Mediation and the Bar Some perspectives on US litigation Theories of constitutional interpretation: a taxonomy CONTENTS 2 Editor’s note 3 President’s column 5 Opinion The central role of the jury 7 Recent developments 12 Address 2007 Sir Maurice Byers Lecture 34 Features: Mediation and the Bar Effective representation at mediation Should the New South Wales Bar remain agnostic to mediation? Constructive mediation A mediation miscellany 66 Readers 01/2007 82 Obituaries Nicholas Gye 44 Practice 67 Muse Daniel Edmund Horton QC Observations on a fused profession: the Herbert Smith Advocacy Unit A paler shade of white Russell Francis Wilkins Some perspectives on US litigation Max Beerbohm’s Dulcedo Judiciorum 88 Bullfry Anything to disclose? 72 Personalia 90 Books 56 Legal history The Hon Justice Kenneth Handley AO Interpreting Statutes Supreme Court judges of the 1940s The Hon Justice John Bryson Principles of Federal Criminal Law State Constitutional Landmarks 62 Bar Art 77 Appointments The Hon Justice Ian Harrison 94 Bar sports 63 Great Bar Boat Race The Hon Justice Elizabeth Fullerton NSW v Queensland Bar Recent District Court appointments The Hon Justice David Hammerschlag 64 Bench and Bar Dinner 96 Coombs on Cuisine barTHE JOURNAL OF THEnews NSW BAR ASSOCIATION | WINTER 2007 Bar News Editorial Committee Design and production Contributions are welcome and Andrew Bell SC (editor) Weavers Design Group should be addressed to the editor, Keith Chapple SC www.weavers.com.au Andrew Bell SC Eleventh Floor Gregory Nell SC Advertising John Mancy Wentworth Selborne Chambers To advertise in Bar News visit Arthur Moses 180 Phillip Street, www.weavers.com.au/barnews Chris O’Donnell Sydney 2000. or contact John Weaver at Carol Webster DX 377 Sydney Weavers Design Group Richard Beasley at [email protected] or David Ash (c) 2007 New South Wales Bar Association phone (02) 9299 4444 Michael Kearney This work is copyright. Apart from any use as permitted under the Copyright Act 1968, and subsequent Louise Clegg Cover amendments, no part may be reproduced, stored Julie Soars Portrait of the Hon Mary Gaudron QC in a retrieval system or transmitted by any means Artist: Sally Robinson. or process without the specifi c written permission Kylie Day from the copyright owner. Requests and inquiries Geoff Hull (clerk) ISSN 0817-0002 concerning reproduction and rights should be addressed to the editor, Bar News, c/- The New South Views expressed by contributors to Bar Association staff member Wales Bar Association, Basement, Selborne Chambers, Chris Winslow Bar News are not necessarily those of the 174 Phillip Street Sydney, NSW 2000. New South Wales Bar Association. EDITOR’S NOTE justice in a developed and civilised society. The featured theme of this issue is Whether or not this perception is accurate mediation and the Bar. Long-time may never be known. It highlighted, mediation specialist, Angyal SC, provides however, in a material way the manner a systematic guide to preparation for, and in which the rule of law, and respect for it, the conduct of, mediations. Gleeson SC, has been gravely undermined by the whole in a typically challenging way, discusses saga. The perception I have referred to the approach the Bar should be taking would surely not have arisen or been so institutionally to mediation, whilst Street SC widespread had it not been for the and Kunc volunteer their thoughts on the circumstances of his detention without subject. charge and the prospect that any ‘trial’ Mr Readers will also fi nd considerable interest Hicks was given was to be bereft of those in two thought provoking pieces by new basic features long regarded as essential members of the Bar, Christopher Withers and fundamental hallmarks of justice. and David Sulan, who respectively write David Jackson AM QC of their recent experiences in litigation Mary Gaudron and David Hicks Jackson QC was bestowed a rare honour for and advocacy in New York and London The cover for this issue is adorned by a practising barrister in the Australia Day where they practised for six and four the unmistakable image of the Hon Mary honours list with the award of Membership years respectively. Withers provides an Gaudron QC, whose portrait was unveiled of the Order of Australia. The award was illuminating account of the distinctive in the Bar Association Common Room principally in relation to his outstanding features of commercial litigation in New on 21 February 2007. The portrait, by skill and role as an advocate. As such, it York, with surprising views as to the value renowned portraitist Sally Robinson is a was an important institutional recognition of pre-trial depositions and a degree of signifi cant addition to the Bar Association’s of the signifi cant role played by advocates apprehension, based on his experience, already impressive