bushfires litigation, which was the His Honour Magistrate Robinson DAVID BATT 80 called to the Bar in 1987 where he last major case in which his Honour His Honour Magistrate Bourke read with Ross Robson, as Robson J appeared. Class action litigation PAUL ADAMI 81 then was. His Honour had two inevitably led him to the common law. readers: Dan Star and Bernard Quinn. His Honour’s mastery of evidence Vale 81 As a junior he quickly developed and legal principle set new standards Ann Rosemary Shorten a busy practice in commercial law, in common law practice. Having ANNETTE CHARAK 81 and was in great demand. The late commenced at the Bar acting in the Howard William Fox QC 1980s and the 1990s were busy times most complex commercial causes, PETER O’CALLAGHAN 82 at the commercial bar. The collapse his career as a barrister ended at Rebecca Thomas of a number of financial institutions the conclusion of the most complex SAM HAY 83 including the Tricontinental merchant common law trial that the Supreme Adrian Michael Munro bank gave rise to many legal challenges. Court has heard. HIS FRIENDS 83 His appearance for the former His Honour served the interests Ian Dennis McIvor Managing Director of Tricontinental of the Bar generously and with JOSEPH SANTAMARIA 84 as junior to Merkel QC in Johns v distinction. He served as a trustee Dr John Emmerson QC Australian Securities Commission of the Bar Superannuation Fund, as KATRINA HOWARD 85 (1993) 178 CLR 408, was the first of a director of Barristers Chambers His Honour Judge Fagan many appearances in leading appeals Ltd, a member of a number of Bar VBN 85 in the High Court. Seventeen years committees, and as a member of Thomas Lee Mees later, Merkel QC and Beach QC the Bar Council, including holding JOHN BOWMAN 86 appeared together again, this time for the office of Treasurer and, at the Gonged 86 the successful appellant in Osland v time of his appointment, Senior Victorian Bar Secretary of the Department of Justice Vice Chairman. At His Honour’s Readers’ course 87 (No 2) (2010) 241 CLR 320. welcome, the Chairman of the Bar, His Honour was at the forefront of Will Alstergren QC, reflecting the Victorian Bar council 87 representative proceedings in this sentiments of all those who have Quarterly counsel 88 state, including Dagi v BHP (the Ok known him, said: Tedi case) and the Nixon v Philip You have been a wonderful member of our Morris group proceeding. He took silk Bar, a brilliant lawyer and advocate. You in 1999 at the age of 39 and, as silk, his have supported and been an inspiration Honour’s practice bloomed. He was to young barristers and solicitors. The

78 VBN VBN 79 back of the lift

Victorian Bar is truly delighted at your evident and as a Senior Associate her His Honour was educated at St appointment. You would have been an Honour had carriage of the multimillion Kevin’s College and in 1984 graduated outstanding Chairman but you will make dollar Olympic Airways case (Olympic from Melbourne University with an even better judge of this Court. Airways SA v Alysandratos [1998] VSC degrees in Arts and Law with Honours. 31) instructing Peter Hayes QC, which His education gave him a love of MICHAEL WHEELAHAN litigation included court sittings in a poetry, theatre and debating. He served hotel ballroom in Athens, Greece! articles under Graeme Johnson at Supreme Court In 1999, after a short nine years in Arthur Robinson & Hedderwicks. of Victoria practice, her Honour was appointed After 18 months, his Honour embarked a partner of Mallesons where she on life as a duty lawyer with the Legal continued to establish a very successful Aid Commission, where he remained he Victorian Bar congratulates litigation practice. Her Honour was for two years. Justices of Appeal Kyrou and acknowledged by her peers as one His Honour came to the Bar in Ferguson on their elevation to of Australia’s Best Lawyers in the September 1988 and read with Roy the Court of Appeal T Australian Financial Review in 2012, Punshon, now Judge Punshon of the 2013 and 2014. County Court. He quickly established The Honourable Success in commercial practice is, a busy criminal law practice, well Justice Cameron however, only half of her story. Justice supported by his former legal aid Cameron is also a great contributor to colleagues. A detour in 1990 saw his o be the partner in charge of the legal and wider community. Her Honour spend two years in Sydney the Melbourne office of one Honour has served as a member of the as a Jesuit novice. He returned to the of Australia’s pre-eminent Supreme Court Board of Examiners Bar and was soon to meet Madeline law firms requires extraordinary hard since 2007. Service on the Board is Taylor. Their marriage one scorching Twork and dedication, intellectual voluntary and her Honour’s work hot February day in 1995 led in due rigour, clear thinking and people demonstrates a real commitment course to a Tarago sized family and management skills. Justice Cameron to the administration of justice in to his Honour becoming an even now brings those skills to the Victoria. In addition, her Honour is a more determined and hard working Supreme Court on her appointment past Chairman of the Salvation Army advocate. as a Judge on 12 August 2014. Her Territorial Advisory Board (Australian Between 2002 and 2006, his Honour Honour’s skill and judgment, forged Southern Territory), with an annual combined his busy practice with at the litigation coalface at Mallesons, operating budget of approximately teaching criminal law at Monash. For will lead to every success as a Judge $363 million available for the provision many years he always appeared for of the Supreme Court. of social services in Victoria, South the defence, but the prosecution was Her Honour was born in Woomera Australia, Western Australia and the not to be outwitted and began to brief in the Australian outback in the 1960s. Northern Territory. There is no doubt him frequently, including in the Court At the time, Woomera was a hub of that her Honour has made a real of Appeal. innovation and excellence and deeply difference to those less fortunate. In 2007 his Honour was appointed involved in the Mercury and Gemini It has been said that her Honour’s a Crown Prosecutor and remained space programs. That is to say, her advice to junior solicitors was “know in that position for four years. In Honour grew up in a place where they the facts – win the case”, advice those addition to the usual responsibilities, did in fact practise “rocket science”! appearing before her Honour should his Honour was allocated prosecutions After graduating from MacRobertson now keep carefully in mind. We at raising human rights issues, appearing Girls’ High School, her Honour took an the Bar welcome Justice Cameron in the leading case of R v Momcilovic. interest in philosophy, politics, English and wish her Honour every success In 2009 he was assigned to teach literature and law and graduated from in her new role. Uniform Evidence Law and ensure the University of Melbourne with ADAM ROLLNIK prosecutors and the profession were degrees in Arts and Law. ready for its commencement in Victoria Her Honour began her legal career as The Honourable in 2010. This led to many appearances an articled clerk at Mallesons Stephen Justice Christopher Beale in the Court of Appeal as novel Jaques and, working on the Bond criminal interlocutory appeals enabled Bar Roll No. 2290 litigation, immediately developed a taste new evidence and procedure laws to for large, complex disputes. Admitted n 2 September 2014 be tested. to practice on 2 April 1990, her Honour Christopher William Beale In April 2011 his Honour returned to was appointed a Senior Associate four was appointed a judge of the private practice at the Bar. He resumed years later. By this time, her Honour’s Supreme Court of Victoria after 24 defence work and was frequently ability to run large scale litigation was Oyears practice at the Bar. briefed by State and Commonwealth

78 VBN VBN 79 Public Prosecutions offices, including in Grocon and Toyota. Stephen McLeish SC, now Solicitor- significant people smuggling litigation, His Honour’s independence and General for the State of Victoria, had and by the Office of Police Integrity. In integrity is testified to by a former over a decade’s experience at the back of the lift back 2012 he took silk. Thereafter His Honour leading counsel who describes him – Bar. His practice was a broad one. was keenly sought after by Worksafe in a good way – as “challenging” and It included not only criminal work to appear in OH&S prosecutions. His “confident”. His Honour’s capacity but also industrial relations and appeal practice continued to thrive. He for work under extreme pressure is administrative law matters and, in served on the Committee of the Criminal illustrated by the Patricks case, which particular, extensive commercial work. Bar Association, taught in the Readers was dealt with in only one intense His commercial practice spanned Course and had three readers. month: from the initial injunction all manner of cases, including, in This short history of His Honour’s application before a judge of the his later years as counsel, large and working life so far perhaps hints at Federal Court leading ultimately to the complex taxation disputes, in which the man now appointed to the Bench. Full High Court appeal. he was known by those who led him His outstanding personal qualities are Educated at school by the Christian for his prodigious work ethic and his known to many at the Bar. His Honour is Brothers, his Honour attended the unflappable demeanour. He was also a generous, loyal, patient, determined and University of Melbourne, graduating in member of the Migration and Refugee good humoured. The Bar applauds his Arts and Law and later completing a Review Tribunals for some years. appointment, wishes him the best in his Master of Laws degree. Magistrate Robinson had chambers new role and trusts that he will ensure His Honour did articles at Phillips, on level 22 of Aickin Chambers for his golf handicap remains below ten! Fox & Masel and acted as an advocate a number of years, which he shared NICK BATTEN for public service associations in the with close friends. He is much missed Australian Conciliation and Arbitration on the floor. He is a figure of some The Honourable Commission before joining the Bar. stature and gravitas, whose dry wit and Justice Michael At the Bar, his Honour read with self-deprecating sense of humour lie McDonald Tony North (now the Honourable behind a serious visage and penetrating Justice North of the Federal Court) and gaze. There would seem little doubt Bar Roll No 2351 had three readers: Tim Jacobs, Rohan that those who appear before him will Millar and Patrick Wheelahan. experience a real presence from the t should not be too risky to venture While Australian football and Bench, whilst at the same time absolute that there have been very few cricket have suffered the loss of a once fairness and impeccable courtesy. Victorian judges with a close promising schoolboy, the law has gained Outside the law his interests are connection to Kangaroo Island; even the respected services of his Honour. many and varied. He is a qualified pilot fewerI would have also worked at one The Bar wishes Justice McDonald and has a great love of flying, having time or another in a factory and as a a long, satisfying and distinguished travelled extensively throughout garbage collector and truck driver. career in his new role and the author outback Australia under his own To that supposed tiny number adds his wish that his Honour will captaincy. With a family background may now be added Michael Phillip enjoy many pleasant interludes off the from the western districts of Victoria, McDonald, who was appointed to coast of South Australia with his proud he has always had an affinity with the Supreme Court of Victoria on 16 family, wife Rae and children, Tamara, rural areas, notwithstanding that he September 2014. Jack and Raphael. may at first appear a quintessentially Practising as a barrister for more GARRY FITZGERALD urban figure. He loves nothing more than 25 years (nine as a silk), his than to retreat from metropolitan Honour was widely acknowledged as Melbourne to his residence in nearby a leader in employment, industrial Magistrates’ Court country Victoria, to tend to his farming and workplace relations law and also activities. But he is a figure of some practised extensively in sports law. of Victoria contrast, for, despite his protestations His Honour appeared regularly at that he is a private and retiring first instance and in appeals in the His Honour individual, he is wonderful company Supreme Court of Victoria, the Federal in any social gathering, possessed of a Court and the Fair Work Commission, Magistrate Robinson great sense of humour and always an as well as before the High Court, Bar Roll No 3717 interesting conversationalist, well- where he appeared in the landmark n 1 July 2014 the Governor versed in many fields. Patricks’ Waterfront Dispute and the in Council appointed Magistrate Robinson’s appointment CFMEU Dispute, among other cases. Gregory Stuart Robinson to brings significant commercial expertise Recently his Honour has acted in high the Magistrates’ Court of Victoria. to the Magistrates’ Court of Victoria, and profile industrial litigation involving OMagistrate Robinson, who read with is to be commended in all respects. All

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who know him congratulate him upon it, and extend their best wishes for his judicial career. DAVID BATT His Honour Magistrate Bourke Bar Roll No 3692

imothy Bourke was appointed to the Magistracy Vale on 21 October 2014. His Honour was educated at St Joseph’s College, Geelong finishing his HSC in 1986. Like his magistrate father Owen before him, his Honour Tbegan his legal career as a Clerk of Courts. His Honour then progressed to being a Registrar of the Magistrates’ Court, and thereafter was appointed as the first State Co- Ann Rosemary Shorten ordinating Registrar. His Honour also worked as a Deputy Bar Roll No 2402 Registrar of the County Court and a Deputy Prothonotary of the Supreme Court. r Ann Rosemary Shorten was a lifetime Whilst working at the Magistrates’ Court, his Honour learner. She was also a rarity for her completed his LLB from Deakin University part-time. In time: a woman from a working- class 2001, his Honour left the Court and completed his Articles at family, who began her adult life in the 1950s in Wilmoth Field Warne, where he worked for a further three Dpursuit of education and professional life ahead of years across the general commercial law field. In 2004, his marriage and family. Honour signed the Bar Roll having read with Justin O’Bryan, Ann McGrath matriculated and was awarded himself with a wide commercial law practice. a teacher’s scholarship to study teaching at the Over his 10 ½ years at the Bar, his Honour appeared in both University of Melbourne. Graduating with an arts criminal and civil matters across all courts. It is little known degree and a diploma of education, she began that his Honour never lost in the High Court of Australia. Since teaching in country Victoria. When she met her 2010, he has sat as a Tribunal member of the VFL Tribunal. husband, William Robert Shorten, Ann was in Some members may not know that his Honour played her early 30s and had established a career as Australian Rules Football for the Geelong Football Club. an educator, teaching university-level history in He is known to, when discussing his football career, point out Townsville. The couple met on a cruise to Japan – that between he and his brother Damian, they played in 129 Bill senior was the ship’s second engineer. After senior games, two State games, accumulated 44 Brownlow the church wedding, they celebrated their nuptials votes and captained Geelong for three seasons. The truth is on the ship. Less than two years later, the couple that during the heydays of 1989 and 1990, his Honour won welcomed their twin sons, Bill and Rob. three games and lost two! Despite this short career, no one Teaching and learning remained constants in would deny his Honour the claim of playing next to Ablett Snr, Ann’s life, as she earned first a Bachelor’s degree Couch, Bews, Stoneham, Hocking and Brownless etc.! and then a Master’s degree in education. While Having been traded to North Melbourne by then Geelong raising her boys, Ann completed a doctorate in coach Malcolm Blight at the end of 1991, his Honour was cut education and rose to the rank of senior lecturer. from North Melbourne’s list in March 1992. On 11 March 1992, Professor Alan Gregory AM, former Sub-Dean and the Canberra Times in an article headed ‘Clubs dump key now Adjunct Professor in the Monash Faculty of players’, cast the delisting this way “…and North Melbourne Education, described Ann as “a brilliant scholar”, ruckman Tim Bourke were among notable Australian Football “an outstanding historian”, and one who “did much League players dumped yesterday by their clubs…” That is in the faculty to further the cause of women”. indeed high praise for a player of five senior games! Ever the learner, Ann Shorten later undertook Outside of work, his Honour is the consummate family man a law degree at Monash University. In 1985, the who enjoys spending quality time with his wife Jo and their year her sons both began their law degrees, she three children, and living a humble life in the true Edmund graduated with first class honours in law, winning Rice tradition. the Supreme Court Prize and the Flos Greig Combined with his many and varied roles in the courts over Memorial Prize. the years and his wide experience in practice at the Bar, his Ann took the Leo Cussen practical training Honour’s is a popular and welcome appointment. His Honour course and began the Bar Readers’ course in can only be regarded as an eminently qualified and suitable September 1989. After reading with the late addition to the Magistrates’ Court of Victoria. Michael Kiernan, she practised at the Bar for six PAUL ADAMI years. With Professor Ian Ramsay, she co-authored

