Chairmen of Standing Committees of the Bar Council
Academic and Continuing Legal Education Committee
L Forsyth Q.C., N.H.M.
Applications Review Committee
R Redlich Q.C., R.F.
Bar Constitution Committee
D Barnard Q.C., J.E.
Bar Staff Committee
G Middleton Q.C., J.E.
Child Care Facilities Committee
R O'Brien, F.r.
Counsel Committee
F Uren Q.C., A.G.
Equality Before the Law Committee
G Lewitan Q.C., R.A.
Ethics Committee
F Zichy-Woinarski Q.C., W.B.
Indonesian Legal Aid Committee
D Fajgenbaum Q.C., J.I.
Law Reform Committee
M Moshinsky Q.C., N.A.
Legal Resources Committee
W Jessup Q.C., C.N.
Past Practising Chairmen's Committee
D Francis Q.C., C.H.
Professional Indemnity Insurance Committee
D Gillard Q.C., E.W.
Readers' Practice Course Committee
G Burnside Q.C., J.W.K.
Victorian Bar Dispute Resolution Committee
S Martin Q.C., W.J.
Editorial Committee
Peter Lithgow (Book Reviews)
Richard Brear (Editorial Assistant)
Mal Park
Michael Silver (Photography)
Published by the Victorian Bar Council, Owen Dixon Chambers, 205 William Street, Melbourne 3000. Opinions expressed are not necessarily those of the Bar Council or the Bar.
Printed by McPherson & Morison, Airport West, Victoria. This publication may be cited as (1996) 96 Vic B.N.
New Format For The New Year
NEW FORMAT?
PERHAPS some readers of the Bar News will notice that it has a new format. There are larger pages, different printing and different layout.
The changes have been brought about because of cost. Certain sections of the Bar and the Bar Council have indicated that they believed that the cost of Bar News is too high. The changes in layout will bring about a large reduction in the yearly cost of Bar News. It is also hoped that with the increased size the magazine may attract more advertisers to subsidise the cost. Only time will tell.
IT'S YOUR BAR NEWS
We as editors do not accept the criticism that the Bar News was too expensive. After many years in its former size we were very reluctant to accept change. However this change does not need to be permanent. We are anxious to get some feed back as to whether the new look and size is more acceptable than the old. We would welcome some positive constructive criticism.
What we have found in the past is that certain sections of the Bar are very quick to criticise and carp. However when it comes to actually doing anything, or writing anything, they are particularly slow. Some people have expressed the view that the Bar News does not represent their particular part of the Bar or their particular sub-culture in the Bar. If this is the case then the remedy is simple.
Contribute
Write an article expressing your concerns or views about the Bar or life in general. We need contributions, however learned, or bitter and twisted, in which members of the Bar would be interested.
It is not the case that we are overwhelmed by dozens of articles and adhere to a rigid conservative policy in publication.
Quite the contrary, the job of an editor is difficult in getting people to contribute at all. Editorship of the Bar News requires continual nagging and the chasing up of people. Some are ready to agree to write an article, a welcome or an obituary. However, understandingly with busy schedules, the actual writing becomes a difficulty. The prompting editor then enters the scene.
In editing the magazine we attempt to obtain a balance The balance is between:
(a) reporting on the work of the Bar Council, and the effect of the Government and its proposed changes upon the Bar;
(b) the publication of short and practical articles of assistance to those at the Bar;
(c) and the canvassing of news and views and perhaps the lighter aspects of being a barrister.
We are continually asked to increase the level of humour and chit-chat in the magazine. This is difficult unless people actively contribute and write rather than talk.
If you don't like what we are writing, write us a letter. Tell us - not just your immediate colleagues - where and why we are wrong. If you like what we are writing or publishing, write us a letter and a supporting article and tell your immediate colleagues.
THE NEW YEAR
The legal year has been duly opened as testified in the pictures and the sermon contained in this issue. But what lies ahead? There are deep concerns as to the effects of the State Government's changes to the regulation of the profession. The Bar Council is deep in negotiation with the Government in order to uphold the essential features of a Bar in the new scheme of events.
Of interest is David Bennett's article on the Bar and competition. David endeavours to analyse the perceived effect of large firms entering into the "advocacy industry". He is well able to write this article having been on both sides of the fence in his capacity as Silk and former partner of Freehills in Sydney.
The Editors
I'm From the Government, I'm Here to Help You
M
ANY people may be cynical about the truth of the statement quoted above. But the activities of the Department of Employment, Education and Training, as revealed by a statement recently prepared by a Melbourne solicitor, indicate that the Department is certainly prepared to go a long way to help small business:
"Bob Bailey - is an employee for DEET. Mr. Bailey is an officer of DEET, we have had him on our books for 4-5 years. Through Bob Bailey we do typesetting, copulation and index of job specifications and general photocopying. "
Apology: John Walsh of Brannagh
IN Summ er edition of Victorian eference was made to ving a former lecturer at RMIT and the Police Academy awaiting sentence in the County Court after having been found guilty of documentary perjury. The article was entitled "Royal Road Test Update - Brian Briefless-Cuesey and Kenneth Branagh of Walsh".
A member of the Victorian Bar, John Walsh of Brannagh has taken strong exception to the article as indicating that he was an author or contributor to it and that in consequence it reflected upon his integrity as a barrister. It was not the intention of Victorian Bar News to suggest that Walsh of Brannagh was the author of or a contributor to the article or to reflect in any way upon his integrity as a barristerat-law. Any suggestion to the contrary which might be drawn from the article is unequivocally withdrawn.
Victorian Bar News apologises sincerely to John Walsh of Brannagh for any hurt or embarrassment which he may have suffered by reason of the publication of the article referred to.
The Editors
Not Having to Pay
Dear Sirs,
Ienjoyed James Merralls' article "Sword of Honour" in your recent number of Victorian Bar News. It brought back memories of the three years I served as associate to Sir Hayden Starke. My relationship with him was a very pleasant one, possibly because I ignored the only advice his son John gave me on how to handle him.
Sir Hayden felt it his duty to interpret the law not to make it. Thus in his judgments he went straight to the point, though in one celebrated case he allowed himself the satisfaction of opening with his views on how it had been conducted: "This is an appeal from the Chief Justice, which was argued by the court over nine days, with some occasional assistance from the learned and experienced counsel who appeared for the parties" (Federal Commissioner of Taxation v. HoJfnung (1928) 42 CLR at p.62).
Hotchin, who for many years edited the Argus Law Reports, told me that when writing a headnote, he always went first to
6
the judgment of Starke J. to ascertain what was at issue and, in appropriate circumstances, what had been decided.
I rarely saw the judge taken aback, though one occasion where this occurred springs to mind. In an appeal from Papua New Guinea to the Full Court the point at issue was as to whether a signature to a will was that of the Chinaman who was alleged to have signed it, or a forgery. One party was represented by a man named Fitzroy, a member of the English Bar with a flowery manner, who persisted in addressing the court as "My Lords". He advanced a protracted argument that no Chinaman would have joined the characters in the signature in the way in which they were written. Sir Hayden grew more and more impatient and finally interjected, "Mr. Fitzroy, you can't expect me to know how a Chinaman would write", to which the latter replied, "My Lord, you underestimate your own intelligence". Starke J. had no answer while the rest of the court silently contemplated how ridiculous such a suggestion was when applied to any High Court judge.
The case I like to remember, however, was one heard by Sir Hayden sitting as a single judge. It related to compensation for injuries arising from World War I and was conducted in person by the appellant, who was a cripple. On the facts, however, he clearly had no claim. In dismissing his appeal the judge said to counsel for the Crown, "You don't want costs in this case, do you?" The latter agreed that the Crown did not need the money, but explained at some length that he was pressing for them to deter the appellant from entering into further litigation. While he was arguing I could almost feel the judge's blood pressure rising. Finally the latter banged the bench and said, "Very well, costs to the Crown, execution deferred sine die" and then, addressing the appellant, "That means you don't have to pay them".
F.C. Wickens
Headgear Survivors
Sir,
THE tired old issue of trying to do away with robing has come up again. Apparently, the latest draft proposals for change to the profession include a provision that it not be necessary to robe in court "despite any custom or tradition to the contrary".
Regardless of one's politics, it is perhaps surprising to see this emanate from the present State Government. Upon the last change on the treasury benches, the president of the Legislative Council and the speaker of the Legislative Assembly were once again to be seen in their appropriate finery, including full-bottomed wigs; and quite right, too. The Attorney-General is also to be observed, on ceremonial occasions in court, very properly in fullbottomed wig and robes.
There is certainly a general perception in sections of the community, as well as at the Bar, that distinct, including ceremonial, dress has a place in society. It shows the roots of practice and culture (especially in the professions) which are often forgotten these days. What to some is "oldfashioned" or "irrelevant" is to many others a reminder not only of origins, but of standards. Particularly is this important, it might he said, in a society which is gradually seeing most things whittled away to a lowest common denominator.
However, today there are still vestiges of a less grey, bland system, and of immediate relevance here could be cited the examples of the dress of the church, academia, the armed forces, the abovementioned president of the Legislative Council and the speaker of the Legislative Assembly - as well as of the Bench and Bar.
There is no law enforcing robing in court now. It is custom and tradition still because judges require it in their courts (from sentiment, certainly, but for good reason, too, of which more below), and the Bar is perfectly happy to accede to this.
Feelings of inadequacy and self-consciousness, it might fairly be said, are often behind the periodic mutterings, even attacks, on such things as court dress. Were such attacks directed against a pernicious evil, it might well be thought that there were worthier sentiments behind them.
A thin, strained mockery is often the form they take. Of course, in an historical and social vacuum, no one would invent our court dress out of the blue. How ludicrous! Most fortunately, though, we do not exist in an historical or social vacuum, although some are trying to pretend that we do - or even to create one.
Many are not aware that, quite apart from the British Commonwealth (and even here, some African and Pacific republics maintain English court dress!), in almost all western European countries a most distinctive even, compared with ours, extravagant dress for Bench and Bar is alive and well today. We in the Common-
wealth seem to be the last to retain wigs, but elsewhere characteristic headgear survives, especially for judges.
