CONTENTS 2 Editor’s note 4 President’s column 7 Letters to the editor 10 Opinion Women at the Bar Underlying legal issues in the NT intervention Do we need a Charter of Rights? C7 - Mega litigation and its costs 23 Recent developments 34 Features Capital punishment and Australian foreign policy Lex Lasry on the death penalty 68 Appointments 80 Book reviews Edmund Barton The Hon Justice Susan Kiefel The Mason papers The Hon Justice Geoffrey Flick Law and the Human Body 56 Profile Professional Liability in Australia Stephen Keim SC 71 Personalia (2nd ed) Billy Purves: crown prosecutor William Bede Dalley: Silver-Tongued Pride of Old Sydney 60 Legal history Wentworth Chambers turn 50 73 Obituaries 84 Bar Sports Six great advocates John Coombs QC Ken Hall Classic 2006 The Womens Readers’ Room Mark Anthony Macadam QC David Officer QC 66 Muse The Hon Justice Terry Connolly State of Montana v McCormack Rodney Parker QC The Formula 1 formula His Honour Judge Fred Kirkham barTHE JOURNAL OF THE NSWnews BAR ASSOCIATION | SUMMER 2008 Bar News Editorial Committee Design and production Andrew Bell SC Andrew Bell SC (editor) Weavers Design Group Eleventh Floor Keith Chapple SC www.weavers.com.au Wentworth Selborne Chambers 180 Phillip Street, Gregory Nell SC Advertising John Mancy Sydney 2000. To advertise in Bar News visit Arthur Moses DX 377 Sydney www.weavers.com.au/barnews Chris O’Donnell or contact John Weaver at Carol Webster (c) 2007 New South Wales Bar Association Weavers Design Group Richard Beasley This work is copyright. Apart from any use as permitted at [email protected] or under the Copyright Act 1968, and subsequent David Ash phone (02) 9299 4444 amendments, no part may be reproduced, stored Michael Kearney in a retrieval system or transmitted by any means ISSN 0817-0002 or process without the specific written permission Louise Clegg from the copyright owner. Requests and inquiries Julie Soars Views expressed by contributors to concerning reproduction and rights should be Kylie Day Bar News are not necessarily those of the addressed to the editor, Bar News, c/- The New South New South Wales Bar Association. Wales Bar Association, Basement, Selborne Chambers, Geoff Hull (clerk) 174 Phillip Street Sydney, NSW 2000. Contributions are welcome and Bar Association staff member should be addressed to the editor, Chris Winslow EDITOR’S NOTE endorsement by the High Court of Judicial appointments litigation funding: see Fostif v Campbell’s On 22 October 2007, the New South Wales Cash and Carry. Attorney General’s Department issued an advertisement headed ‘Positions Vacant: At an international level, the Law Society New South Wales District Court’. The of England and Wales, with the evident advertisement stated that inquiries could encouragement of the English judiciary, has be made to: recently issued a glossy booklet apparently distributed to in-house counsel of all The Hon Justice R O Blanch AM, chief Fortune 500 companies singing the praises judge, District Court of NSW, (02) 9377 of litigation in the English courts or private 5821, or Mr Laurie Glanfield, director dispute resolution by arbitration in London, general, Attorney General’s Department under the supervision of the High Court of of NSW, (02) 9228 7313. Justice. In the context of the promotion Expressions of interest, accompanied Competition for business of the English courts, one recalls Lord by a detailed curriculum vitae and the Competition between courts was Denning’s famous response to charges of names of at least two referees, should be characteristic of early English legal forum shopping. ‘You may call this forum e-mailed to [email protected]. history. It continued right up until the shopping, if you please, but if the forum is au by 9 November 2007. Expressions Judicature Act of 1873. The common England, it is a good place to shop both for of interest may also be posted to the injunction, associated with the Earl of the quality of its goods and the speed of its statutory appointments officer, Attorney Oxford’s case (1615), saw the courts service’: The Atlantic Star [1973] 2 Lloyd’s General’s Department of NSW, GPO Box of Chancery restraining parties from Rep.394. 6, Sydney NSW 2001. pursuing and or enforcing legal remedies With the world’s economy becoming ever granted by the king’s courts. This was This may well be the first time a judicial more global, competition between national the forerunner of the modern anti-suit appointment has been advertised in New courts, and between judicial determination injunction which is now a well-established South Wales. It has provoked debate and private arbitration, is likely to increase. remedy in transnational suits. In recent amongst the profession and is certainly One implication at least for commercial times, there has been something of a a harbinger of things to come. There barristers is that there is likely to be more resurgence in competition between courts is