VBN winter 2008.6d.indd - Victorian Bar

No. 144 WINTER 2008ISSN 0159-3285WELCOMES READERS’ SIGNING ENDING THE TEN O’CLOCK RUSHLITIGATION AND ADR CONSTRUCTION LAW CONFERENCESUPPORT FOR INDIGENOUS BARRISTERS ESSOIGN CLUB ANNIVERSARYLAW WEEK WRAP BAR DINNER THE WORLD GAME AT THE BARVICTORIAN BAR NEWS Winter 2008 1

VICTORIAN BAR COUNCILVICTORIAN BAR NEWS*Executive CommitteeBar CouncilA *Peter Riordan SC, M.W. (Chairman)D *John Digby QC., P.G. (Senior Vice-Chairman)G Michael J Colbran QC,(Junior Vice-Chairman/Honorary Treasurer)D *Fajgenbaum QC, J.I.H Tobin SC, T.D McLeod SC, F.M.H McGarvie SC, R.D Terence Forrest QCL Phillip Priest QCD *Moshinsky, SC, M.K.L Hannebery, P.J.D Kate Anderson (Assistant Honorary Treasurer)D Scott Stuckey, SCD *Sara Hinchey SCG Anderson, K.J.D.G Daniel CrennanD Burns, A.G.B Miguel Belmar SalasB Sharpe, M.R.G *Penny A Neskovcin (Honorary Secretary)B * Simon T Pitt (Assistant Honorary Secretary)Ethics CommitteeD Davies SC, J. (Chairman)C Meagher ED, QC, D.R.G&J Willee RFD, QC, P.A.G&J Santamaria QC, J.G.D Titshall QC, M.R.F Gobbo QC, J.H.A Manly SC, R.J.H McGarvie SC, R.D Moshinsky, SC, M.K.G&J Shwartz, A.P Williams, I.S.D Kirton, C.E.F Shiff, P.L.D Alstergren, E.W.D Shaw, C.E.Chairs of Standing Committeesof the BarApplications Review CommitteeG Digby QC, G.J.Clerking CommitteeG Colbran QC, M.J.Council CommitteeG Colbran QC, M.J.Duty Barristers Scheme CommitteeD Alstergren, E.W.Editorial Committee for In Brief andWebsite News SectionD McLeod SC, Ms F.M.Equal Opportunity CommitteeD McLeod SC, Ms F.M.Ethics CommitteeG Davies SC, J.Health and Wellbeing CommitteeL Priest QC, P.Human Rights CommitteeD Fajgenbaum QC, J.I.Indigenous Lawyers CommitteeG Golvan SC, C.D.Law Reform CommitteeD Garde QC, AO, RFD, G.Legal Assistance CommitteeA Richards QC, A.Legal Education and Training ContinuingEducation CommitteeD Ruskin QC, J.Legal Education and Training Readers’Course CommitteeB Hill QC, I.D.New Barristers’ Standing CommitteeB Pitt, S.T.Past Practising Chairmen’s CommitteeF Costigan QC, F.X.Professional Standards Education CommitteeG&J Willee RFD, QC, P.A.Professional Standards Scheme CommitteeA Derham QC, D.M.B.Victorian Bar Dispute Resolution CommitteeS Heaton QC, M.EditorsGerard Nash QC, Paul Elliott QCand Judy BensonEditorial BoardJulian Burnside QC, Graeme ThompsonEditorial SecretaryJohn StevensEditorial CommitteeJohn Kaufman QC, Ian Freckelton SC,William F. Gillies, Carolyn Sparke,Georgina Schoff, Paul Duggan, Richard Brear,Carmela Ben-Simon, Catherine Button,Jennifer Digby, Noam Shifrin andPeter Lithgow (Book Reviews)Design/productionRon HamptonDavid Johns (Photography)Published by The Victorian Bar Inc.Owen Dixon Chambers205 William Street, Melbourne 3000.Registration No. A 0034304 SOpinons expressed are not necessarilythose of the Bar Council or the Bar orof any person other than the author.Printed by Impact Printing69 –79 Fallon Street, Brunswick Vic. 3056This publication may be cited as(2008) 144 Vic B.N.AdvertisingMal de SilvaThe Victorian Bar Inc.205 William StreetMelbourne 3000Telephone: (03) 9225 86812 VICTORIAN BAR NEWS Winter 2008

ISSN 0159-3285 No. 144 WINTER 2008EDITOR’S BACKSHEET4 Barristers in PerspectiveCHAIRMAN’S CUPBOARD5 Strategic plan will reinforce the value ofbeing a memberATTORNEY-GENERAL’S COLUMN8 Legal system not above workplacereformCORRESPONDENCE9 Letters to the EditorsWELCOMES10 Justice Peter Vickery12 Justice Emilios Kyrou14 Judge Paul Lacava16 Judge Jane Patrick17 Judge Peter WischusenOBITUARIES19 Douglas Graham QC22 Charles SweeneyNEWS AND VIEWS25 Bar Dinner26 Speech by Ross Gillies QC33 Response by John Coldrey QC38 Improving the dialogue betweencourts and the media40 Ending the Ten O’Clock Rush42 Law Week 2008 more popular than ever45 Litigation and ADR Construction LawConference50 The anniversary of the Essoign Club53 Creating Justice55 Support for Indigenous barristers57 Inaugural Patron of the WomenBarristers AssociationSPORT60 The World Game at the BarLAWYER’S BOOKSHELF62 Book reviewsCover: The Great Hall, NGV, venue of the2008 Bar DinnerWelcome: JusticePeter VickeryWelcome: JusticeEmilios KyrouWelcome: JudgePaul LacavaWelcome: JudgeJane PatrickWelcome: JudgePeter WischusenBar Dinner Law Week wrap Readers’ signing The World Gameat the BarVICTORIAN BAR NEWS Winter 2008 3

EDITORS’ BACKSHEETBarristers in PerspectiveBarrister bashing has always been the sportof politicians and the media – certainlynot of Kings. It is a bit like bear baiting, orbull fighting. Those who engage in it knowthat the animal is easy prey and enjoy thepleasure of blood sport, the blood sport ofstirring up the tall poppy syndrome, andappealing to the ‘chip on the shoulder’.There is no rational exchange of ideas butsimply resort to a stream of slogans.The latest round is nothing new. A readof the Herald Sun and The Age newspapersduring June paints barristers in a verypoor light. If one is to believe the quotes inthe papers, barristers are deliberately railroadingthe whole judicial system, whichincludes the administration of civil justiceand legal aid.‘Troglodyte’ is the new buzz wordthrown about by politicians and the press.Barristers are troglodytes – a caveman orcave dweller or a person who is deliberatelyignorant or old-fashioned. Not onlyare barristers ignorant and old-fashionedbut deliberately so. The main aim is tomaintain their usual fees of $14,000 a dayand to ignore the justice system as awhole.According to editions of The Age and theHerald Sun in June of 2008 the Attorney-General has suggested that barristers’ feesare putting justice out of the reach of manyVictorians, particularly when you havesome barristers charging $14,000 a day.Barristers are described as grandstandersusing the courts as a vehicle to displaytheir acting talents and increase their bankbalances. Therefore it is argued that thewhole adversarial system might be pastits use-by date. As barristers are the majorcause of the civil backlog in the VictorianCourts, the whole adversarial system thathas been in place in the common law forhundreds of years should be radicallychanged.There is no doubt that there shouldbe a discussion of reform of the judicialsystem, both criminal and civil. But does itserve any purpose for this debate to makestatements of this nature?At least the newspapers published a responsefrom the Bar. As the Chairman ofthe Victorian Bar Council, Peter RiordanSC stated the attack was a misrepresentation.Mediation is universal in disputes inVictorian civil cases. It is not a new thing.There was no doubt that getting Judgesmore involved in the resolution processwas critical but it was not of any use torefer to some barristers who might charge$14,000 a day when the vast majority workfor a fraction of that rate.Robert Richter QC and Julian BurnsideQC were also quoted as saying that referringto the fees of one or a few barristerswas not helpful in the overall debate on thejudicial system. The inherent problem wasthat of inadequate Legal Aid funding. Ifthe State Government provided adequateLegal Aid then there would be ‘access tojustice within the community’. To engagein barrister bashing simply obfuscatesthe whole issue and detracts from the realdebate.These attacks must cause bemusementamongst the vast majority of the VictorianBar. The vast majority of the Criminal Barperforms Legal Aid work. To tar them inthis manner is extremely unfair. Thosebarristers who quietly perform manyhours of pro bono work must also find theremarks wide of the mark, indeed thosewho are signing up for the Bar’s new dutyroster scheme to assist in the Magistrates’Court would be wondering whether it isworthwhile ‘grandstanding’ as part of aduty roster scheme.But is it all just a question of socialengineering? Barrister bashing is just partof attacks made on the professions overmany years. The medical profession iscontinually under such attack. There is thepush to promote the para-medical as wellas the para-legal. In the dental professionthere is the rise of the dental hygienistand technician and now we see a pushfor nurses to be operating, under certainrestrictions, medical practices.This edition contains a report of the BarDinner. Ross Gillies QC’s speech at thedinner was noteworthy not only for its witbut particularly concerning his commentson the Bar as a whole and how the Baroperates as a profession. It was good to seethe Attorney-General present at the dinnerand it is to be hoped that future discussionof the whole judicial system can be madein a more rational atmosphere.The question of acting judges has causedfurther dispute between the Attorney-General and the Bar. The Victorian Bar’spolicy has always been to oppose theappointment of acting judges as, it would4 VICTORIAN BAR NEWS Winter 2008

seem, is the policy of the Law Instituteand many other bodies. Barbara Cotterell,a Magistrate for many years, wasappointed an acting Judge for five years.The Bar Council resolved that it wouldnot attend Her Honour’s welcome as itwould seem to be support for the principleof acting judges. Many people atthe Bar disagreed with this decision,particularly since Barbara Cotterell wasan extremely well liked and intelligentmember of the Bar and the Magistracybefore her promotion. Her welcomewas well attended by many in the professionwho hold her in utmost respect.However, this cannot detract from theover-riding principle of the Bar’s oppositionto acting judges.THE EDITORSMediation killed theradio starFor the late Douglas Graham QCand David McLean SCSo many faces round this placeI don’t know nowSo many people signing the RollI don’t know howSo little work to be divvied upAmong so manyHow’s a man or woman to keep body &soul together?Lean pickings at the BarReduce us to scavengersThe goose that laid the golden eggLooks more like a spatchcock these days.NIGEL LEICHARDTCHAIRMAN’S CUPBOARDStrategic plan will reinforce thevalue of being a memberTHE STRATEGIC PLANNext July, the Bar will celebrate 125years of service founded on traditions ofindependence, superior service deliveryand exemplary conduct; of advocacyin support of law reform and access tojustice; and commitment to pro bonocontributions to the community.Successive generations of barristershave absorbed these living traditions inpupillage and in the collegiality of practiceat the Bar.These traditions are embedded in thevalues that are fundamental to a barrister’sprofessional life and are core to the healthof the Bar.The last 20 years have brought rapidand far-reaching change to the businessand professional environment in whichbarristers now operate – a very different,and ever-changing, intensely commercialand competitive environment – one towhich we, and the institution of the Barmust adapt and respond.The Bar, like other successful membershiporganisations, is responding by implementinga clearer style of governanceand decision-making, underpinned by acommonly understood and accepted statementof mission and values. This includesa clear statement of time-defined organizationalobjectives – and is embodied inthe Bar Strategic Plan.We began this process over 12 monthsago with the formation of the StrategicPlanning Committee. The Committee’sfirst focus was to examine the challengesand opportunities for the Victorian Bar(in commercial organizations this wouldbe referred to as the SWOT analysisStrengths, Weaknesses, Opportunities andThreats).The Committee worked to developobjectives based in the core traditionsand values of the Bar – and I take thisopportunity to thank Mark Moshinsky SCand his Committee for their outstandingwork on this vital project.The Bar’s five-year Strategic Plan bringsnew emphasis to planning for and managingthe often competing demands of commercialdecision-making and efficiencywith the missionary zeal needed to respondto the needs of members. TheStrategic Plan can be found on the websiteat .My introduction of the Strategic Planin this column is necessarily in generalterms. I hope you will take the time to readand reflect on the detail of it, and shareyour thoughts with a member of the BarCouncil.As with all strategic plans, it is dynamicand is only the first step towards regularrenewal.VICTORIAN BAR NEWS Winter 2008 5

We will review our performance againstthe Strategic Plan at regular intervals andreport to members on that performance.THE YEAR IS CLOSINGThis year, the Bar committed to considerableexternal examination of our operatingenvironment as we sought to focus attentionon areas of stress within the justicesystem.The Bar Council has not spared itselffrom similar internal and external scrutiny,beginning with the May 2007 independentconsultant’s report into governance andmanagement at the Bar. The Council hasconsidered, and implemented as appropriate,the recommendations of that reportwithin the year just passed.Another major step was the Bar Councilweekend planning conference to examinethe Strategic Plan and settle its objectivesand priorities.This was followed last month by theengagement of consultants to undertakea high-level review of governance and theadministrative structures and practices ofthe Bar in relation to barristers’ chambersand the relationship between the Bar andBarristers Chambers Limited.Due to report by the end of August, thereview will focus on the effectiveness ofgovernance structures and administrativepractices relative to what members judgethey require in respect of accommodation,communications and other services.Last month’s media commentary on thework of Barristers Chambers Limited wasregrettable and did not accord members ofthe Board and staff the recognition theydeserve for the very valuable work they do,and have done for many years.CHANGES IN ANNUAL REPORT, AGMAND ELECTION TIMESAs the Annual General Meeting drawsnear, the Council, committees and Baradministration begin their ‘reckoning’ ofachievements for the year.Reflecting the greater emphasis on communicationwith members, this year’sAnnual Report has been redesigned andexpanded to give barristers more informationabout the work of the Bar, its governanceand its performance.To accommodate the later delivery ofthe Annual Report (which for the firsttime will include consolidated accountsof the Bar including Barristers ChambersLimited), the date for the Annual GeneralMeeting has been pushed back to October.The Bar Council election will also be inOctober.REFORM OF CIVIL JUSTICE SYSTEMREPORTIn the last Chairman’s Cupboard, I referredto the Bar’s report Reform of the CivilJustice System: A Major Opportunity toImprove Justice and Boost the VictorianEconomy. The Bar’s report emphasizes thatthe pillars for reform are: effective casemanagement; appropriate rules; and judicialexcellence – but that all this needs tobe underpinned by a collaborative andsupportive profession.The impact of this report is alreadyevident. It was cited several times in theVictorian Law Reform Commission’s CivilJustice Report and by the Chief Justice inher speech at the official launch of thatreport.Notably, the Chief Justice’s own work inreforming the Supreme Court is supportedby the recommendations of the Bar’sreport.Also, the President of the Law Instituteof Victoria, Tony Burke, based his columnon law reform in the June Law InstituteJournal largely on the Bar’s report.This wide acceptance and use of thematerial, information and insights ofthe Bar’s report – commissioned by theBar with funding support from the LegalServices Board – and its translation intodirection and support for Civil Justicereform is all very positive, particularlynow, as the Government assesses andweighs the recommendations of the VLRCCivil Justice Report.CHIEF JUSTICE AND ATTORNEY-GENERAL MEET WITH BARCOUNCILThe Chief Justice met with the Bar Councilat its 22 May meeting and spoke on thereform process occurring at the SupremeCourt.The Attorney-General met with theCouncil at its 29 April meeting andoutlined preliminary areas for emphasis inthe Government’s policy statement JusticeStatement 2.BAR PAPERSFollowing up on our submissions to theVLRC Civil Justice Review and the reportwe commissioned, the Bar issued paperson Smarter Dispute Resolution and on theuse of The Docket System.MEDIA COMMENTARY ON COURTSSTATISTICSFuelled by the release of figures from theCentre for Corporate Law and SecuritiesRegulation, the media has highlightedthe lopsided proportion in the numberof judgments in the Victorian SupremeCourt compared with the number ofjudgments in the Supreme Court of NewSouth Wales.The lack of standardized metrics betweenthe courts complicates meaningfulcomparison, and barristers practising inthese courts will know that comparison isnot simple.It should also be remembered that thereform process in the Victorian SupremeCourt started later than that in theSupreme Court of New South Wales, andthat Victoria has made significant progressin the last five years.UPDATE REPORT ON CRIMINALLAW LEGAL AID FEESAs it did in 1997, the Bar engaged PricewaterhouseCoopersto examine the impactof the real decline in fees paid to barristersby Victoria Legal Aid.The key finding of the 2008 report is that,over the last 15 years, barristers practisingin legal aid criminal law work experienceda real reduction in fees income of between25% and 40% compared to a real rise of15% in other professions.Barristers’ willingness to devote themselvesto legal aid criminal work has beenan access-to-justice pillar in the frameworkof the criminal law justice system inVictoria for many years. Another key findingof the 2008 report that is scarcely surprising,but a cause for significant concern,is the connection of this drastic reductionin real fees income with the 26% fall, overthe last three years, in the number of barristerspractising in legal aid criminal lawwork.The analytical research in the 2008PricewaterhouseCoopers report stands in6 VICTORIAN BAR NEWS Winter 2008

stark contrast to the extravagant figurewhich, at least as it was reported in themedia, was presented as indicative of whatbarristers earn – a figure which must relateto so few barristers that it is irrelevant tothe real issue of the cost of justice.In the last survey of pro bono workperformed by barristers for the 2004–05year, it was estimated the Victorian BarLegal Assistance Scheme dispensed inexcess of 10,700 hours of pro bono workby barristers valued at over $3.4 million.Extrapolated for 2006–07 this estimaterises to 11,500 hours at $4.25 million.I am glad to report that the Governmenthas brought forward its review of theoperation and funding of Victoria LegalAid.DUTY BARRISTERS SCHEMEOn Monday 12 November 2007, the firstthree Duty Barristers announced theirappearances in the Melbourne Magistrates’Court. They were Amelia Macknay,Elizabeth Ruddle and Amanda Wynne,accompanied by Will Alstergren, Chairof the Bar Committee that established theScheme.The three barristers hit the ground runningand were very soon assigned by theCourt to advise and appear. The Schemehas continued to operate well ever since.What was initially a pilot scheme workedwell and has now commenced in earnest.I congratulate Will Alstergren for hisinspiration and hard work with his committeeand thank, in particular, MagistrateLeslie Fleming, who is also a member ofthat Committee; and, of course, ChiefMagistrate Ian Gray for his support of theventure.The Duty Barristers Scheme is a significantaddition to the Bar’s work and commitmentto more effective access to justicefor more Victorians.BAR HEALTH AND WELL-BEINGCOMMITTEEThe name of the Bar Care Committee waschanged, after discussion at the StrategicPlan weekend conference, to the Healthand Well-being Committee. This is toreflect the greater emphasis to be placedon the health and well-being of barristers.The immediate focus of the Committeeis to provide members with the tools andeducational resources to allow them torecognize causes and early signs of stressor other health concerns.Already the Committee, now chaired byPhilip Priest QC, has organized severalCPD sessions for barristers. It has alsodiscussed what we may be able to do tostrengthen support structures for barristerswith a number of health industryprofessionals, the Law Institute, the LegalServices Commissioner, and other BarAssociations.ONLINE SURVEY ON DEPRESSIONAMONGST BARRISTERSThe University of Sydney Brain and MindResearch Institute is conducting a nationaland international health survey intodepression. Part of this survey involvessurveying Australian barristers. Severalhundred barristers at the New South WalesBar have completed the survey but sofar only a handful from other AustralianBars.Depression is a significant issue throughoutthe legal profession in Australia andoverseas and can lead to tragedy – bothprofessional and personal.Other parts of the survey are directed tosolicitors and to law students. Completiontime for the survey is estimated at between15 and 20 minutes.It can be taken on-line at: . Alternatively,it can be obtained in hard copy from orthrough the Bar Office – contact JamesMortley on extension 7942 or .I urge every member of our Bar, whetherin practice or not, to complete this survey.This information and the link will beincluded in In Brief and posted on the Barwebsite.PETER RIORDANChairmanCIVIL JUSTICEREVIEW REPORTThis Report was launched on28 May 2008 and contains177 recommendations to theAttorney-General to make civillitigation in Victoria ‘cheaper,simpler and fairer’.The Report can be viewed – ordownloaded (it is 753 pages) – at:.VICTORIAN BAR NEWS Winter 2008 7

ATTORNEY-GENERAL’S COLUMNLegal system not aboveworkplace reformThe structure of Australian workplaceshas changed dramatically over the last 30years. The changing economy, new technologiesand a diverse range of culturesand generations that make up today’sworkforce require organizations to reexamineand re-think their operations.Our judicial institutions are not immuneto these changes and we need to examinecarefully how we can transform outdatedworkplace structures and the culture rightacross the justice system.Whether it is private law firms, privatepractice, or the Bar, all our legal institutionsneed to be assessed as to whetherthey have structures that may discriminateagainst particular sections of the community– the most obvious being women andlow-income earners.There is no doubt that we have seen achange in what we once referred to as thelegal ‘fraternity’. Slowly, the archaic maledominatedlegal culture is shifting towardsa workplace that more accurately representsthe diversity of talented and accomplishedwomen in the sector.Of course, there are still significantimpediments to overcome in terms ofequality of briefs provided to women andworkplace structures that make it difficultfor women to progress to senior levels.Since coming to office, this Governmenthas sought to address the gender imbalanceacross all parts of our legal systemand I hope that we have contributed somewhattowards a shift away from the bad olddays of male exclusivity.The Government’s Legal Services Panelhas for some years now required equalopportunity briefing practices for thosefirms seeking to undertake governmentwork. Since we first started reporting thebriefing arrangements, the overall percentageof briefs to women barristers underthe panel arrangements has increasedfrom 42% in 2003–04 to the latest figuresreleased in June this year showing thenumber of briefs for women at 52% – with28% of fees being invoiced by women.In my view, one of the key problemsfor women lawyers is the lack of flexibleworking arrangements. At the moment,senior women lawyers are running thegauntlet at work while still maintainingthe market share of running the home.It is deplorable that working parents andcarers may face discrimination for tryingto find a decent balance between theirwork arrangements and their parental andcarer responsibilities.That is why I am pleased to say thatfrom 1 September this year, discriminationby an employer unreasonably refusingto accommodate a worker’s parental orcarer responsibilities will be unlawful. TheGovernment has amended the EqualOpportunity Act to assist parents withyoung children to return to work byincluding family responsibility as a groundof unlawful discrimination.Many workplaces are slow to see it, butimproving work and family balance benefitsemployers, employees and their families;it helps retain skilled staff; saves onrecruitment and training costs and ultimatelyboosts productivity.All modern companies and workplacesare moving to family friendly practices andlegal organizations should be no exception.Just because practices have been in placefor centuries does not mean they cannotbe changed.For example, in the UK, the Bar wasfacing a drain of young talent as its ‘bestand brightest’ lawyers were unable to undertakepupillage training due to the hugedebts incurred and a shortage of work duringtraining.As a result, in 2002, the English BarCouncil introduced a funded pupillagescheme whereby lawyers training to becomebarristers received a financial paymentuntil they finished the course.All chambers in the UK are requiredto make an award of a financial paymentof just over £800 per month to a pupil for8 VICTORIAN BAR NEWS Winter 2008

the non-practising period of pupillageand then guarantee certain receiptsfor the initial practising period duringpupillage.This is something that needs to beseriously considered here.Presently in Victoria, lawyers seekingto be admitted to the Bar have to paymore than $3,500 to complete the BarReaders’ Course.There is no provision for readers toreceive any form of financial or othersupport during the 12-week course. Forthe final six months of reading a readermay accept briefs, but at this stage thereader will be looking to take on workthat helps them to understand the practicalapplication of things they havelearnt, and this work may not provide asustainable income.A funded readership scheme couldbe established by the Victorian Bar topay readers a nominated amount forthe duration of their readership. Theactual funded amount would have to becarefully considered but, for instance,could be linked to the minimum salarypaid to legal trainees.This could ensure entry to theVictorian Bar is not limited to thosewho have the financial means to sit theCourse or who can afford to go withoutincome or with limited income whilereading.There also appears to be little opportunityfor lawyers to undertake theVictorian Bar Readers’ Course on apart-time basis as is available in the UK.Having the ability to undertake theReaders’ Course on a part-time basis,and having a course that is flexibleenough to enable this to occur regularly,would I am sure attract a more diversecross-section of the community, butparticularly women, to a career at theBar.Like many other workplaces acrossthe country, our judicial institutionsshould be encouraged to adopt moreflexible workplace arrangements thatrespond to modern community demandsand create a dynamic platformfor the delivery of justice.ROB HULLS MPAttorney-GeneralLETTERS TO THE EDITORSDear EditorsIn recording the death of the lateHoward Ednie in In Brief No. 371 (3April 2008), the author stated thatHoward had signed the Bar Roll inOctober 1955 and ‘read with OlafMoodie-Heddle (later Judge Moodie-Heddle), a Common Lawyer’ describedas ‘a very great advocate in the dayswhen the Victorian Bar was described asvigorous’.I compliment the author of In Brief onthis apt description of Moodie-Heddleand the Victorian Bar back then.Heddle was indeed a powerfuladvocate, affeared of nothing and noone, and one of the leaders of theCommon Law Bar. I am not familiarwith his antecedents, but the name Olafsuggests Viking ancestry.After he took silk he successfully ledme in a very difficult personal injuriescase against the Tramways Board whowere tough opponents. He led all theevidence and cross-examined all thewitnesses. To emphasise the importanceof the case to the plaintiff, he insisted weboth maintain a severe composure infront of the jury. He forbore reading thetranscript but knew all the evidenceword for word.I believe he regarded his spell as aCounty Court Judge as one of gentleretirement after many successful years atthe ‘vigorous’ Common Law Bar. Theredid not seem to be as much pressure onthe County Court then as there isnowadays.GEOFFREY COLMAN QCDear EditorsGRANTS FOR LEGAL PROJECTSI am a Senior Barrister, one-time Directorof Barristers Chambers Limited andformer Chairman of the BuildingCommittee for the construction of OwenDixon Chambers West.When I came to the Bar in 1961, in lessthan prosperous circumstances, I was ableto live at the Bar rent free whilst reading,and thereafter on a monthly tenancy.I moved from smaller to larger chamberson the same basis.I am aghast at the front-page articleof the Financial Review of 4 July. This‘ “O’Bryans” Advertisement’ reveals agroup of barristers who are not only intenton biting the hand that fed them buttaking it off at the elbow.It’s almost certain that the O’Bryansand the other tenants of Melbourne andDawson Chambers all came to the Bar asthe beneficiaries of the system which, asabove, allowed the young barrister a rentfreeperiod whilst reading and thereafter amonthly tenancy. This did not require theput-up of money of tens and hundreds ofthousands of dollars to gain admission,as was the case in the New South WalesBar, the only relevant comparable Bar toVictoria. This Victorian system is now theone that they snipingly and hypocriticallycriticise, presumably to attract tenants totheir Chambers.In the light of current legislation, therecan be no objection to barristers ‘makinga quid’ by buying their own chambers.But to attempt to pull down the housein which they once lived by slanted andinaccurate comments is deplorable.PETER J O’CALLAGHAN QCThe Legal Services Board Victoria is currently offering grants of up to $50,000 for projectsthat are relevant to Victoria and which:• lead to improved laws and legal services;• enhance access to justice; and• better inform consumers of legal services.Applications close on Friday 12 September 2008.Application forms and program guidelines are available on the LSB website at or by phoning (03) 9679 8000.Applications for major grants (over $50,000) will be open again later in the year.VICTORIAN BAR NEWS Winter 2008 9

