CONTENTS 2 Editor’s note 3 President’s column 5 Opinion The status of David Hicks Appointment of Australian judges 16 Recent developments Criminal law Litigation funding Freedom of information Post employment restraints Adhering to expert Codes of Conduct 103 Obituaries Admissibility of expert evidence Chief Justice Rehnquist 24 Conferences Comparative table National Indigenous Legal Conference 104 Clerihew Australian Women Lawyers’ Conference 82 Practice The premiers of New South Wales The new Parramatta Justice Precinct 26 Addresses 106 Crossword by Rapunzel The Local Court comes of age 84 Legal history International arbitration The diamond snail 107 Books An address by Major Mori atMitchell.com legal history web site A Question of Torture New premises for the UNSW Lanark House Estoppel by Conduct and Election Law Faculty The Last Mughal 93 Personalia 32 Features: expert evidence The Hon Justice Murray Wilcox 115 Coombs on cuisine Expert evidence: a judge’s perspective Ruth Ross Refl ections on expert economic evidence The Shand family 116 Bar sports Expert witnesses: limits of ethical Chess preparation of experts 99 Appointments NSW Bar cricket Expert reports and waiver of privilege The Hon Justice Derek Price Hockey Hot tubbing: concurrent expert evidence The Hon Justice Robert Buchanan barTHE JOURNAL OF THE NSWnews BAR ASSOCIATION | SUMMER 2006/2007 Bar News Editorial Committee Advertising Contributions are welcome and Andrew Bell SC (Editor) To advertise in Bar News visit should be addressed to the editor, Keith Chapple SC www.weavers.com.au/barnews Andrew Bell SC Gregory Nell SC or contact John Weaver at Eleventh Floor John Mancy Weavers Design Group Wentworth Selborne Chambers Rena Sofroniou at [email protected] or 180 Phillip Street, Arthur Moses phone (02) 9299 4444 Sydney 2000. Chris O’Donnell DX 377 Sydney Carol Webster David Ash Cover (c) 2006 New South Wales Bar Association Catherine Parry Hot tubbing This work is copyright. Apart from any use as permitted under the Copyright Act 1968, and subsequent Michael Kearney Photos from iStockphoto.com amendments, no part may be reproduced, stored Julie Soars in a retrieval system or transmitted by any means Geoff Hull (clerk) or process without the specifi c written permission from the copyright owner. Requests and inquiries Chris Winslow (Bar Association) ISSN 0817-0002 concerning reproduction and rights should be Views expressed by contributors to addressed to the editor, Bar News, c/- The New South Wales Bar Association, Basement, Selborne Chambers, Design and production Bar News are not necessarily those of the 174 Phillip Street Sydney, NSW 2000. Weavers Design Group New South Wales Bar Association. www.weavers.com.au EDITOR’S NOTE of a judicial appointments commission, between the importance of the expert a topic raised by Justice McColl in her maintaining his or her independence – one paper reproduced in the last issue of Bar of the cardinal concerns of the various News. In his opinion piece in this issue, expert Codes of Conduct, usefully surveyed Arthur Moses brings this debate forward by by Alexandra Bartlett and analysed by Liz reference to the detailed paper by Dr Evans Cheeseman – and the need, in the client’s and Professor Williams entitled Appointing interest, for any expert report to comply Australian Judges: A New Model. with the strict requirements associated with the decision of Heydon JA (as he Coupled with the possibility of signifi cant then was) in Makita (Australia) Pty Ltd v personnel changes in the judiciary is the Sprowles (2001) 52 NSWLR 705. In this impending retirement of the Hon Bob context, readers will benefi t enormously Debus MLA as attorney general. Mr Debus from Gregory Nell’s analysis of that decision has held that position since 2000 and has, and the contrast drawn with a number in the opinion of many, been a very fi ne of decisions of the Federal Court and, attorney general. He has worked closely in particular, that of Justice Branson as a with a series of Bar Association presidents member of the full court in Sydneywide As another busy year draws to an end, as well as the Bar Council Executive over Distributors Pty Ltd v Red Bull Australia Pty there is in the air a spirit of change and that time, has spoken regularly on behalf Ltd (2002) 55IPR 354. Her Honour’s own anticipation. Shortly before going to press, of the Bar at swearings-in, and has been contribution to this issue, being a paper the appointment of the crown advocate, a regular and willing contributor to Bar presented to the Inaugural Australian Richard Cogswell SC to the District Court, News. His speech to the Bench and Bar Women Lawyers’ Conference in September and of Ian Harrison SC to the Common Dinner in 2002 will be long remembered. 