CONTENTS Winter 2001 Editor’s note . 2 Letters to the Editor. 3 A message from the President . 4 Editorial Board Justin Gleeson S.C. (Editor) Recent developments Andrew Bell Two recent High Court decisions . 8 James Renwick Reinsurance recoveries . 11 Rena Sofroniou Melway and Boral considered. 13 Chris Winslow (Bar Association) Opinion Criminal prosecutions . 20 Editorial Print/Production To specialise or not to specialise?. 22 Rodenprint Interview Paul Daley: 40 years not out . 24 Layout Hartrick’s Design Office Pty Ltd Bench & Bar Dinner 2001 . 30 Advertising Addresses Bar News now accepts The Hon. Bob Debus MP . 32 advertisements. For more 37 information, contact The Hon. Justice D A Ipp. Chris Winslow at the Justice Ruth Bader Ginsburg. 41 NSW Bar Association on (02) 9229 1732 or e-mail Features [email protected] Pacific Circuit . 43 Duty Barrister Scheme. 45 Cover A portrait of Ian Barker QC, Tribute entered in the 2001 Archibald Competition by artist Deny Jennifer Blackman: A tribute . 47 Christian. The artist was previously the winnerof the Appointments 'Packers' Prize' in 1999. The Hon. Justice McClellan . 48 The Hon. Justice Palmer . 48 The Hon. Justice Allsop . 49 The Hon. Justice Stevenson . 50 ISSN 0817-002 Vale Bertram Wright QC . 51 Views expressed by contributors to Bar Hugh Robson QC . 51 News are not necessarily those of the Bar The Hon. Russell Bainton QC. 52 Association of NSW. Patrick Costello . 53 Michael Errington . 55 Contributions are welcome and should be addressed to the Editor, Justin Mariusz Podleska . 55 Gleeson S.C., 7th Floor, Wentworth John Evans . 54 Chambers, 180 Phillip Street, Sydney, NSW 2000. DX 399 Sydney or email: Book reviews. 57 [email protected] Sporting Bar Barristers wishing to join the Editorial 60 Committee are invited to write to the Lady Bradman Club Cricket. Editor indicating the areas in which they are interested in assisting. 1 EDITOR’S NOTE t is no understatement to say that the New South generally that the Bar will provide the highest quality Wales Bar has undergone difficult times recently. In professional services in respect to advocacy and dispute I his interview in this edition, clerk Paul Daley resolution, and that the Bar will constructively engage in describes morale around the Bar as being at its lowest a dialogue for an improvement in the delivery of legal ebb at present. Many members, however, have praised services. the President, Ruth McColl S.C., for the manner in A number of questions arise which require the Bar’s which she is leading the Bar through these difficult attention, including: times. It should also be noted that members of the Bar •how the balance is altering, or should alter, are making a special contribution to dealing with the between oral and written advocacy; present difficulties and setting the Bar on a firmer •the extent to which it is proper to put time limits footing. For example, the Professional Indemnity on cross-examination or oral address; Committee, led by Tony Meagher S.C., (together with •how the Bar can better ensure that its services, James Allsop S.C., prior to his appointment to the particularly in relation to chamber work and advices, Bench) has worked very hard to restore a market, and are provided on time to meet the needs of solicitors and indeed a competitive market, with insurers for the New clients; South Wales Bar. Under the leadership of Bernie Coles •what is the role of the Bar when governments at QC, PCC#5 has been dealing with the notifications all levels are increasingly taking matters away from required by the recent regulation. Anna Katzmann S.C. the courts and placing them before tribunals; and Brian Ferrari have worked tirelessly to persuade the •how the Bar can be flexible in terms of providing Government and the media of the very serious problems services in growth areas (e.g. insolvency, with the proposed new workers compensation administrative law, or alternative dispute resolution) legislation. when traditional areas of work are declining; and There are other initiatives which should be noted. •what are the proper standards to be followed by The BarCare scheme has now been established and barristers in areas such as practice management, members have been circulated with the names of the business administration and risk management? BarCare counsellors. The Indigenous Barristers Trust is These are some of the questions which the Bar close to being established. The trust deed has been Association and the Bar Council are addressing. settled and the Association is awaiting approval from However, all members are encouraged to give their the Australian Taxation Office to ensure donations will attention to these issues and other possible areas of be tax deductible. The Trust will incorporate the capital reform. Any contributions to this journal on such of a fund set up to honour the memory of Shirley Smith matters would