80 VBN VBN 81 the leading Butterworths text, lot of teachers and they give a lot back.” “whose mystic vision rejected the Education & the Law (1996). Ann’s dedication to education modern technological world in favour Ann’s death in April this year came and law will long be remembered. of the tribes people of Africa and the back of the lift back as a shock to the family. Bill, now In 2009, the Australian & New Arabian deserts”.1 leader of the Federal Opposition, Zealand Education Law Association, Howard regularly visited the and his brother, Rob, a banker turned in which Ann had been a driving Serengeti Plain in North Tanzania financial consultant, delivered a joint force, established the annual Ann and South Western Kenya, and emotional eulogy, honouring their Shorten Doctoral Award for the best Ethiopia. The Serengeti hosts the mother’s life-long commitment to thesis in education law research. largest mammal migration in the the pursuit of education. Bill said In 2012, Ann was honoured as the world and Howard waxed lyrical in his mother’s life was an inspiration, first Life Member of the Association. recounting these migrating animals that she had been a giant influence The honour reflects with striking crossing the Grumeti and Mara on who he is and how he values brilliance the life Ann led, a life Rivers, filled with hungry crocodiles. education. committed to her own learning and The passion of Howard’s sporting “She taught me that teaching the education of others. life was as a yachtsman. He was a shouldn’t be denigrated; that we ask a ANNETTE CHARAK member of the Royal Melbourne Yacht Squadron for many years Howard William Fox QC before 1974, when he joined the Royal Yacht Club of Victoria. He Bar Roll No 586 sailed a number of yachts and, as ver the years, the Victorian Howard was a great advocate with was said by a past Commodore of the Bar has been home to many a deep mellifluous cultured voice, a RYCV, “Howard’s yachts were always singular characters. Howard master in adducing evidence in chief, well maintained and respected for William Fox QC was certainly one of a coruscating cross-examiner, and a their racing performances, as Howard Othem. brilliant persuader of judge or jury. was for his ability as a yachtsman”. Howard signed the Roll of counsel Howard was elected to the Bar Howard sailed in a number of in 1958, took Silk in 1976, retired on 16 Council in September 1987 and the famous Sydney to Hobart and April 2004, and died on 16 April 2014. was Chairman and member of Melbourne to Hobart yacht races. Howard was born in 1925 and the Ethics Committee from 1987 As proficient as he was on the lived in Melbourne until he moved to 1989. Howard was one of the water, Howard, in earlier years, was to Adelaide with his parents. He was Bar appointees to the Victorian also an enthusiastic and competent educated at Prince Alfred College Legal Aid Committee from 1979 glider pilot. and obtained from the University to 1981, covering the extended On his retirement, Howard settled of Melbourne a Degree in Arts transition of legal aid from that in Kerang to enjoy the confluence majoring in Classics. His consummate Committee to the Victorian Legal of the rivers and many lakes of the knowledge of, and devotion to, the Aid Commission. He also served on region, making it the destination of Classics remained with Howard the Bar Supreme Court Practice and thousands of water birds. all his life. Procedure Committee, Contingencies He was a remarkable personality, Howard lived in London between Fees Committee and Workers a bon vivant and brilliant 1948 and 1954. He supported Compensation Committee. conversationalist, who in earlier himself by working as a teacher and He read widely and was fluent in times would have been seen as immersed himself in the social and Latin, Greek and modern languages, a “Renaissance man”: cultured, artistic life of London and Europe. including Swahili. knowledgeable, educated and Howard graduated with an LLB Howard had a great knowledge proficient in a wide range of fields. from the University of Melbourne and love of music, unsurprisingly He is sadly missed. in 1958 and read with Nubert because one brother was a member Howard is survived by a former wife, Stabey (later a County Court Judge). of the Royal Philharmonic Orchestra, Jennifer, whose solicitude and care He supported himself through another brother was with the sustained Howard in his later years. law school while working as a D’Oyly Carte and two more siblings Howard’s children of his marriage to proofreader at The Argus. played for many years with leading Lois Weste (deceased), Josephine and Howard was essentially a common orchestras. Matthew, of whom he was intensely lawyer. He practised extensively He travelled widely in England proud, also survive him. in the workers’ compensation and Europe, and most of all in Africa PETER O’CALLAGHAN jurisdiction, and his predominant and Ethiopia. There Howard met 1 Michael Asher, “Obituary: Sir William practice was industrial and motor and became a friend of Sir Wilfred Thesiger”, The Guardian, 28 August 2003. vehicle negligence cases. Thesiger, the explorer and author,

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Upon admission, she was employed Kate at his side. He was diagnosed by Gadens and placed in the banking with multiple myeloma in February and finance group. In that role she got 2013. He was only 42 years of age. very early exposure to litigation, and Adrian lived in Macedon, with Kate she loved it. She quickly resolved to sit and their three children Samuel, the Bar’s entrance exam. She passed it Matilda (Tilly) and Ainslie. With on her first attempt. Mount Macedon as the backdrop to Rebecca came to the Bar in his home, he enjoyed rural life and September 2013 and read with Sam had many community interests. Hay. She signed the Bar Roll on her Adrian was a member of the 26th birthday, securing a place on Victorian Bar from May 2005, having Gordon and Jackson’s list. read with Robert Williams. He was Rebecca very quickly established educated at Melbourne High School, Rebecca Thomas a general commercial practice. She and later graduated from Monash was briefed by Gadens and started to University in Arts/Law. He was Bar Roll No 4639 build a stable of other solicitors who admitted to practise in 2002 after were impressed by her work ethic serving articles with David Moody at ebecca Lauren Thomas died and the depth of her legal analysis. Slater and Gordon. on 5 July 2014. She was only In the short time she was a barrister, At Melbourne High School Adrian 26 years old. she appeared unled in the Supreme had an eclectic range of interests, Rebecca was born in Kuala Lumpur, R Court on numerous occasions and, in including acting and debating. He Malaysia, on 24 October 1987. February 2014, as junior counsel in was particularly interested in all She completed the International the Court of Appeal. things aeronautical and was a keen Baccalaureate at the International Rebecca had a mischievous wit member of the Air Cadets. After School in Kuala Lumpur in 2005. Her and was warm, kind and boundlessly school, he gave serious thought to father, Tommy Thomas, is admitted generous. She was genuinely becoming a professional actor and to as a barrister of the Middle Temple in interested in those around her and enrolling at the National Institute for London and is a prominent advocate quickly became a unifying presence Dramatic Arts, however, he decided in Malaysia. As her father had done in her chambers group, who feel her upon a military career and enrolled before her, Rebecca initially decided absence keenly. She was, to the last, a at the Military Academy, Duntroon, to study in England, enrolling in a contributor. She will be sorely missed for Army Officer training. In later politics course at the University of by Tommy, Sherry, her younger sisters years he maintained his interest in Warwick. However, she did not like Hannah and Sarah, her loving partner acting through his membership of the the course (nor the cold) and soon Seamus, and by her friends and Players Group in Macedon. returned home to arrange, instead, colleagues at the Bar and at Gadens. Military training was followed to follow in the footsteps of her SAM HAY by his studies at Monash (full mother Sherry, who had studied time), whilst continuing to work as an undergraduate in Melbourne. as a residential care worker with In 2007, Rebecca enrolled in law at Intellectual Disability Services. His the University of Melbourne, taking time at Monash saw him represent up residence in Ormond College. Monash in an international moot There, Rebecca met her partner, held in Vienna, and on exchange at Seamus Wiltshire, with whom Washington University where he she lived in St Kilda at the time acted as junior counsel in felony of her death. jury trials. Rebecca began work at Gadens After graduating from Monash as a law clerk in February 2011. In and serving articles, he worked as a her last semester she worked two solicitor with Gill, Kane and Brophy to three days per week. She also and also as a duty lawyer in the wrote and acted in the 2011 Monash Sunshine office of Victoria Legal Aid, Law Comedy Revue. Despite these Adrian Michael Munro where he was very well regarded. He commitments, Rebecca graduated Bar Roll No. 3793 met his partner Kate at that office. with an honours degree. Adrian also served as ministerial After graduating from the Leo n 27 July 2014, Adrian Munro adviser to the Minister for Tourism Cussen Centre for Law, Rebecca was died at the Alfred Hospital, and Major Events in the State admitted to practice in February 2012. Melbourne, with his partner O ALP government. 82 VBN VBN 83 After commencing at the Victoria Ian Dennis McIvor he was able to finance himself by Bar Adrian typically worked in areas his winnings on the dogs. But, then, where he believed he could make Bar Roll No 1060 the money ran out. By this time, back of the lift back a difference to people’s lives. He Bob Jolly was working for Conzinc n 12 August 2014, Ian Dennis accepted briefs in criminal matters Riotinto of Australia. Within a week, McIvor died after a long and was regularly briefed by the OPP. Ian was working in Bougainville. He illness. He was 73. In later years he worked extensively came back to Melbourne in 1967 and Ian was admitted to practice on 1 in the Children’s Court where the resumed full time studies in the Law OMay 1973. On 6 June 1973, he began Department of Human Services School. reading with Frank Vincent and, on frequently briefed him. Adrian Ian was quite a bit older than other 28 June 1973, he signed the Bar Roll. appeared in the Court of Appeal, undergraduates, of whom I was one. He remained in active practice until 1 without a leader and, memorably, He was naturally a man of the Left June 2010, when he transferred to the began his address by knocking an and became chairman of Students List of Retired Counsel. entire jug of water over his brief. He for a Democratic Society. We debated Ian was born in 1940. His father bravely pressed on while mopping each other frequently. He had a had been in the militia, but joined madly, and won the day for his client. sharp eye for the forces of darkness the regular army as soon as war He was a firm believer in solid wherever they lurked. He would broke out. He served in the Western preparation, and had an indefatigable remind me of who it was that had Desert. After the war he remained determination to do his best no persecuted Galileo, who it was that with his army and was later posted matter what his brief. had split the Labor Party, what a pack to Balcombe Barracks at Mount It was typical of Adrian that he of ratbags occupied Princes Park Martha. In 1958, he was killed faced any set back with good humour at Carlton and what terrible things leaving Ian’s mother, of whom and without complaint. His attitude they had done over the years to the Ian was very proud, to raise six was particularly evident during good people at Brunswick Street. We children. the course of his illness. Despite became close friends. Ian’s last school was Frankston considerable physical difficulty, He read everything and read High School. He got to 15 and he continued to accept briefs up widely. He knew all of Dickens and left: only “bludgers” (he recalled) until the last weeks of his life and all about Dickens. After he moved continued at school after to give up his precious time in the from Fitzroy to the Dandenongs, Intermediate. He went to work with Bar readers’ course as an instructor. he caught the train into chambers TAA and, after seven years, sat When asked how he was able to each day from Ferntree Gully, his for an exam that would give him remain so calm and focused in the head deep in some book. Ian was permanence in the public service. It face of his illness, he would smile and a great conversationalist and an involved doing an IQ test. At the time, simply remark that, “it is what it is”. inveterate controversialist. He his boss was Bob Jolly who was a Adrian was universally well was deeply compassionate, above solicitor at TAA. It seems that Ian was regarded by his colleagues, amongst all for the workers and the battlers the only person to complete the test whom he had a solid reputation for and the sufferers. and to get all the answers right. This fair dealing and genuine concern. After doing some workers time the boot was on the other foot: His well-honed understanding compensation and some family law, Jolly accused him of being a “bludger” of the duties of counsel, and he eventually worked exclusively and told him to go to Taylors and willingness to help others with in crime. He was defence counsel enrol in five Leaving subjects. Jolly advice made him popular. by preference, but did his duty and told him that Taylors would say that Adrian was also a dedicated would prosecute when asked. He was he couldn’t do it. “Just ignore them. supporter of the Richmond Football involved in some noteworthy cases Next year you must enrol in four Club. It says something of the and some of the stories which are Matric subjects.” Jolly was right: Ian immense regard in which he was told by his contemporaries could be got all his Leaving subjects and, then, held by friends, colleagues and family hair-raising. got first class honours in each of his that, at his funeral, even Collingwood He was unwell for a long time Matric subjects. supporters sang the Richmond before he died. He dealt with his He enrolled in Commerce at Football Club song to the rafters. increasing weakness with nobility Melbourne University, and hated Adrian’s partner Kate and their and fortitude. He enriched the lives it. He failed his first year. He was three children survive him. He will of all who knew him. His friends will encouraged to try Law as the Latin be missed by all those who loved and miss him greatly. requirement had been dropped. His knew him. Farewell dear Ian. lecturers included Arthur Turner and HIS FRIENDS JOSEPH SANTAMARIA John Feltham. In his second year,

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and marble chess board floors. and patent leather shoes, and carried Later, we worked on the celebrated a briefcase with an umbrella and patent case for Astra Pharmaceuticals newspaper in it, even when climbing over five years. We travelled together Ayers Rock. to Sweden, which, although not his I can see John now, raising his glass favourite destination, was close of Campari and soda, as he did on the enough to London to be acceptable. eve of a hearing, saying “Confusion to John was an orthodox lawyer, the enemy”! applying the law in a sensible way, Farewell Dearest John. It was an leading Astra to prevail in the High honour and a privilege to know you. Court. His performance in the High There will never be anyone like you. Court was magnificent. KATRINA HOWARD In a case we did for Merck, the client considered John the best cross- His Honour Judge Fagan examiner he had seen in any country Bar Roll No 670 Dr John Emmerson QC in the world. John was a teacher and companion udge Warren Fagan’s career Bar Roll No 1246 to many. In more recent years, I was not only distinguished by turned to him for answers to problems his service and achievements efore I came to the Bar, that eluded me. He was very generous inJ the law. Following his matriculation I had heard of the brilliant with his time. By then, he had a new at the age of 15 he became a barber. He Dr John McLaren sanctuary in Park Road, South Yarra, was named Apprentice of the Year and Emmerson QC, physicist, Oxford with lovely gardens and libraries, a received his award from the Lieutenant Bscholar (New College) and barrister perfect place for him to ponder, as Governor, Sir Charles Lowe. (since 1976). A giant in intellectual well as at level 31, Aickin Chambers. Years later, in 2012, in recognition property law; a pioneer for scientists John was truly the cleverest, most of many years as head of Alliance to become lawyers. logical, humorous, entertaining and Française Melbourne and of the When I was first briefed as John’s delightful man I have ever known. Australian Federation of Alliances junior in a biotech case, more than John epitomized the best qualities Françaises, Judge Fagan was made 20 years ago, I was both excited and of the Bar. He was a gifted writer of a Chevalier in the Order of the terrified. I sat in his room in Latham legal argument, simple and elegant; Légion d’Honneur. Chambers, in a circle with others, my his oral addresses were perfect. The breadth of Judge Fagan’s books teetering on my lap, in awe. A He showed that intellectual rigour legal practice was remarkable. question was asked and John put his makes a great barrister. He never ran Administrative law was his specialty hands together, as if in prayer, then points he did not believe in. He was but his practice extended to gently tapped his fingers together. We always a perfect gentleman, treating planning and local government and held our breath until he cleared his everyone with respect and kindness environmental law; criminal law; throat and answered, with simplicity and regarded women as equals in our commercial law and common law, and clarity. He was never wrong. profession. He was a humble man, including personal injuries. One of his The first time I was alone with him, never arrogant, rude or aggressive. clients won a then record damages of he looked at me curiously and asked John loved life. He loved literature £5,000 in a breach of promise case. me a question to which I (mistakenly) and opera. He loved to play bridge. According to his friend Peter thought I gave a reasonable answer. He loved to travel to London to visit Heerey AM QC, Warren was a leader He then fixed on me with a devilish his family. He loved lunches with in the arcane sub-sub-genre of Health glint in his eyes, asking a long series colleagues. He loved to walk. Act prosecutions. The Act provided of questions, until I saw the correct As Ralph Waldo Emerson (after that inspectors should take a sample answer for myself. His relentless logic whom John was affectionately called of the suspect product, divide it taught me to think more clearly. From Waldo) said: into three parts, give one part to the that day on, I was his biggest fan. “Few people know how to take shopkeeper, send another part off for The next case we worked on a walk. The qualifications are analysis and keep the third part. With together was the Oxford University endurance, plain clothes, old shoes, his slow throaty drawl, Warren was Press trademark case – very fitting, an eye for nature, good humor, vast able to expose imperfections in the as OUP published his own book on curiosity, good speech, good silence performance of this complex ritual. nuclear physics. I visited John at his and nothing too much”. As a result, many a purveyor of dodgy Toorak flat, where I learned of his This describes John perfectly – but mince was able to walk free. passion for rare leather-bound books he always wore a suit, tie, hat, overcoat Long before the creation of the

