THE JOURNAL OF THE NSW BAR ASSOCIATION | WINTER 2015 barTHE JOURNAL OFnes THE NSW BAR ASSOCIATION | WINTER 201 Parental responsibilities and the bar PLUS ‘Barristers work’ and ADR The NSW Bar and the Red Cross Missing and Wounded Enquiry Bureau William Lee barnewsTHE JOURNAL OF THE NSW BAR ASSOCIATION | WINTER 2015 Contents 2 Editor’s note 54 Bench and Bar Dinner 2015 Red Cross Missing and Wounded Enquiry Bureau 3 President’s column 56 Practice Barristers v Solicitors rugby match, Technology, flexibility and the Uniform Rule 11, ‘barristers’ work’ 1956 twenty-first century advocate and barristers conducting ADR processes 83 Bullfry 4 Chambers Expected value and decision making QC, or not QC? The opening of New Chambers under conditions of uncertainty 85 Appointments 5 Bar Practice Course 01/2015 Learning the art of court performance The Hon Justice R McClelland 6 Recent developments Chambers employment with a The Hon Justice D Fagan difference 28 Features 87 Obituaries Parental responsibilities and the bar The Best Practice Guidelines Geoffrey James Graham (1934–2014) 73 Bar history The powers of the ICAC to 89 Book reviews investigate William Lee: first barrister of 96 Poetry Corrupt conduct: The ICAC’s Chinese descent admitted to the Cunneen Inquiry NSW Bar Alternatives to Australia’s war on drugs Bar News Editorial Committee ISSN 0817-0002 © 2015 New South Wales Bar Association Jeremy Stoljar SC (chair) Views expressed by contributors to Bar News are This work is copyright. Apart from any use as permitted under the Copyright Act 1968, and subsequent amendments, no part may be Greg Burton SC not necessarily those of the New South Wales Bar reproduced, stored in a retrieval system or transmitted by any means or Richard Beasley SC Association. Contributions are welcome and should process without specific written permission from the copyright owner. be addressed to the editor, Jeremy Stoljar SC. Requests and inquiries concerning reproduction and rights should Kylie Day be addressed to the editor, Bar News, c/- The New South Wales Bar Nicolas Kirby 8th Floor Selborne Chambers Association, Basement, Selborne Chambers, 174 Phillip Street Sydney, Daniel Klineberg 8/174 Phillip Street NSW 2000. Catherine Gleeson Sydney 2000 Victoria Brigden DX 395 Sydney Caroline Dobraszczyk Contributions may be subject to editing prior to Fiona Roughley publication, at the discretion of the editor. Talitha Fishburn Juliet Curtin Cover: Designed by Tim Hartrick Radhika Withana Chris Winslow (Bar Association) Bar News : The Journal of the New South Wales Bar Association [2015] (Winter) Bar News 1 Editor’s note most significant such changes is the way He was carried in by palanquin with technology now makes it easier to work two bearers and escorted by a security away from chambers. guard of four armed with long-barrelled revolvers to protect against the risk of The piece includes a number of kidnapping. individual case studies: each study consists of a practising barrister This issue also includes pieces by Ian describing his or her method for Davidson SC on whether a barrister’s carrying on a practice while working work extends, or should extend, to flexible hours. Each is different. Each conducting a mediation or arbitration; has has been worked out to suit the by Caroline Dobraszczyk on the death needs of the individuals involved. Each penalty, including an interview with is illuminative. Tony McMahon, the Australian barrister who represented the two Australians Elsewhere this issue contains the usual recently executed in Indonesia; and by mix of bar history, features, opinion and Tony Cunneen, who has continued his recent developments. important series on the contribution Malcolm Oakes SC has written an of NSW lawyers to the war effort, with account of William Lee, whose long a piece on the Red Cross Missing and The feature story in this issue is Ingmar and distinguished career at the NSW Wounded Enquiries Bureau. bar commenced on 27 May 1938; Taylor SC’s piece on working flexible Jeremy Stoljar SC hours. the Sydney Morning Herald of the day regarded the occasion of his admission Editor The issue is simple: how can barristers as sufficiently noteworthy to publish a balance the demands of practice with report of what it described as ‘the first managing the rest of their lives - most Chinese to become a barrister in New particularly, of course, with looking after South Wales’. young children. It was a different world. Oakes SC Taylor SC first contributed a piece to describes the young Lee being taken for Bar News on this topic in 2002. Much a visit to his father’s village in China: has changed since then. One of the [2015] (Winter) Bar News 2 Bar News : The Journal of the New South Wales Bar Association PRESIDENT’S COLUMN Technology, flexibility and the twenty-first century advocate By Jane Needham SC him to consider writing this article, we The theme of