2006 (separately noted in this issue by Law Division of the Supreme Court of New His successor, from whatever side of politics Catherine Parry), gives an invaluable and South Wales were announced, to take effect following next year’s state election, will practical insight to practitioners of what from February 2007. (Whilst the wisdom have large shoes to fi ll. (Followers of New is expected by the Bench in terms of the of the appointments is not in doubt, the South Wales politics will also enjoy David presentation of expert evidence. wisdom of giving Harrison almost three Ash’s most recent foray into the world of months to prepare his swearing in speech the clerihew.) It is hoped that the publication of the may be doubted – but it will guarantee a various articles on and relating to expert The current issue of Bar News focuses on packed Banco Court on 12 February 2007.) evidence will provoke discussion and the role of expert evidence in a suite of Harrison is to replace that model of judicial debate on these topics. Ideally, that debate articles which, it is hoped, readers will propriety and integrity, Mr Justice Sully, would continue in the pages of Bar News fi nd of immense interest and assistance. who has served on the Bench since 1989. and contributions in the form of opinion There are papers by Justice Branson of the Justice Handley also reaches the statutory pieces and/or letters to the editor are Federal Court, Henry Ergas, the prominent retirement age early in the New Year, after encouraged. economic commentator and a regular 16 years of unbroken service on the Court witness in Part IV TPA cases, together Finally, I wish to thank all of the members of Appeal. The launch of his Honour’s most with detailed papers by Hugh Stowe, Liz of the Bar News committee and, recent extra-judicial publication, Estoppel Cheeseman and Gregory Nell SC. An particularly, Chris Winslow, of the Bar by Conduct and Election, is covered in this enormous amount of work and effort Association, for their invaluable assistance issue of Bar News, and his Honour’s actual has gone into these papers and Bar News in the production of two excellent issues retirement from the Bench will be more records its appreciation to each of the of Bar News in 2006. As with Bar Council fully noted in the next issue of Bar News. authors for their contributions. and all committees of the Bar Association, At the time of writing, rumours also members of the Bar News committee Apart from containing valuable analyses, a abound as to the imminent retirements devote considerable time and energy to the number of the papers, particularly those by of a number of other long-serving and production of Bar News in the interests of Henry Ergas and Hugh Stowe, are designed distinguished judges of the Supreme Court, and for the benefi t of all members of the to and will stimulate debate as to, in the with corresponding rumours as to potential Bar Association. Their work is gratefully one case, the role of economic evidence in replacements. Phillip Street rumours are, of acknowledged. court proceedings and, in the other case, course, notoriously reliable! the complex ethical questions concerning Andrew Bell If there is to be a rash of appointments to the legitimate and permissible extent to the Bench, those appointments will not be which barristers can and should be involved affected by but may promote the swirling in the preparation of expert reports. In debate as to the desirability or otherwise this regard, there is a degree of tension 2 | Bar News | Summer 2006/2007 PRESIDENT’S COLUMN Administrative independence for New South Wales courts By Michael Slattery QC General’s Department, the executive in own affairs and receive and expend their effect has control of items such as court parliamentary appropriations, subject to staff numbers, staff salaries, information the scrutiny of the auditor-general and technology, library resources and various annual reporting to parliament. utility services. The question now raised With only one exception, the judiciary by the Bar for discussion is whether the in all states of Australia work with court executive or the courts should determine budgeting arrangements similar to those how monies appropriated by parliament to now used in New South Wales. Under the the courts will be spent. Courts Administration Act 1993 (SA) South Providing a statutory basis for Australia created a comprehensive Courts independent court administration does Administration Authority, independent not mean that the courts would be free of the executive, controlled by the chief of any requirement to account for their justice and the chief judges of the state’s operations. The parliament appropriates other courts. The Courts Administration the funds and the courts will still be Authority is responsible for estimating and answerable to the parliament for their allocating the appropriations among the In September this year Bar Council expenditure.