Everywhere it remains, though - on the Continent and in England and Australia and so on - court dress shows the ancient blending of its clerical and academic origins. Even in America, some judges retain a black gown (and our own High Court has now very unfortunately sloughed-off its own origins and has adopted the vulgar American Supreme Court gown: ev en for ceremonial occasions, as the rec ent swearing-in of the new Governor-General by the Chief Justice revealed to us).
Som e mockers curiously maintain the story that we all wear black gowns due to an over prolonged mourning for Queen Anne. This has always seemed rather dubious, and even mor e so when others claim that it is in fact in honour of Charles II. Apparently, no one has yet gone further back, say to the Tudors but it still le aves unaccounted for the predominantly black gowns of Continental counsel. In point of fact, dark, demure clothing has always been thought appropriate for the professions - even for doctors, accountants and bank managers, when they aspired to that distinction from last century to the present
day Dame Veronica Wedgwood, the doyenne of historians of the period an d a prodigious and meticulous researcher , writes in The Trial of Charles J, "These three [Commissioners, to sit in judgment on the King] were all attired in their black barristers' gowns. The rest of the Commissioners wer e in what ever sober raiment suit ed their calling."
The only argument ever put forward at all seriously which does not solely conce rn the wishes of the Bench and the Bar is that court dress might som ehow "intimidate" m embe rs of the public. This would seem to be yet another modern example of "the public" being used as a stalking hors e for someone else's particular, idi osync ratic view. No one can possibly know what the public thinks on the subject. How eve r, there are two countervailing points to be made to this "argument", such as it is
First, if people are anxious going to court, they will be an xious anyw ay , irrespective of how the judg e and couns el are dressed. On ce ar rived, the atmosphere of the courtroom, moreover, with people rob ed , becom es to a certain ext ent reassuring. It is r ecog nised as what is expected of a judge and barristers in our system and people are now in a familiar "bona fide
McCLOUD
court of law". Most people, surely, are similarly reassured, eve n if subtly, rath er than intimidated, by seeing a policeman in uniform.
Secondly, this atm ospher e (contributed to so much by robing) tends to indu ce greater honesty and restraint from witnesses. Naturally, this is not foolproof. If a witness really wish es to lie, h e will. Non et heless, it is a very noticeabl e phenomenon. One can see it again and again in appeals from the Magistrates' Court to the County Court, for example. Th e latter has a definite aura of greater authority and dignity - lying and unseemly behaviour are sudd en ly much more serious, with grave consequences. The effe ct of robing on the authority of the court (inclucting co unsel robing) was recognised by the Family Court sev eral years ago, whi ch Court n ever used rob es at all.
Perhaps, howev er, it is perceived by some that robing in co urt is not in keeping with mod ern utilitari an principles. That it is not in tune, somehow, with the sli ck, deregulated, competitive, Americanised "National Legal Servi ces Market" of today. With peopl e holding this view, there is no arguing.
Yours faithfully, Michael King
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Characteristics Of An Effective Independent Bar
THE leg a l p f i n in Vi ld the Ba r in a.r is d of tran siti on Sin ce we r ece iv ed th e State Government's draft proposals for regulation of the profession in late December, the Bar Council has been involved in extensive negotiations with the Attorney and the responsible officers of the Department of Justice. It is clear that some things will change. By July we are likely to be working with a Legal Ombudsman and we are in the process of planning for the differences that will make to our complaints handling system.
It is likely that the Victorian Bar will become an incorporated association in line with the proposed requirements and will have separate divisions for administering our regulatory obligations and the provision of members' services. Barristers will have practising certificates for the first time in Victoria, probably in a wallet-sized card form. The Solicitors' Board and the Bar Disciplinary Tribunal will be replaced with a Legal Profession Tribunal. We will be working with a new Legal Practices Board.
In a time of transition an organisation such as the Bar needs to look closely at
8
what are the important characteristics of an effective independent Bar. I regard the sole practice rule as fundamental to our identity as independent specialist advocates available to all Fortunately, but not co-incidentally, the sole practice rule is
I regard the sole practice rule as fundamental to our identity as independent specialist advocates available to all.
also good for competition, ensuring the greatest number of advocates able to take anyone brief. We have urged retention of the sole practice rule both in submissions to government and in the media. We have also argued for the right to determine our own system of clerking. Even if compulsory clerking is abolished by legislation, however, clerking will remain an integral part of our structure simply because our clerks provide an invaluable service uniquely combined in an efficient "onestop-shop".
Other things may change - the requirements to wear robes may be modified for example although the Bar Council has expressed the view to the AttorneyGeneral that robing is a matter for the courts and the profession, not the legislators. In one sense however, what we wear is irrelevant. It is how well we do our job that matters. And that is what I hope will not change - our commitment to excellence, our strict observance of our duty to the court, and our role in the effective administration of justice. In that sense, our viability and our reputation as a professional association remains in our hands.
Iwill be introducing two significant pieces of legislation in the autumn sittings of Parliament. The first is the Legal Practice Bill which will produce the most significant reforms to the legal profession since 189l. Its purpose is described in more detail below.
The second is the Criminal Procedure (Mental Impairment and Unfitness to the Tried) Bill, the antecedents for which date back to the Criminal Lunatics Act 1800. The title of the earlier Act is in some respects a contradiction in terms which reflects the historically uneasy relationship between the mentally impaired and the criminal justice system.
REFORM OF THE GOVERNOR'S PLEASURE SYSTEM
The new Act will not change the common law test of criminal responsibility found in M'Naghten rules and will codify the existing rules on unfitness to plead enunciated in R v. Presser. Rather, its purpose is to provide a measure of fairness in the dispositional arrangements for defendants who are found to be not guilty by reason of mental impairment or who are unfit to plead. Since 1800, such defendants have been held at the Crown's pleasure. This has created an arbitrary system of detention characterised by overholding of detainees.
Recognising the injustice of this system, the government referred the issue to the Community Development Committee, which reported in October 1995. The new Act builds on many of the Committee's recommendations and the provisions of the model bill prepared by the Model Criminal Code Officers Committee. It will introduce a transparent system of detention and release which will carefully balance the detainee's need for treatment and the protection of the community.
REFORM OF THE LEGAL PROFESSION
The Legal Practice Bill will provide for the most competitive and best-regulated legal profession in Australia. It will replace the Legal Profession Practice Act 1958 and amend sundry other Acts.
The Bill represents the culmination of a process that began in June 1994 with the publication of a Discussion Paper entitled "Reform of the Legal Profession: An Agenda for Change". The Discussion Paper, which was widely circulated, was considered in detail by my Working Party on the Legal Profession. The Working Party reported in August 1995. Following my approval of the general principles contained in the Working Party's Report, Draft Proposals for a Legal Practice Bill were prepared by Parliamentary Counsel and published by the Department of Justice in December of last year for the purpose of obtaining public comment. Submissions on the Draft Proposals were received from all interested bodies and organisations and from a number of individuals. As a consequence of the many comments received, a substantial number of amendments to the Draft Proposals have been incorporated into the Bill. I would like to note the most helpful contributions from the Chairman and several other members of the Bar Council in commenting on the Draft Proposals.
The impetus for the Bill stems from the Government's view that the present regulatory regime is flawed in two significant respects. First, despite the excellent work of both the Bar Ethics Committee and the Professional Standards Department of the
Law Institute, there is a public perception of a regulatory system by lawyers for lawyers. Secondly, it unjustifiably restricts freedom of association through de facto "compulsory unionism".
Sir Owen Dixon once remarked of members of the Bar that they stand between the rich and the poor, the strong and the weak, the subject and the Crown. That remark applies with special force to barristers because it is they who in most cases appear in the courts to advocate a client's case. But I think it applies to all practising lawyers. The legal profession thus occupies an important place in the constitutional structure of the State. For that reason, it is vital both that the profession be independent and that the public have confidence in the profession.
I would like to note the most helpful contributions from the Chairman and several other members o.f the Bar Council in commenting on the Draft Proposals.
Two entirely new bodies created by the Bill - the Legal Practice Board and the Legal Ombudsman - will maintain public confidence in the profession by ensuring that the public interest is always paramount in professional regulation. The Board will also preside over a regulatory structure allowing far greater freedom of association for members of the profession through accrediting Recognised Professional Associations to undertake direct regulation of legal practitioners.
The Bill will also ensure that the Victorian profession is the most competitive in Australia. While it is true that there is already intense competition among members of the Bar, among solicitors and, in some cases, between solicitors and members of the Bar, the Bill will provide a legislative framework to enhance such competition. Of particular note is Victo-
ria's leadership in the creation of a national market for legal services. The Bill will create a registration system that will prevent the need for interstate practitioners wishing to practise in Victoria to become admitted in Victoria and obtain a practising certificate here.
The Bill will deem the Bar to be a Recognised Professional Association for two years from commencement (anticipated to be 1 July 1996). I am confident that the Bar will continue, in that capacity, to serve the interests of the citizens of Victoria.
CRIMES COMPENSATION
The Department of Justice is currently conducting a review of the Crimes Compensation Tribunal taking into consideration a number of public reports regarding crimes compensation together with submissions and consultations with relevant groups. In May 1995 the Victorian Auditor-General highlighted a number of
shortcomings with the current scheme. These shortcomings together with those which have been identified by other interested groups including the Victorian Community Council Against Violence are being addressed. It is essential to ensure that any changes are in the best interest of victims. This requires further research and careful consideration of all issues and consequently it is not anticipated that reforms to the scheme will be introduced into Parliament before the Spring 1996 Parliamentary Session. This timetable will enable consultation with interested individuals and organisations to take place.
At the same it is proposed to develop an integrated Victim Assistant Scheme with a primary focus on providing resources which will maximise the potential for the victim's recovery from the psychological and physical effects of a violent offence. This would include providing immediate access to professional counselling and sup-
port services after an offence has been committed, in an effort to reduce the trauma suffered by victims and sparing victims reliving their traumatic experience at compensation hearings. A compensation scheme which is merely one element in an overall victims' strategy recognises and addresses the victim's needs for social and rehabilitative support. Any compensation scheme should promote the quick recovery of victims in an attempt to significantly reduce the trauma and therefore injury they sustain.
An integrated compensation strategy will assist in the restoration of the victim to his or her psychological, physical and social circumstances before the injury occurred and should result in increased confidence in the criminal justice system.
