158

VICTORIAN BAR NEWS ISSUE 158 SUMMER 2015/16 VICTORIAN New Kidd on the block Meet the new Chief of the County Court BAR Reporting the law NEWS A history of the CLRs

President Maxwell 10 years on

Bar Legends 2015

158 New Silks: Read all about them on page 104 Hi-Res PDF - GOOD For Print SIGN OFF BOX GrD PrM AcD

ACCESS YOUR VIC BAR MEMBER BENEFITS NOW

Access to commercial Access to exclusive Special offer for Exclusive deals for Receive Corporate Offer pricing across a wide family and friends Vic Bar Members with you and your family or 10% car rental discount range of goods discounts Momentum Energy off the best rate of the day

Corporate Program, Corporate Program, Preferential Pricing and Corporate Program, Discounted Membership Access to amazing travel including including 5 Years Free Service including to airport club lounges benefits including your 3 Years Free Service 3 Years Free Service 3 Years Free Service own leisure travel expert to customise your dream holiday.

VIC BAR MEMBERS CAN SAVE TIME AND MONEY on any new car by following these 6 simple steps RESEARCH ORDER Decide on a vehicle to purchase by using the internet, reading Takes around 10 minutes by phone. MBA Car Assist will order 1 motoring magazines, talking to people and, most of all, feel free to 4 the vehicle on your behalf from the winning dealer on the tender. give us a call for some independent advice. (We don’t sell cars - we buy thousands of cars each year at prices individual buyers can’t access). TEST-DRIVE DELIVERY Pop down to your local dealer and take your chosen car for a test- You will be kept up to date as to estimated delivery times and at 2 drive or contact us to find out how we can arrange a test-drive for 5 your convenience, your new vehicle will be delivered to your home you at your home or office. or work with a full tank of fuel. MBA CAR ASSIST NATIONAL TENDER AND CORPORATE BENEFITS PROGRAM* VEHICLE FINANCE OPTIONS Many of our car suppliers offer special Corporate Benefits which 3 Relax and let us take care of the rest. Using our unique national 6 can include FREE SERVICING for up to 5 years, courtesy cars tendering process, we will invite multiple dealers to compete for and much more. your business. Our buying power and trade contacts will ensure that the new car price and trade-in value will save you precious time and *Corporate Program applies to Mercedes-Benz, Audi, BMW & Lexus vehicles only. money. Tailored finance options available.

1. MBA Car Assist is a subsidiary of MBA Pty Ltd. 2. MBA Car Assist tenders out certain brands of vehicles. 3. Other brands of vehicles are setup through a preferred dealership network. 4. This can change at any stage.

TO ACCESS THESE GREAT SAVINGS: www www.vicbar.com.au 1300 119 493 [email protected] ISSUE 158 SUMMER 2015/16 VICTORIAN

News and Views Editorial BAR 40 Evidence in international commercial Lost and found 3 arbitration: THE EDITORS 46 An interview with President Letters to the editors 4 NEWS Chris Maxwell AC GEORGINA COSTELLO Caption competition 6 AND NATALIE HICKEY President’s report 7 PAUL ANASTASSIOU 50 A reflection on the Hon Michael Rozenes AO QC From the outgoing President 8 GEORGE HAMPEL JAMES WS PETERS 54 Marriage equality MATT COLLINS Around town 61  Book launch: Insolvent Investments 10 legends JULIE DODDS-STREETON 12 Launch of the National Courts 64 Interview with Peter Kidd - Chief and Tribunals Academy Judge of the County Court VBN FIONA MCLEOD 18 69 In conversation with Cristof Heyns 14 Farewell to a Governor EUGENIA LEVINE DAVID J O’CALLAGHAN  70 The Intellectual Property Enterprise 18 The Emerson collection: Court of England and Wales a passion for books PETER VICKERY WILL HOUGHTON The Bar library 22 Bar Lore NATALIE HICKEY  74 The killing at Devils River The Heerey Collection – 23 KEN OLDIS donation to the Bar library 80 50 years of the CLRs Q & A with ’s 24 J D MERRALLS new Governor VBN 24 86 A case in history CLIFF PANNAM A trip to Uganda 26 ASHLEY HALPHEN Back of the Lift Launch of the latest 27 95 Adjourned Sine Die Annotated VCAT Act 54 96 Silence all stand BEN JELLIS CommBar Cocktail Party 28 99 Vale CommBar & Combar 30 101 Gonged London 2016 conference 102 Quarterly Counsel PAUL HAYES 103 Victorian Bar Readers A charter for change 31 103 Victorian Bar council KATHLEEN FOLEY 104 New Silks Q&A The silver cigarette case 32 LUKE HOWSON Boilerplate A dinner to mark the 34 108 A bit about words JULIAN BURNSIDE retirement of the Honourable AC QC 64 110 Music Column ED HEEREY JEFF GLEESON 115 Book Reviews The Bar/LIV conference 38 116 Off the Wall SIOBHÁN RYAN JUSTIN HOOPER AND MIN GUO 119 Food and Drink SCHWEINHAXE Bar v LIV hockey match report 39 120 Red Bag Blue Bag MORGAN BROWN

1 VBN VBN 3 ISSUE 158 SUMMER 2015/16 VICTORIAN BAR Editorial NEWS

Editors: Georgina Schoff QC and Georgina Costello. Victorian Bar News Editorial Committee: Georgina Schoff QC, Georgina Costello (Editors), Anthony Strahan, Maree Norton, Annette Charak, (Deputy Editors), Justin Wheelahan, Catherine Pierce, Brad Barr, Jesse Rudd, Natalie Hickey, Denise Bennett and Sally Bodman. Editorial Advisor: Peter Barrett. Contributors: (In alphabetical order) Paul Anastassiou QC, Jonathan Brett SC, Michelle Britbart SC, Morgan Brown, Jim Buchecker, His Honour Judge Philip Burchardt, Julian Burnside AO QC, Michael Clarke, Matthew Collins QC, Michael Corrigan, Georgina Costello, the Hon Susan Crennan AC QC, Dermot Dann SC, Jonathan Davis SC, the Hon Julie Dodds-Streeton QC, Michael Flynn SC, Kathleen Foley, Murray Gleeson AC, Jeff Gleeson QC, Min Guo, Daniel Gurvich SC, Ashley Halphen, the Hon George Hampel AM QC, Paul Hayes, Mark Hebblewhite, the Hon Peter Heerey AM QC, Ed Heerey SC, Natalie Hickey, Justin Hooper, Christopher Horan SC, Sam Horgan QC, Lost and found Will Houghton QC, Luke Howson, Ben Jellis, Tom Keely SC, Eugenia Levine, Áine Magee SC, Andrew McClelland SC, Timothy McEvoy, Fiona McLeod GEORGINA SCHOFF & GEORGINA COSTELLO, EDITORS SC, Jim Merralls AM QC, David O’Callaghan QC, Christopher O’Grady SC, Paul O’Grady SC, Ken Oldis, Clifford Pannam QC, Malcolm Park, Max he late and much loved Dr John Emmerson QC Perry, James WS Peters, Trevor Rosen, Jesse Rudd, Siobhan Ryan, Georgina Schoff QC, Jeff Sher QC, bequeathed his valuable collection of rare books Joel Silver, Anthony Strahan, Andrew Strum SC, and manuscripts to the State Library. Quite apart Megan Tittensor, Wayne Toohey, the Hon Justice from the texts themselves, what is intriguing about Peter Vickery, Simon Whelan, Michael Whitten SC, Peter Willis SC, Christopher Winneke SC, Anthony Dr Emmerson’s collection is how he went about Young SC. amassing it. On page 18 of this issue Will Houghton Photo contributors: Peter Bongiorno, Richard reveals how Dr Emmerson brought his methodical scientific mind to the Crawley, Mark Duffus, Justin Hill, Neil Prieto, Simon task of hunting down magnificent 15th to 18th Century books. Tisher, Matthew Townsend. Cover Illustration: Guy Shield Few people are as studied in the art of arranging collected pieces of Publisher: The Victorian Bar Inc., Level 5, Owen writing as James Merralls QC. As editor of the Commonwealth Law Dixon Chambers, 205 William Street, TReports for 45 years, Merralls knows how to compile. On page 80 VIC 3000. Registration No. A 0034304 S. Merralls gives us a human face to the otherwise austere 254 volumes The publication of Victorian Bar News may be cited as (2015) 158 Vic B.N. Opinions expressed are not which comprise the CLRs. necessarily those of the Bar Council or the Bar or of In each Victorian Bar News, Siobhan Ryan writes a column about any person other than the author. one work in the Bar’s portrait collection. In the last issue of VBN, she Advertising: wrote about a portrait of Sir by Percy White. The way the All enquiries including request for advertising rates to be sent to: Bar acquired the painting, the way the High Court acquired a long lost Sally Bodman version of the same painting and the role of the artist’s grandson in both The Victorian Bar Inc. acquisitions is a remarkable story. In this issue, a letter to the editors Level 5, Chambers 205 William Street, Melbourne VIC 3000 from Jeff Sher QC gives us a glimpse at the luck sometimes required to Tel: (03) 9225 7909 add a lost treasure to a collection. Email: [email protected] Emmerson went about collecting items in a planned way. The CLRs is Design and production: The Slattery Media Group; a collection predictable in its form of compilation (if not in its content). www.slatterymedia.com While the Bar’s acquisition of portraits is somewhat based on planned Contributions: Victorian Bar News welcomes contributions to [email protected] commissions, other pieces are generously and unpredictably donated. And so it is with Victorian Bar News. There are pieces we commissioned for this issue, such as: an interview with newly appointed County Court BACK ROW: Anthony Strahan (Deputy Editor); Chief Judge Peter Kidd; a reflection about former Chief Judge of the Georgina Costello (Editor); Georgina Schoff QC (Editor); County Court, Michael Rozenes; and Dr Matt Collins QC’s powerful Brad Barr; Denise Bennett FRONT ROW: Jesse Rudd; Annette Charak (Deputy Editor); Natalie Hickey; essay on marriage equality. Justin Wheelehan ABSENT: Maree Norton (Deputy Editor); Catherine Pierce and Sally Bodman. VBN 3 The theme that emerged is “books and collections”. members of Commbar; and the new silks questionnaire, in which But other pieces in this issue Emmerson Collection, this issue we couldn’t resist asking them editorial editorial came along in a more serendipitous covers: developments in the Bar what book they will be reading manner. In her diary in 1925, Library, including the donation this summer. Virginia Wolf said, “Arrange whatever of the Heerey Collection; the We hope you enjoy this collection pieces come your way.” It has been a launch of the 5th edition of Pizer’s of writing. Don’t worry, we’ve delight for us to arrange the writing Annotated VCAT Act; a review by peppered the issue with photos of and photos that came our way for the Hon Julie Dodds-Streeton QC to keep you turning the this issue. of a new book concerning Insolvent pages. We hope you find yourself - or The theme that emerged is “books Investments that is the product a dear friend or likeable colleague - and collections”. In addition to the of a collaboration between many somewhere in here.

TO Letters THE Editors

A story of coincidences Dear Georgina and Georgina that it had been used by , (as he then was), as To my surprise this morning I found in my mail the latest the frontispiece of his biography of Sir Isaac. edition of the Bar News. It was a surprise for two reasons. However, I had never seen the original. I asked my Firstly, despite a number of attempts to get on the mailing grandfather to paint a copy of the original for me to hang in my list, I rarely receive a copy. new chambers in Owen Dixon. (Neither East or West as ODC Secondly, because it contained a photo of a small portrait of was more than adequate to house the Bar). He did so. I recall I Sir Isaac Isaacs which I had donated to the Bar not long after paid either 12 or 15 guineas for it. I signed the Roll. It hung in my chambers for some years and was seen by many The article failed to mention my gift and speculated, including Frank Costigan QC who became the Chairman of the Bar incorrectly, about its provenance. It also got the artist’s Council. name wrong. He had a Chairman’s room which was short on decoration. When my maternal grandfather fled Eastern Europe, like Frank threw out some broad hints as to how well the painting many Jews, on arrival in England he anglicised his name to would look in the Chairman’s room whilst lamenting that the “Percy” White. Bar did not have a painting of one of its most famous sons. He never called himself “Percival”; nor did anyone else. I took the hint and donated my painting of Sir Isaac to the He met and married my grandmother in Manchester where Bar. I thought the painting had a plaque attached to it which my mother was born. acknowledged my sacrifice. The Bar’s copy was not painted at After the First World War, he immigrated to with the same time as the original; nor was it a study. his family and settled in Melbourne where he lived the rest of The original had disappeared. Its whereabouts were unknown his life. and my copy was either painted from memory, or, more likely, a I went to the Bar in 1961. I knew of the portrait of Sir Isaac and photo of the frontispiece to Cowen’s book.

4 VBN VBN 5 editorial It was, indeed, the original Percy White Winner takes all portrait of Sir Isaac Isaacs. I congratulate our new Bar Council on their election. It has never been an easy feat, and that remains so under our new electronic system. Yet, while multiple roles are available in three However, this is not the end of the story about the original categories, this does not lead to, as might be expected painting which hangs in one of the courtrooms at the High at first glance, a diverse representation. That is because Court in Canberra. a peculiar aspect of the old “strike-out” system remains: That it is there is a story of coincidences. members have multiple votes. If, for example, we have One day, not long after the new High Court building was three vacancies in Category D, and 151 of 300 members opened, I received a telephone call from Frank Jones, the High vote the same way, then the preferences of the remainder Court Registrar. lead to nothing. Sir , the Chief Justice, knew of the While it might be said this system is essential to the portrait of Sir Isaac from the book and wanted to locate it with characteristic stability of our Bar, of which our interstate a view to acquiring it for the Court. Somehow, Frank knew I colleagues are so envious, it defeats the purpose of was related to the artist. (He never disclosed how he knew). having multiple positions. I cannot imagine that members Frank asked me if I could locate the original. I said I would consider a “winner takes all” outcome to be fair, or try and try I did. I asked everyone I could think of if they knew satisfactory, particularly when our numbers are so great. where it was. Despite considerable effort over many weeks I The Bar Council should be elected on the simple was unsuccessful. principle of “one vote, one value,” and I call on our I reported my failure to Frank whereupon Sir Garfield new representatives to make this change a hallmark commissioned an artist to paint a copy. of their term. Some considerable time later I was briefed by Trevor Cohen Joel A Silver to act for a young Jewish boy in a claim for damages arising from a motor car accident. He had effectively lost the use of all his limbs. Honouring our own The case was settled and the parents of the boy were very Dear Schoff and Costello, GG, pleased with the result and invited Trevor and me to their May I, as a one-time member of the Victorian Bar and home for dinner. I did not usually accept such invitations and, past contributor to Victorian Bar News, express my dismay so far as I knew, neither did Trevor. at the omission by the Editorial Committee to note the We discussed what to do and, because this was such a rare appointment of a member of the Victorian Bar to one and sad case, and because we did not want to disappoint the of the highest judicial positions in the world: Sir John boy, we accepted. Walsh of Brannagh, Duke de Ronceray, has this year been During the meal the boy told us of how he was painting by appointed as Chief Justice of the International Tribunal holding the brush in his mouth. I said that my grandfather had for Natural Justice and nary a word of recognition from been an artist and mentioned his name. the official journal of the Victorian Bar. The silence is Whereupon, Trevor said that he knew of a Jewish sporting deafening! club (Maccabi or Judean), which had a painting by Percy Sir John’s appointment is of further noteworthiness White hanging in their clubrooms. He thought it was of Sir in that he has accepted the office at an age when other Isaac Isaacs. holders of high judicial office are compulsorily and The next day, with Trevor, I went to the clubrooms. It was, prematurely “pensioned off” after attaining that age indeed, the original Percy White portrait of Sir Isaac Isaacs. specified as statutory senility. In this, the sprightly soon- I rang Frank Jones and told him that the painting had been to-be 76 year young Sir John sets an example for those located. Shortly thereafter Sir Garfield came to Melbourne, who, like him, are selflessly determined to continue to went to the clubrooms and confirmed that he wanted the serve mankind despite their age and his appointment painting for the Court. shows a possible avenue for others to accomplish this. The club donated the painting to the Court where it now When I was a contributor to VBN it was then hangs. A plaque acknowledging the donation is affixed to it. recognized and highly regarded as a journal of record. I The Court in return gave the club the copy which had been am confident that the editors and the Editorial Committee commissioned. will redress this unfortunate and regrettable lapse and I Sorry for the length of this missive. Could you ensure that I look forward to reading in your pages a description of the continue to receive copies of the Bar News. high honour paid to Sir John as the Victorian Bar’s most I’m still alive, and reasonably well. honoured guest at the next Bar Dinner. Regards Yours respectfully, Jeff Sher Malcolm Park

4 VBN VBN 5 University of Tasmania and among his students was one who Back in the day went on to become an acknowledged master of that field of the Dear Gina and Georgie, law. Modesty forbids me from providing further detail. editorial Congrats on a superb issue. There is an article on Bands (p136) which unaccountably A minor point. While my friend Angela Nordlinger deserves omits any mention of Louis Armstrong, Benny Goodman, the Pommery for the best letter (under former editors it might Graeme Bell etc etc. have been a discounted Jacob’s Creek) I would mention that the Kind regards full time academic career of Gerard Nash QC commenced well Peter Heerey (father of the more famous Ed) before 1962. Indeed in 1958 he was lecturing in at the

Have your Say Write to the Editors at Victorian Bar News, Owen Dixon Chambers, 222 William Street, Melbourne, VIC 3000 or email [email protected]

Caption “Buddy’s left “What? ... you don’t Competition Hawthorn. have to print emails Nonsense!” to read them?” Anthony Kelly, QC Robert Igram “The blind leading “Ruskin, are you the blind” telling me you’ll give David Curtain QC me this mobile, if I became your friend “LOL LMAO NSFW on facebook?” QC” Tiphanie Acreman Nick Green QC Stephen to Jeremy: “How do I phone you?” Richard Brear ”Please all with landlines and pens, Admit that the I-phone is better than them, And the “I don t know who’s Apple watch is better Daniel Robinson appearing in your again.” Natalie Vogel “Beware of the Court today, but knives in the napkin” Kaye to Ruskin: #WhatWouldRuskinDo Kate Beattie has been trending since “And can you wear it 10.35 am.” as a shoe?” Georgie Coleman Michael Pearce SC

he Victorian Bar News Committee invited readers took up the challenge with such obvious delight and to submit captions for this curious photograph enthusiasm that we have decided instead to judge the of Justice Kaye and Jeremy Ruskin QC, who entries on their merits. The decision as to which of appear to be studying, with great concentration, an your ridiculous entries merits a bottle of Pommery Tiphone. The competition was originally conceived as has been a difficult one, but there can only be one a vehicle to enable David Curtain QC (who took the winner. AND THE WINNER IS: Georgie Coleman photo) an opportunity to publish it to the world at large, — and not just because her name is Georgie. PS. We together with his caption “the Blind Leading the Blind”. are giving Curtain a bottle of Pommery too, because The editors had somewhat rashly promised him that we love his photo and his caption. he would win the competition. However, our readers Georgina Schoff and Georgina Costello

6 VBN VBN 7 President’s Report editorial

PAUL ANASTASSIOU

am delighted to be the with solicitors by bringing them of her role with skill, energy and President of the new Bar together with our members at dedication. Council. I pay tribute various events and dinners. The Jim Peters QC wrote in this to Jim Peters QC for his new Bar Council will continue this column last year, referring to Will leadership and for his program and build upon it in order Alstergren QC: “The Bar as a whole focus on initiatives that to strengthen and broaden the has benefited from his efforts. He increase work for our members. I relationship between the Bar and leaves it in great shape.” I echo those also pay tribute to the members of solicitors. remarks in relation to Jim Peters’ the Bar Council who either retired The strength of our Bar lies contribution as President and I shall or were not elected. The 2015 Bar also in its contribution to the strive to attain the high standard of CouncilI was cohesive, dedicated and wider community. The Bar has an leadership set by him. effective. I look forward to working extremely proud history of pro bono with the new Bar Council and have assistance and the Bar Council will no doubt that it will exhibit the same continue to encourage and support qualities as last year’s Bar Council. the excellent work of our members in I am delighted that women are undertaking pro bono work. represented on the new Bar Council There will be a renewed focus this in numbers that exceed, in each year upon access to justice as the category, the ratio of women to men Victorian Government has recently in the corresponding cohort at the announced a wide-ranging review Victorian Bar. This is a step on the in relation to this important issue. way to eliminating the anachronistic The Bar Council will contribute

The strength of our Bar lies also in its contribution to the wider community.

perception of the Bar as a male club. constructively to this review. The The perception will not however launch of the direct access portal in be fully erased until the Bar, and November in relation to summary importantly the opportunities for criminal matters is a significant all members to succeed, is truly step in providing more affordable gender blind. The recent initiative by access to expert representation Commbar for the equitable briefing and contributes to improving of women in commercial cases is a access to justice. The significant step forward. new Bar Council The new Bar Council will will support this continue to focus on increasing important initiative work for our members. The direct and examine ways briefing pilot with IAG will be in which the portal used as the model to reach out to may be expanded other major corporations. The Bar to other practice Council is also considering new areas. ways to market the Bar to solicitors I look forward and directly to corporations and to working with to provide new opportunities for our new CEO, members of the Bar to reach a Sarah Fregon, wider audience. who has Over the last two years the Bar embraced the Council has engaged more directly challenges

6 VBN VBN 7 editorial From the outgoing President

JAMES WS PETERS

n 2015, the Bar Council engaged the It is a great initiative in the digital age to facilitate the profession, government and the wider public briefing of junior counsel. to promote the importance of the Bar to Internally, this year’s Bar Dinner was again a the administration of justice. As Justice Pat magnificent occasion. The strength of our Bar was on Keane said recently at the ABA Conference show with both the Federal and State Attorneys-General in Boston, “it is essential to our democracy and Shadow Attorneys-General attending. Also attending that the Bar survives: it is a pillar of the third branch of were Chief Justices Warren, Allsop and Bathurst with Government”.1 other heads of jurisdiction. Wonderful speeches were The commercialisation of some solicitors firms has delivered by Justice Gordon of the High Court and led to a business model whereby the importance of Stephen O’Meara QC. That almost a quarter of our Bar maximisingI funds under supervision to ensure personal were able to gather to celebrate on one occasion speaks reward overrides the imperative of briefing counsel early volumes about the Victorian Bar as a collective group. and the interests of the client. The Courts have spoken Similarly the CPD Conference was a standout affair on many occasions, extrajudicially, of the difficulties that where the Bar, the Judiciary and Government were have arisen with this approach. Cases are not prepared represented at the highest level. as efficiently or economically. Adjournments are needed. The Commbar’s Equitable Briefing Policy was recently Costs are wasted. These practices also undermine the launched by Chief Justice Allsop of the Federal Court strength and vibrancy of the Bar. and Chief Justice Warren and President Maxwell of The focus over the past year was to explain to clients, our Supreme Court. We take great pride in leading including government, that it was in their interest to the independent bars in this country in driving gender ensure quick, economic and fair trials by engaging diversity in a practical way, focusing on outcomes. counsel early. Those steps bore significant fruit this year. It has been a good year for BCL. Some of the In October we announced a pilot with Insurance experiments with private floors outside of BCL have Australia Group to brief counsel directly through ended. Significant numbers of barristers have returned corporate counsel. This public recognition of the value in to the BCL fold. There is enormous value to our members utilising the Bar’s services is part of wider moves afoot. in being able to lease premises on 30 day terms without Direct briefing by in-house counsel is now becoming key money. It reduces barriers to entry and promotes more widespread and popular amongst in-house teams a meritocracy where the able can come regardless of who are subject to budgetary constraints. 2 Clients now lack of resources. This is not the case in other states. I understand that the Bar is cost effective and provides congratulate BCL. practical solutions if engaged at an early time. It is only Our Bar is very fortunate that it is collegiate. This year with pressure from clients that the practice of some firms we have spoken with one voice. It has led to significant in failing to brief counsel until the last minute will alter. achievements in terms of dealing with the government, The importance of a thriving criminal bar cannot be the public and others. It also led to the TPD Life underestimated. Until recently, the criminal bar has Insurance Scheme ensuring a minimal level of Life and suffered reduction in fees and work from Legal Aid TPD cover protection for members and their families. and loss of work due to the increasing number of firms The growth of Bar Associations: Commbar; the Tax Bar; doing in-house advocacy. I have spoken on a number of Criminal Bar; Compensation Bar; Common law; Children’s occasions this year about the Bar’s economic value and Court; and Family Law, provide a focus for their members quality standards being unmatchable in criminal law. and serve their interests well. Nevertheless, we must We engaged in a constructive fashion with Legal Aid. also be alert to the risk of fragmentation. If our efforts The recent PWC Report3 emphasised the value of the to build work for the entire Bar are to yield fruit, they independent bar as opposed to an in-house model of must be collective and channelled through Bar Council. employee solicitors. Our advocates practise in a number of different areas, Also, BarristerCONNECT, the first online direct access not limited to one association. Due to the excellent portal for Barristers in Australia was launched. It leadership of the Bar Associations and their collegiate provides rapid access to barristers in criminal matters and cooperative approach with Bar Council, our efforts before the city, suburban and regional Magistrates Courts. and goals remain common. However, we risk the dilution

8 VBN VBN 9 editorial of effort and lack of a common approach in promoting the interests of all of our members if the current high level of cooperation does not continue. Significant inroads were made into the difficult task of streamlining the Bar office’s operations and curtailing unnecessary expenditure. The Bar office continues to refocus its efforts toward business development initiatives maximising the benefit to the entire Bar. One of the most important initiatives this year was the appointment of Sarah Fregon as our new CEO. Sarah brings a high level of discipline and transparency to the operations of the Bar office. Her experience in corporate law has enabled the Bar to undertake several initiatives, including a much closer connection with corporate clients. Sarah’s appointment has been a great success. The Executive of the Bar Council this year was harmonious and functioned extremely well. I thank Paul Anastassiou QC, David O’Callaghan, Jennifer Batrouney QC and Samantha Marks QC. Their support and hard work in effecting further change was invaluable. The Bar Council has enjoyed an excellent year of constructive discussion and focus on key objectives for the benefit of its members. All members of the Bar Council have contributed. I also thank them for their support I have enjoyed every minute of the privilege of being as I thank Honorary Secretary Paul President this year. My thanks to all. Panayi and Assistant Honorary Secretary Barbara Myers. Bar President and wish him and the Massachussets, USA, 7 July 2015. Justice of the . A number of members left the new Bar Council well. Bar Council this year. Michael It has been no surprise to me 2 Felicity Nelson; “In-house teams bypass “noise in the middle” with direct briefing” Wheelahan QC provided enormous that all members of the Bar are on Lawyers Weekly (18 November 2015); leadership and direction on the willing to assist in any initiatives http://www.lawyersweekly.com.au/ Bar Council and I congratulate him for the collective benefit. Ours is an news/17528-in-house-teams-bypass- noise-in-the-middle-with-direct-brief- for his service of four years. I also extraordinary institution, the strength ing. thank Michelle Sharpe, Elizabeth of which is that our members, who 3 Victorian Bar Media Release; “The McKinnon, Stewart Maiden, Matthew are in day to day competition, take so Victorian Bar calls for further action Hooper and Emma Peppler for their much care to assist each other. I have following the release of PWC’s Report contribution. enjoyed every minute of the privilege into the delivery of legal services”; (13 October 2015); https://www.vicbar.com. I congratulate Will Alstergren QC of being President this year. My au/GetFile.ashx?file=GeneralFiles%2f20 who commenced many of the projects thanks to all. 151013+PwC+Report+on+VLA+funding +and+service+delivery.pdf of this year. I also congratulate Paul 1 Welcome Address to the 2015 Austral- Anastassiou QC on his election as ian Bar Association Conference, Boston,

8 VBN VBN 9 1 around town around

4

3

5

7

8 1. Michael Cahill, Sandip Mukerjea, Brind Zichy-Woinarski QC, Campbell Thompson, Daniel Gurvich, Dion Fahey, Tom Warner, Andrew Denton and Tim Grace 2. John Valiotis, Brian Collis QC, Katharine Gladman, and Daniel Nguyen 3. The 2015 Legends: Dyson Hore-Lacy SC, Richard Boaden, Brind Zichy-Woinarski QC, Ian Hardingham QC, Noel Ackman QC, Stanley Spittle, Peter Rattray QC, Robin Gorton QC, Brian Collis QC, Arthur Adams QC and Remy van de Wiel QC (absent: Clive Rosen) 4. Anastasia Smietanka, Josephine Croci and the Hon Justice Kirsty MacMillan 5. Ian Hardingham QC, Julie Davis 6. Rosemary and Stanley Spittle 7. Dan Crennan 8. The Hon. Justice Terry Forest 9.Tim North QC; Jim Peters QC, Fleur Shand and Mary Anne Hartley QC 10. Julia Frederico and Peter Rattray QC 11. Josephine Croci, Anastasia Smietanka and John Richards QC. 11 12. the Hon Justice Kate MacMillan

9

10 VBN 10 VBN 11 2 TowAROUND n Victorian Bar legends

A dinner to celebrate the 2015 Victorian Bar Legends

he Victorian Bar Legends Award was Ross H. Gillies QC Philip J. Kennon QC inaugurated in 1998 by a former Chairman Allan J. Myers AO QC Philip A. Dunn QC Tof the Bar, Hartog Berkeley QC and Christopher J. Canavan QC Beverley Hooper Peter Jopling AM QC in recognition of the Colin L. Lovitt QC John A. Gibson fact that there was an ever-increasing number Henry Jolson OAM QC Margaret L. Mandelert of barristers who either elected not to or were not asked to cross the drawbridge to a judicial n 13 August 2015, the Bar celebrated or equivalent office and who had made a the induction of the fourth intake of Bar significant contribution to the welfare of the OLegends. Bar and the integrity of our profession. A dinner was held in the Essoign Club, which These criteria continue to be applied by the was attended by the cream of the Victorian Bar Awards Committee. and Judiciary. The current Awards Committee comprises Our President, Jim Peters QC, was the MC, 6 Peter Jopling AM QC, Paul Anastassiou QC, reflecting the great support for the Legends James Mighell QC, Wendy Harris QC and event from the Bar Council. Rowena Orr QC. It is the Committee’s practice In a very amusing speech, which at times to invite a member of the judiciary to induct took on the appearance of a roast, Justice Terry the Legends into the Legends’ Hall of Fame at Forrest introduced the Legends. His Honour was the dinner that is held to celebrate the able to not only highlight their individual career appointments of the living Legends. achievements, which are substantial, but also It is also the Committee’s practice to inform identify a number of lesser known matters that the Bar Council of the nominees for election to the contribute to them each being true characters of status of Legend prior to the publication of the list. the Bar. In 2014 the Committee secured funds from Dyson Hore-Lacy SC responded on behalf the Bar Council to erect a Legends Honour Board of the Legends, suggesting recognition of that is located on the ground floor of Owen Dixon barristers should be expanded to acknowledge Chambers East in the vicinity of Dever’s office. achievements in different categories, something To date the following barristers have been like the Logies, but to be called “The Terry’s”. inducted as Victorian Bar Legends: Dyson noted that if they introduced Legends of the 12 Supreme Court, then Justice Terry Forrest would 1998 Victorian Bar Legends: surely be the first one chosen; and ahead of his SEK Hulme QC Jack Keenan QC brother, Jack! Neil McPhee QC Brendan Murphy QC The induction of Bar Legends has become Paul Guest QC Brian Bourke one of the hallmark events of the Victorian Bar, Michael Dowling QC Mary Baczynski which reflects the wonderful camaraderie and 2003 Victorian Bar Legends: solidarity that we enjoy and provides a platform Jeffrey Sher QC Hartog Berkeley QC to acknowledge the achievements of a number Douglas Meagher QC George Beaumont QC of more senior members of our Bar. Jack Fajgenbaum QC Gerry Nash QC Congratulations to the 2015 Bar Legends – Susan Crennan AC QC Max Perry Brind Zichy-Woinarski QC Dyson Hore-Lacy SC 2012 Victorian Bar Legends: Robin Gorton QC Ian Hardingham QC Peter J O’Callaghan QC Andrew J Kirkham AM RFD QC Peter Rattray QC Remy van de Wiel QC A. Graeme Uren QC Alan C. Archibald QC Brian Collis QC Stanley Spittle Ron Meldrum QC Robert Richter QC Noel Ackman QC Clive Rosen Richard J Stanley QC Dr John Emmerson QC Arthur Adams QC Richard Boaden

10 VBN VBN 11 Launch of the National Courts around town around and Tribunals Academy

FIONA MCLEOD

t is a matter of ongoing concern to members of the challenges for court and tribunal administrators in terms of legal profession that Australian courts and tribunals are running existing IT systems and sourcing and implementing Iincreasingly required to manage more with less and to new IT systems. This is but one area in which the new respond to constant undesirable pressures to adopt economic Academy, through research, training of court and tribunal models in the delivery of justice. staff, consultancy and thought-leadership, will provide much- That the workload of Australian courts and tribunals is welcomed expertise and assistance. ever-increasing is beyond doubt, as the most recent Australian The ground-breaking difference in the approach the Academy Government Productivity Commission Report on Government will take is to focus on the work done by the managers, Services 2015 attests. administrators and other support staff of our courts and In light of these ever-increasing demands, courts and tribunals. The education, training and developmental needs tribunals have been working diligently to innovate, to be more of the judiciary are already well met by organisations including resourceful and to work more efficiently - with commendable the Judicial College of Victoria and the Australasian Institute results. of Judicial Administration, but up until now there has not been However, the reality is that without appropriate increases a body in Victoria whose key focus is the management and in funding, there is only so much courts and tribunals have administration of courts and tribunals. been able to do and will be able to do – unless something else As of next year, court and tribunal staff will not only be able changes. to take advantage of one-off tailored educational services and It is with great enthusiasm that I can report that something training, they will also be able to enrol in the Graduate Diploma has changed. in Court and Tribunal Management. This recognised formal On 15 October, the Governor-General Sir qualification will provide the next generation of court and tribunal and the Chief Justice Marilyn Warren launched the Victoria staff with a stronger career pathway and direction than is currently University Sir Zelman Cowen Centre National Courts and the case. It should also lead to more highly skilled staff in courts Tribunals Academy. and tribunals and increase retention of staff into the future. The Academy, the only one of its type in the country, While the Academy is based in Melbourne at the Victoria will work with Australian courts and tribunals nationwide University College of Law and Justice Sir Zelman Cowen Centre, to improve the way courts and tribunals are managed, its reach will be national and international. administered and staffed in all areas, excluding the judiciary. On the national level, there is widespread judicial and other Through research, education and training, the Academy will enthusiasm for the Academy. Letters of support have been augment and support the very good work already being done received from the Supreme Court of Victoria, the Court of by courts and tribunals in these areas. Appeal, the Australasian Court Administrators Group (which The Academy will assist in the development, implementation represents numerous courts and tribunals Australia-wide and embedding of world’s-best management practice within and in New Zealand), the Judicial College of Victoria, Court Australian courts and tribunals across all areas of non-judicial Services Victoria and the Australasian Institute of Judicial work including governance, strategy, people management, Administration. The County Court has already seconded a leadership, innovation, IT, budgeting, finance and risk senior member of staff to the Academy to assist in ensuring management. it meets the needs of courts and tribunals. By further modernising the way courts and tribunals are Internationally, Memoranda of Understanding have been managed and administered, they will be much better placed signed with the National Center for State Courts in the USA and to deal with increasing demands on their limited resources. the Research Institute on Judicial Systems in Italy. Negotiations As all members of the profession know, technology is a are underway for international linkages with other institutions particularly significant challenge for courts and tribunals at across North America and Europe. a time of increased demand, increased volumes of work and While the Sir Zelman Cowen Centre is to be congratulated particularly in regards to mega-litigation. Lawyers, their clients for developing and launching the Academy, it is appropriate to (particularly large organisations and businesses), governments acknowledge the key role the Chief Justice played in creating a and others increasingly expect courts and tribunals to be as new legal landscape in Victoria which called out for just such a technologically advanced as they are. This presents significant body as the Academy.

12 VBN VBN 13 around town

Mounting concerns by Victorian The Academy, the only one of its type in courts in recent years that government the country, will work with Australian courts was encroaching on the independence and operations of the courts, thereby and tribunals nationwide threatening the separation of powers “This need is improved professionalism “The Academy has a fine future ahead. and judicial independence, led to the and knowledge for those who work within I wish it every success in the exciting and introduction of the Courts Services the jurisdictions and those who interact innovative times ahead.” Victoria Act 2014, which established with the courts such as government As a member of the Sir Zelman Court Services Victoria. The Chief Justice departments,” the Chief Justice said. Cowen Centre Advisory Board, I too was at the forefront of this work. “This is where the Courts and Tribunals believe the Academy has a fine future The establishment of the independent Academy will play a very relevant role. ahead, a future which will contribute statutory authority Court Services The timing of the Academy’s launch strongly to the ongoing improvement of Victoria on 1 July 2014 heralded a new is perfect. the management and administration of era of independence for Victoria’s courts. “It is highly desirable that court our courts and tribunals as they move From that day, judicial services became administrators understand the different towards world’s-best practice standards. independent of the executive arm of context of courts and tribunals; their The positive flow-on effects of this to government and Victoria’s courts and purpose in our democratic society. So members of the profession, their clients tribunals became accountable directly too, do those who fund the courts and and the overall administration of justice to parliament. tribunals – government departments has the potential to be significant and With this newfound independence – and those who come to the courts long-lasting. from government, courts and tribunals – police, legal aid agencies and the like – Fiona McLeod SC is a member of the in Victoria found themselves in need of benefit from understanding why we have Victorian Bar, President of the ABA and ways to further develop the skill level courts and tribunals, what they do and a member of the Sir Zelman Cowen Centre and experience of their non-judicial how they are best supported. Advisory Board. staff in areas including administration “Victoria University and the Sir Zelman and management. This need was a key The Hon Chief Justice Marilyn Warren AC; the Governor- Cowen Centre are to be congratulated General, His Excellency General the Hon Sir Peter Cosgrove motivating element in the development AK MC (Retd) ; the Vice-Chancellor and President of Victoria on their vision in the establishment of of the Academy. University, Professor Peter Dawkins; and the Hon Nicola Roxon, the Courts and Tribunals Academy. The Adjunct Professor and Chair of the Sir Zelman Cowen Centre Speaking at the launch of the Academy will assist in the elevation Academy, the Chief Justice said the of court administration skills and introduction of Court Services Victoria knowledge and encourage creative and as well as other factors including innovative ways to facilitate access to changing complexity in the law and justice, particularly through local and the increase in demand for courts and international connections. tribunals had led to the development of a need which had to be met. The Chief Justice also identified the new Academy as having a key role to play in the meeting of this need.

12 VBN VBN 13 From stateless to head of state around town around The following speech was delivered by David J O’Callaghan QC on the occasion of a dinner held by the Victorian Bar on 11 June 2015 to honour his Excellency the Honourable Alex Chernov AC QC on his imminent retirement as the 29th

our Excellency, Mrs Chernov, your Honours, isolated place, previously used as an army camp, then used to distinguished guests, ladies and gentlemen: house what were then officially called “displaced persons”. Y On the 8th of June 1949 - two young boys arrived with Like the hundreds of thousands of other refugees who arrived their mother at Princes Pier on the MS Fairsea. This was the in this country in the late 1940s and early 1950s, neither the first of many trips the vessel made under a contract between boys, nor their mother, spoke a word of English. the Australian Government and the International Refugee One of those two boys was an 11-year-old. His name was Alex Organisation. Chernov. The MS Fairsea was a converted escort aircraft carrier. It The day after the Fairsea berthed at Station Pier, and the had no cabins, just triple-decked, cramped bunks - and had Chernovs headed off to the delights of the Bonegilla camp, the left Genoa, on the 11th of May that year on its maiden voyage lead headline in The Argus, Melbourne’s main daily newspaper, to Australia via the Suez Canal with almost 1,900 European thundered: “Red Supporters in Migrant Ship”. migrants crammed aboard. The story, in the Thursday June 9, 1949 edition, a copy of Like many migrants who arrived after the Second World War, which I have due to the wonders of Mr Google, continued: the two boys and their mother were stateless. In their case, they ‘Actually Russians’ were on the last stage of their years-long escape from persecution by the communists in Russia – persecution which included the Count Pongracz, who is from Hungary, said: ‘More than 900 of murder of the mother’s husband, the boys’ father, by the Red these people came from the Ukraine, and are actually Russians. Army after the Russians had recaptured Lithuania in 1940. During the trip many became drunk, and then showed their true From Princes Pier, the boys and their mother were packed off character and political affiliations. to the Bonegilla Migrant Camp in northern Victoria, where they ‘Whether they will make good Australians I would not like were met by the army personnel who ran it. It was a grim and to say.’

Tonight’s celebration is to recognise Alex’s indefatigable and selfless service to our Bar and to the people of this State.

14 VBN VBN 15 1 2 around town

3

1. Jim Peters QC, Sally Ninham, the Hon Alex Chernov AC QC, Elizabeth Chernov, Paul Anastassiou QC, Sarah Fregon. 2. The Hon Alex Chernov AC, QC 3. The Hon E. W. (Bill) Gillard QC, Elizabeth Chernov, the Hon Alex Chernov AC QC, William Alstergren QC

‘The remaining passengers are not like to say”) Pongracz would have Blackburn and Co, had obtained a record Latvians, Estonians, Lithuanians, been moderately surprised to know payout of £12,488 against the SEC on Hungarians, and Jugoslavs. All come that over the next few decades one behalf of a council worker who had from countries where Communism is of the displaced persons on that boat suffered severe electric shock due to the rife.’ would in turn become a brilliant student SEC’s negligence.] at Melbourne High School and then The purpose of tonight’s celebration Escaped in 1948 Melbourne University, one of the finest is to recognise Alex’s indefatigable and Count Pongracz escaped from Hungary barristers and judges of his or any selfless service to our Bar and to the in 1948 after having experienced both generation, President of the Law Council people of this State. German and Russian occupations. His of Australia, Treasurer and then Vice He is a remarkable and much loved wife was formerly Miss Bettina Mary President of the ABA, President of the man and the Bar rejoices in being able to Gill, a cousin of Mrs Winston Churchill. Motor Sports Appeal Court, Deputy celebrate - together with Elizabeth - his Chancellor of Melbourne University, contribution to our Bar, a contribution Mr Oppenheim revealed that shortly Chancellor of Melbourne University which began from the time he signed the before the Fairsea left Genoa a and a Companion in the General Bar Roll in 1968 and which continues to well-known communist, who had Division of the Order of Australia. this day. embarked as a migrant, was taken off That the stateless boy would one Many in this room know, although the by police and told that his papers had day become head of state would, I young crew over there on table seven been cancelled. It was possible other suspect, have rendered the good Count may not know, that his Excellency was Communists were aboard. Victorian speechless – which, in light of the nature a 14-term member of the Victorian Bar security police met the Fairsea and of his reported observations, may well Council, serving continuously from 1971 inspected the migrants, very few of have been a good thing. until the expiration of his 18-month term whom can speak English. [Before I leave The Argus, the front as Chairman in 1986. I suspect that Count (“Whether they page also records that one OJ Gillard His Excellency read with Sir Daryl will make good Australians I would of Counsel, instructed by Maurice Dawson. He had many readers, including

VBN 15 around town around

One of the displaced persons would become by Betty King in observations her Honour made about the refusal or inability of a one of the finest barristers and judges of his lawyer employed and briefed by VLA to or any generation. appear as junior to another member of VLA’s chambers, to undertake the role Justice Clyde Croft, Justice Tim Ginnane, His Excellency’s contemporaries at the of counsel when the later became ill. Greg Davies QC, Magistrate Barry Braun, Bar ranked among the genuine legends But I digress. Neal Chamings and Ian Duffy, most of of their time, and included three people Stepping into the shoes of our leader is whom are here tonight. in particular who cannot be here - the one thing, but very few, if any of us have Alex took silk in 1980, only 12 years one and only JE Barnard QC, Jack (later entered a court room as a spectator and after signing the Bar Roll. Justice) Hedigan and the late Frank ended up as lead counsel at the bar table. He also served on so many committees Costigan QC. Like Alex, they too were His Excellency is one such person. and in so many official capacities, to giants of our Bar, all men who, in different On November 13th 1984, when he was serve the members of our Bar, that ways, displayed enormous courage when the Vice Chairman of the Bar, Chernov I cannot name them all, this side of called on to do so. QC, along with many other members midnight at least. To take but some, All of us who have ever held a junior of counsel, had wandered over to the however – he served six terms on brief are acutely aware of the possibility Banco Court to attend the welcome of the Ethics Committee, five on the that, one day, at any moment, we will the latest judge, John Harber Phillips, accommodation policy committee, five be called on to step into the shoes of who later became the Chief Justice. The terms as a director of BCL, 13 terms on our leader, should she or he become task of welcoming a new Supreme Court the Law Reform Committee, three on unavailable, whether through illness or judge usually falls to the Chairman of the the Readers’ Course committee and some other cause, good or otherwise. Bar. He was away interstate that week, two on the past practising Chairmen’s Members of our Bar must not, and we and McPhee QC had been deputed to Committee. In between times he with do not, masquerade as counsel, if I may appear. As the minutes before 10am, the Bob Brooking authored ‘Brooking and adopt with respect that superb turn of appointed hour, approached, Mr Miles Chernov: Tenancy Law and Practice’. phrase recently and quite rightly adopted for the Law Institute was comfortably

16 VBN VBN 17 around town

His ability to do so was, and is, the product of the to fly to Europe. Alex had for some seemingly boundless optimism that informs Alex’s days prior been at a meeting of Law Asia or some such thing and was to world view join Elizabeth and Peter on the flight to Europe. The minutes ticked by and ensconced in his spot at the Bar Table, the Criminal Bar, and it is because of Peter became more and more anxious. but still no McPhee. Your Honour’s efforts that the Criminal Elizabeth assured Peter that there was I should say for the benefit of the Bar recognises that it is in the position no need to fret. And sure enough, just as younger barristers on table seven, that it is today. the aircraft door was being closed, Alex this was long before the days when Your Honour has served on the Bar slipped through the slowly narrowing helpful associates or tipstaves would Council for many years and has given opening, cool as a cucumber, and said enquire “is everybody ready?” before Your Honour’s time willingly to the “Joppers, you look like a nervous wreck.” the tap on the door, the cry of “all Stand” services of the Bar and to the law. Even in his capacity as Governor, and the judge’s appearance from behind Alex has continued to work in and for the blue curtain. And long before mobile Your Honour has been involved over the best interests of the Bar. Most phones, needless to say. many years in developing matters of recently, the establishment of a multi- So, seconds before the clock struck 10, common interest to lawyers and the faith opening of the legal year at Vice Chairman Chernov leapt to his feet administrators of the law. Government House was a triumph and and took the seat immediately behind Your Honour, as we know, led the would never have happened but for the the lectern at the bar table, next to the defence in the Azaria trial, which Governor’s vision, determination and unsuspecting Mr Miles. On the stroke received publicity not only here, but relentless hard work. of 10, it was “all stand”, JH Phillips J overseas, and Your Honour has set All barristers, all of us, would be shadows emerged, opened the court and, equally up a Department of the Director of of ourselves without the help and support unsuspectingly, said his very first words Public Prosecutions in a way which of those who love us. In Alex’s case, of as a judge: “Mr Chernov?” has enabled this State to have course, that includes in particular his late I know that because we have had the administration of the criminal grandmother and mother, his children and unearthed, through the efforts of law handled by people who are most especially Elizabeth, who honours us Ross Nankivell, a long-lost copy of the independent of the Public Service. by her presence tonight. We all know the transcript of that welcome. price that others pay for our successes. If As the learned judge looked down and Your Honour, on behalf of the Bar, we you will permit me, I will in that regard read uttered his first judicial words, Chernov welcome you to the Bench and wish just briefly Alex’s own words at his farewell: got to his feet and delivered the following: Your Honour a fruitful time on it. If Your Honour pleases. I know that I will be shot for saying May it please Your Honour. On behalf this later but I think it is appropriate, of the Bar, may I welcome Your Honour So you see that it was seamless. It was if not essential, I get this off my chest in to your appointment to this Court leadership personified. public. The most invaluable assistance at a time, Your Honour, when it is of In McPhee’s defence, I should add and friendship given to me during my significance to the community that the that he had not done a runner, nor time on the bench, and before, has Court is staffed by people who have had he forgotten. He had believed come from Elizabeth. She has been my had a wide range of experience, not the welcome to be scheduled to start best friend and wife of over 42 years only in the practice of the law, but in at 10.15, at which time he entered an (now 49 years) and no words could the administration of it. emptying Banco Court, welcomes being adequately thank her for her love and much shorter affairs in those days! Your Honour, this is in many ways an support which, mercifully, injected As a , Alex turned arriving at historic occasion, not only for Your some reality into my life. I just do not the death knell, not a minute early, not a Honour, but for myself. (What degree know how she has put up with me… minute late, into an art form. of irony attached to the word “historic” but I am very grateful that she did… His need to do so was the result we will never know for sure!) And I of what we would now call a 24/7 For those of us privileged to have known can perhaps convey to Your Honour work cycle. His ability to do so was, Alex, his transition from student to the apologies of our Chairman, who is and is, the product of the seemingly barrister, to silk, to the Court and then to interstate. boundless optimism that informs Government House was a natural and, in Your Honour has been renowned as Alex’s world view. hindsight, an inevitable one. a leader at the Bar, particularly the Peter Jopling tells the story of sitting Thank you all for joining us tonight to Criminal Bar, and Your Honour was the in a plane at Bangkok airport with honour and celebrate Alex’s contribution first member of the Criminal Bar to take Elizabeth. Peter and Elizabeth had flown to the Victorian Bar. He is truly a hero and silk and to take leadership in developing from Melbourne and had changed planes an exemplar of our great institution.