WELCOMESupreme CourtJustice Peter VickeryAddress by Peter Riordan SC, Chairman of the Victorian Bar Council,on Wednesday 28 May 2008What an extraordinary country we livein. The announcement of your Honour’sappointment was made on the same day asthat of Justice Kyrou, and yet your backgrounds,while equally interesting, are sovery different.For example, Justice Kyrou’s father wasa shepherd who could not speak Englishbut brought his family to Australia forhis children’s education. Your father wasa judge, an army General and a war hero.That is not to say that you did not faceobstacles in your path to success.Your Honour was educated at MelbourneGrammar.You recovered and graduated with aBachelor of Laws from the University ofMelbourne in 1971.You served articles with Hugh Grahamof Madden, Butler, Elder & Graham (nowDeacons). You were admitted to practicein August 1973.You remained with Madden Butleras an employee solicitor for about a yearbefore you and Paul Elliott (now QC)tired of 1970s Melbourne and took offfor London.You had an inauspicious beginning.After training across the Nullarbor, theship on which you had booked passagefrom Perth was seized for debt.You negotiated a replacement flight onPakistani airways, which was a nightmare:a milk run with stops at Singapore, Bangkokand Lahore, just to name a few.Apart from a number of other disasters,Pakistani Airways was faithful to theMuslim prohibition against alcohol – notexactly what you two young men had inmind.But London was great, and so wasLondon House in Mecklenburgh Square,where you lived in graduate studenthousing. Your stated intentions, while inLondon, were to further your study of thelaw and…find yourselves the right womanto marry; and on arrival you set about bothtasks with enthusiasm.Ultimately you were both successful onthe first. You at Kings College, and Elliottat the London School of Economics, eachearned the London university degree,Master of Laws.However, only Elliott was successful onthe second. While in London, he met hisfuture wife.I am assured your failure in the secondtask was not due to any lack of dedicationto the search. Your Honour even went tothe lengths of joining a Scottish highlanddancing group – possibly the ultimate inskirt chasing. Elliott mocked you, sayingthat the most attractive skirts there wereon the men!Elliott remained in London to teach atQueen Mary College at London University.You did the summer program at TheHague Academy of International Law,then returned to Melbourne and taught inthe Legal Studies Department at LatrobeUniversity from 1975 to 1977.You established and taught there acourse in human rights from both nationaland international perspectives.You came to the Bar in March 1978 andread with Michael Black, now the ChiefJustice of the Federal Court of Australia.Your practice at the Bar has been mainlyin commercial and administrative law;and in engineering, environmental andplanning law; and in human rights law.You took silk in December 1995 – a yearof strong appointments. Of the 11 silks thatyear, six have achieved judicial office so far,five to this Court: the late Justice Flatman,Justices Whelan, Hargrave and Coghlan– and, of course, your Honour.Throughout your time at the Bar,your Honour has excelled as a true trialadvocate. You have been described asfearless and unrelenting; and as one of thebravest counsel at the Victorian Bar.In Fletcher Construction v Lines youargued, in total, for an extraordinary12 days in the Court of Appeal. Yourjunior describes the scene as the Court,constituted by Justices Charles, Buchananand Chernov, attempting to corral youlike a calf in a cattle yard. But just as theyappeared to have you encircled, you wouldescape their clutches.At trial, that case also illustrated yourmasterful cross-examination.Your opponents worked with an expertengineering witness for days and days,preparing him for the expected marathon10 VICTORIAN BAR NEWS Winter 2008

cross-examination on the technical minutiaein his evidence.In four or five questions, you demolishedthe witness’s credibility – and satdown.You virtually moved to Tasmania fora year for the Tasmanian Highway Case.You opened the case with quotations froma treatise on roman roads. De Architecturaby Marcus Vitruvius, written in the firstcentury before Christ. No wonder itbecame the longest civil case in Tasmanianlegal history.Your junior in that case was Lee Sealey,now Tasmania’s Solicitor-General. He hasflown in to be here this morning.Despite your Honour’s outstandingprofessional work, your career is markedby your extra professional contributions.When the Fitzroy Legal Service openedits doors in December 1972 you were avolunteer.Those who did found the service wishthey’d had the resources of everyone thathas since claimed to have been foundationvolunteers.You were a volunteer from the veryoutset in 1972, and continued to be a veryactive volunteer until 1980.Your community contributions includeyour role as a founding member andpatron of the Butterfly Foundation – acharitable foundation that supports youngVictorians, particularly young women,with eating disorders. The Butterfly Foundationhas established a public health daycarecentre, the first in Australia.You are also a member of the leadershipcouncil of Whitelion, which provides mentoringand employment programs foryoung people out of home care, or in theyouth justice system.Your human rights law work throughthe International Commission of Juristshas been extraordinary.In 1999, you co-ordinated the assistanceof• the Australian Defence Forces,• the Australian Federal Police,• the Victoria Police,• specialist trauma counsellors, and• volunteer Victorian lawyersto gather evidence of crimes againsthumanity in East Timor.More recently, you were the ICJ SpecialRapporteur in relation to the situation ofDavid Hicks, Guantanamo Bay and theUnited States Military Commissions.Your list of recent publications covers arange of issues, including:• an appreciation of the judicial careerof United States Justice Sandra DayO’Connor on her retirement;• liquidated damages and penalties incontract law;• complementary civil law remedies fordestruction of documents;• international sale of goods under theUnited Nations Convention;• as well as many pieces on human rightsand Guantanamo Bay.You have been a scholar and a teacher.You have been an outstanding barrister,with a substantial practice of major cases,and have made time for the very substantialgood works I have described, playing animportant role in the public discussion ofhuman rights and human rights law.On behalf of the Victorian Bar, I wishyour Honour long and satisfying service asa Judge of this Court.Raise the barwith legalsuper‘I have the knowledgeand the experience togive you the personalisedinformation and adviceyou need to achieve yourfinancial goals.’Introducing Scott Smith, the Victorian Bar community’s personal contactat legalsuper. Scott has long-term superannuation industry experienceand is licensed to provide personal superannuation advice.To ask a question or to make an appointment with Scott, call (03) 9607 9396,0401 107 093 or email ssmith@legalsuper.com.aulegalsuper has a record of strong investment returns, offers exceptionalinsurance cover, returns all profits to members and is Australia’s largestsuper fund for the legal profession.Scott SmithClient Service ManagerVictoriaLEGS 27960Prior to making any decision in relation to acquiring any interest in legalsuper, you should consider the Product Disclosure Statement which can be obtained on our website at www.legalsuper.com.auor by calling 1800 060 312. Legal Super Pty Ltd, 470 Bourke Street Melbourne, 3000. ABN 37 004 455 789 ASFL 246315 RSE L0002585 as the trustee for legalsuper.VICTORIAN BAR NEWS Winter 2008 11

WELCOMESupreme CourtJustice Emilios KyrouAddress by Peter Riordan SC, Chairman of the Victorian Bar Council,on Thursday 22 May 2008I appear on behalf of the Victorian Barto welcome your Honour’s appointment tothis Court.Your Honour’s intellect, meticulous careand thoroughness are legendary.It has been reported that your Honour is‘only the second solicitor to be appointedto the Supreme Court bench’.You are, in fact, the third.Justice Rosemary Balmford practisedfor many years as a solicitor, and wasa partner at Whiting & Byrne. She, ofcourse, was appointed to this Court by thesomewhat more circuitous route via theCounty Court.Like your Honour, she was a winner ofthe Supreme Court prize.The other solicitor on this Court was,of course, Justice Bernard Teague, whoretired in February this year after morethan 20 years distinguished service.I understand that your first rotation inyour articles year was in litigation, and that,on your first day at Corrs, you shared anoffice with Justice Teague – then a partnerat Corrs.I understand that Justice Teague becameand remains a mentor and good friend.Let me outline your extraordinary story.Your Honour was born in the villageof Sfikia in northern Greece where yourparents were tobacco farmers. Your fathersays that as a child you were a bit slackworking around the farm but you may beforgiven. You were less than eight years oldand, as will be revealed, your work ethicpicked up.The family migrated to Australia in 1968– the year after the April 1967 coup d’etat inwhich a military junta ousted the civiliangovernment.Yours was one of ten families to emigratethat year from your village.You arrived in Australia aged eight anda half, speaking no English.Your parents and brother, Dr TheoKyrou – all in Court today – lived first inan army camp that doubled as a migranthostel – then rented a succession of singlerooms.You attended three different primaryschools: Eastmeadows, then Broadmeadows,then Dallas North.Incredibly, for one who arrived inAustralia speaking no English – and, inthose first four unsettled years, attendedthree different primary schools – you wereequal top-student of the Dallas Northprimary school.You went on to be dux of the UpfieldHigh School.Your parents both worked on theassembly line of the Ford Factory. Youonce worked in a truck factory.You won a Ford Motor CompanyTertiary Scholarship, and held it for thewhole five years of your combined Law/Commerce course at the University ofMelbourne.Apart from occasional absences toattend lectures, you worked in the lawlibrary from opening to closing pretty wellevery day.You sat in the same place, near the periodicalsand the toilet, on the first floor ofthe old law library on the quadrangle.You were one of a group of five lawstudents who have remained best friendsnow for more than 25 years.Four of you are from immigrant workingclass backgrounds: Juan Martinez(whose family is from Spain – now manag-ing partner of HWL Ebsworth, Solicitors),Mike Ferraro (whose family is from Italy– now global general counsel at BHPBilliton), and Joe Tsalanidis (whose familyis from Greece, now at the Bar).In contrast to the way you were treatedin your youth by many other Australians,you included in this circle of friendsDan Brealey (now a partner at Freehills,Solicitors), a tall Anglo, whom you teasemercilessly on that account, and becausehe had gone to Haileybury College.You valued the experience the four ofyou had in the state school system andyou were all resolved that, when you hadchildren, they would go to state schools.Your eldest son John was the first childin the group. And you were the first tosell out on the idealism and send him toScotch College.12 VICTORIAN BAR NEWS Winter 2008

The others followed suit, and all thechildren of those in the group ended upgoing to private schools.You make and keep friends. Now, morethan 25 years after law school, the five ofyou still get together for dinner at least acouple of times a year.They’re all here today. Indeed, MikeFerraro returned from London earlyin order to be here – and only arrivedin Melbourne early this morning. JuanMartinez also returned early to be here,but only from Sydney.One of your vacation jobs through lawschool was in the office of Chief ParliamentaryCounsel, John Finemore QC.Another of your vacation jobs wasin 1982 as research assistant to GordonLewis at the Law Institute – later JudgeLewis, who was then Secretary of the LawInstitute.This was before you even began articlesor worked in a law firm.Judge Lewis recognized your intellectand extraordinary industry and put youto work on research for what became thebook, Lewis and Kyrou’s Handy Hints onLegal Practice.That book is now in its third Australianedition, with its second South Africanedition forthcoming.You were not only researcher andco-author – you were the businessmanager, and arranged the South Africanpublication.A distinctive feature of Handy Hintsis the flash of humour that begins eachchapter.For example the chapter Instructing inCourt begins with: ‘Lawyers are peoplewho write a 20,000 word document, andcall it a “brief ” ’.The chapter on Learning From Mistakesstarts: ‘Lawyers, unlike doctors, are unableto bury their mistakes’.I have digressed. Let me return to thechronological account. You were at theUniversity.Although enrolled in the pass-degreeCommerce course, you obtained Honoursin all nine Commerce subjects, and wonthe exhibition in six of them.You obtained Honours in all 16 Lawsubjects – the exhibition in 11 of them.You won the Supreme Court Prize, andgraduated Bachelor of Laws with first classHonours, and Bachelor of Commerce.You served articles at Corr & Corr (nowCorrs Chambers Westgarth), and werethere for more than seven years, becominga partner in that firm.You then moved to Mallesons StephenJaques, where you have been a partner forsome 17 years.An impeccable career, made a little nauseatingby the fact that I could not find aperson who could say anything critical ofyou.My hopes did rise when I heard that inyour home you have a very large cellar, butthey were dashed when I learned that it isfull of law books.However, there was one case lost and itwas your fault.It was a case in Sydney and you were tofly up on the morning with Ray Finkelstein(now Justice Finkelstein).He picked you up in his 1960s Daimlervery early in the morning. It was still pitchblack!The Daimler got a flat tyre on the EasternFreeway.Finkelstein didn’t have the tool fortaking off the ornate wheel spinners – soyou called the RACV to change the tyre.An hour went by – you both waited forthe RACV with increasing irritation – andrising panic.You cancelled one flight and re-bookedon a later flight.Finally, Finkelstein in a rage called theRACV only to be told that the man whocalled had said he was on the South-Eastern Freeway and the serviceman wasstill driving up and down looking for you.You finally got there at least in time toreinstate the case and live to fight anotherday.Otherwise, counsel you have briefedspeak only of your high intellect, yourmeticulous care, your thoroughness andyour courtesy. All this promises distinguishedservice as a Judge of this Court.On behalf of the Victorian Bar, I wishyour Honour long and satisfying service.Makers of Fine Legal Regalia• Gowns• Wigs• Wig Stands, Boxes and Tins• Jackets• Jabots• Red and Blue Bags• Ties and Cuff Links2/36-40 New Street,RINGWOOD 3134Phone: (03) 9870 7100Toll Free: 1800 803 584Facsimile: (03) 9870 7199SHOP ONLINE atwww.blashki.com.auFor Jackets and Wigs:Phone for our representative tovisit your ChambersVICTORIAN BAR NEWS Winter 2008 13

WELCOMECounty CourtJudge Paul LacavaAddress by Peter Riordan SC, Chairman of the Victorian Bar Council,on Thursday 5 JuneSo who would have thought? When I saidyou might want to do the next welcome– this is not what I had in mind.I appear on behalf of the VictorianBar to welcome your appointment to thisCourt.You bring to the Court more than 34years experience in the law – 6½ years as asolicitor, then 27½ years as a barrister – ofthose, 7½ years as Senior Counsel.May I say, you also bring integrity; reservewith passion; professional commitmentwith a little life balance.In an age of ever-narrowing specialization,your Honour is in the grand traditionof the all-rounder-silk – appearing oneday in a major criminal trial; and, whenthat’s over, in a major commercial cause;appearing for the prosecution; and for thedefence.Your success has been well deserved,earned through hard work.You were educated in Pascoe Vale at theBlessed Oliver Plunkett Primary School,then at St Joseph’s CBC North Melbourne.St Joseph’s has produced its share ofeminent judges, including Sir JamesGobbo (who served some 16 years onthe Supreme Court), recently retiredJudge Len Ostrowski (who served nearly24 years on this Court) and Justice PaulCoghlan (appointed to the Supreme Courtlast year).By all accounts you were a hard-workingstudent at Melbourne University LawSchool and served articles with MichaelRoet of Herbert Geer & Rundle.After admission in March 1974, youremained with the firm, and became apartner there.In your professional life you have alwaysbeen one to get quietly on with the job.Early in your career you demonstrated thisattribute in a different context. In fact youwere downright sneaky.While at Herbert Geer & Rundle youstruck up a relationship with the attractiveyoung secretary to one of your partners,Graham Robertson. Neither Graham noranybody else at the firm knew what youwere up to – until you announced yourengagement to Anna – now your wife ofalmost 30 years.Your decision to come to the Bar musthave been driven by a desire to be able toexpress yourself to somebody preparedto listen. This was obviously never aphenomenon of your home life becauseyou have always been subject to femaledomination.Growing up, you were the middle childbetween two sisters, and with Anna youhave had four gorgeous daughters – whomI am told play you on a break and aboutwhom, Frank Costigan says, you speakwith ‘the kind of warmth that only anunbiased father has’.However, the precipitating event thatled you to chance your arm at the Bar wasapparently a conference in Hawaii. It was afamily law conference (I knew you had abroad practice but I didn’t know it extendedto family law). Anyway, at the Hawaii conferencethere were the usual hard-workingrecognized family law barristers like JeffSher, Bill Gillard and Glen Waldron.I am not sure what they told you aboutthe similarities between life in Hawaii andlife at the Bar but you were converted. Youarranged for Roger Gillard, another ofthose hard-working family law barristersat the conference, to be your Master andyou came to the Bar in October 1980.You established a remarkably broadgeneral practice in crime, including murderand complex fraud; in commercialcauses, arbitrations and appeals, andlengthy building disputes; as counselassisting, and representing witnesses, ininquiries by corporate regulators – mostrecently, of course, in the Cole RoyalCommission into payments made to theAustralian Wheat Board under the Oil ForFood program conducted by the UN.The Cole Commission was a challengingbrief and the Commissioner did not makelife easy for you. It was suggested thatyour client was involved in some largishinducements to the former Iraqi regime.You must have been working very hard and14 VICTORIAN BAR NEWS Winter 2008

not watching much television because youdid not recognize the team from Chaser’sWar on Everything when they accostedyou as you left the Court at a luncheonadjournment. You described the incidentto the Commissioner after lunch as follows– I read from the transcript.As we were leaving the building just afterthe luncheon adjournment, the mediawere filming my client and myself and myjunior – we don’t make any complaintabout that…save for this: there was aperson who apparently has some sort ofvendetta against the AWB who presentedhimself in the doorway downstairs, thrusthimself in front of the cameras, andbetween the cameras and our client, to theextent that he was within two to threeinches of his face, asking our client to signa very large cheque – when I say ‘large’,about three feet wide – that was madeout for many hundreds of millions ofdollars, so that this person could send it toSaddam Hussein.It’s not only your daughters and the Chaserwho can pull the wool over your eyes. Onepre-season, you noticed a large scar on theback of the leg of one of the North Old Boysplayers (who is nicknamed ‘Jex’ because ofhis tight curly ‘afro’ hairstyle). Anyway,you enquired about the scar. The responsefrom Jex was that he had had a hamstringtransplant over the summer. It will warmthe hearts of the Plaintiff Personal InjuryBar that you accepted without questionthat hamstring transplants were possible.Opponents have had less luck in pullingthe wool over your eyes. In 2000, justbefore taking silk, you teamed up withyour good friend Doug Meagher in theSeal Rocks arbitration to give your newemployer a terrible thumping.You have the distinction of appearing(with Uren QC) in the last Victorianappeal to the Privy Council, MontanaHotels v Fasson in 1986.You and the other counsel in that caseenjoyed the personal hospitality of LordBridge in his London flat, and there got tomeet other members of the Privy Council.In the 7½ years since taking silk, youmaintained the extraordinary breadth ofyour practice.Those who had the privilege of workingwith you as your junior gained immenselyfrom the association, and from your ongoingfriendship and willingness to shareyour knowledge and experience.Your service to the Bar has been outstanding.You come to the Bench from nearlyfour years on the Bar Council, the last twoof those years as Junior and then Senior,Vice-Chairman.You have been a tower of strength,through some difficult times; and youhave always ended up with the tough jobs.As Senior Vice-Chairman, you were thepresumptive successor to the chairmanship– and, much as we delighted in yourappointment to this Court, the Bar willsadly miss your leadership, your commitment;and your steady hand.You served ten years on the EthicsCommittee – the most important andonerous committee work at the Bar – andyou were Chairman of that Committeefor the last two of those years.You also served on the ApplicationsReview Committee; the Equality Beforethe Law Committee and a bucket load ofothers. You have undertaken the constructionof the Bar Care Scheme.You have always worked with LegalAid. You did so as a solicitor – as we’ll nodoubt hear from Mr Burke. You did so ascounsel.You were briefed to represent VLAitself in a number of cases in which theapplication of the Dietrich Principles insection 360A of the Victorian Crimes Actwere hammered out.To your substantial cost, you haveaccepted briefs to represent legally aidedclients – most recently in R v Matthey – thecase of a woman charged with the murderof four of her five children.No jury was ever empanelled because,after you successfully submitted to the trialjudge that the inadmissible expert evidenceshould be excluded, the presentment wasnot proceeded with.Your junior in that case was FrankGucciardo. He apparently was excellent.– they should make him a judge one day.The Senior Counsel Legal Aid Scheme,on which you’ve worked closely with VLAManaging Director Tony Parsons for abouta year, is close to opening in final, polishedform.This is a modern revival of the traditionof silks committing to take one criminalLegal Aid brief a year at junior rates, witha criminal law junior.FORTHCOMINGINTERNATIONALCONFERENCEChildren and the Law:International approachesto children and theirvulnerabilitiesPrato, Tuscany,7–10 September 2009In one stroke, the silks who enrol in thisprogram will be serving the community;the juniors will have the experience ofworking with the silks; and legally aidedclients will have the benefit of being representedby a silk with junior.There are many instances I could quoteof your adherence to principle but I willrelate only one.There is much talk about the IndependentBar and the cab-rank rule at Bar dinners;but you have walked the walk.One authority for which you did asubstantial amount of prosecution worklearned that you had accepted a defencebrief and demanded that it be returned.You explained your obligations under thecab-rank rule, and the importance of thatprinciple and the place of the independentBar in the administration of justice.Suffice it to say that, following discussionwith the authority, you honoured yourobligations in place of your personal interests– and, as requested, you returnedall prosecutorial briefs you were thenholding.Your Honour is principled, courageousand independent. You will be a greatJudge.On behalf of the Victorian Bar, I wishyour Honour long and satisfying service asa Judge of this Court.On a personal note, I want to thank youfor your support and say it has been anhonour to work with you – and we musthave that game of golf.VICTORIAN BAR NEWS Winter 2008 15