Jan Wade, M P. Attorney-General
Welcomes
Merkel J.: Bar's loss is gain to Federal Court Bench
HIS Honour's distinguished career as a barrister had its genesis in a tension between th e practice of law and the excitement of the rag trade in the 1960s. After graduating from University of Melbourne (with an average study load of six weeks per year) with honours in all subjects (except conveyancing) His Honour served articles with the late Arnold Bloch. After being admitted to practise in 1964 His Honour practised for some years as a solicitor and then ventured overseas for "Le Grand Tour". After 18 months he returned to Melbourne but found the family busin e ss in Flinders Lane mor e attractive than the practice of law. However, he was persuaded to come to the Bar in June 1971 by Castan and Goldberg and had the good fortune to read in the Chambers of Neil Forsyth Q.C. (as he th en wasn't).
In 1973 when the first floor of Owen Dixon East became available to barristers, His Honour started sharing Chambers with Justice Ge orge Hampel (as he then wasn't either). This was not an insignificant association as one of His Honour's readers on the floor was Felicity Foster (as she then was) who was later to become Felicity Hampel (as she now is).
His Honour quickly developed a substantial commercial practice which was complemented by a deep interest and involvement in Aboriginal and Koori affairs Together with Professor Louis Waller, Senator Gareth Evans and Ron Castan he was instrumental in the founding of the first Aboriginal Legal Service in Victoria in 1973. Since that time His Honour has maintained an extremely active interest in Aboriginal and Koori affairs becoming, among other appointm ents, a founding member and treasurer of the Aborigin al Heritag e Trust.
His Honour's practice as a junior quickly outstripped the time available in which to practice and he took silk in 1982, being one of the few Silks in recent memory to have his application accept e d on the first application. However, taking silk did not relieve his workload and his practice as a leader was quickly established in a diverse rang e of jurisdictions. In the 1980s he succeeded Dr. Gavan Griffith Q.C. (now Commonwealth S.G.) as counsel for the Government in the National Wage case and was instrumental in keeping the economy and potential wage explosions under control from 1983 to 1988. This was no doubt due to his ability
to keep to the script supplied by Treasury from which he was not allowed to deviate In more recent times His Honour was a participant in this State's longest civil cause which last 245 sitting days in front of King J. His mastery of separation of oil and water technology on offshore oil platforms was matched by his ability to protract cross-examination to such an extent that the court, solicitors and counsel were obliged to travel to Southhampton to enable His Honour to complete his crossexamination of an English academic . Reliable information has it that the r eal purpose of the trip to Southhampton was to enable His Honour to have a weekend in Paris. His Honour developed an active practice in High Court appellate and constitutional litigation appearing for the Builders Labourers Federation and being involved in important test cases involving the migration power Kioa v. Minister for
Immigration & Ethnic Affairs (1984) 159 CLR 540, police powers Holliday v. Neville (1984) 155 CLR 1, freedom of speech Theophanous v. He rald & Weekly Times Ltd (1994) 182 CLR 104 and the extent of the coerciv e investigatory powers of Commonwealth and Stat e Governments (Johns v. Australian Securities Commission (1993) 178 CLR 408, Orollo v. Commissioner of Australian Federal Police (1995) 131 ALR 225). Of course, during the same p eriod he was able to appear for tabletop danc e rs in the Liquor Control Commission th e reby ensuring that not only was freedom of speech protected but also freedom of movement. His Honour's passion for football was also carried into his legal practice and he was instrumental in establishing the "football list" in the early 1980s (see e g., Adamson v. West Perth Football Club Inc. (1979) 27 ALR 475). His Honour's practice also contained an
Merkel J.
international flavour and covered a range from major international oil arbitration to acting for the Government of Vanuatu in a major test case over the Bill of Rights in the Vanuatu constitution.
His Honour has had a deep and abiding commitment to civil liberties and human rights as is exemplified by his presidency of the Victorian Council for Civil Liberties for two years during which he was able to
continue the work of his predecessors and ensure that community awareness of civil liberties was heightened His Honour was founding President of the Victorian Immigration Advice & Rights Centre and was appointed a part-time Commonwealth Commissioner of the Human Rights and Equal Opportunity Commission. His Honour also carried this commitment into his practice by being involved in cases such as
representing the Children of God sect in its dispute with the Department of Community Welfare Services, challenging the deportation power and fighting several contempt cases.
The loss of Ron Merkel to the Bar is a gain to the Federal Court Bench and His Honour carries to that bench the best wishes of the Bar for a long and successful judicial career.
Judge Harbison: a career characterised by depth, colourfulness and caring
HER Honour Marilyn Harbison, a former senior partner with Wisewoulds, was appointed to the County Court on 6 February 1996 Her Honour brings to the bench the benefits of many years experience in litigation and more recently commercial work. Her particular interests in building, residential and tenancy matters as well as her involvement with the Salvation Army and other charitable bodies are reflected in the practice she has built up.
Her Honour, with a Salvation Army family background, has always had a strong sense of commitment to those in need . One such example was when she, along with her family, set up a caravan for a month to offer free legal advice and assistance to the victims of the Ash Wednesday bush fires.
Her Honour was educated at Ashwood High School where she was dux in her final year in 1968. Her Honour has three children. Her hobbies include yachting.
She was a partner at Clancy Triado and Walsh Spriggs from 1983 until 1991, where her work involved general common law practice. During this time she developed a wide ranging knowledge of all areas of law which affect the general community, including family law and domestic violence matters, police matters including attendance at Melbourne's adult and children's prisons, the Children's Court, neighbourhood dispute/conciliation and arbitration.
Her more recent work at Wisewoulds, where she has been a partner since 1995, has involved guardianship matters, coroners' inquests, administrative law issues, substantial litigation matters including the Pyramid and the Estate Mortgage litigation Her Honour has also appeared before the Habersberger Enquiry and was a regular advocate before various courts and tribunals.
Her Honour has served on a number of committees and has undertaken various
Judge Harbison
extra-curricula activities associated with the profession.
Her Honour has been a member of Law Institute since 1979 and served on its Council and various committees for a
number of years Her involvement with the Institute commenced when she became the representative of the Eastern Suburban Law Association. She was then elected a general representative, a position she
held until 1984. During that time she served on many committees including the Ethics Committee, Legal Aid Commission Committee and the Lawyer Classification Committee.
Her Honour completed a master thesis on lawyer advertising, which led her to be one of the proponents on the Council for the abolition of the rules prohibiting advertising.
Her Honour's work has been characterised by advancing the interests of those groups she represented in the community, but in particular the interests of women.
In her farewell speech to the Council of the Law Institute, Her Honour reminded those present that they are part of a privileged profession and that there are many other issues apart from financial ones which the Council and the professions should be considering. Many members present regard the speech as one of the most impressive they have heard.
Her Honour having completed her stint with the Council of the Law Institute, moved on to become the Director of the Housing Guarantee Fund and Chairman of the Fund in 1988. She served in this capacity for several years until earlier last year when the Housing Guarantee Fund was effectively dissolved Her Honour's role as Chair of the Fund was admired by many as the challenge in maintaining the balance between industry representatives and the community must have been significant.
Her Honour's work has been characterised by advancing the interests of those groups she represented in the community, but in particular the interests of women. She has strong connections with various women's organisations.
In 1985 Her Honour had an active role with the Victorian Women's Trust, a fund established by John Cain to offer grants for projects for women. She also acted for the YWCA, set up the International Women's Federation of Commerce and Industry, and more recently, the Australian Women's Business Council.
It is anticipated that with a professional career characterised by such depth, colourfulness and caring, that Her Honour will make a unique contribution to the Court.
Work smaner!
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Samuel Barry Granat:
always told it just as it was
SAM Granat had the disarming, and uncommon, quality of being honest about him se lf, no matter what.
Sam and I were part of a band of newly signed hopefuls at the Bar. It was easy Csom e saw it as a matter of survival) to put out flags, to chatter about successes but rais e shutters abou t the times when not everything went just right. But that was not Sam's way. Although just as eager and keen for bri efs as everybody else, Sam always told it just as it was, even though the story did no t boost hi s image.
One example, a lesson really, always has stayed with me. Aft er co urt, a few of us, including Sam, edged into the lift with our books and bags. During the lumb er ing stopstart to our floors, we exch ang ed thos e "How did you go ?" questions and their com monpl ace responses: "Not bad"; "Went well, I think"; "Finish tomorrow, I'd say" Nothing given away by anybody in that lift. That is , except for Sam. Sam, when asked, said something lik e this: "I had a rotten day. I can't do anything right. The copper is giving me all the wrong answers; the judge is riding me and I'm at the end of my teth er. I think I'll lose this case. "
Som e would have considered such a display of fallibi lity as at least naive and at worst potentially damaging. When Sam spok e, howev er, we all muttered understanding commis era tions and did our best to buck him up Walking from the lift the realisation dawn ed that, of all of us in that lift, Sam was the only one who had been prep a r ed to give out, to show that he was hum an and vulnerable. Our responses had reflected how this quali ty had made us warm to him.
Sam nev er had what Jean Cocteau described as the genius of knowing how far to go too far. It was in 1966 that, deep into a Bar dinn er, I chanced upon Sam insisting to a recently appointed Lush J. that Sam must show him how to swallow a lighted cigarette. While Gowans J. and I watched, somewhat uncertain about how this would go, Sam put his cigarette on hi s lips and backed Lush J. against a wall. There, Sam placed his outstretched hands on the wall on either side of the judge's head . Tongu e , lips and jaws working together only inch es from Lush' s face, Sam slowly arched the lighted end of the cigare tte back somewhere insid e his fairly large he ad. Then, with more workings, triumphantly Sam made the lighted fag re-appear. This was an adept performance but Sam - a nd the look on Lush J.'s face - had just taught me another lesson: staying too long at a Bar dinner can be hazar dous for a young barrister's career.
Sam began at th e Bar on 4 February 1964, after Geelong Grammar and University of Melbourne. Sam left the Bar on 18 August 1966 and pr act ised as a solicitor at Piercey & Iv ey He returned again to practise at the Bar ten years later. Having lost contact with Sam during this p eriod, when asked to write this obituary, I tracked many leads to learn about Sam's lat er career at the Bar and the period until his death. It was a sad task. Inform atio n was not easy to find but all that I learned made it apparent that th ese had be en troubled years. Sam suffered from psychi atric problems which em erged to plagu e him and event ually led to his leaving the Bar on 3 September 198 7.
