Expert Evidence

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THE JOURNAL OF THE NSW BAR ASSOCIATION | SPRING 2018 02 EDITOR’S NOTE 04 PRESIDENT’S COLUMN 06 NEWS 2018 Bench and Bar Dinner Bar Practice Course 01/2018 2018 Tutors and Readers Dinner EDITORIAL COMMITTEE Networking with a twist: the 2018 KWM Equitable Briefing Event Ingmar Taylor SC (chair) ADF Reserve Panel Dining In Anthony Cheshire SC Dominic Villa 14 OPINION Christopher Withers The limits of cross-examination Nicolas Kirby Legislating to end the Ellis defence Daniel Klineberg Catherine Gleeson Crisis in legal aid Victoria Brigden Market manipulation Caroline Dobraszczyk No memory: The ultimate defence? Talitha Fishburn Juliet Curtin 26 RECENT DEVELOPMENTS Radhika Withana 37 ADDRESSES David Robertson Kevin Tang The 2018 Bathurst Lecture Alexander Edwards 44 FEATURES Charles Gregory Expert evidence Bar Association staff member: Chris Winslow • A guide to concurrent expert evidence in NSW • Cross-examination of expert witnesses ISSN 0817-0002 • Reconsidering waiver of privilege Views expressed by contributors • Preparing expert witnesses to Bar News are not necessarily • Admissibility of expert evidence those of the New South Wales Bar Association. 86 LEGAL HISTORY

Contributions are welcome and The fascinating life of James Martin should be addressed to the editor: 50 years of UNCITRAL: What’s next? Ingmar Taylor SC Here he lies: Justice Douglas’ Arlington Grave Greenway Chambers Percy Valentine Storkey VC L10 99 Elizabeth Street Sydney 2000 105 PRACTICE DX 165 Sydney How to stop waking at 3am Contributions may be subject to Regional practice in 2018 editing prior to publication, at the 111 WHO IS A BARRISTER? discretion of the editor. Mark Higgins - skydiving barrister Cover: Playing in the hot tub, 113 INTERVIEW by Rocco Fazzari Greg Tolhurst 118 COMMITTEE ROUNDUP Chronic underfunding is the cause of delays in family law 120 OBITUARIES The onH CSC Sheller AO QC Bar News is published under a Sir Laurence Street Creative Commons ‘free advertising’ license. You are free to share, copy 122 APPOINTMENTS and redistribute the material in any 123 BOOKS medium or format. You must give appropriate credit, provide a link to 127 BAR SPORTS the license and indicate if changes Cricket were made. You may do so in any reasonable manner, but not in any 128 BULLFRY way that suggests the licensor Bullfry and the tennis circuit endorses you or your use. You may not use the material for commercial 130 ADVOCATUS purposes. If you remix, transform or 131 ARCHON’S VIEW build upon the material, you may not distribute the modified material. 132 THE FURIES

The Journal of the NSW Bar Association [2018] (Spring) Bar News 1 EDITOR’S NOTE

A special edition on expert evidence

I own one particularly well-thumbed past cles on legal history. In this edition Michael edition of Bar News: Andrew Bell’s Decem- Slattery tells us the fascinating story of Percy ber 2006 special edition on expert evidence. Valentine Storkey, the Sydney Law Student One of my first steps as editor was to and District Court Judge who won a Victoria commission Hugh Stowe of 5 Wentworth Cross in World War I. Geoffrey Watson SC Chambers to curate an updated suite of ar- writes about why US Supreme Court Justice ticles on expert evidence. In this edition you Douglas’ grave lies in Washington DC’s Ar- will find his thoughts on the ethical bounda- lington Cemetery in both senses of the word. ries involved in reviewing (not settling!) draft Can I end by thanking the outgoing Bar expert reports. A second article considers the News committee members on behalf of difficult question of whether legal profession- myself and my predecessor. Bar News is very al privilege can be maintained in respect of much a collaborative effort, and leans heavily communications with an expert. Victoria circuit brief greater than their legal aid brief on its committee members, and those who Brigden has written on cross-examination of fee. The book asks the question, why isn’t have left the committee will be missed. experts. David Robertson and Charles Greg- the resourcing of the criminal justice system ory provide an up to date and deeply practi- the subject of debate in the same manner as Ingmar Taylor cal discussion on the admissibility of expert access to health care? Perhaps it is because Greenway Chambers evidence. And there is a comprehensive most think a brush with the courts will not guide to concurrent expert evidence – or ‘hot happen to them – when in fact exposure to tubbing’ – by Adam Batt and Hugh Stowe. crime is as happenstance as a sudden illness An enormous amount of work has gone into or accident. these splendid articles, and Bar News records Michael Kearney SC writes about anoth- its appreciation to each of the contributors, er area of chronic underfunding - family and to Hugh Stowe in particular. law, and the extensive delays that occur in We are also pleased to publish the inau- that jurisdiction as a result. Matters being gural Bathurst Lecture on commercial law, commenced today involving children are delivered by the Hon Murray Gleeson AC unlikely to be determined inside three years. QC. Rocco Fazzari, previously of Fairfax, In regional centres matters listed for hearing has painted a portrait of Gleeson to accom- are routinely not reached and stood over for pany the lecture, along with three marvelous months to the next set of hearing days, when illustrations to accompany our expert evi- they may again not get reached. At times Bar News thanks Hugh Stowe for dence pieces. legal aid funding is exhausted before the curating the special edition articles This edition also carries some great pieces matter can be heard. on expert evidence. describing the practice of the Bar. First among This edition also carries some wonderful them is the piece by Alexander Edwards and positive stories, including a fantastic inter- Ting Lim on the regional bar – the 104 mem- view with Greg Tolhurst, who took over bers of the Bar Association whose chambers the role of executive director of the NSW are outside the Sydney CBD. Heydon Miller Bar Association in October 2016. The ar- (Orange), Shanna Mahoney (Parramatta), ticle reveals a learned and thoughtful man, Sophie Anderson (Lismore) and Belinda Ep- whose nascent career as a drummer in a stein (Newcastle) each describe the benefits rock band was happily cut short, and who, of practicing away from Sydney. through a series of fortunate events, became a Emmanuel Kerkyasharian has written well-published legal academic before joining a searing article on the wholly inadequate the Bar Association. Greg discusses the Bar Legal Aid rates, which have not increased Association’s strategic plan as one with many since 2007. A barrister briefed by Legal Aid initiatives, but to achieve them you need an to prepare and appear in a four week murder end point. ‘…the role of the Bar Association trial for an accused was paid $9.37/hour after is to safeguard the rule of law and support the expenses, less than half the national min- administration of justice in NSW through a imum wage. Emmanuel’s article is echoed sustainable cohort of high quality independ- in Catherine Gleeson’s review of The Secret ent practitioners at the Bar operating with Barrister, a book by an anonymous British integrity and thriving in a changing legal barrister. Baby barristers there at times liter- environment.’ ally pay to work, with their train fare for a Bar News remains the home of great arti-

2 [2018] (Spring) Bar News The Journal of the NSW Bar Association PRESIDENT’S COLUMN

A legal profession, not a legal business

‘The one great principle of the English law,’ The Bar Association has formed an hoc Charles Dickens once quipped, ‘is to make working party comprising E A Cheeseman business for itself’.1 Some 165 years later, SC, G A Donnellan and J C Conde to assist our profession still faces accusations that the us to consider and respond to the ALRC’s price to pay to access justice is too high. proposals. In May the ALRC released a dis- While we practise in a period of rapid cussion paper outlining proposals for reform. change, including the increasing interna- In July, the association provided input to the tionalisation and commercialisation of the Law Council of Australia on these proposals. law, the Bar Association’s Strategic Plan rec- The time is long overdue to explore these ognises that these changes occur against the issues thoroughly. In doing so, we must be constant of community and court concern prepared to look to other jurisdictions and about the cost of litigation. troduced to regulate third-party litigation learn from their experiences and mistakes. The cost of accessing legal representation funders; and whether solicitors should be Disputes and litigation are not limited to and justice services remains a live concern to permitted to enter into contingency fee ar- NSW, nor should discussions of policy be. Australia’s legal profession in the 21st centu- rangements. I recently had the privilege of meeting with ry. Cost is often the decisive factor for clients While these are not new arguments, it the president of the New York City Bar As- considering whether to engage counsel or has become increasingly clear with the rise sociation, Roger Maldonado. I walked away pursue litigation. The costs associated with of class actions that a definitive answer is from that meeting with the conviction that litigation are prohibitive and may deter mer- needed to provide clarity and maintain con- we are strongest as a legal profession when itorious claimants from seeking recourse via fidence in our courts and our lawyers. Cost we stand together with our international the courts. Importantly, the affordability of should not prevent justice from being done. colleagues. justice impacts on the quality of the rule of However, barristers deserve to be reasonably Although the NYC Bar is almost ten law. There is no doubt that costs also impact and properly compensated for the work we times the size of the New South Wales Bar, upon the reputation and integrity of the perform. Crucially, we believe that the prac- we face many of the same challenges, in- legal profession. Fee-related disputes make tice of law must remain a profession, not a cluding disproportionate incarceration rates up a significant source of complaints against business.3 of minorities and retaining women lawyers. solicitors and barristers. There is much to be gained from sharing our As barristers, we have a paramount duty to A national inquiry experiences across jurisdictions and borders. fearlessly serve the administration of justice This is particularly true of policy responses and an obligation to resolve matters as justly, In 2017 the attorney-general of Australia to the challenges and opportunities posed cheaply and quickly as possible. Where ten- tasked the ALRC to consider whether class by third-party litigation funding and con- sions present in our practice between these action proceedings and third-party litigation tingency fees, as these issues have had a very three principles, we are called to reconcile funders should be subject to Commonwealth different history and treatment in the USA these as best we can in accordance with the regulation and whether there is adequate as compared with NSW. law and with our ethical obligations. regulation of related matters including:4 The chief justice of New South Wales Litigation funders has observed that ‘commercialisation is not • relationships and conflicts of interest inherently bad or evil; it is a different set of between lawyers, litigation funders and One of the ALRC’s most significant propos- means and ends, which both complement plaintiffs; als for reform is that the Corporations Act and conflict with the means and ends of 2001 (Cth) should be amended to require professional legal practice’.2 • prudential requirements; third-party litigation funders to obtain and Advocates of third-party litigation fund- maintain a ‘litigation funding licence’ to ing and contingency fees have long argued • distribution of litigation proceeds and the operate in Australia.5 that these initiatives actually serve, rather desirability of statutory caps on the pro- The introduction of the federal class action than undermine, the rule of law by facilitat- portion of settlements or damages awards regime in 1992 was a watershed moment in ing access to the courts for complainants who that may be retained by lawyers and litiga- Australia’s legal history. It was not without otherwise could not afford to seek recourse. tion funders; controversy, in fact it was described by some The Australian Law Reform Commission as a ‘monstrosity’.6 Fears the regime would is currently inquiring into class action pro- • requirements and fitness to be a litigation open the floodgates to litigation do not ceedings and third-party litigation funders. funder; and appear to have eventuated.7 However, there The Bar Association welcomes the op- has been a steady rise in the number of class portunity for a national discussion on these • costs charged by solicitors in funded liti- actions, accompanied by an increase in the issues, particularly on two key questions: gation, including class actions. number and the involvement of commercial whether a licensing regime should be in- third-party litigation funders.8

The Journal of the NSW Bar Association [2018] (Spring) Bar News 3 PRESIDENT’S COLUMN

regime; is it clear that the licensing regime could guarantee that only reputable funders enter the market; and how to define who is a ‘third-party litigation funder’. If an individual borrows from a bank to fund their litigation, for example, would that make the bank a ‘third-party litigation funder’? The association has said that if a licensing regime is ultimately introduced, there must be adequate funding to set this scheme up for success. The approach to litigation funding in the USA is more haphazard, with regulation left to each state rather than the federal government. Many states do not have formal regulation, and assessment of litigation funding agreements has fallen to the courts.14 In May, bills were introduced into the New York State Assembly to regulate litigation funders, such as by capping interest rates or requiring companies to educate their customers about fee structures.15

Contingency fees

Australian solicitors are currently prohibited from billing clients on a ‘contingency fee basis’ where the solicitors’ services are provided in exchange for a percentage of the amount recovered by the litigation.16 Such arrangements must be distinguished from lawful ‘conditional fee agreements’ where a lawyer appears on a ‘no win/no fee’ basis and may charge a percentage of uplift of fees.17 Lawyers are usually remunerated on a fee-for-professional-service basis. The Bar Association maintains that this model should not be abandoned without a compelling case justified by public benefit. The ALRC has proposed that solicitors President Arthur Moses SC with the president of the New York City Bar Association, Roger Maldonado. acting for the representative plaintiff in class action proceedings should in limited It is estimated that 25 litigation funders Australian Financial Services Licence.12 circumstances be permitted to enter into currently operate in Australia.9 Litigation The ALRC argues that a licensing regime contingency fee agreements to ‘allow class funders do not require a licence to operate would ensure continuous scrutiny of action solicitors to receive a proportion of here,10 which means there are effectively funders, better protect consumers and other the sum recovered at settlement or after no minimum standards to be met before a parties to the litigation, and incentivise com- trial to cover fees and disbursements, and to person may represent themselves as being a pliance.13 reward risk’.18 Additionally, the ALRC has litigation funder.11 By regulation litigation The Bar Association questions the need for suggested that contingency fee agreements funders are exempt from the requirements of a licensing regime. We believe that the issues in class action proceedings should only be the Consumer Credit Code and the defini- this regime would purportedly address can permitted with leave of the Federal Court.19 tion of a managed investment scheme under be adequately regulated under current law. Arguments in favour of contingency fees the Corporations Act 2001 (Cth), and may Introducing a licensing regime raises rely on the potential to promote increased be exempt from the requirement to hold an three further issues: who would police the access to justice, particularly for members

4 [2018] (Spring) Bar News The Journal of the NSW Bar Association PRESIDENT’S COLUMN

of mid-sized class actions which are rarely contribute to the bringing of unmeritorious END NOTES funded by litigation funders; to promote claims. 1 C Dickens, Bleak House (first published 1853, Wordsworth Editions competition and reduce commission rates; The key issue in the current debate is Limited, 1993) 467. and to mitigate conflicts of interest, com- whether contingency fees can be imple- 2 The HonT F Bathurst, Chief Justice of New South Wales, pared with time-based billing which has mented in NSW in a manner that does Commercialisation of Legal Practice: Conflict Ab Initio; Conflict De Futuro been said by some to reward ‘the dull and not adversely impact upon the interests of (Speech to the Commonwealth Law Association Regional Conference, 20 the slow’. litigants or the duties of lawyers as officers Sydney, 21 April 2012) 3. of the court. In contrast to our experiences 3 See, eg, Spigelman CJ, Swearing In Ceremony of The Honourable J in NSW, contingency fees have been allowed J Spigelman QC as Chief Justice of the Supreme Court of New South in the USA for more than 230 years.21 If Wales (25 May 1998) . The Bar Association has to 4 ALRC, Class Action Proceedings and Third-Party Litigation Funding, to be carefully considered. For more than Discussion Paper No 85 (2018) 3. date opposed contingency fees. 60 years, contingent fee lawyers have been 5 Ibid, Proposal 3-1. required by New York courts to file confi- 6 Ibid, 14 [1.3], quoting Commonwealth, Parliamentary Debates, Senate, A significant issue that has dential ‘closing statements’ with the court 13 November 1991, 3019 (Senator Durack). when a case is resolved, disclosing their fees, 7 Ibid, 14 [1.4]-[1.5]. underpinned that opposition is settlement amounts, expenses and related 8 Ibid, 14 [1.5], 37 [2.9]-[2.11] information.22 This requirement was imple- 9 Ibid, 16 [3.30]. the concern that allowing legal mented in response to concerns raised in the 10 Ibid, 43 [3.1]. 1920s by the New York City bench and bar 11 Ibid, 49 [3.24]. practitioners to hold a direct and 12 Ibid, 43 [3.1] citing Corporations Amendment Regulation 2012 (No. 6) about contingent fee lawyers’ conduct and (Cth) Items 6, 1B and 1. ‘ambulance chasing’.23 Today, retainer and potentially substantial financial 13 Ibid, [3.2]. closing statement requirements apply to all 14 Incerto, Rodgers & Cummings, ‘The Third Party Litigation Funding interest in the outcome of a given attorneys practising in Manhattan or the Law Review – United States’, The Law Reviews(online) (2018) . 15 Andrew Denney, ‘NY Lawmakers Considering Bills to Consumer compromising the practitioner’s The cost of justice Litigation Funding’, New York Law Journal (online) (29 May 2018) . anyone with an internet connection can be 16 ALRC, above n 3, 82 [5.5]; see, eg, Legal Profession Uniform Law overriding duty of candour and (NSW) s 183. a commentator, and the rule of law is often 17 Ibid, 82 [5.6]. possibly the duty to their client. tossed around like confetti without thought 18 Ibid, 88 – Proposal 5-1. to its meaning, there are many competing 19 Ibid, Proposal 5-2. voices that may overshadow barristers’ voices 20 Ibid, [5.11], [5.13], citing Michael Legg, ‘Contingency Fees—Antidote in the public domain. or Poison for Australian Civil Justice?’ (2015) 39 Australian Bar Review That does not mean that the message of 244, 250-1; Michael Duffy, ‘Submission 22 to the Victorian Law The Bar Association has to date opposed the NSW Bar is any less important or urgent. Reform Commission, Litigation Funding and Group Proceedings’ (5 contingency fees. A significant issue that has It is as critical now as ever for the Bar to October 2017) 23. underpinned that opposition is the concern speak up for the administration of justice 21 ALRC, above n 3, [5.21], citing Contingency Fee Working Group, Law that allowing legal practitioners to hold a and the independence of the legal profession Council of Australia, ‘Percentage Based Contingency Fee Agreements’ (May 2014), 4. direct and potentially substantial financial – even and especially when it is unpopular 22 Helland, Klerman, Dowling, & Kappner, ‘Contingent Fee Litigation in interest in the outcome of a given case to do so. New York City’ (2017) 70(6) Vanderbilt Law Review 1971, 1971-2. creates a serious risk of compromising the The cost of accessing justice remains a 23 Ibid, 1972-3, citing Isidor Wasservogel, Report To Appellate Division, practitioner’s fundamental duty to the court, significant concern. But the economic and First Judicial Department, 4 (1928). the overriding duty of candour and possibly social cost of losing a robust and independ- 24 Ibid, 1976. the duty to their client. At best, it creates the ent legal services profession is greater. For appearance of a conflict which can be just as the New South Wales Bar, outweighing all damaging to the profession’s reputation. considerations in the current debate on con- There is also the equally important contingency fees, litigation funding and class cern that contingency fees may create risk actions, is the fact that we are a profession for vulnerable plaintiffs, exarcerbate rather that has an overriding duty to the court as than ameliorate conflicts of interest and officers of the court and not just a business.

The Journal of the NSW Bar Association [2018] (Spring) Bar News 5 NEWS

Bench & Bar Dinner

This year’s Bench & Bar Dinner was held on Friday, 4 May in the Ballroom of the Hyatt Regency Sydney. The guest of honour was Chief Justice Susan Kiefel AC. Mr Senior was John Sheahan QC and Ms Junior was Emma Beechey.

The Hon Justice Virginia Bell AC and President Arthur Moses SC John Sheahan QC

Mr Senior John Sheahan QC

Arthur Moses SC, the Hon James Spigelman, the Hon James Spigelman AC QC Chief Justice Susan Kiefel AC and Chief Justice Susan Kiefel AC

Margaux Matthews The Hon Justice Margaret Beazley AO and John Sheahan QC Meher Gaven, Emily Graham and Lachlan Menzies

6 [2018] (Spring) Bar News The Journal of the NSW Bar Association NEWS

James Gibson, David Chin, Elizabeth Raper Ms Junior Emma Beechey The Hon Michael Black AC QC

Justin Simpkins Virginia Lydiard and his Honour Judge Frearson SC Her Honour Judge Julia Baird SC

Anthony Bellanto QC and Richard Battley Attorney General Mark Speakman SC Chief Justice Tom Bathurst AC

The Journal of the NSW Bar Association [2018] (Spring) Bar News 7 NEWS

Tutors & Readers Dinner

The 2018 Tutors & Readers Dinner was held in the Establishment Ballroom on Friday, 22 June. The guest of honour was Her Hon Judge Julia Baird and the Reader Speaker was Tim Senior.

L to R: Karen Shea, Ermelinda Kovacs L to R: Kate Lindeman, Claire Palmer Top L to R: Phoebe Arcus, Wen Wu, Eamonn O’Neill Bottom L to R: Karen Petch, Diana Tang.

L to R: Connor Bannan, Tim Senior, Laura Johnston, Patrick Reynolds Matt McAuliffe Her Honor Judge Julie Baird

Nili Hali David Jordan L to R: Simon Snow, Alice Zheng, Elenor Doyle-Markwick

8 [2018] (Spring) Bar News The Journal of the NSW Bar Association NEWS

Top L to R: Kim Pham, Craig Lenahan, Shipra Chordia Tim Senior Bottom L to R: Stuart Lawrance, Domenic Delaney, Christina Trahanas, Michael Izzo

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The Journal of the NSW Bar Association [2018] (Spring) Bar News 9 NEWS

Bar Practice Course 01/2018

Bill De Mars, Michael Fokkes, Sam Blackman, Stephen Dametto, Thomas Arnold, Aidan Gandar, Tim Senior, John Wydell, Brendan Jones, Bryan Williams, Alex Langshaw, Michael Swanson, Anders Mykkeltvedt Olla Otrebski, Christina Trahanas, Michael Todd, James Haddock, Craig Longman, Andrew McMaster, Jayne Treherne, Karl Prince, Nicholas Condylis, Eliot Olivier, Wali Shukoor, Paul McDonald, Tommy Bicanic, Michael Keene Mark Burton, Stephen Dayeian, Joel Cook, Dewashish Adhikary, Adam Guy, Ben Cameron, Nicholas Riordan, Simon Snow, Gilbert Tsang, David Robens, Jonathan Martin, Chris Day, Ronny Chen Ermelinda Kovacs, Gregor Urbas, Linda Barnes, Lara Nurpuri, Rhea Thrift, Alice Zheng, Anish Bhasin, Dominic Delany, Jake Harris, Gregory Schipp, Stephen Hopper, Hussein Elachkar, Eleanor Doyle-Marwick, Matthew McCauliffe Kate Nightingale, Andrew Wong, Louise Beange, Constantina Lioumis, Karen Shea, Tanya Harris-Roxas, Carolina Soto, Katrina Curry, Shipra Chordia, Peter Allport, Georgina Westgarth, Laura Johnston, Jason Polese

Ermelinda Kovacs, Linda Barnes, Christina Trahanas, Olla Otrebski, Jayne Treherne, Lara Nurpuri Kate Nightingale, Louise Beange, Laura Johnston, Constantina Lioumis, Alice Zheng, Eleanor Doyle-Marwick, Georgina Westgarth

10 [2018] (Spring) Bar News The Journal of the NSW Bar Association NEWS

Networking with a twist

The 2018 KWM Equitable Briefing Event

On 17 May 2018, King & Wood Mallesons between KWM and Woolworths and a gender equitable briefing. held the 2018 KWM Equitable Briefing desire to take practical action to advance KWM has adopted the Gender Equitable Event. It consisted of a ‘speed-dating’ seg- this imperative. We recognise the power Briefing Policy as part of a broader gender ment followed by open networking struc- of increasing the visibility of female equality strategy, consisting of a range of ini- tured around practice areas and had the barristers and cultivating connections tiatives across the firm. For equitable briefing, primary objective of creating connections with corporate counsel and our desire these include information sessions, resources between in-house counsel, women barristers was to do this in a way that was both for staff and a commitment to internal and and KWM lawyers. It was underpinned by engaging and productive. external reporting to monitor progress. the theme for International Women’s Day, Press for Progress. Woolworths chief legal officer, Richard By Brenda Tronson, Level 22 Chambers Speaking to the gathering KWM partner, Dammery, Kate Eastman SC and Peta Ste- Peta Stevenson, said: venson each spoke to welcome participants. The event was borne from the shared A broad range of clients was represented, commitment to equitable briefing demonstrating the common commitment to

CORRECTIONS

[2018] (Autumn) Bar News featured an arti- [2018] (Autumn) Bar News featured a cle ‘Practising at the London Bar’, which was number of articles on First Nations people divided into two sections: ‘Reflections from and the law, including a lengthy piece that a Sydney barrister’ and ‘Reflections from a records what was said by each speaker at the London barrister’. The first was authored Bar Association seminar on 24 October 2017 by Christopher Parkin of 5 Wentworth regarding the Uluru Statement. That article Chambers. Unfortunately, attribution for refers to one of the speakers as Associate the second section was omitted. It was in fact Professor Rosalind Dixon. This is incorrect. written by Duncan McCombe, of Maitland Her correct title is Professor Rosalind Dixon. Chambers in London. Bar News apologises Bar News apologises for any confusion or to Duncan and regrets any confusion that inconvenience it might have caused. might have been arisen.

The Journal of the NSW Bar Association [2018] (Spring) Bar News 11 NEWS

Acting for the cause of the free

Arthur Moses SC spoke at the ADF Reserve Panel Dining In for Reserve Lawyers on 27 July 2018. Following his address, the president of the Bar Association said that he offered his heartfelt thanks to all ADF Reserve Legal Officers for their service both in Australia and overseas.

L to R: SQNLDR Arthur Moses SC, RAAFSR, President, NSW Bar Association ARM; LTCOL Graham Barter; LTCOL Jonathan Hyde Judge Advocate / Defence Force magistrate; CAPT Luke Chapman; MAJ John Paccriotta

LCDR Felicity Rogers; CMDR Nanette Williams

LCDR Malcolm Gracie; Flight Lieutenant Petra Geara

12 [2018] (Spring) Bar News The Journal of the NSW Bar Association NEWS

L to R: SQNLDR Arthur Moses SC, RAAFSR, President, NSW Bar Association; LTCOL Doug Humphreys, Australian Army, President Law Society of NSW; Commodore Peter Bowers, RAN, Director General, ADF Legal Services; Justice Slattery, Rear Admiral RANR, JAG-ADF.

L to R: LTCOL Doug Humphreys, Australian Army, L to R: LTCOL Doug Humphreys, Australian Army, President Law Society of NSW; SQNLDR Arthur Moses President Law Society of NSW; Commodore Peter SC, RAAFSR, President, NSW Bar Association; Commodore Peter Bowers, RAN, Director General, ADF Bowers, RAN, Director General, ADF Legal Services. Legal Services.

The Journal of the NSW Bar Association [2018] (Spring) Bar News 13 OPINION

The limits of cross-examination

By Anthony Cheshire SC

I began my career at the Bar in the early duty to the court is paramount. That 1990s appearing in many small claim motor duty to the court imposes obligations vehicle accident trials across England and on the barrister with which the barrister Wales. Often all that was at stake was the cli- must comply even though to do so ent’s excess and no-claims bonus with maybe is contrary to the interests or wishes a few travel expenses. The early temptation of the client. Thus, the barrister can was to see the adversarial process as requiring do nothing that would obstruct the a confrontational approach to every issue, administration of justice by: deceiving even if the amount at stake was a matter of the court; withholding information only a few pence. A similar approach perme- or documents that are required to ated directions hearings, where a request for be disclosed or produced under four weeks would, as a matter of course, be the rules concerned with discovery, met with a counter of two weeks. profession or occupation. These are not interrogatories and subpoenas; abusing After a few initial frustrating attempts empty words, nor is it their purpose the process of the court by preparing to agree small quantum figures with other to express or encourage professional or arguing unmeritorious applications; fresh-faced and similarly aggressive junior pretensions. They should be understood wasting the court’s time by prolix or barristers, I came to a rapid realisation – not as a reminder that a barrister is more irrelevant arguments; coaching clients only that making the court determine every than his client’s confidant, adviser and or their witnesses as to the evidence they issue did not really assist the court in deter- advocate, and must therefore possess should give; using dishonest or unfair mining ‘the real issues in the case’ – but it more than honesty, learning and forensic means or tactics to hinder an opponent was often not in the client’s best interests ability. [The barrister] is, by virtue of in the conduct of his or her case. since it irritated the court and often distract- a long tradition, in a relationship of ed it from my best points. intimate collaboration with the judges, Thus Pembroke J wrote in James v Phil- Fortunately, the hostility and rudeness as well as with … fellow-members of the lips [2017] NSWSC 148 of the need of that can characterise some practitioners’ Bar, in the high task of endeavouring to practitioners ‘to restrain the enthusiasms, conduct is still the exception rather than make successful the service of the law and sometimes the vindictiveness, of their the rule and, where it does occur, it rarely to the community. That is a delicate clients; and to correct the misapprehensions spills over outside the courtroom. There are relationship, and it carries exceptional and wrong-headed notions from which they at least four reasons for this: the ordinary privileges and exceptional obligations. sometimes suffer’; and in Thomas v SMP obligations of the practitioner to the court; (International) Pty Ltd [2010] NSWSC 822 the more recent statutory obligations to of the need to temper ‘a strictly adversarial similar effect; the fact that such an approach approach to the presentation of a party’s case is often counterproductive in advancing the and, where necessary, to restrain the enthusiasms of the client and to confine their evi- client’s case; and the fact that this job is hard ‘Robust advocacy, which is enough even with professional detachment dence to what is legally necessary, whatever and objectivity and without the introduction commendable, does not license misapprehensions the client may have about of personal attacks and unpleasantness. Fur- the utility or the relevance of that evidence’. ther, the profession is at least to some extent rudeness, which is not’ and As the Court of Appeal noted in The self-regulating, and a good reputation, with Owners – Strata Plan 21702 v Krimbogiannis both other practitioners and judicial officers, thus one should not describe the (No 2) [2015] NSWCA 39, the use of the is hard-earned and valuable. words ‘we are instructed to seek an order’ Thus professional obligations override a submissions of one’s opponent does not exonerate a legal representative from short term forensic gain (Day v Rogers [2011] his or her obligations to the court. NSWCA 124) and, whatever the effect upon as ‘arrant nonsense’. The duties and obligations that impose the particular case, preferring the latter can upon practitioners an obligation to be more cause long term damage to a practitioner’s than a ‘mere mouthpiece’ in their dealings standing and reputation. with their own clients extend to dealings A useful starting point is the statement of To similar effect are the observations of in court and with opponents. Thus, courts Kitto J in Ziems v Prothonotary of the Supreme McHugh J in D’Orta-Ekenaike v Victoria expect ‘civility and professional comity’ with Court of NSW (1957) 97 CLR 279 at 298 Legal Aid (2005) 223 CLR 1 at 41: ‘a rational and non-combative approach to (cited together with other useful authorities resolving the issues raised’ (Nair-Smith v in Body Corporate Repairers Pty Ltd v Oakley Despite being in a relationship of Perisher Blue Pty Ltd [2011] NSWSC 878). Thompson & Co Pty Ltd [2017] VSC 435; 322 confidence with a lay client, the first That includes not making baseless allegations FLR 355 at [119] and following): duty of the barrister is not to the client of professional misconduct (such as an allega- but to the court in which the barrister tion of ‘cunning and deception’ made in the It has been said before, and in this case appears. The duty to the instructing absence of ‘reasonably compelling evidence’ the chief justice of the Supreme Court solicitor or the lay client is secondary. (Bale v Mills [2011] NSWCA 226 at [91])). has said again, that the Bar is no ordinary Where the respective duties conflict, the Still less should practitioners make threats of

14 [2018] (Spring) Bar News The Journal of the NSW Bar Association OPINION professional reporting or wasted costs orders as part of an attempt to gain an advantage in the litigation (Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300 at [194]). As Palmer put the matter in Arena Man- agement Pty Ltd v Campbell Street Theatre Pty Ltd (No2) [2010] NSWSC 1230: ‘Robust advocacy, which is commendable, does not license rudeness, which is not’ and thus one should not describe the submissions of one’s opponent as ‘arrant nonsense’. Many of the rules governing cross examination derive from the same principles. In Lets Go Adventures Pty Ltd v Barrett [2017] NSWCA 243, the trial judge had made adverse credit findings that were based, at least in part, on the fact that a witness’ demeanour changed at a particular point in cross examination, which was when it was put to him that he was lying. The Court of Appeal held that there had been no factual basis so to accuse him and further that counsel’s questions and comments, many of which had been ‘gratuitous and supercilious’ and accompanied by ‘inappropriate rebukes’ made the witness’ response understandable. Apart from the breach of professional obligations in accusing the witness of lying in the absence of a reasonable evidentiary justifica- “Forget you’re a lawyer, Fred, you’re cross examining me again.” tion, the court put the matter thus at [123]:

Procedural fairness requires more than merely giving each party an opportunity One of the often breached rules is to con- duties, before quoting the words attributed to be heard. It also requires that each front a witness with the testimony of other to Lord Bingham of Cornhill: witness be permitted to answer questions persons in order to suggest that the witness is without being abused in the process. incorrect. This ‘technique has elsewhere been The effective advocate is not usually This is not to say that cross-examination described as ‘a form of bullying — using he or she who stigmatises conduct as cannot be robust, but it must be fair. unfair means to persuade a person to retract disgraceful, outrageous, or monstrous, The latitude commonly afforded to his or her evidence’’ (see Rees v Bailey at [57]). but the advocate who describes it as cross-examiners does not amount to The prohibition extends to a witness ‘being surprising, regrettable or disappointing. a licence to offend, ridicule or vilify. asked to provide an explanation as to why Fairness requires that no proposition, the first witness considers that the evidence Finally, in Birketu Pty Ltd v Westpac Bank- particularly one which is damaging to of the second witness differs from the evi- ing Corporation [2018] NSWSC 879, Mc- the witness, be put without a basis. It dence of the first witness’ Chahal( Group Pty Dougall J considered an interlocutory matter also requires that questions be asked one Ltd v 7-Eleven Stores Pty Ltd [2018] NSWCA that had been marked by ‘discourtesy’ and at a time and that cross-examination not 58). Counsel is, however, ‘entitled to ask the ‘pugnacity’, where each party had ‘been keen be peppered with gratuitous and, as in witness whether he would agree with other to throw epistolary grenades at the other’, the present case, insulting, commentary evidence if it were given’ (Rees v Bailey at albeit not rising to the level of the ‘offensive, to the witness. It requires that the [57]). vituperative and gratuitously insulting’ cor- witness be permitted to finish his or her Earlier in this article, I noted that respondence in McGuirk v The University of answer and not be cut off or needlessly compliance with the various professional New South Wales [2009] NSWSC 253. interrupted. obligations can make a practitioner a more His Honour concluded as follows: effective advocate. I return to that issue with Similar observations were made as to the comments of Pembroke J in McLaughlin If it were possible, I would consider counsel’s obligations not to allege in court or v Dungowan Manly Pty Ltd (No 3) [2011] giving a direction that each side take a in a pleading (or indeed otherwise) ‘criminal NSWSC 717: step back and a cold shower and then conduct or some lesser but serious discred- resume the civilised preparation of itable misconduct against a witness or party It needs to be emphasised that the the litigation. But that is an order for without a proper foundation to do so’ in Rees efficient conduct of commercial which no precedent exists, and which v Bailey Aluminium Products Pty Ltd (2008) litigation, indeed all litigation, can only I perceive to be beyond even the wide 21 VR 478 at [32]: be assisted by restraint, moderation, powers conferred by [UCPR] r 2.1. sensible co-operation and sound …counsel must exercise an independent judgment by counsel. Indeed the due The Rules Committee might wish to con- discretion or judgment to ensure that administration of justice demands it. sider introducing an express power to that the conduct of their client’s case is in effect or alternatively a guiding principle for accordance with the dictates of the His Honour then referred to the wider duty all practitioners as I prefer to express it: don’t administration of justice. to the court and the more recent statutory be a goat.

The Journal of the NSW Bar Association [2018] (Spring) Bar News 15 OPINION

Legislating to end the Ellis defence

By Attorney General Mark Speakman SC

On a rainy June Sunday in Queens Square, too long had lived in the dark. It brought to I announced that the NSW Government light the incredible courage and persever- would be overhauling civil litigation laws ance of child sexual abuse survivors. It drew in response to the recommendations of the attention to the individual and institutional Royal Commission into Institutional Re- failures that had contributed to those survi- sponses to Child Sexual Abuse. vors’ of trauma. And it showed how the law – Co-announcing this set of reforms with me ostensibly a protector of the vulnerable – had was an inspirational advocate, John Ellis. For undermined attempts to remedy the effects years, John had been championing the cause of the abuse. of those who, like him, had been scarred by Notably, the Ellis defence was identified by childhood sexual abuse. His advocacy before, the royal commission as being one legal out- during and after the royal commission was come in need of change. According to the royal instrumental in bringing to light the changes of Appeal otherwise. In a seminal judgment, commission, ‘the difficulties for survivors in that needed to be made – and in moving published on 24 May 2007, the Court of identifying a correct defendant when they are governments to implement them. Appeal sided with the first instance judge on commencing litigation against unincorporat- John understood all too well the legal bar- this point. The court held that the Archdi- ed religious bodies, or other bodies where the riers confronting survivors seeking compen- ocese of Sydney, being an unincorporated assets are held in trust, should be addressed’.6 sation and accountability for their trauma. association, could not be sued and that a rep- But the law giving rise to this set of difficulties He himself had brought proceedings with resentative order was unavailable to remedy was by no means the only example of a civil that objective. this problem.3 law that was recognised as discordant with the In his proceedings, John contended that The Court of Appeal also allowed an realities of child sexual abuse. legal responsibility for his sexual abuse appeal against orders of the first instance Rather, the royal commission identified by a priest (who was deceased by the time judge allowing John’s case to proceed against a number of ways the law had operated proceedings were brought) extended to the the trustees of the church for the Archdiocese against child sexual abuse survivors seeking archbishop of Sydney, among other things of Sydney.4 In the Court of Appeal’s view, the compensation, including through an overly as ‘head of the unincorporated association mere fact that the trustees held property for narrow conception of vicarious liability that known as the Catholic Archdiocese of and on behalf of the church did not mean did not clearly extend to torts committed by Sydney’.1 Chief among the barriers to a that the trustees could be held liable for the volunteers or religious officers, and through successful claim was a formidable argument tortious conduct of John’s abuser, especially the absence of an appropriately strict duty of that the limitation period should not be because the trustees had no power of ap- care to prevent child abuse. extended because the archbishop could not pointment or oversight of priests.5 In its proposed legislative response to the be held liable for torts that, loosely speaking, John’s claim was dismissed. royal commission, the NSW Government has were said to have been committed by an For years, the ‘Ellis defence’ – a somewhat been determined to implement reforms direct- unincorporated association. If this aspect of protean term later given to describe variously ed at excising this tendency from the law. John’s claim were to succeed, he needed to some or all of the Court of Appeal’s reasons These reforms include: overcome this argument. for dismissing John’s claims against both the He did not. A Supreme Court judge held Archdiocese of Sydney and the trustees – cast • codifying and extending the prospec- that the Catholic Archdiocese of Sydney was its shadow over potential claims of child sexual tive vicarious liability of institutions for not a sufficiently identified class of persons abuse survivors against the Catholic Church. employees to cover non-employees, like for whose torts the archbishop could be That is, until the Royal Commission into volunteers or religious officers, who have found liable and refused to extend the lim- Institutional Responses to Child Sexual taken advantage of their position to perpe- itation period in respect of the claim against Abuse was convened. trate child abuse; the archbishop.2 The Royal Commission shone a corus- Nor was John able to convince the Court cating spotlight on shameful truths that for • imposing a new statutory duty of care on

16 [2018] (Spring) Bar News The Journal of the NSW Bar Association OPINION

John Ellis, who championed the cause of those who had been scarred by childhood sexual abuse. Photo: Steven Siewert / Fairfaxphotos

all institutions that exercise care, supervi- the scheme. The scheme, which began on END NOTES sion or authority over children, to prevent 1 July 2018, includes a payment of up to 1 Ellis v Pell [2006] NSWSC 109 at [5]. child abuse (such that an institution will $150,000 in recognition of a survivor’s hurt be liable for child abuse, prospectively, 2 Ibid [55]–[56]. and injury, a direct personal response from 3 Trustees of the Roman Catholic Church v Ellis [2007] NSWCA 117 at unless the institution can prove it took rea- the institution involved and, in NSW, access [47], [61], [93]. sonable precautions to prevent the abuse); to unlimited counselling and psychological 4 Ibid [151]. and perhaps most notably, support. 5 Ibid [140]–[141], [149]. These reforms can never undo the hurt and 6 Royal Commission into Institutional Responses to Child Sexual Abuse, • introducing a ‘proper defendant’ law to suffering of survivors. Nor do they relieve the Redress and Civil Litigation Report, 2015, p 58, available at https:// prevent institutions relying on the Ellis government – an institution that itself failed www.childabuseroyalcommission.gov.au/sites/default/files/file-list/ defence. This law will mean that courts to protect children in its care – of the need to final_report_-_redress_and_civil_litigation.pdf. will have the power to appoint trustees do significantly more work in this area. But 7 Newcastle Herald, Letters to the editor June 11 2018, 2018, available online at https://www.theherald.com.au/story/5457205/train-between- to be sued if the sued institution fails to these laws will improve access to recognition, cities-is-anything-but-pretty/. nominate an entity with assets as a proper or even justice, for those who have been defendant and to allow the assets of an scarred by sexual abuse. associated trust to be used to satisfy the In the words of John Ellis himself, in a claim. Importantly, this law will apply letter to the Newcastle Herald:7 retrospectively and prospectively. As the Ellis defence is confined to the The National Redress Scheme sits along- annals of legal history, we can look side these reforms, as a less onerous means forward to a society in which child for survivors to seek justice without the stress protection and accountability of those and costs of navigating the courts. NSW was who take the sacred trust of caring the first state to enact legislation referring for children are given their rightful powers to the Commonwealth to implement prominence.

The Journal of the NSW Bar Association [2018] (Spring) Bar News 17 OPINION

The following is a revised version of a speech given by Emmanuel Kerkyasharian in the Bar Association Common Room at a seminar titled ‘Crisis in Legal Aid’ on 18 April 2018. Crisis in Legal Aid

Not long ago, a four-week trial was conduct- cut for some things, like many summary ed before the Supreme Court. The charge hearings before magistrates. was murder. It involved complex issues of The wages of in-house Legal Aid lawyers law. The two co-accused on indictment were have kept pace with the wage rise of all gov- sentenced to non-parole periods in excess of ernment funded law jobs. So have the wages twenty years. of the administrators who work there. One of them was represented by a public Conservatively, there has been at least a defender. That public defender cost the State 20 per cent reduction – and one has only of NSW about $2,800 per day of preparation anecdote on which to base that figure – in time. In the weeks leading up to the trial, the amount that Legal Aid will provide for that public defender spent 12 days preparing an accused to pay for their lawyers’ prepara- to run it. The director of public prosecutions difference between what one might charge tion. In addition to the ‘contribution’ by way was represented by a salaried Crown. While I as a private rate and Legal Aid rates can be of a discounted rate, lawyers are expected to have not conducted the analysis, Crowns and considered, reasonably, as a contribution of provide a further ‘contribution’ by working public defenders have the same yearly salary, the legal profession to the community. How- additional hours for free. and hence it is likely that that Crown cost ever, that ‘contribution’ has reached the point Successive governments over that same 10- the state about the same as a public defender. where it is becoming increasingly difficult for year period have established various programs That Crown prosecutor also spent 12 days or accused to secure experienced and skilled directed at extracting from a defendant in a so preparing to run the trial. criminal matter an earlier guilty plea. These, The other co-accused was given a grant and other measures, have been put into place of Legal Aid with which to engage counsel. In NSW the person whose ostensibly to improve the efficiency of courts. Legal aid granted only six days’ preparation All of those measures, however, require more at $1,150 per day. That is, the accused was job it is to make sure that preparatory work from counsel prior to trial. granted $6,900 in order to pay counsel for the And yet, historically at least, no additional 12 days’ work necessary for the preparation the wrong person doesn’t funding has been provided for them. On the of a murder trial. That barrister calculates contrary, as noted above, there has been a his overheads for the period at about $6,000. spend a lifetime in prison reduction in funding for preparation. This means, in effect, that for those 12 days’ is paid about half what Moreover, the administrative rigmarole work, counsel made $900 profit. Assuming that one must go through in order to get an eight-hour day (and which barristers work we pay our cleaners. a grant of Legal Aid, and in particular to only eight-hour days preparing a serious acquire a reasonable amount of preparation trial?), that amounts to $9.37 per hour: about There is a crisis in Legal Aid. funding, has increased, hitting solicitors half the minimum wage. particularly harshly. In NSW the person whose job it is to make It is becoming increasingly common sure that the wrong person doesn’t spend a that accused do not get a grant until either lifetime in prison is paid about half what we practitioners to act for them. a few days before, the day of, or a few pay our cleaners. In 2007 the minimum wage was $13.74 days after, their trial. This means that ac- There is a crisis in Legal Aid. per hour. In 2018 it is $18.29 per hour. The cused must rely on the good will of counsel minimum wage has increased by about 25 and solicitors to prepare their matter. It also The last decade per cent. The salary of a backbencher in the means unnecessary delays in court. New South Wales Parliament has increased Worse, where a matter, despite days of 2007 was the last time Legal Aid raised the by more than 20 per cent over that time. The preparation, resolves in a plea of guilty, Legal amount it provides accused to pay for coun- salary of the director of public prosecutions Aid on occasion will not provide the funding sel in ordinary District Court criminal trials. has gone from $309,000 to $435,000 – an for preparation that it would have otherwise Notionally, they provided about $987 per increase of about 36 per cent. The salary provided had the matter run for trial. An day. I say notionally because even back then of most, if not all, government lawyers has example: having initially been advised in there was an expectation that a practitioner increased by 20 per cent or more over that writing that four days’ funding for prepa- engaged by the accused would work for more time. ration was available for a particular matter, hours than those for which he or she was In 2007 Legal Aid’s budget was about that figure was nevertheless halved when the paid. $190 million. In 2016–17 the budget was matter settled on the first day of trial, despite For all but the most complex matters, the about $308 million. That amounts to a 62.3 the preparatory work (and a lot more) having rates provided to accused people to engage per cent increase over that 10-year period. already been done by counsel. private practitioners in criminal matters have It is true that Legal Aid is now granted for Perhaps most troubling is the policy intro- not increased in 11 years. certain matters previously excluded from duced a few years ago for Local Court mat- The Legal Aid Commission Act 1979 its purview, for example, applications in the ters, whereby for a large number of criminal (NSW) prescribes that rates to engage private Supreme Court to detain high risk offenders, matters, those that are not likely to result in practitioners must be less than the commer- but these are a fraction of Legal Aid’s total gaol sentences, if you plead guilty, qualify for cial rate. This is, perhaps, as it should be. The expenditure. It is also true that it has been legal aid. But if you dare avail yourself of a

18 [2018] (Spring) Bar News The Journal of the NSW Bar Association OPINION

Legal professionals from across Victoria at a Rally For Legal Aid fundraiser outside the County Court of Victoria on 17 May 2016 in Melbourne. Photo: Vince Caligiuri / Fairfax Media hearing, you are on your own. The pressure and law. As the matter is an appeal from the issue and blame the executive government. placed on an accused to plead guilty is per- President’s Children’s Court the appeal is However, it is important to acknowledge that verse. held in the Supreme Court, where it is listed lawyers too have a role to play. Barristers, be for a five-day de novo hearing. they prosecutors or defence counsel, are at Outside of criminal law As the brief is to appear for a child, no least some part of a system that is burning preparation time has been allocated. De- through public funds. Judges also bear some The situation outside of criminal law is even spite this, counsel spends considerable time responsibility. worse. Funding for citizens with civil matters preparing the matter. It settles by way of It took an appearance at a country District is so paltry that one cannot make sensible consent orders in the first hour of the first Court to open my eyes to the problem. Four comment about it, beyond noting that it day of the hearing due, in part, to the hard defence counsel, their solicitors, a Crown, a is barely existent. Family law and care and work of counsel. The presiding justice of the District Court Judge, her associate, and then protection funding has been stripped bare. Supreme Court congratulates the parties and all the non-lawyers – the accused, witnesses, It is no exaggeration to say that the their legal representatives on their good sense and most importantly the alleged victims of funding provided for Care and Protection, and diligence. Under the current funding serious crime – are all present at 10am to get including, for example, lawyers to represent scheme, counsel might only be entitled to the trial started. Despite the matter having children who are being sexually abused, is charge $150 for the entirety of their involve- been set down some months before, Counsel abominable. The following hypothetical will ment in the matter. By way of comparison, if at the bar table said the five-day estimate was suffice to illustrate that: you drive from Castle Hill to the CBD down too short, and therefore the matter could not A barrister of ten years’ experience is the toll roads and back for a few days it will be heard in the sittings. briefed to appear for the Independent Legal cost you about $145. The trial date was vacated on the spot. Representative for a child in a Care and Pro- There was no inquisition by the presiding tection matter. The matter involves sexual The role of lawyers judge as to why the error was made and if abuse allegations. There are competing the matter could run. $4,400 in Legal Aid experts involved and complex issues of fact It is tempting to see this solely as a funding barrister’s fees were thrown away on that day

The Journal of the NSW Bar Association [2018] (Spring) Bar News 19 OPINION alone, not to mention the cost of our travel waste of money both for the prosecution and • provide an advice on evidence, i.e.: what and accommodation. relevantly, Legal Aid. evidence is missing, what should be asked A barrister from the UK, here on a sabbat- The net result is that we arrived on for, what should not be ask for; ical, who was assisting me was appalled. In Wednesday morning – having spent another the UK, time limits would be set on things $4,400 of Legal Aid money – to be told that • talk to the Crown about getting that ev- like cross examination and speeches. Coun- a deputy director had said no. Three days idence; sel would be required to justify how long wasted, $13,200 of Legal Aid fees thrown they were going to spend with each witness away. • advise on subpoenas; and why they wanted that witness called. The What’s worse, this is not unusual. It hap- matter would be forced into the allocated pens Mondays through Thursdays (since • advise on whether they can/should call time. nobody sets a trial down for a Friday) in witness in the Local Court prior to com- tens if not scores of trials each week. It is mittal; reasonably common around the state to find 30 counsel, sitting around, with no judges, • write submissions to call for witnesses; Under the current funding waiting to be not reached or adjourned because of late service of material or some other • appear on the hearing about calling wit- scheme, counsel might only be reason. Scores of victims of serious crimes, nesses; witnesses, police, sitting around wasting entitled to charge $150 for the time, and burning money. • appear at the arraignment in the District Court; entirety of their involvement in EAGP • spend two hours travelling to and from a the matter. By way of comparison We are told that the Early ‘Appropriate’ gaol on at least one occasion, if not more. - if you drive from Castle Hill Guilty Plea Scheme will fix at least some of this. The basic idea of the scheme is to push When the trial finally comes, counsel won’t get any preparation funding, on the to the CBD down the toll parties to arrive at a plea arrangement in the Local Court so as to avoid occurrences basis that it has already been provided in the roads and back for a few days like the one described above. It is important Local Court. At least that is what the first proposal said. We have been told orally that to note that it is not designed nor expected there will be more, but again, we are yet to it will cost you about $145. to increase the number of guilty pleas, but see that in writing. just to shift them forward in time, so it’s not So with a bit of back and forward, we put going to fix everything. together a revised task list and a reasonable $200 million dollars has been set aside by It got worse. As often happens on trial rate of $180/hour. Legal Aid tells us that that the government for a suite of changes to the days, a deal was cut by the experienced prac- this, for barristers alone, will cost an addi- criminal justice system, $92 million of which titioners on the ground. It was agreed to by tional $16.8m per annum. is for the Early Appropriate Guilty Plea the complainant. So, hopeful of a solution, Since the whole scheme relies on senior we adjourned to the next day. Scheme. Less than 10 per cent of that – some barristers having the matters, we’ve asked the Crown prosecutors cost the state in excess $9 million – has been allowed for Legal Aid. government for that amount. We await their of one quarter of a million dollars each year. The attorney general in his second reading response. They are statutory appointees with (albeit speech introducing the reforms said: I am not hopeful. [Since the time of writ- limited) tenure. They are skilled and experi- ing, the government has made $10m more enced advocates. They are also not permitted In addition to the five elements of available for all lawyers, not just barristers. by the director of public prosecutions to make legislative reform, additional funding While this step is both significant and to be decisions about whether matters should run is being provided to the Office of the commended, in my view the EAGP scheme or settle in a particular way. Instead, their Director of Public Prosecutions and remains gravely underfunded]. advice is subjected to a complicated process Legal Aid to ensure the continuity of of review. senior lawyers for both the prosecution Other negotiations My understanding of the process is that and the defence from start to finish... the advice of the Crown prosecutor goes to a … Parallel to the discussion about Guilty Plea solicitor in the ‘Director Chambers’ (in effect These measures are designed to remove scheme funding, Legal Aid is putting togeth- the executive suite of the director and deputy the perverse incentives that currently er a proposal for greater funding overall. It directors of public prosecutions). There, that operate … has been predicted by BOCSAR that District solicitor reviews the advice provided by the Court trial work will increase by five per cent statutory appointee Crown and may issue At first blush, this seemed like great news: per annum for at least the next few years, a further advice. A decision is then made, And then Legal Aid sent us the proposed meaning significant extra costs for Legal Aid, usually by a deputy director of public pros- fees. The scales are completely unrealistic. which are not funded. ecutions. They highlight the danger of fixed fees. For So Legal Aid needs more money for itself, Whatever the merits of the decision made three thousand dollars, regardless of the brief and to fund private practitioners. That pro- in this case, it is far from clear why a stat- size (except in exceptional circumstances), an cess is ongoing. But the squish is on: there is utory appointee, trusted to find indictments accused is expected to find counsel who will: a push for fixed fees. And fixed fees, like the and run trials for the Crown, experienced one proposed for the EAGP scheme, are the and deeply involved in a matter, should have • conference with them; beginning of the end. Once they have barris- his or her independent advice reviewed by a ters on fixed fees, then the screws really start solicitor who has limited knowledge of the • read their brief (we were told orally that turning, which is what has been happening brief and then overturned by a deputy DPP there would be extra preparation, but have in the UK. relying in part on that advice. It is an abject not been told that in writing); Fixed fees mean a transfer of risk from

20 [2018] (Spring) Bar News The Journal of the NSW Bar Association OPINION

Barristers in London protest at cuts to the legal aid budget. Photo: Andrew Cowie / Alamy Stock Photo the state (the court, the prosecutors and ters – counsel are almost invariably on their Legal Aid is not a funding priority any- the police) to the barrister and the client. own. The same is happening here: caps and where. From this, the freedom and clarity of deci- a ridiculous funding arrangement, where so- sion-making becomes dangerously compro- licitors only receive five hours a day, and only Should it be? mised: if, for example, you’re not going to get for time physically in court, means barristers another $150 for the next hearing day, should are increasingly appearing uninstructed, or A question with which we ought to grapple is you adjourn because the police just threw instructed by clerks. should there be Legal Aid at all? 500 pages of telephone intercept material It is important to remember that Legal Aid at you at the door of the court? Perhaps you Around Australia has not existed since time immemorial; the should encourage your client to plead today, access to justice it provides is a relatively new because, as the bench makes clear, ‘I can deal The above illustration shows just where we privilege that, for many years, those accused with your client’s matter today Mr Kerkyash- are headed. In Australia, the Law Council’s of crimes, and the poor, did not enjoy. arian but only if she pleads…’ ‘Justice Project Interim Report’ published in It seems to me though, a system worth pro- Fixed fees mean a diminution in the qual- March 2018 reports: tecting. It is the presence of highly trained, ity of justice. Studies conducted after the skilled, well-armed advocates on both sides imposition of a fixed fee regime in Scotland • 14 per cent of people live below the pover- that ensures justice. Sadly, we have already showed that lawyers dramatically increased ty line, yet legal aid representation is only given up so much of it. Committals are gone. the number of cases they undertook, and available to eight per cent of Australians. Jury trials in all but the most serious criminal correspondingly significantly reduced the matters are gone. All of it sacrificed on the time they spent preparing each one. • Most people charged with crimes or altar of efficiency. UK barristers report that Legal Aid matters requiring representation in family law Like all repositories of power, the justice involving 100 hours of pre-trial preparation matters do not qualify for legal aid grants. system’s legitimacy comes from competence. and a full week in the Crown Court some- No matter how efficient, if the outcomes are times pay only £1000. Instructing solicitors • People who are cash poor but have some unfair, then it is illegitimate. Every reduction do not appear in court in legally aided mat- assets can expect not to receive help. in legal aid funding diminishes the justice

The Journal of the NSW Bar Association [2018] (Spring) Bar News 21 OPINION system. Twitter accounts are dull at best, and full of Bloggs. Poorly paid barristers cannot afford cham- puerile virtue-signalling at worst. More likely These are all matters that barristers in their bers, or where they can, cannot afford to par- for criminal barristers, they are non-existent. own practices might reflect on. We are under ticipate in the life of chambers. They cannot We have failed completely to engage in the no duty to work for insufficient money, and give to the Bar. They are unlikely to take silk. very media that guides modern policy pro- certainly for not less than the minimum They are never going to get a junior brief and cesses. wage. We ought all communicate that to our learn all that one does from such encounters. And where we have engaged, our message government clients. They are too often self-excluded from the has been wrong. Whether or not the Bar Association can hallowed basement that is the bar common Barristers are, to use the words of Angela lawfully arrange collective action is beyond room, and, despite often being the best of Rafferty QC, head of the English Criminal my expertise; but it seems likely, should we us, they are excluded from the bench. Poorly Bar Association: continue down the road of fixed fees, that paid barristers have to go home having been such action will become necessary. Such chastised by a judge for being unprepared; …the people who fairly prosecute action has had some, albeit limited, success embarrassed, distraught, and unable to pay and fearlessly defend. Without us, in the UK. their mortgage. innocent people would now be locked This year marks 39 years since the Legal It means that the talent is running away. up. Without us, the guilty would have Services Commission Bill 1979 was present- It means abhorrent mental health. Worst of walked free. Without us and our good ed to the NSW Parliament. That Bill laid the will, the system would have broken a foundation of the Legal Aid framework that Like all repositories of power, long time ago. is in place today. the justice system’s legitimacy It is our fault that the community does not know that. comes from competence. Study after study shows the ways in which We have failed completely to Legal Aid funding cuts affect the disadvan- No matter how efficient, taged in society. Few, if any, focus on the engage in the very media that effect on the justice system as a whole. We if the outcomes are unfair, have to get across to the great majority of so- guides modern policy processes. then it is illegitimate. Every ciety – the failing middle class – that we are not servants of particular privileged sections reduction in legal aid funding of society (the super rich, those with a lobby, and, of course, the crooks) but rather servants Frank Walker QC, then attorney general, diminishes the justice system. of all. said in his second reading speech: It is our job to make sure that everybody else – the government, the police, the bu- It is pointless to have Legal rights if all, it means that innocent people may go reaucrats who come into your house and one cannot afford to pursue them in to gaol, and the guilty may roam free. And take your kids away – are getting it right and the courts. Without extensive legal aid, in the Care and Protection jurisdiction, it held to account. We are the guardians of the justice becomes the prerogative of a means that children who are getting raped guardians themselves. To my mind, that’s the privileged minority, and the processes of by their parents might not be able to escape message that we should be broadcasting. the law become a weapon that the rich their clutches. can use against the poor with impunity. What can we do? Both the judicial system and the legal What we have been doing profession suffer from the lack of public In Northern Ireland, fees were successfully confidence that results. We are late to the fight. Legal Aid is required raised when a campaign by barristers to by its constituent Act to consult with the Bar refuse to take new legal aid work was put into He went on to say: Association whenever it changes its fee scales. effect. This is not so much a strike as it is a For more than a decade the Bar Association refusal to be engaged as a private contractor The objective of the government is has worked with Legal Aid on fees and re- at the rates offered. Just as a banking interest simply to provide the means by which all frained from demanding increases that were would not build a toll road unless the fees citizens might have the same practical clearly justified. We continue to try and work were ‘reasonable,’ each of us can refuse the access to courts, and to achieve equality with Legal Aid, however there is a desperate briefs. before the law. Reasonable limits must need to push for more funding both from More generally, barristers can apply for be imposed on what it will spend on this, Legal Aid and from the state and federal adjournments and temporary stays where but within those limits the government governments, and we are now in the fight. funding has not been put in place or is in- will, without apology, commit whatever Part of the problem is that barristers have adequate. resources it can fund to the removal of utterly failed in communicating to the com- Legal Aid obtains silks at greatly dis- injustice against its helpless fellows. munity why we are necessary. Outdated and counted rates and essentially never pays for out of touch with the zeitgeist, we are the ap- a junior. This is a cause of great harm to the That is how it ought be. And if we still parently pompous men and women in wigs. profession, and consequently to the com- believe that, then it is incumbent on us to get It is ironic that professional communi- munity in the future, and the institutional it back there. cators have communicated so miserably. knowledge and skill of the criminal bar will Whatever the reason, we have failed to deal be much diminished. with the enormous changes to the cognitive It is also the case that we barristers subsi- environment in the last 20 years. dise the government in all kinds of matters. It Our media skills are childlike compared is not clear to me why, say, counsel appearing to those of our colleagues in other countries. for the Crown in an asset forfeiture matter Our social media skills are non-existent: our should get paid less than counsel for Joe

22 [2018] (Spring) Bar News The Journal of the NSW Bar Association OPINION

the lender was entitled to issue a margin call requiring JM to provide additional security for the loan. JM then procured his daughter to purchase shares in the company, ensuring that the price never fell below the level at which the lender could make the call. The High Court held that the ‘effect’ of creating or maintaining an artificial price could be proven by demonstrating that the manip- ulator had the sole or dominant purpose of achieving that effect. This was because, ‘[w] here a person has the sole or dominant purpose of setting a price at a particular level, that price does not reflect forces of genuine supply and demand in an open, informed and efficient market’.2 The forces of genuine supply and demand are those forces which are created in a market ‘by buyers whose purpose is to acquire at the lowest available price and sellers whose purpose is to sell at the highest realisable price’.3 On one level, the decision in JM simplified the task for proving market manipulation allegations. That is, theoretically, it provided a means by which to prove the effects element of market manipulation without reference to an expensive and detailed forensic analysis, demonstrating that the impugned transactions did in fact create or maintain an artificial price. But the decision in JM has also generated some significant complications – and likely unintended consequences – in the application of section 1041A. First, section 1041A contains no express in- Photo: iStockphoto.comPhoto: tention element. The decision in JM allowed for price effects to be proven by adducing evidence of the subjective purposes of the Market manipulation: s 1041A contravener; or at least that from such purposes, one could draw an inference of effect and the sole or dominant on price.4 Either way, it changed the scope of the evidentiary burden in a way that is not expressly articulated in the provision itself.5 purpose test, revisited This appears out of step with provisions that are similar to, or preceded, section 1041A: By Penelope Abdiel, Banco Chambers see, for example, former sections 997 and 1259 of the Act, section 70 of the Security Industry Act 1970 (NSW), and section 130 of the Futures Industry Act 1986 (Cth), all of Section 1041A of the Corporations Act 2001 of the trading – it was said by the regulator – which contained ‘intention’ elements.6 (Cth) (Act) prohibits any person from taking was that it created or maintained an artificial The reasoning in JM may also be contrast- part in or carrying out a transaction that has price for certain financial products that were ed with the approach taken in other areas or is likely to have the effect of creating or set by reference to that rate. of the law where effects-based proscriptions maintaining an artificial price for financial ASIC also alleged that the Banks’ ‘sole or operate. Competition lawyers, for example, products on a financial market. The provi- dominant purpose’ was to engage in trades are accustomed to proving that impugned sion has attracted increased scrutiny in the to that effect. The ‘sole or dominant purpose’ conduct has had the effect or likely effect of wake of the ‘Bank Bill Swap Rate’ (BBSW) test was drawn from the High Court’s deci- substantially lessening competition. Market cases, which directs attention towards the sion in JM. In that case, the test was proffered effects of restrictive trade practices cannot test derived from the High Court’s decision by the DPP, and accepted by the Court, as a be proven simply by demonstrating the in Director of Public Prosecutions (Cth) v way in which the effects element of section nefarious purposes of the market partici- JM (2013) 250 CLR 135 (JM) as to when a 1041A – that is the effects of creating or pants (although nefarious purposes might transaction will have the impugned effect. In maintaining an artificial price for financial reveal the intended effects of the impugned the BBSW cases, ASIC alleged that several products – may be satisfied. In JM, the ac- conduct). Where purpose is relevant and large banks had manipulated the market cused had borrowed money to exercise some effects need not be proven – for example, in for trading in prime bank bills.1 Trading in options in a company. The underlying shares relation to s 45AD of the Competition and prime bank bills informed the setting of the were to be used as security for the loan. To Consumer Act 2010 (Cth) – the provisions BBSW, a benchmark interest rate. The effect the extent the shares fell below a certain price, are expressly framed as such (reflecting the

The Journal of the NSW Bar Association [2018] (Spring) Bar News 23 OPINION

public policy position that certain collusive in respect of trading in Prime Bank Bills, to manipulation proceedings should therefore conduct between horizontal competitors is achieve a particular setting of the BBSW, not be overstated. Nevertheless, there are sev- considered so pernicious as to not require a resulting in an artificial price for certain fi- eral unresolved aspects of the test for section demonstrated effect on competition in the nancial products, being BAB futures, interest 1041A, and it is likely attended by some level relevant market). rate swaps and cross-currency swaps.10 Signif- of uncertainty for the foreseeable future. Second, if ‘sole or dominant purpose’ is icant in Beach J’s reasoning in the case was used to demonstrate market effects, deter- the disconnect between the sole or dominant END NOTES mining whose purpose is relevant will not purposes of traders in respect of Prime Bank 1 As described by Beach J, in the recent decision of Australian Securities and always be straightforward. In the context of Bills, or BBSW, and whether that sole or dom- Investments Commission v Westpac Banking Corporation (No 2) [2018] FCA corporate liability, questions of agency, and inant purpose was directed to, or achieved, in 751 (Westpac BBSW Case), prime bank bills are prime bank-accepted bills who holds the directing mind and will of a relation to those ultimate financial products of exchange, that are instruments by which banks may either borrow or 11 company, will become relevant; that is, if an whose prices were referable to that rate. If the lend funds for a short term. Prime Banks are certain banks elected and employee or officer of a corporation engages case were premised on showing ‘effects’ alone, recognised as such, pursuant to a process of election and recognition in a transaction with the requisite purpose, the question of where a person’s purpose is specified by AFMA. Trading in Prime Bank Bills inform the setting of the whether that purpose can be imputed to that directed becomes moot.12 BBSW, which is the key benchmark interest rate in Australian financial corporation. It also raises issues in relation to Finally, under JM, a person can contravene markets and which provides a reference (i.e. pricing) rate for a range of accessorial liability. In last year’s decision of section 1041A by engaging in a transaction futures, interest rate swaps and cross-currency swaps. . Gore v Australian Securities and Investments with the requisite purpose, irrespective of 2 Ibid at [72]. 3 Ibid at [71]. Commission (2017) 249 FCR 167, the Full whether their conduct has had any actual 4 Cf. ibid at [1958]. Federal Court held that – in order to make effect on the price for those securities. The 5 There may be good public policy easonsr for the decision. For example, a finding of accessorial liability pursuant absence of evidence of such effects may be transparency between buyers and sellers; and the ‘efficient allocation of to s 79 or s 1324(1) of the Corporations Act relevant to penalty. In the case of Heath v capital and preservation of market confidence’: ASIC Report 440, July 2001 – it must be shown that a defendant R [2016] NSWCCA 24 the NSW Court of 2015 at [59]. But it is nevertheless a curious result for a provision that had knowledge of all the elements of the pri- Appeal considered a sentence following a contains no express mental element. mary contravention. In the context of section guilty plea on charges for s 1041A conduct. 6 The majority decision was based in part on asonM J’s reasoning 1041A, this includes knowledge of the sole Before the sentencing judge, the appellant in North v Marra Developments (1981) 148 CLR 42, with respect or dominant purpose of the primary contra- had given evidence that his trading had to section 70 of the Securities Industry Act (NSW). But section 70 vener. In circumstances, for example, where achieved no lasting price impact on the prohibited persons from doing anything ‘which is calculated to create a false or misleading appearance of active trading.’ That is, there was a stockbroking firm employs a ‘rogue trader’, relevant stocks, and he was not able to take arguably an intention-element in the provision that is not evident in s. the stockbroking firm may need to have had advantage of any short term price impact his 1041A. The High Court in JM also contrasted the position in relation knowledge of the trader’s sole or dominant trading had caused. The Court of Appeal to the futures commodities context and section 130 of the former purpose in order to be accessorily liable. determined that the sentencing judge, in as- Futures Industry Act 1986 (Cth). But again, that provision prohibited Third, in criminal market manipulation pro- sessing the objective seriousness of the crime, persons from engaging in ‘transactions intended to have, or likely to ceedings, the sole or dominant purpose test had ‘overlooked or misapprehended the fleet- have, the effect of ‘creating an artificial price for dealing in futures may be difficult to reconcile with the Crimi- ing impact of the applicant’s trading on the contracts on a futures market’. See also, Beech J in the Westpac BBSW nal Code Act 1995 (Cth) (Code).7 Section 5.6 market and the unlikelihood that he would Case at [1918]. of the Code provides that, if the law creating in fact obtain any lasting financial benefit 7 Notably, the Full Federal Court in Australian Securities and Investments an offence does not specify a fault element for as a result of his trading’.13 In a statement of Commission, in the matter of Whitebox Trading Pty Ltd v Whitebox Trading Pty Ltd [2017] FCAFC 100, determined that the Criminal a physical element that consists of a circum- agreed facts, the appellant had admitted that Code was not applicable in civil penalty proceedings, but it nevertheless stance or a result, recklessness is the requisite he undertook each of those transactions for will be applicable in criminal penalty proceedings. fault element. For an effects provision like the sole or dominant purpose of maintaining 8 Ibid, at [122]. section 1041A, this begs the question of how or increasing the price of the shares. As the 9 That is, (i) that the accused intentionally took part in or carried out the a Court is supposed to apply both the sole Court noted, however, ‘that purpose could transaction and (ii) that his sole or dominant purpose in so doing was and dominant purpose test, and a reckless- never have been achieved by trading at the to set or maintain the price of the securities at a particular level: at [122]. ness standard to determine whether the fault volume and frequency of the applicant’s 10 Westpac BBSW Case at [24]. element has been met. trading’.14 11 Ibid, at [1962]. This issue arose in the Victorian case of R Certainly the sole or dominant purpose 12 Ibid at [1989]. v Jacobson, [2014] VSC 368, in relation to test effectively presupposes that the ulterior 13 Ibid at [61] – [63]. 14 Ibid at [63]. market manipulation allegations. There, the motive of a trader is what actually renders a 15 15 ASIC proceeded at some points in a slightly different way in the Victorian Supreme Court observed that there price artificial. Nevertheless, the approach of Westpac BBSW Case; that is, on the basis that conduct engaged in was ‘a necessary inconsistency between the the Court of Appeals in Heath does not re- with the intention of achieving a particular outcome may properly be conduct element (taking part in a transaction solve the fundamental difficulty of the ruling inferred to have achieved that outcome: ibid at [1947]; cf at [1951]. with the sole or dominant purpose of setting in JM: that the effects requirement of s 1041A This is a slightly different proposition to the reasoning in JM, that a lack or maintaining an artificial price for GTG might be satisfied absent proof of effects.16 of bona fides on the part of a buyer or seller in a particular transaction shares) and the fault element (being reckless Beach J has cautioned that ‘no part of s 1041A will effectively render a price – by definition – artificial. as to whether the transaction had that effect)’.8 expressly authorises me to substitute and 16 Beach J noted that he agreed ‘that it does not matter whether the yield The issue was not resolved, because the parties, treat as conclusive the subjective motivations or price accords with true value or is set at a reasonable level because between themselves, agreed on the elements of of an individual trader for the ‘effect’ of the of trading with a sole or dominant purpose of affecting price or yield. I also accept that it does not matter whether the trader’s intention is the criminal case that the prosecution would transaction’ and that the test was not some 9 to correct or to manage a price or yield or to oppose or counteract be required to prove. separate element of a market manipulation manipulative trading in the opposite direction. Such conduct where Fourth, the test may not be appropriate in offence. Rather, it is just one source of in- a buyer is not concerned to buy at the lowest price and a seller is not 17 circumstances where the manipulation of the formation from which to prove effects. His concerned to sell at the highest price is necessarily a distortion of the price of one product (or benchmark rate) is Honour also noted that the ratio in JM was interaction of market forces of supply and demand’: Westpac BBSW intended to have some desired effect on the directed to transactions of a particular kind; Case at [1930]. price of another product. ASIC’s case in the that is, on-market transactions in ASX-listed 17 Ibid, at [1957]-[1958]. Westpac BBSW Case was premised on traders shares. The ubiquity or importance of the holding the relevant sole or dominant purpose sole or dominant purpose test in market

24 [2018] (Spring) Bar News The Journal of the NSW Bar Association OPINION

No memory: The ultimate defence? An insight into John Locke’s jurisprudence

By Kevin Tang

Introduction when they wake up the next morning. If you know that you behave badly after drinking, In Mobile, Alabama, 33 years ago, Vernon then not remembering the events is no Madison shot dead a police officer, Corporal excuse. The rationale in this case is that if Julius Schulte. Since April 1985, justice has a person did not drink excessively, and ex- taken a winding path for Madison. He has ercised greater control, they might not have waited almost a lifetime to die. Madison has become inebriated6. developed severe dementia while incarcerated. He recalls nothing of the past. He is the per- Naturally unjust fect example of the philosopher’s tabula rasa – a clean slate. Should he be punished further? Locke would assert that the sober person is The circumstances of Madison’s case can be not exactly the same person as the drunkard considered through John Locke’s An Essay on a rampage. One didn’t exert enough Concerning Human Understanding (1690), control earlier to curb the possibility of the a seminal natural law work in jurisprudence criminal rampage later on. There is indirect from the Enlightenment.1 moral responsibility at that juncture (deriva- tively). Nil recall doesn’t make it any better, Background and moreover it should not relieve a person contract. Locke was a proponent of natural of moral responsibility. It was a foreseeable On Australia Day this year, Madison was law and rights. According to Locke’s view, consequence. due to be executed by lethal injection. Madison should not be executed. If one is Madison is a case which exposes the However, 30 minutes before the execution, unable to recall performing a specific action, Lockean natural law point. One cannot be Justice Clarence Thomas of the United States one is then not the same person as the person morally responsible for something that one Supreme Court granted Madison a stay of who did perform the specific act. It should be cannot remember doing7. There is a distinc- execution. noted that Locke defined a person as a purely tion between direct and derivative responsi- The US Supreme Court will hear Mad- forensic notion3. A person is only used to bility. That is the crux of the issue. ison’s petition this year. In 1986, the US locate moral responsibility4. Supreme Court made a ruling that the exe- Madison’s perception, at this moment in Perversity: No memory. cution of a person who does not understand time, is that he did not commit the crime. No crime. No punishment. the reason why they are being executed is John Locke would say that Madison cannot a violation of the 8th Amendment to the therefore be held morally responsible for the Of the 180 or so death row inmates in Ala- United States Constitution which prohibits murder. Madison is a different person from bama, three have been incarcerated for longer ‘cruel and unusual punishment’. the murderer of 1985. than Madison. Madison cannot remember In 2016 the Circuit Court of Appeal made his crime that day in April 1985 due to his a ruling on Madison’s case. In a nutshell, Moral responsibility – can you severe vascular dementia which developed according to Madison’s perception of reality, remember committing the crime? after a series of strokes. He is legally blind he had not committed the murder and there- and has mobility problems. fore could not understand the reason for his Let us take Dr Jekyll and Mr Hyde. Dr Madison has become grey and ashen as he possible execution for murder. Jekyll has no control over when he becomes hovers between death and life. The darkness Is a person who cannot remember com- Mr Hyde and he cannot remember anything may consume him. Will the executioner mitting a crime capable of understanding about Mr Hyde’s escapades or actions. Is Dr come before God? It will all happen soon. why they are being executed? Or in other Jekyll responsible for the crime of Mr Hyde? John Locke’s scholastic theory says that terms – can a person who cannot remember Answer: No. Dr Jekyll cannot be morally Madison is not guilty of any crime and is performing a deed be held morally responsi- responsible for what Mr Hyde does because not a murderer. He does not understand ble for it and suffer the consequences which he is unable to remember what Mr Hyde did. now why he is going to be executed. Let’s not might flow? This goes beyond discharging Lockean jurisprudence says that Dr Jekyll over-philosophise the reality. the requirements for punishment. Can such and Mr Hyde are two different people5. a person be the locus for moral guilt?2 In this instance, the transition from Dr END NOTES Jekyll to Mr Hyde is involuntary. It might 1 Ed. Fraser, Alexander Campbell John Locke An Essay Concerning Lockean view be somewhat different if Dr Jekyll could turn HUMAN UNDERSTANDING by Oxford Clarendon Press 1894 Book into Mr Hyde voluntarily, and he knew that 1 and Book 2. This brings us to the jurisprudence of John Mr Hyde was accustomed to committing 2 See Note 1 Book 2 Chapter XXVII page 467. Locke (1632 – 1704), an English philoso- crimes, then Dr Jekyll would be (to an extent) 3 See Note 1 Book 2 Chapter XXVII page 468. pher and physician. He was one of the most morally responsible for Mr Hyde’s crimes. 4 See Note 1 Book 2 Chapter XXVII page 461 and 462. important philosophers from the Enlighten- Another example is that of a person who 5 See Note 1 Book 2 Chapter XXVII page 461. ment, a father of liberalism and supporter knows they act badly while drunk, but does 6 See Note 1 Book 2 Chapter XXVII page 462. of Sir Francis Bacon’s notion of a social not remember doing anything untoward 7 See Note 1 Book 2 Chapter XXVII page 464.