WELCOMECounty CourtJudge Jane PatrickAddress by Peter Riordan SC, Chairman of the Victorian Bar Council,on Friday 2 May 2008I appear on behalf of the Victorian Barto welcome your Honour’s appointment tothis Court.Your Honour has served as a VictorianMagistrate for more than eight years.You have been an outstanding Magistrate.Only in November last year, you wereassigned to be the Regional Co-ordinatingMagistrate of the new Moorabbin JusticeCentre.You bring eight years of valuable experienceas a Magistrate to your role as a Judgeon this Court.You went to school at Firbank, and toLaw School at the University of Melbourne.After completing your degree you beganarticles; but the law, which had so engagedyou at the University, became oppressivelydreary – at least in those articles – so muchso that you decided that you would changeto a caring profession as a teacher.You completed a Dip. Ed. and thentaught General Studies and History toadolescent boys at the Watsonia TechnicalSchool.A noble endeavour, to be sure – but eventhe dreariest conveyancing must havelooked good when you were trying toimpart the delights of humanities to theWatsonsia Tech boys.In any event, you then moved to Sydneyand Canberra for about ten years.By the time you returned in 1985 you hadthree fine daughters: Narida, Marion andGeorgina.You started tutoring in the EconomicsDepartment of Latrobe University in early1985.You soon won appointment as a tutor,in the Law School of the University ofMelbourne; and then promotion to seniortutor.You tutored in, among other things,criminal law and torts.While tutoring there, you met anEnglishman, Robert Evans. His fields ofparticular interest and expertise werejurisprudence and contracts.Such is the perversity of academicbureaucracy that, given he had those interests,he was of course assigned to criminallaw and torts.He says he learned a lot about criminallaw from you.You must be an absolutely fascinatingcriminal law teacher because not onlyhas Robert become one of the principalcriminal law teachers at Melbourne; buthe is present in the jury box today as yourhusband.Chief Magistrate Ian Gray describedyou as ‘a hard worker, an engaging and asometimes “feisty” presence, and a goodcolleague all round.’I am told that, before leaving MelbourneUni, you led the tutors’ revolt which playeda part in bringing down the then Dean ofthe Melbourne Law School.Plainly your Honour should not beunderestimated. However, that was morethan 20 years ago.You must have mellowed because at leastwhen you moved from the Magistrates’Court, you left Ian Gray still in place asChief Magistrate.You left the Law School in May 1988and this time completed your articles.You also completed work for the Masterof Laws degree at Melbourne that year.You were admitted to practice in July1989.You worked as a solicitor in the Melbourneoffice of the CommonwealthDirector of Public Prosecutions, and thenin the Victorian Equal Opportunity Commission.You came to the Bar in May 1995. Youread with Ramon Lopez.Lopez recognized your aptitude for theBar and its traditions very early in yourreading – when you produced two crystalglasses, engraved ‘his’ and ‘hers’ for theafter-work drop of scotch.You enlivened your Readers’ Course.You, John Buxton and Gerry Butcher wereknown as the Three Musketeers. Of all theReaders’ Course photos, your class has thebroadest smiles, and yours is the only photoin which everyone has a glass in hand.You established a strong practice at theBar, mainly in equal opportunity, employmentlaw and crime.No surprises there. As to crime, not onlyhad you tutored in crime and been withthe Commonwealth DPP, but your reading16 VICTORIAN BAR NEWS Winter 2008

with Lopez was on the fifth floor of OwenDixon East – and you yourself were able toget chambers on that floor.This was the floor of some outstandingcriminal barristers including: Chris Dane,Geoff Flatman, Bob Kent, Betty King,Lillian Lieder, Remy Vanderwiel andMichelle Williams – in alphabetical order,of course.You appeared before the Equal OpportunityCommission, the Anti-DiscriminationTribunal, the Australian IndustrialRelations Commission and in the Magistrates’,County and Supreme Courts.In keeping with your reputation as awoman not to be underestimated, youappeared for the Commonwealth in amedifraud prosecution. Your opening linebefore commencing what turned out to bea particularly rigorous cross-examinationof the accused was: ‘Now doctor, this won’thurt a bit’.At the Bar, you served two years on theBar Human Rights Committee and twoyears on the Committee of the WomenBarristers Association.For the whole of your five years at theBar, you were a Victorian Bar Conciliatorfor sexual harassment and vilification.In 1998 you were appointed a Conciliatorunder the Legal Practice Act 1996 forcomplaints against legal practitioners.You were appointed to the Magistrates’Court in January 2000.You were, as a Magistrate, fair, just andcourageous. You were always well-preparedand thorough. You did the hard yards,delivering written reasons in appropriatecivil cases.I am told by one of your fellow readers,who has appeared before you that you are‘mostly tolerant of members of the Bar’.On behalf of the Victorian Bar, I wishyour Honour long and satisfying service asa Judge of this Court.WELCOMECounty CourtJudge Peter WischusenAddress by Peter Riordan SC, Chairman of the Victorian Bar Council,on Thursday 1 May 2008I appear on behalf of the Victorian Barto welcome your Honour’s appointment tothis court.Your Honour has been at the Bar 27years. You have long been one of the leadingbarristers in the accident compensationjurisdiction.Your appointment adds to the alreadyformidable strength of this Court in thatarea.You went to school at St Patrick’s Wangaratta,St Mary’s Bendigo, Bendigo Highand Wattle Park High.To avoid any misunderstanding, Ishould say that these frequent changes ofschool were not the result of the schools’dissatisfaction with you, but rather yourfamily’s moves.You graduated in Economics and Lawfrom Monash University.Monash Uni in the 70s – I was sure thatthere would be some good dirt there. Butyour Honour has good friends; or else theyjust can’t remember the 70s.There is a story of a VW Beetle chockfull of Monash Uni students pulled up lateat night by the police. There was a strongsmell of alcohol and the police had nodoubt that they were about to lay a drinkdriving charge. But as the VW expellednumerous students, which one was thedriver was not so clear. You stepped forward,declared yourself the driver (tothe surprise of some) and, to the amazementof the constabulary, passed thebreathalyser test with flying colours.You served articles with Michael Stewartof Godfrey Stewart, Frank Curtain & Co.You signed the Bar Roll in March 1981and read with David Blackburn, nowretired.Your first accommodation out of readingwas in Tait Chambers. You and BrianMcCullough shared chambers and, inVICTORIAN BAR NEWS Winter 2008 17

fact, a telephone until you gerried up afunctional split so you each had a line (ofsorts).You began in the old fashioned way withthe usual variety of briefs in the Magistrates’Court.You have, however, for many years nowspecialized in compensation cases.Michael O’Loghlen QC, with whom youoften appeared in cases, recalls two notablecases in which you obtained outcomesthat so startled the Victorian WorkCoverAuthority that it persuaded the Governmentto amend the Act.The first case is so well known that it isreferred to, universally, as Hegedis.One lunchtime, the unfortunate MrHegedis was relaxing in his employer’samenities room and peeling an apple witha knife. He somehow cut his hand.There was no doubt that Mr. Hegedis wasin the course of his employment at thetime – but:• the apple was his apple;• the knife was his knife;• he wounded himself; and• no employment activity caused theaccident.Though not serious, the wound requiredminor surgery; but WorkCover refused tocover the cost of that surgery, arguing thatMr Hegedis had not suffered ‘injury’within the meaning of the Accident CompensationAct because his employment wasnot a significant contributing factor to hisinjury.The Magistrate agreed.However, you successfully appealed tothe Supreme Court; and held it in theCourt of Appeal; and again in the HighCourt.The wider implications horrified Work-Cover. It persuaded the Government toamend the Act in 2003, so as to requirethe employment to amount to a significantcontributing factor to a large array of injuriesand diseases.However, even today, people who sufferfrom accidental traumatic injuries at workenjoy a statutory entitlement to WorkCovercompensation, and the outcome in Hegedisis responsible for that entitlement.The second case, is not so well known:VWA v Syrad in 2003.The plaintiff worker had been badlydisfigured by multiple acid burns in anexplosion at his workplace.WorkCover obtained reports fromseveral independent medical specialists,who conducted independent medicalexaminations. Each assessed an 85% impairment.WorkCover took issue with one of theindependent assessments, and sought whatit called ‘clarification’ from one of thosemedical specialists.Prompted by Workcover, that specialistreduced the assessment to 57%.You argued that the original assessmentof 85% should stand, given that it wasbased on independent examinations andassessments; and should be accepted overthe later assessment prompted by Work-Cover.Her Honour Judge Lewitan agreed, asdid the Court of Appeal.WorkCover was so spooked by thenotion of being bound by independentmedical assessments that it procuredamendments to the Act in 2004, the effectof which was to install the VWA as theultimate repository of medical knowledge.Your wife, Ann McMahon, is also atthe Bar.She specializes in Commonwealth workerscompensation in the CommonwealthAdministrative Appeals Tribunal and theFederal Court.It was not long after Ann came to the Barthat you bought a house in North Fitzroy,just around the corner from then JusticeMerkel and soon-to-become JusticesBuchanan, Warren, Whelan and Morgan.It’s taken a little longer for that salubriousaddress to work for you, but here you aretoday.The house was, in fact, nearly your undoing.One day you were pruning the ivycover on the brick wall surrounding yourswimming pool.Somehow, the legs of your ladder slippedinto the pool – taking you, with your electricpruning shears in hand, with it. Fortunately,the ladder stuck firm with abouta foot to spare before you would havebecome the subject of an experiment intothe conductivity of chlorinated water.You are a devoted husband and father toyour wife and two daughters.You are an exceptionally good recreationalswimmer and snow-skier and a keengolfer.I’m told that next year will be yourtenth year in the Pier to Perignon Swim atPortsea, in which you always do well.And you are a founding member of theAardvark Ski Lodge at Mount Hotham.You are, as I’ve said, a leading advocatein your field of accident compensation;and have been for many years; and the Barhas no doubt that you will make a greataddition to the Court.On behalf of the Victorian Bar, I wishyour Honour long and satisfying serviceas a Judge of this Court.Building a new homeor investment property?Our Building and Constructionteam can assist with …• Building project advice• New home and renovation contracts• Building disputes – domesticand commercial• Off the plan sales advice• Warranty insurance disputesBuilding and Construction Team03 9321 7836awhitelaw@rigbycooke.com.auLevel 13, 469 La Trobe StreetMelbourne VIC 3000 Australiawww.rigbycooke.com.au18 VICTORIAN BAR NEWS Winter 2008

OBITUARYDouglas Graham QCDouglas Graham, born on 25 August 1939,died at Cabrini Hospital on 16 April 2008.At the time, he was in private practice atthe Bar, to which he had returned in 2003after ten years as Solicitor-General ofVictoria.Upon Douglas’s death, the VictorianBar Council posted this obituary on itswebsite:It is with deep regret that the Bar Councilinforms members of the Bar of the deathtoday of Douglas Graham QC.Douglas Graham graduated with anHonours Law Degree from the Universityof Melbourne and served articles withRobin Elder of Madden Butler Elder &Graham. He was Associate to the RightHonourable Sir Victor Windeyer of theHigh Court. He signed the Bar Roll inOctober 1964, and read with Peter Brusey.In 1966, shortly after coming to the Bar,he became Assistant Honorary Secretaryand then Honorary Secretary for a total ofsome five years. He and Chief JusticeMichael Black were the first two barristerselected to the Bar Council in the newlycreated category of counsel of less than sixyears’ standing. He served on the Councilfor six years – three years as a junior andthree after taking silk, and as Vice-Chairman.Douglas Graham did important BarCouncil Committee work. He chaired theFees Committee, the Rules and ConductCommittee and the Law Reform Committee.He served on the Ethics Committee.He served on the Chief Justice’s SupremeCourt Library Committee for 17 years.He had a distinguished career at the Barfor more than 43 years, appearing beforethe Privy Council as a junior. He took silkin November 1978 and was Solicitor-General for Victoria for ten years (1992–2002), then returning to practice at theBar.Since then, The Honourable Clive TadgellAO QC has written a fine obituary forpublication in The Age. Those two obituariescover admirably Douglas’s professionalcareer and some of his personal life. Toavoid undue repetition, Sally, Douglas’swife, asked me to write this obituary fromthe different point of view of a friend andcolleague of Douglas, who made a startwith him at the Bar in 1964. In fact, tellingof Douglas in his early Bar years tells muchof Douglas when, long afterwards, asSolicitor-General, he was at its very head.Constancy was one of Douglas’s virtues.So many of Douglas’s predilections werelifelong. From student days, Douglas lovedJaguar cars. There was an interlude in thispleasure, however, while he was Solicitor-General. An officious department messagerequired him to suspend driving his Jaguarto work and to use his issue Toyota. Whenhe set up his first chambers, Douglas procureda redoubtable polished wood desk.Typically, despite the advent of computersand changing fashions, Douglas retained itas his working desk throughout his career.Douglas always enjoyed golf and had aneat swing. In recent years, a dodgy kneeforced him out of the game but it did notobstruct his enjoyment of his lifelong lovesof listening to music, playing bridge andwatching cricket and football.In 1965, Douglas, Patrick Pender (also aJaguar driver) and I secured our firstchambers, beside one another, high on thefront of Owen Dixon Chambers (longbefore designating them as ‘East’ was necessary).Douglas was a congenial neighbourand the three of us enjoyed warmcompanionship. Douglas was plainly cutout for the Bar, not only intellectually butthrough his deep appreciation of the collegialitythat it offered. This appreciationalso was a constant for the rest of his life.Douglas was a regular at lunch in theOwen Dixon dining room and enjoyed thecompany he found there and in chambersgenerally. He missed this Bar companionshipwhile Solicitor-General, when he waslocated at the eastern end of the city.In 1966, Douglas undertook the task ofbeing the Bar’s Assistant Honorary Secretaryand then Honorary Secretary. Quitetypically, he managed these roles withefficiency and without fuss. In the contextof the Bar today, it is difficult to appreciatethe unselfishness and scope of his contribution.At that time, apart from the loyalMiss Brennan, there was nothing of theadministrative support that the Bar hastoday.The chambers Douglas set up weredignified, well bookshelved and soft tosole and seat. Clients entering Douglas’sroom would have found a courteous man,conservatively dressed, in whom a fusionof modesty and confidence projected (untilsomething tickled his sense of humour)an air of reserve. In the setting of thatroom, with the Supreme Court cupola asa background for Douglas as he sat at hisdesk, his clients would have felt confidentthat they were in safe hands.Douglas was industrious and workedneatly, usually with his jacket on, and withoutmaking a hoo-hah about any workVICTORIAN BAR NEWS Winter 2008 19

urden. Mr Ron Beazley, the former GovernmentSolicitor, remarked upon thisquality at Douglas’s farewell as Solicitor-General. Referring to the ultra-urgencyand difficulty of work for the transfer byVictoria of industrial powers to the Commonwealth,he said: ‘As always, Douglasworked at his best under extreme pressureand notwithstanding the importance ofthe issues and the size of the task, the jobwas done within the required time frame.’From the start, Douglas never showedanxiety about whether work would comein. His confidence was justified. It wasnot all that long before tapes on the briefson his desk included, among the red, anincreasing number of white-taped Crownbriefs on questions of law for advice orargument. There was ribbing (prescient,as it turned out) that he was ‘marked out’by the Crown for big things. Douglasmust have been pleased with the way hispractice was developing but gave no signof pride about it. Even at a time when hewas receiving work interesting enoughto make any junior excited, Douglas wasnever one to brag.There was one occasion, however, whenDouglas did talk about a brief that hadcome in at the last minute from his clerk.He mentioned after lunch one day thathe had just been asked to appear beforea Master in an adoption. He spoke morewith puzzlement than anything else. Noneof us had ever heard of a barrister beforea Master concerning an adoption. Sureenough, solicitor and female client soonappeared in the foyer, the woman carryinga baby. Not long afterwards, the littlegroup emerged from Douglas’s chambersand went down in the lift. Below, one sawthe party emerge from the building andcommence to cross William Street but, bythen, the baby had changed hands and itwas Douglas who was carrying the baby.Long after, if teased about his ‘control’ asa junior of the ‘Undefended AdoptionList’, Douglas could share the joke.Douglas had a wonderful, dry sense ofhumour and a warm chuckle to go with it.It is said that, having just taken silk and hisnew robe not yet ready, John Winneke hadto borrow a silk robe from the diminutiveNeil Forsyth QC for the silks’ inductionceremony. Given John’s height, there wasan obvious problem with sizing. Goingdown in the lift for the ceremony, John wasunfortunate enough to run into Douglas,who glanced across and said: ‘What areyou wearing Winneke? A mini skirt?’Douglas’s sense of humour apparentlybriefly deserted him, improbable as theoccasion may seem, while he was beingadmitted to practise in the AustralianCapital Territory. Douglas’s admission fellto being moved by the junior solicitor whohad handled the paperwork necessaryin those days. On the morning of theadmission hearing, the solicitor enquiredof the senior litigation partner about theform of words he should use to movethe motion. The partner, not knowingDouglas and assuming that Douglas hada middle name of some sort, recited thestandard formula, commencing: ‘I appearto move that Douglas, er, Quincy Grahambe admitted to practise…’At the admission, sitting in the seat behindthe moving solicitor, Douglas was tohear the solicitor say, on cue: ‘I appear tomove that Douglas Quincy Graham be admitted…’. Apparently, Douglas Graham(no ‘Quincy’) had a distinctly odd look onhis face as he rose to make his bow.A high peak of Douglas’s career as a juniorwas the brief for BP Refinery (Westernport)Pty Ltd in the 1977 legal proceedingsbetween it and the Shire of Hastings. ThePrivy Council decision included the identificationof five indicia for the implicationof contractual terms. The indicia have beenfamiliar to lawyers ever since. A few yearsago, Douglas recounted to me a remarkabletale about the lead-up to that case, theway the five indicia came into being, andof events at the hearing before the PrivyCouncil itself. Thinking that it was a pieceof legal history that should not be lost, Imade a record of what he told me andshowed it to Douglas who confirmed itsaccuracy. What follows is based on thatrecord.The matter was heard first in the CountyCourt and then, on a case stated, by theFull Court of the Supreme Court. TheFull Court unanimously found an impliedterm contended for by the Shire. In boththose hearings, Keith Aiken QC withDouglas as junior represented BP. Thequestion was where should BP choose asits venue for an appeal. There were threepossibilities: the High Court of Australia,the Privy Council, or arbitration pursuantto a relevant statutory provision. SinceBP was an English company, the PrivyCouncil was selected and leave to appealwas successfully sought in the Full Court.Before the appeal could be heard, AikenQC was appointed a justice of the HighCourt of Australia, and Brian Shaw QCwas briefed to lead Douglas in the PrivyCouncil.In London preparing for the appeal,Pen City20 VICTORIAN BAR NEWS Winter 2008

one evening before the fire after dinner atBrian Shaw’s flat, Brian Shaw and Douglasprepared a list of five conditions whichthey would submit had to be satisfied tofind an implied term.The case commenced inauspiciously forBP. The hearing began on 25 April 1977– Anzac Day. Just after eleven o’clock.Brian Shaw stood up to commence hissubmissions on behalf of the appellant. Ashe did so, the ominous sound of a bugleplaying The Last Post in could be heardfrom an Anzac ceremony at the nearbycenotaph in Whitehall.At lunchtime on the first day, LordSimon ‘meandered down from the dais’ tospeak to junior counsel for the respondent,John Winneke. The ageing Lord Simon,then frail after a stroke, had formerly beenthe United Kingdom Solicitor-General.John’s father, Sir Henry Winneke, hadformerly been Victorian Solicitor-Generaland was, at that time, Governor of Victoria.In a wavering voice, Lord Simon saidto Winneke: ‘I used to know your fatherwhen he was Solicitor-General. I believethat now he is the Governor of the colony.’As it happened, John’s leader was Sir JamesGobbo, who, himself, was later to becomeGovernor of ‘the colony.’At the commencement of the secondday of the hearing, Lord Wilberforce (whowrote the minority dissenting judgment),suggested to the appellants that they mighthave been better off if they had chosen toappeal by way of arbitration, rather than tothe Privy Council. It was another bad startto the day.In mid-morning on the second day, thecase took a more benign turn for BP. In thecourse of argument, Viscount Dilhornesuggested to Brian Shaw that there mightbe properly found in the contract a differentimplied term. The term he suggestedwould have the effect of solving BP’sproblem. In fact, BP’s legal representativeshad previously considered the possibilityof successfully contending for such a term.Both counsel and solicitors had rejected itas ‘utterly hopeless’.The picture changed, however, as a resultof Viscount Dilhorne’s suggestion. Giventhe earlier reservations, Shaw was reluctantat first to put the point. There was discussionas to whether Douglas would put itwhen, according to Privy Council practice,he made his submissions as junior counsel.Ultimately, Shaw put the argument suggested,although he did so as an ‘alternativesubmission’. It was this ‘alternative submission’that won the appeal, in a three to twomajority decision: BP Refinery (Westernport)Pty Limited v The Shire of Hastings(1977) 180 CLR 266.In his dissenting judgment, LordWilberforce was scathing about this argumentsuggested from the Bench which hesaid: ‘had never been formulated in writingand has assumed a “protean” character’.Among other criticisms, he said that it‘was not put forward in either court below,nor taken or hinted at in the appellant’sprinted case’.In the course of his earlier submissions,Brian Shaw had put the five conditionsthat he and Douglas had nutted out beforethe fire. They attracted no particular attentionduring the hearing, although Douglasrecalled their being noted by at least onemember of the panel. It was with amazementthat Douglas read the conditionsrepeated almost verbatim in the reasons:at p. 283.Altogether in the various hearings, ninejudges heard the matter. Of those nine, six(including two in the Privy Council) heldagainst BP, and, three, the critical three,held in its favour.Douglas has left behind Sally, whom hemarried on 16 January 1969. It was a sunnywedding day with the reception held in thegarden of his parents’ house. In one of herseven published books, The Card-CarryingCook, Sally wrote: ‘I didn’t actually meetmy future husband at the bridge table but Icertainly got to know him there. A yearor so of weekly bridge gave me time toobserve an admirable sense of humour,patience and good manners’.Sally and Douglas shared much, particularly,according to Sally, sheer fun. Fromearliest days, they travelled the worldwidely, but especially to visit Sally’s parentsin her original homeland, England. Theyenjoyed their Portsea holiday house withits wicket gate on to the course of theSorrento Golf Club. On the bay, the familyplayed about in their motorboat, Euphoria,so named by Sally ‘for its feeling offalse buoyancy’.Sally and Douglas had two children,Amanda and Virginia, who both live inMelbourne. Amanda has followed herfather into the law. They had a fair andloving father whose judgment in familymatters was as sound as in the law.Douglas was diagnosed with leukaemiain January 2007. The ravages of the diseaseeventually brought a weakening of Douglas’sresistance and a series of crises whichDouglas bore with bravery and stoicismuntil the end.Vale, Douglas Graham.DAVID BENNETTC O R P O R A T I O N S L A W E M P O W E R S C A N B E R R A T H E A B O R T I O N D E B A T E C A U S A T I O N A N D B R E A C H O F D U T Y O F C A R EI N A T E A G U E O F H I S O W N B A N K C H E Q U E S N O T A S S O L I D A S E X P E C T E D C L A I M I N G M I G R A N T S ’ S A L A R Y R I G H T S O F F E R S O FC O M P R O M I S E I N C L A S S AC T I O N S O P E N I N G O F T H E 2 0 0 8 L E G A L Y E A R E N D - O F - L I F E D E C I S I O N M A K I N G A N D T H E C U R R E N T L AWMARCH 2008 PP349018/00013 ISSN 0023-9267LIJ 82.03 MY DATA MY IDENTITY: PRIVACY LAWS UNDE REVIEWINFORMATION FOR LAWYERSMY DATAMY IDENTITYPRIVACY LAWS UNDER REVIEWRRP $20www.liv.asn.au/lijMARCH 2008w w w.liv.asn.au/lij13/02/2008 8:22:12 PMSubscribe to the Law Institute JournalYou are currently reading one of thetwo best legal publications in Australia –the other is the Law Institute Journal (LIJ).The LIJ is the of cial publication of the Law Instituteof Victoria and is mailed monthly to more than13,600 members of the legal profession,including judges, solicitors, barristers, law librariesand allied professionals.Its comprehensive coverage of the latestdevelopments for lawyers includes articles byexperts on speci c areas of practice, summariesof judgments, practice notes, I.T., ethics, bookand website reviews.The LIJ has won many awards, includingat the Melbourne Press Club Quills andthe VLF Legal Reporting Awards.An annualsubscription costs$167 (incl.GST)Your subscription also gives you access to thepassword-protected online LIJ archive.To subscribe, call LIJ Subscriptions Of cerMarese Farrelly on (03) 9607 9337or email mfarrelly@liv.asn.auor download a form fromwww.liv.asn.au/journal/forms/lijsubscribe.html.SubBarNews_Mar08.indd 119/02/2008 2:12:22 PMVICTORIAN BAR NEWS Winter 2008 21