collection. in our adversary system. Jackson QC has at the growth of class actions for securities The launch provided all present with dominated the Australian appellate Bar related claims. Sulan writes of the a reminder of her Honour’s withering and, in particular, the High Court for well concerted attempt by Herbert Smith wit, nice line(s) in self-deprecation and, over 20 years. Any barrister privileged to establish an in-house advocacy unit through it all and, as ever, her fi erce and enough to have appeared with him (or in London with the recruitment of two formidable intellect and burning sense of indeed, against him) will be well aware queen’s counsel. of his consummate professionalism, his justice. In this context, her portrait fi ttingly Those interested in legal history will enjoy dedicated and careful preparation, his incorporates the text of section 75(v) of the Hon John Slattery QC’s reminiscences brilliance at refi ning an argument and the the Constitution by way of a superimposed of the Supreme Court judges of the apparent ease and style of his presentation. stencil. Her Honour spoke, with an enthusiasm 1940s and will savour the republication bordering on passion, of her belief that it is This issue of Max Beerbohm’s Dulcedo Judiciorum section 75(v) – providing for mandamus, Bar News is pleased to publish an Opinion and his observations on the Chancery and prohibition or injunction against offi cer(s) piece by Attorney General Hatzistergos on common law courts in London almost 100 of the Commonwealth – that enshrines the the topic of jury trials, and congratulates years ago. (Spigelman CJ appropriately rule of law in this country, and as such him on his appointment. It is hoped that drew on in this piece in his farewell speech constitutes the single most important he, and his shadow, Greg Smith, both on the occasion of Bryson JA’s retirement provision of the Constitution. In that members of the Bar Association, will which is noted in this issue along with that context, and unsurprisingly, she made be regular contributors over the next of Handley JA). reference to the scandal of the detention four years. Admirers of Bullfry QC will also be of David Hicks for over fi ve years without As is now customary, Bar News is also delighted by his return to these pages the laying of charges. pleased to be able to publish this year’s Sir after a short absence, care of the good What was striking about the circumstances Maurice Byers Address by Justice Heydon Professor Aitken, with as ever the dab surrounding Hicks’s ultimate plea to on the topic of ‘Theories of Constitutional hand of Poulos QC to illustrate Bullfry’s charges of vastly diminished gravity than Interpretation: a Taxonomy.’ The address increasingly disconcerting encounters with those originally raised was the widely held bears all the characteristics of his Honour’s the members of the solicitor’s branch. perception that he had only pleaded guilty approach to scholarship: meticulous Readers of Bar News for at least the last in order to escape the living hell of research, an abiding sense of the 15 years will be saddened to learn that Guantanamo Bay and the prospect of a importance of history, and a commitment this issue contains the fi nal instalment of bespoke ‘trial’ without the fundamental to the rigorous classifi cation of ideas with ‘Coombs on Cuisine’, formerly ‘Circuit features and protections associated with a view to ultimate intellectual elucidation. 2 | Bar News | Winter 2007 EDITOR’S NOTE Food’, by Coombs QC. This decision is causally quite unrelated to the High Court’s recent decision in John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28. Coombs never described a ‘square of pig’s paunch’ as ‘texturally, bringing to mind the porcine equal of a parched weetbix’ nor a ‘dismal pyramid of sorbet’ as ‘jangling the mouth like a gamelan concert’: ibid at [161]. His restaurant reviews have been characterised by the irrepressible joie de vivre of a true raconteur, conversationalist and bon vivant. Thanks to the former president (affectionately ‘Coombsy’) for the pleasure, fun, tips and recipes that he has shared over the years. CHRISTIAN MEDITATION On a fi nal note, Bar News records its appreciation to outgoing Bar Association President Michael Slattery QC for his keen support of this GROUPS publication over many years as well as for the energy and dedication he has brought to the discharge of his offi ce. Four ecumenical Christian meditation groups meet each week in the crypt of St James’ Church Andrew Bell at the top of King Street in the city. The groups are part of a worldwide network of over 1500 groups meeting in about 110 countries. The ancient Christian tradition of meditating on a simple sacred phrase was revived by the Letter to the editor English Benedictine monk, John Main (1926-1982).