the conference was ‘Survival discussed the changes which had taken of the Fittest – Challenges for Advocates place during those thirteen years. One in the 21st Century’. One of the of the major changes is the terminology; challenges which was discussed in various almost everyone now refers to ‘flexible’ forums was the necessity to keep abreast rather than ‘part-time’ practice. The 2014 of technological changes. On that topic, Bar Association practising certificate Bathurst CJ gave a most entertaining renewal survey has provided valuable and relevant speech entitled ‘iAdvocate v insights into the practice of those working Rumpole – Who will survive? An analysis flexibly at the bar. Taylor SC was able to of advocates’ ongoing relevance in the speak to a number of people who are, or age of technology’. It may not require a were, practising outside the traditional spoiler alert to reveal that the Rumpole boundaries of long days and weekends model was not the preferred one for the spent in chambers or in court. It is twenty-first century advocate. interesting to note that an increasing The conference was fascinating, attracting number of men are using the technology barristers and judges from around and flexibility available to them to spend This is the first presidential column Australia and providing insights into the more time with their families, a preserve under the Legal Profession Uniform Law American style of advocacy (including which in 2002 was mainly (although regime. While I was (possibly prudently) warnings against allowing courts to not exclusively) female. I would be very out of the country when the legislation become the ‘poor peoples’ forum’ while interested in any feedback on how the commenced on 1 July 2015, I am reliably wealthy litigants turn to arbitration as various programs which seek to support informed that, like the Y2K bug, much a form of private justice) and to the flexible practice are working – the bar hard work meant that the sky did not challenges faced by other jurisdictions. child care centre in Martin Place, the Best fall that morning. The Bar Council is Particularly memorable was Mark Practice Guidelines as to flexible practice, very much indebted to the efforts of, Mulholland QC’s account of the personal and the court protocols on predictability in particular, Philip Selth, Executive security issues involved for barristers in sitting hours, in particular. Director, and Jennifer Pearce, in-house defending unpopular clients in Northern counsel, who have put in superhuman efforts to ensure that the changeover was as smooth as possible. It is interesting to note that an increasing number of men are I urge all members to read the Bar using the technology and flexibility available to them to spend Association’s updates, particularly on more time with their families, a preserve which in 2002 was the new costs requirements, so that the mainly (although not exclusively) female. sky continues to remain where it should be. There is a wealth of information on the association’s website at http://www. nswbar.asn.au/for-members/uniform-law A theme of Taylor SC’s article is the Ireland. Of more direct relevance to New to assist members with the transition to benefit of technology in allowing practice South Wales was Alastair MacDonald the new regime. to be conducted remotely or at home. I QC’s account of the attacks on legal aid am writing this column with the benefit and the unacceptably high level of court In this issue of Bar News is an article of modern technology – using in-flight fees in England and Wales, resulting in written by Ingmar Taylor SC, which is Wi-Fi on a flight from Boston to Los significant barriers to access to justice. an update on his 2002 article on part- Angeles, returning from the Australian On a different note, David Nolan SC of time practice at the bar. When I asked Bar Association conference in Boston. the Dublin Bar spoke movingly of the Bar News : The Journal of the New South Wales Bar Association [2015] (Winter) Bar News 3 PRESIDENT’S COLUMN Jane Needham SC, ‘Technology, flexibility and the twenty-first century advocate’ barristers – Irish and Australian, twelve and enjoyable excursions – to the JF I am very grateful to the Bar Association in all – who died at Gallipoli. The room Kennedy Library for the welcome speech for facilitating my attendance at this was silent as he quoted Eric Bogle’s by Keane J, to Harvard Law School, conference and I hope to use the insights moving song, ‘And the Band Played and to the US and the Commonwealth gained to continue the efforts to ensure Waltzing Matilda’, about the experience of Massachusetts courthouses. that barristers will not become, like the of raw young men going off to the war. Congratulations are due to Fiona McLeod Tecopa pupfish of Bathurst CJ’s paper, Doubtless Nolan SC would refer to it as SC, the ABA president, and her team extinct.