The se cond part of Sam's Bar career,
Barry Stone: barrister's clerk for nearly 20 years
BARRY Stone resign ed as Clerk of List "B" in Novemb er 1995, having shortly before his resign at ion, receiv ed a diagnosis that he was suffering from terminal lung cancer. He had been a barrist ers ' Clerk for nearly 20 years. His sudd en illness an d resign at ion as Clerk came as a gre at shock to all who kn ew him at the Bar. As had always been the case, his concern for the welfare of his List was the principal motivation for his decision to retir e at that time. He was then reasonably well. However, the cancer was rel entless and agg ressive in onset and soon he be-
came seriously ill. He died on Friday, March 1996, age d 56 yea rs. He left a wife, Lois, and three childr en , Adam, Tr ent and Tarsha.
Barry was an Ess endo n boy. He was ed ucated at Essendon Primary and High Schools. He followed Essendon Football Club with great enthusiasm all his life. Indeed his fax number C... 8485) was said by him to assist those with poor memory in remembering the "back to back" premierships of Essendon in those years. He was a good sportsman at school distinguishing himself in the sports of hock ey and foot-
during which he appeared mostly in criminal matters, is speckled with anecdot es which were offered to me time and again. I was given a copy of Truth newspap er dated 30 December 1978. On page 3, under a h ead line spanning th e page, was a detailed account of a "stormy interlude" in court in which Sam accused a judge of unfairness and was threatened with jail. Discretion was n eve r heavy in Sam's kitbag but boldn ess often was.
Sam was an exce llent story-teller. If Sam were writing this piec e, with his honesty about himself, he would tell the stories - and well. I have decided to refrain, except to mention two items. Nearly everybody I asked seemed to know that one of Sir Gregory Gowan's judgments h ad cited with approval an article abo ut equitable set-offs written by Sam for the University of Melbourne's Law Revi ew Touching the sam e point, I was told several times that Sam was a State representative leve l bridg e player. It seemed that tho se who kn ew Sam best wanted to bring home the point that Sam had capacities which his condition sadly had choked.
Eventually, Keenan Q.C. mentioned to me that Sir Zelman Cowan was Sam's cousin and that Sir Zelman had mad e a moving speech at Sam's funeral. I was disappointed to find, however, that Sir Zelman, no mor e than I, could fill in the detail about Sam's late r years. Sir Zelman's had be en a speech from the heart.
Sam died in Melbourne on 5 September 1995. He is surviv ed by his twin sons and grateful memories.
David Benne tt
ball He later became an enthusiastic member of Latrobe Golf Club. His abiding love of sport continued all his life an d his int erest in all sports facilitated the many good relation s hips he lat er built up with barrister and solicitor alike.
Barry's first full-time employment after leaving school was as a claims' clerk with the State Insuranc e Office. There he learnt about litigation and made many friends and contacts which stood him in good stead in his later caree r. After a period of nearly 19 years with State Insurance, Barry j oin ed the staff of Kevin Fol ey as
Assist.ant Clerk . He was quick t.o learn what. was required of a good barristers' clerk and was well taught by Kevin Foley, wit.h whom he remained a lifet.ime friend.
In January 1976 and with the strong encouragement of Kevin Foley, Barry was appointed the Clerk of a new List designated as List "B". This was a courageous undertaking for a relatively young and junior clerk at a t.ime when new Lists were a rarity, and particularly in circumstances whereby t.he List was being set up t,o accommodate the increased numbers of unknown and unt.ried young people then coming to the Bar. However, some members ofthe Bar Council and ot.her senior barristers transferred to List "B" to provide it with some st.rength in its early days. Those who t.ook this generous step included J.D. Davies, Q.C., and K.H. Marks, Q,C. (as they then were), H.C. Berkeley, Q.C., Billy Sneddon, Q.C" and Ron Castan, Alex Chernov, and John Hassett (as t.hey then were), New members of the B(lr who joined the List at or about the time of its inception included Peter Couzens, John Emmerson, Barr.1J Stone Stephen K(lye, and Tony North (as t.hey then were), and David O'Doherty, Ian Hill, Peter Kozicki, John Larkins, John Lee, John Lewisholm, Mark Mulvany, John Nunns, Michael Tovey and John Udorovic. Others who joined the List in early years included Peter Gray, Gareth Evans, Ada Moshinsky, Murray Kellam, Geoff Net.tle, and Neil Young (as they then were) and John Philbrick, David Levin, and Paul Scanlon.
The early days of the List were not easy, Work was not readily avail(lble for the junior Bar and it was a time of considerable int1ux in numbers to the Bar. There was a perception amongst some that the l1edgling List was markedly inferior to other more established Lists, Indeed, in the first year or so, meetings with a view to disbanding t.he List. were held by some members. Barry at one st.age offered to the List his resignation as Clerk. Fortunately, he was dissuaded from following this course and over a period of years, as members of the List progressed in their careers, the List and its members and Barry began to prosper.
As a Clerk, Barry was meticulous, both as to his conduct and his relationship with solicitors. In a "low key" and taciturn manner he administered the List most efficiently. Mistakes made by
him were very rare, if t.hey occurred at. all. He kept excellent records of his conversations with solicitors and could always be relied upon to t.rack down members of the List with any messages for them in even the most remote of Magistrates' Court circuit towns. At times, some members of the List complained that Barry was not sufficiently "entrepreneurial". It was not his st.yle to engage in self promot.ion, he being in many ways a very modest man, However, on the opposite side of the ledger, he developed amongst. solicitors a great. respect for his integrity. He would not put a young barrister in the position of being required to accept a brief in an area of work in which he or she was not prepared to act. Likewise, if he had no member of the List available and of sufficient experience to undertake a particular case, he would advise the solici tor of that fact and refer such solicitor to another List. In such a manner, over a period of years, Barry built up a very considerable body of loyal support amongst many solicitors.
In dealing with members of his List, Barry exercised the same scrupulous integrity, He was, above all, discreet about the personal and professional matters of members of his List. He maintained a formal relationship with members of the List and encouraged his staff to do likewise. He
endeavoured to be fair to all members of the List in the distribution of "t1oating work". He could be a firm negotiator with solicitors when required. In this regard he would always negotiate within his instructions and consult with the barrister concerned before taking any further step. In such circumstances, although he would offer advice if asked, he would always do as he was requested to do by the barrist.er. When his advice was sought, the advice provided was invariably sound and well considered, He had a clear understanding of the relationship between barrister and clerk as being one of employer and employee but nevertheless those on his List regarded him not only as merely their Clerk but also as a friend and confidant.
In latter years Barry derived considerable pleasure but also Suffered substantial anxiety in the course of his profession of Clerk. The anxiety was caused by some members of his List suffering from the consequences of the economic recession of the late 1980s and early 1990s. The decrease in work caused him great concern because of its effect upon members of his List rather than because of any personal consequence. However, during such later years as Clerk, he also derived much pride and pleasure from barristers who had commenced their careers at the Bar as members of his List and who later achieved prominence and in $ome cases appointment. as Queen's Counsel and/or accepted judicial appointments. Barry was also responsible for training Glenn Meldrum and Paul Holmes, both of whom, with his blessing, proceeded to become successful Clerks in their own right. He also built up a loyal and competent group of staff members who to both their own and to Barry's considerable credit were able to manage the List without significant disruption between the time of his resignation and the appointment of a new Clerk, Michael Green. The members of Barry Stone's List, both past and present, will long remember him as an efficient loyal and decent Clerk. They and all others at the Bar who knew him, are saddened by his death and express their sympathy to Lois Stone and to Adam, Trent and Tarsha. Barry Stone was a man of integrity. No other attribute of a member of the Bar or a barristers' Clerk can be regarded more highly than that.
Judge Kellam
The Bar, Large Law Firms And Competition
LARGE commercial law firms have powerful, built-in economic and structural forces which make the Bar indispensable to them. The same for ces largely immunise the Bar from competition by those firms in the Bar's specialist area of advocacy. To a lesser extent, although different circumstances apply, the Bar should be able to remain an important provider of advice and opinions.
This article considers these propositions in the context of rapidly changing professional rules and practices. It examines three threats the Bar perceives as emanating from large commercial law firms: use of solicitors as juniors for silk, in-house advocacy and provision of advices and opinions.
Despite the inter-dependence between the Bar and large commercial law firms, each guards a reserve of wariness about the other. Often barristers find the propositions above difficult to accept at first sight, despite the large amount of work the Bar receives from large commercial law firms. Solicitors, too, often do not recognise the extent of the inter-dependency. Claiming that clients are fed up with the split profession, some predict the permanent establishment of in-house advocacy.
When encountering such doubts, the Baron von Munchausen response perversely comes to mind: "Vus you dere, Sharlie?". Unlike the Baron and the eskimos' igloos -I was there. This article is based on ten years recent experience as a partner of a large commercial law firm and, during that time, many conversations about this topic with lawyers from similar firms. The matters raised here deliberately do not emphasise the positive qualities that the Bar, and barristers individually, bring to the practice ofthe law. That is not the emphasis of the argument.
This article is prompted by the hope of contributing to better understanding and improved communications between two vital elements of the legal profession It is written with encouragement from both Bar Council members and some members of large commercial law firms with whom I have discussed the subject and drafts of this article.
Two fundamental factors affecting
David Bennett
large commercial law firms are relevant: their partnership structure and the type of clients they service Distinctions arise when considering other types of legal practices. For example, a firm having large commercial clients has different needs from a firm acting for a succession of individual, one-off plaintiffs. That is, unless the plaintiffs are sent to the firm by some larger body, such as a trade union, which must be treated as the continuing source of work.
STRUCTURE
Large commercial law firms are usually seen by outsiders as being monolithic. They are not. They truly reflect the fact that they are composites of individual partners who, to a greater or lesser degree, are conscious of being "owners" of the business. By and large, with responsibili-
ties for particular clients, those partners conduct their practices in their individual way, even while working together within closely-organised practice groups. In this sense, a large commercial law firm is sometimes described as a network of co-ordinated boutiques.