OBITUARYCharles SweeneyCharles Augustine Sweeney (Sweeney),who died on 22 December 2007, adornedthe Victorian Bar in a period when the Barwas replete with great advocates, appearingbefore strong and distinguished judges.Sweeney was born in Tasmania on 27April 1915. He was educated in Melbourne,finishing his schooling at St Kevin’s College,Victoria Parade. He graduated fromMelbourne University with Honours inArts and Law and later completed a Masterof Arts. He was President of the NewmanCollege Students Club, captained theCollege First 18 and played for UniversityBlues. He was an Australian ChampionHandballer, a competent golfer, and in latertimes a keen bowler and bridge player. Thisincomplete list of his early achievementspresaged a most distinguished career in thelaw.Sweeney did articles with Oswald Burtand then joined the Bar in 1939. He readwith J V Barry, later the renowned JusticeBarry of the Supreme Court. He veryquickly had a burgeoning practice, whichwas interrupted by the Second World War.In 1942 Sweeney joined the Royal NavalVolunteer Reserve and served as an Officeruntil 1945.On 21 October 1944 Sweeney was onboard HMAS Australia in the battle ofLeyte Gulf. The Australia was the firstallied ship to be hit by a kamikaze (‘divinewind’) attack. An unknown pilot flew hisplane into the ship’s superstructure abovethe bridge, spraying burning fuel anddebris over a large area. Captain EmileDechaineux and 30 other seamen died and64 were injured. Fortunately for Sweeneyand other crew members, a 200 kg bombfailed to explode. Had it done so the shipwould have been effectively destroyed.In later years Sweeney told of the chaos ofaccompanying the wounded CommanderCollins in a launch across choppy seas toHMAS Shropshire, as the battle continuedto rage all around.When Sweeney returned from theWar, in December 1945 he married BettyNeed and enjoyed a loving and fruitfulmarriage. He is survived by his wife andfour children, Charles QC (a member ofthis Bar), Catherine (Walter) a solicitor,and William and Francis, both doctors.Sweeney returned to the Bar and quicklybecame and remained an outstanding advocate.He developed a large all-roundpractice including common law, (particularlyin running down cases), the LicensingCourt, and appearing before the AustralianBroadcasting Control Board for the theneagerly sought after television licences.Of the many leading cases in whichSweeney appeared, there was none morenotable than R v Jenkins (ex parte Morrison)1949 VR 277 (The Whose Baby Case).On 22nd June 1945 Mrs Jenkins andMrs Morrison had each given birth to afemale child in the same room at KynetonHospital within five to ten minutes ofeach other. Mrs Morrison alleged thatshe was given the child (Nola) to whichMrs Jenkins gave birth, and that her child(Johanne) was given to Mrs Jenkins. Aboutfour years later Mrs Morrison sought a writof habeas corpus to have Nola delivered toher and her husband. Jack Galbally (forthe Morrisons) briefed Sweeney led by RV Monahan KC and Bernard Nolan (forthe Jenkins) briefed E Hudson QC and HWinneke.The matter came before Barry J (assistedby assessor Dr H D Morgan). He foundfor the Morrisons, and the case then wenton Appeal to the Full Court (Herring CJ,Lowe and Fullagar JS) who reversed thedecision.The Morrisons then unsuccessfullyappealed by Special Leave to the HighCourt (Rich, Dixon and Webb JJ, in dissentLatham CJ and McTiernan J). The reportrecords thatSweeney (with him R V Monahan KC)presented the argument for the Appellants,and Monahan the reply.The saga continued. An Applicationfor Leave to Appeal was made to thePrivy Council. In Whose Baby (Duck andThomas 1984) there appearsJack Galbally was questioned…about thepossibility of a further Appeal to the PrivyCouncil in London. He said ‘If Mrs Morrisoncould walk to London I would haveno doubt she would start this afternoon’.He said ‘There is only one thing that isstopping her, money’.This was overcome.To that time Sweeney and the othershad acted pro bono. When Galbally andSweeney flew to London ‘both of them hadpaid their own fares’.Garfield Barwick KC happened to be inLondon for the Bank case, and he wasbriefed to lead Sweeney. Allan Taylor KC,(also there for the Bank case) with himElse Rae-Mitchell were the opposition.The Privy Council, after hearing argument,took just twenty minutes to deny Leave toAppeal.22 VICTORIAN BAR NEWS Winter 2008

Some months later Barwick wrote toBarry sayingMay I with very great respect, be permittedto say how well your Judgment readand how convincing and entirely satisfactoryto my mind it appeared.Barry’s biographer writes of his great disappointmentand concern at the appellatedecisions. Sweeney was of the same view.Sweeney took silk on 21 May 1955. Hispractice as a leader was wide and extensive.He was a brilliant advocate, urbane, concise,always imperturbable, and a most incisivecross-examiner.This was demonstrated in many jurisdictionsincluding the Licensing Court.Post-war legislation, having removed thenumerical limitation on liquor licences,opened the floodgates of applications.These were pursued by a formidable Bar,including, R V Monahan QC, J P BourkeQC, J O’Driscoll QC, Don Campbell QCand of course Sweeney. The LicensingCourt, chaired by Judge Archie Fraserwith Magistrates Frank Field and RonAtchison, was often a stressful Tribunal toappear before, particularly when the Judgewas ‘in form’. In that milieu the coolnessand cogency of Sweeney was outstanding.Thus when, with typical derision, the Judgeattacked the financial standing of Sweeney’sclient saying:There’s hardly enough in this balance sheetto pay your fees.Sweeney replied:I would be obliged if your Honour wouldnot distract me with such doleful comments.Sweeney was a courageous, competitive,but always cool advocate, of whichcoolness Kevin Anderson (later Sir Kevin)remarked:I have no doubt that behind those paleblue eyes there burns coals of fire.Likewise in Fossil in the SandstoneAnderson writes of Sweeney appearingbefore a Board empowered to award TelevisionLicences, of which it was said,‘ thesuccessful applicant has a licence to printmoney’.It was the practice of the Board to requirethe lodgement of a case, and the Boardwas ‘reluctant to allow alterations to thecontents of a case’, except as to minordetails, and any application to modifyone’s case was furiously opposed by all theother applicants.Ten minutes before lunch Sweeney wasasked whether he would prefer to commencehis case after lunch. Sweeney said:I have no objection to starting now. I donot propose to make any opening address.Perhaps the formalities can be attendedto before lunch, if I call my main witnessand he can verify our case.‘Very well,’ said the Chairman.Sweeney thereupon called the secretaryof his client company who, having beensworn, verified the volume which was thecase. By now, the exodus from the Boardroomwas starting, papers were beinggathered up, and Counsel were strollingout, with no one bothering about whatwas happening.‘Now witness,’ said Sweeney unperturbedby the dwindling audience. ‘Forpages 7 to 21 do you substitute the pagesI now hand you’.‘Yes,’ said the witness.The same procedure was followedsmoothly for very many of the other pagesof the original case…which were admittedas part of his client’s case without objection,nobody appreciating that what wasbeing done was virtually the presentationof a new case.After lunch all fury broke out when hisopponents discovered how smoothlySweeney had effected his fait accompli.Their rage was the more so, becauseSweeney was a Victorian Silk and theCounsel aggrieved hailed from Sydney.They did not know our Charlie.Sweeney was appointed to the CommonwealthConciliation and ArbitrationCommission in 1963. Whilst one does notexpect messages of congratulations to beless than effusive, from letters to ‘Charles’or ‘Charlie’ the following excerpts reflectobvious respect and admiration.You would have graced any bench and Ihave some pangs of regret that we are tobe deprived of your polish and ability. Wewill miss you.Sir Alistair AdamI must say that your departure frompractice in our Court will be very muchregretted.Sir Edward HudsonThe Commonwealth has been fortunateenough to induce you to accept a positionon the Arbitration Bench. May I congratulateyou. I have always admired the logicalpresentation of your case…Sir Charles LoweWe shall miss you around the Courts,especially in the Bourke Street ‘slums’.No more shall we hear you trying tocross-examine a Polish woman with hermonosyllabic answers reported by theinterpreter in long and eloquent Englishsentences complete with gesticulation.Sir Arthur DeanBefore I resigned I thought you were acertainty for our Supreme Court and Iregret you are not there.Sir Russell MartinAs one who often had the pleasure ofwatching you work at close hand – usuallyto the detriment of my clients – I haveno doubt that you will fill your role withdistinction…John StarkeIn his time on the Commission, Sweeneyparticipated in a number of notable cases,including important basic wage decisions.In 1970 Sweeney was appointed theFederal Judge in bankruptcy, replacing SirHarry Gibbs.On 2 November 1970 in somewhatwavering handwriting Sir Owen and LadyDixon wrote:We send you our warm congratulationson your appointment to the Court ofBankruptcy. I, Owen Dixon, made friendswith Judge Clyne, when we were studentsat the Melbourne University – and weremained friends until his death. Youwill find the jurisdiction interesting and Ihope you enjoy a long tenure of office. Ifyou chance to find it possible to visit me Ishall be very pleased to see you.Prior to and after this letter Sweeneyvisited Dixon on a number of occasions.The Federal Court of Australia was estab-VICTORIAN BAR NEWS Winter 2008 23

lished on 7 February 1977 when 17 of 18judges were appointed, Sir Nigel Bowen asChief Judge having been appointed onemonth earlier. Sweeney, who was fifth inseniority, eventually became the longestserving Judge, and sat in Courts across allthe States and Territories of Australia.David Habersberger QC at Sweeney’sfarewell extolled Sweeney’s judicialattributes.Those qualities have always been evidentin Your Honour’s work as a Judge. Courtesyand civility to both practitioner andlay person, patience and tolerance of theinexperienced Junior Counsel, elegantphrasing of Reasons for Judgment werethe hallmarks of Your Honour’s judicialwork.There were many other tributes, andcomments.In the late forties Sweeney was a memberof the Committee of Counsel, which in1954 was renamed the Victorian BarCouncil.Sweeney whose Chambers were in Equitywas involved in the perennial problem ofaccommodation for the Bar. In 1931 SirEugene Gorman obtained from EquityTrustees Ltd a lease of the Third Floor ofEquity Chambers. This greatly relievedthe pressing problems of providingaccommodation for the Bar. In 1931 therewere 165 barristers at the Bar, 27 of whomwere accommodated at Equity and thebalance (save two at 480 Bourke Street) inSelborne Chambers. In later years, Counsel’sChambers Limited took leases ofChancery House, Saxon House and EagleStar, the Fourth Floor of Equity Chambersand sub-let these Chambers to barristers.On 30th May 1958 a special meeting ofthe Bar authorized and directed the BarCouncil ‘to continue with efforts to obtainpremises to house the whole Bar…’Sweeney and a number of other barristersin Equity objected to the idea that the Barshould be housed in one building, withthe obvious consequence that EquityChambers should be vacated.When the Bar Council in March 1961directed Counsel’s Chambers to terminateits lease of the Fourth Floor of EquityChambers, Sweeney indicated that he wasprepared to take over the Fourth Floor.In April 1961 Sweeney wrote to theBar Council proposing the retention ofEquity Chambers ‘upon the basis that theaccommodation will soon be necessaryto house an overflow from Owen DixonChambers’.After strenuous negotiations, the BarCouncil resolved that Counsel’s ChambersLimited should take a new lease of theFourth Floor of Equity. Sweeney’s powerfulinfluence was a substantial reason ina number of renowned Silks and Juniorsremaining in Equity. His efforts emulatedthose of Sir Eugene Gorman KC in 1931.At his farewell he said of EquityChambers that it ‘had at least its fair shareof talent, as may be seen from the fact thatamong its 39 occupants were 19 futureJudges…’Of ‘Pat’ Gorman he said at his farewell:I came there (to Equity) as a school boywith dreams of the Bar, having the opportunityto call on Eugene Gorman KC, thenat the height of his great powers. Hereceived me kindly, but I was not then toknow that he was to be a generous guide,philosopher and friend to me for the restof his life.He concluded with typical wit andirony:I must say that I still recall the odd casehere and there which I should have won,but did not. But on such a day as this I willpermit myself the licence of saying, evenin this distinguished company, that thatwas always the fault of the Court, even theHighest Court in the land… .I learned from the sage guidance of thesolicitors who were adventurous enoughto brief me and from their instructions inthe running. To them I say in the words ofthe old music hall days, my wife thanksyou, my children thank you, my grandchildrenthank you and I thank you… Ialso learned from my opponent, from myleaders, and eventually from my juniors,that is from those who turned up.Of his decision to retire he said:One of the advantages of a life appointmentis the freedom to choose one’s owntime of retirement. It is not a choice I havemade in haste as you will gather from theBAR COUNCIL ELECTIONSCOMING UPBallot papers will be forwardedto all members of the Bar on22 September 2008and must be returned to theVictorian Bar office by closeof business on9 October 2008Remember to vote!statistical details…But on the other hand,I had to take care not to deprive myself ofa farewell.It was a marvellous farewell befitting theretirement of the Federal Court’s eminentand longest serving Judge.This obituary does not refer to the manyand notable services outside the law, whichSweeney so generously and efficientlyprovided. They have been referred to inthe excellent and touching obituary by hisdaughter Catherine Walter, from whomshe and her husband John, a deal of thematerial which appears herein came.Catherine wrote:His was a life characterized by ruggedgood health and no complaints. It wasonly in the last years of his life that atwelve-year battle with Parkinson’s diseasefinally started to take its toll. Through allthat period he was sustained in particularby the love, care and devotion of his wife,Betty, who selflessly looked after him inthe final years of declining health. He diedpeacefully at the age of 92 years on 22December 2007 surrounded by family. Aprivate family funeral was conducted byFather Hayes for him at St Peter’s, Toorak,the Church he attended for more than 50years.Thus ended a great life and career inthe law, and one which met and easilycomplied with the highest standards andtraditions.Vale, Charles.PETER J O’CALLAGHAN QC24 VICTORIAN BAR NEWS Winter 2008

NEWS AND VIEWSB D ar inner June 2008VICTORIAN BAR NEWS Winter 2008 25

Speech byRoss Gillies QCPREVIOUS PAGE: Crowd sceneGOOD EVENING, sisters and brothers. A year ago Chris O’Neill invited me to Joinhis table at the Bar Dinner and I accepted the invitation. He said to come alongand give Ruskin a cheer along because he needed every bit of encouragement thatwas available.I agreed to go because after forty years at the Bar I hadn’t been to a Bar Dinner and Ithought it was an appropriate time to break the ice. So I have sort of done okay in the lasttwelve months, coming from maiden attendee to holder of the main brief and I am happyto note that Judge O’Neill’s done well too, because the last twelve months have beenkind to him. He came to the dinner as a knock-about Common Law jury tyro and nowhe attends as an honoured guest, His Honour Judge Chris O’Neill.Chris of course has embraced the job of Judge, He is immaculately charging juries anddeciding cases and he is also engaged in the government of the Court, much to the gleeof the Chief Judge. He and the multi-lingual and multi-talented Sandra Davis run thegovernment side of the Civil List and if that accolade doesn’t get me priority in gettingmy cases on nothing will.When I agreed to take this brief to address you this evening, the Chairman Mr Riordanexpressed some concern. He said, ‘I want a draft of the speech because we have hadmisfortune in past years because of a perceived lack of political correctness which hasbeen a propellant and certain people have left’. He confirmed, ‘We must have no walkoutsthis year. I have had a turbulent time in my time as Chairman of the Bar Counciland I don’t want anything to go wrong because this is my culminating event, I sort offeel like a bride planning a reception’. I replied, ‘Riordan, if you’re the bride I really pitythe groom.’He said, ‘Just one thing, if you won’t give me a draft of the speech, unreservedlyundertake to be politically correct and absolutely millimetre perfect in that regardbecause we must have no walk-outs’. I promised and he said, ‘I trust the promise will be26 VICTORIAN BAR NEWS Winter 2008

Attorney-General Rob Hulls, Carolyn Burnside and Chief Judge Michael RozenesDavid Gillard with his father the Honourable E W Gillard QChonoured’ and I thought that if he believedthat he was a fool.I have a problem with political correctnessbecause in this day and age basicallythe only section of the community that canbe safely satirized is the majority. However,it is not so much fun satirizing the majorityif you are a member of the majority.There are lots of protected minorities butthey can’t be touched. I would be requiredto apologise and receive special counsellingand guidance for the rest of my dayswere I to breach a canon. It is unfortunatebecause minorities tend to be so fault riddenbut I just mustn’t do it.On the other hand, if one is a memberof a minority, it is permissible to satirizenot only the majority but also any minoritygroup. A minority member satirizing hisown is not regarded as being discriminatory:he is seen to be engaging in ironicalhumour. I suppose I could secure such afreedom by joining a minority, but whichone would have me?If during the course of this speech thereare walk-outs that would be bad luck and asource of upset to the Chairman but I supposeas a consolation there would be morechocolate soufflés for Simon Wilson at theend of the evening, and I can say that ofSimon of course because he is a memberof the majority and the big fellow will unblinkinglytake it and probably have personalretribution against me before theevening is out but nevertheless not makeme a candidate for special counselling.There are many esteemed and honouredguests here this evening. It was in previousyears a tradition for the speech maker inthis position to specifically advert to allsuch guests. That’s not possible tonight aswe have over thirty honoured guests and Iwould be part-heard at midnight if I hadto cover the field. In any event becausesomeone is an honoured guest it does notmake them a mortgage holder on eminence,importance, notoriety or being interesting.The honoured guests have allreceived accolades of their own. Judgeshave been welcomed to the Bench andpeople have stood and bowed and heard adetailed oration about their achievementsand how grand it is that they’ve beenappointed and they have basked in thatdeserved glory.What I propose to do is to take randomcandidates from the audience. This miscellaneousapproach will embrace some ofour eminent and honoured guests whocoincidentally are interesting enough towarrant a mention but essentially everyoneis at risk. Everyone is a potential targetand that is a device to ensure continuedattention.I have in front of me a detailed list of allin attendance this evening. It is an interestinglist. It indicates who wants to eat a certaintype of food, who is allergic to certaintypes of food and that is worth knowing. Itdetails who wants to sit with whom andthat means who wants to ingratiate themselveswith whom. Certain tables arepacked to the gills because such tables aremuch cooler to be on than others to be on.Then there is a more intriguing ‘I do notwant to sit near, I do not wish to be in thesame quadrant of the hall as…’So adopting that approach I’ll miscellaneouslyrefer to half a dozen or so or moreof you during the course of this speech andwe should start with the High Court. TheHigh Court commands that sort of respectand hierarchical attention rather than beingburied in the midriff of the speech oreven lower.Susan Crennan AC is the first memberof the High Court to be mentioned, notbecause I am elevating her seniority wiseabove Justice Kirby and Justice Heydonbut after all she has recently received herAustralia Day Honour. I don’t see muchof Susan these days because I don’t oftenappear in the High Court and I might saythat is not a consequence of our Court ofAppeal usually getting it right.I last saw Her Honour when we togethertravelled Route 66 to Chicago to the AustralianBar Association Conference and Ido think that there is a strong prospectthat Her Honour will succeed the Honourablelan Callinan as the roving international-conference-attendingHigh CourtVICTORIAN BAR NEWS Winter 2008 27

Justice Sue Crennan and Judge Paul LacavaJudge. If she does that it would be goodbecause not only is it always pleasing to seeSusan, one always knows that when a HighCourt Judge attends a conference the taxationdeduction is in the bag.Justice Michael Kirby is the mostfamous judge in Australia, although I hearBill Gillard interjecting saying ‘only sinceI retired’.Fiona McLeod has spoken about mehaving an inclination to say ‘no’. CoincidentallyI was eavesdropping on a conversationthat his Honour was having with awaiter a moment ago and the waiter enquired,‘Is something wrong, your Honour?’Justice Kirby said, ‘No’ and the waiterpersisted. ‘Well, every time I ask you aquestion you tend to say “no” ’, and his Honoursaid, ‘What do you mean by that?’ andhe said, ‘Well, I have offered you this wineand that wine and this food and that one…and you keep on saying “no” and I’m a bitconcerned you are not having a good time’.His Honour said, ‘I like to say “no”. I reallylike to say “no” and that means I am havingan excellent time so just don’t worry.’ Thewaiter remarked and said, ‘But I’d like youto say “yes”. ’ His Honour said, ‘Don’t worry,I prefer to say “no”, ’ and the waiter replied,‘Look, I note you’re on a table forten; if I were to put you on a table for threeas an example, would that please you becausethen in addition to dissenting youChairman of the Bar, Peter Riordan SC28 VICTORIAN BAR NEWS Winter 2008

could be sitting in a very distinct minority’.His Honour said, ‘Well, the word chokesaround my vocal cords but I would concurwith that proposal’.Justice Dyson Heydon is here tonight.This must be a first for Dyson being ina room such as this with someone elsewho bears the some Christian name:Dyson Hore-Lacy. The similarities don’tend therein because as an example hisHonour Justice Heydon sits in a celestialjurisdiction, the High Court where theangels sing all gloria in excelcius as thejurisprudential atom is divided time andtime again. Dyson Hore-Lacy on theother hand sat in a heavenly jurisdiction,albeit at the other end of the spectrumin the Coroner’s Court, but work whichwas nevertheless suitably adjacent to theGood Lord. In addition, of course, JusticeHeydon is a celebrated author of texts,including Cross on Evidence. Dyson Hore-Lacy knows all about the rules of evidencebut he tends to break rather than complywith them, but that has nothing at all todo with his understanding of the topic.Other legendary works of his HonourJustice Heydon include his trade practicesbook, which is a standard reference, andagain it might astonish you to know thatDyson Hore-Lacy has had a passionateand abiding interest in trade practices: heraced a horse by that name for four or fiveyears.I want to mention Barry Watson Beachbecause he is someone who is irresistible tome. Everyone here would remember Barryas a judge – a judge of great authority andcapacity to get work done.Not so many these days would rememberhim as a barrister and I can tell you hewas a fine barrister. He was a top commonlaw silk at a time when the Common LawBar was exceptionally powerful, with numerousreally strong advocates and he wasmore than competitive with each of themand I mention counsel such as Crockett,Kaye, Coldham, Wheelahan and the listgoes on. Barry could more than accommodateall of them but his main aggression,his main courage was not in fighting BillKaye or Bill Crockett; it was in fighting one,Percy Roy Dever…, our clerk.Percy Dever was a fine clerk but wasalso a bully, cajoler, a twister and a turnerand one who rode his barristers very, veryhard. I remember inspirationally listeningto Barry saying to Percy one day howJustice Sue Crennan and Andrew MaryniakLEFT TO RIGHT David Shavin QC, Justice Michael Kirby, the Chairman, Jane Dixon SC and Fiona Ellishe would not take another brief. Percymaintained, ‘Look, Barry, Chick Landerhas got a brief for you on Monday inaddition to the brief which you alreadyhold,’ Lander was the founder of Lander& Rogers and was a leading common lawsolicitor. Barry replied, ‘I’m not interested.I don’t want someone else’s throwback. Iwon’t do it.’ Percy threatened, ‘Well, thatwould make me angry and Chick angry’,Barry retorted, ‘Well, that doesn’t concernme one bit, I’m off, goodbye and that isthat’, and he strode out of Percy’s little rathole that he called his office.I was suitably impressed by this so Ibowled up, regarding the direct approach asbeing the appropriate one, and said, ‘Percy,I’ve got a bit of paperwork to do and I’mconcerned that the work will become statutebarred if I don’t attend to it so I’m not goingto Court next week.’ He said, ‘You’re what?’I said, ‘I’m not going to Court. I’ve got to dothe paper work. I’ve got six or seven timebombs quietly ticking away on my desk andeach one of them will bankrupt me if I getsued because they’re statute barred’ andthen I used the Beach formula and said thatis that and walked off.I had been in my chambers for only ashort while when the phone rang and itwas Percy Dever. He said, ‘You’re sick’. Isaid, ‘No I’m not’. He persisted, ‘Yes, youare, you’re sick. You don’t want to go tocourt, you must be sick. You don’t want toVICTORIAN BAR NEWS Winter 2008 29