no reason to suppose that similar scope but also great competition for both within Australia and between courts advertisements will not be placed for international practice in the years ahead. internationally. Plus ça change, plus c’est la vacancies in the Supreme Court or for When Jonathon Sumption QC addressed même chose. the positions of president of the Court the New South Wales Bar in 2006, he of Appeal (to be filled early next year) Within Australia, the Federal Court’s noted that the clerk of his set of chambers and chief justice. Advertising judicial Victorian Registry much-heralded ‘rocket in London made two trips each year to positions may encourage highly competent docket’ may reasonably be seen as a ‘play’ Hong Kong and Singapore to promote the practitioners who may not otherwise have to attract commercial litigation to Victoria merits of the barristers in those chambers. been identified (for whatever reason) as and away from New South Wales. The Presumably, other London chambers do potentially interested in judicial office to New South Wales Registry of the Federal the same thing. English chambers have indicate his or her interest. This must be a Court’s streamlining of procedures in also led the way with the development good thing. Further, it may be thought to admiralty cases may similarly be viewed of informative websites and associated add a level of transparency to the process. as an attempt to make that court (and marketing material. One of the challenges But that is where transparency ends. that particular registry) a desirable place for the Australian Bar is to seek to ensure The recent advertisement only serves to for filing of such suits in preference to the that Australian barristers are at least ‘in highlight the general mystery surrounding Admiralty Division of the Supreme Court of the race’ for international work. There is judicial appointments, including at federal New South Wales with which the Federal an important issue as to whether or not level. Questions which arise from the Court shares admiralty jurisdiction. So also, this can be achieved at an institutional recent advertisement include: ‘How are Victoria’s current proposals to facilitate class level or whether it requires initiatives to be the “applications” to be processed?’; ‘By actions complete with US style procedures, taken by individual chambers or even by whom?’; ‘According to what criteria?’; following upon recommendations to the individual barristers (as some have already ‘Do such applications, having been called Victorian Government by none other than done, through admission in the United for, generate correlative administrative Peter Cashman, are arguably calculated Kingdom, Hong Kong and New Zealand, law rights of review for unsuccessful to make that jurisdiction the preferred for example). This is a matter deserving applicants?’; and ‘What of potential Australian venue for the commencement of the attention of the recently elected candidates who do not wish to make of class actions, a phenomenon which Bar Council. formal application?’. Readers are invited will only be fuelled by the recent general 2 | Bar News | Summer 2007/2008 EDITOR’S NOTE The recent advertisement only serves to highlight the general mystery surrounding judicial appointments, including at federal level. to contribute their views on what is a most involvement in various Indonesian death his long-term commitment to civil liberties. important topic in the next issue of penalty cases. With the ABC’s permission, Also featured in this issue is the first of what Bar News. Tony Jones’ interview of Justice Lasry is it is hoped will be a series of articles by reproduced in this issue. Accompanying This issue David Ash focussing on the careers of High the Lasry interview is an article by Dr At an early stage of the recent federal Court judges emanating from the New Michael Fullilove of the Lowy Institute election campaign, the shadow foreign South Wales Bar. Naturally, Edmund Barton entitled ‘Capital Punishment and Australian minister, Mr Robert McLelland, was is the first and quite possibly the most Foreign Policy’ which contains an excellent upbraided for remarks he made about and highly informative analysis of the topic. interesting cab off the rank. There is much the death penalty. That brief political more, besides, in this bumper Christmas storm gave rise to an excellent interview Another barrister who, like Lex Lasry, stood edition! Many thanks to Chris Winslow on the ABC’s Lateline of Lex Lasry QC up firmly and courageously for the rights of the Bar Association and the extremely (subsequently appointed to the Supreme of his client in the face of considerable energetic and dedicated 2007 committee Court of Victoria). Lasry QC had been pressure from the Australian Government of Bar News for their assistance in this past the principal legal representative for Van is Stephen Keim SC of the Queensland Bar.