Except on financial management issues, management policies cannot, and usually do not attempt to, dictate to partners about how to run their practices in performing their client's work. This means that the firm is unlikely to attempt to make a firm-wide policy on whether to brief counsel, using in-house counselor providing juniors from inside the law firm rather than briefing juniors from the Bar. Individual partners must be able to decide on these matters for themselves in the light of the exigencies of the particular case. Partners wishing to fulfil their obligations to
their clients cannot compromise their judgment by reason of some general policy on practice matters which is either inappropriate for the particular case or contrary to the client's wishes.
This limitation on having firm-wide policies on such issues reflects one of the differences between a partnership and a corporation. The independence it entails for partners is likely to be jealously preserved by them, although the whole general subject of whether there should be corporate-style management of law firm partnerships is a matter of active debate.
Professional obligations and pride will motivate partners to make every effort to achieve the objectives of their clients in litigation. There is, however, a further consideration. Each partner is likely to want to earn the largest possible share of the firm's profits. This is usually the stuff of survival, affecting the ability to pay mortgages, school fees and car leases. In some large commercial law firms the profit share for partners is locked but often it depends directly on performance issues. Although there are various assessment formulae, few partners do not believe that the bottom line figure has dominant importance in the overall assessment.
This last matter raises the complex and touchy question of competition between partners. At partnership retreats there is much talk about team work and "crossselling" between partners. By and large, all this talk is well and truly warranted and partners work together well, sharing the available work and involving other partners as appropriate.
But, remember, we are considering groups of high achieving individuals with at least the usual dose of human ambition. It would be a denial of human probabilities if some partners did not see themselves as competitors with colleagues. Indeed, some are quite open about it and claim that such competition is a positive benefit for the performance of the firm. The Bar is the beneficiary. By using the Bar, partners wishing to do so remain the partner focal point with their clients and are able to get on with their practices in their own way.
Questions would arise, for some part ners, about losing authority over a matter if another partner were brought in as the advocate. The person at the Bar table can form special ties with clients and the responsible partner may well fear losing to another partner an element of control of the matter which, for good reason, he or she would prefer to keep. They would be reluctant to create the potential for uncomfortable inconsistency between equal
partners about strategies, witnesses and so forth.
Another consequence of the partnership structure is that partners must account for their fee earning time. To write off time spent (that is, fees earned) is akin to disposing of a partnership asset. If the amount concerned is substantial, as one would expect, the write-off must be explained and agreed. A recurring stream of write-offs will attract management concern.
Each partner is likely to want to earn the largest possible share of the firm's profits.
COMMERCIAL
Clients of large commercial law firms are likely to be a substantial commercial organisations or government bodies. As such, individually, they are valuable and prestigious assets on the client list. Partners who are responsible for them receive the satisfaction of doing the work and the esteem of their colleagues and other clients for being chosen to do so. Litigation for such clients is likely to involve issues of commercial or political importance with all the demands and satisfaction that this implies. This being the market in which large commercial law firms set themselves to practise, their infrastructure must be suitable to meet its pressures. This does not come cheaply.
If one of these substantial clients shifts its business, it is a matter of consequence and a subject for scrutiny. The negative shock waves of the loss of fees travel direct from the central computer to management and partners through regular and frequent performance reports. At a personal level, the loss of the client may be a mark against the responsible partner.
The clients of large commercial law firms are likely to be sophisticated legal consumers with formed ideas about the way litigation should be run. Often they are well versed in the capacities of various members of the Bar and may even have an established relationship with them.
Although the litigation may demand a great deal of money being thrown at it, the market is acutely cost-sensitive. Clients are wary of, and quick to detect, over-servicing or other cost inefficiencies.
The cost of service provided to its client is a matter which a large commercial law firm keeps under close and regular review,
often in consultation with the client. Large commercial law firms are skilled in trimming their sails so as to produce optimum results for the minimum cost consistent with the demands of their clients for high quality and fast service. The pressure on costs has, if anything, become greater over recent years with the increased competition for commercial work producing competitive tendering for particular instructions.
A consequence of the importance of providing suitable service for clients and of the significant nature of the cases they are likely to have is that the responsible partner will have every reason to avoid a course which could leave the conduct of the case open to criticism, even if wholly unjustified. This predicates case management by recognised practices. Involvement of another partner or employee as an advocate might be an entirely suitable course and, as well, will retain for the firm the fees involved in that work. Despite this, because of the acceptance by clients of the Bar's traditional role and their expectation that it will be used, the Bar will be hot competition for the choice of advocate.
"Leverage" refers to a separate science known to solicitors. By definition, it is unknown to the practices of barristers. It concerns ratios of partners to solicitors and is the subject of many, many theories. The aim is to achieve an efficient, clientsatisfying, delegation structure which will maximise a partner's capacity to generate legal fees. The same structure plays an important role in training employed solicitors. The structure requires use of the partner's supervisory and management skills to achieve a productive and communicating network of senior solicitors and, under them, junior solicitors.
In the present context, the leverage has two consequences.
The first is that there is a built-in interdependence in the leveraged structure which requires the availability of partners and senior solicitors to supervise. It inhibits their meeting a frequent requirement of an advocacy practice: to turn off, at short notice, and devote total personal attention to a new and urgent matter. For a solicitor to turn off in such a way for any sustained period can be disrupting to others and put pressure on obligations as to other work upon which they engaged. do Quires always at some cases, ods but devote their the
hearing. The scale of cases undertaken by large commercial law firms can be such that even the preparation period can consume the time of one or more partners. The necessary "turning off' from other work and supervisory re-arrang ements will have been attended to during this time.
By contrast, at the Bar, there is usually somebody suitable from its ranks who, on a 'phone call's notice, is free and ready to switch total attention to a matter without disruption to anybody except his or her family and friends.
The second consequence of leverage is that it raises questions about the economic viability of establishing a group of advocates within a firm. If availability for advocacy work inhibits supervisory functions, an in-house advocate only could produce those fees that he or she is able to earn from individual effort - while charging out at rates which are competitive with the Bar. Heavy overheads affecting large commercial law firms make it difficult, if not impossible, to make this an economic proposition for a large firm. My own case illustrates this point. I was invited to join a large commercial law firm because it was establishing a group to undertake major infrastructure project work. In other words, the invitation was to a leveraged structure not involved with advocacy.
The adverse economics are aggravated by the fact that to have only one in-house advocate would hardly be enough. There would be a need for specialised expertise in the various areas serviced by large commercial law firms so as to ensure that the advocate is to be an appropriate choice for the client in the particular case.
If an in-house advocate were to become jammed, the whole point of the exercise of persuading the client to follow the inhouse route would be lost. At worst, the disappointed client would resent the other client being given first call. At best, the client will think that the whole idea of in-house representation was flaky and that it would have been better to have had counsel from the Bar from the outset. Their concern about this may stem from the disappointment, sometimes outrage, that solicitors and their clients feel when a barrister with long standing contact with a matter is unable to appear.
Other intervening factors could arise. For example, once having established the specialist in-house group, what is to happen if some rising star emerges at the Bar whom the firm, and its clients, would prefer to use in one of their specialties?
There are many aspects to be covered if this topic were to be dealt with compre-
hensively. For present purposes, suffice to say that an advocacy group would be likely to be a heavy economic burden for a large commercial law firm. This is reflected by the nature of the recent Middletons Moore & Bevins arrangement in Sydney with Stephen Robb QC (AFR, 8 March 1996, p.4) The firm h as dedicated rooms for him and other visiting barristers but Robb QC remains independent, able to appear for clients of other firms.
Consider th e impact of th ese background matters as they affect the three particular p erc eived threats from large commercial law firms.
PROVISION OF JUNIORS FROM WITHIN FIRMS
Since a strong Bar demands juniors who are busy and receiving the right experience and contact with seniors, recent changes to permit use of solicitor-juniors excited apprehension on the part of the Bar. Barristers argued that solicitors would try to use inadequately experienced solicitors as juniors to silks There were other more extreme scenarios suggested.
The matt ers mentioned virtually remove the need for Bar concern about substantial competition arising from the use by large commercial law firms of solicitor-juniors.
To threaten the success of a case by forcing an inappropriate junior, whether a barrister or a solicitor, on to a silk violates a basic rule: obtain the best commercial result and keep the client happy by doing everything to get that result. The risk of weakening the assault or defence team is exacerbated in the case of solicitor-juniors because they usually lack necessary experience in advocacy.
The clients of large commercial law firms habitually take a keen interest in precisely which "counsel" are to b e engaged for a matter. They ordinarily will be involved in, and approve, the choice. Sometimes they ask for a curriculum vitae of the barrister. Even the attempt to recommend an inadequately experienced solicitor as a junior for a trial would be a hazardous undertaking in client relations. It would be unlikely to suc ceed unless there was a cast-iron case for not using a barrister.
The fees charged by large commercial law firms for their employed solicitors do not usually involve a significant saving on fees charged by junior barristers (if any saving at all). The proposal to use a solicitor - junior could rarely be sold to clients on the basis of costs saving.
The partner would expect that, if the
trial went badly in any way traceable to the solicitor-junior, the client would detect it. In any event, the disappointed silk would be seen as likely, one way or the other, to make the position known to the client if only to protect the silk's own reputation quite apart from furthering th e Bar's perceived objective of inhibiting use of solicitors as juniors. Such a leak from the silk would be devastating for solicitor-client relations.
If work were slack and a senior solicitor were available, there would be a strong motivation not to waste the resource. Nevertheless, the other inhibiting factors r emain and, ind e ed, would be strengthened. It is even more important, during tough times, to mak e sure that clients have no qualms about the management of the case.
Not all employed solicitors even wish to appear in court. If they do, there are positives in giving them court experience. The experience is beneficial in developing lawyering skills valuable to solicitors as well as Further, the stimulation and variety involved does much for the morale of the solicitor. Keeping employed solicitors enthused and retaining them in the firm is an important matter if the recruiting investment made by all large commercial law firms is not to be wasted On the debit side, some solicitors fear giving employed solicitors a taste for the Bar by having them do court work.