16 VBN VBN 17 around town around

18 VBN VBN 19 around town A passion for books

Launch of the John Emmerson Collection on 14 July 2015 at the State Library of Victoria. WILL HOUGHTON

hose who were privileged to have known the In an article published posthumously in The Book late Dr John Emmerson QC, or to have seen Collector (volume 63, number 3, Autumn 2014), Thim in court, had the rather odd experience of John described how he started his book collecting being transported back in time to another era where career. He was a young don in residence at New courtesy and good manners reigned supreme. College when he was invited to dinner at the home “Emmo”, as he was affectionately known to his of a fellow don. His host and the other guests were many friends and acquaintances, had that rare all book collectors or married to book collectors and talent when addressing a court or cross-examining the talk naturally turned to antiquarian books. John a witness, of completely disarming the judge or recounted a visit to a country church near Oxford the witness with charm and courtesy. His and where he came across an old Book of Common delivery foretold a bygone era. Prayer which contained a reference to King Charles A completely different historical era was opened I. This sparked an interest in the historical events up to guests on 14 July 2015, at the launch of the John surrounding the trial and execution of Charles I. Emmerson Collection comprising more than 5,000 Shortly after this dinner, John’s colleague at New rare printed books. John Emmerson assiduously College told him that Christie’s were auctioning collected the books and manuscripts over more than another set of the contemporary news books 40 years. The historical area favoured by John was the describing the trial and execution of Charles I. period in the history of England spanning the 15th to John bought five bound tracts at that auction on 18th centuries. John’s particular interest, however, was 23 October 1968. After that, he was hooked. He the English Civil War and the reign of Charles I. His visited country booksellers with friends, he made collection has at its centre a magnificent gathering of acquaintances with antiquarian book dealers books dealing with this period. and placed himself on the mailing lists of many John Emmerson came to the law late in life. antiquarian book catalogues. He was a brilliant student at the University of John found that his scientific training was useful Melbourne and went on to Oxford where he gained when he devised a pilot study before embarking his D.Phil in nuclear physics in 1964. He became a seriously upon collecting. At that time, a common Fellow of New College before returning form of collecting would be to choose an author, to Melbourne in the 1970s. form a collection of the works of that author and At this point, John changed careers and then write a bibliography or at least a study of commenced his law degree at the University of that author based on his or her own collection. Melbourne, from which he graduated with the John early-on realised that this model had several Supreme Court Prize in 1974. shortcomings. The putative collector might choose A career at the Bar beckoned and John quickly an author but it could not be known with any excelled in his chosen field of intellectual property certainty whether one would be able to obtain the including that difficult area of patents law. He books written by that author in all their different became a leader of the Bar in that area and took silk editions. John knew of several collectors who had after only nine years call. diligently collected a favoured author over many John began collecting rare books whilst still a years but still failed to make a complete collection. student at Oxford. It became one of the enduring As John put it: passions of his life. Upon his death last year aged 76, John’s family donated this extensive collection The question for me was whether it was still to the State Library of Victoria in accordance with possible to devise a collecting strategy that would his wishes. The collection is valued conservatively allow me to continue collecting the seventeenth- at between $5-7 million. In addition, John endowed century English books that had fired my enthusiasm a bequest of $1.3 million to help preserve, catalogue in the first place but without running into dead and expand the collection and fund scholarships in ends of the kind lamented by some of the earlier the future. generation book collectors. I was working in

VBN 19 around town around

John also realised early on that book collecting make a number of small collections was not only about technique but was also about that put books into their bibliographical context and illustrated the variety of the development of the collector’s taste printings and later histories of particular authors or particular works. However, experimental science at the time and from Blackwell’s in Oxford. he did not feel compelled to make the as an experimental scientist I thought At the end of a year-and-a-half, John collections complete. The valuable lesson that the convenient place to start was had acquired the first three editions of A he had learnt was that it was not merely to make a pilot study. I would choose Winter – Evening Conference together with marginally easier but much easier to form an author and see how satisfactory the eighth and ninth editions but he saw a respectable but incomplete collection a collection of early editions of his no copies at all of that book until August of a particular author or title than to form works I could make in a reasonable 1982 when he bought the 10th edition. a complete collection. time at a reasonable price. I set the He realised that he had fallen into John also realised early-on that book reasonable time as about a year and the same trap as earlier collectors in collecting was not only about technique the reasonable price at £10 per book, choosing an author who was also popular but was also about the development which was then roughly the price of a with other collectors. As John said: of the collector’s taste. In February new nuclear physics textbook. This may Even without the distorting effect of 1969, he went to the sale of the library seem an odd choice, but it was a sum rival collectors, the first few acquisitions of Sir Daniel Fleming (1633-1701) and that I was used to spending on books. in an author collection are much easier was much taken with the condition John chose an author, John Goodman, to find than later acquisitions. I knew of the books which took him straight and one of his books, A Winter – Evening this from elementary mathematics. back to the seventeenth century. He Conference Between Neighbours. He learnt bought three of the books in that John’s methodical research taught him from his researches in the Bodleian collection. He then researched the life that completeness in a collection did library that it was an agreeable little book of Sir Daniel having discovered that his not necessarily lead to happiness. The in dialogue form that went through 10 papers had been preserved at Oxford hunt could still be enjoyable. The critical editions between 1684 and 1713. He then and published in three volumes by the step in collection-building was putting set about collecting the different editions. Oxford Historical Society. He continued each item into its bibliographical context Shortly, John found an eighth edition to collect books from that collection and this did not necessarily require (1700) in a bookshop in Chelsea then, for many years as and when they completeness. He decided upon a more a few weeks later, a third edition from became available. flexible approach. another antiquarian bookshop near the The voyage of discovery that John Consequently, John proceeded to Royal Institution. A ninth edition followed embarked upon in those early years gave

20 VBN VBN 21 around town

him joy and satisfaction throughout Buckingham, and, finest of all, Hooker’s These included the Bible owned by William his life. By the end of 1969, John said: Laws of Ecclesiastical Politie (1635) Juxon (1582 – 1683), who was the Bishop in an embroidered binding, probably of London whom accompanied Charles I to I was in almost ideal circumstances once Queen Henrietta Maria’s. He had the scaffold where the Bishop performed for someone who wanted to collect all the folio editions of The Anatomy last rites, as well as a 1684 journal of the books on a modest budget. I was of Melancholy in contemporary High Court of Justice recording the trial living in rooms in New College, a bindings. John Evelyn was another of King Charles I, at which he was found short walk down New College Lane favourite, especially the copy of Robert guilty on 26 January 1649 and sentenced to the Bodleian, which had most of Boyle’s Memoirs for the Natural to death. Other works include the final the important bibliographies and History of Humane Blood (1683/4) speech of King Charles I delivered just other reference works available on presented to Evelyn at a meeting of prior to his execution on 30 January 1649. open shelves. Catalogues arrived the Royal Society on 27 February 1684, This extraordinarily generous donation by the morning post and mine were and noted by him in his Diary. He is a true mark of John’s character and beside my plate at the breakfast table. took in all the poetry and prose of the personality. John was a modest, even There was a telephone conveniently century, especially Vaughan, Waller humble, man with no airs or pretentions. placed if urgent action was required. and Dryden, Jeremy Taylor and Thomas His bequest to the State Library of In less urgent cases, if a book seemed Browne. Only last year he bought Sir Victoria will ensure that everyone can potentially interesting, I could always Thomas Vyner’s copies of the first appreciate, and learn from, the treasures examine the Bodleian copy to make edition of Pseudodoxia Epidemica in this collection. sure. and the 1688 folio Paradise Lost with In an obituary delivered by Medina’s plates that had found their Professor Wallace Kirsop, he said: As Nicolas Barker, editor of The Book way to , adding a fine Collector noted in John’s obituary, his Let there be no mistake: this is one of set of Dampier’s New Voyage Round collection is marked by its breadth and the great legacies to any Australian the World (1697) only weeks before distinction. library. John Emmerson’s name will live he died. All these grew to fill the fine in the collective memory as well as in Although fine bindings interested him old house in Park Street, South Yarra, the minds of those of us who had the less than provenance, the combination in which he lived. great privilege of knowing him and his brought him others besides the special qualities for many years. dedication copy of The Penitent At the launch of John’s collection, Pardoned, such as the second edition attendees were privileged to be shown These were fitting words. Through this of Hobbes’s Leviathan in red morocco some of the more valuable works by the wonderful Collection, the memory of with the arms of John Sheffield, Duke of skilled curators at the State Library. John Emmerson lives on.

20 VBN VBN 21 around town around The renaissance of the Bar library

NATALIE HICKEY

he top definition for “library” in Urban Dictionary (an online T crowd-sourced resource) is: “An awesome place that is underrated in today’s society”. The Bar library, located on level one of Owen Dixon Chambers East, aptly fits this description. Samantha Marks QC, the Chair of the Bar’s Library Committee, wants people to know about the library, and to use it, pointing out that barristers help pay for the Bar library through their subscriptions. With her fellow committee members, she has a vision for the space and is well on her way to achieving it: “Libraries can be beautiful spaces to work in because of their atmosphere and history. They make you want to work there”. She adds that it is important to have a space that makes you feel part of the club, and part of something bigger. The Bar library has that history, starting on an ad hoc basis Natalie Hickey, Samantha Marks QC, James WS Peters QC, Ed Heerey SC and the Hon Peter Heerey AM QC (seated). with donations from barristers. This is a continuing tradition that includes a recent donation from the Hon Peter like atmosphere, also thanks to an We want the room to be busy and useful Heerey AM, QC. anonymous donation. On a recent visit because we should not always be alone in There is also a collection from the by Victorian Bar News, the library was the work we do. That is why community estate of Ian McIvor containing an busy with barristers using computers is so important.” extraordinary number of books about and working on matters with the help She encourages people to come to trials and advocacy, many unopened. of the available books. the library rather than sit in chambers. A book containing extracts of cross- As Marks points out, “Our library “We don’t move around as much as we examination from Charles Manson’s trial should be about history and community. should. Come and get a take-away coffee beckons. The way we advise and argue is about in the Essoign and bring it into the library. The library now also has a Chesterfield how others have argued in the past. We’ve relaxed the rules about food and sofa and two chairs, creating a club- It is part of our common law tradition. drink so that people can be comfortable.”

22 VBN VBN 23 around town

Libraries can be beautiful The Heerey Collection – spaces to work in because of their donation to the atmosphere and history. They make you want to work there. Bar library etired Federal Court judge, the Hon Peter Heerey AM, QC, People are changing the way libraries are used, has donated his collection of legal books to the Bar library. and we are no different, she suggests. That said, R The Heerey Collection is no ordinary collection. There are Marks indicates some hesitation about bringing no traditional textbooks or journals here. Rather, this thoughtful in fish and chips. and generous donation reveals much about the broad-ranging Barristers may be surprised about the quality interests of the author. The collection is divided into categories and depth of the resources available. The Bar has of books about ‘advocacy’, ‘anecdote, humour and miscellany’, funded the upgrade of computers. These provide ‘biography, letters and autobiography’, ‘court architecture’, ‘judges access to numerous resources via subscriptions and judging’, ‘law and literature’ and ‘trials’. such as LexisNexis and Thomson . Users For the author and former editor of Victorian Bar News, a love cannot presently print out materials, but they can of books comes naturally. Peter Heerey enjoyed poetry at school, email them. The library also has wifi. which led to his own attempts at verse, since published in A Whilst a lot is now available online it is sometimes Moment’s Delight. So too, he published a series of essays last year a lot easier to pick up a book. Marks says “With in the aptly titled Excursions in the Law. conflict of laws, for instance, I find it miles easier “Books are about people and language”, says Heerey. “They to pick up a book,” Marks says. And the Bar library provide a sense of history, of time and place, and how this informs contains some excellent texts in that area. law and life today.” For civil lawyers, the Bar library’s editions of As for the collection, it constitutes books that, to him, represent Williams and Federal Court Procedure are kept up- useful ideas. There was no organised process. “Over the years I to-date. For those of us with months of updates collected books that interested me”, he says. “There are things that remaining in their plastic sleeves, this is no small legal practice lead you into that excite interest: law and language, task. That these volumes are kept up-to-date is great stories and funny stories”. due to the tireless efforts of Richard Brear, For example, the collection includes books by Dan Kornstein, deputy chair of the library committee. such as Kill all the Lawyers? Shakespeare’s Legal Appeal. Kornstein is The Bar library also offers the following to a trial lawyer who finds fascinating parallels between Shakespeare’s barristers: plays and current day questions. The Elizabethan age was as • 24-hour-access (so if the Supreme Court litigious as our own, and Shakespeare was very familiar with the library closes, the Bar library will be open). language and procedures of the courts. • A large number of reports and text books. Heerey accepts the individualistic nature of the collection, • An entire section where people can borrow but that is the point. The books are not expected to be a formal books (including from the Heerey Collection resource. Rather, he simply hopes barristers will read them. and the McIvor Collection). Whilst finding it difficult to choose, Peter Heerey has nominated • A section on the Bar website displaying the his five “desert island” books from the collection: books and subscriptions available, so people 1. Order in the Court – “As a former Bar News editor, I couldn’t can check availability before walking across pass up this collection of the best of Verbatim.” to the library. 2. American Original – “This frank but fair-minded biography of • The introduction of talks and sessions in US Supreme Court Justice Antonin Scalia is a fascinating look the library which are resource-related. at the philosophy and politics of the US judicial system.” For people interested in donating books or 3. Owen Dixon – “A fine biography giving some human insights other items, the library committee is happy to be into this Olympian figure of the law in Australia.” approached. “Send us what you have as a list and 4. Hitler’s Justice: the Courts of the Third Reich – “For the German we will consider it”, Marks suggests. There are space courts and legal profession it was business as usual under the issues, though. For instance, there is an American Nazi regime.” book collection that must be located outside the 5. The Claimant: the Tichborne Case Revisited – “An 18-stone library, albeit in the Neil McPhee Room, next door. butcher from Wagga Wagga claimed to be the baronet Sir The library committee notes the Bar’s Roger Tichborne, thought to have been lost at sea many years contribution and investment in the library. It is more previously.” than a room; it is a welcome and useful space. Come Asked why he donated the collection, he responds simply: “I am and give it a try! very grateful for my time at the Bar”.

22 VBN VBN 23 The Honourable Linda Dessau, AM, around town around Governor of Victoria

Governor Dessau was sworn in as Governor of Victoria on 1 July 2015. VBN asked her Excellency to reflect on her new role and her other remarkable achievements.

Please describe a typical day as innovative contributions to business, broadest spectrum of regions, disciplines, Governor. the resilience of our farmers or the businesses, organisations and community There is no typical day. That is one of groundbreaking brilliance of our bio- groups, and hopefully to contribute to the great pleasures, having come almost scientific researchers. enhanced social harmony and cohesion. directly from 28 years on the bench That might sound like a lofty Are you a Republican? where each day had a similar pattern of aspiration but it is a role with the widest I am comfortable that for now the people 10am until 4.15pm in the courtroom. opportunities to facilitate the great have spoken as to the system they want As Governor, I could be chairing work of others in all of those areas. to keep. In the event that it changes in Executive Council, helping at a breakfast And, there is certainly scope to ensure the future, I hope we retain a program at a local school, meeting that organisations or events that I regard structure with an independent Head farmers in regional Victoria or presenting as dear to those objectives do gain of State, someone outside of politics, awards to brilliant young people for some support. someone who can be a guardian of timber design and manufacture (using the Constitution, and non-partisan How has being a barrister and Judge timber from a historic tree felled within ceremonial and community leader. prepared you for the role of Governor? the Government House Grounds). I think the legal background helps in two I could be hosting events in our Who are the past or present governors particular ways. Ballroom, including the Investiture of or leaders who inspire you? First, when it comes to carrying out Australian Honours, receptions for All the past Governors inspire me, albeit the constitutional aspects of the role - international delegations, the in different ways. Each has approached although it is by no means a necessity. Victorian Multicultural or Senior the role in their own individual way in There are many fine Governors, without of the Year awards. the context of their time in history, and legal training, who are a testament I could be travelling overseas to inevitably playing to their individual to that. represent Victoria, participating at a strengths or interests, but I have no doubt It also helps in terms of an ability to world economic forum or watching a that every Governor has felt keenly the absorb and distil new information. soccer match between robots developed same sense of privilege and responsibility That is the essence of being briefed, in our sister prefecture of Aichi in Japan. of serving the Victorian community. or hearing evidence in a case. It is useful And, any of those things could easily As to other leaders, there are world when attending such a vast variety of be in the course of the same day. figures like Nelson Mandela, Australians functions and organisations, and like Professor Fiona Wood or Rosie What is your favourite part of the role of meeting such a wide range of people. Batty, but the longer I am in this role, I Governor, so far? am discovering and admiring leaders of You have been a barrister, a judge, an I enjoy the positivity of the role. small groups and large across all different AFL Commissioner and now Governor: After a career in law and so long in communities and in all parts of the State. which role was the most difficult; which the courts, I realise how much of court People who imagine and successfully the most enjoyable; and which, in your work is not only adversarial by its very start clever not-for-profit organisations, opinion, seems to command the most nature, but also what a challenge it can or a sporting club, a youth group or respect? be for a judge to constantly deliver what whatever their particular community Each has been enjoyable. Each has been is inevitably bad or hard news for at needs – they are truly inspirational. challenging. Each has been right for me least one of the parties: a long prison at the time. sentence, a significant financial loss, or How would you like to make your mark I loved the Bar. I loved the advocacy the devastation of no longer being able to as Governor and to what extent can a and the camaraderie. Of course I met my see their children, just by way of example. Governor control her agenda and the husband there too! My days now are much more likely causes she assists? I relished our time prosecuting in Hong spent celebrating selfless community I hope to do as much good work for Kong. It is such an exciting city, and one work, inspiring social entrepreneurship, Victoria as I can possibly do, across the

24 VBN VBN 25 around town

that gave me the opportunity to learn criminal law and to be exposed to criminal trials every day for nearly three years. I loved every minute of my almost- 10-years as a magistrate, across the Children’s Court, Coroner’s Court, and then Melbourne Magistrates’ Court, in particular running the Committals’ Court, as I did for the last few years I was there. It is truly the “people’s court”. It has the most community contact of all the courts. It is busy, vibrant and human. Equally, I enjoyed my 18 years as a Family Court judge. People often asked me if the work was repetitive or depressing. It was certainly never repetitive. Every case was different. Families are different. People are different. At the end of the 18 years, I was still hearing new things. It wasn’t depressing either. Sometimes sad, that’s for sure. But often uplifting too to see how bravely people coped with adversity, to see how some people so clearly put their All the past Governors inspire me ... I have no children’s needs ahead of their own, or to see grandparents selflessly stepping doubt that every Governor has felt keenly the same into parenting roles when their children sense of privilege and responsibility of serving the were not able to do it. And sometimes, Victorian community. I felt that I was helping a family, at least by averting some of the possible woman, Shauntai Batzke) so that is a have been from all walks of life, from all damage of their dispute. pretty good measure of one of the arias parts of the State, and indeed from many And finally, I enjoyed the two years dearest to my heart. different countries. between the Court and this role, immersed I was particularly moved by the stories What is it like living in Government in various community boards. In particular, of the World War II veterans who came House? the combination of football (through the to the House on the 70th anniversary of We moved in just the day before my AFL Commission) and the arts (through Victory in the Pacific Day. inauguration. That evening, when my the NGV and Melbourne Festival) gave Each one had a story, but when I family had gone off to bed, I walked me a nice balance. I am a firm believer that asked one gentleman where he had around by myself and felt a sense of whilst it is not compulsory to love either served, he told me that he had served history, but mostly a sense of temporary football or the arts, it is certainly not a in Melbourne. Starting as a 15 year custodianship, contemplating the 17 necessity to choose one or the other. I see old, he worked through the war for the Victorian Governors and the eight the beauty and the community enrichment PMG, undertaking the gruelling and Governors-General who had, just like me, through both. heartbreaking work of delivering the moved in and inevitably moved out again. telegrams that announced to families Which role gets you the best tickets to Naturally it felt new and strange, but I that their beloved sons or husbands had the AFL Grand Final? contemplated that it must have felt like been killed in action. I was struck by the Former Commissioners are always that to each who had gone before me, heavy burden on a young teenager, and invited to the AFL Grand Final. the more so for those whose arrival was reflected on the vicarious or second-hand So is the Governor. in fact the culmination of a very long trip trauma of war. from England. What is your favourite song? I believe in diversity in all things, Who is the most interesting person you When you were a child, what did you including music! But at my inauguration have met so far, as Governor? want to be when you grew up? I had Puccini’s O Mio Babbino Caro sung That is difficult to answer because of the A psychiatrist, until I discovered that you (magnificently by a wonderful Wiradjuri variety of people I have met so far. They had to do medicine first!

24 VBN VBN 25 around town around

Advocating for Africa

Five Victorian barristers, one Victorian judge and 30 Ugandan prosecutors. ASHLEY HALPHEN

udge Montgomery of the , and Enter a Victorian Judge and five members of the Victorian barristers Samantha Marks QC, Lesley Taylor QC, Tony Bar in August 2015. They had nothing to give except their JTrood, Michael Cahill and I share something special. joint experience as advocates. This sentiment would prove They answered a call from the International Justice Mission worthwhile in their primary pursuit to develop local advocacy of Australia (IJM), made on behalf of the Ugandan Director skills. General deterrence is viewed by IJM as critical in of Public Prosecutions, to conduct an advocacy workshop for reducing the epidemic. An elderly widow attacked with a prosecutors in Kampala, Uganda. machete by a relative over her modest plot of land where she IJM challenge poverty by improving justice systems in a had lived for decades would no doubt agree. number of developing countries to ensure the rule of law is The team presented, demonstrated and then reviewed upheld and access to justice for those in dire need of protection individual performances in all areas of advocacy to over is made more possible. 30 local prosecutors with experience ranging between Australia shares a common law background with Uganda. two to 17 years, but all bereft of the kind of advocacy training There is recognition of a crisis in this distant jurisdiction. offered in Victoria. ‘Land grabbing’ is an epidemic in Uganda and disproportionately Feedback was expressed in the true spirit of genuine and affects widows and orphans in the community. Men often die warm African gratitude, scarring the hearts of the Australian intestate, leaving behind lawfully purchased plots of land; a team with a defining memory. Without fuss or complaint, treasure chest in ensuring stable accommodation and income colleagueship lent buoyancy to any pressure, and farewells for the surviving family. Traditional practices however, inspire were infused with the priceless sensation of reward and a deceased’s clan to go to extremes to take over the land. satisfaction. It is well to remember that education provided Requests to leave often escalate from harassment to forced anywhere provides the potential for advancement well evictions and nefarious violence. beyond immediate frontiers. Criminal prosecutions are frequently viewed as civil disputes. Any subsequent progress will be tracked by IJM; those who IJM stepped in to support local law enforcement agencies. took flight from Entebbe Airport back to Australia anticipate Community values are gradually changing: this is gender based only positive results. What a privilege it is to conduct oneself violence. More arrests and prosecutions have arisen in recent beyond the day-to-day realities of practice and perhaps be a times. small part of change to those most in need.

26 VBN VBN 27 around town Pizer passes the baton

Launch of the fifth edition of Pizer’s annotated VCAT Act. BEN JELLIS

n a wintry Wednesday night in August, the Victorian Civil and OAdministrative Tribunal was jam- packed with practitioners, friends and family for the launch of the new edition of Pizer’s Annotated VCAT Act. First published 14 years ago, the book is now in its fifth edition. In that time, it has joined a select group of textbooks identified by the name of an eponymous author: ‘Cross’, ‘Jacobs’, ‘Palmer’, ‘Pizer’. Over those 14 years, the authors’ scholarship and the quantity of case law 1 involving the Tribunal has seen the book swell

2 3 from 500 to about 1200 pages in length. In a warm and generous speech, the Honourable Justice Greg Garde, President of the Tribunal, welcomed the new edition, identifying “who’s got my Pizer” as a frequent refrain within the Tribunal. Guests were also treated to an amusing speech by Christopher Townshend QC who praised the scholarship of the book, but otherwise promised “not to give away the ending”. The evening ended on a touching note, with Jason Pizer QC revealing that the fifth edition

4 5 would be his last as an author. He likened the experience to finishing a marathon that has been run over 14 years. With that, he pulled out an athletics baton and symbolically passed it on to Emrys Nekvapil, a current co-author, who will assume sole authorship for future editions. Emrys is, himself, an accomplished administrative lawyer. The sentiment around the room was that this much respected and practical book will remain in sound hands over the years to come.

1. Paul Conner; Elizabeth Wentworth and Sr Member Ian Proctor; 2. Emrys Nekvapil; Nyadol Nyuon; Stefan Nekvapil and Sheryl Nekvapil 3. Eliza Bergin and Julia Watson 5.Jason Pizer QC and The Hon Associate Justice Melissa Daly 6. Indigo Casablanca, Linda Casablanca, Jason Pizer QC and Kai Pizer. 7. The Hon Justice Garde 7

26 VBN VBN 27 1 2 3 around town around

4 5 6

7 8 9

CommBar Cocktail Party CommBar held its annual cocktail party at the Federal Court of Australia on 8 October 2015. Chief Justice Allsop and Philip Solomon QC made speeches. The function was attended by the Commonwealth Attorney-General Senator the Hon George Brandis QC, many judges, barristers, solicitors and corporate counsel and was adjudged a great success.

1. Kate Jenkins and the Hon Justice Elizabeth Hollingworth 2. Katherine Gobbo and Carey Nichol 3. Andrew Kirby and Kieran Hicki 4. Felicity Bentley, Adam Rollnik, Tamieka Spencer Bruce 5. Rebecca Nelson and Gabrielle Crafti 6. Elizabeth Boros, Lucy Kirwin Philip Corbett QC 7. Louise Jenkins; Premala Thiagarajan and Caroline Kenny QC 8. Chief Justice Allsop, Philip Solomon QC, Wendy Harris QC, Philip Crutchfield QC 9. Elizabeth Brimer and Suresh Senathirajah 10. Phil Soloman QC

10 28 VBN

Untitled-1 1 1/12/2015 4:48 pm Untitled-1 1 1/12/2015 4:48 pm around town around

CommBar & Combar London 2016 Conference

PAUL HAYES

he London 2016 International Commercial Law Justice) and The Honourable Susan Crennan AC QC, along with Conference (London 2016 ICLC) is a joint undertaking of members of CommBar and Combar respectively. Tthe Commercial Bar Association of Victoria (CommBar) To accompany the eight business sessions which cover a wide and the Commercial Bar Association of England and Wales range of litigation, arbitration and commercial law topics, an (Combar) and will be held at the Inner and Middle Temple in attractive social program has been put together which includes London, on Wednesday 29 and Thursday 30 June 2016. a gala black tie dinner at the Middle Temple Hall and an end- The theme of the London 2016 ICLC is The Future of of-conference drinks reception to be held in the Temple Church International Commercial Dispute Resolution and is an exciting Courtyard, which will provide ample opportunities for informal initiative of the Melbourne and London commercial bars which conference discussion and networking. will bring together commercial dispute resolution lawyers from Following its official launch in November, registration Australia, the United Kingdom and Asia over the two days of for the London 2016 ICLC is now open. The conference the conference. registration fee has been set at $1,400 per delegate and Leading members of the judiciary will be speaking at the will also offer an accompanying person supplement for London 2016 ICLC and so far include Chief Justice Warren the social component. Places will be limited, so early AC (Chief Justice of Victoria); Lord Neuberger (President bookings are strongly recommended. If you are interested of the Supreme Court of the United Kingdom); Lady Justice in attending the London 2016 ICLC, visit the CommBar Arden and Lord Justice Jackson (England and Wales Court of website (www.commbar.com.au) and follow the links Appeal); Justices Sifris, Croft and Digby (Supreme Court of to the London 2016 ICLC website, or contact the London Victoria); Justice Jonathan Beach (Federal Court of Australia); 2016 ICLC Conference Organising Committee at: The Honourable Dame Geraldine Andrews (High Court of [email protected].

30 VBN VBN 31 around town A charter for change

Launch of the CommBar Equitable Briefing Initiative. KATHLEEN FOLEY

n 11 November 2015, the CommBar Equitable junior litigator, I want that woman’.” Describing the Charter as Briefing Initiative was launched at the Federal remarkable, he urged every firm in Victoria to get out in front in OCourt of Australia in Melbourne. The launch relation to equitable briefing. Chief Justice Allsop of the Federal was the culmination of work over an 18-month period Court also spoke at the launch. He spoke of the reasons for the involving a collaboration between CommBar, the Victorian difficulties facing women in the profession, and in particular Equal Opportunity and Human Rights Commission and noted the blokey and sometimes aggressive atmosphere in the judiciary. courtrooms. The Chief Justice said it was the responsibility of As part of the initiative, members of the judiciary met everyone to drive this kind of mindset out of the courtroom. with senior members of the profession from private law The equitable briefing initiative, and the Charter, is firms, the government sector and the corporate sector in ground-breaking. CommBar is incredibly proud to have been two private workshops to discuss the underrepresentation a part of this initiative, and with the support of the Victorian of women barristers in commercial litigation, and what Bar, we look forward to other firms signing up to the Charter might be done to address the inequity. The workshops were in coming months. Particular thanks go to the working group facilitated by Kate Jenkins, Victoria’s Equal Opportunity and who developed the project and continue to work on it. The Human Rights Commissioner, and involved judges from the members of the working group were Justice Mortimer of the High Court of Australia, the Federal Court of Australia, the Federal Court, Justice Hollingworth of the Supreme Court, Supreme Court of Victoria (including the Court of Appeal) Kate Jenkins, Philip Crutchfield QC, Anna Robertson and and the County Court of Victoria. Kathleen Foley. As a result of the workshops, a Charter of Commitment was formulated. Signatories to the Charter have committed, over a three-year period, to six concrete actions aimed at achieving gender equality in commercial briefing. The Charter includes a target to brief in approximately equal proportion to the percentage of women practising in commercial work, both in terms of number of briefs and value of briefs. It includes a commitment to ensure that shortlists for clients include suitably qualified and experienced women barristers. There is also a commitment to collect and report relevant data on briefing to the Commission, every six months. The founding signatories to the Charter of Commitment are: • Arnold Bloch Leibler • Lander and Rogers • Australian Securities • Maddocks & Investments • Norton Rose Fulbright Commission • Slater + Gordon • Corrs Chambers • Telstra Westgarth • Victorian Government • Gilbert & Tobin Solicitors Office • K & L Gates Speaking at the launch, Chief Justice Warren noted the number of women judges in the various courts, and said that if firms want to do the best by their clients, it would maximise their clients’ interests to brief a diverse range of advocates. Justice Maxwell, President of the Court of Appeal, encouraged men in the profession to take action in relation to the issues facing women. He asked men to “push a little bit harder, and … make ourselves a bit unpopular by saying ‘as senior counsel or

30 VBN VBN 31 around town around

“A bit battered, but there it is”

The continuing story of the Silver Cigarette Case – Part II LUKE HOWSON

n 1895, one barrister gave another barrister a silver governments from killing his clients; Burnside’s was to keep cigarette case. The giver was Walter Colham; the receiver one government from sending his clients back to another who, IHerbert Bryant. Bryant received it with his name and the from time to time, would want to kill them. Both have had to year 1895 engraved. On 19 August 2015, Julian Burnside gave move community opinions, becoming the faces of public (and it to Julian McMahon. When McMahon got it, there were sometimes political) media campaigns: this is neither familiar – eight further engravings: Eugene Gorman 1924, John Barry nor, through the eyes of some, appropriate – for a barrister. 1935, John Nimmo 1962, Richard E McGarvie 1975, Frank Nevertheless, they both succeeded. Politicians hawking Vincent 1983, Dyson Hore-Lacy 1995, Julian Burnside 2005, fear and selfishness had calloused Australian sympathy. Julian McMahon 2015. Burnside and McMahon dissolved them; they reminded When handed to Bryant, it contained a handwritten note: us of their clients’ humanity. The term “illegal immigrant” “In recognition of your readiness to uphold the highest now elicits (sometimes) polite contempt; it is unthinkable traditions of an advocate and to appear without fee for that an Australian Minister, much less a Prime Minister, those unable otherwise to afford your services.” would now bay for an execution to be carried out, in any With one exception, all who have possessed it have upheld country, for any reason. those traditions. The exception will remain nameless: the thief who stole it from Justice Vincent left it unengraved. Julian Burnside AO QC Dyson Hore-Lacy SC lost it behind a volume of the VRs. As a barrister, Burnside is a minimalist. Everything gets distilled Although not usually a traditionalist, he did recognise the down until it is as simple as possible. He has a gentle manner but difference between breaking with a tradition and destroying a sharp mind. He practised almost exclusively in commercial law, one. Once he found it, he mounted the case within a perspex acting for such well-known rich people as Rose Porteous and box of a size not easily consumed by bookcases. Alan Bond. This is not why Hore-Lacy gave him the cigarette case. In the thorough feature article “The continuing story of the In 2001, the Australian government decided it was in the Silver Cigarette Case” at page 24 of Victorian Bar News 102 country’s interests to imprison people fleeing persecution (1997 Spring) the story ended with Justice Vincent handing it to “on the deck of a steel ship in the tropical sun”.1 Burnside Hore-Lacy. This is the story of the two Julians who followed. disagreed. He saw Tampa through from first instance to appeal. They share more than a name. Both have had to battle It permanently changed his career and life. governments, whether Australian, Singaporean or Indonesian. Since Tampa, Burnside has appeared in roughly 30 migration Both played for high stakes: McMahon’s battle was to keep cases, three in the High Court. It is hard to estimate how much

32 VBN VBN 33 around town

time he has spent, but easy to calculate up nearly nine years ago. At the end he the really smart people on the team how much money he has been paid: he worked long days, for months on end, were smart enough to make me do it.” has not received a cent. pro bono. Fighting for refugees both consumes Whatever the subject matter of a case, A continuing tradition and invigorates him. He is no longer he researches it deeply. That might mean The tradition of the silver cigarette case is purely a courtroom advocate, but the linguistics, the Koran, or Indonesian law now 120 years old. It is pleasing to observe chief prosecutor of the larger argument, and society. He is a long-term strategist. a ritual that is not the contrivance of a flying around the country to win over For most criminal defence barristers, this marketing committee, but an accident of packed audiences. For many years he means knowing what you want to get the deep-felt admiration of one barrister has housed families of refugees in his out of your cross-examination. For Julian for another. Justice Vincent speaks lovingly own home. About a decade ago he McMahon, it has meant knowing what of the tradition: became foster father to a refugee, now you want years from now. In Indonesia, It’s one that’s grown. It’s held for at university. there were many temptations to behave varying periods until the holder thinks If he is right to describe his work as reactively, angrily or manipulatively. It there’s someone to whom it’s passed “14 years of bashing away at it, going was McMahon who had the long-term on. It’s a bit battered, but there it is. backwards,” it is hard to imagine where vision and deep strategic thinking to say we would be without him. Although he “no” when it mattered. Justice Dixon organised a small informal recognises that attracting the enmity of When he received the cigarette case, ceremony for the handing over. The day government is “disturbing”, he “couldn’t McMahon said it was a shame there coincided with her Honour’s appointment give a rat’s.” wasn’t one for everyone on the team; it to the bench. It was well-attended, by is somewhat surprising he hasn’t cut it all living recipients of the silver cigarette Julian McMahon to pieces. He often said, “All of us are case (and Richard W McGarvie QC, As a criminal defence barrister, expendable. If one of us gets hit by a representing his father Justice Richard E McMahon is known for his courage. bus, another can take over.” He said it McGarvie), and by those on McMahon’s Burnside gave him the cigarette case for without irony. Everyone else knew who team. death penalty cases, most recently that the exception was. 1 Mark Dapin, “Julian Burnside: fighting of Myuran Sukumaran and Andrew Chan. McMahon did not invite fame, but the from the bar”, The Morning That was a fight he, and others, took team needed a media representative: “All Herald, 8 November 2014.

Our 3 principal lawyers, Wendy Jenkins, Paul Ross and Marita Bajinskis are Accredited Family Law Specialists. We provide expert legal advice regarding:

• Marriage and defacto relationships • Separation • Division of assets • Care of children • Child support and maintenance • Financial Agreements (pre-nuptial or cohabitation agreements) • International family law matters

Level 3, 224 Queen Street, Melbourne VIC 3000 T 03 8672 5222 www.blackwoodfamilylawyers.com.au Liability limited by a scheme approved under Professional Standards Legislation

32 VBN VBN 33 20131101 Vic Bar News Blackwood Family Lawyers.indd 1 11/1/2013 11:53:53 AM A dinner to mark the retirement of the around town around Honourable Susan Crennan AC QC

At a dinner on 8 September 2015 to mark the retirement of the Honourable Susan Crennan AC QC, Jeff Gleeson QC delivered the following speech.

our Excellency, honoured guests, Mensa members you think you need to do.” Or words to that effect. who passed the Bar exam and relieved pre-Bar exam Yes, she even swears beautifully. Yadmittees. Anyway, the judge was kind enough to indulge my Of course, it is tempting to start with the stats, but what sophomoric bout of dobbing and gave the grinning fisherman a great story ever started with statistics. mild rebuke and the case resumed. We won. By which I mean If you want the dates and details, you can look them up, to say, Sue’s client won and that meant that nothing I did could but can I cover the field by saying that Sue, who is otherwise have possibly resulted in my client losing. impeccably well mannered, has done everything there is to But the abalone case had a postscript. We were all invited by do in the law, a little earlier than is polite and a lot better than Sue’s client to celebrate his victory with a lunch at his sprawling is diplomatic. property on the Mornington Peninsula. I first met Sue when we were both in a case about abalone In a crass, boorish and thoroughly marvellous display of new fishermen. money, the abalone man showed us his shiny new helicopter. The judge was Justice David Harper. Sue said to me – perhaps He offered to take Sue on a quick jaunt around the peninsula once more than was strictly necessary – that she and David in the chopper. He was part Blackhawk pilot and part National Harper had fought it out for the Melbourne University contracts Park chopper pilot from Skippy the Kangaroo. Sue played the prize when they were at university. I don’t want to suggest breathless Clancy to his Jerry. She was unnerved just a little that Sue is intellectually competitive, but the flicker of a smile when he quipped before take off: “My grandfather always and then the delicious restraint exhibited by Sue when the used to say, ‘leave them wanting more’ – which is why he opportunity arose to correct his Honour on the statement of lost his job as a pilot.” principle from Carlill v Carbolic Smoke Ball Co was something Michael Crennan unsuccessfully urged her not to take the to behold. flight. But the lady was not for turning. Michael wandered off I understand that Sue has been appointed to every post for to a clump of moonah trees muttering that he would never which she has been considered in her long and distinguished understand why such a scholar of the law understood so career. Perhaps with the one exception when, as I understand little about reasonable foreseeability. it, she was narrowly edged out by Mary MacKillop. The chopper landed safely and I decided that this caper of But back to the abalone stoush. In this case Sue acted for winning in the Supreme Court was better fun than losing car the abalone licence holder. I acted for the abalone diver. Our crash cases in the Magistrates’ Court, so I set about devising clients had largely common interests and we worked together a plan to ingratiate myself with Sue and get some junior work. cooperatively and cohesively, by which I mean to say that I She seemed keenly interested in small babies, so I decided adopted every single syllable that she wrote or said for the to have one. That worked well. Sue arrived at our house with entirety of the trial. I tried to walk like her and affect her tone of flowers and teddy bears and the junior work flowed. So I voice and on day-three of the trial I may have worn mascara. decided to have two more, both at the same time, just to make At the end of day-four of the trial, I was leaving court with it perfectly clear that my enthusiasm for junior briefs had not my client when a witness for the other side, a salty old fishing diminished. There were more visits with flowers, teddy bears, type, muttered to my client that he would break his flipping legs. dolls, jigsaw puzzles and more junior briefs. We were up to four Or words to that effect. I felt a rush of righteous indignation children by this stage. My wife said “we have one more baby and reported the incident to Sue. I may have used the phrase and then you come up with another plan to get junior work”. “barbarians at the gate”. I self-censored the content a little, Nobody was more relieved than my wife when Sue was thinking the verbatim just a little too starchy for one so refined. appointed to the Federal Court. I used the euphemism. Sue, understandably, thought from my As I worked with Sue, I learned that she sprinkled her account that the witness had himself used the euphemism. She conversation effortlessly with foreign words. I spent six months appeared a little perplexed. I tried to explain, again protecting thinking that sotto voce was the softly spoken Spanish chap on her delicate ears from the true horror of what had been said, the 17th floor. but this time I said the word FLIPPING a little louder. I may have The biggest matter we worked on together was an arbitration used bunny ears. She shrugged and said “Oh flip Jeff, do what called Varnsdorf v Fletcher Construction. It was an epic and

34 VBN VBN 35 1 2 3 around town

4 5 1. Jeffery Gleeson QC 2. The Honourable Susan Crennan AC QC and Michael Crennan QC 3. Jennifer Batrouney QC and William Alstergren QC 4. Paul Conner; Anderew Maryniac Qc and Laura Crennan 5. Georgie Coleman; Daniel Crennan; Andrew Di Pasquale and Ben Gauntlett

Sue lifted her noble chin ever so slightly our long car while the guide had his own and waved regally. uncontained failure. It is not a myth that the operational records tendered later in the arbitration described the stoppage as protracted construction law dispute queue for a Star Trek movie. “Plant stopped by QC”. (now there’s a tautology). It was about So it was that we pulled into the car Varnsdorf had its moments in the turbines that had been installed in six of park of the Geelong hospital in the courts too. Our client called on the Victoria’s major hospitals. In the words of longest stretch limousine seen this side performance bond and Beaumont QC counsel for the respondent, John Digby of Surfers Paradise. Curious hospital staff (who is here tonight), and who acted (as he was then, and occasionally still and patients emerged to see who or what for the builder, thought the call on the is) these turbines routinely suffered an might step from this impossibly extended bond was outrageous, contumelious and “uncontained failure”. In the words of vehicle. Sue didn’t miss a beat. She lifted brazen. Then when he got before Byrne anyone else: they blew up. her noble chin ever so slightly and J he really spoke his mind. There were Anyway, prior to the commencement waved regally. four giants of the law in that matter: of the arbitration hearing it was decided Pane and I played the dutiful corgis Beaumont leading Pam Tate (a name that our legal team and the expert to her Elizabeth. approximating that with which she was witnesses needed to inspect these The site inspection went without christened and which still forms part of turbines. They were located at hospitals incident until at one point the entire her judicial title), Crennan leading me. in Dandenong, Ballarat and Geelong. It shuffling cavalcade of visitors found We had a collective height of 5 ft 11. We was decided that we should do them all themselves in the control room. The won and George self-combusted. in one day and that instead of trailing guide was droning on and Sue’s sense It went on appeal and Archibald around in separate cars we would all go of mischief got the better of her and replaced Beaumont, immediately in the one big, long car and then counsel she took the opportunity to utter the restoring a soporific calm to proceedings, and witnesses could confer while in words that are typically heard only in doubling the aggregate height of counsel transit. The entourage included Sue, me, jokes or bad disaster movies: “What but doing nothing to affect the outcome. her other junior Nick Pane, our instructor, does this button do?” Intending only The Full Court had some fire power: their a brace of articled clerks and more nerdy to point – she pressed. The operation Honours Charles, Batt and Callaway. looking engineers than you find in the shuddered to a halt and we hastened to They were ready to re-write the law on

34 VBN VBN 35 1 2 3 around town around

5 6 1. David Curtain QC; Andrew Bailey; Matthew Hooper 2. Her Excellency the Honourable Linda Dessau AM and Maree Cummins 3. Stewart Anderson QC and Dr Catherine Button 4. Kathleen Crennan; the Honourable Susan Crennan AC QC; Daniel Crennan; Laura Crennan; Michael Crennan QC 5.Spike Buchanan; Alexandra Folie and Brad Holmes 6. Tiphanie Acreman and Miguel Belmar Salaguy 7. Stephen O’Meara QC; Dr Steven Stern; Dr Richard Scheelings; Norman O’Bryan AM SC; Georgina Costello; Nicholas Pane QC; Andrew Woods and Philip Crennan.

performance bonds. Sue quieted their commended Sue’s fine judgments, novel and, like those worthy writers, pens. Her performance that day was particularly in the field of intellectual Michael realises the importance of spell-binding. In his judgment, when property, and described her as having preventing her slipping completely discussing a particularly satisfying piece oodles of common sense. into metaphor. of contractual symmetry, Callaway uses Justice Kiefel described Sue as a fellow Speaking of (as I was the wonderful phrase “the key was apt to foodie. She was confident that the two before, not during, my aside about magic fit the lock”. Sue gave him that line. I have Sues were the first of our High Court realism), I emailed him asking for any used it in every submission I have drafted justices to discuss their latest culinary anecdotes about Sue. But he didn’t email since, including at the AFL Tribunal and triumph and swap recipes (although back. Perhaps he overlooked it. the Greyhound Racing Board. I say it there she possibly overlooks the cordon If there is the slightest chink in the when ordering at a restaurant and when bleu power couple Ian “call me Heston” armour of perfection (and here I tread disciplining my children as they stare Callinan and Dyson aka “Marco Pierre” lightly), it may relate to her driving. into the middle distance. Heydon). Justice Kiefel said she noted One Friday evening Sue was driving out Just sometimes cases do turn on the longer period of time Sue had of the underground carpark in Owen the perfect phrase. Sue has a gift for had in lucrative private practice as, Dixon West when she manoeuvred the crafting that phrase. when preparing for a dinner party, Sue vehicle in such an ... idiosyncratic ... way In the interests of balance, I have disgorged the entire contents of a fine that the carpark gate closed behind her endeavoured to identify any shortcomings bottle of Burgundy into the coq au vin she and remained closed. Other occupants in Mrs Crennan’s reputation. I have inquired was preparing. It was, Justice Kiefel said, were unable to remove their cars for the across different courts, states, genders an astonishingly good coq au vin and she entire weekend. She received numerous and races. All were effusive in their praise was glad she had resisted the urge to letters of complaint from her colleagues, (which was mildly surprising as this is a wrench the bottle from Sue’s hands but two letters of thanks. One was from tendency that is typically – and I’m sure in the kitchen. Archibald, who asked her to repeat the coincidentally – more pronounced when a Cooking remains Sue’s love. She task the following weekend as he had judge is welcomed than it is when mixes basil, tamarind, mace, galangal, three appeals and two trials commencing they retire). cardamom, fenugreek seeds, oxtails and on the Monday and another weekend in Merralls QC, who distributes praise chickens. On a weekend she is like the chambers would suit him perfectly. The with the frugality of a legal aid funder, heroine from some Latin “magic realism” other was from Middleton (as his Honour

36 VBN VBN 37 4 around town

metaphysical continued. I considered the writings of that noted jurist Woody Allen and thought, “What if everything is an illusion and we do not exist? In that case I am definitely paying too much for chambers.” In the moments before commencing my submissions, I became bizarrely distracted by the thought that I was going to commit that sin of advocacy 7 that reveals both misogyny and, worse, ignorance of the judiciary: that I would refer, when citing an authority, to a female judge as “his Honour” or vice versa. In my scrambled state I concluded that the vice versa was the lesser evil and proceeded to refer to every judge I quoted as her Honour. I had also recently been impressed, when opposed to Joe Santamaria (as he never was and certainly isn’t now), by his casual use of the judicial first name: “his Honour Sir ”; “Master of the Rolls Sir George Jessel”. I launched into my submissions and observed Sue look down with mute then was, at least before midday), who your submissions, stridently demanding horror as I think I may have referred was glad of the better excuse than usual further and better particulars. manically to decisions from Her Honour for not being able to drive his car home Given the content of some of tonight’s Betty Ormiston and her Honour Dame on a Friday. speech I take the opportunity to remind Gwenda Barwick. One of the first cases Sue heard Sue of her very sound reasoning in the I am eternally grateful for her gentle after commencing on the High Court in notorious High Court matter of Monis interjection: “Mr Gleeson, we are familiar November 2005 was Harriton v Stevens. v The Queen. It was a case dealing with with those authorities and with those The question before the court was the meaning of the word “offensive”. In who authored the judgments.” With her whether losing the opportunity to not a joint judgment, redolent with brilliant marvellous insight into human frailty and exist as a human being could constitute logic and radiant common sense, Justices understanding that submissions about damage recognised at law. This from Crennan, Kiefel and Bell held that the legislative provisions don’t require the Justice Crennan in her first single word offensive should not be mildly use of personal pronouns, she smiled judgment in the High Court: construed. Hear hear. and said “What do you say about s 13 I had the good fortune to appear before of the Act?” “A comparison between a life with her Honour in the High Court at a couple I wanted to end with a joke about disabilities and non-existence, for the of special leave applications and one full feminism, but her Honour Justice purposes of proving actual damage appeal in Canberra. Gordon wouldn’t let me. and having a trier of fact apprehend In the moments prior to the appeal I Instead I will say this: Sue, you are the nature of the damage caused, is was nervous. How nervous was I? What a brilliant lawyer and were a brilliant impossible. is an after-dinner speech without a ham- judge. You are living proof that you can There is no present field of human fisted simile … I was as nervous as the be both those things as well as a kind, learning or discourse, including ABC employee checking twitter feeds on compassionate, warm and funny human philosophy and theology, which would Q&A. being. I would like to add forgiving to that allow a person experiential access to My mind turned to earlier High Court list of attributes, but we shall see. non-existence, whether it is called pre- judgments. But unhappily none of them Sue – as you then were, still are and existence or afterlife.” had anything to do with the case at forever will be – we congratulate you on hand. I thought of Harriton v Stevens and your outstanding judicial career. And Reflect on that when you next draft craved non-existence. My drift to the welcome back from all of us.

