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Alexander Shand QC Contents 2 Editor’s note 4 President’s column 6 Bar Practice Course 02/2011 7 Letter to the editor 8 Opinion The failed art of sentencing offenders Reflections on concurrent expert evidence From hack to senior junior A blot on Bolt 22 Recent developments 53 Feature Bullfry at the end of the dinner. Duty of care on the battlefield 59 Practice 77 St Vincent de Paul Fundraiser 96 Obituaries 62 Address 78 Legal history Alec Shand QC Simon Kerr SC The life and career of Sir Garfield Barristers in Second World War Barwick (Part I) 103 Bullfry 70 Bar art 92 Appointments 105 Rapunzel Portrait of Sir Kenneth Jacobs The Hon Justice Meagher 106 Book reviews 74 Tutors and Readers Dinner The Hon Justice Adamson 114 Bar sports 75 Clerks Conference Dinner 120 The Bar Book Club 76 Bar History Project launch barTHE JOURNAL OF THE NSWnews BAR ASSOCIATION | SUMMER 2011–12 Bar News Editorial Committee ISSN 0817-0002 This work is copyright. Apart from any use as permitted under the Copyright Act 1968, and subsequent amendments, Andrew Bell SC (editor) Views expressed by contributors to Bar no part may be reproduced, stored in a retrieval system Keith Chapple SC News are not necessarily those of the New or transmitted by any means or process without specific Arthur Moses SC South Wales Bar Association. Contributions written permission from the copyright owner. Requests are welcome and should be addressed to and inquiries concerning reproduction and rights should be Jeremy Stoljar SC addressed to the editor, Bar News, c/- The New South Wales the editor, Andrew Bell SC. Richard Beasley SC Bar Association, Basement, Selborne Chambers, 174 Phillip Street Sydney, NSW 2000. Chris O’Donnell Eleven Wentworth David Alexander 11/180 Phillip Street Carol Webster Sydney 2000 Ingmar Taylor DX 377 Sydney David Ash Kylie Day Cover: By Simon Fieldhouse Jenny Chambers © 2011 New South Wales Bar Association Catherine Gleeson Victoria Brigden Therese Catanzariti Bar News | Summer 2011–2012 | 1 Chris Winslow (Bar Association) Editor’S note Bolt’ is also not to be missed. Simon captures the movements of barristers to and from, and around There are an unusually large number the precincts of, the Supreme Court of notes on recent developments as well as the workings of the court but all are noteworthy. Two, in itself. particular, focus on recent decisions of the Victorian Court of Appeal A series of his paintings and the High Court in relation commemorating the swearing out to arbitration. On one view at of Spigelman CJ and the swearing least, the decisions are a long way in of Bathurst CJ now proudly hang removed from the enthusiastic on the walls of the Sixth Floor embrace of arbitration disclosed Wentworth/Selborne. A whimsical by the New South Wales Court picture of the late Roddy Meagher, of Appeal, and in the judicial admiring Victoria in her Square, and extra-judicial writings of its is, I understand, to be donated to This issue President, Justice Allsop, and former St John’s College. And a multi- The third and final issue of Bar Chief Justice Spigelman. It will be panel study of a judge bearing a News for 2011 contains the usual interesting to see what legislative remarkable resemblance to Whealy Christmas smorgasbord of offerings response these decisions receive, if JA in various stages of judicial suitable for reading on a plane, at any, given that there may now be disrobing was quickly and astutely the beach or between overs at the seen to be a real tension between, purchased by the subject himself! on the one hand, recent concerted cricket. On the subject of art, Ralph political efforts to promote Australia Bob Ellicott QC gives a unique Heimans’ elegant and engaging and Sydney, in particular, as a centre insight into the life and career, portrait of Sir Kenneth Jacobs is also for regional alternative dispute brilliance and energy of his cousin, featured in this issue, complemented resolution (in competition with Sir Garfield Barwick. Richard by Sir Anthony Mason’s own portrait centres such as that flourishing Beasley’s ‘Duty of care on the of, and tribute to, Sir Kenneth, now in Singapore), and the degree of battlefield’ tells the story or, perhaps in his 94th year, which was delivered willingness of Australian courts to more accurately, captures the ordeal on the occasion of the portrait’s review and interfere with arbitral of two brave soldiers subjected to, unveiling. Sir Kenneth, is to hang, decisions, on the other hand. The on the face of things, surprising as it were, in the newly refurbished latter phenomenon is unlikely criminal charges. As he wryly President’s Court. to be welcomed by commercial observes ‘Being shot at in armed parties seeking speedy and certain combat, by someone you have Simon Kerr SC commercial dispute resolution. been told is a Taliban insurgent, The death of a close colleague who you have been ordered to Simon Fieldhouse and friend from the bar is always ‘target’, and who is firing an AK47 distressing. When that colleague is The cover of this issue of Bar News at you from close range, at least as young as Simon Kerr SC was (39 features a recent painting by Simon arguably seems an odd place, time years), the sadness is overwhelming. Fieldhouse whose work is well- and circumstance for a duty of As Justin Gleeson SC noted in his known to members of the legal care to arise.’ The military theme eulogy, reproduced in this issue profession. This picture is from a is continued in Part 1 of Tony of Bar News, Simon was the sixth recent exhibition of his paintings Cuneen’s historically significant youngest person ever to come to entitled ‘Phillip Street Impressions’ account of the contribution of over the New South Wales Bar and there and a number of other pictures 300 members of the New South can have been few barristers as from the exhibition are contained Wales Bar who saw active service passionate and committed to the in this issue. Exploring a new in the Second World War. David bar, its traditions and institutions as style and working in oil rather his Knoll’s short opinion piece ‘A blot on was Simon. I sat in the same pew at customary pen, ink and watercolour, 2 | Bar News | Summer 2011–2012 | his memorial service as I had shared historical interest and significance (but never to edit - well ‘hardly with him at this year’s Opening of have been given such prominence. ever’) Aitken and Poulos QC in Term Church Service at St James. their brilliant collaboration that To have served for a considerable With enormous strength and is ‘Bullfry’. ‘Bullfry at the end of time as editor of Bar News has courage, and within a few weeks Dinner’ which appears in this issue been a great honour and privilege of his death he attended Bathurst is up there with the best, and any and a role that I have at all times CJ’s 15 bobber in the Bar Common resemblance of any of Bullfry’s greatly enjoyed. I am proud of the Room. It is impossible to believe ‘boon companions’ to senior very high quality the publication that he has left us, and his presence members of the inner bar is, I am has attained. This has only been and contribution to the bar’s almost certain, entirely coincidental. possible with the substantial input institutional and social life will be of all of those who have served For almost the entire duration of my greatly and sorely missed. My own on the Bar News committee over involvement with Bar News, Chris and the bar’s sincere condolences the years as well as those who Winslow of the Bar Association has are extended to young James (son have contributed articles, notes, been responsible for the production and grandson of barristers) and opinion pieces, reviews, cartoons of the publication. My debt to, and Simon’s family. and drawings over the years. Serial respect for, him is immense. The contributors such as Ash, Beasley, Bar Association and its members Signing off Webster, Gleeson, Moses, Stoljar, should be very grateful to have as I have decided that this will be my Chapple, Graham, O’Donnell and one of the senior staff a person of final issue as editor of Bar News. I Tony Cuneen, as well as Sir Anthony such intelligence, civility and skill. have held this position for seven Mason and Justices Heydon, Kirby, It remains to wish all members years and have served on the Bar Spigelman, Allsop and Rares on ‘Happy reading and happy holidays’ News committee for more than the judicial side have ensured that and to wish my successor as editor fifteen years. I have always held the the quality of the contributions the best of luck in the role. view that Bar News can and does has always been first rate. Perhaps play a significant role in the life of the greatest source of personal Andrew Bell SC the bar, as well as serving as an pleasure, however, has come from Editor important journal of record. That the opportunity to encourage is one of the reasons why pieces of Bar News | Summer 2011–2012 | 3 president’S column State government must reform personal injury laws By Bernie Coles QC association has been active on the relatively new state government a number of important issues to take heed. of public policy. Following the The New South Wales Law Reform conviction of Mark Standen on drug Commission has been given conspiracy charges by a Supreme two important references by the Court jury in August, the association attorney general, references in made a public call for an inquiry which the association is taking a into the New South Wales Crime keen interest.
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