84 VBN VBN 85 VCAT empire, Warren appeared jurisdiction and residing on the 8th on the workers’ side. He went to frequently before the Town Planning floor of ODC East. So did Tom Mees. the Bar, on Foley’s list, where he Appeals Tribunal, along with such There was a difference. When I was remained for some 31 years. When I back of the lift back notables as Garth Buckner QC, Tony nervously fumbling through my first first encountered Tom, he was deep Hooper QC and the inventor of the briefs, Tom was already a giant of into motorcycles, even competing written submission, Kenneth H the jurisdiction. Even I can say that in some races. Those were the Gifford QC. Tom had the untidiest chambers days when he was a ferociously Judge Fagan was number 670 on known to man. In his room were intimidating opponent in the the Roll of Counsel. He had five bits of old motorcycles, form corridors and hearing rooms. readers and served on numerous Bar, guides, rubbish of all description Then, virtually overnight, he Court and Government committees. and approximately ten thousand switched to racehorses, a passion The “Fagan Report”, prepared during respondents’ briefs scattered on which would remain with him for his tenure as chair of a Criminal Bar the floor. Tom’s chambers may have the rest of his life. The first winner Association committee, led to major been disorganised, but his mind he owned was Breadeater, which reforms, including the establishment was the opposite. His knowledge of he raced with Lil Cooney, wife of of an independent Criminal Trials compensation law was encyclopaedic. Barney. Later he and Lyn Boyes Listing Directorate. And if you could find your way SC raced Diwali, a grand national Judge Fagan practised for more into his room, he was always only winner and one of our greatest than 20 years (nearly six of those too happy to give his advice in the steeplechasers. Ultimately Tom years as Silk). He then served as a best tradition of the Bar. However, moved on to breeding and training, judge of the County Court for more once he entered the precincts of hobbies which he pursued with than 20 years, in every area of the the compensation board, it was a great passion. Strangely, when Tom Court’s jurisdiction, including in different matter. Mees is an Irish changed from racing motorbikes long and complex criminal trials. As name, and all the pugilism of the to horses, he mellowed somewhat. Deputy President, then President, of fighting Irish would emerge. The He became, if anything, an even the Administrative Appeals Tribunal, niceties of the law would be lost more formidable foe. His knowledge Judge Fagan contributed to the in Tom’s love of a fight. Some of and court-craft, always powerful, development of the law of freedom of his battles with the leader of the took over from the fireworks. Tom information. compensation bar, Ted Hill, were of Mees retired from active practice Vale, Judge Fagan. epic proportions. in 1994. I doubt if he ever came VBN to terms with the mysteries of the om Mees was a flight Accident Compensation Act. He lieutenant in the RAAF Thomas Lee Mees was a true legend of the workers’ when he commenced his compensation jurisdiction. His Bar Roll No 687 law degree at the University of name will always be etched TMelbourne. He did his articles spent many years of my indelibly in the memories of all who with Maurice Blackburn & Co, barristerial life practising in practised “compo” in its golden era. probably the last time he acted I the workers’ compensation JOHN BOWMAN Gonged!

Sydney Peace Prize to the law, to the development of the legal profession, particularly through Julian Burnside AO QC has been Queen’s Birthday Honours 2014 the implementation of uniform national selected to receive the 2014 Sydney The Hon Philip Damien Cummins AM rules of conduct, and to the community Peace Prize. The prize was awarded at For significant service to the judiciary of New South Wales. the 2014 City of Sydney Peace Prize and to the law, to criminal justice and Lecture, to be given by Julian Burnside legal reform, to education, and to Other Awards at Sydney Town Hall on Wednesday, 5 professional associations. Congratulations to Sharon Burchell who November. was awarded the Junior Counsel Award The Hon Chief Justice Thomas Frederick in the Lawyers Weekly Women in Law Bathurst AC Award on Friday, 17 October. For eminent service to the judiciary and

86 VBN VBN 87 back of the lift Victorian Bar readers september 2014

back row: James Anderson, Myles Tehan, Luke Howson, Paul Smallwood, Robert Boadle, Gerard O’Shea, Brian Kennedy, Matthew Minucci, Rahmin de Kretser, Martin Garrett, Jonathan Miller middle row: Wendy Pollock, Catherine Dermody, Craig Sidebottom, Timothy Maxwell, Lachlan Allan, Elenie Nikou, Ellen Grant, Natalie Hickey, Michael Freedman, Brett O’Sullivan, Julia Watson, Lucy Line, Jessica Clark, Rachel Chrapot seated: Ben Gauntlett, Bridgette Kildea, Morgan Brown, Georgina Connelly, Steven Sinen, Rachael Avuti, Evelyn Tadros, Brooke Hutchins, Carmelina Spitaleri, Holly Renwick front row: Christopher Tran, Justin Hooper, Adam Baker, Daniel Nguyen, Raymond Ternes

Victorian Bar council 2014-2015

standing row: Matthew Hooper, Michael Wheelahan QC, Michelle Quigley QC, Sam Hay, Michelle Sharpe, Daniel Crennan (Assistant Honorary Treasurer), Emma Peppler, Barbara Myers (Assistant Honorary Secretary), Stewart Maiden, Elizabeth McKinnon, Karen Argiropoulos, Paul Panayi (Honorary Secretary), Christopher Winneke, Suzanne Kirton, Daniel Bongiorno seated l-r: Matthew Collins QC, Samantha Marks QC, David O’Callaghan QC (Junior Vice-Chairman), Jim Peters QC (Chairman), Paul Anastassiou QC (Senior Vice-Chairman), Jennifer Batrouney QC (Honorary Treasurer), Greg Lyon QC absent: Paul Holdenson QC

86 VBN VBN 87 Quarterly Counsel

Captain Jack Batten

ANNETTE CHARAK & ANDREW DONALD

hen Jack Batten For 40 years, Jack remained times of the Blacks, making the Batten was admitted the captain of the last Blacks’ A name synonymous with University to the legal Grade premiership team, which Blacks, and reinforcing Jack’s close profession in assumed legendary status among the ties to the club. On most Saturdays 1975, he was cognoscenti at the University Oval. for the last ten or so winters Jack has still glowing This year, the Blacks’ A Grade been seen roaming numerous football from the 1974 football season. That premiership drought was broken grounds around Melbourne proffering year, the University Blacks team when they returned to the top of the sage (and generally unambiguous) was full of young stars. As the VAFA Association tree with a hard-fought advice to coaches and supporters alike. season progressed, the young team win over a determined Collegians’ The Bar has been another constant Wgrew in cheek and stature, luckily team. After the final siren sounded, in Jack’s life. For almost 35 of the finishing fourth (in a final four). Jack presented the A-Grade Blacks’ 40 years in the wilderness, Jack Batten, a dashing half forward premiership medals to the players Jack has been a member of our Bar. flanker, captained the team. Riding in the Blacks’ team. Like his father That tradition too has been passed on a wave of supreme confidence, 40 years ago, Nick “Ninja” Batten to the next generation, with his the Blacks defeated St Bernards starred in the Blacks’ 2014 win, which daughter, Fiona Batten, signing the and Coburg to set up a grand final was a cause of great satisfaction for roll in 2012. against the then powerhouse of Jack. Nick, who is a law graduate No doubt, a future generation the competition, Ormond. The working at Minter Ellison, is not the of Battens will rise up to further Blacks prevented Ormond from only next generation Batten to play entrench the Batten name at the taking a fourth consecutive A for the Blacks. Nick and his brothers, Bar, but more importantly, lead the Grade flag, recording a stirring David and Luke, have all been strong Blacks again to the Promised Land victory by 14 points. contributors to the recent life and of premiership glory.

Jack Batten with his sons Luke, Nick and David. photos courtesy of jette baggs-sargood courtesy photos

88 VBN

Boilerplate A BIT ABOUT WORDS boilerplate

Scrabble

JULIAN BURNSIDE

ummer holidays open the way to all sorts sold, and versions of it exist in 29 different languages. of pastimes. Scrabble is a favourite family Since the key objective of Scrabble is to get the best game, and it now infests the internet in the score from even the most unpromising letters, the form of a game called Words with Friends. dedicated player naturally resorts to some very odd It is a seductive little app for the iPad words. For a person who enjoys words, the only pleasure which looks like Scrabble, but has its bonus in this is to discover for the first time some of the weirdest squares arranged differently, presumably fauna in the jungle of English. for patent or copyright reasons. The Collins Scrabble Dictionary is the instrument by Having been lured into the torments of both games, I which this dubious activity is put to the test. It presents was powerfully reminded of two things. First, Scrabble itself as authoritative, and conscientiously displays Shas nothing to do with an interest in words, any more the trademark TM symbol every time it uses the word than Sudoku is about mathematics. Scrabble is all about ScrabbleTM. It contains every word said to be a legitimate tactics and point-scoring; same for Words with Friends. Scrabble word, and gives very brief definitions. The second thing is that English has an astounding So, Amorance is defined as the “condition of being in array of obscure words. Most people with an interest love”. OED 2 does not recognise the word. Neither does in language know this, but we are rarely reminded of Webster’s 3rd edition. The 3rd edition of Webster is the the fact so forcefully as when pitted against a Scrabble most interesting, but was highly controversial when it opponent whose only objective is to guess their way was published in 1961 because it moved from prescriptive through every possible permutation of their letters. to descriptive. Earlier editions had declared what words Scrabble was invented in 1938 by an American meant; the 3rd edition instead acknowledged the meaning architect, Alfred Butts. Ten years later James Brunot attributed to words by actual people, nodding to the bought the rights to the game in exchange for a royalty on essentially democratic nature of language. From the 3rd every copy sold. Butts (or his estate) must have done well edition, Webster accepted that words mean what we agree

photograph by guy shield/the slattery media group slattery guy shield/the by photograph out of it: about 150 million copies of the game have been them to mean.

90 VBN VBN 91 boilerplate Apparently the Collins people have Frug is a word I was blissfully innocent of, and taken this process one stage further, likewise, fugle. to the point of acknowledging words which no one uses, no one recognises learn that the Collins permits an asshole), bugger and bloody without and which neither the Oxford nor the apparent plural: oots. That is odd comment or criticism, it baulks at Webster has come across, but which because it is not a noun, and not even shit as “taboo”, and likewise a few are a useful expedient for Scrabble the verb ought with some idiomatic other easily predictable words. This fanatics. conjugation. It is a misspelling of delicacy extends to forfex, which it Camisa is defined as “a smock”, ort, which is a variant of ord, which defines modestly as “a pair of pincers, which actually makes sense (cf is an obsolete word meaning either esp the terminal appendages of an French chemise) and is recognised by “beginning”, or “the pointy end of earwig”. OED 2 is a little less oblique: Webster 3rd. But OED 2 again stands something”. Sadly, the Collins does “A pair of anal organs, which open aloof: the nearest hit is camisado, not take us on this ramble through or shut transversely, and cross each which it defines as “A night attack; obsolete Scottish arcana: oots cross- other”. While both the entomological originally one in which the attacking refers to oot, which cross-refers to and etymological enlightenment is party wore shirts over their armour out, which it defines as “denoting interesting, for a Scrabble player it is as a means of mutual recognition”, movement or distance away from” – a terrific word because F is worth 4 which is obviously connected to the standard preposition. Now it is points and X is worth 8 points. camisa, and is quite useful to know, true that the Collins confines itself And this is the problem with because the added do means an extra to one volume, so it is necessarily Scrabble: it is all too easy to lose three points. spartan in its explanations. But its interest in what the words mean Daud is shown in Collins and (indirect) definition of oots is not only and become concerned principally also in OED 2 and Webster 3rd. confusing, it is plainly wrong: I never for their value. A player interested But Collins defines it as “a lump before met a preposition which took in words will strive to recognise or chunk of something”, whereas a plural. available words in the tiles on their OED 2 and Webster 3rd both define Frug is a word I was blissfully rack, and feel pleased to discover it as a dialectical variant of dad. innocent of, and likewise fugle. I outside (8) or aunties (7) or suited As a father, I was troubled by the probably should have known frug: (7) in their jumble of letters. How thought that I might be described it is a dance which had a brief disappointing then that short words as a lump or chunk. But both OED appearance in the 1960s, but dancing like zax (19 – variant of sax: a tool for 2 and Webster 3rd tell you that the was not really my thing. To fugle is to cutting slates) or coxy (16 – variant dad which can also be rendered act the part of the fugleman: “A soldier of cocksy: self-important, saucy) or as daud is a verb, and means “to especially expert and well drilled, zoa (12 – plural of zoon: an organism shake with knocking or beating”. formerly placed in front of a regiment scientifically regarded as a complete Neither of my preferred dictionaries or company as an example or model animal) or oyez (16; at least we all acknowledges daud as a noun. to the others in their exercises”. know that one) are worth much more Ervil is defined as “a type of vetch”. Clearly useful words, at least for a than the cleverly selected words. And Vetch is defined as “a climbing person playing Scrabble. Nearby, the when the skilled player manages to plant with a beanlike fruit used as Collins has fugly. OED 2 recognises place high-value letters on a double- fodder”. OED2 does not recognise this also, and helpfully explains that or triple-letter square, the difference ervil, although its entry for vetch it was originally Australian military is magnified. agrees with the Collins. And for slang and means, as most of us know, I plan to avoid the lure of Scrabble devotees of Scrabble, vetchy is also “a very ugly person”. The Collins this summer. I no longer want to legitimate: “Composed of, abounding agrees, but editorialises: “offensive spend idle time being seduced into in, vetches”. word for very ugly”. Webster 3rd a frenzy of debasing the language Whoever uses jeelie, or maungy? adopts a frosty silence: it does not by trying to maximise the score. Too Certainly not the compilers of OED recognise fugly at all. soon, and not surprisingly, the score 2 or Webster. And who recalls mackle Collins makes arch observations for each word becomes the object of (a blur in printing)? Who knew that about some words, noting several the game. an omov is a system of “one person, words as “taboo words” but Scrabble is not a game for people one vote”? Only in desperation nevertheless allowing them to be keen on words: it is a game for is it necessary to know that oot is played. In this regard, its standards people keen on winning. That is Scottish dialectical for out – not the look a little old-fashioned (in contrast probably why so many lawyers preposition out, but the obsolete to its racy willingness to allow all love it. But don’t play it with the form of ought/aught. And even if manner of doubtful words into 20-volume Oxford at your elbow: you knew that, it is astonishing to play). While it defines arsehole (and it is far too limited.