36 VBN VBN 37 Thriving in an increasingly complex legal world around town around Victorian Bar and Law Institute of Victoria conference 2015. JUSTIN HOOPER AND MIN GUO

he second Victorian Bar and Law Institute of Victoria joint conference was held at the Melbourne Cricket Ground Ton 9 October 2015. The conference was a great success and doubtless provided much food for thought for the many barristers, solicitors, in-house counsel and other attendees. The conference took a similar format to the 2014 conference. This year’s theme was ‘thriving in an increasingly complex legal world’. There were five separate sessions on diverse topics. The day began with the President of the Bar Council, Jim Peters QC, and the President of the LIV, Katie Miller, discussing complexities in the modern legal world and the opportunities they will bring, especially as we continue into the ‘Asian Century’. The Federal Attorney-General, Senator the Honourable risks associated with legal process outsourcing, namely George Brandis QC, gave the keynote address. The Attorney- conflicts, quality of work and confidentiality. Owain Stone General focused on opportunities for practitioners arising (KordaMentha) gave examples of the quantum leaps in from free trade agreements that liberalise the profession efficiency generated by the latest technology-assisted in our region. He mentioned India, particularly, as a source document review and predictive coding software. of new opportunities. Next, Dr John Marsden (Economist) discussed the Chief Justice Warren chaired a panel comprising President opportunities and challenges for Australian legal services Maxwell, Justices Jack Forrest, Hollingworth and Judd and engaging Asia. Justice Croft of the Supreme Court said it was Associate Justice Derham. Their Honours discussed new trends vital for corporate counsel to promote Melbourne and Sydney in Supreme Court litigation, including greater case management as cost-competitive alternatives to Hong Kong and Singapore in civil and criminal proceedings and the benefits of (and need for international arbitration. Bronwyn Lincoln (Herbert Smith for) judicial mediation. Freehills) suggested that Australia’s competitive edge might be Next was a lively debate about ‘law, duty and morality’. The in promoting the strength of its case management processes. participants were Justice Jonathan Beach of the Federal Court, Reynah Tang (Johnson Winter & Slattery) and William Lye Helen Symon QC, Michael Wyles QC, Tony Troiani (King & of counsel spoke of the benefits of employing Asia-literate Wood Mallesons), Melinda Mulroney (IAG), Professor Carolyn Australian-based lawyers with established networks and Evans () and Nicole Ryan-Green connections to Asia. (Clayton Utz). Each participant offered a different and insightful The final panel session was a discussion led by Michael perspective into this thorny topic. O’Bryan QC about consumer and competition law, class actions The third session, ‘litigation as a regulatory tool’, was chaired and contingency fees. The panel discussed proposed reforms by Norman O’Bryan SC. Chief Justice James Allsop (Federal recommended by the Harper Competition Policy Review. The Court) referred to the challenges associated with pleadings audience obtained insights from Justice Middleton of the in ‘values-based’ regulation. Michael Kingston (ASIC) and Federal Court and other expert commentary from litigators Wendy Peter (ACCC) each discussed the role of litigation in the practising in the competition area, including David Brewster regulators’ respective enforcement pyramids; Janet Whiting (Allens), Daniel Marquet (Corrs Chambers Westgarth) and Ben (Gilbert + Tobin) offered her perspectives; Caroline Cox Phi (Slater & Gordon). (BHP) discussed deferred prosecution agreements. The panel The Victorian Attorney-General, the Honourable Martin concluded by discussing the recent Fair Work v CFMEU [2015] Pakula MP, closed the conference. He identified and reflected on FCAFC 59 decision relating to parties agreeing penalties. the trends currently shaping the profession in Victoria. After lunch, Matt Connock QC led a discussion about One is accustomed to blockbuster events at the “G” and the electronic trials. Justice Elliott, the Supreme Court’s organisers of this conference did not let the spectators down. technology judge, noted recent technological developments The presence of the Commonwealth and State attorneys- in the Supreme Court but also spoke of the need for the general to open and close the event speaks volumes for its Court to hasten slowly because technology still has a way significance on the legal calendar, and each of the panel to go before it meets the requirements of in-court work. sessions demonstrated why that is the case. The organisers, Peter Cash (Norton Rose Fulbright), Alex Wolff (Baker & participants and attendees are to be congratulated on an McKenzie) and Andrew Harpur (Ashurst) discussed the overwhelming success.

38 VBN VBN 39 around town

BACK ROW: Stuart Wood QC (coach), Richard Clancy, Andrew Denton, Stephen Sharpley QC (GK), Morgan Brown, Rob O’Neill FRONT: Mark Batrouney, James Batrouney, Will Crozier, Hamish Jones, F John Morgan, Ross Gordon ABSENT: Andrew Robinson Bar v LIV hockey match report

The 32nd annual Barristers v Solicitors hockey match was held on 22 October 2015 at the State Netball Hockey Centre. MORGAN BROWN

he LIV team prepared for the match with a gruelling Stephen Sharpley QC was silky smooth in goals (geddit?) six-week altitude training camp led by Ric Charlesworth assisted by team stalwart Rob O’Neill in defence. Ross Gordon Tand that guy from The Biggest Loser. In comparison, and Andrew Robinson were Dwyer-like in attack, ably supported the Barristers’ team relied on a certain sunny optimism and by John Morgan and the Bar progeny Batrouney x 2 and Jones. the knowledge that we had managed to rope in some of the As for Andrew Denton, don’t be fooled by the glasses and the more senior members’ progeny to play. With a game plan that respectable VicBar profile, the man is a ruthless killing machine; included “score more goals than they do”, the team felt destined albeit a very polite one. to succeed. Big shout out to ex-MUHC legend Stuart Wood QC for Well. coaching, with a style equal parts Sheedy cunning and Cheika The best one might offer on behalf of the Bar team is that understatedness. they achieved a moral victory, rather than an actual victory. Despite the score (which no one can remember) it ‘Pantsing’, ‘hiding’, ‘complete annihilation’ are also phrases, was, as usual, a hard fought game played in good spirits. which, perhaps, shouldn’t be ruled out. But that’s only if you Congratulations to the LIV team for the win, but look out, were paying attention to the scoreboard. Trivial details really. 2016 will be the year of the comeback.

38 VBN VBN 39 LEFT TO RIGHT: The Hon Justice Ross Robson (Justice of the Victorian Supreme Court), Caroline Kenny QC (CIArb Centenary Chair), The Hon Murray Gleeson AC, Albert Monichino QC (CIArb Australia President), The Hon Stephen Charles QC, The Hon Peter Heerey AM QC (former Federal Court Justice); Professor Doug Jones AO (CIArb Global President 2011) News ViewsAND

Evidence in international commercial arbitration: some issues

MURRAY GLEESON*

he UNCITRAL Model Law on is used in the IBA Rules on the Taking of Evidence in International Commercial Arbitration, International Arbitrations and in the rules of some which is given force in Australia by the arbitral institutions. The ICC Rules of Arbitration require International Arbitration Act 1974 (Cth) the tribunal “to establish the facts of the case by all does not have much to say on the subject appropriate means”. of evidence. Article 18 provides that each There is deliberate lack of specificity upon a topic which, party shall be given a full opportunity of presenting his in an Australian commercial court, is the subject of elaborate case. Article 19 provides: rules sourced in legislation and common law and which is often the occasion of disputes in the course of conduct 19 (1) Subject to the provisions of this law, the parties are of a trial. Legal cultures have different approaches to the free to agree on the procedure to be followed by the role of a fact-finder in a process of dispute resolution. The Tarbitral tribunal in conducting the proceedings. common law tradition assumes an adversarial process in (2) Failing such agreement, the arbitral tribunal may, which the parties present such information as they seek subject to the provisions of this law, conduct the to rely upon, and there are laws of evidence which, in the arbitration in such manner as it considers appropriate. event of dispute, bind the court as to what information will The power conferred upon the tribunal incudes the be received and what must or may be rejected. In the civil power to determine the admissibility, relevance, law tradition there are, of course, principles and rules that materiality and weight of any evidence. guide the judge in making decisions of fact, but the common law technique does not apply. As between common law The formula used in the concluding sentence is repeated jurisdictions themselves, the rules of evidence vary. In an in the UNCITRAL Arbitration Rules and similar language international commercial arbitration where the hearing

40 VBN news and views

takes place in Australia and the law Wrongful admission of evidence can cause confusion, of the arbitration is Australian law, it expense and delay, and wrongful exclusion of evidence may be that the arbitrators are from can cause unfairness. different backgrounds of legal culture. It may also be that, in the case of a admissibility, relevance and turn may raise questions of weight contractual dispute, the governing law materiality, but they are not three or importance. The Australian law of the contract is that of some other entirely separate concepts. It also of evidence sometimes calls for a jurisdiction. It would be unsafe to refers to weight. weighing of what is referred to as assume that disputes about evidence The laws or rules of evidence probative value. It appears to be will be resolved in the same way as in that apply in court proceedings that a concept akin to probative the Supreme Court of one of the States, are of varying kinds. The basic value is what is in mind. It may be or the Federal Court. This affects the principle in Australian law is that contemplated, for example, that an preparation as well as the conduct of information that is not relevant to arbitral tribunal may exclude evidence the hearing. an issue at trial is not to be received; of slight probative value, or marginal In the days when many civil information that is relevant to an significance, if its reception would cases were tried by jury, judges and issue is to be received unless some give rise to disproportionate cost and advocates were required to have exclusionary rule requires otherwise. delay. That would be consistent with considerable facility in dealing with The Evidence Act 1995 (Cth) defines general statements in arbitral rules objections to evidence. Juries could relevant evidence as evidence that, as to the tribunal’s capacity to control not be expected to retire from the if accepted, could rationally affect the proceedings. It would also be courtroom every time an objection (directly or indirectly) the assessment consistent with the power to exclude was taken, and arguments had to be of the probability of the existence material from a requirement for put, and rulings given, briefly and of a fact in issue in the proceedings. production if that would involve an promptly. Some judges would not One example of an exclusionary rule unreasonable burden. In some cases permit any extended argument. The is the rule against hearsay. Another the consideration of reasonableness consequence of a serious error in is what is sometimes called the would involve an assessment of the a ruling on admissibility could be best evidence rule. Some grounds potential importance of the material a mistrial. Nowadays there are few for exclusion may be discretionary to the outcome of the case, and civil juries, and little harm may be rather than mandatory. Evidence measuring that against the expense or done in a civil case by the reception may also be excluded on the basis of difficulty associated with production. of evidence which a judge ultimately considerations of legal policy, such The IBA Rules of Evidence concludes was inadmissible. Even so, as legal professional privilege or also identify, as specific grounds wrongful admission of evidence can confidentiality. Some exclusionary of exclusion, legal professional cause confusion, expense and delay, rules relate to form rather than privilege, compelling commercial and wrongful exclusion of evidence content. Ultimately, the weight to or technical confidentiality, special can cause unfairness. be given to the information that political or institutional sensitivity, or In an arbitration, the most is received is a matter for the compelling considerations of fairness obvious risk attending exclusion judgement of the tribunal of fact. or equality. With the exception of of evidence is that a party may be The IBA Rules on the Taking of legal professional privilege, the denied an opportunity to present Evidence in International Commercial grounds of exclusion referred to its case. Arbitrators may be unlikely Arbitration, which may or may not in the IBA Rules are discretionary to be prejudiced by evidence they apply in a particular case depending rather than categorical. ultimately conclude to have been upon the arbitration agreement, say The English Arbitration Act 1996, inadmissible. There is, therefore, that the arbitral tribunal shall, at in s 34, reflects the traditional some practical pressure, in cases the request of a party or of its own approach to evidence in arbitration of doubt, towards generosity. motion, exclude from evidence (or by providing that it shall be for the Nevertheless, considerations of both a requirement for production) any tribunal to decide all procedural and fairness and efficiency mean that document or oral testimony for the evidential matters, subject to the right arbitrators cannot simply let in, over reason of lack of sufficient relevance of the parties to agree on any matter. the objection of one party, everything or materiality. The word “sufficient” in This power is said to include a power the other party wants the arbitrator the context of relevance is interesting. to decide whether to apply strict rules to know. If one party is permitted to Relevance is not ordinarily regarded of evidence as to the admissibility, introduce material that is irrelevant, as a matter of degree. Perhaps the relevance or weight of any material. for example, the other party may be word is intended, primarily, to qualify The obligation of fairness which obliged to pursue a false issue. materiality, and perhaps that in governs a tribunal’s exercise of its The Model Law refers to

40 VBN VBN 41 Sometimes, while reserving their respective legal intention of whatever person or body positions, both parties will engage in an exchange was or is deemed to be the author of the instrument”. news and views news of evidence of doubtful relevance and leave it to the The rationale for this objective tribunal to decide the question approach was explained by Lord Devlin, writing extra-judicially, powers and discretions is likely, in the relevance of evidence at the time by reference to the commercial its practical application, to be fact- it is adduced. An assurance by counsel orientation of the common law of specific. When one party objects to that he or she will make relevance contract. He said: certain evidence which is accepted to apparent at a future point is often If a man minded only about keeping be relevant, invoking some available accepted as a basis for provisional faith, the spirit of the contract would be ground of exclusion, such as one of acceptance of material. more important than the letter. But in the grounds stated in the IBA Rules or One of the useful disciplines resulting the service of commerce the letter is in some ground based on a requirement from the process of criminal or civil many ways the more significant. This is of the applicable law, a question trial by jury was that the trial judge, because in most commercial contracts may arise as to how and when the when material was received, was many more than the original parties are objection is to be resolved. Sometimes required to think about what was concerned. The contract is embodied the parties agree to the reception of ultimately to be said to the jurors in a document which may pass from the material subject to objection, so about the use they could make of such hand to hand when the goods it that the tribunal can deal with the material. represents are sold over and over matter in its award. However, the An issue as to admissibility of again to a string of buyers, or when parties, or one of them, may reasonably evidence that commonly arises in money is borrowed on it, or insurances require to know, before the evidence international commercial arbitrations arranged . . . For the common law, the is completed, or before closing concerns the use that can be made sanctity of the contract means the arguments, how a particular objection of pre-contract negotiations for the sanctity of the written word in the form has been dealt with. The reasoning in purpose of contractual interpretation. in which it is ultimately enshrined. the award may need to show how the The law of Australia, which is Normally, evidence is not admissible evidence has been treated. substantially the same as English law, of conversations and correspondence Where an objection to evidence is materially different from that of civil leading up to the contract; they cannot is made upon the basis that it is law jurisdictions. be used to amplify or modify the final irrelevant, then, possibly depending Although the principle that is document. The document must speak upon the agreement of the parties, applied by Australian law is sometimes for itself. For the common law has its it may be necessary to deal with the expressed as though it were an eye fixed as closely on the third man objection when it is taken. This, of exclusionary rule, the question is as on the original parties; and the final course, involves a risk. Because there properly regarded as one of relevance. document is the only thing that can may be little likelihood of practical It is to be determined according to the speak to the third man.2 harm from the reception of immaterial governing law of the contract. evidence, and because they have a According to Australian law, and the Some of this language is reminiscent common interest in avoiding failure common law generally, the meaning of the concept of merger. Where the of the process on technical grounds, of a written contract is determined parties, perhaps after a protracted parties often agree to postpone objectively. The document means process of negotiation, express argument and decision on such an what a reasonable person, having the their agreement in a formal written objection. Sometimes, however, a party background knowledge available to document, their individual purposes will force the issue, perhaps because the parties in the situation at the time merge in the text of the instrument. a decision to receive the evidence will of the contract, would understand It is not unusual for this to be affect the future conduct of its own it to mean. Here, as in other areas reinforced by an express provision case. Sometimes, while reserving their of the law, the reasonable person is that the document contains the entire respective legal positions, both parties invoked in order to de-personalise agreement of the parties. This is not will engage in an exchange of evidence the issue. Lord Hoffmann pointed mere boilerplate. It serves a purpose of doubtful relevance and leave it to out in Attorney-General of Belize v which is normally fundamental to the the tribunal to decide the question, if Belize Telecom Ltd1 that the objective exercise in which the parties engage necessary, in its award. meaning of a legal instrument, that is, when they take the trouble to reduce It should also be noted that, even in the meaning which it would convey to their agreement to writing. If, as often court proceedings where strict rules a reasonable person, “is conventionally happens, the agreement is a bankable of evidence apply, including criminal called the intention of the parties, or document, intended to be shown trials, it is not always possible to decide the intention of Parliament, or the to, or relied upon by, for example,

42 VBN news and views

financiers or other investors, what The contrast with the common law relevant. can those third parties know of the approach is evident. To return to the At the level of contractual exchanges in the course of drafting common law, pre-contract exchanges interpretation, plainly there is a the contract? The text is to be sometimes contain information difference between what a contract construed in the light of the purpose about facts and circumstances in the means and what somebody involved and object of the transaction, but contemplation of the parties, which in the drafting process believes it that is not the same thing as the is relevant, on an objective approach, to mean. Logically, there is also a subjective intentions or wishes or to the meaning of the contract. This difference between what a contract expectations of the parties, which are assists what has been called, in a means and what everybody involved superseded by, and merged in, the slightly different area, informed in the drafting process believes it to contract in its final form. interpretation. Many commercial mean. The law of mistake assumes This is not the same approach contracts would be wholly or partially that both parties to a contract can as that taken in some other legal incomprehensible to a reader share the same erroneous view as to systems where, if a common unacquainted with aspects of the what it provides and, in appropriate subjective intention can be context, or what advocates, adopting circumstances, will order rectification. established, it controls the meaning a phrase used by Lord Wilberforce, There is also a potential issue of of the contract; the objective call the matrix of facts. In order to agency and contractual capacity. approach is a kind of default understand the object and purpose Suppose, after a process of negotiation, option to be adopted when there of a transaction, or some aspect of a complex written contract is entered is insufficient information about a transaction, it is often necessary into between a bank and an insurance the state of mind of the parties. to be aware of matters of context or company. Suppose the drafts are The United Nations Convention on background, and these sometimes prepared by in-house lawyers on Contracts for the International Sale of appear from pre-contract exchanges both sides. Those lawyers are not Goods, the Vienna Sales Convention, between the parties, as well as from themselves parties to the contract, and has been ratified by Australia. It other sources. they almost certainly have no authority could well apply to an international The kind of pre-contract exchange to bind their employers contractually. commercial arbitration involving a that sometimes presents an advocate Identifying their subjective beliefs with contract governed by Australian law. with an irresistible temptation is a the intentions of the parties may be a Article 8 provides: communication, in a drafting exercise, process of doubtful legitimacy. about the meaning of some language Furthermore, to return to a point (1) For the purposes of this Convention that is under consideration. These made earlier, if the final product statements made by and other communications rarely occur between of their labours, executed by the conduct of a party are to be the actual parties to the contract, who appropriate signatories, is to be used interpreted according to his intent are typically corporations, or between for the purposes of third parties, such where the other party knew or could people who have the capacity to bind a as investors, what will those third not have been unaware what that corporate party to a contract. They are parties know about what was going intent was. far more likely to be between in-house on inside the minds of the in-house or external lawyers than between the lawyers? (2) If the preceding paragraph is not people who will ultimately sign the Because relevance is determined applicable, statements made by contract on behalf of the respective by the nature of the issues that an and other conduct of a party are parties. What is the legal relevance of arbitral tribunal is required to decide, to be interpreted according to the information that a lawyer acting for it is not unknown for advocates to understanding that a reasonable one of the parties in a drafting exercise raise otherwise unmeritorious issues person of the same kind as the believed that certain words in a draft in order to justify the reception of other party would have had in the bore a certain meaning, or that his evidence which it is hoped might same circumstances. or her opposite member shared the have some useful prejudicial effect. (3) In determining the intent of a party same belief? The answer depends on Ultimately, however, the tribunal or the understanding a reasonable the issues in the case. On a question will have to decide for itself what person would have had, due of construction of the final document, use may properly be made of such consideration is to be given to all the answer is likely to be that the evidence, and the answer may be that, relevant circumstances of the case information is irrelevant. However, consistently with the law governing the including the negotiations, any if there is an issue as to estoppel, or interpretation of the contract, there is practices which the parties have mistake, or misleading and deceptive none. established between themselves, conduct, or some other topic that may In aid of what they contend to be an usages and any subsequent turn upon subjective intention or informed interpretation of a contract, conduct of the parties. knowledge, the information may be parties sometimes attempt to provide

42 VBN VBN 43 a tribunal with the benefit of opinion be a necessary aid to an informed most common arbitrations in which evidence concerning the meaning of a understanding of the text. On that basis Sydney barristers appeared arose out contract. This brings me to the subject it may be relevant and admissible. of building or construction disputes news and views news of expert evidence, which can raise Expert witnesses may also give and the arbitrators were likely to be various issues as to admissibility. opinion evidence provided certain engineers, architects or builders. It is Under Australian law, the meaning conditions are fulfilled. First, the still not unusual to see an arbitration of a legal instrument, including a subject matter of the opinion must clause that specifies that an arbitrator commercial contract, is a question of be relevant. Secondly, the topic must must have a certain kind of commercial law, not of fact. Facts may be relevant be one which is properly the subject background. to a decision about the issue, but it is a of specialised knowledge. Thirdly, the The first arbitration in which I legal issue. witness must be suitably qualified appeared as a very junior barrister The distinction between issues in that topic. Fourthly, the evidence concerned a major construction of law and of fact was important in must be given in a form that makes project. The parties were a government trials by jury because it separated the it possible to distinguish between agency and the local subsidiary of a functions of the judge and the jury. the witness’s expert opinion, and the foreign corporation. The sole arbitrator Issues of law were for the judge and assumed facts upon which that opinion was a distinguished retired engineer, issues of fact were for the jury. The is based. who was very experienced in the distinction is also important for other Both litigation and arbitration administration of contracts such as purposes, including potential judicial can present notorious difficulties in that in question. I am sure he was review of arbitral awards. An error in confining expert testimony within chosen by the parties because they contractual interpretation is an error its proper bounds. Experts are often, both thought he was likely to deal with of law. understandably, reluctant to submit questions about the meaning of that Arbitrators do not receive expert to what they regard as inappropriate kind of contract at least as satisfactorily evidence from lawyers about questions constraints imposed upon them by as any lawyer. They were probably of local law. (The content of foreign lawyers when they express their right. law is treated as a question of fact, opinions. Furthermore, the manner in I referred earlier to the concept of and expert evidence on that subject which such testimony is taken, perhaps informed interpretation. When applied may be relevant and admissible. That, involving pre-hearing conferences to the meaning of a commercial however, is a different topic and may between the experts on opposing sides, contract, the distinction between fact be put to one side.) In particular, where simultaneous evidence at the hearing, and law can be somewhat artificial, the governing law of a contract is and even questioning of each other by especially where the subject matter of Australian law, a party could not tender the witnesses, may promote a degree the contract is one involving specialist evidence of an expert in Australian law of informality and may encourage knowledge and expertise. Moreover, as to his or her opinion of the meaning experts to express themselves in a there are areas of expertise, of which of the contract. Questions of Australian manner that takes them beyond their accountancy is an obvious example, law are matters for argument, not strict roles. When the expert evidence where the dividing line between a legal opinion evidence, although evidence concerns matters bearing upon the opinion and another kind of opinion is of relevant facts, which could include interpretation of a contract, some blurred. matters of expert opinion, may have expert engineers or architects or The main thing is that the tribunal a bearing upon the application of financiers will have no hesitation in and counsel, and, so far as possible, the law. However, although it would telling the tribunal what they think the the witnesses understand and accept never occur to advocates to seek to contract means, even though an expert that it is for the tribunal to decide all lead evidence from expert Australian lawyer could not do the same thing. issues of law, including the meaning of lawyers as to the meaning of a contract, It may be difficult for the lawyers to the contract. The problem of experts they sometimes attempt to lead such persuade them that the meaning of a going beyond their field of expertise evidence from experts in other fields. contract is a matter of law and that a and telling a court or tribunal how Expert witnesses sometimes give tribunal does not receive evidence on they would decide the case is not evidence of facts which may be questions of law even from a lawyer, limited to commercial arbitrations, material to an understanding of a much less from someone whose and is probably ineradicable. Cases commercial contract. For example, expertise lies elsewhere. can develop into battles of the experts, a complex building or construction Historically, many arbitrations and, to put it bluntly, some witnesses contract is very likely to contain were conducted in a way that made may be enthusiastic and skilful provisions which would mean nothing them hard to distinguish from expert advocates. This is a well-known risk to someone unacquainted with determinations. Arbitrators were often at criminal trials before juries, but it technical information, and expert chosen for their expertise in fields can also affect proceedings before evidence of technical matters may other than law. Fifty years ago, the judges and arbitrators. Modern rules

44 VBN news and views

commonly require experts to conform Modern rules commonly require experts to conform to obligations of impartiality but it to obligations of impartiality but it is impossible to is impossible to legislate against legislate against human nature. human nature. If experts are required to state fully their reasons for their feel the need of further information. he was overseas, then if such evidence opinions, to identify the boundaries of The risk is that a decision-maker may is tendered to prove as a fact that the their expertise, and to separate their regard himself or herself as informed husband was not in Melbourne, it is opinions from assumed facts, it will from sources outside the evidence in hearsay. If, however, the witness is a usually become apparent when they the case, and counsel may not have process server and the evidence is are going beyond their proper role. an opportunity to deal with this, and tendered to prove that an enquiry was Normally, it is to be hoped that, if this perhaps correct a misapprehension or made, rather than to prove the truth of is not apparent from their evidence-in- add some countervailing consideration. the answer, then it is direct evidence. chief, it will be brought out in cross- A much-talking arbitrator may be, like Often, hearsay is unreliable examination, or at least in argument. the judicial counterpart, an ill-tuned and it may be unfair to receive An aspect of contractual cymbal, but the silent ones can also be it because it cannot be tested. In interpretation that straddles the a danger. some circumstances, however, it evidentiary issues I have been The principal focus of this paper has is reliable and it is not unfair to discussing is the legal aspiration to been relevance. In court proceedings, receive it. Business records provide understand the commercial rationale what are commonly described as rules a well-known example, and in most of a contract, and, so far as it can be of evidence, or exclusionary rules, Australian jurisdictions are covered by done consistently with the paramount apply by hypothesis to information legislation permitting them to be used importance of the text, to prefer a that is relevant. If it were not relevant, in court proceedings, subject to certain commercially sensible interpretation there would be no occasion to consider conditions. to one that produces results that are any other matter. Relevant evidence In some other legal systems, there is not commercially sensible. This is not may be excluded on grounds of no rule of admissibility that excludes an invitation to courts or tribunals form or substance. Considerations of hearsay, but the same practical result to tell people how they should run form may include hearsay, the best arises from insistence on something their businesses. However, it is a evidence rules, and matters concerning like a best evidence requirement: if consideration that may legitimately documentary material. Consideration primary evidence of a fact is available, inform the choice of arbitrators and the of substance may include legal secondary evidence will not do. content of evidence. The commercial professional privilege, confidentiality, In an arbitration, considerations of rationale of a contract, or part of a or statements made without prejudice. rationality and fairness may dictate an contract, may be far from self-evident. Subject to the rules governing the approach not much different from that Often the competing views are left at particular arbitration, these rules which is taken in a court. the level of assertion by counsel in of evidence are unlikely to be of Arbitral tribunals, like courts, argument, but this may be insufficient. direct application in an international are reluctant to allow the outcome A danger is that a tribunal may commercial arbitration. It should be of a civil dispute to be dictated by feel that its understanding of such kept in mind, however, that they are technicalities of evidence. At the same an issue is informed, not by evidence not arbitrary; they are based on judicial time, questions of cost efficiency or argument, but by some prior experience and principles of rationality and, of course, fairness may require or superior level of knowledge or and fairness. Rationality and fairness appropriate control over the material experience that is never revealed ought to guide arbitral proceedings as adduced by the parties and, in to the parties. Information which well, and it is therefore not unlikely particular, attention to relevance. a tribunal thinks it knows may be that, where there is an objection to * The Hon Murray Gleeson AC is a incomplete, or wrong. A tribunal may evidence, the same practical outcome former Chief Justice of the High Court have a view about what is a sensible may result, even though the rubric of Australia, a Companion of ClArb and Patron of ClArb Australia. This or rational outcome, which is ill- under which a ruling is made may be paper was delivered at an event on conceived and has never been put to different. 23 June 2015 hosted by the Victorian the parties to be tested. The obligation An example of such an outcome Chapter of the Chartered Institute of Arbitrators (Australia) to celebrate the to give a fair hearing requires that may be hearsay evidence. Whether centenary of the Chartered Institute of parties have an opportunity to information is hearsay may depend Arbitrators know and to debate, if they wish, upon the purpose for which a party 1. [2009] UK PC 10 at [16]. considerations not covered by the seeks to use it. If a witness says that 2. Patrick Devlin, The Enforcement of evidence which a tribunal regards she knocked on a door, and the door Morals, (1965) at 44. as influential. Most decision-makers was opened by a woman who, when will readily inform counsel if they asked where her husband was, said

44 VBN VBN 45 news and views 46 VBN news and views Champion of change

An interview with the President of the Court of Appeal. GEORGINA COSTELLO AND NATALIE HICKEY

t his welcome speech in July propelled the concept of a Court of Appeal in the first place. 2005, new Court of Appeal Stephen Charles later became a leading member of the President Chris Maxwell Court of Appeal.1 nominated his “first and most His Honour describes the contribution to the Court of urgent project” to be reducing his predecessor, founding President John Winneke, as delays in the hearing of appeals. Ten years on, the “outstanding”, saying that “nothing done in the second dramatic reduction in delays in the Court of Appeal, decade would have been possible without the firm particularly in criminal appeals, shows the President to be foundations laid in the first decade”. Justice Maxwell a Aman of action and a man of his word. The median time observes that: to finalise criminal appeals has effectively halved, from the Court in its first 10 years had to start from scratch, convince 12.5 months in 2010/2011 to 6.2 months in 2015. doubters that a Court of Appeal was a good idea, develop a At university, Justice Maxwell was an outstanding whole range of new procedures, and work really hard with scholar and athlete. While studying at the University of fewer resources than the Court now enjoys. Melbourne, he played A-grade amateur football for the Uni Blues and received a full blue. As a 1975 Rhodes Scholar, His Honour describes a “real sense of continuity” with the he completed a B. Phil at Oxford. He qualified for the work of the early appellate judges and feels that he is “the English Bar and practised briefly there before returning to custodian of responsibility for a division of the Supreme Melbourne in 1979. After 18 months as a solicitor, he became Court.” a legal adviser and speech writer for Gareth Evans, who was Justice Maxwell received a Companion of the Order then the shadow Attorney-General for the Commonwealth. of Australia in the Queen’s Birthday honours in June When Labor won the 1983 election, Gareth Evans was 2015 for “eminent service to the law and to the judiciary, appointed Attorney-General. Justice Maxwell worked as particularly administrative reform of the appeals process, his chief-of-staff in 1983–84, before signing the Bar Roll in through contributions to legal education and professional November 1984. Justice Maxwell read with development, and as a leading supporter of human and Ross Robson, and took silk in 1998. rights and civil liberties”. Justice Maxwell sees himself Whilst at the Bar, Justice Maxwell was President of as “fortunate to have arrived at the Court at a time when, Liberty Victoria for two years and appeared with Julian under Chief Justice Warren’s leadership, the winds of Burnside QC in the Tampa refugee case. His practice at change were beginning to blow”. the Bar was mainly in tax and public law. He is married to He describes Chief Justice Warren’s leadership of the Sarah Stephen, who works as a senior public servant and Supreme Court as “inspirational” and his collaboration is the daughter of Sir . The couple have with her as of fundamental importance. He says that the three adult children, of whom one is a practising lawyer and two of them have had a shared vision about the Court and one is a law student. Their third child is studying history at “any changes in the Court of Appeal under my presidency, university. we have done together”. The appellate division of the Supreme Court of Victoria In his role as leader of the Court of Appeal, the came into existence in 1995. Justice Maxwell has been the President has taken on the tasks of administering the President of the Court of Appeal for its second decade. The Court as a first among equals, together with an illustrious Court of Appeal is widely respected under the President’s collection of leading jurists. As he told the recent Bar/LIV

leadership. Barristers who have regularly appeared before conference: photo courtesy of peter bongiorno his Honour have told Victorian Bar News that while One of the pleasures of sitting in the Court of Appeal is his Honour can be firm in exchanges with barristers, being able to work with colleagues of exceptional ability in a particularly senior counsel, he is a merciful judge with a collaborative endeavour to get to the right answer. The fruits deep and abiding sense of fairness. of this collaborative engagement are evident in the large In November 2015, Bar News interviewed Justice Maxwell number of joint judgments which the Court publishes. in his chambers at the Court, to hear from the man himself about his time at the Court so far. His Honour praised the When appointed, he was a newcomer to an established contributions of those who brought the idea of a Victorian court and jurisdiction. Having come from the Bar as a Court of Appeal into existence. According to the President, sole practitioner, he had little management experience, a seminal article in Bar News by Stephen Charles in 1987 although his time as chief-of-staff for Gareth Evans

VBN 47 provided some grounding. So it was a trial judges now sit as additional Court the Court. They should not limit process of trial and error and Justice of Appeal judges in rotation. These their arguments to the merits of Maxwell concedes that he “made a few exchanges ensure that the work of a particular ground of appeal but news and views news mistakes in the first four to five years the Court of Appeal is continually “articulate, as clearly as you can, the as President”. He says that “learning informed by experience at trial level informing legal principle and how about management, leadership and — equally — that trial judges have the result for which you contend is and public administration in close the opportunity to see cases from the consistent with principle and will collaboration with the Chief Justice has appellate perspective. maintain doctrinal coherence.”2 been enormously interesting.” The task of a judge, whether at Relationships with other courts are As a former administrative appellate level or otherwise, requires very important, Justice Maxwell says. lawyer, the President has an acute writing judgments. Justice Maxwell He believes that appeal courts should understanding of the separation found that the experience of writing have: of powers. But he emphasises the judgments was a natural extension an unconditional commitment to importance of a good relationship with of writing opinions. While he courtesy to trial judges. Our job is government, and the need to continue “loved judgment writing from the to identify error and explain why. To to refine those relationships. Good beginning”, he hopes he has “got be overturned is an uncomfortable relationships between government better at it.” He says “in 2006 I experience. After all, it involves a public and courts help drive law reform, thought I was a good writer”, but declaration that colleagues consider he says. “Effective communication during a two day live-in course at the you to be wrong. There is no place for with government means that good Judicial College on judgment-writing, gratuitous criticism. ideas for improving the system will he discovered some things he could be supported, provided always that do better. Paired with Melbourne His Honour believes it is important a proper financial case is made.” He writer, Ginger Briggs, he submitted to engage directly with County Court speaks of the Supreme Court’s role as a version of a judgment for Briggs to judges about significant appellate the judicial arm of government, using review (which he thought was one of decisions. Offering guidance to trial language likely to be understood by holders of the public purse: Justice Maxwell’s vision of the Court of Appeal does We recognise we need to be not involve men and women sitting in an ivory tower. accountable to the public. We are functioning to a high standard. We his better written judgments). Briggs judges can make their task easier and need to maintain the confidence of the duly scrutinised the text and told him: the Court has provided seminars for community. “The first six to eight paragraphs are County Court judges. Justice Maxwell’s vision of the Court unintelligible to a non-lawyer. Go and Reflecting on his now decade in of Appeal does not involve men and re-write it”. It took a bit of redrafting the role, his Honour said he has been women sitting in an ivory tower. Many to implement her suggestions but “surprised by joy”, recalling CS Lewis’ Court of Appeal judges have previously Maxwell told Bar News (with a memoir of the same name.3 Justice been trial judges. They love the role twinkle in his eye) that, by the end of Maxwell’s reference reveals his keen and want to revisit the trial division the course, the judgment “read like an interest in reading. In 2000, he joined every so often. Justice Maxwell, in airport novel”. a book club that continues to meet collaboration with Chief Justice The Judicial College course monthly. They take a task-oriented Warren, has facilitated this. Through emphasised the need for judgments approach: “we focus on the text”. exchanges of judges between the Trial to be accessible to a variety of So too, he adopted a methodical Division and Court of Appeal, judges audiences. To that end, all his approach in 2005. When he started, he can easily experience what each role judgments begin with what has been concentrated on learning how to write requires. decided. He believes that a summary judgments and run an efficient court. In 2007, Justice Nettle — now at of issues and conclusions is a help for The scope of the job has, however, ‘Mount Olympus’ as Justice Maxwell the reader and a good discipline for been far broader than he expected. describes Nettle’s recent appointment the writer. He has found his work at the Court to the High Court — was the first Court Justice Maxwell enjoys being part to be “an enormously interesting and of Appeal judge to spend time in the of a Court which values coherence, satisfying experience”. He attributes Trial Division, followed in later years courtesy and collaboration. At this not just to the work, but to the by Justices Eames, Ashley, Bongiorno, the Bar/LIV conference, he urged meaningful associations accompanying Weinberg, Osborn and Priest. Maxwell lawyers appearing in the Court it: teamwork with the Chief Justice himself presided over a murder trial of Appeal to see their work as a and other judges on the Court; the in 2014 and again in 2015. Equally, “collaborative endeavour” with challenges of leadership; and the

48 VBN news and views

ability to promote changes which can As lawyers we have a responsibility to the Court of Appeal for law students be of benefit to litigants, to judges, and keep the system under critical review. from Victoria University and RMIT to the profession as a whole.” How could it be fairer, better, cheaper? University, in which the judges of the What were the most significant What does the community expect Court actively participate. changes in the Court of Appeal of us? This generation of judges has Something of a media furore over his decade as President? He assumed the responsibility to engage followed the public revelation that the nominated three. The first was solving critically with the system, both in President and Chief Justice Warren the problems of delays in appeal substantive law and procedure. But had refused invitations to speak at hearings. this is to be distinguished from policy. four clubs because of their male-only Second, better resourcing and better These are machinery issues. In our rule. In June 2015 his Honour told management of the Court of Appeal’s engagement with government, we stay the Herald Sun: “It is remarkable workload, meaning “judges no longer on the proper side of the line, drawing that, for the first time in Victorian have to work at unsafe levels”. The on our experience to help simplify law history, the Chief Justice has not Court now has specialist criminal and procedure. been offered membership of any of and civil lawyers in the registry who these clubs — simply because she is Conceding that sentencing is an area undertake the work necessary to a woman.”4 Justice Maxwell is part of where policy and machinery can prepare appeals for hearing. Oral a program called Male Champions overlap, Justice Maxwell says: hearing times, especially in civil of Change, established in April this appeals, have been substantially Sentencing is contestable and year by Victoria’s Commissioner for reduced. Appeal mediation has been controversial. It is important. It is Equal Opportunity, Kate Jenkins. He introduced. In 2006, Justice Maxwell difficult to get right. Sentencing judges views gender equality as a matter of reduced the number of sitting days per and this Court on appeal, take the task fundamental human rights: week from four to three, in order to very seriously. This is not about men marching in and give judges some breathing space: time The President points out that, as solving the problem. It is about men to write and think, and enable them to was intended, the criminal appeal saying to women, ‘This is not just your go home at more reasonable hours. reforms have led to a greater battle; this is our battle’. Flexibility is His impression is that there is a presence of trial counsel arguing an increasingly important issue for strong, collegiate atmosphere at the criminal appeals. He has noticed everyone in the workplace, it is not a Court of Appeal and that judges enjoy more junior barristers, and more ‘women’s problem’. working together and feel on top of female counsel, appearing in his their workload. In a sign that the Court Justice Maxwell is a practising Court in recent years. The Court is a good place to work, a series of egalitarian and a strong champion has sought to make new counsel judges — including Justices Ashley, for change. He has brought to welcome in the Court of Appeal Neave, Bongiorno, Hansen and Mandie the Court intellectual brilliance, and hopes they find work in the — have worked until retirement age a collaborative approach to Court stimulating, challenging and and then offered to come back as management, a series of remarkable rewarding. He says: reserve judges. reforms, and receptiveness to junior Third, Justice Maxwell notes that We want the appeal argued by the and trial counsel appearing there the criminal and civil appeal reforms person who knows what they are for the first time. Victorian Bar News implemented since 2011 have been talking about. Often that is well- congratulates his Honour on his “built on sustained collaboration prepared trial counsel. It need not outstanding decade of service and between the Court, the legal profession be a silk. The Court is less concerned wishes him well in the years to come. and statutory agencies such as the with how the trial might have been Office of Public Prosecution and conducted than with what actually 1. Stephen Charles QC, “A Court of Appeal Victoria Legal Aid.” Through these took place. for Victoria?” (1987) 62 Victorian Bar News collaborative processes, the Court has 16. Justice Maxwell imparts his passion driven important law reform: the Jury 2. Justice Maxwell, Speech to the joint for the law to Juris Doctor students at Directions Acts 2013 and 2015; the Victorian Bar/ Law Institute of Victoria Melbourne University, where he team- Conference, MCG, 9 October 2015. introduction of interlocutory appeals in teaches a course called “Philosophical criminal matters (Criminal Procedure 3. C.S. Lewis, Surprised by Joy: The Shape of Foundations of Law”. Its aim is to My Early Life (1955). Act 2009 s 295); and new procedures help students realise that “legal rules for presenting expert forensic evidence 4. Rita Panahi, “Melbourne’s elite reflect underlying assumptions, gentlemen’s clubs must dispense with in criminal trials (Practice Note 2 of conceptions and choices based on discrimination and join 21st century” 2014). Herald Sun 24 July 2015. moral and political values.” He has also Justice Maxwell believes: facilitated a clinical studies program at

48 VBN VBN 49 news and views 50 VBN news and views Michael Rozenes AO, QC

GEORGE HAMPEL

y cousin Michael is a wonderful While he was still at school, I suggested he might come person and a great friend. Sadly he to court with me. On a perfect spring day we drove to became ill early this year and had Shepparton in my MG with the roof down. By 11am, after to resign his position as the a short plea with a reasonable fee and result, we were on Chief Judge of the County Court of our way home. After a stop at a local winery and a light Victoria. Happily he is making a remarkable recovery and lunch we were back in town by mid-afternoon. He even weM all wish him well. had a little drive on the way. It is with much pleasure that I write his story. “Cousin George,” he said, “this is the life; I think I Michael’s family migrated from a small industrial want to be a barrister”. The plea brief was from Frank town in Poland called Sosnowiec. I mention the name Galbally’s office so later, when Michael was finishing because of its significance in the history of the success law in his early days at Monash Law School, I helped to of migrant families and lawyers in Australia whose arrange work experience for him with “Mr Frank”, who origins were there. They are Michael’s and my family got to like Michael and later gave him articles. and those of former NSW Chief Justice Jim Spiegelman, During his articles Frank asked Michael to be his junior Federal Court Justice Annabelle Bennett and former in a murder trial. “Do not spend much time on the law”, Dean of Arts at Melbourne University and of Law Frank told him, “the judge knows the law, it’s the facts at Monash, Arie Frieberg. that count”. The night before the trial Michael came over My mother was a Rozenes, so her brother Heniek, his to borrow my wig and gown. We talked about the case wife Manka, and young Michael moved in with us. Michael and thought there was a legal submission to be made was two years old and I was 15. There were six of us in two so he told Frank about it just before they got into court. bedrooms and a small lounge. This was luxury compared Before the jury was empaneled and without warning, to what we had all experienced during the war. Frank got up. “Your Honour we have been working on a Those early memories were of having to babysit matter of law”, he said, “and my junior will make the no and look after Michael while the adults were working case submission”. In his state of terror Michael got up and and doing their best to adjust to their new life. I recall tore my gown which was a little long for him, on the leg of pushing Michael around in his stroller, reading and the chair. The submission failed, the case was won on the speaking to him in English, which his parents could facts but Frank told me Michael had done a great job. not do. At the firm, Michael met Bob Galbally, who became his When he was a little older, I remember his fascination supporter and lifelong friend. I told Bob I was writing this with my cadet uniform and my .303 rifle, which I was and asked him for his strongest impressions of Michael. allowed to bring home. Once I jammed my finger in “He is unique”, said Bob, who had briefed him for many the bolt while showing him how it worked. He laughed years at the Bar and had appeared before him in court. and went about telling everyone. This, I think, was the “I have never met anyone who does not like and admire beginning of the perpetuated misconception that I was him. He has it all: intellect, sense of humour, a warm accident-prone. personality and a strong sense of loyalty”. Laughter was to become such an important part of The Bar was his next and obvious step and he read with Michael’s character. He inherited this trait from his me. We had lots of fun but he was also an enthusiastic father who, together with my parents and our mutual hard worker. We became close friends and did many cases grandfather, were my favourite adults. together. He was a challenging junior, ready to question The Rozenes family moved to their own place, and express opinions. At the end of his reading period everyone was working hard, adjusting to our new world, Michael was briefed as John Walker’s junior in the then- trying to improve our English and fit into our new cultural famous Magna Alloys secret commissions committal and environment. I kept in touch with Michael and the rest of trial. Also at the bar table were Vic Belson QC, with me our small family. as his junior, Phil Cummins and Norman O’Bryan QC, Eventually we got him into Brighton Grammar where leading Gordon Spence for the Crown. What a learning he completed his schooling. Michael was a competent experience that was for young Michael. Later he became but not great student. He was a good sprinter and was my junior in some of the civil litigation which followed coached by the famous Franz Stampfel, who used to say the Magna trial. to him, “Michael, you are fast but you run like a monkey”. On one occasion Michael, our close friend Tom Danos

