VICTORIAN BAR NEWS No. 127 ISSN 0159-3285 SUMMER 2003 Farewell Chief Justice Phillips Welcome: Marilyn Warren, Chief Justice of Victoria Farewell: Chief Justice Phillips Obituary: Robert Chisholm Webster 100th Anniversary of the High Court of Australia The High Court and the Death Penalty: Looking Back, Looking Forward Deciding to Kill: Jurors in Capital Trials Australian Detainees at Guantanamo Bay: Legal Twilight Zone or Black Hole? Appointment of Senior Counsel Brian Bourke Talks About 50 Years in the Law First Tenants Move Into Refurbished ODC East The Victorian Bar and its Control of the Defence Force Legal System Criminal Bar Association Dinner Irish Australian Legal Links The Society Murders Book Launch Give the Barrister a Chance “Bar None” Wins 4-3 Over LIV at State Hockey Centre your indispensible guide to Equity Restitution & Fraud DR JOHN GLOVER BA, LLB (MELB), BCL (OXON), PHD (MON) New Book! Equity, Restitution & Fraud provides a comprehensive coverage of restitutionary and proprietary remedies. This well written book traverses the boundaries between equity and remedies focusing on their strong interrelationship, and provides a scholarly analysis of the rationales and policy behind the restitutionary aspects pertaining to fraud. Issues that are discussed include the pre-eminent actions for breach of a fiduciary relationship, unconscionability and breaches of confidence, which allow the remedial benefits of equity to intervene and mediate the rigours of the common law. Equity, Restitution & Fraud provides in depth analysis, allowing more precise and structured arguments in court. This book will also no doubt become an essential text for students studying in the area of equity. Price: (LIMP COVER) $130.00 inc GST (HARD COVER) $180.00 inc GST Contents include: Table of Cases Table of Statutes Introduction Existence of Fiduciary Relationships Scope of the Relationship Breach of Fiduciary Duty Unconscientious Dealings, Undue Influence and Associated Doctrines Breach of Confidence Remedies Against Primary Wrongdoers Remedies Against Third Parties Index To order, simply call our Customer Relations Department on 1800 100 161 VICTORIAN BAR NEWS No. 127 SUMMER 2003 Contents EDITORS’ BACKSHEET 5 Exclusionary Behaviour at the Bar CHAIRMAN’S CUPBOARD 7 A Year of Change — and More to Come ATTORNEY-GENERAL’S COLUMN 10 Substantial Investments in Victoria’s Court Infrastructure Reiewed Welcome: Chief Farewell: Chief Obituary: Robert WELCOMES Justice Warren Justice Phillips Chisholm Webster 12 Chief Justice of Victoria, Marilyn Warren welcomed at a Ceremonial Sitting held in the Banco Court, 1 December 2003 FAREWELL 17 Chief Justice Phillips OBITUARY 19 Robert Chisholm Webster PRACTICE NOTE 21 Legal Practice Act 1996 ETHICS COMMITTEE 30 Ethics Committee Bulletins ARTICLES 32 100th Anniversary of the High Court of Australia Appointment of Senior Counsel Refurbishment of 34 The High Court and the Death Penalty: Looking ODC East Back, Looking Forward 40 Deciding to Kill: Jurors in Capital Trials 44 Australian Detainees at Guantanamo Bay: Legal Twilight Zone or Black Hole? NEWS AND VIEWS 48 Appointment of Senior Counsel 49 Verbatim 50 Brian Bourke Talks About 50 Years in the Law 56 First Tenants Move Into Refurbished ODC East 58 The Victorian Bar and its Control of the Defence Force Legal System 60 Criminal Bar Association Dinner 62 Irish Australian Legal Links 66 A Bit About Words/Death Sentence 68 The Society Murders Book Launch Brian Bourke Talks About 50 Years in Criminal Bar 70 Give the Barrister a Chance the Law Association Dinner SPORT/BAR HOCKEY 71 ‘Bar None’ Wins 4–3 over LIV at State Hockey Centre, 23 October 2003 LAWYER’S BOOKSHELF 73 Books Reviewed 74 CONFERENCE UPDATE Cover: Farewell Chief Justice Phillips (See report on pages 17–18). Irish Australian Legal The Society Murders ‘Bar None’ Wins 4–3 Links Book Launch Over LIV 3 Victorian Bar Council VICTORIAN BAR COUNCIL Chairs of Standing Committees of the Bar Council for the year 2003/2004 Aboriginal Law Students Mentoring Committee *Executive Committee B Kaye QC, S.W. Clerks: Applications Review Committee W *Brett QC, R.A. (Chairman) W Brett QC, R.A. B *Ray QC, W.R. (Senior Vice-Chairman) Charitable and Sporting Donations Committee B *McMillan S.C., Ms C.F. (Junior Vice-Chairman) D Riordan P.J. D *Fajgenbaum QC, J.I. Conciliators for Sexual Harassment and Vilifi cation G *Howard QC, A.J. B Curtain QC, D.E. F *Dunn QC, P.A. A *Shand QC, M.W. (Honorary Treasurer) Counsel Committee F *Dreyfus QC, M.A. G Crennan S.C., M.J. G *Crennan S.C., M.J. Equality Before the Law Committee D *Beach S.C., D.F.R. B Millane Ms F. F *Quigley S.C., Ms M.L. (Assistant Honorary Treasurer) Ethics Committee D *Jones. I.R. B McMillan S.C., Ms C.F. D *McLeod, Ms F.M. D *Riordan P.J. Human Rights Committee W *Neal D.J. D Fajgenbaum QC, J.I. R *Doyle, Ms R.M. Legal Assistance Committee D *Duggan, Ms A.E. G Howard QC, Anthony J. D *Gronow M.G.R. Legal Education and Training Committee B *Coombs, Ms D.J. B Ray QC, W.R. L Hannebery, P.J. Past Practising Chairmen’s Committee D *Connor, P.X. G Berkeley QC, H.C. D *Attiwill R.H.M. (Honorary Secretary) D *Moore Ms S.E. (Assistant Honorary Secretary) Professional Indemnity Insurance Committee G *Anderson, Ms K.J.D. (Assistant Honorary Secretary) A Shand QC, M.W. Professional Standards Education Committee Ethics Committee S Willee QC, P.A. B McMillan S.C., Ms C.F. (Chair) Victorian Bar Dispute Resolution Committee H Merralls AM, QC, J.D. S Martin QC, W.J. S Willee QC, P.A. Victorian Bar Theatre Company Steering Committee S Lally QC, W.F. A Derham QC, D.M.B. P Bartfeld QC, M. F Dreyfus QC, M.A. G Lacava S.C., P.G. H Lewis S.C., G.A. F Quigley S.C., Ms M.L. A Macaulay C.C. M Clelland, N.J. F Shiff, Ms P.L. G Judd, Ms K.E. D Riordan P.J. VICTORIAN BAR NEWS Georgina Schoff, Paul Duggan, Peter Printed by: Impact Printing Editors A. Clarke, Nicola Gobbo, Victoria 69–79 Fallon Street, Gerard Nash QC, Paul Elliott QC and Lambropoulos, Richard Brear and Peter Brunswick Vic. 3056 Judy Benson Lithgow (Book Reviews) This publication may be cited as (2003) 127 Vic B.N. Editorial Board David Johns (Photography) Julian Burnside QC Published by The Victorian Bar Inc. Advertising Jack Rush QC Owen Dixon Chambers, Publications Management Pty Ltd Graeme Thompson 205 William Street, Melbourne 3000. 38 Essex Road, Surrey Hills, Victoria 3127 Editorial Consultant Registration No. A 0034304 S Telephone: (03) 9888 5977 David Wilken Opinions expressed are not necessarily Facsimile: (03) 9888 5919 Editorial Committee those of the Bar Council or the Bar or of E-mail: [email protected] John Kaufman QC, Olyvia Nikou S.C., any person other than the author. William F. Gillies, Carolyn Sparke, 4 Editors’ Backsheet Exclusionary Behaviour at the Bar mauve bulletin was recently distrib- uted to members of the Bar. It was A entitled “Bulletin No. 6 of 2003 of the Ethics Committee” and it concerned exclusionary behaviour at the Bar. [Many members are madly going through their Invicta expanding fi les in order to fi nd Bulletins No’s 1 to 5]. It appears from the bulletin that exclusionary behaviour is defi ned as behaviour that demonstrates an excessive level of familiarity with the presiding judi- cial offi cer. The concern of the bulletin was the effect of such familiarity on minority groups within the legal profession and on litigants. Counsel are warned to be careful to avoid and should discourage one-sided banter or over-friendly interchanges with a presiding judicial offi cer when counsel is appearing in a court or tribunal. It appears the dangers are greater where counsel often appear before the same person sit- exclusionary behaviour principle. Many effect of such conduct both on litigants ting in the court or tribunal and those see this principle as a new and underly- and minority groups within the legal pro- people somehow or other get to know ing thread of post World War II Australian fession. There have been grave diffi culties each other. society and politics. Therefore the princi- in identifying just what are the minority The message seems to be “think before ple can be applied in far wider areas than groups within the legal profession. A you joke” and having thought of the courts or tribunals. large grant has been given to the Essoign repercussions, especially from minority Indeed concerns have been raised that Institute for Sociological Studies in order groups and the other side in the case, the Bar Children’s Christmas Party is a for researchers to identify the multiplic- desist, desist. Banter and humour are not prime example of exclusionary behaviour ity of minority groups within the ongoing correct. albeit in the wider sociological sense. The superstructure that is the Victorian Bar. Debate has raged as to the extent to presence of a largish Father Christmas or, A sociologically relevant model is which this principle can be applied to as he is otherwise known, Santa Claus, being constructed as to the position and the behaviour of barristers generally. engaging in banter and familiarity in the necessity of the concept of Christmas Some have advocated that this is an over- Botanical Gardens, in which acts of famili- as a celebration that somehow concerns arching sociological principle that well arity include the handing out of lollies and Christians. For instance, in many state exceeds the narrow confi nes of Bar Rule presents, may well be said to be in breach schools the concept of Christmas and its 83.