Tom Bathhurst QCFiona McLeod SCThe Great Hallmake any money, you want to just sit up inyour chambers like a commercial barristerdrawing affidavits and stuff like that. Infact I’m so worried about you I’ve made anappointment for you to see a doctor.’At this stage my bravado went and Ireverted to being compliant and murmured,‘Yes, Percy’. He barked, ‘Get up to98 Collins Street and you’ll see the doctor’.I dutifully attended and was met by thephysician who stated with a gleam in hiseye, ‘You’ve come here for a very thoroughexamination’ as he snapped a latex gloveonto his dominant right hand. Members,I saw stars.When I got back to chambers after themedical examination, Percy said, ‘Did youfind the doctor very thorough?’ I said, ‘Icertainly did’.As a coincidental irony the doctor’sname was ‘Bottomley’. His name was DrKeith Bottomley and he was well known tothose in the common law and those in thecompensation jurisdictions. However, hewas a cardiologist and to this day I amwondering about what a cardiologist wasdoing with a latex glove. Barry, that’s one Iowe you.As I go through the list of distinguishedand other guests here tonight I see AllanMyers QC, holder of the Queen’s BirthdayHonour of AO. Allan is not easy to get outthese days he is so busy. He is the richestlawyer in Australia but he can come herebecause he can have a meal with his friends,he can have a drink with his friends, he30 VICTORIAN BAR NEWS Winter 2008

Jason Pennell, Denise Bennett and John Riordancan reminisce with his friends and he canalso keep an eye on his paintings. In fact, Ithink Allan might even own this building.Allan is an altruist and a benefactor but Idon’t know that it includes throwing in thevenue for tonight’s dinner. Being present,Allan does not have to worry about aCaravaggio or a Canaletto walking duringthe course of the evening.Justice Jack Forrest was kind enough inhis welcome to invite me to the Bar table,I was very pleased to accept that honour. Isat up at the Bar table beneath the Forrestfamily in the jury box, and as the welcomeunfolded I realized the true purpose of Jackplacing me in a conspicuous position. Itwas so he could publicly humiliate me withtalk of my greed and my preoccupation forthe fee rather than for the legal principle.Jack was very frequently my juniorover a long period of time. On reflection Ishould have had Jack sitting at the edge ofthis stage as an equivalent to me sitting atthe Bar table. I could then invite him to tellyou of the many occasions when he said tome, ‘Oh, I think your fees are a bit on thelight side, it’ll take a bit more, it’ll take a bitmore than you’ve got on it’.The Honourable E.W. Gillard is here andhe was the top trial Judge in this State upto the time of his retirement. He is gettinga bit tired of his name being mentionedin the same breath as one Tony Mokbel.He says that his performances over theyears both as leading counsel and as judgeshould not have him go down in historyas the man who sprung Tony Mokbel. Hewas a much too grand a judge and a muchtoo grand a barrister to have that epitaph.Don’t forget that Bill was the one whoabove his chambers’ door had the hardlyself-effacing inscription ‘The Great EW’.Gillard, because of his association withTony Mokbel, has become something ofthe Melbourne equivalent of ‘Laurel andHardy’.Mr Attorney is in attendance. MrAttorney, Bill did advise me that he has agreat embarrassment about the amount ofmoney that has been spent locating andbringing Mokbel back to Australia. Gillarddoes have a reputation for meanness whichI now wish to dispel, because Mr Attorney,and I would ask you to relay this to theTreasurer, Bill Gillard has chosen to partlydefray the cost of bringing Mokbel backto Australia by entirely waiving his judge’spension.I might say, Mr Attorney, it is very goodto see you here this evening, I want to emphasisethat you are only here as an actingguest and that as a consequence you get nodessert. On one view you are lucky to getthe main course.I have noted the recent publicity that hasbeen given to your views about barristers’fees and in particular the issue of silks’ feesof $14,000 per day. Now look I know you’rejoking about that and I know you’re teasingus and I know you don’t take it seriouslyand are trying to upset people like mewho think there is a faint possibility thatsomeone’s getting it and they are not. So Iam taking it as a joke and I do tell everyoneelse to take it as a joke and a tease, but justin case you have found someone who isgetting $14,000 per day and just in casethere is that sort of money around, wouldyou give me just a slight clue as to where itis because I’ll do the rest, I’ll do the rest…Idon’t need much, I don’t need much of aclue at all.Mr Attorney is also a bit tired ofsuggestions that judicial appointmentshave been politically oriented, just as JusticeGillard dislikes the connection betweenhim and Mokbel. The Attorney has hadenough of the contention that those infavour with the Labor Party get a bettergo than those who are not. That’s wrong ofcourse but he wants to do something aboutit. He is not going to do anything drasticlike appointing supporters of the LiberalParty to the Bench but he thinks that hemight put a Tory into Government House.He thinks he might do that. He hasn’t toldme who is a candidate but I think that SirRichard Stanley might be someone he hasin mind. There is a logic to this because SirRichard has been edging closer and closerto Government House over the years. Heresides in Airley Street, South Yarra, andhas been buying property after propertymoving down the hill and thus closer tothe gardens surrounding GovernmentHouse. I can see Sir Richard as Governorunder the ostrich-plumed hat awardingbravery awards to those counsel who standup in the Court of Appeal for the VWA,and absentmindedly stroking his mullet ashe is wont to do.Colin Lovitt is here tonight convenientlyunder a spotlight so I can see him on table29. Colin Lovitt a colourful counsel and anaggressive counsel, as many judges havediscovered, be they Supreme Court judgesor Brisbane magistrates. His aggressionhasn’t been confined to vocal aggression.He has had to defend himself and thehonour of his friends physically at theCarlton Football Club on more than oneoccasion. I have known Colin for manyyears. As a young barrister he was in everycard game from one end of Lygon Street tothe other. They were big card games andhe was a big player and he rejoiced underVICTORIAN BAR NEWS Winter 2008 31

Sarah Fregon and Will Alstergren organizer of the dinnerthe unflattering name, ‘The Embarrister’.He was so called because of his conduct.It is good to see ‘The Embarrister’ heretonight and no doubt he’ll be going off toshuffle the cards until 4am later on in theevening.What I want to do at this stage, members,is move from the hilarious to somethingmore serious. It relates to practice atthe Bar and to the fact that whilst we regardourselves as being a confederation itis nevertheless a very loose confederationwithin which there is a subconsciousbrutality and selfishness. These characteristicsare probably spawned by the fact thatwe are sole practitioners and independentcontractors. It is easy enough on an occasionlike this to feel a strong sense oftogetherness but it really should permeateour day to day lives much more. Whetherone is a judge or a barrister there is no onereally to look out for you like a partner ora fellow employee.We have had situations where barristers’lives have got out of control. As anexample, Brendan Griffin, a silk who wasdoing very, very well at the Bar died by hisown hand. Further Peter Hayes QC, whodid not die by his own hand but died ina situation where his life was pretty muchout of control.There is evidence of the same problemon the Bench. The late Judge MichaelHiggins was an ornamental Judge, onewho worked and worked and worked andobliged the litigant at every turn of thetrack. The index of suspicion is very highthat he died from overwork.The examples which I have stated areextreme. I argue cases with extravagance.However, there is a very real need for barristersand judges to keep an eye on oneanother. It is important to say to colleagues‘How are you going?’ and a need to sit onthe edge of someone’s desk and enquire‘Are things all right with you?’ It is importantthere be encouragement within theranks. Thus if someone has heard goodnews about a barrister then such goodnews should be communicated. It may befor example that Justice David Harper hasnoted off the Bench that one Joe Bloggsdid a very good job in a recent case beforehim. It would be a really good thing to doto advise Joe Bloggs that his Honour wasimpressed by his performance. This is allpart of what I perceive to be an obligationto keep an eye on one another.As an adjunct to this issue of life in aconfederation, I wish to say something ofthe issue of barristers speaking out againstbarristers in a public forum. There havebeen instances where barristers, whetherthey be altruistically inspired or morelikely self-promotionally inspired, talkto the press in a critical tenor as to whatis going on at the Bar and about allegedconduct of certain counsel.In my opinion public criticism of the Barby a barrister is a deplorable thing to do.This is not a case of talking solidarity, it isnot a case of pulling down the shutters onthe system for fear of public scrutiny. Wehave in our Ethics Committee and Tribunalorganizations which very jealously guardthe standards and reputation of the Bar.Anyone who has appeared before theCommittee or Tribunal either as a defendantor as counsel will know what I mean. Iregard it as a minor victory when I escapewith my own right to practice intact afterrepresenting someone. There is thus noneed for anyone, from a public viewpoint,to be concerned if someone doesn’t speakfreely to the press about what is going on atthe Bar.One problem attendant to a barristerspeaking out against the Bar in public isthat that barrister gives himself an elevatedstatus. The public tends to think that theinformant is reluctant to be speaking outagainst the Bar when usually the contrarywill be the case. It thinks that there is a fairpossibility that what the person is saying istrue, for otherwise the risk would not betaken of speaking out.Such presumptions of accuracy are illfounded.Public critics of the Bar show noreluctance to make a statement.However, my main reason for disapprovingof counsel engaging in public criticismof the Bar reposes in the fact thatyou just don’t do it. Whether it is your ownreligion, whether it is your own race orwhether it is your own family, you don’tturn on your own. You don’t turn on yourown because it is a really canine thing todo. It is deplorable.Let me say in conclusion that we haveall been blessed since we first walked upthe steps of Owen Dixon Chambers on dayone at the Bar. True it is that some havebeen more blessed than others but we haveall been blessed. The very good reason forthis rests on the fact that there is no betterracket in the cosmos than being a barrister.The future is good. The future is iron cladfor a very good reason, and enemies of theBar should note it: God loves barristers.32 VICTORIAN BAR NEWS Winter 2008

Response on behalf of the Honoured Guests by theHonourable John Coldrey QCTHE HONOURABLE Justice Kirby,the Honourable Justice Heydon,the Honourable Justice Crennan,and the rest of youse. (I know where mybread is buttered. I might still have someappeals in the pipeline.)I welcome this invitation from the VictorianBar Council to speak to you tonightas part of my therapy for R.D.S. – R.D.S.being Relevance Deprivation Syndrome.You have no idea how depressing it isfor we retired judicial pensioners to takethe piles of unused stationery, and alterthem for future use. I can tell you that thesimplest method is to cross out the letters‘ice’ in the word Justice. So, for example, aWith Compliments slip now reads: ‘Withthe Compliments of Just John Coldrey.’There appears to be a tradition for thespeakers at these dinners to talk aboutthemselves. In my case, in the ten minutesallotted to me, I’m not sure I can do justiceto such a complex and fascinating subject– so I might take a little longer.First, however, I am supposed to respondon behalf of the Honoured Guests.Whilst I have not consulted with any ofthem, I am sure that they would be gratefulfor the free feed and that some, or all, ofthose mentioned by Ross Gillies wouldbe contemplating the obtaining of legaladvice, if only they had access to a decentlawyer.I am certain that all of them would bedelighted at the choice of this venue, whichis the repository of so much great art.Regrettably, I must confess that there isno discernible link between my ancestorsand art. In fact, my uncle frequently usedto say, ‘I don’t know much about art, but Iknow what I like!’ In my uncle’s case whathe liked were nudes. At this stage I reallyshould apologize for not having a Power-Point presentation. Otherwise I could haveillustrated my uncle’s taste.I think it was Oscar Wilde who said, ‘Artmust be obscene to be believed.’ Certainlythis sentiment would have reflected myuncle’s views. Fortunately, I have beenrescued by my family from this narrownessof vision. Over the years I have beentaken to every major gallery in Europewhere I have witnessed some magnificenthangings – some would say appropriatelyfor a Judge.Of course we visited the Louvre. Thinkingabout this I was reminded of theAmerican who was telling his Texanfriends of his trip to Paris where he visitedthe Louvre. ‘Did you all see the MonaLisa?’ queried the intellectual in thegroup.To which the traveller responded, ‘If itwas in there, I seen it!’Some years ago at the Uffizi Palace inFlorence, I encountered Jack Keenan QC– one of our Honoured Guests. I’m sorryabout this name dropping – but it’s notevery day I get to meet Jack Keenan. Hewas dressed in a gaberdine coat and felthat. This was surprising since it was midsummerbut, as they say in the Court ofAppeal, ‘nothing turns on this point.’Anyway, Jack remarked, as he gazed upat the magnificent architecture, ‘Amazingpeople these Medici, they remind me verymuch of the Galballys.’ I could only agree.The NGV has a unique facade which isquite a contrast to that of the art galleryof New South Wales. The front of thatbuilding is emblazoned with the names ofthe world’s great classical artists. However,the skilled artisans responsible for thishave produced something really special. Ifyou ever go to look at it you will see thatthey have created the name Michel AngeloVICTORIAN BAR NEWS Winter 2008 33

in two parts. Mr Angelo, or Mick, as wemight call him in the spirit of mateship,might even have been chuffed at thisapproach.I must confess that had I the talent Iwould have loved to have been an artist.Nevertheless, some of my colleagues at theBar were kind enough to say I partiallysucceeded in my artistic aspirations. To bequite frank with you, their actual commentwas. ‘You really have become a bullshitartist.’Despite this assessment, I havepersevered, and I can reveal that I haveproduced several paintings in my sparetime. I have brought a photocopy of oneof them here tonight in the hope of gettingit assessed by Allan Myers as President ofthe National Gallery Trustees as a possibleacquisition. I have entitled the work ‘Headof a Man Number 11 – in the style of VanGogh.’Art has not escaped the attention oflimerick writers. Their efforts cover a vastspectrum of artistic endeavour. To give afew examples:Said the Duchess of Alba to Goya‘Paint some pictures to hang in my foya!’So he painted her twice;In the nude, to look nice,And then in her clothes, to annoya.Van Gogh feeling devil-may-care,Labelled one of his efforts ‘The Chair.’No-one knows if the blokePerpetrated a joke,Or the furniture needed repair.That’s a bit contentious, but at least it’snot about a head.And finally, my favourite of this artisticgenre:Whilst Titian was mixing rose madder,His model posed nude on a ladder;Her position to Titian suggested coition,So he climbed up the ladder and had her.As for my own attempts at verse, somesensitive person remarked that my poemswould be remembered long after thoseof Shakespeare, Yeats, and T.S. Eliot wereforgotten – but not until then.However, I did win a small prize in TheAge newspaper Wine Rhyme Contest.Since it has some connection with tonight’sactivities, I’d like to share it with you:I just ignore those wine experts who thinkYou should lay down red wines before youdrink;No more for me the cellar, rack, or shelf,I drink the stuff and then lay down myself!You can see why it was a small prize!While on the topic of poetry, PeterCook and Dudley Moore had a wonderfulsketch where Dud suggested a game calledSausage and Mash. You read a book orpoem out loud, substituting the word‘sausage’ for every word beginning with ‘S’and ‘mash’ for every word beginning with‘M’. He gave this example:‘I mash go down to the sausage againTo the lonely sausage and the sausageAnd all I ask is a tall sausage and a sausageto sausage her by…’Of course, the cultured amongst youwill have picked that as Sausage Fever byJohn Mash.Do you want to try another? ‘Sausage /sausage / sausage/ sausage by the sausage /sausage.’ She sells sea shells.Of course any application of this techniqueto the criminal law would be quiteinappropriate. I refer particularly to theheinous crime of mash and the varioussausage offences.That’s enough ‘arty’ material.Words are the currency of the law.Whilst the words of Judges have a degreeof permanence, it is a sobering thought,(and I apologize for that), to realize that theforensic exploits of the heroes of this Barare soon forgotten; their quotable quotes,or cross-examination, buried forever inreams of discarded transcript.One of my own heroes was Judge CairnsVilleneuve-Smith, who was a fearlessly independentadvocate. I had the privilege ofworking with him in the Beach Inquiry. Asmost of you will know, this was an inquiryinto police misconduct chaired by ourhonoured guest Barry Beach. His courageousfindings so outraged the VictoriaPolice Force that its members embarkedupon a work-to-rule campaign. This wassomewhat ironical, because if they hadworked to rules in the first place, the inquirywould never have been necessary.Villeneuve-Smith was renowned forhis mischievous wit. It is alleged thaton one occasion, probably after a BarDinner, he, together with some colleagues,was wandering down Collins Street at2.00am, only to pause outside a residentchemist whose proprietor was a Mr Paul.Responding to the staccato rattle of gravelflung against an upstairs window, a headappeared and growled, ‘What the hell doyou want?’‘Are you Paul?’ inquired Villeneuve-Smith sweetly.‘Yes’, was the grunted reply.Tell me, did you ever get a responseto your charming little letter to theEphesians?’In his army days Cairns was confrontedby a rather officious senior officer whotapped him on the chest with his baton,remarking at the same time, ‘There’s shiton the end of this stick, soldier’, only to bemet with a smart salute and the response,‘Not on this end, sir.’He was subsequently charged withinsubordination.During the course of the Beach Inquiry,Villeneuve-Smith cross-examined manya hapless police officer. Some, who haddifficulties with their memory, were metwith the solicitous inquiry, ‘Is there nosmall oasis of recollection in the vast desertof your mind?’ It was bad enough to beburdened with an arid intellect, but evenworse was to be a witness who, havingventured a particularly unfortunate answer,was psychologically shirt-fronted with thecourteous query, ‘May the Chairman useyour last answer as a yardstick by which tomeasure your truthfulness as a witness?’ Ofcourse the poor bastard had to answer yes.Villeneuve-Smith was more subtle in histreatment of instructing solicitors. On oneoccasion, one of that necessary breed failedto pick him up from the steps of OwenDixon Chambers to transport him to theSupreme Court at Geelong for a runningdown case and he was forced to take ataxi. At the Court, an offer of settlementwas soon forthcoming. Villeneuve-Smithreported that, whilst it was acceptable,before any settlement was announcedto the Court, he would be seeking leaveto amend the statement of claim. Hisbemused opponent agreed. Particular (e)‘Failing to sound a warning device’ wasduly added. Subsequently, the instructingsolicitor received the back sheet whichincluded the annotation: ‘Amendment ofstatement of claim’, followed by a dollarfigure commensurate with the taxi fare toGeelong, together with a very generous tip.34 VICTORIAN BAR NEWS Winter 2008

Ross Gillies QC, Michelle Britbart, Paul Halley, Nikki Wolski and Ross MiddletonJudge Phillip Misso, Tim Ryan and Judge Iain RossJeremy Twigg, Ailleen Ryan and Andrew KincaidSometimes, it is the words used by theclient that cause the problem.One example I remember vividly was ina maintenance case. It was heard on theday that man first walked on the moon, althoughthis event did not make any discernibleimpression on the Ferntree GullyMagistrates’ Court. I was opposed to JusticeGillard, (as his Honour then obviouslyhad the potential to be). My client, the defendanthusband, had been left by his wife,whose major complaint related to his reli-gious fanaticism. This assertion was vehementlydenied. Ultimately, I called myclient to give evidence. The Clerk of Courtsrequested him to take the Bible in his righthand and repeat ‘I swear by Almighty God’.At this point, my client turned to the Magistrate,and in a loud voice, declaimed:‘Make ye not an oath! Matthew 5 verse 34’.We never quite recovered from this unfortunateforensic setback.There are times when silence, or quasisilence, is the best course for the advocate.I was appearing before a Magistrate namedStott, who regarded himself as operatingthe Supreme Court at Oakleigh, or MooneePonds, or Fitzroy. My client had beencharged with running a brothel. The prosecutingsergeant rose to his feet to be metimmediately with the comment, ‘How doyou say this information sheet discloses anoffence, sergeant?’The information was imperiously handeddown from the bench. The sergeantstudied the original, and I studied myVICTORIAN BAR NEWS Winter 2008 35

Jane Dixon SCcopy. I could see absolutely nothing wrongwith it.‘Is there anything you want to submit,sergeant?’‘No, Your Worship,’ responded the bewilderedsergeant.‘Is there anything you want to say, MrColdrey?’A nasty moment! This is a situation requiringall of an advocate’s forensic skills. Irose to my feet and, one third sycophant,one third hypocrite, and one third opportunist,I replied, ‘There is nothing I couldusefully add to what Your Worship has alreadysaid.’‘Very well’, said His Worship, ‘the informationwill be dismissed.’In the foyer of the courthouse the prosecutingsergeant grabbed my arm and,with the look of desperation of a man whowould be required to write a report for hissuperiors, inquired, ‘What the hell waswrong with the information?’In retrospect, I admit to a certain levelof guilt that I derived some pleasure inresponding, ‘Wouldn’t have a clue!’Meeting Justice Kirby here tonight remindedme of the time I was forced to sitin the probate jurisdiction. I was facedwith a woman seeking benefits for herselfand young child under the will of her de-ceased partner. The only problem was thatshe had shot him. He was, however, a personwho, as the Criminal Bar would say,‘needed killing.’ The applicant had pleadedguilty to manslaughter and had been givena bond. Because of her low level of moralculpability, I decided that the forfeiturerule should not apply, and upheld herclaim.Some time later I received, from JusticeKirby, a copy of a judgment of the NewSouth Wales Court of Appeal on the sametopic. He was then the President. JusticeKirby described my judgment as ‘principledyet flexible,’ (or vice versa), and gave ithis judicial approval. I was delighted untilI read on and discovered that he was in theminority. His colleague, Justice RoddyMeagher, had written, ‘There is somethingfaintly comical about the spectacle ofEquity Court Judges attempting to sorthomicides into piles of conscionable andunconscionable ones.’ He found my decisionto be heresy. Well, at least I wasdescribed as ‘an Equity Court Judge.’ But,as history records, shortly after this judgmentJustice Kirby was elevated to theHigh Court, whilst Justice Meagherremained stationary in New South Wales.So, your Honour, I think we got it right!I’d like to finish with the story of the insanity/murderin which I was junior toCharles Francis QC – another icon of theBar. It’s one of my favourite anecdotes. Iknow a number of you have heard it before,but not in the Great Hall NGV International.Our client, who I will call Harry,(since that was indeed his name), sufferedfrom alcoholic dementia. When, in themiddle of a drinking bout, he and hisfriends were faced with a liquidity problem,Harry, who exhibited leadershipqualities, fatally despatched a roominghouse colleague called Bert, with an axe.He and his friends were drinking the flagonspurchased with Bert’s money, whenpolice broke up the party.At my first meeting with Harry heannounced, ‘What I desire is oblivion.’ Ihad to inform him that this was beyondthe capacity of Legal Aid Victoria.On reflection, I am not certain all theirclients would agree with that assessment.Harry went on to explain his actions:‘There was a full moon on that night, MrColdrey, and a full moon does strangethings to men’s minds.’ The trial in Melbournebefore Mr Justice Anderson wentso well that, at the end of the psychiatricevidence, and before any final jury addresses,Charlie Francis persuaded theJudge to charge the jury briefly, and send36 VICTORIAN BAR NEWS Winter 2008

them out to determine whether they neededto hear any more, or whether they wereprepared, at that stage, to find Harry notguilty on the grounds of insanity.At 12.55pm after Mr Justice Andersonhad completed a mini-charge which forcefullyemphasized Harry’s mental shortcomingsand, as the jury were about toretire, Harry stood up in the dock andcalled out, ‘Your Honour, I would like tomake a statement.’ (This was the era of theunsworn statement.)Not to be outdone, Charlie Francis leaptto his feet and announced that, since wehad closed our case no statement was possible.The Judge was not so sure that Harrycould be shut out that easily. Fortunately,at that point, he adjourned for lunch. Wemet Harry in the cells and explained thatthe case was going well and there wasabsolutely no need for him to make anystatement.‘It’s my case, isn’t it?’‘Yes.’‘Well, I want to make a statement. I’mnot as silly as they say. I’ve had a lot to dowith psychiatrists, and I can fool them.’‘Listen, Harry,’ said Charlie, ‘Nobody’ssaying you’re insane at the moment. If youneeded money for grog now, you wouldn’tgo killing someone with an axe to get it.’‘Bloody oath, I would!’Somewhat depressed we left Harry tohis lunch. Before Court resumed I encounteredHarry in the anteroom.‘I’m sorry for my outburst before lunch,Mr Coldrey,’ he said, the screws hadn’tgiven me my Valium, and I was a bit upset.’‘That’s OK, Harry, I understand.’‘It’s still my case isn’t it?’‘Yes.’‘Then I still want to make a statement.’What followed was one of the fewgenuinely unscripted, unsworn statementsof the decade.Harry told the jury: ‘I killed Bert. I doneit with the axe. He was a mongrel and a dog.I knew what I was doing. There’s nothingwrong with me. I have had a lot to do withpsychiatrists and I can fool them. Thankyou.’Mr Justice Anderson then enquiredwhat should next occur. Charlie Francisurged him to add to his mini-charge byinforming the jury of the weight to beattached to an unsworn statement, comparedwith evidence on oath. This hisGabi Crafti and Josh WilsonMichael Gronow, Paul Connor and Fiona ConnorHonour duly did. Once again the jury roseto retire, at which point Harry interjected,‘Your Honour, I would like to give evidenceon oath.’ Not to be outdone, Charlieleapt to his feet. ‘He can’t do both,’ saidCharlie, ‘he’s already had his go.’But his Honour was not so sure Harrycould be shut out that easily.Harry took the oath with all the aplombof a senior sergeant: ‘Ladies and gentlemen,I killed Bert, I done it with theaxe. He was a mongrel and a dog and hedeserved to die. I knew what I was doing.There’s nothing wrong with me. I’ve had alot to do with psychiatrists and I can foolthem.’ For good measure Harry added,‘I’m a Roman Catholic and I knew what Iwas doing was wrong.’Michelle Florenini and Matthew StirlingBy that stage Harry’s desire for oblivionwas being shared by his counsel.The jury finally retired and Harry satrelaxed in the dock. ‘Well, you’ve had yoursay, Harry, what do you think will happen?’‘Ah, Mr Coldrey, they’ll find me not guiltyon the grounds of insanity.’And 15 minutes later they did.One week after the trial I ran into theJudge’s Associate who was one of thoseretired naval types.‘I was very interested about that businessof the full moon,’ he said. ‘So I lookedit up in Moore’s Almanac. You might beinterested to know that it was a new moonthat night.’My time is up! Good night and goodluck!VICTORIAN BAR NEWS Winter 2008 37