50 VBN VBN 51 Grandmother Rozenes, Michael’s father Heniek Rozenes, Herman Hampel (Michael’s uncle and the father of George Hampel), Grandfather Nathan Rozenes, Michael (aged about 3), Michael’s mother Manka Rozenes, and Felicja Hampel (Michael’s aunt and the mother of George Hampel). news and views news

His strength was in analysis, brevity and precision. Michael’s special interest even as a young barrister was in the tactics of and I were on our way to do a case in was respected and even admired. He a trial. His strength was in analysis, Sydney. As we flew over the border I became one of the firm’s favourite brevity and precision. The principle handed my folders and books to them counsel and my favourite junior. that less is more characterised his and explained that in NSW silks did There was one incident in a murder work as a barrister and later as a not carry, juniors did. On the way trial for which he did not forgive judge. Michael was modest about his back Michael handed it all back. “We me. I gave him all the prosecution own success and disliked barristers are home now, you can carry your experts to cross examine and he did and judges who were verbose and own bloody books,” he said. very well. But, as it tuned out, it was pompous. Early in Michael’s career Frank better that we did not have to rely on When Michael took silk in 1986 I Galbally, who recognised his ability, the expert evidence because we had gave him my red bag. Monash law offered him a murder brief. Michael a good alibi. In my final address I had school was proud of its first three spoke to a number of us and decided to dump him. I told the jury that it silks, Weinberg (Mark), Finkelstein that he was not ready to take on was important for my junior to test (Fink) and Michael. such a trial. In my opinion he was the experts and the jurors nodded in From a strong junior practice well ahead of others who took on agreement that he had done a great involving such major trials as the such cases but he felt he would be job. But the expert evidence was no great bookie robbery, Michael out of his depth. He was concerned longer relevant to their decision. developed a strong silk’s practice that he would not be briefed again Michael was cross but the alibi was in many fraud trials, Full Court and by Frank Galbally but his decision the way to go. High Court appeals. His special

52 VBN news and views

Michael was a strong leader of the criminal bar and was elected chairman of the Criminal Bar Association with his friend Roy Punshon as his vice chairman.

skills evolved mainly in white collar Heathcote shiraz and Italian food crime and ultimately, despite his were his favourites. work having been predominantly When Michael finished his second for the defence, he was appointed term as DPP he decided to come back Commonwealth Director of Public to the Bar. “Who will brief me, they Prosecutions. have forgotten I exist,” he worried. I He did two terms as the DPP and assured him that would not be so and loved the job. Two qualities stood within a week he was flat out. out: administration and leadership. Michael was briefed by the He also enjoyed developing policy Commonwealth to prosecute in the and arguing appeals for the famous Compass Airlines fraud trial. Commonwealth. The High Court One Friday, when I had a call-over of loved him. criminal cases, I listed that trial for The photograph was taken by George Hampel, then One Judge said to me, when he mention only. He was leading Felicity aged about 16. found out about my relationship with and they told the many barristers in Michael, “We love having Michael in court that it was my birthday. Because court. Within a few minutes he makes of Michael’s seniority the Compass engaging personality enabled him us relax and interested. And he gets case was called first. “May it please to develop good relationships with right to the point”. Your Honour,” he announced with a his judges. While he expected hard Michael’s forte as an advocate grin, “this morning we have a present, work and commitment, pastoral was his charm. But behind the I mean a presentment, for you which care and the wellbeing of the judges disarming charming manner there we wish to give, I mean to file on were important characteristics of was his thorough preparation and behalf of the Commonwealth.” There his leadership. He led from the performance skill. He did not yell at was much laughter and a jolly mood front by working hard, running the witnesses and got what he needed in court for the rest of the day. Court and sitting as much as time for his argument. He knew how Michael was a strong leader of permitted. Michael was a great dangerous it was to try to ague his the criminal bar and was elected communicator and the care he had case through the witnesses. He knew chairman of the Criminal Bar for his judges is reflected in his the important points in argument, Association with his friend Roy establishment of the ‘Well Being’ went for them and abandoned Punshon as his vice chairman. program to ensure that the hard useless points and waffle. After a couple of attempts Rob work of the judges on the County Despite his busy practice he Hulls finally persuaded Michael to Court was matched by a balanced recognised the importance of a full accept the appointment as Chief and happy life. He encouraged judges and balanced life. He and Barbara Judge of the County Court. And what to engage in judicial education and brought up two children, Ben and a great appointment that turned out attend conferences. Michael was an Georgia both of whom became to be. His experience as the DPP innovator and was made an Officer lawyers. Barbara, who is my first stood him in good stead as a leader, of the Order of Australia for his cousin on my father’s side, also administrator and policy maker. contribution to the law. became involved with the law in her Michael was critical of some Michael had just over a year to long career with Court Network and judges of a past era who perceived serve before he had to retire when he in organising most of the County themselves to be too important to became ill and had to resign. There Court social functions. She is also a deal with the Department of Justice. was an electric moment when Michael member of the Sentencing Advisory “They have the money and we need unexpectedly walked into court Council. Michael’s time with the it to run the court” was his approach, moments before Peter Kidd’s welcome family was important. They traveled, and he developed a good relationship ceremony. There was a hushed silence. skied and grew olives on their with the department to the Court’s It was the silence of respect. property on the Peninsula. Michael benefit. We all love Michael and wish him played tennis, kept fit in the gym, He had no time for people a good and happy recovery. Amongst joined a book club and was a regular who saw themselves as being his first words when he could speak at MSO concerts. self important and looked down again were “I have not lost my sense Collingwood was his team, on others. Michael’s warm and of humour”.

52 VBN VBN 53 news and views 54 VBN news and views Law and the marriage equality debate

MATT COLLINS

n 18 October 1973, former in South Australia in 1975 and concluding in Liberal Prime Minister John Tasmania in 1997.2 Gorton moved a motion in the In the course of his second reading speech House of Representatives that for the Crimes (Sexual Offences) Bill 1980, the ‘homosexual acts between Hon. Haddon Storey QC, a former member of consenting adults in private our Bar who was then Attorney-General in should not be subject to the criminal law.’ the Hamer Liberal government, outlined the The motion was seconded by Labor Attorney- Victorian Government’s rationale for abolishing General in the Whitlam government, Moss Cass. the offences of buggery and gross indecency Dr Cass no doubt accurately reflected the times between males: when he said:1 O It does not represent any approval or condonation Australia does not look favourably upon of these activities. The Government does not accept homosexuals. In our predominantly conformist, sexual relationships between persons of the same overtly masculine society, focused on the 2-child sex as an acceptable alternative lifestyle. Nothing nuclear family mushrooming in suburban in the Bill is intended to give any support to such wastelands, the homosexual is an unwelcome attitudes. The Government simply believes that outsider. Unmasculine by popular consensus, they are not matters for the criminal law.3 unmarried, non-fathering, anti-suburban, Another Liberal, Murray Hamilton MLC, spoke homosexuals are Australia’s most obvious minority against decriminalisation, on the ground that group. In this country the homosexual is not merely it was no more than the obsession of ‘a small shunned as a moral leper or despised as a pervert, number of homosexuals’. He warned that he is actively discriminated against. Our criminal decriminalisation was ‘the greatest single step penalties are severe, and our social sanctions towards self-destruction than can be taken savage. At a particularly barbaric level ‘poofter- by any civilized society’, before presciently bashing’ is virtually a recognised national civilian resorting to the slippery slope: team sport, while police harassment in some States is accepted as an office perk by the police and as an The Government will come under increasing occupational hazard by the victim. pressure to approve a homosexual marriage and to grant homosexual couples living together the right Sir John Cramer, a Liberal member of the to adopt children.4 House of Representatives, opposing the motion, worried that the decriminalisation of Hamilton was not alone. The then member illustration by guy shield/the slattery media group homosexuality would ‘open the door to the for Doncaster, Morris Williams MLA, citing recognition of homosexuality as a normal the pronouncements of various religious way of life’, when it was instead ‘a distorted leaders, thought that ‘homosexual practice is a way of life’ and an ‘obnoxious habit’. He said debasement of human nature to the detriment that decriminalisation ‘would bring down on of society’ and that decriminalisation was ‘but Australia a further advance of the permissive the first step towards public acceptance and society that is so destroying the fabric of the legal recognition of the alternative life styles moral rectitude of the Australian people.’ and sexual living-together arrangements that Gorton’s motion, which had no legal effect, could undermine society as we know it.’5 The passed by 64 votes to 40. In the years following National Party opposed decriminalisation as a the motion, however, legislation removing bloc, on the basis that homosexual activity was provisions of the criminal law that penalised ‘repugnant’, ‘completely unnatural’ and ‘not homosexual sexual activity was progressively carried out in the animal world’.6 passed in each State and Territory, beginning The Victorian decriminalisation legislation

54 VBN VBN 55 ultimately passed easily by a vote of opposition to the legalisation of 72 to 7 in the Legislative Assembly, marriage as between two persons of

and without a division in the the same sex—marriage equality— Country of Date legalisation Poll in Total favour Total against news and views news Legislative Council. The new law arguing from tradition, however, Forum Canada 2003 Research, 70% 22% came into effect on 1 March 1981. rather than from scripture or June 2015 From a modern perspective, the religious obligation. Ifop, anxiety of the State Parliament, In March 2011, then Prime Minister France 2013 November 68% 32% more than two generations ago, to Julia Gillard opposed marriage 2014 New NZ Herald, condemn homosexuality, even as it equality ‘because of the way our 2013 50% 48% Zealand March 2013 passed legislation to decriminalise it, society is and how we got here’. She BBC, March England 2014 68% 26% appears laughingly begrudging. The said, ‘If I was in a different walk of 2014 Ipsos, May arguments harnessed against the life, if I’d continued in the law and Ireland1 2015 58% 25% reform would be just as laughable, was partner of a law firm now, 2015 Washington but for the harm they no doubt did I would express the same view, United Post/ABC 2015 61% 35% to generations of gay men and that I think for our culture, for States News, April lesbians, who reportedly continue our heritage, the Marriage Act 2015 to attempt suicide at up to 14 times and marriage being between a Fairfax/ the rate of their heterosexual peers.7 man and a woman has a special Australia — Ipsos, June 68% 25% 2015 Yet clear echoes of that mentality status.’12 Ms Gillard’s subsequent resound today. public pronouncements on marriage The prohibition on same sex In October 1986, the future Pope equality suggest, to put it kindly, marriage in Australia Benedict XVI, in his then capacity that the veracity of that statement as Prefect for the Congregation for is to be doubted. In September Same sex marriage was legalised the Doctrine of the Faith, said that 2014, after leaving parliament, she in most Canadian provinces and homosexuality was ‘a more or less suggested that her opposition to territories in 2003.16 In 2004, two strong tendency ordered toward marriage equality was borne not Melbourne-based same sex couples, an intrinsic moral evil; and thus of respect for the special status of who had married in Canada, the inclination must be seen as an marriage, but of ‘an old-fashioned, applied to the Family Court with the objective disorder.’8 He returned to feminist view’ that there should assistance of members of our Bar for the theme in July 2003, declaring that be some way, other than marriage, recognition of the validity of their ‘There are absolutely no grounds ‘of solemnising relationships and marriages under section 88D of the for considering homosexual unions recognising them as of worth and Marriage Act 1961 (Cth), which at the to be in any way similar or even status.’13 In August 2015, she said time contained no definition of the remotely analogous to God’s plan for she had changed her view, and term ‘marriage’. Those applications marriage and family. Marriage is holy, would now vote in favour of were the impetus for the introduction while homosexual acts go against the marriage equality. into the Federal Parliament by natural moral law.’ He went on: Marriage equality has been the then Attorney-General, Philip achieved in a significant number Ruddock of the Marriage Amendment When legislation in favour of the of countries, including all of the Bill 2004. The Bill relied for its recognition of homosexual unions other major English-speaking constitutional validity upon section is proposed for the first time in a democracies.14 Opinion polls 51(xxi) of the Commonwealth legislative assembly, the Catholic law- consistently show strong and growing Constitution, which gives the Federal maker has a moral duty to express his support in Australia. A Fairfax/Ipsos Parliament the power to make laws opposition clearly and publicly and to poll taken in November 2010, for with respect to ‘marriage’, a term not vote against it. To vote in favour of a example, put support at 57 per cent defined in the Constitution. law so harmful to the common good is and opposition at 37 per cent, with The Bill contained only two gravely immoral.9 6 per cent undecided. By June 2015, substantive provisions: a definition In March 2010, then federal the same poll showed 68 per cent in of ‘marriage’ as ‘the union of a man opposition leader, Tony Abbott, favour and 25 per cent opposed, with and a woman to the exclusion of all said he felt ‘a bit threatened’10 by 7 per cent undecided. Those results others, voluntarily entered into for gay people, elaborating that ‘there show a percentage of the population life’, a definition derived from the is no doubt that it challenges, if in favour of marriage equality speech of Lord Penzance in Hyde v you like, orthodox notions of the that is similar to or greater than Hyde 17, and the introduction of a new right order of things’.11 Throughout reported public polls in a number of section 88EA, providing that a union his tenure as Prime Minister, comparable countries where reform solemnised in a foreign country Mr Abbott was consistent in his has already occurred.15 between a man and another man, or

56 VBN news and views

a woman and another woman, ‘must a marriage equality bill introduced sex couples took advantage of the not be recognised as a marriage in by Labor backbencher, Stephen legislation by marrying under the Act. Australia.’ Mr Ruddock explained Jones, by a vote of 98 to 42. The In Commonwealth v ACT, the the urgency of the Bill in his second following day, the Senate rejected High Court unanimously ruled reading speech on 24 June 200418: a corresponding bill introduced by that the ACT Act was incapable of four Labor Senators by a vote of 41 operating concurrently with the The bill is necessary because there is to 26. In February 2013, the Greens Marriage Act 1961 (Cth) and hence significant community concern about reintroduced marriage equality of no effect. The court said that the possible erosion of the institution legislation in the Senate. It lapsed the Commonwealth Act ‘makes of marriage. The parliament has an without a vote upon the dissolution of the provisions which it does about opportunity to act quickly to allay parliament in August 2013. marriage as a comprehensive and these concerns. The government has In the present parliament (Abbott/ exhaustive statement of the law consistently reiterated the fundamental Turnbull), the Greens introduced with respect to the creation and importance of the place of marriage marriage equality legislation in recognition of the legal status of in our society. It is a central and the Senate in December 2013. In marriage,’ 20 and necessarily contains fundamental institution. It is vital to November 2014, Liberal Democratic ‘the implicit negative proposition that the stability of our society and provides Party Senator David Leyonhjelm the kind of marriage provided for by the best environment for the raising of introduced a further private member’s the Act is the only kind of marriage children. The government has decided bill. In June 2015, opposition leader that may be formed or recognised to take steps to reinforce the basis of Bill Shorten introduced a bill in the in Australia.’ 21 It followed that the this fundamental institution. House of Representatives. In August ACT Act was inoperative by reason Ruddock went on to deliver a lecture 2015, Warren Entsch introduced of section 28 of the Australian Capital to same sex couples, such as those a cross-party bill in the House of Territory (Self-Government) Act 1988 whose applications were then Representatives. There has not been, (Cth), which provides relevantly, pending before the Family Court: nor is there likely to be, a vote on any in substance, that a provision of an of those bills in the current parliament. ACT law has no effect to the extent As a result of the amendments that it is incapable of operating contained in this bill, same-sex couples Marriage equality in the ACT concurrently with Commonwealth will understand that, if they go overseas On 22 October 2013, the parliament legislation in force in the ACT. to marry, their marriage, even if valid in of the Australian Capital Territory In the course of its judgment, the the country in which it was solemnised, passed the Marriage Equality (Same High Court traced the history of will not be recognised as valid in Sex) Act 2013. The Act passed by nine common law decisions touching upon Australia. votes to eight, supported by the Labor the meaning of the term ‘marriage’ in The Bill passed with bipartisan government and the Greens, but English and Australian jurisprudence, support and without a division in opposed by the Liberals. It defined before concluding that it was to be the House of Representatives. In the ‘marriage’, for the purposes of the understood in section 51(xxi) of Senate, the Bill was unsuccessfully Act, to mean ‘the union of two people the Constitution as referring to ‘a opposed by the Australian Democrats of the same sex to the exclusion of consensual union formed between and the Greens. all others, voluntarily entered into natural persons in accordance with for life’, but not including ‘a marriage legally prescribed requirements Marriage equality legislation within the meaning of the Marriage which is not only a union the law before the Federal Parliament Act 1961’. The definition was thus an recognises as intended to endure and attempt to avoid any overlap—and be terminable only in accordance with In the 42nd parliament (Rudd/ therefore inconsistency—with the law but also a union to which the law Gillard), the Greens introduced a definition of marriage inserted into accords a status affecting and defining marriage equality bill in the Senate. It the Marriage Act 1961 (Cth) in 2004. mutual rights and obligations.’22 The was rejected by a vote of 45 to 5 on 25 The ACT Act commenced operation court said that section 51(xxi) grants February 2010. on 7 November 2013, but did not to the Commonwealth parliament the In the 43rd parliament (Gillard/ permit marriage ceremonies to be power ‘to make a national law with Rudd), Greens MP Adam Bandt, and performed until 7 December 2013. respect to same sex marriage.’ 23 independent MP Andrew Wilkie, The Commonwealth challenged the presented a marriage equality bill validity of the Act in the High Court. Current debate to the House of Representatives on Argument occurred on 3 December Of the four marriage equality 13 February 2012. It lapsed without 2013, and judgment was delivered on bills presently before the Federal a vote. On 19 September 2012, the 12 December 2013.19 Between 7 and Parliament, only the cross-party House of Representatives rejected 12 December 2013, at least 15 same Marriage Legislation Amendment

56 VBN VBN 57 Bill 2015, introduced by Liberal MP in Commonwealth v ACT that the as Australia’s Warren Entsch on 17 August 2015, marriage power in the Constitution national anthem, or to replace it for stood any chance of coming to a vote. empowered the federal parliament to non-regal and vice-regal occasions news and views news That hope was, however, dashed on legislate for same sex marriage. with Advance Australia Fair, Waltzing 11 August 2015 when, after a six- Senator Brandis was, with Matilda or Song of Australia. 43.3 hour debate in a joint party room respect, plainly correct. The only per cent of voters favoured Advance meeting of members of the Liberal rational subject matter for a Australia Fair, with 28.3 per cent and National parties, members referendum, in light of the High preferring Waltzing Matilda, 18.8 per voted by about 60 to 30 against their Court’s interpretation of section cent God Save the Queen and 9.6 being given a free vote in respect of 51(xxi), would be a proposal to per cent Song of Australia. Advance the bill. The effect of that vote was amend parliament’s existing Australia Fair was the most popular effectively to bind all Ministers to legislative power, presumably choice in all jurisdictions other than oppose marriage equality legislation by defining ‘marriage’ as an South Australia, which preferred in the current parliament, and to exclusively heterosexual institution. Song of Australia, and the ACT, which require backbenchers to cross the Unsurprisingly, no-one has suggested favoured Waltzing Matilda. Advance floor, and risk damage to their career such a referendum. Australia Fair became the national prospects, in order to vote in favour Since becoming Prime Minister, anthem, by proclamation of the of marriage equality. The then Prime Malcolm Turnbull has adhered to the Governor-General, on 19 April 1984. Minister, Tony Abbott announced position of his predecessor, promising Important though it was, the 1977 later that evening that government a national plebiscite on marriage plebiscite involved no question of members would have a free vote in equality after the next election. civil rights or conscience. subsequent parliaments, and that the The Prime Minister reportedly The Australian Electoral ‘disposition’ of the party room was gave a commitment to maintain Commission estimates that a that the question of marriage equality the government’s extant position plebiscite on the question of marriage should be put to the people by way of to the National Party in the course equality would cost $158 million either referendum or plebiscite some of negotiating a fresh Coalition if held separately from a federal time after the next election. agreement in the days after he election, and $44 million if held at The position of the Federal Labor replaced Tony Abbott. 24 the same time as the next election25. Opposition is that its members There have been only three national Those figures do not include any have a conscience vote in respect of plebiscites in the history of our allowance for public funding of marriage equality in the current and federation. None provides a useful the competing campaigns. If public next parliaments, but will be bound precedent for marriage equality. funding were to be extended to the to vote in favour of it in the following Plebiscites were held in October competing campaigns, it is difficult to parliament. The Opposition Leader 1916 and December 1917—almost a see how that could be done equitably. has opposed putting the issue to century ago, and decades before the Equal funding of the competing cases the people by way of a referendum ready availability of reliable, national would imply that the competing or plebiscite, and undertaken opinion polling—to test the public’s arguments were of roughly equal to introduce marriage equality attitude towards then prime minister merit: a proposition that does not legislation within the first 100 days of Billy Hughes’ plan to introduce withstand scrutiny when applied to the election of a Labor government. conscription during World War I. any civil rights question. Consider, Following the decision of the The 1916 plebiscite failed overall for example, the 1967 referendum Coalition joint party room not to (by 48.4 per cent to 51.6 per cent) and concerning removal of the words allow its members a free vote on in New South Wales, and ‘other than the aboriginal people in marriage equality in the current South Australia. A majority of voters each State’ from section 51(xxxvi) of parliament, debate turned to the was in favour, however, in Victoria, the Constitution. If the yes and no form in which the question of Western Australia, Tasmania and the cases had been publicly funded to marriage equality might be put Territories. A further plebiscite, in an equal extent, the no case, which to the people. On 12 August 2015, respect of a more limited conscription ultimately attracted only 9.23 per Scott Morrison, who opposes proposal, was held in 1917. It also cent of the vote, would have been marriage equality, suggested a full failed (46.2 per cent to 53.8 per cent), artificially boosted. constitutional referendum. The with a majority of voters in favour The proposal for a plebiscite on the Attorney-General, George Brandis, only in Western Australia, Tasmania question of marriage equality is an who reportedly favours marriage and the Territories. abrogation of the responsibility of equality, said a referendum was The third plebiscite occurred the parliament to legislate for the ‘entirely unnecessary’, having regard in 1977, when voters were asked peace, welfare and good government to the High Court’s clear statement whether they wished to retain of the Commonwealth. Australian

58 VBN news and views

parliaments routinely legislate in It cannot sensibly be contended understanding of the doctrines, respect of matters of civil rights that a foundation stone of our tenets, beliefs or teachings of their or conscience without resort to civilisation will crumble if something denomination, church or faith group. plebiscites or referenda. Conscription in the order of two per cent of Some opponents of marriage was introduced in 1942 for the future marriages are celebrated by equality raise the spectre of bakers remainder of World War II, and same sex couples. Nor can blame and florists being fined for refusing compulsory national service operated for debasement of the institution of against their conscience to provide during the Korean and Vietnam Wars, marriage be laid at the feet of those cakes and floral arrangements for without the matter being expressly now conscientiously fighting for same sex marriage ceremonies, as put to the people. Women were entry. has occurred in the United States. given the vote, the death penalty The attempted linkage of marriage That argument, too, is specious. The was abolished, homosexuality with a natural law argument that Equal Opportunity Act 2010 (Vic) decriminalised, no-fault divorce men and women are complementary, already prohibits direct and indirect introduced, the White Australia Policy that reproduction depends on men discrimination on the grounds of, reversed, and detention centres for and women, and that children among other attributes, lawful sexual asylum seekers set up in the Pacific need a mother and father, is also activity and marital status. Equivalent Islands—all without the mandate of a fundamentally flawed.27 The provisions have long operated plebiscite or referendum. institution of marriage is not denied throughout Australia, without any The legalisation of marriage as to infertile heterosexuals, men who apparent impact upon cake and between couples of the same sex has have had vasectomies, or women flower vendors. There do not appear become one of the totemic civil rights who have passed menopause; and to have been any calls to exempt struggles of our times. marriage is not a requirement for bakers and florists from their current The arguments most commonly child-bearing or rearing. Moreover, obligations under anti-discrimination advanced against marriage equality to deny entry to the institution to legislation. boil down to assertions that same sex couples who have children Finally, the plea from tradition extending marriage to same sex is to risk harm to those children ignores the evolution of the couples will weaken the institution, and to signify that their families are institution of marriage over time. In that marriage is about children, somehow worth less than the families the absence of demonstrably negative and that legalisation of same sex of opposite sex couples. consequences, tradition is not an marriage will lead to calls for the The slippery-slope argument is argument against reform, any more legalisation of polygamy (or, as equally without merit. There is no than it was an argument against the Senator Cory Bernardi asserted in apparent demand in Australia for introduction of universal suffrage; or 2012, bestiality)26, arguments from the legalisation of polygamy. Even if the abolition of slavery, prohibitions scripture or religious belief, and there were, the arguments for and against miscegenation or the White resort to tradition. against the legalisation of polygamy Australia policy. Marriage equality has been are different from those that pertain To my ear, the arguments against legislated in all of the countries to same sex marriage, not the least marriage equality, individually we routinely compare ourselves because of the typically unequal, and collectively, are so lacking in with, and many others besides. In and usually patriarchal, nature of persuasive merit that they must be a the Netherlands, where same sex polyamorous relationships. proxy for something else, the obvious marriage was legalised in 2001 Arguments from scripture or candidate being a lack of acceptance and the most reliable statistics religious belief, while of course of homosexuality as a normal and are available, same sex marriages entitled to a degree of respect, ought natural predisposition. It is hard not account for about two per cent of not to carry weight in relation to the to conclude that the arguments are total marriages. The divorce rate for definition of a civil institution in a smokescreens for a lingering distaste same sex married couples is about secular society. Religious objections for and intolerance of homosexuality, one-half that of heterosexual couples. can readily be accommodated with a direct lineage to those that The sanctity of traditional marriage by provisions of the kind set out were trotted out at the time of the has been challenged by a host of in clauses 8 and 10 the Marriage decriminalisation debate more than phenomena, from no-fault divorce, Legislation Amendment Bill 2015 two generations ago. They are a to drunken ceremonies in chapels introduced to the parliament by refusal to accept that couples of the in Las Vegas, to reality television Warren Entsch on 17 August 2015, same sex should be treated as the programs in which heterosexual which provide that ministers for equals of opposite sex couples. couples ‘marry at first sight’. Around religion and chaplains may refuse to Opponents of marriage equality one-third of marriages already end in solemnise marriages for any reason, have recently taken to accusing divorce. including incompatibility with their proponents who deconstruct their

58 VBN VBN 59 The legalisation of marriage as between couples of homosexual persons, 1 October 1986. 9. Congregation for the Doctrine of the Faith, the same sex has become one of the totemic civil rights Considerations regarding proposals to give legal recognition to unions between news and views news struggles of our times. homosexual persons (31 July 2003).

arguments in this way of being available to couples: an obstacle 10. 60 Minutes Interview with Liz Hayes, 7 March 2010. intolerant or bigoted. Lyle Shelton, that cannot be overcome by same for example, a spokesperson for the sex couples, whatever the duration 11. Lateline Interview with Leigh Sales, 8 March 2010. Australian Christian Lobby, told a or bond of their relationship, Transcript of Interview, Senate committee on 11 September and that can have devastating 12. Australian Agenda, 20 March 2011. 2015 that ‘many’ on his side of the consequences.29 The absence of 13. Interview with Ray Martin, Channel Nine, debate felt fear and intimidation. a right to marry can also affect 23 September 2014. Having regard to the long history Australian same sex couples in 14. Argentina, Belgium, Brazil, Canada, I have sketched above of religious countries where legal rights attach France, Great Britain, Greenland, and political leaders branding gay to the fact of marriage, as opposed Iceland, Luxembourg, the Netherlands, men and lesbians as intrinsically to the existence of a bona fide New Zealand, Norway, Portugal, South Africa, Spain, Sweden, United States, morally evil, objectively disordered, relationship. In some countries, for Uruguay. a challenge to the orthodox notion example, hospital visitation rights 15. These figures are from an Ipsos poll. of the right order of things, and are denied to de facto partners. In the non-compulsory national repugnant and completely unnatural, Marriage equality is, in these ways, referendum held on 22 May 2015, the there is, to my mind, a breathtaking not a matter of mere symbolism, but vote in favour of marriage equality attracted 62 per cent of the vote. hypocrisy in that charge. In any a matter of substantive rights. event, it is not intolerant or bigoted On 29 June 2015, the President 16. Federal legislation came into force in 2005: Civil Marriage Act 2005. to call out hollow arguments of the Victorian Bar issued a media and hypocrisy. release, observing that the Bar’s 17. (1866) LR 1 P&D 130, 133. It is true that, for most purposes, strong commitment to diversity in 18. Hansard, House of Representatives, 24 Australian law no longer distinguishes the profession and to equality and June 2004, 31459. between married and de facto couples, protection under the law free from 19. Commonwealth v ACT (2013) 250 CLR including between married couples discrimination provided support 441. and same sex de facto couples. Same for legislative amendment of the 20. Commonwealth v ACT (2013) 250 CLR sex partner visas have been available definition of ‘marriage’ in the 441, [57]. in Australia since 1991. The Family Marriage Act 1961 to provide for 21. Commonwealth v ACT (2013) 250 CLR 441, [59]. Court has had jurisdiction since marriage between same sex couples. late 2008 with respect to property That media release was wholly 22. Commonwealth v ACT (2013) 250 CLR 441, [33]. and parenting disputes involving consistent with the proud tradition of same sex de facto partners. Assisted our Bar in furthering equality before 23. Commonwealth v ACT (2013) 250 CLR 441, [56]. reproduction laws were amended in the law and access to justice.30 24. Gabrielle Chan, ‘Nationals negotiate Victoria in 2008, making IVF treatment 1. Hansard, House of Representatives, 18 tougher Coalition agreement with October 1973. available to female same sex couples. Malcolm Turnbull’, , 15 At the time of writing, the Victorian 2. The Tasmanian provisions criminalising September 2015. homosexual activity were overridden by the Government had introduced laws 25. Lisa Cox, ‘Separate poll on same-sex Human Rights (Sexual Conduct) Act that will, if passed, permit the joint marriage would cost $158 million: 1994 (Cth), and repealed by the Criminal Australian Electoral Commission’, adoption of children by same sex Code Amendment Act 1997 (Tas). Sydney Morning Herald, 8 September couples in this State.28 3. Hansard, Legislative Council, 18 November 2015. In some areas, however, the 1980, 2874. There were no corresponding 26. Hansard, Senate, 18 September 2012, 7245. law continues to discriminate. offences for sexual acts between females. 27. See, for example, the Amicus brief Contrary to principles of comity, 4. Hansard, Legislative Council, 3 December filed by Ryan Anderson in Obergefell v 1980, 4119. same sex couples who are legally Hodges 576 US (2015). married by the laws of countries 5. Hansard, Legislative Assembly, 11 28. Adoption Amendment (Adoption by Same- December 1980, 5025–6. in which marriage equality has Sex Couples) Bill 2015 (Vic). been achieved are stripped of their 6. Hansard, Legislative Assembly, 11 29. See, for example, Tracey Spicer, ‘It is an December 1980, 5080. relationship status in Australia. urban myth that same-sex couples and

Married couples do not have 7. Suicide Prevention Australia, Suicide and married heterosexuals have equal legal to prove the standing of their self-harm among gay, lesbian, bisexual rights’, The Age, 8 November 2015. and transgender communities (2009). relationships in order to access 30. I was a member of Bar Council at the legal entitlements and protections 8. Congregation for the Doctrine of time the media statement was debated the Faith, On the pastoral care of and released.

60 VBN news and views Spreading the word (in hard copy)

Commbar launches Insolvent Investments JULIE DODDS-STREETON

n 26 August 2015 the Commercial Bar interplay, both mutually, and with an often complex array Association and LexisNexis consummated of statutory provisions, including (but not limited to) the an innovative and commendable specific insolvency regime of the Corporations Act. partnership by launching a new book: When insolvency intervenes, hitherto nameless and Insolvent Investments. The work is edited unexamined rights and interests must be identified, by Stewart Maiden and contains 13 because, as the editor Stewart Maiden remarks, “under chapters authored or co-authored by members of the stress, the characteristics of the investment are thrown Victorian Bar. At the launch an address was given by the into relief. ” Hon Julie Dodds-Streeton QC, a member of the Bar and a The late Professor Harold Ford, an eminent pioneer former Judge of the Court of Appeal of the Supreme Court in the scholarship of insolvency law, made a similar Oof Victoria and of the Federal Court of Australia. The point when he told me long ago “insolvency is the acid President of Commbar, Philip Crutchfield QC, introduced test of rights.” Experience has brought home to me the Ms Dodds-Streeton, and Stewart Maiden delivered a reply. aptness of that comment – the crucible of a deficiency of The book grew out of a series of 12 seminars presented assets to satisfy competing claims compels the precise by Commbar in 2014. The seminars showcased the identification of those claims to decide how they will fare. significant skills and experience of the insolvency section At least, when a business or investment vehicle of the Victorian Bar. Each was delivered by at least one assumes a familiar form (such as a corporation) a barrister, with most being delivered by a junior together comprehensive and well-established insolvency regime with a judge, a silk, or one or more senior solicitors. The will apply to govern that competition in accordance with seminars were popular, with several attracting around 100 the evolved principles and goals of modern insolvency members of the Bar and invited solicitors. administration. The papers presented at the seminars became the Those abiding principles include: chapters of the book, and a foreword was kindly provided 1. limited liability for investors in the enterprise; by the Hon Chief Justice Marilyn Warren AC. The book 2. a rational and principled order of payment for has been well received, with a copy recently tabled at the different classes of competing claims; Senate Economics References Committee’s Inquiry into 3. the equitable treatment of claims of a like nature; Forestry Managed Investment Schemes. 4. quarantining the beneficially-owned property of Bar News congratulates the Commercial Bar third parties from distribution to the insolvent’s Association on the publication of this timely work that creditors; but collects in one place much of the hard work and learning 5. expanding the assets for distribution and achieving generated out of recent cases in Victoria. equity between creditors by the avoidance of Ms Dodds-Streeton QC has kindly agreed to Bar News certain classes of antecedent transactions, such as reprinting the following remarks she made on launching preferences, gifts, fraudulent dispositions etc, made the book: by the insolvent.

Also of increasing importance (and concomitant to feel privileged to speak at this launch of Insolvent limited liability) is the goal of a commercial fresh start, Investments, the work of a formidable collective of, unencumbered by the liabilities that sank the enterprise I think, exclusively Victorian lawyers, who are (as – supported by cogent alternatives to winding up, most the book reveals) directly experienced specialists in a effectively, the voluntary administration procedure in Part challenging,I emergent area of legal practice. 5.3A of the Corporations Act. This is an impressive and authoritative work on a In contrast to a corporation, the managed investment subject which may be uncomfortably topical as global scheme, which is the organising concept of this book, share markets are shuddering. is far more elusive and protean, although it frequently Insolvency law can appear arcane, but it is one of the includes a corporation, or indeed, groups of companies. most interesting and intellectually challenging areas of The managed investment scheme does not constitute a commercial law. It is, in many ways, real lawyers’ law, separate legal entity in its own right and can assume an with a high threshold to mastery, requiring a grasp of unlimited variety of forms, frequently incorporating trusts, fundamental concepts of property, trusts, corporations, companies and contractual and security arrangements. security and contract and the capacity to analyse their Its form, and participation in the enterprise, are often

60 VBN VBN 61 tax-driven. Despite the complexity the flexible variety of legal forms many impediments to restructure and prevalence of such schemes, they can assume. He also describes exposed by the de facto winding up the statutory provisions for their a disappointing and unexplained of recent collapsed schemes, many news and views news winding-up are sketchy; and, upon failure to enact amendments of which defied attempts at salvage. the unviability (or, in effect, the recommended to give certainty and In the authors’ view, principal insolvency) of the scheme, are clarity to the winding up of unviable obstacles and targets for urgent inadequate. There is no equivalent schemes. Carl emphasises that the reform are ss 601FS and FT which to the comprehensive and detailed want of a specific comprehensive (by mandating the lumbering of insolvency regime for companies, statutory regime has generated great any replacement responsible entity although this may apply to uncertainty, multiple costly court with the fatal liabilities of the old components of the scheme. applications, poor outcomes for one) ensure that a replacement will As Stewart Maiden and Carl Möller investors and impediments to fruitful not be forthcoming in insolvency. point out, despite the proliferation restructure. They propose amendments, of schemes and the vast sums Within that rather disheartening including capping liabilities of the invested, in that context the usual context, Ian Martindale QC and incoming responsible entity to the legal problems of financial collapse Robert Strong (chapter 3) offer a scheme property and introducing are magnified. thorough and thoughtful analysis an equivalent of s 447A; and The genesis of the present book of the duties of directors of the discuss introducing a voluntary was, I think, the aftermath of the responsible entity, including the administration procedure for global financial crisis, in which many impact of Corporations Act duties schemes and a separate legal entity significant schemes became unviable, interacting with the statutory duties to own scheme property, enter spawning much complex and highly of the responsible entity itself, and contracts and sue and be sued. publicised litigation, which exposed the scheme constitution. The proposition that ss 601FS both the deficiencies and potentials In chapter 4, Michael Sloan, and 601FT should be amended is of the current provisions. Sarah Kimpton and Mark Costello disputed by Paul Anastassiou QC Many of the authors were closely provide guidance on advising and Kathleen Foley (chapter 6) who, involved in significant cases, which directors and managers in the face in their chapter, comprehensively gives these studies their great of financial crisis, including on the analyse the Gunns litigation and the sense of immediacy, authority and important issue of insolvent trading, role of the courts in restructuring. firm practical grasp. While there which is not, of course, limited to They argue that while prevalent broad constructions of s 601FS do Many of the authors were closely involved impede the restructure of distressed in significant cases, which gives these studies schemes, a curial power to modify the provision may effectively promote, their great sense of immediacy, authority and unjustifiably, a paramountcy of firm practical grasp. investors’ interests. Justice Michael Sifris and Penny Neskovcin, in chapter 7, confront the is detailed exposition of particular managed investment schemes. The unique practical problems stemming litigation, it is not mere recounting of authors advocate more emphasis from the absence of a separate war stories; but instead incorporates on developing a business rescue legal entity despite the present the conceptual and scholarly culture. They suggest that this is not proliferation and scale of managed perspective of authors whose assisted by an unduly low threshold investment schemes. They propound genuine interest in the development for liability, which deters trading a hypothetical “perfect storm”, of the law is manifest. out and leads to loss of value in the around which they offer informed It was particularly impressive that enterprise. guidance on practical issues. despite the large number of authors Consistently with that theme, Tony Troiani, Samantha Kinsey involved in writing 13 chapters, there Leon Zwier, Justin Vaatstra and and Stewart Maiden in chapter 8 is virtually no repetition and the Oren Bigos (chapter 5) explore on “Competition for Assets”, point collection of individual studies reads the potential for restructuring out that the choice of investment harmoniously. unviable schemes, with particular vehicle remains central to how reference to some of the prominent different competing claims will fare What does the book contain? agribusiness scheme collapses. on insolvency. They consider what Carl Möller (chapter 2) discusses While the advantages of preserving amounts to scheme property; and the prevalence and magnitude of businesses and avoiding fire sales tracing, pooling and substantive managed investment schemes and are obvious, the authors identify consolidation within corporate groups.

62 VBN news and views

The authors include a valuable discussion exposition of directions applications, the rights of third parties, and of reliance, causation and security for costs particularly the current status of in scheme class actions. GB Nathan considerations. This, of course, has general implications Garry Bigmore QC and Simon reference to the Timbercorp and not limited to managed investment Rubenstein (chapter 9) discuss scheme Willmott Forests litigation. The schemes. investor rights in the insolvency authors include a valuable discussion Nick Anson and Catherine Button’s context. They argue that scheme of reliance, causation and security for contribution (chapter 13) explores the investor protection in the insolvency costs in scheme class actions. topic of practitioner remuneration, context is inadequate, exposing Philip Crutchfield QC and costs and security in various insolvency investors to disproportionate loss Christina Klemis (chapter 11) offer contexts, identifying statutory lacuna and risk. As the authors point out, a pithy discussion of the important in relation to schemes. The authors although members’ liability is typically question of disclaimer of property on also usefully discuss generally relevant formally limited to their investment, in insolvency, including leases which rights of indemnity and the Universal practice, due to the tax-driven nature are not onerous and of which the Distributing and Berkeley Applegate of such investment, they frequently insolvent company is the lessor, principles. have significant borrowings for which rather than the tenant. Their study This is an excellent, authoritative they remain liable, albeit their scheme is centred on the Willmott litigation, and relevant work, which, while it interests are illiquid, locked-in and and exposes potential anomalies and offers a very broad range of informed valueless. outstanding questions related to an analysis on interesting insolvency Norman O’Bryan AM SC and outcome which was in some ways topics by diverse commentators from Catherine Pierce (chapter 10) unexpected, given the matters Keane the coalface, also retains a central examine whether, and to what extent, J raised in his dissenting judgment in coherence and a scholarly perspective. class actions might ameliorate the that case. It is a great achievement plight of investors in managed Jonathan Moore QC’s contribution by the Victorian insolvency investment schemes, with particular (chapter 12) is a lucid and helpful lawyers involved.