The Journal of the NSW Bar Association [2018] (Spring) Bar News 25 RECENT DEVELOPMENTS

for the purposes of sale or supply.9 However, as this was an attempt offence, the deeming provision did not apply.10 The WA Court of Appeal held that the misdirection was an error of law, but dismissed the appeal on the basis that no substantial miscarriage of justice had occurred.

Application of the proviso

The only question on appeal was the correctness of the application of the proviso. The majority of the High Court held at [12]:

Weiss settled the debate in an analysis that is grounded in the text of the common form provision. The apparent tension between the command to allow an appeal where the court is of the opinion that there was a miscarriage of justice, subject to the proviso that it may dismiss the Photo: iStockphoto.comPhoto: appeal if it considers that no substantial miscarriage of justice has occurred, is resolved by reference to history and legislative purpose. Consistently with the The common form statutory long tradition of the criminal law, any irregularity or failure to strictly comply with the rules of procedure and evidence ‘proviso’ in criminal appeals: is a miscarriage of justice within the third limb of the common form provision (here s 30(3)(c)). The determination of whether, notwithstanding the error, there has been Weiss v R affirmed no substantial miscarriage of justice is committed to the appellate court. The Helen Roberts reports on Kalbasi v Western Australia appellate court’s assessment does not [2018] HCA 7; 92 ALJR 305; 352 ALR 1 turn on its estimate of the verdict that a hypothetical jury, whether ‘this jury’ or a ‘reasonable jury’ might have returned Introduction On appeal to the High Court, the appellant had the error not occurred. The concepts sought to have the High Court reconsider its of a ‘lost chance of acquittal’ and its Under Western Australia’s criminal appeal earlier decision in Weiss v R 3, submitting that converse the ‘inevitability of conviction’ statute, the Court of Appeal must allow an Weiss had left uncertain the principles that do not serve as tests because the appellate appeal against a conviction by an offender engage the proviso, and the uncertainty had court is not predicting the outcome where the court is of the view that there has not been resolved by subsequent decisions of a hypothetical error-free trial, but is been a miscarriage of justice, subject to the of the court.4 The High Court, by a narrow deciding whether, notwithstanding error, proviso that the court may dismiss the appeal majority (Kiefel CJ, Bell, Keane and Gordon guilt was proved to the criminal standard if it considers that no substantial miscarriage JJ; Gageler, Nettle and Edelman JJ dissenting) on the admissible evidence at the trial of justice has occurred.1 This case considered dismissed the appeal5 and held that there was that was had. (footnotes omitted) the application of that proviso, which closely no reason to depart from Weiss.6 mirrors the common form proviso and which Their Honours held that approaching the in NSW is expressed as follows: ‘[t]he court The facts and error in the trial proviso by attempting to identify classes of may, notwithstanding that it is of the opinion cases in which the proviso can or cannot be that the point or points raised by the appeal Police had intercepted a drug shipment, applied is ‘distracting’ and not possible.11 Nev- might be decided in favour of the appellant, replaced the drugs with a substitute, and then ertheless there may be some errors, the nature dismiss the appeal if it considers that no relied upon various forms of surveillance to es- of which will prevent the appellate court from substantial miscarriage of justice has actually tablish that the drugs were unpacked in front being able to assess whether guilt was proved occurred.’2 of, and with the involvement of, the appellant.7 to the criminal standard.12 These may include, The appellant was convicted for the at- The appellant did not give evidence. The issue but are not limited to, cases which turn on tempted possession of 5kg of methylamphet- at trial was whether the Crown could establish issues of contested credibility, cases in which amine with intent to sell or supply to another. that the appellant possessed the drugs, that there has been a failure to leave a defence or The trial judge incorrectly directed the jury in is, that he relevantly had ‘control’ over them partial defence for the jury’s consideration and accordance with a statutory presumption of rather than simply being present at the prem- cases in which there has been a wrong direc- intent to sell or supply upon proof of posses- ises with the drugs.8 tion on an element of liability in issue or on a sion. The Western Australian Court of Appeal With the concurrence of counsel for both defence or partial defence.13 As was established dismissed the appeal, holding that although the Crown and the accused at trial, the jury in Weiss, the fundamental question remains the direction was incorrect, the proviso ap- was incorrectly directed on the basis that proof whether there has been a substantial miscar- plied. of possession was sufficient to prove possession riage of justice.14

26 [2018] (Spring) Bar News The Journal of the NSW Bar Association RECENT DEVELOPMENTS

The majority held that the Court of Appeal own satisfaction that the evidence at trial jury and was therefore ‘a fundamental defect, did not err by rejecting the submission that established beyond reasonable doubt that the amounting to a serious breach of the presup- the misdirection was an error of a kind that appellant exercised control over the whole of positions of the trial’.20 precluded the application the ‘methylamphetamine’ of the proviso. Further, the with the intention to sell END NOTE Court of Appeal was cor- The issue at trial was whether or supply it to another rect to reason that proof was insufficient to allow 1 Section 30(3)(c) Criminal Appeals Act 2004 (WA). the Crown could establish that beyond reasonable doubt the Court of Appeal to 2 Section 6(1) Criminal Appeal Act 1912 (NSW); see Reeves v R [2013] that the appellant at- the appellant possessed the be satisfied that the jury HCA 57; 88 ALJR 215; 304 ALR 251 at [9]. The WA provision does tempted to possess nearly would have returned a not include the qualifier ‘actually’, but nothing turned on its absence for 5kg of 84 per cent methyl- drugs, that is, that he relevantly verdict of guilty if the the purposes of the argument: Kalbasi at [4]. amphetamine compelled proper direction had been 3 (2005) 224 CLR 300. the conclusion that it was had ‘control’ over them rather given, and the Court of 4 Kalbasi at [8]. his intent to sell or supply Appeal was wrong to con- 5 Kiefel CJ, Bell, Keane and Gordon JJ; Gageler, Nettle and Edelman JJ it to another. There was no than simply being present at clude that no substantial each dissenting in separate judgments. basis in the evidence or the miscarriage of justice had 6 At [9]. way the defence case was the premises with the drugs. occurred.17 Justice Nettle, 7 At [19]-[23]. run which left open the also addressing the very 8 At [29]-[30]. possibility that he may have been in posses- broad definition of possession that the trial 9 Section 11 Misuse of Drugs Act 1981 (WA). sion of some smaller amount of the substitute judge left to the jury, held that it was possible 10 Krakouer v R (1998) 194 CLR 202. drugs with a view to purchasing it for personal that the jury convicted the appellant on the 11 At [16]. use. In those circumstances, the misdirection basis of a form of possession which would not 12 At [15]. did not occasion a substantial miscarriage of have satisfied the definition of possession for 13 At [15]. justice.15 the purposes of sale or supply,18 and therefore 14 At [16]. In dissent, Gageler J held that the manner despite a powerful circumstantial case it could 15 At [60]. in which the trial judge had directed the not be said that no substantial miscarriage 16 At [76]-[81]. jury upon possession left open to the jury a of justice had occurred.19 His Honour would 17 At [82]-[83]. pathway of reasoning which allowed the jury have allowed the appeal. Justice Edelman 18 At [138]-[139]. to be satisfied that the appellant possessed the agreed with the reasons of Nettle J and held 19 At [140]-[144]. drugs but which would not necessarily compel that the case was one to which the proviso 20 Wilde v R (1988) 164 CLR 365 at 373; at [162]. a conclusion that he did so with an intent to could never apply because the direction sell or supply.16 Thus the Court of Appeal’s removed an element of the offence from the

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The Journal of the NSW Bar Association [2018] (Spring) Bar News 27 RECENT DEVELOPMENTS

No judicial review for errors of law in adjudications under the Building and Construction Industry Security of Payment Act 1999

Alexander Langshaw reports on Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 351 ALR 225; [2018] HCA 4

The High Court has held that the Supreme not in the nature of jurisdictional errors. the SOP Act were determinative of that issue Court does not have jurisdiction to quash However, the errors appeared in the adjudi- despite the fact that the overarching scheme decisions made by adjudicators under the cator’s decision, or ‘on the record’ within the of the SOP Act favoured the exclusion of Building and Construction Industry Security extended meaning of s 69(4) of the SCA. In judicial review for non-jurisdictional error.3 of Payment Act 1999 (NSW) (SOP Act) for those circumstances the question that arose Accordingly, the court made orders quashing errors of law. was whether the court had jurisdiction to the adjudicator’s decision. quash a decision of an adjudicator under the Shade appealed on the sole issue of wheth- Background SOP Act infected by an error of law on the er the SOP Act was effective to exclude the court’s jurisdiction to quash an adjudicator’s Shade Systems Pty Ltd (Shade) was engaged decision for an error of law on the face of the by Probuild Constructions (Aust) Pty Ltd record.4 The appeal was unanimously upheld (Probuild) to install louvres in an apartment Their Honours confirmed that by the Court of Appeal sitting as a bench of 5 development pursuant to a subcontract. the Supreme Court’s jurisdiction five. Basten JA (with whom the other judges Shade served a payment claim on Probuild agreed) considered the lack of express words pursuant to s 13 of the SOP Act claiming to quash a decision infected by excluding the court’s jurisdiction was not that a progress payment was due. In response, determinative. Rather, the court held that Probuild served a payment schedule under s an error of law on the face of the underlying purpose and structure of the 14 of the SOP Act indicating it would not SOP Act, as a matter of statutory construc- make any payment to Shade. The basis for the the record may be excluded by tion, necessarily excluded the availability of payment schedule was a claim by Probuild judicial review for errors of law.6 for liquidated damages that exceeded (and statute and that an intention thus fully set off) Shade’s payment claim. High Court’s decision Shade applied under s 17 of the SOP Act by the legislature to do so for adjudication of its payment claim. The must be expressed clearly. Probuild was granted special leave to appeal adjudicator rejected Probuild’s liquidated to the High Court on the same jurisdictional damages claim in its entirety. Accordingly, issue that had arisen before the Court of the adjudicator upheld Shade’s payment Appeal. The appeal was unanimously dis- claim and determined that Probuild was re- face of the record. missed. quired to make a progress payment to Shade. Section 69(3) of the SCA provided, relevant- The primary judgment of the High Court ly, that the court generally had jurisdiction to was a joint judgment of Kiefel CJ, Bell, Keane, Procedural history make an order in the nature of certiorari to Nettle and Gordon JJ. Their Honours con- quash decisions made on the basis of an error firmed that the Supreme Court’s jurisdiction Probuild then commenced proceedings in of law on the face of the record. However, s to quash a decision infected by an error of law the Supreme Court of NSW seeking an order 69(5) confirmed that legislative provisions on the face of the record may be excluded by in the nature of certiorari quashing the adju- preventing the exercise of that jurisdiction statute7 and that an intention by the legislature dicator’s determination pursuant to s 69 of would be effective. Accordingly, this question to do so must be expressed clearly.8 the Supreme Court Act 1970 (NSW) (SCA).1 turned on whether the court’s jurisdiction to However, their Honours did not accept The primary judge (Emmett AJA) found quash the adjudicator’s decision for an error of that express words, such as a provision in the that the adjudicator had wrongly construed law on the face of the record had been effec- nature of a privative clause, were required to the subcontract and, accordingly, had made tively excluded by the SOP Act. manifest that legislative intention. Rather, two errors of law in rejecting Probuild’s liq- The primary judge held that the absence the relevant question was one of statutory uidated damages claim.2 Those errors were of any express words or privative clause in construction – namely, whether the SOP Act

28 [2018] (Spring) Bar News The Journal of the NSW Bar Association RECENT DEVELOPMENTS Photo: photovs iStock / Photo:

read as a whole evinced a sufficiently clear Gageler J reached the same conclusion by a review jurisdiction, whether for jurisdictional expression of the legislature’s intention to different route. His Honour, contrary to the or non-jurisdictional error.17 However, unlike exclude the jurisdiction.9 joint judgment, accepted there was an existing Gageler J, his Honour was not prepared to The joint judgment conducted a detailed rule that the Supreme Court’s judicial review abandon that approach. Rather, his Honour review of the SOP Act. Their Honours focussed jurisdiction could only be excluded by clear indicated the ‘narrow approach’ should apply particularly upon the following matters: 10 words.13 However, after conducting a detailed only ‘weakly’ with respect to the exclusion of review of the history of that rule,14 his Honour the court’s jurisdiction to review decisions for • the SOP Act was enacted to ‘reform behav- concluded that it was no longer suitable or ap- non-jurisdictional error, 18 the practical effect iour in the construction industry’; of which was that ‘necessary implication’ was sufficient to exclude that jurisdiction in • the express purpose of the SOP Act was to addition to express words.19 Applying that ensure that persons undertaking construc- His Honour indicated that the approach, his Honour reached the same sub- 20 tion were entitled to receive and recover correct approach would be to stantive conclusion as the majority. progress payments; simply apply ‘ordinary statutory END NOTES • the statutory entitlements to progress pay- 1 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2016] ments under the SOP Act were distinct and and common law principles of NSWSC 770. separate from the parties’ contractual enti- 2 Ibid., at [78]. tlements and those contractual entitlements interpretation’ to determine 3 Ibid., at [65]-[74]. were preserved for later determination; 4 Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) whether the court’s jurisdiction [2016] NSWCA 379. • the scheme under the SOP included tight 5 Ibid., at [1], [90]-[92] (the bench comprised Bathurst CJ, Beazley P, timeframes because of the importance of to quash a particular decision for Basten, Macfarlan and Leeming JJA). 6 Ibid., at [85]. cash flow within the construction industry an error of law had been ousted. and those timeframes were ‘not conducive to 7 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) lengthy consideration by an adjudicator of 351 ALR 225 at [30], applying Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531. detailed submissions on all questions of law’; 8 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 351 propriate to apply the rule with respect to the ALR 225 at [34]. • the SOP Act permitted informal proce- exclusion of the Supreme Court’s jurisdiction 9 Ibid.,, [34]. dures to determine an adjudication; and to quash decisions for errors of law on the face 10 Ibid., [36]-[43]. of the record. Rather, his Honour indicated 11 Ibid., [35]. • the SOP Act deliberately omitted any right that the correct approach would be to simply 12 Ibid., [53]. of appeal from the decision of an adjudicator. apply ‘ordinary statutory and common law 13 Ibid., [59]. principles of interpretation’ to determine 14 Ibid., [62]-[77]. Their Honours concluded on that basis whether the court’s jurisdiction to quash a 15 Ibid., [60]. that the SOP Act displayed the requisite in- particular decision for an error of law had been 16 Ibid., [82]-[83]. 17 Ibid., [85]. tention11 and, accordingly, held that orders ousted.15 Applying those principles of statuto- 18 Ibid., [102]. in the nature of certiorari could not be made ry construction, his Honour reached the same 19 Ibid., [98]. 16 by the Supreme Court in respect of a decision substantive conclusion as the majority. 20 Ibid., [108]. made by an adjudicator appointed under the Edelman J similarly acknowledged that a SOP Act containing errors of law on the face ‘narrow approach’ had always been applied to of the record.12 the exclusion of the Supreme Court’s judicial

The Journal of the NSW Bar Association [2018] (Spring) Bar News 29 RECENT DEVELOPMENTS

Ability to bring defamation proceedings against search engines

Daniel Klineberg reports on Trkulja v Google LLC [2018] HCA 25

Introduction The appellant, Mr Trkulja alleged defamatory in its natural and ordinary meaning and, further, that the material car- In a unanimous decision, the High Court1 has in a proceeding commenced in ried various defamatory imputations to the rejected a claim that a defamation proceeding effect summarised above. brought against Google Inc (now Google the Supreme Court of Victoria, LLC) by the appellant had no real prospect of Proceeding history success. The proceeding concerned text and that Google had defamed him images seen by people undertaking searches by publishing material which Google applied to set aside the proceeding on the Google website for ‘melbourne crim- brought against it (and also the service on it inals’ and the like. Google sought summary conveyed imputations that out of the jurisdiction). At first instance, Mc- dismissal of the proceeding on the basis, in Donald J rejected Google’s contention that particular, that the material was not defam- he ‘is a hardened and serious the proceeding had no real prospect of suc- atory of the appellant. The High Court held cess.2 On appeal, the Court of Appeal held to that the material was capable of conveying the criminal in Melbourne’. the contrary, finding that the proceeding had defamatory imputations pleaded. no real prospect of success.3 ‘melbourne criminals’, ‘melbourne criminal Before McDonald J, Google put its ap- Facts underworld figure’, ‘melbourne criminal plication for summary dismissal on three underworld photos’, ‘melbourne under- grounds: (i) that it did not publish the images The appellant, Mr Trkulja alleged in a pro- world crime’, ‘melbourne underworld crime or the web material; (ii) that the material in ceeding commenced in the Supreme Court photos’, ‘melbourne underworld criminals’, issue was not defamatory of Mr Trkulja; and of Victoria, that Google had defamed him ‘melbourne underworld killings’ and ‘mel- (iii) that Google was entitled to immunity by publishing material which conveyed im- bourne underworld photos’. from suit. putations that he ‘is a hardened and serious The second group of allegedly defamatory As to the first ground, McDonald J held criminal in Melbourne’, in the same league material concerned individual web pages that it was strongly arguable that Google’s as figures such as ‘convicted murderer’ with various statements. By way of example, intentional participation in the communi- Carl Williams, ‘underworld killer’ Andrew one was a post which said ‘I hear Milorad cation of the allegedly defamatory search ‘Benji’ Veniamin, ‘notorious murderer’ Tony ‘Michael’ Trkulja is a former hitman who results relating to Mr Trkulja to users of the Mokbel and ‘Mafia Boss’ Mario Rocco Con- shot a music promoter in the balaclava’, Google search engine supported a finding dello, that he is an associate of Veniamin, that Google published the allegedly defama- Williams and Mokbel and that he is ‘such a tory results. His Honour also rejected Goog- significant figure in the Melbourne criminal le’s second contention that a Google search underworld that events involving him are The High Court upheld the engine user would not think less of a person recorded on a website that chronicles crime such as Mr Trkulja because his photograph is in [the] Melbourne criminal underworld’. appeal by Mr Trkulja from that included in the search results or because his Mr Trkulja alleged that Google published decision. In so doing, the High photograph or references to his name appear the defamatory material between 1 Decem- in ‘snippets’ and hyperlinks returned by web ber 2012 and 3 March 2014 to persons in Court criticised strongly the searches and autocomplete predictions.4 Victoria upon those persons accessing the McDonald J further rejected Google’s third Google website, searching for Mr Trkulja’s judgment of the Court of Appeal. contention that Google should be immune name or alias (Michael Trkulja and Milorad from suit as a matter of public interest. The Trkulja) and then viewing and perceiving the High Court said that his Honour was correct material presented on-screen in response to in holding that the range and extent of the the search. under which was an image of predictions defences provided for in Division 2 of Part There were two groups of alleged defam- generated by Google’s autocomplete func- 4 of the Defamation Act 2005 (Vic) ‘militate atory material. The first concerned Google tionality showing the phrases ‘michael heavily against the development of a common images search results pages that were alleged trkulja’, ‘michael trkulja criminal’, ‘michael law search engine proprietor immunity’.5 to display images of Mr Trkulja mixed with trkulja melbourne crime’ and ‘michael trkul- Google advanced the same grounds images of convicted Melbourne criminals ja underworld’. before the Court of Appeal. The Court of and included one of the following phrases: Mr Trkulja alleged that the material was Appeal found it unnecessary to decide the

30 [2018] (Spring) Bar News The Journal of the NSW Bar Association RECENT DEVELOPMENTS Photo: iStockphoto.comPhoto:

first ground. It rejected the third ground. • it ranged ‘across a broad tract of the law ‘notwithstanding that Blue J was describ- However, it upheld the second ground ruling of defamation extending to a substantial, ing the process of reasoning by which his that Mr Trkulja ‘would have no prospect at proleptic analysis of the juridical basis of Honour, sitting as trial judge, reached find- all of establishing that the images material primary and secondary publication in rela- ings of mixed fact and law in the trial of a conveyed any of the defamatory imputations tion to computer search engine proprietors, defamation proceeding before judge alone’); relied upon’ and, in relation to the web ma- of the application of innocent publication terial, that Mr Trkulja ‘could not possibly defences to computer search engine propri- • the judgment is ‘replete with direct and succeed in showing that the web matter upon etors, and of how and why, in view of the indirect references to Google’s affidavit which he relies carried any of the pleaded social utility of computer search engines, evidence … and, despite the summary defamatory imputations’.6 the existing law of defamation might nature of the application and, therefore, better be shaped to relate to search engine the impracticability of affording Mr Trkul- Reasoning of the High Court proprietors or relieve them from liability’; ja access to an opportunity for meaningful cross-examination of Google deponents, The High Court upheld the appeal by Mr • ‘problematically’, the judgment ‘also ef- ordinary interlocutory processes and ten- Trkulja from that decision. In so doing, the fectively treats the judgment of Beach J in dering opposing evidence, the judgment High Court criticised strongly the judgment Trkulja v Google (No 5)8 as if it were plainly includes a range of purportedly definitive of the Court of Appeal. The High Court said:7 wrong (despite the fact that Google did not findings of mixed fact and law drawn from appeal against that judgment and that it Google’s affidavit evidence adverse to Mr • the judgment was ‘of extraordinary length has been considered with implicit approval Trkulja’. The making of a purportedly de- and complexity for the resolution of an in another common law jurisdiction9)’; terminative finding of mixed fact and law appeal against dismissal of a summary dis- was ‘not an appropriate way to proceed’ position application in which the only real • the Court of Appeal mischaracterised the and that given the nature of the proceed- question was the capacity of the published observations of Blue J in Duffy v Google ing, there should have been no thought of matters to defame’; Inc10 (that they went to capacity to defame, summary determination of issues relating

The Journal of the NSW Bar Association [2018] (Spring) Bar News 31 RECENT DEVELOPMENTS

to publication or possible defences, ‘at was pleaded accorded with the view expressed had engaged in misleading and deceptive least until after discovery, and possibly at by Callinan J in Dow Jones & Co Inc v Gut- conduct contrary to s 52 of the Trade Practices all’, with the High Court noting that no nick14, namely that each hit on a website is a Act 1974 (Cth) by displaying misleading and defence yet had been filed; and separate publication. Their Honours agreed deceptive ‘sponsored links’. In contrast, the with McDonald J that at least some of the present case concerned the law of defamation • the Court of Appeal was incorrect to say search results complained of had the capacity in relation to responses to Google searches of that it was incumbent on Mr Trkulja to to convey one or more of the defamatory another kind.18 plead that Google was a primary or sec- imputations alleged and, whether viewed The result was that the High Court reject- ondary publisher of the allegedly defam- individually or as a composite did not affect ed the Court of Appeal’s conclusion that the atory matters since it is not the practice that conclusion. Their Honours rejected the matters upon which Mr Trkulja relied were to plead the degree of participation in the Court of Appeal’s reasoning to the contrary.15 incapable of conveying any of the defama- publication of defamatory matters, for the tory imputations which were pleaded and reason that all degrees of participation in that, therefore, the Court of Appeal erred in the publication are publication. concluding that Mr Trkulja’s proceeding had The making of a purportedly no real prospect of success. The High Court said that the question of whether words or images complained of determinative finding of mixed END NOTE are capable of conveying a pleaded defama- fact and law was ‘not an 1 Kiefel CJ, Bell, Keane, Nettle and Gordon JJ. tory imputation is a question of law. Such a 2 Trkulja v Google Inc [2015] VSC 635. question ‘permits of only one correct answer’ appropriate way to proceed’ 3 Google Inc v Trkulja (2016) 342 ALR 504 (Ashley, Ferguson and however it is a question ‘about which reason- McLeish JJA). able minds may sometimes differ’. Therefore, 4 Trkulja v Google LLC [2018] HCA 25 at [25]-[26]. ‘it is only ever with great caution that a defa- 5 Ibid., at [27]. mation pleading should be disallowed as in- Their Honours described the Court of 6 Ibid., at [28]. capable of bearing a defamatory imputation’. Appeal’s conclusions on Google’s capacity to 7 Ibid., at [36]-[40]. Their Honours noted also that on an appli- defame as ‘unacceptable’.16 The test of capaci- 8 [2012] VSC 533. cation for summary dismissal, the plaintiff’s ty of a published matter to defame is whether 9 i.e. Dr Yeung Sau Shing Albert v Google Inc [2014] HKCFI 1404; [2014] case as to the capacity of the publications to any of the search results of which complaint is 4 HKLRD 493 at [103]-[106]. 10 (2015) 125 SASR 437; [2015] SASC 170 at [375]. defame is to be taken at its highest.11 made are capable of conveying any of the de- 11 Trkulja v Google LLC [2018] HCA 25 at [30]. The High Court noted that the test for famatory imputations alleged and not, as the 12 [1964] AC 234 at 259. whether a published matter is capable of Court of Appeal stated whether ‘any of the 13 Trkulja v Google LLC [2018] HCA 25 at [31]-[32]. being defamatory is what ordinary reasona- defamatory imputations which are pleaded 14 (2002) 210 CLR 575; [2002] HCA 56 at [197]-[199]. ble people would understand by the matter [are] arguably conveyed’. To express the test 15 Trkulja v Google LLC [2018] HCA 25 at [34]-[35]. of which complaint is made. Their Honour’s as the Court of Appeal did runs the risk of 16 Ibid., at [52]-[55]. referred to the observations of Lord Reid in judging the issue according to what the court 17 (2013) 249 CLR 435; [2013] HCA 1. Lewis v Daily Telegraph Ltd 12 that ‘[s]ome may think the allegedly defamatory words or 18 Trkulja v Google LLC [2018] HCA 25 at [56]-[62]. [people] are unusually suspicious and some images say or depict rather than what a jury are unusually naïve’ and said that what is could reasonably think they convey. required is ‘attempting to envisage a mean or The High Court also said the Court of midpoint of temperaments and abilities and Appeal erred in treating the earlier High on that basis to decide the most damaging Court decision of Google Inc v Australian meaning that ordinary reasonable people at Competition and Consumer Commission17 as the midpoint could put on the impugned words or images considering the publication as a whole’ which is an exercise in ‘generosity not parsimony’. The question of what words Their Honours described the convey to an ordinary reasonable person is often a matter of first impression.13 Court of Appeal’s conclusions Their Honours distinguished between the way in which the Court of Appeal approached on Google’s capacity to the matter and the way in which the case was pleaded. The Court of Appeal considered Mr defame as ‘unacceptable’. Trkulja’s claim to be a composite claim such that all of the search results comprised in the images were to be looked at as one single composite publication and all of the search supportive of the conclusion that, although results comprised in the web material were an image of Mr Trkulja may have appeared to be looked at as another single composite in responses to Google searches which publication. However, Mr Trkulja’s pleading included the words ‘criminal’, ‘melbourne’ conveyed that each search and the result and ‘underworld’, that was simply because which appeared in response to it were to those terms appeared in a webpage which be considered together but separately from contained that image, and for that reason each other separate search and response, for were not capable of conveying to the ordi- the reason that each search may have been nary reasonable user of a search engine the conducted by a different person without en- imputation that Mr Trkulja was a criminal or gaging in any of the other searches. part of the Melbourne criminal underworld. The High Court held that the way the case Google v ACCC concerned whether Google

32 [2018] (Spring) Bar News The Journal of the NSW Bar Association RECENT DEVELOPMENTS

If NCAT is not a court it has no standing to hear interstate party disputes

Talitha Fishburn reports on Burns v Corbett [2018] HCA 15

The significance of this decision lies in its Beazley P agreed) held that NCAT did not rejected the Implication Submission but ac- consequence that the NSW Civil and Ad- have standing to determine Mr Burns’ com- cepted the Inconsistency Submission, as did ministrative Tribunal (‘NCAT’) and other plaints against Ms Corbett or Mr Gaynor; Edelman J. The minority judgments reached state tribunals do not have jurisdiction to hear the parties were residents of different states of the same conclusion as the NSWCA. ‘federal matters’ (being matters arising under Australia. This stirred flurries across Australia; sections 75 and 76 of the Constitution) includ- Mr Burns, the State of NSW and the attorney Kiefel CJ, Bell and Keane JJ ing disputes between residents of different general for NSW each appealed by special states of Australia. leave to the High Court. The attorneys-general Their Honours accepted the Implication Sub- The much-awaited decision is unanimous in of Queensland, Western Australia, Tasmania mission. That is, the Constitution impliedly its orders. But the ‘knotty constitutional prob- and Victoria intervened in support of NSW. prevents state laws conferring adjudicative lem’ is not entirely unfurled; the judgments authority over federal matters (including are a smorgasbord of diverging constitutional Common ground ‘Diversity Matters’ which are matters between reasoning. The case raises important issues residents of different states) on a body (such as about the powers and limits of parliament In the High Court proceedings, various as- NCAT) that is not a state court. This conclu- (federal and state) to confer jurisdiction on sumptions were accepted without argument. sion was ‘compelled’ by the constitutional text, courts and other bodies concerning ‘federal One such assumption was that NCAT is not structure and its purpose. They emphasised matters’. While offering an intriguing (and a ‘state court’ for the purposes of Chapter III that federal matters were exhaustive, and contrasting) judicial anthology on federalism of the Constitution. Recently, in Johnson v Chapter III of the Constitution provided for for constitutional law enthusiasts, it carries Dibbin; Gatsby v Gatsby [2018] NSWCATAP the authoritative adjudication of these matters very real and practical import for practitioners, 45, NCAT held that NCAT is a ‘court of a by federal courts (and state courts coopted particularly in property matters where one or state’. Conversely, in Zistis v Zistis [2018] for that purpose) but not state administrative more parties is resident outside NSW. NSWSC 722, Latham J was unpersuaded bodies, such as NCAT. Their Honours turned that NCAT is a ‘court of a state’, having to The Boilermakers’ Case (1956) 94 CLR 254 Factual background regard to the analysis undertaken in Trust at 267-268: Company of Australia Ltd v Skiwing Pty Ltd The circumstances leading to the ultimate [2006] NSWCA 185. A federal constitution must be rigid. legal journey in Canberra had remarkable ori- The government it establishes must be gins. It spanned three state borders (this being The High Court one of defined powers; within those its gateway to the High Court). In 2013, Ms powers it must be paramount, but it Corbett, a political aspirant (resident in Victo- All appeals were dismissed. must be incompetent to go beyond them ria) controversially stated she wanted no ‘gays, The Commonwealth contended that ...the demarcation of the powers of the lesbians or paedophiles working in my kinder- NCAT lacked jurisdiction to determine the judicature, the constitution of the courts garten’. This was published by the Hamilton complaints on two bases. First, there is an of which it consists and the maintenance Spectator. Mr Gaynor, a Senate candidate (res- implied constitutional constraint against state of its distinct functions become therefore ident in Queensland) publicly supported the legislative power; a state law (such as the Civil a consideration of equal importance statements. Mr Burns (resident in New South and Administrative Tribunal Act 2013 (NSW)) to the States and the Commonwealth. Wales), an anti-discrimination activist, said is invalid if it confers judicial power over While the constitutional sphere of the the statements vilified homosexuals contrary federal matters on a body (such as NCAT) judicature of the States must be secured to the Anti-Discrimination Act 1977 (NSW). which is not a court of the state (‘Implication from encroachment, it cannot be left He complained to the Anti-Discrimination Submission’). Second, such a State law is in- to the judicial power of the States to Board of New South Wales. Proceedings consistent with section 39 of the Judiciary Act determine either the ambit of federal ensued in the (then recently formed) NCAT. and invalid by operation of section 109 of the power or the extent of the residuary Constitution (‘Inconsistency Submission’). power of the States. The powers of the New South Wales Court of Appeal The majority (Kiefel CJ, Bell and Keane JJ) federal judicature must therefore be at accepted the Implication Submission. They once paramount and limited. Following various steps in NCAT, a threshold did not determine the Inconsistency Submis- jurisdictional issue was considered by the New sion. Gageler J agreed with the majority. Con- Their Honours held that the ‘demarcation’ South Wales Court of Appeal. The Court versely, Gordon J (with whom Nettle J agreed, of powers of the judicature in Chapter III (Leeming JA, with whom Bathurst CJ and although also providing a separate judgment) demanded that only courts may adjudicate

The Journal of the NSW Bar Association [2018] (Spring) Bar News 33 RECENT DEVELOPMENTS

federal matters, not tribunals. Integral to control over the jurisdiction of those matters plication Submission; she maintained there their reasoning was the need to have consist- was not ‘pre-ordained’ by the Constitution was no historical basis for contending that ent and coherent adjudication throughout (at [179]). To the extent that there was the Constitution created a ‘closed scheme’ in Australia. And although a Commonwealth control over their adjudication, it depended which only courts could exercise jurisdiction Parliament can select courts in which federal on whether there was legislation enacted (as in federal matters. Plainly, bodies other than jurisdiction may be conferred, this does not permitted by section 77 of the Constitution). courts exercised judicial power prior to feder- permit a state parliament to pre-empt Com- Here, there was legislation so enacted; the ation (and prior to 1903) without objection monwealth Parliament. Judiciary Act 1903 (Cth) by which Common- (at [185]). In considering the historical context and wealth Parliament exercised jurisdiction over purpose of the Constitution, their Honours federal matters. Her Honour said (at [184]) Nettle J (emphatically) concluded (at [56]): ‘[there is that ‘[u]ntil [the legislative power in section not the] faintest suggestion in any historical 77(ii)] was exercised [i.e., in 1903] there was His Honour provided separate reasons but materials that our founders entertained, even nothing inherently problematic about state agreed with the conclusions of Gordon J and for a moment, the possibility that disputes tribunals exercising jurisdiction in matters proceeded upon very similar reasoning. He ... of residents of different states might be ... between residents of different states. Once also acknowledged the ‘considerable assis- adjudicated by institutions of government of the power ... was exercised ... it ... became tance from the lucid reasons in the Court of the states other than their courts’. incoherent, or at least problematic, for the Appeal of the Supreme Court of New South Wales’ (at [209]). Gageler J Edelman J His Honour agreed with the conclusion of the joint judgment. Separately, he considered His Honour delivered a separate judgment the meaning of specific Constitutional termi- While offering an intriguing (and but his reasoning was closely aligned with nology (including ‘matters’, ‘jurisdiction’ and contrasting) judicial anthology on Gordon J. He rejected the Implication ‘court’). He also considered colonial courts Submission (at [205]) noting that it lacked and stressed, ‘On federation, everything ad- federalism for constitutional law a principled basis (at [210]), was devoid of justed’ (at [72]) and ‘I reiterate, on federation, authority and the Boilermakers’ Case did everything adjusted’ (at [112]). enthusiasts, it carries very real and not compel an implication being drawn ‘117 While accepting that history is apposite years after federation’ (at [207]). He referred to constitutional interpretation, he warned, practical import for practitioners, to legal history (including United States con- ‘concentration on historical minutiae can stitutional history) and examined the opera- distract from the discernment and exposi- particularly in property matters tion of tribunals at the time of federation (e.g. tion of constitutional principle’ (at [107]) where one or more parties local Land Boards and Boards of Railway and chunks of pre-federation history cannot Commissioners). He concluded that the his- be ‘bootstrapped’ to aid Constitutional is resident outside NSW. torical context at federation was inconsistent interpretation (at [111]). The interpretation with the Implication Submission (at [210]). of the Constitution has ‘taken time’ as has the unfolding of its implications (at [113]) Implications of the decision because it was not ‘framed for the moment of its creation, but as an enduring instrument of states to continue to be free to confer such Implications abound. Volumes of NCAT’s government’ (at [116]). jurisdiction on tribunals. But any such inco- work comprise residential tenancies and retail In conclusion, Gageler J noted the inevi- herence did not exist until the enactment of leases. Now, these cannot be aired in NCAT tability of the soundness of the Implication the Judiciary Act.’ if one or more of the parties is resident of an- Submission (at [118]), ironic, given the oppo- Her Honour referred to Felton v Mulligan other state. The newly amended NCAT Act site conclusions in the minority judgments. [1971] HCA 39 in support of the proposition (Part 3A) partly deals with the jurisdiction ‘To no one who has studied the ... court’s that the source of a state court’s authority to gap; enabling a referral to a court if NCAT exegesis of Ch III over the past half-century, adjudicate on matters between residents of lacks jurisdiction, but it remains to be seen who has [read] ... the considered reasoning different states is federal. Following from how costs will be governed in referrals (a very of intermediate appellate courts [in] the this, a state law (such as the NCAT Act) different costs regime applies in NCAT as past decade, or who is abreast of leading conferring authority to determine a federal opposed to courts). Uncertainty persists for contemporary academic commentary, could matter on a body other than a state court is cases determined prior to the amendments. ... [it] come as a surprise ... [that the High inconsistent with section 39 of the Judiciary In other states, for example, Victoria, uncer- Court would confirm that the Constitution Act; a state court’s jurisdiction for federal tainty remains. Under the Retail Leases Act impliedly denies] ... state legislative power matters must derive from a federal source. By 2003 (Vic) only VCAT, and not courts, has [conferring] state judicial power [for s 75 or operation of section 109 of the Constitution, jurisdiction to hear retail leasing matters s 76 matters].’ the inconsistent state law is invalid (at [150]). (with only limited exceptions). This is likely She rejected the Implication Submission as to require imminent legislative amendment. Gordon J ‘logically flawed’ and ‘hinged on a concern A version of this article was first published that federal control might be circumvented’ in the Law Society of NSW Journal, p 90-92, Her Honour rejected the Implication Sub- (at [184]). Issue 45, June 2018. mission but accepted the Inconsistency Gordon J held that pre-1903 (i.e. before Submission. She was unpersuaded that the the enactment of the Judiciary Act) the ju- federal matters were topics of ‘special’ federal risdiction of a body such as NCAT (if it had concern for which the Constitution required existed then) to hear federal matters was not a ‘closed scheme’ exclusively reserved for barred by the Constitution nor any implica- courts but not tribunals (at [177]). Rather, tion therein (at [183]). She raised doubts over federal matters were ‘facultative’ and federal the historical arguments supporting the Im-

34 [2018] (Spring) Bar News The Journal of the NSW Bar Association RECENT DEVELOPMENTS

Eddie Obeid arrives at Darlinghurst Court complex for sentencing on 15 December 2016. Photo by Daniel Munoz / Fairfax Media The duty of a member of parliament and exclusive cognisance

Bharan Narula reports on Obeid v R (2017) 350 ALR 103

Introduction ating at Circular Quay. Through a series of according to what they believe to be in trusts, 90 per cent of the interest in the busi- the public interest and the interests of In Obeid v R (2017) 350 ALR 103; [2017] nesses flowed to a discretionary trust that in- the electorate, and must not use their NSWCCA 221 (Obeid), the NSW Court of cluded the appellant and his wife as potential position for the purpose of promoting Criminal Appeal (constituted by Bathurst beneficiaries. The purchases had been funded their own pecuniary interests or those CJ, Leeming JA, R A Hulme, Hamill and N in part from the proceeds of a mortgage of of their family or entities close to them. Adams JJ) considered, inter alia, the content the house in which the appellant and his wife of the duty of trust owed by a member of lived and which was registered in the name of The appellant argued that there was no parliament and the contours of exclusive cog- his wife. such duty and, to the extent there was, the nisance. The appellant had been found guilty The Crown case was that the appellant formulation was erroneous. Consistent of the common law offence of misconduct called the officer, expressing displeasure in with the former submission, the appellant in public office following trial before Beech- strong terms about the way tenants at Circular declined to proffer a formulation of the di- Jones J (the trial judge) and a jury. Quay had been treated, and asked the officer rection which should have been given. to speak to a professional negotiator, who had The chief justice rejected the argument Background been retained by three tenants (including that the duty imposed on a parliamentarian CQR) to lobby the Maritime Authority to was a matter of conscience not subject to legal The appellant was tried on an indictment that achieve better security of tenure and a change sanction.1 His Honour referred to several between August and November 2007, while a in the relevant competitive tender policy. The authorities which explained the high public member of the Legislative Council of NSW, appellant did not indicate that he had any duty imposed upon members of parliament,2 he wilfully misconducted himself by making financial interest in any of the businesses, including the prescription of Isaacs and Rich representations to the Deputy CEO and and the officer believed that the appellant was JJ in Boston (at 400) that the ‘fundamental GM of a division of the Maritime Authority calling on behalf of constituents. obligation’ of a member of parliament is ‘the of NSW (the officer) with the intention of duty to serve and, in serving, to act with securing an outcome favourable to Circular Duty of a member of parliament fidelity and with a single-mindedness for the Quay Restaurants Pty Ltd (CQR) in respect welfare of the community’. Bathurst CJ held of its tenancies of properties at Circular The trial judge directed the jury in the fol- at [62]:3 Quay, knowing at the time he made those lowing terms: representations that he or his family had a Members of parliament are appointed to financial interest in the said tenancies which I direct you that, as a matter of law, in serve the people of the state, including he did not disclose to the officer. performing their functions members of their constituents and it would seem CQR had purchased two businesses oper- the Legislative Council must act only that a serious breach of trust imposed on

The Journal of the NSW Bar Association [2018] (Spring) Bar News 35 RECENT DEVELOPMENTS

disclosure of a member’s pecuniary interests, said nothing to suggest an exclusive jurisdiction of a chamber of parliament. Further- more, s 13A of the Act, which entails that the composition of the chamber may be affected by a curial determination of criminality, was inconsistent with that submission. The chief justice noted that other cases6 were consistent with the court having jurisdiction over members of parliament and also exercising it. Furthermore, the indictment did not make allegations of conduct within the walls of parliament relating only to the internal practices of the chamber; nor did it impugn speech within parliament.7 Leeming JA explained that it was ‘very difficult to see how any of the offending conduct relates to proceedings in parliament.’8

Special leave

Special leave was declined on 23 March 2018 on the basis that there were insufficient pros- them by using their power and authority Exclusive cognisance5 pects of success: Obeid v The Queen [2018] to advance their own position or family HCATrans 54 (Bell, Keane and Edelman JJ). interest rather than the interests of the The appellant argued that the issues in the constituents who they are elected to case were within the exclusive cognisance of Conclusion serve, could constitute an offence of the the parliament of NSW and should not have nature of that alleged. been determined in the Supreme Court of Obeid confirmed that a breach of the duty New South Wales. In making that submis- of trust owed by a member of parliament Bathurst CJ further held that the trial sion the appellant was faced with the ruling is capable of amounting to an offence. judge’s direction accurately identified the in Obeid v R (2015) 91 NSWLR 226; [2015] Furthermore, a close and direct connection issues in the case and merely reflected the NSWCCA 309 (Obeid (2015)) that the court with parliamentary proceedings would be re- positive and negative elements of the duty. had jurisdiction to hear the charge the sub- quired for the court to decline to exercise its Questions of conflicting duties between the ject of the indictment. The appellant argued jurisdiction. However, as the factual substra- interests of the public and the interests of the that the court should exercise a self-denying tum rendered it unnecessary, the question of electorate were not in issue at the trial, and the ordinance and not exercise its jurisdiction. whether a breach of duty may be established offence additionally requires wilfulness and Bathurst CJ held that the reasons given earli- if the impugned conduct occurred where the seriousness of the conduct to be established. er in Obeid (2015) were ‘equally applicable’ to improper purpose or motivation is the dom- the reframed argument. His Honour noted inant or causative purpose remains, for the Error in the formulation of duty that exclusive cognisance was originally moment, unanswered. based on the proposition that parliament had The appellant also criticised the trial judge’s its own peculiar law which was not known to END NOTES formulation because it did not cover the the courts, however this has ‘no bearing’ on 1 R A Hulme, Hamill and N Adams JJ agreeing (Obeid [336], [470], situation in which the appellant’s purpose the court’s jurisdiction, nor does it provide a [474]); Leeming JA also agreed and gave additional reasons by way of in speaking to the officer was not solely to basis to decline to exercise jurisdiction. elaboration rather than qualification (Obeid [291]; [330]). advance his own pecuniary interests, and His Honour referred to the remarks of 2 Including Wilkinson v Osborne (1915) 21 CLR 89; Horne v Barber submitted that the trial judge failed to direct Lord Rodger in R v Chaytor [2011] 1 AC 684 (1920) 27 CLR 494 and R v Boston (1923) 33 CLR 386 (Boston); the jury that the improper purpose must be at [108] that if the impugned conduct would McCloy v State of NSW (2015) 257 CLR 178 at [169]-[171] (Gageler the substantial or dominant purpose. The constitute an offence under the ordinary J); Re Day (No. 2) (2017) 91 ALJR 518 at [49]-[50] (Kiefel CJ, Bell and chief justice noted the Crown case was one criminal law of England, then the offence Edelman JJ); at [179] (Keane J) and at [269] (Nettle and Gordon JJ). of sole purpose (or motivation), and the can be prosecuted in the criminal courts in 3 See too Obeid [196]-[199]. defence in closing submissions put in issue the usual way. The chief justice held that the 4 Obeid [82]-[96], cf. R v Macdonald; R v Maitland [2017] NSWSC 337 that the jury would not be satisfied that the exceptions to this principle include where (Adamson J) at [39]. 5 This principle was subsequently referred to in Alley v Gillespie (2018) 92 sole purpose of the appellant in making the the existence of the parliamentary privilege ALJR 373 at [108], [112] (Nettle and Gordon JJ) in the context of s 47 representations was to advance his pecuniary makes it ‘impossible to fairly determine the of the Constitution (see too at [77] (Gageler J)). Professor Blackshield interests. In the circumstances, there was no issues between the parties’ or if the proceed- also discussed the principle in an article published on 3 April 2018 on misdirection and the direction was favoura- ings ‘in fact interfered with the freedom AusPubLaw titled: ‘Exclusive Cognisance’ and Cognitive Dissonance: Alley ble to the appellant as it required the jury to of the House of Parliament to conduct its v Gillespie. be satisfied, beyond reasonable doubt, that legislative and deliberative business without 6 Boston; R v White (1875) 13 SCR (NSW) (L) 322; R v Greenway [1998] the sole purpose of the representations was interference from the court’. Outside these PL 357. to promote his own interests or those of his exceptions, declining to exercise jurisdiction 7 Article 9 of Bill of Rights 1689 (1 Will & Mar sess 2 c 2) provides: ‘[t] family. It was thus unnecessary to consider in many such cases would constitute ‘an af- hat the Freedom of Speech and Debates or Proceedings in Parliament whether it is sufficient to constitute the -of front to the administration of justice’. ought not to be impeached or questioned in any Court or Place out of Parliament’ (spelling modernised)’: Obeid (2015) [27]. fence if the improper purpose or motivation His Honour noted that s 14A of the Con- 8 Obeid [321]. is a dominant or causative purpose.4 stitution Act 1902 (NSW), which empowers the making of regulations relating to the

36 [2018] (Spring) Bar News The Journal of the NSW Bar Association ADDRESS

New South Wales Bar Association Commercial Law Section Inaugural Bathurst lecture Advocate, judge and arbitrator: perspectives on commercial law

By the Hon A M Gleeson AC QC

The decision of the Commercial hard, by a Common Law Delay Re- Law Section of the Bar Associa- duction Programme, but I had no tion to institute a lecture series in interest in weakening the regime honour of the chief justice of New that applied to commercial cases. South Wales, Chief Justice Ba- The New South Wales legisla- thurst, was an excellent idea, and tion of 1903 was modelled on the a fitting recognition of a former United Kingdom precedent. The President of the Bar Association history in the United Kingdom is and current leader of the state’s summarised in a chapter written judiciary. As a practitioner, Tom by Sir Richard Aikens, a former Bathurst had an extensive practice judge of the English Commercial in the commercial field and was Court, in a book about another held in the highest esteem by his former judge of the court, Lord professional colleagues and by Bingham.1 The establishment of judges of whom at the time I was the Commercial Court was in one. His work since he took over part a response to competition from James Spigelman in what from arbitration, and to the es- had earlier been my job has been tablishment, at the instigation of universally applauded. the City of London, in 1892, of a I was invited to speak on some Court of Arbitration. To this day, aspects of commercial law, as the London Court of International someone who has been a barrister, Arbitration, which functions quite a judge, and an arbitrator. I have separately from the regular court an ideological preference which, in system, as an arbitral institution, these transparent times, I should The Hon A M Gleeson AC QC by Rocco Fazzari is a major centre for commercial disclose. We live in a market dispute resolution. economy. It probably does not resemble the vigorous judge, where commercial matters During the 19th century, there was a great kingdom of heaven, but it is better than any- were handled under a special regime of case expansion of international trade, and by the thing else presently on offer. A central value management. The list was up to date. With end of that century London was its major of a market economy is honouring contrac- various refinements of detail, this had been centre. This dominance was reinforced by tual obligations. To support that value, it is the system in the Supreme Court since the the use of standard forms of contract in com- necessary to have a fair, efficient and credible enactment of the Commercial Causes Act modity trade, shipping and insurance which system of enforcement of those obligations. 1903 (NSW). Some commentators of an made English law the proper law, and which When I left the Bar in 1988 and took up inclination to the left, and even one or two identified England as the venue for dispute my appointment here, there were extreme judges, deplored what they said was a system resolution. Dispute resolution was itself an delays in both civil and criminal cases, that gave ‘the big end of town’ special treat- important form of business, and a source of which were dealt with by the Common ment. That complaint fell on unsympathetic substantial intangible earnings. Law Division. There was also a Commercial ears: mine. I agreed that delays in ordinary Although the royal commission whose work Division of the court, presided over by a civil and criminal cases should be tackled, led to the Judicature Acts of the 1870s noted

The Journal of the NSW Bar Association [2018] (Spring) Bar News 37 ADDRESS general dissatisfaction with the way courts of them it had the charm of novelty, whereas States Federal judge, and a former United justice dealt with mercantile disputes, those he had spent a large part of his professional Kingdom Law Lord. Acts did not address the problem. One major career administering contracts of this kind. Somewhere along the way, commercial complaint was lack of knowledge and experi- That is why he was chosen as arbitrator. arbitration in Australia expanded beyond the ence of the ordinary judges as compared with What was going on in such arbitrations confines of building and construction work, specialist Tribunals of Commerce that existed involved an expectation of expertise on the and other trade disputes, into general com- elsewhere in Europe. Another was delay and part of the arbitrator; expertise, not in pro- mercial law. Perhaps in this respect we were resulting uncertainty for business people who cess, but in the subject matter of the dispute. merely entering into a field that for more needed to know, in short order, where they To this day, at the interface of the topics of than a century had been familiar to lawyers stood when a dispute arose. In 1892 a judge, in arbitration, expert determination and expert in London; a field which, by reason of stand- a public statement, said that the dissatisfaction evidence, there are theoretical distinctions ard forms of contract used in commerce, had was so great that some businessmen ‘prefer that are sometimes rather blurred in practice. to some extent been their preserve. even the hazardous and mysterious chances Expert evidence may be necessary in order To return to commercial litigation, there of arbitration, in which some arbitrator, who to make technical language in a contract was in the United Kingdom at the end of knows about as much of law as he knows of comprehensible, or to explain matters of the 19th century a common complaint that theology, by the application of a rough and context, but the meaning of a contract is judges who dealt with large commercial ready moral consciousness, or upon the affa- ultimately a question of law. Putting matters disputes had no relevant expertise. A senior ble principle of dividing the victory equally of foreign law or technical terms to one side, English judge famously observed that the between both sides, decides intricate questions primary judge in a notorious shipping case of law and fact with equal ease’2. ‘was a very stupid man, a very ill-equipped This prompts a digression. Especially in Some businessmen ‘prefer even lawyer and a bad judge [who] knew as much disputes in commodity trades, much arbi- about the principles of general average as a tration was more like what we would now the hazardous and mysterious Hindoo about figure-skating’3. However, it call expert determination. A dispute about was inappropriate that the judiciary should product quality, for example, could be re- chances of arbitration, in which attempt to replicate the expert determination solved quickly by someone knowledgeable in some arbitrator, who knows aspect of arbitration. It is incompatible with the trade who would examine the product, the judicial process; and the strength of some and make a ruling, and the parties could about as much of law as he knows arbitrators based on their personal business get on with their business. This overlap be- experience was often matched by weakness tween arbitration and expert determination of theology, by the application in legal competence. What commercial was reflected in my own experience when I people pressed for was a half-way measure; first started practice. In the 1960s in New of a rough and ready moral they wanted a court, or at least a list, dedicat- South Wales, the most common form of ed to their disputes, with judges experienced, arbitration was in building cases. As young consciousness, or upon the affable not as participants in trade or commerce, but barristers, we were sometimes sent up to the in commercial law and the process of com- premises of the Master Builders’ Association principle of dividing the victory mercial dispute resolution, which would be where building disputes were determined by equally between both sides, more expeditious than that of the ordinary an arbitral panel consisting of a builder, a courts and better adapted to commercial representative of an owner, and, commonly decides intricate questions of requirements. presiding, an architect. This was because the They achieved that with the establishment, standard form of contract for a domestic or law and fact with equal ease’ in 1895, within the Queen’s Bench Division commercial building, issued by the Master of the Supreme Court, of a Commercial List, Builders’ Association, provided for that which became popularly known as the Com- form of dispute resolution. The link between a party could not call an expert lawyer to give mercial Court. Sir Richard Aikens wrote:4 standard forms of arbitration clauses in com- an opinion about the meaning of a contract mercial contracts and the practical realities but, surprisingly, experts from other fields are In the early years most of the cases of dispute resolution is of major importance. sometimes asked by counsel to express their involved shipping and marine insurance A large part of the legal work that comes to views on contractual construction. Confin- disputes but a look at the Times Reports London is built upon it. ing expert evidence to its proper field can of Commercial Cases reveals that the Large construction contracts usually had be a challenge for judges and arbitrators. An court took commodities cases, banking more tailor-made provisions, but they reflect- expert called to provide information relevant disputes, intra-company disputes, and ed the same basic scheme. The first major to the understanding of a contract may find appeals from arbitrations. The procedures arbitration in which I appeared, as a junior it hard to resist the temptation to tell the were quick and informal. Pleadings were counsel, arose out of a dispute between a tribunal what the contract means. often dispensed with altogether; and Commonwealth instrumentality and the Between the 1960s and the 1980s, a evidence was dealt with much more Australian subsidiary of an American civil change occurred, for which I cannot ac- informally than in other courts. contractor. The construction contract pro- count. It might be described as the judicial- vided for arbitration. The case involved a isation of the arbitral process. At the time of The Commercial Causes Act 1903 (NSW) large amount of money. The hearing lasted my appointment to the Bench, I was in the was said to be an Act to provide a more several months. There were senior and junior second phase, which was being conducted in expeditious method for trial of commercial counsel on both sides. Points of law were London, of an arbitration of which the first causes; an expression that was defined to argued, including issues about the meaning phase had taken place in Melbourne. The include causes arising out of the ordinary of the contract. The arbitrator, an eminent contract concerned oil and gas. The parties transactions of merchants and traders, retired engineer, dealt with them all without on both sides were represented by lawyers among others those relating to the con- apparent difficulty. He listened courteously from Sydney, Melbourne and the United struction of mercantile documents, export to the lawyers arguing about the contract. States. The arbitrators were a former Aus- or import of merchandise, affreightment, I am sure he would have suspected that to tralian Federal Court judge, a former United insurance, banking and mercantile agency

38 [2018] (Spring) Bar News The Journal of the NSW Bar Association ADDRESS and mercantile usages. It provided for the Supreme Court provided for a Commercial within federal jurisdiction, including com- establishment of a Commercial List, and, in Division but today the Commercial List is mercial contract disputes; disputes concerning the practice of the Supreme Court thereafter, operated by the Equity Division. The current the conduct of corporations and their officers; a particular judge was assigned to that list. Practice Note (SC Eq 3) dates from 2008, commercial class actions; insurance disputes; In the 1960s, when I commenced practice, and has to be read with SC Eq 4 (Corpora- insolvency matters; international commercial the Judicature Act pleading system had not tions Law) of 2011, SC Eq 6 (Cross Border arbitration disputes and others. yet been transported to New South Wales. Insolvency) of 2017 and SC Eq 9 (Commer- I was interested to see that the practice Common law pleadings followed the 19th cial Arbitration List) of 2012. The court’s note provides for the possibility of a ‘memo- century forms set out in the pre-1870 edition general objective is said to be to ‘facilitate the rial’ style process to be adopted similar to of Bullen & Leake. Equity cases, with a dif- just, quick and cheap resolution of matters’. that used in some international commercial ferent form of pleading, were dealt with by I did not coin that phrase and I would stress arbitrations. I have been involved in arbi- a separate division of the court. Commercial the importance of punctuation. The practice trations that use that process, and I have causes were received into the Commercial note deals with various matters of procedure, mixed feelings about it. As with many of List only if prompt application was made, including, I notice, stopwatch hearings. I have the available techniques of case presentation and they were retained in the list only if only once conducted a stopwatch hearing in and management, its efficacy largely depends requirements of expedition were satisfied. an arbitration although, of course, in most upon the capacity and motivation of counsel. The initiating process, after the formal writ arbitration hearings, there are somewhat less In the hands of counsel who understand by which all common law actions were com- formalised time limits imposed on evidence the difference between issues, evidence and menced, was a summons. Directions were and argument. The stopwatch procedure was argument, and whose appreciation of the then made with a view to defining the issues. a little inflexible for my taste; but it seemed merits of their case motivates them to respect Most common law cases were tried by jury; to work well enough, mainly because counsel that difference, it works well. In other cases commercial causes were tried by judge alone, co-operated successfully. Perhaps it is at its it can produce a document that is messy and as were Equity cases. Commercial work most useful where there is a risk that the confusing. The same, however, can be said of tended to be the preserve of Equity barristers. presiding judge or arbitrator lacks sufficient much court process. The common law bar was mainly concerned force of personality to control counsel. A recent decision of the Full Court of the with personal injury work, although some of The corresponding practice note in the Federal Court, Hancock Prospecting Pty Ltd v the leading common law advocates were in Federal Court of Australia is the Commercial Rinehart5 examined the scope of the concept demand in all fields. and Corporations Practice Note of 25 Octo- of ‘commercial arbitration’ in its application to For a time in the later part of the 20th ber 2016. The practice area to which it applies a dispute between members of a certain family century, the internal arrangements of the covers commercial and corporations disputes and interests associated with the family.

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The Journal of the NSW Bar Association [2018] (Spring) Bar News 39 ADDRESS

It is not only the process of commercial party (stevedores) to obtain the benefit of a risk of loss or damage to the goods according dispute resolution that has been influenced contractual limitation of liability in a ship- to which party bears the cost of insurance, by the demands of consumers; it is the ping contract. Opposing counsel were Mr and the cost of the carriage will vary ac- substance of commercial law also. There is Ashton Roskill QC for the cargo interests and cording to the choices made in that respect. a revealing sentence in the speech of Lord his brother Mr Eustace Roskill QC for the You will find that out if you send a parcel by Bingham in Golden Strait Corporation v shipping interests. The former successfully Australia Post. Nippon Yusen Kubishka Kaisha (The Golden argued that, on the application of established After Midland Silicones Ltd v Scruttons Ltd, Victory).6 He said: rules of privity of contract, the third party’s the shipowners’ lawyers went back to the attempt to rely on the contractual limitation drawing board.9 They drafted the contract [I]n my respectful opinion, the existing failed. The report of his argument records8 of affreightment to extend to servants, agents decision [of the Court of Appeal] and independent contractors of the carrier undermines the quality of certainty defences and immunities available to the car- which is a traditional strength and major Many arbitrations in London rier, and they used the law of agency to make selling point of English commercial that effective. Their new provision (called law, and [the decision] involves an are between foreign parties and a Himalaya clause) was described by Lord unfortunate departure from principle. Bingham in a 2004 decision10 as ‘a deft and (Emphasis added.) arise out of transactions that have commercially-inspired response to technical English rules of contract, particularly those The reference to a particular value, cer- no connection with the United governing privity and consideration’. tainty, being a major selling point of English The clause was tested in 1975, in the New commercial law reflects the origins of that Kingdom except that United Zealand case of The Eurymedon11. The Privy law and also one of its aspirations. Lord Kingdom law has been chosen as Council upheld the effectiveness of this tech- Mansfield set out to make the custom of nique. The opinion was delivered by Lord merchants part of the common law of Eng- the proper law of the contract, Wilberforce, who said: land. This, in turn, made the common law attractive to merchants as the law to govern or England has been named as The carrier [in an American case] their transactions, and England attractive as contracted, in an exemption clause, as a forum for dispute resolution. I have seen the place of arbitration. The agent for, inter alios, all stevedores and statistics as to the proportion of cases in the other independent contractors, and Commercial Court in England where one or imperialism of the common law although it is not in doubt that the law both parties are foreigners. Many arbitrations in the United States is more liberal than in London are between foreign parties and has outlived the British Empire, ours as regards third party contracts, arise out of transactions that have no connec- and almost matches that of their Lordships see no reason why the tion with the United Kingdom except that law of the Commonwealth [of Nations] United Kingdom law has been chosen as the the English language. English should be more restrictive and technical proper law of the contract, or England has as regards agency contracts. Commercial been named as the place of arbitration. The judges and lawyers have been considerations should have the same imperialism of the common law has outlived force on both sides of the Pacific. the British Empire, and almost matches that astute to identify and protect the of the English language. English judges and In the opinion of their Lordships, to lawyers have been astute to identify and pro- qualities that have made this so. give the appellant the benefit of the tect the qualities that have made this so. One exemptions and limitations contained of those, as Lord Bingham said, is certainty. in the bill of lading is to give effect to Absence of certainty means risk. that he said: ‘It is more important that the the clear intentions of a commercial In commerce, profit is the reward for risk. law should be clear than that it should be document, and can be given within Where risk exists, someone will have to pay clever’. His argument prevailed, but that existing principles. They see no reason for it. In international trade, a well-known was not the end of the story. The legal de- to strain the law or the facts in order to example is what is sometimes called sover- velopment that was attempted in that case defeat those intentions[4]. eign risk. It would be invidious to mention reflected reasonable commercial aspirations, them by name, but it is easy to think of and the shipowners and their contractors The same clause was later tested in Austral- countries where the risk of government inter- were not inclined to give up on them. ia in the case of the New York Star12 which, vention means that an investor or trader will Contracts of carriage and affreightment in 1981, was the last appeal to go from the require a higher rate of return before doing are good examples of contracts that are made High Court to the Privy Council. A cargo business there. Where governments or their in the expectation that third parties will be from overseas was stolen from a Sydney instrumentalities are parties to contracts, affected by their provisions, sometimes be- wharf while in the custody of the stevedores, resisting enforcement of contracts by relying cause the work involved in performance of in circumstances found to involve their neg- on sovereign immunity (where it exists) or such contracts is to be done by third parties ligence. The bill of lading limited liability interference (where it does not) will add to such as stevedores. A provision limiting the for such loss, and one question was whether their costs of doing business. liability of the carrier, which in turn is likely the stevedores could take the benefit of the There is a constant trade-off between the to reflect the insurance cover taken out by exemption. At first instance, and in the New value of certainty and pressures for appropri- the principals to the contract, and is a well- South Wales Court of Appeal, the judges ate legal development and refinement. This known form of allocation of risk, is going followed The Eurymedon. In the High Court, can be illustrated by a course of litigation in to be of little practical effect if it does not when counsel for the stevedores came to which I became involved at the final stage. apply to the people who actually perform the address on that point, he was stopped. The Midland Silicones Ltd v Scruttons Ltd7, a contract. International conventions regulate court said it did not need to hear him. The case decided by the House of Lords in 1962, these risk allocation practices. Contracts for High Court reserved its decision and then turned on an unsuccessful attempt by a third the carriage of goods routinely allocate the decided against the stevedores, declining to

40 [2018] (Spring) Bar News The Journal of the NSW Bar Association ADDRESS follow the Privy Council. There was a dissent over and over again to a string of buyers, or tion or the will of Parliament. Such a mode from Chief Justice Barwick. The majority when money is borrowed on it, or insurance of expression reflects the constitutional rela- judgments included some nationalistic over- arranged . . . The document must speak for tionship between Parliament and the courts, tones. The stevedores briefed new counsel. itself. For the common law has its eye fixed and the legal foundation of a law enacted by They were advised that, if the Privy Council as closely on the third man as on the original statute. It is not to be understood, however, granted special leave to appeal, an appeal parties; and the final document is the only as a reference to the psychological state of would succeed, but that special leave would thing that can speak to the third man’. some person or persons involved in drafting be hard to get. Appeals from the High Court To use a more recent expression, a typi- the Act, or debating it, or undertaking the to the Privy Council had been abolished cal commercial contract is intended to be formal procedures necessary to give it force. some years before, and although pending a bankable document. A contract for the So it is also with references to the intention of cases had been grandfathered, the English construction of a power station is likely to be the parties to a commercial contract. judges would be reluctant to get involved, an elaborate instrument, drafted over negoti- A reasonable person’s understanding of the especially since the High Court had made ations between well-lawyered parties. It will meaning of the terms of a written document a conscious choice that, on the point in be shown to and relied upon by financiers. may require consideration not only of text question, Australian law should depart from What do those financiers know of the ex- but also of context, including surrounding English (and New Zealand) law. changes between the parties and their lawyers circumstances known to the parties, and the Sitting on the bench that dealt with the during the drafting process? They only see, purpose and object of the transaction.16 This, special leave application in London was Lord and must rely upon, the text. The common in turn, may (or may not) give relevance to Wilberforce. Of course he did not approve of law’s resistance to permitting information information appearing from pre-contractual the outcome in the High Court, which had about the drafting process to influence the negotiations.17 In how many commercial cases refused to follow his decision in the New is the judge spared a reference to the ‘factual Zealand case. What also troubled all their matrix’? That phrase, coined by Lord Wilber- Lordships was the fact that the High Court force, is a reference to the organic environment had decided the point against the stevedores ‘It is more important that in, or out of which, something develops; it is without giving them an opportunity to pres- not a reference to all the chatter that goes into ent their argument. This made the task of the law should be clear than the drafting of a contract. The prize does not persuading them to grant special leave easier. go to the party whose lawyer had the most to Leave was granted, although not without that it should be clever’. say during the drafting process. some intensity of argument. The common law’s way of dealing with The appeal, which was heard a year later, this question is not the only way, even in the was plain sailing. One of the members of the case of commercial transactions. A different appeal bench was Lord [Eustace] Roskill. meaning of the text is pragmatic, and satisfies technique, based on the civilian approach, The respondents were represented by leading legitimate commercial expectations. may be seen in The United Nations Conven- English counsel, a relative by marriage of Other practical considerations point in the tion on Contracts for the International Sale of Lord Roskill, who was quick to remind his same direction. If two individuals, in a private Goods, the Vienna Sales Convention, which Lordship that his argument in Midland Sil- or domestic setting, make an agreement, has been ratified in Australia, where the ob- icones Ltd v Scruttons Ltd had failed. ‘But in it may make sense to speak of a common jective approach is a kind of default option to that case,’ said Lord Roskill, ‘I did not have a subjective intention. But if a complex legal be applied when there is insufficient informa- decent contract to rely on’. The Privy Coun- instrument is negotiated between two large tion about the subjective state of mind of the cil upheld the dissenting judgment of Chief corporations, each with legal advice, where parties to the contract. Justice Barwick and followed its own earlier the drafters of the document had no legal Consistent with the common law’s stress decision in The Eurymedon. capacity to bind their principals, and the di- on objectivity of meaning, questions of fault That litigation was a dispute between two rectors or managers whose signatures gave the and blame are frequently immaterial to a insurance companies, and the amount of document binding effect may never have read commercial dispute. If a party to a contract money involved was modest. What was at it in any detail, where does an enquiry as to fails to perform its obligations, the reason stake superficially was a question whether subjective intention lead? Whose intention is why that has occurred may, and commonly the cost of the theft of a cargo of razor-blades relevant? Principles of agency are sometimes does, not matter. More often than not, it will would be borne by the insurers of the steve- pressed into service where a particular person have no bearing on the consequences for the dores, or the insurers of the consignees. But it can be regarded as to guiding mind or will of other party. There may be any number of raised a deeper question of the uniformity of a corporation, but the drafters of commercial reasons why a party may fail to comply with the common law, and of where commercial contracts rarely fall into that category. contractual obligations. Morally, they may law was to come down as between being clear The primary common law principle of in- be good, bad or indifferent. One of the most and being clever. In these respects, the law is terpretation is that the meaning of the terms common reasons for failing to perform a con- conscious of its own marketability. of a contractual document is that which a tract is lack of necessary funds. The reason One of the principal successes of English reasonable person, in the position of the par- for the lack of funds is usually irrelevant. law has been in maintaining the objectivity ties, would have understood them to mean.14 The English courts, in the context of of contractual interpretation. Like the doc- Lord Hoffman pointed out in Attorney Gen- contracts for the sale of land, appear to have trine of consideration, this is an example of eral of Belize v Belize Telecom Ltd15 that the become concerned, for a time, that some the commercial orientation of the common objective meaning of a legal instrument, that decisions of the High Court of Australia18 law of contract. is, the meaning which it would convey to a in the 1980s had assumed an over-expansive In his rationalisation of the objective theory reasonable person, ‘is conventionally called jurisdiction to grant equitable relief against of interpretation, Lord Devlin said that the intention of the parties, or the intention the exercise of a right to terminate a contract ‘the common law of contract was designed of Parliament, or the intention of whatever for breach of an essential condition by a pur- mainly to serve commerce’.13 He explained person or body is deemed to be the author of chaser.19 The concern was misplaced. In two that, typically, a contract is ‘embodied in the instrument’. In a Constitutional context, cases decided in 2003,20 the High Court held a document which may pass from hand to it is orthodox and legitimate to express a con- that, where there was no question of a penal- hand when the goods it represents are sold struction of a statute as reflecting the inten- ty, or of unjust enrichment, or of a vendor’s

The Journal of the NSW Bar Association [2018] (Spring) Bar News 41 ADDRESS conduct having contributed to the breach, or primary and secondary obligations. commonly contract with their customers as of the transaction being in substance a mort- As with most of the common law, in prac- to such terms and conditions on a take-it-or- gage, and where no more was involved than tice the application of contract law is now leave-it basis. the application of strict contractual provi- heavily influenced by statutory intervention. In the joint judgment in Bridgewater v sions as to time, then such provisions would A prime example of this is the legislation Leahy,26 there was an attempt to remind apply. The court said that the equitable ju- prohibiting misleading and deceptive conduct lawyers of the scope of unconscionability as risdiction to relieve against unconscientious in trade or commerce and providing remedies, applied in practice by the courts. It was said exercise of legal rights was not an authority including damages, and potential reformation (case references omitted): ‘to reshape contractual relations into a form of contracts, for breach. Such legislation, the court thinks more reasonable or fair which is now to be found in Federal and State It is of interest to note the findings of where subsequent events have rendered one enactments, originated with s 52 of the Trade fact at first instance in some of the side’s situation more favourable’.21 That was Practices Act 1974 (Cth). Two features were leading cases on this topic. In Wilton v said in a case concerning a large sale of devel- established early on. First, the section was Farnworth, a person who was ‘markedly opment land. Time was made of the essence, not confined to conduct that was intended to dull-witted and stupid’ was persuaded in circumstances of previous extension of the mislead or deceive or that resulted from failure to sign over to another his interest in completion date. The purchasers were rely- to take reasonable care.22 As Gibbs CJ put it his wife’s estate without having any ing on finance to come from overseas, and in 198223, ‘[T]he liability imposed by s 52, in idea of what he was doing. In Blomley there was a last-minute hitch in the transfer conjunction with ss 80 and 82, is . . . quite un- v Ryan the defendant took advantage related to fault’. Secondly, although presented of the plaintiff’s alcoholism to induce politically as a consumer protection law, the him to enter a transaction when his legislation created a norm of behaviour which judgment was seriously affected by Perhaps the high point of the applied regardless of whether a particular case drink. In Amadio the special disability involved any consumer in need of protection. of the guarantors included a limited amorality of contract law is Gibbs CJ said in the same case:24 understanding of English, pressure to enter in haste into a transaction they the well-known proposition It may have been thought that the did not understand, and reliance upon unequal position of consumers as against their son. In Louth v Diprose the primary that the law gives a party to the corporations which supply them judge found that the donee, with whom a contract a choice between with commodities justified a measure the donor was ‘utterly infatuated’, had that from the point of view of the latter threatened suicide, manufactured a performing the contract and seems draconic, but although s 52 is false atmosphere of personal crisis, and intended for the protection of consumers engaged in a process of manipulation paying damages for breach. it is enforceable by a trade competitor to which the donor was vulnerable. who is not a consumer . . . and is not The judge found the donee’s conduct infrequently used by one trader against ‘smacked of fraud’. a rival . . .. The section may have been of funds. Settlement could not occur in the designed to protect the weak from the Legislation imposing broad normative time stipulated. The vendors terminated. The powerful, but it may be used by a large standards of behaviour, some of it based upon High Court upheld their contractual right and powerful corporation to restrain the legislative power with respect to trade and to do so. It was argued their termination was activities of a smaller competitor. commerce, now potentially affects the out- unconscientious, but nobody could explain come of many contractual disputes. Even so, why. If a purchaser, in circumstances that An allegation of misleading and deceptive a commercial context will often influence the are in no respect attributable to the vendor, conduct is now a feature of much commer- approach of a court, or an arbitrator, to issues cannot come up with the money within the cial disputation, often in circumstances such as reliance, or obligations of disclosure. time stipulated, and time is of the essence, remote from any context of consumer Chief Justice Allsop, in a paper published in why should the vendor be concerned about protection. Similarly, there are statutory the October 2017 issue of the Australian Law or affected by the reason for the delay? Why provisions against unconscionable conduct. Journal,27 made the important point that com- should it make a difference to the vendor The High Court dealt with s 51AA of the mercial contracts themselves are not value-free if the delay is the result of bad luck, or bad Trade Practices Act 1974 (Cth) in Australian zones, and are often expressed in terms of management, or simple poverty? It is the Competition and Consumer Commission v C G values and norms, sometimes well understood contract that allocates the risk. Berbatis Holdings Pty Ltd25which concerned by people in an industry, sometimes of more This does not mean that all commercial the terms of a renewal of a lease of business general application, which reflect expectations disputes are resolved in a moral vacuum, but premises. The context was commercial. The of honest and reasonable dealing. He went only that, in many cases, it will be the scheme Court decided that good conscience did not on28 to consider the wider question of good of contractual allocation of risk, rather than require the lessor, in circumstances where faith in contractual performance, considered some search for blame, that will decide who, there was no exploitation of any special at least as a principle in furtherance of the con- as between the parties, bears the consequenc- disability or disadvantage, to do other than tractual bargain, and gave a series of examples es when things do not go as planned. Perhaps pursue its own legitimate business interests. of familiar implications and principles of con- the high point of the amorality of contract There is a tendency on the part of some advo- struction which gives effect to the elements of law is the well-known proposition that the cates to assert unconscionable conduct in the good faith and fair dealing. This led him to law gives a party to a contract a choice be- event of any exercise of unequal bargaining explore the potential relationship between the tween performing the contract and paying power. The great majority of contracts are development of the common law’s approach damages for breach. In some circumstances made between parties of unequal bargaining to good faith and modern legislative interven- that is an over-simplification, but it is true power, and most people routinely enter into tion in commercial dealing. Current events in often enough to make it a sobering check contracts whose terms and conditions are not respect of financial services may be telling us on over-enthusiastic advocacy. It is also part open to negotiation. Businesses, whether run to watch this space. of the conceptual framework for analysis of by private enterprise or government agencies, The relationship between common law

