THE JOURNAL OF THE NSW BAR ASSOCIATION | SUMMER 2009 / 2010 Online Precedents and Publications. Online Precedents and Publications. Online PrecedentsOnline Precedents and Publications. and Publications. The Mahatma and the High Court judge The missing constitutional cog: the omission of the Inter-State Commission Shadow Attorney General Smith on sentencing final.indd 1 13/05/2009 4:22:59 PM final.indd 1 13/05/2009 4:22:59 PM final.indd 1 final.indd 1 13/05/2009 4:22:5913/05/2009 PM 4:22:59 PM | CoNTeNTS | 2 Editor’s note 4 President’s column 6 Letters to the editor 8 Opinion The shadow attorney on sentencing A geriatric barrister’s yearning 24 Recent developments Judicial bias in America Aon and amendments Pape’s Case 43 Personalia 95 Music Costs in the Federal Court Bret Walker SC Supreme Court Concert Military justice in the dock 44 Readers 2009 96 Obituaries The Human Rights Consultation 45 Features The Hon Theodore Simos QC David Lukins 36 Tutors and Readers Dinner AB Piddington KC The missing constitutional cog 99 Bullfry 37 Practice Dealing with complex and 102 Book reviews Briefing junior counsel specialised factual material 111 Bar sports Surfing lawyers 85 Legal History Bar football: NSW v Victoria 39 Cuisine Australia’s first litigants Wentworth Wombats on tour Bench and Bar lunches 88 Appointments NSW Bar v Qld Bar Cricket 40 Muse The Hon Justice M J Slattery Sherlock Holmes in Australian The Hon Justice M Schmidt judgments The Hon Justice D Davies The Hon Justice S Austin District Court appointments barTHe JoURNAL oF THe NSWnews BAR ASSoCIATIoN | SUMMeR 2009–2010 Bar News Editorial Committee ISSN 0817-0002 (c) 2009 New South Wales Bar Association Andrew Bell SC (editor) Views expressed by contributors to This work is copyright. Apart from any use as permitted Keith Chapple SC under the Copyright Act 1968, and subsequent Bar News are not necessarily those of amendments, no part may be reproduced, stored Mark Speakman SC the New South Wales Bar Association. in a retrieval system or transmitted by any means Arthur Moses SC or process without the specific written permission Jeremy Stoljar SC Contributions are welcome and from the copyright owner. Requests and inquiries Chris o’Donnell should be addressed to the editor, concerning reproduction and rights should be addressed to the editor, Bar News, c/- The New South Carol Webster Andrew Bell SC Wales Bar Association, Basement, Selborne Chambers, Richard Beasley eleventh Floor 174 Phillip Street Sydney, NSW 2000. David Ash Wentworth Selborne Chambers Julie Soars 180 Phillip Street, Kylie Day Sydney 2000. Andrew Scotting Jenny Chambers DX 377 Sydney Chris Winslow (Bar Association) Cover: Indian leader Mahatma (Mohandas) Gandhi, circa 1948. Photo: Bar News | Summer 2009–2010 | 1 Topical Press Agency / Getty Images. AB Piddington KC. Photo: State Library of NSW | eDIToR’S NoTe | conventions may also operate to restrict and I thank the respective authors – the infl ow and turnover of ‘fresh blood’ typically younger members of the Bar – for and ideas on bar councils. their contributions. Youth is balanced by the sage refl ections of Ian Barker QC It goes without saying that none of these in his opinion piece, styled ‘A geriatric thoughts represents a criticism, express or barrister’s yearning for the good old days’. implied, of any current or past senior offi ce (Barker was never a member of the late holders of the Bar Association; on the Paul Lynham’s band ‘Pace-maker and the contrary, I hold them in the highest esteem Gerries’.) and admire enormously their dedicated contribution and public service. That This issue also continues our commitment having been said, however, the growth in to the exploration of matters of historical both the size of the association and the legal interest with what are, in one breadth of the tasks and corresponding sense, companion pieces. David Ash time involved which members of the has prepared the third of his features on Bar governance executive of the council appear to have to members of the NSW Bar to have been As this issue is put to press, a new Bar devote to the association at the very least appointed to the High Court, this time Council has been elected. There is an calls for some refl ection and questioning of focussing on AB Piddington, the judge unwritten convention that, although the convention that the three most senior who famously never took up his seat but members of the council are elected on an offi ces of the association are held for two who is, nonetheless, a fi gure of signifi cant annual basis, members of the executive of year periods rather than one year, which historical interest. It is a superb and the council, or at least the president and is the term of offi ce of the president of fascinating piece of work. (For Ash’s earlier vice-presidents, hold offi ce for two years the Law Society of New South Wales, for