Improving the dialogue betweencourts and the mediaA speech given by Justice Michael Kirby at the Law Foundation’sLegal Reporting Awards, Melbourne, 8 May 2008There is a problem between themedia and the courts. It is a sourceof frustration in both camps. Manyin the media think that judges are pompousout-of-touch gits who have insufficientlove for free speech and inadequate respectfor the free press. Things are not helped bythe strange dress that judges sometimeshave to wear, the elevated platform onwhich they are seen doing their job, theobtuse language they often use and thepower they wield – including over the media.Although increasingly relics of thepast, wigs are a special target of mediacomments. Even the High Court judgesare usually portrayed in cartoons wearingwigs, although we have not done so since1986.When media comes into direct contactwith the judiciary, it tends to dislike thefact that judges are less susceptible thanother branches of government to mediapressure and seduction. In defamationcases, contempt proceedings, decisionson FOI disputes and cases affecting thebig commercial investments of the media,the judiciary of Australia comprise theuntouchables. If you have as much powerin society as the Australian media have,and you meet an immovable object like thejudiciary, the shock to the system can causefrustration and anger. This sometimesspills over into the unworthy thought thatthis is a group of over-mighty officials whoneed to be cut down to size. It is a veryAustralian reaction.For their part, the judges are oftendisillusioned with the media: their boldas-brassassertions of high motives andtheir supposed dedication to truth, justiceand the Australian way. For judges, seeingmedia coverage of cases in which theyparticipate, they know that there is often abig gap between what the public gets toldand the actuality at the workface.Judges lament the disappearance ofmost dedicated legal correspondents. Theyrealise the power that the print mediastill has (despite the falling sales) over thedaily agenda of talk-back radio, and hencepolitical discourse. Yet secretly, judges arerather proud that they are the one branchof government, and one of the few placesin society, that cannot be overborne bymedia power.There is some merit in the perspectiveson both sides of this divide. It is the natureof the judicial role that judges must be cutoff from daily contact with the media andsimilar sources of influence. Too close anassociation might lead to the same degreeof contamination that can be seen with thepolitical branches of government, occasionallythe bureaucracy and sometimeswith other formerly respected institutions,such as the universities and the churches.The lesson of life seems to be that gettingtoo close to the media exposes those whodo so to the peril of dancing to the media’stune. That is why most judges realise thatit is best to keep a distance.I suspect that this is the reason thatmost judges are not in favour of televisioncameras in courtrooms. For me, this is justa natural development, adapting to thealterations in modern communication. Butfor many judges, they are afraid that overcloseproximity will lead to manipulation.Tiny grabs from complex trials will beextracted to maximise shock, horror andoutrage. Distortion of news about thecourts will be increased. Some judgesmight be tempted to play to the galleryand forget the most important people inthe courtroom – the parties to the case.The Australian judiciary has recentlybecome aware of the research findings ofa legal researcher, Dr Pamela Schulz.She has studied newspaper headlines andstories in her home State, South Australia,from 2002 to 2006. Her study produced aconsistent pattern of reporting which, shebelieves, amounts to an attempt by headlinesto establish what she calls ‘discoursesof disapproval and disrespect’. She thinksthat this is designed to intensify criticismof the courts, to enlarge disapproval anddisrespect for their work and to promote adamaging public attitude of fear and mistrust.Piled on top of distrust of politicians,churches, the monarch and officials, whowill be left to protect the public in the direpredicament described in the headlines?You guessed it: only the media and theireditorialists – supported perhaps by oneor two politicians who dance to the dismaltune.Dr Schulz collects the many screamingheadlines that give rise to this reaction. Alot of these concern the tried and trustedfield of sentencing of offenders. Everyone38 VICTORIAN BAR NEWS Winter 2008

can have an opinion on this subject.Although Australia’s imprisonment rate isnow edging to be one of the higher ratesin the world – much higher than mostEuropean countries – few sentences aresufficient for certain commentators. ‘Anoutrage’, the banner screams. ‘Call forinquiry grows’. ‘Premier orders DPP toappeal’. This is the ‘fear discourse’. But it isbacked up by an attack discourse withdescriptions of judges as ‘Holidaying attaxpayer’s expense’ or ‘Summer nick-off ’.More ‘Outrage’. ‘This is not justice’. And soforth.In interviews recorded by Dr Schulz,Australian judges reacted to these attacksin an generally restrained way. They supportedthe principles of a liberal democracy.They expressed acceptance of themedia’s right to report and also to criticise.But they regretted the lack of real understandingabout the courts. They caredabout criticism and puzzled about how tocounter ignorant and inaccurate reporting.They admitted that being a judge inAustralia is not being in ‘a popularitycontest’. Judges know that they generallyhave to ‘cop it sweet’. After all, their oath isto administer justice ‘without fear andfavour’.Still, there are things that we can do toimprove the relationship between courtsand the media, without getting so closethat judicial, or for that matter media,independence would be endangered.• Judges need to understand media pressures– especially deadlines and brevity.• Judicial reasons need to include pithysummaries that can be picked up to givean accurate idea to the public of whatthe courts are on about.• Media liaison officers in the courts needto be more proactive.• Maybe judges need to reconsider camerasin the courts under strict conditions.Indeed, this is already happeningat all levels.• The appointment of specialist court reportersis an urgent requirement. Specialistcourt reporting has actually fallenoff during my thirty years’ service in thejudiciary.• The media need to understand betterthe judicial role, and maybe judges needto take more time to explain it.• In the age of electronic media, stickingto printed handouts is no longer goodenough. The judiciary somehow needsJustice Michael Kirbyto get into the electronic age and tospeak directly about the dedication,wisdom and devotion that judges usuallydisplay in their often tedious andstressful daily work.One of the interesting reports in DrSchulz’s study describes how courts inthe Netherlands have been prepared toredirect justice reporting by appointingPersrechters or ‘press judges’. These areserving members of the judiciary whowill go on television and radio to explainjustice messages accurately. Accordingto Dr Schulz, these commentators havehelped develop a keener sense of the actualwork that judges do, of its difficulty, of itsimportance and of why superficial reportsand alarmist headlines are often false andmisleading.Maybe it is time for us in Australia towork towards something similar. Sadly, ifwe wait for most media outlets to providequality reports of what really goes on inour courts, we may wait a very long time.Media want it short, sweet and interesting.Judges know, it is often not like that.The age of infotainment is upon us. Butthe judiciary itself needs to help find aworkable antidote. I respect the smallgroup of legal journalists who try hardto report the law as it really is, includingwith justifiable criticism where that iswarranted, as it sometimes is. I honournotable journalists in this class who havedied in the last year – including the outstandingRoderick Campbell of the CanberraTimes. I acknowledge a few fineexemplars who have left the media forgreener pastures, like Marcus Priest of theAustralian Financial Review. I congratulatethe winners of this year’s Legal ReportingAwards. Awarding prizes for goodjournalism on legal matters is admirableand a step in the right direction. But moreis needed. For the good of our society andits institutions of justice, it is time to thinkof radical solutions. We all have a stake inraising the standards.REFERENCESPamela Schulz, Courts on Trial: Who Appearsfor the Defence? Courts, Communicationand Confidence: A Critical DiscourseAnalysis of Politics, the Judiciary andMedia Reporting Justice, University ofSouth Australia, Doctoral Thesis (2007).Pamela D Schulz, ‘Rougher than usualmedia treatment: A discourse analysis ofmedia reporting and justice on trial’ (2008)17 Journal of Judicial Administration 223.VICTORIAN BAR NEWS Winter 2008 39

Ending the Ten O’Clock RushThe Magistrates’ Court has beenworking on modernising its listingpractices. The purpose has been todevelop greater listing flexibility to managethe high volume case-load and achieve delayreduction. The traditional ‘ten o’clockrush’ has intensified many pressures at theCourt. It is obvious that bulk listing affects anumber of factors:• waiting times• separation of parties• case scheduling• making the best use of magistrates time,and• managing the expectations of courtusers.If the Court is to meet its obligations tothe public, it has a responsibility to utilizeits resources efficiently and to provide thebest service for the community. To this end,we have been consulting widely with allcourt users to identify areas of concern andpotential improvements.The significant role that professionalusers will play in assisting the Court tomake the most of the potential gainsoffered by greater listing flexibility inmanaging a high volume caseload cannotbe underestimated.WHY ARE THESE CHANGESNECESSARY?For many years, the Court has publishedits listing protocols for the generalinformation of the public and professionalusers of the Court. It has also been theoperational principle guiding registrars inlisting the Court’s high volume caseload.The need to move beyond the crudeten o’clock rush has been supported bycomments made within the court usercommunity. Recent research conductedfor the Magistrates’ Court 2015 CourtUser Consultation Project showed that thegreatest cause of diminished confidence inthe Court is delay. Waiting to get heard isonly one facet of delay, but it is a recurringsource of criticism of the Court.The question posed by the research wasshould this matter be addressed by thisCourt and if so, in what way. In my view,it has to be, and measures are needed to listin ways that reduce the time people arewaiting at Court for cases to be reached andheard. It has become apparent from workdone by the Court on safety and securitythat reducing the numbers of people waitingaround for their cases also reduces thelikelihood and risk of incidents occurringat courts, which benefits everyone.It is simply no longer acceptable forCourts to bulk list virtually all mattersat ten o’clock. The new listing protocolsintroduce a more sophisticated, more calibratedand better way to handle thisimportant procedure of the Court.WHAT WILL THE NEW LISTINGPROTOCOLS DO?The two main aspects of the initiativesintroduced by the new listing protocolsare:1. A Wider Listing Timeframe: A wideroverall timeframe has been implemented,within which cases are listed day byday for the purposes of accommodatingcertain sorts of cases earlier in the dayor at other specified time periods.2. Time Certainty: Measures have beenincluded to introduce as much timecertainty as is reasonable and practicablein a volume court environment.The new listing protocols will consolidatethe early gains already made in reductionof delays, standardize case listing throughoutthe State while maintaining someflexibility for smaller and country courts,and ensure greater time certainty with lesswaiting demanded of parties to courtproceedings.The inclusion of these initiatives in thenew listing protocols has been based onthe positive results of their piloted introductionat several venues of the Court. TheGeelong Court piloted a 9.30am mentionlist and a listing of all driving applicationsat either 9.30am or 2pm. Prosecutors andlegal practitioners have embraced thesestaggered listing arrangements. There hasalso been very positive feedback from thecourt user groups at Geelong because ofthe introduction of a 2pm listing time forsingle and consolidated guilty pleas, andsome family violence matters.The positive effect of staggered listingtimes in improving time certainty and theexperience of the court user communityhas been evident at the Sunshine, Frankston,Heidelberg and BroadmeadowsCourts. There has been encouraging feedbackat court user group meetings held bythese courts.Following on from these early successesthe Melbourne Court introduced a programof staggered listing on 28 April 2008. Thisprogram includes the listing of all firstmention hearings at 9.30am, and subsequentmention hearings and guilty pleas at11am. Specific listing times now apply toindividual courts following observationof where the main delays were occurringat the Melbourne Court. For instancein Court 1 all summary contest callovermatters are listed at 9.30am. Parties are nowoffered time certainty that their matter willbe heard within 30 minutes of a specifiedtime in Court 7 and Court 8 where partiesmake a request for this no later than the daybefore their hearing. Similarly, Court 12offers staggered listing and time certaintyfor committal summary pleas of guilty.Many of the Court registry staff havereported that the success of these piloted40 VICTORIAN BAR NEWS Winter 2008

initiatives has only been possible due tothe support of legal practitioners and barristers.These professional groups haveassisted the Court by informing and explainingthe new listing timeframes totheir clients. I am very encouraged by thesupport and engagement of legal practitionersand barristers in making a successof the piloted listing initiatives and lookforward to continuing to work with them.WORKING WITH THEPROFESSIONAL USERS OFTHE COURTReadiness for hearing is an issue thatcontinues to be of concern for both theCourt and professional user groups interms of managing time effectively andefficiently. The Court is always interestedin consulting legal practitioners andbarristers to discuss and consider waysof addressing issues that affect the timelyreadiness for hearing.Recently the Court has been in theprocess of developing an electronic filingappearance system (EFAS) to work withprofessional users to achieve time efficienciesfor the Court and greater conveniencefor parties to proceedings. The Courtappreciates the very productive consultationforums held with the profession aboutthe EFAS application. EFAS will be a webbasedapplication that allows professionalusers of the Court to access the Court listto add representation to a case, enter anappearance and request an adjournment,or enter an appearance and update hearingdetails. Court registry staff will be able tobetter coordinate the list at each venueof the Court by using the online enteredinformation.I invite your comments and suggestionsas we move forward with the introductionof the new listing protocols and encourageyou to discuss these changes with yourclients and colleagues. The success of theprotocols is dependent on the continuingproductive and collaborative relationshipbetween the Court, prosecuting agenciesand the legal profession.IAN L GRAYChief MagistrateNew barristers’ clerk appointedThe Victorian Bar has appointed and granted a licence to a new approved clerk,Mark Laurence, who commences 1 July 2008. Mark follows in the footsteps ofPeter Roberts who retired on 30 June 2008.Mark is well known around legal circles to many barristers, solicitors andlegal personnel after almost 31 years in the legal arena. He started as a Clerkof Courts working at numerous magistrates’ courts then was seconded in1981 to help set up the Criminal Trial Listing Directorate as an independentbody responsible for the listing of criminal trials in the Supreme and CountyCourts.He commenced working as assistant clerk to Peter Roberts in November1987 and has continued in that position until his appointment. He also workedin the financial services industry from 2001 to 2003 as a risk planner, providingadvice to lawyers. Mark has a thorough knowledge of the courts, barristersand solicitors’ practices as well as a comprehensive knowledge of the law andits operations and disposition. Also he knows the legal structures in place togive informed communication to help the courts in case flow management.Mark states that he is well aware of the need for change to bring clerkingservices into the 21st century, for example, the use of electronic paymentsystems and fee collection systems to facilitate multiple payment optionsincluding eftpos and credit card collection.His list is open to applications from barristers and solicitors and adopts anequal opportunity policy.The List will be known as Laurence’s List, Clerk P, Lower Ground Floor,Owen Dixon Chambers West. VICTORIAN BAR NEWS Winter 2008 41

Law Week 2008more popular than everEach year Law Week finds new ways topromote greater understanding of the lawwithin the community. We aim to reachnew audiences, raising understanding andaccess to the law and legal services. Thisyear our theme of ‘Reaching Out’ had usfocusing on reaching people with specialneeds, and others who may not otherwisefind easy access to legal information andservices such as rural Victorians, seniors,youth, Indigenous Australians and multiculturalcommunities.Law Week is coordinated by VictoriaLaw Foundation and the Law Institute ofVictoria and is supported by the City ofMelbourne. Held from 12–18 May, thisyear’s Law Week proved to be the biggestever, with more events and more organizationscoming on board to host events. Thisyear 150 organizations including law firms,courts, government departments and arange of public benefit organizations providedover 200 events across the State. Attendancenumbers were also up with manyevents boasting a packed house.The range of events on offer was broadas ever, including a fully subscribedsession held by Deborah Randa fromDisability Discrimination Legal Serviceon ‘Disclosing Disability in Employment’;a one-day seminar by the Law Institute ofVictoria on ‘Legal Essentials for Seniors’;The Honourable Chief Justice Marilyn Warren AC addresses the launch audience in the SupremeCourt Library.and a lively and highly entertainingMonash Great Law Week Debate, whichonce again was extremely well attended.All of these events contribute to a messageof invitation, for people to discover therich culture of our law and justice systemand celebrate the vital role it plays in oursociety.The Arts Law Centre of Australia, MulticulturalArts Victoria and the VictorianArts Law Consortium brought us Arts LawWeek in the week following Law Week.They provided a range of free legal informationseminars for artists, arts organisationsand the creative community. Thisyear a joint launch was held for Law Weekand Arts Law Week at the Supreme Courtof Victoria, with the ‘Passion exhibition’ asinspiration. ‘Passion’ is a unique Arts LawWeek initiative combining the forces oflaw professionals and visual artists tocreate visual art work. By uniting thelegal profession and artists, two seeminglydisparate communities, ‘Passion’ stimulatednew ways of raising awareness andunderstanding of cultural identity andhuman rights.On the Education front, the focus on‘Reaching Out’ was also reflected in thethoughtful entries received in the annualLaw Week school poster competition.Deakin University, Victoria University andthe Commonwealth Bank provided sponsorship,and 250 students entered from 50schools across the State. Prizes wereawarded by Chief Magistrate Ian Gray to acrowd of students, their proud familiesand visitors at the Courts Open Day.VCAT’s Mediation Moot provided ahumourous exploration of the processes42 VICTORIAN BAR NEWS Winter 2008

Judge Felicity Hampel, Professor The Honourable George Hampel AM QC and Passion Artist, Suteaul Altheinvolved in hearing a building dispute atVCAT, and many questions were receivedfrom a clearly engaged audience afterwards.The Victoria Law Foundation LegalReporting Awards proved a very specialoccasion this year. The Honourable JusticeKirby AC CMG presented a stimulatingaddress in which he quoted research byDr Pamela Schulz that shows much mediacoverage amounts to ‘discourses of disapprovaland disrespect’. In holding journalistsaccountable the judge asked journaliststo reflect on how this affects the work ofthe courts in implementing and promotingjustice. The Honourable Chief JusticeMarilyn Warren AC joined Justice Kirbyin recognizing the recipients of the variousawards.For the first time ever, all courts wereopen with tours on Courts Open Day heldon Saturday 17 May. The Supreme Courtalone recorded 450 entries through security.There was a mock trial at the SupremeCourt that was presided over by JusticeHarper, and at the County Court tourswere offered of the high-security, high-tech‘smart-courts’ and an explanation of thejury process by Rudy Monteleone, the JuriesCommissioner. Whilst at the Magistrates’Court a Mock Court Hearing of an historicearly case was held to celebrate the Court’s170th Anniversary and Chief MagistrateIan Gray awarded prizes to the winnersof the School Poster competition. At theChildren’s Court a tour was offered of thecourt complex and a presentation made bythe President, Judge Paul Grant. In regionalVictoria, tours were offered of local courtsthroughout the week.Thank you to all who participated in orcontributed to the best Law Week ever. Welook forward to seeing and working withyou again in Law Week 11–17 May 2009.JOADY DONOVANChief Magistrate Ian Gray with Nimue Shirvington,winner of the regional prize in the Law WeekSchool Poster Competition, and Johann Kirby,Executive Director, Victoria Law FoundationVICTORIAN BAR NEWS Winter 2008 43

The Honourable Chief Justice Marilyn Warren AC, Katy Alexander, Law Instituteof Victoria (accepting Best Illustration award won by Nigel Buchanan of theLaw Institute Journal for ‘The tort of deceit and misrepresentations ofpaternity’), and The Honourable Justice Michael KirbyThe Honourable Chief Justice Marilyn Warren AC was the Legal Professionalwho teamed up with Georgia Metaxas, the Passion Artist, pictured here withher artworkHugh de Kretser, Executive Officer, Federation of Community Legal Centres(Vic) Inc, and Alexandra Richards QC, Board Member of Victoria LawFoundation, with portrait of Legal Professional Judge Felicity Hampel byPassion Artist, Suteaul AltheThe County Court provided guided tours of the high-security, high-tech ‘smartcourtsas well as an explanation of the jury process by Rudy Monteleone, theJuries Commissioner44 VICTORIAN BAR NEWS Winter 2008