42 [2018] (Spring) Bar News The Journal of the NSW Bar Association ADDRESS and statute is a complex topic, and emphasis whether, on the true construction of the con- ural forum; in the case of arbitration, there is on a particular aspect of it may risk over-sim- tract, the antecedent process is mandatory or often a conscious attempt to seek out a neutral plification. Even so, one point worth consid- facultative. forum. ering is the liberating effect upon judges of In the case of domestic, as distinct from The proper law of a contract is not necessar- statutory intervention in aid, for example, of international, commercial arbitration, the ily the law of arbitration under that contract. consumer protection. This point was made by question why some parties choose arbitration The place of arbitration (which in turn is Lord Wilberforce in Photo Productions Ltd v over litigation can, I think, be answered in one not necessarily the venue of the arbitration Securicor Ltd29, in a judgment that has been word: privacy. To revert to the ‘just, quick and hearing or hearings) may be selected for the referred to in later High Court decisions. cheap’ formula, arbitration is neither quicker very reason that it is not the home territory of His Lordship said that consumer protection nor cheaper than litigation in the Federal one of the parties to the contract, or the place legislation made it unnecessary for courts to Court, or the Supreme Court of New South where the contract is to be performed. Some give strained and unnatural meanings to the Wales, subject only to one qualification, and arbitration clauses specify that the arbitrator language of contracts in order to avoid harsh in terms of justice I have not seen any mate- or arbitrators must not be of the same nation- consequences. Hard cases can make bad law, rial difference. The qualification I mentioned ality as the parties. but if the hard cases are adequately covered by concerns the matter of finality, which can in Commercial considerations are important legislation, then the pressure upon courts to turn affect cost and delay. Because of the lim- both to the substance of commercial law and attempt to avoid injustice by doctrinal distor- itations on appellate review of arbitral awards, to the process of commercial dispute resolu- tions or strained interpretations of language is arbitrations are more likely to produce finality tion. Australian governments and courts are relieved. at an earlier stage in most cases. However, the alive to that. In his paper, Chief Justice Allsop showed value that parties attach to finality normally that, in the United States, some leading judges depends on whether they win or lose. It is END NOTES have felt obliged to temper the use of the con- important to remember the point in time at 1 R. Aikens, ‘ “With a view to despatch and the saving of expense”. cept of good faith in contractual performance which the choice of arbitration is made. Most How the Commercial Court has attempted to meet the demands by insisting that it is fidelity to the bargain that arbitrations result from agreements made of the business community for efficient and cost-effective litigation is at the centre of the concept. An everyday before parties have fallen into dispute and, procedures’, in Tom Bingham and the Transformation of the Law, M. example is the implication of a term that each therefore, at a time when they will value the Andenes and D. Fairgrieve (eds), OUP, 2009, pp 563-587. party to a contract will co-operate in the doing prospect of finality more highly than they 2 Ibid at 568-569. of acts necessary to perform, or to enable the may come to at a later stage. The principal at- 3 Ibid at 569. other party to secure a benefit provided by the traction of arbitration, however, is that it is pri- 4 Ibid at 571. contract30. The old-fashioned officious- by vate. The parties to an arbitration agreement, 5 [2017] FCAFC 170. stander would readily accept that such a term of course, can always, by consent, by-pass 6 [2007] UKHL 12, [2007] 2 AC 353 goes without saying because it is inherent in their agreement and litigate. Nothing better 7 [1962] AC 446. 8 At 459. the bargain. But the pursuit of self-interest is illustrates the essentially contractual foun- 9 The history is ecountedr by the House of Lords in Homburg Houtimport not foreign to commercial relationships, even dation of arbitration than the consideration BV v Agrosin Private Ltd [2004] 1 AC 715 (HL). when it is at the expense of the other party. that the parties can agree not to enforce their 10 Above at 744 (n 41) People would not need contracts if their inter- contract, or waive a right to arbitrate. Litiga- 11 New Zealand Shipping Co Ltd v A M Satterthwaite & Co Ltd [1975] AC ests were never going to diverge. Whatever the tion, on the other hand, invokes the exercise 154 (PC). scope of an obligation of good faith, it cannot of the judicial power of government. Save in 12 Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Australia) Pty be to turn ordinary commercial relationships exceptional circumstances, that must be done Ltd [1981] 1 WLR 138 (PC). into partnerships. Fidelity to the bargain is a in public. The publicity necessarily associated 13 Patrick Devlin, The Enforcement of Morals (1965) at 44. (PUBLISHER?) coherent principle; self-denial is not. with litigation is, from my experience, the 14 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd 92004) 219 CLR 165 at [10]. To return to the matter of commercial dis- most likely explanation of why parties make 15 [2009] UKPC 10 at [16]. 16 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at pute resolution, both litigation and arbitration arbitration agreements at a time when they are [40]. are choices of last resort; neither is the prin- not in dispute, and cannot foresee what their 17 Oceanbulk Shipping SA v TMT Ltd [2010] UKSC 44, [2011] 1 AC 662 cipal method employed by business people disputes might be, keeping also in mind that at 680. resolving disputes. This is why I am puzzled modern arbitration agreements are usually 18 Such as Legione v Hately (1983) 152 CLR 406 and Stern v McArthur by occasional statements of regret that, by part of more elaborate dispute resolution pro- (1988) 165 CLR 489. going to private arbitration, parties deprive the cedures which, at least in their early stages, are 19 See, for example, Union Eagle Ltd v Golden Achievement Ltd [1997] AC public of the benefit of judicial clarification of essentially private. 514 (PC). the law. Business people have no obligation to In the case of international commercial 20 Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315; Romanos v contribute to the clarification or development arbitrations, an additional consideration is Pentagold Investments Pty Ltd (2003) 217 CLR 367. of legal principle. Most disputes that arise in often at work: forum neutrality. Parties to 21 Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315 at 337. 22 Hornsby Building Information Centre Pty Ltd v Sydney Building commerce, even if they find their way into the international commerce are sometimes cau- Information Centre Ltd [1978] HCA 11; (1978) 140 CLR 216. hands of lawyers, never get to court or to ar- tious about entrusting the resolution of their 23 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 bitration; they are settled by the parties based disputes to the courts of the home country at [7]; (1982) 149 CLR 191. upon an assessment of where their interests of the other party. (Caution of this kind may 24 Ibid at [7]. lie. Once litigation arises, most court cases also explain the striking fact that, by reason of 25 (2003) 214 CLR 51. are settled, on the same basis, without the international conventions, enforcement of for- 26 (1998) 194 CLR 457 at [46]. need for any judicial decision. Almost every eign arbitral awards is more widely accepted 27 Conscience, Fair-Dealing and Commerce: Parliaments and the Courts arbitration clause I have seen in recent years than enforcement of foreign judgments.) This, (2017) 91 ALJ 820 at 823. is part of a wider dispute resolution provision again, reflects the basic difference between 28 Ibid at 833. that involves anterior stages of a resolution dispute resolution by the exercise of the judi- 29 [1980] UKHL 2; [1980] AC 827. 30 Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 at [61]. process that is often quite elaborate. There is cial power of a government and dispute reso- now a developing body of jurisprudence con- lution by an agreed process, where the parties cerning the jurisdiction of arbitral tribunals in are free to choose the place of arbitration and cases where there has been a failure to follow the tribunal. Whereas, in the case of litigation, the antecedent process. It often depends upon emphasis is often placed on identifying a nat-

The Journal of the NSW Bar Association [2018] (Spring) Bar News 43 SPECIAL EDITION - EXPERT EVIDENCE

Playing in the hot tub - a guide to concurrent expert evidence in New South Wales

By Adam Butt, 8 Wentworth and Hugh Stowe, 5 Wentworth

A. Introduction wish to keep in mind when preparing for pre-trial and trial sessions, to maximise their Concurrent expert evidence (‘hot tubbing’) client’s position in such sessions. The paper is a method for adducing and testing expert also flags some tensions which have surfaced evidence which has been championed in in relation to the model, for the purposes of Australia1 and is now used to varying extents exploring how it might best be developed as in the common law world and in internation- an evidentiary tool. al arbitrations. In New South Wales, concur- To endeavour to provide readers with a rent evidence has for a number of years been current and diverse perspective on the topic, a default or normalised evidentiary process in the authors have consulted several eminent major courts and tribunals. practitioners and judges for their perspectives This article provides a guide to concur- practical side. The article focuses on some on the method.2 We incorporate individual rent evidence and takes a closer look at its key considerations that practitioners may and group responses into our analysis. We

44 [2018] (Spring) Bar News The Journal of the NSW Bar Association SPECIAL EDITION - EXPERT EVIDENCE are grateful to everyone who took the time to concurrent evidence is increasingly ‘the norm concurrent evidence include the following:19 share their perspectives. rather than the exception.’6 The process of concurrent expert evidence has been used in • enabling all involved at a trial to hear the Concurrent evidence model diverse areas including toxics, accounting, experts discussing the same issues, at the quantity surveying, pharmaceutical patents, same time, enhancing the comprehension Australia’s version of concurrent evidence metallurgy, naval architecture, mechanical and exploration of the evidence;20 typically involves two interrelated processes. engineering, medical negligence and anthro- First, there is a pre-trial joint expert confer- pology.7 The process is generally confined to • promoting a cooperative, collegiate envi- encing (‘conclave’) phase. During this part, civil proceedings, yet it has also been intro- ronment in which the experts more readily the parties’ experts meet to clarify the areas duced, by the parties’ consent, in criminal act to assist the Court rather than to act as of agreement and/or disagreement between trials before a judge sitting alone, in voir advocates; them, in order to produce a joint report on dire examinations, and before magistrates such matters. The conference may or may in summary criminal proceedings.8 Despite • narrowing or resolving the issues before the not be conducted with a facilitator present, the conventional wisdom that concurrent Court and clarifying differences, thereby depending on context. The parties’ lawyers evidence is only used in non-jury cases,9 as enhancing prospects of settlement21 and will normally not be present. Pepper J notes, it ‘is now used in both judge- efficiencies at hearings;22 The second part of the process, if any, is the alone trials and jury trials, in both criminal giving of concurrent expert evidence at trial. and civil proceedings.’10 • enabling a judge to chair a discussion During this phase, the parties’ experts sit to- which assists the judge in their fact-finding gether at court in what has colloquially been Rules and practice notes and in structuring the interactive eviden- called the ‘hot tub’3 (e.g. a witness box), and tiary process; present evidence concurrently in an interac- Rules on concurrent evidence are now broad- tive process which is moderated by the judge. ly provided for in Australian legislation.11 • having the experts appear together pro- The experts still give their separate opinions Although the rules of different jurisdictions motes greater care and accuracy in their and are still cross-examined by counsel, as have certain distinctions among them, the expression of opinion because of the pros- occurs in a traditional adversarial trial. How- processes are substantially similar. The pect of immediate peer review; ever, in this instance the experts present their process is always intended to enable the viewpoints concurrently instead of sequen- ‘real issues in dispute between experts to be • clearer and fuller communication of expert tially, and there may be interaction among identified and narrowed from an early stage,’ opinion is facilitated by ‘refocussing em- the experts should they see a need to ‘correct’ for the purpose of achieving a proceeding’s phasis to professional dialogue rather than or to ‘disagree’ with each other’s views. The just and efficient resolution.12 At its core es- cross-examination’,23 and easing experts’ judge will also intervene as appropriate with sentials, concurrent evidence aims to shorten tension regarding the process of giving questions to enhance the fact-finding process trials (and reduce associated work), enhance evidence; for him or herself. The process is intended to fact-finding and judicial decision-making, be a discussion among professionals which and improve settlement prospects.13 • counsel may also benefit when cross-exam- enhances the search for the truth. It involves Under r 23.15 of the Federal Rules, for ining because they can immediately invite certain inquisitorial features, yet it also main- example, if two or more parties to a pro- responses from either expert regarding a tains fundamentally adversarial techniques ceeding intend to call experts to give opinion matter in question; albeit in a non-traditional setting. evidence about a similar question, any party may apply to the Court for an order that the • by reason of the above matters, the process experts undertake a joint conference before usually assists in the ‘just, quick, and or after they write their expert reports, or cheap’ disposition of proceedings. According to Hon. Peter that the experts give concurrent evidence.14 Moreover, the Court itself can order that Disadvantages McClellan, one of concurrent expert conferencing or concurrent evidence take place.15 The Court’s power to make such In contrast, some concerns have been raised evidence’s key proponents, an order in civil cases is a defining feature which include the following matters: of the process,16 although in Australian ju- the process is ‘one of the most risdictions in which concurrent evidence is • lawyers are usually excluded from the important recent reforms in the now well developed the process is typically conclaves, creating uncertainty and anxi- preferred by the parties.17 ety due to a loss of control, and depriving civil trial process in Australia. The effectiveness of concurrent expert evi- clients of whatever legitimate role lawyers dence in Australia is buttressed by the pres- properly have in the testing and expression ence of an Expert Code of Conduct which of the opinion expressed in an expert’s emphasises that experts have a duty to assist report; This model has been designed to, and does, the court (not the party retaining them) and in general, help to narrow, clarify and resolve to act impartially at all times. This can help • although rules of court typically provide issues in dispute with greater efficiency and to reduce bias and enhance participation in detailed procedural guidelines, uncertain- accuracy across a broad range of subject conclaves and hot tubs.18 ty and a lack of structure is still a concern areas. According to Hon. Peter McClellan, to some; one of concurrent evidence’s key proponents, B. Advantages and the process is ‘one of the most important disadvantages of concurrent • some are concerned that experts may be recent reforms in the civil trial process in evidence turned into advocates and or more per- Australia.’4 suasive experts may win a judge’s mind by Today, numerous Australian courts and Advantages overshadowing others;24 tribunals have incorporated concurrent evidence into their rules.5 In those jurisdictions It is generally recognised that the benefits of • a perception by some that conducting

The Journal of the NSW Bar Association [2018] (Spring) Bar News 45 SPECIAL EDITION - EXPERT EVIDENCE

cross-examination about an expert’s credit thority that a ‘clear, firm and considered di- not ‘default’, parties should confer as early as during concurrent evidence can be more vergence of opinion between experts’36 practicable to try to reach agreement on the difficult;25 weighed against the utility of conclaves, there method’s suitability and incorporation into is now a recognition that the mere existence the timetable for a hearing’s preparation. • smaller matters may not justify the up- of such divergence does not preclude the Justice Middleton emphasised the impor- front costs of conclaves. utility of the model, because of the capacity tance of having a joint report completed well of the conclave both to facilitate convergence before the trial, so that any deficiencies with Overall, the prevalence of the a report can be addressed well before model in NSW tends to confirm that a hearing. Further, the early conduct these concerns are outweighed by the of the conclave facilitates there being process’ benefits, when properly and sufficient time for post-conclave settle- responsibly executed. Alternatively, ment discussions, taking advantage of the concerns may be incorrect or mis- any narrowing of issues that flow from guided.26 For example, concerns about the conclave.43 exacerbating the problems of expert In preparing for the conclave, the partisanship appear not to have been parties should agree on who will realised. This conclusion is supported attend, the questions which will be an- by our interviews and relevant statis- swered, and the materials to be placed tics which show that users generally before the experts.44 In any event the prefer concurrent evidence over other Court may make directions on these methods.27 Indeed it has become the matters. The questions to be addressed norm in NSW.28 should be those specified by the Court or those agreed to by the parties (this Default or suitable process? issue is discussed further below). The experts need to be provided In certain jurisdictions, concurrent with copies of applicable Codes of evidence is the ‘default’ evidentiary Conduct and practice notes, relevant process. This applies in the Supreme individual and/or joint statements Court’s Common Law Division29 and of assumptions to be made by the Professional Negligence Lists,30 and in experts, and copies of expert opinions the Land and Environment Court.31 which the parties intend to rely on. In other courts and tribunals concur- Other materials such as agreed chro- rent evidence is used if ‘suitable’32 or nologies may be helpful.45 ‘appropriate,’33 although the practice notes convey a clear preference for the Timing of conclaves model.34 This applies to equity cases in the and to clarify the nature and basis for disa- Supreme Court, to civil cases in the District greement.37 In terms of the timing of conclaves,46 the Court, and to Federal Court and Adminis- In the Federal Court, concurrent evidence Court can choose to direct that a conclave trative Appeals Tribunal proceedings. is used ‘in appropriate circumstances’ and be held before or after any individual expert parties should expect the Court to ‘give reports have been written.47 Our interviews careful consideration to whether concurrent suggest that the usual practice is that courts evidence is appropriate.’38 Similar considera- direct that conclaves take place after the Our interviews suggest that tions apply in the District Court.39 Our in- parties’ experts have completed their initial terviews suggest that orders for conclaves40 in individual reports.48 There are recognised orders for conclaves in civil civil trials are highly likely to occur or a near disadvantages of moving straight to conclave certainty. Weinstein SC says that in PNL without prior individual reports: 1) exclud- trials are highly likely to matters the orders are essentially ‘inevitable.’ ing lawyers from the process of preparing the occur or a near certainty. Preston CJ LEC gave a similar response re- initial individual expert report may frustrate garding LEC cases. In Middleton J’s cases, the precise identification and distillation of which are ordinarily large and well-resourced the relevant issues, undermining the con- federal matters (IP and competition), his clave’s efficiency; 2) excluding lawyers from All of this begs the question as to what are Honour has never ordered conclaves not to the process of preparing the initial reports the criteria upon which a case is deemed to be proceed. His Honour says that, because of generates procedural fairness issues, by suitable or unsuitable for concurrent evi- cultural changes, lawyers do not now resist frustrating lawyers fulfilling their legitimate dence? Some practice notes provide useful the order before him.41 role in relation to the testing, substantiation guidance.35 Considerations weighing in and expression of an expert’s initial opinion; favour of concurrent evidence include: the C. Pre-trial phase - The conclave 3) without prior exchange of expert reports, centrality of expert evidence to the case, an moving straight into a conclave risks an overlap on the subject matters on which ex- Preparation expert being unprepared to deal adequately perts express opinion, complexity in the and fairly with unforeseen competing expert contest between experts, experts possessing The issue of concurrent evidence should be views.49 comparable disciplines and expertise, the raised by the parties as early as possible in a Alternatively, some judicial interviewees parties being sufficiently resourced to justify proceeding - such as at the first appropriate expressed a practice or occasional preference the up-front additional costs of the conclave case management hearing - so that orders for directing that experts participate in the process, and there being sufficient prospects can be made in advance. This consideration conclave before completing their individual that the method will reduce the hearing’s is incorporated into the practice notes.42 In reports (or any report). For example, Pres- length. Although there has been earlier au- jurisdictions where concurrent evidence is ton CJ LEC advised that in the LEC the

46 [2018] (Spring) Bar News The Journal of the NSW Bar Association SPECIAL EDITION - EXPERT EVIDENCE most common direction is that the experts clave on issues on which they lack expertise;55 possibility of lawyers attending the conclave, proceed to conclave and joint report, before logistical difficulties in arranging for the there seems to be a general recognition that being allowed to prepare individual reports. attendance of large numbers of experts in it is appropriate to exclude lawyers from the His Honour indicated that this LEC practice court for concurrent evidence.56 Weighing in process, to avoid the perception and reality may be linked to the presence of many repeat favour of the larger conclaves and concurrent of tainting the collegiate and non-partisan players in that jurisdiction who are familiar evidence sessions are the following consid- dynamic of the conclave.59 with, and skilled at, writing joint reports. In erations: that ‘untested or idiosyncratic dif- Without attending the conclave, lawyers the LEC, parties need to seek directions for ferences of opinion might emerge if separate may still perform a limited role providing experts to, and justify the need to, proceed isolated concurrent evidence sessions are instructions and clarifications to the experts to individual reports after joint reporting. permitted’ (although that risk could be mit- on questions arising during a session, in- Similarly, Middleton J says that sometimes igated by recalling witnesses if necessary);57 cluding in relation to procedure, relevance, he favours having experts first confer before the scope for enhanced problem solving on or providing materials.60 It may be useful to they commit to their individual reports, be- complex questions by reason of the presence formulate an agreed protocol for such com- cause this may avoid experts taking positions of different perspectives, and the capacity for munications when the conclave is ordered.61 that they feel compelled to defend. Hon cross-fertilisation between different expert Any disagreement between the lawyers about Annabelle Bennett considered that a further disciplines. communications to the experts should be advantage of holding a conclave before the brought before the judge. provision of individual reports is that it could avoid the substantial delay and cost often Although the rules contemplate Facilitators associated with individual reports (which are often redundant following the joint report). the possibility of lawyers The Court may direct that a conference be It was observed that some of the disadvan- attending the conclave, held ‘with or without the attendance of a fa- tages of moving straight to conclave could cilitator’: UCPR 31.24(2)(c). Facilitators62 are be mitigated by an exchange of pre-conclave there seems to be a general becoming increasingly utilised in conclaves.63 precis reports or position papers between the In jurisdictions such as native title, facili- experts (perhaps on condition that they are recognition that it is appropriate tators (there Registrars) are always used.64 not be tendered, or the subject of cross-exam- In some jurisdictions they are rarely used.65 ination, to mitigate the temptation to unduly to exclude lawyers from the A facilitator could be a Registrar, Associate embellish those precis reports)50. It was also Justice, commissioner or an experienced recognised that circumstances which may process, to avoid the perception barrister.66 UCPR 31.24(2)(c) requires only support consideration of bypassing the prior that a facilitator be independent. The person exchange of individual reports might be the and reality of tainting the may or may not be an expert on the issues 67 clarity of the issues in contest; the forensic collegiate and non-partisan in question. They do however need to be experience of the experts (limiting the rea- ‘suitably qualified.’68 Hon Anthony Whealy sonable need for lawyer involvement in a dynamic of the conclave. QC observes that there might be disadvan- preliminary report); the need for expedition tages in using a non-lawyer facilitator with of trial preparation; and cost concerns. subject matter expertise: i.e., the risk they Stephen Finch SC expressed concern in might consciously or unconsciously convey Number of conclaves and experts multi-party litigation about a judicial will- their own expert view; the risk of undue ingness to permit each party to invite an deference by the conclave participants to It is not uncommon for concurrent evidence expert to the conclave and concurrent evi- that view; the inability to comprehend what to involve 2 to 8 (or more) experts.51 Anecdo- dence sessions, in circumstances where a form of expression would be comprehensible tally, increasing the size of the conclave may number of parties support a common posi- to lay persons; and the absence of reason to increase the logistical difficulties of manag- tion leading to an imbalance in the numbers think that subject matter experts are skilled ing collegiate dialogue, and the risk of ‘group of experts supporting opposing views. He facilitators. The practice notes suggest that think’ and blocks of experts ‘ganging up’ on observes, as we have noted above, that the a conclave facilitator or chairperson may be minority views.52 practice potentially exposes experts advocat- appointed by consent or by court order.69 There will frequently be multiple conclaves ing the minority position to significant pres- The attendance of an experienced facil- addressing distinct areas of expertise. When sure to conform to the majority view, and itator can be extremely useful in managing there are partially overlapping areas of exper- privileges the majority view in concurrent a conclave and optimising its information tise, case management issues arise in relation evidence through sheer weight of numbers. product – the joint report. The benefits of to whether to convene a single large conclave He also observes that groups of experts sup- a facilitator may include: facilitating a bal- to address all issues, or multiple smaller porting a position often seem more prone to anced opportunity for participation by all conclaves to address particular issues (pos- adversarial bias than individual experts. He experts in the conclave and preventing power sibly necessitating the attendance of some suggests that conclaves (and concurrent evi- imbalances affecting the outcome; having a experts in multiple conclaves).53 Weighing dence sessions) should generally be convened disciplining effect on experts’ dealings; en- in favour of smaller issue-specific conclaves on the basis that each substantive position is suring the issues are addressed by reference to include: logistical difficulties associated with represented by only one expert, regardless of appropriate assumptions; preventing ‘frolics’ convening large conclaves (although some of the number of parties supporting that posi- by experts in the conclave;70 acting as a secre- those difficulties could be mitigated by the tion.58 tary and facilitating the accurate articulation appointment of an experienced facilitator);54 and recording of opinions; helping experts to the waste of expert time and costs associated Attendance of lawyers? resolve uncertainties concerning their role; with experts participating in a conclave on and managing the tension between experts’ issues on which they expressed no opinion; Judges may irect that a conclave be held ‘with role to the Court and appointing party.71 the risk of irrelevant and unqualified opinion or without the attendance of the parties af- Our interviewees generally support the being expressed (and recorded in the joint fected or their legal representatives’: UCPR use of facilitators, at least if resources permit report) if experts participate in a larger con- 31.24(2). Although the rules contemplate the them.72 Considerations which weigh in

The Journal of the NSW Bar Association [2018] (Spring) Bar News 47 SPECIAL EDITION - EXPERT EVIDENCE favour of the appointment of a facilitator articulate the relevant issues in contest. Sec- conclave is assisted by the personal attend- include the complexity of issues to be ad- ondly, the requirement of consent promotes ance of the experts. However, arrangements dressed; the complexity of the assumptions neutral framing, and militates against the are frequently made for the attendance of and information upon which opinion is to likelihood that questions will be framed in experts by phone or audio-visual link.86 be based; the involvement of more than two a way which skews the responses in a parti- experts; the conduct of the conclave other- san way.79 Any controversy between lawyers D. The Joint report wise than by face-to-face meeting; perceived about formulating the questions can often status imbalance between attending experts; be resolved by agreement that the experts Structure of the joint report and the absence of forensic experience of the address the questions on a topic proposed by experts. The preferences of the participating each party. However, the intervention of the In terms of the content of joint reports,87 experts are also relevant.73 In smaller cases, or judge may be appropriate and required if the these reports should set out in numbered and in cases with seasoned experts,74 facilitators controversy relates to whether the issue arises bullet form the matters upon which there is may be unnecessary and result in inefficiency. on the pleadings,80 bias of the questions, or agreement and disagreement, and reasons as confusion. In formulating the questions, a to why the experts disagree. The rules typ- balance must be struck between ensuring ically provide that no reasons are required that there is sufficient precision to ensure in relation to matters on which the experts The attendance of an experienced legally relevant issues are addressed, but suffi- agree.88 There is no reason why experts should cient flexibility to ensure that experts are not not cross-reference their earlier reports to facilitator can be extremely unduly fettered in addressing matters they identify reasons for their positions on which 81 useful in managing a conclave. themselves consider relevant to the issue. there is disagreement. Experts should also set If there are precise questions included, con- out, inter alia, matters in respect of which no sideration should be given to the inclusion of opinion could be given and suggest matters open-ended questions to give the experts lat- which could usefully be submitted to them Transcript writer itude to expand as they consider appropriate. for their opinion. ‘Experts are not to be con- Some perceive there are disadvantages to strained by the contents of their [individual] Robert Stitt QC and Richard Weinstein SC lawyers framing the questions, and consider reports when participating in a discussion in both emphasise the importance of having that the framing of the issues should be left a joint conference’ and preparing their joint a transcript writer in conclaves who will to the experts and/or the judge. The per- report.89 accurately identify the contents of a joint ceived disadvantages of lawyers framing the report. This helps to address the frequent questions are that: 1) sometimes too much argument as to what was said or agreed to in time and costs may be involved in lawyers a conclave.75 attempting to reach agreement on precise With respect to the matters in questions 2) Justice Rares considers that the Privilege and confidentiality of conclaves involvement of lawyers carries an undue risk the joint report on which the of framing bias (which the lawyers usually do If directions are made to exclude lawyers not intend) in the drafting of the questions. experts disagree, the statement of from the conclave, the experts should not Questions should be framed to resolve an contact their lawyers, until the joint report issue(s) in the proceedings, and, if possible, reasoning rule would still apply is signed. At that time, they may provide the should be capable of being answered in a Yes/ as a condition of admissibility. lawyers with a copy of the report and com- No fashion or by way of a brief response.82 municate about what transpired at the con- The issues given to experts to consider in clave if they wish.76 Forrest J has developed conference should contain non-tendentious useful protocol which deal with the issue of language.83 Admissibility of joint report quarantining of lawyers from the concurrent evidence process.77 Control of information in the conclave UCPR 31.26 relevantly provides that a joint UCPR 31.24(6) provides that ‘unless the report ‘may be tendered at the trial as evi- parties affected agree, the content of the ‘As a general rule’, it is ‘preferable that experts dence of any matters agreed’. However, this conference between the expert witnesses have all available material that may be of provision has been construed as ‘permissive must not be referred to at any hearing’. The some relevance or significance prior to con- and not mandatory and does not require phrase ‘must not be referred to’ in r 31.24(6) clave’. 84 If there remains doubt or contest in but merely permits the admission of a joint is a broad expression and is not limited to relation factual matters material to the expert report’. Consequently, it does not mandate tendering a transcript of a conclave. It would opinion, the conclave should be conducted the ‘admission of a joint report which does extend to precluding anyone during a hear- on alternative assumptions to address reason- not comply… with the requirements of s 79 ing of proceedings from making reference to ably foreseeable scenarios. of the Evidence Act 1995 (NSW), or where the content of the transcript and from oth- ‘It is undoubtedly good practice to ensure that report or reports is or are liable to exclu- erwise utilising the transcript as evidentiary that the parties set the rules (with directions sion under s 135 of the Evidence Act’.90 material’.78 from the court) before a conference of experts Reasons. The obligation under the general commences’ in relation to the assumptions law to provide reasons for expert opinion is Formulating the questions for the experts and information upon which the conclave is typically abrogated by the court rules which to be conducted. ‘Any variation’ in relation relate to concurrent evidence, in relation to Our interviewees varied in their preferences to that agreed arrangement should only take issues in the joint report on which the experts regarding the framing of questions to be place ‘pursuant to further directions of the agree.91 With respect to the matters in the addressed by experts at conclaves. The gen- court’. 85 joint report on which the experts disagree, eral preference is for the lawyers to agree on the statement of reasoning rule would still the list of questions/issues to be addressed. Personal attendance by experts apply as a condition of admissibility. Howev- Advantages of this may be that, firstly, the er, the adequacy of the reasoning is assessed lawyers may be best placed to identify and There is a recognition that the conduct of the against the backdrop of the expert’s earlier

48 [2018] (Spring) Bar News The Journal of the NSW Bar Association SPECIAL EDITION - EXPERT EVIDENCE individual report.92 Additional reports by other conclaves generally facilitate the elucidation Expertise. A joint report may be rejected experts post joint report? of truth, they do not eliminate the possibility if the expert expresses an opinion in the joint of mistake; 2) even without subject matter report beyond his expertise.93 A party may not adduce evidence from any expertise, lawyers’ capacity for analytical Discretionary exclusion. Joint reports other expert witness on the issues dealt with rigour may facilitate identification of error may be excluded under s 135 of the Evidence in the joint report ‘except by leave of the through the testing of a concession; 3) the Act if their admission would be ‘unfairly Court’: UCPR 31.26(5) case-management inefficiency of unravelling prejudicial’, ‘misleading or confusing’, or A party against whose interests questions consensus should not trump truth-seeking likely to ‘cause or result in undue waste of are answered in a joint report pursuant to the and a party’s entitlement to natural justice.106 time’.94 For example, in relation to sections rule ought not to expect that they can later If the process of testing leads to the expert of the joint report on which there is disa- search elsewhere for an expert to support genuinely recanting from a concession in greement, the joint report may be excluded themselves and then as a matter of course be the joint report, the Harmonised Code of if there is a failure to set out the basis for the granted leave to tender favourable evidence Conduct requires experts to provide a sup- opinion, and ‘it would be unfairly prejudicial from that expert at a subsequent trial. This is plementary report to both parties. to the [opposing party] to require them to because of the public interest in the efficient cross-examine in order to identify the basis of administration of justice.102 It would ‘entirely his opinions …. in a manner which would in defeat the purpose of the expert conclave Concurrent evidence is a effect turn a cross-examination into evidence process, including the production of a joint in chief of those steps’ in the expert’s reports report’, if leave to lead contradictory evidence flexible process which varies ‘which are not disclosed in his reports’.95 from another expert were readily granted.103 On the other hand, joint reports will not Consequently, leave to adduce evidence from somewhat across jurisdictions be excluded under s 135: 1) merely because another expert ‘should not be granted lightly a concession in the joint report may tend to and, indeed, a grant of leave should be the and among judges. damage the case of a party;96 2) on the basis exception rather than the rule’.104 of a principle extrapolated from administra- Exceptional circumstances where leave tive law, that the experts took into account might be granted to lead expert evidence However, there are typically court rules ‘irrelevant considerations’ in the conclave from another expert may include: 1) where concerning concurrent evidence which pre- and joint report;97 3) merely because there are leave is subsequently granted to amend clude a party from actually adducing ‘expert arguably inconsistencies in the joint report, pleadings to introduce a new claim, and the evidence inconsistent with’ any matter in circumstances where there is scope to ad- new claim involved complex evidentiary agreed in a joint report without leave.107 dress those inconsistencies during concurrent issues not addressed in the conclave and joint Whether leave should be granted raises gen- evidence.98 Further, in considering whether report;105 2) where an expert could not attend eral principles concerning the circumstances a joint report is sufficiently ‘misleading or the conclave for health reasons; or 3) where a in which leave should be granted to a party to confusing’ to warrant exclusion under s 135, joint report unforeseeably strayed into a new withdraw admissions.108 Nonetheless, if there the following judicial observation is relevant: expert’s area of expertise. But, subject to time is adequate explanation as to the reasons for ‘there is something bizarre in submitting to constraints, it is difficult to see why (even in the departure from the joint report, and no a judge sitting alone that he or she should those circumstances) the conclave should not suggestion that the expert has been prevailed reject evidence on the ground that it might be reconvened to accommodate the collegiate upon, it is difficult to see the justification for mislead or confuse him or her. I propose to consideration of those additional expert denying leave.109 trust myself’;99 4) on the grounds of denial views. If an expert wishes to withdraw a con- of natural justice, merely because the joint cession made in the joint report (or qualify report addressed matters ‘which were outside Testing and resiling from a concession by reference to the specific as- the matters contained in’ the experts’ respec- concessions in joint report sumptions upon which it was based), we tive individual reports.100 suggest the following procedure: 1) invite There is no controversy as to the legitimacy of the opposing party to inquire of their own privately asking the party’s expert the reasons expert whether they agree with the change A party against whose interests for a concession made and inquiring whether of opinion; 2) if not, suggest to the opposing the opinion would be different on different party that the conclave be reconvened; 3) if questions are answered in a joint assumptions. Beyond that, controversy the opposing party does not agree to recon- emerges. One school of thought is that convening the conclave, re-list the matter before report pursuant to the rule ought cessions in a joint report should be beyond the judge; 4) formally seek leave to serve a not to expect that they can later challenge (even in private). This reflects: 1) supplementary report, but invite the court a respect for the capacity of the collegiate to consider the options of either reconvening search elsewhere for an expert conclave process to elucidate correct opinion; the conclave, granting leave to file and serve 2) a concern that subsequent private testing supplementary reports in support of (and to support themselves and then by counsel might risk partisan interference opposition to) to the recanted concession, or in the expert’s opinion; 3) case-management just dealing with the recanting of the conces- as a matter of course be granted concerns that permitting a challenge of con- sion during concurrent evidence. cessions might unravel an efficient consensus. leave to tender favourable However, a competing school of thought is E. Trial phase - that there should be no greater ethical limits ‘Concurrent evidence’ evidence from that expert. on private testing of concessions by experts than should generally apply to the testing of Concurrent evidence is a flexible110 process Inconsistent earlier reports. The expert’s draft individual expert reports. Considera- which varies somewhat across jurisdictions earlier report might be excluded under s 135, tions which support the ethical propriety of and among judges. We note that, whereas when it is inconsistent with the expert’s testing concessions made by the party’s expert there are some concerns regarding the up- agreement in the joint report.101 in the joint report include that: 1) although front cost of a pre-trial conclave in say smaller

The Journal of the NSW Bar Association [2018] (Spring) Bar News 49 SPECIAL EDITION - EXPERT EVIDENCE matters (and depending on how well the pro- confined by the identified issues, and the judge’s subject matter expertise. cess is executed), the trial phase of the process process remains subject to the judge’s overall There are seen to be both substantial ad- (concurrent evidence) is invariably regarded control).117 vantages and dangers in judicial intervention by users as saving considerable amounts of Issue based openings. Experts are often, in questioning. The main advantage is that it hearing time (as will many conclaves)111 and but not invariably, invited to make a short facilitates the ultimate objective of the pres- helping participants to better comprehend opening statement of their position on each entation of evidence: ie, to clarify the judge’s the matters in dispute.112 issue. This would ideally succinctly address understanding of the evidence and issues.120 The trial phase of the concurrent evidence the expert’s relevant expertise, the nature and Hon James Spigelman considers a judge’s process generally involves some or all of the basis for the expert’s position on the issue, the ability to intervene in the process crucial to following elements:113 opposing expert’s view and why it is wrong. concurrent evidence. We note too that judges Sequence of questioning. Following any may also intervene in traditional examination • The experts will be called to give evidence expert openings, the questioning begins. of witnesses. There are other advantages. The together at the hearing at a convenient In the course of concurrent evidence, ques- line of judicial questioning will also identify time in the proceeding, usually following tions may be asked of experts by the judge, to counsel what the judge considers salient, the lay evidence.114 counsel, and other experts. The sequence of helping to focus their subsequent lines of questioning by those different categories of questioning. If a judge has a presumptive • The experts will be sworn in together and participants is a matter of variable judicial scepticism about particular evidence, some the court will explain its intended proce- preference. judges reasonably consider that procedural dure and identify, aided by counsel, the When it comes to counsel questioning, fairness requires them to ask questions which topics to be addressed (typically derived counsel will typically be invited to conduct alert the parties to that disposition, so that from the joint report). questioning sequentially. There is no rule as counsel has a chance to address it. Judges will to which counsel should proceed first, and often bring specialist expertise to a case and • Each expert may be given an opportunity the Court will often invite the parties to elect be able to ask relevant questions of experts to make a short opening, and to comment which counsel proceeds first on each issue. of which counsel may be incapable. The im- on/question their colleague about their Counsel might be permitted to ask questions partial authority with which questions from evidence or report. of their own expert first. If there has been judges are vested may also assist in stripping no opening, counsel might ask their expert away any residual vestige of partisan bias in • Counsel will sequentially conduct to outline their view, the reasons for it, and the expert’s response to the questions. Noel cross-examination, with the opportunity their view about the opposing expert. Then Hutley SC observes that he is ‘constantly of asking questions of their own expert cross-examination of the opposing expert pleasantly surprised by the extent to which during the process. It is common to allo- proceeds. In view of the informality of the questions from a judge can narrow issues and cate segments of the available time to the process, more than one round of questions shorten the need for further questioning’. different counsel present.115 might be permitted if the reasonable need for it is demonstrated (and time is available). • At any stage the judge may intervene and A judge is required to balance fairness and ask questions of experts or chair the dis- efficiency considerations. Most judges will ask questions cussion, and might allow an expert a final One concern raised by some interviewees during the process, but there opportunity to enlarge upon any answer.116 related to the lack of structure or certainty in the process of concurrent evidence. If there is is a very broad range in the We now address some core steps and issues uncertainty about the approach to be adopt- which may arise during concurrent evidence. ed by the presiding judge, Garling J suggests level of judicial intervention that clarification should be sought from the General structure of concurrent judge at the earliest opportunity.118 in questioning and the evidence sessions Another concern expressed was that occasionally the judge did not allocate suf- timing of those questions. Opening statements by experts. Our ficient time for questions by lawyers in the interviewees conveyed that some judges do concurrent evidence sessions. Preston CJ not invite general openings from experts at LEC observed that the success of concurrent There are some countervailing dangers in the commencement of a concurrent evidence evidence requires that issues concerning undue judicial intervention.121 A few barris- session (or in relation to particular issues), on procedural fairness be raised and reasonably ters observed that the efficacy of a carefully the basis that they are redundant given the addressed at the time. One interviewee sug- structured cross-examination can be frus- summary of positions conveyed in the joint gested that to the extent that it is not already trated by judicial intervention in a line of reports. done in a concurrent evidence session, a questioning, particularly where the judge By contrast, other judges do invite general judge should ask the parties at the end of the might not be as informed as counsel at that openings, involving the experts being invited session whether they need to make any final point in relation to the nuance of all the evi- to provide a general overview of their posi- cross-examination. dence. Moreover, there is a substantial risk tion and identify key areas of contest. These that experts will be vulnerable to any sugges- openings are perceived as useful to set the Role of the judge tion implicit in the judicial question. Con- scene, and to give experts the opportunity frontational questioning might also compro- to build their confidence and comfort before Most judges will ask questions during the mise the appearance of impartiality. Recog- questioning begins. process, but there is a very broad range in the nising these matters, many judges will limit Issue by issue analysis. It is typical to level of judicial intervention in questioning their questions to more open style questions sequentially address an agreed list of issues - and the timing of those questions.119 A judge’s which invite clarification of the nature and which usually follows the joint report topics approach would seem to depend on their per- reasons for an expert’s expressed opinion, and - with the following steps involved with sonal disposition, their confidence in counsel avoid more robust interrogation, and might respect to each issue (this notwithstanding, before them, their level of preparation, the defer questions until the conclusion of a line cross-examination need not necessarily be nature and complexity of the issues, and the of questioning by counsel.

50 [2018] (Spring) Bar News The Journal of the NSW Bar Association SPECIAL EDITION - EXPERT EVIDENCE

Role of the expert addressed by the conclusion of counsel’s Cross-examination is typically significantly cross-examination on a topic, then to raise shorter under concurrent evidence. This is Many judges will invite experts to raise their hand and request the opportunity to because the conclave and joint report process comments or ask questions. Although con- make a comment. Be alert to the fact that have usually reduced the issues in dispute. current evidence is a relatively informal and some experts may be too polite or reserved to There is also a perception that the emphasis flexible process, judges will require experts feel comfortable in intervening in that matter in the concurrent evidence process on the to respect the basic procedural rule that only and may need active encouragement. efficient refinement and resolution of issues one person speaks at a time, to facilitate both Before moving to the next topic, most (and perhaps the presence of other experts in the recording of the transcript and an orderly judges usually give the experts the chance to the process), diminishes judicial tolerance for discussion. Respecting a need for coopera- make any concluding comments on the given unduly long cross-examination. Reflecting tion is essential at all stages of concurrent ev- topic. that, one of Burley J’s tips for young counsel idence (including conclaves). The importance is to ‘shorten your run-up’ and move quickly of cooperation is emphasised in the practice Objections to admissibility to your key points. notes122. on grounds of expertise

Justice Garling suggested during our inter- Although the essence of cross- view that any objection to the admissibility Concurrent evidence does not of expert opinion on the grounds of exper- examination does not change tise123 should be made prior to the conclave, impose any greater than normal because parties may thereafter be precluded under concurrent evidence, the from challenging admissibility on the limitation in the right to conduct grounds of expertise, if they have acquiesced process is giving rise to some new in the expert participating in the conclave general attacks on credit. cross-examination methods. and the preparation of the joint report. If a party notifies its objection to admissibility on the grounds of expertise before the conclave, it would be open to either party to Challenges to credit: general. Concur- Unless being asked questions of counsel, make an application for a preliminary ruling rent evidence does not impose any greater experts should only make comments or que- on admissibility pursuant to s 192A of the than normal limitation in the right to con- ries if invited to by the judge. Some judges at Evidence Act.124 In considering whether to duct general attacks on credit (in the sense of the commencement of a session will explain a challenge admissibility on the grounds of challenges to the reliability of the opinion for protocol for experts to intervene in order to expertise (before the conclave), relevant con- grounds unrelated to the substance of the ask questions or make comments, such as by siderations might include: 1) the prospects reasoning and conclusions: eg, partisanship raising their hand. Judges differ in how they that the opponent would be granted leave or bias, prior inconsistent statement, exper- respond to such requests. Some judges will to lead further expert evidence, if an expert tise). However, it is generally recognised that immediately interrupt counsel’s examination report was ruled inadmissible on grounds aggressive credit attacks are rare in concur- and invite questions or comments from the of expertise, and the nature and probative rent evidence. Possible explanations for this expert. Others defer inviting a response until force of the alternative evidence which the include: 1) there is a general recognition that a topic has been concluded. opposing party might foreseeably procure; aggressive cross-examination does not reso- Intervention by an expert’s question or 2) the likely delay associated with the oppo- nate well with the judge, in the typically comment can be disruptive to a carefully nent’s engagement of a replacement expert, collegiate and respectful atmosphere of con- prepared line of questioning. To pre-empt and the strategic significance of that delay; current evidence; 2) it is likely to produce that possibility, counsel might consider im- 3) an assessment as to whether submissions defensiveness in experts, rendering them less mediately acknowledging an expert seeking as to weight of expert opinion based on open to co-operative concession during con- to intervene, stating something like: ‘I see deficiencies in expertise are likely to prevail current evidence; 3) a perceived reduction in you wish to make a comment. With the in relation to any critical contest between expert partisanship in light of the Code of judge’s leave, I will conclude my line of ques- experts (eliminating the strategic imperative Conduct and the collegiality of concurrent tioning, and then invite you to express your to challenge admissibility). evidence; 4) concessions in the joint report or comment’. trial phase may render attacks on credit un- Although questions from experts of each Questioning opposing expert necessary.126 other are typically permitted and invited in Challenges to credit: timing. There are concurrent evidence, the senior practition- General. Although the essence of differences of opinion as to when any credit ers we interviewed usually strongly oppose cross-examination does not change under challenges should be conducted. A number counsel encouraging their own witness concurrent evidence, the process is giving rise of interviewees expressed the view that credit (either before or during concurrent evidence) to some new cross-examination methods. It challenges should be made after the con- to question the opposing witness, for two is generally recognised that concurrent evi- clusion of concurrent evidence, without the reasons: first, experts are typically neither dence involves less direct confrontation and a presence of the expert’s colleagues. The rea- trained nor skilled in forensic questioning; more collegiate and respectful dialogue, ren- sons for this included: 1) it is unnecessarily second, it could be prejudicial for an expert dering experts less defensive and more open disrespectful and demeaning to an expert to to potentially compromise the perception of to reconsideration and modification of their subject the expert to attack in the presence of their impartiality by adopting the role of an original opinion. Counsel are well advised their colleagues; 2) credit cross-examination apparently partisan interrogator. to take advantage of that dynamic, which during concurrent evidence risks polluting It is recommended that counsel advise weighs against an unduly confrontational the co-operative atmosphere and frustrating their own expert to take a pen and paper approach which might otherwise stultify it. the process;127 3) an attack on an expert into court, to make a note of aspects of That said, the process still enables effective may have the intention (or at least effect) of the opponent’s witness on which they wish cross-examination to be undertaken.125 rattling the expert and compromising their to comment, and, if the matter is not fully Cross-examination typically shorter. capacity to give evidence during concurrent

The Journal of the NSW Bar Association [2018] (Spring) Bar News 51 SPECIAL EDITION - EXPERT EVIDENCE evidence; 4) as noted above, credit challenges the presence of the other experts would not conducting cross-examination. may be unnecessary, if concessions are made assist in that cross-examination, John Shea- Traditional limits on leading? The during concurrent evidence. However, others han QC suggests that it may be appropriate boundary-line between leading and cross-ex- observed that there will be circumstances to inform the court of that proposal and amining in concurrent evidence is blurred. where it is appropriate for credit challenges suggest that it take place outside of concur- Several senior practitioners observed that to be made during concurrent evidence. For rent evidence.129 Consider submitting the fol- the traditional restriction on asking leading instance: 1) challenges to expertise might lowing: ‘…The challenge has been carefully questions of your own expert is often not raise matters which might usefully be the prepared, and our considered opinion is that applied in concurrent evidence.131 Stephen subject of comment by other experts during it will take # hours, will not be assisted by Finch SC takes a robust view that all dis- concurrent evidence; 2) a credit challenge the presence of other experts, and would best tinctions between cross-examination and based on a prior inconsistent statement (from proceed without interruption’. But consider examination in chief should be ignored in previous cases, publications etc) might be carefully whether the presence of a friendly concurrent evidence: the logical corollary issue-specific, and appropriately addressed expert may be of potential assistance in the of treating experts as independent witnesses in the context of examination of that issue cross-examination, to assist dealing with of the court is that counsel should not be during concurrent evidence. Reflecting ‘roadblocks.’ shackled by conventional limitations on the these matters, various judges indicated that Dealing with roadblocks in cross-exam- permitted style of questioning, and should be they had no fixed rules about the case-man- ination: If counsel is hitting a roadblock and entitled to cross-examine and lead as counsel agement of challenges to credit, and so let is unable to extract a concession, concurrent sees fit, with no formal leave being required. cross-examination progress more organically. evidence has the benefit of allowing counsel Furthermore, he suggests that it would be to use the ‘check-in’ gambit, namely, to turn a triumph of form over substance, to re- to a friendly expert and ask: ‘You have heard strict the ‘leading’ of a party’s own witness what Professor X has said. Do you have any but permit the uncontroversial practice of 130 The boundary-line between comment?’ This valuable opportunity: counsel pressing confrontational and leading gives counsel the instant ability to learn questions to the opposing expert, and then leading and cross-examining in further information which may facilitate asking their own witness to ‘comment’. In a productive new line of questioning; gives any event, leave may be granted under s 38 concurrent evidence is blurred. counsel time to regather thoughts to plan of the Evidence Act to ‘question the witness, a new cross-examination strategy; and just as though the party were cross-examining might directly prompt the opposing expert the witness, about … evidence given by the to change their view. witness that is unfavourable to the party’. From the perspective of cross-examining Using the group of experts. If several Although there may be a greater tolerance counsel, there are strategic dilemmas as to experts are giving concurrent evidence, of leading questions in concurrent evidence, the most advantageous timing for credit cross-examining counsel might use the leading questions are nonetheless generally challenges. Weighing in favour of early chal- group to their forensic advantage: identify best avoided, because they may significantly lenge is the advantage of tainting the expert’s the experts who are more co-operative, seek reduce the weight attached to the responsive credit (and perhaps unsettling the expert) concessions from them first, seek to build up opinion. before substantive evidence is given. Weigh- coalitions of experts in support of a proposi- ing against early challenge is the likelihood tion, and only then finally turn to the most that credit challenges will reduce the pros- recalcitrant expert. Collegiate solidarity pect of securing subsequent co-operation against the expert’s opinion might cause an from the expert during concurrent evidence. expert to resile from their position, or at least There was an overwhelming If there is to be a significant and extensive expose the expert as an outlier. challenge to credit, the appropriate course Need for flexibility.Given the fluid nature view that the quality of might be to first discuss with your opponent of concurrent evidence, several interviewees the case-management of the proposed chal- emphasised that counsel should be careful evidence has improved as a lenge, and then inform the judge of the pro- not to practice wrote cross-examination. result of concurrent evidence, posed agreed protocol ‘subject to Her Hon- Instead, they advised, it is preferable to focus our’s convenience’. Leave to cross-examine on what counsel is really trying to achieve to as has the process’ efficiency. on credit at the end of concurrent evidence help make counsel alert to the dynamics of may be denied, if no opportunity remains for the moment. re-examination.128 Firm cross-examination may still be Questioning party’s own expert appropriate. Notwithstanding the need for Cross-examination on concessions in caution in relation to unduly confrontational Introductory questions. When a counsel joint report. There is no prohibition on cross-examination, it may still be entirely ap- commences their turn for questioning, they counsel cross-examining counsel’s own wit- propriate to be firm with a non-cooperating might be permitted to ask questions of their ness, in relation to concessions made in the witness. expert before cross-examining. If there has joint report.132 However, there are strategic Traditional cross-examination still been no opening by the experts already, dilemmas in doing so. Counsel has presuma- appropriate. Notwithstanding the need for counsel might ask their expert for the ex- bly ‘tested’ that concession in private confer- caution in relation to unduly long cross-expert’s view, the reasons for it, and the expert’s ence with the expert before concurrent evi- amination, it may still be appropriate to un- view about the opposing expert. It might be dence. If private testing has not shaken the dertake more traditional cross-examination, appropriate to clarify an issue of principle concession, subsequent cross-examination in in which logically sequential propositions are with a party’s own expert, providing a useful concurrent evidence is unlikely to do so, and methodically put to the expert through an framework for cross-examination to com- counsel will merely facilitate counsel’s own extended and tightly controlled line of closed mence. witness affirming the concessions in open questions, calculated to finally extract a crit- ‘Checking in’ with your expert. As noted court. A possibly more effective manner to ical concession. However, if a long cross-ex- above, there will be valuable opportunities to deal with concessions in the joint report amination of this type is contemplated, and seek comment from your own expert, when made by counsel’s own witness, is to direct

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the cross-examination to the opposing expert END NOTES infringing a defendant’s right to silence. On this, see Director-General, in the hope of winning concession from that Department of Environment and Climate Change v Walker Corporation 1 See e.g. Steven Rares, Using the ‘Hot Tub’ – How Concurrent Expert expert, and only then for counsel to ask for Pty Ltd (No 3) [2010] NSWLEC 135. Evidence Aids Understanding Issues, Paper Presented at New South 11 For NSW and Federal rules, see e.g., Uniform Civil Procedure Rules ‘comments’ from counsel’s own expert (in Wales Bar Association Professional Development Seminar (2010); Ian the hope the expert will recant the expert’s 2005 (NSW) pt 31, div 2; Practice Note SC Gen 11 (NSW); Practice Freckelton & Hugh Selby, Expert Evidence: Law, Practice, Procedure Note SC CL1 (NSW); Practice Note SC CL 7 (NSW); Practice Note joint report concession and agree). And Advocacy (5th ed., 2013), 391; Adam Butt, Concurrent Expert No SC Eq 5 (NSW); Practice Note SC Eq 3 (NSW); LEC NSW Evidence in US Toxic Harms Cases and Civil Cases More Generally: Conference of Expert Witnesses Policy; LEC NSW Joint Expert Corroborate an opposing expert’s con- Is There a Proper Role for Hot Tubbing, 40 Hous. J. Int’l L. 1 (2017- Report Policy; Practice Note DC (Civil) No 1 (NSW); Federal Court cession? If cross-examination has extracted a 2018). Rules 2011 (Cth) rr 23.15, 5.04; Federal Expert Evidence Practice critical concession from an opposing expert, 2 The authors have interviewed or consulted the following people: Note (GPN-EXPT); Guideline - Use of Concurrent Evidence in the the senior practitioners we interviewed Hon Justice Brian Preston (Chief Judge, Land and Environment AAT. See also e.g. Civil Procedure Act 2010 (VIC) pt 4.6. typically counselled against seeking cor- Court of NSW), Hon Justice John Middleton (President, Australian 12 See e.g., Explanatory Memorandum, Civil Procedure Amendment Bill Competition Tribunal / Federal Court of Australia), Richard roboration of the concession from counsel’s 2012 (VIC) 6. Weinstein SC, Robert Stitt QC, Hon Michael McHugh (Ret. High 13 E.g. Civil Procedure Amendment Bill 2012 (VIC), 2nd Reading own expert, because of the unnecessary risk Court of Australia), James Walkley (solicitor), John Sheahan QC, that your own expert might undermine the Speech; Practice Note SC Gen 11 (NSW); Federal Court of Australia Steven Finch SC, Noel Hutley SC, Adrian Galasso SC Hon Annabelle Act 1976 (Cth), ss 37M and 37N; Guideline - Use of Concurrent concession: ‘just move on’. Bennett (Ret. Federal Court of Australia), Hon Justice Steven Rares Evidence in the AAT, provision 1.3. (Federal Court of Australia), Hon James Spigelman (Ret. Chief Justice 14 See also Federal Rules, r 5.04 item 18. F. Conclusion of NSW) David Catterns QC, Hon Raymond Finkelstein (Ret. 15 UCPR, rules 31.19, 31.24, 31.35; Federal Rules, r 5.04; AAT Federal Court of Australia / Australian Competition Tribunal), Hon Guidelines, provision 2.2. Although our interviewees possessed dif- Anthony Whealy QC, Hon Justice Peter Garling (Supreme Court 16 Ibid; see also Pepper, supra note 6, at paras 43-44. ferent levels of preference for the process of NSW), Commissioner Joanne Gray, Hon Justice Stephen Burley. 17 It has been noted that initial resistance from uninitiated counsel (judges being especially enthusiastic), there The authors note that space restrictions meant that many valuable is common, but once they participate in the model the resistance individual opinions are not given individual mention, however all was an overwhelming view that the quality tends to fade away. Experts, however, tend to enjoy the process from opinions were used in observing trends and assessing competing the outset. See e.g., Rares, supra note 5, [22]; Peter McClellan, of evidence has improved as a result of con- perspectives. Where general trends have been referred to, this should current evidence, as has the process’ efficien- ‘Concurrent Expert Evidence’, Medicine and Law Conference, LIV 29 not be taken as being attributed to any individual person. Where November 2007, 16; Report 109 (2005) - Expert Witnesses - NSW cy – certainly in larger cases. Many lawyers individual opinions have been mentioned, the authors were authorised Law Reform Commission, June 2005, [6.58]. who started as opposed to the process have to use such opinions. We are grateful for all contributions. 18 As Pepper J has remarked: ‘without the Code concurrent evidence become converts over time. New skills are 3 Although this expression is colloquially used to describe the process, would not work as well as it does. The Code, in theory and in large being developed and new techniques are some judges and practitioners consider the term is inappropriate, part in practice, ensures that . . . the experts do try to agree on that emerging. seeing it is as disrespectful to the process and the participants. which can be agreed and must explain that which they don’t agree to. The success and breadth of this eviden- 4 Peter McClellan, New Methods with Experts – Concurrent Expert The Code helps to refine those issues.’ Cited in Butt, supra note 1, p tiary tool are a testament to those who were Evidence, 3:1 J. Court Innovation 259, 262–63 (2010). 43. See also Rares supra note 5 p 17; Garling supra note 6, p 4; MC 5 E.g. Federal Court, AAT, NSW LEC, Supreme Courts of NSW, VIC, responsible for the method’s implementation Livesey QC, ‘The Effectiveness of Expert Evidence’, Australian Bar QLD and ACT, NSW District Court, County Court of Victoria, Association Conference 2017, 14. in this country. They have been responsible Australian Competition Tribunal and Queensland Land and Resource for promulgating a procedural method 19 See e.g. McClellan, supra note 4 and Expert Evidence: Aces Up Your Tribunal. See e.g. McClellan, supra note 4, 263; Butt, supra note 1, Sleeve?, Address at the Industrial Relations Commission of New which is having an imprint on jurisdictions 9-10; Steven Rares, Using the ‘Hot Tub’: How Concurrent Expert South Wales Annual Conference (Oct. 20, 2006). See also Rares supra well beyond our shores. Evidence Aids Understanding Issues, (Oct. 12, 2013); Gary Edmond, note 5; Garry Downes, Problems with Expert Evidence: Are Single or We look forward to continuing to consider Merton and the Hot Tub: Scientific Conventions and Expert Evidence Court-Appointed Experts the Answer?, 15 J. Jud. Admin. 185, 188 and explore this important case management in Australian Civil Procedure, 72 L. & Contemporary Problems 159, (2006); Butt supra note 1, 16-17, 24-25; Garling supra note 6; Strong technique, and welcome the views of others 166 (Winter, 2009). Wise Ltd v Esso Australia Resources Pty Ltd (2010) 267 ALR 259, on any matter raised (or not raised) in this 6 Rachel Pepper, ‘Hot Tubbing’: The Use of Concurrent Expert [94]-[96]. article. Evidence in the Land and Environment Court of New South 20 Willett v United Concrete Pty Ltd [2009] NSWSC 957, [55]. Wales and Beyond, Paper presented at the 2015 Annual Alaskan 21 Willett v United Concrete Pty Ltd [2009] NSWSC 957, [55]. Bar Association Conference in Fairbanks, Alaska, United States of 22 See e.g. Wilson v St Vincent’s Hospital Sydney (No 2) [2015] NSWSC America (May 14, 2015), para. 42; see also McClellan, supra note 4, 406, [17] (‘Often when experts who disagree get together and discuss 263–64; Peter Garling, Concurrent Expert Evidence: Reflections and the issues, it is surprising how much agreement can be hammered Development (Australian Insurance Law Association Twilight Seminar out in the… conclave’); Landtwo Pty Ltd v Coffey Geosciences Pty Ltd Series, Aug. 17, 2011), 1.2; see e.g., Practice Note No SC CL 1 — [2014] NSWSC 625, at [8] (Even if the conclave ‘does not produce Supreme Court Common Law Division – General [48]. any measure of agreement, it will nonetheless… enable the court to 7 Rares, supra note 5; Garry Downes, Concurrent Expert Evidence understand more clearly what are the differences between the experts’). in the Administrative Appeals: The New South Wales Experience, Pepper J has said she ‘has never had a case where the experts did not Paper presented at the Australasian Conference of Planning and agree on something, irrespective of initial claims.’ Cited in Butt, Environment Courts and Tribunals, Hobart (Feb. 27, 2004); John supra note 1, fn 93. ‘It is the Court’s experience overwhelmingly Mansfield, Litigation under the Trade Practices Act 1974, Fed. Ct. that by making orders with respect to them holding a joint conclave, (May 22, 2008); DVD: Judicial Comm’n of NSW, Concurrent preparing a joint report and then giving their evidence concurrently, Evidence (2006); see also Freckelton & Selby, supra note 1; Peter considerable time and expense will be saved’ (Younes v Parvin [2018] Heerey, Expert Evidence: the Australian Experience, Paper delivered NSWSC 159, [8]; see also Tinnock v Murrumbidgee Local Health to WIPO Asia-Pacific Colloquium, New Delhi (Feb. 6, 2002); Anne District [2015] NSWSC 151, [9]). Sheehan, From Adversarial to Inquisitorial—the Changing Landscape 23 Gunnersen v Henwood [2011] VSC 440. for Expert Evidence Following the Civil Procedure Act 2010 (Nov. 21, 24 Rachel Pepper, Expert Evidence in the Land and Environment Court, 2014). 20, Jan. 21, 2013 (citing Justice Davies); see also Peter McClellan, 8 Rares, supra note 5; see also R v Stanyard [2012] NSWDC 78. Expert Witnesses: The Experience of the Land & Environment Court 9 John Emmerig et al., Room in American Courts for an Australian Hot of NSW, Paper presented at the XIX Biennial LAWASIA Conference Tub? Jones Day (Apr. 2013). of 2005 (Mar. 2005), at 19; Edmond, supra note 5, 159–61, 164; 10 Pepper, supra note 6, at para. 44. Concerns about extending hot Peter Heerey, Recent Australian Developments, 23 Civ. Just. Q. 386, tubbing to criminal proceedings have been voiced, however, regarding, 391 (2004); Downes, supra note 19; cf. UCPR, 31.23, Schedule 7; inter alia, the presumption of innocence and the burden of proof. See Federal Expert Evidence Practice Note (GPN-EXPT), Annexure A Edmond, supra note 5, 178. In addition, Pepper J says that to be used (Harmonised Expert Witness Code of Conduct). in criminal trials the process would require party consent to avoid 25 John Temple-Cole & Samantha Farthing, Some Like It Hot! Expert

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Views on Judicial Orders to Be Heard Concurrently, Hearsay (Sept. those precis reports); and leave might be provided for the preparation 59, 19-24; Federal Expert Evidence Practice Note (GPN-EXPT), 2017); cf. Edmond, supra note 5, 164. of more detailed individual reports after the conclave on identified section 7. 26 See e.g. McClellan, supra note 24. matters of contest. 72 There is some debate as to whether facilitators in fact save parties 27 See for example Ian Freckelton & Hugh Selby, supra note 1, 398, 50 An idea floated as a possibility by onH Annabelle Bennett. money or not, and we expect it may depend. Experienced facilitators citing an AAT survey of AAT members and expert witnesses who use 51 See e.g. Ironhill Pty Ltd v. Transgrid [2004] NSWLEC 700; Attorney- are likely to save parties money and time, and there would likely be the method, reporting satisfaction levels at 94.9% and giving reasons General (NSW) v. Winters [2007] NSWSC 1071 (8 witnesses). King savings where complex individual reports are synthesised into a joint as to why the method is helpful, namely helping experts to fulfil their v Western Sydney Local Health Network [2011] NSWSC 1025 (6 report clearly demarcating areas of agreement and disagreement. role as independent advisers, promoting settlement of cases, reducing witnesses). Hon Peter McClellan refers to a case with 12 experts which In some smaller cases, it is conceivable that facilitators may add hearing times, and helping judges to write up decisions. settled, supra note 4, at 267. unnecessary expense. 28 See e.g. Butt supra note, 1, pp 10 and 19. 52 These sorts of difficulties may be alleviatedy b the use of a facilitator, 73 Matthews v SPI Electricity and SPI Electricity Pty Ltd v Utility Services 29 Practice Note SC CL 1, [48]. which is discussed further below. Corporation Ltd (Ruling No 10) [2012] VSC379, [15]. 30 Practice Note SC CL 7, [34]-[35]. 53 For an example of how this matter was managed in the context of 74 For example, Preston CJ LEC indicated that facilitators are generally 31 Practice Note Class 1 Development Appeals at [65], Practice Note the Kilmore East Bushfires class action, see Butt, supra note 1, 27-30 not used in the LEC, because the lawyers and experts are often repeat Class 1 Residential Development Appeals at [62], Practice Note (discussing Matthews v SPI Electricity and SPI Electricity Pty Ltd v players who are so experienced with the process. Classes 1, 2 and 3 Miscellaneous Appeals at [61], Practice Note Class Utility Services Corporation Ltd Ruling No 10, [2012] VSC 379). See 75 The practice notes highlight that secretarial assistance should be 4 Proceedings at [69], Practice Note Class 3 Compensation Claims at also for example Stevenson v A/Prof Morgan [2015] NSWSC 1230; provided if requested by the experts: Practice note SC Gen 11 [22], [57] and Practice Note Class 3 Valuation Objections at [48]. Avery v Flood [2013] NSWSC 996, [9]-[12]. [23]. 32 See e.g. Practice Note SC Eq 3, [54]; Practice Note DC (Civil) No. 1, 54 Wilson v St Vincent’s Hospital Sydney (No 2) [2015] NSWSC 406, 76 Practice note SC Gen 11 [27]. Schedule 1 – Standard Orders for Hearings, [7]; AAT Guidelines, Use [14]. 77 See Matthews v SPI Electricity Pty Ltd & Ors, [2013] VSC 630 [19]- of Concurrent Evidence in the AAT, section 2. 55 Avery v Flood [2013] 2013 NSWSC 996, [12]. [20]; see also Thomas v Powercor Australia Ltd (No 7) [2011] VSC 502; 33 See e.g. Federal Court Expert Evidence Practice Note (GPN-EXPT), 56 Porter v Le [2016] NSWSC 849, at [5]. cf Butt supra note 1, 20-21, 28. Annexure B, Concurrent Evidence Guidelines, at [2] and [6]. 57 Porter v Le [2016] NSWSC 849, at [8]. 78 Campton v Centennial Newstan Pty Ltd (No 1) [2014] NSWSC 304, 34 E.g. Practice Note SC Eq 3, [55]. 58 There is some support for this position: Matthews v SPI Electricity and [176]. 35 See e.g. AAT Guidelines, at 1.4, 2.2–2.3, and see below at notes 38 SPI Electricity Pty Ltd v Utility Services Corporation Ltd, Ruling No 10, 79 We note in any event that practice notes emphasise the importance and 39. [2012] VSC 379, at [21]. of articulating issues for the experts in non-tendentious language: 36 Booth v Di Francesco [2002] NSWSC 154, [27]-[30]; Spasovic v Sydney 59 In the conclaves held in the Kilmore East Bushfires class action Federal Expert Evidence Practice Note (GPN-EXPT), [7.7]. Adventist Hospital [2002] NSWSC 164, [32]; Habelrih v Szirt [2004] (Matthews v SPI Electricity Pty Ltd & Ors, [2013] VSC 630 [19]– 80 See Voxson Pty Ltd v Telstra Corp Ltd (No 9) [2018] FCA 227, [5], NSWSC 54, [25]. [20]), Forrest J generally ordered that experts be ‘quarantined’ from [12]. 37 See supra, note 22. communicating with lawyers during the concurrent evidence process 81 Reid v Wright T/as D M Wright & Associates Solicitors [2016] NSWSC 38 See Federal Court Expert Evidence Practice Note (GPN-EXPT), (including conclaves), to avoid ‘contamination’ of the process. His 466; Herridge and Plaintiffs Listed in Schedule 1 to Writ of Summons Annexure B, Concurrent Expert Evidence Guidelines, (Federal Court Honour’s protocol allowed the lawyers to speak to the experts about v Electricity Networks Corp (t/as Western Power [No 3]) [2017] WASC Guidelines), at paragraphs 2 and 6. The Court assesses the desirability what had happened during the conclaves after the conclaves ended, 299, [2]. of using the method by reference to similar suitability factors. Federal which the barristers in the matter deemed to be adequate to satisfy 82 E.g. Practice Note SC Gen 11, [6]-[10]. Court Guidelines [6] says that: ‘Whether experts should give evidence their interests. See e.g. Butt, supra note 1, 29, 67; Simon McKenzie, 83 Federal Court Expert Evidence Practice Note (GPN-EXPT), [7.7]. concurrently is a matter for the Court, and will depend on the Expert Conferences in the Kilmore East Bushfire Proceeding, 84 Buksh v South Western Sydney Local Health Network [2016] NSWSC circumstances of each individual case, including the character of the VICSCLRS 3 (2016). See also Federal Expert Evidence Practice 603. [12]. proceeding, the nature of the expert evidence, and the views of the Note (GPN-EXPT), [7.4] and [7.6.]; Thomas v Powercor Australia 85 Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353, [70]. parties.’ Ltd (No 7) [2011] VSC 502, [15]. Cf Middleton J noted that one 86 Wilson v St Vincent’s Hospital Sydney (No 2) [2015] NSWSC 406, 39 Practice Note DC (Civil) No. 1, Schedule 1 (Standard Orders for potential advantage of having lawyers present in conclaves is to help to [15]. Hearings) indicates that in the District Court’s general list – ‘Where ensure that discussions and joint reports remain focused on the legal 87 See further: UCPR 31.26; Practice note SC Gen 11 [25]-[29]; more than one expert has been required to give oral evidence, if issues, but His Honour also noted that this role can be carried out by Federal Court Guidelines, ss 5,7; Harmonised Code of Conduct; the experts’ field of expertise is the same or substantially the same, facilitators. LEC’s Conference of Expert Witness Policy; LEC’s Joint Expert arrangements should be made by the parties for the experts to give 60 See e.g. Practice Note SC Gen 11, [30]-[32]; LEC NSW Conference Report Policy. their evidence concurrently’ at [6]. of Expert Witnesses Policy, [35]-[37]. 88 Gillett v Robinson [2011] NSWSC 1143, [45]; Campton v Centennial 40 See e.g. UCPR 31.24. 61 See e.g. Federal Court Practice Note (GPN-EXPT), [7.6]. Newstan Pty Ltd (No 1) [2014] NSWSC 304, [163]. 41 Similarly, Preston CJ LEC indicates that the method’s popularity has 62 Facilitators may also be referred to as ‘moderators’ or ‘chairpersons.’ 89 X v Sydney Children‘s Hospitals Specialty Network (No 5) [2011] seen parties pushing to use concurrent evidence in areas in which it 63 See Richard Weinstein SC, The Mysterious Joint Conference of NSWSC 1351, [41]; X v Sydney Children‘s Hospitals Specialty has not traditionally been used, such as judicial proceedings. Expert Witnesses, Personal Injury & Common Law Conference, 3 Network (No 6) [2011] NSWSC 1353; Campton v Centennial 42 Federal Court Expert Evidence Practice Note (GPN-EXPT) [6.1], March 2018, [5]. Newstan Pty Ltd (No 1) [2014] NSWSC 304, [88]. [7.3]; Federal Court Guidelines, [7], Practice Note SC Eq 3, [54]; 64 On use of concurrent evidence in native title in particular, see Vance 90 Barescape Pty Ltd v Bacchus Holdings Pty Ltd [2011] NSWSC 1002, Practice Note SC CL 1 – General, [49]; Practice Note DC (Civil) No. Hughston SC & Tina Jowett, In the Native Title ‘Hot Tub’: Expert [3]; X v Sydney Children‘s Hospitals Specialty Network (No 5) [2011] 1, Schedule 1, [7]; Land and Environment Court Practice Notes, for Conferences and Concurrent Expert Evidence in Native Title, 6(1) NSWSC 1351, [50]. example, Practice Note: Class 1 Development Appeals, [65] Land, Rights, Laws: Issues of Native Title (Aug. 2014). 91 Eg, UCPR r 31.24(1)(c) and r 31.26(2). See Campton v Centennial 43 Liesfield v piS Electricity Pty Ltd (Ruling No 2) [2014] VSC 98, [37]. 65 They are mostly not used in the LEC, given there are a lot of repeat Newstan Pty Ltd (No 1) [2014] NSWSC 304, [163]; Barescape Pty 44 E.g. Practice Note No SC Gen 11, [6]; Federal Court Expert Evidence player experts who know the terrain well. Ltd v Bacchus Holdings Pty Ltd [2011] NSWSC 1002; X v Sydney Practice Note (GPN-EXPT) [7.3]; LEC NSW Conference of Expert 66 In Coffey v Murrumbidgee Local Health District[2017] NSWSC 1441, Children‘s Hospitals Specialty Network (No 5) [2011] NSWSC 1351, Witnesses Policy, [6]. [9], Campbell J praised the use of barristers as facilitators: ‘It has [35], [56]. 45 Practice Note SC Gen 11, [10]; Federal Court Expert Evidence been my experience that the involvement particularly of a member 92 Campton v Centennial Newstan Pty Ltd (No 1) [2014] NSWSC 304, Practice Note (GPN-EXPT) [3.3]; [4.4]; [7.1]; cf LEC NSW of the bar in that role can be invaluable, and the involvement of a [85]; X v Sydney Children‘s Hospitals Specialty Network (No 5) [2011] Conference of Expert Witnesses Policy, [12]. See further, Garling, person in those roles however designated in the given case assists in NSWSC 1351, [56]. supra note 6, section 4. the administration of justice, and in the provision of the joint report 93 X v Sydney Children‘s Hospitals Specialty Network (No 5) [2011] 46 See e.g. UCPR 31.24. by the experts, which is likely to be provided in proper form. This is NSWSC 1351, [50]. However, see the view of Garling J at fn 124 47 For instance, the breadth of timing considerations is inherent in of assistance to the parties as well as the Court in the resolution of 94 Campton v Centennial Newstan Pty Ltd (No 1) [2014] NSWSC 304; Federal Court Expert Evidence Practice Note (GPN-EXPT), [7.5]. the case.’ See also Wilson v St Vincent’s Hospital Sydney (No 2) [2015] Barescape Pty Ltd v Bacchus Holdings Pty Ltd [2011] NSWSC 1002, 48 In this regard, for example, the standard orders in the District Court NSWSC 406, [14]. [7]; X v Sydney Children‘s Hospitals Specialty Network (No 5) [2011] presume that experts who are to give evidence will, prior to conferring 67 Weinstein SC notes that he has acted as a facilitator in personal injury NSWSC 1351. to produce a joint report, be provided with the other experts’ cases albeit he is not an expert on the medical matters in dispute. 95 Barescape Pty Ltd v Bacchus Holdings Pty Ltd [2011] NSWSC 1002, individual reports: Practice Note DC (Civil) No. 1, Schedule 1, [8]- Supra note 63, [12]. [7]. [9]. 68 Federal Expert Evidence Practice Note (GPN-EXPT), [7.2]. 96 Ainsworth v Burden [2005] NSWCA 174; Campton v Centennial 49 Admittedly, these disadvantages may be mitigated by an exchange of 69 See Practice Note SC Gen 11, [21]; Federal Expert Evidence Practice Newstan Pty Ltd (No 1) [2014] NSWSC 304, [96]. precis reports (or pre-conclave position papers) between the experts Note (GPN-EXPT), [7.2]. 97 Campton v Centennial Newstan Pty Ltd (No 1) [2014] NSWSC 304, (perhaps on condition that they are not be tendered, or the subject 70 This view was particularly espoused by Middleton J. [165]. of cross-examination, to mitigate the temptation to unduly embellish 71 See generally, Butt supra note 1, 28-29; McKenzie, supra note 98 X v Sydney Children‘s Hospitals Specialty Network (No 5) [2011]

54 [2018] (Spring) Bar News The Journal of the NSW Bar Association SPECIAL EDITION - EXPERT EVIDENCE