62 VBN VBN 63 news and views 64 VBN news and views A new Kidd in town

An interview with the Chief Judge of the County Court VBN

f you were looking to cast a gouty old 19th he was contemplating leaving the law altogether. Instead, century judge for a Gilbert & Sullivan style he took a chance: operetta, Chief Judge Kidd would not be your I enjoyed criminal law. I enjoyed evidence. So I thought, ‘Let’s man. His Honour’s chambers, like the man just have a look at criminal law’. And that’s when I saw an himself, exude an un-stuffy approachability advertisement in the paper for the Commonwealth DPP. In and down-to-earth practical feel. In a frank some respects, it was really me saying to myself, ‘I’ll try this and wide-ranging interview with Bar News, his Honour before I make the decision to move on.’ I applied and got the reflected on some of the challenges that face him, job, and I never really looked back after that point. I suddenly particular hopes for the Court, and the long road ahead. realised I could be excited by my work. FromI Adelaide to William and Lonsdale After three challenging and successful years working Street, via Sarajevo. for the Commonwealth DPP, his Honour made another significant decision. In September 1995 he came to the Chief Judge Kidd reaches the apex of Victoria’s County Bar and read with Damien McGuire. Life at the Bar Court by an uncommon route. He was born in Adelaide, commenced with an 18 month brief to prosecute in a into a family with a scientific bent. Both his father and massive trial involving an alleged conspiracy and attempt uncle were dentists. He studied law at the University of to pervert the course of justice, led by the late Martin Adelaide. He remains tight-lipped about his time there, Shannon QC and McGuire. Almost always a prosecutor, proffering a cautious “Probably I was like any younger this was the first of many very tough cases, including the person at university. Perhaps I’ll just leave it at that”, in Bega school girl murders, abduction and rape cases, and response to VBN’s probing questions. He was prepared the murder trials of Victoria Police members, Sergeant to disclose a close association with the University Blacks Gary Silk and Senior Constable Rodney Miller. Football Club ­– apparently the largest in the country. He After nearly 10 years at the Bar, he had another played on the wing, he thinks in the fifths, or perhaps significant change of course. In late 2004 (after what the sixths (the Adelaide Uni Blacks fielded eighths). one suspects was a neat bit of advocacy in the home) And although there were no immodest recollections of his Honour moved with his wife and young family to fantastic achievements as a footballer, his Honour did Switzerland to study a Master of Laws in International note, “It was a fantastic social life at Adelaide University Criminal Law at the University of . Following this, Football Club”. Further evidence about these issues is he applied for, and was appointed as an international limited. Enough said, perhaps. prosecutor with the War Crimes Chamber of the State After success at Adelaide University, his Honour Court of Bosnia-Herzegovina, in Sarajevo. obtained articles of clerkship at what was then In November 2008, after three important and successful Mallesons Stephen Jaques. Following articles, he worked years in Sarajevo, his Honour returned to Victoria. On 30 at Mallesons for a further 18 months. A number of January 2009 he became a Crown Prosecutor, and in 2011, recent appointments to Victorian courts have had an after taking silk, a Senior Crown Prosecutor, excelling in association with Mallesons. Doubtless, Mallesons will both those roles. proudly, and rightly, claim Chief Judge Kidd as another of their successes. However, it seems fair to say that Seeing the long lines Mallesons and the future Chief Judge were not a seamless His Honour is a great traveller. He remarks with some combination. His Honour reflected: pride to VBN that, before the end of the Cold War, he It wasn’t for me. There were lots of aspects to that – it’s not travelled between Hong Kong and Europe by train. personal to Mallesons but I think that type of legal culture, the big Anyone who has travelled that route knows the huge law firm, with the billable hours, it just didn’t grab me. I had no distances involved, and how the tracks stretch out difficulties with any personalities. The work just didn’t excite me. through the wide-open spaces of the Gobi Desert and the wilds of Siberia. Listening to his Honour reflect on So, in a chain of events that is not completely unheard his time in Bosnia-Herzegovina it is apparent that the of among bright, young graduates, his Honour found the sense of adventure that drove him to make that long realities of practice in a successful firm of city solicitors a journey has stayed with him. Perhaps that trip was also touch less engaging than predicted. After two-and-a-half where he picked up the habit of looking for the big years (and who could say how many boxes of documents)

VBN 65 For all the zinging enthusiasm that his Honour and having a good sound knowledge radiates, the message is clearly: steady as she goes. of the law here. There is no doubt that my experience over there made me news and views news appreciate what we have here. picture and the long lines. working closely with the Director with Victorian Courts have an respect to how we approached certain And asked to identify areas of institutional presence and respect cases. Which cases do we appeal? What the Court he might be looking at that makes them seem almost do we need to focus our attention on? changing, his Honour was reticent: inevitable; courts and judges get What is our advice on issues of law I don’t think there’s anything to be criticised from time to time, but their reform? These are all structural elements gained by going into detail at the authority and legitimacy are rarely or components of the overall criminal moment. I can tell you why – There are questioned. This happy state of justice system, and I have always really many issues. I am learning them every affairs was in stark contrast to what enjoyed working with those various day. I am in the process of discussing faced him in Bosnia-Herzegovina. constituent parts, not just the court work. these issues with Judges and other staff As his Honour explained, the new members on a daily basis. I am trying Tribunal was far from universally Gently into the saddle and to identify what works, what doesn’t accepted and its very existence work, and what could work better. But depended on the ability of those the long road ahead that’s a long conversation. charged with implementing it to So what can we expect from a new demonstrate its legitimacy. Its fragile Chief Judge with such broad and Partly at least, this approach seems to status made it necessary to consider varied experience, and such wide reflect an awareness about the nature carefully, not only the forensic merits horizons? Well for a start, expect of the institution he takes over, and of cases, but also wider questions a Chief Judge keen to engage with a respect for those already doing its about how the Tribunal should the primary work of the Court. His work: function to achieve justice: Honour is a recognised expert in, The Court has been through a difficult among other fields, tendency and In Bosnia, we were in a court which period with Michael Rozenes’ illness. coincidence evidence. Quizzed about was fast developing with people from We’ve had an Acting Chief Judge, that, his Honour said: all over the world, from different legal Judge McInerney, who did a wonderful systems ­– What works? What’s right? It’s certainly no easier to apply today job. The Court has been in a state What’s fair? How should we approach than it was yesterday. And these of flux for a period, and there will prosecution policy? Something as issues present real challenges for a inevitably be clear answers to some of basic as that. What do we do in an court which conducts many sex cases. the things that arise, but some things environment which involves three As we know, in many sex trials there won’t be so clear. ethnic groups who were at war are multiple complainants, which I’m extremely conscious of the fact together? How do we choose which immediately raises the question of that I am brought in from the outside. I cases to prosecute? It was imperative tendency and coincidence evidence. don’t know all of the Judges. One of the that the international community and In fact, even with single complainants things that I need to do is to win their the three ethnic groups developed the issue is raised - that in itself is support and confidence. confidence in the impartiality and controversial. I intend to get involved fairness of the Prosecutor’s Office and in trials myself, including multi- And his Honour need not be in a the Court. complainant sex trials. I intend to have hurry. Appointed at age 49 (welcomed a hands-on role in this particular field. the day after his 50th birthday), he has Reflecting on his time in Victoria the next 20 years in which to shape as a Crown Prosecutor, his Honour In terms of the broader approach, the Court. Not surprisingly, he sees made related observations about his for all the zinging enthusiasm that no need to rush his fences: interest in the broader, structural his Honour radiates, the message is role a prosecutor plays in the clearly: steady as she goes. Pressed I’m going to be here for many years administration of justice: by VBN about the significance of his at least, and it gives me a great international experience for his new opportunity. It’s time to listen, learn I have always enjoyed playing a role in role, his Honour demurred: and develop these ideas. shaping whatever criminal justice system I am working in. As a Crown Prosecutor, I don’t want to overstate it. I still think in particular as a Senior Crown that the most significant qualification Taking it to the people – Prosecutor, I was able to play that role. for being a Judge here, or a Chief Judge, especially the younger ones Whilst I was separate from the Office is being in touch with our community, Despite this apt judicial reticence of Public Prosecution, I was obviously understanding the various stakeholders we were able to draw his Honour

66 VBN news and views

Audio and visual streaming in the court-room and barrister. The high volume of the like? Well these are things we need to look at. complex cases and limited resources means the Court depends on the Bar to a significant degree. And barristers out on one issue, clearly close to his His Honour has a particular interest are likely to welcome a Chief Judge heart. Circling back to his time in in how courts can communicate who has a real affinity for the work the former Yugoslavia, his Honour their work to young people, and he of barristers, particularly those reflected on the very high standards linked this issue directly to both running criminal trials, what it takes of judicial competence enjoyed in social media and effective general out of them and the issues that they this State and how international deterrence: currently face: institutions had adopted the best I am extremely conscious that my traditions of our common law I recognise the challenges that young children and their friends don’t read processes. In that context, he is keen barristers working in criminal law newspapers, and they never will. So to foster a greater understanding in face. The financial challenges, as well how do we send the message out the public mind of what goes on in as the workload challenges. Running that if you get into a car when you courts, and the rigour involved in a criminal trial can be brutal. It’s are intoxicated and you kill someone, curial processes: physically and mentally draining. It’s or seriously injure someone, you all-consuming. It involves a tremendous I strongly believe that the more we are will almost certainly be facing jail? amount of work, late nights, weekends, able to communicate the work we do Young people read news on their public holidays and the like. And if to the public, the better the community telephones. If we’re serious about there is a difference between criminal will understand, appreciate and respect general deterrence working, well they law and some of the other jurisdictions our court and our criminal justice need to know it. I don’t want young it is that with criminal law, running system. So it’s important, therefore people coming to court having been trials is a mainstay of the practice. that we communicate through the charged with a serious offence, not Sure, a number settle and there are media and other means what we are knowing beforehand that jail would pleas and there are other miscellaneous doing here. And that it is done at a very be the consequence. So how do we hearings, but you can’t get away sophisticated level. communicate our sentences to them? from the fact that if you’re a criminal How do we get that message out to His Honour uses sentencing as an barrister in a higher court you’re them? I think that’s a real challenge in example: running significant trials of duration the 21st century. under huge pressure. And there are It may be that many members of the We’re confronting a new reality of some financial challenges that I am community don’t appreciate how social media and we need to ensure very well aware of also. Clearly part of complex the process of sentencing is there is this ‘connect’ between the my role is engaging with the Criminal and how there are countervailing and courts and the community, not a Bar and the relevant associations, and conflicting considerations that a judge ‘disconnect’. Against this, you need to that’s what I intend to do. must weigh in sentencing somebody, balance the requirement to maintain in particular when sending them to fair trials, judicial independence and jail. The Court needs to somehow play A Chief Judge for all, with respect for the judiciary. an educative role with the community assistance to help them better understand the And for all the reluctance to jump to As the County Court is responsible process. early conclusions, some ideas appear for the bulk of the serious criminal to be taking shape: I want to explore any means or trials in Victoria, his Honour’s huge mechanism that enables better In an environment where journalists experience in the criminal justice access to the courts such as cameras are more pressed for time, how do we system will stand him in good stead. in court, the use of social media and deliver our work to them so that they However, crime is not the Court’s publication of sentences. I don’t think can then deliver it to the community? only dominion. It also has important anything should be taken off the table. Audio and visual streaming in the jurisdictions in common law and But of course, it’s a very conservative court-room and the like? Well these are commercial law. His Honour was profession, for good reason, and any things we need to look at. keen to recognise and point to the changes can only be implemented after significance of these. He also candidly they have been exhaustively examined. Empathy for the bedevilled reflected on the more limited Care needs to be taken to ensure that if experience he has in those areas, and All courts need counsel, but perhaps we do introduce change that it’s in the how he would deal with this. Asked if the County Court more than any public interest. he proposed to sit in common law or other is the home of the working commercial, his Honour said:

66 VBN VBN 67 Not at this stage, but I don’t know When you see what occurred in Bosnia, facts of an individual case. about the future. However, I recognise which was – prior to the war – a That’s so even if the case appears the importance of those two divisions. developed, sophisticated country, and to be quite small, and I use that news and views news I see my role as making sure I provide an advanced legal culture where many term advisedly. You go up to the as much support as possible to both of people were highly educated. When Court of Appeal - you might have those divisions. the war began there was a complete a minor theft case, which throws collapse of the system and that rule of up an esoteric legal point that’s never They’ve got division heads in Judge law disappeared. really been considered before, and it Chris O’Neill in common law and Judge occupies the attention of three of the Maree Kennedy in the commercial When you see, as I did, not quite most senior judges of our State. They division. I need to learn as much as I first hand, but one step removed, produce a written judgment of some can about the work that they do and what happens when the rule of law detail analysing the particular issue to the way in which they function so I disintegrates, in that moment you deliver a principled result and justice. can provide them with the maximum realise how important a strong legal It just struck me how incredible that is, support possible. system is. And how potentially fragile and how fortunate we are, that we’ve it can be. A lot of people who were Evidently, even at this early stage, got a legal system that is prepared involved in committing war crimes the non-criminal work has been to devote all its resources and time during the war were professors, a focus for his Honour’s attention. to principle, no matter how small the doctors, lawyers, mayors, politicians, He impressed on VBN some recent case. I’d never quite appreciated that teachers and the like. People who successes: before I went overseas. It’s more of a were highly respected and would have compliment to our system rather than The commercial division has a otherwise led perfectly lawful lives a criticism of any other system. significant role to play in that they have had the war not happened. With the concurrent [ie. unlimited] jurisdiction advent of the war some of these people For all his self-effacing good-natured with the Supreme Court. You will see engaged in the most shocking and vile approachability, one senses in Chief on our website, from both of those crimes imaginable; not always directly Judge Kidd a man of deep beliefs and divisions now, some of the trial figures, but they tolerated them. So it makes convictions with an ambition to serve and time-to-judgment figures, that you reflect: what would I do if I was and promote justice in this State. they’ve achieved in the recent past. placed in that situation? What would His Honour’s view that principle is important, not just to individual cases but for the system itself, is likely to One of the things that separates those who don’t affect his approach. commit war crimes from those who do is respect for the It’s hard not to like Chief Judge written word, the rule of law. Kidd. There is a refreshing lack of bombast, and one can’t help but detect a slight and very appealing we all do? Because in a civil war, one The accidental jurist reticence about what he might have does not have the luxury of taking a His Honour does not come across as got himself into. It’s also easy to neutral position. Everyone becomes too bookish. Although a recognised respect a man who has spent the past involved in some capacity. One of the expert in some of the most difficult 20 years on his feet, running some things that separates those who don’t areas in his field, it seems clear that of the toughest cases imaginable. It’s commit war crimes from those who do as a young man it was the practice plain, however, that his Honour is is respect for the written word, the rule of law – and practice at the most more than just a tough and skilful of law. The strong, the principled and viscerally real end of the spectrum advocate. Whatever was going on at sometimes the very brave are those – that excited his Honour’s interest. Adelaide University, his Honour’s who adhere to it. For all his learning, that air stays practice as an advocate, both here with him. Perhaps because of this, His Honour’s experiences in the and internationally, has left him with there is something striking about former Yugoslavia have clearly stayed a unique insight into how justice the way his Honour talks about with him and inform his views on the works and why it is important, the bigger concepts for which he Victorian legal system: both in individual cases and more now has a significant personal broadly. In the short time that VBN My experience over there made me responsibility. Like a soldier’s view spent in his Honour’s presence, his really appreciate what we have here. about battle, his Honour’s thoughts enthusiasm for the task ahead was I remember I went up to the Court of on the rule of law have a powerful, contagious. All of this augurs well for Appeal, not long after I came back, and understated quality; the legacy of a highly successful Chief Judge. VBN a couple of things struck me about the uncommon experience: wishes his Honour every success. attention to detail our courts give to the

68 VBN news and views

In conversation with Cristof Heyns UN Special Rapporteur on extrajudicial, summary or arbitrary executions

EUGENIA LEVINE

n 8 October 2015, Nations Special Rapporteur on year. He emphasised that the Professor Cristof extrajudicial, summary or arbitrary International Covenant on Civil Heyns, United executions in 2010. and Political Rights prohibits the Nations Special One of the issues investigated imposition of the death penalty Rapporteur on by Professor Heyns in his role as for any but the “most serious” extrajudicial, Special Rapporteur, and an issue crimes, and that the Human Rights summary or arbitrary executions, he discussed in some depth during Committee has stated that drug spoke at the Law Institute of Victoria the presentation at the LIV, concerns offences do not fall within this on current issues surrounding the increasing use of unmanned category. Accordingly, it is unlawful extrajudicial, summary and systems or drones in modern under international law to apply the Oarbitrary executions, including the warfare. During his presentation, he death penalty to drug offences. The move towards greater autonomy raised some key legal and ethical difficulty, however, is that a minority in weapons systems and the challenges arising from greater use of governments, including Indonesia, application of the death penalty for of drones by states such as the USA, continue to justify using the death drug offences. The topical event was including whether drones can meet penalty for drug offences by applying organised by the Victorian Chapter the requirements of the law of armed domestic standards to the meaning of of the International Law Association conflict, the legal responsibility for a “most serious” crime. (Australia Branch). drones, and the complicated ethical Professor Heyns’ presentation Professor Heyns, from South issue of giving robots the power over addressed some of the key Africa, is a director of the Institute life and death. international law issues currently for International and Comparative Professor Heyns also addressed facing national governments and Law in Africa and Professor the use of the death penalty for drug the international community, and of Human Rights Law at the offences, an issue of relevance to provided a unique opportunity to University of Pretoria, where he has Australia following the execution engage in a discussion of these also directed the Centre for Human of two Australian citizens for drug issues with one of the world’s leading Rights. He was appointed as United offences in Indonesia earlier this experts on human rights.

68 VBN VBN 69 news and views news

The Intellectual Property Enterprise Court of England and Wales with commentary on D’Arcy v Myriad Genetics Inc [2015] HCA 35

Procedural innovations to better protect innovators PETER VICKERY*

70 VBN news and views

n September this year, the Melbourne Law »» Amendment of patents School, in conjunction with the Institute of »» Declarations of non-infringement Patent and Trade Mark Attorneys of Australia, »» Determination of entitlement to a patent, design or any hosted a public lecture by the Hon Mr Justice other intellectual property Birss, a judge of the Chancery Division of »» Employee’s compensation in respect of a patented the High Court of England and Wales (appt. invention 2013). His Honour’s subject was “To boldly reform IP »» Unjustified threats of proceedings for infringement of dispute resolution: Experience in the “IP Enterprise patents, designs or trade marks Court (IPEC)”. The presentation, and the discussion over »» Misuse of trade secrets and other breaches of confidence. dinner which followed, was an absorbing and engaging Whilst the IPEC is now part of the High Court, Patent and event. This short article includes a summary of the central I Trade Mark attorneys retain their rights of audience and observations and hard-won experience of Justice Birss litigation.1 Larger cases can be transferred from the IPEC - so please forgive the omission of slavish footnotes to list to be heard by the main High Court at the discretion his text, which is gratefully acknowledged in full. His of the IPEC judge. The High Court also routinely transfers Honour’s work promises to stimulate a conversation cases from its list to the IPEC. As with the High Court, about procedural reform in our own IP jurisdiction, appeals from IPEC decisions (if leave to appeal is elements of which may extend in due course beyond granted) are heard by the Court of Appeal. these specialist IP cases. The objective of the IPEC is to provide a forum where The themes of this article on the IPEC reforms have simpler and relatively small-scale cases can be dealt been brought into sharp focus by the recent decision with under a cheaper and more streamlined procedure of the High Court in the landmark case of D’Arcy v than the High Court. Myriad Genetics Inc [2015] HCA 35 - a judgment which Today the revitalised IPEC is regarded as a success. considered one of mysteries of the DNA double helix It enjoys an increased case load compared with the unravelled by the respondent company for the purpose former PCC and appears to be fulfilling a community of identification of susceptibility to breast and ovarian need in providing access to justice for ‘smaller players’, cancer, and for possible use in the development of better who might otherwise be denied such access. diagnostic and prognostic products and improved cancer When IPEC commenced in October of 2010, Judge therapies. A short commentary on the case is provided Birss (as His Honour then was) became its first presiding in the context of the IPEC experiment, which has judge and was the sole judicial appointment to the new proved to be a success. court. At this time, he had only three IP trials in his list. In The IPEC Reforms contrast, at the time of writing, the IPEC website reveals that after some five years of operation, it has forty current On 1 October 2010, secondary legislation came into force cases pending. Following this significant increase in in England and Wales to amend the IP Civil Procedure workload, the present IPEC presiding judge, His Honour Rules in order to introduce a new procedural scheme for Judge Hacon (appt. 2013), was provided with two deputy what was then called the Patents County Court. Under judges to assist him. From a modest beginning, the new the new Rules, the managing court was renamed the procedures have expanded court business in the IP Intellectual Property Enterprise Court. As Justice Birss jurisdiction and IPEC has commensurately grown in said, “The point of those reforms was to improve access to capacity over time to meet the demand. justice in IP matters, particularly for small businesses.” In an independent report commissioned by the UK IP The IPEC now forms part of the Chancery Division

Office published on 22 June 2015, a group of academics, illustration by guy shield/the slattery media group of the High Court of England and Wales. It provides an Helmers, Lefouili and McDonagh, said the following about alternative venue to the High Court for bringing legal the IPEC reforms: actions involving intellectual property matters. It is set up to handle a broad range of intellectual property cases, the cumulative effect of the IPEC reforms 2010-2013 has been including patents, designs (registered and unregistered), highly significant – in addition to an increase in the numbers trade marks, passing off, copyright, database rights, of filed cases at the IPEC, the creation of the streamlined other rights conferred by the Copyright Designs and IPEC… for litigating disputes… has fundamentally altered Patents Act 1988 and actions for breach of confidence. For the IP dispute landscape, and in doing so… have increased example, the IPEC may hear and determine actions and the likelihood that IP holders will attempt to uphold their counterclaims for: rights against potential infringers. In other words, now that »» Infringement of patents, designs, trade marks, copyright IP holders have the ability to utilize the IPEC… IP holders are and other intellectual property rights more confident about entering into disputes with potential »» Revocation or invalidity of patents, registered designs and infringers, where previously they would have not felt trade marks confident enough to do so.

70 VBN VBN 71 Why the need for reform? about a patent. His patent is swallowed as to recoverable damages and A short journey into legal up, and he is ruined. Whose fault is it? maximum legal costs. The costs limits archaeology may prompt an answer. It is really not the fault of the law; it do not operate to cap the amount news and views news As far back as 1892, Lord Esher is the fault of the mode of conducting which each party may spend in MR, sitting on the English Court the law in a patent case. That is what prosecuting or defending an action, of Appeal, was very critical of the causes all this mischief. but limit the costs recoverable from burden involved in litigating patents; another party for costs. Finally, the Lopes LJ in the following passage even suggesting at one point that time for trials is limited, and cases (at page 120) fanned the discomfort the process was not unlike catching are not fixed with an estimate of expressed by Lord Esher: a nasty disease. Ungar v Sugg more than two days. [1892] R.P.C. 113 concerned alleged I entirely concur in everything that has The IPEC has a ‘multi-track’ representations made by a patentee been said by the Master of the Rolls list and a ‘small claims track’ list. to the plaintiff’s customers, and with regard to the waste of time and This provides for two alternative others, to the effect that the plaintiff the terrible waste of money which procedures for bringing a claim in was manufacturing lamps which seems to have become an inherent the Court. The IPEC multi-track has infringed the defendant’s patent. belonging to these patent cases. a limit on damages of up to £500,000. In the course of his judgment, the Costs orders will be made which are That is what Lord Esher and Lord Master of the Rolls was scathing in proportionate to the nature of the Justice Lopes said 120-or-so years his criticism of the way patent cases dispute and subject to a cap of no ago. It was a real problem then and were tried in England. Cases which more than £50,000. The small claims it was, in England, a real problem he thought should last six hours, track is for suitable claims in the until more recently, prior to the he bemoaned, occupied six or even IPEC with a value of up to £10,000. introduction of the IPEC reforms. twelve days. Lord Esher said of this Costs orders on the small claims The new IPEC rules were designed malady (at pages 116-117): track are highly restricted. to reverse the situation. They The jurisdiction of the IPEC small It used to be said that there was work together to provide effective claims track is a subset of the normal something catching in a horse case: measures for reducing costs. By jurisdiction on the IPEC multi-track. that it made the witnesses perjure this means they facilitate a forum The rules limit the kinds of IP claim themselves as a matter of course. It for ‘small scale’ claimants and that may be allocated to the IPEC seems to me that there is something defendants to conduct cases without small claims track. The IPEC small catching in a patent case, which is being deterred or overwhelmed by claims track may deal with any that it makes everybody argue, and the prospect of a massive costs order, IP claim within the jurisdiction of ask questions to an interminable particularly if met by an opponent of the IPEC, save for those expressly extent – a patent case lasting six hours substantial means. excluded in this way. In practice, this is invariably made to last six days, if means the small claims track may not twelve. I am sure there ought to be The IPEC Procedures hear claims relating to copyright, some remedy for it. In IPEC the procedures for IP cases trade marks and passing off, and are streamlined by incorporating … unregistered designs and breach techniques such as: greater detail of confidence. Claims relating to Well, then, the moment there is a being required in the particulars of patents, registered designs and plant patent case one can see it before the claim; no discovery without it being varieties may only be heard on the case is opened, or called in the list. justified and leave for discovery IPEC multi-track. How can we see it? We can see it by being granted; no examination All the remedies available in the a pile of books as high as this [at this in chief of expert witnesses; tight High Court are available in the point it is reported that the Judge was control by the Judge of the issues IPEC including injunctive relief, holding up the papers] invariably, one that go to trial; and limiting court damages, accounts of profits, delivery set for each Counsel, one set for each directions to one directions hearing up and disclosure. In particular, Judge, of course, and by the voluminous or Case Management Conference search and seizure (Anton Piller) shorthand notes: we know: ‘Here is a (CMC) at the commencement of the and asset freezing (Mareva) orders patent case.’ process, which then serves to direct are available in the IPEC. There all procedural issues up to trial in one Now, what is the result of all this? Why, is one exception. The IPEC small hearing. The CMC charters the entire that a man had better have his patent claims track has no power to order procedural course of the trial from infringed, or have anything happen to preliminary or final injunctions, the outset, and sets a trial date. him in this world, short of losing all his search and seizure (Anton Piller) Additionally, significant financial family by influenza, than have a dispute and asset freezing (Mareva) orders. limits have been introduced, both

72 VBN news and views

All these remedies are, however, in the United Kingdom until 1977, commercialise an application. available in the IPEC multi-track. when the UK adopted the European The High Court has left the The 30-page IPEC Court Guide, Patent Convention 1973. The Statute delicate balancing of these issued April 2014, provides further remains to this day as a foundation competing interests where detail as to the operation of IPEC and of Australian patent law, incorporated it belongs, to the legislature. its governing rules.2 into the Patents Act by s 18(1)(a). Section 6 of the Statute declared, in Parting Thoughts Recent Developments in the Jacobean language of the day, all The appellant, Ms D’Arcy, won a Australia: D’Arcy v Myriad monopolies to be void save for: goliathan legal battle, reversing the decisions of a single judge (Nicholas Genetics Letters Patents and Grants of Privilege J - 2013) and then of the Full On 7 October 2015 the High Court for ... the sole working or making of any Court of the Federal Court (Allsop delivered its decision in D’Arcy v manner of new Manufactures within CJ, Dowsett, Kenny, Bennett and Myriad Genetics Inc [2015] HCA 35. this Realm, to the true and first Inventor Middleton JJ - 2014). Myriad Genetics Inc claimed that and Inventors of such Manufactures, Food for thought. One wonders it had a valid patentable invention which others at the time of making how many people, without the unique that covered naturally occurring such Letters Patents and Grants shall fortitude and passion of Yvonne nucleic acid that had been ‘isolated’, not use, so as also they be not contrary D’Arcy, have been denied access to where the particular sequence to the Law, nor mischievous to the justice in IP cases by the daunting of genetic coding carried with it State, by raising prices of Commodities prospect of a tortuous and costly characteristics which were indicative at home, or hurt of Trade, or generally legal process, which remains as of susceptibility to a greater risk of inconvenient ... omnipresent today as it was when breast or ovarian cancer and could Applying the ancient principles of Lord Esher penned his words in potentially be applied to other the Statute and its case law to the Ungar v Sugg so many years ago. medical procedures and therapies. sophisticated gene technology of the It is trite to say that Judges are The High Court unanimously 21st century, the High Court in D’Arcy confined to deciding cases which are allowed Ms D’Arcy’s appeal, and held held that the claimed invention did brought before them. In this context, that the invention claimed was not not fall within the definition of ‘a the D’Arcy case also illustrates the a “patentable invention” within the manner of new manufacture’. While prospect of development of our IP meaning of s 18(1)(a) of the Patents the invention claimed might be a law, in the ever important fields of Act 1990 (Cth). product of human action, it was the genetic engineering, science and The central question in the case existence of naturally occurring technology, being unduly stunted if was whether the subject matter of information stored in the relevant attention to our legal processes is the principal claim was an invention sequences of genetic code that was not critically reviewed to enable which fell within the concept of a an essential element of the invention litigants to bring worthy cases ‘manner of new manufacture’ as as claimed. before the Court. defined in the archaic language In this case, as with other The five-year experience of the of s 6 of the Statute of Monopolies. cases in this field, the principal United Kingdom with the IPEC Section 18(1) of the Patents Act sets competing interests are on the model establishes that the bold out the essential characteristics one hand the social interest in experiment has thrived, dispelling of a ‘patentable invention’ for potentially containing the costs of in its wake the doubts that were the purposes of the modern Act. medical treatment for patients, the initially expressed at the time of its Section 18(1)(a) provides: “Subject arguable ethical interest in making introduction. The recent history of to subsection (2), a patentable discoveries of things naturally IPEC demonstrates not only what invention is an invention that, so occurring publicly available, and is possible, but what is manifestly far as claimed in any claim: (a) is a the public and scientific interest in achievable. manner of manufacture within the preventing a patent over a single meaning of section 6 of the Statute of * The Hon Justice Peter Vickery is the gene establishing a barrier against judge in charge of the Intellectual Monopolies”. its later use in a quite different Property List, Supreme Court of The Statute of Monopolies was Victoria genetic procedure from that an Act of the Parliament of England, originally contemplated, and on the 1. Traditionally in the UK (unlike in passed on 25 May 1624, within eight Australia), solicitors do not have a other hand the need for a financial years of the death of Shakespeare. right of audience before superior incentive for product developers courts. It is recognised as the first statutory to invest the necessary hundreds expression of English patent law. The 2. www.gov.uk/government/publications/ of millions of dollars on research intellectual-property-enterprise- Statute was the basis of patent law and development to discover and court-guide

72 VBN VBN 73 LoreBAR

74 VBN VBN 75 The killing at Devils River bar lore KEN OLDIS*

My husband when in liquor ... used to get sometimes delusions and talk other languages. During his late illness he has threatened to take my life ... he was always drunk when he threatened to take my life and when he was sober he was always sorry for it.1

housands of words were published still night air. Elias Ellis then heard footfalls rapidly about Elizabeth Scott, the first woman approaching the dray. executed in the Colony of Victoria, “Ellis, are you asleep?” It was Davey Gedge. though not these words of hers. In “No.” 1863 an all-male jury convicted Scott “For God’s sake jump up, Bob has shot himself.” of murdering the man she married at Ellis bolted barefoot up and into the house with his 13. The Chief Justice of the Colony ensured the death trousers under his arm, straight into Bob Scott’s room. He sentence he pronounced upon her was carried out. For ran a practical eye over the body lying on its right side years before and after Scott’s case, all women convicted in the bed. Blood flowed from a wound just below and of murder were reprieved.2 Her case was different. behind Bob Scott’s left ear. A pistol lay beside him on top TScott was vilified more for her supposed adultery than of the bedclothes, which covered both arms almost to the for procuring her lover and a mixed-race cook to shoot shoulder. her bedridden spouse. She had no prospect of surviving When Ellis had seen enough in the bedroom, he went a trinity of public, judicial and executive opinion that out to find Davey Gedge, Elizabeth Scott and his wife decreed this “female monster” must be hanged. standing in the kitchen. Ellis pulled on his trousers Bob Scott ran a thriving sly grog enterprise on the and spoke his mind. “This is a bad job. There will be Jamieson-Mansfield road, where he lived with his an inquest over this job. The man never could have vivacious young wife and their two infant sons. A lodger, shot himself in the position in which he is lying.”3 Ellis 19 year old Davey Gedge, worked at the stage coach demanded to know what Bob Scott was shot with, and stables nearby. The Scotts’ cook, Macao-born Julian Cross, was told “the pistol” lying on the bed. It had been left completed the household. on a shelf within the sick man’s reach. Ellis remained One afternoon in April 1863, farmer Elias Ellis and his unconvinced about Bob Scott’s suicide, but decided wife Ellen arrived on their dray to camp overnight at Bob nothing more could be done until morning and went back Scott’s shack beside Devils River. They knew Bob was to bed. sick, having visited him earlier in the week on their way At daybreak Davey Gedge came back to Ellis with a into Jamieson. Elizabeth Scott, exhausted from nursing new version of Bob Scott’s death. The cook, “black fellow” her husband alone through the night for the past week, Julian Cross had shot Scott.4 Cross had threatened Gedge welcomed the respite of Ellen Ellis’ arrival. By candlelight at gunpoint not to betray him, and to tell Ellis that Scott the women nursed Bob Scott late into the evening. A shot himself. Gedge rode away leaving an incredulous weary Elizabeth Scott confided in the older woman that Ellis on watch while he went to notify the Mansfield her own mother had married her off to this man who police. Elizabeth Scott could not go inside the bedroom was now so in the grip of liquor and jealousy where her husband’s body lay. When the police arrived she dared not leave him. After Bob settled, to arrest Cross, he declared in broken English his Ellen Ellis left the timber hut to join her innocence, but the next day, while husband in bed on their dray. being escorted by police from Near midnight a gunshot broke the the Mansfield lock-up

74 VBN VBN 75 The young man now cast as Mrs Scott’s protector, him ill treat the Missus.”10 The young man now cast as Mrs Scott’s protector, was trapped by his bogus suicide tale. The prosecutor was trapped by his bogus suicide tale. was keen to embroil Mrs Scott in the lie. The prosecutor was keen to embroil Mrs Scott in the lie. He asked Ellis back to Scott’s shanty for the Inquiry husband Robert Scott who was 45 to identify who it was who had said bar lore into the death, he confessed and years old. He had been ill the past that Scott shot himself with the pistol, implicated Gedge in the murder. fortnight and drink was the cause but was disappointed by the answer, Whether he realised it or not, Cross of his illness. She described the “I believe this was said by David also accused the “Missus”, Elizabeth events of Saturday night: Gedge.”11 The detective had snared Scott, of murder too. According to Davey Gedge, but not Elizabeth Scott, Cross, after Gedge roused him from Mrs Ellis sat at the fireside until she in the suicide-by-pistol lie. bed and told him it was his turn to rose saying she would go and see The Inquiry was adjourned to the shoot Scott, Cross wondered aloud if where Elias was, and she remained out following Saturday. Now that Scott the Missus wanted Bob shot. Gedge about three quarters of an hour, as near and Gedge had been questioned, assured him, “Oh yes, you go and see as I can imagine. She never said good Detective Edwards applied for her.” Cross did and confessed that night and I thought as she was so long them to be remanded in custody after she said, “yes, you do it” and she was gone to bed. I went out with on charges of murder. When the gave him a glass of brandy, he shot the intention of seeing if she had gone magistrate refused to do so, Edwards Bob in the head.5 to bed. proceeded to arrest them on his Information Julian Cross own responsibility as soon as the I had not been out more than three gave police corroborated their court rose.12 minutes when I heard the report of examination of the two firearms Edwards took Davey Gedge to firearms, one single shot. I went back located at the scene. The pistol left Jamieson while Cross went back to to the kitchen door to see what had on Bob Scott’s deathbed had misfired Mansfield. Sergeant Moors put his happened and could see nothing but without discharging a shot, so it prisoner, and probably her three and smoke in the bedroom. Just as I came became an ironic prop for Davey seven year old sons too, in a cart to to the door David Gedge came past Gedge’s suicide tale. The other gun carry them to Jamieson. The little me and said he was going to call Ellis. found had recently been fired and boys went “into the care of the police I immediately turned after him and was evidently the murder weapon. at Jamieson”, their mother into the waited around the end of the house. While the police discussed the lock up.13 If Moors thought Elizabeth I followed Ellis into the kitchen, Ellis ramifications of Cross’ confession in Scott might give herself away on the went into the bedroom and came out private, Davey Gedge and Elizabeth slow journey to gaol he was wrong. and told me Scott was shot. That is all I Scott waited to give evidence at the She made no statement of any kind.14 know about the affair.7 Inquiry, unaware they were now Gedge took a different route with considered murderers. Detective When questioned Scott agreed she Detective Edwards. Not far down the Edwards, who would assist the did not rush inside upon hearing road he announced, “I’ll tell you the magistrate at the Inquiry, could the gunshot, allowing the idea she truth about it. I did not shoot him.” question them, but only if they expected her husband to be shot dead. Gedge thought not pulling the trigger remained witnesses. Once arrested The Magistrate heard her husband made all the difference: and charged, like all accused, neither had “drunk very hard for the last After Mrs Ellis had gone out, Bob got could be compelled to say anything in two years.’8 Yet Scott agreed to scolding the Missus. Julian called out or out of Court. So the question was suggestions belittling her domestic from his room, ‘what’s the matter?’ I whether to arrest and charge the pair strife. Her husband did drink, but it told him Bob was scolding the Missus before or after the Inquiry. The police made him “quiet”. He would blow up, and he came into the kitchen and took decided to ambush them.6 but it was “nothing to signify”. He up the gun that was there. The Magistrate’s Inquiry was held threatened her life, “but I never inside Scott’s shanty, with Detective took any notice of it.”9 Gedge explained the idea was to make Edwards appearing to assist the Davey Gedge gave evidence, it appear Scott shot himself with the Court. Julian Cross sat and watched repeating the story he told police about pistol by leaving it on his bed. the proceedings with no one to speak Julian Cross shooting Bob Scott. When I went in and told Mrs Scott to go out or ask questions on his behalf. Bob Detective Edwards implied that the for a while. She passed through the Scott’s body was viewed in situ and deceased’s jealousy was well-founded, kitchen where Julian was with the gun. Edwards then called the first witness, Gedge denied the smear. “I and Mr I went in to see if Bob was asleep, he Elizabeth Scott. She identified Scott never had any angry words. I was not but he was stupid and not the body in the next room as her never told him that I would not see

76 VBN VBN 77 looking towards me. Julian then went Scott’s vice was understood as being intrinsic to her to the door of the room and shot him. sex and in the blood of her female kin. He ran to bed, I ran out to Ellis and seen

Mrs Scott standing at the chimney, I the significance of this evidence and enquired into her background. bar lore pushed her further back. I called to Ellis and challenged Ellis about it, but he The sergeant begrudgingly conceded and told him Scott had shot himself, insisted she had declared it along “nothing is absolutely known against Ellis came with me back to the house, with Gedge.18 her previous character, but her and he has told the truth today.15 Mrs Ellis provided the tawdry husband was always jealous of her.” theme that hanged Elizabeth The reason for the smoke was plain By jettisoning the version of events Scott. She recalled the Wednesday to see. “When young she was very he had sworn to only hours earlier, morning before the murder. “I saw pretty and it is believed that she was Gedge did more than unwittingly the prisoners Elizabeth Scott and unfortunate through the inducements admit to murder. He imputed David Gedge come out of the shanty and examples of her mother and knowledge of the crime to Elizabeth together. They walked across the sisters.”21 Scuttlebutt and prejudice Scott before it took place, along with road to the coach stables ... they went informed the sergeant’s view. Scott’s her silent assent to the lie about the in there together, and remained in vice was understood as being pistol. On Davey Gedge’s version of the stables a full hour, when they intrinsic to her sex and in the blood events, Elizabeth Scott abandoned returned again to the shanty.” Even of her female kin. her husband for her confederates an “innocent looking lad” like Gedge Elizabeth Scott’s real vice was to murder him in his bed. understood this testimony was her demeanour. Rather than Gedge’s confession contained devastating. He only questioned this casting herself down into throes a motive for the murder; Bob got part of Ellis’ evidence, to no avail. of mourning, she “exhibited scolding the Missus, but a husband’s Ellen Ellis mirrored her husband’s the utmost levity and apparent abuse of his wife did not divert the evidence about the assignation, as indifference to the death of investigators from the theme they their reactions did at the time. To her her husband and to her own were fixed on – a treacherous wife. husband’s remark “that don’t look position,” according to Moors. Scott When the Inquiry was next well” she rejoined, “no it don’t.”19 compounded her fault by being listed, a bench of three magistrates After the prisoners were committed “very fond of any sly allusion to, or condemned the first hearing as for trial, Sergeant Moors reported any joke on obscene topics”, and “irregular and illegal”, and refused to District Headquarters. when “encouraged her conversation to recommence it. Instead, the was more like that of a common trio were formally charged with The evidence is presumed to be tolerably streetwalker than of a proper murder and remanded for committal conclusive against the two male woman.”22 proceedings.16 prisoners, but not so much so against the The sergeant kept his most At the committal, Elias Ellis, female prisoner. The presumption is that damning commentary as a motive for now accompanied by his wife the prisoner Gedge and the prisoner Scott the murder. “She only appeared to be Ellen, changed his tune. Husband and were more intimate than prudent and depressed in spirit but once, and that wife became the body and soul of the that the murdered man was an obstacle was on the morning that the prisoner prosecution case against Elizabeth in the way of their desires, and that the Gedge left for Beechworth Gaol. She Scott, who had disgusted Mrs Ellis prisoner Cross was made a cat’s paw watched his departure and then had by playing cards with Davey Gedge of to commit the murder, but at present a long and hearty cry.”23 the afternoon after her husband’s there is almost a total absence of any Chief Justice Stawell presided murder. It was not the way a proof as to motive.20 over the Beechworth Circuit of the bereaved widow behaved. Moors shared the popular Supreme Court. The trial of Scott Since the Inquiry, Ellen Ellis had presumption about the Scott case— and her co-accused began and ended sharpened her husband’s memory adultery was the catalyst and Cross on the first Friday of the sittings. All about the lies told by the accused. the instrument of the murder, three were represented and none This time Elias Ellis detailed how while admitting its most perplexing made a statement from the dock. At Mrs Scott and Gedge were as one in aspect. The confessions of Gedge the time a defendant in a criminal discussing the circumstances of the and Cross implicated Elizabeth trial could not give sworn evidence shooting. And on the crucial issue of Scott in the murder, but were not in their own defence. The whether Scott adopted the lie about evidence against her. In her case confessions of Gedge and Cross suicide by pistol, the Ellises were the prosecution relied on innuendo would go virtually unchallenged— both adamant. “Mrs Scott and Gedge rather than evidence. so their convictions were inevitable. with the same voice replied, ‘With the For nearly a month the sergeant Elias Ellis was called to the witness pistol’.”17 Elizabeth Scott appreciated keenly observed his female prisoner box first. When he swore that Scott

76 VBN VBN 77 Once the jury of husbands imagined young Davey man persisted in stating that no Gedge secluded in the stables with the murdered man’s improper intimacy took place.30 Even wife, Elizabeth Scott’s conviction was certain. so, the newspapers still preached the executions would be a “warning and discourage sinful desires”.31 and Gedge chorused their complicity guilty. His Honour quite agreed with There was no Court of Criminal

bar lore in the murder by answering “the the learned counsel Mr Stephen that Appeal in 1863. Scott had no pistol”, to his question, “What did the case was in some respects the most recommendation from the jury for the man shoot himself with?”.24 extraordinary he ever met with. The mercy, usually a vital element in Scott’s counsel succeeded in confessions of the prisoners were in having a death sentence commuted unsettling Ellis, who conceded, each particular case only applicable to by the Executive Council. The “I am not positive, but I think the the person making the confession. It Governor and his Councillors woman Mrs Scott said so too.”25 was necessary for the jury to decide at considered the view of the trial judge Ellen Ellis put the verdict the outset if the story of the prisoners and often petitions from the public. beyond doubt. Scott was cast as an Scott and Gedge was true that the By 1863 the police informed the audulteress who conspired with deceased had shot himself. The Council on the character of convicts. her paramour Gedge, to murder prisoner Scott had made no confession. Sergeant Moors comprehensively her helpless spouse. Elizabeth Scott Nevertheless she had, if the evidence is smeared Scott’s character in likening was a malcontent, reciting a litany believed, acknowledged that to be true her to a streetwalker, a widow not of complaints on the night of the what she knew to be untrue about her at all mournful who was only ever murder: grievances about her own husband’s murder. He had never known distressed by separation from her mother, and marriage to her hard a case where it was so necessary for paramour.32 Detective Edwards drinking, jealous husband. a jury to be careful as in this. The jury provided a pithy appraisal, “her And there was no doubt in her must consider each case separately and husband was jealous of her”. mind, she was positive, Scott had if they had a doubt, give the prisoners A petition from Mansfield residents answered “with the pistol on the bed”, the benefit of that doubt.27 in support of Scott was reported in when asked about the killing.26 And Elizabeth Scott never confessed. Yet the local press, but if ever created, the good wife needed no prompting by directing the jury about “what it never found its way onto the to tell the jury how Mrs Scott and she knew to be untrue”, being the Executive Council file. Yet aside Gedge went into the stable together: suicide-by-pistol lie, the Chief Justice from moral assessments Elizabeth “They remained there an hour.” emphasised an implied admission Scott was described as intelligent in Throughout the trial Mrs Scott sat tantamount to a confession. Ellen conversation, of vivacious disposition, quiet in the centre of the courtroom, Ellis and her husband certainly and as being fairly educated and well sharing a dock with self-confessed decided Elizabeth Scott’s fate, albeit informed.33 murderers, once again in the thrall implicating her via the pistol lie was On Friday 30th November, Chief of men. Her counsel argued on Scott’s only a legal means to a guilty verdict. Justice Stawell was invited into behalf that, given the presence of Prurient Ellen Ellis introduced the the Council Chamber where he witnesses, the care she had given notion of a tryst into the trial. Once explained “some of the material her ill husband, and the fact that all the jury of husbands imagined features of the evidence”. The believed he would soon die, why be young Davey Gedge secluded in the judge emphasised the jury did not involved in his murder? The judge stables with the murdered man’s accompany their verdict with any then had Ellen Ellis recalled. She wife, Elizabeth Scott’s conviction recommendation to mercy. Most told the jurors when she left the was certain. The jury retired and significantly there was “no shadow house before the shot, Gedge and returned with three guilty verdicts in of a doubt of the guilt of the whole Mrs Scott were “sitting together on 30 minutes. of the prisoners.” The Councillors a form in front of the fire.” The last Stawell implored the convicts to unanimously recommended all three evidence the jury heard was that prepare for their future state before capital sentences be carried into the wife and her lodger were alone sentencing them to be hanged.28 execution. The Governor concurred together just before the murder. Elizabeth Scott showed no reaction to with the advice. The prisoners would A journalist recorded the Chief the verdict or sentence. die on 11 November 1863.34 Justice’s charge to the jury: Before her death the newspapers Scott was visited by her “respectable His Honour laid down the law of the pilloried Scott, sympathising with looking” sisters to the last.35 On the case respecting murder very clearly the “wretched young man Gedge, eve of their execution, all three passed and pointed out that under the present who it would appear, had been led to a night of undisturbed rest. On being law those who were guilty in the first, a course of crime by the seductions awakened in the morning, they did not second or third degrees were all equally of the woman Scott.”29 Yet the young exhibit any traces of special mental

78 VBN VBN 79 Mansfield 25th April 1863, Criminal 36 suffering. Each prisoner was let out Orphanage in Melbourne after their Trial Briefs VPRS 30 Unit 261, 44-45. to have their arms pinioned. Cross mother’s execution.40 16 Sgt. J. Moors to O.I.C. Benalla Police, 28t stepped out first. He joined in the Elias and Ellen Ellis returned April 1863 VPRS 937 Unit 46.

incantations of the priest with fervour, to their farm outside Violet Town bar lore 17 Deposition of Elias Ellis, page 6. while an acolyte held up a crucifix after the trial. Two years after Deposition of Ellen Ellis at Mansfield before him like a wand. Gedge began Elizabeth Scott’s execution, Ellen 20th April 1863 Criminal Trial Briefs, well, calmly submitting to his arms Ellis was found face down in her VPRS 30 Unit 261, page 18. being tied, but before it was done he bed. A coroner found she “died from 18 Ibid, 10- 11. broke down, crying streams of tears suffocation while in a helpless state 19 Ibid, 22: deposition of Ellen Ellis at down his young face. from drink.”41 Mansfield 24 April 1863. When Elizabeth Scott came out 20 Sgt. J. Moors to O.I.C. Benalla Police 28 * Ken Oldis is a member of the Victorian April 1863, VPRS 937 Unit 46. everyone was struck by the bold, Bar and the author of The Chinawoman 21 Sgt. J. Moors to O.I.C. Benalla Police 27 yet not exactly defiant aspect of her (2008, Australian Scholarly Publishing), which records the police-hunt for the October 1863. Capital Case Files, VPRS countenance. There was no trembling murderers of an English prostitute 30 Unit 261. which fanned anti-Chinese hysteria in of the limbs, no paleness of cheek or 22 Ibid. lip, no quiver of the eye, and indeed colonial Melbourne. 23 Ibid. no indication that she was filled with 1 VPRS: Victoria Public Record Office dread of the hangman’s touch as any Series. Deposition of Elizabeth Scott at 24 Trial transcript, page 5 Elias Ellis Devils River 13th April 1863. Criminal Criminal Trial Briefs, VPRS 30 Unit 261. women not altogether of adamantine Trial Briefs, VPRS 30 Unit 261. heart might be expected to be. She 25 Ibid, 10. 2 In 1860 Ann Hayes stabbed her seemed entirely unsexed; and in point husband to death during an argument 26 Ibid, 15. 37 of nerve far excelled her fellows. over groceries. Her death sentence was 27 The Ovens and Murray Advertiser commuted to 15 years imprisonment, 24/10/1863. Dressed sombrely in black, her VPRS 1080 Unit 5 Minutes of the 28 The Ovens and Murray Advertiser hair fashionably braided, Scott Executive Council 1860 page 371. Most murders by women were infanticide. 24/10/1863. held a white cambric handkerchief. Although Margaret O’Donohue’s 29 The Herald 12/11/1863. The executioner silently fastened sentence was commuted, she murdered her thin arms and then crowned a fellow prostitute in 1872 for calling her 30 The Ovens and Murray Advertiser mother a whore, VPRS 264 Unit 7. 27/10/1863. her with a white cotton cap. Scott 3 Deposition of Ellias Ellis at Devils River assisted his work by posing herself 31 The Herald 12/11/1863. 13 April 186,3 Criminal Trial Briefs, properly. The procession moved VPRS 30 Unit 261, page 5. 32 Sgt. J. Moors to O.I.C. Benalla Police, 27 off accompanied by religious October 1863 Capital Case Files, VPRS 4 Julian Cross said that his father was 30 Unit 261. murmuring and out into the Portuguese and his mother Chinese; yard where the gallows stood. other reports described him as Malay. 33 The Argus 9/11/1863. Elizabeth Scott exhibited no sign 5 Deposition of Constable J Bruce at 34 VPRS 1080 Unit 8, Minutes of the of trepidation, later explained as Mansfield 24th April 1863 Criminal Trial Executive Council 30/10/1863, pages Briefs, VPRS 30 Unit 261, page 5. 101-3. a failure by her spiritual advisors to make any impression on her 6 Sgt. Moors to The Officer in Charge 35 The Herald 11 & 12/11/1863. Benalla 8/12/1863, VPRS 937 Unit 43. hardened feelings.38 36 The Herald 12/11/1863. 7 Deposition of Elizabeth Scott at Devils On the scaffold Scott declared 37 Ibid. River 13th April 1863,Criminal Trial herself entirely innocent. Almost Briefs, VPRS 30 Unit 261, pages 7-8. 38 Ibid. within arm’s reach of him, Elizabeth 8 Ibid, 5. 39 Ibid. Scott turned and asked, “will you clear me now Davey?”. 9 Ibid, 6. 40 CCP Standish letter of 30/11/1863, VPRS 1189 Unit 671. Thomas was killed 10 Ibid, 10: deposition of David Gedge at The weeping youth said nothing. in a horse riding accident in 1879 the Devils River 13 April 1863. The words hardly left her lips day after he turned 20. John died on the before the bolt was pulled and Scott 11 Ibid, 5: deposition of Ellias Ellis at anniversary of his mother’s death in 1936. dropped through the trap door. Devils River 13 April 1863. Observers saw her suffer. When 12 Det. Edwards to Supt. C. Nicolson 26th 41 VPRS 24 Unit 169 Ellen Ellis Inquest November 1863, VPRS 937 Unit 43. number 384, 1 December 1865. they took her down the men saw she was fearfully altered, her head 13 Chief Commissioner of Police Standish I must acknowledge Anne Hanson’s A memorandum of 17/11/1863, VPRS 1189 White Handkerchief: The story of Elizabeth and distorted purple face were Unit 671. Scott, the first woman hanged in Victoria, swollen immensely.39 They had their (Beechworth 2010), available in CD format 14 Sgt. J. Moors to O.I.C. Benalla Police 8th female monster now. and online at https://sites.google.com/site/ December 1863, VPRS 937 Unit 43. awhitehandkerchief/. The police put Elizabeth Scott’s 15 Deposition of Detective J Edwards at orphaned sons in the Protestant