All the factors above suggest that the circumstances are limited in which a large commercial law firm would urge a client to use one of its solicitors as the junior in a matter. It is inconceivable that such a firm would take the risk in a witness action where an solicitor-junior without proper experience might become responsible for questioning witnesses.
Looking for circumstances where a large commercial law firm might wish to use one of its solicitors, two pres ent themselves as possibilities.
Large commercial law firms have deep experience and expertise in specialised areas such as securities, financing, takeovers and areas of intellectual property. It may be seen by the solicitor to be better to provide a solicitor-junior in such cases, provided the advocacy demands of the case do not preclude it.
Another situation where use of a solicitor-junior is more likely, since it does not jar with any of the factors above, is the following. Solicitor instructs counsel through lengthy trial involving oral and written evidence. Barrister junior at trial is unavailable to app ear on the appeal. Briefing
another junior would be expensive. The instructing solicitor is competent, knows the matter and the papers inside out, and would be seen by the client to be able to provide adequate assistance to silk who is to argue the case.
USE OF IN-HOUSE ADVOCATES
Almost all of the structural and commercial factors mentioned above dictate that anything but limited use of in-house counsel has little attraction.
Another factor is the distribution of liability when external counsel is engaged. It is difficult to over-estimate the significance for the independent Bar of this particular aspect of its independence. It is a comfort for a solicitor to have the barrister there as an outsider to consult and act as an insulator for the solicitor when there is the shock of defeat or change of advice. As well, soaring professional indemnity premiums provide sound reason to involve an outside expert.
The fact that the Bar's role in advocacy is entrenched in our legal system means that to depart from use of the Bar opens an immediate vulnerability to client criticism, no matter how unfair, in the event of losing the case. The client could say (in effect):
"If you had only gone to the Bar in the usual way, this would not have happened. See how the judge knew the other barrister. The judge would have been happier if we had used a barrister and would not have been trying to put us down."
The prospect of client approval in the event of a win is not nearly as strong as motivating force as the fear of disapproval, and potential loss of the client, on a defeat.
On the basis that the judge is likely to be a former barrister, many solicitors have a virtually unshakeable belief that judges in superior courts will, because of their background, go out of their way to put a solicitor - advocate down in a case, or at least, make things difficult. It is not relevant whether this perception is justified. From the Bar's point of view, the importance of this is that solicitors holding this belief expect that their clients will share it and, therefore, will want to be represented by a barrister, not a solicitor - advocate.
An area where more in-house advocacy work may be expected is in straight-forward directions and similar case management hearings. These do not ordinarily require advocacy skills so much as knowledge of the file and what is practicable in terms of deadlines. Even so, if much waiting is involved, the ticking of the meter can easily mean that a barrister would
20
provide the client with representation at a keener cost.
There are some jurisdictions where large commercial law firms have appearance work and where solicitors habitually appear. They are specialised jurisdictions, such as those dealing with industrial relations and planning matters. Here, however, different factors inhibit the use of a generalist who might be the in-house counsel. In those jurisdictions the advocate ordinarily must be specialised. Solicitors who appear in these jurisdictions invariably are specialist practitioners appearing in their own cases, not cases in which they have engaged another partner as an in-house advocate. It follows that a generalist in-house advocate does not usually qualify for the brief against competition from a barrister who specialises in the area.
An area where more in-house advocacy work may be expected is in straight-forward directions and similar case management hearings.
One may ask, then, how large North American firms make their in-house trial lawyer system work profitably in providing advocacy services. If one assumes that profits are made, there are many differences which would have to be taken into account before being able to make a valid comparison. One vital difference is that, in the Australian cities serviced by large commercial law firms, there already is an extensive Bar providing advocacy and advisory services which those firms need and their large commercial clients expect that it will be used. While the Bar provides its services competitively and efficiently, and maintains its standing for doing so in the eyes of clients, there is little incentive for large commercial law firms to go to the trouble and expense of establishing and maintaining in-house advocacy groups to compete.
ADVICE AND OPINION WORK
Large commercial law firms, using extensive libraries and computer resources, have great capacity to generate detailed research at short notice.
The extent of the resources which large commercial law firms can devote to their research base, unfortunately, probably is unsuspected by most barristers. For a start, there they have a team of trained
librarians who maintain the print and electronic resources and constantly assess newly offered resources. The librarians are capable of legal research themselves and extend their capacity by maintaining a network of co-operation with librarians from other firms, universities and in the public sector.
In addition to external sources, large commercial law firms develop data bases drawn from material generated by their own work. So, an opinion, whether internal or from counsel, will go on to the data base, ready to be called up when future research requires it.
The financial strength of large firm's enables them to develop highly comprehensive libraries and computer-stored information in particular practice target areas, including cases and other resource needs, both national and international.
Research work in large firms habitually is done by librarians and bright young lawyers. But this research, must be turned into a draft and given the benefit of experienced analysis. Giving "commercial" advice is a true expertise of large commerciallaw firms. It is an imperative for their clients and something which solicitors yearn for from the Bar. Such advice requires the attention and time of a partner or, at least, a senior solicitor working to a partner.
In many cases, a well considered opinion on a difficult point, only can be produced by expending more fee-earning partner hours than can possibly be charged to the client. Clients often seem to expect that, because of their expertise, large commercial law firms should know the answer to legal questions without having to do much work. This often means that some time spent preparing opinions will have to be written off. This is treated by large commercial law firms (and by the Bar) as part of the service and, at least, an opportunity to demonstrate ability. If this happens as a matter of course, however, it introduces budget problems and, as discussed above, management concern.
Against using the Bar is, once again, the expertise and self-sufficiency of large commercial law firms in areas such as those mentioned above: securities, financing, take-overs, aspects of intellectual property.
On the other hand, not bound by budgets or obligations to others about not writing off time, a barrister is able more easily to charge for advice and opinion work on the basis of what the traffic will
Continued on page 26
The PNG Connection: Ongoing And More Important Than Ever
Tavuvur volcano, October 1994.
By 7 a.m. on Monday, 19 September 1994 it was pretty clear that it was going to be a trying sort of a day. I was due in court that morning to defend the actions of the West New Britain Provincial Government which had revoked a lottery licence without giving notice or reasons to its holder. I found myself sitting on the ground in unfamiliar territory and the thought of the obligation to argue that case could not have been further from my mind. My vehicle stood beside me immobile, drained of fuel. There were maybe a thousand people sitting close to me and there were many thousands more up at the roadway
About five miles away a volcano was erupting. About three miles away another volcano was erupting. The closer one had started to erupt as we beat our retreat from the first. It was a pretty close call. A little later an eruption occurred under the water in Rabaul harbour and this sent a tidal wave into my house, my boat, my office and finally into the court house. That pretty much relieved me of my work commitments for the time being. But there was
no escaping the ash. At first it had come out of the sky as a solid sheet of mud. This fell from a great height and so there was no question of it scolding, but it enveloped everything and everybody. The panic that it caused cannot easily be described but for us all it seemed like the end of the world. Soon, however, the mud gave way to a fallout of dirt and pumice, and then lightning bolts arced from the black clouds and hit the ground with a loud crack. We sat on the ground and lowered our heads to stop the dirt from getting into our eyes but every now and then we had to shake it off our heads end our bodies. We said nothing because there was nothing to say. The ash eventually destroyed every building for miles around except, as luck would have it, those on the island closest to the first eruption.
I recall with very real sadness the sight of the older ladies walking from group to group looking for their husbands and children who had become separated in the mad rush to escape the unfolding disaster. For all of us the power of speech was lost for the time being and eye contact was
carefully avoided lest it result in an outflow of tears. After a while a young guy from the village who was sitting close to me whispered a question: "Brother, what will happen now?" After two volcanoes, a tidal wave, a flood of mud and an awesome display of thunder and lightning, which had struck a man further up the road, it was not part.icularly easy to imagine what we should expect next. "I don't bloody know, I have never seen a bloody volcano before", I snapped But when I saw the look of shock on his face I realised that he fully expected that this would not necessarily have been a completely new experience for me.
I had spent a great deal of time at Matupit village and I guess that it was widely thought that I had an answer for every problem. Whenever a friend was charged with adultery, as nearly all of them were with monotonous regularity, a quick lesson on the law of evidence and the burden of proof would nearly always see him able to extricate himself from the prospect of a jail term. When all the indigenous inhabitants of Rabaul town were
advised one morning that their land claim for the entire town area, which their forebears had initially submitted to the League of Nations in the 1920s, was listed for hearing before lunch, 20 pages of hastily drafted submissions actually saw them emerge victorious, to the serious consternation of the National Government in Port Moresby. And when they approached me to say that they were sick and tired of bathing in the town's rubbish which was dumped on the foreshore near the village and bulldozed into their bay every month or so, we responded with a constitutional challenge based on the guaranteed protection from inhuman treatment. In this last case we failed and it was left to the volcanoes and tidal waves to remove the mess that the National Court had refused to outlaw.
My first real introduction to the people of Matupit Island in Rabaul harbour was in 1990. An old man from the village came from Rabaul to Port Moresby, where I was then working, to seek my support for a land claim that he was pursuing. He spoke to me at a mutual friend's house. His name was Dokta because the first Methodist missionary in New Britain was Dr. George Brown and so it is that Dokta Brown has become the most common Christian name(s) in Rabaul. Dokta's land was a section of the runway at Rabaul airport. I would have liked to help him but it would not have been easy to do so from such a distance. I tried to fob him off by saying that we would have to write a letter to the government. Given that we would never get a reply from the comatose administration in Port Moresby, I thought that would pretty easily dispose of the problem, at least as far as I was concerned. He then produced a folder containing copies of the most wonderfully drafted correspondence on the subject and he explained that he had been a school teacher for 40 years! I was pretty impressed but I suggested that he might need to resort to direct action if he was to be taken seriously. I was still looking for a way out. He then produced newspaper clippings from about a year before showing pictures of he and his dozen or so sons digging up the runway and planting banana trees. His land incidentally, lies exactly where the wheels of Air Nuigini's F28s touch down, and at the time of the planting the plane was en route from Port Moresby. In-short, I helped with his claim and as compensation his newly incorporated family company was given the maintenance contract at the airport. They were thereby able to secure meaningful employment and eventually went on to win
22
the award for the best run Papua New Guinean small business in 1994. Their operations however were pretty much wiped out by the eruptions.