90 VBN VBN 91 RED BAG BLUE BAG boilerplate Red Bag

ear Sage Silk, I need your advice urgently. A firm whose briefs I’d love to receive just offered me a case in an area of law I know nothing about, Din a court where I have never appeared. Should I say yes or no? The firm is one of those Collins Street firms who actually send you a folder with a memorandum in it and all the documents indexed, rather than that email attaching a backsheet spelling my name wrong and stating the wrong clerk, soon to be followed by a slow and incomplete drip-feed of emailed PDF attachments, none of which contain the instructions I need. I must admit that I received this brief after meeting the solicitor at a networking event where a silk introduced me to the solicitor and told her she should brief me. If I say no, that great firm might not ask me again. Plus, I really need the fees to pay my chambers rent and my mortgage. My partner was made redundant recently and I’m the breadwinner for my household at the moment. Something just settled last week that was about to go to trial and I’m a bit short of work. This brief looks like one that will run for months and the client can afford to pay my full rate. If I say yes, I fear that I won’t know what I don’t know, and I might act negligently or look stupid. If I mess up the case, the client could be obliged to pay $1 million in damages. If I do say yes, who could I ask to help me? If I ask other barristers how to do it, they might realise the extent of my ignorance. What should I do?

Yours sincerely, A barrister has a particular set of skills among which are Hungry Junior Barrister the following: being able to stay up late at night reading a new brief; accepting challenges presented by novel cases; Blue Bag and, applying research skills to gain an understanding of an unfamiliar area of law. When in doubt, read a textbook. After all, isn’t that what law school taught you to do? ear Hungry Junior Barrister, Furthermore, you can always ask another counsel for You will continue to remain hungry and junior advice and guidance. You will find that the “open door” if you allow fear of the unknown to prevent policy of the Bar is there to fill any gaps in your knowledge. you from jumping into the deep end. I disagree with your You have both a mentor and a senior mentor; they can be Dpremise; there is no such thing as a discrete “area of law” your first reference points. Thereafter, there are over a about which you know nothing. You will come to learn thousand barristers at the Victorian Bar who are able to (and thereby become a sage barrister) that law is organic provide you with assistance. and cannot be compartmentalised. Practice at the bar for a Part of the joy of being a barrister is that you will not young barrister is a journey: enjoy the journey by looking know where your practice will lead you. Do not become out of the window and stopping at all of the delightful places fearful of the challenge. Your legal skill in research and along the way to the gaining of wisdom. advocacy will enable you to act across a wide field of illustration courtesy of guy shield/the slattery media group slattery of guy shield/the courtesy illustration

92 VBN VBN 93 boilerplate

CABS ON THE RANK

FIRST CAB LAST CAB Peter O’Callaghan QC Georgia Berlic Bar Roll No. 622 Bar Roll No. 4687 (signed the Bar Roll 1 February 1961) (signed the Bar Roll 1 May 2014) Five words my mum would use Five words my mum would use to describe me are: to describe me are: Peter is a good boy. Brilliant, loyal, tenacious, vivacious, and charismatic. I am The person (real or fictional) an only child so there was a bit of who most inspired my decision a “cult of the personality”-type to come to the Bar is: thing growing up. Dr Mark O’Brien of Horsham who not only inspired but coerced me The person (real or fictional) into studying law. who most inspired my decision to come to the Bar is: A case I studied at law school Judge Kennedy, who inspired and will never forget is: me to come to the Bar young Hibbert v McKiernan (1948) 1 All ER and taught me the value of early 860 because it dealt with a subject starts. then and now dear to my heart, lost or abandoned golf balls. A case I studied at law school and will never forget is: The biggest advantage/ Al-Kateb v Godwin & Ors (2004) disadvantage of life as a 219 CLR 562 because of Gleeson barrister is: CJ’s judgment. Biggest advantage – Many. Disadvantage – None. The biggest advantage/ disadvantage of life as a If I weren’t a barrister I would be: barrister is: Retired. The biggest advantage is Paper or electronic court books? collegiality. 50 plus years with paper, but I The biggest disadvantage is the now go with the electronic flow. potential for isolation. Best coffee in the legal precinct? If I weren’t a barrister I would practice areas. Avoid being type-cast and 18th Floor of West, which is the be: specialising too early in your practice. Take as only place I drink coffee in the A writer. your model that legend of the bar, Jeffrey Sher precinct. QC, who whilst practising, was able to apply Paper or electronic court books? his legal research, advocacy, instinct and other The best decision I ever made Electronic. skills to apparently disparate areas such as was: Best coffee in the legal precinct? complex commercial litigation, crime, family and To have my late wife Jennifer Patricia. constitutional law. agree to marry me. On a more mundane level, don’t worry about The best decision I ever made Martha Costello or Clive being sued for negligence; remember that we was … Reader? barristers have a wide immunity from suit. Coming to the Bar. Neither appeals. I only watched So enjoy the challenge, earn the quids, pay the Silk long enough to see its lack Martha Costello or Clive mortgage, gain a reputation as a barrister able to of authenticity, credibility and Reader? take on cases across a wide field and enjoy the reality. I prefer watching replays Martha Costello because of her journey. of Rumpole (generally authentic) crisp white shirts and high ideals. Yours Sincerely, and “Wanda” (very funny). Very Sage Silk

92 VBN VBN 93 THE MUSIC COLUMN boilerplate Let’s get digital

ED HEEREY

haos is good – if you can My Sunday morning fave control it. is Chicago’s Great Golden Such is the predicament Grooves Classic R&B – Cof today’s music lover. Any something like a Gold104 for teenager with an iMac can Motown veterans. Like many record a full album. Outside the internet radio stations, this one highly commercial pop sphere, lets you easily download a copy record labels are effectively of any song as you hear it, which redundant and no longer provide has allowed me to discover and the filtering process of selecting capture some obscure R&B gems and promoting interesting which I only knew from hip- new material. With so much hop samples, eg Cymande’s Bra unclassified material recorded sampled by late 1980s hip-hop and spewed forth onto the pioneers De La Soul. internet, what do you grab onto Koffee is based in Sydney but when you are drowning in an does special broadcasts from the ocean of choice? seminal Seminyak beach bar Ku The answer surprisingly few De Ta: close your eyes and think seem to know is internet radio, cocktails on the day bed. A fave which gives you access not only of my good wife. to every existing analogue and digital and crank it when you do the dishes. A party starter is GotRadio radio station worldwide but also to Next question – what station? MashUps. Ever wondered what a plethora of internet-only stations Start your search with Double J. would happen if you played with playlists carefully curated by Only launched this year, Double J is Madonna and the Sex Pistols at the musical cognoscenti in every corner the grown-up version of the ABC’s same time? How about Snoop Dogg of the globe. It’s all there for you to Triple J “youth network”, fronted by with Led Zepplin? Find out with 24- explore, and easier than you might Gen-X luminaries such as Karen hr mash-ups - bizarrely disparate think - and not only FREE, but also Leng (ex 3RRR) and Myf Warhurst. songs mixed on top of each other. LEGAL! With minimal chat and a broad range If you really want to freshen your Where do you start? I like of old and new tracks aimed at a mix, check out the cool cats in Japan “TUNEIN RADIO”, an app which greying hipster audience, it is nice who run a station named CREATIVE you can download for free on your to see our taxes so well spent. Let’s FREEDOM (yep, capitals) with the phone from the app-store. This lets hope it survives the right-wingers’ breathless tagline “A creative media you browse every radio station in jihad against the ABC. for visionaries”. These dudes take the world on your phone; search by In a similar vein is 8Radio from their creativity SERIOUSLY. In one station name or by genre or location Dublin, run by some devoted Irish tram-ride to work you can expect – Melbourne, Moscow, Mombasa and music nuts spending many rainy days an unclassifiable spread of ambient anywhere in between. indoors listening far and wide for electronica, shoe-gazer indie jangle Listen on your headphones (great new and classic alternative stuff. Also pop, 70s reggae, southern bluegrass on the tram) or connect your phone from Dublin is Frission – good for and who knows what else. to your hi-fi at home by cable or ethereal, relaxed electronica. So, get onto internet radio and bluetooth. All too hard? Drop by JB Those in the know love Radio take advantage of the hard work of or Dick Smith and pick up a basic Paradise, a legendary labour of all these cutting-edge music experts speaker with a dock for your phone. love founded by Bill and Rebecca around the globe busily finding the Robert’s your mother’s brother. Goldsmith in their home in Paradise, best new and old music for you – and Personal tip – set up in the kitchen a town in rural northern California. let me know if you hit a rich vein.

94 VBN VBN 95 boilerplate FOOD & DRINK champagnes in stock (Egly Ouriet, De Sousa & Agrapart), as well as competitive prices on the mainstream Hinchey on wine champagnes such as Mumm, Veuve and Moët. Also available is an array of local and fully imported beers, (and related topics) cider and an interesting range of premium spirits (think “Delord” Armagnac, Lillet, Vedrenne “Le Gin”, The Independent Wine Store - a Rye Cachaca white rum from Brazil, a Wine gem, just in time for summer selection of whiskies from across the world, Japanese Sake and a must for every freezer over summer - Limoncello). in Rye, opening the Independent In the fridge you will also find Independent Wine Store Rye Wine Store in June 2013, to great delicious deli items including a range 2117 Point Nepean Rd, Rye, Victoria acclaim from locals and visitors alike. of quality cheeses like locally sourced Ph 03 59854346 The Independent Wine Store, Red Hill Cheese and a selection from Opening hours over summer: has an outstanding array of red and Will Studd; beautiful prosciutto and; Monday to Thursday 10am-8pm white wines, all tasted and chosen by Friday and Saturday 10am-9pm Piper St Food Co pates and terrines. Angela for their varietal character Sunday 10am till 7pm The Independent Wine Store has and value for money. The range is www.winestorerye.au an on premises licence and doubles diverse, reflecting Angela’s personal [email protected] as a chic wine bar serving coffee and tastes and her desire to showcase sweet treats throughout the day and smaller, family owned producers. selling wines by the bottle (corkage ood and wine is in Angela There is an exceptional array of $5) as well as a changing selection by Strickland’s blood. She has European wines (from French the glass into the early evening, along lived and breathed hospitality Burgundies to German Rieslings) as with an array of tasting platters and Fsince her teens. It led her to pursue well as an excellent selection of top bar snacks for those with a beer or her dream of owning her own quality Aussie wine cider craving. wine shop - the dream of a labels, including the Look out for tastings each Saturday truly independent operation, Independent Wine during summer, regular wine focused on the quality of Store’s own IWS dinners (the most recent dinner the wines it sells, and the label: great value was a fantastic collaboration with value for money which those 2013 Mornington Bannockburn Winery, featuring wines provide for customers: Peninsula Pinot winemaker Michael Glover), and which is why it is bloody and 2013 Clare other fabulous food based events at lucky for me and other Valley Riesling.

the shop. illustration courtesy of guy shield/the slattery media group devotees of the Mornington On my first Asked about her plans for the Peninsula, that Angela foray into the future, Angela says that she is keen decided to pursue her dream shop last year, I to keep expanding the range of wines was very excited on offer, always focusing on quality to find “grower” and value for money. Beyond that? “I still have a wish list a mile long”, she says with a smile. Can’t wait to see what’s next then!

94 VBN VBN 95 boilerplate

I still have plenty of appetito. My partner chooses the char-grilled Thirty Eight Chairs veal rack with rocket, parmesan and balsamic vincotto and I decide on one SCHWEINHAXETTE of the daily specials - Paccheri con Vongole e Melanzane arrostita - a large tubed pasta originating from Thirty Eight Chairs tables, and of course an Italian coffee Campania and Calabria served with 4A Bond St, South Yarra machine. clams and roasted eggplants. Both Ph 9827 5553 It’s a cold Thursday night in August are delicious. To complement the veal www.thirtyeightchairs.com.au and the place is full. Service is swift my partner downs a glass of Nebbiolo and when offered a drink we both opt from Piedmont, I choose another for Italian whites from the succinct Salina Bianco which is perfect with iao bella’ and a kiss on both very Italian-leaning wine list. I enjoy the clams – the Aeolian Islands are cheeks – this is the greeting a Salina Bianco, an Inzolia Catarratto just off the north-eastern coast of I get when I walk into Thirty blend from the Aeolian Islands, him a Sicily so this white is perfect with my EightC Chairs. Take away the English Pinot Grigio from north eastern Italy. southern Italian-inspired paccheri. ‘one hears at the tables, and you Both hit the spot. We quickly move It’s now almost 10pm but the place would think you’d just landed smack onto food. The antipasti offerings and is still buzzing. As some earlier diners bang in Italy. Thirty Eight Chairs is the primi piatti are designed to share. leave, more arrive. There doesn’t seem just that – an all-day, small, buzzing We do just that and promptly arrives to be a table empty. We suddenly Italian bar/locanda where the all– the olive calde miste – warm marinated notice it’s someone’s birthday - the Italian staff banter in Italian as they olives with extra virgin olive oil and dim lights are further dimmed, happy move adeptly in the small space, house made bread, and a carpaccio birthday in Italian is played through greeting customers as friends and di tonno (tuna carpaccio). The tuna is the sound system and the waiters explaining the ever-changing specials so fresh, it is almost sweet. Gino then serenade the birthday girl tambourine with that irrepressible Italian love suggests one of the specials hailing in hand, singing ‘tanti augeri a te’. May of food and wine – ahhh….la dolce from the Amalfi coast – diavoletta sound tacky, but nothing tacky about vita. Owner Gino hails from the gratinato al forno con pepperonata – it at all. Just another friendly touch Amalfi Coast and he has carved out ‘diavoletta’ is a female devil - no doubt in this local locanda. We are offered his ‘bella Italia’ in the heart of South an allusion to the spicy peperonata in desserts but all we can manage is a Yarra. The interior is so Italian – a this dish, a delicious baked bread cake. quick espresso to finish. We leave as small but welcoming space, a central Magnifico! we arrive – with a ‘ciao’ and I get a kiss bar stocked with neatly lined mainly With our appetites well and truly on each cheek. We agree that we have Italian bottles and aperitivi, a red whetted, we are onto mains. The found our little bit of Italy. Italian meat-slicer, stylish wooden starters are generous in size, but