NSWSC 1351, [59]. 112 See generally McClellan, supra note 17; see also Garling, supra note National Coal Board [1957] 2 QB 55; Vakauta v Kelly [1989] HCA 99 Re GHI (a Protected Person) [2005] NSWCA 466, [8]; Campton v 6, and Rares, supra note 5 (regarding Ironhill Pty Ltd v Transgrid 44. Centennial Newstan Pty Ltd (No 1) [2014] NSWSC 304, [165]. [2004] NSWLEC 700); Butt, supra note 1, 22-23, 36-37. In our 122 See e.g. Federal Court Guidelines, [5]. 100 X v Sydney Children‘s Hospitals Specialty Network (No 5) [2011] interviews, it was commonly accepted that hot tubbing results in 123 including an application under section 192A of the Evidence Act for NSWSC 1351, [41]. major efficiencies. Middleton J for instance says it makes cross a ruling that the opinion is inadmissible. 101 X v Sydney Children‘s Hospitals Specialty Network (No 5) [2011] examination ‘much quicker’. 124 It would seem unlikely that a party could be precluded from later NSWSC 1351, [65]. 113 See generally Butt, supra note 1, 14-16; McClellan, supra note 4, challenging admissibility on the grounds of expertise, if the party 102 Tabet Bht Sheiban v Mansour and Ors [2006] NSWSC 754, [11]. 262–63 (2010). Pepper, supra note 6; Lisa Wood, Experts in the notifies its objection to admissibility before the conclave, and the 103 Lucantonio v Kleinert [2009] NSWSC 929, [6]. Tub, 21 Antitrust 3, 95 (Summer 2007); Hughston & Jowett, supra opponent elects not to seek a preliminary ruling on the objection. 104 Tabet Bht Sheiban v Mansour and Ors [2006] NSWSC 754, [11]; note 64; Temple-Cole & Farthing, supra note 25; New South Wales 125 For an example of effective cross-examination in a hot tubbing See also Lucantonio v Kleinert [2009] NSWSC 929, [6]; Marvoe Law Reform Commission Report, Report 109 (2005); UCPR 31.35; context undertaken by Vance Hughston SC in a native title matter, Management Pty Ltd T/as Sweetlife (No 1) [2016] NSWSC 1272, at Federal Court Guidelines. Nb - the process is often relatively fluid, see Butt supra note 1, 39. [20]; Hamilton, Lindsay, Morahan and Webster, New South Wales and will not necessarily follow a rigid structure, being directed by the 126 See e.g. Garling, supra note 6, [3.4]-[3.5]. Further, in his interview, Civil Procedure Handbook 2018, p 762. judge; see Strong Wise Ltd v Esso Australia Resources Pty Ltd (2010) Garling J notes that a clumsy attack on credit may mark the flailing 105 See Tabet Bht Sheiban v Mansour and Ors [2006] NSWSC 754. 267 ALR 259, [93] for overview of procedure adopted by Rares J. counsel, who is unable to challenge an expert on the substance of 106 Other relevant considerations may include that: the ‘testing’ of a 114 See UCPR 31.35; Federal Rules, 5.04, 23.15; Federal Court their opinion. witness’ evidence is expressly permitted under Regulation 70 of the Guidelines, [12]. 127 This view was expressed by judges including Hon Annabelle Bennett Legal Profession Uniform Conduct (Barristers) Rules 2015, and the 115 An approach of this type was undertaken by Hon Raymond and Garling J. On this, Garling J has written that issues of credit can testing of concessions in joint report is not prohibited in court rules, Finkelstein in In the matter of Fortescue Metals Group Limited [2010] be dealt with in a conventional manner, by organising the concurrent practice notes or caselaw; the risk that private testing of concessions ACompT 2, including time allocated to questions by the judge. evidence session so that credit issues can be individually dealt with at in the joint report will corrupt the independence of expert opinion 116 E.g. AAT Guidelines, [4.6]. the session’s conclusion: supra note 6 [3.5]. through the operation of conscious or unconscious adversarial bias, 117 See Federal Court Guidelines, [15]. 128 X v Sydney Children‘s Hospitals Specialty Network (No 5) [2011] is mitigated by the prior reinforcement of expert independence 118 Garling, supra note 6, [3.3]. NSWSC 1351, [10]. through the conclave process, and the inevitable resistance to the 119 Some judges generally prefer to ask their questions before the lawyers 129 We note this is catered for in the Federal Court Guidelines, [16], modification of opinion flowing from the public pronouncement of do (e.g. Garling J, Hon James Spigelman, and Hon Raymond although our interviews suggest that this practice is relatively that opinion in the joint report. Finkelstein), whereas others typically prefer to wait until counsel has uncommon. 107 Eg. UCPR 31.25(7). completed their questioning and come in with residual questions 130 The judges also commented that ‘check-ins’ can be helpful on the 108 Schmierer v Keong [2005] NSWSC 1081, at [11]; Rainbow Shores Pty at that point (e.g. Preston CJ LEC, Commissioner Joanne Gray). transcript for aiding comprehension of the matters in dispute. Ltd v Gympie Regional Council [2012] QPELR 407. Others again preferred to take an in-between approach (e.g. 131 This included Stephen inchF SC, John Sheahan QC, and David 109 See e.g. Schmierer v Keong [2005] NSWSC 1081. Middleton J). Catterns QC. 110 Practice Note SC Gen 11, [20]. 120 This process (and the elatedr transcript) also helps lawyers and parties 132 See e.g. Barescape Pty Ltd v Bacchus Holdings Pty Ltd [2011] NSWSC 111 On this, Preston CJ LEC indicated that in the LEC at least, improve their understanding of the matters in dispute. 1002, [4]. conclaves will usually save money given that in almost every case 121 On this, Hon Michael McHugh emphasised the traditional need there will be agreement on some things by experts. See also e.g. Butt for judges to exercise caution to avoid being too interventionist, and supra note 1, 22-23, 35-36; Weinstein supra note 63, [43]. to bear in mind the issue of their own influence. See e.g. Jones v

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The Journal of the NSW Bar Association [2018] (Spring) Bar News 55 SPECIAL EDITION - EXPERT EVIDENCE

Cross-examination of expert witnesses

By Victoria Brigden

The late Hon. WAN Wells AO QC observed mine the objectives of the cross-examination. that cross-examining an expert witness is like Robert Stitt QC has stated that his objectives playing the violin: ‘if it is well done it is mag- are always determined by his instructions, nificent; if it is badly done it is excruciating’.1 which are the opinions of his client’s expert There is a wealth of material written by witnesses where they are opposed to or contra- barristers and judges on the specific topic of dict the opinions of the expert witnesses he is cross-examination of ‘that most difficult and cross-examining.7 James Glissan QC has also elusive creature’,2 the expert witness. This arti- noted the importance of obtaining assistance cle considers the central themes of the available from one’s own expert witnesses, after first material and sets out suggested guidelines de- obtaining a thorough knowledge of the brief rived from that material for barristers to follow and the facts.8 when cross-examining expert witnesses. Destructive objectives may be to attack any or alternative hypotheses sought to be relied or all of the witness’ premise, the conclusion, or The usual techniques of upon in the cross-examiner’s client’s case to the process of reasoning by which the witness cross-examination apply the expert witness. moved from the premise to the conclusion.9 Cross-examination of expert witnesses Cross-examination of expert witnesses has The cross-examiner must understand may also have the aim of lessening the overall been described as a special aspect of a general the case and the relevance of the impact of the expert’s evidence, essentially skill.3 While cross-examination of expert wit- witness’ evidence to that case implementing a form of damage control with- nesses requires certain specific considerations, out all-out destruction. This may be achieved the same basic rules of cross-examination Before embarking on a cross-examination by exploring with the witness the possibility apply in respect of expert witnesses as they do it is vital to appreciate the issues in the case, for alternative inferences or conclusions to for lay witnesses. the competing cases advanced by the parties, be drawn from the facts available,10 so laying Geoffrey Miller QC (later Justice Miller and how the particular witness’ evidence the groundwork for a submission that one of the Supreme Court of Western Australia) bears upon those issues. Undertaking this possibility should be preferred over another observed:4 process will lead to an assessment of what possibility, or that the other party has not evidence from the witness is damaging to the discharged the onus of proving the particular The successful cross-examiner is one cross-examiner’s client’s case, how much of the possibility.11 The cross-examiner may aim to who can obtain the best forensic evidence can be ignored or admitted without commit the witness to specifics which another benefits from cross-examination in all challenge and how much can be of assistance. expert who is equally or better-qualified will aspects of litigation, of which the cross- In a study conducted in 1999 by Dr Ian later refute.12 examination of experts is but one area. Freckelton SC and others on behalf of the Objectives of cross-examination of expert No doubt the increasing complexity of Australian Institute of Judicial Administra- witnesses may also be constructive rather than litigation, evidence particularly in the tion Inc,5 judges were asked what they con- destructive, for example to obtain corrobora- area of criminal law with the advent of sidered to be the most significant reasons for tion or indirect support for the opinions of the complicated white-collar fraud trials, has inadequate cross-examination of expert wit- cross-examiner’s own expert.13 Determining put the focus upon cross-examination nesses. The reasons the judges gave included the appropriate objective will be a matter of of expert witnesses, but in broad terms inadequate preparation by the cross-examiner; judgment in each case. it remains the case that the basic rules lack of skill by the cross-examiner; confusion of cross-examination are applicable to in use of terminology by the advocate; not Other aspects of preparation the cross-examination of any witness, having their own experts present when other for cross-examination whether he be expert or non-expert. expert witnesses gave their evidence; and a propensity on the part of the advocate to The major divergence in the available litera- Thus, the usual techniques used in cross-ex- allow witnesses to go beyond the limits of the ture on cross-examination of expert witness- amination such as generally asking leading expert’s expertise.6 An analysis of the issues in es concerns the degree to which the cross-ex- questions, framing questions clearly, closing the case and the place of the witness’ evidence aminer should attempt to master the area of the gates, listening to the answers given, en- in that case will assist cross-examiners to avoid expertise. This divergence may, in part, be at- deavouring to retain control over the witness, at least the first of these recognised errors. tributed to different understandings of what and retaining flexibility as well as rules such as is meant by mastering the area of expertise the rule in Browne v Dunn (1893) 6 R 67 are The cross-examiner must establish the and the purpose behind that mastery. It may just as apposite to cross-examination of expert objectives of the cross-examination also depend upon the nature of the particular witnesses as they are to cross-examination area of expertise, as some areas of expertise of lay witnesses. The rule in Browne v Dunn After analysing the issues and evidence, the are more readily understandable by a non-ex- will necessitate putting any additional facts cross-examiner will be in a position to deter- pert than others, and the degree to which the

56 [2018] (Spring) Bar News The Journal of the NSW Bar Association SPECIAL EDITION - EXPERT EVIDENCE barrister develops a particular specialty and time, an area of expertise in the forlorn should be examined, as such an examination so becomes familiar with a particular area of expectation that this will equip him or may help to establish what has been left out expertise. her better to cross-examine the expert of the report.22 One school of thought is that cross-ex- witness. Where a dispute arises between expert aminers should at least attempt to master witnesses because of an absence in agreement the area of expertise. Geoffrey Watson SC Miller QC also agreed with Wellman’s in the scientific source material, cross-exam- has suggested that cross-examination of admonition and added:19 iners should read the textbooks or articles an expert will undoubtedly fail unless the concerned.23 Watson SC has cited as a ben- cross-examiner makes some effort to master I have seen examples of counsel retiring efit of this exercise the fact that witnesses the area of expertise.14 Wells QC encouraged at the close of a day’s hearing with a commonly misquote the literature, or take cross-examiners as follows: gaggle of expert witnesses, hoping to statements out of context, which can provide learn in a few hours the elements of a useful fodder for cross-examination.24 You must strive to be, for the time being particular disciple which it has taken While there is a school of thought that and within the limits of the subject an expert witness years of graduate good cross-examiners do not write out their matter, as much an expert as the expert; and post-graduate study to master. The questions beforehand, it can be generally it is almost hopeless for you, as an results are usually catastrophic… useful to write out in chambers propositions uninformed layman, to cross-examine sought to be established and some of the successfully.15 Justice Michael Pembroke has encouraged questions, particularly in difficult or highly cross-examiners to learn and understand, technical areas.25 to a considerable degree, the intellectual discipline in question.20 Having seen a draft of this article, Justice Pembroke added to Nothing can be more dangerous those observations that the areas of expertise The expert’s report should be than for a counsel to attempt to he had in mind included those in relation to which brokers, auditors, loss assessors, un- carefully analysed to establish master, usually in a short space derwriters and company directors might give expert evidence. His Honour noted that such what the expert has not said, of time, an area of expertise in areas do not require years of study, and it is possible for barristers to understand those and to see whether there is the forlorn expectation that this areas reasonably quickly, in contrast to areas of scientific and technical expertise such as material or additional facts which will equip him or her better to fields of engineering, science and medicine. A suggested middle-ground between the might be put to the expert. cross-examine the expert witness. divergent approaches is that the cross-examiner should attempt to understand the area of expertise, assisted by the expert witnesses The alternative school of thought is that it briefed in the cross-examiner’s client’s case, Manner of cross-examination is impossible for barrister to master in a short with a view to cross-examining based upon space of time the area of expertise to which instructions obtained from that assistance, The instruction not to argue with, or bully, an expert has devoted much of his or her but without attempting to challenge the a witness applies with equal force to any professional life in the hope of matching the witness’ theory based on the cross-examiner’s witness, whether lay or expert, but it has expert in any debate on the subject. Stitt QC own understanding of it. been particularly restated with respect to has counselled against such attempts.16 He Cross-examiners should include as part of expert witnesses.26 Sir David Napley said cited the American attorney Francis Well- their preparation research in relation to the in an oft-cited passage in The Technique of man’s work entitled ‘The Art of Cross-Exam- expert witness to establish what standing Persuasion: 27 ination’17, which stated: the witness has among his or her peers, what publications the witness has authored and the Expert witnesses are a much maligned As a general thing, it is unwise for the like.21 This can be done by making enquiries body of men. It is true that some of them cross-examiner to attempt to cope with of industry colleagues of the witness as well may be charlatans, but for the most part a specialist in his own field of enquiry. as issuing subpoenas and notices to produce. they are men who are concerned to give Lengthy cross-examinations along Google searches and LinkedIn pages can help to the court upon the basis of a the lines of the expert’s theory are also unearth a quantity of information. An life-time’s experience and training, and usually disastrous and should rarely be expert witness’ curriculum vitae should be moreover, training within a particular attempted. studied carefully and each item checked field. Nothing is to be gained by in order to ascertain whether the witness endeavouring to bully them (or, for that Stitt QC said of this:18 is qualified to give evidence on the specific matter, any other witness). Although matter in issue, and the papers authored your object may often be to show that That warning applies today with as much by the witness and judgments in which the the extent of their knowledge and force as it did in 1904. Too often you expert has given evidence referred to therein experience is less than the expert whom will see cross-examining counsel make reviewed. you propose to call, this needs to be done the mistake of believing that before they The expert’s report should be carefully with a degree of tact and judgment. You can successfully cross-examine an expert analysed to establish what the expert has not occupy a powerful position in court they themselves must be fully proficient said, and to see whether there is material or in relation to an expert. To make him in the field of expertise in which the additional facts which might be put to the look silly (if you are able); to cause expert is qualified. Nothing can be more expert. As part of this process, the expert’s him to be the centre of your ridicule dangerous than for a counsel to attempt notes or work papers which he or she has (if you are competent to do so) are not to master, usually in a short space of prepared or used to record results or tests only unkind and unnecessary pursuits

The Journal of the NSW Bar Association [2018] (Spring) Bar News 57 SPECIAL EDITION - EXPERT EVIDENCE

but may damage him in the pursuit of described his experience of being cross-ex- through the expert, as the expert’s evidence his own profession by destroying his amined (in the United States) in this way: 34 does not prove them.37 Rather the cross-ex- reputation. Experts for the most part amination in this regard should focus on are dealing with matters which can How does it feel to be boiled in your establishing that the expert’s opinion rests be the subject of differing opinions. If own blood? That is one of the many on the existence of a particular fact or facts the subject matter of their evidence is emotions I have felt during the cross that the cross-examiner intends to otherwise something of scientific exactitude, then examination of the expert witness. The prove to be incorrect. you are unlikely to get very far with opposing attorney has the opportunity Every statement of fact in an expert report cross-examination in any event. to question the validity of your opinions should be analysed to see how it rests on expressed during direct examination. other underlying facts or on assumptions He will also question the veracity of to see if they can be attacked or shaken, in the witness – you. It is the opportunity order to attack the conclusions.38 Stitt QC the opposing attorney has been waiting has said that his practice is to cross-examine Every statement of fact in for. The strategy is to impeach your the expert witness so as to establish each of 39 an expert report should be testimony and destroy your credibility. the following: a. the precise facts in the report which are analysed to see how it rests on There are, of course, instances where ex- essential to the process of reasoning; perts have been cross-examined in a highly other underlying facts or on destructive fashion to great effect. A brilliant b. that that particular process of reasoning but rare example was recounted by Justice leads directly to the conclusion or opin- assumptions to see if they can Pembroke concerning Tom Hughes AO ion; QC: 35 be attacked or shaken, in order c. that if any or all of those facts are either erroneous or do not apply, that the pro- to attack the conclusions. Tom Hughes was (and still is) an cess of reasoning must be changed; extraordinarily powerful cross-examiner who could literally frighten a weak or d. that it therefore follows that if the facts timorous witness into recanting. This do not apply or are erroneous then the This principle was stated more bluntly by will never happen to you, but in a case opinion or conclusion should also be another commentator: ‘You never get into a in Melbourne in the early 1990s, Tom altered. wrestling match with a hog because you both forced the witness to concede that he come up covered with manure, and the hog was a ‘worthless expert witness whose It is then for the cross-examiner to estab- kinds of likes it’.28 opinion was not worth the paper it was lish at the appropriate time that one or more Justice Pembroke’s advice to junior barris- written on’ and that he was ‘ashamed of of those essential facts were different, so as ters when cross-examining experts was to be ever venturing an opinion on the issue to ground a submission that the expert’s even more polite than usual, to be respectful in dispute’. opinion should not be accepted or does not of the expert witness, at least initially, not to apply.40 Alternatively, further facts may be be high-handed, condescending or rude and A well-known example of the success of put to the expert to suggest that the opinion not engage in unnecessary aggression. His cross-examination of expert witnesses as ma- was prematurely reached and in light of the Honour warned that the danger of acting terially bearing upon the final result of the availability of further information, should be otherwise was in getting the judge offside, as trial is that of the expert evidence in the R v qualified. the judge’s starting premise would be that the Chamberlain trial. Miller QC contended, in Attacking the process of reasoning may in- expert knows more than the barrister, which respect of this, that the success of the prose- volve attacks on the strength of the techniques in Justice Pembroke’s view, was nearly always cutor’s cross-examination of expert witnesses or theories chosen, which may lead the expert the case.29 called by the defence was a powerful factor, to qualify the opinion previously given. It appears to be generally agreed that a not only in influencing the jury verdict, but Understanding one’s own client’s expert’s cross-examiner should start the cross-exam- in the subsequent appeal proceedings. Gibbs opinion will provide a basis for attacking the ination in a non-confrontational manner, CJ and Mason J recorded in the High Court opinion of the expert being cross-examined. endeavouring to obtain from the witness decision that two of the defence’s expert For example, to the extent that the difference concessions helpful to the cross-examiner’s witnesses had exhibited an “unbecoming between the two experts is as to the relevant case.30 If the witness proves uncooperative, arrogance” (in the words of Bowen CJ and theory or technique to be applied, one could the cross-examiner can then take a harder Forster J in the Full Federal Court) and one obtain instructions that the theory or tech- line.31 If the cross-examiner wants to gain had not fared well in cross-examination.36 nique propounded by the opposing expert something positive from the witness there has limitations, and then cross-examine on is no merit in attacking the witness in an Suggested techniques in those limitations. Published articles may also attempt to destroy the witness’ credibility at cross-examination be used in cross-examination to demonstrate the outset. If part of the evidence needs to be the witness’ lack of knowledge, if necessary.41 attacked, the attack should be delayed until In addition to following the same general Watson SC has stated: 42 positive evidence has been established.32 rules of cross-examination set out above, It is worth remembering that experts are there are some generally-accepted techniques I have seen many great cross-examiners human beings, and, as Wells QC observed, particularly relevant to expert witnesses. and they have all followed the same sometimes unworldly, and may find it dif- If the objective is to attack the factual technique in cross-examining experts: ficult to stand up for themselves in court.33 assumptions underlying the expert opinion they start with some very general Unnecessarily hostile cross-examinations (rather than findings of fact observed by the propositions with which the expert may engender sympathy for the expert and expert witness, for example, in the case of a cannot disagree; they will then refine the contempt for the cross-examiner. One envi- doctor expressing a medical opinion based generality of the questions, sometimes ronmental engineer who had given evidence on his own clinical examination), the as- only slightly, so to narrow it to a now as an expert in the United States of America sumptions themselves should not be attacked more specific proposition with which

58 [2018] (Spring) Bar News The Journal of the NSW Bar Association SPECIAL EDITION - EXPERT EVIDENCE

the expert should agree; they will work distinction remarked upon in Chamberlain v Issues going to admissibility through this pattern until they achieve R (No 2) (1984) 153 CLR 521 at 558.47 of the expert’s opinion a refined question – which is often the Another suggested basis for attack of the genuine question on the issue – with qualifications of expert witnesses is as to the While credibility issues may arise from a which the expert may feel compelled to listing of membership of a professional asso- question of the qualifications of the witness agree. ciation as a qualification of a witness.48 Often to give evidence as to the particular issue,51 such memberships are procured by payment the issues of whether a witness’ claimed area Framing questions so that the answer of a fee, and exposure of this fact can demon- of expertise is a recognised field of special- should be yes is a desirable technique as it strate that the witness has “puffed up” his or ist knowledge and whether the witness has plays upon the expert’s wish to look knowl- her resume to make it appear more credible. the training, qualifications or experience edgeable and reasonable to the Court, while The witness can be cross-examined so as to necessary to give the relevant opinion go also assisting the cross-exam- to admissibility. These issues iner to retain control over the should not, therefore, be left expert.43 to cross-examination of the Wells QC opined that for expert in the hearing after the the most part, progress in report has been admitted, and cross-examining an expert is should instead be the subject made by asking questions that of a voir dire. However, even are the product of probing if a judge rules that a witness and insinuating techniques is qualified as an expert, the in combination, and that it is expert’s qualifications may be only rarely that it is practicable vulnerable to further cross-ex- to confront or undermine an amination once the evidence expert, unless his opinions are has been admitted.52 in conflict with other evidence Pursuant to s 79 of the Ev- already given or to be given, idence Act 1995, in order for with standard textbooks, with the evidence of the witness’ authoritative articles in his opinion to be admissible, the field, or with evidence he has witness must have specialised given or statements made on knowledge based on his or her other occasions.44 training, study or experience. The opinion expressed by the Cross-examination “Cut! The witness hasn’t even rehearsed.” witness must be wholly or as to credibility substantially based on that spe- concede that nothing about the membership cialised knowledge. Cross-examiners should Under s 103 of the Evidence Act, cross-exam- indicates any qualifications or experience, be vigilant to ensure that expert opinions are ination of a witness as to credibility is admis- yet the witness nevertheless deemed it ap- not advanced based merely on the training or sible as an exception to the credibility rule if propriate to list it in the context of his/ her experience of the witness rather than on the the evidence could substantially affect the qualifications. witness’ specialised knowledge.53 assessment of the credibility of the witness. Glissan QC considered that attacking A failure to demonstrate that an opinion As regards expert witnesses, such evidence the qualifications of an expert is at best a expressed by a witness is based on the wit- may go to issues such as bias, the truthfulness ‘chancy business’ and that the best approach ness’ specialised knowledge based on train- of the opinion (if, for example, there were ev- is to attack the expert’s qualifications to give ing, study or experience is a matter which idence of an expert giving an opinion previ- evidence on the particular matter at issue, goes to the admissibility of the evidence, not ously contrary to the opinion in the report in rather than mounting a general attack on the its weight: Dasreef Pty Ltd v Hawchar (2011) question), or the honesty of the expert, which witness’ qualifications.49 The importance of 243 CLR 588 (Dasreef ) at [42] per French could arise if an expert is deliberately over- the witness’ curriculum vitae comes to the CJ, Gummow, Hayne, Crennan, Kiefel and looking literature or distorting its meaning.45 fore here, as Glissan QC warned that all too Bell JJ. Because it is an explicit precondition Glissan QC has warned that an attack on often, one will find that the expert is not of admissibility, it must be established by the credit based on bias is dangerous, as it will specifically qualified on the particular matter party tendering the evidence in examination usually drive the expert to adopt a stance at issue. He instructs: ‘Attack this more in chief (either during the trial or voir dire) which is far more trenchant than otherwise. reasonable, if more limited, objective. Seek not in cross-examination or in non-eviden- Instead, he recommended a subtler, more to wring concessions. Ask detailed questions tiary documents required by rules of court sophisticated approach whereby the witness about areas both at the heart of the issue and for other purposes: Dasreef at [98] per is cross-examined as to his instructions – was all around it.’ Heydon J (dissenting); Ocean Marine Mutual the expert properly briefed? Did the expert As expert witnesses are required to abide Insurance Assn (Europe) OV v Jetopay Pty Ltd have the full facts when giving the opinion? by Expert Witness Codes of Conduct50 (2000) 120 FCR 146 at 151; Adler v ASIC Are there other possibilities to be drawn from requiring them to set out matters including (2003) 179 FLR 1 at 138. the facts? How would other factors affect the their qualifications, the assumptions and The reasoning process used by the expert conclusions?46 material facts on which each opinion in the witness must also be disclosed in the expert The credibility of a witness who has aca- report is based, their reasons for their opin- report in order for the evidence to be admissi- demic credentials, but no day-to-day prac- ion, any literature or other materials used in ble: Rolleston v Insurance Australia Ltd [2017] tical experience in the relevant field, can be support of the opinion, together with many NSWCA 168 at [32] to [34]. attacked on the basis that the witness does other matters, it is vital that compliance with Furthermore, an expert whose opinion is not possess practical expertise and has never each aspect of the relevant code is checked by sought to be tendered should differentiate be- had to put his or her theoretical knowledge the cross-examiner. tween the assumed facts upon which the opin- or hypothesis to the test in the real world, a ion is based, and the opinion in question.54

The Journal of the NSW Bar Association [2018] (Spring) Bar News 59 SPECIAL EDITION - EXPERT EVIDENCE

Cross-examination where evidence is 31.35(c) to (h), the judge will examine the concurrent evidence process, as by the time a given concurrently or by single experts expert witnesses in chief as witnesses of the joint conference has taken place and a joint Court and that cross-examination will take report prepared with careful adherence to In recent years, courts have increasingly en- place of all witnesses jointly, with the order the Code of Conduct, issues of credit rarely couraged the retainer of single experts jointly of cross-examination being either agreed by arise. His Honour considered that if issues of retained by the parties, and where multiple counsel or determined by the judge. credit do arise, they can be dealt with in an experts are retained, the giving of evidence by In the Federal Court, where expert evi- entirely conventional manner by organising the experts concurrently (usually following a dence is given concurrently, the Concurrent the concurrent expert evidence session so conclave of experts and the production of a Expert Evidence Guidelines contemplate a that those issues are not dealt with during joint expert report, without the involvement procedure where expert witnesses are asked the concurrent session but at the conclusion of lawyers). This necessarily changes the pro- questions by the judge, counsel and each of the session, on an individual basis.61 cedure for cross-examination. other on an ‘issue-by-issue’ basis, although Comments from practitioners have includ- An early recorded use of concurrent expert the process of cross-examination remains ed that the concurrent evidence process lacks evidence in Australia occurred in the Trade subject to the overall control of the judge.56 a uniform structure, and that it is desirable The Guidelines distinguish between ‘tradi- for courts to lay down such a structure, in- tional cross-examination’ and the concurrent cluding as to issues such as the appropriate session, describing the latter as ‘a sensible and procedure and timing for challenging the While some judges and barristers orderly series of exchanges between expert expertise of an opponent’s expert (including and expert, and between expert and lawyer.’57 whether such a challenge is taken prior or have described the concurrent The Guidelines state: ‘Where appropriate, after the joint conference of experts, whether the judge may allow for more traditional it is taken prior to the hearing, and if it is evidence process as a ‘discussion’ cross-examination to be pursued by a legal not heard by the trial judge, what the con- and have extended that description representative on a particular issue exclusive- sequence is if the trial judge takes a different ly with one expert. Where that occurs, other view on the expertise of the expert). to the cross-examination experts may be asked to comment on the Where directions are made for single evidence given.’58 expert witnesses, or court-appointed expert process, it is clear that there While some judges and barristers have witnesses in NSW courts, those witnesses described the concurrent evidence process as may be cross-examined by any party.62 Prac- is still room for traditional a ‘discussion’ and have extended that descrip- titioners have commented that difficulties in tion to the cross-examination process,59 it is respect of the appointment of court-appoint- cross-examination within the clear that there is still room for traditional ed expert witnesses include attempting to cross-examination within the concurrent ev- reach agreement with one’s opponent as to concurrent evidence procedure. idence procedure. Justice Pepper of the NSW the questions to be answered by the expert, Land and Environment Court stated:60 the fact that the report generated is often in an inadmissible form, and that a party is It may be that in respect of some unable to speak to the expert outside court Practices Tribunal when Justice Lockhart was issues, the traditional method of cross- and give instructions to the expert (absent the President. In Re Queensland Independent examination of each expert separately, the consent of the opponent) and therefore Wholesalers Ltd (1995) 132 ALR 225 the Tri- or consecutively, is more appropriate, cannot obtain assistance in the same way as bunal set out in its reasons for judgment the but this is not constrained under the a party can when parties have retained their procedure taken in that case with respect to concurrent evidence model, and in my own experts. expert witnesses, which included the follow- opinion the Court greatly benefits from ing in respect of cross-examination:55 having the other expert in the room to Conclusion clarify the point of disagreement. Counsel then cross-examined the experts, To effectively cross-examine expert witness- being at liberty to cross-examine on the The guidelines set out in this paper in rela- es, a barrister must possess both a command basis (a) that questions could be put to tion to cross-examination of expert witnesses of the essential general skills of cross-exam- each expert in the customary fashion (ie should generally apply to cross-examination ination and the insight to adapt and apply one after the other, completing the cross- of experts concurrently. However, comments those skills in aid of the specific end of examination of one before proceeding from practitioners consulted in relation to cross-examining expert witnesses. to the next), or (b) that questions could this article have included that it is very dif- Readers who wish to read more about be put to all or any of the experts, one ficult to challenge the expertise, reasoning, cross-examination of expert witnesses are after the other, in respect of a particular methodology and facts and assumptions of referred to the many helpful articles and subject, then proceeding to the next an expert report when witnesses are being texts written on the topic contained in the subject. Re-examination was conducted cross-examined concurrently. Careful references to this article. on the same basis. thought should be given to the pre-trial directions to be sought in relation to the This general procedure of cross-exam- procedure to be adopted in the lead-up to the ination of experts concurrently has been trial, including as to objections to expert re- followed in cases where orders for concurrent ports and as to issues for cross-examination. expert evidence have been made, with ap- Cross-examination as to some issues, for propriate flexibility and modification to suit example, qualifications and credit, may need the circumstances of the particular case. In to take place separately from the concurrent the Equity Division of the NSW Supreme session. Justice Garling has commented that Court, Practice Note No. SC Eq 5 provides while the conduct of cross-examination as to that where evidence is given concurrently, credit is very difficult in a concurrent session, using the procedure set out in UCPR rule he does not see that as a disadvantage of the

60 [2018] (Spring) Bar News The Journal of the NSW Bar Association SPECIAL EDITION - EXPERT EVIDENCE

END NOTES 50 For example, in NSW courts, the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005, and in the 1 W A N Wells, Evidence and Advocacy (Sydney: Butterworths, 1988), Federal Court, the Harmonised Expert Witness Code of Conduct at 187. Annexure A to the Expert Evidence Practice Note. 2 Robert Stitt QC, Cross-examination of expert witnesses: A practical 51 Watson SC, Cross Examining Experts, 8-9. approach via a personal excursion (2005) 26 Australian Bar Review 219 at 52 W A N Wells, Evidence and Advocacy, 188. 236. 53 See G Edmond, K Martire, R Kemp, D Hamer, B Hibbert, A 3 Geoffrey Watson SC, Cross Examining Experts, CPD seminar delivered Ligertwood, G Porter, M San Roque, R Searston, J Tangan, M at the NSW Bar Association, 9 July 2007. Thompson and D White, How to cross-examine forensic scientists: A guide 4 Cross-examination of Experts (1987) 61 ALJ 622. for lawyers (2014) 39 Aust Bar Rev 174 at 176, 179. 5 Ian Freckelton, Prasuna Reddy and Hugh Selby, Australian Judicial 54 Ramsay v Watson (1961) 108 CLR 642; Arnotts Ltd v Trade Practices Perspectives on Expert Evidence: An Empirical Study, Australian Institute Commission (1990) 24 FCR 313 at 347-348; HG v The Queen (1999) of Judicial Administration Inc, Carlton, Vic, 1999. 197 CLR 414 at 427. 6 Stitt QC, Cross-examination of expert witnesses, 235. 55 At 232. 7 Stitt QC, Cross-examination of expert witnesses, 223. 56 Federal Court of Australia, Expert Evidence Practice Note (GPN- 8 J L Glissan, Advocacy in Practice, (6th ed), (Chatswood: LexisNexis EXPT), Annexure B, Concurrent Expert Evidence Guidelines Butterworths, 2015), [5.43]. (Guidelines) at [14(f)]. 9 Stitt QC, Cross-examination of expert witnesses, 223. 57 Guidelines at [16]. 10 Ian Freckelton and Hugh Selby, Expert Evidence: Law, Practice, Procedure 58 Guidelines at [16]. and Advocacy, (5th ed), (Sydney: Lawbook Co., 2013), [7.10.10]. 59 Justice Peter McClellan, New Method with Experts – Concurrent 11 P H Greenwood SC, Expert Evidence, NSW Bar Practice Course paper, Evidence, (2010) 3:1 Journal of Court Innovation 260 at 264; Justice revised March 2009. Stephen Rares, Using the ‘Hot Tub’: How Concurrent Expert Evidence Aids 12 See Freckelton and Selby, Expert Evidence, [7.10.10]. Understanding Issues, speech delivered on 12 October 2013, . 14 Watson SC, Cross Examining Experts, 4. 60 Justice Rachel Pepper, ‘Hot-Tubbing’: The Use of Concurrent Expert 15 W A N Wells, Evidence and Advocacy, 187. Evidence in the Land and Environment Court of New South Wales and 16 Stitt QC, Cross-examination of expert witnesses, 222. Beyond, paper presented at the 2015 Annual Alaskan Bar Association 17 (New York: Simon & Schuster, 1904), 74. Conference on 14 May 2015, , [61]. for the NSW Bar Association New Barristers Committee on 29 June 61 Justice Peter Garling, Concurrent Expert Evidence – Reflections and 2010, 2. Development, paper presented at the Australian Insurance Law 21 Justice Pembroke, Cross Examination of Experts, 3. Association Twilight Series on 17 August 2011. 22 Stitt QC, Cross-examination of expert witnesses, 231-232. 62 For example, see NSW Supreme Court Practice Note SC Gen 10, 23 Watson SC, Cross Examining Experts, 4. UCPR 31.51. 24 Watson SC, Cross Examining Experts, 4. 25 Stitt QC, Cross-examination of expert witnesses, 230. 26 See Stitt QC, Cross-examination of expert witnesses, 232-233; Miller QC, Cross-examination of Experts, 622. 27 Sir David Napley, The technique of persuasion, (3rd ed), (London: Sweet & Maxwell, 1983), 142. 28 J M Davis, “Self-control: The Forgotten Rule of Cross-examination” (1989) 25 Trial 64, in Freckelton and Selby, Expert Evidence, [7.10.140]. 29 Justice Pembroke, Cross Examination of Experts, 1; see also Professor the Hon George Hampel AM QC, Elizabeth Brimer and Randall Kune, Advocacy Manual: The Complete Guide to Persuasive Advocacy, (Melbourne: Australian Advocacy Institute, 2008), 121. 30 W A N Wells, Evidence and Advocacy, 187. 31 Greenwood SC, Expert Evidence; Watson, Cross Examining Experts, 8. 32 Stitt QC, Cross-examination of expert witnesses, 223; Watson, Cross Examining Experts, 8. 33 W A N Wells, Evidence and Advocacy, 189. 34 J. Matson, Effective Expert Witnessing, (3rd ed) (Boca Raton FL: CRC Press, 1999), 96, in Deirdre Dwyer, The Judicial Assessment of Expert Evidence, (Oxford: Cambridge University Press, 2008), 304-5. 35 Justice Pembroke, Cross Examination of Experts, 3. 36 Chamberlain v The ueenQ (No 2) (1984) 153 CLR 521 at 558-559. 37 Justice Pembroke, Cross Examination of Experts, 2. 38 Stitt QC, Cross-examination of expert witnesses, 228. 39 Stitt QC, Cross-examination of expert witnesses, 228 – 229. 40 See Freckelton and Selby, Expert Evidence, [7.10.10]. 41 Greenwood SC, Expert Evidence. 42 Watson SC, Cross Examining Experts, 6. 43 Watson SC, Cross Examining Experts, 7. 44 W A N Wells, Evidence and Advocacy, 189. 45 Watson SC, Cross Examining Experts, 8-9. 46 Glissan, Advocacy in Practice, [5.43]. 47 Stitt QC, Cross-examination of expert witnesses, 224, W A N Wells, Evidence and Advocacy, 188. 48 Freckelton and Selby, Expert Evidence, [7.10.10]. 49 Glissan, Advocacy in Practice, [5.43].

The Journal of the NSW Bar Association [2018] (Spring) Bar News 61 SPECIAL EDITION - EXPERT EVIDENCE

Expert reports: reconsidering waiver of privilege

By Hugh Stowe, 5 Wentworth

Introduction This article sketches an overview of the law all stages of proceedings, including pre-trial of legal professional privilege, briefly reviews procedures by operation of UCPR r 1.9 and sec- This article addresses the following vexed ques- the authorities and principles relevant to the tion 131A of the Evidence Act.3 The exception tions concerning expert reports: in relation to application of privilege to Associated Materials, is that the common law still applies to claims of the documentary materials generated during tentatively outlines a summary of prevailing privilege made by parties other than the party the production of expert reports in legal pro- principles, raises proposals for the further evo- producing the document.4 ceedings, when does privilege arise and when lution of principles, and outlines possible strat- It is doubtful whether there is significant is it waived? These materials may include in- egies to minimise the prospect and prejudice of difference in the operation of the statutory and structions, source materials, other confidential waiver. These are large and significant topics common law principles.5 communications with lawyers, drafts, and which bristle with controversies and uncertain- internally generated working documents (‘As- ties. The thorough analysis which these topics Purpose of legal professional sociated Materials’). merit is beyond the scope of this brief article. privilege: the policy tension The article updates an analysis undertaken 10 years ago in this journal.1 Back then, I Which body of evidence law applies? The scope of privilege represents the resolution stated: ‘Regrettably, a crisp answer to the ques- of a fundamental policy tension: ‘A person tions cannot be given. Privilege may arise, and In the Federal Court, questions of legal profes- should be entitled to seek and obtain legal privilege may be waived on service or tender of sional privilege are governed by the common advice in the conduct of his or her affairs, and the report. However, the scope of privilege and law in pre-trial proceedings,2 and by the Evi- legal assistance in and for the purposes of the waiver are uncertain’. That conclusion remains dence Act 1995 (CW) at trial. In NSW question conduct of actual or anticipated litigation, apt, but there have been significant develop- of privilege are (subject to one exception) without the apprehension of being prejudiced ments and clarifications in this field since then. governed by the Evidence Act 1995 (NSW) in by subsequent disclosure of the communica-

62 [2018] (Spring) Bar News The Journal of the NSW Bar Association SPECIAL EDITION - EXPERT EVIDENCE tion. The obvious tension between this policy perceive, between the conduct of the client and common law. and the desirability, in the interests of justice, maintenance of the confidentiality; not some Implied waiver of privilege in relation to of obtaining the fullest possible access to the overriding principle of fairness operating at Associated Materials potentially arises under facts relevant to the issues in a case lies at the large’.14 section 126 and section 122. heart of the problem of the scope of the priv- ‘Fairness’ is thereby identified as relevant to Section 126 provides that privilege is lost in (but not determinative of) the matter. ‘Fairness relation to documents which are ‘reasonably presupposes a balancing of interests between necessary for a proper understanding’ of other The scope of privilege parties who are in dispute’.15 The ‘question of documents in respect of which privilege has ‘fairness’ involves an inquiry as to whether the been lost. By operation of section 126, ‘if a represents the resolution of a facts supply sufficient reason for depriving the privileged document is voluntarily disclosed for fundamental policy tension. client of the form of protection which the law forensic purposes, and a thorough apprehension confers upon communications between solici- or appreciation of the character, significance or tor and client’.16 implications of that document requires disclo- ilege. Where the privilege applies, it inhibits An assessment of ‘inconsistency’ ‘is to be sure of source documents, otherwise protected or prevents access to potentially relevant in- made in the context and circumstances of the by client legal privilege, ordinarily the test laid formation….. For the law, in the interests of case, and in the light of any considerations down by s 126 of the Evidence Act will be the administration of justice, to deny access to of fairness arising from that context or those satisfied.’21 relevant information, involves a balancing of circumstances’.17 Although a full exploration Section 122(2) provides that: ‘Subject to competing considerations’.6 of the relevant principles is beyond the scope subsection (5), this Division does not prevent of this paper, a recognised category of case is the adducing of evidence if the client or party Privilege and waiver under the common law ‘associated material waiver’, which arises when concerned has acted in a way that is inconsist- it is deemed ‘unfair or misleading to allow a ent with the client or party’ claiming privilege. The question as to the scope of privilege under party to refer to or use material and yet assert The section incorporates the common law test the common law is ‘more easily asked than that that material, or material associated with for implied waiver.22 answered, despite all that is to be found in the it, is privileged from production’.18 By way of decided cases and all that has been said in the example, waiver will arise ‘where the privilege Underpinning policy considerations learned articles’.7 Nevertheless, the following holder has put the contents of the otherwise general traditional categories can be identified:8 privileged communication in issue’ in pro- As noted above, the formulation of rules in relation to implied waiver involves striking a bal- • ‘advice privilege’: protects from disclosure ance with respect to incommensurable policy confidential communications between a considerations. In addition to the general policy client and lawyers, made for the dominant ‘Fairness presupposes a tensions described above, there are a number of purpose of seeking or providing legal advice; balancing of interests between specific policy matters that are relevant to the ‘balance’ in the context of the scope of implied • ‘litigation privilege’: protects from disclosure parties who are in dispute’. waiver in Associated Materials, following ser- confidential communications between vice or tender of an expert report. clients and lawyers, and lawyers or clients The following matters have been identified as (on the on hand) and third parties (on the ceedings.19 It has been observed that implied weighing in favour of implied waiver in relation other hand), for the dominant purpose of waiver extends to associated materials which to Associated Materials (following service or pending or reasonably contemplated legal are ‘necessary to a proper understanding’ of the tender of the report). proceedings. primary privileged materials which have been referred to or used.20 Firstly, ‘the important principle that there is It has been said that the doctrine of privilege The difficulty with the concepts of ‘incon- no property in a witness means that an adverse itself reflects the final resolution of the policy sistency’ and ‘unfairness’ is that they reflect a party may subpoena an expert retained by the tension described above,9 and that ‘no further policy conclusion on specific facts that the law original party and require that expert to give all balancing exercise is required’ in the application will override privilege, but leave unarticulated relevant information in his possession, includ- of privilege.10 However, the doctrine of privilege the precise basis for that conclusion. Although ing an expression of his opinion, to the court’.23 is ‘subject to defined qualifications and excep- the operation of implied waiver is well settled in tions’.11 These act as ‘the common law’s safety many areas, there are not (and maybe cannot Secondly, the fact that in the ‘field of expert valve’,12 when the operation of privilege places be) generally settled universal criteria relevant evidence it is difficult to sever an opinion from undue pressure on the search for truth. In other to resolving the underlying policy balance. I the information and process upon which it is words, within the recognised ‘qualifications suggest that the (unarticulated) reality is that based. It would seriously jeopardise the proper and exceptions’ to privilege, there remains the application of implied waiver involves the testing of such witnesses if privilege were ex- embedded the scope for the further balancing court re-opening and re-striking the balance tended to documents’ upon which the opinion of the conflicting policies which underpin the between the fundamentally irreconcilable is based.24 operation of privilege. The doctrine of ‘waiver policy objectives which underpin the law of of privilege’ is one of those safety valves. Waiver privilege (referred to above). Those policy Thirdly, although not specifically referred to of privilege may be ‘express’ or ‘implied’. objectives are incommensurable, and where in the authorities, waiver of privilege in relation Express waiver arises when a party ‘delib- the balance is struck reflects an inherently to Associated Materials reduces and addresses erately and intentionally discloses protected contestable weighting of those objectives. There the risk of adversarial bias in the preparation material’.13 can be settled answers, but no objectively ‘right’ of expert evidence. ‘For whatever reason, and Implied waiver arises under the common law answers. whether consciously or unconsciously, the fact when there has been an ‘intentional act’ which is that expert witnesses instructed on behalf of was ‘inconsistent with the maintenance of … Privilege and waiver under the Evidence Act parties to litigation often tend … to espouse the confidentiality. What brings about the waiver is cause of those instructing them to a greater or the inconsistency, which the courts, where nec- Sections 118 and 119 substantially mirror lesser extent’.25 That is a reflection of pervasive essary informed by considerations of fairness, the ‘advice’ and ‘litigation’ privileges of the ‘adversarial bias’: ie, a ‘bias that stems from the

The Journal of the NSW Bar Association [2018] (Spring) Bar News 63 SPECIAL EDITION - EXPERT EVIDENCE fact that the expert is giving evidence for one xperts should not be inhibited by fear of expo- skilful cross-examination to cause unwarranted party to the litigation’.26 The process is insidious sure of a draft from changing their minds when damage to the credit of the expert. and may be conscious or unconscious. Irrespec- such change is warranted by the material then tive of the integrity of expert and lawyer, there is before the expert’.34 Fifthly, the relevance to waiver of the expert’s an ever present risk that the expert’s opinion will Secondly, the risk of waiver in relation to supervening duty to the court should not be be influenced and biased by signals communi- Associated Materials may deter a party from exaggerated. ‘Assistance to the court must be cated by lawyers. The influence of an expert’s vigorously searching for evidence. ‘The effica- the witness’s dominant purpose in providing opinion ‘by undisclosed facts and reasoning cy of the adjudicative process depends on the an opinion for use in the proceedings. But processes’ may go to the ‘weight’ of the opin- readiness and ability to each party to vigorously the purpose of communications between the ion,27 and may properly be the subject of testing search for evidence. A party might be discour- party’s legal representatives and the witness through cross-examination.28 These consider- aged from making anything but the most cur- is nonetheless predominantly to assist the ations arguably support waiver of privilege in sory enquiries were he to be required to hand party…..The fact that the witness is constrained relation to Associated Materials, to facilitate over unfavourable evidence to the adversary.’35 to assist the court and to be impartial does not the opposing party testing for adversarial bias displace that purpose’. The argument that the (or any other undisclosed matter which might Thirdly, the spectre of waiver in relation to special role of an expert militates against privi- 29 have influenced the opinion). Sunlight is the Associated Materials is likely to compromise lege ‘fails to recognise the adversarial nature of best disinfectant. It has been recognised that the process of the formulation and articulation the proceedings…..The witness’s evidence must 36 it would ‘be both unfair to the applicant, and of expert opinion. In complex matters, the be impartial, but communications with a view contrary to the interests of justice, to insulate diligent preparation of an expert report may to securing and facilitating the provision of the [experts] from a full examination of all of demand the generation of extensive work notes, such evidence are entered into for the purpose the information which they took into account drafts and correspondence which facilitate the of assisting the party, not for the purpose of and the various influences to which they were progressive refinement of the opinion. How- assisting the court’.43 ever, if waiver operates widely in relation to Associated Materials, prudent litigation man- Sixthly, and ‘a rule that privilege is waived Waiver of privilege in relation agement may dictate that working documents if material is submitted to an expert for use in not be generated. Further, a possible corollary to Associated Materials connection with an expert report, would be a of the broad application of waiver to written very substantial intrusion on legal professional Associated Materials is that privilege would also 44 reduces and addresses the privilege’. ‘Legal professional privilege is not be waived in relation to oral communications merely a rule of substantive law. It is an impor- between the expert and lawyers, which might tant common law right or, perhaps, more accu- risk adversarial bias in the deter lawyers from conferring with experts rately, an important common law immunity’.45 preparation of expert evidence. and thereby further compromise the process of report and case preparation). Privilege & expert reports – a framework of analysis exposed in the preparation of their evidence’.30 Fourthly, the widespread application of (Waiver in relation to Associated Materials to waiver in relation to drafts (and other Associat- Any privilege in relation to expert reports and permit such testing would be directly analo- ed Materials) would likely generate a miscellany Associated Materials in the context of legal gous to another recognised category of implied of collateral inquiries in cross-examination, di- waiver: when there has been a partial disclosure rected to exploring and challenging the reasons proceedings arises as an application of the ‘liti- of a privileged document, there is an implied for the evolution of the opinions expressed in gation privilege’. waiver in relation to the ‘whole of the material the final expert report. In some cases that may Any loss of privilege in relation to a final 31 expert report which is served or tendered, will relevant to the same subject matter’, because be a forensically important process. However, 46 the ‘opposite party and the court must have an in many cases that will be a time-consuming arise (if at all) by operation of ‘express waiver’. opportunity of satisfying themselves that what distraction from the essential task of testing Any loss of privilege in relation to Associat- the party has chosen to release from privilege expert evidence.37 This is particularly salient, ed Materials will arise (if at all) by operation represents the whole of the material relevant to when regard is had to the essential purpose of of ‘implied waiver’. As noted above, implied the issue in question’.32) The added advantage expert opinion evidence to ‘enable [the judge] waiver is triggered by some conduct of the priv- of recognising pervasive waiver of Associated to form his own independent judgment by ilege holder. If implied waiver is to operate in Materials in the context of expert evidence, is applying the criteria furnished to the facts relation to Associated Material, the ‘triggering that the prospect of waiver will impose a chas- proved’.38 The test for admissibility is that the conduct’ will typically be the service (or tender) tening discipline on lawyers in their dealings ‘expert identify the facts and reasoning process of the expert report. Any such implied waiver with experts. which the expert asserts to be an adequate basis can generally be classified as an example of 47 for his or her opinion’.39 ‘The fact that the ex- ‘associated material’ waiver. Fourthly, ‘opinion evidence is a special kind pert’s opinion was at one time - or even still is When access is sought to Associated Ma- of evidence, and courts have traditionally en- - reinforced by undisclosed facts and reasoning terial, ‘there are typically two questions: The couraged experts who are qualified to give such processes is irrelevant to the admissibility of first is whether the documents in question are evidence to be objective…an expert’s duty to the opinion’.40 Furthermore, although the fact entitled to litigation privilege….and the second the court is more important than the duty to that an expert’s opinion is or was ‘reinforced by is whether that privilege has been waived by a client’.33 undisclosed facts and reasoning processes’ may service of the report’.48 Conversely, there are a number of policy go to the ‘weight’ of the opinion in some cir- considerations recognised as weighing against cumstances,41 the weight of expert opinion will A starting point – ASIC v Southcorp waiver in relation to Associated Materials. substantially turn on the court’s independent Firstly, the waiver of privilege with respect to evaluation of the asserted justification for the The most cited case addressing privilege in the drafts would inhibit the expert from changing expert opinion, in respect of which the process context of expert reports is probably Australian his opinion. ‘An expert is surely permitted, of the evolution of the opinion is substantially Securities & Investments Commission v Southcorp indeed to be encouraged, to change his or her irrelevant.42 Further, if Associated Materials Ltd (2003) 46 ACSR 438, in which Lindgren J mind, if a change of mind is warranted….. [E] are taken out of context, there is scope for summarised the relevant principles as follows:49

64 [2018] (Spring) Bar News The Journal of the NSW Bar Association SPECIAL EDITION - EXPERT EVIDENCE

1 Ordinarily the confidential briefing or authorities (consistent with Southcorp) which or an intended later draft) being furnished for instructing by a prospective litigant’s affirm that working documents (including comment or advice by the lawyer, then it is lawyers of an expert to provide a report draft reports) generated unilaterally by the privileged’.60 of his or her opinion to be used in the expert to assist in the preparation of the expert However, by way of significant qualification, anticipated litigation attracts client legal report are typically not privileged.53 There are 2 White J held in the same case that ‘if they were privilege. alternative reasons stated for that proposition: brought into existence for the dominant pur- they do not have the requisite confidentiality, pose of the expert forming his or her opinions 2 Copies of documents, whether the originals and they are typically not the subject of com- to be expressed in the final report, then it could are privileged or not, where the copies were munication.54 be arguable that they were not made for the made for the purpose of forming part of The prevailing view under the common dominant purpose of the plaintiffs being pro- confidential communications between law, is that privilege will apply to documents vided with professional legal services relating the client’s lawyers and the expert witness, generated unilaterally by the expert (including to the proceedings’, and would therefore not ordinarily attract the privilege. drafts), in a range of alternative situations which be privileged.61 That qualification is consistent generate exceptions to the general rule iden- with the prevailing view that finalised affida- 3 Documents generated unilaterally by the tified in Southcorp (subject to the documents vits and reports (as opposed to drafts) are not expert witness, such as working notes, having the requisite degree of confidentiality55). privileged because they were prepared for the field notes, and the witness’s own drafts of Firstly, even if the document was not commu- dominant purpose of being disseminated to the his or her report, do not attract privilege nicated, privilege will attach if the document opposing party and tendered (rather than being because they are not in the submitted to legal advisers for advice), nature of, and would not expose, and also lacked the requisite confiden- communications. tiality.62 Justice White has observed ‘It will be a question of fact, to which 4 Ordinarily disclosure of the the expert may be required to put his expert’s report for the purpose of or her oath, as to whether any draft reliance on it in the litigation will reports prepared and kept by him, and result in an implied waiver of the working notes prepared by him or his privilege in respect of the brief staff, were brought into existence for or instructions or documents the dominant purpose….of a draft referred to in (1) and (2) above, at report being submitted for advice or least if the appropriate inference comment by the plaintiffs’ lawyers…. to be drawn is that they were [rather than]….the expert forming his used in a way that could be or her opinions to be expressed in the said to influence the content final report’,63 and ‘the issue may not of the report, because, in these be an easy one to determine’.64(This circumstances, it would be unfair highlights the strategic significance of for the client to rely on the report initially instructing the expert only to without disclosure of the brief, “If you don’t believe me, Google it.” produce draft reports for the purpose instructions or documents. of submission to lawyers for review and comment, and on the basis that 5 Similarly, privilege cannot be maintained was ‘prepared with the dominant purpose of confidentiality is preserved). in respect of documents used by an expert being used as a communication’, which would to form an opinion or write a report, include draft reports prepared for the dominant Second Issue: waiver of privilege regardless of how the expert came by the purpose of being communicated to lawyers for documents. comment.56 (To ensure privilege attaches to Southcorp affirms that ‘ordinarily’ service drafts, experts should be instructed to prepare of the expert report will result in the implied The case has been widely approved50 (‘South- drafts for the dominant purpose of communi- waiver of the ‘brief or instructions’ if it can be corp Line of Authority’). ‘The principles stated cating the draft to the lawyers for review and inferred that they ‘influenced the content’ of by Lindgren J provide the context for more comment). Secondly, the better view is that con- the report (Principle 4); and of any other doc- recent judgments concerning the Act’.51 How- fidential documents are privileged if they are ument ‘used by an expert to form an opinion’ ever, the case was decided under the common brought into existence to facilitate a subsequent (Principle 5). law, and ‘the principles….must be modified in privileged communication,57 which will extend There has subsequently been significant cases governed by the Evidence Act and in the privilege to working notes prepared for the refinement of the trigger for implied waiver, light of the analysis in Mann v Carnell’.52 The dominant purpose of preparing draft reports. which has significantly limited its scope. required modifications are substantial. I seek Thirdly, privilege may extend to internal work- In relation to the operation of implied waiver to summarise below the prevailing position ing papers which evidence otherwise privileged under the common law and section 122, the in relation to the categories of documentation communications,58 which will include marked leading modern statement of principle by identified in Southcorp. up comments and edits by lawyers on a draft.59 White J in New Cap Reinsurance Corporation Under the Evidence Act, section 119 now Ltd (in liq) v Renaissance Reinsurance Ltd 65 is First Issue: does privilege originally provides that the litigation privilege extends that: ‘The question is not merely whether it arise (subject to waiver)? to ‘the contents of a confidential document could be said that the privileged materials were (whether delivered or not) that was prepared’ used in such a way that they could be said to Categories 1-2 of Southcorp. There is no for ‘the dominant purpose of the client being influence the content of the report, but whether controversy that these categories of documents provided with professional legal services etc’. By it could be said that they influenced the content are prima facie privileged. application of section 119,’ if an expert prepares of the report in such a way that the use or service a draft report, or notes for the report, with the of the report would be inconsistent with main- Category 3 of Southcorp: ‘Documents dominant purpose of a draft report (whether taining the privilege in those materials’.66 (The generated unilaterally’. There are numerous the precise draft then prepared by the expert capacity of Associated Materials to ‘influence

The Journal of the NSW Bar Association [2018] (Spring) Bar News 65 SPECIAL EDITION - EXPERT EVIDENCE the content of the report’ is thereby recast as Waiver: draft reports (and confidential ence the content of an expert’s report by… necessary, but not sufficient, to trigger waiver). communications about them) providing the expert with assumptions or However, consistent with the Southcorp Line of If privileged communication concerning documents that may well influence the con- Authority, other authorities have formulated draft reports (or the draft reports themselves) tent of the report’;78 (c) the disclosure of the the test for waiver in a manner which implies only influenced the ‘form’ of the report, and communications which provided assump- that the capacity to ‘influence’ the content of not ‘the substantive opinion’, the prevailing tions (or instructions generally) is typically the expert report is sufficient of itself to gen- view is that there is no inconsistency in serv- not reasonably necessary to comprehend the erate the requisite ‘inconsistency’ and waiver. ing the reports and retaining privilege, and report, because the expert’s report is ‘required An example of such a broader formulation is: therefore no waiver in relation to those doc- to state what material and assumptions are ‘there is a sufficient level of inconsistency with uments.69 This reflects the recognition that it relied on’;79 and/or (d) there is typically no the maintenance of privilege if there has been ‘is proper for the parties’ lawyers to influence risk of unfairness because ‘if the assumptions reliance on the privileged information as a basis the content of an expert’s report by seeking which he has made in his draft report are or foundation of the opinion, or incorporation to have the report produced in a form in not established, the views expressed in that of it so as to make it part of the issue’.67 which it will be admissible and by providing report would not be of any significance’.80 In relation to the operation of implied waiver the expert with assumptions or documents However, privilege over letters of instruc- under section 126 of the Evidence Act, the pre- that may well influence the content of the tion may be waived if: (a) the expert report vailing view is a ‘proper understanding’ of the report’.70 ‘responds to questions which are not them- primary document under section 126 does not If privileged communication concerning selves restated’81 (reflecting the application of involve ‘an appreciation of the manner in which draft reports (or the draft reports themselves) the general principle that at waiver of instruc- the opinions contained in the document have influenced the actual ‘substantive opinion’ tions are reasonably necessary for a proper been formed over time, or the iterations and in the final expert report, some authority understanding of the report)82; or (b) if the supports the operation of waiver when the expert report purports expressly to summa- report is served or tendered.71 However, rise the letter of instructions (reflecting the ‘The question is not merely a recent statement by Ball J in Traderight application of a general principle of implied (NSW) Pty Ltd v Bank of Queensland Ltd 72 waiver that privilege is waived by the ‘laying whether it could be said that the affirms that mere influence of the ‘substance’ open of the confidential communication to of opinion is not of itself sufficient, and that necessary scrutiny…by expressly or impliedly privileged materials were used waiver depends upon a further finding either making an assertion about the contents of 83 in such a way that they could be that the stated final opinions of the expert are the communication’ ); or (c) possibly if the ‘not her own or based on material other than expert fails to state assumptions, at least in said to influence the content of the the material disclosed in the report’,73 or that circumstances where the absence of assump- lawyers have failed to discharge their ethical tions frustrates a ‘true understanding of what report, but whether it could be said obligations concerning the preparation of is being asserted’84 in the expert report (such expert evidence. In declining to order waiver that waiver of letters of instruction are rea- that they influenced the content of over drafts and confidential communications sonably necessary for a proper understanding with lawyers, Ball J held: ‘It is common for a of the report). the report in such a way that the party’s legal advisors to communicate with In the Federal Court the issue of waiver in re- an expert retained by the party for the pur- lation to instructions is immaterial, because use or service of the report would pose of giving instructions and commenting the Expert Evidence Practice Note mandates be inconsistent with maintaining on the form of the expert’s report. In some the disclosure of the instructions given to cases, those advisors may test tentative con- the expert. There is no equivalent provision the privilege in those materials’. clusions that the expert has reached and in in the Uniform Civil Procedure Rules, but I doing so may cause the expert to reconsider suggest that letters of instructions should in- his or her opinion’; and there was nothing variably be prepared with the understanding evolutions through which they have passed. The before the court which indicated that ‘legal and intention that they be disclosed. test is concerned with the comprehensibility of advisors have failed to discharge’ their obliga- the primary communication or document: if it tion to ‘ensure that any opinion expressed by Waiver: ‘Source Materials’. can be completely or thoroughly understood an expert is an opinion the expert holds for This section addresses confidential com- without more, then access to the related com- the reasons that the expert gives and that the munications between lawyers and experts munications or documents is not reasonably expert otherwise complies with the Expert conveying information or documentation necessary’.68 (Whatever view is taken of the Witness Code of Conduct’.74 to the expert relating to the subject matter of appropriateness of that principle to strike the There are other decisions which have opinion (‘Source Materials’). policy balance encapsulated by waiver under simply rejected that service or tender of an There is no significant doubt that waiver section 126, it should be recognised that it re- expert report necessarily waives privilege in in relation to Source Materials will operate flects a contestable and restrictive construction relation to any previous drafts, without refer- when: (a) the expert report contains ‘a sum- of the expression ‘proper understanding’. With- ence to the principles to which Ball J refers.75 mary or excerpt’ from the privileged source out semantic injustice, ‘proper understanding’ materials;85 or (b) the expert expressly refers could have been more broadly construed to Waiver: letters of instruction (including to or relied on the substance of the privileged extend to documents which are relevant to communication of assumptions) material for the purpose of ‘bolstering’ the assessing the probative strength of the primary The prevailing view is that there is no au- expert’s opinion.86 document. That broader construction would tomatic waiver in relation to any letter of Consistent with the Southcorp line of have caused waiver under section 126 to cut instructions when the report is served or authority, the better view is that it is also suf- more deeply into Associated Materials). tendered.76 This is for a variety of alternative ficient for waiver to apply to Source Materials In light of those general principles, I tenta- reasons: (a) there may be no basis to infer that (without more), if those materials ‘influenced tively outline the present operation of waiver the substance of the expert report has been the content’ of the expert report, in the sense in relation to various categories of Associated influenced by the letter of instructions;77 (b) of the substance of the opinion.87 (Unlike Materials. ‘it is proper for the parties lawyers’ to influ- drafts, and communications about drafts,

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there is no countervailing policy considera- are limits to whether this is a useful exercise. efficient running of the litigation, including the tion that justifies further limiting the scope It would be impossible, as a matter of practice, proper and efficient preparation for trial and of waiver in relation to Source Materials and inappropriate, as a matter of principle, for the taking of evidence at the trial. Those con- which influence the content of an expert a judge to approach that question in the same sequences do not fit comfortably with modern report). way as a party might wish to do so if preparing case-management practices, and in particular Waiver can be avoided, if the expert struc- a cross-examination of the expert’.96 Sometimes the ‘just, quick and cheap’ principle to which tures his or her report so that opinions are the Court rejects an application for waiver in litigation is subject in this court’.102 based on precisely identified assumptions the absence of inspection, on the grounds For the following reasons, there is strong (rather than identified privileged Source that there is ‘nothing to point to’ the requisite basis for distinguishing earlier authority and Materials),88 but it will be incumbent on the influence, reflecting that there may need to finding that service of expert reports is suffi- party to prove those assumptions through be demonstrated a threshold possibility of the cient to trigger waiver (if the grounds for waiver admissible evidence. requisite influence, before the Court is prepared otherwise exist). Firstly, as a matter of general In the Federal Court, fine distinctions to inspect.97 principle, the possibility of waiver arises when about what Source Materials ‘influenced the privileged material is deployed for a forensic content’ of the expert report are irrelevant, When is waiver triggered? purpose through which the party derives a because the Expert Evidence forensic advantage.103 It is now rec- Practice Note mandates that the ognized that the forensic purpose expert must attach or exhibit of expert reports is not confined to ‘documents and other materials the tender of the reports as formal that the expert been instructed to evidence, but extends to reliance for consider’. forensic advantage in the course of settlement discussions, mediation Scope of waiver and the expert conclave.104 Such advantage can arise on service (and If the conditions for waiver are prior to tender). Secondly, there have established, the question then arises been significant legislative changes, as to the scope of the implied waiver which calls into question the line over Associated Materials. Some of authority which holds service is authorities support the proposition insufficient to trigger waiver. The that the scope of waiver in relation first is that section 122 has been to Associated Materials can be amended, and now provides that limited to the particular portions of there is no ‘inconsistency’ giving privileged documents that relevant- rise to waiver ‘merely’ because ‘the ly influenced the final report, if the substance of the evidence has been expert specifies with particularity the discreet Southcorp provides that it is the service of the disclosed…under compulsion of law’. It is ar- portions of the document which relevantly in- expert report (as distinct from its tender) which guable that the requisite ‘inconsistency’ arises fluenced the report (and did not thereby create triggers the operation of waiver (if the grounds not ‘merely’ from compulsory service of expert any inaccurate perception of the privileged for waiver otherwise exist). Other authorities reports, but by reason also of the pre-trial fo- material).89 Other authorities affirm that waiver (consistent with Southcorp) assert that position rensic advantage thereby derived.105 The second should extend to the whole of the privileged without explanation.98 is that Section 131A (which came into force document which relevantly influenced the final However, this is a matter of significant on 1 January 2009 in NSW, but not federally) report, or even all other Associated Materials controversy. Some authorities affirm that that ‘effectively requires the court to determine a that related to the relevant issue.90 privilege is not lost until the report is tendered,99 pre-trial claim for privilege as though the claim A useful ‘test applied to determine the scope relying on 2 alternative principles in support of was made in the course of adducing evidence of any waiver of associated material is whether that position. Firstly, under an earlier enactment at trial’.106 Thirdly, there is some contest as to the material that the party has chosen to release of the Evidence Act, section 122(2) provided whether the service of expert reports should be from privilege represents the whole of the that there was waiver if a party ‘knowingly characterised as ‘under compulsion’.107 material relevant to the same issue or subject and voluntarily disclosed to another person the matter’.91 However, the application of that test substance of the evidence’, unless the disclosure A tentative proposal begs the contestable questions as to the proper was made ‘under compulsion of law’; and the characterisation of the ‘issue’ or ‘subject matter’, prevailing view has been that service of expert Consistent with what I described above as the and the degree of relevance required. reports pursuant to court directions was ‘under prevailing view, I tentatively suggest that the compulsion of law’, by reason of which service following principles regulate when service of Establishing the conditions for waiver. did not give rise to waiver.100 Secondly, other an expert report would be ‘inconsistent with’ authorities held there can be ‘no unfairness’ the maintenance of privilege over Associated It may be difficult to establish whether the in maintaining privilege, unless and until Materials (under section 122(2) of the Act and relevant ‘inconsistency’ has been established.92 the expert report is tendered and the expert the general law), so as to give rise to a waiver of The conditions for waiver are ‘questions of fact’ called.101 privilege in relation to those materials: to be resolved by reference to the ‘testimony of Should there otherwise be grounds for the [the deponent] and the inferences properly to operation of waiver, the deferral of its operation • With respect to all Associated Materials, the be drawn from the documents in dispute them- until tender of the expert reports means that po- expert has ‘laid open’ communications in the selves’.93 The question of whether there has been tentially relevant documents over which waiver Associated Materials ‘to necessary scrutiny… a waiver can be re-assessed in light of the con- might operate will not be available for pre-trial by expressly or impliedly making an assertion duct of a trial, and the cross-examination of the preparation. This gives rise to obvious risks of about the contents of the communication’ in expert.94 The courts have shown a willingness trial disruption when the expert is finally called the expert report;108 to inspect the documents, to assess whether and waiver operates. These consequences are the requisite influence is established.95 ‘There ‘most impractical from the perspective of the • With respect to all Associated Materials, the

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substance of stated opinion in the expert collectively encapsulated in the overarching the desirability of not compromising the report (as distinct from the evolution of the principle which I suggest. process of the evolution of expert opinion opinion, the reasons for the opinion, or the and the preparation of expert reports by a weight of the opinion) is not reasonably Secondly, the recognition of undue risk of pervasive threat of waiver;117 and avoiding comprehensible without reference to the adversarial bias as a trigger is consistent with distracting and irrelevant collateral inquir- Associated Materials;109 the recognition in the context of implied ies involved in the cross-examination as to waiver that ‘‘fairness’ has not been treated the evolution of expert opinion (when that • With respect to Source Materials, if those as requiring that the other party should have is not material to the probative value of the materials ‘influenced the content’ of the all the information available to the party opinion); expert report, in the sense of the substance claiming privilege, but as requiring that that of the opinion;110 party should not abuse privilege so as to dis- • on the other hand, the recognition that advantage the other party forensically’.114 The waiver will nevertheless be triggered • With respect to draft reports (and com- requirement of a demonstrated risk of adver- when there is a demonstrated undue risk munications between experts and lawyers sarial bias is consistent with the requirement of adversarial bias, reflects the insidious concerning preparation of drafts), there is that there is a demonstrated risk that the prevalence of adversarial bias; the capac- demonstrated to be an undue risk of adver- privileged relationship between expert and ity of adversarial bias to compromise the sarial bias, subject to the proviso that the lawyer has been compromised (by reason of fact-finding process; the capacity of waiver mere fact of ethical dealings between expert which the entitlement to the privilege should to facilitate the testing of the presence and and lawyers is insufficient of itself to establish be qualified to allow testing for the presence effect of adversarial bias; and the fact that the requisite risk. (This principle is elaborated and effect of that adversarial bias on the evo- the privilege should reasonably be forfeit- below). lution of the opinion). ed when there is a demonstrated undue risk that the relationship of privilege has In view of the relatively narrow manner Thirdly, although Traderight implies that a compromised the preparation of expert in which the scope of section 126 has been trigger for waiver is the indication that the evidence; construed,111 section 126 is unlikely to further expert’s views ‘are not her own’,115 I propose extend the scope of waiver. that the trigger be defined more broadly by • the further recognition that there should reference to the indication of ‘adversarial be a ‘safe harbor’ for witness preparation, ‘Undue risk of adversarial bias, bias’. This is because adversarial bias might by operation of which ‘ethical dealings’ subject to the proviso….’ cause not merely the dishonest expression of between expert and lawyers should not of partisan opinion, but also the unconscious itself trigger waiver, is supported by two Justification for the principle moulding of honest opinion to the partisan considerations. Firstly, the establishment To reiterate, ‘adversarial bias’ is a conscious cause. The opinion may be the expert’s ‘own’, of a safe harbor is desirable to create a or unconscious bias ‘that stems from the fact but still the product of unconscious adver- degree of certainty in relation to the appli- that the expert is giving evidence for one sarial bias. Undue risk of both conscious and cation of waiver to expert reports, both to party to the litigation’.112 The recognition of unconscious adversarial bias should trigger generate confidence during the evidence the principle that waiver will operate when waiver to facilitate testing as to the presence preparation phase, and to avoid encour- there is demonstrated an undue risk of ad- and effect of such bias. aging speculative applications for waiver. versarial bias (subject to the proviso that the Secondly, defining the scope of the safe mere fact of ethical dealings between expert Fourthly, it is important that the principle harbor by reference to ‘ethical dealings’ is and lawyers is insufficient of itself to establish be qualified by the requirement that the desirable, because the judicial refinement the requisite risk) is supported by the follow- risk of adversarial bias be an ‘undue’ risk. of ‘ethical dealings’ will permit an explicit ing considerations. That is because the risk of adversarial bias is recognition and resolution of the policy unavoidable and pervasive. The requirement tension between permitting the advance- First, it is generally consistent with the that the risk be ‘undue’ reflects the need to ment of partisan client interests within recent line of authorities based on Newcap identify something in the factual mix which an adversarial system, and ensuring that and Traderight. These cases affirm that the materially and unacceptably exacerbates the truth-seeking is not unduly frustrated by mere fact that privileged communications inherent universal risk of adversarial bias. In particular methods of such advancement. actually influence the form and even the the absence of the qualification that the risk This tension (and proposals for its resolu- substance of expert opinion is not sufficient of adversarial bias be ‘undue’, waiver would tion) are addressed in another article in to trigger waiver. Something further is be universal and the protection of privilege this edition of Bar News.118 required, being grounds to infer either that would be illusory. This is addressed further the expressed opinions of experts ‘are not below. Sixthly, although there may appear to be their own’, or that the lawyers have failed to uncertainty in the application of an osten- discharge their obligations in relation to the Fifthly, I respectfully suggest that the sibly broad and vague standard, it would in preparation of the expert evidence. However, principle reflects an appropriate balance of fact provide a relatively certain ‘safe harbor’ these cases also recognise ‘safe harbours’, the competing policy objectives in relation for the preservation of the privilege. On the in the sense of ethically endorsed methods to waiver of privilege in connection with the criteria set out below, if the dealings between of expert witness preparation which are expert reports: expert and lawyers are ethically appropriate, recognized as insufficient in themselves to and the expert comprehensively sets out the trigger waiver: eg ‘legal advisors may suggest • the default position that privilege over assumptions and reasoning upon which the wording to be included in the report which drafts and privileged communications be- expert’s opinion is based, it is difficult to con- expresses in admissible form an opinion tween experts and lawyers should be pre- ceive how a waiver on the grounds of ‘undue stated by the expert in an inadmissible form’, served, reflects a presumptive respect for risk of adversarial bias’ could arise. Although and ‘advisors may test tentative conclusions the maintenance of privilege; the typically the concept of ‘ethically appropriate’ dealings that the expert has reached and in doing so limited relevance of the manner in which with experts is presently uncertain, it would may cause the expert to reconsider his or her an expert report evolved to the admissi- inevitably be refined and clarified by the ju- opinion’.113 Those principles can arguably be bility and probative value of the report;116 dicial application of this proposed standard.