The point of these stories I guess is to demonstrate that even in the apparently uncomplicated life of a Papua New Guinean villager, living in what used to be a rare paradise on this earth, there are a great many problems that require a bit of legal knowledge to even start to look for a solution. The training of young lawyers in Papua New Guinea is done within the confines of inevitable limitations. The country is now for all intents and purposes bankrupt. This is the result of the alarming and unchecked rise in official corruption that has permeated the National Government in every area of governmental responsibility and rendered the provision of even the most basic government services nugatory. Sadly the Australian Government continues to sink hundreds of millions of aid dollars every year and yet not require effective accounting for it. It remains to be seen whether the much trumpeted changes to the Australian aid policy will
make any difference but in most respects it is safe to say that it will be a case of too little, too late.
Even from a mercenary point of view, the Australian Government has, in recent years, wholly failed to secure Australia's commercial interests in the country_ Nearly every reputable Australian company has left, either voluntarily or as a consequence of being unashamedly squeezed out. In nearly every case the corporate predator has been a particular Malaysian based company that had its rather modest beginnings in Papua New Guinea's tropical forestry sector. At the time of Rabaul's devastation this company controlled approximately 80 per cent of the nation's exploitable, but not sustainable, forest production areas, a daily newspaper, significant plantation interests and many commercial operations operating under the guise of Western household corporate names. Even the national lottery which was initially set up by a well-known Australian concern appeared to have been subsumed into this corporate nemesis and that was the reason for the action taken
"My office - Joel (left) in overalls" - Graham Powell.
Rabaul courthouse.
against the lottery licence that would have seen me in court had the Rabaul courthouse survived the events of 19 September 1994.
Now while this may appear to have strayed from the point again, it should be realised that all of this is simply a further indication of the need for the strengthening of the country's legal profession, in the hope that proper legal advice and law enforcement might some day win the day. This is particularly so as the dominance of certain business enterprises within PNG has for some years been spoken of there by well-placed expatriates as having gone past the issue of business acumen and having entered the realm of national security. And one should not be side-tracked by the much-publicised saga at Ok Tedi. There are a great many non-renewable natural resources being ripped out of PNG that are well beyond the spotlight that has illuminated that single issue.
The Victorian Bar has played a pre-eminent role in assisting the legal profession in Papua New Guinea, and most particularly within its junior ranks. And this involvement has been very much strengthened by the involvement of many members of Victoria's judiciary. In recent years this began when David Harper, in his then capacity as Chairman of the Bar Council, secured the approval for my off-sider in the legal section of the Port Moresby City Council, Robert Aisi, to attend the Reader's Course.
The course at that time was under the guidance of Black Q.C. before his elevation to the Federal Court. Robert read with my Master, Bill Pinner.
Robert returned to Port Moresby very much uplifted by his exposure to the Bar and has been followed by 32 of his countrymen and women. There have been participants from the neighbouring Solomon Islands and from Vanuatu also. In
A very significant contribution has been made by the intensive advocacy courses.
Papua New Guinea the profession is small, insular and driven by profit to an inordinate degree. As such, little regard is had for the meaningful training of young lawyers.
A very significant contribution has been made by the intensive advocacy courses conducted by members of the Bar and the judiciary at Port Moresby's Legal Training Institute. This began in 1990 when Kent Q C., Ray, Morgan-Payler and Barbara Walsh first laid the groundwork for what has since then been an annual tradition. Later expeditions to the wilds of Port Moresby, in varying stages of turmoil and martial law, included Justices Vincent,
Coldrey, Eames and Harper, Judge Crossley, and members of the Bar including McIntosh and Steward.
In the early years I was still based in Port Moresby. At the end of a demanding week's work at the Institute we all mounted an expedition along the Papuan coast. After hours of difficult driving we arrived at the idyllic village of Keapara on the shores of Hood Lagoon. This was named after HMS Hood which visited this site in the late 1800s while on a punitive expedition looking for cannibals who had cooked and eaten a missionary . The story has it that after finishing the tasty bits they tried to partake of his shoes. After days of stewing they were finally discarded and Europeans were not thereafter as highly regarded in a culinary sense. For ourselves we found the locals friendly and we enjoyed a very pleasant barbecue We supplied the meat.
In later years I was based in Rabaul. On two occasions the team recovered from their educational exertions by visiting me there. Idyllic locations around Rabaul, at that time, did not necessarily involve any difficult driving at all. But we all climbed the volcano and stared down into its innocent looking crater. We even picnicked at its base where the lava flows were to later destroy the lush vegetation that we sat amongst on that occasion. We all got to know the natives, especially Joel who took a liking to Crossley's cap and helped him-
self to it. The judge said nothing, figuring that he may have been fortunate to lose his hat and not his head. On the night of 18 September 1994 Joel spent the night with me as we transported as many people as we could from the island and away from the volcano Ten minutes before it blew the ground cracked from one side of the island 's sports field to the other. The crack broke the concrete cricket pitch and passed between the front and back wheels of my car. We took the hint and took off. Unfortunately Crossley's cap was one of the first victims Luckily Joel was not.
The iudge said nothing, figuring that he may have been fortunate to lose his hat and not his head.
These pleasant and happy days were not necessarily the first contact between Rabaul and the Victorian Bar. It may not be widely known that Rabaul was the scene of the first military action involving Australian troops in World War 1. Matupit Island was then the naval base for the Imperial German Navy . The presence of the Germans at Rabaul clearly posed a threat to Australia's shipping, commerce and security. Only six days after the declaration of hostilities the pride of the Australian navy steamed into Rabaul harbour with guns at the ready to do battle The German navy had left only a short time before. The Australians made a landing at Kabakaul, the same place that I eventually escaped to in 1994, and fought a short but pitched battle at Bitapaka, where a Commonwealth War Graves cemetery is now located. The Australians won but lost their first casualti es
John Matthies & Co
of the war, including their Chief Medical Officer. They also lost a submarine with all hands, in unexplained circumstances. As a result of this action the Australian Naval and Military Expeditionary Force took military occupation of all of Germany's possessions in the South Pacific and administered them from Rabaul . The second judge to be recruited as part of this Administration was a Melbourne lawyer named Seaforth Simpson McKenzie, holding the rank of Captain of the AN&MEF. In mid 1917 McKenzie was joined in Rabaul by Edwin Tyler Brown who is described in Volume X of The Official History oj Australia in the War oj 1914-1918 as a "Barrister; of Melbourne; b Melbourne, 29 August, 1889" This volume was in fact written by McKenzie himself and he gives due credit to his learned friend from Melbourne by stating for posterity that Brown's "period of service was marked by useful work performed with signal ability" . Unfortunately for McKenzie, however, history has been less kind. The foreword to the 1984 version of the Official Histories records that McKenzie went heavily into debt to purchase plantations expropriated from the German residents of Rabaul to repay the Kaiser's war reparations. Not long after the purchase it was proven that McKenzie made a better lawyer than he did a farmer and when he returned to Melbourne he was destitute. In 1922 h e became prinCipal registrar of the High Court. While still plagued by his financial problems he was found guilty of forging and uttering seals of the High Court and sentenced to four years' imprisonment. Australia's involvement in Rabaul arose from the need to protect its own national security interests 80 years ago. It should not be thought that this is a matter of resentment for the Tol ai people of the Gazelle Peninsula, on which Rabaul is situ-
ated. The Tolais are without doubt the most fanatical supporters of the Sydney rugby league competition. By instinct they will support Australian athletes in Olympic and Commonwealth Games competition. Even the refugee camps came to a complete stand-still for about three minutes on the first Tuesday in Novemb er 1994 when the Melbourne Cup was run. A Tolai's favourite snack food is a meat pie and their liking for a cold ale, or even a hot one if it is the only thing going, is consid er able. They are more familiar with the current affairs in Australia than they are about their own country and in the early 1970s played off Gough Whitlam against John Gorton with consummate political skill. The older generation look back with real fondness to the days of the Australian Administration when disciplin e prevailed and the young were taught technical skills that are denied to most of the country's youth today. I have been declared persona non grata by the erstwhile Government of Papua New Guinea for stating my views too loudly and once too often. But I would like to record my appreciation to Bob Kent Q.C. and to Barbara Walsh who have done so much to look after the Papua New Guineans who have attended the Reader's Course, sometimes in pretty trying circumstances. I would also like to assure those members of the Bar who hav e taken the role of Mast er for these participants that from where I have stood th e effo rt can only be described as being mor e than worthwhile. In summary I will say that if the Victorian Bar does not offer this kind of assistance to the legal profess ion in PNG then they will surely not get it from any other sourc e.
Grah am B. Powell Graham Powell is a practising member oj the Western Australian Bar.
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Rex Patkin Answers Questions On Indebtedness
This paper, entitled How The Bait May Be Taken was originally written in 1982 by Rex Patkin. The question arises as to the authorities that support the statements oj law made in this paper and whether the law as stated was correct, and if so, whether it is still correct in 1996.
THE situation is common: the debtor, who does not in fact dispute the debt, owes $50,000 to the creditor and sends $35,000 in full and final settlement. The question is, can the creditor take the bait and sue for the balance?
The debtor claims an injustice if the creditor accepts the payment and then, ignoring the terms of settlement, sues for the balance. However the creditor often, after taking legal advice, returns the cash or cheque and later regrets the decision when nothing is recovered from the baiting debtor.
The debtor's conditions of payment can be expressed in a variety of terms:
(a) This payment is made in full and final settlement of all demands;
(b) This payment is made in full and final settlement of your claim and by banking the enclosed cheque you accept these terms of settlement;
(c) This payment is made in full and final settlement of your claim and if you do not wish to settle this matter on these terms then the enclosed cheque must be returned;
(d) This cheque is delivered to you in full and final settlement of your claim and if you do not wish to settle this matter on these terms then the enclosed cheque must be returned.
If the creditor accepts the payment the debtor may raise the following arguments:
(a) There is an appropriation of money which is governed by the terms of tender to the creditor. This consequence follows, for the application of money paid is governed by the intention of the parties and a debtor has the right to appropriate money as he pleases. Where such appropriation is made the creditor cannot act contrary to the conditions of tender. Thus, it is argued if the creditor accepts any payment on terms of settlement he is bound by those conditions of tender.