VBN 97 boilerplate CASENOTE Yara Australia Pty Ltd v Oswal [2013] VSCA 337

MICHAEL WHEELAHAN

Introduction powers, or in the interpretation of those powers, whether those powers— In Yara Australia Pty Ltd v Oswal [2013] VSCA 337 the (a) in the case of the Supreme Court, are Court of Appeal exercised powers of sanction under the part of the Court’s inherent jurisdiction, Civil Procedure Act 2010 (Vic) by making orders that – implied jurisdiction or statutory »» the solicitors for the applicants indemnify the applicants jurisdiction; or for 50% of the respondent’s costs incurred as a (b) in the case of a court other than the consequence of the unnecessary or excessive content of Supreme Court are part of the court’s the application books; and implied jurisdiction or statutory »» the applicants’ solicitors be disallowed recovery from the jurisdiction; or applicants of 50% of the costs related to the preparation (c) arise from or are derived from the of the application books and costs incidental thereto. common law or any procedural rules or Before considering the issues and the Court’s reasons in practices of the court. Yara Australia Pty Ltd v Oswal, it is necessary to essay The general terms of the overarching purpose are given some background. additional content by s 9 of the Act, which requires a Overarching purpose court to have regard to the following objects in making any order, or giving any direction in a civil proceeding – Section 7(1) of the Civil Procedure Act prescribes an »» the just determination of the civil proceeding; overarching purpose – »» the public interest in the early settlement of disputes by 7 Overarching purpose agreement between parties; (1) The overarching purpose of this Act and the »» the efficient conduct of the business of the court; rules of court in relation to civil proceedings is »» the efficient use of judicial and administrative resources; to facilitate the just, efficient, timely and cost- »» minimising any delay between the commencement of effective resolution of the real issues in dispute. a civil proceeding and its listing for trial beyond that The overarching purpose is not substantially different reasonably required for any interlocutory steps that are from the fetter under Rule 1.14 on the exercise of powers necessary for— under the Supreme Court (General Civil Procedure) Rules »» the fair and just determination of the real issues in 2005 (Vic) (the Rules) –1 dispute; and 1.14 Exercise of power »» the preparation of the case for trial; (1) In exercising any power under these Rules »» the timely determination of the civil proceeding; the Court— »» dealing with a civil proceeding in a manner proportionate (a) shall endeavour to ensure that all to the complexity or importance of the issues in dispute questions in the proceeding are and the amount in dispute. effectively, completely, promptly and economically determined; Overarching obligations (b) may give any direction or impose any The concept of overarching purpose that underlies term or condition it thinks fit. the exercise of powers by a court is complemented by a number of obligations that are owed by parties, The effect of s 8 of the Civil Procedure Act is that the practitioners, litigation funders, insurers and expert overarching purpose operates as a mandatory relevant witnesses. These obligations are referred to in the Act by consideration in connection with the exercise of all the defined term “overarching obligations”. The particular relevant powers of the Court, whether they be powers overarching obligations found in the Civil Procedure Act under the Act, or under the Rules or inherent or implied include obligations – powers, or common law powers or practices of the court – »» to act honestly (s 17); 8 Court to give effect to overarching purpose »» not to make any claim or response to a claim which is (1) A court must seek to give effect to the frivolous, vexatious, an abuse of process, or does not have overarching purpose in the exercise of any of its a proper basis (s 18);

VBN 97 »» not to take any step in connection The courts’ general jurisdiction as to costs under with any claim or response to any Judicature Act Rules has long permitted apportionment claim in a civil proceeding unless boilerplate of costs, or special orders as to costs against parties the person reasonably believes that the step is necessary to facilitate the who advance hopeless claims or defences, or who waste resolution or determination of the court time. proceeding (s 19); »» to cooperate with the parties to a v Elman Lord Atkin stated3 – behavioural change in the conduct of civil proceeding and the court in civil litigation in Victoria;7 From time immemorial judges have connection with the conduct of that »» in order to bring about cultural exercised over solicitors, using that proceeding (s 20); and behavioural change, the phrase in its now extended form, a »» not, in respect of a civil proceeding, Report recommended the statutory disciplinary jurisdiction in cases of to engage in conduct which is prescription of a number of misconduct. At times the misconduct is misleading or deceptive or likely to overriding obligations, including associated with the conduct of litigation mislead or deceive (s 21); a paramount duty to the Court to proceeding in the Court itself. Rules are »» to use reasonable endeavours to further the administration of justice, disobeyed, false statements are made resolve a dispute by agreement (s and a number of more specific to the Court or to the parties by which 22); obligations;8 and the course of justice is either perverted »» to use reasonable endeavours to – »» in order to ensure compliance, or delayed. The duty owed to the Court »» resolve by agreement any issues in there should be a broad range of to conduct litigation before it with due dispute which can be resolved in sanctions and remedies available to propriety is owed by the solicitors for that way; and the court to deal with nonconforming the respective parties whether they be »» narrow the scope of the remaining behaviour.9 carrying on the profession alone or as issues in dispute (s 23); a firm. In proposing sanctions and remedies, »» to ensure that legal costs and other the Law Reform Commission was costs incurred in connection with the And in Gianarelli v Wraith4 it was aware of the vices of “satellite civil proceeding are reasonable and recognised that counsel have a duty litigation” to which sanctions and proportionate (s 24); to assist the court in the speedy and remedies for alleged breaches could »» to use reasonable endeavours in efficient administration of justice. give rise. In 1994, the English Court connection with the civil proceeding To this end, duties of honesty and of Appeal in Ridehalgh v Horsefield10 to act promptly and to minimise integrity attend practise at the Bar, had observed that the wasted costs delay (s 25); and underlie many of the Bar’s jurisdiction11 was giving rise to a new »» to disclose the existence of Practice Rules.5 Counsel’s duty to the branch of legal activity, calling to documents which are critical to the court may not always accord with the mind Dickens’s searing observation in resolution of the dispute (s 26). lay client’s interests, as observed by Bleak House – Lord Reid in Rondel v Worsley6 – The overarching obligations are wide- The one great principle of English law is, ranging and omnipresent. All of the [A]s an officer of the court concerned in to make business for itself… Viewed in overarching obligations are expressed the administration of justice [counsel] this light it becomes a coherent scheme, at a high level of abstraction, with has an overriding duty to the court, to and not the monstrous maze the laity the consequence that the question the standards of his profession, and to are apt to think it. whether in a particular case any of the public, which may and often does them has been breached will likely lead to a conflict with his client’s wishes To address the vice of “satellite involve questions of fact, degree and or with what the client thinks are his litigation” the Commission proposed value judgment. personal interests. that any application for sanctions or The overarching obligations may remedies by a party or a person with In March 2008 the Victorian Law be enforced by making remedial a sufficient interest would require Reform Commission published its orders under ss 28 and 29 of the Civil leave of the Court. However, no report, Civil Justice Review. This Procedure Act. The power under s requirement for leave made its way Report was the precursor to the 29 to make remedial orders is broad, into the relevant provisions of the Act. enactment of the Civil Procedure Act, in that it is not limited to making which is the legislative response to pecuniary orders against parties or Existing authorities the recommendations made in the practitioners. The courts’ general jurisdiction as Report. There are three relevant The idea that legal practitioners to costs under Judicature Act Rules features of the recommendations in owe duties to the Court in the conduct has long permitted apportionment the Report for present purposes – of civil litigation is not new.2 In Myers of costs, or special orders as to costs »» the Report advocated cultural and

98 VBN VBN 99 boilerplate ...it may be tempting, after the litigation is over, after the tumult and the shouting dies, for victorious parties to seek to “have a little hanging”. In addition to the other considerations referred to above, a court should be especially mindful to make all due allowances for the exigencies of litigation, and to not judge the conduct of litigation in hindsight.

against parties who advance hopeless to exercise control over its own broad, abstract terms, and apply to claims or defences, or who waste officers.14 Statutory powers have an environment where the position court time12. The Civil Procedure Act existed under r 63.23 of the Rules, in which legal practitioners find informs the court’s general discretion and cognate rules, for many years. themselves is not always clear- as to costs so as specifically to permit There is a body of case law that has cut. The prospect of applications contravention of the overarching considered the particular problems based upon alleged departure from obligations to be taken into account that arise when a Court entertains generally expressed norms based as a relevant consideration. an application for orders directed upon colourable allegations of The existence of the power to at practitioners acting for parties in procedural transgression is liable to make pecuniary orders against civil litigation. The authorities can lead to uncertainty and injustice, both practitioners or other non-parties therefore provide valuable guidance at a specific and a general level. to the litigation, and the exercise of to the exercise of powers under the Secondly, parties and their those powers, are different matters. It Civil Procedure Act because, as Rix LJ practitioners ought not make threats is one thing to make special orders as stated in a different context in Scott v against other practitioners with the to costs against parties to litigation. The Copenhagen Reinsurance Co (UK) object or effect of brow-beating Liability for costs is an ordinary Ltd 15 – them into abandoning part of their incident of litigation to which parties client’s case. Such threats might Although, like the judge, I am diffident are exposed. However, when the even amount to a contempt of court. about the direct help which previous Court entertains making orders 18 Threats made to practitioners of authority can lend to a unique factual against practitioners, additional personal liability for costs during the situation, it is the insight of the considerations are relevant. course of litigation may undermine common law that wisdom can be The powers to make remedial the objectivity required of those drawn from previous examinations of orders under ss 28 and 29 of the professional advisers.19 similar problems. Civil Procedure Act are discretionary. Thirdly, sanctions against However, the discretions are not Justice, fairness, efficiency, and practitioners for contravention of the unfettered. They are at least fettered attention to the real issues in dispute overarching obligations have a penal by the consideration that they must suggest that the following guidance character to them.20 Allegations be exercised judicially, and they are offered by the authorities is relevant against practitioners involving also fettered by the Civil Procedure to the potential exercise against legal dereliction of duty, including breach Act itself, and in particular, the practitioners of the discretionary of the overarching obligations, may overarching objective in s 7 that, by powers under ss 28 and 29 of the Civil involve or have the appearance reason of s 8, is a mandatory relevant Procedure Act. of involving serious charges, and consideration. The overarching First, the jurisdiction to make give rise to the risk of injury to objective in s 7 directs attention personal costs orders against professional reputation. Accordingly, to considerations of justice, which practitioners falls to be exercised justice requires that a practitioner must include fairness. Section 7 also with care and discretion and only faced with the threat of personal directs attention to the real issues in in clear cases.16 That is for reasons sanction or liability has a full and dispute, rather than the promotion including that the practitioner’s fair opportunity to answer any of satellite disputes, and to avoiding duties to the court and to the client complaint against the practitioner the additional time and cost liable to could be distorted by the threat of or application for a remedy.21 When result from satellite disputes. personal liability to other parties, the court itself is proposing an order The existence of powers of the which might result in access to justice against a practitioner, procedural Court to make orders against being impeded.17 Another reason fairness requires that the court give practitioners for costs, or to disallow for acting only in clear cases is that, fair particulars of what it is that the costs, is not new either.13 Statutory as observed above, the normative court is concerned to investigate.22 powers to make such orders have standards fixed by the content of the Fourthly, the threat of a personal been described as confirming the overarching obligations under the liability by a practitioner gives rise ancient jurisdiction of the court Civil Procedure Act are expressed in to the risk of a conflict of interest

98 VBN VBN 99 between the practitioner and the Yara Australia Pty Ltd v in this matter have failed to meet client. At the very least, there may Oswal their overarching obligations to be the risk of a conflict of pecuniary ensure that costs are reasonable boilerplate In Yara Australia Pty Ltd v Oswal the interest. When such conflicts arise, and proportionate, pursuant to Court of Appeal heard an application separate representation or advice the Civil Procedure Act 2010. for leave to appeal an order of a is often necessary. Applications, or judge setting aside an order of an 2. The applicants file further written the threat of application under the associate judge that the respondent submissions of no more than six Civil Procedure Act for remedies give security for costs. The Court of pages and file any further material against practitioners are therefore Appeal dismissed the application for upon which they seek to rely by 4 liable to drive a wedge between the leave to appeal on 20 June 2013. pm on 8 July 2013. practitioner and the client.23 Upon delivering its reasons for Fifthly, in meeting any complaint, 3. The respondents file written judgment dismissing the application a practitioner may be hampered by submissions in reply of no more for leave to appeal, the Court of its his or her duty of confidentiality to than six pages and file any further own motion declined to pronounce the client, and in such circumstances material upon which they seek to orders, and directed that the parties the practitioner should be given the rely by 4pm on 22 July 2013. file written submissions directed to benefit of any doubt.24 whether the parties had failed to Thank you for your assistance. Finally, costs orders against meet their overarching obligations practitioners should not become a At this point, the Court of Appeal did under the Civil Procedure Act to back door means of recovering costs not in terms suggest that the legal ensure that legal costs are reasonable not otherwise recoverable against practitioners for the parties were and proportionate. that practitioner’s client.25 at risk of personal costs orders or In making the above directions, Many of these considerations sanctions. the Court directed attention to the address the prospect that the After receiving written submissions following matters – remedy becomes greater than the from the parties, the Court of »» the nature of the application; disease.26 The threat or pursuit of Appeal then delivered a second »» the issues that were raised before applications against practitioners set of reasons for judgment on 27 the judge below; may be antithetical to the November 2013. In those reasons, »» the amount of security that was overarching objective prescribed the Court essayed some principles being sought (some $87,000); by s 7 the Civil Procedure Act. And said to attach to the exercise of the »» the level of legal representation that the threat, and pursuit of remedies Court’s powers under s 29 of the Civil was engaged; against practitioners may, of Procedure Act. In particular, the Court »» the material actually relied upon in themselves, give rise to breaches stated – the course of submissions, and of one or more of the overarching »» the number of volumes of the appeal [20] The Court’s powers under s 29 of obligations under the Civil Procedure book. the Act include the power to sanction Act. legal practitioners and parties for a Furthermore, it may be tempting, Following the delivery of judgment, contravention of their obligations as after the litigation is over, after the the Court caused an email to be sent the heading to Part 2.4 indicates.31 In tumult and the shouting dies,27 for to the practitioners for the parties in our view, these powers are intended to victorious parties to seek to “have a the following terms – make all those involved in the conduct little hanging”.28 In addition to the Dear parties, of litigation — parties and practitioners other considerations referred to — accountable for the just, efficient, above, a court should be especially The Court made the following timely and cost effective resolution of mindful to make all due allowances directions on 19 June 2013: disputes. Through them, Parliament for the exigencies of litigation,29 and The Court directs that: has given the courts flexible means to not judge the conduct of litigation of distributing the cost burden upon in hindsight.30 1. The parties make submissions and across those who fail to comply addressing the following question: with their overarching obligations. Whether or not any of the parties A sanction which redistributes

The abstract nature of the overarching obligations requires that any alleged contravention be the subject of sufficiently precise particulars. These rights are basic, and are supported by High Court authority of general application. Nothing in any of the provisions of the Civil Procedure Act undermines or dilutes those rights.