78 VBN VBN 79 The Commonwealth Law Reports

A personal reflection byJ D MERRALLS

have been asked for a piece giving a human industry. The company that was authorised to publish the face to 253 volumes of the Commonwealth judgments of the new High Court was not a branch of a Law Reports. Actually 253 is 254. The huge international concern but a small Melbourne firm publishers’ first avowed intent to publish which grew out of the publishing side of the law stationer’s annual volumes foundered with the advent business of George Maxwell. The first two volumes were of Mr Justice Isaacs in vol 4, which, to hold published under the imprint of the Law Book Company, hisI outflow, became two volumes: parts 1 and 2. And so the next 28 under that of Maxwell. 254 volumes have been published over 112 years. I became a reporter for the CLR in 1960, two years before There have been many human faces behind the reports: the retirement of Horace Lambert as managing director of those of publishers, editors, reporters and contributors. the Law Book Company. I mention him not because I knew In 1903, law publishing in Australia was a cottage him but because he was a link with the earliest days of the

80 VBN company. He joined Maxwells in 1901, A link with Federation was provided by became managing director of the W.A. Barton, a son of the first prime minister Law Book Company in 1915 and held and original member of the Court, who was that position until retirement in 1962. bar lore Amongst his achievements was the one of the first group of reporters. establishment of the Australian Law Journal in 1927 and of The Australian who had been an ALT reporter since But by volume 14, Bennet Langton Digest four years later. He was what 1904. Langton attended the sittings was the sole reporter. would now be called a “hands on” of the High Court as a reporter in Alfred H Hayball followed CEO. Though not a lawyer he is said to Melbourne, Sydney, Adelaide and Anderson as editor of the CLR in have proofread every galley of the ALJ. Hobart. His obituary in the Australian 1913. He too was a full time reporter. I did know his successor, David Law Journal records that “He was He seems to have been a bit of a Caithness, another old hand, who much esteemed by members of the character. On leaving school he served expanded the company’s text book legal professions, who always found apprenticeship as a printer at the publishing, and I had a close and him willing to give assistance to any Brighton Southern Cross newspaper happy association with all the of them who sought it in matters before proceeding to Melbourne managing directors and chairmen within his intimate and extensive University where he graduated in until the company left its cottage and knowledge of the decisions and Arts and Law. In his obituary it was moved to the metropolis. Dr James practice of the High Court. His reports said that he regarded his technical Williams, author of a treatise on the are characterised by accuracy and knowledge of the art of printing as Statute of Frauds and editor of the clearness.” standing him in good stead in his best modern contracts text, became The reports were at first edited, work of editing, in which he took an active chairman after retirement printed and published in Melbourne, great delight, and the production as a vice-chancellor in New Zealand; where the principal registry of of the reports became his life work. Don Potter, who appointed me as the Court was located. A link with A knowledge of printing was no editor, had a printing background; Federation was provided by W.A. disadvantage because until 1975 the and Tony Lees was an English Barton, a son of the first prime reports were set by a process known solicitor who came from editing minister and original member of as monotype which used individual and publishing at Sweet & Maxwell. the Court, who was one of the first pieces of metal for each character. The first editorial and reporting group of reporters. But his association The reports stayed in their cottage team were in the main Maxwell was brief. Even then the prime for rather a long time. I am grateful men previously involved with the ministership had an association with that for many years I have had the Australian Law Times, an unofficial New South Wales Rhodes Scholars. able assistance of someone who series of reports of the judgments of Wilfred Barton was the first Rhodes has performed many of the myriad the supreme courts of the southern Scholar for that state. He practised tasks that poor old Mr Hayball had states. The tale of their succession later at the London Bar, appearing in to undertake himself: Carolyn May, reads like the Book of Kings. The first the years between the Wars as junior production supervisor of the reports editor of the CLR, James C Anderson, in many notable cases from Australia in Sydney, who has held that position became editor of the ALT in 1889, before the Privy Council. since 1987. She understands the having been a reporter at least since The original reporter of New South computers that are the modern 1885. He belonged to the old school Wales cases was C A White, who later equivalent of monotype, while of law reporters. Though a member became the senior judge of the District I have yet to begin apprenticeship of the Bar, with a room in Selborne Court of that state. No reporter was in that field. Chambers, he appears to have worked appointed from the other states, the Harry Hayball was editor for 31 full time at reporting, moving from reporting of cases from the outstations volumes and 21 years until his death court to court to find suitable cases being assumed by the associate in 1934. His successor, E F Healy, also and note judgments. He edited the of one of the Justices, initially the came from the Australian Law Times. ALT as well as the CLR until his death associate to Mr Justice O’Connor, the That great legal editor Jean Malor in 1913. He was assisted in this by redoubtable H E Manning—who was once told me that she considered Bennet Langton, who reported most to be the first former reporter to be him to have been the best editor the High Court cases from the inception knighted (not wholly in recognition reports ever had. The headnotes of of the CLR until his death in June of his contribution to the craft of law his time confirm that opinion. They 1929 (vol 41). He succeeded Anderson reporting). He was followed by Sir are concise, accurate and consistent. as editor of the ALT and held that ’s associates Norman Healy also had the advantage of position until his death when he Pilcher and H V Jaques and Sir editing the reports in the years of was followed by Alfred H Hayball ’s, Norman McGhie. Sir Owen Dixon’s dominance of the

80 VBN VBN 81 bar lore

82 VBN VBN 83 Court. Even so his manifold qualities Conversations with Sir Garfield were only one way. did not save him from dismissal in He knew nothing about the problems or practice of 1941 when he refused to accept a

reduction in salary as a wartime law reporting but his fertile mind produced a host of bar lore austerity measure. Volume 66 ingenious ideas. contains the report of an appeal from the Supreme Court of Victoria in the His successor, Bruce Macfarlan, editor by my mentor Bob Howell, master and servant case of Healy v editor for 13 years and 29 volumes, from whom I learned much. A The Law Book Co of Australasia Pty also was a leading barrister and one breakdown in his health contributed Ltd. Sad to say the appellant lost, but whose work lay more in the High to his resignation in 1969 but he Mr Justice McTiernan’s judgment Court itself. It was he who completed answered a call to the colours in notes that the company’s letter of the change of practice in recruiting 1974 to become editor of the New termination expressed regret at the reporters, enlisting the likes of South Wales Law Reports, holding severance of their relations and Francis Burt in Western Australia and that position for five years until his appreciation of the appellant’s work Richard Searby in Victoria. When I death at the age of 55. He was a fine as editor. Healy was down but not out, became a reporter at vol 103 in the man and it is regrettable that he for the title page of that same volume year after Macfarlan’s appointment did not achieve as much in the law records his return to the fold as a to the Supreme Court, Simon Sheller as his ability deserved. We shared reporter, and so he remained until and Geoffrey Kennedy were amongst a common interest in attempting to his death in 1952, 20 volumes later. those on the strength. Macfarlan’s breed and race thoroughbreds at the For most of that time he doubled as recruiting practices continued highest level with modest resources. associate to Mr Justice Starke. under his successor and in my own I can speak of relations with the On Healy’s termination the time. My first appointment was of a Court only from my own experience. editorship moved north. I suspect Vinerian Scholar, Ross Sundberg, There have been six Chief Justices this was a wartime expedient, for the whose initials appear at the tail of in my term as editor. Though I have new editor, Bernard Sugerman, was most cases from vol 118 to vol 183. He known them all, my closest contact a Law Book Company stalwart, who was a reporter for 26 years from 1969 was with Sir Garfield Barwick. had been editor of the Australian Law until 1995 when he became a judge He liked to have his finger on Journal from its foundation in 1927 of the Federal Court. His term as everything connected with the Court as well as the editor-in-chief of the reporter just exceeded that of Bennet and so we met over a meal or a cup of Australian Digest. One must admire Langton but, unlike Langton, he tea whenever he visited Melbourne. his capacity, for, as well as meeting combined the work with a substantial Conversations with Sir Garfield his publishing commitments, he was equity practice. Of his contribution were only one way. He knew nothing a lecturer in the Sydney University to the reports, not only as reporter about the problems or practice of Law School from 1926 to 1943 and he but as the source of second opinions law reporting but his fertile mind also conducted an extensive practice. about suitability, it is impossible to produced a host of ingenious ideas. He was the first editor also to be speak too highly. One was that cases on the borderline engaged in active practice and his In the last 40 years, the group for inclusion should be printed on appointment set the pattern for the of reporters has been drawn from perforated paper. After three (or future. The old breed of professional Vinerian Scholars, Rhodes Scholars, perhaps five) years they should be reporters also disappeared, the prize winners from Australian reconsidered for permanency. If last being Joseph Bales of the universities, associates of High they made the grade they would be New South Wales Bar, whom I Court Justices, and other young reprinted with proper page numbers. can remember at Taylor Square barristers of high distinction. Former If not, they were to be torn out upon in my days as an associate. reporters have become judges of pain that if they remained no Court Sugerman was made silk in most superior courts of record, State was to permit them to be cited in 1943. He resigned as editor in and Commonwealth.1 We await our argument. Another idea, not so 1946 to become a judge of the first alumnus on the High Court much for reports as for judgment- Commonwealth Conciliation and bench to have been a fully fledged writing itself, was that there should Arbitration Court and was later a reporter, but one Justice did make a be what he called a syllabus of facts judge of the Supreme Court, the Land brief initialled appearance.2 It should and issues for each case, prepared and Valuation Court and the Court also be mentioned that Sir Frank by an officer of the Court, to which of Appeal of New South Wales, from Gavan Duffy was the first editor of the reasons of Justices would be which he retired as president in the Australian Law Times, which had appended. This was proposed as 1970. He was the first editor not to be so many links with the CLR. a remedy for excessive length. I retained under a contract of service. Bruce Macfarlan was followed as offered the opinion that the remedy

82 VBN VBN 83 But from over 50 years as a reporter and over reporting is distillation. The function 45 as editor I do have a favourite contributor. is not always understood. When I was mentioned in an honours list a Sir ... few years ago, a short piece appeared in a local newspaper. A reporter was perhaps too drastic and that it Twenty-two years later, from parts telephoned in the belief that I was would be preferable for the Justices north, south and west of Mosman,

bar lore the head of the Commonwealth to consult in conference about the we have judgments that have the court shorthand service. I told her contents of individual judgments appearance of Halsbury’s Laws of something about the reports. In due with a view to co-ordinating them. Australia, judgments that have the course the item appeared. It said that This suggestion was dismissed with appearance of a chapter for the I had read every judgment of the scorn. “That would require them to next edition of a learned treatise, High Court in the past 30 years. I had adopt cabinet method. What,” he judgments that have the appearance then removed the meaning to make said with a contemptuous flick of of annotated statutes, judgments that them fit for publication. the thumb, “what would they know have the appearance of transcripts One of the hardest tasks in about cabinet method? At the end of evidence and so on, but judgments reporting and editing judgments of of each case, each crawls off to his ever longer and longer and less like an appellate court is to know when monastic cell and therein writes his those of pre-footnote days. and how to combine in holdings judgment.” A third proposal was that The editor of the Australian the reasons of separate judgments. the High Court should take over Law Journal once wrote about A decision has to be made whether the production of the reports in the his favourite volumes of the to regard concurrent judgments as basement of the new building in Commonwealth Law Reports. I have saying similar things in different Canberra. A judge who had retired none. I have only relief when each language or as differing in the from the Supreme Court of New volume hits the shelf. But from over substance of reasoning. Sir Frederick South Wales after a stroke would be 50 years as a reporter and over Pollock mastered the art of combining the editor and the associates would 45 as editor I do have a favourite reasons in common propositions compose the headnotes. I told him contributor. Sir Frank Kitto was not when editor of the English law that in my experience it took about only a skilful practitioner of the art reports. Healy managed it too as editor a year to train a reporter, but he did of judgment-writing. He also wrote a of the CLR. But I have always found it not want to hear. Soon after that the brilliant paper about that art which difficult and have perhaps burdened ex-judge died and the government ought to be in the kitbag of every headnotes with distinctions without refused funds for the publishing new judge.3 He wrote of the travail difference. Some reporters have the venture. “You win,” he said, as though of the “throes of putting ideas down knack. Others do not. I had been left clutching a coveted on paper, altering what has been Changes other than footnoting prize. written, altering it a dozen times if have occurred over the past 20 years. The other Chief Justice whom need be, putting it away until the At the suggestion of Sir Gerard I should mention is Sir Anthony mind has recovered its freshness, Brennan paragraph numbers were Mason—Sir of even tearing it up and starting again” introduced in 1999 (vol 192). At Mosman. He showed practically no so as to obtain what is all “most of us the same time the Court adopted a interest in the reports and so I was [can] hope to get, in a difficult case, numbering system for cases, which intrigued to receive a telephone the fruits of the requisite intensity of in conjunction with paragraph call from him out of the blue. penetrating thought, the best we can numbering has facilitated the He enquired about the practicability do in the direction of profundity”. adoption of what have become of printing footnotes to judgments. He did just that. But with beguiling known as medium-neutral citations. I said that it was a technical matter artifice. His judgments give the To accommodate paragraph numbers but I thought that there would be impression that when he picked marginal titles were discontinued no problem. I asked why footnotes. up his pen he knew precisely the and an unsatisfactory system of “Some of my colleagues want their path it would follow. The judgment running head titles was adopted. judgments to have the appearance moved with clarity and precision, Conventional short titles for citation of an article in a learned journal”, and nary a spare word or a loose are now to be found only in the he said. Since at the time Sir phrase, to a conclusion firmly fixed tables of cases reported at the Anthony was cultivating certain in his mind. Proper words in proper beginning of volumes. English learned journals which took places marked the true definition of Since the requirement of special pride that their articles looked like his style. For the reporter the essence leave for all appeals to the High judgments, I found this explanation was already there. Court was adopted by amendment a little confusing. But the decision The essence is not always there, of the Judiciary Act in 1976, the was made and a new era dawned. and an important part of law

84 VBN VBN 85 number of reportable decisions The editor now must deal with Editors’ Note has increased and fewer cases materials, judgments, drafts ictorian Bar News is pleased are excluded from publication and proofs at five stages before to publish this account of the

in the CLR. The annual tables of publication. Draft reports and bar lore history of the Commonwealth Law unreported decisions of the Full galley and page proofs are also V Reports by James Merralls, who has been Court now contain few ultimate read by the publisher’s experts their editor since 1969. Since that time decisions.4 When an appeal lay at three stages. Yet errors slip technology has so altered the process of from every judgment which through and the editor is seldom publication that many barristers may never involved a claim to or respecting satisfied with the published actually hold a volume of the CLRs in their any property of the value of result. hands. The way we read them might have $3,000, the Court was powerless The other major change of changed, but the essential value that they to reject dross. Many cases were recent years is in the form of bring to the reader remains the same- and not only unsuitable for the CLR publication of the reports. it is to be found in the skill of the reporters. but also for publication in the Bare bones versions of the In an address to mark the 150th anniversary Australian Law Journal Reports judgments are made available of the establishment of the Council of and the Australian Law Reports. on electronic media by entities Law Reporting on 6 October 2015, Lord All judgments assigned an HCA such as AustLII and the Court Neuberger, President of the Supreme Court number are now published in itself. The printed reports of the United Kingdom made the following the ALJR and so the editor’s provide what is called added remarks: occasional decision to omit a value through headnotes, case accepted for decision by curial histories and summaries “Law reporters are the unsung heroes and the Court only to correct blatant of argument. Because of the heroines of the common law. The role of judges error has no real significance. inadequacy for practical and legal practitioners in developing the common Only a handful of cases are purposes of reliance on keywords law has been taken for granted for centuries. And omitted each year. in searches for judgments, while the role of legal academics has become fully Another change resulting from catchwords have special value. recognised relatively recently, the contribution of new practices is in the quantity The publishers of the CLR have law reporters is not always properly appreciated. of material supplied to reporters. entered the electronic age not Selecting important cases, preparing a headnote, Until the late 1980s reporters by providing a new unique form ensuring judgments are accurate, identifying the received only the appeal books of reports but by publishing the facts, history and cases cited, and summarising or other initiating documents, the printed version in page form the arguments precisely, all require expertise, transcripts of oral argument and electronically. A decline in print intelligence, care and effort. And, the moment carbon copies of the judgments. subscriptions has been balanced one stops to think about it, one realises how great Now all documents before the by electronic subscriptions an influence law reporting must have had on the Court are conveyed, usually filling from users who wish to retain development of the law. In the past, unless they an archive box. In summarising access to the added features. The were reported, judgments were hard to know argument reporters have, as well electronic age thus has brought about or to find, so the selection and other tasks as the transcript, the written no changes in the method carried out by the law reporters plainly played a submissions, outlines of oral and style of reporting and the vital part in the perception and development of argument, myriad accompanying editor has been untroubled by the law. documents, and sometimes modernity. The reports have not subsequent memoranda. As well yet acquired a robotic face. Even now, with the electronic reproduction and as the judgment booklet, they have 1 Eighteen named reporters have consequent easy and immediate access to so the Court’s own summary of the been appointed to State Supreme many judicial decisions, law reporting plays a decision. Marrying the written Courts (including six to Courts of vital role. The very fact that so many cases are Appeal and two Chief Justices) and and the oral requires skill and seven to the Federal Court. available electronically means that selecting and judgment. With so much material reporting the really important decisions is as 2 See Thomas v Hollier (1984) 156 CLR to be digested it has become 152. vital as it ever was, as are the other law reporting harder to condense argument. functions. In the legal world, just as in most 3 “Why Write Judgments?”, Australian Logistical problems with this Law Journal, vol 66 (1992), p 789. other fields, a significant present day problem is host of materials have led to a The paper was presented to a information overload, whereas the corresponding change in appointment practice. convention of judges in 1973. problem [in the past] has been information To facilitate access to documents 4 The table for 1974 in vol 130 scarcity”1. contained notes of 40 cases, 23 of by the editor as well as reporters, 1 Victorian Bar News is grateful to his which were fully reported in the reporters are now appointed only ALJR. The table for 2013 in vol 252 Lordship for granting permission to from the Victorian Bar. contained notes of six such cases. reproduce his remarks.

84 VBN VBN 85 bar lore

A case in history: R v Richards; Ex parte Fitzpatrick and Browne1

CLIFF PANNAM

… an unprecedented case of privilege in which Parliament Commonwealth Parliament. defended itself with a zeal that many outsiders regarded as There was public feeling as to how it could be that the excessive. It was rather as if the House had been annoyed by Commonwealth Parliament as a legislative body and not a two blow-flies, and used its new Mace to swot them.2 court of law had the power to imprison these men. It was a lively topic of debate in our I.L.M. classes, and generally ay back in June 1955 I was a on the University campus. first year law student at the Arthur Turner told us that the imprisonment decision University of Melbourne. One was to be the subject of an urgent legal challenge before of my subjects was Introduction the Full Bench of the High Court sitting in Melbourne to Legal Method (I.L.M.). The and those of us who could do so should attempt to attend. teacher was Arthur Turner, Turner said the case would turn upon the meaning, effect the sub-Dean of the Law School. The newspapers were and relation between two sections of the Commonwealth W 3 full of reports, comments and criticisms about the fact Constitution – sections 49 and 71. that on 10 June 1955 the Commonwealth House of The case was heard in the No. 1 Court of the then High Representatives had decided to impose prison sentences, Court building in Little Bourke Street. I arrived very early effective immediately, on two Sydney men. The men were and was fortunate enough to obtain a seat. The Courtroom alleged to have committed a serious contempt of the was packed. P.D. Phillip QC leading A. Mason appeared

86 VBN VBN 87 for Raymond Fitzpatrick; R.J. Newton, I was more than a little surprised His Honour then turned to deal with J.M.I. Young and N.M. Stephen that all of this argument was Mr Phillip’s central argument. appeared for Frank Browne; and J.D. taking place without any reference It is correct that the Constitution

Holmes QC leading Else Mitchell whatsoever being made to any of the bar lore is based in its structure upon the appeared for the respondent. Little facts of the case. From the judicial separation of powers. It is true that the did I know then that I was later to interventions during argument it judicial power of the Commonwealth come to know both Phillips and seemed that these were regarded by is reposed exclusively in the courts Holmes quite well.4 the Court as completely irrelevant. contemplated by Chap. III. It is further I was overwhelmed by the Once the House of Representatives correct that it is a general principle of spectacle. The seven High Court had resolved that the men were construction that the legislative powers Justices presided over by the Chief “guilty of a serious breach of should not be interpreted as allowing Justice, Sir Owen Dixon. Behind privilege” such that they should be of the creation of judicial powers or them, as an observer, sat Sir “kept in custody until the 10th day of authorities in any body except the Raymond Evershed resplendent in September, 1955” and the Speaker courts which are described by Chap. his robes as Master of the Rolls who had issued warrants for them to be III of the Constitution. Accordingly, it was visiting Australia and was a guest taken into custody based on those is argued that a strong presumption of the High Court. A crammed wigged resolutions, that was the end of the exists against construing s. 49 in and gowned Bar table. Beautifully matter. a sense which would enable the dressed and hatted women sitting in The Court did not call upon Holmes particular power we have before us to what appeared to be the jury box. QC. It delivered its Reasons in such be exercised by the Senate or the House The transcript of P.D.’s argument is an important case orally and briefly of Representatives. … in the National Archives of Australia the day after the argument finished. and is available on the web. His The Joint Judgment was delivered by The consideration we have already main argument seemed both simple Dixon CJ. His Honour referred to the mentioned is of necessity an answer and compelling. The Parliament situation in England and said: to this contention, namely, that in hearing the charges against the in unequivocal terms the powers … It is unnecessary to discuss at length men; finding them guilty; and then of the House of Commons have the situation in England; it has been ordering their imprisonment, was been bestowed upon the House of made clear by judicial authority. Stated exercising federal judicial power. Representatives. … It is sufficient to shortly, it is this: it is for the courts to This was a power that the legislative say that they were regarded by many judge of the existence in either House arm of government did not have authorities as proper incidents of the of Parliament of a privilege, but, given because it vested exclusively in the legislative function, notwithstanding an undoubted privilege, it is for the courts as provided for in section the fact that considered more House to judge of the occasion and 71 of the Constitution. Assuming theoretically – perhaps one might even of the manner of its exercise. The both that the House of Commons say, scientifically – they belong to the judgment of the House is expressed by had such a power and that the judicial sphere. But our decision is its resolution and by the warrant of the Australian Parliament had not based upon the ground that a general Speaker. If the warrant specifies the declared otherwise, section 49 had to view of the Constitution and the ground of the commitment the court be interpreted so as to exclude the separation of powers is not a sufficient may, it would seem, determine whether exercise by the Parliament of judicial reason for giving to these words, which it is sufficient in law as a ground to power whatever other powers the appear to us to be so clear, a restrictive amount to a breach of privilege, but if Parliament may have had in relation or secondary meaning which they do the warrant is upon its face consistent to the protection of its powers, not properly bear.7 with a breach of an acknowledged privileges and immunities. privilege it is conclusive and it is no A Petition for Special Leave In other words, unlike the position objection that the breach of privilege is to Appeal was made to the in the United Kingdom, section stated in general terms. …5 Privy Council. Sir Hartley Shawcross 49 had to be interpreted so as to QC leading R.J. Newton appeared accommodate the separation of As Sir Owen Dixon put it: for Fitzpatrick and Browne.8 The legislative and judicial powers The words are incapable of a restricted Commonwealth Attorney General provided for in Chapter III of the meaning, unless that restricted Senator Spencer QC, J.D. Holmes QC Constitution of which section 71 meaning be imperatively demanded and Else Mitchell appeared for the formed a critical part. This was not to as something to be placed artificially respondent. The Petition was heard say the two men could not have been upon them by the more general on 14 July 1955. Sir Hartley put in prosecuted and punished in a court. considerations which the Constitution great detail the argument which had The point was that this could not take supplies.6 been advanced by Phillip QC in the place in the Parliament.

86 VBN VBN 87 High Court. However counsel for the Fitzpatrick had what might be In 1944 Morgan launched an attack respondent were again not called on. charitably described as “close on Fitzpatrick under the protection As a mere law student I was connections” with members of the of Parliamentary Privilege in which shocked by all of this. Without Bankstown Municipal Council which he accused him of “flagrant” breaches knowing of, let alone considering the he used to obtain valuable contracts of the National Security Regulations. facts of the case or even the nature of for his expanding business. He became Fitzpatrick had been one of the bar lore the precise charges they faced, these known as the “Mr Big of Bankstown” main contractors responsible for two men had been imprisoned on the and did not hesitate to use unlawful building the Bankstown aerodrome. basis of a judicially unexaminable means to further his interests, Morgan alleged that Fitzgerald had resolution of the House and a including so it was said: intimidation; used his position to defraud the warrant of the Speaker which recited arson; assaults; racketeering and Commonwealth. Morgan’s allegations it. This was despite the fact that bribery. It also seems clear that he prompted an elaborate investigation section 71 committed the judicial had “friends” in high places both by the War-Expenditure Committee power of the Commonwealth to the in the legislature - and even the which uncovered various rorts in federal courts and a compelling judiciary - who played various roles in relation to the theft of an airplane interpretation of section 49 which “protecting” him. These were the times hangar; hire of equipment; deliveries accepted the existence of all the of which Professor Moore has written: of non-existent and under-weight “powers privileges and immunities” loads of metals, sand or gravel of The 1950’s were a high water mark to which it referred but committed inferior quality; bribery of various of corrupt practices in government their enforcement so far as that officials and employees; and much in New South Wales, rivalled only by involved the exercise of any judicial more. For various reasons, including the subsequent Askin era, or the Rum power to the courts and not to the extra-judicial involvement of a Corps of the earlier colonial period.11 Parliament. And these considerations friendly Judge who was a mate of said by both the High Court and The Bankstown Torch was a long- Fitzpatrick’s, he escaped with two the Privy Council to be so clearly standing and well-regarded local minor fines of £75 for breaches of the incorrect as not even to need to call newspaper with a large circulation. National Security Regulations. An upon opposing counsel! It had frequently published material associated civil case against him by Well I thought then, and more that was critical of Fitzpatrick and the Commonwealth was settled for a than 60 years later I still take leave his family’s involvement in local very small sum. to think, that both decisions were municipal affairs. In 1950, as a Before the war started in 1939 plainly wrong. reaction to this, Fitzpatrick decided Morgan had formed a business under to commence publication of his own the name “Australian Settlers Agency” The Factual Background newspaper, the Bankstown Observer. which was conducted in his legal Ray Fitzpatrick was the archetypal In March 1954, the Bankstown offices as a solicitor in Sydney. This Australian ill-educated battler who Council was dismissed and an business involved the application on made good in the heady atmosphere administrator appointed. This behalf of European refugees fleeing of Bankstown politics in the 1940’s was the result of a damning Fascism in Europe for immigration and 50’s. He built up what his Local Government Inspector’s Report permits to enter Australia. It seems biographer, Professor Andrew Moore, in January of that year. The report that intending immigrants were has described as having been “… one was critical of Fitzpatrick’s business charged a non-refundable fee of of Australia’s largest trucking, dealings with the Council, especially £5 to submit an application; and, if excavation, plant hire, sand, gravel his brother Jack’s activities in the a permit was granted, another £15. and metal supplies’ businesses.”9 electrical department. The Torch gave There were many other immigration Bankstown is almost 20 kilometres all of this a very detailed coverage. In agents offering such services and south-west of Sydney. During the retaliation Ray Fitzpatrick used the the fees charged by Morgan do not Second World War, Bankstown Observer to launch vitriolic attacks appear to be excessive. The business was home to a purpose built key upon the Torch and its editor. failed with the outbreak of the war. In strategic U.S. controlled air base. Charles Morgan was a solicitor. any event, only 60 applications were This base provided the area with He was elected as the member lodged. Of these 26 were successful major infrastructure and aviation of the Commonwealth House of and only six refugees actually arrived related industrial developments. Representatives for the electorate in Australia. When the war ended Bankstown of Reid in the periods 1940-6 and There was one file held by ASIO became a centre for a multitude of 1949-58. At that time Bankstown was under the name “Charles A. Morgan”. manufacturing businesses. What had in the electorate of Reid (it was later This file mysteriously disappeared been known as “Yankstown” became incorporated into the electorate of from the offices of the Security the “Birmingham” of Australia.10 Blaxland). Service.

88 VBN VBN 89 In 1944, after Morgan’s attacks Browne was a well-known and prolific political on him in the Commonwealth Parliament, Fitzpatrick wrote letters journalist regarded by many as mentally disturbed,

to the then Attorney-General aggressive and a fantasist. bar lore Dr Evatt and other members of the Government complaining about in a distant war zone rather than M.H.R. and IMMIGRATION RACKET Morgan’s conduct. The letters Bankstown and had heard many Investigation Necessary referred in detail to Morgan’s stories that he could not write migration activities and clearly because of the law of libel. Morgan In the present Labor faction fight, all indicated that Fitzpatrick had access was reported as having said that sorts of charges are being bandied to details appearing in the missing he believed a price of £3,000 had about. Some are no doubt true, and security file. been offered to get him out of the some are without foundation. Prior to the 1946 elections, way. He claimed that Bankstown Nobody expects politicians fighting for Fitzpatrick - in his role as the had been subjected to a reign of their political lives to be fair. campaign director for Jack Lang, “terrorism and gangsterism” arranged Morgan’s rival for the seat of Reid by Ray Fitzpatrick and that a However, the anti-Evatt group in - had arranged for the printing Commonwealth Royal Commission NSW are making charges that deeply of anti-Morgan pamphlets. They should be established to investigate concern the residents of this area. contained detailed information that Bankstown’s “reign of terror”. They claim that Mr. C.A. Morgan, again could only have been obtained The strain of all of this was too M.H.R., who is supporting Dr. Evatt, is, from the Security Service file. The much for the Observer’s editor. He or was, mixed up in what can only be pamphlet described the contents resigned. Ray Fitzpatrick was forced described as an Immigration Racket. of a “Police Report on C.A. Morgan to find a replacement. He quickly did, MHR Connection with Refugee appointing Frank Browne. Unlike some of the charges made, these Racket”. The pamphlets were widely Browne was a well-known and charges are detailed, and give names circulated within the electorate. prolific political journalist regarded and dates, upon which it is alleged Morgan believed that they were the by many as mentally disturbed, certain happenings took place. main reason why he lost his seat at aggressive and a fantasist. He Broadly, the charges are that Mr. the 1946 election. claimed to have spent time in Morgan, in company with another In December 1949 Morgan was America in the 1930’s associating M.H.R., Mr. J.J. Clarke, and a man re-elected to the Commonwealth with mobsters and wrote in the named Walter Goldman, were Parliament. From then until 1955 racy style of Damon Runyon whom procuring entry into Australia for aliens he remained silent as rumours and he admired. Browne published a at a fee of £20 per person. allegations spread about the “gang” gossip-filled weekly newsletter that controlled Bankstown led by between 1946-1975 which had a large It is also charged that false particulars Fitzpatrick. However both the Torch subscription base. It was called – were placed on application forms sent and the major Sydney metropolitan Things I Hear; or, as Sir John Gorton to Canberra. newspapers subjected Fitzpatrick’s once called it – Things I Smear! [A list of 21 names then appeared affairs to continuous detailed scrutiny There were few public figures and which could have only been obtained and criticism. politicians in Australia who had not from the missing Security File. The On Easter Monday 1955 the experienced the discomfort of being article then continued:] premises of the Torch were blown in Browne’s sights. up and destroyed by an explosion In any event and for whatever Whether or not these charges are and resultant fire. The proprietor of reason Browne accepted Fitzpatrick’s true The Observer has no way of the Torch alleged that the Fitzpatrick offer of employment in mid-April knowing. But can’t help feeling that brothers were responsible. They 1955. He immediately set about they are a good deal more detailed replied that the proprietor was ridiculing Morgan’s claims about than the charges that Mr. Morgan has responsible for the fire intending “terrorism and gangsterism” in made inside and outside Parliament to claim the resultant insurance Bankstown. Fitzpatrick was quick to when it suited him and upon which he proceeds. There followed an show Browne the documents from demanded a Royal Commission. inconclusive coronial inquiry. All the missing security file on Morgan. If Mr. Morgan has an explanation, of this was grist for the Australian The first article in the Bankstown then he should be provided with an press. It was said that Bankstown Observer, written by Browne was Inquiry at which he can refute the had become another “Chicago”. The published on its front page on charges. If the charges are true, then, Melbourne Herald’s E.W. Tipping 28 April 1955. The headline was: in the opinion of this newspaper Mr. reported that he thought he was

88 VBN VBN 89 Fitzpatrick and Browne were afforded no effective of his time slandering the district and opportunity to contradict, refute or even comment those in it. on Morgan’s allegations. On 17 May 1955, Morgan himself appeared before the C.A. Morgan is totally unfitted to be a It has fallen to this paper to fight an Privileges Committee. His evidence

bar lore Member of the Federal Parliament. issue which had to be fought sooner or and commentary took up a whole later. morning and produced a transcript of some 42 pages of close typescript. The Parliamentary That issue is whether or not in this day It was an extraordinary performance. and age, it is possible for any citizen who Proceedings He launched into a scathing general has anything to say against a Member to Morgan was furious. On 3 May 1955 attack on Fitzgerald. Allegations were be dragged to Canberra, and put before in a speech in the House he moved made about his involvement in local some sort of an inquisition of politicians that the publication of the article government corruption; wartime on the grounds that the dignity of should be referred to the Committee frauds involving serious breaches of Parliament has been injured. of Privileges. He claimed that it national security; sinister connections constituted “a maliciously false Nothing was further from this paper’s with a senior Judge (Justice Taylor attack” on him. He said: mind than to attack the dignity of of the NSW Arbitration Court) who Parliament. Nowhere in the charges was said to have exercised influence To put it in a nutshell, Fitzpatrick through we mentioned was there an attack on on his behalf; unlawful evasion of his paper says, ‘If you don’t shut up in the Parliament. income tax; the theft and use of the House you will have further ignominy missing Security file; and a variety of brought upon you and may even be Morgan had his remedy. If the other matters. Browne too came in for driven from Parliament again’. charges were not true he could have his share of Morgan’s complaints. approached the Courts … The article and all the surrounding Morgan also vigorously defended circumstances, clearly shows the A few days later, on 12 May himself against the allegations that desire of Fitzpatrick through his paper 1955, the Observer returned to he had engaged in unlawful and to usurp the functions of the electors the subject. Morgan had been improper conduct in relation to his of Reid and arrogate for himself, for interviewed by another newspaper actions as a solicitor in connection ulterior purposes, the right to dictate reporter, Alan Reid, who had with immigration applications prior the conduct of the Member, both inside published an account of it with to him entering Parliament. He and outside the House. the headline: launched into a spirited defence of all the allegations which had been In the light of his previously successful M.H.R. ATTACKS JUDICIARY, POLICE, made against him in the Bankstown effort which, according to his own AND POLITICAL PARTIES Chronicle. The exercise represented claims, deprived the Member of his STRANGE OUTBURST BY MORGAN a wholesale attack on the honesty seat for a term this could have the of Fitzgerald and Browne which the effect of intimidating the Member IS MEMBER FOR REID A SICK MAN? Committee encouraged. against carrying out what he conceived The subjects dealt with in the Whether or not Morgan’s version to be his duty to constituents and the interview were far ranging and of some or all of the multitude of the community. constituted a savage attack by events and allegations to which he The motion was successful and the Morgan on Fitzpatrick and his referred was accurate or justified is matter was referred to the Privileges associates. The Observer described irrelevant. The fact is that they were Committee. them in considerable detail and made in private to the members of a Browne and Fitzpatrick could not concluded: Committee which was investigating resist an immediate response to the breach of Parliamentary privilege There is one clue perhaps to Mr. Morgan’s speech. On 5 May 1955 the allegations. However, the fundamental Morgan’s state of mind contained in headline in the Observer was: problem about this is that neither Mr. Reid’s highly fanciful article. Fitzpatrick nor Browne was given MORGAN HIDES BEHIND PRIVILEGE It speaks of Mr. Morgan’s “black copies of this transcript; or informed AGAIN despair”. about the substance of what Morgan Cowardly Canberra attack on the had said. Morgan’s evidence was not As matters stand, the only people Observer only never tested; Fitzpatrick and entitled to be plunged into “black Browne were afforded no effective Under it there was a lengthy article despair” are the electors of Reid, and opportunity to contradict, refute or in which the following appeared: especially the electors of Bankstown, even comment on Morgan’s allegations. who are paying a man to spend most

90 VBN VBN 91 Despite this the Committee determined to adopt the Committee’s House, and in deliberately attempting summoned Fitzpatrick and Browne Report, Fitzpatrick again requested to impute corrupt conduct as a Member to appear before them on 7 June that Mr Mason be heard and again against the honourable Member

1955. Fitzpatrick applied for but was this request was refused. for Reid, for the express purpose of bar lore denied the right to be represented Much later Sir Anthony Mason, discrediting and silencing him. The by his counsel, Mr A. Mason (as recalling his involvement in this case Committee recommends that the Sir Anthony then was). This was said: House should take appropriate action. despite the fact that it was clear As counsel who was refused leave On 9 June 1955 the Prime Minister from the outset that the possible to appear, my sense of outrage over Menzies moved in the House of exercise of his right to refuse to Parliament’s denial of due process and Representatives “That the House answer questions on the basis that natural justice remains undiminished agrees with the Committee in its the answers might incriminate him after the lapse of 40 years.13 report.” Both he and a ministerial was of critical importance. Indeed colleague, Harold Holt, spoke briefly at the time the Committee refused The Committee’s Report is dated 8 in support of the motion with even Mr Mason leave to appear the June 1955. The Committee found: briefer contributions being made by following interchange took place: 15. That Mr. R.S. Fitzpatrick and Mr. F. two members of the Opposition. The The Chairman. - … if we felt as Browne have been guilty of a serious motion was passed without dissent. a committee that he was likely breach of Privilege by publishing There was no re-hearing. to incriminate himself then in articles intended to influence and Fitzpatrick and Browne were not a spirit of justice, we would intimidate a member, the honorable invited to attend or be represented advise him accordingly. Member for Reid, in his conduct to make submissions as to whether in the House, and in deliberately or not the report should be adopted. Mr. Mason. – I think that this attempting to impute corrupt Only the Prime Minister and Harold is one of the real difficulties conduct as a Member against the Holt spoke at any length. There of this case, the possibility of honorable Member for Reid, for were brief comments by Alan Fraser incriminating questions being the express purpose of discrediting (A.L.P.) and Robert Joshua (Anti- put to him. and silencing him. The Committee Communist Labor). Dr Evatt, the The Chairman. – We will watch that. recommends that the House should leader of the Opposition, said that he take appropriate action. would leave his comments until the The Committee certainly did not. men appeared before the House. It Far from it. All of Fitzpatrick’s 16. That there was no evidence of was all over very quickly. evidence which appeared in their improper conduct by the honorable Thus Fitzpatrick and Browne report, and which was the basis Member for Reid in his capacity as a were convicted by the House of the Committee’s decision, was Member of the House. … of Representatives of the given by him in answer to questions It would be a far too lengthy Commonwealth Parliament without which had the tendency, indeed the exercise to set out the whole of ever having been heard as to why the very object, of incriminating him! the Committee’s Report here but Committee’s Report should not have Furthermore those questions were I will make this comment with no been adopted. asked in the main by Percy Joske Q.C. fear that it can be contradicted – no But convicted of what? No specific (later a Judge) and Messrs. Freeth piece of evidence relied upon by charge had been formulated or put to and Bourke who were both solicitors. the Committee to find guilt was them in order that they could attempt Indeed this was so obvious that obtained other than by answers to to meet it; or to take legal advice in the Prime Minister, Mr. Menzies, questions that were clearly designed relation to it. observed when he later moved the to incriminate them and no warnings Frank Green was the Clerk of the House to adopt the Committee’s as to the answers as promised by the House of Representatives between findings – Chairman to Mr. Mason had been 1937 and 1955. He gave written If frankness could excuse an offence, given. advice to the Committee that in his then indeed this offence would be The same day, 8 June 1955, view the case against Fitzpatrick rapidly excused, because rarely in the Chairman of the Committee, and Browne was not a matter my experience, has a man been so Jock McLeay, advised the House for Parliament, but rather was a completely forthcoming in what is that Fitzpatrick and Browne had defamation of Morgan in respect called the object of the exercise.12 published: of a matter taking place long ago outside Parliament and was for the When called before the House of … articles intended to influence and civil courts to determine.14 Representatives to make submissions intimidate a Member, the honourable Green’s view was not shared or comment after it had been Member for Reid, in his conduct in the

90 VBN VBN 91 by the Committee or the Prime inherent right for a man to have his Committee that was not expressly Minister. When Menzies moved the case taken in an atmosphere that does referred to in its Report. He also House to adopt the Committee’s not allow him to enter the court-room refused to permit his ruling to Report he said – “… these attacks with the hatred, not only of spectators refuse to allow counsel to represent were designed to prevent him but of practically every one in the Fitzpatrick (and thus Browne as carrying out his duty to his courtroom, including the jury, stirred well) to be discussed.

bar lore constituents”. The next day when up against him to a point where, if this Morgan himself was the last the House was considering what was a community of another type, I speaker in the debate; although penalty would be appropriate this doubt very much whether he would he did not vote on the issue of became “a conspiracy to blackmail get into the court at all; he would be sentence. Curiously he expressed a member of the Parliament into lynched on the way in. the view, which had also been put silence” and actions “to close the forward by Gough Whitlam, that Then there followed a lengthy mouth of a member of Parliament”. it would be better to have had the debate led by the Prime Minister Dr Evatt said it was a case of matter dealt with by an independent who proposed a three-month period “contempt of the Parliament”.15 body rather than the House. He also of imprisonment. He said that the The only matter left for debate said that in his opinion the whole Committee in substance had found was the decision as to what penalty of the transcript of the proceedings the two men guilty of “a conspiracy would be imposed. Fitzpatrick and before the Committee should have to blackmail a Member of the Browne were given the opportunity been before the House. Parliament into silence”. He firmly to be heard at the Bar of the House Looking back from this distance expressed the very questionable as to anything they might have to at the content of the debate perhaps legal view that the House did not say on that subject at 10 a.m. the it was the words of Mr Allan Fraser, have the power to impose a fine and following day. who had been a distinguished that in his view a reprimand would The only material before the House journalist, that seem the most be “ridiculous”. I say “questionable” was the Report of the Committee compelling: because it involved an acceptance itself. No transcript of the evidence of the dubious proposition that a I cannot vote for the imprisonment of or any other material or argument sovereign Legislature could lose a man when that man has not first of that was before the Committee was a power by desuetude in that the all had the right to have the charges presented to the House. House of Commons had not used it against him specifically stated in open After the Speaker, Archie Cameron, for a few hundred years. hearing, the right to be represented brusquely refused Fitzpatrick’s The Leader of the Opposition, Dr and the right to cross-examine – all the request for his counsel, Mason, to Evatt, also a distinguished lawyer rights which we give to men charged speak on his behalf all that a tongue- (indeed an ex-member of the High with the most horrific crimes in this tied Fitzpatrick managed to blurt out Court!) challenged the view that the community. These men have not had was: House had no power to impose fines those basic and elementary rights …16 I would like to apologise to the House and suggested that a substantial Nonetheless this was the body which for what I did. When the article was fine was the appropriate penalty. sentenced Fitzpatrick and Browne published in the newspaper I had no He said that the Prime Minister had to three months’ imprisonment. It idea that it was against parliamentary incorrectly suggested there were was not an impartial tribunal acting privilege. I humbly apologize. only two choices – reprimand or in accordance with the principles of prison. Not so the truculent Browne. He fairness and natural justice. There were many contributions delivered an elegant and passioned There was a completely indecent to the debate. The Deputy Leader speech criticising the whole process taste about it all. The Parliamentary of the Opposition, Arthur Calwell, that had brought him before the session was to end on 9 June 1955. launched into a vicious personal Parliament in the course of which he The Privileges Committee heard attack on Browne calling him an made and developed the following Fitzpatrick and Browne on 7 June “arrogant rat, just a character points: and presented its report the next assassin”. For the rest however the day. On 9 June after perfunctory First, I have been convicted and never debate was restrained concentrating debate the House agreed to the charged. Secondly, at no time have I on whether a prison sentence would report. The session was extended had legal representation. Thirdly, the or would not be an appropriate for one day and Fitzpatrick and case against me has not been properly penalty. Browne were brought back to proved. Fourthly, I have never had the Throughout the debate the Canberra on 10 June. After the right to cross-examine my accuser. Speaker continually intervened to debate on that day they were And fifthly, I have no right to appeal. prevent any reference being made imprisoned. As far as the last is concerned, it is the to anything that was before the

92 VBN VBN 93 In his retirement reflections the Sir Anthony Mason has described the decision Prime Minister Sir recalled the case. as “unsatisfactory” and that it represents a “startling departure from the separation doctrine”.