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Criteria for assessing ‘undue sions might include: that the report does fication could be independently assessed). risk’ of adversarial bias not reflect the expert’s actual opinion in Associated Materials may be relevant to such I respectfully suggest that there are 4 general some material respect; that the report fails to investigations. This conclusion is reinforced categories of factual circumstances which include a material qualification to the stated by the fact that open-textured expert opinion might be relevant to demonstrating an opinion; that the report does not include is inherently more vulnerable to adversarial ‘undue risk of adversarial bias’. reference to all material assumptions and rea- bias: to the extent that the subject matter of soning; that the expert’s opinion has changed the opinion necessitates irreducible ‘judg- Firstly, circumstances supporting a positive during the course of preparing the report ment calls’, it logically follows that there is inference of the possible operation of con- (and the change is not reasonably explicable scope for experts plausibly to justify a range scious or unconscious adversarial bias, which in a manner which reasonably excludes the of different opinions on given assumptions. might include the following: operation of conscious or unconscious ad- This creates greater scope for an expert’s versarial bias);124 that lawyers have engaged opinion to sway in a partisan way. However, • deficiencies in the comprehensive and coin unethical witness preparation practices although this factor could reasonably provide herent statement of the assumptions and (which is addressed below). some support a finding of waiver by reason of reasoning which justify the opinion. This ‘undue risk of adversarial bias’, I suggest that is consistent with the possible operation of Secondly, I suggest it is material to take this factor alone should not be sufficient to adversarial bias, because the need to coher- account of the vulnerability of particular justify waiver. ently justify an opinion (with assumptions categories of expert opinion to adversarial and reasoning) places practical limits on bias. In particular, the risk of adversarial bias Thirdly, evidence of unethical dealings the extent to which opinion can be swayed (and the risk it will compromise fact finding) between the expert and lawyers, which in- (consciously or unconsciously) by adversarial is accentuated when the subject matter of crease the risk of adversarial bias (by directly bias. Although by no means conclusive of the opinion substantially precludes the court or indirectly suggesting to the expert what adversarial bias tainting opinion, the un- from independently evaluating the stated evidence the expert should give). Evidence of tethering of opinion from assumptions and justification for the opinion. As to this: such dealings is likely only to emerge from reasoning circumvents those practical limits, the Court’s inspection of privileged commu- and renders the formulation and articulation • Although the objective of expert evidence is nications, or perhaps also from the cross-ex- of opinion more vulnerable to the operation to ‘furnish the trier of fact with criteria ena- amination of the expert. This obviously begs of conscious and unconscious adversarial bling evaluation of the validity of the expert’s the question of the ethical limits of expert bias. Further, in view of the expert’s duty conclusions’, an expert ‘frequently draws on witness preparation. This is not a matter under the expert codes and the general law119 an entire body of experience which is not which has been considered comprehensively to set out an adequate statement of assump- articulated and, is indeed so fundamental to by the courts, but is addressed in another tions and reasons, and the fact that lawyers his or her professionalism, that it is not able article in this edition of Bar News.126 One are relied on by the courts to ensure experts’ to be articulated’:125 eg, in a medical negli- of the collateral benefits of this overarching fulful that duty,120 the expert’s failure ade- gence case, addressing the point at which a principle, is that it would inevitably lead to quately to set out reasons and assumptions reasonable medical practitioner would have the judicial clarification of the ethical scope reflects that the relationship of privilege has medically intervened in a complex and un- of expert preparation. been compromised, and reasonably weakens usual case. Further, there will be cases where the entitlement to maintain privilege. Cor- the subject matter for expert opinion relates Fourthly, it would be appropriate to have roborating the relevance of this considera- to an very open-textured standard, in respect regard to the materiality of testing the expert tion, it has been recognized that ‘uncertainty of which there is inherently a broad spectrum on the evolution of the expert’s opinion, to or ambiguity or confusion in the body of the of ostensibly reasonable expert judgment: eg, the resolution of the issues in dispute. report’ might weigh in favour of waiver;121 in patent law, whether there is demonstrated It is critical to note that (under my propos- and that it is ‘unlikely’ that waiver would an ‘inventive step’; and the ‘discount rate’ by al) a finding of undue risk of adversarial bias operate in relation Associated Materials if which projected cashflows are discounted does not depend upon a finding of bad faith an expert complies with the expert’s duty to when quantifying damages for a lost business on the part of either the expert or lawyer, set out assumptions and reasoning.122 Deci- opportunity; because adversarial bias may arise without sions discounting the relevance of coherent intent or awareness. It also does not depend reasoning to waiver can be distinguished • In such cases, the report will likely be inca- upon a finding on the balance of probabilities on the grounds that they did not apply the pable of providing an entirely self-sufficient that adversarial bias has in fact operated, let principles under section 122(2).123 This justification for the opinion, which can read- alone operated to corrupt the integrity and consideration of the adequacy of reasoning ily be independently evaluated by the court. probative value of the opinion. It is sufficient and assumptions obviously overlaps with There will remain an irreducible ‘judgment merely that circumstances support an ‘undue tests for admissibility under section 79 of call’ by the expert; risk’ of the operation of adversarial bias on the Evidence Act. However, it is open to the the facts, which warrant further investigation Court to make findings of deficiencies in • To the extent that critical aspects of the and testing through waiver. Indeed, it would the statement of reasoning and assumptions, expert’s reasoning process cannot be fully be very important that judges do not make without addressing or determining whether articulated and exposed, the court is effec- any preliminary finding in an application for the deficiencies are sufficient to render the tively being invited to accept the opinion waiver, which risk causing an apprehension opinion strictly inadmissible. In any event, on the basis that it is proffered by the expert of prejudgment or bias against an expert. No a party might make the strategic decision (rather than because of the court’s independ- such finding is necessary in the application of not to challenge admissibility on grounds ent evaluation of the cogency of the stated this proposed test. of inadequacy of reasoning, but still rely on justification for the opinion). In such cases, deficiencies in reasoning to support waiver. investigations of the factors which might Process of applying for waiver have influenced the formulation of the stated As noted earlier, the courts have been pre- • concessions by the expert in cross-examina- opinion are arguably more relevant to an pared to inspect the Associated Materials tion which are consistent with the possible assessment of the weight of that opinion in assessing whether privilege has been operation of adversarial bias. Such conces- (than would be the case if the stated justi- waived.127

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I suggest that the appropriate process for instruct the expert to identify with 20 British American Tobaco Australia Services Ltd v Cowell (2002) 7 VR 524, per claiming waiver on the ground of undue precision in the expert’s report the aspects Phillips, Bat and Buchanan JJA at 664. risk of adversarial bias might involve 2 steps. of the materials on which the expert did 21 Towney v Minister for Land & Water Conservation for the State of New South Firstly, the applicant for waiver adducing (and did not) rely in the formation of the Wales (1997) 147 ALR 402 (‘Towney’), per Sackville J at 414; quoted with evidence and making submissions in support expert’s opinion. approval Sugden v Sugden (2007) 70 NSWLR 301, at [54]. 22 Hastie Group Ltd (in liq) v Moore [2016] NSWCA 305 (‘Hastie’), per of the demonstrated risk of adversarial bias Beazley & McFarlan JJA, at [42] in the circumstances. Secondly, the Court 5 Until the drafting process is complete, 23 Interchase Corporation Ltd (in liq) v Grosvenot Hill (Queensland) Pty Ltd inspecting the Associated Materials to deter- limit instructions to the expert to the (No1) [1999] 1 Qd R 141 (‘Interchase’), per Thomas J at 160; but compare mine whether they disclose dealings which preparation of draft reports only, and Re Forsyth; Re Cordova v Philips Roxane Laboratories Inc [1984] 2 NSWLR (together with all other circumstances) instruct the expert to prepare the draft 327, at 334-7 . support a finding that there is sufficient risk reports for the exclusive purpose of 24 Interchase, ibid, per Thomas J at 161-2. of adversarial bias to warrant waiver for the provision to the lawyers for review. Instruct 25 Abbey National Mortgages Plc v Key Surveyors Nationwide Limited and Others purpose of allowing the applicant for waiver the expert to prepare working notes for [1996] 3 All ER 184; see also Fox v Percy (2003) 214 CLR 118, per Callinan to test for the presence and effect of adver- the exclusive purpose of facilitating the J at [151] sarial bias. preparation of such drafts. 26 NSW Law Reform Commission, Report 109, ‘Expert Witnesses’, page 70 Any application for waiver would obvi- 27 ASIC v Rich [2005] NSWCA 152, at [136]; see also at [167] 28 ASIC v Rich, supra fn 27, at [167], [170] ously be potentially assisted by the Court 6 Instruct the expert on the basis that 29 That principle has been applied to justify waiver of all associated materials trawling through the Associated Materials, all communications with the lawyers, relating to an expert report: Rhiannon Rigby v Shellharbour City Council & for signs of inappropriate dealings with working notes and draft reports, are to be Anor [2003] NSWSC 906, at [11]-[12]; Westgem Investments Pty Ltd v CBA lawyers. However, I respectfully suggest that kept confidential. [No 2] [2018] WASC 71. at [25]; Roads Corporation v Love [2010] VSC the Court should only do so, if the applicant 253 Vickery J (‘Love’), at [26]; see also Clough v Tameside and Glossop Health for waiver has satisfied the Court that there 7 Advise the expert that all internal working Authority [1998] 2 All ER 971 (‘Clough’) are otherwise sufficient circumstances to documents may be exposed to waiver, and 30 Roads Corporation v Love, supra fn 29, [26]; see also Clough support the positive inference that the report that the expert should therefore confine 31 AWB, supra fn 15, at [164] is possibly tainted by adversarial bias. This is the generation of such documents to those 32 ibid consistent with the court’s recognition that which are reasonably necessary for the 33 Interchase, supra, fn 23, per Thomas J at 161-2. a party has no right to require the Court preparation of the draft reports. 34 Linter Group Ltd v Price Waterhouse (a firm) [1999] VSC 245 (‘Linter’), New Cap Reinsurance Corporation Ltd (in liq) v Renaissance Reinsurance to inspect documents to support a privilege [16]; Ltd [2007] NSWSC 258 (‘Newcap’), [52]. claim, in circumstances where the party has 8 Do not advise the expert to destroy 35 NJ Williams, (1980) 58 Canadian Bar Review 1; quoted with approval in not itself adduced appropriate evidence to internal working documents (or acquiesce Southern Equities Corporation v West Australian Government Holdings Ltd 128 support that claim. in such conduct). Destruction might be (1993) 10 WAR 1, per the Full Court at 21; see also Mendelow, ‘Expert contempt of a discovery obligations, and Evidence: Legal Professional Privilege and Experts’ Reports’ (2001) 75 ALJR Strategies any involvement by lawyers in that process 258, at 271. might constitute professional misconduct. 36 Cole v Dyer and the Nominal Defendant [1999] SASC 272 (‘Cole’), at [56]. Experts should be engaged on the assumption At the very least, destruction may give rise 37 See Woolf, ‘Access to Justice – Final Report’ (1996), [31], where the Lord that privilege may be waived in relation to all to an adverse inference.129 Chancellor cited this matter as weighing against the waiver of privilege in Associated Materials. The following strategies drafts. maximise the scope of privilege, and may min- I am interested in exploring this topic fur- 38 Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705, at [79]; quoted ASIC v Rich imise the prospect (and prejudicial impact) of ther, and welcome comments.130 with approval in , supra fn 27, at [106] 39 ASIC v Rich, supra fn 27, at [92], [134]-[136] waiver. 40 ASIC v Rich, supra fn 27, at [136] 41 ASIC v Rich, supra fn 27 at [136]; see also at [167] 1 Ensure the witness complied fully with END NOTES 42 see ASIC v Rich, supra fn 27, at [170] the Expert Code, including in relation to 43 Roach & Ors v Page & Ors (No 17) [2003] NSWSC 973, at [7]-[11]. 1 Hugh Stowe, “Preparing expert witnesses – a search for ethical boundaries”, statement of assumptions and material 44 Cole, supra fn 36 Bar News, Summer 2006/7, page 44 facts on which opinion is based, the 45 Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543, at 2 Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49; [11] comprehensive and coherent statement of Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86 (‘Rio Tinto’), per 46 This question is not examined in this article. reasons for the expert’s opinion. the Court at 43. 47 See text at footnote 18. 3 Tavcol Pty Ltd v Valbeet Pty Ltd [2016] NSWSC 1002 48 ML Ubase Holdings Co Ltd v Trigem Computer Inc (2007) 69 NSWLR 577 2 Ensure that instructions (in the sense of 4 ibid (‘ML Ubase’), per Brereton J at [25] directions as to the required scope and 5 eg, Morony v Reschke [2014] NSWSC 359, per Black J at [45] 49 at [21]. 6 Esso, supra fn 1, at [35]. substance of the report and assumptions) 50 Federal Court: eg, TJ (on behalf of Yindjibarndi People) v State of Western Grant v Downs are not recorded in the same document 7 (1976) 135 CLR 674, at 682. Australia (No 4) [2016] FCA 231, at [18]; Clifford v Vegas Enterprises Pty Ltd which also records other forms of prima 8 See discussion in Desiatnik, ‘Legal Professional Privilege in Australia’ (2005), (No 3) [2010] FCA 287 at [8]; IO Group Inc v Prestige Club Australasia Pty facie privileged communications to the at 24 Ltd (No 2) [2008] FCA 1237 (‘IO Group’), at [8]; Temwell Pty ltd v DKGR expert, over which the lawyer wants to 9 See text at fn 3. Holdings Pty Ltd (in liq) (No 7) [2003] FCA 985, at [3]; AWB, supra fn 15 retain privilege. 10 Waterford v Commonwealth (1987) 163 CLR 54, at 65. [168]; New South Wales: Baron v Gilmore [2018] NSWSC 439, at [7]; Shoal 11 A-G for the Northern Territory v Maurice (1986) 161 CLR 475 (‘Maurice’), Bay Developments Pty Ltd v Port Stephens Council [2018] NSWSC 286, per 3 Where reasonably possible, avoid at 488, 490. Parker J at [13]; Traderight (NSW) Pty Ltd v Bank of Queensland Ltd (No 14) briefing an expert with privileged source 12 Desiatnik, supra fn 6, at 131. [2013] NSWSC 211 (‘Traderight’), per Ball J at [15]; Gate Gourmet 13 Goldberg v Ng (1994) 33 NSWLR 639, per Clarke JA at 670. materials (such as draft statements). In the Australia Pty Ltd (in liq) v Gate Gourmet Holding AG [2004] NSWSC 768, 14 Mann v Carnell (1999) 201 CLR 1, per Gleeson CJ, Gaudron, Gummow alternative, brief the expert with explicit [28]; R v Ronen & Ors [2004] NSWSC 1305, at [18]; Thomas v State of New and CallinanJJ at [29]. South Wales [2006] NSWSC 380, [16] (‘Thomas’) assumptions upon which the report is to 15 AWB v Cole [2006] FCA 1234 (‘AWB’), per Young J, at [132]. 51 Traderight, supra, fn 50, [15] be based, and instruct the expert to base 16 Goldberg v Ng (1995) 185 CLR 83 (‘Goldberg’), at 120-121. 52 Shea v TruEnergy Services Pty Ltd (No 5) [2013] FCA 937 (‘Shea’); his opinion on those assumptions. 17 Osland v Secretary, Department of Justice (2008) 234 CLR 2 (‘Osland’), at Traderight, supra fn 50, at [15] [45]; Goldberg, ibid, at 96. 53 Interchase, supra fn 22, at 162, 156; Temwell, supra fn 43, at [10]; Rhiannon, 4 If privileged source materials have 18 Maurice, supra fn 11, per Gibbs CJ at 481 supra fn 29, [11]; Ryder v Frohlich [2005] NSWSC 1342, [12]; IO Group, nevertheless been provided to the expert, 19 Rio Tinto, supra fn 2, at [52] supra fn 50, at [12] (drafts).

70 [2018] (Spring) Bar News The Journal of the NSW Bar Association SPECIAL EDITION - EXPERT EVIDENCE

54 Interchase, supra fn 23, at 152; Tavcol, supra fn 3, [17]; Optiver Australia Pty 1194, [9] 101 Mackinnon v BHP Steel (Ais) Pty Ltd and Anor [2004] NSWSC 1027, [18]; Ltd v Tibra Trading Pty Ltd (No 5) [2012] FCA 1226 (‘Optiver No 5’), per 78 D’Apice, supra fn 70, [24] Sevic v Roarty (1998) 44 NSWLR 287, per Powell JA at 308 Rares J; IO Group, supra fn 50, at [12]. 79 New Cap, [53] 102 Gillies, supra fn 66 55 New Cap, supra fn 34, at [22] 80 Limit (No 3) Ltd v Ace Insurance Ltd (No 3) [2009] NSWSC 1061, per Rein 103 Goldberg v Ng & Ors (1995) 185 CLR 83, per Toohey J at 109-110. 56 New Cap, supra fn 34, at [22]; Pratt Holdings Pty Ltd v Commissioner of J; see also New Cap, supra fn 34, [53] 104 Prince Removal & Storage Pty Ltd v Roads Corporation [2012] VSC 245, per Taxation [2004] FCAFC 122 (‘Pratt’), at [19]; Optiver No 5, supra fn 54, 81 ML Ubase, supra fn 48, [45] Emerton J [13]; Shea, supra fn 52, at [31] 82 Evidence Act, section 126; British American Tobacco, supra fn 20, [121], 105 Gillies, supra fn 66, [46] Pratt DSE 57 , supra fn 56, [19] (in an analogous but slightly different context); 83 DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384 (‘ ’), at [61]; 106 Gillies supra fn 66, [46 Optiver No 5, supra fn 54, [10-[11]; Optiver Australia Pty Ltd v Tibra Trading quoted with approval in Hastie, supra fn 22,at [49] 107 Gillies, supra fn 66, [44]-[47]; Kentish Council, supra fn 67, [51] Pty Ltd (No 6) [2012] FCA 1503 (‘Optiver No 6’), at [8]-[10]; Bristol-Myers 84 Kentish Council, supra fn 67,[55]-57] 108 DSE, supra fn 83, [61]; quoted with approval in Hastie, supra fn 22, [49]. Squibb Co v Apotex Pty Ltd (No 3) [2012] FCA 1310 (‘Bristol- Myers 85 ML Ubase, supra fn 48, [47] 109 This is consistent with the prevailing view of the scope of section 126, see Squibb’), per Yates J at [25] 86 Gillies, supra fn 66, [61] fn 68. It is also consistent with implied waiver under the general law and 58 Propend, supra fn 35, 569; Pratt, supra fn 56, [20], [88]-[89]; AWB, supra fn 87 Thomas, supra fn 50, [17]; quoted with approval in New Cap, at [49]. section 122(2): eg, British American Tobaco, supra fn 20, 664 15, [46]; R v P (2001) 53 NSWLR 664, [49]. However, there is some tension with Newcap, at [53] 110 see text at fn 67 above. 59 Australian Securities & Investments Commission v Southcorp Ltd [2003] FCA 88 Cole, supra fn 36, [57]; Lampson & 2 Ors v McKendry & Anor [2001] 804 (‘Southcorp’), per Lindgren J at [31] NSWSC 373, [35]; Mackinnon v BHP Steel (Ais) P/L and Anor [2004] 111 see text at fn 68 above. 60 New Cap, supra fn 34, [20] NSWSC 459, [24]; Mackinnon v BHP Steel (Ais) Pty Ltd and Anor [2004] 112 NSW Law Reform Commission, Report 109, ‘Expert Witnesses’, page 70 61 New Cap, supra fn 34, [20], [30,[34]; Shea, supra fn 52, [46] NSWSC 1027, [20]. 113 Traderight, supra fn 50, at [23] 62 Anthony John Michael Perish v R [2015] NSWCCA 98, at [40]-[52]; Morony, 89 Towney, supra fn 21, 414; quoted with approval in Director-General, 114 Watkins v State of Queensland [2007] QCA 430, per Keane JA at [57], and supra fn 5, at [36]-[55]; Maurice, supre fn 11, at 480 Department of Community Services v D [2006] NSWSC 827, [34]; see also [55]; see also Kentish Council v Bellenjuc Pty Ltd [2011] TASSC 58. at [25], 63 New Cap, supra fn 34, at [30] Karen Ann Baulch v Lyndoch Warrnambool [2008] VSC 421, at [11]. [55]; see also Maurice, supra fn 11, at 488; Interchase, supra fn 50, 160; 64 New Cap, supra fn 34, at [35] 90 Henderson v Low [2000] QSC 417, [16], Bryce v Anderson and Anor [2005] D’Apice, supra fn 70, [25] 65 [2007] NSWSC 258, at [53] QSC 216, [8]-[13]; Minister for Finance v C & I Rogers Pty Ltd [2004] VSC 115 Traderight, supra fn 50, [23] 66 New Cap, supra fn 34, at [53]. This decision has been widely approved: eg, 370, [9] 116 see text at fn 42 R v Ian Robert Turnbull (No 3) [2016] NSWSC 686, per Johnson J at [41]; 91 AWB, supra fn 15, [164] 117 see text at fn 36 Traderight, supra fn 50; Gillies v Downer EDI Ltd [2010] NSWSC 1323 92 Shoal Bay Developments Pty Ltd v Port Stephens Council [2018] NSWSC 286, 118 Stowe, ‘Preparing expert witnesses – a (continuing) search for ethical (‘Gillies’), at [49]; Shea, supra fn 52, [60] per Parker J at [36]; Southcorp at [21] boundaries’ 67 Kentish Council v Bellenjuc Pty Ltd [2011] TASSC 58 (‘Kentish Council’), at 93 Southcorp, supra fn 59 [17]. 119 In the Matter of Idylic Solutions Pty Ltd and Ors — Australian Securities and [36] 94 Spassked Pty Ltd v Commissioner of Taxation (No 4) [2002] FCA 491, at [21] Investments Commission v Hobbs [2012] NSWSC 73, at [37]-[38] ML Ubase 68 , supra fn 48, at [45] 95 Sprayworx, supra fn 71 [49]; D’Apice, supra fn 70, [25]; Ingot Capital v 120 Traderight, supra fn 50, [23] 69 New Cap, supra fn 34, [53] Macquarie Equity [2008] NSWSC 25, per Campbell J at [34]; New Cap, 121 Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 7) 70 D’Apice v Gutkovich — Estate of Abraham (No 1) [2010] NSWSC 1336 supra fn 34 at [51]; R v Ronen & Ors [2004] NSWSC 1305, per Whealy J at [2008] FCA 323, per Heerey J, at [7] (‘D’Apice’), per White J, at [24 [63] 122 Kentish Council, supra fn 67, at [39] 71 By implication, New Cap, supra fn 34, at [53]; Sprayworx Pty Ltd v Homag 96 New Cap, supra fn 34, [51] 123 ML Ubase, supra fn 48, at [47] Pty Ltd [2014] NSWSC 833 (‘Sprayworx’), [43]-[51] 97 Traderight, supra fn 50, at [23] 124 eg, Cobram Laundry Services Pty Ltd v Murray Goulburn Cooperative Co 72 Traderight, supra fn 50, [23] 98 Director-General, Department of Community Services v D, supra fn 89 at [32] Ltd [2000] VSC 353, [58]. However, the mere fact of change of opinion 73 Traderight, supra fn 50, [23]; Shea, supra fn 52, [52] 99 Cole, supra fn 36, [56]; Mackinnon, supra fn 37, [18]; Sevic v Roarty, supra fn 74 Traderight, supra fn 50, [23] 50, 308; New Cap Reinsurance Corp Ltd (In Liq) v G S Christensen and Ors does not support a waiver: Melrose Cranes and Rigging Pty Ltd v Manitowoc 75 Linter Group, supra fn 34, [16]; Filipowski v Island Maritime Ltd & Anor [2008] NSWSC 93, per Hamilton J at [15] (no waiver before tender, not Crane Group Australia Pty Ltd [2012] NSWSC 904, per Campbell J at [50 [2002] NSWLEC 177, [23]; ASIC v Vines [2003] NSWSC 1005, [15]; addressing whether waiver after tender); Protec Pacific Pty Ltd v Brian Cherry 125 ASIC v Rich, supra fn 27, at [170] Ray Fitzpatrick Pty Ltd (In Members Voluntary Liquidation) v Minister for [2008] VSC 76, at [56] (no waiver before tender, but leaving open the 126 Stowe, supra, fn 118 Planning [2007] NSWLEC 833, at [11];. question of waiver after tender). 127 see text at fn 95. 76 D’Apice, supra fn 70, [24]; Limit (No 3) Ltd v Ace Insurance Ltd (No 3) 100 Buzzle Operations v Apple Computer Australia (2009) 74 NSWLR 469 128 Hancock v Rinehart (Privilege) [2016] NSWSC 12, per Brereton J at [6] [2009] NSWSC 1061, per Rein J at ; New Cap, at [53] per White J at [30] (and the cases there referred to); but compare Liberty 129 Eg, British American Tobacco, supra fn 20, [173]-[175] 77 In Collins Debden Pty Ltd v Cumberland Stationery Co Pty Ltd [2005] FCA Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3 130 [email protected]

The Journal of the NSW Bar Association [2018] (Spring) Bar News 71 SPECIAL EDITION - EXPERT EVIDENCE

‘Preparing expert witnesses – a (continuing) search for ethical boundaries’

By Hugh Stowe, 5 Wentworth

‘Even though witness preparation occurs in sional rules, academic writing, and practice.3 offered with an acknowledgment that they practically every lawsuit, it is almost never Not much has changed. are unquestionably contestable, and with taught in law school, not directly regulated, Expert witness preparation remains a a (continuing) hope of triggering further seldom discussed in scholarly literature, source of ethical angst for many lawyers. debate. That debate is (still) needed. As noted and rarely litigated. Witness preparation is The exhortation to act ethically with respect in the original article, there is a stunning di- treated as one of the dark secrets of the legal to witness preparation merely begs the vergence in both practice and attitudes with profession. The resulting lack of rules, guide- question as to the nature of the ethical duty. respect to the limits of lawyer involvement lines, and scholarship has created significant This article does not purport to provide an in the preparation of expert evidence. This uncertainty about the permissible types and authoritative statement of the ethical bound- subject matter remains too important to be methods of witness preparation.1’ aries of expert witness preparation. Like its left in its state of ethical uncertainty. That was the opening paragraph of my predecessor, the ambitions of this article are For the purpose of this article, ‘witness article published in Bar News 10 years ago.2 limited to highlighting issues, and raising preparation’ is used neutrally to mean ‘any This present article reviews the developments tentative suggestions, most of which remain communication between a lawyer and a since then, with respect to case-law, profes- the same 10 years later. Those suggestions are prospective witness - … that is intended to

72 [2018] (Spring) Bar News The Journal of the NSW Bar Association SPECIAL EDITION - EXPERT EVIDENCE improve the substance or presentation of the preparation of a party’s expert evidence, be communicated by the barrister, will be testimony to be offered at a trial or other barristers potentially have the capacity great- absorbed by the expert, and may influence hearing.4’ ly to assist in the development and testing of the expert’s stated opinion. Those processes lines of expert inquiry, and the identification of communication, absorption and influence Inherent importance of of error. The question is: should they be ethi- may be entirely unintended on both sides. witness preparation cally permitted to exercise that capacity. Regardless of intention, the signals may generate ‘subtle pressures to join the team – to Under Regulation 35 of the Uniform Con- shade one’s views, to conceal doubt, to over- duct (Barristers) Rules: ‘A barrister must pro- Witness preparation is an state nuance, to downplay weak aspects of 11 mote and protect fearlessly and by all proper integral aspect of the partisan the case that one has been hired to bolster’. and lawful means the client’s best interests to The difficulty of detection of adversarial the best of the barrister’s skill and diligence’. case development upon which bias exacerbates the insidious nature of the Consultation with (and preparation of) problem. experts is an important part of the discharge adversarial justice depends, However, there are a number of consid- of that ethical duty. It may be necessary erations which limit the likely extent that to test whether the expert has appropriate because at least some degree of witness preparation of experts will contribute expertise; to ensure that any expressed opin- to adversarial bias. Firstly, pursuant to the ion is within the scope of that expertise; to witness preparation is “essential Makita rules for the admissibility of expert ensure that the assumptions upon which any evidence12, an expert is required to set out opinion is based are appropriate; to exclude to a coherent and reasonably the assumptions and reasoning process upon irrelevant material from a report; to ensure accurate factual presentation”. which the opinion is based. Consequently, that the opinion is expressed in admissible an expert cannot be swayed by suggestion form; to test the soundness of the reasoning beyond a position which can be coherently process upon which an opinion is based; to Inherent dangers of witness preparation justified. Secondly, the introduction of the test whether any unfavourable expressions of expert codes into court rules unquestionably opinion are reasonably grounded; to facilitate ‘For whatever reason, and whether conscious- counteracts the process of adversarial bias, by the persuasive articulation and presentation ly or unconsciously, the fact is that expert emphasising the expert’s duty of neutrality. of opinion evidence in support of a party’s witnesses instructed on behalf of parties to For example, section 2 of the Supreme Court case; to understand fully the expert issues, litigation often tend … to espouse the cause expert code mandates: ‘an expert witness is for the purpose of cross-examination of op- of those instructing them to a greater or lesser not an advocate for a party and has a para- ponents’ experts, re-examination the party’s extent’.8 mount duty, overriding any duty to the party expert, and submission; to limit the likeli- That is a reflection of ‘adversarial bias’: ie, a to the proceedings or other person retaining hood that cross-examination will unfairly ‘bias that stems from the fact that the expert the expert witness, to assist the court impar- diminish the probative force of the expert is giving evidence for one party to the liti- tially on matters relevant to the area of exper- testimony; to assess the court’s likely percep- gation’.9 That bias may arise from ‘selection tise of the witness’. Thirdly, the detachment tion of the strength of the expert evidence, bias’ (being the phenomenon that a party will of experts from the potentially corrupting in light of the personal presentation and only present an expert whose opinions are partisan clutches of their instructing lawyers demeanour of the witness; and to assess the advantageous to the party’s case), ‘deliberate is reinforced by the exclusion of lawyers from prospects of success in light of the strength of partisanship’ (where an expert deliberately the conclave and joint report process. Fourth- the expert evidence. tailors evidence to support the client), or ly, the inevitability of cross-examination, The ethical importance of witness prepa- ‘unconscious partisanship’ (where an expert the possibility of adverse judicial comment, ration is reinforced by a consideration of the and (perhaps most significantly) collegiate adversarial nature of our justice system. In judgment in the context of conclaves and an adversarial system it is presupposed ‘that There is a fundamental ethical concurrent evidence all further constrain the truth will best be found by the clash an expert from deviating beyond that which of two or more versions of reality before a tension in this area. Witness can be reasonably justified. There is a general neutral tribunal’.5 ‘The very foundation of recognition that the prevalence of partisan- the adversarial process is the belief that the preparation is both an essential ship has substantially reduced in the era of presence of partisan lawyers will sharpen the conclaves and concurrent evidence presentation of the issues for judicial reso- tool for the elucidation of truth in 6 lution.’ Witness preparation is an integral an adversarial system, but also a Tension between conflicting aspect of the partisan case development upon policy objectives which adversarial justice depends, because possible tool of truth’s distortion. at least some degree of witness preparation There is a fundamental ethical tension in is ‘essential to a coherent and reasonably this area. Witness preparation is both an accurate factual presentation’.7 The modern unintentionally moulds his or her opinion to essential tool for the elucidation of truth in embrace of concurrent expert evidence does fit the case). The NSW Law Reform Com- an adversarial system, but also a possible tool not change that. mission recently observed that: ‘Although it of truth’s distortion. ‘Witness preparation Barristers should not be shy about their is not possible to quantify the extent of the presents lawyers with difficult ethical prob- potential significance in facilitating the problem, in the Commission’s view it is safe lems because it straddles the deeper tension formulation of sound expert opinion, even to conclude that adversarial bias is a signifi- within the adversary system between truth with respect to the substance of that opinion. cant problem’.10 seeking and partisan representation’13. It is While barristers my lack subject matter ex- Aspects of witness preparation unquestion- an acute example of the fundamental tension pertise, they potentially bring to the prepara- ably have the capacity to facilitate ‘deliberate generally underlying professional regulation tion of expert evidence both analytical rigour partisanship’ and exacerbate the insidious of barristers: ‘barristers owe their paramount and experience in the efficient absorption process of ‘unconscious partisanship’. Signals duty to the administration of justice’;14 but and application of complex information. In as to what opinion would assist the case will a barrister must also ‘promote and protect

The Journal of the NSW Bar Association [2018] (Spring) Bar News 73 SPECIAL EDITION - EXPERT EVIDENCE fearlessly and by all proper and lawful means it extend to the implicit and indirect mes- of degree, and is dependent on the facts’.18 the client’s best interests’.15 sage that is thereby conveyed? Secondly, that construction facilitates the Ideally, any framework for defining the explicit articulation and balancing of the ethical boundaries in expert witness prepa- • What constitutes ‘questioning and testing’ competing policy considerations underlying ration should: under Regulation 70. ‘Testing’ semantical- witness preparation, which is inherent in the ly covers a vast spectrum of conduct, from notion of ‘undue risk’. On that construction, • reflect (and balance) the tension between gentle and open-ended queries, to aggres- the safe harbour of ‘testing’ in Regulation the possibly conflicting objectives of facil- sive challenge, to raising and advocating 70 should be construed so as not to permit itating the presentation of advantageous contrary propositions; conduct which would constitute ‘coaching’ opinion evidence, and preventing the under Regulation 69. corruption of opinion evidence through • What is meant by ‘encourage’ the witness The advantage of that construction is that adversarial bias; and ‘to give evidence different from the evi- it permits flexibility, and an explicit consider- dence the witness believes to be true’ under ation of policy considerations relevant to the • embody sufficient certainty to provide Regulation 70. Is ‘encouragement’ assessed proscription of conduct. The disadvantage practical guidance; and by reference to the objective meaning of is that it reduces the capacity of the rules to the words, the barrister’s subjective inten- provide firm guidance. • retain sufficient flexibility to reflect the tion, or the objective effect on the witness? I suggest that the assessment of ‘undue risk’ reality that the ‘ethical balance’ in this area If the barrister successfully ‘encourages’ requires a balance between the conflicting will be crucially context-sensitive. the expert to change their genuine view, policy objectives referred to above. Factors does it follow that the barrister’s conduct relevant to that balance might include: Legal Profession Uniform Conduct logically falls outside the prohibition of (Barristers) Rules 2015 encouraging the witness to give evidence 1. The inherent capacity of the conduct ‘different from the evidence which the to facilitate the formulation and Regulation 69 now provides: ‘A barrister witness believes to be true’? presentation of expert opinion must not: (a) advise or suggest to a witness that advantageous to the party’s case; false or misleading evidence should be given These uncertainties reflect a failing of the nor condone another person doing so, or (b) rules effectively to grapple with the insidious 2. The inherent capacity of the conduct coach a witness by advising what answers the risk of unconscious adversarial bias (through to corrupt expert opinion through the witness should give to questions which might which conduct might cause the expert un- operation of adversarial bias; be asked’. wittingly to mould the expert’s opinion to a Regulation 70 provides: ‘A barrister does party’s partisan cause, without intention on 3. Theextent to which the legitimate not breach rule 69 by expressing a general either side); and to balance that risk against objectives of facilitating the formulation admonition to tell the truth, or by question- the legitimate interest in witness preparation. and presentation of advantageous ing and testing in conference the version of Although a large range of meaning is open opinion can be achieved through evidence to be given by a prospective witness, on the wording of the regulations, it is pos- strategies with less inherent capacity to including drawing the witness’s attention sibly to construe them in a manner which corrupt expert opinion; to inconsistencies or other difficulties with the prohibits conduct which creates an undue evidence, but must not encourage the witness risk of adversarial bias. 4. Specific contextual considerations to give evidence different from the evidence I suggest that the words in Regulation 69 relevant to the extent of the risk which the witness believes to be true. ‘coach a witness by advising what answers of corruption of opinion through The regulations appear (on first blush) to the witness should give to questions which adversarial bias. These may include: create substantial latitude in witness prepara- might be asked’, should be construed as tion, in that there is a ‘safe harbour’ for wit- conduct which (expressly or by implication) • The experience and stature of the ness preparation in relation to ‘questioning conveys the ‘answers the witness should give’ expert, within the expert’s discipline and testing’ a version of evidence in confer- in a manner which creates an undue risk that and relative to the barrister;19 ence (including drawing witness’s attention evidence will be corrupted by adversarial to ‘inconsistencies or other difficulties’), bias. The following considerations support • Whether the course of dealing with subject only to the proviso that the barrister that construction. ‘Advise’ is sufficiently the expert has demonstrated a will- does not ‘encourage the witness to give evi- broad to be construed as communications ingness or tendency of the expert to dence different from the evidence which the which convey (both expressly but also by be unduly swayed by suggestion; witness believes to be true’. implication) the ‘answers the witness should But the rules are somewhat confusingly give’. ‘Coach’ is sufficiently broad to be con- • Whether the subject matter of the structured, providing a general prohibition strued as conduct which objectively creates opinion is one in which there is in Regulation 69, a safe harbour from that an undue risk that evidence will be corrupted significant scope for open-textured prohibition in Regulation 70 (‘questioning by adversarial bias, regardless of whether ‘judgment calls’, such that modified and testing’), and a qualification to the safe there was a deliberate intention to suggest to opinions can be plausibly rationalised; harbour (but ‘must not encourage’ etc); and the expert ‘what answers the witness should the regulations use a series of ambiguous give’. That construction is supported by the • The nature and extent of any incen- expressions (‘suggest’, ‘coach’, ‘test’, ‘en- following considerations. Firstly, the expres- tives for the expert positively to assist courage’) without articulating overarching sion ‘coaching’ is used to describe conduct the instructing party.20 principles which facilitate the resolution of which causes the risk of deliberate or unwit- those ambiguities. Some of uncertainties are: ting contamination of evidence such that the The caselaw. evidence of the witness ‘may no longer be • What is meant by ‘coach a witness by their own’;16 and is assessed by reference to A 2013 article in Bar News by Garth Blake advising what answers the witness should the impact on the witness and not merely by SC and Phillippe Doyle Gray provided give’ under Regulation 70? Is ‘advising’ the subjective intention of the ‘coach’;17 and a comprehensive and valuable summary limited to explicit communication, or does is recognised as being ‘inevitably a matter of caselaw relating to the ethical limits of

74 [2018] (Spring) Bar News The Journal of the NSW Bar Association SPECIAL EDITION - EXPERT EVIDENCE witness preparation.21 The learned authors advance, and which particular method of the subject matter in question was possibly perform a heroic task of seeking to extract a valuation might be more likely to appeal to properly characterised as a matter of law. coherent body of principles from the caselaw. a tribunal or court, so long as no attempt In those circumstances, it is not clear that However, there are starkly inconsistent lines is made to invite the expert to distort or Callinan J’s statement can be generalised of authority (as the authors identify), there is misstate facts or give other than honest into a broad principle that counsel can no Supreme Court of NSW authority pro- opinions’: [279]. The context of that obser- make suggestions as to the substance of viding comprehensive binding guidance,22 vation was proceedings in which a barrister any expert opinion, subject only to the the only High Court authority comprises was accused of negligence, with respect to proviso that ‘no attempt is made to invite an obiter dicta by a single justice (Callinan the alleged failure to advance a particular the expert to….give other than honest J), and there is no other judicial statement valuation methodology on behalf of the opinion’. In any event, this was an obiter which purports to provide a comprehensive party in a resumption compensation case, judgment by a single judge; statement of the principles regulating the eth- in circumstances where the party’s own ical limits preparation of expert reports. The valuers had not advanced that methodol- • I respectfully suggest that the other au- authors of that article provide the following ogy. The High Court unanimously upheld thorities apparently relied upon in support summary of what they endorse and justify as the appeal, thereby dismissing the negli- of the broad principle in paragraph (d) the preferred ‘Federal line of authority’:23 authorising ‘suggestion’ as to the substance of expert opinion, in fact weigh against the (a) Counsel may and should identify and principle. In Harrington-Smith,25 Lindgren direct the expert witness to the real J held ‘Lawyers should be involved in the issues. In the absence of a settled position writing of reports by experts: not, of course, in relation to the substances of the reports’ [19], (b) Counsel may and should suggest to the in the caselaw concerning the and referred to the distinction between expert witness that an opinion does not ethical involvement of counsel ‘permissible guidance as to form and as address the real issues when counsel to the requirements of ss 56 and 79 of the holds that view. in relation to the substance Evidence Act on the one hand, and imper- missible influence as to the content of a report (c) Counsel may and should, when counsel (as opposed to the form and on the other hand’: [27]. In Doogan,26 the holds the view, suggest to the expert Full Court of the ACT held that ‘the mere witness that an opinion does not articulation of reasoning) of expert fact that some editing’ of the expert reports adequately: (1) illuminate the reasoning ‘does not demonstrate any impropriety’ leading to the opinion arrived at, or (2) opinion, we are thrown back to because legal representatives had ‘the distinguish between the assumed facts the (uncertain) Uniform Conduct duty to ensure that the reports conveyed on which an opinion is based and the the author’s opinions in a comprehensible opinion itself, or (3) explain how the (Barristers) Rules, and left to manner, that the basis for those opinions opinion proffered is one substantially was properly disclosed and that irrelevant based on his specialised knowledge. ponder what the rules should be. matters were excluded’: [119]. However, in finding no impropriety, the Court noted (d) Counsel may suggest to the witness that that ‘It has not been established that any his opinion is either wrong or deficient of the lawyers… sought to change passages in in some way, with a view to the witness gence claim. Callinan J held that the Full the reports conveying relevant opinions or changing his opinion, provided that Federal Court had ‘failed to recognise the information’: [119]. The other cases merely such suggestion stems from counsel’s different roles of the valuers and [counsel] affirmedHarrington-Smith .27 view after an analysis of the facts and law and treated [counsel] as if they were almost and is in furtherance of counsel’s duty exclusively or exclusively the final arbiters • since the 2013 article, a Full Court of to the proper administration of justice, of the way in which the property should the Industrial Court of NSW noted with and not merely a desire to change an be valued’: [279]. Callinan J noted that approval the article and its summary of unfavourable opinion into a favourable ‘valuation practice…cannot be an exact principles,28 but the ultimate statements opinion. science’ [277] and ‘questions of law, fact of principle endorsed in that case did and opinion do not always readily and not expressly endorse a general liberty to (e) Counsel may alter the format of an expert neatly divide themselves into discrete make suggestions as to the substance of report so as to make it comprehensible, matters in valuation cases and practice’: expert opinion.29 Justice Davies has also legible, and so as to comply with UCPR [276]. Notwithstanding His Honour’s provided obiter support for the article 4.3 and 4.7. finding that ‘the lawyers are not a valuer’s and its summary.30 Justice Ball has also or indeed any experts’ keepers’ [279], and recognised that ‘advisors may test tentative I respectfully agree with that crisp summary, that counsel were not responsible for the conclusions that the expert has reached except for paragraph (d). As to paragraph (d): valuation methodology adopted in the and in doing so may cause the expert to case, Callinan J nonetheless did observe reconsider his or her opinion’.31 However, • the first decision cited in support of that that counsel has a ‘proper role to perform’ the limited judicial commentary on expert principle is the judgment of Callinan J in suggesting ‘which particular method of witness preparation is typically hostile to Boland v Yates Property Corporation,24 in valuation might be more likely to appeal any influence by counsel in relation to the which His Honour stated: ‘I do not doubt to a tribunal’. substance of expert opinion.32 that counsel and solicitors have a proper role to perform in advising or suggesting, • His Honour was there dealing with a In the circumstances, I respectfully submit not only which legal principles apply, but particular issue (valuation methodology) that the case-law does not support the broad also that a different form of expression in respect of which His Honour observed principle that it is ethically permissible for might appropriately or more accurately that ‘questions of law, fact and opinion’ do barristers to suggest to the expert that ‘his state the propositions that the expert would not neatly divide themselves, implying that opinion is either wrong or deficient’, merely

The Journal of the NSW Bar Association [2018] (Spring) Bar News 75 SPECIAL EDITION - EXPERT EVIDENCE because that view stems from the barrister’s for each party to arm itself with what might consulting with the expert in relation to the genuine view. In the absence of a settled be described as litigation support expert formulation of instructions. However, such position in the caselaw concerning the eth- evidence’ to provide assistance in ‘analysing consultation is in the nature of ‘expert assis- ical involvement of counsel in relation to and preparing the case and in marshalling tance’, and is subject to the strategic dangers the substance (as opposed to the form and and formulating arguments’.35 ‘That is the described above. articulation of reasoning) of expert opinion, legitimate, accepted and well known role of Preparation without formal instruc- we are thrown back to the (uncertain) Uni- expert assistance for a party preparing and tions. Occasionally experts are not formally form Conduct (Barristers) Rules, and left to running a case’.36 instructed until the report is being finalised. ponder what the rules should be. By contrast, ‘expert evidence in which a This creates no ethical difficulty. However, relevant opinion is given to the Court draw- the deferral of formal instructions will in- The strategic dimension ing on a witness’ relevant expertise is quite crease the prospect of privilege being waived another thing’.37 in relation to communications between the Strategic considerations may overlay ethical The better view is that there is no ethical lawyers and the expert. This is because the considerations when considering the appro- problem in using the same expert to provide absence of instructions during the period of priate limits of expert witness preparation. both ‘assistance’ and ‘advice’, ‘as long as that preparation of the report raises the question Notwithstanding that particular strategies person and the legal advisers understand and as to the basis upon which the report was of witness preparation might satisfy a theo- recognise the difference between the two prepared, and supports a waiver of privilege retical test for ethical propriety, the strategies tasks, and keep them separate’.38 However, in relation to associated materials to facilitate may be strategically imprudent if they appear there are significant strategic considerations that question being answered. to compromise impartiality. which militate against using the same expert False or incomplete instructions. It Three considerations provide particular for both roles. would be unethical to present a case on the reason to give careful consideration to the Firstly, the nature and extent of involve- basis of an expert report, when the expert prudent strategic limits of witness prepara- ment by the expert in the partisan process was briefed on assumptions which contradict tion (in addition to ethical limits). Firstly, of case formulation and development might material facts known by the party (or where there is a significant risk of privilege being be the subject of cross-examination,39 and facts known to be material have been omit- impliedly waived in relation to all dealings may tend to diminish the expert’s apparent ted from the instructions).44 with an expert: ie, a significant risk that impartiality. While an inference of partiality Preliminary conferences. There is no the details of witness preparation will be should not render the opinion inadmissible ethical problem with extensive conferring exposed.33 Secondly, cross-examination and on the grounds of bias,40 the ‘bias, actual, to discuss and test the preliminary opinions submissions by a skilful opponent may cause potential or perceived, of any witness is of experts, prior to the preparation of a first even ethically legitimate witness preparation undoubtedly a factor which the Court must draft. Some practitioners recommend this, strategies to be (unfairly) ethically tainted, take into account when deciding issues to prevent the generation of a paper trail of and the perceived impartiality and credit between the parties’.41 The degree to which draft reports which disclose the meandering of the expert to be (unfairly) compromised. perceptions of partiality affect the weight of evolution of the final opinion. I suggest that Thirdly, there is significant judicial sensitivity an opinion ‘must, however, depend on the any conferring should be consistent with the about the appearance and substance of expert force of the evidence which the expert has guidelines suggested below under the head- partisanship, and an expert report may be given to the effect that, by applying a certain ing ‘Substance of the expert opinion’. excluded (or the weight attached to it severely process of reasoning to certain specific facts, diminished) if witness preparation is deemed a particular conclusion should be drawn’.42 Minimising the prospects to ‘cross’ the sometimes blurry line.34 Secondly, there remains a risk that the (and prejudice) of waiver Consequently, there is a strategic advan- evidence of the expert will be excluded in tage in minimising the role of lawyers in the the exercise of the court’s discretion, if the In the article in this edition titled ‘Expert process of witness preparation (and thereby court considers that the probative force of reports – waiver of privilege revisted’, there protecting the appearance of impartiality). the opinion has been sufficiently weakened are outlined some suggested strategies to This needs to be balanced against the coun- by reason of the expert being exposed to (and minimise the prospects (and prejudice) of tervailing strategic advantage that may be unconsciously influenced by) inadmissible a waiver of privilege in relation to materials generated by implementing various witness evidence in the course of the expert’s im- associated with the preparation of the expert preparation strategies. That balance will be mersed involvement in case preparation.43 report. context-specific. Before implementing any Thirdly, ‘expert assistance’ may lead to an There is no ethical impropriety in such a strategy of witness preparation, a barrister unpleasant operation of waiver of privilege. strategy. The objective of protecting privilege should ask: ‘Firstly, is it ethically appropriate? The process of expert assistance may involve requires no significant justification. Briefly, Secondly, does the potential strategic advan- the expert being privy to many sensitive and however, the justification includes promoting tage of the strategy outweigh any risk of privileged communications. It is appropriate ‘free exchange of views between lawyers and strategic disadvantage that might arise if the to assume that there is a very significant risk experts’;45 preventing experts being inhibited conduct is disclosed and becomes the subject that waiver may extend to all such commu- from changing their minds by fear of expo- of cross-examination?’ nications. sure of working papers and drafts; preventing In light of the strategic dangers associated the integrity and strength of an expert’s final Practical questions with using an expert for both ‘assistance’ opinion being attacked through cross-ex- and ‘evidence’, a well-funded litigant in a amination on an expert’s working notes and Set out below is a consideration of some eth- complex case will frequently engage different drafts (which have potentially been taken out ical and strategic considerations relevant to experts to provide the ‘assistance’ and the of context); and avoiding the hearing being some selected aspects of witness preparation. ‘evidence’, respectively. distracted and lengthened by ‘what is usually a marginally relevant issue’:46 ie, the nature of ‘Expert assistance’ v ‘Expert evidence’ Briefing the expert (and reasons for) the evolution of the expert’s opinion. ‘A practice has grown up, certainly in Sydney, Assistance in the formulation of in- If a barrister proposes to raise matters for perhaps elsewhere, in commercial matters, structions. There is no ethical difficulty in consideration by the expert in relation to

76 [2018] (Spring) Bar News The Journal of the NSW Bar Association SPECIAL EDITION - EXPERT EVIDENCE the substance of the expert opinion, an issue be, and should be seen to be, the independent carelessness in the recording or reproduction arises as to whether the communications product of the expert, uninfluenced as to form of instructions, the influence of unconscious should be made (or recorded) in writing. The or content by the exigencies of litigation’.48 In adversarial bias on the barrister, or the simple creation of a paper trail has both advantages a subsequent case, Lord Denning relied upon fact that within the framework of an expert’s and disadvantages. The ostensible advantage that statement to conclude that lawyers must instructions there will remain scope for of avoiding a written record is that any not ‘settle’ the evidence of medical reports.49 significant nuance in the final expression of waiver of privilege will not generate a paper However, as a matter of principle and stra- written opinion. Secondly, to the extent that trail which records the lawyer’s role in the tegic prudence, the appropriate scope of the the draft diverges from (or embellishes) the evolution of the opinion, which might be role of barristers in drafting expert reports is expert’s instructions, the draft has a substan- manipulated by skilful cross-examination contestable. tial capacity to corrupt the substance and to compromise the credit of the expert and The general considerations in favour expression of the expert’s actual opinion. A the weight of the expert’s opinion. However, of a barrister being involved in the actual draft report will have a powerfully sugges- I suggest that the following circumstances drafting are as follows. Firstly, compliance tive effect on an expert, if it is persuasively support the prudence and propriety of main- with the demanding requirements of form expressed, well structured, and crafted by a taining a paper trail: and structure under the Makita rules may respected authority figure (such as a barrister). Further, there is a significant risk that • if there is a waiver of privilege, the waiver a busy expert will simply adopt a draft for extends to oral communications between expedience, without proper consideration. the barrister and the expert. A skilful There are also weighty strategic considera- cross-examination of an expert about The general considerations tions against the substantial involvement of extensive oral dealings with lawyers is the lawyers in the drafting process. Firstly, dangerously unpredictable. On the other in favour of a barrister being irrespective of the integrity of a barrister’s hand, a paper trail can provide a crisp and involvement in the preparation of a draft, clean demonstration of the propriety of the involved in the actual drafting and the coherence of the finally expressed dealings; opinion, the mere fact that a lawyer has are as follows. Firstly, compliance crafted the words of the report may stain the • there is a significant risk that a court with the demanding requirements credit of the expert in the eyes of a judge. (consciously or unconsciously) might draw Secondly, as Justice McDougall has observed an adverse inference as to the propriety of form and structure under the extra-judicially: ‘it is not desirable to fiddle of dealings with an expert, if there were too much with the actual phraseology of the found to be a deliberate strategy of avoid- Makita rules may necessitate a expert. For better or worse, we all have our ing a paper trail; own individual modes of expression. Evi- lawyer’s substantial involvement dence – whether lay or expert – speaks most • the recording of communications, com- directly when it speaks in the language of the bined with the ever-present risk of waiver, in the drafting, as a matter of witness and not in the language of the lawyer imposes a valuable chastening discipline who has converted it from oral into written on dealings between lawyers and experts. professional responsibility. form’.50 Thirdly, the possibility of ill-con- A lawyer will be forced always to ask: sidered adoption by an expert of a lawyer’s ‘How will this communication be viewed terminology creates the risk of the expert by the court?’ stumbling over or disowning the wording of necessitate a lawyer’s substantial involvement a report during cross-examination. Fourthly, The form of the expert report in the drafting, as a matter of professional requiring the expert to prepare the draft will responsibility. Secondly, as with any form of likely increase the expert’s engagement with As noted under the heading ‘Caselaw’ communication, the persuasiveness of an the issues on which the expert is briefed. above, there is strong judicial support in expert report will depend not just upon the Set out below is my personal suggestion as Australia for the ethical propriety (and pro- substantive content of the opinion, but also to where the line should be drawn in relation fessional duty) of lawyers being involved in the method of its presentation. The exper- to various aspects and stages of drafting. ensuring the clear and admissible expression tise of many experts may not extend to the Template for report. An effective (and of expert opinion. ‘The court depends heav- skills of persuasive written communication. ethically sound) strategy is to provide to ily on the parties’ legal advisors to assist ex- Lawyers may be able to provide valuable as- the expert a detailed template to assist the perts to address properly the questions asked sistance in the persuasive presentation of the preparation of the first draft. The template of them and to present their opinions in an expert’s substantive opinion, both in relation might set out the structure of the report, the admissible form and in a form which will be to structure and verbal expression. Thirdly, assumptions the expert is instructed to make, readily understood by the court. Equally, the if the lawyer is participating in the drafting and detailed instructions as to what must be court depends heavily on the parties’ legal process, the lawyer is able to test any tentative addressed in which section of the report. The advisors to ensure that any opinion expressed opinions expressed by the expert, before that template should be accompanied by detailed by an expert is an opinion the expert holds opinion is incorporated into the draft report. instructions as to the requirements of form for the reasons that the expert gives and This is likely to prevent the creation of any and structure of an expert report under the that the expert otherwise complies with the documentary record of ill-considered opin- Makita rules. Expert Witness Code of Conduct’.47 ion, which might damage credit if it is later Preparing first draft. The better view is This is consistent with practice in Sydney. the subject of waiver. that there is no ethical impropriety under This position is to be contrasted to the The ethical considerations weighing the present rules in the barrister preparing position in the United Kingdom. In what against a barrister personally drafting a report the first draft (in conference or alone), based remains a leading UK case on the ethical on instructions are as follows. Firstly, there on instructions received from the expert. limits of lawyer’s involvement in the prepara- is significant scope for a draft prepared by a However, the considerations of strategic tion of expert reports, Lord Wilberforce held: barrister to diverge from instructions provid- prudence referred to above strongly dictates ‘Expert evidence presented to court should ed by the expert. This may be a product of that the expert should typically prepare the

The Journal of the NSW Bar Association [2018] (Spring) Bar News 77 SPECIAL EDITION - EXPERT EVIDENCE first draft.51 This may properly occur after ex- clarity the substance of relevant opinion; risters) Rules expressly authorises ‘testing in tensive conferring with the expert, in which conference the version of evidence to be given the expert’s preliminary opinion is discussed • To the extent that the drafting process by a prospective witness, including drawing and tested. traverses substantive amendment to a the witness’s attention to inconsistencies and Comments on first draft. It is common previous draft, it may be strategically other difficulties with the evidence’. I suggest and acceptable for barristers to submit to ex- prudent for the drafting not to be done in that this testing may relate to the appropri- perts a ‘marked up’ version of the first draft, conference with the barrister. Rather, the ateness of assumptions, and the soundness which contains queries of the type described of the reasoning, and the correctness of the in the section below (‘Substance of the expert conclusion.54 However, consistent with the opinion – Testing an unfavourable opinion’), prohibition on ‘advising [directly or indirect- and requests for the elaboration of reasoning ly] what answers the witness should give’ in in the draft, and which invites the expert to Regulation 69, and the general ethical pro- prepare a further draft in light of those que- viso that witness preparation strategy should ries and requests.52 minimise the risk of opinion corruption, the Preparing subsequent drafts. I suggest process of testing should only proceed by way that the ethical and strategic balance swings of open ended questions, which simply direct in favour of active participation of the attention to an issue, and which avoid (as barrister in the drafting process, when the much as possible) suggestion that the opinion substance of the opinion is effectively settled is wrong and should be changed: eg, ‘What and recorded in a draft, and the focus is on are the assumptions for that proposition’? the refinement of form and expression. As ‘What is the basis for those assumptions?’ a proposed balance between facilitating the ‘Do you consider those assumptions consist- presentation of advantageous opinion, and ent with A, B, C? How?’ ‘What reasoning avoiding the reality and perception of adver- supports the drawing of that conclusion from sarial bias, I suggest the following guidelines: those assumptions?’ ‘Does it take account of D, E, F? How?’ It should not proceed by way • If the barrister is to be involved, it is desira- of closed questions which explicitly or im- ble to undertake the drafting in conference matter requiring substantive redrafting plicitly suggest that the expert should change with the expert (rather than for the barrister should be identified (possibly by some no- his opinion: ‘I suggest that the reasoning is to produce a further draft independently tation in the draft being worked on), and wrong, because of A, B, C. Do you agree?’ following conference). This allows the the expert should be invited to attend to The practice of open-ended questions is expert to take immediate ownership of the the redrafting independently in a further not only ethically appropriate, but also stra- formulation of words. If the redrafting is draft (to avoid the appearance of undue tegically prudent for the following reasons. done by the barrister following conference, involvement in the substance of opinion). Firstly, in view of the (proper) sensitivity then enclose the draft under an email of experts to maintaining an independent saying something to this effect:‘ …I have and impartial stance, there may be a natu- endeavoured to ensure that the amend- I suggest that this testing may ral defensiveness to modifying an opinion ments are consistent with your instructions in response to direct suggestion. Secondly, in conference. However, please check the relate to the appropriateness of all communications with experts should amendments very carefully, and ensure they be conducted on the basis that privilege in accord precisely with the substance of your assumptions, and the soundness the conversation may be waived. The more opinion and your preferred form of expres- suggestive and leading is the question which sion, and make all necessary amendments of the reasoning, and the preceded a modification of opinion, the to ensure that is the case’; greater the risk that the final opinion will be correctness of the conclusion discounted by reason of perceived adversarial • It is appropriate for the redrafting to bias (if the question is exposed following the address the clarification of ambiguous ex- Notwithstanding the ethical propriety of waiver of privilege). pression, the comprehensive and coherent involvement by lawyers in the process of pre- Testing a ‘Joint Report’. It is now stand- articulation of the reasoning process, and paring subsequent drafts, there will remain ard practice for conclaves of experts and joint the amendment of wording which signif- significant strategic advantage in avoiding or reports to be ordered in cases involving expert icantly detracts from the persuasive com- minimising a barrister’s involvement. The ap- evidence. A question arises as to whether it is munication of the substantive opinion.53 It propriate role of a lawyer may depend upon the permissible for any concession by a party’s is otherwise strategically imprudent to seek lawyers’ assessment of the capacity of the expert expert in the joint report to be ‘tested’ in pri- to refine or otherwise amend the expert’s to craft an opinion in admissible and persuasive vate conference, and subsequently challenged own words. Maintaining the authenticity form without assistance from lawyers. during concurrent evidence. There is no of the expert’s voice may be more advanta- prohibition on doing so in the court rules, or geous then crafting perfect expression; Substance of the expert opinion practice notes. I suggest that a party should be entitled to test in private conference a • Unless clearly obvious or inconsequential, Exclusion of irrelevant opinion. It is concession made by an expert in the joint any amendment of expression should ethically permissible for a lawyer to propose report, in precisely the same manner as set generally be on the basis of specific and substantive amendments to a draft report, out above. There is significantly less cause for detailed instructions from the expert, and which relate to deletion of evidence which concern about adversarial bias in relation to should reflect the expert’s own words. The is irrelevant, or beyond the expertise of the the testing of concessions in the joint report, barrister should only suggest a mode of expert. Beyond that point, the ethical con- because the expert’s sense of independence expression when open-ended questioning sensus and clarity breaks down. has been sharpened through collegiate of the expert has failed to elicit wording Testing an unfavourable opinion. Reg- co-operation in the lawyer-free conclave, and which communicates with reasonable ulation 70 of the Uniform Conduct (Bar- substantial inertia inevitably attaches to a

78 [2018] (Spring) Bar News The Journal of the NSW Bar Association SPECIAL EDITION - EXPERT EVIDENCE concession recorded in the joint report. opinion.55 Thirdly, the better view is that methods for the presentation of testimony Raising contrary propositions for con- putting alternative propositions to the expert (in examination in chief, and cross-examina- sideration. This is moving into even murk- (in accordance with the guidelines proposed) tion).57 ier ethical waters. I suggest that this practice falls within the safe harbour of ‘testing’ There is generally no controversy as to should be regarded as ethically permissible within Regulation 70. There is a profound the ethical propriety of such conduct.58 This (and strategically prudent), if the following ethical distinction between raising a propo- is because it relates to procedure and the procedure is followed: sition for consideration, and either ‘advising form of evidence, rather than substance. It what answers the witness should give’ (Reg- is therefore relatively innocuous in terms of 1. The barrister has first undertaken the ulation 69) or ‘encouraging the witness to distorting testimony. open-ended ‘testing’ of the expert’s give evidence different from the evidence the opinion described above, and the expert witness believes to be true’ (Regulation 70).56 Rehearsal of cross-examination has not independently expressed an All that said, it is obvious that the mere opinion consistent with the contrary fact of a barrister raising a proposition for Rehearsal relates to the process of practising proposition; consideration has inherent suggestive capaci- the presentation of testimony to be given in ty, which generates the possibility of the cor- court. In light of general requirement that 2. Before engaging in the practice, the ruption of opinion through adversarial bias. expert evidence ‘in chief’ be provided by way barrister exhorts the expert to abide It is therefore obvious that there is scope for of written report, the issue of the ‘rehearsal’ by the spirit of the expert codes: divergent views about the ethical propriety of of experts only arises in relation to cross-ex- ‘Remember your duty is to assist the such a practice. amination. court impartially, and not to advance ‘Crossing the Line’: unethical practices. In the USA, there is no prohibition on my client’s case. I want to raise some When then does witness preparation cross rehearsal, and among witness preparation propositions for your consideration and techniques it is described as ‘the most strong- comment. I don’t suggest that they are ly advised among trial lawyers’ 59. In the right or that you should adopt them. In the USA, there is no UK, barristers ‘must not rehearse practise or You should only do so if you genuinely coach a witness in relation to his evidence’.60 consider the proposition to be correct’; prohibition on rehearsal. In Australia there are some strong authorities against the practice. Justice Young referred 3. Open style questioning is adopted: to the ‘very severe limits, in the interests of eg, ‘What is your opinion about justice, in preparing a witness to give evi- [proposition X]? What is the basis for the line and become unethical? dence…. we do not in Australia do what ap- that opinion?’, and then ‘test’ in the Firstly, there are prohibitions on particular parently happens in some parts of the United manner described above; categories of conduct in Regulation 69 and States, rehearse the witness before a team of 70, which are described above (advising lawyers, psychologists and public relations 4. The barrister does not engage in conduct ‘what answers the witness should give’, and people to maximise the impact of the evi- which has the intention or consequence encouraging evidence ‘different from the ev- dence’.61 However, the practice is apparently of pressuring the expert to adopt the idence with the witness believes to be true’). widespread in Sydney. proposition; Secondly, I suggested above that an appro- The question of rehearsal raises particular- priate ethical limit on ‘raising propositions ly difficult ethical issues. 5. If the expert purports to adopt the for consideration by an expert’, is the proviso Arguments for rehearsal of cross-exami- proposition, the barrister rigorously tests that the barrister must not seek to ‘pressure’ nation. A compelling case can be made for the basis for it, to ensure that the expert the expert to adopt the proposition (or engage the propriety of a rehearsal of the cross-ex- is capable of reasonably justifying the in conduct which might have that conse- amination of experts. Firstly, for a number proposition. quence). This is admittedly a frustratingly of reasons, the practice has the capacity question-begging limitation, but it is difficult to facilitate the presentation of testimony The conclusion that this practice should be to draw a brighter line. By way of (some) that does justice to the inherit merits of the regarded as ethically permissible is supported elaboration, factors which may be relevant to opinion. The mere experience of formulating by the following considerations. Firstly, it determine whether there is ‘pressure’ include and articulating opinion under the pressure may facilitate the articulation by the expert the extent to which any question is expressed of cross-examination will likely improve of opinion favourable to the client’s case, in a leading manner; the extent to which the general quality of the presentation of which supports the legitimacy of the practice the question is repeated; the extent to which testimony during cross examination at trial. unless it gives rise to an undue risk that the the barrister personally advocates the merits More specifically, it will facilitate the devel- expert’s opinion will be corrupted through of the proposition; the extent to which the opment of strategies to combat the following adversarial bias; Secondly, the mere fact that barrister highlights the strategic importance techniques of cross-examination, which a change in an expert’s opinion was triggered of the proposition to the case; the extent to might otherwise cause the testimony of an by a proposition raised by a barrister does which the barrister seeks to argue with the expert to appear weaker than is warranted by not reflect that the modified view is not expert about the proposition (as distinct from the inherent merits of the expert’s opinion: genuine or not reasonable. Barristers will testing the expert’s opinion by open-ended often acquire substantial expertise in a field questioning); and the relative stature of the • Techniques of cross-examination might relevant to a case. In light of that expertise, expert and barrister (which may affect the be employed to engender a tendency of the barrister’s familiarity with the case, and power dynamic between the two). acquiescence, which leads to concessions the analytical capacities barristers will (hope- contrary to an expert’s genuine considered fully) bring to bear on the matter, it is unsur- General advice about the opinion. These techniques may include: prising that barristers might be able to raise process of evidence inducing confusion through complex and valid propositions for consideration which rapid fire questioning; inducing submis- an expert might reasonably and genuinely It is standard practice for barristers to give sion through aggression or overbearing adopt. It has been judicially acknowledged witnesses general advice as to court room demeanour; provoking the witness to that ‘testing’ may lead to a change in expert procedure, courtroom demeanour, and anger, in a way which compromises the ex-

The Journal of the NSW Bar Association [2018] (Spring) Bar News 79 SPECIAL EDITION - EXPERT EVIDENCE

pert’s rational deliberations; encouraging a Secondly, rehearsal of the cross-examina- case should generally be ethically permissi- co-operative and trusting relationship with tion of experts does not have the same inher- ble, subject to the following parameters: the expert through flattery and respect; ent distorting tendencies as rehearsal of lay creating a habit of acquiescence through witnesses. The susceptibility of lay evidence • The barrister should emphatically exhort a pattern of ‘Dorothy Dixers’; weakening to suggestion is exacerbated by the inherent the expert to abide by the witness codes; confidence by embarrassing the expert vulnerability of memory to unconscious on collateral matters; trapping the expert reconstruction.62 The extent to which expert • On no occasion should the barrister during in a logical corner which demands a con- opinion can be distorted by the rehearsal of the session give any direction or suggestion cession, when the trap has been created by answers in a mock cross-examination is (or as to the substance of any answer which extracting the expert’s agreement to flawed can be) limited by a number of considera- the expert should provide to any question; assumptions (which the expert might tions. Firstly, an opinion is substantially an- carelessly have provided, oblivious to the chored by the necessity to justify the opinion • It is reasonable to discuss answers given logical consequences of his concession). by reference to assumptions and a coherent in the mock cross-examination, for the process of reasoning. This constrains the purpose of: (i) exploring and testing the • The cross-examination might damage the extent to which the expert’s opinion can be basis for any stated answer; (ii) exploring credibility of the expert by creating the swayed by possible suggestion. Secondly, the whether any answer (on further reflection) impression that the expert is unduly defen- pre-trial mock cross-examination will be con- truly accords with the considered opinion sive and evasive, by a conscious strategy of ducted after the final report and joint report of the expert; (iii) if not, exploring why provocation; has been served. Any tendency to be swayed the expert gave the answer in the mock by suggestion will be counterbalanced by the cross-examination; (iv) discussing strate- fact that the expert is already ‘locked in’ to a gies to facilitate the expert responding to Testing and probing the expert publicly communicated position. Thirdly, the questions in a manner which accords with scope for distortion through suggestion can the expert’s considered opinion; report can be readily undertaken be further reduced if the cross-examination rehearsal is conducted on the proposed basis • There should be no more than limited in conference. General advice set out below. repetition of cross-examination on each as to the techniques and traps Arguments against rehearsal of cross-ex- subject matter. amination. There are a number of consider- of cross-examination can also ations weighing against the ethical propriety of cross-examination rehearsals. Firstly, not- be provided in conference. withstanding that mock cross-examination is Expert testimony plays a critical aimed at ‘challenging’ the expert’s evidence, The experience of the actual the reality is that discussion and rehearsal role in litigation. Witness of answers to cross-examination are integral preparation plays a critical role rigours of cross-examination aspects of the process. Secondly, the inherent vulnerability of witnesses to suggestion in the presentation of expert. can be created by a mock during the rehearsal of evidence on the eve examination on a subject matter of trial: ‘rehearsal has a greater potential testimony. A framework of for suggestiveness than other preparation unrelated to the proceedings. techniques. A witness naturally feels appre- rules and principles to provide hensive about an upcoming appearance. The inclination to welcome a script is strong. Fur- effective ethical guidance in the • The cross-examination might probe the thermore, repetition of a story is extremely area is needed. That framework expert opinion to expose flaws and incon- suggestive.’63 With respect to lay evidence, sistencies (real or imagined). If confronted ‘the danger in discussing with a witness his does not presently exist with those contended flaws for the first evidence prior to trial is that the witness’s time in cross-examination, the expert recollection of events will either consciously may be unable properly to address them or unconsciously alter so as to accommodate However, reasonable minds will differ as to (and the expert’s testimony might be cor- what the witness perceives as a better, for the strategic prudence of the practice of mock respondingly weakened). However, the whatever reason, version of events. Obvious- cross-examination. Because there does not expert might have been able readily to ex- ly this is a matter of degree’.64 Different but appear to be universal support for the ethical plain them away (on reasonable grounds), analogous problems can occur with expert propriety of the practice, some judges might had the expert had adequate time to reflect opinion. Thirdly, the legitimate objectives of perceive the rehearsal of cross-examination upon them. mock cross-examination can be substantially as tainting the credit of the expert. achieved without the risks associated with The strategy of mock cross-examination that process. Testing and probing the expert Reform in regulation? has the capacity to alert the witness to the report can be readily undertaken in confer- strategies that might be used to attack him or ence. General advice as to the techniques I respectfully repeat my suggestion from 10 her, to alert the witness to his or her vulnera- and traps of cross-examination can also be years ago that it may be useful to consider bility to those techniques, and to facilitate the provided in conference. The experience of the whether amendments to the Uniform Con- witness developing defences against them. actual rigours of cross-examination can be duct Rules might provide more practical and By educating the barrister as to how the created by a mock examination on a subject clear guidance on witness preparation. Any witness responds under cross-examination, a matter unrelated to the proceedings.65 such consideration might address the follow- rehearsal of cross-examination also produces Rehearsal: conclusion. It is a finely bal- ing issues: the advantages of facilitating preparation of anced and controversial question. As a purely re-examination and an informed assessment ethical matter, I tentatively suggest that • the general question of the appropriate of the strength of the case. cross-examination rehearsal on the actual nature of ethical regulation in this area.

80 [2018] (Spring) Bar News The Journal of the NSW Bar Association SPECIAL EDITION - EXPERT EVIDENCE

There is often contrasted two types of END NOTES 35 Evans Deakin Pty Ltd v Sebel Furniture Ltd [2003] FCA 171, per Allsop ethical regulation: ‘codes of ethics’ (which J at [676], [678] 1 Applegate, ‘Witness Preparation’ (1989) 277 Texas Law Review 277, at prescribe high level principles to provide 36 ibid 279 37 ibid loose general guidance), and ‘codes of 2 Stowe, ‘Preparing expert witnesses: A search for ethical boundaries’, Bar conduct’ (which prescribe specific binding 38 Ibid, [678] New, Summer 2006/7, at page 44 39 Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454, per Pagone J at rules consistent with the high level prin- 3 For convenience and completeness, this article incorporates analysis [9]; Aitchison v Leichhardt Municipal Council [2002] NSWLEC 226, ciples). Those different forms reflect the from the previous article where it continues to be relevant. This article per Talbot J at [21]; ASIC v Rich [2005] NSWCA 152 (CA) [167] often conflicting goals of regulation: the supercedes the earlier article referred to in footnote 1. 40 Fagenblat, supra fn 22, [7] retention of sufficient flexibility to permit 4 Applegate, supra fn 1, 278. 41 Fagenblat, supra fn 22, [7] ethical discretion which is sensitive to in- 5 Applegate, supra fn 1, 327 42 ASIC v Rich [2005] NSWCA 152 (CA) [167] dividual circumstance; and the provision 6 Zacharis and Martin, ‘Coaching Witnesses’ (1998-98) 87 Kentucky Law 43 ASIC v Rich [2005] NSWSC 650, per Austin J at [40] of sufficient certainty to give firm practical Journal 1001, at 1006. 44 see Bar Rule 36; Bush (1993) 69A Crim R 416 at 431, 7 Applegate, supra fn 1, 352 guidance (and to facilitate enforcement); 45 NSW Bar Association Response to the NSW Law Reform Commission 8 Abbey National Mortgages Plc v Key Surveyors Nationwide Limited and Issues Paper 25 – Expert Witnesses, [33] Others [1996] 3 All ER 184; see also Fox v Percy (2003) 214 CLR 118, • the relative priority of the conflicting 46 ibid per Callinan J at [151] 47 Traderight (NSW) Pty Ltd (ACN 108 880 968) and Ors v Bank of policy objectives in this area; 9 NSW Law Reform Commission, Report 109, ‘Expert Witnesses’, page Queensland Ltd (ACN 009 656 740) (No 14) [2013] NSWSC 211, 70 per Ball J at [23]; see also Harrington-Smith v Western Australia (No 7) • whether conduct should be proscribed 10 NSWLRC, Report 109, supra fn 8, page 74 [2003] FCA 893, at [19]; quoted with approval in Jango v Norther merely because it creates an appearance of 11 Quoted in J Langbein, ‘The German Advantage in Civil Procedure’ Territory (No 2) [2004] FCA 1004, per Sackville J at [9], and R v expert partiality. (1985) 52 University of Chicago Law Review 823, at 835; quoted in Coroner Maria Doogan [2005] ACTSC 74 (Full Court, ACTSC), at NSWLRC Report 109, supra fn 8, page 73 [118] Conclusion 12 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 48 Whitehouse v Jordan [1981] 1 WLR 246, per Lord Wilberforce at 256- 13 Applegate, supra fn 1, at 350 257 14 Regulation 4 49 Kelly v London Transport Executive [1982] 1 WLR 1055, per Lord Expert testimony plays a critical role in lit- 15 Regulation 35 igation. Witness preparation plays a critical Denning at 1064-1065. However, Callinan J has pointed out 16 R v Momodou (Henry) [2005] EWCA Crim 177; [2005] 1 WLR 3442, Whitehouse v Jordan does not support ‘as far reaching a proposition as role in the presentation of expert testimony. 587h-j and 588a-c. that propounded by Lord Denning’: Boland v Yates Property Corporation A framework of rules and principles to pro- 17 HKSAR v Tse Tat Fung [2010] HKCA 156, at [79] Pty Ltd (1999) 167 ALR 575, at [279] vide effective ethical guidance in the area is 18 Majinski v the State of Western Australia [2013] WASCA 10, [30] 50 Justice McDougall, ‘Commercial List Practice: Expert Evidence’, needed. That framework does not presently 19 Suggestibility will be influenced yb the ‘power dynamic’ between expert College of LAW CPED Seminar, 28 July 2004 exist. and the barrister. 51 Urgency might create a necessary exception to this guideline To facilitate the development of such a 20 Eg, contingency fee 52 Some practitioners would prefer to organise a conference to discuss the framework, I affirm my suggestion that it 21 Garth Blake SC and Phillippe Doyle Gray, ‘Can counsel settle expert matters raised, before a further draft was prepared reports?’, Bar News, Summer 2012-2013. The learned authors might be helpful to undertake the following 53 Eg, the amendment of wording which is convoluted. summary was approved in Hunter Quarries Pty Ltd v Morrison [2013] steps: 54 This is consistent with the decision of Ball J inTraderight (NSW) Pty Ltd NSWIRComm 49, at [86]-[97]; and approved in obiter by Davies J and ors vBank of Queensland Ltd (No 14) [2013] NSWSC 211, at [23] to Cassie Masters by her tutor William Masters v Sydney West Area Health 55 Traderight (NSW) Pty Ltd and ors vBank of Queensland Ltd (No 14) • organise a working party through the Bar Service [2013] NSWSC 228, at [33] where His Honour ‘commended’ [2013] NSWSC 211, at [23] Council to address the issue. It would be the summary to counsel before him. 56 However, it could be contended that merely raising the proposition is desirable that the Law Society and the 22 although see Cassie Masters, ibid, at [33] for an obiter approval of the indirectly suggestive of what the witness ‘should say’ in proceedings judiciary also be represented; summary by Blake SC and Gray. 57 For a good example of such guidelines, see Freckleton & Selby, ‘Expert 23 The authorities supporting those principles erew identified as Evidence: Law, Practice, Procedure and Advocacy’ (2nd Edn, 2002), at • survey existing practice in relation to Harrington-Smith on behalf of the Wongatha People v State of Western 706-713 expert witness preparation, across the Bar Australia (No 7) [2003] FCA 893, per Lindgren J at [19], [27]; which 58 See Re Equiticorp Finance Ltd; ex part Brock [No 2] (1992) 27 NSWLR was approved by Sackville J in Jango v Northern Territory of Australia (No and within law firms; 391, per Young J at 395; R v Momodou [2005] 2 All ER 571, at 588 2) [2004] FCA 1004, at [10]-[18]; R v Doogan [2005] ACTSC 74, at (CA); HKSAR v Tse Tat Fung [2010] HKCA 156, [68]-[82] [119]; Boland v Yates Property Corporation (1999) 167 ALR 575 • survey judicial attitudes as to the impact 59 G. Bellow & B. Moulton, ‘The Lawyering Process: Preparing and 24 (1999) 167 ALR 575 Presenting the Case’ (1981), at 357-8; see Applegate, supra fn 1, at 281 on expert credibility of various methods of 25 Harrington-Smith on behalf of the Wongatha People v State of Western fn 13 expert witness preparation; Australia (No 7) [2003] FCA 893; 60 Code of Conduct of the Bar of England and Wales, Rule 705(a); see 26 R v Doogan [2005] ACTSC 74, at [119] also R v Momodou [2005] 2 All ER 571, at 588; HKSAR v Tse Tat Fung • survey practice in different legal cultures; 27 Jango v Northern Territory of Australia (No 2) [2004] FCA 1004, at [10]- [2010] HKCA 156, [68]-[82] [18]; Risk v Northern Territory of Australia [2006] FCA 404, at [456] 61 Re Equiticorp Finance Ltd; ex part Brock [No 2] (1992) 27 NSWLR 391, • circulate a discussion paper through the 28 Hunter Quarries Pty Ltd v Morrison [2013] NSWIRComm 49, at [86]- per Young J at 395. working party, setting out proposed guide- [97] 62 Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187, per Ipp JA lines; 29 see [94],[95] at [19] 30 Cassie Masters by her tutor William Masters v Sydney West Area Health 63 Applegate, supra fn 1, 323 Service [2013] NSWSC 228, at [33] • in light of responses to the discussion 64 HKSAR v Tse Tat Fung [2010] HKCA 156, [73] 31 Traderight (NSW) Pty Ltd and ors vBank of Queensland Ltd (No 14) 65 This was endorsed by the Court of Appeal in R v Momodou [2005] 2 All paper, produce guidelines for practice for [2013] NSWSC 211, at [23] ER 571, at 588 approval by Bar Council. 32 eg, Harrington-Smith on behalf of the Wongatha People v State of Western 66 [email protected] Australia (No 7) [2003] FCA 893, at [19]; R v Doogan [2005] ACTSC I am interested in exploring this topic fur- 74, at [119] ther, and welcome comments.66 33 See my other article in this edition: ‘Expert reports and waiver of privilege’ 34 eg, R v Doogan [2005] ACTSC 74, at [117]; Phosphate Cooperative Co of Australia Pty Ltd v Shears [1989] VR 665; Secretary to the Department of Business and Innovation v Murdesk Investments Pty Ltd [2011] VSC 581, [101]-[111]; Universal Music Australia Pty Ltd & Ors v Sharman Licence Holdings Pty Ltd & ors (2005) 220 ALR 1, at [227]ff; Hardy v Your Tabs Pty Ltd [2000] NSWCA 150, at [133]

The Journal of the NSW Bar Association [2018] (Spring) Bar News 81 SPECIAL EDITION - EXPERT EVIDENCE

Admissibility of expert evidence

By David Robertson & Charles Gregory

The laws in relation to the admissibility of expressed. ing will be to prove the existence of the fact expert evidence under the Uniform Evi- Like the hearsay rule, the opinion rule is a about which the opinion was expressed. Rel- dence Act (the Act) are somewhat settled. purposive rule, in that it only applies where evant expert opinion includes the following Yet Courts continue to express opinions on a party seeks to adduce opinion evidence for categories of evidence:4 the requirements of the opinion rule in the the purpose of proving the existence of a fact Act that either clarify or assume to settle about the existence of which the opinion was • opinion evidence as to what actually outstanding conflicts. And some practition- expressed. Therefore, in considering whether happened in particular circumstances, on ers and commentators continue to disagree the opinion rule applies at all, there are two the basis of assumptions that the expert on the importance of common law rules to threshold questions: first, whether the ev- is asked to make, as when a pathologist admissibility requirements or discretionary idence sought to be adduced is evidence of expresses an opinion about cause of death; powers under the Act. an ‘opinion’; and second, whether the purpose For that reason, the aim of this article is to for which the expert evidence is sought to • opinion evidence as to what might be provide a brief summary of the principles rel- be adduced is to prove the existence of a fact likely to happen in the future, on the basis evant to the admissibility of expert evidence about the existence of which the opinion was of assumptions that the expert is asked to in civil proceedings in those jurisdictions expressed. make, as when an economist might predict that have adopted the Act, namely the Com- the effect of identified phenomena on a monwealth, New South Wales, Victoria, Evidence of an ‘opinion’ market; Tasmania (in part), the Australian Capital Territory and the Northern Territory. The Act does not define the term ‘opinion’. • evidence of what is normally done in par- In summary, in order to be admissible as Therefore, what constitutes evidence of ticular circumstances experienced by the expert opinion evidence under the Act: an ‘opinion’, as opposed to evidence of a expert, as when a legal practitioner says fact, is determined by the application of what is normally done in a conveyancing common law principles (s 9 of the Act). In (i) The piniono must be relevant to a fact in transaction; issue in the proceeding; two decisions, the High Court has defined the word ‘opinion’ as ‘an inference drawn • evidence as to what can be done in par- (ii) The piniono must be on a subject matter from observed and communicable data’.1 It ticular circumstances that the expert is of ‘specialised knowledge’; has been long been acknowledged that the asked to assume, and which the expert dividing line between evidence of ‘fact’ and has not experienced, as when an engineer (iii) The piniono must be that of a person of ‘opinion’ can be difficult to draw, and is says what could have been done to avoid a who has specialised knowledge based in reality a continuum rather than a bright on the person’s training, study or line. A useful practical test given by Finkel- failure of a particular structure; experience; and stein J in the Full Federal Court’s decision La Trobe Capital & Mortgage Corporation • evidence concerning special usage of lan- (iv) The piniono must be wholly or Pty Ltd v Property Consultants Pty Ltd 2 is to guage or terms in the field of the expert’s substantially based on the person’s consider the extent to which the evidence expertise, as when a chemist explains training, study or experience. goes beyond the witness’ direct observations special usage of terms that have a different or perceptions, with the result that ‘the more meaning in everyday speech; Furthermore, in New South Wales, Part concrete the evidence, in the sense that the 31 of the Uniform Civil Procedure Rules more grounded the evidence is in a witness’ • opinion evidence about what should or 2005 (NSW) (UCPR) imposes additional direct observation or perception of an event, ought to have been done in particular requirements that must be met for expert the more likely it is to be factual in nature’. circumstances that the expert is asked evidence to be admissible in civil proceedings to assume, as when a legal practitioner (although the Court retains a discretion to Relevance of the opinion evidence says what enquiries ought to have been admit expert evidence that does not comply undertaken in a particular transaction, as with these requirements), which will also be As noted above, the opinion rule requires distinct from what enquiries are ordinarily discussed briefly. identification of why the evidence is said to undertaken; be relevant in the proceeding, which (apply- The opinion rule: section 76 of the Act ing the test for relevance in s 55(1) of the Act) • opinion evidence as to whether particular ‘requires identification of the fact in issue conduct that the expert is asked to assume The ‘opinion rule’ in s 76(1) of the Act that the party tendering the evidence asserts satisfies or falls short of some legal stand- provides that evidence of an opinion is not the opinion proves or assists in proving’.3 ard, as when a medical practitioner says admissible to prove the existence of a fact Ordinarily, the only possible relevance of that a particular procedure was conducted about the existence of which the opinion was the expert opinion evidence in the proceed- negligently.