be warmly welcomed. (‘Mum Shirl’), who was known to many members of the Some of the matters included in the previous edition Bench and Bar as a tireless worker for the welfare of of this journal have provoked comment or follow up. Aboriginal people, particularly those facing the criminal Bill Walsh wrote of the difficulties for country towns justice system. The silks of 2000 will make a substantial with the abolition of District Court sittings. This gift to the fund. problem received further attention in the Legislative In addition, a full day meeting was held of some 45 Assembly on 6 June when the Member for Lachlan, The representatives of the Bar on 26 May 2001, being Hon. Ian Armstrong MP OBE, drew attention to the members of the Bar Council and heads or recent press release by the Chief Judge of the District representatives from the various committees, sections Court indicating there would be no sittings of that court and regions, to discuss future issues facing the Bar. in Cootamundra for the first six months of 2002. Mr Particular matters discussed included continuing Armstrong noted that this announcement caused major professional development, practice management, upset amongst the legal fraternity, local government and limitation of liability and the services provided by the the broader community of Cootamundra. He said that Bar Association. Proposals will be put before members District Court sittings are a boost to the local shortly. community as a whole, as an indication that the Leaving aside negative and often unfair publicity community is recognised as a viable and important one. received by the Bar recently, there remains a legitimate Mr Colin Markham MP, the Parliamentary Secretary expectation by the Government and the community and Member for Wollongong, indicated that he tended 2 to agree with Mr Armstrong and that he would bring members will continue to contribute to the ongoing the matter to the Attorney General’s attention. legal development of the whole Bar by delivery of such The last issue also included an article by Glenn papers and allowing them to be published in this Bartley expressing the view that the sexual assault journal. communications privilege was under siege. Phillip Priest For those members, like the editor, for whom the QC has written a critical letter in response. notion of a country circuit is a strange and rare beast, The last issue also included the address given by considerable enlightenment is provided by the article in Ellicott QC at the dinner to celebrate his 50 years at the this issue from Stephen Stanton concerning his years of Bar. That address included some rather critical practice in the Pacific Islands. Members should also be comment on certain aspects of the role of Malcolm interested in Rena Sofroniou’s interview with Paul Fraser as prime minister in relation to the Sankey Daley which gives insight into his extraordinary success proceeding. Mr Fraser has indicated to Bar News his as a clerk over 40 years at the Bar. concern at the inaccuracy of some of Ellicott QC’s comments. Mr Fraser has been offered a right of reply. Justin Gleeson S.C. The present issue includes a shortened version of the paper delivered by Robertson Wright and Michelle Painter at a recent meeting of the Trade Practices Section of the New South Wales Bar. It is hoped that LETTERS TO THE EDITOR Dear Sir, therapists’ notes and other records. (My experience Several aspects of Glenn Bartley’s article in has been in Victoria, although I doubt NSW is any Summer 2000/2001 Bar News (‘Sexual assault different.) communications privilege under siege’) require As a counter to the Bar Association’s submission, comment. He wrote: Glenn Bartley somewhat emotively asks: A common criticism of the privilege, encountered by How many tens of thousands of innocent sexual the author, is that it would prevent disclosure of a assault victims deterred from reporting the crimes counselling note revealing that the complaint of sexual committed against them or from maintaining their assault was ‘recovered memory’, which arose after complaints, or traumatically humiliated in court, are hypnotherapy. However, these cases do not occur often sufficient to justify the legislation? and in nearly all of them there is other evidence of Again, two things ought to be noticed. hypnotherapy having led to a recovered memory. First, the statement seems to assume that innocent The first thing to note is the tacitly expressed victim will be deterred from complaining by the suggestion that cases of recovered memory occur only legislation permitting access to records. Experience where hypnotherapy has been employed. This is not seems to suggest, however, that if anything, it is the so. Research has demonstrated that false memories curial process itself which may act as a deterrent to are relatively easy to create in the course of therapy some victims.