I * Contents 2 Editor’s note 51 Bar history 77 Bullfry 3 President’s column Barristers in the Second World 80 Crossword by Rapunzel War (Part II) 6 Visit to Auburn Gallipoli Mosque 81 Bar sports Early Phillip Street Chambers 8 Opinion 83 Extempore 66 Appointments Advocacy and the truth R v David Allan Laundess The Hon Justice Bellew A distinction without difference Barbara Kissel v Schwartz & or a difference of distinction? The Hon Justice Stevenson Maines & Ruby et al The Hon Justice Beech-Jones 18 Recent developments 86 The Last Word The Hon Justice Rees 37 Feature His Honour Judge Arnott SC 88 Mason’s miscellany Rise and fall of the king of torts His Honour Judge Maiden SC 42 Practice His Honour Judge Mahony SC Advocacy training and the rule of law in southern Africa 74 Obituaries John Clifford Papayanni 45 Address Sandra Daniela Ocampo Community participation in criminal justice barnewsTHE JOURNAL OF THE NSW BAR ASSOCIATION | AUTUMN 2012 Bar News Editorial Committee ISSN 0817-0002 This work is copyright. Apart from any use as permitted under the Copyright Act 1968, and subsequent amendments, Jeremy Stoljar SC (editor) Views expressed by contributors to Bar no part may be reproduced, stored in a retrieval system Keith Chapple SC News are not necessarily those of the New or transmitted by any means or process without specific Arthur Moses SC South Wales Bar Association. Contributions written permission from the copyright owner. Requests are welcome and should be addressed to and inquiries concerning reproduction and rights should be Richard Beasley SC addressed to the editor, Bar News, c/- The New South Wales the editor, Jeremy Stoljar SC. Chris O’Donnell Bar Association, Basement, Selborne Chambers, 174 Phillip Street Sydney, NSW 2000. David Alexander 8th Floor Selborne Chambers Carol Webster 8/174 Phillip Street Ingmar Taylor Sydney 2000 David Ash DX 395 Sydney Kylie Day Jenny Chambers Cover: photo by iStockphoto.com Catherine Gleeson © 2012 New South Wales Bar Association Victoria Brigden Therese Catanzariti Chris Winslow (Bar Association) Bar News | Autumn 2012 | 1 EDITOR’S NOTE lawyers, known as the king of torts, and was badly wounded in action – who found himself occupying which culminates in the imposition a different role in the legal of a 20 cent fine. system after he was convicted of As the judgment reveals, Cross had attempting to bribe a judge. a remarkable facility with prose. David Ash considers the important He also had a lacerating wit: he question of whether, and if so to reputedly once remarked that one what extent, courts are engaged in of his brother judges was so full of the pursuit of truth. modesty and humility that in his sparsely furnished chambers he kept Ben Katekar reports on advocacy only a mirror and a throne. training in Stellenbosch. Mark Friedgut asks whether recent If any readers have in some drawer changes to the Barristers’ Rules have at the back of the desk any other been more significant than may old and long forgotten unreported The first issue of Bar News for have been thought. John Bryson QC judgments that may be worthy of the year and there are two new recalls chambers in Phillip Street in publication, please send them in. columns. the post war years. Lastly, a look back. Andrew Bell Keith Mason QC’s column is called Tony Cunneen presents the second SC retired as editor of Bar News at Mason’s miscellany. As the name part of his series on barristers who the end of last year. He was editor suggests, it collects the arcane and fought in the war. One of those for six years. He was only the third the amusing, the anecdotal and the featured in Cunneen’s piece is the to occupy the role, following Ruth obscure. This first column looks at late Cliff Papayanni, who joined the McColl SC (1985–2000) and Justin Australian legal dynasties. RAF in 1942 and flew 36 combat Gleeson SC (2000–2005). Julian Burnside QC has contributed missions. Cliff Papayanni’s obituary Andrew oversaw many important another new column, this one is also included in this issue. developments during his highly called The Last Word. The column Bullfry appears on a special leave successful period as editor. He trawls for interesting words that application, in a case involving a converted the journal into a have fallen out of service. This issue mouse and Simba the cat. Bullfry triannual rather than biannual the word is: Bloviating. was one of the few applicants publication. He also introduced Other features of this issue include successful in obtaining a grant of editions on particular themes, his the Opening of Law Term Address, special leave but, as one of the special issues on expert evidence in which the chief justice discusses bench remarked: “There was no and criminal law were of particular the crisis of confidence in the need to bring Simba into court Mr note. criminal justice system, and how Bullfry, and he may be returned All involved in Bar News, and the that crisis might be addressed. once my associate has