Contents 2 Editor’s note 3 Letters to the editor 4 A message from the president BarThe JOURNAL of the NewsNSW BAR ASSOCIATION 6 Opinion Summer 2004/2005 A profession with integrity The re-engineered blades of s52 of the Trade Practices Act 10 Looking north The agony and the power of dissent Bar News Editorial Committee Justin Gleeson SC (Editor) 15 Recent developments Keith Chapple SC The Bar Association's Professional Standards Scheme Rodney Brender High Court decisions on stateless persons Rena Sofroniou Court of Appeal v Industrial Relations Commission Terry Ower Government businesses and the Trade Practices Act Chris O’Donnell 26 Family values Andrew Bell Anthony Lo Surdo A system less adversarial: the Children’s Cases Project Ingmar Taylor Third party property in family law cases Michael Kearney An unused potential remedy for spousal guarantors Chris Winslow (Bar Association) 36 Features The question that plaintiff's counsel cannot ask Cross-examination and international criminal law Design and production 42 Seachange jurisdictions Weavers Design Group Practice extension scheme: an interview with Bathurst QC www.weavers.com.au Role of advocates in commissions of inquiry 46 Speeches Looking forward: the direction of criminal law Advertising To advertise in Bar News visit 55 Professional conduct www.weavers.com.au/barnews Complaints and notification requirements under the Legal Profession Act or contact John Weaver at Weavers Design Group 65 Tutors and Readers Dinner at [email protected] or phone 9299 4444 66 Bench and Bar Dinner 68 25th anniversary of Edmund Barton Chambers 70 Appointments Cover The Hon Justice Richard White Scales of justice outside The Hon Justice Cliff Hoeben AM RFD the District Court in Brisbane The Hon Justice Diana Bryant The Hon Justice Frances Backman Photo: Louie Douvis / Fairfaxphotos 74 Retirements The Hon Justice John Ellis His Honour Judge Peter Johns ISSN 0817-002 76 Personalia The boulevardier Views expressed by contributors to Bar News are not necessarily those of 77 Vale the Bar Association of NSW. John Alfred Crumpton QC 78 Book reviews Contributions are welcome and 83 Sporting Bar should be addressed to the Editor, Lady Bradman Cup Andrew Bell Eleventh Floor Wentworth/ Selborne Chambers 180 Phillip Street, Sydney 2000. (c) 2004 New South Wales Bar Association DX 377 Sydney This work is copyright. Apart from any use as permitted under the Copyright Act 1968, and subsequent amendments, no part may be reproduced, stored in a retrieval system or transmitted by any means or process without the specific written permission from the copyright owner. Requests and inquiries concerning reproduction and rights should be addressed to the Editor, Bar News, c/- The New South Wales Bar Association, Basement, Selborne Chambers, 174 Phillip Street Sydney, NSW 2000. Editor’s note As editor of Bar News over the past five years, perennial Two particular projects which the editorial committee is questions for me have included: What is the role of Bar News? working on which should come to fruition in the issue What types of articles should be published? How can the following the present are as follows. First, an analysis and magazine best engage with members and obtain contributions discussion of the impact which changes in personal injury law from them? are having upon the Bar. It is planned to put out a survey to members to assist in this task. Second, there will be a report There has been no easy or simple answer to these questions. on progress made in discussions between the Bar Association My broad aim has been to try to present material of interest and the protective commissioner on the contentious issue of and relevance to members across a broad spectrum, from changes in the fee structure imposed by the protective recent developments in the law and their practical implications commissioner. for barristers; the activities of the New South Wales Bar Association and its interaction with members, both The invaluable centrepiece of the magazine over the last five professional and social; addresses or speeches by prominent years has been Chris Winslow, the Bar Association's public members or judges; through to sport or humour. Sometimes affairs officer. It has been his long term goal to see Bar News the balance may not have included enough at the lighter end, take its place alongside the Medical Journal of Australia and but then again distinguished subjects like Bullfry QC develop other journals of the professional associations; not only as a new tricks slowly. source of thoughtful analysis of the law, but as a 'window on the Bar' for solicitors, politicians, the media and informed The Bar News Editorial Committee has gradually expanded members of the public. over the past five years. One of the aims has been to include progressively members on the committee from as many areas One difficulty, however, remains