82 [2018] (Spring) Bar News The Journal of the NSW Bar Association SPECIAL EDITION - EXPERT EVIDENCE

Within those general categories of relevant • Acting as statistician: ‘The third function Section 79 of the Act provides an exception expert evidence, the expert can perform 3 of such a witness can be to apply statisti- to the opinion rule for the admission of expert legitimate functions: cal methods to material available from evidence. It is noted that other exceptions to various sources in order to draw relevant the opinion rule are provided in Part 3.3 of • Generalising from experience and train- conclusions. The statistical expertise and the Act for other forms of opinion evidence, ing: ‘A person experienced in a particular experience of the witness may be brought such as the exception provided by s 78 for the discipline may, in the course of a lifetime, to bear on material otherwise in evidence’.7 admission of lay opinion evidence. accumulate a mass of material about the Section 79(1) of the Act states: ‘If a person subject of the person’s expertise, from his If the expert opinion evidence is relevant has specialised knowledge based on the or her own practice, from journals, from for some purpose other than to prove the ex- person’s training, study or experience, the newspaper reports and from discussion istence of a fact about the existence of which opinion rule does not apply to evidence of with fellow practitioners, much of which the opinion was expressed, then the exclu- an opinion of that person that is wholly or substantially based on that knowledge’. In Honeysett v The Queen,8 the High Court noted that s 79(1) of the Act states two conditions of admissibility for expert evidence: first, the witness must have ‘specialised knowledge based on the person’s training, study or experience’; and second, the opinion must be ‘wholly or substantially based on that knowledge’. Subsequent decisions of intermediate courts of appeal have emphasised that these two conditions of admissibility are the only conditions of admissibility imposed by s 79, and attempts to impose other conditions of admissibility (such as a test of ‘reliability’) have been rejected as being inconsistent with the statutory test imposed by s 79.9

‘Specialised knowledge’

As to the first condition of admissibility, the term ‘specialised knowledge’ is not defined “Your Honour, I call Nigel From The Pub… expert witness on whatever you like.” in the Act. In Honeysett at [23], the High Court said of ‘specialised knowledge’:

the person may not be able to recall but sionary opinion rule in s 76 does not apply (i) It is to be distinguished from matters which enables him or her to express an and it will not be necessary to satisfy the of ‘common knowledge’ (referring to opinion more accurately than one who has exception in s 79 of the Act. Furthermore, s 80(b) of the Act); examined only the facts regarding particu- by reason of s 77 of the Act, if the evidence is lar instances. Such a witness may base an admitted for some other purpose, it may nev- (ii) It is ‘knowledge which is outside that of opinion on his or her experience, without ertheless be used to prove the existence of the persons who have not by training, study having to prove by admissible evidence all fact about the existence of which the opinion or experience acquired an understanding the facts on which the opinion is based. was expressed, unless an order is made under of the subject matter’; Such witnesses regularly generalise from s 136 of the Act limiting the use that may be experience, calling in aid all their training made of the evidence. (iii) It may be knowledge of matters that and professional experience in expressing If the expert opinion evidence is not are not of a scientific or technical kind an opinion upon a matter within their relevant – that is, even if accepted, the evi- and a person may acquire specialised field’.5 dence could not rationally affect (directly or knowledge by experience; indirectly) the assessment of the probability • Acting as librarian: ‘In many instances, a of the existence of a fact in issue in the pro- (iv) However, the person’s training, study witness who has experience in a particular ceeding (s 55(1)) – it is not admissible in the or experience must result in the discipline may not himself or herself know proceeding, whether as opinion evidence or acquisition of ‘knowledge’. The term the answer to a particular problem from his otherwise (s 56(2)). ‘knowledge’ is used in s 79 in the or her own study or experience. However, sense of ‘an acquaintance with facts, being trained in the relevant discipline, Expert evidence admissible as truths or principles, as from study the witness may be able to refer to works an exception to the opinion or investigation’, and which is ‘more of authority in which the answer is given. rule: s 79 of the Act than subjective belief or unsupported In that sense, the witness may be said to be speculation … [It] applies to any body acting as a librarian. In that function, the If a party seeks to adduce expert evidence of known facts or to any body of ideas witness is not giving evidence of his or her of an ‘opinion’ to prove the existence of the inferred from such facts or accepted as own opinion, except to say that, in his or fact about the existence of which the opinion truths on good grounds’.10 her opinion, the books to which reference was expressed, the evidence must satisfy the is made are of sufficient standing to be requirements of s 79 of the Act in order to be One issue that may arise in satisfying this accepted by the Court’.6 admissible. first condition of admissibility is whether

The Journal of the NSW Bar Association [2018] (Spring) Bar News 83 SPECIAL EDITION - EXPERT EVIDENCE some purported expert opinion constitutes … training, study or experience’ which the the Act (rather than matters going merely ‘specialised knowledge’ within the meaning witness professes to have. That is a question to weight). The first rule is the ‘assumption of s 79(1) of the Act. This issue sometimes of fact which must be satisfied by the party identification rule’,21 which requires an arises where a purported field of expertise is seeking to adduce the expert evidence in expert to state the facts and assumptions on new or emerging. respect of each opinion sought to be given by which the opinion is based. The second rule At common law, in order for an opinion the witness.15 is the ‘statement of reasoning rule’,22 which to be admissible as expert evidence it was requires the expert to state the reasoning by necessary to demonstrate that the subject Whether the expert’s opinion is which the conclusion arrived at flows from matter of the opinion ‘forms part of a body of ‘wholly or substantially based’ on the facts proved or assumed by the expert, so knowledge or experience which is sufficiently specialised knowledge based on as to reveal that the opinion is based on the organized or recognized to be accepted as a training, study or experience expert’s expertise. There are three points to reliable body of knowledge or expertise’.11 make about Heydon J’s reasoning. First, in However, in drafting the Act, the Aus- The second condition of admissibility of light of the plurality’s reasoning in Dasreef, tralian Law Reform Commission declined expert evidence under s 79(1) of the Act is which focused upon the two conditions of to include any ‘field of expertise’ test for that the expert’s opinion must be based admissibility based on the statutory language determining the admissibility of expert ‘wholly or substantially’ on his or her special- of s 79(1) of the Act (discussed above), it is evidence, instead preferring to rely on the ised knowledge based on training, study or to be doubted that the ‘assumption identifi- general power under s 135 of the Act to ex- experience. cation rule’ and the ‘statement of reasoning clude purported expert evidence that ‘has not This condition of admissibility focuses rule’ continue to apply as standalone rules sufficiently emerged from the experimental largely on the form in which the expert’s governing the admissibility of expert opinion to the demonstrable’.12 opinion is expressed, since it is necessary evidence under s 79(1) of the Act. Second, Recently, in DPP v Tuite13 (a decision the expert sufficiently discloses his or her however, the ‘assumption identification rule’ handed down after the High Court’s decision reasoning process so that the Court can be and the ‘statement of reasoning rule’ do not in Honeysett), the Victorian Court of Appeal satisfied that the expert’s opinion is based appear to differ much in substance from the rejected an argument that expert evidence wholly or substantially on his or her special- second condition of admissibility identified based on a new technique of DNA analysis ised knowledge.16 Therefore, it is ‘ordinarily by the plurality in Dasreef (discussed above), was not sufficiently ‘reliable’ to be admissible the case’ that ‘the expert’s evidence must ex- which focuses on the form of the expert under s 79(1) of the Act. The Court appeared plain how the field of ‘specialised knowledge’ opinion and requires the expert to sufficient- to decide that (a) so long as the witness has in which the witness is expert by reason of ly disclose his or her reasoning process so that knowledge of the subject matter which ‘training, study or experience’, and on which the Court can be satisfied that the expert’s is outside that of persons who have not by the opinion is ‘wholly or substantially based’, opinion is based wholly or substantially on training, study or experience acquired an applies to the facts assumed or observed so as his or her specialised knowledge. Third, in understanding of the subject matter, and to produce the opinion propounded’.17 Fur- practice it would be prudent to continue (b) that knowledge is based on the person’s thermore, an expert whose opinion is sought applying the ‘assumption identification training, study or experience, the evidence to be tendered ‘should differentiate between rule’ and the ‘statement of reasoning rule’ in is admissible under s 79(1) of the Act not- the assumed facts upon which the opinion is preparing expert evidence. An expert report withstanding it is novel or that the inferences based, and the opinion in question’.18 certainly will not be open to attack on admis- drawn by the witness have not been tested or To be admissible under s 79(1), it is suffi- sibility grounds if the expert has complied accepted by others. The Court held that if cient that the expert’s opinion is ‘substantial- with the ‘assumption identification rule’ and expert evidence is to be excluded because it ly’ based on his or her specialised knowledge. the ‘statement of reasoning rule’ in preparing is ‘unreliable’ (that is, because it is untested, This allows for the fact that ‘it will sometimes his or her expert report. unverified or unsupported), it may be exclud- be difficult to separate from the body of ed on discretionary grounds under s 135 of specialised knowledge on which the expert’s An additional issue: Whether the opinion the Act (or s 137, in criminal proceedings). opinion depends ‘observations and knowl- must be based substantially on facts that The reasoning in Tuite was approved by the edge of everyday affairs and events’’.19 have been or will be proved by other New South Wales Court of Criminal Appeal In Dasreef Pty Ltd v Hawchar,20 the plu- evidence in the proceeding (the ‘basis in Chen v R.14 rality noted that in ‘many, if not most cases’, rule’ or ‘proof of assumption rule’) Therefore, in light of these matters, if a the requirements of this second condition challenge is made to an expert witness’ evi- of admissibility should be able to be met In Dasreef Pty Ltd v Hawchar, Heydon J also dence on the basis that the purported ‘field ‘very quickly and easily’, such as where a identified a third common law rule which his of expertise’ is not ‘specialised knowledge’, specialist medical practitioner expresses a Honour held continued to apply to govern it will be necessary for the party seeking to diagnostic opinion in his or her relevant field the admissibility of expert evidence under adduce the evidence to satisfy the court that of specialisation. In such a case, it will require s 79(1) of the Act. This is the common law the opinion is ‘specialised knowledge’ (as ‘little explicit articulation or amplification’ ‘basis rule’ (or what Heydon J called the explained in Honeysett and Tuite), otherwise to demonstrate that the witness’ opinion is ‘proof of assumption rule’), which provides the evidence may either (a) fail to satisfy the wholly or substantially based on his or her that expert opinion is not admissible unless test for admissibility under s 79(1) of the Act, specialist knowledge once the witness has evidence has been or will be admitted that or (b) be excluded under s 135 of the Act. ‘described his or her qualifications and expe- is capable of supporting findings of primary rience, and has identified the subject matter facts that are sufficiently like the factual as- Whether the purported expert has about which the opinion is proffered’. sumptions on which the opinion is based.23 ‘specialised knowledge based on the For completeness, it should be noted that In Dasreef Pty Ltd v Hawchar,24 the plu- person’s training, study or experience’ in Dasreef Pty Ltd v Hawchar, Heydon J rality acknowledged that the Australian identified two additional common law rules Law Reform Commission’s interim report Another issue that may arise in satisfying as to the form in which expert opinion ev- on evidence had denied the existence of the the first condition of admissibility under idence is presented which his Honour held common law basis rule and that the ALRC s 79(1) is whether the particular witness in continue to apply to govern the admissibility did not intend to include it in the Act.25 fact has the ‘specialised knowledge based on of expert opinion evidence under s 79 of Therefore, in light of the High Court’s de-

84 [2018] (Spring) Bar News The Journal of the NSW Bar Association SPECIAL EDITION - EXPERT EVIDENCE

cisions in Dasreef and Honeysett, it appears other parties’ consent, the expert’s report considered along with the requirements of s that there is not any ‘basis rule’ that governs is not admissible unless it is served in this 56 of the Act and Part 31 of the UCPR. The the admissibility of expert opinion evidence way: r 31.28(3)(a). Oral evidence from discretionary powers of the Court under Part under s 79 of the Act. This is the view taken the expert is also not admissible without 3.11 of the Act are also important, including in recent decisions of intermediate courts of leave or consent unless the expert’s where a field of specialised knowledge may appeal.26 report has been served in accordance still be in its infancy or where assumptions However, expert evidence will likely be with the rules and the report contains and facts that form the basis for the opinion given little, if any, weight if the party adducing the substance of the matters sought to be are not proven by the close of evidence. Fur- the evidence fails to prove by other evidence adduced in the oral evidence: r 31.28(3) ther, certain common law requirements such the truth or correctness of the assumptions on (c). The Court will only grant leave if as the assumption identification rule and which the opinion was based.27 Furthermore, there are exceptional circumstances statement of reasoning rule continue to be it has been suggested that an expert opinion or the report merely updates an earlier important in practice. ‘completely unrelated to proved facts’ may be version of the report that was properly so hypothetical that it does not meet the test of served: r 31.28(4).30 END NOTE relevance in s 55 of the Act, in which case the 1 Lithgow City Council v Jackson (2011) 244 CLR 352 at [10]; Honeysett v evidence cannot be admitted.28 Furthermore, (v) Other than in a trial by jury, if served The ueenQ (2014) 253 CLR 122 at [21] where an expert relies on unproven assump- in accordance with r 31.28, an expert’s 2 (2011) 190 FCR 299 at [44]-[46] tions forming a fundamental basis for his or report is admissible as evidence of the 3 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at [31]. her opinion, the evidence may be excluded expert’s opinion and, if the expert’s 4 Pan Pharmaceuticals Ltd (In Liq) v Selim [2008] FCA 416, at [35]. 29 under s 135 of the Act. direct oral evidence on a fact on 5 Pan Pharmaceuticals at [26] which the opinion was based would 6 Pan Pharmaceuticals at [27] Part 31 of the Uniform Civil be admissible, as evidence of the fact: 7 Pan Pharmaceuticals at [28] Procedure Rules 2005 (NSW) rr 31.29(1) and 31.30(2). This is subject 8 (2014) 253 CLR 122 at [23] to the expert report complying with the 9 See eg DPP v Tuite (2015) 49 VR 196; [2015] VSCA 148 Division 2 of Part 31 of the UCPR also in- admissibility requirements of s 79 of the 10 Citing Daubert v Merrell Dow Pharmaceuticals Inc (1993) 509 US 579 at 590 cludes rules relating to the admissibility of Act, as discussed above. 11 R v Bonython (1984) 38 SASR 45 at 47 expert evidence in civil proceedings in New 12 ALRC 26, vol 1, para 743 South Wales courts. Part 31 provides the (vi) If a party requires the expert for cross- 13 (2015) 49 VR 196; [2015] VSCA 148 at [72]-[73] Court with significant control over the use examination, the expert’s report cannot 14 [2018] NSWCCA 106 at [82] of expert evidence. Part 31 should be read be tendered under ss 63, 64 or 69 of the 15 HG v The Queen (1999) 197 CLR 414 at [40], [44]; Odgers, Uniform in conjunction with relevant practice notes Act or otherwise used in the proceeding Evidence Law (13th ed, 2018) at [79.120] applying in the particular court in which the unless the expert attends for cross- 16 HG v The Queen (1999) 197 CLR 414 at [39] expert evidence is sought to be adduced. examination, or is dead, or the Court 17 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at [37], citing Makita The main rules imposed by Part 31 are as grants leave to use it: rr 31.29(5) and (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [85] follows: 31.30(6). 18 HG v The Queen at [39] 19 Honeysett at [24] 20 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at [37] (i) Parties must seek directions if they intend (vii) If an expert provides a supplementary 21 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at [64]-[65] to, or it becomes apparent that they may, report, neither the supplementary report 22 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at [91]-[94] adduce expert evidence: r 31.19(1). nor any earlier report by the expert may 23 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at [66]-[90]; see also be used in the proceeding unless the Heydon, Cross on Evidence (11th ed, 2017), at [29070]; (ii) Unless the Court orders otherwise, an supplementary report has been served 24 (2011) 243 CLR 588 at [41] expert witness’s evidence in chief must on all parties affected: r 31.34(1). 25 ALRC 26, vol 1, paragraph [750] be given by the tender of one or more 26 Langford v Tasmania [2018] TASCCA 1 at [36]-[42]; Taub v R (2017) expert’s reports: r 31.21. The failure to comply with one or more of 95 NSWLR 388; [2017] NSWCCA 198 at [30]-[33]; Kyluk v Chief the requirements of Part 31 of the UCPR does Executive, Office of Environment and Heritage (2013) 298 ALR 532; [2013] NSWCCA 114 at [176]-[179] (iii) The expert witness must comply with the not result in the evidence being automatical- 27 Taub at [33] code of conduct set out in Schedule 7 of ly inadmissible under s 79 of the Act, nor 28 Langford at [40] the UCPR: r 31.23(1). Unless the Court does it result in the mandatory exclusion of 29 See eg Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 7) orders otherwise, the expert’s report may the expert evidence under s 135 of Act. How- [2008] FCA 1364 at [332]-[354]. not be admitted in evidence unless the ever, the failure to comply with the relevant 30 A useful discussion of ‘exceptional circumstances’ under the predecessor report contains an acknowledgment by requirements of UCPR Part 31 may provide rule to r 31.28(4) is set out in Yacoub v Pilington (Aust) Pty Ltd [2007] the expert that he or she has read the grounds for the discretionary exclusion of the NSWCA 290 at [66]-[67] (and see also DJ Singh v DH Singh and Code of Conduct and agrees to be bound evidence under s 135 of the Act.31 That being Others [2018] NSWCA 30 at [91]. by it: r 31.23(3). Furthermore, the Court the case, on any application to exclude expert 31 Chen v R [2018] NSWCCA 106 at [20]-[29]; Wood v R (2012) 84 may not receive oral evidence from the evidence under s 135 of the Act, it will be NSWLR 581 at [728]-[729] expert unless it orders otherwise or the necessary to consider whether the probative expert has acknowledged that he or value of the evidence is outweighed by any she has read the Code of Conduct and prejudice, confusion or undue waste of time agrees to be bound by it: r 31.23(4); caused by the failure(s) to comply with Part 31 of the UCPR. (iv) A party must serve an expert report in accordance with a Court order, or any Conclusion relevant practice note, or if no such order or practice note is in force, at least As can be seen, the admissibility of expert 28 days before the hearing: r 31.28(1). evidence requires more than a knowledge Except by leave of the Court or with the of s 79 of the Act. That provision must be

The Journal of the NSW Bar Association [2018] (Spring) Bar News 85 LEGAL HISTORY

The fascinating life of James Martin

John and Patricia Azarias, co-founders of the Lysicrates Foundation, introduce us to the Martin Orations, named in honour of James Martin, QC, attorney general, premier and chief justice of New South Wales.

The hub of Sydney is named after a forgotten wife of Governor Hercules Robinson refused man. Not one in a hundred people could to admit to her salon, who was blocked from say today who he was. Yet the story of James becoming chancellor of Sydney University, Martin (1820-1886) is a very Australian one and who was blackballed twice by one of the – poor boy makes good through talent and most prestigious Sydney men’s clubs, ended determination, rises to the highest positions up being able to ‘break the wig ceiling’ (as in the land, and shapes the future of the Katie Walsh says in her 8 March AFR article, nation. It is time he was better known. Just how white is the legal profession? written Born in Ireland, James Martin, son of Gov- on the occasion of the 2018 International ernor Brisbane’s horse groom, was brought Women’s Day), in a world dominated by up in the servants’ quarters of Parramatta’s supercilious and exclusionary English prac- Government House. His talents emerged tices. A triumph for the nascent diversity of very early, and by the time he was 12, it was Australian society. obvious he had to go on with his education. The life is fascinating enough. But Mar- In 1832, there were no high schools in Par- tin’s passions are even more instructive for ramatta, so his father tried to get a job in us today. His ruling drive was self-determi- Sydney, but failed. The penniless boy looked nation for a strong colony. To that end, he set for a life cleaning out horse boxes. started programs to train street urchins in a James, however, was having none of it. trade; as Premier he strongly supported his He told his father it was simple. To get to protégé Henry Parkes in the introduction of high school in Sydney, he would walk. From the Public Schools Act; he created the Mint, home in Parramatta. So for two years, until popularly called Martin’s Mint, so that his father did find a job in the city, the boy Australia did not have to depend on Britain walked, hitched rides, stayed overnight and for its coinage; he advocated for democracy did everything he could to get an education. and transparency in government, writing Within two years, the Sydney school he that ‘one of the greatest evils arising from walked to, W T Cape’s Academy in Phillip this system of irresponsible government is St, merged with Sydney College, and moved the mystery in which the motives and actual into the newly-constructed building nearby purposes of their rulers are hid from the which is now Sydney Grammar. colonists themselves’; he was the first major There the young Martin learned to love lawyer in the colony to promote its cultural Greek and Latin and everything they con- and intellectual endeavours; and, together veyed – balance, moderation, beauty, learn- with Parkes, he canvassed ideas for its future ing, the rule of law, and democracy. With a governance. rare gift for words, he wrote, at only 18 years Their biggest idea, of course, was federa- old, Australia’s first book on what life was tion. The two of them were often to be seen like in the colony. The next step was easy. He in one of their neighbouring Blue Mountains went into journalism, and became a feared houses, sitting on the verandah sipping a campaigner for the self-determination of the drink in the sunset, discussing how federa- colony. tion could be shaped and brought into being. It wasn’t enough. In his spare time, he As a politician, Martin may have been a studied the law, and within a few years, had firebrand. But as chief justice he was a model built a flourishing practice as a solicitor, and of scrupulousness and impartiality. later, as a barrister. By 1868, still a lover of It is an indictment of our public education the classics, he was rich enough to pay twenty of William Charles Wentworth. Soon he that the man who did so much to create it, thousand pounds for a spectacular garden for became the colony’s attorney-general, and and indeed our whole system of govern- his Potts Point house, to contain the lovely a QC, Australia’s fourth, and first local- ance, has been allowed to fall into oblivion. sandstone replica he had commissioned of ly-trained, one. However, Gilbert + Tobin and the Lysicrates the Lysicrates Monument (built in 334 B.C. And even that was not enough. He rose to Foundation have come together to revive our in Athens). Today you can find it in the become premier of New South Wales, three memory of James Martin, the man, and the Botanic Gardens, in an even more dramatic times, and ultimately, the first non-English boy. position. chief justice. He is the only person ever to Together they have established the annual But for Martin, even the law was not have filled all three roles. Martin Oration, to remember and honour enough. He entered politics, as the protégé So the poor Irish Catholic boy, whom the this giant of our past. Two Martin Ora-

86 [2018] (Spring) Bar News The Journal of the NSW Bar Association LEGAL HISTORY tions have now been delivered, one by Tom Bathurst AC, Chief Justice of the NSW The Lysicrates Foundation has sought Supreme Court, and the other by Robert French AC, former Chief Justice of the High to revive the memory of James Martin Court. through a number of initiatives. The A signal feature of Bathurst’s Martin Legal Friends of Lysicrates and James Oration was its stress on Martin’s actions Martin (patron T C F Bathurst CJ) has to affirm judicial independence, to adhere been established to support the work of to precedent, and to follow the court’s the Lysicrates Foundation. The sand- established colonial practice (rather than stone Lysicrates Monument, which he any contrary English practice). We hear a financed, a replica of an ancient Athe- distant echo of the firebrand under the full nian original built to celebrate a win bottomed wig. in the play competition that stopped In this, as Bathurst shows, two strains of the city every year for a week, has been Martin’s legal thinking are evident: on the restored through the Foundation, with one hand, the strength of his traditional the generous support of the NSW gov- view that the law was ‘a body of rules and ernment; and two drama competitions precepts to be interpreted and refined by on the ancient model have been inau- judges; but to be changed, if thought fit, only gurated: the Lysicrates Play Competi- by legislators’ 1, and on the other, his opinion tion, where it is the diverse (non-pay- that those rules and perspectives should be ing) audience that chooses the winner, those established in the colony, not in and by and the Martin-Lysicrates Play Com- the mother country. A traditionalist shaped petition for plays written for children, by his classical education to value the rule of held in Western Sydney, where it is the law; but a modern man, shaped by the new A replica of the Lysicrates Monument, which Martin children who vote for the winner. The environment of the colony. commissioned for his Potts Point home, now found in fourth Lysicrates Play Competition Bathurst stresses, too, some of Martin’s the Botanic Gardens, Sydney. was held on Sunday 11 March at the Photo: Kgbo / Wikimedia Commons extra-legal activities: his work as a trustee Opera House. The Governor of NSW, of the Australian Museum, as a member of General the Hon. David Hurley AC, the Hyde Park Improvement Society, as a Lamenting the ‘partisan clamour’ becom- DSC (Ret’d), presented the prize to promoter of Sydney College, which became ing endemic in Australia, he homes in on the the winner, Travis Cotton, in a strong Sydney Grammar, and as a strong advocate key issue. ‘The first responsibility of the hold- field including Christine Evans and H for children’s welfare and education. ers of public office, parliamentary officials Lawrence Sumner. In his Martin Oration, French builds on or judicial, in meeting the threat posed by In addition, the Lysicrates Foun- the approach taken by Bathurst. He begins those trends, is to treat each of their offices as by regretting how little contemporary Aus- a trust and commit to explaining what they dation has sponsored two statues of tralia does ‘to celebrate those leaders of the are doing and engaging intelligently with the boy James Martin striding off to Australian colonies who created the condi- their publics . . .trust by the people in their school, and an illustrated book, Ly- tions for one of the world’s most successful own institutions and trust-like behaviour by sicrates and Martin: Two Arts Patrons and durable representative democracies’. public officers are the fundamental binding return to give again, MUP 2017, about Going on to highlight the broad issue of force of our democracy’. To reinforce the the Foundation’s first three years. public trust and leadership, he points out that point, he cites Brennan CJ, who in 2013 said Gilbert + Tobin is a major Austral- throughout his whole life Martin ‘upheld the ‘all decisions and exercises of power [should] ian law firm. It places a strong stress dignity and authority of all three of his high be taken in the interests of the beneficiaries, on corporate social responsibility, and positions, was never accused of impropriety and that duty cannot be subordinated to, or supports numerous public interest in- or corruption, and profoundly believed in the qualified by, the interests of the trustee’. itiatives in the areas of justice, culture concept of public service as a public trust’. But while French is alert to the threats, he and sport. He goes on to highlight Martin’s contem- is not in the end pessimistic for Australia. He porary relevance – to the ‘idea of public office ends his Oration with the words: John and Patricia Azarias as a public trust and the related idea of public ‘Despite criticisms and concerns about the Co-founders, Lysicrates Foundation trust in the workings of our democracy and current state of democratic government, Aus- its institutions which underpin their legiti- tralia remains a stable, durable and successful macy, their authority and their effectiveness’. democracy. It could be better than it is. It is Against Martin’s upholding of the concept part of the legacy that Sir James Martin and of public service as a public trust, French his fellow nation-builders left to us. It is our looks at today’s rather different climate. duty to pass it on, at least intact, and, if pos- Today, he says, sible, enhanced, to succeeding generations’. We are fortunate to see such eminent ju- Democracy and its institutions are under rists following Martin’s thoughtful and civi- challenge around the world… [we see] lised precedent. Their distinction of mind is a declining trust and rising populism… modern reflection of that of Martin himself. [and] disenchantment and lack of trust open the way for the snake-oil salesmen END NOTES of populism, to come in from the bad 1 J M Bennett, Sir James Martin, The Federation Press, 2005 p. 313, lands of political ideologies to offer their quoted by Bathurst in his Oration. own simplistic nostrums.

The Journal of the NSW Bar Association [2018] (Spring) Bar News 87 LEGAL HISTORY

United Nations Day Lecture 2017 50 years of UNCITRAL: What’s next?

By Tim D Castle1

Introduction what is UNCITRAL; second, what are some of its achievements in the past 50 years; and, The United Nations Commission on In- third, how might UNCITRAL’s role evolve ternational Trade Law (UNCITRAL) was over the next decade? founded by a resolution of the United Nations Before beginning, I would just like to General Assembly on 17 December 1966, just add some further context. As a result of the over 50 years ago to further the progressive Wellington meeting, with the endorsement harmonisation and modernisation of interna- and support of the Commonwealth Attorney tional trade law.2 General’s Department (which has primary One of Australia’s early representatives at an responsibility for Australia’s engagement with UNCITRAL meeting in 1970 was the Hon. UNCITRAL), the Law Council of Australia Robert Ellicott AC QC, then Solicitor-Gener- and UNCITRAL itself, I set up the body al for Australia. He recently commented at the as the Australian Prime Minister. now known as UNCCA - the UNCITRAL Sydney presentation of this lecture at how he Casting our attention back to this era, we National Coordination Committee of Aus- was struck by ‘the commonality of principles see a picture of the world emerging from tralia - in 2013, which I currently chair. This that bring people together – fairness, equity, European colonialism, the latter stages of is our first UN Day lecture, which has now relevance and integrity’. That ethos, estab- the Cold War, and the first steps being taken been delivered in Adelaide, Perth, Brisbane, lished early on in the life of UNCITRAL, towards the global revolutions in commerce, Melbourne, Canberra and Sydney,3 and I permeated its work throughout its first telecommunications and transportation that hope will become an annual fixture on the half-century and continues today. we know today. legal program in future years. I will say a little My own journey in relation to the United Fast-forward to 2012, when I had my first bit more about UNCCA later in this paper. Nations started 39 years ago in 1978, when engagement with UNCITRAL in a side-dis- I was selected as a NSW representative at a cussion that took place in a conference room I - What is UNCITRAL? model United Nations conference in Hobart. overlooking Wellington Harbour in New I was assigned the role of representing China Zealand. At that time, I was an observer on Many of you will have heard of the acronym in our deliberations, possibly because I was behalf of the New York State Bar Association UNCITRAL – which stands for United one of the first to enroll in what was then a at a meeting of the CISG Advisory Council, Nations Commission on International Trade new subject at high school called “Asian Social having just completed my qualifications to Law - from the UNCITRAL Model Law on Studies”. act as an Arbitrator as a Fellow of the Char- Arbitration, which has been incorporated in To put these dates in further context, back tered Institute of Arbitrators. That’s a rather Australian legislation in the International then Anzac Day marches were still led by big mouthful, but is indicative of the inter- Arbitration Act 1974.4 veterans from the Boer War, President Nixon connected way in which the modern world The Model Law is referred to generically visited China for the first time in 1972. In operates. as a legal “text”, which is produced by the 1975 the Vietnam war ended, Britain voted The theme of this paper is to address some processes set up by UNCITRAL. There are to enter the European Common Market and of those interconnections from a distinctly several other types of texts, which include Gough Whitlam was sacked by Sir John Kerr Australian viewpoint, in three parts - first, ‘conventions’, ‘model laws’, and ‘legislative

88 [2018] (Spring) Bar News The Journal of the NSW Bar Association LEGAL HISTORY

Representing Australia at the UN in 1966: Solicitor-General the Hon. Robert Ellicott QC. guides’, in ascending order of flexibility of they are very large, well structured technical That process is necessarily time-consum- application. committees comprising government repre- ing, but through discussion there can be the The problem that all of these texts seek to sentatives and invited NGO observers. discovery of common ground, the identifi- address is how to develop a uniform interna- As a result of the work of UNCCA, Aus- cation of differences and the harnessing of tional legal regime to minimise differences tralians now participate in every working energy to find solutions. On the other hand, between sovereign states. The UN is not, of group meeting either as delegates of the there is little point in developing a text that course, an international parliament. Thus, a incorporates some but not all points of view, workable approximation involves the devel- if the object is to produce a harmonised set opment of a standard or harmonised set of of legal rules, which has a universal global legal rules that can be applied by and across Forging consensus is an ambitious appeal to nation states. individual nations to minimise legal friction Relevantly, these points of view must take for businesses trading internationally. goal, and in one sense this is into account the dichotomies between civil This, in short, is the raison d’etre of and common law traditions, developed and UNCITRAL. the genius of UNCITRAL’s developing countries, western democracies It is an independent commission com- and socialist states, federal states and unitary prising 60 member states elected every three traditions and structure, but systems, and different religious cultures. years by the UN General Assembly. It is sup- Forging consensus is an ambitious goal, ported by a permanent Secretariat, based in it is also its vulnerability and in one sense this is the genius of UN- Vienna, of about 14 legal officers, who form CITRAL’s traditions and structure, but it is part of the Office of Legal Affairs of the UN. also its vulnerability, as I will return to in the Australia is currently a member of UNCI- Parts II and III of this paper. TRAL having been elected in 2015 for a 6 Australian government or as observers, usu- How does the process work in practice? year term. UNCITRAL also has a Regional ally on behalf of LAWASIA. I will return to It starts with a ‘mandate’ or legal task being Centre for the Asia Pacific Region, based in aspects of the work of the working groups given by the commission to one of the six Incheon, South Korea.5 later in this paper. working groups. Typically each working Sitting beneath the commission are six The short point to make is this. The work- group will be working on one major mandate working groups which are responsible for ing groups provide a rare forum for multi-lat- at any given time, although some mandates developing and drafting the texts. Each eral discussions of commercial and trade may give rise to several related texts, such as a working group meets twice a year for a week, law issues, with a clear focus on producing a Model Law and a Guide to Enactment. once in New York, and the second time in solution, in the form of a text, by consensus. The commission meets once a year in July, Vienna – 12 meetings in all per year, with UNCITRAL is clear that its modus oper- alternately in Vienna or in New York, for a continuous translation during their sessions andi requires decision-making by consensus 2-3 week period. At that meeting it assigns into the six official languages of the UN. The at every level through the development and new mandates, and reviews the progress on best way I can describe these meetings is that finalisation of its texts. existing mandates through reports from each

The Journal of the NSW Bar Association [2018] (Spring) Bar News 89 LEGAL HISTORY of the working groups. the Australian Government does not give both of which provide an insight into the Once a text is completed by a working the Commonwealth power to override the complexity of the adoption process. group, meaning consensus on all of the allocation of powers under the Constitution.9 The first is a review of the Convention, by terms of the text has been reached, it is then I propose to deal with five texts to illustrate the Australian Parliament, through the Joint considered in detail by the commission. Fi- the complexities, successes and shortcomings Standing Committee on Treaties (JSCOT), nalisation, or adoption, by the commission of the UNCITRAL process, as seen from an which I understand is presently underway. gives the text its official status. This is not a Australian perspective. The second is the passing of amendments to formality, even though the commission will the International Arbitration Act to ensure have been involved in prior consideration of 1. International Commercial Arbitration Australian domestic law conforms to the the work on the text as it has been progressed. obligations under the Convention. These Again, however, consensus is the key, and The first text, or related series of texts, are amendments form part of an omnibus law government and political considerations are those which underpin the global system of reform bill currently before the Senate, which more likely to be at the forefront of delibera- international commercial arbitration. This is will hopefully pass soon.14 tions at the commission meeting than in the an easy starting point as the High Court has I hope it is not an over-prediction to state working groups. recently confirmed in the TCL case that this that UNCITRAL texts have now largely For completeness, I should also mention is an appropriate matter for Commonwealth completed the task of developing the legal that certain texts, such as conventions, re- legislation and, specifically that the enforce- infrastructure required to support the system quire approval by the UN General Assembly ment by Australian courts of international of international commercial arbitration. before they are finalised.6 In any event, the arbitration awards is not inconsistent with The current work of Working Group II in- work of UNCITRAL is reported annually to Commonwealth judicial power.10 volves the development of texts to support the General Assembly, and the work of UN- International commercial arbitration also a similar system for conciliation, being the CITRAL is considered to be an important has a well-established track record that facil- phrase used to describe alternative dispute part of the broader goals of the UN associat- itates international trade, by allowing disputes resolution. Representatives of the Australian ed with the promotion of the rule of law and to be resolved by arbitral bodies that private government and UNCCA have been actively human rights generally.7 parties are prepared to trust, and it is an area engaged in this project, and it may be a suita- This whole process from inception to final- where Australian lawyers are already making ble topic for next year’s UN Day lecture. isation can take many years. This is a lecture an impact. One final comment to make in relation to in itself, but the process works in many cases, The main text underpinning this system is arbitration is to refer to the joint judgment of although not so well in others, as I will turn the New York Convention on the Recognition French CJ and Gageler J in the TCL Case. to shortly. and Enforcement of Foreign Arbitral Awards In that judgment, their Honours specifical- I want to just say something briefly about (1958).11 Although this Convention predates ly referred to and relied upon the ‘travaux the Secretariat. It has two main functions in UNCITRAL, UNCITRAL has taken on preparatoires’ of UNCITRAL, being the practice. First, it provides the organisational responsibility for the promotion of this text Working Group meeting records, for the support for the working groups and their for adoption and implementation around the purpose of interpretation of the Australian meetings, but the Secretariat does not partic- world. The Convention is also given force of statute.15 This is a signal reminder to all of ipate in the deliberations, maintaining studi- law in Australia by the International Arbitra- us of the importance not only of the text as ous neutrality and leaving the discussions to tion Act 1974. The Convention provides, in the outcome of the process, but also to the the participants. Second, once a text has been essence, that a properly constituted arbitral records of the process itself, as we are called adopted by the commission, the Secretariat, award can be enforced in any convention upon increasingly to interpret or comment particularly in the Asian region through countries without a re-hearing on the merits, upon international law instruments adopted the Regional Centre, organises conferences with very limited exceptions (even if it is prima in Australia. and seminars to promote the adoption and facie erroneous). There are 157 countries that implementation of texts - which is also work are parties to the New York Convention, with 2. International Sale of Goods - CISG which we in UNCCA have been involved in more being added each year.12 assisting, when invited to do so. There are 12 arbitration texts listed on the The CISG, or UN Convention on Contracts UNCITRAL website, the most recent of for the International Sale of Goods 1980 (also II - UNCITRAL texts and Australia which is the United Nations Convention on called the Vienna Convention), provides an Transparency in Treaty-based Investor-State interesting contrast to the topic of interna- The next phase in the process, once a text Arbitration 2014 (‘Mauritius Convention’). tional arbitration. This text represents Aus- has been finalised, is known as adoption and This Treaty enables investor state arbitra- tralian federalism at its best. The Convention implementation. In this part of the paper, I tions, like the plain-packaging tobacco arbi- was signed in 1980 and came into effect on 1 will examine these issues, by looking at the tration, to be conducted ‘transparently’. That January 1988. Australia signed the Conven- Australian experience with five UNCITRAL is, by allowing confidentiality restrictions on tion on 17 March 1988, and within approx- texts. Please bear in mind that to have a truly the arbitration proceedings and award to be imately 12 months, all States and Territories harmonised international law, the process of removed, as these disputes engage not merely passed parallel legislation implementing the adoption and implementation must be repli- private interests, but also the public interest CISG to enable the Convention to come into cated by countries around the world. So, in in the actions of government parties.13 effect domestically on 1 April 1989.16 one sense the finalisation by UNCITRAL of The Convention entered into force on 18 The CISG differs from the arbitration a text is only the start of the harmonisation October 2017, and is a good illustration of example in the sense that it deals with sub- process. the adoption process. Australian Govern- stantive law and not merely jurisdiction and The first and obvious point to make is ment representatives were actively involved procedure. Three important facts about the that an international instrument, even one in the development of the Convention, as CISG that I wish to note specifically:17 supported and signed by Australia, does not members of Working Group II. The Austral- enter domestic law by its own force. It must ian Government has indicated its support for (a) There are now 87 countries which have be embodied in local legislation.8 the Convention, by signing it. However the adopted it, comprising all our major A second and related point is that the mere Government has not yet ratified it, as there trading partners, except the United signing of an international convention by are two domestic matters to be addressed, Kingdom;

90 [2018] (Spring) Bar News The Journal of the NSW Bar Association LEGAL HISTORY

(b) Many countries, including China have current era of global trade, travel and com- that arises from conflict between insolvency based their domestic contract law on the munications. administrators of group companies, and the CISG; serendipity of where assets and creditors are 3. Cross-border insolvency located at the time of liquidation. Put simply, (c) There is an international jurisprudence groups that are run as a single global enterprise about implementation of the CISG The UNCITRAL Model Law on Cross-Bor- are intended by the Model Law to be liquidat- which includes the important work of der Insolvency 1997 is another UNCITRAL ed as a single global enterprise. a voluntary body of experts - the CISG achievement. The Model Law has been adopt- Australia is one of 43 states to adopt the Advisory Council, whose meeting I ed in Australia,21 and was successfully tested Model Law, having done so in 2008, noting attended in Wellington - who seek in a in the aftermath of the Global Financial Crisis that Japan and Mexico adopted it in 2000, the very practical way to bridge common (GFC) of 2007/2008. United Kingdom adopted it in 2003 and the law and civil law concepts through the The problem this text addresses is a conse- United States in 2005. Singapore is a recent ongoing preparation of expert opinions quence of the rise of multinational corpora- addition to the list, with an adoption in 2017. which they issue and publish in support tions, with numerous subsidiaries around the There are notable absences from the list of of a harmonised interpretation of the world, and the easy movement of assets - par- adopting countries, in particular the Euro- CISG.18 ticularly cash – within those corporate groups pean Union, which has its own rules relating to jurisdictions that may have very little to do to cross-border insolvency between member Behind this apparent success, there are with the business operations that generated states,22 as well as Brazil, China, India and three caveats that should be made: those assets. The advantages of such a regime Russia. may be seen with the failure of corporations In UNCITRAL terms, this Model Law is (a) First, parties can opt out of the CISG still in its early stages, particularly given the under Article 6, which Australian parties absence of the EU states. It would be naïve do on a regular basis, driven in part by to suggest that the Model Law is a panacea, the boilerplate provisions in large law although like the CISG, it is a substantial firm precedents - a matter which requires Over time, an international body achievement to have a text that works, even if a more thorough analysis and debate over there are imperfections. One of the potential time. of law can be expected to emerge, problem areas to emerge is the risk of forum with new problems arising, shopping by groups approaching insolvency, to (b) Secondly, the legal profession does not produce a favourable location for the COMI, always recognise that where the CISG and being addressed, in what which suits the interests of management or applies, it excludes domestic Sale of Goods particular groups of creditors. Acts. The two sources of law are not the one might hope is a relatively This type of problem was the subject of an same, one striking example being the important Australian decision in a case called ability of parties to rely upon subsequent harmonised way between the Akers v Deputy Commissioner of Taxation23 in conduct for the purpose of interpreting which the Full Federal Court upheld a deci- the contract. This can lead ultimately to courts of the relevant countries. sion of Rares J to refuse to order payment of judicial error, where counsel either fail to certain Australian assets to a liquidator of a rely upon the CISG, or alternatively seek company called Saad that was in liquidation in to apply domestic jurisprudence rather the Cayman Islands, a Model Law state. The than international jurisprudence, to the such as Lehman Brothers, a financial giant problem for the liquidator of Saad was that the interpretation of it.19 with over US$600bn in assets worldwide. Australian tax debt would not be recognised Multiple questions of great complexity arise in in the Cayman Islands (as the COMI) as a (c) Thirdly, it has been pointed out relation to how the assets of such corporations valid claim on the assets in the global liqui- that the CISG is a product of 1970s can be collected and distributed in a fair and dation. Thus, put briefly, the court applied contract jurisprudence, which does equitable manner to creditors and other stake- Arts 21.2 and 22.3 of the Model Law to refuse not include many developments in the holders. part of the transfer to ensure the interests of a realm of estoppel and the infusion of The impetus for UNCITRAL to undertake local creditor (here the DCT) were adequately equitable principles that form part of work on the Model Law was the aftermath of protected in a fair and equitable manner. our current contract law in Australia. the 1987 stock-market crash, almost 10 years Over time, an international body of law can An attempt by the Swiss Government before the Model Law was finalised, and 20 be expected to emerge, with new problems aris- several years ago to seek to redress this years before the GFC where it was tested. ing, and being addressed, in what one might perceived shortcoming did not achieve The aim of the Model Law is to envisage a hope is a relatively harmonised way between the necessary support at UNCITRAL; single liquidation of the corporate group by the courts of the relevant countries. I should however, UNCITRAL is now working the recognition of a Centre of Main Interest note that outside the formal UNCITRAL on a joint project to examine the workings (COMI) as being the place where the prin- processes, UNCITRAL organises judicial of international sales law with the Hague cipal liquidation is to occur. The central idea and non-judicial workshops and colloquia on Conference on International Law and is that the COMI approximates the location a range of topics including cross-border insol- with UNIDROIT. 20 of the headquarters of the corporate group, vency. This role of UNCITRAL, which goes pre-insolvency. All other courts and local liq- by the general name ‘technical assistance’, With respect to these caveats, one might uidators around the world are then obliged to forms part of its role in the implementation of say that it is better to have something which act in support of the court and liquidator (or texts. applies broadly at the international level, equivalent) at the COMI. That is, once the government of a state even allowing for its imperfections, than In this way, the expectation is that all assets formally adopts the text, there is then a famil- nothing; but there is certainly a live issue dis- of the group can be pooled and distributed in iarisation process which must be undertaken cussed overseas about how the international an equitable manner to creditors and other in all legal and commercial communities to community should deal with the problem of stakeholders having a claim against the group. embed consciousness of the text among rele- updating international contract law in the Such a process minimises the time and cost vant actors to make sure the text is used and

The Journal of the NSW Bar Association [2018] (Spring) Bar News 91 LEGAL HISTORY applied. Public lectures, such as these United The net result was nine matching Acts, but will not be Convention-compliant, and will Nations Day lectures, and this subsequently nine separate regulations and lists of exclu- slip behind world best practice in electronic published paper, are all part of the dissemina- sions prepared by nine sets of parliamentary commerce until action is taken. tion process, and it is one of the areas for future drafters. Although there are some common In the meantime, the ECC Convention development by UNCCA within Australia subjects for exclusion, such as wills and con- continues to grow in status, with countries and in our region. I might add that one of the veyancing documents, the regulations are not such as Fiji and Cameroon becoming signato- benefits of harmonised texts, and an interna- a model of coherence and uniformity which ries in 2017, joining other earlier adopters such tional jurisprudence in support of that text, is exhibit the benefits of harmonised law – quite as Singapore and Russia. Further, the ECC that local legal skills can be readily translated the opposite. Convention was to be one of the platforms to and applied outside Australia in dealing with The problem with this lack of uniformity be mandated by the Trans Pacific Partnership problems arising under the Model Law. became apparent when the Model Law of (TPP) Agreement, which has not proceeded. There is much more to say than time allows 1996 was updated by the ECC Convention of However one might speculate that any subse- in relation to the area of cross-border insolvency and Working Group V, which has a full agenda of matters for consideration that has engaged, and continues to engage, an active international insolvency profession in Australia.

4. Electronic commerce

The fourth topic is one on which Australia has a mixed score-card, and highlights the difficulties of our federal system in maintaining leading-edge status in international commercial law. I doubt that many of you will have looked into why it is that the law accepts electronic communications in most cases to be the equivalent of traditional hard copy communications. We just seem to take for granted that what can be done by email, or other electronic interaction, will be as good in most cases as if we had taken out pen and paper and sent the communication in the post, with an envelope and stamp on it. UNCITRAL prepared its first Model Law on Electronic Commerce in 1996 – the year Google was Representing Australia at the UN in 1966: Solicitor-General the Hon. Robert Ellicott QC. invented, the Palm Pilot was released and Microsoft released its first web browser. In 2001, UNCITRAL produced a Model Law 2008. The Standing Committee of Attorneys quent multilateral trade agreement will adopt on Electronic Signatures, and in 2008 UNCI- General, as it was then known, endorsed the a similar methodology. I remain hopeful that TRAL produced a Convention on the Use of amendment of the Electronic Transaction we will have some better news to report next Electronic Communications in International Acts to encompass the changes embodied in year in relation to the amendment at least of Contracts (known as the ECC Convention). the 2008 ECC Convention. This occurred in the relevant Commonwealth regulation and Just to remind you, in 2008, the iPhone had April 2007. JSCOT also approved the entry the subsequent entry into the ECC Conven- just been released, and we were still running by Australian into the Convention in 2011.25 tion. Windows XP on our computers. However the nine state, territory and Com- The problem in Australia is that electronic monwealth parliaments did not complete the 5. Rotterdam Rules commerce, like the sale of goods, involves process of amending their Acts until 2013. both state and federal law. The 1996 Model Although the Commonwealth attor- The fifth area paints a different picture again Law on Electronic Commerce was adopted by ney-general, Senator the Hon George Brandis of the limits of legal harmonisation attempts matching legislation around Australia, both at QC announced in December 2015 that Aus- by UNCITRAL. In 2009, the UN passed the state and federal level by a series of cognate tralia would move to become a party to the a Convention on Contracts for the Interna- Electronic Transactions Acts.24 An important ECC Convention, this has not occurred in tional Carriage of Goods Wholly or Partly point to make here about Model Laws, as a part because of the mish-mash of exceptions by Sea, known as the Rotterdam Rules. This form of UNCITRAL text, is that there is that exist in the regulations under the respec- was an ambitious project commissioned by greater room for flexibility than with Conven- tive Electronic Transactions Acts. A particular UNCITRAL to create a coherent set of rules tions. This flexibility is important for allowing problem in this regard is the Commonwealth to govern the rights and liabilities of parties differences between states and jurisdictions. Regulation, which clearly needs an overhaul as involved in the international carriage of In the area of electronic commerce, the in- its exemptions include references to Acts that goods from door-to-door. dividual differences between the jurisdictions have been repealed and practices that no are The problem these Rules were seeking to was provided for by creating common core no longer used. UNCCA has been offering address is that the domestic part of any car- provisions in the relevant Electronic Transac- advice and suggestions to the Australian Gov- riage of goods, say by road or rail, was regu- tion Acts, but allowing each jurisdiction the ernment about these problems, but as yet there lated by domestic law, while the international ability to exclude the operation of the Act by is no clear solution emerging. The short point part of the carriage by sea was regulated by a regulation in relation to particular activities. is that until this matter is addressed, Australia international rules such as the Hague Rules

92 [2018] (Spring) Bar News The Journal of the NSW Bar Association LEGAL HISTORY or the Hague-Visby Rules. With the growth well-established existing rules, UNCITRAL against the country’s government. An analo- of international commerce, one might be may have a more difficult role to play than in gy to this remedy may be that of provisions tempted to say that it would make sense for the realm of creating new rules or bringing similar to s 51(xxxi) of the Australian Consti- there to be a single set of rules that applies coherence to existing rules and practices. tution, which provide for the acquisition of to individual shipments from the supplier property on just terms. in country A to the consumer or business in III. What’s next? Australia has recent experience of such country B. an ISDS dispute, when Philip Morris com- The Rotterdam Rules were the product In this final part of this paper, I wish to menced an arbitration seeking substantial of seven years work by Working Group I touch on two current UNCITRAL projects, damages against Australia in relation to the from 2002-2009, yet the Convention is not which are both of a very different nature, passing of the plain packaging tobacco laws. in force and there are parties who support and highlight some interesting issues about In that case the arbitral tribunal dismissed it and those who oppose it, both domesti- UNCITRAL’s future. Philip Morris’ claim on a preliminary point as to jurisdiction.26 This arbitration followed an unsuccessful application by another tobacco company to the High Court of Australia involving claims, inter alia, that the legislation contravened the just terms provision of the Constitution.27 There are three important issues that are raised by this topic. First, the desirability of having a mechanism that allows claims to be made by investors, to encourage foreign investment, by removing an element of sovereign risk. Secondly, the philosophical dilemma of an international tribunal (however constituted) passing judgment on the exercise by a state of its sovereign power to act. Thirdly, the tension between the role of the courts exercising judicial power within the state, in accordance with the Constitu- tion and usages of that state, and the role of external tribunals adjudicating on disputes arising out of a treaty entered into by the state with another state. The third of these issues has been the subject of a paper by French CJ.28 As the tobacco litigation demonstrated, this tension is not merely theoretical. While it may be accepted that the High Court and the ISDS arbitration in relation to a given piece of legislation would be concerned with different legal heads of claim, it is questionable whether the L to R: Chrissa Loukas SC, the Hon Justice Steven Rares, the Hon Robert Ellicott AC QC, Tim Castle, barrister and chair of UNCCA Australian public would be so discerning, if the High Court were seen to be upholding cally and internationally. Where particular 1. Investor State Dispute Settlement the legislation and an arbitral tribunal (not parties stand in relation to the Rules seems subject to any right of appeal) was seen to be to be related to whether the new Rules will At its meeting in July 2017, the commission declaring the same legislation to be a breach create a perceived advantage or disadvantage debated and resolved to give a new mandate of Australia’s international duties, sounding to their side of the industry, vis-à-vis other to Working Group III to examine the current in a very large award of damages. participants in the transport industry. That concerns about the workings of the Investor There are, of course, other areas in which is, sources of support and opposition do not State Dispute Settlement (ISDS) process, the Australian Government participates in appear to be geographically aligned, which of and consider whether reforms were desirable. international tribunals – a recent example course makes the role for governments more This is a complex topic, and the most I can being the case involving Timor-Leste and difficult as they have constituents and stake- do at this stage is set out some preliminary Australia’s maritime boundaries in the Per- holder groups on both sides of the debate. remarks. manent Court of Arbitration, or Australia’s I do not wish to enter into the substantive For those of you who have not encountered claim against Japan in relation to whaling debate, even if there were time to do so. the term ISDS, it is a relatively recent devel- in the International Court of Justice.29 This However, the point I would make is that the opment in trade law. In essence, the bilateral leads to one of the criticisms that has been Rotterdam Rules may be unique from the investment treaties (BITs) of many countries made of the current ISDS system, that it is other areas I have examined, in that these now provide a remedy for an overseas entity essentially one based upon ad hoc tribunals Rules represent an attempt to fundamentally which makes a financial investment in a constituted by private individuals who are reshape an existing industry and practices, foreign country. Where the government of appointed as arbitrators. These individuals rather than put in place a harmonised legal that country exercises its sovereign power are all eminent members of the arbitration framework where there were either no exist- to change the law in that country which community, and as a member of that coming rules, or the pre-existing rules and prac- adversely affects the investment made by the munity, I can attest to the high standards tices were weak or divergent. In other words, foreign entity, the foreign entity has the right expected of its members. But the eminence in the realm of change-management of to commence an arbitration seeking damages and qualifications of the individuals is not

The Journal of the NSW Bar Association [2018] (Spring) Bar News 93 LEGAL HISTORY the essential point. participate in these discussions. fied set of rules here for small business. This The real question I suspect goes much is not an uncommon scenario – UNCITRAL deeper, and it is one of the challenges of 2. Simplified Company Law for has recently adopted new Model Laws in rela- our times. That is, as Spigelman CJ often Less Developed Countries tion to Secured Transactions. While Australia remarked, the legitimacy of the exercise of has its own relatively well-developed Personal judicial power depends upon public accept- From the macro to micro, I wish to finish Property Security Act (PPSA), one of the ance of the institutional presence of a court with one of UNCITRAL’s ongoing projects projects being undertaken in UNCCA at the and the court system, rather than upon the that is close to my own area of legal practice. moment is to look at the insights provided by individual judges who comprised the courts It is the work of Working Group I, which the Model Laws for the operation and applica- from time to time.30 In the case of private I have the privilege of contributing to, in tion of our own PPSA. disputes, party autonomy naturally leads to relation to the development of a text for a Returning to Working Group I, what I the conclusion that private appointment of simplified company law for less developed encountered in New York in April 2016 was ad hoc arbitration panels is an acceptable countries. an attempt by over 100 individuals from exercise of the power to resolve that dispute. This mandate commenced in 2013 as part around the world to try to distil the essence I am not sure that the same logic applies to of a limited liability entity. It was not an easy disputes about the exercise of public power. task, because of the overlay of systemic and I don’t wish to say too much more on this cultural conceptions of what a company is topic, other than to refer to an excellent and does. paper given by Warren CJ and Croft J in Company law in developed At a personal level, I felt that the wheel relation to the advantages of international had come full circle from my student days commercial courts.31 Such a court now exists countries like Australia is at the model UN conference I attended in in Singapore, as an extension of its domestic Hobart in 1978. However, this time the work court system, and there is no reason why an complex, to say the least, and was being done by committed experts from Australian International Commercial Court is hardly a model for countries around the world, seeking to address chal- could not be established, as their Honours lenging issues potentially affecting the lives have observed. and communities seeking to of millions of ordinary people, founded, as One of the questions for Working Group Mr Ellicott QC observed, on the search for III will be whether some form of court ought take the first, tentative steps common principles of universal appeal. This to be established to deal with Investor State work will continue, and I hope with a suc- Disputes, whether as a permanent court, towards economic participation cessful and durable outcome for the benefit or as an appellate body to link in with the of the global community generally. existing arbitration mechanisms. However, in global supply chains. there are then a myriad of issues to be worked Conclusion through – what are the extent of its powers, how are judges appointed, where should it be This paper has, in many respects, only based and so on. of a desire on the part of UNCITRAL to touched the surface of the work of UNCI- The point I wish to make is this, as Work- provide assistance to less developed coun- TRAL. As I have sought to convey, it has ing Group III embarks on its journey into tries to reap the benefits of globalisation, developed an institutional strength and uncharted waters, UNCITRAL has been by allowing women and communities, for robustness to distil the essence of many selected by the member states of the United example, to participate in the global supply important problem areas into workable legal Nations as the forum for the purpose of chain of goods and services. The founda- frameworks, through the process of discus- having these discussions – albeit over the tion assumption is that extending limited sion and consensus-building. objections initially made of several member liability to micro, small and medium enter- As one of the participants remarked at states. prises (MSMEs) will provide an important the Canberra presentation of this Seminar, To borrow slightly from Spigelman CJ, foundation for participation in economic UNCITRAL involves a rather unique part- such a decision recognises the institutional life. It allows the individuals behind the nership between the public and the private strength of UNCITRAL and its working entity to take risks associated with trade and sectors. On the one hand, government is groups, as a forum for conducting respect- investment, which are essential to economic concerned with effective and efficient -reg ful and effective debate and dialogue about participation. ulation. It makes the domestic laws and it issues that affect international trade and However, company law in developed coun- has the official seat at UNCITRAL and the commerce. It is a track record built up over 50 tries like Australia is complex, to say the least, UN. On the other hand, the rationale for the years, based on a model of consensus-driven and is hardly a model for countries and com- regulations is to facilitate trade and business decision-making, and it is an area in which munities seeking to take the first, tentative by the private sector, operating in a global Australia has played and continues to play an steps towards economic participation in global context. The private sector is therefore vitally effective role. supply chains. The exercise being undertaken interested both in the content of the texts We know that the Australian Government by WG I is therefore an attempt to start with being developed, and also in the adoption intends to play an important role in the ISDS a clean sheet of paper, to identify the essence and implementation of those texts within discussions, and we at UNCCA together of a limited liability corporation to allow mil- domestic legal systems. with other interested organisations hope lions of people to set themselves up in business My work with UNCCA illustrates the to provide such advice and opportunities quickly, cheaply and effectively. possibilities that a body such as ours can for consultation and discussion within the Although the idealism behind this project offer both to the government and also to our Australian legal and academic community is expressed in terms of those in developing stakeholders among legal practitioners, aca- as may be considered appropriate in support economies, it has certainly occurred to me demics and students interested in participat- of the Government’s endeavours. This will be that if a simplified company law could be ing in and contributing to the work of UN- an endeavour that will unfold, I expect, over developed with universal appeal, then it might CITRAL. It has been an inspiring journey many years, but I would encourage all of you also serve as a model for developed countries for me to work with so many passionate and who are interested to become informed and like Australia to attempt to introduced simpli- motivated individuals both in the Australian

94 [2018] (Spring) Bar News The Journal of the NSW Bar Association LEGAL HISTORY

community and also among our diaspora. END NOTES Sales Law in Frankfurt’, http://www.unidroit.org/89-news-and- This year, we have restructured our organi- events/2285-unidroit-uncitral-and-hcch-meet-with-experts-to-discuss- 1 Barrister, 6 St James Hall, Sydney; Chair of UNCITRAL National sation to take account of the interest and suc- guidance-document-on-international-sales-law-in-frankfurt. Coordination Committee for Australia (UNCCA); Fellow of the 21 Cross-Border Insolvency Act 2008 (Cth) cess we have achieved in the last four years. Chartered Institute of Arbitrators. We have now signed a Memorandum of Un- 2 ‘A Guide to UNCITRAL: Basic Facts about the United Nations 22 European Union Insolvency Regulation No 1346 (2000). derstanding with the University of Canberra Commission on International Trade Law’ (2013), www.uncitral.org 23 Akers v Deputy Commissioner of Taxation (2014) 223 FCR 8; to operate our Executive Office for the next 3 Adelaide in the Federal Court on 17 October 2017 with Besanko [2014] FCAFC 57. three years, and I will shortly be passing over J as chair and Hon Paul Finn as commentator; Perth in the Federal 24 Electronic Transactions Act 1999 (Cth); Electronic Transactions Act the role of Chair of UNCCA to Justice Neil Court on 18 October 2017 with McKerracher J as chair and Professor 2001 (ACT); Electronic Transactions Act 2000 (NSW); Electronic McKerracher of the Federal Court, based in Camilla Baasch Andersen as commentator; Brisbane in the Federal Transactions (Northern Territory) Act 2000 (NT); Electronic Transactions Court on 23 October 2017 with Greenwood J as chair and Professor (Queensland) Act 2001 (Qld); Electronic Transactions Act 2000 (SA); Perth. Electronic Transactions Act 2000 (Tas); Electronic Transactions (Victoria) That said, our work will continue. Aus- Khory McCormick as commentator; Melbourne at Corrs Chambers Westgarth on 24 October 2017 with Bronwyn Lincoln as chair and Act 2000 (Vic); Electronic Transactions Act 2003 (WA) tralia has, since 2015, been represented either Croft J as commentator; Canberra at University of Canberra on 1 25 House of Representatives Committees, ‘Chapter 4 United officially or by NGO Observers (through November 2017 with Professor Lawrence Pratchett as chair and Ian Nations Convention on the Use of Electronic Communications LAWASIA) at every UNCITRAL Working Govey AM as commentator; and Sydney in the Federal Court on in International Contracts 2005’, Report 116 (2011), https:// Group meeting. We have an established 5 December 2017 with Chrissa Loukas SC as chair and Rares J as www.aph.gov.au/Parliamentary_Business/Committees/House_of_ track-record of holding annual Seminars in commentator. Representatives_Committees?url=jsct/1march2011/report/chapter4. Canberra in May to encourage the inter- 4 The Model Law is set out in Schedule 2 to the International htm change of ideas between the Government and Arbitration Act 1974 (Cth). Section 16 of that Act gives the Model 26 Attorney General’s Department website, ‘Tobacco plain our UNCCA members; we have a successful Law the force of law in Australia. packaging – investor-state arbitration’, https://www.ag.gov.au/ 5 See Guide to UNCITRAL, op. cit., which contains further details. tobaccoplainpackaging student programme (UNLAWS) which has 27 JT International SA v Commonwealth (2012) 250 CLR 1. approved over 20 law students to attend UN- 6 Guide to UNCITRAL, para 48. 7 Guide to UNCITRAL paras 67-68. 28 French CJ, ‘ISDS- Litigating the Judiciary’, (2015), Chartered CITRAL Working Group meetings – many 8 Minister for Immigration and Ethnic Affairs v Teoh(1995) 183 CLR Institute of Arbitrators Centenary Conference,http://www.hcourt. with the financial support of their universi- 273. gov.au/assets/publications/speeches/current-justices/frenchcj/ ties; and now we have an annual UN Day 9 Commonwealth v Tasmania (Tasmanian Dams Case) (1983) 158 CLR frenchcj21mar15.pdf lecture to be delivered in major cities around 1 per Mason J at 131. 29 Timor Leste v Australia (Arbitration under the Timor Sea Treaty), Australia. I know that all of my colleagues at 10 TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court Permanent Court of Arbitration, see https://www.pcacases.com/web/ UNCCA look forward to continuing in this of Australia (2013) 251 CLR 533. See Allsop CJ and Croft J, ‘The view/37; Australia v Japan (Whaling in the Antarctic), International work, as do I, under our new structure. Role of Courts in Australia’s Arbitration Regime’, 11 November 2015, Court of Justice, see http://www.icj-cij.org/en/case/148 Thank you to all of our distinguished com- www.fedcourt.gov.au/digital-law-library/judges-speeches/chief-justice- 30 Spigelman CJ, ‘Seen to be done: The principle of open justice’ (1999), allsop/ in T.D.Castle (ed), Speeches of a Chief Justice: James Spigelman 1998- mentators and chairs who have participated 2008 (2008), Sydney. in this UN Day lecture series (noted earlier), 11 There are multiple websites where information about the Convention and all related documents can be found – see for example www. 31 Warren CJ and Croft J, ‘An International Commercial Court for and to those who have attended the lectures. newyorkconvention1958.org or www.newyorkconvention.org for a Australia: Looking beyond the New York Convention’ (2016), https:// This paper has undergone revision from its comprehensive set of references to the Convention, court decisions www.monash.edu/__data/assets/pdf_file/0009/467658/Com-CPD- initial draft to reflect some of the feedback around the world, travaux preparatoires and other related materials. April-2016-Paper.pdf and commentary received at these events. I 12 Of the 39 member nations of the UN that are not parties to hope that some of those in attendance may Convention, 13 are in the Asia-Pacific region - namely the Federated join UNCCA as a result, as associate mem- States of Micronesia, Kiribati, Nauru, Niue, North Korea, Palau, bers, and thereafter progress to full member- Papua New Guinea, Samoa, Solomon Islands, Timor-Leste, Tonga, ship (as Fellows of UNCCA) by attending Tuvalu and Vanuatu. future working group meetings. 13 The Convention text can be found on the UNCITRAL It would be remiss of me not to mention Website: http://www.uncitral.org/uncitral/en/uncitral_texts/ arbitration/2014Transparency_Convention.html in closing the tremendous support UNCCA 14 Civil Law and Justice Amendment Bill 2017, Schedule 7. This Bill also and I have received from my regular inter- includes amendments to the Acts Interpretation Act 1901, Archives Act action with the two heads of the Regional 1983, Bankruptcy Act 1996, Domicile Act 1982, Evidence Act 1995, Centre for Asia and the Pacific; initially Luca Family Law Act 1974, Legislation Act 2003, Marriage Act 1961 and the Castellani and more recently Joao Ribei- Sex Discrimination Act 1984. ro. Their professionalism, inspiration and 15 TCL case at [11]-[14] per French CJ and Gaegler J. guidance, and the ideas they have and are 16 Sale of Goods (Vienna Convention) Act 1987 (ACT); Sale of Goods constantly generating, have given our work (Vienna Convention) Act 1986 (NSW); Sale of Goods (Vienna at UNCCA a great sense of significance. Convention) Act 1987 (NT); Sale of Goods (Vienna Convention) Act The partnership we have with the Regional 1986 (Qld); Sale of Goods (Vienna Convention) Act 1986 (SA); Sale of Goods (Vienna Convention) Sale of Goods (Vienna Centre is a strong one, and there is plenty of Act 1987 (Tas); Convention) Act 1987 (Vic); Sale of Goods (Vienna Convention) Act scope for development in the future, in the 1986 (WA). area of the provision of experts to provide 17 There is a ealthw of information on the internet about the CISG, and technical assistance into the Asia and Pacific I would not do justice to it to summarise it in a footnote. The best Region. place to start is Pace University’s Institute of International Commercial Global commerce does not stand still. Law website, www.iicl.law.pace.edu, or the UNCITRAL website. The regulatory regime must keep pace, and 18 CISG Advisory Council website, www.cisgac.com UNCITRAL plays a vital role in facilitating 19 L. Spagnolo, ‘The Last utpost:O Automatic CISG Opt Outs, trade. I commend its work to you, and also Misapplications and the Costs of Ignoring the Vienna Sales the work undertaken by UNCCA in support Convention for Australian Lawyers’, [2009] Melbourne Journal of International Law of that work. 141. 20 This project is in its early stages, with a meeting of roupG of Experts taking place in October 2017 to coordinate the preparation of a guidance document – see ‘UNIDROIT, UNCITRAL and HCCH Meet with Experts to Discuss Guidance Document on International

The Journal of the NSW Bar Association [2018] (Spring) Bar News 95 LEGAL HISTORY

Here he lies: Justice Douglas’ Arlington grave

By Geoffrey Watson SC William Orville Douglas was an associate justice of the United States Supreme Court from 1939 until he reluctantly retired in 1975 – a period of 36 years, the longest service by a judge on that court. He remains admired, almost venerated, in liberal circles. A man of great natural intellectual ability with vast reserves of restless energy, Douglas betrayed those gifts with his arrogance, hubris, ambition and simple-minded prejudices. An uncontrolled sex-drive seriously complicated things. An egomaniac, he had scant regard for the constraints of precedent – he boasted ‘I’m not bound by precedents – I make precedents’. After 36 years on the Supreme Court Douglas managed to leave no positive mark

96 [2018] (Spring) Bar News The Journal of the NSW Bar Association LEGAL HISTORY on American jurisprudence. the truth has become so obscured by Doug- too boring. The odd thing is that Douglas seems gen- las’ deliberately false accounts of his life. Well, there is one obvious way of improv- erally well-remembered – well, he is We do know a few things for sure. Douglas ing the interest level of the story – just make well-remembered by those people who did was born in 1898 and raised in Yakima – a stuff up. As Douglas rewrote Of Men and not actually know him. The American jurist remote rural area in Washington state. He Mountains his life began to improve marked- and legal theorist, Judge Richard Posner, attended Whitman College in Walla Walla, ly in the retelling. For example, according to actually knew Douglas – and this is what Washington. He was accepted into Columbia his fictionalised version, Douglas descended Posner says: Law School. He graduated fifth in his class from a Civil War hero (untrue; his grandfa- (although he later claimed he ran second). ther was a deserter). He said he was raised in Apart from being a flagrant liar, Douglas He worked briefly in a ‘white shoe’ firm, poverty (untrue) and his early education was was a compulsive womanizer, a heavy but left for academia and taught at each of held back because of this (equally untrue). drinker, a terrible husband to each of Columbia and Yale. He became chief at the Slogging away against this (invented) injus- his four wives, a terrible father to his Securities Exchange Commission in those tice, Douglas told how he went on to be ac- two children, and a bored, distracted, heady days following the Wall Street crash. cepted by Columbia (that part is true), but he uncollegial, irresponsible, and at times He had strong and influential connections in said he was so short of money that he arrived unethical Supreme Court Justice the Democratic Party and was appointed by in New York in 1922 with six cents in his who regularly left the court for his Franklin Delano Roosevelt to the Supreme pocket (not true). He even said he could only summer vacation weeks before the term Court in 1939. Douglas was one of the cru- get to the University by smuggling himself ended. Rude, ice-cold, hot-tempered, cial appointments made by Roosevelt as part onboard a cattle car and ‘riding the rods’ like ungrateful, foul-mouthed, self- of his relentless drive to liberalise the court in a hobo (untrue; he was a fully paid passen- absorbed, and devoured by ambition, he the days of the New Deal. ger). His autobiography recounted how he was also financially reckless – at once a Early on I described Douglas as an egoma- struggled financially at Columbia (untrue; big spender, a tightwad, and a sponge – niac. This is a man who pictured himself in he lived comparatively well, supported by his who, while he was serving as a Justice, the Oval Office. Almost as soon as he was first wife who was a teacher). received a substantial salary from a appointed to the Supreme Court, Douglas And it was in Of Men and Mountains foundation established and controlled became bored and began exploring political that Douglas first introduced the American by a shady Las Vegas businessman. options. In 1944 the only candidates seri- public to the story his greatest fight – and his ously considered for the vice president were greatest triumph – his childhood battle with Not much fence-sitting there. Douglas and Harry Truman. The selection polio. Douglas told how he was destroyed by of a vice-president at that time was especially important because it was already obvious that Roosevelt was ailing – the vice-president A man of great natural intellectual was very likely soon to become president. ability with vast reserves of restless Douglas was bitter about losing that race An accurate biography is to Truman. Another shot at power failed in energy, Douglas betrayed those 1960 – Lyndon Johnson had promised to nearly impossible because the make Douglas his vice-president in the event gifts with his arrogance, hubris, that he won the Democratic Party nomina- truth has become so obscured tion. ambition and simple-minded Maybe this is why Douglas began to tell by Douglas’ deliberately so many lies about his own life. His own prejudices. An uncontrolled sex- life seemed, at least to him, to be a disap- false accounts of his life. pointment – could it be reconstructed and drive seriously complicated things. improved? Perhaps this is why he was always marrying younger and younger wives (he married his fourth wife when he was 68 – she Douglas’ story is complex and long – and was a 22 year old cocktail waitress). It seems that evil disease, but how he conquered his much too long for here. So I want to focus on that he was constantly attempting to reinvent disability and taught himself to walk again, the first point that was made by Posner – his himself. and how he built up his ‘pipestem legs’ climb- statement of fact that Douglas was ‘a flagrant ing the mountains near his childhood home. liar’. In particular I wish to tell the story The creation of a new, more The public loved this – and, to be honest, it about Douglas’ grave. Douglas died in 1980 exciting Bill Douglas really is inspiring stuff. Bear in mind this and was buried in Arlington National Cem- was only three years after the death of Roo- etery in that part of the grounds reserved for One of Posner’s points was that Douglas sevelt. Douglas must have seen the vacancy US Supreme Court Justices who had seen often found himself short of cash. In 1948 and stepped into the job of America’s most military service. One side of his sombre grey Douglas was in real financial distress, and he beloved polio victim. This story propelled granite headstone bears the words ‘Associate hit upon an idea for self-funding – he would Douglas into the public heart – he became Justice, United States Supreme Court’, the write an autobiography. By the end of his life an American hero. other side is far more humble – it bears his he had written no less than three autobiog- The disgraceful fact is that the polio story name and these words ‘Private, United States raphies. These autobiographies contained a was untrue; Douglas simply made it up. Army’. new and much more interesting version of No-one (until recently) checked the facts. Bill Douglas’ life. Strangely enough, the fact that Douglas’ Who was Bill Douglas? But his first shot was a total failure. In 1948 never had polio made his bravery more admi- he presented his manuscript to a publisher – rable. His adoring public noted how Douglas Usually at this point I would give you a modestly titled Of Men and Mountains. After never mentioned his polio in the numerous potted history of Douglas’ life, but an accu- careful consideration the publisher rejected interviews he had given over decades of rate biography is nearly impossible because the book – upon the grounds that it was just public life, and perversely Douglas received

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said would have offended our military superiors. But ... we saw no reason we could not talk about it among ourselves.