Looking back on it all, I think that bar lore what we did was right; that there semblance of them, did not apply … [Fitzpatrick and Browne] … is was no undue haste; that the House in any form. difficult to defend …The High Court itself maintained a high standard of upheld the imprisonment on the basis responsibility; that the punishment Since 1955 that s 49 of the Constitution gave each inflicted served as a proper warning In the years since 1955, the House the privileges of the House of to people that the freedom of a High Court has treated the Commons. In an oral judgment, the newspaper or writer is freedom and not exercise of judicial power in Court simply said that the separation a license, and that it can be lost when it the form of prosecution and of powers doctrine was not a sufficient is abused.17 punishment of privilege cases in reason for giving s 49 a restrictive It is very difficult indeed to accept the Commonwealth Parliament meaning. But surely reconciling ss 49 that view. as one of two exceptional cases to and 71 required greater analysis than Let me summarise in point the otherwise exclusive vesting of the Court gave to the problem. The form the various ways in which Commonwealth judicial power in resolution was an attainder, adjudging in my opinion Fitzpatrick and s. 71 Courts. The other being the two men to be guilty of an offence and Browne were deprived of even the disciplinary powers of defence committing them to prison. It was an semblance of a fair hearing. force Courts Martial.18 Indeed it exercise of judicial power. No attempt 1. No specific charge against them has on occasion been stated that it was made to justify how or why the was ever formulated. is not judicial power at all but is a general language of s 49 should be 2. They were denied legal legislative power.19 given ascendancy over s 71 of the representation before the There have been some judicial Constitution.23 Committee and the House. and extra-judicial murmurings In 1908 a Joint Select Committee of 3. They were never made aware of of discontent. Sir Anthony Mason the Parliament had considered these the evidence that Morgan had has described the decision as questions. The Committee found that given to the Committee. “unsatisfactory” and that it represents the ancient procedures of the House 4. They were never afforded any a “startling departure from the of Commons to punish for contempt opportunity to cross-examine separation doctrine”. He added: “The were “cumbersome, ineffective, and Morgan or to even comment on facts of the case illustrate why the not consonant with modern ideas and his evidence. right to a fair trial before a Court requirements in the administration 5. They were not warned that their is an indispensable element in the of justice.” It recommended that all answers to a whole raft of critical judicial process which culminates alleged contempts be prosecuted by questions might incriminate in conviction and sentence”.20 the Attorney General before a Justice them; and they did. Gleeson CJ has observed that the of the High Court upon evidence on 6. They were given no opportunity decision “has been questioned and oath in open Court with the accused to address or make any doubted.”21 Kirby J expressed the having the right to present evidence. submissions to the House as to view that although the Court had: If found proved, there was to be a why the Report of the Committee … held that neither the structure of power to impose a fine not exceeding should not be adopted. the Constitution providing separately £500 or imprisonment not exceeding 7. The legal power of the House for the judicature, nor its provisions, 12 months. Nothing came of the to impose a fine instead of required a reading down of s. 49 of the recommendations. imprisonment was never Constitution defining the privileges Immediately after the Parliamentary properly determined. of the two House of the Federal proceedings against Fitzpatrick and 8. They had no right of appeal. Parliament in terms of those of the Browne had concluded, Prime Minister 9. They were denied a fair hearing House of Commons of the Parliament Menzies said in a press statement that before an impartial tribunal. of the United Kingdom, that aspect of he would request Parliament in the 10. The whole proceeding was the decisions … may one day require next session to review the methods of conducted in an atmosphere reconsideration.22 enforcing its privileges.24 That did not of haste at the end of a happen. Parliamentary Session. It is difficult to disagree with Justice It was not until the Parliamentary 11. There was no identified standard McHugh’s observation made in a Privileges Act 1987 came into force of proof. lecture whilst he was still a member that the Commonwealth Parliament 12. The rules of evidence, or any of the Court: took any action under section 49

92 VBN VBN 93 men “… fully and frankly admitted what of the Constitution to deal with by the Parliament itself to retain the they had done and why they had done the question of its privileges and power to try and punish for contempt it. In a substantial sense they pleaded immunities. Section 5 provides that of itself instead of passing that power guilty.”! See: The Argus (14/6/1955) at p. 5. save as provided in its terms the to the Courts. It simply does not powers, privileges and immunities meet the fundamental constitutional 13 A New Perspective On Separation of Powers (1996) Canberra Bulletin of of each House under s. 49 were objection. Public Administration (No. 82) at p.1. bar lore to continue in force. Section 6 My introductory year to the study 14 A view he repeated much later in his provided for a maximum penalty of law back in 1955 left me with the book Servant of The House (1969) at 155 of imprisonment for an offence view that the decisions in R. v Richards; – 162. against a House of the Parliament of Ex parte Fitzpatrick and Browne was 15 Later this view was forcefully expressed six months and for maximum fines of wrong. More than 60 years later I still by Harry Evans who was the Clerk $5,000 (an individual) and $25,000 (a have the same view. of the Senate (between 1988 – 2009) in his paper Fitzpatrick and Browne: corporation). Section 9 provides: 1 (1955) 92 CLR 147. Imprisonment by a House of the Parliament in Lee and Winterton (eds) “Where a House imposes on a person a 2 Gavin Souter, Acts of Parliament (1988) Australian Constitutional Landmarks penalty of imprisonment for an offence at p. 431. (2003). He bluntly expresses the view against that House, the resolution of 3 Section 49 (Contained in Chapter I – The that Green’s “advice was wrong” and based on a “confusion of a ‘breach of the House imposing the penalty and Parliament) “The … privileges, and immunities privilege’ and ‘contempt of Parliament’”. the warrant committing the person to of the Senate and of the House of 16 When Parliament reconvened on custody shall set out particulars of the Representatives, and of the members 31 August, after the Privy Council matters determined by the House to and committees of each House, shall decision, Fraser moved that Fitzpatrick be as declared by the Parliament, and constitute that offence.” and Browne should be released – until declared shall be those of the “No imprisonment without fair trial Commons House of Parliament of the Section 4 headed “Essential element – it is a cry which rings down the ages United Kingdom, and of its members of glorious history”. His motion was of offences” provides: and committees, at the establishment of defeated 62/3. the Commonwealth”. “Conduct (including the use of words) Section 71 (Contained in Chapter III – 17 Afternoon Light (1967) at 304. The Judicature) does not constitute an offence against a 18 For example: Chu King Lim v Minister “The judicial power of the for Immigration (1992) 176 CLR. 1 at 27; House unless it amounts, or is intended Commonwealth shall be vested in a By Their Next Friend GS [2004] HCA 276 or likely to amount, to an improper Federal Supreme Court, to be called the para 50; Egan v Willis (1998) 195 CLR High Court of Australia, and in such interference with the free exercise by a 424 at paras 27-29; Thomas v Mowbray other federal courts as the Parliament [2007] HCA 33 at para 91; Sue v Hill House or committee of its authority or creates, and in which other courts as it (1992) 199 CLR 462 at para 35. functions, or with the free performance invests with federal jurisdiction”. 19 See for example Re Woolleys (2004) 225 by a member of the member’s duties as 4 Sir Phillip, as he was later to become, CLR 1 at para 50. a member.”25 was a caring mentor of mine when I later taught at the Law School and 20 See note 13 at p5. Whilst these provisions may have during my early days at the Bar. Holmes 21 White v Director of Military Prosecutions opened the door to some kind of JA of the NSW Court of Appeal, as he was later to become, was the author, [2007] HCA 29 at para 142. judicial review they completely fail inter alia, of a book on the law of money 22 Egan v Willis (1998) 195 CLR 424 at para lending which he persuaded me that I to address the multiple features 136. of the breaches of natural justice should expand and rewrite as my own. I did, but with his considerable assistance. 23 “Does Chapter III of the Constitution that the Fitzpatrick and Browne I also had a standing commission to protect substantive as well as case exemplified. There may be a locate and inform him of books or other procedural rights?” (2001) 3 Const Law judicial review to determine whether materials relating to the history of the & Policy Review 57 at 62. federation movement in Australia that I the conduct particularised in the might happen to find ferreting around 24 The Argus (14/6/1955) at p. 5. Parliamentary resolution was capable secondhand bookshops. I think his 25 To be read with s. 6: of constituting an offence under collection is now in the Mitchell Library. Words or acts shall not be taken to be an s. 4 but what about the manner in 5 P. 162. offence against a House by reason only that those words or acts are defamatory which that conduct was said to be 6 P. 165. or critical of the Parliament, a House, a committee or a member. proved? It would seem findings by 7 P 167. the Parliament in defiance of the Subsection (1) does not apply to words 8 The transcript is also available in the spoken or acts done in the presence of a principles of natural justice would National Archives. See footnote 5. House or a committee. not be a ground of review. And what 9  Andrew Moore, Mr. Big of Bankstown is the possible justification for section (2011) at 19. 9 to only apply to the penalty of 10 Moore op. cit. at 12. imprisonment and not a fine? This legislation represents a 11 Moore op. cit. at 8. considered and deliberate decision 12 He also said in a press release that both

94 VBN VBN 94 OF THEliftBack In this Back of the lift Section of the Victorian Bar News, the Bar acknowledges the appointments, OF retirements, deaths and other THE honours of past and present liftBack members of our Bar that occurred up to 15 October, 2015. Adjourned Sine Die Adjourned Sine Die 95 Federal Circuit Court His Honour Judge Frank Turner BY PHILIP BURCHARDT 95 Silence All Stand 96 Federal Circuit Court Supreme Court of Victoria The Honourable Justice Jane Dixon BY MEGAN TITTENSOR 96 Judge Frank Turner The Honourable Associate Justice Bar Roll No. 2888 Mary-Jane Ierodiaconou BY VBN 96 ceremonial sitting for the Federal Circuit Court was held on 19 June 2015 to farewell Judge Frank Turner. His Honour’s career County Court of Victoria prior to his appointment has been noted in a past edition of Her Honour Amanda Chambers (President of the Children’s Court the Victorian Bar News and was canvassed extensively also in his welcome ceremony on 19 October 2006. This brief article does not propose to revisit of Victoria) BY VBN 97 A Her Honour Judge Sara Louise Hinchey those matters, distinguished as they were. BY TIMOTHY MCEVOY 98 The farewell was attended, as the Attorney-General’s representative correctly remarked, by a great number of distinguished guests, including Magistrates’ Court of Victoria members of the federal judiciary and visitors who had travelled from His Honour Magistrate Charles Tan interstate and colleagues within the Federal Circuit Court itself. The JIM BUCHECKER 98 ceremony was also, it should be noted, attended by a considerable number of Vale 99 practitioners who were mainly from the Victorian Bar, whose areas of practice Francine McNiff BY MAX PERRY 99 reflected the breadth of his Honour’s judicial activity. Industrial lawyers Clive McPherson BY VBN 99 jostled family lawyers and others in the resulting scrimmage. The Honourable Frank Callaway This attendance reflects not only admiration for Judge Turner, but also the QC BY VBN 99 affection in which he is so rightly held. Jim Bessell BY WAYNE TOOHEY 100 Writing as a colleague on the bench of some nine years and as a colleague John Ainslie Bell BY MICHAEL CORRIGAN, at the Bar for far longer than that, what characterised his Honour as a judge TREVOR ROSEN AND MICHAEL CLARKE 100 were the qualities of courtesy and industry, allied in court (in appropriate Dr John Francis Bleechmore BY MARK situations) with devastating use of his Honour’s understated but trenchant HEBBLEWHITE 101 humour. Outside court, Judge Turner’s humour applied without restriction Gonged 101 in any circumstance he felt appropriate. Quarterly counsel 102 Speakers at the farewell commented on his Honour’s courtesy to litigants and to those who appeared before him. His Honour was a byword for courtesy Senior counsel 2015 102 and was particularly adept at dealing with litigants in person, a difficulty that Victorian Bar presents itself far too frequently in family law matters. His down-to-earth and Readers’ course 103 direct manner defused many a difficulty and allowed proceedings to progress in circumstances where they very easily might not have. New silks Q & A 104 His Honour throughout his time on the bench attended diligently to his very extensive docket and his judgments never got out of hand. He left court, as may be expected, with a completely clean slate and so far as I am aware has certainly not been overturned in any appeals thereafter. It may be confidently expected that his Honour will make good on his expressed intention to visit his friends in the country and assist them in the repair of their machinery (his Honour has an extremely practical bent) and in the appropriate diminution of such supplies of wine as they may possess. His Honour’s responding speech was marked with perhaps two particularly

95 VBN VBN 95 obvious qualities. The first is his advice about the speech, “Don’t try she served on and chaired the Pro devotion to his wife of so many years, to be intelligent or interesting. Just Bono Committee for five years, Helen, who has been such a clear and be yourself.” are some examples. leading by example and initiating back of the lift back obvious source of support during Judge Turner leaves the Federal the Bar’s volunteer response to his time on the bench. The second Circuit Court not only with the the 2009 Victorian Bushfires; was his Honour’s unassuming, ringing endorsement of those then lately, at a time of increased self-deprecating but devastating who spoke at his farewell but also politicisation of ‘law and order’, wit. His doubts about his mentor with the constant and continuing and although a private and family Pat Doulton’s golfing ability were affection of all of his colleagues. All person, her Honour accepted a two beautifully turned, and his self- of us take pleasure in wishing him a year appointment as the high profile deprecating paraphrase of Helen’s long and very happy retirement. President of Liberty Victoria in order PHILIP BURCHARDT to promote the defence of human rights and justice for all. It is pleasing for the rest of us to observe that Justice Dixon does have some flaws. Like so many over-achievers, she can struggle Silence all stand with the more mundane aspects of life: making sure there is petrol in the tank; catching a V-Line that Supreme Court of Victoria is travelling towards Melbourne, rather than Sydney; and marking The Honourable Justice Dixon backsheets. Justice Dixon has upheld the Bar Roll No 2287 best traditions of the Bar and has now committed the rest of her here could be little doubt more civil work. professional life to public service. about the incredible To her clients, she would not We can only hope that her new commitment Justice Jane only bring intelligent forensic Associate knows to keep a spare set Dixon showed to her clients, her analysis to their cases, but genuine of keys to the Supreme Court handy. Tprofession, and her community over compassion. She would often spend MEGAN TITTENSOR her 26 year career at the Bar. hours with clients, listening, coming Justice Dixon’s passion for the to understand motivations, then The Honourable law and those involved in and being able to confidently make her affected by it developed at an case to a jury at a trial, or a judge Associate Justice early age. While still at school, she upon a plea. Many times the latter Ierodiaconou would go to watch her father, then was not necessary because of her n 12 May 2015, Mary-Jane a Crown Prosecutor, in court. Still success with the former. Ierodiaconou was appointed at school, she did work experience To her profession, she was also an Associate Justice of the with Betty King at the Bar – a fitting dedicated. At an individual level Supreme Court of Victoria after connection as she now takes the she devoted many hours to her Omore than 18 years of practice as a vacancy created by Justice King’s readers and the many juniors solicitor. Her Honour comes to the recent retirement. passing through her chambers. All Court from Justitia, a firm of solicitors Her Honour served articles with speak of her dedication and ongoing specialising in employment and Frank Galbally, affectionately known generosity. industrial relations, where she was a as Mr Frank, at Galbally & O’Bryan. Beyond that, Justice Dixon’s founding partner. She was the firm’s first female commitment to the Bar has been Her Honour studied History, articled clerk. Upon coming to the extraordinary, and usually combined Politics and English Literature, Bar in 1988, her Honour rather to deliver a broader social benefit graduating with a Bachelor of Arts unusually split her reading so as to the community. To mention a at the University of Melbourne in to get a variety of experience, first few contributions: she served on 1989. In 1992 she returned to study with Lillian Leider in crime, then Bar Council; she taught in the Bar’s law and graduated with Honours with Dyson Hore-Lacy in civil. Her South Pacific Advocacy Program; before going on to complete Honour’s practice was mainly in she was a foundation member of her Masters of Law, also at the crime, however upon taking silk in the Indigenous Lawyers Committee University of Melbourne. 2006 this expanded as she took on on which she served for 15 years; Her Honour completed articles

96 VBN VBN 97 back of the lift

with Stephen Walters at Dunhill Among the barristers her Honour with disabilities were the subject of Madden Butler, now Norton Rose briefed were some who are now indirect discrimination as a result Fulbright, and became a senior judges of the Supreme Court. Justice of the ticketing system, as they associate at that firm before moving McDonald, whom her Honour briefed were less able to use the public to Blake Dawson, now Ashurst, as in a restraint of trade case, recalls transport system than people a senior associate in the Industrial that her Honour had very firm and without disabilities. Her Honour Relations and Employment group. confident views as to how the case briefed Tony North QC, now Justice At Ashurst, her Honour became was to be run and what advice was to North of the Federal Court, with the firm’s pro bono coordinator be given to the client. Herman Borenstein. The many in its Melbourne office. Her Her Honour also briefed Chris long days and nights put in by commitment to pro bono work was Maxwell and Karin Emerton as that formidable legal team were evident long before her Honour counsel in the High Court in Re ultimately rewarded with victory took up that role. From 1996 to McBain; Ex parte Australian Catholic before the High Court. The Court’s 2006, her Honour volunteered at the Bishops Conference,1 a case identified judgment (Waters v Public Transport Victorian Immigration Advice and by the Australian Human Rights Corporation (1991) 173 CLR 349) Rights Centre, offering free legal Commission as one of the major remains one of Australia’s leading advice to migrants and refugees. It Human Rights decisions in the last 21 discrimination cases. remained evident after her Honour years. President Maxwell recalls her Her Honour was appointed to the left Ashurst and was recognised by Honour’s idealism, energy and vigour Magistrates’ Court in September the Commonwealth Government, – and her joie de vivre. 2006. During her eight years on the which listed Justitia as one of the Her Honour brings to the Court a bench, her Honour impressed her top 10 pro bono contributors in strong record of hard work, passion, colleagues, litigants and advocates 2013-14. Her Honour has also careful analysis and confident alike with her keen intelligence, published several important articles assessment, a calm manner and a efficient court craft and genuine and reports on refugee claims and warm smile, all of which are valuable concern for all who appeared in other human rights issues. qualities in a member of the Court. her court. She contributed also As a solicitor, her Honour Bar News wishes her Honour every by participating on many court developed a reputation as an engaged success in her new role. committees. and creative instructor whose careful VBN Her Honour’s work on the Court analysis of every matter was captured was recognised in November 1 [2002] HCA 16; 209 CLR 372. in a thorough and detailed brief. 2008 when she was appointed to the Law Reform Commission of Victoria. Her Honour worked County Court of Victoria on numerous references in her four years at the Commission, Her Honour Judge Amanda Chambers including jury directions, protection applications in the Children’s Court, manda Chambers as a senior associate in the firm’s sex offenders’ registration and was appointed to industrial and employment division guardianship. the County Court of in 1994. Outside the law, her Honour is Victoria on 9 June 2015. Her Honour As a solicitor, her Honour an avid movie-goer and reader wasA also appointed as the fourth immediately impressed as and, with the possible exception of President of the Children’s Court of intelligent and extremely watching re-runs of The West Wing, Victoria, for a term of five years. hardworking with a great enjoys nothing more than overseas Her Honour graduated with arts empathy for her clients. These travel with husband, Peter, and their and law degrees from Monash qualities have shone through in children, Ben and Jessie. University in 1988. After completing the subsequent chapters of her Victorian Bar News congratulates the Leo Cussen practical training working life. her Honour on her appointment to course, her Honour worked as a Among the cases her Honour was the important position of President solicitor at Slater & Gordon in its responsible for as a solicitor was of the Children’s Court and is industrial section with Julia Gillard, a challenge to the “scratch ticket” confident that her Honour’s strong who would become Prime Minister, system of public transport ticketing sense of fairness and social justice and Bernard Murphy, now Justice in the late 1980s. The challenge was will ensure that she serves the Murphy of the Federal Court. After made under the Equal Opportunity Victorian community well in this travelling the world, her Honour Act 1984 (Vic). It was alleged that challenging role. joined Maurice Blackburn & Co a number of would-be commuters VBN

96 VBN VBN 97 Her Honour Judge Sara Louise Hinchey developed a substantial practice in the child protection jurisdiction and while Bar Roll No 3035 appearing mainly for the Department back of the lift back of Health and Human Services, also s the overflowing Truffle Hound”. She has conducted appeared for other parties in these ceremonial court room master classes in the use of Australian matters from time to time. of the County Court and European truffles for the Gourmet As an instructor at the Leo Cussen demonstrated on 4 June 2015, the Traveller magazine and with Guy Institute for some 15 years before his VictorianA Bar was delighted by the Grossi at Grossi Florentino. To the appointment, his Honour instructed appointment of Sara Hinchey to the delight of those assembled, Judge in the civil litigation component of County Court. Hinchey’s skill as a mimic was on the Practical Training Course, and Judge Hinchey was educated at public display at her welcome. conducted moot bail courts in that , and undertook Her Honour is married to Tom course. In recent times his Honour articles at Purves Clark Richards in Pikusa of our Bar. Her appointment undertook the role of mentor to 1993. She went straight from articles to will undoubtedly be a great success, online students in the Practical an associateship with Justice Hansen and Victorian Bar News warmly Training Course. in the Supreme Court, a position congratulates her Honour on her His Honour also participated as she occupied until 1996. In 1996 her ascension to judicial office. an instructor in a two-day training Honour signed the Bar Roll and read TIMOTHY MCEVOY course in pleadings and drafting, with Paul Santamaria. offered to lawyers in the Papua New Her Honour enjoyed a wide-ranging Magistrates’ Court of Guinea Office of Solicitor-General and practice at the Bar over almost 20 conducted in Papua New Guinea by years, appearing in virtually all courts Victoria the Leo Cussen Institute. and tribunals, including the High His Honour was born in Malaysia Court, before Royal Commissions His Honour Mr Charles and came to Australia as a four-year- and other enquiries, and before the Tan, Magistrate old, living with his parents and his Medical Board. Her practice spanned Bar Role No 3171 sister in Queenstown on the west coast the gamut of the law —common of Tasmania, where his father work law, crime, commercial, public and is Honour, Mr Charles as a doctor in the local hospital. His industrial law. As the President of Tan, was sworn in as Honour’s family moved to Melbourne the Victorian Bar observed at her a magistrate of the after four years in Tasmania and he Honour’s welcome, she will be at Magistrates’ Court of Victoria at a went on to attend Caulfield Grammar home in all divisions of the Court. Hsitting of the court held on 30 July 2015. School and Monash University. Her Honour was a great contributor His Honour graduated from His Honour played cricket as a spin to the Victorian Bar. She served Monash University with a Bachelor of bowler of some ability, once taking four with distinction on the Victorian Bar Economics and a Bachelor of Laws and wickets for one run in an inter-school Council from 1998 to 2001 and then was admitted to practice in 1996. He match. again from 2007 to 2010, having being signed the Roll of counsel in November He follows Richmond and admits to a member of the Bar Council Executive 1997, having worked as a solicitor for having owned and worn a black and Committee from 2007 to 2009 and but a few months before commencing yellow scarf and a duffle jacket, the assistant treasurer in 2009-2010. Her the Bar readers’ course. latter embroidered with the names of Honour also served on several Bar His Honour developed a practice in the Richmond heroes. He also owns Council committees and has been a criminal matters in the Magistrates’ up to having attended many, many director of the Essoign Club. and County Courts, at first undertaking matches, where he gathered behind Her Honour had five readers, pleas and appeals and later conducting the goals with many others wearing including two from Vanuatu, and contested criminal matters in the identical scarves and jackets. her approach to mentoring has been Magistrates’ Court. In due course he As a member of the Bar, his Honour described as generous, gracious and was briefed in jury trials in the County gained a reputation as hard-working, supportive. Court and, while appearing mainly conscientious and unfailingly However, as much as she is famous for the defence in these trials, also courteous, and many of his colleagues for her career as a barrister, her prosecuted from time to time. attended the ceremonial sitting held to Honour is also justly famous as a When time allowed, his Honour welcome his appointment. Francophile, chef, bon vivant and appeared in a variety of civil matters, We extend our congratulations to mimic. Her Honour has achieved including debt matters, motor vehicle his Honour upon his appointment prominence in culinary circles over accident claims and family law matters. and wish him well for the future. recent years and in the media as “the In more recent years, his Honour JIM BUCHECKER

98 VBN VBN 99 back of the lift Vale Magistrate in the Northern “Drafting Notes”, which is out of print Territory and served there for six but prized by those who have a copy. years (1984-89). He was appointed a He was articled to Colin Trumble Victorian Magistrate on 26 April 1990 at Mallesons, and his admission to and served more than 16 years until practise was moved on 1 April 1969. Francine McNiff his retirement in July 2006. Admitted swiftly to partnership in Bar Roll No 2206 In January 1993, he was asked 1974, he spent three years as a partner to relieve for three months at the before retiring from Mallesons in rancine was something of an Children’s Court. Thirteen years later, 1977 to come to the Bar. He read with enigma to those of us who he was still there. The Children’s Court Ross Sundberg and practised mainly knew her well. She possessed held a ceremonial Farewell sitting on in company law, trade practices and Fa combination of ability and style, 7 July 2006. His contribution to the constitutional law. which made her a very capable Court was described as “outstanding”. While still a junior, he appeared advocate, as well as a pronounced He continued to serve as Judge twice before the Privy Council, in sense of mischief which could surface Coate’s Associate until her Honour’s Coachcraft Ltd v SPV Fruit Co Ltd without warning. appointment as State Coroner. (1980) 28 ALR 319 and in Hamersley Both as a magistrate and as He had, in his youth, been a fine Iron Pty Ltd v National Mutual Life counsel she was absolutely fearless athlete, running in the Stawell Gift, Association of Australasia Ltd (1985) and passionately dedicated to and playing football and cricket - 64 ALR 19. In the latter case, the trial fairness in any matter in which he played in the Bar cricket team had taken three weeks. An appeal to she participated. Some of the most against the solicitors. the Full Court of Western Australia had abstruse technical discussions I VBN taken five days and the appeal in the have ever had commenced with Privy Council took two days. Callaway her lighting up one of her favourite The Honourable Frank took the matter over from SEK Hulme “black Russian” cigarettes and saying QC who had suffered a heart attack “now tell me what you think …” It is Callaway RFD, QC shortly before the hearing in the Privy not an understatement to say that Bar Roll No 1336 Council. the next twenty minutes would cover rank Hortin Callaway was born In argument Lord Templeman said law, tactics and, most importantly, the on 10 November 1945, the only the appeal essentially had two points. fairness of any proposed course. child of only children. The first point had been lost by the In her later years, ill health forced FEducated at Melbourne Church appellant at trial and in the Full Court. her retirement from the Bar but of England Grammar School, The second point had been upheld by did nothing to affect her ability to winning Entrance, Junior and Senior the trial judge and the minority judge comment, often caustically, always Government Scholarships, he in the Full Court. Callaway pressed the accurately, on the legal system and matriculated in 1963 with Special first point to which Lord Templeman several of its (mercifully unnamed) Exhibitions in Latin and in French remarked “On your second point, you participants. and a General Exhibition and a Trinity are pushing at an open door as far In the event that the afterlife College Non-residential Exhibition. as I am concerned. In fact I am agog requires me to stand trial on Repeating in 1964, (as was then the to hear what the respondent has to anything, she will certainly be lead custom), he obtained four First Class say about it. But I can’t see there is counsel for the defence. Honours and was a Cadet Under anything in your first point.” Callaway I shall miss her. Officer, House Captain, School Prefect succeeded- on the second point only. MAX PERRY and the School Librarian. He took silk in 1987. Before doing Clive James McPherson He graduated with a First Class so he had announced that he would Honours Law Degree from Melbourne take only appellate work. Thus, Bar Roll No 1292 University in 1969, winning the EJB he had a large appellate practice live McPherson (born 5 Nunn Scholarship, the Robert Craig before the High Court, many state December 1937) practised Exhibition in Company Law, and the Supreme Courts and even the Family as a solicitor in Tatura and Supreme Court Prize, as well as being Court. His advocacy was marked by CRushworth - as a Principal in the Editor of the Melbourne University meticulous preparation and clarity of firm of O’Toole & McPherson - Law Review. His Master of Laws thesis expression and thought. As in life, he for some 6½ years (1965-72). He at the University of Melbourne in 1974, always flew first class and never by was then a solicitor with VicRail. supervised by Professor H.A.J. Ford, the seat of his pants. He came to the Bar in 1976 and was later published as Winding up Appointed in June 1995 as an read with Jeffrey Loewenstein. on the Just and Equitable Ground. He original member of the Victorian He was first appointed a also published an invaluable set of Court of Appeal, he took to his

98 VBN VBN 99 appointment with relish. He was determined, courageous battle in Bendigo, signed the Bar Roll widely regarded as a courteous, helpful against illness at just 63 years of in October 1977, and read with judge who had thoroughly read and age. His wife Victoria, and sons F.G.A. (George) Beaumont. From back of the lift back understood the material presented Jack and Alex, have farewelled a 1984 to 1989 he worked as crown and, as some advocates have described good and decent man, a loving, counsel, then senior crown counsel it, there would often be a waterfall of devoted, gentle and kind husband in the Hong Kong Attorney General’s paper from the bench as he passed and father; his myriad of friends Department, and one case saw him cases down to counsel. He always from all walks of life will miss his travel to London to appear before the got quickly to the main points of the loyalty, generosity, unique sense of Privy Council. At many long lunches case, and was particularly skilled at humour and the sheer pleasure of his that escapade inevitably got an airing. handling difficult litigants in person. company; and the Victorian Bar has Homesickness eventually won out Despite having no experience in the lost a most respected capable, fair, and Jim returned to Melbourne in field of criminal law, it was said at his compassionate and fearless criminal 1990 where he quickly re-established farewell that his greatest contribution advocate of just on 40 years standing. a successful practice in defence and as an appellate judge had been to the Jim lived a full and interesting life prosecution trial work. In 1993 he Victorian criminal law where he had as detailed by his beloved brother married the love of his life Victoria “brought order to chaos”. Dan during a moving eulogy to a Whitelaw and was overjoyed when He spoke several languages packed funeral service on 7 August, they welcomed son Jack into the world. fluently, was widely read and had an 2015. He was born on 23 March Jim was a wonderful father to both interest in all things ancient, classical, 1952, the youngest of two sons to Jim sons and they were devastated when linguistic, military and travel related. and Thelma, and spent his happy finally he lost his battle. In retirement he tutored, running a boyhood in Essendon where he Throughout the last ten years, Jim’s philosophy club at Geelong Grammar attended Essendon Grammar. Here, practice shifted to mainly prosecution School and promoting positive by all accounts, he was “a sometimes work and he enjoyed going on circuit. psychology there and at St Paul’s enthusiastic scholar” but “an always He loved his work, country Victoria, College at the . eager member of the football, cricket and country people. Many of his mates At a memorial service and swimming teams.” During these will attest to Jim’s ability to always commemorating his life, the Dean years Jim’s dad purchased a large source the best produce from rural of Melbourne referred to Callaway’s bakery in the district and young areas which he would distribute on his deep contemplation of philosophy Jim delighted in visiting at every return with the words “very very nice”. and faith and quoted from his opportunity to play in and explore the Jim Bessell was a man big in stature, pseudononymously published book large premises, but more particularly big in character, and big in personality about positive psychology Reflections: to sample its many wares which were — although there were times when abundant and of course “free”. At aged he would exhibit a most endearing As part of his reflections on life, justice twelve Jim continued his education as shyness. All who met Jim liked him, and the life after death, he also spent a boarder at Peninsula Grammar in those of us closest to him loved him, time reflecting on what it means to let Mornington where he was so popular and all were the richer for having go: ‘It is of the essence of the spiritual that he eventually became a prefect known him. His passing leaves a great life … that one must first “let go”: … and house captain. Suffice to say, void in the lives of many. Well done on [this is first of all] a matter of stopping he was not one for the enforcement a life well-lived “Baron”. We miss you! and, as it were, doing nothing. Later it of strict discipline and none of his WAYNE TOOHEY extends to letting go of ideas, as well as schoolmates ever had a bad word to mental habits that cause unnecessary say about him. John Ainslie Bell suffering. For some people there is a He studied law at Monash release from anxiety and a sense of Bar Roll No 1888 University and whilst there his family inner peace.’ (Reflections, p. 1). purchased and ran the El Dorado ohn Bell passed away peacefully On 2 July 2015, Callaway “let go” at a Hotel in North Melbourne where on 12 August 2015. He was 72 time of his own choosing. Jim lived and worked part-time as years of age. His health had a barman and at times as the cook, deterioratedJ in the past few years. James Stephen (Jim) although he always preferred and During and after school John farmed Bessell insisted on the title “head chef”. It on the family property, “Warrumea”, was here he developed his passion at Wangoom, near Warrnambool, Bar Roll No. 1355 for the North Melbourne Football following his father and grandfather n Friday 31 July 2015, Jim Club, or “NORF” as he called them. before him. He initially only passed away in the Alfred After graduation, Jim served completed a Leaving Certificate in the Hospital after a very articles with Cohen, Kirby and Iser expectation that he would continue to

O100 VBN VBN 101 back of the lift

farm but, at the age of 27, he completed The Bar was well represented at opposed to silk, as he frequently was. his Matriculation. He subsequently John’s funeral on 19 August, 2015 at St He served on the Bar Academic and graduated LLB at the University of John’s Anglican Church, Toorak, where CLE Steering Committee and on the Melbourne. Sue and John married in 1979. Bar Indonesian Legal Aid Committee. John was admitted to practice MICHAEL CORRIGAN, TREVOR ROSEN AND He had five readers. He taught in November 1975 and worked as MICHAEL CLARKE advocacy at the Leo Cussen Institute an employee solicitor with Ellison, for eight years. Hewison & Whitehead (now Minter Dr John Bleechmore John loved the law and was a Ellison). In 1979 he became an superb lawyer. He practised with Bar Roll No: 1306 associate with the firm. He worked great humility, treating his instructing John Francis Bleechmore passed mainly with David Jones (then a solicitors, opponents and clients with away amongst family at his home in partner but later Judge Jones of the utmost respect and courtesy. South Melbourne on 30 August 2015, the County Court) and mostly on He also loved sport and enjoyed aged 72. instructions from the State Insurance extreme physical endeavour. He ran a John was a true ‘renaissance man’. Office. During his years as a solicitor, marathon. A week was not complete Having completed his secondary John continued to run Warrumea until without several long bike rides. He schooling at Xavier College, he its sale in 1983. raced at St Kilda Cycling Club into his attended university in Singapore John signed the Bar Roll in May 1984 seventies. and at the University of Melbourne and read with Lloyd Bryant, whom He loved music and literature, and where he was a champion butterfly he had briefed as a solicitor. He had was passionate about and wrote poetry. swimmer and served in the Army chambers initially in Four Courts Whether it was his joy in outdoor Reserves Commandos. In 1965, he Chambers, now physical activity and adventure, or graduated LL B (Hons) and embarked Chambers, and later on the sixth floor the pleasure of sharing his love of the on a career in the legal academy. He of Owen Dixon Chambers West. He law, Jack Daniels whiskey, music, or began as a tutor and then senior tutor was originally on Percy Dever’s list poetry, many of us who treasured his at the University of Melbourne; then and later on Spurr’s list, which became counsel, his companionship and his went to north America on Fellowships Gordon & Jackson’s list. friendship are missing him deeply. to Osgoode Hall (York University, In 1985 John purchased a small MARK HEBBLEWHITE Toronto); to the University of Texas, property at Bolinda, near Romsey, there completing an LL M; to New York where he continued part-time farming University; and to the Harvard Law for many years. It had originally been School. He was, for four years, a Senior owned by “Big Clarke” of Clarkeville. Lecturer at the Melbourne Law School. Lloyd Bryant remembers meeting John Gonged! He taught for several years at the at cattle sales at the old Newmarket University of Alabama School of Law sales yards and at Yea, where John’s Fellow of the University of as a Visiting Assistant, Associate, and cattle brought top prices. Melbourne award then Professor. John practised at the Bar for more Allan Myers AO QC In 1976 he was admitted to practice than 27 years. He had a general and came straight to the Bar. He read practice, which included personal Queen’s Birthday Honours with Michael Kelly. injuries, insurance, testators’ family The Hon Justice Chris Maxwell AC In 1983 John was invited to return to maintenance, building disputes and The Hon Justice Lex Lasry AM Harvard as a Visiting Scholar, where he leases, and interlocutory matters in His Honour Reserve Magistrate taught for a semester and completed both the County and Supreme Court Gregory Levine OAM his doctorate (SJD). He also taught Practice Courts. copyright law for a semester in 1985 as John loved the bush and was a strong Australian Psychological a Visiting Professor at Santa Clara Law walker and keen skier. He introduced Society Excellence Awards School. Trevor Rosen, Chris Thomson and Health and Wellbeing Committee At the Bar, John established a Michael Clarke of the Bar to the The work of the Victorian Bar’s remarkably broad practice, ranging Melbourne Walking Club. Health and Wellbeing Committee from criminal trials and appeals, John is survived by his loving wife, was recognised at the Australian including the appeals in the Burwood Sue, and two children, Andrew and Psychological Society Workplace student murders to, more recently, a Jane. His older siblings, Gilbert and Excellence Awards held on 2 June predominantly commercial practice Enez, also survive him. 2015. The Victorian Bar was a specialising in copyright, intellectual John was loyal and kind. He walked finalist in the Health and Wellbeing property and trade practices. Rarely the extra mile to help. He was a dear Category. did he ask to be led, even when friend to many.

100 VBN VBN 101 Quarterly Counsel back of the lift back

George Georgiou SC

JESSE RUDD

eorge Georgiou came to the Bar in 1990 and developed a practice mainly in criminal law. It was not long, however, before he got itchy feet. George was keen to Gfollow in the footsteps of the many illustrious members of our Bar who have devoted their time and energy to practising in the Northern Territory. So, when in 1994 fellow barrister Charlie Rozencwajg (now Magistrate Rozencwajg) alerted him to a locum opportunity in Alice Springs, he jumped at the chance. It was meant to be an eight week stint. George returned to Melbourne seven years later. George was immediately captivated by Alice Springs – “an ugly town in the most beautiful setting” – and he knew he would be staying. He worked for the Northern Territory experience in appearing in Victoria from Justice Jane Dixon. In Legal Aid Commission doing trial difficult matters”. conjunction with the organisation’s and appearance work. Occasionally, Outside of his work, George other members, this role includes his work would take him up to immersed himself in the natural making submissions on proposed Darwin. The work was challenging, environment and Western Desert art. legislation that touches upon human but ultimately very satisfying. A Now back in Melbourne with a rights and civil liberties, as well as major challenge was overcoming busy criminal law practice, George general advocacy in preserving those language and cultural barriers when still finds time to head up to Alice rights. George also finds time to teach representing Aboriginal persons. Springs and Darwin a few times advocacy, an exercise which “keeps People were reluctant to give a year for work. George describes me on my toes”. evidence for cultural reasons, and the disparity in incarceration rates George is a proud and passionate there were challenges for defence between Indigenous and non- Collingwood supporter, and his only advocates in cross-examination with Indigenous Australians as “a terrible regret from his time in Alice Springs the issue of ‘gratuitous concurrence’. indictment”. George has always been is that it killed off a budding skiing George feels his advocacy has interested in social justice issues, so career. Perhaps this is just as well benefited from these experiences. it is no surprise that he has recently though, because he is no fan of the As he puts it, “I gained a lot of taken over the Presidency of Liberty Melbourne Football Club.

102 VBN VBN 103 Victorian Bar readers back of the lift september 2015

back row: Kimberley Phair, Brendan Avallone, Olaf Ciolek, Patrick Miller, Luke Virgona, Rajat Bhattacharya, Owen Wolahan, Nicholas Elias, Reiko Okazaki, Gary Clark, Jacob Pruden-Collier, Michael Sharkey, Lisa Papadinas, Olivia Thompson, Sophie Mariole middle row: Wendy Pollock, Raini Zambelli, Monika Paszkiewicz, Andrew Yuile, Justin Rizzi, Gorjan Nikolovski, Mark Benkel, John Moore, Alison Burt, Stephanie Scully, Jason Romney, Ryan Maguire, Min Guo, Kim Cullen, Emma Jeans, Rachel Chrapot seated row: Samantha Renwick, Joseph Amin, Rose Cameron, Andrew Pollock, Anastasia Smietanka, Nicholas Phillpott, Christopher Fenwick, Carly Robertson, Adam McBeth, Diana Karamicov, Christopher Jensen, Jing Zhu, Fiona Crock

Victorian Bar council 2015-2016

standing row l-r: Julia Frederico, Elizabeth Ruddle, Andrew Denton (Assistant Honorary Secretary), Christopher Winneke SC, Dr Greg Lyon QC, Ted Woodward SC, Karen Argiropoulos, Daniel Crennan (Assistant Honorary Treasurer), Barbara Myers, Sam Hay, Dr Matthew Collins QC, Justin Wheelahan, Daniel Bongiorno, Wendy Harris QC seated l-r: Áine Magee SC, Samantha Marks QC (Honorary Treasurer), David O’Callaghan QC (Senior Vice-President), Paul Anastassiou QC (President), Jennifer Batrouney QC (Junior Vice-President), Paul Holdenson QC, Suzanne Kirton. absent: Michelle Quigley QC, Paul Panayi (Honorary Secretary)

102 VBN VBN 103 New silks back of the lift back Q&A In November 2015, the Hon Chief Justice Warren AC appointed the following barristers as senior counsel in and for the State of Victoria.

Jonathan Brett FAR BACK ROW: Tom Keely, Dermot Dann BACK ROW: Daniel Gurvich, Chris Winneke, Chris O’Grady, Anthony Young, Michael Flynn MIDDLE ROW: Gerard Darlton, Ed Heeery, Michelle Britbart, Jonathan Brett, Andrew McClelland FRONT When you were a child, what did ROW: Michael Whitten, Chris Horan, Áine Magee, Jonathan Davis, Peter Willis, Andrw Strum, Paul O’Grady you want to be when you grew up? A medical research scientist. intelligent, strategic, well prepared, and learn from your colleagues. Who were some of the silks you patient and excellent company. What is your favourite song? “This liked to work with as a junior and Appearing against them may not be is the day” by The The. why? I really don’t like to single as enjoyable. What strategies do you use to cope anyone out because I worked with What advice would you give to with work pressure? Knowing when many really good and nice people, junior barristers about how to and how to relax helps. Luckily I have but Brian Collis does a lot of his own succeed at the Bar? Always be a busy family and plenty of other preparation, sees the point and sticks better prepared than your opponent. activities to occupy my mind. to it, argues it well, and then sits down. What is your favourite song? “Gold” by What is your most treasured What advice would you give to Spandau Ballet. Or anything by Wham! possession? The 1996 A grade Amateur junior barristers about how to What strategies do you use to cope Football Premiership medallion (we in succeed at the Bar? Play it straight with work pressure? Watching last place on the ladder at the half way and put the client’s interests first. reality TV with my kids. mark of the season.) What is your favourite song? “Mr What is your most treasured What book will you be reading this Tambourine Man”. possession? My passport. summer? “Long Bombs to Snake”. What strategies do you use to cope What book will you be reading this with work pressure? I wish I knew. summer? Bossypants by Tina Fey. Jonathan Davis What is your most treasured When I was a child I wanted to be a possession? Nothing really – Dermot Dann test cricketer when I grew up. perhaps my piano. When you were a child, what did Some of the Silks I liked to work What book will you be reading this you want to be when you grew up? with as a junior were Charles Scerri summer? The latest Don Winslow/ Running in the Olympics. QC and David Collins QC. They set Dennis Lehane or similar. Who were some of the silks you an example to their juniors as fine liked to work with as a junior and technical lawyers who mastered Michelle Britbart why? I derived great benefit from their clients’ legal position from the When you were a child, what did working with Silks. I tried to learn as outset of their engagement. They also you want to be when you grew much as I could from them with all their had great practical insight into their up? A nurse, so I could spend all my different approaches and styles. As a clients’ best realistic outcome in a time with my uncle who was a doctor. young Articled Clerk starting out it was potential or actual dispute and how Who were some of the silks you inspiring to watch these silks in action. this might be achieved. liked to work with as a junior What advice would you give to My advice to junior barristers on and why? I refuse to list them as I junior barristers about how to how to succeed at the Bar is to live will miss someone and be forever succeed at the Bar? Prepare as a balanced life. embarrassed. But as a junior I had well as you can. Believe in yourself. My favourite song is “Desolation the privilege to work with many Be yourself. Try and keep your life Row” by Bob Dylan. outstanding common law silks who balanced with time for family and To cope with work pressure I were without exception highly other interests. Be ready to take advice exercise, listen to and play music.

104 VBN VBN 105 back of the lift

My most treasured possession is What book will you be reading this Tom Keely my Gibson J200 acoustic guitar. summer? Bail Law in Victoria, Second When you were a child, what did This summer I will read A Brief Edition. (Someone’s got to!). you want to be when you grew History of Seven Killings by Marlon up? I didn’t have any real idea until James. Ed Heerey I was at secondary school. I started When you were a child, what did to eliminate things that I wasn’t Michael Flynn you want to be when you grew up? interested in and over time came to When you were a child, what did Not a barrister. a clear view that I wanted to have a you want to be when you grew up? Who were some of the silks you career in the legal profession. A scientist. liked to work with as a junior and Who were some of the silks you Who were some of the silks you why? James Elliott, David Yates, liked to work with as a junior liked to work with as a junior and David Shavin – each brilliant in his and why? Pat Dalton QC, for his why? John de Wijn, Jennifer Davies, own way. fearlessness and fighting qualities; Tony Pagone and Brian Shaw. I What advice would you give to Brian Collis QC, for knowing what was learned from each of them and they junior barristers about how to and wasn’t important in cases and his were very generous in allowing me to succeed at the Bar? Be yourself. good company on circuit; Rob Blowes present parts of cases. What is your favourite song? “Jump SC, for his creative and strategic What advice would you give to Around” by House of Pain. thinking; and Sturt Glacken QC, for his junior barristers about how to What strategies do you use to cope incisiveness and high level of rigour. succeed at the Bar? Use your quiet with work pressure? Brother Baba What advice would you give to time productively and persevere. Budan. junior barristers about how to What is your favourite song? “We What is your most treasured succeed at the Bar? Thorough are the navy blues”. possession? My bass guitar. preparation, listening to your What strategies do you use to What book will you be reading this common sense and watching good cope with work pressure? Try to summer? Dr Seuss with my kids. barristers conduct cases. prioritise tasks and don’t panic. What is your favourite song? ”Hey What is your most treasured Christopher Horan Jude”, by the Beatles. possession? A shoe box which my When you were a child, what did What strategies do you use to late father made for me. you want to be when you grew up? cope with work pressure? Having What book will you be reading A teacher. Or the proprietor of a lolly activities outside work that are this summer? This House of Grief by shop. completely absorbing e.g. listening Helen Garner (a gift from my clerk). Who were some of the silks you to music and watching my now adult liked to work with as a junior children play sport. Daniel Gurvich and why? Charles Scerri QC, Neil What is your most treasured When you were a child, what did Young QC, Jim Merralls QC, Stephen possession? My Italian walking boots you want to be when you grew up? Donaghue QC, all of whom were What book will you be reading Centre for Carlton. generous and inspiring leaders. this summer? Paul Keating: The Who were some of the silks you What advice would you give to Biography by David Day. liked to work with as a junior and junior barristers about how to why? Tehan QC, Lyon QC, Robinson succeed at the Bar? Be nice to other Áine Magee QC, Bromwich SC, Rapke QC, barristers. When you were a child, what did Abraham QC. All generous with their What is your favourite song? you want to be when you grew up? time and experience. “All Blues” (Miles Davis), or “Since Always wanted to be a lawyer – which What advice would you give to I’ve Been Loving You” (Led Zeppelin). was strange because there were none junior barristers about how to What strategies do you use to cope in my family at that time.

succeed at the Bar? Prepare, do your with work pressure? Who were some of the silks you photo courtesy of peter bongiorno best and get on with your next case. Regular exercise and good friends. liked to work with as a junior and What is your favourite song? What is your most treasured why? A lady never tells – suffice it to “Cheek to Cheek”, Irving Berlin. possession? say that all the silks I have worked Anything by George Gershwin. 2011 Boston Marathon finisher’s with have been wonderful. What strategies do you use to cope medal, and a signed Jack Riewoldt 10- What advice would you give to with work pressure? A long run. goal match-worn jumper. junior barristers about how to What is your most treasured What book will you be reading this succeed at the Bar? Know your possession? My current pair of summer? Brief inside out – maintain a sense of runners. Something other than a court book or humour and always, always, always appeal book. act with dignity.