100 VBN VBN 101 boilerplate

that burden may have the effect of obligations do not affect any material party provides informed instructions compensating a party. It may take change to the Rules and the inherent to their legal practitioners that they the form of a costs order against a jurisdiction of the Court.32 … wish particular counsel to be briefed, practitioner, an order that requires the legal practitioners who act on The Court then gave its imprimatur the practitioner to share the burden their behalf have an overriding duty to courts embarking on own-motion of a costs order made against their to consider whether, having regard to inquiries with a view to imposing client or an order which deprives the the matters set out in s 24 and any sanctions – practitioner of costs to which they other relevant circumstances, the would otherwise be entitled. The Act is [27] Yet as we have observed, engagement of particular counsel clearly designed to influence the culture sanctions imposed for a breach of will contravene the Act. There will be of litigation through the imposition of any overarching provisions have been proceedings in which the complexity sanctions on those who do not observe a rarity at first instance. When no or importance of the issues and the their obligations. Moreover, the power party invites the court to determine amount in dispute will not justify the to sanction is not confined to cases whether there has been a breach engagement of counsel of particular of incompetence or improper conduct of the Act, there may be a judicial seniority or will not justify the by a legal practitioner. Where there is disinclination to embark upon such engagement of more than one counsel. a failure by the practitioner, whether an own-motion inquiry for fear that Having set out these observations, the solicitor or counsel, to use reasonable inquiry as to a potential breach may Court then determined that it could endeavours to comply with the be time consuming and may require not be said that the engagement of overarching obligations, it will be no the introduction of material that was three counsel by one of the parties answer that the practitioner acted upon not before the court as part of the and the costs incurred thereby were the explicit and informed instructions of proceeding. Such fears cannot relieve not reasonable and proportionate. the client. A sanction may be imposed judges of their responsibilities. But However, the Court determined where, contrary to s 13(3)(b), the legal we would not wish it to be thought that the content of the application practitioner acts on the instruction that a judicial officer at first instance books was too voluminous, containing of his or her client in breach of the must undertake a substantial inquiry material that was repetitious or overarching obligations. when considering whether there has excessive, which was the second been a contravention of the Act. As [21] … In our view, the enactment of feature of the case that attracted the the sanction for a breach will usually s 29 together with s 28(2) imbues the Court’s interest. lie in an appropriate costs order, a Court with broad disciplinary powers The Court then indicated at [59] of judge may at the conclusion of the that may be reflected in the costs its reasons that it would hear from reasons for judgment immediately orders that are made. The Court is the parties as to what orders it should invite oral submissions as to why there given a powerful mechanism to exert pronounce, and proposed that orders should not be a finding that the Act greater control over the conduct of might be made including – was contravened. The judge may in parties and their legal representatives, »» that the solicitor-client costs which a relatively brief way deal with that and thus over the process of civil each legal practitioner may seek to issue in providing succinct reasons for litigation and the use of its own limited recover from their client not include a finding that there has been a breach resources. a percentage of the costs of the of the Act and how that finding affects preparation of the application books; The Court then ventured the the orders for costs that are to be and following observation – pronounced. »» the legal practitioners for the [23] It is therefore somewhat There were two features of the case applicants pay a portion of surprising that despite the length of that the Court then considered. the respondents’ costs of the time the Act has been in force, the The first feature was the level of applications that are related to the scope of the sanction provisions in representation in the application. On preparation for the hearing. the Act for a failure to comply with that topic, the Court stated – It is not apparent from the Court’s the overarching obligations has been [28] In order to comply with the reasons that any further submissions under-utilised. particular overarching obligation in s were made to the Court before the The Court then gave the following 24, the legal practitioners — solicitors orders set out at the commencement explanation – and counsel — who act for or on behalf of this note were made. of a party or who are asked to so act, [25] The explanation for the under- must always give careful consideration Some observations utilisation of the provisions of the Act to the level and the extent of the Because of the way the issues that lies in part in a false perception that representation that is necessary for a were identified by the Court of these provisions and the overarching party in a proceeding. Even where a Appeal unfolded, no occasion arose

100 VBN VBN 101 Before the parties or a court embark upon a distracting, time-consuming and possibly costly process directed to possible sanctions against legal practitioners, boilerplate the Civil Procedure Act requires the parties and the court to consider whether the objectives of the Act might be better served in another way.

to consider in detail the particular and is informed by the statutory Procedure Act should be exercised problems that may attach to considerations in s 9 of the Act. What so as to impose sanctions on legal applications for costs or sanctions weight is to be given to those factors practitioners for breach of the high against legal practitioners. None of will be a matter for a court called level, abstract standards of conduct the leading cases counselling caution upon to exercise the discretionary prescribed by the Act, is one of when contemplating orders against powers of sanction. restraint. The discretion should be legal practitioners, or identifying the The abstract nature of the exercised only in clear cases so as not reasons why caution is warranted, overarching obligations requires to encourage colourable allegations was the subject of consideration that any alleged contravention be by parties against practitioners, or by the Court. The Court’s reasons the subject of sufficiently precise satellite litigation.34 Before the parties therefore do not appear to particulars. These rights are basic, or a court embark upon a distracting, discriminate between applications and are supported by High Court time-consuming and possibly costly for orders against parties, and authority of general application. process directed to possible sanctions applications for orders against legal Nothing in any of the provisions of against legal practitioners, the Civil practitioners, to which additional the Civil Procedure Act undermines Procedure Act requires the parties considerations may be relevant. or dilutes those rights. In Yara, the and the court to consider whether the The Court’s suggestion at [27] Court of Appeal gave notice at [59] objectives of the Act might be better that, at the conclusion of a hearing, a of its written reasons of the orders it served in another way. judge might immediately invite oral was contemplating, before inviting submissions in relation to sanctions, further submissions. Therefore, Conclusions has to accommodate the separate the reasons of the Court in Yara, The Civil Procedure Act is a good interests that legal practitioners particularly at [27], should not be servant, but is likely to be a bad and their clients might have in understood as affecting the rights master. To counsel caution in relation such an application. Counsel for a of legal practitioners to procedural to the imposition of sanctions against party might well have a conflict in fairness, including adequate practitioners is not only sound as a addressing such an application if it particulars, separate representation matter of principle, but will likely were to be suggested that counsel, if that is necessary, and a right to a enhance the objectives of the Civil or the instructing solicitors, might reasonable hearing. Procedure Act, and in particular the personally be the subject of a The prospect of the liberal overarching purpose to facilitate sanction. imposition of sanctions under the the just, efficient, timely and cost- The decision of the Court in Civil Procedure Act may encourage effective resolution of the real issues Yara should not be understood as personal attacks on the conduct in dispute. denying the relevance of the many of practitioners, resulting in considerations, including caution, unnecessary time being spent on Post script – insurance to which the authorities refer when collateral issues. This would be Under clause 5.8 of the 2014/15 Legal courts have considered exercising unfortunate, as such attacks can Practitioners Liability Committee discretionary powers to make be antithetical to the overarching policy for barristers there is a personal costs orders, or to impose obligation in s 20 of the Act that deterrent excess of $8,000 for any sanctions, against legal practitioners practitioners and parties should order as to costs made against acting for parties in civil litigation. co-operate. A focus on sanctions an insured as a non-party to a The generally-expressed “call to is liable to divert attention from proceeding. arms” in paragraph [27] of the Court’s the just and efficient resolution of Furthermore, by clause 15 of the reasons for judgment does not the real issues in dispute in civil policy, there is an indemnity back to engage with many of the recognised litigation.33 Experience shows us the insurer – problems to which applications that procedurally, much more is 15. Non-party costs order for costs or sanctions against legal achieved through co-operation than The Practitioner will practitioners give rise. The relevance antagonism. indemnify the Insurer against of those considerations is supported A sound approach to the question each amount paid or payable by at least the overarching objective whether the discretionary powers by the Insurer in respect of in s 7 of the Civil Procedure Act, under ss 28 and 29 of the Civil any order for costs made

102 VBN VBN 103 boilerplate VSC 189 at [7]–[8] (Harper J), and the v Able Technical Pty Ltd at 321 [92] against the Practitioner as a cases cited therein. (McColl JA); Ashby v Slipper (2014) non-party to a proceeding, to 219 FCR 322 at [144] (Mansfield and 13 See: In re Jones (1870) LR 6 Ch App Gilmour JJ). the extent that the order is 497 at 499 (Lord Hatherley LC); Myers based on – v Elman [1940] AC 282 at 290 (Viscount 25 Ridehalgh v Horsefield at 226. Maugham). (a) the Practitioner having 26 Ridehalgh v Horsefield at 226. a financial interest 14 Orchard v Seeboard [1987] 1 QB 565 at 569 (Donaldson MR). 27 Kipling, Recessional, alluded to in JT in the outcome of the International SA v The Commonwealth proceeding, including 15 [2003] Lloyd’s Rep IR 696 at [33]. (2012) 250 CLR 1 at 89 [241] (Heydon J). an interest in whether 16 Orchard v Seeboard at 572 (Donald- or to what extent the son MR); De Souza v Minister for 28 See, Minister for Home Affairs v Zentai Practitioner’s fees will Immigration, Local Government and (2012) 246 CLR 213 at 243 [75] (Hey- Ethnic Affairs (1993) 41 FCR 544 at don J); often attributed to Prince Felix be paid; and/or 547 (French J); Re Bendeich (1994) 53 Schwarzenberg of Austria, “Mercy (b) the Practitioner having FCR 422 at 426 (Drummond J); Deputy by all means … mercy is a very good engaged in conduct Commissioner of Taxation v Levick thing. But first let us have a little (1999) 168 ALR 383 at 389 [11] (Hill hanging”. knowingly or recklessly J); Levick v Commissioner of Taxation 29 Lemoto v Able Technical Pty Ltd (2005) in breach of the (2000) 102 FCR 155 at 166 [43]; Money 63 NSWLR 300 at 320-1 [92] (McColl Practitioner’s duty to Tree Management Services Pty Ltd and Institute of Taxation Research v Deputy JA). the court or tribunal, Commissioner of Taxation (No 3) (2000) 30 In the context of liability for negli- including having 45 ATR 262 at 270 [28] (Debelle J); Git- gence, see: Roads and Traffic Authority advanced a claim or sham v Suncorp Metway Insurance Ltd of New South Wales v Dederer (2007) [2002] QCA 416 at [8] (White J); Med- 234 CLR 330 at 337-8 [18] (Gummow defence found to have calf v Mardell [2003] 1 AC 120 at 143 J); New South Wales v Fahy (2007) 232 had no real prospect of [56] (Lord Hobhouse); Lemoto v Able CLR 486 at 505 [57] (Gummow and success. Technical Pty Ltd (2005) 63 NSWLR Hayne JJ); Adeels Palace Pty Ltd v 300 at 320-1 [92] (McColl JA); Bechara Moubarak (2009) 239 CLR 420 at 438 Any pecuniary order against a T/As Bechara and Co v Atie [2005] [31]. NSWCA 268 at [40] (McColl JA); Re the practitioner based upon a finding of Black Stump Enterprises Pty Ltd and 31 As per s 36(1)(a) of the Interpreta- knowing or reckless breach of the Associated Companies (No 2) [2006] tion of Legislation Act 1984 , s 36(1) (a), headings form part of the Act. Any overarching obligations may engage NSWCA 60 at [8] and [9] (Young CJ in Eq); K Muc Trading as G H Healey and heading must give way to clear and the indemnity back provision, with Co Sydney v Descaretes Pty Ltd [2006] unambiguous words in the provision, significant financial consequences for NSWCA 69 at [84] (Ipp JA); Hooker v but it nonetheless forms part of the interpretative process. See Silk Bros the barrister. Gilling (No 2) [2007] NSWCA 214 at [36] (McColl JA); Kelly v Jowett (2009) Pty Ltd v State Electricity Commission 1 See, Trevor Roller Shutter Service Pty 76 NSWLR 405 at 418 [60] (McColl JA). (Vic) (1943) 67 CLR 1, 16. Ltd v Crowe (2011) 31 VR 249 at 260-1 17 Deputy Commissioner of Taxation v 32 See for example Octagon Inc v Hewitt [43] (Warren CJ, Nettle and Ashley Levick (1999) 168 ALR 383 at 389 (Hill & Anor (No 2) [2011] VSC 373, [48]. JJA). J). See also r 63.23 of the Rules and s 24 2 Director of Consumer Affairs Victoria v of the Supreme Court Act 1986 (Vic). 18 Orchard v Seeboard at 580 (Dillon LJ); Scully & Ors (No 2) [2011] VSC 239 at As to the Court’s inherent jurisdiction, Re Bendeich (1994) 53 FCR 422 at 427 [22] (Hargrave J). see White Industries (Qld) Pty Ltd v (Drummond J); Levick v Commissioner Flower & Hart (a firm) (1998) 156 ALR 3 [1940] AC 282 at 302. of Taxation (2000) 102 FCR 155 at 166 169; Myers v Elman [1940] AC 282; and [43]; Medcalf v Mardell [2003] 1 AC 120 Knight v FP Special Assets (1992) 174 4 Gianarelli v Wraith (1988) 165 CLR 543 at 144 [58] (Lord Hobhouse). CLR 178. at 556 (Mason CJ) and at 578 (Brennan J). 19 Orchard v Seeboard at 577. 33 Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300 at 328 [126] (McColl 5 See, for example Rules 16, 17, 34 and 20 Medcalf v Mardell [2003] 1 AC 120 at JA). 35. 143 [56] (Lord Hobhouse). 34 See in particular, Lemoto v Able Techni- 6 [1969] 1 AC 191 at 227. 21 Orchard v Seeboard at 572 (Donaldson MR); Ridehalgh v Horsefield at 226; cal Pty Ltd (2005) 63 NSWLR 300 7 See p 204. Lemoto v Able Technical Pty Ltd at 321 at 320-2 (McColl JA) and the cases [92] (McColl JA). cited therein, and see the cautionary 8 See p 150. language of the Court in Ridehalgh v 9 See p 151. 22 Shire of Gibsorne v King [1995] 1 VR Horsefield [1994] Ch 205 at 225-6 and 103 at 106 (Tadgell J). 238-9. 10 [1994] Ch 205 at 225-6. See also, Med- calf v Mardell [2003] 1 AC 120 at 144 23 The idea that such applications may [57] (Lord Hobhouse). “drive a wedge” between practitioner and client was the subject of submis- 11 In Victoria, the “wasted costs juris- sions on behalf of the Law Society in diction” is found in Supreme Court Ridehalgh v Horsefield [1994] Ch 205, (General Civil Procedure) Rules 2005, r reported at 213. 63.23 and corresponding rules of other courts. 24 Orchard v Seeboard at 572 (Donaldson MR); Medcalf v Mardell [2003] 1 AC 120 12 Ugly Tribe Co Pty Ltd v Sikola [2001] at 145 [59] (Lord Hobhouse); Lemoto

102 VBN VBN 103 BOOK REVIEWS Quota by Justin Serong Text boilerplate Quota: A barrister’s Publishing, Melbourne, seachange 2014