in obtaining sufficient of the Bar as possible. At present we have representatives who feedback from members on what is published in Bar News and, specialise in commissions of enquiry, equity/commercial, indeed, sufficient unsolicited contributions from members on personal injuries, criminal, industrial and in family law. To be a topics of interest to them. The magazine does come at a cost committee member one has to commit to either writing or to members: about $25,000 in external cost per issue. We sourcing some material of interest for each issue. As the spread would like to see the breadth of views of members represented of the committee becomes broader, so hopefully there is a as well as possible. Members are urged to write, or e-mail the better means to extend the subject matter of the magazine editor, with any contributions, or with criticisms or comments across more areas of the Bar. on the content of the previous issue. We are pleased to include in this issue the first in a series of My term as editor has now come to an end. President Ian occasional guest columns by Attorney General Bob Debus. We Harrison SC has appointed Andrew Bell as the new editor. are also fortunate to have once more a perspective on northern I wish him well. events (this time Indonesia) coming from Colin McDonald QC Justin Gleeson SC of the Darwin Bar. Bar News | Summer 2004/2005 2 Letters to the editor Changes to expert witnesses will be harmful to plaintiffs Dear Sir, practitioners to represent them. What justification is there to apply a different rule to witnesses? To ban experts from The chief justice, in 2002, delivered an impassioned defence of entering into contingent fee arrangements will effectively the capacity of the common law to develop as circumstances disenfranchise many plaintiffs. Since 2002 legal practitioners change: 'Negligence: The last outpost of the welfare state', cannot even commence an action for damages unless they are (2002) 76 ALJ 432 at 445. According to the daily press he has prepared to put their professional standing on the line by recently questioned the fairness of the interference with the certifying that, on the available evidence, there are reasonable common law wrought by recent statutory limitations on the prospects of success. How can they do that in a case which award of general damages for personal injuries. depends upon expert evidence, such as a medical negligence There appears to be some inconsistency between the latter view action, if no expert is allowed to report. and his suggestion, which also received publicity in the daily Of course we all know that there were two reasons why press, that steps need to be taken to rein in expert witnesses. governments reversed a centuries old prohibition on The problems posed by hired gun expert witnesses are not new. contingency fees for lawyers. First, it was not working. And In Hocking v Bell (1947) 75 CLR 125 the verdict of a jury which second, and more important, it was to shift the burden of legal had accepted the evidence of an underqualified expert in aid in civil matters to the legal profession. preference to that of several highly qualified surgeons was The chief justice's next suggestion is that the courts should rely allowed by the Privy Council to stand. But that was a jury trial. solely on court appointed experts. The parties should agree on Jury trials of civil actions are now an endangered species. Surely an expert, or if they can not, the court will appoint one for judges have the capacity to choose between conflicting experts. them. There are two problems about this suggestion. First, the In Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 701 the court could not appoint an expert until proceedings have Court of Appeal has redefined the approach to expert evidence commenced and proceedings cannot be commenced until the in non-jury trials. plaintiff's lawyers have an admissible report from an expert The chief justice's suggestions have the potential to do great upon which to certify there are reasonable prospects of success. harm to all plaintiffs, not just those with small claims and to tilt Second, who is pray the expert in the first instance if the the playing field in the defendants favour. They are two: plaintiff has no money. You can bet that the government will prohibit experts from acting for contingency fees and having not fund the courts to do so. And natural justice would require only court-appointed experts. that the defendant, or its insurer, be heard before it could be Many plaintiffs who have been injured are without the means ordered to do so. to finance an action. The contingent fee system allows legal D I Cassidy QC Silks v Juniors cricket match Dear Sir, I refer to an article published by you and written by the Hon My recollection was that I had done better than this; Justice Richard White SC (sic).