Litigation and ADR ConstructionLaw Conference 22 May 2008‘…not to praise him’ 1G.T. Pagone*Ihave a sense that we are all saturatedwith hearing about the problems oflitigation and ADR in constructiondisputes and in commercial disputes generally.In the short time that I have beenthe Judge in Charge of the Building CasesList, I have been struck by the level of dissatisfactionfrequently expressed about theway in which construction disputes are resolved.The dissatisfaction appears to bedeep, widespread and found throughoutthe world. 2 Various and varying solutionshave been put forward over time, 3 withnew or different acronyms giving enticingglimpses into some new hope. 4 Earlier thismonth the Victorian Attorney-Generalannounced a $198.3 million justice packageas part of the State budget to secure‘faster access to justice services and newways to resolve disputes’. 5 On 23 Aprilformer Federal Court Justice Madgwickwas reported as calling for the adversarialsystem to be bypassed in favour of a moreEuropean-style investigatory system forsmaller disputes because litigation costsin such matters are ‘out of control’. 6 TheVictorian Law Reform Commission CivilJustice review currently underway can beexpected to bring some fresh ideas aboutour system in Victoria as a whole and howit might be improved.I can add little to the debate and amconscious that I should refrain from doingso. I will, of course, say something aboutmy own Court’s recent practice direction, 7but I want mainly to express some purelypersonal, and perhaps idiosyncratic, viewsabout some of the current problems withlitigation and dispute resolution (whetheralternative or otherwise). I do not cometo praise the adversarial system but theremay still be much we can do to make itwork better.INEFFICIENT, COSTLY AND SLOWDissatisfaction with the current processof dispute resolution is, in short, that it isinefficient, costly and slow. Some measureof inefficiency, expense and delay is inevitableand (although it may be seen as inappropriateto say so) may even be desirableas a matter of public policy. Inefficiency,expense and delay deter litigation to someextent and in part encourage individualsto absorb loss or to put up with some levelof damage without compensation, and,in part, encourage other non-litigious resolutionor accommodation. There is abody of learning about the social utilityof some bar to discourage litigation andprevent the redress of wrongs. However,every system of dispute resolution shouldaim to be efficient, cost effective and quick.It must also ensure fairness between theparties and should not permit its inefficiency,cost and slowness to be used as atool to advantage some of the disputantsto the disadvantage of others; nor, ofcourse, should its apparent efficiency,cheapness and speed give unfair advantagesthe other way. It is, unsurprisingly, aquestion of balance and neutrality. The detailsof any system may favour one partyover another and the hard task for anyonedesigning a system is to strike the rightbalance between all of the different interestsso that the system itself is neutral anddoes not favour one set of interests overanother.Attempts to improve the system shouldalso take special care to ensure that the improvementdoes not bring new inefficiencies,costs and delay. It is important to lookat what makes the system inefficient, costlyand slow to see whether those causes canbe removed with improved outcomes. Oneof the disappointing discoveries is thatsome of the problems may be caused bypast attempts to make things better. I willgive you some random, and idiosyncratic,examples.Witness statementsIt is now common in much litigation,especially in commercial and constructioncases, for the parties to file and servewitness statements or affidavits before thetrial. This practice comes with much hopeof efficiency: it should avoid ambush, itpermits (where possible) the judge to readthe material in advance of the hearingwithout the need to occupy court timeto learn about the material for the firsttime, it potentially limits areas of disputeand could save hearing time in courtand, therefore, in theory should make thesystem work more smoothly. Sometimesthis hope may be realized, but too oftenthere is disappointment.The reasons for disappointment are nothard to find and lie in the dynamics ofthe task which comes with the design fix.Witness statements tend never to be thewords of the witnesses themselves. Theyare frequently the words of a lawyer put inthe witness statement or affidavit with aneye to the client’s ultimate objective. Oneconsequence of this is that the content ofa witness statement or affidavit may notreliably convey the evidence of the witness.In one case I had there were two witnessstatements by two different witnesses (oneVICTORIAN BAR NEWS Winter 2008 45

an expert and the other a lay witness)which contained several sentences thatwere identical to the point of includingthe same grammatical errors. The wordswere not the kind of words which the laywitness would use and the expert witnessagreed that there were errors. A judgereading witness statements which areobviously not written by the witness mayhesitate in accepting the written word asequivalent to hearing testimony from thewitness directly.The very process of production of witnessstatements has elements which mayundermine the integrity of the trial process.That is because the production by lawyersof witness statements, often juniorlawyers, unconsciously substitutes thelawyer’s evidence for that of the witness.The language, expression and syntax of thewitness statement or affidavit is often thatof the lawyer, rather than that of thewitness; as is (more worryingly) the ‘spin’given by selection and expression of facts.In short, all too frequently what happens isthe very thing which is not supposed tohappen: the evidence given to the judge,and to the other parties, is that of the lawyerrather than of the witness. In my viewthe role of the lawyer, and especially thatof the barristers, should be focussed andconfined to conveying the actual words ofthe witness and ensuring that they arestrictly relevant, admissible in evidenceand probative.To this problem can be added that ofthe length and content of witness statements.In many cases there is a tendencyfor witness statements to be overly long,repetitive and to contain much that is inadmissible.The cause of this is in part anattempt to assist in readability and in parta perfectly understandable caution on thepart of those preparing the witness statements;but the consequence is unnecessarydistraction, additional argument, delayand further costs. I am frequently told thatlarge slabs of witness statements, plainlyinadmissible in form or plainly not relevantto an issue in dispute, are there to assistthe judge by giving context and makingthe evidence readable. That may be themotive for its insertion, but frequently itadds to the length of the material and,equally understandably, provokes objectionswhich take additional time to formulate,argue about and then to determine.Thus, material which began with the hopeof helping becomes the cause of new disputes,cost and delay.The caution of advisers in preparing forlitigation is, in my view, a major cause ofinefficiency, cost and delay. In saying that Iintend no rebuke but, rather, sympathisewith the practitioners. They are frequentlyfaced with having to make difficult judgmentsin circumstances where cautionwill often (if not more often than not) tendto result in decisions which make thingslonger, slower and more complex. A decision,for example, about what facts toinclude in a witness statement is often difficult.A fact need only be established onceby only one witness, but there may be morethan one person capable of doing so. Alawyer preparing witness statements maybe reluctant to have some fact includedonly in one witness statement; or, to putthe matter differently, the natural cautionof lawyers will be to have each witness giveevidence of all facts which each is capableof deposing to (if only to protect the witnessfrom criticism of having deliberatelyfailed to deal with some factual matter).Allied to this is the tendency of includingat least as much as may arguably be admissible.In other words, that the lawyer’s cautionwill tend to put in more rather thanless material and in doing so may be relying,perhaps, on the safeguard that anythingwhich turns out to be inadmissiblemay be ruled out (albeit after objection,argument, consideration, delay and cost).One can see by this brief overview howthe production of an aid to efficient litigationmay readily be the cause of new andlengthy disputes. It is not uncommon fortrials to have large blocks of time devotedto disputes about admissibility due largelyto what had been put in the witness statementsby the lawyers to be ‘on the safe side’.Objections to admissibility are, for theirpart, also often taken out of caution and tobe ‘on the safe side’. Some litigators may beencouraged to object to at least as much asmay reasonably be argued to be objectionableto be ‘on the safe side’. The sum total,of course, is more time, more cost and lessefficiency. What is often absent is a robustconfidence to keep issues, facts and disputesto a strict minimum.Pre-trial mediationMediation and alternative dispute resolutionwere not common when I began topractise law. They have become a commonfeature of litigation and provide an opportunityto resolve disputes before trial.Where successful in resolving disputes,they have achieved an important objective.Where, however, disputes have not beensolved by mediation, the enforced step ofmediation or of other ADR will necessarilyhave added to the total cost and delayof the ultimate resolution of the dispute.Indeed, in some cases, the additional costadded by the step may, ironically, haveadded to the difficulty of settling at ‘thedoors of the court’ immediately before ahearing. Many cases that go to trial haveby that time become disputes about costs.Each party may have ‘invested’ so muchtime and money into the preparation ofthe trial that the chance of winning a costsorder becomes the important ‘possibility’sustaining a litigator’s apparent ‘addiction’to the dispute.DiscoveryThe discovery process is another, if not themajor, cause of inefficiency, cost and delay.The purpose of discovery is fundamentalto a common law system designed toachieve a just and fair result. Ironic as itmay seem, the many explanations of thefunction of discovery include many goodreasons which suggest that discovery willmake litigation efficient. Simpson SBBailey DL and Evans EW 8 say that ‘[t]hemain function of discovery is to providethe parties to civil litigation with relevantdocuments before trial to assist them inpreparing their case for trial or in determiningwhether or not to settle beforetrial’. 9 The learned authors reason thatamongst the benefits provided by discoveryare (a) an early appraisal of the respectivecases of the parties and promotionof settlement (‘thereby saving time and costand relieving pressure on court lists’ 10 ), (b)a reduction or savings of costs by ‘reducingthe issues in dispute and limiting the scopeof the trial’, 11 and (c) preventing surpriseand thereby ensuring the determination ofcases on their ‘merit rather than on theirtactics’. 12 So much for theory!We should, however, be slow to dismisssuch justifications as unrealized wishfulthinking. Indeed, we must be careful notto allow our thinking to be clouded by thedysfunctional cases when we evaluate theeffectiveness of discovery. It is probablethat the process of discovery does achieveits objective in most, indeed perhaps in the46 VICTORIAN BAR NEWS Winter 2008

vast bulk, of cases in which discovery iscompulsory or available. The obligation togive discovery is, in any event, an importantpillar upon which justice is secured. Judges,the public and litigants can have confidencein decisions where truth and inconvenientfacts cannot be concealed. On the otherhand, there are undoubtedly some cases,be they a minority or not, where discoveryrepresents an unreasonable burden. Thechallenge for an efficient, cost effective,timely and fair system is what to do inthose cases.PROPOSALS FOR CHANGERecently there have been many calls forchange and improvement ranging frommore ‘hands on’ case management by judgesto more referrals to mediation or othernon-judicial dispute resolution mechanisms.13 The drivers and dynamics of eachsuggestion are different, and the cost andwill seem to the loser) were not taken awayotherwise than in a process that is fair toall and by a person who both is, and can beseen to be, truly impartial.One of the many fears expressed, oftenprivately, about a judge-managed case systemis a loss of impartiality by the decisionmaker. The fear may have little foundationbut it should not surprise us that thereshould be such a fear, because from thevery start of any case there will be a tusslebetween the parties to persuade the decisionmaker. Every word said, every submissionmade, each document filed, eachcriticism levelled, all evidence tendered,will appear to the other side as a tactic ‘topoison the well’ of the decision maker’smind. It is, after all, the very purpose of theexercise: to create impressions by fact, evidence,conduct, selection and persuasionto bring about a favourable outcome.The judge managing a case ensures thatmanagement does not pre-empt decisiona proceeding will be sufficient for a managingjudge to know how best the proceedingshould be managed at that stage.Indeed, it is a frequent tactic for litigatorsto choose deliberately the timing ofa proceeding to suit the initiating party.A well-prepared plaintiff will have a greatadvantage at the commencement of a proceeding:the case will have been thoughtthrough, some evidence will have beengathered, and (significantly) the plaintiffwill have presented the issues in the pleadingsfor the judge in a favourable way. Tosome extent any advantage thus gainedis removed in a non-managed case list,because the general rules of court providea process and a timetable (subject, ofcourse, to exceptions and modificationswhere necessary orders are desirable) forthe parties set at what might be thoughtto be a standard norm. Where that fixedand independent standard is replaced bythe decision maker managing the process,…the expenditure of money in litigation will have had aseriously distorting effect upon rational decision making aboutthe settlement of a dispute.benefit analysis of adopting one or otheris intrinsically difficult, and the outcomesare difficult to predict. They all sound good,they are all worth considering, but nonecomes without risk and cost.An overriding concern must be that no‘improvement’ should come at the cost ofundermining the impartiality of decisionmaking. It is important that any decisionagainst the interests of a person be by aprocess that demonstrably guaranteesfairness between winner and loser. It iscommon for lawyers to repeat the line aboutthe importance of justice ‘being seen to bedone’, but, however commonplace or trite,it remains an essential objective. Contesteddecision making occurs when individualshave inconsistent and conflicting viewsand claims about their respective rights.The odds are that any decision will be madeagainst the interests and against the wishesof one of them. The losing party, or parties,will be unhappy about the outcome, andhas, or have, a right to expect that their‘legitimate rights’ (because that is how itmaking by proceeding down a path whichmay be quick and efficient but is achievedat the cost of unfairness to the losing partyand at the cost of loss of integrity for thesystem. The party commencing the proceedingmay, usually will, and in any eventusually should, be much better advancedin the preparation of a case than the partyresponding. Those acting for the respondingside may have had such little familiaritywith the facts and issues that they needtime at the commencement of the proceedingget ‘up to speed’, work out howbest to put the facts and issues for theirclient, and to be of meaningful assistanceto the decision maker. This is not alwaysso, because in some instances, the casesonly get to court after a lengthy period ofdisputation between the parties; each withteams of lawyers. In such cases, the disputantsmay all be well prepared and can bepressed to a swiftly managed timetable,but it would be wrong to assume that theimpressions created from hearing fromthe moving party at the commencement ofit will be necessary for care to be taken toensure fairness and impartiality.Another objective should be to minimiseadditional cost in the process of tryingto make things cheaper. Commercialand construction disputes are often fundamentallyabout money. In those cases thereis a real risk that the costs expended inlitigation make it financially difficult toresolve the dispute for no other reasonthan because of the amount of money investedin pursuing the initial claim. Thereare many ways about thinking about thisphenomenon but in the end it is always thesame set of dynamics: how much have Igot at risk (or might I win) and how muchmore will it cost me. A litigant who has alreadyspent $300,000 to pursue a $300,000claim will have little doubt that it is worthspending another $50,000 rather than giveup both the initial claim and the investmentto date even on a claim assessedat only 40 percent chance of success. Thebetting odds might have seemed differentat the outset if told they would have costVICTORIAN BAR NEWS Winter 2008 47

all up $350,000 to pursue a $300,000 claimon a 40 percent chance of success.In too many cases what is at stake inthe end is the costs spent: so much mayhave been spent in getting to the hearingthat the ‘investment’ is too great anamount to forgo for the parties to settle.In other words, the expenditure of moneyin litigation will have had a seriouslydistorting effect upon rational decisionmaking about the settlement of a dispute.There is, however, a real risk that reformdirected to improving case managementwill condemn litigants to such pre-trialexpenditure that the effect will be tomake the overall cost appreciably worserather than better. Huge costs incurredin discovery, creation of court books,preparation of witness statements, etc, do(at least in part) have the effect of lockingthe parties in to a dispute which they mayonce have found it easier to resolve.ADVERSARIAL SYSTEMThe adversarial system has much that iswrong with it. Common lawyers frequentlydefend it with unreasonable passion andby reference to high principle that sometimesseems unconnected with the realworld. Such passioned defences seem alsoto ignore that many civilized, fair and justcountries do not base their judicial decisionmaking on an adversarial system.That said, however, there is much in whatwe have that is worth keeping, not just becauseit may philosophically be a superiorsystem, but because it has (or can have)practical utility and cost efficiencies.A clear example of usefulness and efficiencyin the adversarial system is theplacement upon the parties of the task ofidentifying the issues and evidence. TheState’s role (through judges or other decisionmakers) in deciding a dispute involvesinvestigation of a complaint. The adversarialsystem places upon the parties thepractical cost and burden of working outwhat is relevant to determine the complaint,where to find the facts and evidence,and how best to present it to the personwho must decide. Shifting that role fromthe parties and placing it on to the decisionmaker, may be neither more efficientnor cheaper. Judicial case management,which has the judge become the initiatinginvestigating inquirer into issues, fact andevidence is, rather, likely to produce a slower, less efficient and, ultimately, morecostly process. As always, the critical issuewill be that of striking the right balancebetween competing objectives.The reality is that the adversarial systemhas, or at least can have, a robust vigourthat may need changing and moulding,but still has much to offer to litigation inthe modern commercial world. Leaving tothe parties the task of identifying issues,gathering and investigating facts and evidence,testing the evidence by crossexamination,etc, has the desirable effect ofleaving to those who know the dispute,and who have an interest in the outcome,with the control of what goes into the decisionmaking. They, and not the State, bearthe primary cost of preparation, investigationand research. Evidence of fact is putforward, and tested, by those who knowthe facts and who care about the decisionmaker getting it ‘right’. Expert evidence issought, after detailed and at times extensivesearches, by those with an interest ingetting the information right and with aninterest in excluding information which iswrong. The decision maker will usually bein no position to know what evidence toseek, who to ask, where to find it, or howto test it. Making the decision maker alsothe primary investigator gives the task tosomeone with insufficient time andresources to do the job properly. Under thecurrent arrangement the parties, throughtheir lawyers, may be seen as a kind ofsubcontractor to the judge who undertakethe time-consuming, costly and difficulttasks that the decision maker would otherwiseneed to embark upon personally anddirectly. The lawyers do the investigating,checking, testing and analysis which otherwisethe judge would have to do. It enablesthe decision maker to undertake the finaltask without directly incurring investigationcosts that would otherwise need to bepaid from some source and, importantly,enables the decision maker to continue tomaintain an actual impartiality in theprocess leading to an outcome where therewill be a winner and a loser.There is, however, much room for improvementand I do not wish either tosuggest otherwise or to discourage improvements.Some improvement is capableof being achieved under the current systemwith little more than a willingnessto change and an eye to the ultimate objectives.On 4 May 2008, the Attorney-General announced a pilot project topermit judges to send disputes out of thecourt room and into mediation. 14 I havenot yet seen the details of the project butthere are existing rules which alreadypermit a great deal to be done in thisdirection. Indeed, on 23 April 2008 (notknowing of the Attorney-General’s pilotproject) I ordered a matter to mediationwhich I had commenced to hear. Order50.07 of the Supreme Court Rules alreadyempowers a judge ‘with or without theconsent of any party’ to order any part of aproceeding to be referred to a mediator. Itwould not have been appropriate for me tobe the mediator because, if mediation hadfailed, I might not then have been able toresume the task of hearing and decidingit without an appearance of having prejudgedthe outcome by reason of what mayhave been said to me on a without prejudicebasis by either party during the courseof the mediation. I am pleased to say thatthe mediator in that case succeeded inhaving the parties reach an agreementabout how to deal with their dispute.In the context of construction disputes,the court has this year issued a PracticeNote heralding a new approach to disputeresolution. It has been set up on a pilot basisto test the viability of a new approach tolitigation designed to explore the possibilitythat the time presently being consumed,and the expense presently being incurred,48 VICTORIAN BAR NEWS Winter 2008

y the parties might be moderated by amore intense involvement by the court.Critical, however, to its success will be thecooperation of the legal profession and theparties. The practice direction is availableon the Court’s website and its features aredescribed in paragraph 2:a. A building case should be approachedlike any building project, with timeand cost budgeting.b. Parties will be expected to have engagedin serious settlement discussionsbefore the commencement ofthe proceeding.c. At an early stage a Judge will be assignedto assume responsibility forthe management and trial of the case.d. Judges will be more active and proactivein exercising their powers inorder to seek to achieve a just resolutionof building disputes in a speedyand efficient manner.e. Judges will be mindful of the need notto apply the resources of the partiesand of the Court needlessly or in amanner which is out of proportion tothe matters in issue.f. Lawyers will be expected to approachtheir cases co-operatively and with theobjective of not using the resources ofthe Court and of the parties needlesslyor in a manner which is out of proportionto the matters in issue;g. Lawyers will be encouraged to focuson the central issues in the case.h. Judges will keep the number of directionshearings to a minimum.i. Where possible, interlocutory applicationsshould be determined on thepapers.j. Opposed interlocutory applicationswill, where appropriate, be referred toa Master.k. Where costs of a directions hearingare ordered to be paid, they will, ifpossible, be fixed.An important feature of the new approachis what is called ‘a resources conference’to be convened shortly after the pleadingsare closed. The point of the resourcesconference is for the parties to focus onthe proper management of the dispute ina timely, efficient and costly basis.It is too early to see what effect the newapproach will have on the conduct ofproceedings. What is important, however,is the clear and unequivocal signal fromthe Court of its willingness to do its part inmaking litigation less costly, more efficientand faster.For its part, the profession will need tostep up and perhaps to reassert its role inproducing a more efficient, less costly andfaster product for clients and Courts alike.It has long been the law that the barristerpresenting a case in Court ‘is personallyresponsible for the conduct and presentationof [the] case and must exercise personaljudgment’. 15 Many of the rules ofCourt are directed at attempts to produceefficiency. The requirement that a pleadingbe signed, for instance, acts as a voucherthat the case is not a mere fiction, 16 givingsome assurance to the court by a barrister,as an officer of the Court, that there is substancein the claim. Rules of pleadings,rules of evidence and rules of conduct areall ultimately directed to the legal professionpresenting materials to the decisionmaker in a way that limits the dispute fordecision making. By the time a case comesto trial the issues for decision makingought to have been reduced rather thanincreased. The role of the legal profession,and the responsibility of the legal profession,is to help in the process of decisionmaking by reducing what is left for thejudge to decide. The lawyers ought, in theprocess of preparing for the trial, to haveidentified what is in dispute between theparties, to have reduced the dispute to thatwhich cannot be agreed between the parties,to have reduced the evidence beforethe decision maker to that which is relevant,necessary and admissible. The skill ofthe lawyer, and the value which lawyersshould add to the preparation for litigation,is in predicting the outcomes andapplying predictable rules to the issues andfacts in dispute. Much of the work whichthe decision maker is asked to do in siftingfacts, issues and evidence should, in myview, have been done by the legal professionbefore the case comes on for hearing.The best outcome of a judge-managed casemay perhaps be in aspects of the preparationof a case which enables the lawyers tolimit areas ultimately for resolution by thejudge.It is likely that no change will lead to alasting improvement without all involvedin litigation playing their part in the samedirection. I have said nothing about oneserious obstacle to improvement thatshould not go unremarked. The fact is thatit is not always in everyone’s interest for adispute to move smoothly, quickly andwithout cost. Claims or defences are sometimeswithout merit and sometimes it is inthe interest of one or more of the parties toproduce delay at whatever cost it may require.In other words, we should not forgetthat sometimes someone benefits from delayand cost and wants to encourage delayand cost. No system should ignore that asan active dynamic. However, putting thatto one side, there is much room for improvementin the system as it is, and boththat and any change to it will need the willingco-operation of all participants tomake it work.* Judge of the Supreme Court of Victoria, Judgein Charge of the Building Cases List.NOTES1 ‘Friends, Romans, countrymen, lend meyour ears; I come to bury Caesar, not topraise him. The evil that men do lives afterthem, the good is oft interred with theirbones’. Shakespeare, Julius Caesar III, ii(79).2 See for example, Giudice Marcello Marinari‘ADR and the Role of Courts’ (2006) 72Arbitration 49–52.3 Paula Gerber and Bevan Mailman ‘ConstructionLitigation: Can We Do It Better?’(2005) 31 Mon LR 237–257; Justice DByrne ‘Building Cases – Some Thoughts onInnovation’; Supreme Court Practice NoteNo. 1 of 2008; Justice D Byrne ‘The BuildingContractor and Practice Direction Note1 of 2008’, Paper Presented to the MasterBuilders Association, 16 April 2008.4 ADR (Alternative Dispute Resolution),PAP (Pre Action Protocol) etc.5 ‘State Budget 2008’, from the Deputy Premierand Attorney-General, 6 May 2008.6 ‘Relief for small litigators urged’ The AustralianFinancial Review (23 April 2008) 5.7 ‘Building Cases – A new approach’, SupremeCourt Practice Note No. 1 of 2008.8 Discovery and Interrogatories (1984).9 lbid,1.10 Ibid, 1–2.11 Ibid, 2.12 Ibid, 2.13 See above at p. 1.14 Melissa Fyfe, ‘Judgment day looms foroverloaded legal system’, The Age, 4 May2008.15 Halsbury’s Laws of England Volume 3(1)(2005 reissue) para 550.16 Great Australian Gold Mining Co v Martin(1877) 5 Ch D 1, 10 (James LJ).VICTORIAN BAR NEWS Winter 2008 49

The anniversary of the Essoign ClubIt does not seem five years since the ‘new’opening of the Essoign Club on the firstfloor of the refurbished Owen DixonChambers. Many take for granted thatthe Victorian Bar has its own modern andsuccessful club with a vibrant restaurantand bar.Club Vice Chairman Philip Dunn QCaddressed those who came to celebrate thefive years of successful operation of theclub. He reminded all of the past. Of theearly dining room on the 13th floor ofOwen Dixon Chambers. Of the fight togain a liquor licence, opposed by all andsundry public houses in the vicinity ofWilliam Street and the more wowserishmembers of the Bar who feared wantondrunkenness and a deterioration of themoral standards within the Bar. Of howthe club flourished on the 13th floor, becomingthe social and collegiate centre ofthe Bar, not only for lunch and drinks, butdinners, list drinks, and all manner offunctions for the rapidly expanding specializedgroup and associations of the Bar.But the 13th floor premiseswere fraying at the edges.Even the famous orange netcurtains (chosen after muchsearching and discussion bylife member Judge FrankWalsh, and then being theheight of fashion in the seventies)were looking a littleforlorn, as forlorn as OwenDixon Chambers itself.So Owen Dixon was to berefurbished and revitalizedfloor by floor. But where didthat leave the Essoign Club?Acceptance of a sleek newfitout on the first floor was not plain sailing.Many argued that the Bar could notafford to have such a large space occupiedwithout rent. That rent must be paid or theClub disappear. But with strong supportfrom Barristers Chambers Ltd, plans forthe club went ahead and the successful clubpremises of today are the result.Philip reminded the assembled gatheringthat ours was the last Barristers Club tocontinue in operation in Australia. TheNew South Wales Club, with that Bar’sscheme of scattered chambers, not underthe control of a central company, closed itsdoors some years ago. The other States donot have similar clubs. He reminded allthat the club is central to the collegiatespirit of the Bar – a place where barristersand judges can escape, where juniors canmeet seniors, and where all can unwindwith war stories and idle gossip. He emphasizedthat the club has gone fromstrength to strength in the five years sincerevelation. Not only is lunch and bar useincreased, but the club is very much thecentre at night for special dinners, drinks,conferences and functions.It was fitting that the centre of the celebrationswas a very large chocolate cake(pictured on this page ). The cake featured‘the dancing barristers’, the symbol of theclub created by Judge Graham Crossley(Croc), which featured greatly in the 1984Victorian Bar Review. Those present partookof the cake, various libations, and excellentfinger food – a memorable evening.One can only trust that the Essoign Clubwill continue on and flourish for manydecades, and it remains in a building containingthe vast majority of the Bar (bothEast and West). The clamour of a few of50 VICTORIAN BAR NEWS Winter 2008

the whispering ilk to break up chambersand ‘leave the business of barristers chambersto the commercial market’, wouldeventually lead to the end of the EssoignClub. But those folk live in a tiny sectionwithin the commercial law bar, not caringfor the majority nor the benefits of BarristersChambers. It is doubtful that they aremembers of the club, nor indeed that theyare real barristers.Of great significance to the success ofthe club is the work of the club ManagerNick Kalogeropoulos. Without him theclub would not have been the success itis today. It was a little unfortunate thatclub Chairman Colin Lovitt QC couldnot attend. It is his personality and drivealong with former chairmen and committeemembers that will see five years’ successturn into ten, twenty and perhapsforever. May the Essoign Club continue toprosper.Martin Randall, David Beach SC, Gerry Butcher, and Graeme Clark SCPaul Elliott QC and Robin Brett QCBill Pinner and Rohan HamiltonPhilip Dunn QC, Bill Coady and Judge Michael McInerneyDavid Gillard and Anthea MacTiernanVICTORIAN BAR NEWS Winter 2008 51