One can almost picture young Douglas taking cover in those muddy trenches in France, artillery fire bursting overhead. But it wasn’t true: Douglas had invented his military service. The truth is that while at Whitman Col- lege Douglas had joined the Student Army Training Corps – the SATC is an American equivalent to what we would call the cadets. Douglas only joined the SATC on 1 October 1918. In the 41 days between joining the SATC and Armistice Douglas remained a full-time college student. He was never

The disgraceful fact is that the polio story was untrue; Douglas simply made it up. No-one (until recently) checked the facts.

issued with a weapon. His SATC uniform only arrived after the war was over. Little wonder Black Jack Pershing was regarded as ‘distant’. When Douglas died his wife asked for him to be interred in Arlington. Arlington’s mandatory check of military records showed there were no records of Douglas’ service. It William Orville Douglas, 40 year old successor to retired Justice Louis D. Brandeis, before be was sworn in on was simply assumed that his records must April 17, 1939. Photo: Everett Collection Historical / Alamy Stock Photo have gone astray. After all, this man was a US Supreme Court justice – he could be greater kudos because he had kept quiet that he wished to be buried in Arlington, trusted. The authorities accepted the claim about his disability and had never traded on an entitlement he claimed derived from his and Douglas was buried with full military the sympathy factor. What a guy. service as a private in the First World War. honours. The new, improved Of Men and Mountains Douglas had taken many opportunities So there he was buried – Douglas lies in became a nationwide best seller, netting its to recount his war experiences, and he had Arlington in two senses. author the then substantial sum of $32,900. referred to them in some of his autobiogra- And a postscript: The typical reason a col- I could go on with more detail about the phies. A personal anecdote regarding his lege student joined the SATC was that it was remarkable misrepresentations made by war service even figured in one of Douglas’ a means of avoiding conscription. Douglas, Douglas over many years – there is not space Supreme Court judgments. In Secretary of the self-perceived military hero, was, in all here to do that. I will put all of that aside and Navy v Avrech 418 US 676 (1974) a marine probability, a shirker. now focus on a standout misrepresentation was court-martialled for criticising the made by Douglas, and which led to his burial Vietnam War. The soldier challenged the Further reading: in Arlington. charges, alleging they infringed his right to ‘free speech’. The majority declined to deal Bruce Murphy, ‘Wild Bill: The Legend and Douglas’ burial in Arlington with the argument on jurisdictional grounds. Life of William O Douglas’, 2003 – the most Douglas dissented, and in doing so drew di- enjoyable judicial biography I have ever read, Arlington National Cemetery has a sacred rectly upon his own experience as a soldier written by one of America’s finest judicial place in the American psyche. Only veterans (at 680): biographers. who saw active duty are permitted to be buried in Arlington. Arlington is in Virginia, Soldiers, lounging around, speak just a few miles south of Washington DC. carefully of officers who are within The portion set aside for the former US earshot. But in World War I we were Supreme Court judges is an especially lovely free to lambast General ‘Black Jack’ part of the park, high on the hill and close Pershing, who was distant, remote and to the old house, with panoramic views over mythical. We also groused about the the Potomac and back up toward the Capitol. bankers’ war, the munition makers’ war In his private papers Douglas made it clear in which we had volunteered. What we

98 [2018] (Spring) Bar News The Journal of the NSW Bar Association LEGAL HISTORY

Percy Valentine Storkey: The Sydney law student who won a Victoria Cross

On 11 April 2018 Rear Admiral the Hon. Justice M.J. Slattery RANR, Judge Advocate General of the Australian Defence Force delivered the following lecture at Sydney Law School

Until you received the flyer for tonight’s and foremost he believed his story should event I suspect many of you were unaware be told to the general public for the benefit that a law student from this university, and of all veterans. His early years after the war later a barrister and District Court judge, are filled with his journeys in New Zealand had won one of Australia’s 64 First World and Australia, speaking to community War Victoria Crosses. groups on behalf of veterans. I too was not aware of this until recent But at a second level Storkey reminds us years. I learned of it a few years ago in of the heroism and willingness to volunteer conversation with my late father, the Hon in both World Wars of members of the John Slattery AO QC, who practised at legal profession. the New South Wales Bar between 1946 At the risk of being accused of suggesting and 1969 and who served on the Supreme that lawyers were over-represented among Court between 1970 and 1993. He said to the ranks of VCs in the First World War, me that he could remember appearing as may I tell you there was in fact another. His a young barrister before a District Court name was Arthur Seaforth Blackburn, a judge in the early 1950s, who had won a newly admitted Adelaide solicitor about the Victoria Cross. same age as Storkey, who was decorated for Intrigued by my lack of knowledge of his extraordinary bravery in the Battle of this judge, I went searching, and found out Poizeres in July 1918. His grandson, Tom about him. The need for that search, and Blackburn SC, now practises at the New what I found, revealed to me an immense South Wales Bar. gap in our knowledge of the many law stu- Storkey made firsts wherever he went dents and members of the legal profession within the legal profession. He was not the who fought, and many of whom were killed first lawyer to win a VC; that honour went or wounded, in the First World War, in the to Blackburn. But he was certainly the first Second World War and in subsequent conflicts. That gap has since barrister and the first District Court judge and the first and only been made up by historians such as Tony Cunneen and Philip Selth. member of the Australian Judiciary to hold such an honour. Only The stories of these veterans are now being told more widely. For one other judge in the British Commonwealth ever held a VC: Lord reasons that are not wholly clear to me, until the laudable initiative of Justice Sir Tasker Watkins, who earned his VC for action in Norman- Chief Justice Bathurst on 11 November 2016 for this State’s Supreme dy in August 1944, was appointed to the High Court in 1971 and Court to celebrate Remembrance Day, it had not annually done so. later became deputy lord chief justice of England. In contrast, for example, the Supreme Court of Victoria has always A third reason why Storkey is important, every military officer in held such an annual commemoration within the living memory of this room will immediately recognise. Despite the Storkeys and the Victorian lawyers. Blackburns and the leadership of General Monash, himself a lawyer, Many of us were law students once. Many of you still are. In early there can at times be an undercurrent within the ADF that sounds 1915 Percy Storkey faced all the usual course choices of an early like this – ‘well, why do we need lawyers in the military anyway?’ But third year law student at this university. But the outbreak of the First to that kind of carping my constant answer in recent years has been, World War presented to him yet another, far tougher, choice: would ‘let me tell you about Percy Storkey, a lawyer who won the Victoria he enlist? He did. He joined the First Australian Imperial Force just Cross’. This has been very effective in silencing critics. three weeks after the Anzac landings at Gallipoli. Finally, and most importantly, Storkey is also important because He fought on the Western Front for two years where he was twice he represents the large number of students who volunteered from this wounded. He earned the Victoria Cross in an action exactly 100 years law school for First World War service. In the law school’s Jubilee his- ago last Saturday, on 7 April 1918. His action was early in the decisive tory (for the period 1890 – 1940) the Honourable Sir Thomas Bavin battles around Villers- Bretonneux, battles in which Australian troops puts the number of law students volunteering for active service in the bridged the line to stop the last great German offensive of the First First World War at just over 100. Of those, 11 were killed in action. World War. After repatriation he completed his studies and practised Their names appear among those on the Roll of Honour under the at the bar from 1921 to 1939, when he was appointed as a judge of the Carillion Tower. I will speak of them later. District Court. So let me tell you Percy Storkey’s story now. It is, as I will show Percy Valentine Storkey has significance for us at many levels. First you, a story not only about outstanding courage, but a story showing

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a deeply human response to the sacrifice of the soldiers mourn the loss of the first war casualty from the legal around him. profession. But before I do so, I wish to acknowledge the ex- The news of MacLaurin’s death swept down Phillip tensive and original research undertaken by my acting Street. Percy Storkey had not yet joined any Australi- associate Imogen Yates (also a graduate of this law an civilian militia, it can confidently be inferred that school) in the preparation of this speech and the sourc- this final year law student decided that this was the ing the images that accompany it. I also wish to thank moment to put his training into practice. He was no Mr Phillip Rankin, Archivist at Napier Boys High doubt aware of, and perhaps prompted just a little, School, and Ms Jane Myers of the school’s staff for im- by the major recruitment poster campaign that was portant source materials from New Zealand and Tony launched in Australia after the Gallipoli landing. Cunneen and Philip Selth for their scholarly assistance It perhaps may surprise you to know that, in its own with Australian-based historical research. way, this law school obliged the war effort. The Jubilee Storkey was born in Napier, New Zealand on 9 History of the Sydney University Law School shows September 1891. He attended the Napier Main School that in 1914 and 1915, the end of term examinations (a primary school) between 1897 and 1906 and from were advanced, so students could complete exams there he attended Napier Boys High School. before they enlisted. I hope the examiners were mer- His leadership skills and intelligence showed early. ciful. In his final year at Napier Boys High School, 1910, he But university journals of the day also encouraged became a prefect and was dux of the high school. enlistment. It is clear from the May 1915 edition of He had a full classical and scientific education Hermes, the university’s literary journal, that a compet- taking Latin, heat and mechanics (what we would call itive spirit for enlistment existed among the faculties of ‘physics’) algebra, history and English. He did so well Medicine, Engineering and Law, others among them. academically that he became dux of the school and By August 1915 Hermes was making a direct appeal to only just missed out on a scholarship to university. He the spirit of students to ‘do their duty’ and enlist. then went on to Victoria College, Wellington. Close to his 24th birthday in September of that same But, like many of the best soldiers, he was both year, Storkey was commissioned as a second lieutenant adventurous and successful on the sporting field. He in the AIF. His university education, his age, his char- made the first XV as a full back in his final year at acter, and his prior military experience had marked school and the first XI cricket team the same year. him for promotion from private soldier to officer His school reports showed, according to one former within just four months. The photograph of him taken Headmaster, Mr M Spackman, ‘Percy was mad about in the uniform of a 2nd Lieutenant about that time, his cricket’. When he later toured and gave speeches gives colour to a comment that was made about Stor- later as a Victoria Cross winner in Australia and New key in his last year of school. One of his teachers, a Mr Zealand he could often be later found at nearby cricket Spriggs, described him as, ‘a fine gentleman; a person fields watching local cricket games. full of confidence and sparkle’. Storkey was keen to go Storkey had an early association with citizens’ mili- overseas. The words he has written across the photo say, tias. By the time he left Napier Boys High School his ‘Thank goodness I will be off soon’. interest in the military was clear. Through the schools In December 1915 he sailed to England via Egypt cadets, he had risen to the rank of colour sergeant. to join members of the 19th Battalion in training. Before migrating to Australia, he had already spent five As he sailed from Australia his background alone years in the New Zealand militia. could predict much about what was to come. It was a Percy, his brother and three sisters, lived with their background of extraordinary intellectual and sporting parents, Sam and Edie Storkey, in Milton Road, Napier achievement and fine character. He was not untypical until 1911. They migrated that year as a family to live of many young officers in the First AIF. in Australia. His father worked for the Daily Telegraph What do you do with a Second Lieutenant, third in Napier. He continued to work in the newspaper year law student, in the AIF in Egypt? Of course, you industry here in Sydney. The rest of the Storkey family put him in charge of Courts-Martial. And that is what returned to live in Napier a few years later. But Percy Storkey was drafted to do during the long months of remained in Sydney. He had already started his law training in Egypt and then in England. studies. Storkey’s exercise of courts martial jurisdiction in After migration to Australia, Percy Storkey initially July 1916 in Egypt and then in England intersected worked for the Orient Steamship Co. in Sydney. By with a simmering but now long-forgotten Australian 1912 he had joined the administrative staff of the wartime dispute – the alleged failure of significant University of Sydney. This background assisted him in numbers of rugby league players to enlist in the AIF. 1913 to enrol at the university law school. By the end Storkey sentenced Bob Tidyman, one of the few rugby of 1914, he had completed his first two years of study. league players who did enlist, to four days confinement He began final year in 1915. to barracks for being late on parade. Tidyman, who On 10 May 1915 he enlisted in the AIF as a private. played for Easts before the war, was later listed as miss- The date of his enlistment is itself a remarkable part of ing in action. My source for that was rugby league’s Australian legal and military history. In August 1914 own historical account of its players in WW1 (http// Colonel Henry MacLaurin, then a senior junior at the www.rl1908.com/Rugby-League- News/Anzacs.htm, New South Wales Bar, had organised a battalion of ‘Rugby League ANZACS of World War One’). troops, who embarked for Gallipoli in October 1914. On 14 November 1916 he joined his unit in France. But on the second day of the Gallipoli campaign, Within a week of arriving at the front he was wounded Colonel MacLaurin was tragically killed. The chief near Flers, at the end of the Battle of the Somme. Percy justice, Sir William Cullen, held a special sitting of Storkey’s service records are now all online courtesy of the Supreme Court on Wednesday, 5 May 1915 to the Australian War Memorial. From what I can work

100 [2018] (Spring) Bar News The Journal of the NSW Bar Association LEGAL HISTORY out from the records, he suffered two wounds during field of fire. The planned 5.00 am infantry attack was his service before his heroic action on 7 April 1918, to be supported by an artillery barrage to hold the he had a bullet wound to the thigh and a badly dam- enemy fast in their trenches. Instead only a few random aged ankle. But subject to convalescence, and some shells fell, prompting the Germans to prepare for the leave back in London, he fought continuously on the imminent assault. Western Front for the 22 months from November 1916 Storkey’s company launched east from a small cov- until September 1918. ered area just to the west of Hangard Wood, across He was promoted to lieutenant in January 1917 and several hundred metres of open ground, from where was wounded for the second time, on 10 October 1917 it was hoped the company would penetrate the wood in the Third Battle of Ypres. and mop up the few German soldiers thought to be But we all know October 1917 for a different reason, inside. But exhausted from continuous battles since 21 the Bolshevik Revolution. As he convalesced, events March, Lieutenant Storkey had dozed off. He awoke to unfolding two thousand miles away in Russia began to see his company 100 yards ahead of him, crossing the give shape to the final contest of the war in which he open country and already coming under fire. would win his Victoria Cross. As he re-joined his company on the open ground, it Let me step back for a moment and give you a bigger was caught in a murderous fire from unseen machine picture. After October 1917 hostilities ceased on the guns from inside Hangard Wood. The company com- Eastern Front between Germany and the new Soviet mander, Captain Wallach, was hit through both knees. State. This released almost a million German soldiers, Two other lieutenants were killed. Twenty five percent for transfer to the Western Front – a barely imaginable of the company were hit. The remainder of the compa- number, even today. ny was pinned down in the open. Storkey now became In early 1918 the German High Command planned the company’s senior surviving officer, and therefore a massive offensive on the Western Front based on a its commanding officer. He was assisted by another simple calculation. surviving officer, Lieutenant Lipscomb. The United States had entered the war in April 1917. At this moment we should pause, so we can begin But the additional strength from US troops was only to understand at the human level what happened next. just starting to be felt on the Western Front. Action Storkey was always very frank in the accounts that he before that was indicated. gave after the war, that he had fallen asleep, and that Amiens was the major railway junction behind allied he was behind his company’s advance. He never sought lines. The German High Command planned that a to hide it. It appears in many contemporary accounts. conquest of Amiens would threaten Paris and force the But think for a moment how he must have felt. Be- Allies to seek an armistice before the fresh US troops cause he was asleep, his company had proceeded ahead could influence the course of the war. of him; he had been left behind; over 20 of his fellow Without warning on 21 March 1918, a mass of 47 soldiers were dead, and he was alive. His immediate German divisions moved against the British Third and reaction was to prove himself worthy of his chance Fifth Armies across an 80 mile front east of Amiens. survival. He more than made up for his bad start. The British Fifth Army collapsed under this pressure Storkey detached six men from the company and and a gap opened in the Allied lines. Australian troops headed north and west around the wood, trying to under General Monash ultimately blocked the enemy find the German machine guns. He was soon joined thrust towards Amiens with a thin extended line which by Lieutenant Fred Lipscomb who had four men with first began to hold on 27 March 1918. The Germans him. Between them, there were two officers and ten renewed their attack in force on 4 April 1918. Their soldiers, a group the size of a section, or just a third counter attack threatened to encircle Villers-Breton- of a platoon. They struggled towards Hangard Wood. neux, a critical gateway to Amiens and about 10 And in case you have some romantic ideas of a thick kilometres to its north-west. A regiment of German forested wood, like the Bois de Bologne – and perhaps troops penetrated dangerously to the south-west of it was in early 1918 – after the war it appeared in Bean’s Villers-Brettonneux. Its three northern companies in- Official History after many more battles looking like filtrated and occupied a strategic timbered rise, called this. Hangard Wood, just two kilometres to its south and They struggled through the wood. Apart from Stor- just outside the little village of Hangard. key, Lipscomb and the ten men with them, the rest ‘Hangard’ had been so named since the middle ages: of the company had gone to ground, to avoid further ironically, given what was about to follow, its name is casualties from the machine gun bullets raking the derived from two words of Germanic origin, meaning ground around them. ‘Hano’s Garden’. The 12 Australians made their way around to the Australian infantry were ordered to counter-attack east and then pressed south trying to get to the rear and to retake Hangard Wood on 7 April so as to reduce of the machine guns. Suddenly they burst into a small the German threat south of Villers-Bretonneux. The clearing where just ahead they saw half a dozen short 5th Brigade (2nd Division AIF) of which Percy Stor- enemy trenches, each one a machine gun post, manned key’s 19th Battalion was one part, led this counter-at- by eighty to one hundred Germans, riflemen and ma- tack. Lieutenant Storkey was a platoon commander in chine gun crews, all with their backs to Storkey’s party. the company at the very leading edge of the assault. The heavily armed enemy outnumbering Storkey’s Even before it had begun, the military logic of the party nearly ten to one, were still firing at what re- plan to take Hangard Wood was neutralised by faulty mained of his company. Conventional military theory allied intelligence and artillery failures. Allied aircraft of the time advised that an attacker should bring to had reconnoitred the wood. The resulting intelligence bear a force three times the size of the force to be van- had wrongly concluded that it was only lightly held by quished. Storkey faced a far greater ratio against him. enemy forces and could be covered by a nearby allied What then followed can be no better described than

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in war historian C E W Bean’s own words: Hangard Wood and secured the southern side of Vil- lers-Bretonneux. Only two weeks later the town would As the Germans were seen there was a yell, and be lost by the British and then famously retaken by some of the enemy, looking round, caught sight Australian troops in an audacious attack on the third of the Australians emerging into the open behind anniversary of Anzac Day. them. The situation called for instant action – But what happened next takes Storkey’s story to yet either attack or be annihilated – and Storkey’s another level. Within an hour of proving his physical decision was immediate. Shouting as if the whole courage, Storkey’s moral courage was tested to the battalion was following, he at once led a charge limit. Storkey’s view from inside Hangard Wood was upon the rear of the Germans, himself at one that it could not be held. Concerned for his men’s flank of his ten men, Lipscomb at the other. safety, he ordered their withdrawal back to allied lines The Australians had only twenty yards to go. with the prisoners. The history of the 19th Battalion Before the nearer Germans could realise what records that his battalion commander ordered him was happening, the New South Welshmen ‘got back to Hangard Wood immediately. But Storkey rein quickly,’ as Lipscomb wrote, ‘with bombs, fused. He thereby risked a serious charge of disobeying bayonet, and revolver’. The Germans a lawful order. in the nearer trench at once put up He argued the wood was a death trap for his men. their hands, but those in the farther Gaining no traction with his colonel he appealed to ones hesitated. They had only to swing the brigade commander. He then deployed his law- round one of their machine guns and yer’s skills to the full. He persuaded the Brigadier of the Australians standing close above the the merits of caution. The Brigadier is said to have northern part of their line could have ‘gratefully received’ Storkey’s information about the been annihilated. numbers of enemy in Hangard Wood. The order to return was rescinded. We would now perhaps call this a Storkey continued to fight with 19th Battalion sliding door moment. It was a moment throughout the Australian advance to the Hindenburg when 80 plus Germans could have Line after the exhaustion of the German Spring Of- turned around and easily out-gunned fensive. In May 1918, Storkey was appointed company the ten Australians. But with the brava- commander and promoted to the rank of captain. On do that makes VCs, Storkey led his men 10 June 1918 he was confirmed in that rank. But in the forward with such confidence that the meantime he had been recommended for the award of entrenched Germans believed they were the Victoria Cross. the leading edge of a much larger force. What character type wins the Victoria Cross? What Contemporary newspapers recount that character type threatens to disobey orders to save his the attackers expressed this confidence men? One fellow officer described Storkey in these using what were described as ‘Australian terms: ‘In any emergency, Percy Storkey was always as oaths’. Bean’s Official History then con- cool as an arctic iceberg, and always maintained a keen tinues as follows. sense of humour – a priceless possession in war as well as in peace’. But Storkey’s confident manner made His Victoria Cross was announced in the London them uncertain as to what forces might Gazette exactly two months later, on 7 June 1918. It not be in the surrounding bush. On was awarded to him by King George V in a ceremo- the first sign of hesitation to obey his ny at Buckingham Palace in July 1918. The official order to surrender and climb out of the photographic portrait of him at Buckingham Palace is trench, he immediately shot three with perhaps the best known image of him, after the Max his revolver (which then jammed) and Meldrum portrait. some of his men slipped the pins from But there is another less formal image taken outside their bombs, rolled a couple into the Buckingham Palace that so very clearly conveys his trenches, and then ducked away to avoid character. The photograph outside the Palace I believe the explosion. In all 30 Germans were to be the woman that became Storkey’s wife, Minnie killed, and the remainder, three officers Mary Gordon, née Burnett. Every age has its contra- and about 50 men, were made prisoners dictions, including ours. But when nearly 20,000 men and were at once sent to the rear, the two could be killed on the first day of the battle of the escorting Australians carrying back one Somme in July 1916, two years later Percy Storkey was of the machine guns. 2 (Official History being criticised for his romance with Minnie - on the of Australia in the War of 1914 – 1918, simple ground that she was a divorcee. Vol 5, The AIF in France 1918, CEW But this photograph and her presence and her dress Bean, pp 507 – 508.) all help us to realise that at the time of his heroism many glimmers of our recognisably modern world were Storkey’s brave action cleared the de- already starting to appear. In New South Wales the fenders from the area and saved the lives debates that led to the passing of the Women’s Legal of the rest of his company. Status Act later that year had already commenced. Histories of the 19th Battalion abound with stories Women over 30 had just been granted the right to vote of the amazement of fellow troops, as Storkey’s men in England. The Austrian symbolist painter Gustav marched their long column of German prisoners and Klimt had just died. captured machine guns back behind the battalion’s But I hear you ask: what happened to Lieutenant lines. As a result of the action, Australian infantry took Lipscomb, Storkey’s companion. He was awarded the

102 [2018] (Spring) Bar News The Journal of the NSW Bar Association LEGAL HISTORY

Military Cross for the same action. But wounds to his of the Coral Sea, Admiral Harold Farncomb, left the knee that day forced him out of active service. He was navy in the 1950s and became the associate to the chief nursed back to health in England, where he met an judge in Equity, David Roper, before going to the Bar. English nurse, Isobel May Ward, and they married. He Storkey was called to the bar on 8 June 1921, a returned to Australia and settled back in Goulburn, memorable year for new admissions. Also admitted in where he died in 1952. 1921 were the powerful common law advocate, J W Storkey returned to Australia on 26 November 1918. Shand (father of Alec) and Ada Evans, the first woman His AIF appointment ended in January 1919. There- barrister in New South Wales. after he was allocated to the Army Reserve on 1 July On 15 April 1922 he married Minnie at St Stephen’s 1920. According to Storkey’s relatives who were inter- Presbyterian Church, in Sydney. They made their viewed by newspapers in Napier after the war, Storkey home in Vaucluse. decided to settle in Australia because he considered Storkey commenced a common law and criminal there was more scope for him to further his legal career law practice from the old Selborne Chambers. here. It was the custom of the bar in the 1920s for new But he always remained very attached to his city barristers to nominate their availability to practise of birth. Upon his return to Napier in late January on one of five country circuits. Storkey selected the 1919 after the war there were many parades and cele- South Western Circuit, covering a vast area bounded brations in his honour. He was hoisted shoulder high by Goulburn, Albury, Deniliquin, Hay, Wyalong and and marched around the band rotunda. In his reply Broken Hill. The Law Almanac for 1921 shows that to speeches on these occasions, witnesses recall him also at least nominally practising on the Southern and saying, ‘this is Napier’s VC’. South Western Circuit were one F R Jordan (later chief Like so many veterans, Storkey wrote nothing of his justice of New South Wales) and one J G Latham, from war experiences that survives. But one of the speeches Melbourne (later Sir John Latham, chief he made back in Napier in January 1919 was recorded justice of the High Court of Australia). by a local paper and speaks eloquently to his funda- He continued in private practice from mental modesty. Reported in the third person this is Selborne Chambers for only four years what he said in reply to a welcome by the Mayor of until 1925, when he was appointed a Napier: Crown prosecutor for the South West- ern District. He moved to Crown Pros- ‘After a number of welcoming speeches Captain ecutors Chambers and spent the next 14 Storkey took the stand in reply and the Telegraph years until 1939 prosecuting mainly on reported: the South Western Circuit. One contemporary newspaper estimated that he ‘Because he had won the VC it was not because travelled some 30,000 miles each year he was any braver than any other soldier, nor on circuit. because he was a warlike person who liked fight- Perhaps not surprisingly, given all he had been ing. As a matter of fact he disliked fighting very through, as a prosecutor Storkey was regarded as much and was a peace-loving person. practical and realistic and had an outlook tempered He had only tried to do his duty and had taken by humour and compassion. Judge H T A Holt illus- the opportunity when it arrived. A man did not trates this characteristic with a story ((H TA Holt, A have to be a hero when the opportunity showed Court Rises, The Law Foundation of New South Wales, and he had only to keep his head and do his duty p.225). Having prosecuted two men on circuit for theft when it did. for removing a safe, blowing it open with explosives and then stealing its contents, Storkey later fell into pri- Up till this welcome he had not been proud, and vate conversation with the judge who expressed some they would forgive him if he was now. He had doubts that he may perhaps have sentenced too leni- been pleased to gain the honour but until now ently. The judge said: ‘Dangerous men Storkey, using had not felt anything more. explosives like that…’. The prosecutor, who had seen He did not want them to run along with the idea more explosives than either of these criminals is said to that it had made him swell-headed’, have replied rather mildly in reassurance to the judge, ‘Well judge, how else were they to get the money out?’ Though born in New Zealand, he has always been Storkey was often briefed by the Crown and quickly counted among Australia’s VC winners as he was a appeared in reported cases. He appeared as junior coun- member of the AIF. But trans-Tasman rivalry abounds sel to the attorney general in Ex parte Attorney-General, in every sphere. It will not surprise you that the New Re Cohen (1922) 23 SR (NSW) 111 before the full Zealand tabloid press have commonly claimed him as court, a case dealing with the availability of the writ of ‘a Kiwi VC’. certiorari against inferior courts. He appeared as junior Storkey went back to law school in 1919 and 1920 counsel for the appellant in R v Ead (1923) 24 SR and completed the remainder of his degree while acting (NSW) 117, a case dealing with what evidence might as the associate to Sir Charles Wade, a puisne justice of constitute corroboration of the unsworn evidence of a the Supreme Court. His employment as associate with child. As many crown prosecutors did in those days, he Sir Charles represents part of a deep tradition of sup- maintained a right of private practice at the common port for First World War veterans within the Supreme law bar and also appeared in negligence cases, such as Court, led by Chief Justice Cullen, Justice Ferguson, Barton & Jamieson v Transport Commissioners (1932) and others. 33 SR (NSW) 17, a cause concerning the duty of rail- The same thing happened after the Second World way authorities to fence property to prevent injury to War. The commander of HMAS Australia in the battle straying stock. He appears in the Commonwealth Law

The Journal of the NSW Bar Association [2018] (Spring) Bar News 103 LEGAL HISTORY

Reports only once in R v Porter (1933) 55 the train arrived at Central Station, the Colonel had CLR 182 before Sir Owen Dixon sitting made formal apology to the judge. (see also District as a single judge exercising the original Court Judges at War, Brian Herron QC, Bar News – jurisdiction of the High Court in the Summer 2009.) Australian Capital Territory before the Storkey retired from the bench in 1955 and went to creation of the ACT Supreme Court. live in England, where he lived in Teddington, Middle- As the Second World War ap- sex, with his wife. He died on 3 October 1969 at the proached, Storkey again felt the call of age of 76. He bequeathed his Victoria Cross to his old duty. He had remained in the Army school in Napier. Reserve. He re- enlisted in the army Whilst he was a District Court judge, only one in October 1938 along with the mass appeal from Judge Storkey to the full court was report- transfer of reserve lawyers into the fledg- ed in the State Reports, the matter of Waugh v Waugh ling Australian Army Legal Department (1950) 50 SR (NSW) 210. It is a convention of legal (AALD). He became legal staff officer reporting that post-nominals and the decorations of to 2nd Division, based in Sydney, under judges and counsel, which are unconnected with the the command of the judge advocate law, are not included within case reports. In Waugh v general. However, in May 1939, before Waugh a notable reported exception to this convention the outbreak of war, he was elevated to was made for Storkey. The appeal came before Chief the District Court at the age of 48, and he relinquished Justice Sir Kenneth Street and Justices Maxwell and his army service. Owen in May 1950. Only Justice Owen referred to the He became chairman of Quarter Sessions for the trial judge by name, describing him by his full title as Northern District of New South Wales. There it is said ‘His Honour Judge Storkey VC’. that he ‘became an identity making many friends and This departure from convention to honour Storkey, being recognised for his quick assessment of character is especially understandable in Justice Owen’s case. and for his sound commonsense’ (Australian Dic- Owen had enlisted underage just after Storkey and had tionary of Biography, Online Edition, Percy Valentine served for almost the same period as Storkey on the Storkey (1893 – 1969) Warren Derkenne). Western Front. Justice Owen ensured that the judge’s I asked my father about Storkey, the judge. He Victoria Cross was referred to in his judgment and remembered him as ‘always courteous and efficient, hence in the New South Wales State Reports. In doing so while running his courtroom with great decorum’. he saluted a great Australian. Phillip Selth has given me an interesting example The great American Jurist and Civil War combatant, about Storkey as a judge on the Northern Circuit that Oliver Wendell Holmes, judged character according to also shows he was practical and a realist. His cases were an exacting standard. He said in a famous Memorial often reported in the (Taree) Northern Champion and Day address to army veterans (Memorial Day Address the Manning River Times. He was commonly described delivered 30 May 1884, at Keene New Hampshire, in the press as Judge Storkey VC, giving additional before John Sedgwick Post No 4, Grand Army of the weight to his judicial office. Let me give you examples Republic, in R.H. Posner, The Essential Holmes, Uni- of his work from just one circuit. He presided over the versity of Chicago Press, 1992, page 82.): March 1947 Taree Quarter sessions. Emerton of counsel appeared for a butcher, George Bulley, appealing a I think that, as life is action and passion, it is conviction and fine of £5. Bulley’s lorry had run into required of a man that he should share the passion some cows at John’s River bridge coming home early and action of his time at peril of being judged not in the morning after fishing. Judge Storkey dismissed to have lived. the appeal, saying that no one travelling in a reasonable manner should run into a wall of cows without seeing This brief account of the life and valour of Percy them. Emerton also acted for Victor Lyne, who was ap- Valentine Storkey VC proves that he lived to Holmes’s pealing a conviction of driving a motor lorry under the high standard as influence of liquor. His Honour said that the sooner few others would dare. He now inspires us all and people realised that they must leave liquor alone if they helps us remember the many others who did not return. were to drive cars, the better it would be for them. May I now turn to them, and recite in conclusion for Judge Holt’s history and other contemporary sources you, in commemoration of their sacrifice, the names recount another story about Storkey that deserves to be of the eleven law students killed in action in the First told. District Court judges on circuit were entitled to World War and the dates of their deaths: Laurence a full compartment to themselves on trains no matter Whistler Street (19 May 1915) and Charles Bernard how crowded the rest of the train was, in case they Donaldson (20 July 1915) died at Gallipoli. All the were by change to encounter circuit litigants in the others on the Western Front: Arthur Gardere Ferguson same carriage. During the Second World War, Stor- (14 June 1916), Francis Maxwell Barton (11 August key’s train stopped on one occasion at Whittingham 1916), Alan Russell Blacket (16 August 1916), James Station, the entraining point for Singleton army camp. Blackwood (2 December 1916), Thomas Storie Dixon A battalion of soldiers piled on. They quickly became (8 December 1916 in training accident), Harold Rob- resentful that Judge Storkey had a compartment all ertson Blanksby (12 February 1917), Adrian Consett to himself. Some banged on the door and demanded Stephen (14 March 1918), Morven Kelynack Nolan to be let in. It is said that the battalion’s Colonel even (26 March 1918), and Lancelot Vicary Horniman sought to commandeer Judge Storkey’s compartment. (1 September 1918). Storkey’s associate quietly took them aside and said, Percy Storkey reminds us of them all, and all who ‘Do you know you’re making trouble for a man who served. won a Victoria Cross in the First World War?’ Before LEST WE FORGET.

104 [2018] (Spring) Bar News The Journal of the NSW Bar Association PRACTICE

How to stop waking at 3am thinking about work

By Theresa Baw,1 19 June 2018

Meditation and mindfulness are now widely mind back to the present moment instead of recognised as important for professionals to all the thoughts that are otherwise trying to practice. Practising mindfulness has been crowd into your mind. shown to improve focus, clarity, and creative Each time you catch your mind being lost problem solving, while reducing stress and in thoughts or feelings and bring it back to the anxiety. Mindfulness is cultivated through breath, you have stopped being carried away meditation. It is no wonder that an increasing by the content of your thoughts or feelings number of organisations such as Google, Ac- and come back to the direct experience. centure, Goldman Sachs, the UK Parliament; Nick Poynder, a barrister at the NSW the US military; and numerous chambers at the Bar for more than 20 years, does a weekday UK Bar are providing mindfulness meditation meditation practice of at least 10 minutes each courses for their members and employees. In morning. He says that meditation literally October 2017, the UK hosted the first summit takes the weight off his mind and gives it a on mindfulness, with politicians from 15 coun- rest. tries meditating in the House of Commons. “The faculty of bringing back a The effectiveness of meditation has been wandering attention over and over Why do meditation? known for millennia. Mindfulness mediation3 again is the very root of judgment, originates from Buddhist teachings 2,600 character and will. … an education Neuroplasticity is the lifelong capacity of the years ago, which have been secularised in the which should improve this faculty would brain to create new connections and cells in west in the last 40 years by figures such as Jon be the education par excellence.” response to our behaviours and environment. Kabat-Zinn at the University of Massachusetts So it is no surprise that there has been scientific 4 Medical School, and researchers at top univer- William James2 in Principles of Psychology evidence that practising various forms of med- sities including Harvard, Stanford, Oxford & published in 1890. itation consistently over time has the power to Cambridge. Meditation and mindfulness are transform us not only in the moment, but in more profound, lasting ways. not predicated on any religious path, and are ‘Mindfulness changes the practised by people of all faiths. Their benefits brain, and it does so in ways that are now supported by scientific evidence. a) Meditation Increases Focus anyone working in today’s business Michelle Yu, a Reader at the NSW Bar and Concentration who began a mindfulness meditation practice environment, and certainly every earlier this year, said that she has found med- leader, should know about.’ In this digital world, the phenomenon of itation has helped her – instead of dwelling multi-tasking has become a catch phrase. on a bad day in Court and ruminating over Harvard Business Review, 2015 But research shows that the brain does not what happened, she can more easily accept it, “multi-task” but rather switches rapidly from acknowledge that it is in the past, and shift one task to the other. Following every switch, her attention to what needs to be done now. Mindfulness meditation is easy to explain when our attention returns to the original but often people doubt whether they are task, its strength has been diminished and it What is mindfulness meditation? doing it properly due to the tendency of the takes several minutes to ramp up again to full mind to wander while meditating. Put simply, concentration. Since mindfulness meditation The term “monkey mind” is often used to there are two parts to mindfulness medita- is a practice of attention training, it is no sur- describe how our busy minds distract us from tion. Firstly, it is consciously focussing on the prise that it has been shown to increase focus the immediate experience; we are usually too breath. Whenever your mind wanders off you and concentration. Studies have shown that absorbed in our thoughts to be truly present. bring your attention back again to the breath. mindfulness strengthens the brain’s ability to Especially in this digital-age of smartphones Secondly, as your mind becomes more set- focus on one thing and ignore distractions, and social media, we are overwhelmed by tled and your attention is drawn to different and to sustain that attention over time.5 stimuli. It takes effort for our mind to settle sensations in the body, or external sounds, or into stillness for even the briefest of time. images or thoughts that arise in the mind, you b) Meditation Enhances our Many of our partners will comment that we observe that experience and then return your Alertness and Clarity are not ‘listening’, which in truth means we focus to the breath. are present but our mind is elsewhere, often By following your breath you are also track- Meditation has also been shown to help churning through what went wrong that day, ing your attention. Each time you bring your combat habituation—the tendency to stop or what is to come tomorrow. attention back to the breath, you bring your paying attention to new information in our

The Journal of the NSW Bar Association [2018] (Spring) Bar News 105 PRACTICE environment. By noticing the details of the condition yourself to respond differently only last 20 seconds before you realise your experience, the sights, sounds, tastes and rather than react on autopilot. You can catch mind has wandered off and you need to sensations that we would otherwise habituate, yourself in the heat of the moment or even bring your focus back to the present. Slowly, mindfulness transforms the familiar into the before you flip off the other driver. You learn with practice, you will increase the amount fresh and intriguing. We notice small or rapid to let go of negative thoughts and feelings. of time you are free of the busy thoughts shifts in what we experience.6 As we become Mindfulness enables you to respond to cir- that otherwise occupy your day. The longer more alert we enhance our creativity and cumstances skilfully without judgment or you maintain that focus the calmer you will problem-solving ability. reactivity, even when someone cuts you off feel, both immediately after the session and while driving. throughout the day. c) Meditation Improves our In my own experience, I have caught These days there are many apps on mind- Resiliency to Stress myself appearing in Court as my emotions fulness meditation that provide guided rise, my heart is pounding, my mind is racing meditations and enable you to do it in your According to neuroscience the amygdala, at a hundred miles an hour, and I am about own time, including: The Mindfulness App; the more primitive part of our brain, triggers to say something that I will later regret. At Headspace; Calm; Insight Timer; 10% Hap- the freeze-fight-or-flight response, while the that point, I have paused and realised that I pier; and Smiling Mind. Ingmar Taylor SC prefrontal cortex, a relatively recent part of seem to be over-reacting and there may be a uses a device that monitors the effectiveness our brain, manages our emotional reactivity. better way to deal with the situation. of his meditation, called Inner Balance by Neuroscientists know that the stronger the HeartMath. He finds that his sessions are connectivity between the more effective when he has amygdala and the prefrontal done high intensity exercise cortex in the brain, the less the day before. a person will be hijacked by Chris O’Donnell SC, who emotional downs and ups.7 has started mindfulness Meditation helps us to be meditation this year says that less reactive to stressors and in his experience, learning to recover better from stress from a meditation teacher when we experience it. The has enabled him to develop a more hours of practice, the proper technique and helped more quickly the amygdala him to stick to the practice. recovers from the distress.8 In the past, he had tried to It means that resilience can meditate on his own but be learned and strengthened. it felt like he was trying to In our profession this can learn to drive a car on his be particularly useful when own. Now, in addition to vicarious trauma can be a his daily individual practice, cumulatively significant but a he benefits from attending a hidden source of stress. How and Where do you Meditate? weekly group guided meditation. Nick Poynder acknowledges that a pro- You are welcome to join other meditating found benefit of meditation for him is to de- Mindfulness meditation is not a panacea, barristers at a weekly guided group session velop and increase resilience. By focussing on it is one of the many tools to wellbeing. It on Wednesdays from 1.15pm to 2pm at returning to the present moment, he says that cannot guarantee that you will stop waking Frederick Jordan Chambers. They are free it allows him to take his mind off the stressor up at 3am thinking about your next day drop-in mindfulness meditation classes led even if it is for just a split second. Often that’s in Court, but incorporating mindfulness by the writer. Or if you would like more just enough time to stop being spun off into a meditation, just like getting enough sleep, information or have any questions on mind- neurotic chain reaction. eating healthy, and doing regular exercise, fulness meditation, you can email the writer can bring balance into your life. at [email protected]. d) Meditation Helps us to Respond Mindfulness is completely experiential. rather than Automatically React It is not effective if you only theoretically END NOTES know it, read about it or hear about it. It is 1 The writer was called to the Bar more than ten years ago and has been When we are paying attention to the present through the practice of doing mindfulness practising mindfulness meditation since 2001. moment, and cultivating a self-awareness, it meditation that the mind can be trained. 2 William James was an American philosopher and psychologist, and the is an opportunity to change how we perceive The beauty and simplicity of meditation first educator to offer a psychology course in the United States. the world. Meditation gives you the tools to is that you do not need any equipment. All 3 also called insight meditation or vipassana meditation. train your mind to reduce negative habits or that is required is a quiet space and a few 4 Founder of Mindfulness-Based Stress Reduction, a program that perceptions, and frees up your mind to re- minutes each day. You do not need to sit incorporates mindfulness to assist people with pain and a range of spond with equanimity towards yourself and cross-legged on the floor - sit however you conditions in a hospital setting. in relation to the world around you. feel most comfortable, preferably in a quiet 5 Daniel Goleman and Richard Davidson, Altered Traits: Science Reveals For example, if you are driving to work place where you will not be interrupted. You How Meditation Changes Your Mind, Brain and Body, Avery 2017. and someone cuts you off. What is your first can start with 10 minutes or even commit 6 Daniel Goleman and Richard Davidson, Altered Traits: Science Reveals How Meditation Changes Your Mind, Brain and Body, Avery 2017. reaction? Do you experience anger? Do you to 5 minutes a day. Consistency is the key 7 Daniel Goleman and Richard Davidson, Altered Traits: Science Reveals end up mulling over the event and your reac- at the beginning, and preferably at a regular How Meditation Changes Your Mind, Brain and Body, Avery 2017. tion for the rest of the day? That single event time and space. That way you can estab- 8 Daniel Goleman and Richard Davidson, Altered Traits: Science Reveals can have a long-term effect on how you react lish a habit, just like brushing your teeth. How Meditation Changes Your Mind, Brain and Body, Avery 2017. the next time you are stressed, and every time Also important is to practise over a decent 9 David R. Vago Ph.D., ‘The Brain’s Response to Meditation’, Psychology after that.9 period of time as the benefits are usually Today, posted 15 July 2015. With meditation, you have the oppor- incremental, so give yourself a reasonable tunity to become aware of this pattern and chance. You will find that at first you might

106 [2018] (Spring) Bar News The Journal of the NSW Bar Association PRACTICE

Regional practice in 2018

By Alexander H Edwards and Ting Lim (Bar Association)

It is possible to spend a career as a barrister in that one is in the leafy extremities of the bar. in chambers located outside of the Sydney New South Wales without venturing beyond Yet there is a world beyond. CBD. This figure does not include public the stretch of city joining the Supreme Court There are, according to the most recent defenders with primarily regional practices, to the Downing Centre. It is possible to sit on statistics collected by the New South Wales and it does not reflect the number of those Macquarie Street in the afternoon and feel Bar Association, 134 barristers practising with chambers in Sydney who regularly travel the state for hearings. The significance of the regional bar is -in estimable. A client in need of the services of a barrister in Newcastle, in Wagga Wagga, in Bathurst, should not be expected to travel to Sydney in order to conference in person. Geography is the first frontier of gaining access to justice. If representation and legal advice cannot be physically accessed, people’s ability to know their rights and assert them fall short of the concept that there is justice for all. Further, a barrister who understands a community, their values and the fabric of the regional community, may be a more acces- sible legal resource than one with chambers in Wentworth Selbourne for reasons beyond that of location. Having determined to prepare an article along these lines, one of the authors of this article had by coincidence the privilege of appearing in hearings in the beautiful towns of Orange and Lismore this year. Photographs taken during that travel have been used to illustrate this article. By further coincidence, BAR ASSOCIATION NEWCASTLE CHAMBERS TOTAL MALE FEMALE SILK JUNIOR in Orange, his opponent was Mr Walsh, MEMBERS author (with Mr Nash) of an article in the Mackinnon 2 2 0 0 2 2 Bar News of Winter 2011 entitled ‘The development of the regional criminal bar’. It Evatt 2 2 0 0 2 2 is a fantastic reflection on the role of courts, Newcastle 14 11 3 1 13 14 media and the bar to regional New South Wales to which the reader is commended. James Dowling 9 8 1 0 9 9 The primary object of this article is to capture the face of the regional bar in 2018. Hunter Street 14 11 3 1 13 14 It is hoped that anyone at the Sydney bar considering a sea change (or tree change) will BAR ASSOCIATION PARRAMATTA CHAMBERS TOTAL MALE FEMALE SILK JUNIOR MEMBERS find something in the remarks of our inter- viewers to encourage them. There is much Arthur Phillip 12 5 7 0 12 12 there. Beyond these preliminary remarks, the authors do not pretend to be able to cap- Lachlan Macquarie 30 25 5 0 30 30 ture the experience of the regional bar. We recommend that you attempt to experience BAR ASSOCIATION OTHER REGIONAL CHAMBERS TOTAL MALE FEMALE SILK JUNIOR MEMBERS it for yourself. However, it is hoped that the reader will receive from the following Lismore (2 Chambers) 11 8 3 1 10 11 exchanges a picture of a practice that reflects positive developments in the broader bar and William Owen (Orange) 2 2 0 0 2 2 the continued importance of the regional bar Hargrave (Wollongong) 5 4 1 0 5 5 to NSW.

Papayanni Chambers (Wagga Wagga) 3 2 1 1 2 3

The Journal of the NSW Bar Association [2018] (Spring) Bar News 107 PRACTICE

I was thinking about a tree change and I How has technology changed reflected that there might be a need for a the way you practice? tax barrister in the regions. I hadn’t heard of anyone with a similar practice having Email and so on we take for granted. But setting up in Orange. the way legal work is carried on has made it possible to practise anyway. Travel is What is the best part of basing your easier too. Being based in Orange means practice outside of the Sydney CBD? my practice might require me to travel relatively large distances to other places in the Interpersonal relationships and professional state. Being able to travel without reams of networks are easier to develop and more physical documents is helpful. meaningful in a regional community. Heydon Miller Plus, Orange is a great town with a whole What would you suggest to a barrister range of sport, food and cultural events. In who was considering moving Called to the bar in 2009 - Orange practical terms, because it is well served by their practice to the regions? a regular and short flight, being based here allows me to maintain a commitment to Do it. There are lots of opportunities for the ‘I heard a solicitor say, traditional city based clients. bar outside Sydney. It’s also important for Sydney barristers not to underestimate the “ fantastic, we’ve got What are the challenges of quality of other professionals (for example, someone local.”’ practice in the regional areas? solicitors and accountants) who may contribute a significant source of work. From The largest challenge has been my own at- my experience, it would be a real mistake to titude. I keep thinking that solicitors based think that another professional will be less How have you come to be practising in Orange and surrounds won’t want to exacting or sophisticated because they are where you are? brief a barrister who isn’t in chambers on not based in Sydney. Phillip Street. But my experience so far has A few things came together. Much of proven me wrong. I heard a solicitor say, practice relates to tax and taxation disputes. ‘fantastic, we’ve got someone local’.

How have you come to be practising How often do you travel for your work? where you are? I am fortunate to receive regular work in the My practice before coming to the bar was Dubbo and Orange circuits of the Federal primarily in Western Sydney. I elected to join Circuit Court. I travel on average for one chambers in Parramatta at Lachlan Mac- week every two months to complete circuit quarie to enjoy the collegiality of a smaller work in these regional areas. bar and to reduce my travel and seek to achieve a work/life balance. Which courts/jurisdictions do you commonly appear in? What is the best part of basing your practice outside of the Sydney CBD? I commonly appear in the Family Court and Shanna Mahony Federal Circuit Court in both property and The variety of work available to new mem- parenting family law matters and the Chil- Called to the bar in 2015 - Parramatta bers of the bar at Parramatta appears to me drens Court, District Court and Supreme to be greater. I have enjoyed the great benefit Court in child welfare matters. ‘In joining chambers in of both interlocutory and hearing work on a regular basis together with the opportunity What is the place of the regional bar Parramatta at Lachlan to conduct circuit work in regional areas of to the NSW community in 2018? Western NSW. Macquarie, I have enjoyed the The regional bar is in my view an essential Describe the culture of the chambers part of ensuring access to justice for the wider great benefit of both interlocutory and the practice of law in the regions. community across NSW. The Parramatta bar and hearing work on a regular allows greater access to representation for the Lachlan Macquarie is a supportive and ever increasing western Sydney population by basis together with the opportunity welcoming chambers with a variety of bar- providing services close to their homes and risters willing to share their experience. We employment and close to the Court Registry to conduct circuit work in have a wide range of experience across vast within which their matter is listed. areas of practice that allows new members regional areas of Western NSW.’ of the bar an opportunity to learn and gain valuable experience to develop their own practice.

108 [2018] (Spring) Bar News The Journal of the NSW Bar Association PRACTICE

How have you come to be practising Describe the nature of your practice. where you are? I have only been at the bar 11 months so am I grew up primarily in Newcastle and after keeping a very open mind at the moment a period overseas and in Sydney, have lived about the type of work I do. As a solicitor I here for the last 12 years. However, a lot practised in various areas, primarily in civil of my work as a solicitor was conducted in litigation. For the last 5 years I have prac- Sydney, hence my decision to continue this tised principally in health law and medical by having chambers in both locations. For negligence. This is an area which I love and my reading year I have also had a tutor in in which I am busy now at the bar. each city, which has been excellent. My chambers in Newcastle – Hunter Street Chambers – has a very friendly and Belinda Epstein When you came to the bar, did warm culture, with members supporting you ever consider practising in the each other and happily giving advice and Called to the bar in 2017 Sydney CBD? If so, why did you assistance. Chambers is also five minutes’ - Newcastle - Sydney choose to practise regionally? walk from beautiful beaches, plenty of cafes, restaurants and the harbour. ‘The best things about With three children a (8, 10 and 12) already in school in Newcastle, it wouldn’t be What would you suggest to a barrister practising outside of the Sydney practical to uproot everyone. While Sydney who was considering moving certainly offers a broader range of oppor- their practice to the regions? CBD are the collegiate and tunities, tribunals and jurisdictions and great proximity to events, Newcastle offers I would encourage them. I think practising friendly legal community, the a wonderful lifestyle and a collegiate and in ‘the country’ is fantastic. pace of life and not having friendly legal community. It’s also only two hours from Sydney, so quite manageable for What is the place of the regional bar to fight Sydney traffic. a day trip or overnight. It’s amazing how to the NSW community in 2018? much reading you can achieve on the train between the two cities. It has an important place. Regional courts require skilled practitioners, just as city courts do. The community expects this.

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N N R NS R NS S CB

The Journal of the NSW Bar Association [2018] (Spring) Bar News 109 PRACTICE

When you came to the bar, did How has technology changed you ever consider practising in the the way you practice? Sydney CBD? If so, why did you choose to practise regionally? Enormously, as I’m sure for many barristers. E-briefs these days are a very quick and I guess I contemplated it, but not in any real efficient way of receiving large volumes of depth. I love regional practice and all that it documents. There are also pitfalls of course, means. And it’s hard to replace the quality and I am a bit old fashioned in that regard of life, but I haven’t ruled out commuting because I like a paper brief to mark up. But to Sydney from the North Coast. I can see the way technology has changed I choose to practise regionally because the way practice works, and I hope in the practice is diverse and varied. If I need to future this leads to more improvements and Sophie Anderson go to a city, Brisbane is a stones throw away, greater access to justice for people. and Sydney is an hour by plane. It’s possible Called to the bar in 2014 - Lismore to have a fulfilling career here, while living What would you suggest to a barrister the charms of a regional life. who was considering moving their practice to the regions? ‘I choose to practise regionally What is the best part of basing your because practice is diverse, practice outside of the Sydney CBD? Come and check it out first, see if you like it. It is not for everyone of course, and it varied and at a high volume.’ I think for me it’s the work/ life balance helps to have some roots down in the and the strong collegiate bar. I am able community to make sure that you get work How have you come to be practising to manage that balance more or less, and but it’s very rewarding, and if anyone was where you are? still enjoy a very busy practice with other contemplating a move to the north coast I’d colleagues who are like minded and well be more than happy to share my knowledge After initially practising in Sydney CBD regarded. I also have an excellent chance and time. and for the Redfern ALS, I left the city to develop close relationships with other when I was a junior lawyer and went West practitioners in this region and work closely What is the place of the regional bar to the Western Aboriginal Legal Service in with them. to the NSW community in 2018? Dubbo. I had an amazing early experience as a young lawyer with fantastic mentors, Describe the nature of your practice. I think the regional bar is a very important and loved the regional practice which of- community asset. It assists in a resilient fered a diversity of work at high volume. I The majority of the work I do is criminal and robust regional community and allows then moved to the coast, to Lismore ALS trial work; with some limited civil litigation people access to legal advice without the and found my home. After the ALS I and personal injury work; employment law, expense and travel to larger cities if that worked in private practice, and then after industrial relations and coronial work. doesn’t suit them. 15 years of being a solicitor, decided to go I am lucky to be situated in a chambers to the bar. with eight other barristers who all have Practicing in Lismore and Byron Bay varied practices from family law, equity, areas seemed a natural transition as I had commercial, civil and construction, and lived and worked in this area for over 10 some crime. It’s a lively and very busy years. I now have chambers here in the Far chambers with a supportive atmosphere. North Coast.

110 [2018] (Spring) Bar News The Journal of the NSW Bar Association WHO IS A BARRISTER?

The sky is the limit, and the sky is blue

Talitha Fishburn chats with Mark Higgins, the New South Wales Bar’s award-winning formation skydiver.

Ironically, skydiving is a grounding pursuit planning and programming. for Mark. His approach is almost meditative. Most skydivers commence in their 20s. ‘It forces you to be in the moment’, he reflects. Mark is atypical in this regard. His first jump ‘It clears your head of noise... At that critical was in his 40s. He is a member of POPS, moment nothing else exists but the immedi- aptly acronymised as it stands for ‘Parachut- ate present’. When he lands, he smiles. For ists Over Phorty Society’. The sport attracts an enduring period of gathered euphoria. longevity. To this end, Mark has jumped Contrary to popular belief, skydiving is with an 86-year-old veteran skydiver who has not the pastime of adrenalin junkies. Some jumped for over 60 years. Mark values the try it, but they tend to move on. Instead, it human capital of the sport’s elders. is a haven for the meticulous. It is a sport But utmost precision does not mean that focussed on utmost precision, especially for- accidents do not happen. Mark laments that mation skydiving. comparison to practice at the Bar. Both on average, one person a year loses their life to For every formation skydive, Mark devises require precision in their delivery. Mark skydiving in the skydiving circles known to detailed contingency flowcharts. This is no draws further analogies between skydiving him. This includes the life of his mentor who fly-by-night sport. He maps out every possi- and barristerial work. For instance, the need encouraged his entry to skydiving as well as ble scenario, with a corresponding planned to plan, the need to prepare and the need to a subsequent coach and three other friends. response. A Call To Action from 20,000 manage (occasionally) stressful situations. The losses hit Mark hard; he took time away feet. This approach is vital where time to act Unsurprisingly then, there is an Australian from the sport on each occasion. But he is critical; seconds, or even less. For instance, Lawyers Parachute Society, albeit, currently resumed the sport by dedicating a period of scenarios such as a teammate not exiting with only 10 members, most of whom are advanced training with some Arizona based correctly, premature openings, line twists, based in Queensland. Mark observes that it champions. Despite the fragility inherent in canopy collisions, environmental factors is hard to identify a ‘type’ of skydiver, but it his sport, his passion has gone upwards, but changing…the parachute not o-p-e-n-i-n-g is not uncommon for them to be drawn from he is ever alive to the realities of loss that char- … well, he has a backup for that one: contin- the ranks of the military, special forces, emer- acterise the sport, even at its highest levels. gency numero uno. gency services and, perhaps curiously, IT. If accidents happen they are almost always The focus on precision is not without These occupations require precision, careful catastrophic if not fatal.

The Journal of the NSW Bar Association [2018] (Spring) Bar News 111 WHO IS A BARRISTER?

Mark’s formation skydiving serves as artis- ‘outer whacker’ which required him to be on the ‘Australian Parachute Federation’ con- tic installations of geometric patterns. There the very outer rim. The ‘last say’, so to speak. trols most civilian skydiving operations in are various formation categories, for example, Not for the faint hearted! Training took three Australia. With the approval of the Civil Avi- 4 way, 8 way, 16 way etc leading to ‘Large years in smaller groups before converging in ation Safety Authority it sets the standards Formations’ or ‘Big-Ways’. Mark’s technique California to take the plunge. of operation, conducts competitions, issues is ‘flat’. This means belly to ground; aka -Su The sport takes daily maintenance. At a licences, certifications and instructor ratings, perman style. minimum, Mark does 50 chin ups, 100 push conducts exams and distributes publications The competitive scene is niche. But compe- ups, 100 squats and 100 sit ups. All this in 15 to keep members informed of current events tition is hotly contested. Records are broken, minutes at 5 am. Formerly being a triathlete and safety standards. Its ‘Sporting Code’ is and new ambitious goals are soon baked. The and champion swimmer, his discipline runs detailed; 106 pages covering the minutiae of World Championships (held every two years) like Swiss clockwork. His actual jumping competition rules. will take place for the third time in Australia training takes place at his ‘DZ’ (dropzone) In October 2018, Mark will be nearing in October 2018. Scanning the list of former located in Goulburn every second weekend. his millenary jump. The occasion calls for world champions, most are drawn from either For the vertiginous among us, including something special. The plans are still under- the United States of America or France. myself, speaking to Mark offers a vicarious way, but he is thinking of a 5 point 16-way The regime for national and world records glimpse into taking the plunge sans reality. formation in Goulburn with close friends. He is near militaristic. A week-long camp takes It starts with a feeling of flying. Initially, has already celebrated a few friends’ 1000th place involving at least double the required almost in slow motion. The legs are engaged jump and, remarkably, one person’s 10,000th jumpers. Over the week, half the field is to manoeuvre the body. The upper body is jump. eliminated, leaving only the best. At 19,000 still. The first 1,000 feet takes 10 seconds. For all its military precision, the sport has feet (and below) risk is unassailable. Mistakes Then, acceleration kicks in and you reach a comedic side. Mark has jumped in a tuxedo cannot occur. Team solidarity is key . terminal velocity; every 1,000 feet takes 5 (though never in the Wig & Gown), nude, in The crown jewel of Mark’s competition seconds. The force of the up wind pushing is only underwear, jumped with an inflatable achievements occurred in June 2015 in Perris, intense. The freefall is for 60 seconds, then… pool toy, jumped from hot air balloons and California. Incredibly, it was a 119 person the parachute opens…and you sit, suspended even jumped close to someone jumping with ‘snowflake’ formation. It is the current record in the harness, coasting forward; a pull on a a canoe, yes, a canoe. The sport also has an for the largest group of Australian formation riser sends you spiralling, the centre of gravity amusing street (or ‘sky’) talk. Charmingly, skydivers. It involved seven planes and thou- changing as your body pendulums relative to ‘Blue Skies’ is the salutation. It’s like the sands of hours of preparation. To qualify, the the canopy. Then, spiral and steer, spiral and Aloha of Hawaii. ‘Sunset Load’ is the last team were required to be linked together for steer, spiral and steer, all the way down. jump of the day. at least 3 seconds; no mean feat at 200 feet In Australia, the sport is governed by tight a second from 19,000 feet. Mark’s role was rules. A self-administering body known as Blue Skies!

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112 [2018] (Spring) Bar News The Journal of the NSW Bar Association INTERVIEW

Greg Tolhurst

Dr Greg Tolhurst was appointed Executive Director of the New South Wales Bar Association in October 2016.

The Journal of the NSW Bar Association [2018] (Spring) Bar News 113 INTERVIEW

Who are the guiding influences for you a number of the judgments of McPherson What is your perspective of technology on in the law/ have had most of an impact JA of the Queensland Supreme Court were the legal sphere and the impact of obsoles- upon you? pivotal to my Phd. cence thereof? During my time as tipstaff to the Honour- I prefer to use the term ‘inspired’ because able Justice Cripps I was inspired by many It is naïve to think the wave of technology to say someone influenced you suggests you barristers who appeared in the Land and currently impacting on legal services is cycli- seek to emulate them in some way. I have the Environment Court and the NSW Court of cal and can be simply ridden out. However, same issue with music; there are musicians Appeal. I don’t think it would be appropriate history tells us that workplace revolutions who inspire me but I cannot say they influ- to mention names as many are still in practice. result in more jobs being created than lost. enced me because if I practised all day, every Of course it can be difficult to work out exactly what those new jobs look like while you are living through a period of disruption. Artificial intelligence itself needs to be regulated – this is a growing area of law. The ‘Human Rights and Technology’ project recently launched by the Australian Human Rights Commission will be a significant It is naïve to think the wave of piece of research on such regulation. technology currently impacting There will inevitably be other new areas of law and we need to think as a profession on legal services is cyclical and about what they might be and what skills our members will need to take advantage of these can be simply ridden out. new areas. I recently saw a chart of areas of legal practice that did not exist 15 years ago. It was surprising how long it was. Before I left the university I was working with Associate Professor Simon-Reay Atkin- son, an engineer who studies complex civil systems. We were looking at cyber which now forms a type of stateless jurisdiction with a growing body of rules and customs. As a complex system, behaviour in cyber cannot be regulated by command and con- day, I still could not play a bar of what they Do you think that academia has prepared trol rules, but one can influence behaviour play. The same is true in law. you well for the rather obscure world of in a network. We need to understand how So if we stick to those who have inspired the Bar? you do that as it is a world where people are me, my mentor for many years as an academ- operating alongside some of the darker ele- ic was Professor John Carter. John showed I disagree with the premise that the Bar is ments of society. The work made me think me how to go about - and how to enjoy - doc- ‘obscure’. differently about the extent of what law is, trinal legal research and is probably the cause I suppose that for those who have not had to what type of laws can influence behaviour, of my lifelong unrequited love affair with the use a barrister before it may appear to be an the role of lawyers in that world and their law of contract. obscure world, much like that of a leading relationship to other disciplines. I have written a number of books with surgeon; until you need to use the services AI is already impacting on legal work, we Professor Michael Furmston and have learnt of a barrister the Bar is probably a world that all know that. But from the reading I have much from him. people don’t know much about. done, it does not seem that what Nick Bo- As a teacher for close to 18 years and coming I have been around the law for a long time, strom in his book Superintelligence refers to from Sydney Law School one cannot help but and as a doctrinal scholar you are very much as ‘human-level machine intelligence’ will be be inspired by Ross Anderson. Everyone is in touch with practitioners; there was no real attained in my working life. So there is no inspired by Ross Anderson in their teaching; culture shock, except of course for bench and immediate concern that the creative aspects he is Mr Chips of the law school. bar dinners! of legal practice, the advocacy, the applied Professor Neil MacCormick’s writings In some ways, there are strong similarities philosophy, the careful moulding of legal really made me reflect about the law and between academia and the Bar. A good aca- argument will be replaced soon. This is the legal reasoning more than any other writer demic, and a good barrister, doesn’t simply work of the Bar, perhaps the Bar will in fact and also why thinking about law is a good accept the law as it is. Rather they both be the last institution standing when all use of your time. question, evaluate and argue for clarity, for around have faltered. Many people across the university also improvement and, for justice. showed me the importance of cross-discipli- The work of the Bar Association on behalf Were you ever attracted to nary approaches to research. of its members is not purely reactionary or coming to the Bar? At the judicial level, all of my students bureaucratic. know how much of a fan I am of Dixon CJ. We do not unquestioningly accept the law I was never attracted to law! I only ever The list could go on and on, Lord Macnaght- or the policies put to us – the association wanted to be a drummer in a rock n roll en, Lord Diplock, Mason CJ, there are many investigates, interrogates and champions band! That did not go as planned, I say this others. I’ve recently started to read through meaningful law reform and access to justice. was due to tendonitis but that probably all the dissenting judgments of Windeyer J in I think the skills I honed as an academic camouflaged a lack of talent. But when you contract cases, I think many of his dissenting are relevant to the work I do for the Bar As- pursue something like that from a young views perhaps now reflect the law: I should sociation. age, I think I starting gigging around town try to finish that article. I would add that at 15 or 16, it can have a remarkably negative

114 [2018] (Spring) Bar News The Journal of the NSW Bar Association INTERVIEW impact on your HSC mark, leaving you with to deliver a paper at a conference on export them. The work involved lots of meetings, few immediate options. So I found myself as licencing of moveable cultural heritage. I said speeches, reporting and some media. I loved an accounts clerk in an insurance company I would have to say no as I knew nothing every bit of it. Also as Pro-Dean and Acting being pressed to study accounting (the name about the topic. He said ‘you should say yes’. Dean you get to work closely with colleagues of the insurance company will remain with- I did the paper! Giving your first ever con- and help them with their careers and often held). I did accounting for about a year, and ference paper to a group of scholars, many help them as much as you can in their with respect to those who love accounting, it from Oxford and Cambridge, and surviving, personal lives. It is rewarding work. I was was not for me. I did law so they would leave gives you a bit of confidence. It also resulted hoping that a full time management position me alone, and because they had not reacted in the publication of some of my first papers at the University might come my way when a positively to an earlier suggestion that they which focussed on cultural heritage and that, friend put the advertisement for the position give me time off to study archaeology. I only said ‘law’ because earlier that day I ran into a school friend on the bus travelling into work and he told me about what was then the Supreme Court SAB and BAB exams. So I never sat down and considered what I might There are a lot of challenges do with this legal qualification and when I did finish it the academic route opened up. If facing those who provide legal at that time I had a friend who was a barrister services. For barristers some of they may well have led me in that direction but I did not know any barristers, I only those challenges might be faced recall knowing two solicitors. individually and some as chambers How did you enter legal academia? operating as a business unit. Complete happenstance. I never intended finishing law, I did 18 months, put on a backpack, and headed off overseas. Much later I was sitting in a pub in London with people I had been travelling with and it dawned on me that they had all finished University before they travelled. I thought I should head home and at least finish the qualification I had started. But I had no plans as to what I together with art law more generally, is a field of Executive Director on my desk and said would do with it. I studied hard and my best I have enjoyed ever since although it did not ‘much of this sounds like what you have friend’s mum took pity on me and cooked become my academic research area. I also already been doing here’. I applied and three me dinner every Sunday night. Their next got a position as Sir Jack Beatson’s researcher interviews later got the job. door neighbour was Professor John Carter on the new edition of Anson’s. He said to who started to take an interest in my marks me one day ‘you really like this academic What is your perspective on the notion of and when I finished he asked me what I in- work don’t you?’ I replied ‘yes’ and he said ‘One Bar’, the NSW Bar which unites town tended to do. I replied ‘no idea but I liked ‘well you should do it’. Between them I was and country? (e.g. Newcastle, Orange, far international law. I might do a masters in inspired not to manufacture limitations. We North Coast right down to the Victorian that’. He smiled a ‘that will be a passing returned home, I applied for a job at UNSW border). How do you see it developing in interest’ smile - and offered me a job as his business school. I got it, I was teaching. I the future? researcher on the second edition of Contract then applied for a casual position at Sydney Law in Australia with Professor David Har- Law school. I got it. I did a PhD after our The notion of ‘one Bar’ has always been im- land. He brought me over to the dark side of first child was born but we had number two portant and remains so. Indeed the future of commercial law. But having a diploma in law and three while I completed it. I think I the Bar will depend in large part upon that rather than a degree, I did not think I had had graduated by the time number four was notion. There are a lot of challenges facing much of a chance of obtaining an academic born. Life was complete chaos but exciting. I those who provide legal services. For barris- position so I entered practice as an in-house ended up with a full time position at Sydney ters some of those challenges might be faced solicitor. Later my partner enrolled to do a University Law School and there I remained individually and some as chambers operating PhD at Cambridge and so off we went to for 17 years. Loved it. as a business unit. the UK. Sir Anthony Mason had recently But other challenges may need to be faced retired from the High Court and was teach- Was there a key reason to move from an by the profession as a whole requiring us ing Comparative Constitutional Law there academic chair to a job as the Bar’s next to come together as the NSW Bar and at and I got to know him. I understand his chief executive? times the Australian Bar. Grappling with reading list was the largest Cambridge had the challenges and opportunities presented ever seen! Anyway two minutes at the pho- I had been taking on more administrative by changing technology, ensuring diversity tocopier one day with Sir Anthony changed and managerial positions at the University, and building international practices are ex- everything. He gave me two pieces of advice. various Associate Dean Roles, Pro-Dean amples. And the notion of ‘one Bar’ allows He asked what I was copying and I referred and Acting Dean. I found I enjoyed the the Bar Association to take the lead on some to the particular case I was copying. He said work; it was intellectually stimulating to of these challenges. ‘I wouldn’t bother’. I didn’t and it saved me develop ideas with colleagues, whether they Of course some sections of the Bar face a lot of time! He then asked me what I was be new degrees, new units of study or other discrete challenges that require nuanced and doing and I told him that a mutual friend of programmes, work them through various targeted solutions, which is why the Bar As- ours (Professor NE Palmer) had asked me university committees and then implement sociation maintains area of law committees

The Journal of the NSW Bar Association [2018] (Spring) Bar News 115 INTERVIEW and sections. Our Committees comprise 309 tice in alternative pursuits, a thing that 50 the Bar Association does with the judiciary, barristers, which represents around 10 per per cent of current graduates already perceive government and other stakeholders. cent of all practising barristers who give up from having a law degree. No other Bar Association does all of their time to work for their colleagues as one As regards fitting into the new world, the this to the scale that the NSWBA does. In bar. Bar is the new world. We speak today of addition to this there is the need to deliver the gig economy, a world where efficiencies on the strategic plan initiatives. As I said in The Sydney Bar asserts that it is the lead- are obtained by companies and individuals the annual report last year, a large focus has ing Bar in Australia. What are your views entering into short term contracts for work been to review many in-house systems to see on that? (the number of barristers, the and services. That is the Bar; the Bar is very where we can find efficiencies in order to number of cases in the Supreme Court and much then ‘on trend’, and it can deliver the create the capacity to help the Bar Council Federal Court)

I don’t know if it would be appropriate for me to comment. It is what it is! We all know that! To say otherwise would be fake news. I let the evidence speak for itself. But one serious point which I alluded to I recently watched Tom before is that sometimes the Bars will need to come together and be represented as the Wilkinson’s portrayal of a Australian Bar. To that end I do think we need to put some energy behind ensuring barrister in the movie, ‘Denial’. we have a well-funded and strategic oriented Australian Bar Association. I have seen over It was a perfect example of the the last 12 months under Noel Hutley’s Pres- idency that the ABA is positioning itself to importance of that independence. take on a more strategic role for the benefit of all the Australian Bars.