104 VBN VBN 105 What is your favourite song? “Ode What strategies do you use to Frank Parry QC and Justin Bourke to my Family” by the Cranberries. cope with work pressure? I am QC for their mastery of litigation What strategies do you use to cope very fortunate to have great friends strategy. Nick Green QC, Richard back of the lift back with work pressure? Exercise and in chambers. If I have a problem, I Niall QC and Paul Santamaria QC the odd glass of wine. wander in, and just start talking. for their ability to keep an eye on the What is your most treasured What is your most treasured horizon and focus on where the case possession? My wedding ring. possession? I try not to put too is heading. All of them for being such What book will you be reading this much value in possessions. But I a pleasure to work with. summer? Anna Karenina – a re-read have an ugly old brown mug from my What advice would you give to after watching “The Beautiful Lie”. grandparents’ house I use only on junior barristers about how to special occasions. succeed at the Bar? Be patient with Andrew McClelland What book will you be reading this yourself. Be patient with others. You When you were a child, what did summer? Lonely Planet’s Guide to will learn from your own mistakes, as you want to be when you grew Vietnam. well as those of others. up? A zoologist. I once received an What is your favourite song? “Don’t encyclopedia of snakes and lizards as Chris O’Grady Be Denied”, , circa 1973. a gift, and spent the next six months When you were a child, what did What strategies do you use to cope studying it obsessively. I am sure that you want to be when you grew up? with work pressure? Engage with will come in handy one day. Archaeologist. the community in volunteer roles, Who were some of the silks you Who were some of the silks you family time, keeping fit and playing liked to work with as a junior and liked to work with as a junior cricket. why? Melanie Sloss SC (now Justice and why? Frank Parry; Nick Green; What is your most treasured Sloss), David Collins QC, Jim Delany Jeremy Ruskin. Willingness to possession? A print of the first QC, Neil Young QC, Mark Derham QC engage in open discussion as to international cricket match played at (now Associate Justice Derham) and how to work through the problem; the MCG in 1862. Peter Collinson QC. a sobering assessment of the issues What book will you be reading this Every one of them has shown that needed addressing coupled with summer? Whatever puts me to sleep me great faith and given me the infectious enthusiasm and/or in the hammock – something like opportunities that have led me to determination needed to get it done. Macken’s Law of Employment. becoming a silk myself. They have What advice would you give taught me the value of humour even to junior barristers about how Andrew Strum in difficult cases, that the hardest to succeed at the Bar? Enjoy When you were a child, what did working team is the one most likely the privilege of the work and the you want to be when you grew up? to win, that advocacy can be an art, opportunity of working with good I didn’t know and I’m still not sure I and that being at the top of your people. know. Hopefully I’ll work it out one day. profession and having friends and What is your favourite song? Who were some of the silks you passions outside the law all go hand Billy Bragg: “New England”. liked to work with as a junior in hand. What strategies do you use to cope and why? All of them, for different What advice would you give to with work pressure? The collegiality reasons. junior barristers about how to of the bar. What advice would you give to succeed at the Bar? It is very easy to What is your most treasured junior barristers about how to feel invisible at the Bar. Don’t let that possession? My motorcycle. succeed at the Bar? Work to live, happen to you. Make sure that you What book will you be reading this don’t live to work. tend to your friendships at the Bar. summer? Conspirator: Lenin in exile. What is your favourite song? It will help you professionally in all “Forces” by Japanese Wallpaper sorts of ways, and make your life much Paul O’Grady (a.k.a. Gab Strum, my son). more rewarding. The other piece of When you were a child, what did What strategies do you use to cope advice is to find some mentors. Senior you want to be when you grew up? with work pressure? I go home to barristers are more open to helping At no stage was I ever going to be a my family. and developing friendships than you lawyer – what happened? What is your most treasured might think. You don’t have to work it Who were some of the silks you possession? all out on your own. liked to work with as a junior My collection of antiquarian books. What is your favourite song?I have and why? Justices Chris Jessup What book will you be reading this been known to play “Wake Me Up” and Richard Tracey and Michael summer? by Avicii at high volume when I have Wheelahan QC for their incisive As many of them as possible. had a hard day. intellect. Justice Michael McDonald,

106 VBN VBN 107 back of the lift

Michael Whitten What advice would you give to German techno pop band) and, in When you were a child, what did junior barristers about how to September, “We’re a Happy Team at you want to be when you grew up? succeed at the Bar? There is no Hawthorn”. A barrister, yes, even before I really substitute for experience; and there What strategies do you use to cope knew what one was. is no-one who does not fall down with work pressure? Try to avoid it Who were some of the silks you at least once, so to borrow a family by adequate preparation, but in any liked to work with as a junior and motto: keep going! event, keep up your exercise and why? Richard Manly, John Digby What is your favourite song? switch off with your family as much (as His Honour then was), George Hmm - the answer is blowin’ in the as you can. Golvan, Charles Scerri, just to name wind: for present purposes, let us What is your most treasured a few. While all had/have different say the Lord Chancellor’s song from possession? My Stihl chainsaw. virtues and styles, all consistently ‘Iolanthe’. What book will you be reading this demonstrated the highest work What strategies do you use to cope summer? The last couple of books ethic, surgical insight and, most with work pressure? As much as in the Patrick O’Brian, Aubry / importantly, unwavering integrity. I can, I attend Japanese sumi-e and Maturin series. What advice would you give to calligraphy classes: it is humbling to junior barristers about how to be so clumsy. Anthony Young succeed at the Bar? What is your most treasured When you were a child, what did Do the best with what is in front of possession? you want to be when you grew up? you today. Be useful. Work hard. Back A model red London bus, purchased A park ranger (as a child I was an yourself. Be brave. Be honest, no the day I left after four years’ avid watcher of Skippy on TV). matter what. Laugh often. Never give working there. My children, when Who were some of the silks you in, never give up. very young, were convinced I went to liked to work with as a junior and What is your favourite song? work to play with it. why? Cliff Pannam QC, Allan Myers Nessun Dorma. What book will you be reading QC, Neil Young QC, Noel Magee QC What strategies do you use to cope this summer? Book? Who reads one, and Neil Clelland QC. Each one of with work pressure? when several will do: the new books them is an exceptional advocate, a Meditation. Exercise. Music. on the Dismissal; The Poetry of Li Yu good teacher, good humoured and a What is your most treasured by Cliff Pannam; and maybe an old pleasure to work with. possession? favourite eg a Judge Dee mystery. What advice would you give to Upon reflection, nothing material. junior barristers about how to If it is something that can be Chris Winneke succeed at the Bar? In 1958, Henry ‘possessed’, then I most treasure When you were a child, what did Cecil (Leon) wrote that there are what the Japanese call in a martial you want to be when you grew four qualities that you should have arts context “Osu No Seishin” up? As a child, if I ever gave thought to succeed at the bar: (1) patience, meaning to persevere, to endure. to what I might do as an adult (and (2) the abilities to understand What book will you be reading I don’t recall ever giving it much and express, (3) integrity and (4) this summer? All those my lovely thought) it would certainly have a capacity for hard work: Brief children gave me for Father’s Day involved surfing. to Counsel (London, 1958), Ch. 2. which have since been covered by Who were some of the silks you Despite all that has changed since briefs. liked to work with as a junior and 1958, the desirability of having those why? I was fortunate to work with qualities has not. Peter Willis quite a number of silks, and I enjoyed What is your favourite song? When you were a child, what did working with all of them because “Oh Very Young” - Cat Stevens. you want to be when you grew up? they were very wise people (I’m sorry What strategies do you use to A builder, then an architect. Later, a about that evasive answer). cope with work pressure? Try to historian. What advice would you give to remember that after every wave there Who were some of the silks you junior barristers about how to is a trough. liked to work with as a junior and succeed at the Bar? Keep your What is your most treasured why? All whom I worked with! To practice as broad as possible for as possession? I don’t treasure observe the magic of their weaving long as possible, know your brief possessions; there are more valuable an opening or finding the heart back to front and don’t stint in your things. of a witness’s story or sculpting communications with your instructor What book will you be reading this written submissions, out of a mess of and client. summer? More tales of Paddington material that appeared jumbled and What is your favourite song? Bear - to my children. unpromising. Anything by Alphaville (a strange 80s

106 VBN VBN 107 Boilerplate A BIT ABOUT WORDS

Wading In

JULIAN BURNSIDE

t is increasingly common to find reports in the printed press as well as in the electronic media of politicians, sports stars, commentators and others wading into various discussions, problems, debates, etc. It even happens in the Fairfax media. The Age once carried a headline which read Turnbull wades into asylum debate. If Fairfax does it, it might soon be accepted in the OED. The correct expression is weigh in. It comes from boxing,I in which a competitor is required to weigh in before the fight. Likewise in horseracing, jockeys are required to weigh in before competing. Thus, weighing in is an official step before participation in a competitive event. (The competitors are also required to weigh out afterwards, but this does not seem to have fallen into the vernacular.) It is not hard to see how the slide occurs. The metaphor of weighing in is an obvious fit for a person’s entry into a debate or issue; and to say that the fighters weighed in sounds identical to the fighters wade in. The visual it to its intended purpose. It is understood this way by imagery of a person wading into troubled waters fits convention, even though the speaker may have no idea readily enough with the idea of joining a controversy, and that the phrase depends on an archaic meaning of the carelessness does the rest. word proof. As a colloquial expression, it has an accepted It seems to be a fairly recent error: Sidney J. Baker in meaning that no longer depends on understanding the the 1966 edition of The Australian Language recognises individual words which comprise it. As a result, the weigh in as a metaphor derived from boxing, but does expression itself can be mangled without losing its agreed not note wade in. What was interesting about the Age meaning. Thus, the proof is in the pudding is understood headline is that, if the error has made it into respectable as representing the original, the meaning of the original print, it will probably stick. is commonly understood, and that meaning is imprinted Perhaps it does not matter, except to purists. It is on the mangled version. All this despite the fact that, as a fascinating to see colloquial expressions twisted out of group of words, the proof is in the pudding means nothing shape so that they lose contact with the metaphor from at all. (Incidentally, in the trial of an action in which they spring, yet remain intelligible as part of our Court is called the proof). common agreement about meaning. The best example Wade in and the proof is in the pudding are examples of this is the increasingly common the proof is in the of a curious phenomenon: they are expressions whose pudding. This is more often heard than the original literal meaning does not correspond to their understood the proof of the pudding is in the eating. In the original meaning. And in a contest, the understood meaning will expression, the meaning comes from the fact that proof always prevail, despite the moans of the purists. is used in the early sense of test. So, the test of a pudding Developments in technology make it likely that some is to eat it. The original expression naturally conveys other expressions will join that group. Some people still the idea that the worth of a thing is found by putting illustration by guy shield/the slattery media group slattery guy shield/the by illustration speak of dialling a telephone number. The reference is,

108 VBN VBN 109 boilerplate Weighing in is an official step before participation in a competitive event.

These new uses of old words follow a pattern which is so common that we tend not to notice it. For example, the dashboard of a car is so named because, originally, it resembled the dashboard of a carriage in appearance and function. According to the second edition of the Oxford English Dictionary, it was originally ‘a board or leather apron in the front of a vehicle, to prevent mud from being splashed by the heels of the horses upon the interior of the vehicle’. To dash was ‘To bespatter or splash (a thing) with anything (e.g. water or mud)’. The dashboard can be seen on very early motor cars in about the same position as it had in horse- drawn carriages. It was a natural place for instruments, because it was readily visible to the driver. It drifted upwards to its present position in order to improve the visibility of the instruments, but kept its name. If you suggested to anyone today that the purpose of the dashboard was to keep mud from splashing the driver’s clothes, you would be thought of course, to that earlier species of Luckett’s Not Anymore, remixed by DJ mad. In earlier times, mad people telephone which used a circular dial Mealdue. One ringtone website offers (in London at least) were likely to be that could be rotated, by means of a selection from categories which admitted to the Hospital of St. Mary finger-holes, to establish connection include Country, R&B, Christian and of Bethlehem, in London, which had with another telephone. They are Gospel, Classical, Latin, World Beat, been founded as a priory in 1247. rarely seen these days. On digital and Sound Effects. But phones still By 1403 it was specialising in the phones, the idea of dialling a number ring. care of lunatics. It was originally in is anachronistic. But it will probably In the age of digital clocks, Bishopsgate. In 1676 it moved to new remain and be understood, even clockwise remains meaningful and buildings in Moorfields designed by by people who have never seen the is generally understood. And in Robert Hooke. In 1815 it transferred old-fashioned type of telephone. the age of word processors, people to St. Georges Fields in Southwark. A parallel expression is to ring still type up a document. But typing Long use of its name wore its someone, and we are urged to buy comes from the typewriter, and the pronunciation down from Bethlehem various ringtones to make incoming link between the typewriter and the to Bedlam. From that we have the calls more intrusive and irritating. modern computer is limited to the metaphorical meaning of madness But ring is hardly apt to describe layout of the keyboard. Beyond that, and confusion, which is the only the noises made by modern phones, they have nothing in common. The meaning currently associated with especially mobile phones. It is activity once accurately described as it. How many people at Christmas possible to buy ringtones which typing is sometimes referred to now time would understand how close comprise the popular songs of more as keyboarding. Although this has is the link between the chaos of than a thousand singers — from the advantage of literal accuracy, it is the festivities and the event being Thriller by Michael Jackson to LeToya ungainly and will probably not stick. celebrated?

108 VBN VBN 109 MUSIC boilerplate Blurred Lines: Pharrell Williams et al v Bridgeport Music et al

ED HEEREY

’m tipping you’re reading this column, in this What’s Going On? That war inspired many a protest song, magazine, because you have more than a but few were more disarming and effective than this. passing interest in both music and law. That Drawing in the listener with a bongo beat and sax solo, being the case, let me fill you in on the biggest Gaye smoothly but soulfully opens a conversation with musical case of the twenty-first century. his mother and his brother (his brother Frankie was a Vietnam vet), before explaining to his authoritarian In one corner: the grown-up father: “Father, father, we don’t need to escalate, you see war children of the late Marvin Gaye is not the answer, for only love can conquer hate”. Gaye died tragically in 1984, aged 44, shot by his father A true megastar of soul music, Marvin Gaye topped the after intervening in an argument between his parents. charts a dozen times in the US and around the world from This case concerns Gaye’s No 1 hit from the summer of hisI first big hit in 1967, I Heard it Through the Grapevine, 1977: Got to Give it Up, an infectious dance hit with Gaye’s to 1982’s amorous Sexual Healing. falsetto vocals sitting on top of a sparse arrangement of But there was another very serious side to his work, driving percussion, a syncopated cowbell, an intermittent epitomised by his deeply stirring 1971 protest against bass riff and background party noise. both the Vietnam War and the treatment of its veterans,

110 VBNVBN VBN 111 boilerplate In the other corner: Pharrell On the third day I told him I wanted to do something Williams and Robin Thicke kinda like Marvin Gaye’s Got to Give it Up At 42 years of age, Pharrell Williams has the modern music world at his Pharrell and I were in the studio and “confidential” deposition transcripts feet. He has written for, produced and I told him that one of my favourite of each of Williams and Thicke. performed with all the biggest names songs of all time was Marvin Gaye’s Thicke’s transcript is quite a read. of modern popular music, from Got to Give It Up. I was like, ‘Damn, Focussing on his interviews in the Snoop Dogg to Daft Punk, Beyonce, we should make something like that, media, he was asked: Justin Timberlake, Madonna, Britney something with that groove.’ Then he Q. Did you have any conversation with Spears and many in between. He has started playing a little something and Pharrell Williams during or before the also enjoyed several massive hits on we literally wrote the song in about half creation of Blurred Lines in which you his own, notably Happy which won an hour and recorded it. discussed with him Marvin Gaye’s song the BBC Music Award for Song of the Thicke also told Billboard magazine Got to Give It Up? Year in 2014 and a Grammy in 2015. on 9 July 2013: In 2015 he also won the Top R&B A. No. Artist and Top R&B Album awards at Pharrell and I were in the studio making Q. Do you consider yourself an honest the Billboard Music Awards. a couple of records, and then on the person? It is no exaggeration to say that third day I told him I wanted to do Marvin Gaye and Pharrell Williams something kinda like Marvin Gaye’s A. No. That’s why I’m separated. are musical giants of their respective Got to Give it Up, that kind of feel [Thicke had recently separated from generations. ‘cause it’s one of my favourite songs his wife.] Robin Thicke is not quite in that of all time. So he started messing with Q. Do you make it a habit of being league. The son of two TV actors some drums and then he started going dishonest when you give interviews? (Alan Thicke from Growing Pains and ‘Hey, hey hey..’ and about an hour and Gloria Loring from Days of our Lives), a half later we had the whole record A. When I do – when I give interviews, Thicke grew up in Hollywood and finished. I tell whatever I want to say to help sell gradually made a name for himself as records. Thicke made statements to similar an R&B singer, with some modestly effect in numerous other interviews Thicke was taken to the above extract successful hits. in print and on television, each time from his interview with GQ magazine: Thicke’s career suddenly took identifying Got To Give It Up as an a sky-high trajectory in 2013 with Q. Is that statement true? inspiration for Blurred Lines. the release of Blurred Lines, which Perhaps unsurprisingly, in light of A. No. he recorded with Pharrel Williams. Thicke’s statements in the media, The song was a worldwide smash Q. Why did you say it if it is not true? Williams and Thicke received a hit, reaching number one in over demand from the Gaye family to A. Because after making six albums 114 countries including a record- assign copyright ownership of that I wrote and produced myself, the breaking 16 weeks at the top of the Blurred Lines. Williams and Thicke biggest hit of my career was written US Billboard chart. were first to bring the matter to and produced by somebody else and I You be the judge Court, applying on 15 August 2013 was jealous and I wanted some of the to the United States District Court credit. If you are curious to form your own for a declaration that Blurred Lines “untutored” view before reading Q. . . . So it is your testimony that did not infringe copyright in Got To further, get onto YouTube and look neither before the creation of Blurred Give It Up. On 30 October 2013, the up Robin Thicke – Blurred Lines VS Lines nor during the process did you Gaye family filed a counterclaim for Marvin Gaye – Got to Give it Up which and Pharrell discuss in any way, shape copyright infringement. plays snippets of each song back to or form the song Got to Give It Up? A feature of United States litigation back. Do they sound similar to you? is that litigants are required to attend A. No. depositions prior to trial, where they Blurred lies? Q. It is correct? What I just said is are cross-examined by opposing While promoting the release of correct? counsel (without interference from Blurred Lines, Thicke gave a series of any pesky judge). The evidence is A. Yes, what you said is correct, that interviews which were central to the video-taped and transcribed. him and I did not discuss it. I tried to case brought by the Gaye family. The good folks at www. take credit for it later because he wrote On 7 May 2013, Thicke said in an hollywoodreporter.com have seen the whole thing pretty much by himself interview with GQ magazine: fit to upload full copies of the and I was envious of that.

110 VBNVBN VBN 111 . . . magazine and deposed that it was not And just for a bit of humor, the true. He added: “with all due respect, I percussion that I use in Blurred Lines, I was high on vicodin and alcohol when was high and drunk every time I did an aside from the music notation being boilerplate I showed up at the studio. interview last year.” He also said that completely different – completely So my recollection is when we made he was drunk and on vicodin when different – the sheet music is available the song, I thought I wanted – I – I he appeared on Oprah to promote online, by the way, but the percussion wanted to be more involved than I the song, but confirmed that he was – I was trying to pretend that I was actually was by the time, nine months not drunk or on any drugs during his Marvin Gaye and what would he do, later, it became a huge hit and I wanted deposition.(Vicodin is a combination had he went down to Nashville and did credit. opioid narcotic and analgesic a record with pentatonic harmonies and prescription drug.) more of a bluegrass chord structure. So I started kind of convincing myself When it was put to him that he did that I was a little more part of it than I Williams was asked: not appear either drunk or on vidocin was and I – because I didn’t want him – in his video interviews, he said: Q: Hold on. When you were creating I wanted some credit for this big hit. Blurred Lines, were you trying to A. Every day I woke up, I would take But the reality is, is that Pharrell had pretend that you were Marvin Gaye? a vicodin to start the day and then I the beat and he wrote almost every would fill up a water bottle with vodka A: At that particular time, no, but as I single part of the song. and drink it before and during my look back, I feel that feeling. . . . I offered no ideas to connect to interviews. Williams confirmed that he played anything to Marvin Gaye. During Williams’ deposition he was all the instruments in Blurred Lines Q. You didn’t offer any ideas at all; asked if he had ever owned any and wrote all the vocal melodies, and right? version of the song Got To Give It Up, all that Thicke did was ask for the to which he said “Believe it or not, second verse to be sung in falsetto. A. No, not really. no, I don’t have it, but my aunt used to When asked why Thicke had When asked why he said he came up play it all the time.” any ownership in the song and with the elaborate story about Marvin Williams confirmed that the song why Williams agreed to give up a Gaye, Thicke deposed: was written and recorded in about an percentage of the song, Williams said: hour and a half. . . . I thought it would sell records. It’s something that ... just happens in When asked to explain Thicke’s our business. Did he write a specific I thought that it being my song – my interviews in the media, Williams line? No. Did he ask that we sing high idea would make it more personal said: on the second verse? Yes. Did he give a because my music has always been so He is also a friend of mine, right, and basic demonstration of what that might personal, that this was the first time this is public record. At the end of be? Yes. But I wrote that second verse I had a song out that wasn’t personal the day, he’s a friend of mine and I’m as well. and had nothing to do with me, and yet not trying to, you know, belittle his it was my biggest successful, which, Q. Do you know if he got 50 percent of character in any way, shape or form. you know, was very tough for me. the song? But this is what happens every day And so I lied in my story so I could at A. No, I’m not that generous. in our industry. You know, people are least make it seem like, hey, I’m the made to look like they have much At the very least, it was clear that guy who came up with this great idea. more authorship in the situation than Williams (and Thicke, to the extent And you know what? I didn’t even use they actually do. So that’s where the that he created Blurred Lines at all) the Marvin Gaye thing until everyone embellishment comes in. had knowledge of Gaye’s Got To Give started saying to me, “Hey, it’s It Up, such that they could not avoid reminiscent of the Marvin Gaye song.” Williams said “Cowbell’s been a staple infringement on the basis that they And I was like, “Well, yeah, that was in my production for about like 20 created Blurred Lines independently my idea. I wanted to do something like years.” However, when pressed, he of any knowledge of Gaye’s song. that.” There was no other way for me could only identify three songs in But reference to the prior work to get credit for this biggest song of the which he had ever used a cowbell. is only one part of copyright year unless it was my idea. Williams denied that he and Thicke infringement. It is also necessary ever discussed Marvin Gaye’s song Q. Which none of it was? (both in the United States and Got To Give It Up any time during the Australia) to demonstrate that the A. Which none of it was my idea. making of the song Blurred Lines. two works have sufficient objective But he was then taken to a media Thicke was also taken to the above similarity, such that the later work is interview where he said: extract of his interview with Billboard truly a copy of the earlier work.

112 VBN VBN 113 boilerplate Battle of the musicologists Each side called their own expert musicologists to give opinion evidence as to whether Blurred Lines was “substantially similar” to Got To Give It Up. The Gaye family relied on Judith Finell, who identified “a constellation of eight substantially similar features” in the two songs, namely: (1.) the signature phrase: in Blurred Lines sung to the lyrics “And that’s why I’m gon’ take a good girl”; in Got To Give It Up sung to the lyrics “I used to go out to parties”; (2.) the vocal hook: in Blurred Lines sung to “take a good girl”, in Got To Give It Up sung Pharell Williams to “keep on dancin’.” (3.) the backup vocal hook: in Blurred Lines sung to “good girl” and in “Got To Give It Up to “keep on dancin’”. (4.) the “core theme” of each song: comparing the verse in Blurred Lines to the backup hook in Got To Give It Up; (5.) the backup hooks: “hey, hey, hey” in Blurred Lines and The Gaye family relied on Judith Finell, who “dancin’ lady” in Got To Give identified“a constellation of eight substantially It Up; (6.) the bass melodies, including similar features” an intermittent descending melody; rather than merely resembling one and rather they comprise “the basic (7.) the keyboard parts, another stylistically, these two works building blocks of musical composition with chords in rhythms sound substantially similar in many of that are present, if not inevitable, in emphasizing the offbeats, their most distinctive features.” many songs” or were found in prior with shared pitches and Williams and Thicke relied on the art including Low Rider, Superfly and rhythmic feature; report of another musicologist, Sandy Funkytown. (8.) unusual percussion choices, Wilbur, who prepared a 55-page The Gaye family also adduced a particularly a syncopated declaration containing a comparative 30 page declaration from Professor cowbell part and an open analysis of the two songs. She found Ingrid Monson, who carries the

hi-hat. no substantial similarity between imposing title of the Quincy Jones photo courtesy of nick ut/associated press Ms Finell also noted that both songs the melodies, rhythms, harmonies, Professor of African American Music use distinctive falsetto vocals, both structures and lyrics of the two at Harvard University. Professor deviate from the norm by omitting a songs and concluded that the songs Monson found at least seven guitar and both contain party noises were not substantially similar. She similarities between the two songs throughout the song. critiqued Ms Finell’s report, noting and that the similarities were so Ms Finell concluded that the that “there are no two consecutive pronounced that “direct copying” similarities between the songs notes in any of the melodic examples seemed likely. “surpass the similarities that result in the Finell Report that have the from their shared genre, and are the same pitch, the same duration, and Trial by jury result of many of the same deliberate the same placement in the measure.” Williams and Thicke unsuccessfully creative choices made by their She also opined that many of the applied for summary judgment, respective composers. Consequently, purported similarities are unoriginal, which was denied by Federal District

112 VBN VBN 113 Perhaps more than most, modern popular music is Jackson’s Man in the Middle to the notoriously derivative. Beatles’ Let It Be. The jury deliberated for two boilerplate Court Justice John Kronstadt, who on the inconsistency between the days and delivered its verdict on 10 ruled on 30 October 2014 that there depositions of Thicke and Williams March 2015, finding infringement were genuine issues of material fact and their earlier interviews in the of copyright and awarding nearly as to the “extrinsic similarity” of the media to promote Blurred Lines in US$7.4 million to the Gaye family. two songs, and that the “intrinsic which they cited Gaye’s song as their On 14 July 2015, Kronstadt J ruled on similarity” is a jury question. inspiration. He cautioned jurors several post-trial motions, with the A jury trial commenced in Los about the oral evidence of Williams result that the damages award was Angeles on 24 February 2015 and ran and Thicke: “They will smile at you reduced to US$5.3 million. for seven days. and they will be charming. Keep one An appeal is pending. In a significant set-back for the thing in mind: They are professional Gaye family, the judge ruled prior performers.” My humble thoughts to trial that the jury could not be The attorney for Williams and When I first heard about the case in played the full version of Got To Give Thicke told the jury “We’re going to the news, I decided to conduct my It Up as recorded and published show you what you already know: that own trial by jury. I arrived home to in 1977. Rather, because of the no one owns a genre or a style or a find a suitable jury of two 10 year relevant legislation which applied groove. To be inspired by Marvin Gaye olds, an 8 year old and a 5 year old all at that time, the relevant copyright is an honorable thing.” busily enjoying Friday night spag- work was limited to the sheet music The jury was treated to rare bol. Suspecting (correctly) that they composition as noted on paper on details of the financial dividends of already knew Blurred Lines very file at the United States Library of Blurred Lines, which earned US$5.6 well from its high exposure in recent Congress. At a late stage they were million for Thicke, US$5.2 million years, I played them Got To Give It allowed to introduce recordings that for Williams and another US$5-6 Up and asked if they could identify were supposedly stripped of non- million for the record company, as a it. Within seconds of hearing the copyrighted elements. (To this extent, well as an additional US$8 million in opening rhythm, one of the 10 year the jury did not hear precisely the publishing revenue. olds immediately stated that it was same version of Got To Give It Up The attorney for Williams and Blurred Lines. that you will hear in the YouTube Thicke told jurors that there was A curious feature of this case is link referred to above. In particular more at stake than the millions in that the similarities between the it is not clear from the available profits: “This affects the creativity of songs are primarily rhythmic and reports how much the recordings young musicians who hope to stand on structural rather than melodic. played to the jury lacked the full the shoulders of other musicians. Let Lyrically they are entirely different. percussion parts you will hear in the my clients go forth and continue to do But there is no reason why melody commercially released version of Got their magic.” and lyrics ought to be more important To Give It Up.) Gaye’s widow testified that when than rhythm and structure. After all, The jury selection process included the family heard Blurred Lines they this is dance music. an unusual question for each praised it and tweeted out a thanks to How would the case fare in potential juror: whether they were Williams and Thicke thinking that the Australia? For better or worse, in offended by the music video for duo had paid a licensing fee for the our system cases such as these are Blurred Lines, which featured bare- use of Got to Give It Up. The family determined by judges not juries, but chested, nearly nude women. Some learned later that no permission for they remain highly subjective and responded that they couldn’t remain use had been requested. impressionistic. Copying a small impartial and were dismissed. Other The jury was shown videos of the but important part of a work can be questions in the selection process depositions of Thicke and Williams. enough to make out infringement. My included whether prospective jurors Before the jury, Thicke repeated his money would be on the Gaye family. played a musical instrument or could claim that he was high on Vicodin But is it fair to monopolise a read music, whether they knew and drunk during each of the media groove? Like many artforms, perhaps Williams’ work and liked it (Thicke’s interviews where he identified Gaye’s more than most, modern popular repertoire was not addressed) and song as the inspiration for Blurred music is notoriously derivative. As whether they could judge celebrities Lines. He was allowed to demonstrate Keith Richards said about Chuck fairly. Five women and three men on a keyboard how songs can have Berry, “I lifted every lick he ever finally passed this selection process. similar chord structures, comparing played.” The line between copying a In his opening to the jury, the U2’s With Or Without You to Youth style and copying a song will always Gaye family’s attorney focused Group’s Forever Young and Michael be blurred.

114 VBN VBN 115 boilerplate

BOOK REVIEWS Reflections By Dougall A S Smith Create Space Reflections Independent Publishing Platform SIMON WHELAN 2013

rank Callaway was a formed, and to speculate on topics meticulous lawyer. His he had not studied in depth. thus launched scholarship was exemplary. For many of us, this is something we these reflections He took care never to do often. Not so for Frank. into the world while disclaiming both Fadopt an unfounded conclusion or to The author clothed himself in authorship and fitness for publication. express an idea which was not fully several layers of protection, likely I am not qualified to assess considered. He set high standards for because he felt the book was out of the book’s merit as a work of himself, and for others. character. First, he used a pseudonym, theology or philosophy. I read it Before his death he wrote a book. Dougall A S Smith. Then, the with interest. One can only admire The book is called Reflections. It is pseudonymous author explained that Frank’s preparedness to confront about the meaning of life. In this book the work was not his at all, but rather such a profoundly difficult subject. Frank allowed himself to range across the writings of a dead friend. Finally, The book should be judged on the fields in which he was not expert and the pseudonymous author told us that terms its author has set. They are to address topics he had not spent his friend did not write the work for reflections which are unfinished. a career researching. He allowed publication and that the work was Frank published them, but he did not himself to express ideas not fully in fact unfinished. The true author write them with that intention. Admiralty Jurisdiction: Law and Practice.

SAM HORGAN

r Cremean has published his fourth annotated version to being a full and comprehensive text edition text on Admiralty Jurisdiction: Law on its subject in the jurisdictions discussed. and Practice. The text is an extensive and Chief Justice Allsop has written the Foreword to this detailed coverage of the provisions of the fourth edition, proclaiming it “a beautifully crafted and Admiralty Act 1988 (Commonwealth) and the regulations comprehensive work, written by someone with command and Court Rules made in respect of that statute. The work of his field”. This is undoubtedly correct. The work is Dextends now to cover Admiralty Jurisdiction substantive well structured and comprehensive in its analysis. law and practice not only in Australia but also in New It is a very useful text for all general commercial Zealand, Singapore, Hong Kong and Malaysia. The value of practitioners. The fact that new editions are regularly this extended coverage allows comparison and consistency published means that the practitioner can have a throughout practice and procedure in matters of admiralty degree of confidence that the contents will be up concerning major countries in the Asian region. to date and authoritative. Principally, the text covers the jurisdictional basis for actions in rem based upon proprietary, general and other maritime claims. All statutory and procedural matters concerning the arrest of ships are covered in extensive detail. This new edition has updated the references and includes an account of all relevant admiralty decisions Admiralty Jurisdiction: Law and Practice. since the previous edition in 2008. Australia, New Zealand, Singapore, Hong Kong and Malaysia. Unlike previous editions, the current edition does not include the statutes referred to nor a full text of the Rules Fourth Edition by Damien J Cremean. of Court discussed. It is understood that this decision The Federation Press 2015 was made to keep the scale of the book manageable. pp (i)-(li), 1-297 Perhaps also the text has graduated from being a slimline

114 VBN VBN 115 OFF THE WALL...

boilerplate What we mean when we talk about provenance. SIOBHÁN RYAN, ART & COLLECTIONS COMMITTEE

ometimes the true value of an artwork lies to the work. What we did not know until recently was not in its subject matter, or who painted it, but that the artist was, in fact, Sher’s maternal grandfather in its own story; that is, its provenance. The and that he painted work for his grandson c. 1961. In the term derives from the French word provenire previous edition of the Victorian Bar News (Issue 157 meaning to originate. Some readers may be Winter 2015), Off the Wall... speculated that the work familiar with the BBC television series Fake might have been painted c. 1930 as a study for White’s or Fortune? which teams a glamorous presenter with an much larger portrait of Sir Isaac Isaacs, which is now in Surbane art historian, an arsenal of high-tech tests and the High Court of Australia collection. Sher corrected some old-school sleuthing to authenticate the pedigree this in an entertaining letter to the editors, in which he of undocumented works. But provenance comprehends explained the origins of the Bar’s portrait and how it much more than attribution. A work’s provenance reflects came into our collection (see letters to the editor from artistic tastes, fashion conceits and collecting priorities this issue). and is shaped by historical events; from the momentous The letter also describes (replete with a Dickensian to the seemingly innocuous. moment concerning a crippled boy) how White’s original By way of a local example, in the regional town of Warrnambool there is an excellent example of a nineteenth century ornamental peacock manufactured by the celebrated English pottery company Minton & Co. It was shipped to Australia in 1878, destined to be a key exhibit in the 1880 Melbourne International Exhibition. Tragically, the clipper Loch Ard on which it was travelling was shipwrecked off the south-west coast. All but two of her passengers and crew and most of her cargo perished but the Minton Peacock miraculously survived. It was kept for over fifty years by the family who had purchased the Loch Ard salvage rights, and was ultimately purchased by the people of Warrnambool in 1975. The Minton Peacock is entered on Victorian Heritage Register because of its aesthetic significance and its association with these important events in the history of Victoria. Its notable provenance is reflected in its current valuation of $4.5 million. The Victorian Bar’s Peter O’Callaghan QC portrait gallery was opened in August 2014. Prior to its establishment, the works were scattered around the precinct. Whilst the Bar always identified these works as being part of its ‘collection’, the concept was loose and this is reflected in the paucity of records. The act of uniting the works in a dedicated space brought curatorial priorities and provenance into sharper focus. In this article, we look at the provenance of three works in the collection. Sir Isaac Isaacs KCMG GCMG GCB KC by Percy White This portrait was donated to the Bar by Jeffrey Sher QC. That much we know from a brass plaque affixed Joan Rosanove

VBN 116 boilerplate portrait of Sir Isaac had been lost but was re-discovered by Sher and his instructing solicitor in the clubrooms of a Jewish sports club – but that is another work’s provenance. Joan Rosanove QC by Flora Lion This portrait was donated to the Bar in 2014 by Joan Rosanove QC’s daughter, The Hon. Mrs Margaret (‘Peg’) Lusink AM. It was commissioned by Joan and her husband, Mannie Rosanove, and painted in England in 1952, when Joan was 56 years old. As the work took shape over several sittings, Joan regarded it warily, reporting to Mannie, “It is horrifyingly like me. Perhaps she’ll add some flattering overtones.” Joan’s biographer recorded the reception of the finished work; first upon completion and then after time had mellowed both the painting and its subject:1 There was an informal ‘viewing party’ when it was finished. Florrie and Bert Nathan who were travelling with the Rosanoves were among the guests. Nobody seemed to think much of the portrait. One guest said to Florrie Nathan (an exceptionally pretty Peg Lusink woman), “It’s not even like you.” Joan, overhearing this said to him, “Be fair. It’s The portraits of mother (the Victorian Bar’s first not supposed to be her. It’s supposed to female barrister and first female silk) and daughter be me.” (Victoria’s first female judge of a superior court) Joan, Mannie and the family went off to dinner taking the portrait with them now hang side by side in the gallery. in the boot of the car, hoping it might portrait of Peg by Dudley Drew. It was When, in 2014, Peg happened to be stolen. The portrait came home with given to the Bar by Peg, to replace accompany a friend to a conference the Rosanoves to Melbourne. It was duly a photographic portrait of Joan in Joan Rosanove Chambers, she consigned to the lumber room. More which had hung in the foyer of Joan was horrified to see that the People than fifteen years later it was rescued, Rosanove Chambers since around Magazine portrait had become hung at the new house the Rosanoves 2000. That photograph, well known the public face of Joan Rosanove built behind “Little Medlore”, and it was to members of the Bar, portrayed QC. Ever practical, Peg offered the seen that Flora Lion had been looking Joan in her wig and robes puffing Flora Lion portrait to replace the inwardly at some Joan Rosanove of on her trademark black cigarette photograph, which the Bar gratefully the future that she alone, at that time, holder. It had been first published received. The original Lion portrait could see: a serene and composed older in 1951 on the cover of People hangs in the Peter O’Callaghan woman, a wise half-smile on her face. Magazine under the headline Joan QC gallery and a high quality Then everybody said, “Joan, it is exactly Rosanove, Melbourne’s Portia with photographic copy was produced you!” an accompanying profile on Joan, for for Joan Rosanove Chambers. After Joan’s death, the portrait hung which she was reprimanded by the Subsequently, Peg donated her own in her daughter’s home alongside a Bar Council. portrait to the Bar and the portraits

VBN 117 of mother (the Victorian Bar’s first female barrister and first female silk) and daughter (Victoria’s first female boilerplate judge of a superior court) now hang side by side in the gallery. Sir Edward Woodward AC OBE QC by Clifton Pugh This portrait is on loan from Sir Edward’s son Ted Woodward SC It was painted in 1972, when Sir Edward was 44 years old. At that time he was deeply involved in Aboriginal land rights activism, having been leading counsel for Yirrkala People in the first major Aboriginal land rights case, Milipurn v Nabalco Pty Ltd in 1968 and soon to become the Royal Commissioner inquiring into Aboriginal land rights in the Northern Territory (1973-74). Clifton Pugh’s career was also on the rise. He won consecutive Archibald prizes in 1971 (Sir John McEwen) and 1972 (the Hon. EG Whitlam). Ted Woodward recalls that period as a time when Ted Snr socialised with some of the stars of Australia’s arts community. He remembers lively dinner parties at the family home in Balwyn with the likes of David Williamson, playwright, and Clifton Pugh and his wife Judith in attendance. The portrait was not commissioned. Pugh asked Ted Snr to sit for him; an indication of their mutual regard. Sir Woodward AC OBE QC by Clifton Pugh As the National Portrait Gallery’s biography notes: side, from the mischievous glint in (or courage) always prevails’). Reluctant to accept commissions for his blue-grey eyes to his cravat in the On viewing his father’s portrait portraits, he preferred to paint people brown tones fashionable in the 1970s. now installed in the Peter with whom he had developed some An arresting feature of the painting O’Callaghan QC Gallery, Ted degree of spiritual, intellectual or is the sitter’s hands. Ted Woodward Woodward remarked that it is imaginative connection. recalls that his father was double appropriate that Sir Edward’s portrait jointed and that this pose with fingers is within view of the portrait of Sir The work was completed over several intertwined was typical of him. As by Robert Hannaford. sittings at the Pugh’s bushland home Clifton Pugh often made a feature of For years those two could be found “Dunmoochin”. Sir Edward recalled his sitters’ hands, Ted Snr’s natural on any Friday lunching at the old that the sittings always “began or attributes must have appealed to him. RACV Club, along with Sir Richard ended with lunch”. The signet ring had belonged to Sir McGarvie (whose portrait by William The portrait was ultimately Edward’s father, Sir Eric Woodward, Dargie is also in the Bar’s collection), purchased as a gift for Sir Edward who had received it upon his Ray Northrop QC and Gordon by his wife Lois and hung in his appointment as the Governor of New Spence. study. He was very pleased with his South Wales in 1950. It is engraved portrait. His family thinks that the 1 Carter I, Woman in a Wig: Joan with a rampant lion and the Latin Rosanove QC, Lansdowne Press Pty work captures his sightly iconoclastic phrase ‘Virtus Semper Valet’ (‘virtue Ltd, 1970, p 143.

118 VBN VBN 119 boilerplate FOOD AND DRINK Rosa’s Canteen

A review by SCHWEINHAXE, the Bar’s resident undercover foodie

blood orange perfectly complementing the fennel and capers. For mains, the Italian from Lucca ordered, without hesitation, the typical Roman dish of spaghetti cacio e pepe (spaghetti with black pepper). She said it was bucatini rather than spaghetti, but in the same breath she says it’s ‘buono’. High praise indeed from a native. Her boyfriend ordered the fish of the day with pickled photo courtesy of kristoffer paulsen kohlrabi and stemperata (a vegetable side dish used as a flavouring, a little like a caponata) and gave it high praise, the John Dory being sweet and perfectly cooked. In true Italian style, vegetables play a main role at Rosa’s—two others ordered the crumbed artichoke with peas, broad beans and buffalo ricotta. They were both unanimous in Rosa’s Canteen their praise: the salty buffalo ricotta complemented by Level 1, cnr Little Bourke Street & Thomson Street, the fresh, sweet broad beans with artichokes adding Melbourne bitter, crispy notes. Magnifico! (03) 9602 5491 Given wine with lunch is de rigueur for Italians, Mon-Fri 12-3; 5.30-9 we were somewhat of a cultural anomaly. Two of our group were not really drinkers and I had pressing matters to attend to post-lunch. So it was left to just motley group rocked up for lunch two of the group to enjoy the quality but succinct wine to Rosa’s Canteen: two lawyers, a list, which focusses on Italian imports and local wines wine agent, a jetsetter—a constant made from Italian grape varieties. They both opted for traveller who doesn’t drink wine— a Terre Di Val Bona Verdiccio di Matelica, an aromatic and his Italian girlfriend from Lucca, the heart of Tuscany. Italian white from the Marche region in central Italy. Its What better a bunch to sample Rosa Mitchell’s new flavours of lemons and slightly bitter almonds were a outpostA in the heart of the legal precinct. perfect match with Rosa’s dishes. With a sleek, contemporary fit-out, up from ground Sated after our antipasti and main, we thought could level with a view out to a courtyard and through verdant not leave without trying a little something ‘dolce’. We plane trees to the Supreme Court at its northern opted for the most Sicilian of offerings—cannoli. end, Rosa’s Canteen is smart, unfussy Italian We have the Sicilians to thank for bringing the with heart. With a one-page menu covering dessert culture to Italy and we all agreed antipasti, pasta, mains, sides and desserts, Rosa’s cannoli was amongst the best we’d brevity here is the soul of wit—Rosa’s food is had: a mix of pistachio and fresh ricotta unfussy, unpretentious and damn good. with a hint of honey, encased in crisp, flaky,

Our friendly, bearded waiter guided us melt-in-your mouth pastry. Not too sweet photo courtesy of richard cornish through the offerings and we opted to share at all, just the perfect finale to the perfect antipasti plates of calamari with lemon, chilli lunch. A shame work beckoned for and parsley, a salumi plate, and cured kingfish most of us but we agreed we with blood orange, caper leaves and wild would return! fennel. Rosa’s Sicilian heritage is certainly evident here in the ingredients and continues throughout the menu with other Sicilian staples, such as salted ricotta, cauliflower, saffron, currents and chicory. The cured kingfish was so tender, the sweetness of the

118 VBN VBN 119 RED BAG BLUE BAG vegetable borek and free trade coffee in the Agora in the fine company of my fellow Recumbent Bicycle Club boilerplate BLUE BAG – a view from junior counsel members during my salad days when I was a student at La Trobe. ear Red Bag, Football Club and the VIP club at I’m sure everyone at the Bar has Just quietly, could you Inflation Nightclub. eaten with work or study colleagues give me the word on how I get the impression that the before, unless of course they were it works in the Essoign? Where should Essoign Club is full of guys who went called to the Bar from a Carmelite DI sit? Does everyone else know each to elite single sex private schools convent or have spent most of their other? Are there any special rules to where they learnt a whole lot of rules lives meditating on some plateau in obey? Are there secret handshakes and behaviours that are like a foreign Tibet. In substance, the whole point and traditions I should know about? language to me. of going to the Essoign is actually The only other clubs I’ve ever Please help. getting together and eating with been a member of are the Geelong Blue Bag. your colleagues, great and small, rather than getting too carried away with matters of form. For goodness sake, even the odd High Court judge has been seen to reach for the chip bowl in the middle of the table (sans cutlery) after frenetically feasting on the carcasses of some of our learned friends on a special leave Friday. There is a military tradition of taking the next chair available in the officers’ mess, which once upon a time was also observed at the Essoign Club (which enabled barristers to rub shoulders with those much more senior or junior to themselves), however this tradition seems to have declined in recent years. If there are any rules for this sort RED BAG – a view from senior counsel of thing, then the most important ones to follow at the Essoign are some of life’s key lessons: don’t be ear Blue Bag, the Essoign Club at lunchtime will be afraid to say hello and meet new Private schools? School, a snack for you (excuse the pun). people; be polite and thoughtful of schmool, whatever. Funnily enough, your question is others; don’t be a bore, or boring; Having been ‘home-schooled’ for the rather timely. It was only yesterday try not to eat with your mouth open; Dentirety of my primary and secondary that I was at the ‘Swine’ and it was and, turn your phone off in the education, I can only imagine what it full of men and women at the Bar, main dining room (could cost you must be like to have once ‘belonged’ of all ages, contentedly grazing a bottle or two if it rings in there to any such socially ambitious away on a range of appetising before 2:15pm). seat of learning. Presumably, you morsels, all seemingly enjoying each As for your observation that ‘the attended some school somewhere other’s company. To me, dining at Essoign Club is full of men who went in this great southern land of ours. the Essoign Club (it is a ‘club’ isn’t to elite single sex private boarding Did you play hockey, tennis, or do it?), is somewhat akin to dining ‘at schools’, I suspect you might have both? Or were you a library nerd home’. Although lunch ‘at home’ for the Essoign Club confused with the who was interested in debating and me during my school years didn’t Savage Club. Being a woman, I can represented the school in the annual necessarily involve footwear, cutlery only speculate as to what goes on FIRST Robotics Competition? Either or meat, all of which are essential at the Savage. Very similar to the way, if you went to school (private components of an Essoign lunch. The Lyceum I’m told. or public) you were probably well concept of collegiality enjoyed over And I so advise… educated in the do’s and don’ts of a meal at the Essoign, is not too far Red Bag. institutional behaviour, so I’m sure removed from scoffing down a spicy

120 VBN VBN 120 As a qualified member of the Victorian Bar, through Member Benefits Australia you have access to a fantastic arrangement with Mercedes-Benz.

The Mercedes-Benz Corporate Programme offers exclusive pricing and servicing. If you’ve got an eye for excellence, we’ll reward you with access to complimentary servicing1 and more.

• Complimentary scheduled servicing1 • Total of 4 years complimentary Mercedes-Benz Road Care • Reduced dealer delivery fee ^

Please contact your authorised Mercedes-Benz dealer, or to see the full list of entitlements you deserve visit www.mercedes-benz.com.au/memberbenefits

^ Preferential pricing and reduced dealer delivery fee may not be applicable to all models. 1. Complimentary scheduled servicing at an authorised participating Mercedes-Benz dealership for up to 3 years or 75,000km (whichever comes first). Call us crazy but we think generating power doesn’t have to generate pollution.

As a Tasmanian company, we see the amazing potential of nature all around us. And that defi nes our attitude to the environment, and our customers. Switch to the energy provider that cares about the same things as you. Visit momentum.com.au