fed him”. bar generally, thank Andrew for his Geoff Watson SC recounts the We also reproduce a long forgotten fine work on the journal. remarkable career of Richard judgment from 1973, delivered by Jeremy Stoljar SC Scruggs, one of America’s most Cross DCJ – another lawyer who Editor flamboyant and determined – not served his country with distinction; to mention wealthy – plaintiffs’ he flew Spitfires during the war, 2 | Bar News | Autumn 2012 | PRESIDENT’S COLUMN Commenting without fear or favour By Bernard Coles QC members’ views to the attention of the prerogative of the government government, through both formal to refer issues involving judicial submissions and the direct lobbying officers to the Judicial Commission, of ministers, members of parliament it did note the need for restraint on and others. the part of political leaders when they comment on the functioning Last year the Bar Association of our courts. made over 60 written submissions to government, parliamentary The premier had issued a statement committees and law reform to the effect that police and commissions. Recent major ambulance officers should have the projects have ranged from detailed support of the court system when submissions to the Standing assault charges are laid. The Bar Committee on Law and Justice Association’s public response by way in the context of its reference on of a media release of 7 February It is one of the Bar Association’s the Consolidation of Tribunals in urged the government to exercise principal aims to promote the New South Wales, to the NSW Law caution in its public statements administration of justice and the Reform Commission’s Inquiry into concerning judicial officers, noting rule of law. Although our views Bail Laws. that the courts exist to determine may not always be popular among matters on the evidence before The Bar Association took a firm politicians and certain media them without fear or favour, not to public stand against comments commentators, I cannot overstate support any particular group within made by the premier, the Hon Barry the importance of the association’s society. O’Farrell MP, in the context of the role in publicly explaining and government’s decision to refer the The Bar Association’s comments advocating key legal principles in conduct of Magistrate Pat O’Shane were widely reported and attracted the face of partisan debate. to the Judicial Commission earlier a great deal of attention on talkback The Bar Association places great this year. Although the association radio. In this context I would like importance on bringing its of course acknowledged that it was to thank Senior Vice-President Bar News | Autumn 2012 | 3 PRESIDENT’S COLUMN Phillip Boulten SC, for his efforts in Bar Association joins ACICA authority to perform the arbitrator explaining the association’s position Members would be aware of the appointment functions under in numerous radio and print media increasing focus of the association the International Commercial interviews. upon promoting the bar as a Arbitration Act, that is, to appoint arbitrators to international The Bar Association also wrote to source of expertise in alternative arbitrations in Australia where the the attorney to express its deep dispute resolution. Over the past parties have not agreed on an concerns relating to the Crimes year or two the ADR Committee appointment procedure or the (Criminal Organisations Control) and association staff have worked procedure fails. Bill 2012 and Crimes Amendment intensively to establish BarADR, (Consorting and Organised Crime) our service to provide access to A significant percentage of Bill 2012, both of which were our accredited arbitrators, expert international commercial disputes, introduced into the New South determiners and mediators at any including disputes arising in Wales Parliament in February. The time in a dispute whether or not relation to insurance, financial association considered that both litigation has commenced. arrangements, infrastructure and bills constituted an unnecessary and Late last year the Bar Council development, trade disputes and unwarranted infringement on rights resolved that the association other cross-border disputes, are of association, communication and become a corporate member of the determined by arbitration rather the right to procedural fairness. A Australian Centre for International than judicial proceedings. copy of the association’s submission Commercial Arbitration (ACICA). The booming economies in the is available on the website for In March the federal government Asia-Pacific area are likely to create a interested members. appointed ACICA in March 2011 significant demand for cross-border as the sole default appointing commercial dispute resolution. Last year the Bar Association made over 60 written By joining ACICA, the New South Wales Bar is placing itself in the submissions to government, parliamentary committees and best position to participate in the law reform commissions.