PAUL DUGGAN And it shows. His descriptions of people and places are sometimes almost annoyingly evocative – there ustin “Jock” Serong left the of Serong’s six year career as a is often a nagging sense that, say, Victorian Bar in 2004 but his barrister (which included a junior you’ve been to that very beach debut novel shows he hasn’t brief in the Silk-Miller murder which in the book is named Gawleys forgottenJ us. prosecution), chapters of the story or you have been opposed to the His book, Quota, was released in June. variously take the form of police silk nicknamed “The Basque” but, Its hero is a criminal barrister, interview transcripts, formal witness irritatingly, you can’t quite pinpoint Charlie Jardim. We meet Jardim statements and newspaper accounts the real life names of either. in the throes of an unhappy of the trial. Ditto with Serong’s dialogues. streak which includes a contempt Is an ex-barrister’s novel written In and outside work, we’ve all met conviction from his least favourite this way too much like barristers’ defendants, witnesses and hangers- magistrate and being dumped by his actual work to be leisure reading for on who speak with the colour of solicitor-fiancé. And from there on, current lawyers? Serong’s outsiders and policemen life for Jardim, both inside Court and No. I shared chambers briefly with who talk (and mistype) in the out, gets even more interesting. Serong. He was a great lawyer but his wooden tones of Serong’s police. Jardim walks to chambers (a extraordinary range of interests and Without giving away the story, word his fiancé despises) past meat travels meant that the tremendous Jardim ultimately makes it back wagons full of remand prisoners entertainment (and education) I from both the Supreme Court and queuing in the Lonsdale St clearway. received as his chambers-mate south west Victoria exhausted but And then into the lift with fresh ranged far beyond the law. ready for his next brief. Rumpole’s obituaries about two colleagues So it is with Quota. career spanned 16 novels. Maybe like whose heart and liver respectively Much of the story is set in the Rumpole, Charlie Jardim will be back have quit in disgust. Supreme Court and its Melbourne again down the track. (We haven’t even made it into environs but the actual murder An encore or two by the fictional Jardim’s chambers for the first happens on an abalone boat just off Jardim certainly seems more likely time and it sounds familiar already, a fictional south west Victorian town. than a real life return by Serong the doesn’t it?) Between Justice Williams’ court in barrister. Waiting for Jardim in chambers is William Street and the Southern Serong, wife Lilly (incidentally an unexpected brief in a murder trial. Ocean lies a lot of rich material for daughter of Arthur Adams QC) and The white ribbon suggests Jardim’s Serong to work with. their four children have lived in Port fees are looking secure but it soon Serong has lived in Port Fairy since Fairy for ten years now. For most of emerges that the prospects he left the Bar. It seems nothing in that time, Serong was writing on the of a conviction are that part of the world has escaped side while a solicitor at Maddens anything but. his attentive eye. From the range in Warrnambool but last year he The Crown’s star of decrepit locals in the one pub completed his seachange by leaving witness, the victim’s town’s single pub to the marram the law completely. brother, is fitful in grass and kelp beds swaying above Between surfs, he now writes his co-operation. And and below the nearby waves, there professionally full time. that makes him look is the unmistakeable sense that Apart from fiction, he is working effusive by comparison Serong knows his material. Murder on a film project, editing the new with the rest of his trials, tumble-down pubs, snorkelling journal Great Ocean Quarterly, small seaside town. for crayfish, DHS child removal contributing to surf magazines and And therein lies an applications – Serong has dived into writing freelance general copy and excellent story. them all at some stage of his varied journalism. In echoes career.

104 VBN VBN 105 Justin “Jock” Serong boilerplate

Final Judgment: Superior Courts compared The Last Law Lords and the Supreme Court J D MERRALLS by Alan Paterson, Hart ore than thirty years the study of what he calls “the Publishing, ago, Alan Paterson dialogues that the judges engage in Oxford and Portland, as a young lecturer when making judicial decisions”. Oregon 2013 at the University of Edinburgh wrote Those “dialogues” are between bench aM study of the House of Lords as a and bar, between the Law Lords judicial body, which was published and Justices themselves, between Simonds had the Lord Chancellor a under the title of The Law Lords. the Supreme Court and the Court of significant role in the judicial activities In 2008, prompted, he says, by the Appeal, with academics, with courts of the House of Lords. Viscount impending demise of the House of overseas, especially the European Radcliffe, Lord Reid, Lord Wilberforce, Lords and its replacement by the Court of Human Rights in Strasbourg, Lord Diplock and Lord Bingham, in Supreme Court, he returned to the with the Scottish courts, with their different ways, set the direction task of “describing, analysing and judicial assistants, with Parliament of the House. The assessment of the explaining” how appellate decision- and with the Executive. The author approaches of those acknowledged making in the United Kingdom’s top concedes that the word dialogue leaders, and even of Lord Atkin court works. The Law Lords was not is an imprecise description of the before them, though mainly intended the first study of the judicial House exchange or interaction between for comparison with those of the of Lords. It was preceded in 1979 the courts and their members and Presidents of the Supreme Court, does by Robert Stevens’ massive Law the others whose influence he has reveal the dangers of generalisation. and Politics: The House of Lords as identified, but he has adopted it as a The comparison of the methods of a Judicial Body, 1800–1976 and in generic term of convenience. the domineering Diplock, usually first 1972 by Blom-Cooper and Drewry’s Perhaps the most interesting off the block with written reasons, Final Appeal: A Study of the House of sections of the book concern the sometimes written before argument, Lords in its Judicial Capacity (rev ed internal dynamics of the House with those of the cautious, reserved 2009). Unlike those works, The Law and the Court. The author notes Radcliffe is most interesting. Professor Lords depended to a great extent as a significant change between Paterson quotes Lord Wilberforce, upon interviews conducted by the the two the development of a like Radcliffe a Fellow of All Souls, author with counsel and Law Lords collegial relationship between the in saying that Lord Radcliffe “who themselves. It was a study of the Justices. He attributes this to many was perhaps our most intellectually dynamics of the House from the causes, some adventitious, such as brilliant judge” did not have the power inside rather than an account of its the geographical relationship of to persuade his colleagues. judicial work. their rooms, some systemic, such Law Lords and Justices are Professor Paterson has carried as a greater emphasis on written assigned to groups which the this technique to a new level in submissions and the limitation of author dubs tacticians or lobbyists Final Judgment. He appears to have the length of oral argument, others and team-workers. The influence maintained a close connection intentional, depending in particular on decisions of those whom he with many Law Lords in the years upon the manner in which the task regards as members of each group between writing the two books of judgment-writing is distributed is examined in detail. Individuals and to have won their respect for amongst the Justices and attitudes who would generally be regarded as his discretion. Final Judgment is to the pros and cons of individual leaders of the House or the Court are, enlivened by many quotations from judgments and the writing of perhaps surprisingly, found in each conversations, both attributed and separate concurrences and dissents. group. Lords Hoffmann and Bingham anonymous. Many of these matters will be are compared: The work began as a study of the familiar to observers of the practices Unlike Lord Hoffmann, who usually last years of the House of Lords in of the High Court of Australia. sought to exercise task leadership by comparison with its judicial functions As in Australia and, as the author circulating his judgment at a very early in earlier periods, but, because of notes, in the Supreme Court of the stage in an attempt to influence his the duration of the task, it finished United States, the influence of the colleagues, Lord Bingham produced as both that and a comparison of the senior judges is an important factor. his 30 manuscript pages a weekend, House and its successor. Professor This is not new in Britain. The author because that was how he liked to Paterson has adopted as his method demonstrates that not since Viscount

104 VBN VBN 105 Some recent judgments of the Court have drawn substantially on Australian material. Others have concerned matters upon which there were direct Australian decisions. boilerplate work – he wanted to get the thing off criminal cases, with the lead judgment is probably true that his fears his desk before he was into another being adopted by other members of were unfounded. The presence case. He was congenitally incapable the tribunal, dissent or qualification of such strong-minded Justices of sitting on an opinion unless it was being suppressed in the cause of as Lords Phillips, Hope, Walker, a truly exceptional case ... Although clarity. This convention has been Mance, Neuberger, Collins, Dyson he recognised that it was sometimes retained in the Supreme Court. But and Sumption has provided a a weakness, he had a great reluctance there are now a number of judgment counterweight to anodyne single to revisit an opinion which he had structures. A major difference between judgments. The contributions of Lord circulated some time before. If he was the practice of the Supreme Court and Rodger himself are greatly missed. writing what he thought was to be the that of the High Court of Australia is Other “dialogues” of House leading opinion he would entertain his that the authorship, single or joint, of and Court are also of interest to colleagues’ requests for tweaks here or collective judgments is acknowledged. Australian readers. Towards the dropping a phrase there. But if he was Another difference is that one end of the life of the judicial House not, he was reluctant to comment on judgment is usually recognised as the of Lords, a small group of “judicial others’ opinions even when he thought “lead” judgment, and the unnecessary assistants” was introduced. The they were misconceived – because duplication of facts and quoted extracts cramped space available for them he considered judicial independence from statutes, which are a blight kept the members to four and they involved independence from one’s on the High Court’s judgments, is were allocated to the senior Law colleagues. avoided. Professor Paterson mentions Lords. Lord Hoffmann, although instances of where what was originally a former Oxford don, chose never Lord Bingham is described neither intended to be the lead – and, hence, to have an assistant. He, like Sir as a tactician nor as an intentional the majority – judgment has become Wilfred Fullagar and Sir Frank consensus-builder. His approach a dissenting or minority concurring Kitto in the High Court, did his own appears to have been very much judgment after the circulation of preparation and research. With the like that of Chief Justice Gleeson in drafts, yet the statement of facts has availability of better accommodation the High Court. It is not hard to find remained moored where it began. in the Supreme Court building, the counterparts of Lords Diplock and The advantages and disadvantages number of assistants increased. Hoffmann in Australia too. of the new system are examined at Though their functions in some ways In this respect Professor Paterson length. The author suggests that fewer resemble those of clerks to Justices attributes a Binghamite approach to dissents and concurrences in return in the United States Supreme Court the present intellectual leaders of for more single judgments means that and associates of Justices of the the Supreme Court, the President there may be more judgments devised High Court, the position was not Lord Neuberger and Lord Sumption, by a committee and more compromise. consciously modelled on either. Their but he recognises differences in He quotes the late Lord Rodger of principal functions appear to be to their attitudes to judgment-writing, Earlsferry: prepare memoranda of cases for with the President encouraging which permission to appeal is sought collaborative team-working and the If the powers that be have their way, and “to research points of law or pursuit of single judgments and Lord and the new Supreme Court of the fact, drawing on databases, academic Sumption a more individualistic United Kingdom adopts more single literature and perhaps foreign approach. (Lord Sumption is quoted judgments, then there will be less authorities” for cases. Professor as dividing appellate judges into scope in future for humour or indeed Paterson notes that not all Law Lords “parsons”, who instinctively look at for any other expressions of the judge’s or Justices have been computer issues in moral terms, “pragmatic individuality. By definition, the author literate. realists”, who have an eye to the of a composite judgment is not writing The qualification “perhaps” consequences, and “analysts”, who just for himself and will alter his attached to the drawing on foreign focus relentlessly on legal principle.) voice accordingly ... the much touted authorities is justified by reference The frequency of joint judgments – efficiency savings of a single judgment to the judgments of both House which theoretically were impossible in will be dearly bought if, as a result, we and Court. References to Australian the House of Lords when judgments lose individual hallmark contributions cases, though increasing, are still were speeches – is recognised as one of of [the] quality [of Lords Macnaghten, haphazard, depending upon the the major changes in the new regime. Wilberforce and Bingham.] industry of counsel and judicial English practice has always been to Lord Rodger was writing in 2009, assistants. Some recent judgments of avoid a multiplicity of judgments in at the time of the transition. It the Court have drawn substantially

106 VBN VBN 107 boilerplate

on Australian material. Others have a change between the attitude of the deportation and detention – many concerned matters upon which there House of Lords under Lord Bingham of which require decision-making were direct Australian decisions, when “Strasbourg was bound to different in kind from traditional which have not been mentioned. win” and that of the Supreme Court judicial work and calling for initiatives British judges are perhaps more under Lord Neuberger articulated in approach. The Court’s treatment averse than their Australian in Manchester City Council v Pinnock of assisted suicide in R (Nicklinson) counterparts to referring to cases [2011] 2 AC 104 at 125 [48]: v Ministry of Justice [2014] 3 WLR and other materials that are not 200, which was decided after the This court is not bound to follow every mentioned in argument. publication of Final Judgment, provides decision of the European Court . . . as Most of the Justices admit to using a graphic example of the new types it would destroy the ability of the court assistants as sounding boards for of case and of the differing reactions to engage in the constructive dialogue ideas, though Professor Paterson of judges to the new problems in with the European Court which is of records that the relationship with decision-making. Professor Paterson value to the development of Convention individual Justices is so personal that relates the change in character of the law . . . Of course, we should usually it varies not only between Justices but cases to the increased prevalence of follow a clear and constant line of between years and the same Justice. dissent and changes of opinion in the decisions by the European Court . . . But “So much depends on the strengths course of judgment writing. Similar we are not actually bound to do so or of the assistant and the working trends can be observed in the High (in theory at least) to follow a decision habits of the Justices.” The role of Court of Australia without the incubus of Grand Chamber. the judicial assistants is said to be of Europe. “continuing to evolve”, but not to the The superimposition of European Professor Paterson regards it as extent that they are emulating their over domestic law has also led to significant that the appointment transatlantic counterparts in writing tensions in dialogue between the process to the Supreme Court has drafts of judgments. Dyson Heydon Court and the Executive. The Court been taken largely out of political and Richard Posner are quoted has had to decide the extent, if any, hands and given to committees in as warning against the dangers of to which its decisions reflecting which senior judges predominate. He the combination of high academic European law are capable of asks whether now it is the guardians intelligence and the overconfidence being overridden by executive who are guarding themselves. But he of youth. For his part, Lord Sumption or parliamentary action. This is sets his sights against the adoption is recorded as saying, “The rule is especially so where European of a system resembling United States that they don’t draft judgments for imperative has led to the assumption confirmation hearings. He would us. They don’t see a draft judgment of by the Court of responsibility for prefer “greater transparency in ours until after we have written it.” matters traditionally regarded as the judicial appointments process The dialogue with Luxembourg non-justiciable. Professor Paterson with fewer statutory consultations and Strasbourg has presented quotes Lord Sumption, a trenchant and perhaps some form of post- another set of problems. With the critic of the Court of Human Rights: appointment parliamentary accession of the United Kingdom to consultation”. The suggestion is not The Human Rights Convention does the European Union, on points of elaborated. create an accountability problem by European Union law, the decisions It is perhaps not surprising that, transferring a number of decisions which of the European Court of Justice are as a Scot, Professor Paterson reveals are by their nature political to judges in paramount. Judgments of British his special admiration for his fellow circumstances where judges are rightly courts are often at two levels, first countrymen in the highest courts. not accountable to anyone for what deciding cases in accordance with Apart from Lord Bingham, Lords they decide, and in circumstances where domestic law and then deciding Reid, Hope and Rodger – exemplars the result is incapable of amendment in whether that judgment is consistent of principle over precedent – are practical terms.1 with European Union law. The clearly his favourites. Lord Hope has incorporation of the European There are lessons for Australia here too. contributed a fine foreword, which Convention of Human Rights into Associated with the intrusion of should encourage those in the common British domestic law through the Europe are changes in the types of law world who are interested in how Human Rights Act 1998 and the cases coming to the highest court. ultimate appellate courts work to read Scotland Act 1998 left open the extent Professor Paterson has compiled tables the book with appreciation. to which British final courts could showing a decline in conventional 1. Lord Sumption’s views were elaborated refuse to follow the interpretation “lawyers’ law” and an increase in cases in a brilliant address entitled “The given to the Convention by the involving matters loosely categorised Limits of Law” given in Kuala Lumpur in November 2013 after the publication European Court of Human Rights at as human rights – anti-discrimination, of Final Judgment. www.supremecourt.uk/ Strasbourg. Professor Paterson notes privacy, immigration and asylum, news/speeches.html.