portraits of Barton and o’Connor, see Bar assuming their re-election to the council, example. News Summer 2007–2008 and Summer which is invariably the case. So long as the individuals concerned The long ‘lead time’ in relation to senior positions may are willing to do so, that may well be a good thing in terms of continuity operate to deter highly capable members of the Bar of leadership although if there is a Association who may otherwise have a great deal to ‘progression’ from junior vice-president to senior vice-president to president, contribute and otherwise be disposed to offer themselves as also seems to be a convention, this for service from seeking election. argument may be doubted. on the other hand, one’s impression is that the burdens and workload of these three most This issue 2008–2009 respectively). Piddington senior positions within our governance I am pleased to be able to thank followed his resignation from the High structure are incredibly onerous and call the shadow state attorney general Court by accepting an appointment as for a massive contribution of time from and member of the Bar Association, the inaugural president of the Inter-State (and income foregone by) the individuals Greg Smith SC, for his excellent and Commission, a body few will have heard concerned. Whilst the high degree of politically courageous but eminently of but whose existence is mandated by public service which such offi ce-holding sensible contribution to the issue of section 101 Commonwealth Constitution. entails is laudable, it may be more – and sentencing and so-called ‘law and order I have taken the opportunity to reprise even far more – than it is reasonable to auctions’. The Bar News policy has been research I undertook into this body while expect. The long ‘lead time’ in relation to invite contributions from both sides an economic history student (some time to senior positions may operate to deter of politics and previous issues have ago) which is reproduced in this issue, highly capable members of the Bar seen the publication of contributions in edited form, under the heading ‘The Association who may otherwise have a from the current state attorney and his Missing Constitutional Cog – the omission great deal to contribute and otherwise be predecessor, as well as contributions from of the Inter-State Commission’. The third disposed to offer themselves for service Commonwealth attorneys from both the substantive article is Justice Allsop’s recent from seeking election. The current Coalition and Labor sides of politics. paper entitled ‘Judicial Disposition of Cases’, which considers and questions This issue includes many useful notes on the manner in which technical expert recent cases and current developments 2 | Bar News | Summer 2009–2010 | | eDIToR’S NoTe | evidence is received and assessed. In this his own forensic techniques to identify Acknowledgements context, the juxtaposition of this article Australia’s first civil litigants. Members I thank Anna Katzmann SC for her support with the piece concerning the Inter- can also catch up with a host of judicial of Bar News through the two years of her State Commission is deliberate, as the appointments and also read of the honour presidency. I also thank this year’s Bar latter body was intended to have been conferred on Bret Walker SC through the News committee which has shared the an economic High Court expert in the award of the Law Council’s Presidential heavy load of producing what I hope has determination of, inter alia, issues of inter- Medal. Quite apart from being the most become a very high quality publication state protectionism. outstanding appellate lawyer in the with a mix of the current, the interesting, country, dominating the High Court Bar The Hon Leslie Katz SC continues to the practical, the historical, the personal across both civil and criminal matters, muse on literary allusions in Australian and the social life of the vital institution he has made unstinting and herculean judgments, in this case tracking Sherlock that is the New South Wales Bar. contributions to the governance of the Holmes’s appearances in Australian law profession both at a state and national Andrew Bell SC reports. Ian Temby QC draws on level. His award is richly deserved. Editor Bar News | Summer 2009–2010 | 3 | PReSIDeNT’S CoLUMN | proposed national legal profession reforms to provide these services. have the potential to signifi cantly affect Further, although it is apparent that it is the structure of the bar and the way we desirable to have national standards of practise. An example of this is the proposal practice, there does not seem to be any to appoint a national legal ombudsman reason that the bar does not continue to who would have effective oversight be responsible for the regulatory functions, over disciplinary matters concerning all which it currently performs.