What are your impressions on the rising number of new barristers? How do you envisage the Bar fitting into the new world? (several new universities with law faculties)? efficiencies and savings that companies and and committees on the work of the strategic The recent Bar reading course had one of its individuals seek from that economic model. plan. In saying that I do not want to suggest largest ever cohorts. We do not know why so I know it is counter-intuitive to ‘brief early’ that I put efficiency and optimisation above many at this time are seeking to come to the but it does result in savings and we need to all other considerations. To do so can result Bar. Overall the numbers at the Bar have not communicate that message. But the solicitor in an organisation that cannot adapt and risen sharply. branch of the profession is seeking to sell change. If you look at organisations that Diversity remains a major issue. While ‘retain early’ too, we are both trying to com- have truly stood the test of time (e.g. Bologna female law students have outnumbered municate a similar message and perhaps we (1088), Cambridge (1209), Oxford (1167), male students for decades and the male/ can work on that message together. Harvard (1636), Stadsbank van Lening female ratio of solicitors is reflecting that as (1614), Barclays (1690), the Royal Navy, the an overall figure, we are still not seeing these Have there been any immediate challeng- Bar and the Inns of Court, the Vatican, the figures represented at the Bar. The first year es/concerns and improvements which you Barone Ricasoli winery (1141) and the Shep- and one to five year figures show that there have identified? herd Neame Brewery (1698) there are some is a problem with attracting (and retaining) common features. Those who study this such women to the Bar. The New South Wales Bar Association car- as Professor Scott E Page point to diversity of As I said, law schools have been producing ries a diverse portfolio. From professional people and ideas (best served when there is a large numbers of graduates for some time development (bar practice course, bar exam, willingness to adapt to a growing awareness of now. I understand that generally 50 per cent CPDs lectures and conferences); practice the what ‘diversity’ encapsulates) and having of those graduates say that they never intend support services (library, member services, a certain level of slack in an organisation to to practise law. So you can only assume that benevolent fund, growing demands for more allow for experimentation, adaption and to a law degree is seen as valuable for many platforms such as secure document storage); make an organisation robust. A complete list careers. Similarly engineering has become a advocacy (developing policy and champi- would not contain many businesses that have much more general degree with many going oning meaningful law reform, submissions been driven solely by principles of efficiency. into other walks of life such as banking. to government and stakeholders, speech Rather longevity is based on collaborative What we are not seeing at the NSW Bar is writing, media and communications); pro- social influences which drive decision a large number of new graduates sitting the fessional conduct (certification, statutory making and taken over time rather than hard bar exam. The vast majority have been in obligations and complaints); operations coordination rules and control systems that practice for some time. So I am not seeing (finance, HR, IT facilities, events, data and merely drive decisions ‘now’ and ‘in time’. I the large numbers graduating university as analytics etc). In addition there is silk selec- put aside the apparent relevance of having a impacting on the Bar at the moment. tion, Bar Council elections and a significant good cellar that the above list might suggest. Where further thought could be focussed number of events each year including work- The strategic plan itself has numerous is helping members with planning for life ing with the ABA to develop the national and initiatives but in order to achieve those ini- after the Bar, that is, using the skills they international conferences. Not to mention tiatives you need an end point. For example, gained from a law degree and years of prac- the extensive liaison and engagement work the objects of the Bar Association are set out

116 [2018] (Spring) Bar News The Journal of the NSW Bar Association INTERVIEW in the Constitution but if you were to try and How has your perception of barristers comprising Caroline Cox (Group Corporate summarise many of those objects you might changed, if at all, from being an academic Counsel BHP Billiton), Neil Young QC and say that the role of the Bar Association is to to being the executive director in charge Reay McGuiness (Webb Henderson). But of safeguard the rule of law and support the of the Bar? Were there any preconceptions course that skill transcends commercial work administration of justice in NSW through a before you came? to every type of matter that barristers are sustainable cohort of high quality independ- involved in. ent practitioners at the Bar operating with I do not think it has changed. I have been Finally I think the escrow account that integrity and thriving in a changed legal en- around the law, lawyers and barristers for is now being developed with the National vironment. From that you then have to ask, a long time and my preconceptions were Australia Bank and should be rolled out in ‘what would success look like’? simply of a hard working group of people early 2019 will give our members a lot more That is not an easy question to answer. who work in a highly stressful environment flexibility as to how they wish to run their Indeed it is not an easy question to answer where people’s liberty or financial security is practice. in a single entity like a company, it is more in their hands each day. difficult when you are thinking of around I was reassured and encouraged to find that two and a half thousand sole practitioners. this was in fact the reality of life at the Bar. But it is necessary to find a way of having I probably appreciate their life a little more, the conversations that seek to answer that particularly on the criminal law, family law question so that you know how to approach and personal injuries side as these were not the initiatives in the strategic plan or at least my areas of practice or research. We speak today of the gig economy, where to hedge your bets. Working out how to do that has been a challenge, there are a What is the 3-5 year plan for the Bar and a world where efficiencies are lot of moving parts, but we have made much what do you envisage to this rather ‘clois- progress and there will be more to follow on tered world’ of the Bar? obtained by companies and this. I wouldn’t describe the Bar as ‘cloistered’. individuals entering into short What are your opinions of the importance Like the judiciary and police force, many of of the Bar and where it sits in our society our members see far too much of the dark term contracts for work and and also in preserving it as an independ- side of humanity. The work barristers do in services. That is the Bar; the ent ‘private Bar’? Do you have any obser- representing clients in all fields of law very vations or perspectives on that notion? much puts them ‘out there’ in the world. Bar is very much then ‘on The long term plan is all in the strategic When addressing the Bar Readers Course plan. The Bar Association staff will strive trend’, and it can deliver the the President, Arthur Moses SC often quotes to work with the Bar Council and its Com- from Dixon CJ’s swearing in speech as chief mittees to implement the initiatives in the efficiencies and savings that justice of the High Court on 21 April 1952 strategic plan while carrying out the day to where his Honour said, ‘[B]ecause it is the day functions of the Bar Association. companies and individuals seek duty of the barrister to stand between the subject and the Crown, and between the rich Does the executive director hazard a guess from that economic model. and the poor, the powerful and the weak, it how the role of barristers will change is necessary that, while the bar occupies an given the numbers and the changing face essential part in the administration of justice, of the law? (Technically, the Bar has not the barrister should be completely independ- increased in size as much as people think.) ent and work entirely as an individual’. It is difficult to express the importance of the Bar I hope it does not change! The independent any better. referral Bar is crucial to the administration That independence and the cab rank rule of justice and that role needs to be protected. are essential to our legal system. I recently It is difficult to predict the optimum size of watched Tom Wilkinson’s portrayal of a the Bar and the nature of advocacy keeps de- barrister in the movie, ‘Denial’. It was a veloping. We have seen a rise of the inquiry perfect example of the importance of that of late and barristers are uniquely equipped independence. to work in those arenas. But it is important Not too long ago I was sitting at a table to communicate the extent of what advocacy with a group of leading commercial solicitors entails. We know it transcends the court to and the topic got onto, ‘if I got into real mediation and arbitration, but a large part trouble with my bank and I needed very of what barristers do is manage risk and help sophisticated legal advice, could I go to one clients make strategic decisions in difficult, of the large law firms to get it’? disruptive and stressful situations. That im- There was a general consensus that it would portant skill is one that clients need to tap be difficult to get such advice because of the early and is why the message of ‘brief early’ conflicts of interest that are likely to arise is so crucial. There is an important session with the banks being clients of the firms. in the upcoming Australian Bar Association Now they may or may not have overstated and New South Wales Bar Association na- the position, but the question does not arise tional conference on this topic. The session is when you discuss the Bar because of that in- entitled ‘Effective Triage of Major Multi-fac- dependence. Any person can brief a leading eted Disputes – positioning clients to survive banking barrister. the feeding frenzy’ and is being moderated by Elizabeth Cheeseman SC with a panel

The Journal of the NSW Bar Association [2018] (Spring) Bar News 117 COMMITTEE ROUNDUP

Family Court of Australia in the Parramatta Justice Precinct. Photo: Manfred Gottschalk / Alamy Stock Photo Chronic underfunding is the cause of delays in family law

By Michael Kearney SC

In May 2018, the federal attorney-general be finally determined for at least three years announced the government’s proposal to and, in a significant number of cases, will take merge the Family Court of Australia and the longer. That is unfair to families and is not Federal Circuit Court, a move that would sustainable. effectively lead to the abolition of the Family Barristers in NSW are at the coalface of Court of Australia. dealing with the problems that arise from The proposed merger would create a new stretched judicial and court resources. single ‘Federal Circuit and Family Court of In Dubbo and Orange, practictioners report Australia’ from 1 January 2019, in addition that since about 2015, sittings for duty matters to a new Family Law Appeal Division in the and hearings have reduced dramatically in the Federal Court of Australia to hear all appeals in Family Court and the Federal Circuit Court. family law matters from the new merged court. funding is at the heart of dealing with those The Family Court sat in Dubbo for at least At the time of the announcement, which delays. four hearing weeks a year until about 2017. took the profession largely by surprise, the In late July 2018 the Bar Association released Following the appointment of Justice Gill to federal attorney-general advised the president a Discussion Paper intended to foster debate the Canberra Registry it was announced that of the Bar Association, Arthur Moses SC, that and encourage the government to consult in his Honouor would sit for 20 weeks a year at he was willing to engage in discussions about relation to these important reforms. Parramatta, to enable Justice Foster to cover the proposed reforms. To date, no discussions The Discussion Paper called for a national the Dubbo sittings. As it turned out, Justice have occurred. conversation about the benefits of preserving a Gill did not sit at Parramatta for 20 weeks a The announcement was made in the middle specialist family court in Australia and outlined year as proposed and the sittings of the Family of a review of the family law system being car- a proposal for structural reform of the Federal Court at Dubbo ceased completely. ried out by the Australian Law Reform Com- Courts that maintains a stand-alone, properly The resumption of the Family Court sittings mission (ALRC), which has been asked by the resourced Family Court of Australia 2.0 as an at Dubbo for two weeks a year is under con- Australian Government to consider (amongst alternative to the restructure proposed by the sideration. However, that would still represent other matters) ‘whether the adversarial court attorney-general. only half of the sittings that have historically system offers the best way’ of resolving parent- The difficulties faced by the family law juris- taken place at Dubbo. ing and property disputes. idiction is experienced throughout New South Although there are scheduled sittings of The Bar Association’s position has always Wales and is particularly acute in metropolitan the Federal Circuit Court in Dubbo and been that real and lasting reform of family law and regional areas. Orange in 2018, and it is recognised by local has to be based on evidence which is aimed at The delays in both the Sydney and Parramat- practitioners that the sitting judges work very reducing the unacceptable delays that exist in ta Registries of the Family Court of Australia hard – in one recent case, the court sat until the current system. The provision of sufficient mean that a case commenced today (involving 7.15pm so as to avoid having to adjourn a two judicial resources and appropriate legal aid children and/or financial issues) is unlikely to day specially-fixed part-heard matter – there

118 [2018] (Spring) Bar News The Journal of the NSW Bar Association COMMITTEE ROUNDUP are still significant delays, an inability to obtain Circuit Court sits for final hearings for about number of judicial officers to deal with an an urgent or interim hearing date and a risk of five weeks a year, which is a similar period expanding jurisdiction and increasing work- matters being ‘not reached’ on more than one to the Lismore circuit. The court also sits load, but also insufficient funding to maintain occasion. in both centres on other occasions for other counselling and assessment services previously hearings, sometimes by phone, other times provided by the courts. Albury circuit physically. The Bar Association’s submission also stated In a recent Coffs Harbour circuit, in the that although there is a great willingness On the Albury circuit, a reduction in sittings week of 20 November 2017, there was a large among the members of the NSW Family Law is causing severe delays in the resolution of number of matters listed each day at 9.30am, Bar to provide pro bono assistance, the asso- proceedings. In about 2015, sitting weeks along with a sizeable list of mentions and ciation is concerned that the provision of pro reduced from about 10 a year to five weeks interim applications, which often take up bono assistance for those involved in family law a year. Generally, the duty list operates on two hours of the court’s hearing time. Coffs proceedings simply cannot and should not be a Monday of the sitting week and hearings Harbour is a region with a large amount of substitute for the proper funding of the courts are listed from Tuesday to Friday. Hearings parenting applications, which often, necessar- and the legal aid system for those in need of are allocated for specific dates within the ily, take priority. To add to the workload, by family law assistance. hearing week, rather than as a rolling list; the Thursday of that week, fresh final hearing Without a properly funded family law system however, local practitioners report that some matters were listed. Two matters were heard to the rights and interests of litigants and children matters inevitably roll over to the following finality in the course of the week. The position alike cannot properly be protected. Without day, and legal representatives are expected is similar in Lismore. proper representation, there is a real risk of to be in a position to appear on any day of The delays are illustrated in one parenting uneven playing fields and unfair outcomes. the sitting week. As with any list, some cases case involving a child aged under two years, to The Family Law Committee’s position is that are adjourned and some resolve on the day whom the father did not initially have access. a properly-resourced court must be a key part of of hearing. Others are marked ‘not reached’. Following an appeal of an interim decision, any blueprint for the future of family law, just as By way of illustration, on a sitting week in the matter was listed for final hearing in June it has been a critical, if underrated, part of the December 2017, some 58 matters were listed 2017. The matter was heard for one day, then system’s success over the last four decades. before the court. Four matters involved interim marked part heard. The hearing resumed on Many parts of the ALRC’s ‘issues paper’ hearings, and the balance were listed for direc- on 14 September 2017, at the end of which it make reference to various family law systems tions. From Tuesday to Thursday of that week, was again marked part heard, and was again and models which operate around the world. 48 matters were listed for final hearing. At listed in December 2017. What is missed is that so many different coun- least one of those matters had twice previously tries look to Australia as the ‘gold standard’ been marked ‘not reached’, a not uncommon Submission to review of the and benchmark of family law systems. Over occurrence. Such ‘over-listing’ of final hearings family law system the last four decades the Australian family law results in a duplication of costs for clients in system has built up procedures and jurispru- preparing for trial. Against that background, the Family Law dence held in high regard in almost all areas Legally aided matters often reach the cap in Committee prepared a submission in May of the world except, it often seems, Australia. funding without the proceedings being heard. 2018 on behalf of the association in response The most difficult matters and the most Multiple applications must be made if a matter to an ‘issues paper’ released by the ALRC as complex matters will ultimately require the is not reached. Delays in processing Legal Aid part of its review of the family law system. assistance of a court. It is critical for the benefit applications in turn result in funding not being In that submission, the association stressed of these clients and children involved in these granted in time for trial evidence to be filed in that fundamental to the federal review should cases that the court must be properly support- accordance with court orders. be a recognition that family law in NSW ed and resourced to adjudicate justly, promptly Local practitioners report that final hearings has been adversely affected by a chronic and and affordably. are listed before the preparation of a Family sustained lack of resources in both the Fed- The Bar Association’s submission to the Report, which is often released very close to eral Circuit Court and the Family Court of ALRC conluded: ‘The association recognises the hearing date. Legal Aid will often not even Australia in its NSW registries, which has the work of the courts, the judiciary and the consider applications for trial funding until resulted from an absence of commitment by barristers who have achieved what has been the Family Report is released. This results in successive governments to the proper funding achieved despite the chronic underfunding delayed preparation of trial documents. At a of the system. of the system and without the support and practical level, case management occurs during ‘Any recommendations made by the ALRC resourcing required. In conclusion, the associa- sittings. There is no provision for telephone as a result of this review need to recognise and tion believes that the future of a fair, robust and directions hearings to occur, for example, after acknowledge that without a commitment by just family law system must include a properly a conciliation conference or mediation or after government to a properly resourced family resourced, respected and supported court. The the release of a Family Report. law system, such recommendations will be, at association encourages the ALRC to consider More proceedings are now being transferred best, of limited utility,’ the association stated the resourcing and funding of the courts as a to Melbourne for hearing than was the case in its submission. crucial part of any proposed reform and to call when 10 hearing weeks were allocated to the ‘The association considers it imperative to on government to support the courts’ ongoing Albury Circuit. The costs associated with trav- ensure that, while alternative dispute resolu- work for and on behalf of the community.’ elling to Melbourne is prohibitive for many tion is utilised wherever possible and appropri- As part of its review, the ALRC is scheduled litigants and difficult for regional practitioners. ate, the broader family law system, including to release a discussion paper in early October The listing of urgent interim hearings is some- the courts, is properly resourced, maintained 2018, and the Family Law Committee will pre- times delayed by up to three months, resulting and supported to administer justice for those pare a further submission in response to it on in practitioners listing urgent matters before affected by complex family law matters that behalf of the association, which will be the sub- the Local Court or in Melbourne. cannot otherwise be resolved.’ ject of an article in a future issue of Bar News. The average number of cases in the docket The ALRC is due to provide its final report to Coffs Harbour/Lismore of judges in the Federal Circuit Court is in the Attorney General on 31 March 2019. excess of 400, a crushing workload. The lack On the Coffs Harbour circuit, the Federal of resources relates not only to an insufficient

The Journal of the NSW Bar Association [2018] (Spring) Bar News 119 OBITUARIES

married life that lasted 57 years. Hodgson JA, Beazley JA and Michael Kirby, As a reader his Pupil Masters were Bernard Dennis Mahoney, Keith Mason as Presidents. Reilly and Forbes Officer. Simon regarded It was a superb time in that Court and Simon their instruction as the foundation for his felt a special honour to be part of the court. career at the Bar. On the bench, Simon was always polite and Simon’s style of advocacy was polite, un- engaging. He remembered what it had been derstated, and gentlemanly – an inimitable like to appear before intemperate judges. He courtesy became his hallmark. He had an would not emulate such judicial behaviour. urbane style which stood in stark contrast As Kirby P noted, on the Court of Appeal with the rambunctious cohort of common Simon maintained a friendly visage. law types which dominated the Bar in the Simon sat on countless committees over years 1960–1980. 13 years while on the Court, including the The Honourable In his early days at the Bar, Simon assisted Law Court’s Library Management Commit- on inquiries and royal commissions in the tee, 175th Anniversary Committee and the Charles Simon Camac 1970s, most notably when he was led by Bill Law Court’s Renovation Committee which Fisher QC in the Petroleum Inquiry in 1975 supervised the renovation of the old Supreme Sheller AO QC (the same year he took silk) headed by Mr Court. He was chairman of the Judicial Con- Justice Collins. Thereafter, he had the great- ference and Barristers Sickness and Accident Simon Sheller QC, the former Court of est respect and fondest regard for Fisher. Fund. He was also the chancellor of the Dio- Appeal Judge, has died aged 84 years. He There were also several appearances in the cese of Grafton 1974–1996. had a remarkable career in the law - he was High Court starting with Ravenshoe Tin On the occasion of Simon’s retirement the judge’s judge. Dredging Ltd v Federal Commissioner of Taxa- from the court in 2005, the then chief justice, Charles Simon Camac Sheller was born to tion (1966) 116 CLR 81, JJ Spigelman, said: Horace and Mary Sheller on 2 May 1933. He Simon practised at the Bar unstintingly was an only child. He was educated during for 32 years. He shared chambers with […] In the 180 year history of this the Second World War at Cranbrook, Bel- Poulos QC, Hunter QC, Staff QC and later court there have been numerous judges levue Hill and then at the King’s School at Maconachie QC (his last pupil). They were who have displayed many of the judicial Parramatta. members of the Eleventh Floor. That clerk of virtues: learning, wisdom, compassion, After he left school Simon travelled to Eng- clerks, Paul Daley, became Simon’s personal eloquence, robust independence, land. He went up to Trinity College Cam- and family friend over 28 years of service. impartiality, attentiveness, diligence, bridge where he read for the MA. He then Simon fraternised with the great luminaries common sense, clarity of thought and trained as a Scots Guard (Second Lieutenant of Wentworth Chambers: Paul Donohoe of expression, administrative skills and BAOR) in 1955. For a time, he served in the QC, Bill Fisher QC, BB Riley QC, BT Sully strength of character. Few have had all of British Army in Germany. QC, The Hon. TEF Hughes QC, FS McA- these qualities and to the high level, that In this busy time, there was even a brief lary QC, WP Deane QC, RJ Bainton QC, has been manifest by the Honourable appearance in the film Around the World in Dusty Ireland QC, Robert Shallcross Hulme Justice Simon Sheller […] 80 Days with David Niven and Shirley Ma- QC and of course, a younger Maconachie cLaine. He is depicted in a scene among his QC. He led the likes of AJ Meagher SC, MA The chief justice remarked upon Simon’s military colleagues in uniform near Bucking- Pembroke SC and MB Oakes SC. 200 plus judgments not including those un- ham Palace. Simon’s cause celebre was Ritz Hotel v reported. All bore the hallmarks of Simon’s Simon was the last associate to Sir Dudley Charles of the Ritz before Malcolm McLel- inimitable judicial voice ‘[His] command Williams on the High Court in 1957 and land then Chief Judge in Equity which of the language [allowed] all of this to be 1958 before returning to England where he required 23 appearances. It was an arduous expressed with force and clarity and in a tone was called to the Inner Temple (London) in case about comestibles bearing the famous of high sobriety’. 1958. Sir Dudley imbued Simon with the hotelier’s name. The Hon. Bob Ellicott QC, On retirement, Simon prioritised life at learning, diligence and care which would susan erstwhile opponent, complained that he home and in the Southern Highlands with tain him throughout his career. The intimacy knew the meaning of ‘aggrieved person’ in Jan, his children and, ultimately, 14 grand- of the High Court premises at Darlinghurst the aftermath of having lost to Simon. children. gave Simon a great exposure to the judges, in By 1975, Simon was in silk and practised as Simon succeeded over a lifetime in eschew- particular Sir Owen Dixon who was always a QC par excellence, in the heady commercial ing the loneliness he had experienced as a willing to offer Simon advice which he en- litigation which carried on through the 1970s child. Simon’s large family with Jan, Mark, joyed receiving. and 80s. He never failed to help a junior Jane, Sara, Emma and James – a barrister, all Sir Dudley was steeped in the practice and counsel – as a guiding and reassuring light. survive him. And all of his grandchildren. procedure of the Equity courts and before Many well-known cases followed includ- This is testament to this promise of convivial that of the Chancery and was the finest ing Baltic Shipping v Dillon and Australian company. It was a rich and loving family life equity silk. He confided in Simon that he Broadcasting v Bond. At his height, he argued – to everyone’s delight. preferred the work in the Equity Division of Cole v Whitfield and the Hammersely cases. Simon died in Bowral on 16 April 2018 the NSW Supreme Court and should never He was often in the High Court and in the and was farewelled at a private funeral in the have left that court. NSW Court of Appeal. Southern Highlands. The legal profession Simon was called to the Bar in Sydney on Simon was offered a judicial appointment gathered at St James King Street on 4 May 25 November 1959. The most significant in 1991, directly to the NSW Court of 2018 to honour his passing. The church moment in his time at the Bar occurred within Appeal. The Hon. Murray Gleeson AC QC, was filled with the profession, family and four months of his calling when, on 31 March then chief justice, said at the time that he friends joined together in fond recollection 1960, he took a phone call from someone he could not have been a more suitable candi- of Simon’s achievements, both personal and had never met before, Jan McDowell, seeking date for judicial appointment. Indeed, as a professional. a lift to a party taking place the next day. His judge he would sit with the likes of Spigelman considered response was a critical step into a CJ, Samuels JA, Meagher JA, Handley JA, Kevin Tang

120 [2018] (Spring) Bar News The Journal of the NSW Bar Association OBITUARIES

and died with nine others, including two more from lower courts, rather than the bar. Yet he cabinet ministers, in a plane crash near Can- backed social reforms introduced by Frank berra in 1940. Walker in Neville Wran’s government, such Another John Street had arrived from as Aboriginal land rights, community justice England as a free settler in 1822, found land centres and Legal Aid. at Bathurst and married Marie Rendell, with Describing himself as a ‘pragmatic idealist’, Reverend Samuel Marsden officiating. A son, he disliked controversy but headed the royal John Rendell Street, MLA, married Susannah, commission into allegations that Murray a daughter of William Lawson, one of the first Farquhar had tried to influence a court case white men across the Blue Mountains; their against rugby league boss Kevin Humphreys son became Sir Philip Whistler Street, chief and that Wran may have influenced Farquhar. Sir Laurence Street: justice of NSW (1926-1934) and father of Sir Wran was cleared, Farquhar gaoled and Hum- the very model of a Kenneth Whistler Street, chief justice from phreys convicted. 1950 to 1960. Street made suggestions to the Law Reform modern chief justice Kenneth Street married Jessie Lillingston. Commission and championed the establish- Both families feared the union would be a dis- ment of ICAC, although some colleagues After a meeting in 1986, the Supreme aster. Jessie was accused of being a communist believed that judges should be excluded from Court judges of NSW issued their first joint and fought for the peace, women’s movements its scrutiny. He wanted to break impediments statement. The historic meeting addressed a and for Aboriginal rights in the 1967 ref- that stood between the benefits of the law and burning issue: the balance between the judges’ erendum. Conservative Kenneth dressed for the people. He coped with a vast amount of cherished independence and their public ac- dinner. new litigation by streamlining procedures, countability, especially in view of allegations When he was appointed chief justice, she introducing declaratory orders and referring against High Court Justice Lionel Murphy, went to Europe for six years, including Russia certain matters to specialist referees. District Court Judge John Foord and Chief for Joseph Stalin’s funeral in 1954. The Men- His last case saw the Court of Criminal Magistrate Murray Farquhar. zies government tried to revoke her passport. Appeal legally recognise sex change operations, Sombre judges had slipped through the The marriage defied the dire forecasts and with ‘a more compassionate, tolerant attitude court’s back door, while their chief, the darkly Laurence, born on July 3, 1926, was one of to the problem of human sexuality’. A person’s handsome Sir Laurence Street, fondly known four children. He became a prefect at Cranbro- sex would be decided on their psychological as Lorenzo the Magnificent, stopped helpfully ok, lieutenant in the cadets, debater and school sex as well as genital features. for news photographers at the front. Street’s magazine editor. Justice Michael Kirby spoke at Street’s historic public statement afterwards brought Joining the RAN at 17, he served in the latter farewell in 1988 of his ‘shining capacities as the government executive and the judiciary stages of World War II. He said that Jessie had a creative, energetic and imaginative judge into serious conflict, with the judges joined by passed on her humanity and four years in the … he was swift and efficient, courteous and District Court colleagues and magistrates. navy gave him ‘something of the common painstaking. He was equalled by none in his Then premier Barrie Unsworth and attorney touch’. He took second class honours in law at capacity to deliver extempore judgments which general Terry Sheahan wanted to remove from Sydney University and became associate to Sir marshalled the facts, expounded the law and parliament the power to sack judges; they William Owen in the Supreme Court, before reached conclusions … He is the very model of wanted the judiciary to deal with the Foord Owen went to the High Court. a modern chief justice.’ case. Street went to the bar in 1951, married Susan Street thought history was bringing law Street led the revolt that forced a government Watt in 1952 and became a junior to Garfield closer to social justice than in Dickens’ time, back-down. The judges accepted a compromise Barwick. He established a large practice, par- softening the harshness of black letter law. ‘You - establishment of the Judicial Commission to ticularly in equity, commercial law and naval don’t leave your heart behind as a judge.’ investigate allegations of judicial misconduct, matters, taking silk in 1963. He was the first retiring chief justice to take but parliament must still wield the ultimate Court observers noticed that his forensic on a new career, as a commercial mediator, power. cross-examinations came gently, even to and a new wife, Penny Ferguson. He said: ‘I’ve Laurence Lillingston Whistler Street knew hostile witnesses. Some called him ‘Lorenzo always enjoyed a streak of irresponsibility, both the history. The Stuart kings had sacked judges the Latin Lover’; he represented the American in my values and in my lifestyle. I’ve never with whom they disagreed. The 1702 Act of actor Connie Stevens, who referred to him felt constrained in my private life by the cast- Settlement gave judges independence and seas ‘so handsome I had a mad crush on him’. iron requirements of society. I got divorced, I curity of tenure. The Street family is steeped in Street became a judge in equity in 1965 and remarried, and had a second family of one. I history. Alys de Streate is in the 1085 Domes- chief equity judge in 1972. Appointed chief have led a life that has not necessarily always day book. Laurence’s mother, Jessie, traced her justice of the NSW Supreme Court in 1974, at conformed to the strict Victorian standards.’ ancestors back to King Alfred (the Great) of 47 years, he was unabashed. In his second career he negotiated a settlement England (849-899). John Street shot dead two He was accomplished at cutting through between the British National History Museum of the gunpowder plotters seeking to blow up masses of detail to go to the hearts of matters. and Indigenous groups to return the remains the Houses of Parliament in 1605. In 1686 Sir He mixed traditionalism with a certain radical of 17 people to Tasmania. He decided there Thomas Street was the only one of 10 judges to touch, legal stability with creativity. Refusing was sufficient evidence to charge the arresting rule against a claim by James II. an injunction to ban Hare Krishna activities officer in the death of Mulrunji Doomadgee on Annie Besant, social reformer of the The- in streets, he said: ‘Manifestations of eccentric- Palm Island. He inquired into anti-terrorism, osophical Society, was of the extended Street ities by a person or persons within such a large casinos and the Children of God. family, as were anti-slavery campaigner Wil- city lend some colour to that city.’ Sir Laurence Street is survived by Penny, liam Wilberforce, American painter James Street opposed the Whitlam government’s children Sylvia, Sarah, Alexander, Kenneth Whistler and Edward Lear, most famous establishment of the Family Court, disap- and Jessie (whose godfather is Prince Charles), for nonsense poems. Laurence’s uncle, also proved of federal and supreme courts being 15 grandchildren. Laurence, was killed at Gallipoli. Geoffrey under the same roof in the new Queen’s Square Street fought at Gallipoli and in France, won a building in 1977, and clashed with the NSW By Tony Stephens Military Cross, became minister for the army government over its appointment of judges Reproduced under licence from the Sydney Morning Herald, 22 June 2018

The Journal of the NSW Bar Association [2018] (Spring) Bar News 121 APPOINTMENTS

practice and procedure and polices are in no Service, before accepting a position at Hunt small measure due to her and her regular Partners from December 1996 to September appearance as top counsel in that jurisdic- 1997. tion. She has even been a pioneer sitting as a For the next five years her Honour was a mediator in this niche area of Dust Diseases. solicitor and then senior solicitor at the NSW Throughout her Honour’s career, and espe- Office of the DPP, managing many and varied cially during these mediations, her Honour tasks, from Local Court committals, Supreme exhibited excellence and extensive knowl- Court bail lists, conferences with witnesses edge of the area. Her Honour’s achievement and victims of crime, as well as appearing as and accomplishment in this area often draws an advocate in District Court short matters. remarks upon the warmth and sensitivity she Since January 2003, until the time her exhibited to all concerned in the Dust Dis- Honour accepted the appointment, she had Judge Wendy Sue eases procedures. Litigants bore witness to served in various capacities at Legal Aid NSW a highly skilled advocate in the most trying – as solicitor in charge at the Drug Court of Strathdee of circumstances. Those considerable skills NSW, acting solicitor in charge of Inner City will make her Honour a compassionate judge Local Courts and indictable offences in Par- On Tuesday, 22 May 2018 Wendy Strath- who will bring significant measures of legal ramatta. dee was sworn-in as a judge of the District skill and compassion to the court. Her Honour has presented and co-written Court and the Dust Diseases Tribunal of numerous, authoritative conference papers New South Wales. Elizabeth Cheeseman SC Judge Strathdee replaces his Honour Judge regarding this court, criminal law, the Bail attended the ceremonial sitting and spoke on Kearns on the District Court. Act, sentencing, and the criminalisation of behalf of the New South Wales Bar. Also in children in care. She has made a number of attendance were her Honour’s parents, Ian By Kevin Tang submissions on behalf of Legal Aid NSW to Strathdee QC and Dr Marleen Strathdee. inquiries by Law Reform Commissions and Her Honour’s mother, an ophthalmic parliamentary committees. surgeon, was a pioneer at a time when being Established in 1905 under the Neglected a working mother was not the norm. By all Children and Juvenile Offenders Act, the accounts, her Honour’s childhood was spent Children’s Court of NSW is the second oldest in a household which knew the meaning of such court in the world. The court combines hard work, and which valued intellectual the two distinct but complementary jurisdic- achievement and prized the importance of tions of juvenile justice and care and protec- the public service. Her Honour’s husband Mr tion. Dominic Priestly SC and her two children In his concluding remarks, Arthur Moses were also present to witness this significant SC said: day in her Honour’s professional life. Judge Strathdee entered the legal profes- I needn’t remind those present today that sion in 1988. She was the associate to Judge juvenile offending is often the subject of Conomos and then for some years for Judge sensationalist reports and commenting in Phil Johnston on the District Court. Her Debra Maher some sections of the media – we are told Honour was admitted to the New South that children are out of control and need Wales Bar in 1992. By that time, her Honour Debra Maher was sworn-in as a magistrate a firm hand. What is true is that young was an expert in law and the lore of the court of the Children’s Court of NSW on 18 June offenders are more likely to suffer socio- room and the many aspects of a life at the 2018. President Arthur Moses SC spoke on economic disadvantage and interrupted Bar. However, even that did not spare her behalf of the NSW Bar. schooling. Other common factors include Honour from a proper period of initiation Present at the ceremony were her Honour’s family violence, parental unemployment, even appearing before Judge Johnston. Her family and friends, in particular her husband, child abuse, neglect, physical, intellectual Honour’s pupil master was Peter Mooney SC. former rugby player turned referee, Wayne or learning disabilities. Her Honour moved from Garfield Barwick Erickson, daughter Whitney, an accom- Chambers to Elizabeth Street Chambers over plished opera singer, and granddaughters Lilly [T]he juvenile system is only as good as the course of her career at the Bar. and Allegra. the magistrates appointed to this court As a barrister her Honour was admired for Her Honour is described by former col- and the lawyers appearing before this her friendly pragmatism in cases, her firm but leagues at Legal Aid as ‘feisty, committed, court. It is for that reason that the people generous nature and her good heartedness in passionate and caring’. She attended Burwood of NSW are fortunate that the attorney dealing with others in the court. These are Girls High School and enrolled in a Bachelor has appointed a magistrate with vast significant aspects observed of her Honour of Science degree at the University of Sydney. experience in criminal law and steeped in how a barrister practises the Law. Her Her Honour decided to change career path in both the practices and the unique professional domain was the Dust Diseases and instead went to work for IBM Australia pressures of this court. Tribunal and Mr John O’Mealey AM (who as a business analyst. Her Honour then heard was also in court) formally remembered her the call of the law and began work as a parale- The whole community has a stake in as a regular and skilful advocate before that gal at Baker & McKenzie Solicitors. your success, not to mention the success tribunal. In 1994 her Honour completed a Bachelor of this court, in helping some of society’s Her Honour is remembered for dealing of Legal Studies at Macquarie University and most disadvantage and troubled youths with real issues in a case before the court and following her practical legal training she was to make a successful transformation into was held in high regard by her opposition admitted as a solicitor of the Supreme Court responsible citizens. I congratulate you and judges of that court. As is well known, of NSW in February 1995. Her Honour and wish you well. the tribunal sits at any day, any time almost began working as a legal research officer for anywhere. The development of the Tribunals the Royal Commission into the NSW Police By Kevin Tang

122 [2018] (Spring) Bar News The Journal of the NSW Bar Association BOOK REVIEWS

training and their experience. We have con- helps to explain why prosecutions proceed fidence that they are qualified to help us, in the manner they now do, why this is because the government, and our insurers, important to secure fairness to the various ensure that they are sufficiently remunerat- participants, and how it goes wrong when ed to keep their skills at a level that will the elements are overburdened as they are. keep us alive. We forgive their busyness and The wrongness is vividly expressed in remoteness because we know the demands experiences that will be all too familiar on their time. to those acting in the criminal courts. That confidence does not extend to crim- Prosecutors in the Magistrate’s Court with inal lawyers. Somehow, they are lumped a pile of files and a queue of defence law- into the rich fat cat class of their commer- yers vying for their attention 10 minutes cial brethren, without any real information before the hearing, no-one being able to as to what they get paid, and how.2 For communicate with each other before this. reasons explained by Emmanuel Kerkyas- Frustrated, nervous witnesses told to go harian elsewhere in Bar News, funding for home and wait a few months because the criminal justice is in crisis in New South case is not reached due to lack of judges, or Wales, especially when it comes to legal aid. worse, courtrooms. Delays in trials because Recent announcements may improve a dire CCTV evidence can’t be played or AV links situation,3 but underfunding of barristers is don’t work on the antique court systems. a clear contributor to the quality of work The SB then goes beyond the Austral- The Secret Barrister: they can deliver, and that contributes to the ian experience and describes how the UK stressors on a court system that is already justice system has descended into Kafka Stories of the Law and creaking under its own weight. territory. Error-ridden hearings before The SB deals with this issue and more unqualified, untrained lay magistrates that How It’s Broken in his book. His description of how the are utterly unrepresentative of the commu- criminal justice system functions in Eng- nities they are called on to judge. Trials not The Secret Barrister is an anonymous land and Wales is a warning of what the just going over with stunning regularity blogger who writes about his1 job: a junior NSW system could become if not properly because overstacked, understaffed Crown barrister specialising in criminal law in the attended to. The grim maths in chapters 6 Prosecutors give late disclosure, but being courts of England and Wales. His book and 7 has English criminal practitioners dismissed altogether because the evidence is about day-to-day of life in the criminal taking between £18.95 and £3 an hour, was never gathered in the first place. In the courts and the wider problems faced in the depending on where the case is heard and Magistrate’s Court, trials being dismissed English criminal justice system. The SB when it concludes. There is a disturbing on the first return because of inflexible writes, he says, because he thinks that legal financial penalty for cases that conclude case management rules, no matter if it is a practitioners ‘… do a stunningly poor job with a plea or discontinuance before trial. mother seeking protection from a domestic of explaining to people what the law is, and Baby barristers will literally pay to work abuser. why it matters. Too many of us are content on a circuit brief because the train fare is Savage cuts in funding and outsourcing to busy ourselves in our own work, safe in not covered and is higher than the fee. The of everything from the Crown Prosecution the knowledge that what we do is impor- obvious solution is to take on more work, Service to victim’s services to translators tant, but without feeling the need to de- and transcribers to probation service trusts. construct for the man on the street why [it] Prosecution decisions being taken, against … has any relevance to their everyday life. Baby barristers will literally pay counsel’s advice and the victim’s wishes, We then wonder why there is an obvious because of a need to meet statistical out- disconnect between the legal system and to work on a circuit brief because comes. Accused persons, denied decent the people it exists to serve and protect.’ legal aid solicitors because their practices Like medical dramas, criminal law is the train fare is not covered are collapsing, falling prey to vultures who something we like to watch on television; cash the legal aid cheque, do no work and unlike sickness and accidents, we tend to and is higher than the fee. vanish before the trial. Or worse, defend- think that a brush with the courts won’t ants standing trial for murder without happen to us. proper representation because barristers are This is one of the points that the SB leaving less time to dedicate to preparation on strike.5 makes in the first pages of the book. The of any one brief.4 This depressing fare is surprisingly state of the criminal justice system is not The SB brilliantly communicates the digestible because the SB is such a great the subject of public debate in the way that vast importance of a functioning criminal writer. His accounts are filled with the hu- health or education is. It should be; expo- justice system to a functioning civil society, manity of those he represents or prosecutes, sure to crime is as happenstance as a sudden and the very real fear that if the commu- and the people he works with. He educates illness or accident, and quality of service is nity loses faith in state justice they might us on the good in the criminal law as much as dependent on fortune as is access to the resort to justice by their own hand. He as the bad. Chapter 6 contains a passage best schools. A trip to the Local or District then demonstrates the extent to which the viscerally celebrating the work of criminal Court has something in common with a English system has ceased to function and solicitors, without whom, he says, the ac- trip to the hospital: anguished, expensive the miscarriages of justice that occur as a cused and defence counsel would be lost. waiting. Nothing happens fast, and noth- result. The SB’s descriptions of the criminal world ing is really explained. To illustrate the extent of the problem, are frequently hilarious: Most of us make it through the frighten- the SB takes the reader through the var- ‘To an extra-terrestrial touching down ing labyrinth of a public hospital because ious stages of a criminal trial in the UK, outside the city Crown Court, our way of we trust in the doctors who will eventually giving interesting historical context to resolving disputes where an individual is tend to us. That trust is grounded in their each element of the judicial process. This alleged to have breached our central social

The Journal of the NSW Bar Association [2018] (Spring) Bar News 123 BOOK REVIEWS code would be unfathomable. Get two each driven by considerations of trade and people with plummy accents, stick them establishing ‘spheres of influence’. in black capes, shove horsehair wigs on After the Japanese surrender in 1945 and their heads, arm them with books of rules as Russia advanced through Manchuria weighing as much as a grown pig and use and then southwards down the Korean them as proxies to verbally joust in front peninsula, the United States decided that of a bewigged sexegenerian in a big purple it had a strategic interest in declaring an gown, while twelve people yanked off the artificial division at the 38th parallel in street sit and watch and try to make sense order to halt the Soviet advance; and then of it all and decide who’s in the right. The in securing and cementing that division by winner gets nothing. The loser ends up in a a military occupation. A unilateral deci- concrete box.’ sion was made without regard to the wishes Ultimately, The Secret Barrister is a cele- and interests of the Korean people. Thus, bration of our system of criminal justice as the ensuing conflicts between the North much as a lament for what it is becoming. In and the South have been driven not by a chapters 8 and 9, the SB explores the many desire to destroy or conquer the other, but procedural and tactical dilemmas faced in a rather by a wish to re-establish what had trial and the feeling counsel often gets that been taken away by the United States - a justice is not always achieved in the adver- united Korea. sarial system. He then balances this out by It was the North that moved first (with considering the alternative: reposing all of Korea; Where the Chinese and Russian acquiescence), driv- the adjudication functions in the State in ing down over the 38th parallel in June the manner of the inquisitorial system, and American Century Began 1950 and deep into the South. The Ameri- concludes that a system of independent fact By Michael Pembroke cans responded and pushed the North back finding with a non-State contradictor, with to the 38th parallel in September 1950 and all of its flaws and difficulties, is fundamen- that is where matters should have rested, tally the one that he would prefer. Success is achieved by a combination of three months after they began. Instead, The Secret Barrister is a little like a horror talent and luck. There is no doubt that Mi- and in spite of warnings from China, the blockbuster in nerdy book form: a Jurassic chael Pembroke is a talented author and, Americans continued over the 38th par- Park, if you will. Both depict bunch of with the timing of his latest book Korea well-meaning, educated, reluctant heroes – Where the American Century Began, he shepherding vulnerable people through a has been lucky. landscape of ancient monsters let loose by He began writing this book in 2015, the greedy cynical rich, and if negotiated inspired by a longstanding desire to under- correctly, the T-Rex might just save you stand the battle of Maryang San in which But American indignation from the Velociraptor. The Secret Barrister his father had fought in the Korean war and embarrassment led their might not be quite as entertaining as a in 1951, but, as he states in the Preface: Spielberg thriller but it’s close, and the dan- ‘It is a wider account, a cautionary tale, forces to destroy everything as gers it depicts are much more frightening. an explanation of the modern era. It is a story of politics and militarism, hubris and they retreated: rations, crops, Reviewed by Catherine Gleeson overreach’. By the time Pembroke finished the book towns and villages; and then END NOTES in November 2017, Donald Trump had become President of the United States, had a bombing campaign of total 1 We don’t know the gender of the SB but as the barrister on the book ridiculed Kim Jong-un as ‘Little Rocket cover appears to be male, I’ll go with that pronoun. destruction was unleashed. 2 A good example is a recent article in the Sydney Morning Herald Man’ and had threatened to ‘totally de- about solicitors being forced to turn down legal aid work because stroy’ North Korea. These developments the rates don’t meet their practice overheads, entitled ‘the $150 an are incorporated as part of a consistent hour lawyers threatening to quit.’ and worrying narrative: whilst the United 3 The NSW Attorney-General announced on 19 June 2018 that $10 States has purported to act as the world’s allel, up through North Korea and with million has been added to a $29 million dedication in the budget to policeman since 1945, it has made mis- the intention of crossing over the Chinese facilitate the early guilty pleas reforms. takes and has not learnt from them. With border and into Manchuria. 4 The impact of this state of affairs on criminal and family barristers a modicum of humility and compromise, Having lured the American forces deep was measured in a recent report by the UK Bar Council, with the world could have been a much safer aattacked and, as Pembroke puts it, ‘the stark results: more than half of these practitioners reported being place. nightmare unfolded’ with nightly attacks under too much pressure from their work, when compared with civil practitioners, while barristers across the board reported that As Pembroke notes, Korea’s abiding prob- and each worse than the night before as they found their work intellectually satisfying. A number of the lem is its geography. It is squeezed between the Americans retreated or, perhaps more responses from the Criminal Bar communicated the stress of not China and Russia to the north and Japan accurately, scattered and ran away. The being paid properly, or at all, for the work that they do. The Bar to the south. A unified Korean kingdom annihilation of the American forces only Council Barristers’ Working Lives 2017 https://www.barcouncil.org. existed from at least the seventh century; ceased when the Chinese could not keep uk/media/661503/working_lives_-_final.pdf at [2.5]. and, after the expulsion of Kublai Khan, up with the American retreat, which left 5 A murder charge was set down for trial at the Old Bailey in the Chosun dynasty ruled from 1392 up the forces in March 1951 (nine months September without counsel: Pennick, E ‘Murder case first to be hit to a Japanese invasion at the turn of the after they had begun) divided at the 38th by barrister action’ Law Gazette https://www.lawgazette.co.uk/law/ twentieth century. Britain, Russia, China parallel, which was of course where they murder-case-first-to-be-hit-by-barrister-action/5065517.article 4 and the United States were all involved in had started. And for the second time, that April 2018. the events that led to the establishment should have been that. of a Japanese protectorate in Korea, with But American indignation and em-

124 [2018] (Spring) Bar News The Journal of the NSW Bar Association BOOK REVIEWS barrassment led their forces to destroy cricket (Alan Davidson, Richie Benaud everything as they retreated: rations, crops, and Ian Meckiff), Robertson describes his towns and villages; and then a bombing family as ‘a middle-class family in a mid- campaign of total destruction was un- dle-class house in a middle-class suburb, leashed. It continued for over another with a Hills hoist in the backyard and a two years (including for over a year when small car in the carport’. They took the the only outstanding issue at the ongoing Fairfax Sydney Morning Herald rather than peace talks was in relation to prisoner repa- Packer’s Telegraph, which was taken by the triation), ‘systematically bomb[ing] town ‘working-class neighbours’ or Murdoch’s by town’ and killing about three million Daily Mirror, which was taken by ‘those mostly non-combatants. It seems likely with no class at all’, including ‘the men in that biological weapons were deployed; our street…who beat their wives’. and atomic strikes were only very narrowly Good Leaving Certificate results, in- avoided. The expressed purpose was to cluding coming second in the state in his- induce ‘a more cooperative attitude at the tory, led to Sydney University, university truce talks’, but a more accurate description quoted by Pembroke was a ‘war by tantrum’. And so American defeat in the Korean conflict led to its mistakes being repeated in Vietnam and, later, Iraq. The war crime These are the rollicking of the American bombing went unpun- ished and America has continued to refuse Rather His Own Man adventures of an exceptional to sign various international treaties. Pres- ident Trump’s suggestion that America no - Reliable Memoirs talent with an unwavering longer wishes to be the world’s policeman By Geoffrey Robertson is hardly consistent with its maintenance commitment to human rights of military bases around the world and allied with, one suspects, a its insistence that peace in Korea can Each year, I make a point of warning the only be achieved by a conflict (military new readers on the Bar Course that what- large dollop of good fortune. or diplomatic) between the United States ever intellectual stimulation they may pro- and North Korea. It is clear that peace in vide, their own cases are not interesting. Korea requires, rather than an increasing Anyone who has ever attempted to enter- involvement of the United States, the en- tain a dinner party with tales of equitable couragement of increasing rapprochement estoppel or the second limb in Barnes v between the North and the South (build- Addy should, by now, have realised that to politics (including as SRC president) and ing on measures such as the unified ice be the case, or else lack self-awareness and, friendship with people such as Michael hockey team at the 2018 Winter Olympics most likely, invitations to dinner. Crimi- Kirby, Richard Walsh (the editor of Oz and the leaders’ recent handshake) and a nal barristers often make better dinner magazine), Gareth Evans, John Bannon withdrawal of American forces. companions since their cases are generally (former premier of South Australia), David A treaty between the United States and more factually interesting, but the content Marr and Jim Spigelman. His position as North Korea of whatever type will never is not always well-received or appropriate; editor of the Law School magazine Black- be sufficient to ensure peace in the Korean and the caricature of the ageing silk with acre included a successful campaign for the peninsula: Korea should never have been his war stories has always been one of the setting up of a new Law and Social Justice divided and it needs to be reunified. worst offenders. course. This is a book that is extremely and con- Geoffrey Robertson is a wonderful His law career began at Allen Allen & sistently easy to read, but with sufficient exception. He has had an extraordinary Hemsley in 1966 and included a telephone well-sourced detail to leave the reader and successful career. Although born in call from John Kerr (then a judge of the better informed on what has become one of Sydney, he made his name in London, Commonwealth Industrial Court) seeking the essential topics of the day. I was at var- arriving only a few years after Germaine his assistance in the defence of his son, ious times astonished, angry, worried and Greer, Clive James, Robert Hughes and who had been arrested at an anti-Vietnam in despair at what Pembroke describes as Barry Humphreys. As such, it would be rally. Kerr then introduced him, at ‘a small ‘the ignorance and intransigence of some easy to dismiss Rather His Own Man – Re- dinner party’, to the then chief justice of men and women’. It was never anything liable Memoirs as the pompous (a word he Australia, Garfield Barwick. Talent and other than enjoyable and thought provok- uses to describe himself) war stories of a the contacts he had made at university ing; and its scope, content and timing is tall poppy ex-pat. propelled Robertson on. such that it should be read by anyone with That, however, would be completely inac- After a bizarre CIA-funded Far-East an interest in the current situation in Korea curate and unfair. These are the rollicking Student Leader Scholarship in California or indeed in America’s ongoing efforts to adventures of an exceptional talent with an (including catching up ‘with an old friend, shape and dictate events across the globe. unwavering commitment to human rights Nick Greiner’), a Rhodes scholarship allied with, one suspects, a large dollop of led him to Oxford and then the Bar. He Reviewed by Anthony Cheshire SC good fortune. Add in a bucket of popcorn became involved in the successful defence and it might even make a good film – I in the Oz obscenity trial and by 1974 suspect Robertson would choose George he was fulfilling his ‘boyhood dream to Clooney, a personal friend, to play him. appear, wigged and gowned, addressing Brought up in Eastwood with a love of a jury beneath the Old Bailey dome on tennis (Lew Hoad and Ken Rosewall) and which stands the iconic golden statue of

The Journal of the NSW Bar Association [2018] (Spring) Bar News 125 BOOK REVIEWS

Lady Justice’. An encounter with a judge Court. There are limits to his membership gella Lawson, were followed by marriage in in court convinced him to abandon his of the establishment: the title to these his 40s to Kathy Lette and an introduction Australian ‘nasal vowel sounds’ in order to memoirs derives from the comment of to many famous names from the London be able to say ‘Fuck Art, Let’s Darnce’ (as a permanent secretary that torpedoed a arts scene. In the final paragraph of the printed on an allegedly indecent T-shirt) proposal to appoint him to an important book, he records that in 2017 he and Lette and thus be understood. European judicial position: ‘But…he is… ‘decided to uncouple’ and how he ‘had al- The war stories follow thick and fast: rather his own man, isn’t he?’ ready taken a skinny dip in the fountain of defending Gay’s the Word bookshop on So what has driven Robertson this far youth, falling in love with (and, amazingly, charges of importing indecent literature; and apparently continues to drive him on? being fallen in love by) a much (but not defending the managing director of It is clear that there is a passionate sense of too much) younger professor of law from Matrix Churchill, which had been accused human rights and justice, but where does Eastern Europe’. of smuggling arms to Saddam Hussein, that come from? Although able to trace his That sudden revelation led me back to his which it had in fact done, but at the in- ancestry back to a possible link with Kaiser self-description as pompous and not suffer- stigation of MI6; defending journalists Wilhelm, there does not appear to be any ing fools, traits of which I realised there accused of revealing the government eaves- had been no hint in the book. Although dropping powers of GCHQ; defending titled Reliable Memoirs and no doubt re- Gay News on a charge of blasphemy for liable, they are perhaps missing some of its poem ‘The Love That Dares to Speak the depth of emotional intimate reflection Its Name’; defending Peter Wright in the He is a founder and head of (which generally differentiates a memoir Spycatcher trial; defending the broth- from an autobiography) that might enable el-keeper Cynthia Payne; defending IRA Doughty Street Chambers, the reader fully to understand the man. suspects; defending a drug dealer who had That is not to detract from what is a been entrapped by the police; defending which has a philosophy of fabulous and enjoyable read that I would the Guardian from a libel action brought commitment to the legal aid recommend to lawyer and non-lawyer by Mohamed Al-Fayed in the Cash-for- alike, but I hope someone out there is plan- Questions scandal; defending the Sunday system and a model of half their ning a full and in-depth biography. In the Mirror from a privacy action brought by meantime, this book could perhaps have Princess Diana; defending Mike Tyson cases being on full commercial been titled more accurately (albeit perhaps from his exclusion from the United King- less catchily): Professional Reflections and dom; advising the Greek government in rates in order to support the War Stories with Hints of What Makes Me relation to seeking the return of the Elgin Tick. Marbles from London; representing former other half being pro bono. Labour party leader Michael Foot in a libel Reviewed by Anthony Cheshire SC action against Rupert Murdoch personally for a headline that claimed that Foot had been a KGB agent; and acting for Human Rights Watch in upholding the validity of clue there. There is a hint in the structure General Pinochet’s arrest in London. of this book, which begins with the story Robertson’s practice in human rights of his father crash landing his Wirraway took him to courts all round the world and aircraft on the roof of a home in the small included many death row cases, includ- bush town of Chiltern and ends with the ing establishing the important principle death and funeral of each of his parents. that keeping a prisoner on death row for Robertson paints an affectionate portrait a prolonged period was torture, which of his parents, marked and largely defined meant that the death penalty had to be by the war and the depression. His father’s commuted. career in the bank eventually left them There are various pleas for reform, in- well off, but his father would still walk cluding a plea for refugees to be welcomed; miles rather than pay for a taxi for himself a proposal to introduce a Magnitsky law and his mother is described by Robertson so that the overseas assets of tyrants and as being self-effacing and teaching by corrupt officials could be frozen; and a quiet example and giving to others. He suggestion that Barack Obama should be sums up his philosophy as ‘I could never the next head of the Commonwealth, for do anything of which my mother would which he is eligible by virtue of his father disapprove’. having been born in Kenya. We are probably all shaped by our par- Robertson’s career and his proposals for ents, but the mechanism by which we adopt reform might suggest a rebel, but he is also certain characteristics from them and a part of the establishment. He is a founder reject others is seldom clear and is certainly and head of Doughty Street Chambers, not in the case of Robertson. Thus, while which has a philosophy of commitment to his mother had no time for ‘the limelight’, the legal aid system and a model of half Robertson is clearly very comfortable there their cases being on full commercial rates and it would probably be fair to say that he in order to support the other half being craves it and delights in it. pro bono. He was appointed as a Recorder A dazzling array of girlfriends, including (a part-time Judge), a bencher at the Inns Bel Mooney (a journalist then married to of Court and a five year term as an appeal Jonathan Dimbleby), Jeananne Crowley judge at the United Nations War Crimes (an Irish actress), Jennifer Byrne and Ni-

126 [2018] (Spring) Bar News The Journal of the NSW Bar Association BAR SPORTS

NSW v QLD Bar Cricket Match

Now in its 45th year, the annual interstate Bar cricket match between New South Wales and Queensland was played this year in Sydney on 17 March. Inaugurated by the Hon I D F Callinan AC QC and the Hon R V Gyles AO QC in 1973, the fixture has been a harmonious blend of competitiveness and camaraderie for several decades and this year’s contest was no exception. Played under a hot sun on the Main Oval at The Scots College on Bellevue Hill against the glorious backdrop of Sydney Harbour, the day was a memorable one for the hosts as NSW secured bragging rights (and the retention of Tub’s Club) for another year. Led by their new skipper, Charles Mat- thews, Queensland won the toss and elected to bat first. Matthews (32) and Templeton (41) made a very strong start for the visitors, compiling a 50 run opening stand against curate leg-breaks had the effect of pegging Martin for 2, who was bowled through the some testing bowling from Eastman and back the visitors’ run-rate appreciably. When gate by Matthews. Docker. The elegant stroke play and general Williams (17), caught by Bilinsky off the Fortunately for the hosts, however, Bilin- shot selection of the openers was of the high- bowling of Allan, and Katter (12), caught sky (58 n/o) and Docker (71 n/o) combined est order and things were looking decidedly by Carroll off Khan, were denied significant thereafter in a satisfying century partnership ominous until Eastman (1-36) sent down a scores, it fell to the redoubtable McLeod (28) to take the game away from Queensland. fast off-cutter that jagged back off the deck to force the pace. He was eventually bowled With the end in sight, both batters were to hit the top of Matthews’ middle stump. by Docker but not before some very impres- retired and Messrs Stowe (8), Gyles (13 n/o) There was a palpable sense of elation and relief sive clean hitting to take the visitors’ total to and Chin (5 n/o) saw NSW home with ap- at the fall of the first wicket as Matthews was 6 -157. proximately 5 overs to spare. looking extremely dangerous and set for a There was some doubt about whether this In the traditional post-match dinner there very big score. was a ‘par’ score (given the slow speed of the were some very humorous reminiscences Templeton then combined nicely with the outfield) but ultimately Queensland had the from Neil SC, King SC and Gyles SC, rookie, McCarthy (10), but an unexpected advantage of runs on the board and NSW among others, all of which demonstrated the run-out by Khan, followed by a miscued had to chase them down. pleasant conviviality and solid friendship that pull-shot from Templeton, saw the visitors Following the tea break NSW got off to a this fixture continues to promote. contained to 3-85 at drinks. shaky start with the perennially destructive Khan (2-15) then combined beautifully Carroll caught off the bowling of Templeton Nicholas Bilinsky with Gyles SC (0-18 off 7 overs), whose ac- for 0 in the first over. This was by followed by

The Journal of the NSW Bar Association [2018] (Spring) Bar News 127 BULLFRY

Bullfry and the ‘tennis circuit’

ing for the work to come in. These were the gentlemen of the Bar, making their fortunes It is reported that to appear at the or with their fortunes to make. Commission, Blenkinsop QC (one `D’yee see all those rooms?’ said Carson. Ìn of Australia’s leading barristers) every one of those rooms there’s a light, isn’t is charging $25,000 per day from there?’ The solicitor nodded. Ìn all of them’, 8 am to 5 pm, and $3,000 for Carson went on, `you may assume there’s one man, probably two or three, who’ll do the case every hour thereafter in what as well as I’ll do it myself, and most of them is a ‘bet-the-company case.’ will charge a far more reasonable fee’. Òh, no’, answered the solicitor, `that’s not The Daily Beast10 May 2018. my point. I wouldn’t dream of letting anyone but you do it, with Mr Isaacs on the other side’. But nothing in this chatter `Well, if you’re such a fool as that, after all I’ve shown you’, rejoined Carson, `you’ll just about the Bar is more erroneous have to pay what my clerk asks you to pay’.’ than the talk of the tremendous Thus, while the ‘average’ income of the incomes of counsel. Bar is immense to a lay reader, it is greatly Bullfry put down the paper of record, and inflated by a few outriders – the median leant back ruminatively in his chair. It was Baron Brampton, Reminiscences. income of counsel as a class (once the cost of quite clear – the economic demand for the chambers and a secretary had been deducted) ‘top’ counsel was a classic example of a ‘Thor- is far more modest. This median income was stein Veblen good’ – the more expensive it or no forensic difference at all who was briefed considerably lower than the average because was (like a fine wine, or a branded watch), to appear! How could that be the case? On of a few superstars whose fees were the sub- the more an eager clientele was prepared to the Veblen principle. An anecdote concerning ject of daily envious and fawning comment pay for it! Sir Edward Carson KC explains the matter in the press. What was the relevant standard No wonder that they so grossly misappre- completely. A solicitor who is stunned by deviation? hended the earnings of the Bar generally! the amount demanded by Carson’s clerk in a Still, it was all a matter of comparison There were, or so it seemed in the warped – when the fees charged by the large firm view of the press and its reading public, only instructing him, and the salary and shares two types of barrister: one who flew all over vouchsafed to the directors in the firing line, the country, charging, and receiving, a king’s The economic demand for the ‘top’ were compared with the modest daily de- ransom for appearing in court; the other, mands of even the most expensive of counsel, persistently down on his uppers, who fought counsel was a classic example of those fees seemed very reasonable indeed. creditors and ex-wives while featuring in the Bullfry thought back to his solicitorial gossip sections of the tabloid. The egregious a ‘Thorstein Veblen good’ – the youth. Then, fees had seemed lower – indeed, reporting of the ‘earnings’ of the first type the then pre-eminent counsel ‘rationed’ their meant an outpouring of public Schadenfreude more expensive it was (like a availability – the fee in those far gone days, to at the financial, and marital, misfortunes of use an unpleasant economic concept, was not the second. fine wine, or a branded watch), ‘price-elastic’ – offering to pay more would The Bar is very much like the professional not have increased availability. tennis circuit. At the top, the best players the more an eager clientele Thus, it was hard to be overly censorious compete for public esteem and high daily fees; was prepared to pay for it! about the success of the most sought-after but below, say, the top 200 advocates across counsel when those performing secretarial, the nation, was a vast legion of more modestly solicitorial, and other company functions remunerated journeymen and women, going for the largest corporations were on north of about their business before the lower judicial $2.5 million per year – and for doing what? officers, and administrative tribunals, of matter in which he was opposed to Sir Rufus Massaging the corporate message – outsourc- the Commonwealth, and states. They never Isaacs KC, asks to see him to discuss the fee. ing serious legal matters back to the largest played at Wimbledon – it was all they could ‘For a moment or two Carson said nothing. law firms where they had been previously do to get a modest outing, if they were lucky, Then got up from his chair, and taking the so- deployed – editing and advising on various ‘unseeded’, in the Gundagai Open! A survey licitor by the arm led him to the window. He internal documents. It is unpleasant to have conducted in Victoria some years ago had pulled up the blind to reveal a sight familiar spent one’s life working for personally mind- revealed that a very large percentage of the to every inhabitant of the Temple. There were ed-men (and women) for reasons you know newest entrants to the profession were earning scores of other barristers’ chambers, each one to be base – but in the modern world to do so less than $50,000 per annum. with its lighted window, through which could is very handsomely remunerated. These lesser ‘players’ trudge from tribunal to be seen men poring over their books and Also, and often overlooked, the emolu- tribunal, hoping eventually to be paid.1 And papers, holding conferences or consultations ment of the corporate functionary came in yet, in 95 per cent of cases it would make little with their clients, or just idly talking and wait- to the relevant bank account each fortnight,

128 [2018] (Spring) Bar News The Journal of the NSW Bar Association BULLFRY

on time, with all necessary and appropriate the company and its solicitors gained the submissions) she will need to make the fiscal deductions made! (Nor were the share protection of an independent ‘expert’ view unpleasant economic choice of appearing in options, certain to vest in due course, to be about a matter; and, if questions were raised a wide range of unimportant and trivial mat- overlooked in the equation.) Contrast that about the credibility of the adviser, recourse ters, before tribunals and courts she cannot with even the most sought-after counsel. could be had to one of the ‘specialist’ works find (to paraphrase Sir Patrick Hastings) – all Bullfry had once had a conversation with an which now purported to evaluate the skills the time slowly acquiring the forensic skills old companion, a leading banking junior. of the ‘bet-the-company’ men (there was no to be able, twenty years on, to run the largest Bullfry had rung to congratulate him on his extant category of ‘bet-the-company’ women and most complex litigation. (It is an open further appearance in a controversial matter. because as soon as a woman attained that question whether this sort of ‘training’ work eminence the Executive would insist on her is still available to the junior Bar, on whether ‘I’m only doing the further hearing to taking a senior judicial post). it has not already been seized by the cadet get paid’ said his companion. branch of the legal profession). It is vulgar to point it out, but it will likely ‘What do you mean?’ take her five years (at the least) to reach the income level she enjoyed at the law firm ‘Well, I did the first hearing sixteen It is vulgar to point it out, where her success was guaranteed, and the months ago and the fee note was still but it will likely take her five workplace far more congenial to satisfying outstanding so I said I would appear both demanding professional and domestic again only upon condition of payment!’ years (at the least) to reach the obligations. Now let us suppose she takes a more cal- ‘But you were being briefed by Megafirm income level she enjoyed at the culating approach, and decides to stay with on behalf of Megalopitan Bank – what’s the firm and forego the eclat of waiting to be going on?’ law firm where her success was reached before a District Court arbitrator on a cold Wednesday afternoon. Chances are, ‘Megafirm said it sent me a lot of work guaranteed, and the workplace she can then leap seamlessly across from the which I should be grateful to get, and firm to join the Megalopitan Bank in some there was a large internal fight in the far more congenial to satisfying important role – her future is then even more Bank about which division was to bear both demanding professional assured, and she has a far greater chance of the cost of the matter – so I had to wait!’ earning more than all those at the Bar except and domestic obligations. a very small number at the top of the tennis Henry Hawkins had a conversation about circuit. the lack of timeliness of payment at the Bar This simple cynical economic reality is the once with a famous money-lender. central threat to the continuing independent ‘Why, Mr Hawkins,’ said he, ‘you seem to What did that foretell for the future of existence of the Bar as its ageing captains and be in almost everything. What a fortune you the profession? Consider a young woman kings depart. must be piling up!’ commencing practice nowadays at the Bar. In the past, the lure of a potential judicial ‘Not so big as you might think,’ I replied. She has previously worked for some years as a post (‘the glittering prizes’ of FE Smith) ‘Why, how many,’ he rejoined, ‘are making senior associate in a large law firm, acquiring might have provided some vocational attrac- as much as you? A good many are doing a wide experience in matters commercial. tion. But, once again, the Bar has done itself twenty thousand a year, I dare say, but – ‘. She might, within a couple of years, aspire in its institutional eye. Once the judicial Here I checked his curiosity by asking if he to a partnership if the risks inherent in that ‘gene pool’ had perforce expanded to take in had ever considered what twenty thousand a shared liability did not dissuade her. She senior solicitors (all of whom quickly demon- year meant. He never had. starts again at the Bar, at the very bottom, as strated immense expertise in specialised legal ‘Then I will tell you, Lewis. You may make a reader on a good floor – and the Bar is very areas) the game was up – the notion that to it in a day, but to us it means five hundred lucky to get her. adjudicate you needed to have been constant- golden sovereigns every week in the working No detailed study has yet been published ly in court for twenty years was exposed for year’. of her likely cursus honorum (and it remains the mirage it always had been. As a result, a Given that there are less than 200 hearing perplexing why there is no detailed infor- horde now clamber for some minor judicial days in the legal year, it is hard for any except mation obtained or published on the raw or tribunal approach as senility approaches. tax counsel to earn as much as a successful amount of barristers’ fees – probably because At some stage, it may be safely predicted, company secretary. the truth would be too unpleasant for most even payment of the ‘top counsel’ on the In the longer run, the skyrocketing earn- who read it. The new Strategic Plan makes ‘tennis circuit’ basis will come under down- ings inside the largest companies (and delay no mention of the need to obtain and publish ward economic pressure – and where will the in payment inherent in the economic realities detailed, current, information from barristers Bar be then? Ou sont les neiges d’antan? of the Bar) was likely to reduce it to a ‘com- on basic matters. Without such information, mercial rump’ which was very highly paid, how can an intending Reader begin to make END NOTES while the remainder subsisted on the ‘crumbs’ an informed decision?) 1 See, Jason Donnelly, ‘Five Lessons of a Reader at the NSW Bar’ Bar from other forms of practice. Only the largest But for our neophyte to succeed ultimately News Winter 2012 page 59. businesses could afford to pay very high fees as an advocate (as opposed to a mere pro- (which were, in any event, tax deductible); ducer of detailed memoranda and copious

The Journal of the NSW Bar Association [2018] (Spring) Bar News 129 ADVOCATUS - An anonymous Barrister’s perspective

Advocatus - On Manners

My weekends have recently been spent learning drily noted, then that is how you know that it court I attended dished up on the morning in first-hand about what Australia calls the ‘great was a female. question still left me feeling about as well as if I outdoors.’ It’s a brilliant phrase that – an ob- A lesson on snake behaviour was next. Ap- had just kissed a brown snake. vious pun on the word ‘great’ which suggests parently most snakes will run away from you if In short, I witnessed a quasi-judicial officer that there’s something very good about ven- you approach. The exception is brown snakes. variously shout at, belittle, snap at, verbal and turing outside, but falls back on the alternative Brown snakes will chase you. Brown snakes threaten to make an example of what were gen- meaning that there’s simply a lot of outside into should therefore be avoided. erally inexperienced advocates who were trying which to venture. One complication is that not all snakes that to do their jobs. The registrar was rude. The reg- I have never been good with puns. And that are brown are brown snakes. A second is that istrar was bad tempered. The registrar caused is why I found myself in the great outdoors not all brown snakes are brown. Accordingly, unnecessary stress to people who work in an taking a crash course in something called the only way to tell if a snake is a brown snake is already stressful situation. And what shocked bush survival with the (misconceived) expec- if it is chasing you. me the most was that I thought that registrars Further helpful information was subsequent- like this had been stomped on and kicked out ly provided as follows: of the system like the unwanted redback spiders that they are. … if you’re a registrar and you’re • At this time of year the snakes are mostly In advertising these positions, the court looks hibernating, probably. Although it has been for employees who ‘act with integrity’ and ‘rep- wondering who I’m talking about, unusually hot this winter; resent the organisation in an honest, ethical and professional way.’ The court had clearly not got then that registrar may well be you. • There are three different ways that an emu what it was seeking. can attack you: pecking with its beak, The simple fact is that practitioners are head-butting or kicking. These are not mu- generally trying to do their best. They may be tually exclusive, and they can head-butt and doing so with limited instructions. They may kick at the same time; and not all speak with the clarity of a wizened silk. tation that everything beyond the telly, the They may be nervous and they may be inex- nail salon and the air conditioning was going • Big Red Kangaroos will usually run away perienced. They may say silly things. They will to be excellent. from you, unless they are very hungry and make mistakes. We all do. Peak misery took place somewhere called you are carrying food. Your emergency None of that excuses registrars from acting Katoomba. For those unfamiliar, this is in a ration pack sounds like it will be more than with courtesy and civility, and none of it pro- place called the ‘Blue Mountains’. In hindsight, sufficient to attract a hungry kangaroo. As vides an excuse for rude or belittling behaviour. this was another pun that I failed to recognise this is in your backpack, they will approach It is to be hoped that those with authority weed at the time. from the rear. Keep an ear out for bouncing out the poisonous spiders and snakes as soon as (In the great outdoors, they otherwise usu- noises. possible. Of course, they are not all like that – ally call a spade a spade. I knew this from my and it is to be hoped that the great majority are days living in Edgecliff. This was imaginatively In the end, the worst bit was the train trip not. But if you’re a registrar and you’re wonder- named because it is on the edge of a cliff. From home. I survived and returned triumphantly ing who I’m talking about, then that registrar there was just a short walk to Five Ways, so to Sydney. I would have said ‘returned trium- may well be you. named for the number of directions in which phantly to civilisation’ but my first stop was the local real estate agents would bend you. I an appearance before a registrar early on the digress.) Tuesday morning. Practising barristers at the NSW Bar I was far from the outer inner east now. Which brings me to the point of this column. are invited to send an opinion column Lesson one concerned things that might kill I am not entirely new to this profession. I have to the editor, with your name, providing you out here, and they weren’t talking about felt the wrath of the old judges whose behav- a perspective of practice at the bar. drowning in the spa at Lilianfels. iour was charitably blamed on the War and Entries that seek to critique existing We started with redback spiders. These are unconvincingly blamed on them being stupid practice or mores by reference to personal easily recognisable as they are spiders with red males and not knowing any better. I have seen experience will be preferred. In each on their backs. bad behaviour at the quasi-judicial level – most edition one selected piece will be published With the redbacks, it is only the females that spectacularly down at the District Court a anonymously under the title Advocatus. bite. If you are bitten by a redback, our guide decade or so ago – but what the particular

130 [2018] (Spring) Bar News The Journal of the NSW Bar Association ARCHON’S VIEW

Archon’s view - An anonymous view from the Bench

List day in the Local Court is the best show his children, his job, his career, his life. My in town. The bar table is full, the dock is full, client’s life will be irrevocably changed if this standing room only. The magistrate enters. parking ticket stands.’ Lights. AVL. Action! A few minutes before interval (known to With 100 matters in the court list, the of- some as lunch, or as magistrates call it ‘read- ficers are scurrying, the hubbub is increasing, ing time’) John Wayne saunters up to the and the lawyers are circling. bar table. The court staff are drooping. The The magistrate peers around the tower of magistrate’s blood sugar level is dangerously papers. low and yet there is no urgency felt by Mr Who has been cast in the role of Advocate Wayne as he speaks sssllloowwly. A pause for today? Counsel rises confidently with a wide dramatic effect. A tumbleweed rolls through smile and jazz hands. Instantly the magis- the court. One wonders whether film budg- trate recognises the lawyer from Chicago the ets all blew out when John Wayne was cast. Musical. Billy Flynn argues ‘Margery Jane They certainly do at court. Osborne is at the crossroads of her life. She As the sun sets but before the final credits is a mother, a daughter, a sister, swept up in a ment. With a lack of black barristers’ robes roll, Atticus Finch rises. He does not give his mad, mad world. She didn’t choose to punch worn in the Local Court, the costumiers can the victim. The victim fell onto her fist.’ be creative. In this case the word resplendent Three lifetimes later it is the turn of Junior comes to mind. There are not many opportu- Barrister, who was lucky enough, or unlucky nities in life where resplendent is the word of enough, to be flicked a brief five minutes choice. The court freezes as if in The Matrix. before court. After frantically reading the They listen. Then unfreeze. Counsel sweeps papers, and unable to find their client from from the court. the cast of thousands in court, Junior Bar- The court papers are reducing. Then, rem- rister starts strongly and with great courage, iniscent of Gone With The Wind, the epic and ends by relying on one of the most submission begins. ‘My client was born in a famous submissions of all ‘In summing up, small country town …At age five she… By it’s the constitution, it’s Mabo, it’s justice, it’s the time she was… May I take you to page 54 of the second folder of material which I handed up...’ If only there was an Oscar Night button for the magistrate to press, which causes an orchestra to start playing and then the sher- iffs to gently remove the speaker to stage left. ‘all men are created equal speech’, this is after Next. all the Local Court and there is no jury. He Matter number 68 has the advocate speaks so that ‘With his infinite capacity for trained in the ‘I trust I make myself obscure’ calming turbulent seas, he could make a rape acting school where the magistrate hears case as dry as a sermon.’ words, knows what the words mean individ- There is no Hamlet bloodbath. No Blues ually, but once said has no idea what the sub- Brothers car chase. No denouement. Coun- mission actually is. There is a long, dramatic sel’s submission is almost anticlimactic after pause followed by counsel saying rhetorically a day of high drama and big production ‘If I can be of any further assistance’ before numbers. sitting down. The magistrate flicks the court And yet the submission is succinct, helpful papers, nods at the Statement of Facts, out- and calm. It is a perfect Oscar moment for law, it’s the vibe and aah no that’s it, it’s the wardly serene, internally wondering if some- this court where the hoi polloi and the flot- vibe. I rest my case.’ one rewrote the script and decided it would sam and jetsam of life, face their own tragedy At least it was short. be a foreign language film. and comedy, and their relief or despair. Later, Marlon Brando shuffles to his feet. Counsel from the Ralph Waldo Emerson It seems fitting that at the end of this last Or is it Sylvester Stallone? The lips are barely casting agency is next. Guided by the maxim matter for the day, the prosecutor, the lawyer moving and every now and then counsel and the magistrate bow. Exeunt. actually faces the front. ‘Defendant .... with The good lawyer is not the man who friends ... police..’ Was that word ‘Monocle’ has an eye to every side and angle or ‘Maniacal’ or ‘Module’. The magistrate of contingency, and qualifies all his has used up the allowable number of ‘Beg qualifications, but who throws himself your pardons’ and ‘Can you please speak ups’. on your part so heartily, that he can get Archon’s View is a new column. It provides Counsel sits down, still in character. you out of a scrape. an opportunity for a current judicial officer And then drum roll...... the next counsel is to provide an anonymous view of the Bar. clearly a favourite with the wardrobe depart- Counsel submits ‘Your Honour, think of

The Journal of the NSW Bar Association [2018] (Spring) Bar News 131 THE FURIES

I have heard of an old ‘custom’ (mentioned in a Bench I have read a number of transcripts where counsel is and Bar speech a number of years ago) of practitioners making an application for a judge/ magistrate to recuse challenging each other to incorporate the name of a piece themselves on the ground of apprehended bias. In almost of fruit or some other suitably silly word into oral submis- every matter, the judicial officer took the application as a sions, legitimately so as to go un-commented upon. Is this personal affront. Is there a form of words that a counsel to be encouraged? can use to reduce the chance that a judicial officer will view the application in this way?

Could it be true that practitioners of old were so unchallenged by the usual rigours of court advocacy that they had to intro- The well-known test for recusal for apprehended bias is duce new ones? Surely you are mistaken! Is it not enough that ‘whether a fair-minded lay observer might reasonably appre- one must carefully craft and calibrate one’s oral submissions hend that the judge might not bring an impartial and un- to match law, facts and judicial temperament so as to convey prejudiced mind to the resolution of the question the judge is a sound and cohesive argument that meets both the needs required to decide’. Who exactly constitutes the ‘fair-minded of justice and that of one’s client in a succinct and effective lay observer’ is not exactly clear, although one suspects that manner? Or if that is not truly the aim of the advocate, why during the time of Sir Owen Dixon, such an observer would stop at just one word? Surely the wordsmiths of yore could have looked just like Sir Owen. But still, as imperfect as it is, have risen to the challenge of not one, but perhaps three dispensing justice has, at its core, the fundamental premise incongruent fruit related or other words to weave into oral that the person doing the dispensing is impartial. This fun- submissions? damental premise is, perhaps, best expressed by the well-worn No! I think it far more likely that the reason that there aphorism that justice must not only be blind, but must be appears to be a proliferation of oranges, apples, pomegranates seen to be blind. This of course presents the ocularly chal- and mangosteens in some counsels’ oral submissions is a covert lenged dispenser of justice with an impossible conundrum challenge, albeit one that is belated and possibly too subtle, akin to that of asking Schrodinger also to place himself in the co-ordinated by the Illuminati in vengeful remembrance of box with his infamous cat. It is no wonder then, that judges the day Sir Owen Dixon and his colleagues held1 that it was perceive such applications as needlessly annoying disruptions a relevant consideration of the commission controlling water to their otherwise faultless dispensation of justice. With this irrigation licences to deny transfers of water rights to Italian in mind, the correct answer to your question is ‘no’. Nev- fruit growers on the basis that all Italians were ‘bad farmers of ertheless, I suggest that the application be made sensitively, irrigation methods’2 and that it was ‘undesirable’ to promote dispassionately, promptly (so as not to constitute waiver) and a considerable aggregation of Italians in the area. be based on objectively determinable factors or behaviours There! ‘Mangosteen’, ‘Sir Owen Dixon’ and ‘Illuminati’ all supported by authority as grounds for disqualification. And in the one sentence and not at all ridiculous, contrived, con- if you can also successfully work the word ‘Illuminati’ into torted or off-point. If that is your aim, consider the challenge your oral submissions, do let us know. Recusal applications now set. get bonus points.

END NOTES

1 Water Conservation and Irrigation Commission (New South Wales) v Browning (1947) 74 CLR 492 2 We assume the Commission had only a passing familiarity with Roman aqueducts and other Roman inspired methods for controlling water flows since antiquity.

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132 [2018] (Spring) Bar News The Journal of the NSW Bar Association