106 VBN VBN 107 Collins goes global boilerplate

MICHAEL WHEELAHAN

n 2007, Justice David Ipp England. London had been regarded AO, writing extra-judicially, as the libel capital of the world, and Collins on described the law of defamation as such was perceived as a centre Defamation, by Matthew as, “the Galapagos Islands Division of libel tourism, being a forum for Collins, Oxford ofI the law of torts”, having evolved foreign plaintiffs seeking to take University all on its own, and having created advantage of England’s strict libel Press, 2014 legal forms and practices unknown laws.3 Such was the threat posed anywhere else.1 In a world of to US First Amendment freedom globalisation, isolated places are of speech by judgments in libel under threat. In common law actions in English courts that US legislation and case law can bring countries there are challenges that courts declined to enforce their to several of the new statutory confront the laws of defamation judgments.4 More recently, the US defences. Through his experience in because modern communications do Congress enacted a law restricting writing his previous works on The not observe jurisdictional boundaries, the recognition of foreign judgments Law of Defamation and the Internet, and publications take on new forms, in libel actions against providers of and his extensive experience in including publications by internet interactive computer services.5 modern practice, Dr Collins is well search engines that are the product Following, and perhaps equipped to write a book for the of automatic web crawling, with no notwithstanding, the findings of current age which, from its inception, human input other than the search the Leveson Inquiry into the press, is framed around modern means of terms employed by the reader. Issues the UK Parliament enacted the communication. of this nature were identified by Defamation Act 2013. The reforms to A refreshing feature of Dr Collins’s Dr Matthew Collins QC in his first English law effected by this Act are text is the insight that the mind of book, The Law of Defamation and extensive. The gist of the reforms is an experienced practitioner in this the Internet (2001)2, at a time when to effect an alteration in the balance specialised area can bring to legal the legal treatment of publications struck by English defamation law problems. Dr Collins’s work is not using new technologies was in its to give greater weight to freedom of an uncritical treatise on the laws of infancy, and at a time when, in our expression. The English Act6 does defamation. It is replete with astute globalised world, each state and this by, among other things, enacting observation and commentary. An territory of Australia had its own laws a number of new statutory defences, example is Dr Collins’s commentary concerning actionable defamation. some of which have been inspired by at [8.36] and [8.37] on the operation Much has happened since corresponding Australian laws. of the Polly Peck7 form of pleading Dr Collins’s first book in 2001. In the Foreword to Collins on in Australia, and in particular the From 2006 each of the states and Defamation Lord Lester of Herne Hill consequences to the practice of territories of Australia adopted observes that the book is perfectly defamation of the form of pleading uniform defamation legislation. That timed to coincide with the coming sanctioned by the Victorian Court legislation was a compromise that into force of the new Act. The book is of Appeal in David Syme & Co Ltd v married together the common law a substantial and thorough work on Hore-Lacy.8 Dr Collins suggests that that largely prevailed in Victoria the laws of defamation in England Australian courts have taken a wrong and South Australia with many and Wales. In writing the book, which turn in adopting the permissible features of the New South Wales is a first edition, Dr Collins enjoyed variant approach to the pleading of defamation legislation, adapted to the benefit of viewing the English alternate imputations by defendants, co-exist with the common law, and laws of defamation afresh and in light the reasons for which Dr Collins with other reforms that were new to of the new Act, untied to any earlier develops. Passages in the text such as all jurisdictions. However, much more works. Dr Collins was also able to these will provoke debate, but their extensive reforms have occurred in employ the wisdom that Australian inclusion invites thoughtful analysis. Because some of the new English statutory defences, namely contextual The book is a substantial and thorough work on the truth and honest opinion, have been laws of defamation in England and Wales. inspired by pre-existing Australian

108 VBN VBN 109 boilerplate 3. See, for example, Berezovsky v Michaels laws, Dr Collins has been able to practitioner seeking to explore some [2000] 1 WLR 1004; Jameel (Yousef) v bring the Australian experience to of the more obscure bays and coves Dow Jones & Co Inc [2005] QB 946. bear on the likely interpretation and of this isolated legal place. 4. Telnikoff v Matusevich 347 Md 561 operation of those provisions, thus Collins on Defamation is no small (1997). giving the book a feel of familiarity achievement, and has every sign of 5. Securing the Protection of our Enduring to an Australian reader. The text is being the first of many editions to and Established Constitutional Heritage extensively footnoted, which is a come, as new laws are interpreted, Act (2010). most desirable feature of a text on new legal problems arise, and the 6. The Act in its entirety applies only to a topic concerning legal forms and case law develops. England and Wales. 7. Polly Peck (Holdings) plc v Trelford practices unknown anywhere else. 1. Ipp, Themes in the Law of Torts, (2007) [1986] 1 QB 1000. But more importantly, the extensive 81 ALJ 609, 615. 8. (2000) 1 VR 667. footnoting is a valuable resource to a 2. Now in its third edition (2010). Payment claims in the building industry

JEREMY TWIGG

fter a slow take up in some of the initial teething problems in another annotation to the Acts. Victoria, the security of exposed through litigation arising The relevant issue is highlighted/ payment legislation is out of the Acts. The amendments emboldened in a topic heading now commonly used in this State by have resulted in NSW and Victoria underneath each section. Mr Wilson theA construction industry to recover following different paths in order to then explains succinctly the effect of payment for construction work and solve these problems. the case law on the operation of that related goods and services. The take up The Security of Payment Acts in section of the Act. by the industry was perhaps quicker NSW and Victoria contain certain The remaining text is in NSW, where the corresponding similar provisions but each has a comprehensive, addressing the legislation has been in operation distinct approach to the calculation effect of other Commonwealth and for longer. of progress payments and their State legislation on the Security of Despite the legislatures’ obvious recovery. Case law recognises and Payments Acts. intention to make recovery of highlights some of the differences, In my opinion, Mr Wilson’s payments in the construction as well as the similarities, which annotation is superior to other industry expeditious and efficient, adds to the complexity of practice in annotations of these Acts both because security of payments practice is this area. In my opinion, Mr Wilson of its presentation and the lucid decidedly difficult and complicated. has approached the very large and interpretation of case law applicable to In his forward to Mr Wilson’s text, complex task of annotating the NSW the Acts. Another bonus is that the text Justice Digby describes succinctly and Victorian Acts in a logical and is contained in a handy, slim volume. the attributes of the work in concise manner. Clearly, Mr Wilson has adopted an providing an understanding Mr Wilson has managed approach based on quality over of the operation of the Acts - the complexity caused by the quantity. “In the somewhat complex and difficult amendments to the Acts in two I will be using Mr Wilson’s text area of Security of Payment practice, ways. First, in Chapter two he sets – both in and out of the courtroom – Jeffrey Wilson’s excellent work out a comparative table between when I am considering the Security provides a most accessible reference the legislation in NSW and Victoria of Payments legislation. to important current jurisprudence (before and after their amendments informing an understanding of the commencing on 30 March 2007) Security of New South Wales and Victorian Acts presenting a very clear matrix of Payment in New and fills a major gap by providing a the Acts’ differences and their South Wales and substantial and practical text in the amendments. Secondly, in Chapter Victoria area.” three (the heart of the work) Mr by Jeffrey Wilson sets out the principles from Although the Acts were very similar Wilson, decided cases directly behind the LexisNexis when they commenced operation, text of the legislation, rather than Butterworths - the State legislatures have amended separately from it, as has been done Australia 2014 the Acts significantly to overcome

108 VBN VBN 109 boilerplate Excursions in the law

ROSS MACAW

xcursions are meant to be fun, as well as thought provoking, and these are. As is well known to those who appeared before him and have read his judgments, Peter HeereyE refreshingly thought it unnecessary to exclude a sense of humour from his judicial work. This collection of papers includes critiques of the performance of influential lawyers and politicians including Sir Owen Dixon, Justice Antonin Scalia, Judge Richard Posner and Abraham Lincoln. There are notes on significant cases, serious reflections on the way in which judges and justice systems operate (and should operate) and an examination of whether Australia would be well- served by a Bill of Rights. The pieces on Andrew Inglis Clark and the Orr case remind us of the strength of the Tasmanian influence. From the launch But the figures, cases and occasions are chosen as often as not because they have attracted the On 16 September 2014, barristers and friends of The Hon author’s keen eye for human weakness and the Peter Heerey AM QC gathered in the Essoign Club to launch absurd. his book Excursions in the Law. Jeremy Ruskin QC and the There is some history and a “Little Lore” about Hon James Gobbo AC QC both entertained attendees with the Victorian Bar and an account of an appearance rousing speeches about Mr Heerey and his book. Victorian before the Privy Council (“The thought crosses Bar News is proud to publish these photographs of the launch one’s mind that, trying to be as objective as one can, of this book, penned by our own former VBN editor. We also there is much to be said for the retention of appeals bring you a book review by Ross McCaw. We note that the to the Privy Council”). book is the perfect stocking filler, just in time for Christmas, A love affair with the Bard is confirmed. There is and we’re sure Mr Heerey will sign a copy for you if you give an account of the Merchant of Venice by reference him a call. EDS. to the Elizabethan forerunner of the Australian Consumer Law. There are some mild rebukes for abusers of the English language. Then there is some poetry. The author frankly acknowledges his view that poetry should rhyme. It is not clear if he agrees with this reviewer that rhyming is not only a necessary but a sufficient condition of poetry.

Excursions in the Law, by Peter Heerey

110 VBN VBN 111 boilerplate Legal friends of the Melbourne Recital Centre

Some harmony among lawyers MEREDITH SCHILLING AND HANNAH PELKA-CAVEN (VOLUNTEER, MELBOURNE RECITAL CENTRE)

he establishment of the group “Legal Friends of Melbourne TRecital Centre”, reflects the important place of music in the lives of many lawyers, and enables them to share their musical interests at concerts and events while providing the essential support the Centre needs to bring the world’s best musicians to Melbourne. This new initiative brings together members of the legal profession to support the Melbourne Recital Centre and its world-standard music program. The group was launched on October 7 2014 with an event on stage in the Centre’s inspiring Elisabeth Murdoch Hall. Each year, the group will support a special artistic project at the Centre, building a strong connection between members of the legal profession and this unique venue, which is widely regarded as Melbourne’s best place to hear and share great music of all kinds. The founding members of the group are the Hon David Byrne QC, George Golvan QC, Peter Murdoch QC, Meredith Schilling, Ingrid Braun and Elizabeth O’Keeffe. They were joined at the launch by many distinguished members of the legal profession, including the Hon Alan Goldberg AO QC, Justice Gordon, the Hon Hartley Hansen QC and Mrs Hansen and Associate Justice Lansdowne. Guests were treated to a selection of Schubert art songs performed by bass baritone Nick Dinopolos, accompanied by pianist Andrea Katz of Songmakers Australia. Melbourne Recital Centre CEO, Mary Vallentine AO, paid tribute to the group whose first project will see the gifted British pianist

Malcolm Martineau and superb Austrian baritone Florian Boesch illustration courtesy of guy shield/the slattery media group perform the great Schubert song cycles in July 2015, as part of the Centre’s Great Performers series. “This three-concert series presenting the very best of the vocal arts is a significant financial undertaking for the Centre that simply would not happen without philanthropic support,” she said. “We are delighted that so many members of the legal profession have joined together with us to make it possible.” In preparation for the Schubert concert series, the Legal Friends are planning a Schubert Song Cycles Study Day for early next year, which will be generously hosted at the Macedon home of Peter Murdoch QC and Helen Murdoch. The group is also working to build its membership so that ambitious artistic projects for 2016 and beyond can be realised. Further information about the Legal Friends of the Melbourne Recital Centre can be obtained from Jacqueline Williams, Philanthropy Manager of the Melbourne Recital Centre on ph. 9207 2653.

110 VBN VBN 111 VERBATIM

boilerplate Have you heard something interesting or amusing in court? Send in the transcript extract to [email protected]

Full Court of the Federal HER HONOUR: In light of that creation of Supreme Court of Victoria, Court; 13 May 2014 specific description I had better use the 30 September 2014 word “certify” that it is reasonable for Mr PTTEP Australasia (Ashmore Cartier) Djordjevic v Expoconti & Ors Byrne’s fees for attendance at court as a Pty Ltd v FCT Before Cavanough J, witness be fixed at $2,500. Stephen Sharpley QC MR MOULDS: Are you the partner of the MR SHARPLEY: Well, I mean as a Supreme Court of Victoria, plaintiff in this matter, Mark Djordjevic? general rule in our tax system we don’t WITNESS: Yes. recalculate to net present values. I 20 October 2014. MR MOULDS: What year did you first mean we operate on the face value of Boral Resources & Ors v CFMEU, unreported meet Mark, Ms Allerton? something. The High Court has said this decision of Derham AsJ , WITNESS: In Year 2006. a few times. Senior Counsel was left wondering MR MOULDS: And what were you PAGONE J: Well, I’m not sure that’s whether his Honour was suggesting that working as at that time? absolutely completely right, right she was able to make the hopeless and WITNESS: I was a beauty therapist. throughout the Tax Act. implausible sound plausible by dint of her MR MOULDS: And where were you MR SHARPLEY: Well, there may be erudition…or not: working? provisions that gross up or discount… WITNESS: Brazilian Butterfly.* “ The argument advanced by the PAGONE J: Additional securities, for … defendant, although unsuccessful, example – the whole division there. MR MOULDS: And where was the could not be said to be without Division 16A. Brazilian Barbecue? substance. It relied, albeit in a MR SHARPLEY: Your Honour has a WITNESS: Brazilian Butterfly? It was on technical way, on the operation of huge advantage over me in regard to old Bridge Road in Richmond. the Rules. It had, in addition, an air provisions HIS HONOUR: I don’t think they’d of technical substance made more barbecue their customers if they can County Court of Victoria plausible by the erudite submissions avoid it, Mr Moulds? of the Senior Counsel for the (Melbourne) … defendant. I tend to agree that Toth v Southern Health and MR MOULDS: It’s all a question of mature consideration of the point Secure Parking Pty Limited methodology. It sounds painful. shows it to have been hopeless, but Before Her Honour Judge Cohen, 5 June * Editors’ note: Brazilian Butterfly is a I am not persuaded that this should 2014 chain of beauty salons specialising in have been known to the defendant’s HER HONOUR:… the issue about Mr waxing and laser hair removal. advisors at the outset. Experience tells Byrne’s fees will simply be the costs that some apparently difficult points are to include the reasonable costs for sometimes succeed.” Mr Byrne’s attendance at court to give evidence be fixed at $2,500. DYSON HORE-LACY SC: Would Your Honour use the word certified? HER HONOUR: Do I have to use that word? MR HORE-LACY: No, Your Honour doesn’t, but it just sounds a little bit more judgery than “fixed”. HER HONOUR: Never let it be said I don’t want to sound more Judge like. PETER MURDOCH QC: I think the word was judger-ish, Your Honour. MR HORE-LACY: It’s a new word for the dictionary. It’s not the same as judicial, it’s being like a Judge. illustration courtesy of guy shield/the slattery media group slattery of guy shield/the courtesy illustration

112 VBN VBN 112 MezzanineMezzanine Level, 530 Level, Lonsdale 530 LonsdaleStreet Melbourne Street Melbourne VIC 3000 VIC 3000 T 03 9670T 2000 03 9670 F 03 2000 9602 F 2266 03 9602 E [email protected] 2266 E [email protected] www.ludlows.com.auwww.ludlows.com.au THE ART OF CHAMPAGNE SINCE 1836

visuel pommery FLEUR 270 x 205.indd 1 30/07/13 12:08