Fiona Ryan, Thomas Ashton, Deborah Mandie and Jennifer DigbyJudge Katherine Bourke and Richard Smith SCVice Chairman Dunn QC addresses the gatheringNick Kalogeropoulos, Manager of the Essoign Clubcutting the cake52 VICTORIAN BAR NEWS Winter 2008

Creating JusticeAustralian Women Lawyers(AWL) held its second nationalconference in Melbourne on12–14 June 2008.The conference was wellattended by delegates andspeakers from around Australiaand New Zealand.Attorney-General Rob Hulls, Chief Justice Marilyn Warren, Fiona McLeod SC and Caroline Kirton atthe opening receptionThe theme of the conference,Creating Justice, was inspired by thechallenge issued by AWL Patron,the Honourable Mary Gaudron QC whosaid at the AWL ten-year anniversary inSeptember 2007 that ‘the real task that liesahead is the work of creating justice, andcreating justice not just for a section of thecommunity, but for all of it.’Chief Justice Marilyn Warren AC andAttorney-General Rob Hulls welcomeddelegates at the opening reception in theSupreme Court of Victoria Library onThursday 12 June. At the opening, ChiefJustice Warren spoke of the challenges andthe privilege of appointment to judicialoffice, while the Attorney affirmed hiscommitment to appointments and equalopportunity briefing principles and calledon the Bar to consider financial supportfor Bar readers and a part-time Readers’Course.Keynote speaker and incoming patronof AWL, Chief Justice Diana Bryant,spoke on how women working in thelaw might shape our personal responseto the challenging environment in whichwe live. She referred to women who hadbeen publicly and privately mistreated bythe legal system and proposed ‘the TeresaBrennan Award’ to recognize the womanworst treated by the law, in memory of thefeminist academic allegedly named postmortemas the speeding driver of the carof a well-known NSW judicial officer.The Chief Justice of New Zealand, theRight Honourable Dame Sian Elias, attendedthe conference and delivered aninspiring keynote address. Her Honourspoke of the difficulties of participation ofwomen in the legal profession in New Zealandand the role of women lawyers inshaping the law and legal method.Other speakers included Justice MarciaNeave; Pamela Tate SC, Solicitor-Generalfor Victoria; Elizabeth Broderick, the SexDiscrimination Commissioner; and ChiefCommissioner of Police, Christine Nixon.Associate Professor Judith Fordham spokeof her research on the influences on juriesinside the jury room and the impact offear and intimidation on verdicts. MicheleWilliams SC spoke of the work of theVictorian Sexual Offences unit, providingdelegates with an overview of the changingway that sexual offences are investigatedand prosecuted in Victoria.VICTORIAN BAR NEWS Winter 2008 53

Solicitor-General Pamela Tate SC, Fran O’Brien SC, Elizabeth Wentworth and Karin Emerton SCJustice Marcia NeaveAn Indigenous Forum was also held,discussing the impact of the interventionlegislation on Aboriginal communitiesand raising serious concerns at the lack ofconsultation with local communities. Thespeakers called for compensation for thestolen generation, with moving stories ofhurt and humiliation.The final sessions included presentationsby Professor Gillian Triggs, Justice ShanTennent, Justice Susan Kenny and JusticeKatharine Williams.The conference produced a communiquéwhich commits to the elimination ofdirect and indirect discrimination againstwomen in the legal system and in the administrationof justice. It proposes nationaland international measures supportinggender equality and the empowerment ofwomen. The statement includes a call fora statutory bill of rights, parental leavepolicies, specific immigration and discriminationreforms, measures to improvethe representation of women includingAboriginal and Torres Strait Islanders indecision-making roles, and a range ofinternational human rights measures includingsupport for the UN MillenniumDevelopment Goals. The statement isintended to guide the direction of AWLpolicies and activities in the future. A copyof the statement is available on the AWLwebsite at .Magistrate Felicity Broughton, Michele Williams SC and Robin HaniganAWL is extremely grateful for the supportof their sponsors, including their SilverSponsors LexisNexis and the Attorney-General’s Department, and the SupportingSponsors which included the VictorianBar, the Women Barristers Associationof Victoria, the Queensland Law Society,the Bar Association of Queensland, theLaw Council of Australia and MallesonsStephen Jaques. Our next conference isscheduled to be held in Brisbane in 2010.Fiona McLeod SC is the President ofAustralian Women Lawyers.54 VICTORIAN BAR NEWS Winter 2008

Support for Indigenous barristersThe Indigenous Lawyers Committeeof the Bar has held its annualfunction for Indigenous lawyersand law students. The functionwas attended by almost all ofMelbourne’s 30 Indigenous lawstudents.The function was very well supportedby members of the Bar, includingthe judiciary (with a numberof Federal, Supreme and County Courtjudges in attendance, as well as JusticeSusan Crennan of the High Court).This year’s function was held in conjunctionwith the Law Institute of Victoria.The involvement of the Law Institute isseen as vitally important to the success ofthe Bar’s campaign to attract Indigenouslawyers.There are three Indigenous barristers atthe Bar, Hans Bokelund, Brendan Louizouand Munya Andrews, with more expectedin coming Readers’ intakes.Despite this success, Hans Bokelundobserved in his speech at the function thatfor the Bar to properly reflect the proportionof Indigenous people in the population,there would be in excess of 50Indigenous barristers at the Victorian Bar.Dr Mark Rose, Hans Bokelund, Iresha Herath and Colin Golvan SCVICTORIAN BAR NEWS Winter 2008 55

Helen Christensen, Justice Sue Crennan AC and Daniel BriggHans called on solicitors and barristersto contribute to the project by assisting thenew Indigenous barristers in getting briefs.He proposed an affirmative briefing policyin the manner of the policy adopted in favourof women barristers.Dr Mark Rose, the General Managerof the Victorian Aboriginal EducationAssociation, spoke on the importance ofeducational and professional opportunitiesin addressing issues of reconciliation. Hepraised the legal profession for its programsto promote Indigenous representation inthe profession.The function also provided an opportunityto further promote the IndigenousBarristers Fund, which was established in2007 to assist new Indigenous barristers inovercoming some of the financial obstaclesin commencing their careers at theBar. The Fund is tax deductible and continuingsupport is sought from membersof the Bar (details are available on the Bar’swebsite).The Bar has extensive contact with Indigenouslawyers and law students throughits long-established mentoring programfor students, as well as a paid summerclerkship program (which is run in conjunctionwith the Supreme Court and theJudicial College). This year, three Indigenouslaw students participated in theprogram: Angelic Martin and JosieClements (studying at Deakin University)and Joseph Clifford (studying at MelbourneUniversity). The Bar also has reserveda place in each Readers’ intake foran Indigenous Reader and has waivedthe Readers’ Course fees for Indigenousparticipants.Members of the Indigenous LawyersCommittee have also attended this yearat Deakin University to speak withIndigenous law students about the Bar’sinvolvement with Indigenous lawyers. TheCommittee also works closely with theVictorian Indigenous Lawyers and LawStudents Association, Tarwirri.In September, the Bar will be hosting amajor welcome function for delegates tothe National Indigenous Legal Conference(being held for the first time in Melbourne),and will be providing significantadministrative support for the Conferenceas well as financial assistance (through agrant obtained by the Bar from the VictorianLaw Foundation) for the setting up ofa Conference website.COLIN GOVAN SC56 VICTORIAN BAR NEWS Winter 2008

Inaugural Patron of theWomen Barristers AssociationOn 21 April 2008, 50 women barristers gathered at a function on the 11th floorof Owen Dixon Chambers West to celebrate the Chief Justice becoming the firstpatron of the WBA.Caroline Kirton, current convenor of the WBA, welcomed to the function themembers and friends of the WBA; the honoured guest, the Chief Justice; pastconvenors of the WBA, being Judge Rachel Lewitan QC from the County Court,the founding convenor, Fran O’Brien SC, Helen Symon SC, Simone Jacobson and FionaMcleod SC; two past presidents of Australian Women Lawyers, Alexandra Richards QCand Jennifer Batrouney SC; and Judge Sue Pullen from the County Court.Caroline went on to give the following address:WBA has never had a patron before. The Honourable Mary Gaudron QC has been thepatron of AWL since it was founded over a decade ago. The Chief Justice is the patron ofVictorian Women Lawyers.Why do we need a patron? I think it is about symbolism.In the decade since WBA was formed, it has achieved many things. WBA has:• sought to advance equality and equality of opportunityfor women at the Bar. This has been achieved especiallyby promoting awareness of issues which particularlyaffect women at the Bar;• provided a social network for women barristers;• highlighted and worked towards eliminating discriminationagainst women in the law.No better example of WBA’s continued support of theseobjectives is its financial sponsorship of AWL’s SecondNational Conference (held in Melbourne on Friday 13 andSaturday 14 June 2008. The theme of the conference was‘Creating Justice’).The Chief Justice is one of the leading female membersin Australia.She was appointed Chief Justice of the Supreme Courtof Victoria in November 2003. She is the first woman tohave been appointed as a Chief Justice in Australia. She is agraduate of Monash University.Fiona McLeod SC with the Chief Justice Marilyn Warren ACVICTORIAN BAR NEWS Winter 2008 57

Simone Jacobson and Sarah MansfieldCaroline Kirton addressing the gatheringMichelle Quigley SC, Alexandra Richards QC and Susan Brennan58 VICTORIAN BAR NEWS Winter 2008

The Chief Justice commenced her legalcareer in the Victorian Public service andwas admitted to practice in 1975. Shesigned the Roll of the Victorian Bar in1985 and practiced predominantly in theareas of administrative law, commerciallaw and town planning. In 1997 she wasappointed Queen’s Counsel. In 1998 shewas appointed to the Supreme Court ofVictoria and presided in all jurisdictions,in particular the corporations list and thecommercial list of which she was judge incharge.The Chief Justice was admitted to theDegree of Doctor of Laws by Monash Universityin 2004. In June 2005, the Chief Justicewas made a Companion in theOrder of Australia for her services to thejudiciary and the legal profession in thedelivery and administration of law in Victoria;to social and economic conditionsof women; and to forensic medicine internationally.The Chief Justice is the President ofthe Victoria Law Foundation, Chair ofthe Judicial College of Victoria, Chairof the Council of Legal Education andChair of the Victorian institute of ForensicMedicine.On 7 April 2006 the Chief Justiceassumed the role of Lieutenent Govenorof Victoria.The Chief Justice has been a longstandingsupporter of WBA and VWL.With the Chief Justice as our Patron itsends a clear symbolic message to the Bar,the legal profession and to the wider communitythat the Chief Justice supports theobjectives of WBA.We thank the Chief Justice for agreeingto be our Patron.Cornelia Fourfouris-Mack, Amanda Wynne, Fotini PanagiotidisFiona Alpins and Alexandra Richards QCA toast to the Chief Justice followed.Thereafter the Chief Justice respondedinformally, noting that if women barristerswere offered judicial appointment by theAttorney-General they should accept it. Shealso spoke of the rewards and challenges ofbeing on the bench.SIMONE JACOBSONJennifer Digby, Meg O’Sullivan (and child) and Leonie EnglefieldVICTORIAN BAR NEWS Winter 2008 59

SPORTTheWORLD GAMEat the BarGroup shot of all players in both games, withMelbourne Victory’s Grant Brebner at far rightOn Saturday 5 April there were twosoccer matches of note played atDarebin International Sports Centre.In both matches the barristers playedagainst the solicitors.The matches were played in perfect conditionson artificial grass. The older membersof the teams wished their legs were asnew as the grass. The referee was an officialappointed by Football Federation Victoria.Whilst assuming the role of keeping barristersin line is something a judge couldhave done, no judge volunteered to wearthe required referee’s shorts.After dismissing submissions by thewomen barristers’ team for shorter halves,the women’s match commenced. Some ofyou may be surprised to learn that despiteonly having a team of three (RebeccaLeshinsky, Julia Greenham and GeorginaCostello) the women barristers’ team beatthe solicitors’ team. This was because thesolicitors kindly allowed the barristers toswell their numbers with various solicitorsand a paralegal who stepped in to helpout. Thus, without undergoing the ordealof video exercises, several solicitors transformedinto barristers temporarily andappeared for the Bar on Saturday. Somecomplained later of a headache, which mayhave been from cranium swelling experiencedafter solicitors became barristers, orit might have been from dehydration.The winning goals in the women’s matchwere not scored by a barrister or solicitorbut by Angela Talevska, who is studyingLegal and Dispute Studies at RMIT andplays soccer in a women’s indoor soccerteam sponsored by Greens List each Sunday.It was extremely fair of the solicitorsnot to reverse their decision and claimback some of the solicitors playing for thebarristers’ team after Angela scored thefirst goal. In addition, Tiffany Veschetti ofClayton Utz dominated the Bar’s back lineand Annabel Haslam, a solicitor at theVictorian Institute of Teaching, was veryhandy in the midfield. Unfortunately forthe Bar, Tiffany and Annabel have so farresisted pressure to sign up for the Readers’Course next year.The second match was the men’s match.The Bar had a full team and a few reserves.The solicitors won 3:2 after a tight contest.The game was played in good spirit.There were no yellow or red cards brandishedand even less sledging from the60 VICTORIAN BAR NEWS Winter 2008

Hamish Austin with a shot on goalbarristers’ team than can sometimes beheard at Bar tables.The solicitors scored the first two goals.The Bar team fought back to level thescores. Hamish Austin scored first, followedby Sebastian Clarke (son of Marcus). Thesolicitors struck again with a few minutesto spare. The goal scorers for the solicitorswere their captain, Chris Ketsakidis ofMaurice Blackburn, who scored twice, andJohn Pesutto of DLA Phillips Fox.Magistrate Brian Wynn-Mackenzie presentedthe inaugural ‘Barristers v Solicitors’shield to the captain of the solicitors.Brian also presented the Man of the Matchmedallion to the Bar captain, Nick Terziovski.Nick had been nominated by thereferee.Peter Agardy was the coach of the men’sBar team. Chris Nikou, a partner of Middletons,was the coach of the solicitors’team. On the day the solicitors had theassistance of Grant Brebner, who plays forMelbourne Victory. The women barristerswere without a coach (but somehow wonanyway).The Bar won the first match 2:0 and lostthe second 3:2. One of our players calculatedthat the Bar won the day on aggregate.It was a great event, and we look forwardto many more like it.GEORGINA COSTELLOAND PETER AGARDYThe men’s Bar teamAnabel Haslam (left) and Suzy WilsonVICTORIAN BAR NEWS Winter 2008 61

LAWYER’S BOOKSHELFEquitable Obligations: DutiesDefences and RemediesBy Malcolm CopeLawbook Co 2007Pages i–iv, Preface v–vi, Acknowledgmentsvii–viii, Contents ix, Table of Cases xi–xl,Table of Statutes xli–xliv, 1–470,Index 471–488Equitable Obligations is one of a flurry ofrecent books dealing with the practicalaspects of equity. The author confines himselfto analysing the particular duties offiduciaries, including trustees. Broaderequitable obligations which arise fromnon-fiduciary relationships (such as thosegiving rise to the duties to avoid actingunconscionably or exercising undue influence)fall outside the scope of the book, asdo the common law duties which attach tofiduciaries (for example, the contractualand tortious duties owed by professionaltrustees).Chapter 1 provides a short analysis ofthe equitable duties owed by trustees. Thebroader general fiduciary duties of loyaltyand fidelity are explored in Chapter 2. Thisdiscussion allows the author to explore thedistinction between the natures of fiduciaryand tortious duties, and the need forclaimants to carefully delineate betweenalleging a failure to do some positive act(which might give rise to tortious liability)and an allegation that one of the proscriptivefiduciary duties has been breached.Chapter 3 deals with the identification offiduciaries, and describes the recognizedclasses of fiduciaries. Chapters 4 and 5 considerbreaches of the duties owed by trusteesand fiduciaries, respectively. Chapter 6deals with third parties’ liability for suchbreaches. Chapter 7 deals with defences.Chapter 8 describes the range of personalliabilities created by a breach of the duties.Chapters 9 and 10 set out the requirementsfor proprietary relief for breaches ofthe duties, building on the author’s earlierwork, Proprietary Claims and Remedies.Perhaps for that reason, the two chaptersare a more comprehensive analysis ofequitable proprietary remedies than isstrictly necessary for a book of this sort. Farfrom being cause for criticism, the detailedanalysis provided by those chapters adds tothe book’s practical utility. Chapter 10 includesa discussion of the processes of tracingand following – doctrines often invokedin claims against defaulting fiduciaries ortheir cronies, particularly those who havereceived the proceeds of a defalcation.Unsurprisingly, many words are also devotedto the essential topic of competingpriorities.Equitable Obligations is an excellentwork. It provides a lucid outline of theprinciples governing the obligations offiduciaries and the consequences of abreach of those obligations. This outlineis supported by ample reference to recentauthority. The book is a valuable referencefor those practising in any of the manyareas of law in which fiduciaries areinvolved.STEWART MAIDENClimate Law in AustraliaEditors: Tim Bonyhady and Peter ChristoffThe Federation Press, 2007Softcover 315 pagesThe editors of Climate Law in Australiaargue a number of factors including a lackof political will has resulted in Australia’spoor greenhouse performance. It was notuntil 2006 that climate change became amajor political issue. A number of factors,including the most severe drought sinceEuropean settlement, and the appreciationof the economic consequences of globalwarming, have generated widespreadmedia coverage. Whilst climate legislationin Australia remains modest it has beenleft to courts and tribunals to test weaknessin government policy. This comprehensivetext examines, through the workof various authors, key federal and Statelegislation and the main cases broughtbefore Australian courts.Authors include leading academics suchas Professors Robyn Eckersley, David Farrier,Rob Fowler and Jan McDonald, aswell as leading practitioners Charles Berger,Kristy Ruddock, Chris McGrath, AllisonWarburton and Martijn Wilder.Whilst addressing international aspectsof climate law the main focus of the textis Australian legislation and case law.Topics include the Kyoto Protocol and itsalternatives, the greenhouse trigger, carbonemissions and trading, and geologicalsequestration law in Australia. There isalso a chapter dedicated to nuclear law.A number of important climate caseshave been determined since 2004, includingthe Hazelwood Power Station case here inVictoria, the Bowen Basin and Xstrata CoalMines cases in Queensland, and the AnvilHill open cut mine case in New SouthWales. Each of these cases has a dedicatedchapter, revealing the torturous path thatconservation organizations have had totake in protecting the environment.An interesting chapter deals with whatauthor James Prest describes as the BaldHill Wind Farm debacle, which manywill recall shot the orange-bellied parrotto fame yet again. In what could be bestdescribed as an episode from Yes, Minister,Dr Prest analyses how Bald Hill not onlyhighlighted the state of climate law inAustralia, under the previous Howardgovernment, but also showed generallythe lack of legislative response to climatechange to date.Whilst the subject matter is at timesdense, Climate Law in Australia is athoroughly readable text which providesnot only a history of the legislation andcases to date but which also argues thatAustralia still has a very long way to go inresponse to climate change.Principles of AustralianSuccession LawBy Ken MackieLexisNexis Butterworths, Australia, 2007Pages i–liv; 1–316; Index 317–325Principles of Australian Succession Law isthe successor to an earlier text, Outline ofSuccession by Burton & Mackie (first ed.1995, second ed. 2000).In his Preface to Principles of AustralianSuccession Law, the author states that ‘theaim of the text is to provide a concise, butreasonably comprehensive, coverage of thecurrent law of succession in Australia…It62 VICTORIAN BAR NEWS Winter 2008

is aimed primarily at the undergraduatelaw student…but may also prove helpfulto others involved in the area of succession…’ The author has well exceeded thismodest aim and this concise text will beof use not just to law students but alsopractising lawyers and others, includingtestators, executors and administrators(personal representatives), beneficiariesand others interested in the will makingand estate administration processes.The text provides an initial analysis ofvarious aspects of will making includingmental elements, formal requirements,revocation and alteration, re-publicationand revival of a will. (See generally chapters2 to 6). A specific chapter is devoted toconstruction of wills, although clearly thecoverage of this topic is not as comprehensiveas that found in the new work byDavid M Haines QC, Construction of Willsin Australia (LexisNexis Butterworths2007).Chapter 10 is devoted to family provisionin the context of testamentary dispositionsand deals with the ‘new law’ in thisarea in all jurisdictions in Australia.Although there are distinct differences betweenthe various State family provisionregimes there is also much similarity. It isalso true that each specific State provisionmust be read in light of specific State courtdecisions, nevertheless the coverage in thischapter is comprehensive if necessarilygeneral.Further chapters deal with distribution,personal representatives and grants ofrepresentation (see chapters 9, 11 & 12).Chapters 13 and 14 deal with the administrationprocess, particularly the duties,powers, rights and liabilities of personalrepresentatives charged with the responsibilityof administering a deceased estate.This chapter is not limited to the mechanismsfor the collection and distributionof the assets of the deceased but includesdiscussion of duties in relation to thefuneral and disposal of the deceased’s body.Principles of Australian Succession Law isa most useful work. It provides the readerwith access and understanding to principlesof succession law on an Australia-widebasis. By use of the index and footnotesspecific areas of interest in the text can beaccessed and avenues of further enquirydeveloped. While the work is aimed atstudents, it is clearly a work that will beof use to a wider audience. Principles ofAustralian Succession Law should find aniche on the shelves of practitioners aswell as others interested in specific aspectsof Australian succession law.P W LITHGOWCommonwealth LegislationCollection (2nd edition)By LexisNexis, Butterworths, 2007Pages iii–v; 1–92The LexisNexis Commonwealth LegislationCollection combines the Commonwealthof Australia Constitution Act, Statuteof Westminster Adoption Act 1942, AustraliaAct 1986 and the Acts InterpretationAct 1901 in one convenient portable editionand is 5mm thick × 236 × 166mm.Whilst not pocket sized, it will slip into abrief case, backpack or A4 folder and ismuch simpler than having four separatepieces of legislation. The text is clearly setout in Times Roman with bold headings,making it easy to read.As the legislation is the foundation of theAustralian legal system and federal systemof government, it is ideal for students andthose who are commencing their studies inConstitutional Law. Practitioners will alsofind it a convenient reference tool becauseof its size and portability.The publisher has also provided a linkto its site containing a selection of relevantState legislation that can be viewed ordownloaded in pdf format.CJ KINGThe Law of RescissionDominic O’Sullivan, Steven Elliott, and RafalZakrzewskiOxford University Press, Oxford 2008lxxiii + 699 pages, including indexThe foreword to this book describes it as‘an ambitious, even a courageous work’. Thewriter may or may not be using the word‘courageous’ in the sense of Yes, Minister.Apart from the frequent confusion andambiguity about the use of the term‘rescission’, and the multiple meaningswhich lawyers give it, the legal difficultiessurrounding the concept of rescission areoften considerable, and the cases complex.The authors of this book have also attemptedto provide a comprehensive workwith references to authorities from manyof the main common law jurisdictions, includingAustralia, Canada, Hong Kong,Ireland and New Zealand as well as theUnited Kingdom. Even more impressively,they have been able to express their viewsin concise and comprehensible propositionswhich are well organized into paragraphsand subject headings. The result isa clear, concise and authoritative textwhich is easy to use. One can only takeone’s hat off to them.The work commences with introductoryparagraphs setting out the authors’position about the terminology of ‘rescission’,including the different meanings ofthe word itself, and the contractual andtransactional situations when it will beavailable. They also consider its interactionwith independent claims for damages,equitable compensation and account ofprofits, and the historical foundations ofrescission both at law and at equity. Theauthors then consider the grounds onwhich rescission will be available, includingmisrepresentation, non-disclosure,duress, undue influence, mistake, impairedcapacity and unconscionable bargains,conflict of interest and third party wrongdoing.A third part of the book considersrescission by election and by Court order,and a fourth part, the doctrine of restitutioin integrum, including mutual restitutionat law and equity, proprietary claims andother matters. There is also consideration ofthe role of third party rights in the doctrineof rescission, and other bars to rescissionincluding affirmation, delay, estoppel,insolvency, contractual provisions andother matters. A final section deals withgifts and deeds.Overall, this is a work of considerablescholarship and utility. These featuresare rarely combined in a legal textbook.Notwithstanding its hefty price (eventhough an Australian dollar buys moreof a pound than it used to), this is a bookwhich I would recommend for the libraryof any chambers where contractual orcommercial work is done.MICHAEL GRONOWVICTORIAN BAR NEWS Winter 2008 63

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