(b) There is an "accord and satisfaction" which results in any cause of action relating to the debt being extinguished.
(c) There is an estoppel in relation to proceeding with the action to recover the balance by reason of the conduct of the creditor.
(d) There cannot be any passing of property in the cheque without the creditor agreeing to the terms of delivery.
In reply, a creditor can agree with the proposition that money received for a specific purpose, or paid or to be paid into a particular account, cannot be appropriated by the creditor for another purpose or paid into a different account. Thus, money received to pay rent cannot be appropriated by a landlord to pay another debt existing between the same parties. Again a trustee or bank receiving money in relation to one trust or in relation to one specified account cannot apply that money to a different trust or to a different account.
The debtor will argue that the creditor cannot retain the money yet reject the conditions attached
Where the debtor does not indicate any specific intention in relation to any payment then the creditor can appropriate the money to any account or for any purpose.
In the circumstances of this case, however, there is only one purpose or only one account involved and the question is not a matter of appropriation. The essence of the debtor's case relates to the terms in which payment was tendered to the creditor. Thus, the real question is one of
"accord and satisfaction"; that is, the existence of an enforceable agreement between the parties which extinguishes any cause of action relating to the debt.
The debtor's real contention is that by accepting the money the creditor is accepting an offer and is bound by the terms of settlement. It is argued, if the creditor banks the cheque without replying to the debtor's offer, by his conduct he is deemed, as a matter of law, to have accepted the debtor's offer. A failure to reject the offer, or silence, followed by aceepting the money amounts to an acceptance of the conditions of tender.
Although there may be an agreement the problem still arises as to whether there is an enforceable contract. What is the consideration to support the agreement? Such a problem does not arise if there was an agreement embodied in a deed.
If the creditor rejects the conditions of payment then no agreement can arise which in any way affects the creditor's cause of action against the debtor.
Accordingly, on being notified of the offer, the creditor should immediately inform the debtor that:
(a) The terms of payment are rejected; (b) The creditor still requires the balance to be paid; and
(c) The moneys paid are accepted in part payment of the debt.
The debtor (as stated earlier) may say: "This payment is made in full and final settlement of your claim and by banking the enclosed cheque you accept these terms of settlement. "
The debtor will argue that the creditor cannot retain the money yet reject the conditions attached to the tender. Once the creditor banks the cheque it must be a conclusion of law that he accepted the offer despite the rejection of the terms of payment. The debtor argues it would be an injustice or fraud to allow the creditor to keep the money yet be free of the conditions. Despite these arguments the law may be clear that no such conclusion of law arises by reason of the creditor's conduct in keeping the money where the offer is rejected. The debtor cannot unilaterally impose conditions on the creditor where money is owed to the creditor.
The debtor may argue that there cannot be any passing of property in the cheque without the creditor agreeing to the terms of delivery. In most situations this is correct, however, in the case of an "admitted debt", the creditor can virtually ignore the conditions attached to the payment. Thus the debtor has no legal right to the return of the cheque. The creditor C(ln virtually ignore the conditions of p(lyment.
There is a danger that, in some circumstances, the debtor may rely upon an estoppel (lrising:
(a) A debtor pays part. of an existing debt;
(b) In reliance upon a creditor's promise that tIle debt is extinguished;
(c) The debtor acts to their detriment; and
(d) The creditor has knowledge of the debtor acting to their detriment in reliance upon the promise.
A debtor, who does not in fact dispute the debt, should not send the cheque with the offer of partial payment in full satisfaction of the debt. Instead the debtor ought to make a written offer in the form of a deed of agreement and only when the creditor has accepted the offer in the deed of 8greement should the money or cheque be sent.
If the agreement is not embodied in a deed the question of an enforceable contnct arises; the debtor must have given some consideration. If the debt is disputed, or some payment is early, then consideration may arise to support the (lgreement. Alternatively the debtor must ensure the necessary equity is established to support an estoppel argument.
A creditor on the other hand, should reject the olTer and then bank the cheque; not vice versa. Clearly if the offer is rejected too early the debtor may stop the cheque , The question then arises whether the creditor can sue on the cheque'?
Thus from the creditor's point of view the b(lit CCln be taken; but care must be exercised in how it is taken.
Would the situation be different if the debtor's offer not only makes an offer of settlement in the terms discussed earlier but also disputes the quantum of the debt?
It is arguable that provided the creditor rejects the contention there is any dispute as to the balance owing and rejects the offer, there is no change in the situation. If, however, the creditor admits the dispute exists and accepts the payment as a compromise of that dispute, there is consideration to support the promise.
The Bar, Large Law Firms And Competition
ContinuedJrom page 20 bear. A solicitor may wish to have a barrister's hands-on feel for what will "run", no matter what the theory might be. Many solicitors value the mix of their long-term involvement and the outsider's impression. Further, in some cases it may be important that advice from a barrister has the benefit of being seen by the client to be "independent" .
As presently organised, individual barristers do not have the capacity to compete with these facilities, at least, without requiring more time to do so. This creates a competitive problem for the Bar if all clients see is that the barrister has merely repeated advice already given by the solicitor to the client, although the barrister's fees add another layer of substantial cost.
The competitive edge for barristers working on briefs from firms with strong research capacity often will not be in generating (or regenerating) research but in giving it the external touch and the "feel" that can be added by those regularly in court. This can be done, in co-operation with the solicitors using their research and advanced drafts, at a cost which makes the exercise manifestly worth the money for the client.
In this context, it. is worth mentioning a technique sometimes used for obtaining written, and therefore committed, advice from counsel by a speedy and cost-effective means. Under this process, the brief is delivered, including research prepared by the solicitors. Counsel gives advice in conference attended by a partner and a junior solicitor. The junior solicitor then prepares notes of the conference which would be submitted to counsel. Counsel makes any necessary amendments and then signs and returns the notes. This is not the traditional means of obtaining written advice but it often serves the purpose adequately while having the advantages of speed and economy.
As appears above, the considerations affecting sending advice and opinion work to the Bar are not so clear cut as those applying to appearances. Large commercial law firms are now much more likely to be able to provide specialist opinions which once came only from the Bar. In general terms, however, when it comes to a substantial advice on a weighty matter, the factors mentioned above favour the
commercially-oriented specialist areas in which by large commercial law firms habitually practice. Changes in technology and access to resources suggest that the Bar will improve its usefulness to large commercial law firms' by being ready to adapt its traditional practices to meet the demands of modern commercial conditions and client cost-sensitiveness .
For the reasons above, large commercial law firms are unlikely to present any real threat to the Bar in advocacy work and are likely to involve the Bar in advisory and opinion work.
The Bar and large commercial law firms have a common interest in working together to make the most of their individual advantages. With greater confidence by each in the security of their roles in relation to one another this common interest will be more easily fulfilled.
THE FUTURE
The encouragement and assistance for this article given by both members of the Bar and lawyers at large commercial law firms stems from their conviction that both sides of the profession must work together to make the most of the advantages that each offers In the relevant area of practice this must be achieved, they perceive, in ways which are relevant to the commercial needs and expectations of clients. They are concerned that both sides of the profession should feel free to work together constructively free of unnecessary insecurity.
What are the issues they wish to address? It is not within the scope of this article to expand on them but some issues for the Bar which concern large law firms were summarised for me by one leading Melbourne litigation partner as follows: fee levels; availability to fulfil commitments to matters; inefficient repetition of work; uncommercial advice and failure to keep pace with available technology. I would add another; delay.
This brings me to another bugbear for solicitors, the inevitable: counsel's disclaimer. In this case, I make no apology. AIl of the reasons propounded in this entire article are made less compelling to the extent that barristers do not hear, or are complacent about, concerns such as those in previous paragraph.
Rex Patkin continued use of the Bar except in David Bennett
Opening Of The Legal Year
Sermon at the Opening of the Legal Year, 29 January 1996, by the Rev. Canon Kenneth Crawford, Precentor, St. Paul's Cathedral, Melbourne
A question of tradition
THERE is a couplet in an old Cornish Christmas wassailers' song which reads, "Ask not the reason, from where it did spring/For you know very well, it's an old ancient thing". As we consider the title of this address, "A Question of Tradition" we might well look at the sub-
ject in light of how much we really take that wassailers' couplet literally, even if unconsciously, in terms of the way we relate to life. But the question looms before us: why on earth bother with tradition at all? Why follow the customary path of people we have not known and whose way of
life could be seen essentially as foreign? Let us consider just how foreign or otherwise it might really be.
The opening of the Legal Year has come round again. Traditionally, for us, it is the last Monday in January; traditionally, it begins with a service at St. Paul's Cathedral, St. Patrick's Cathedral, and the Synagogue; traditionally, it has been followed by the Judges' Reception in the Supreme Court Library. In England, traditionally, the Lord Chancellor as Head of the Judiciary, leads the Legal Procession from the House of Lords to Westminster Abbey for the opening service to mark the Michaelmas law sittings in October; traditionally, the Lord Chancellor's breakfast marks a moment in the opening of the British Legal Year.
The reason why we begin the Legal Year in a conspicuous and ceremonial way might not be asked, generally. It may be that it begs the opening wassailers' couplet: "Ask not the reason, from where it did spring/For you know very well, it's an old ancient thing". An immediate, if somewhat evasive answer, however, might. be that it is simply part of our British heritage and legal tradition. One would hope, though, that this service at the opening of the Legal Year would be an occasion to reflect on the nature of justice and mercy in relation to our Lord as we have prayed in the litanies.
Perhaps this reflection on justice and mercy has been captured beautifully by Shakespeare's character Isabella in Measure Jor Measure where she says, "No ceremony that to great ones (be)'longs,l Not the king's crown nor the deputed sword,lthe Marshal's truncheon, nor the Judge's robe,lBecome them with half so good a grace/As mercy does" (Act 2.ii) This service is traditional, but asks that tradition and worship speak together as a relevant unity which is whole rather than one being the excuse for the other.
On this question of tradition, Isabella touches the mark in her comments on the accoutrements she lists when she talks about the judge's robe - and by implication all degrees of legal dress. Since time
immemorial, the legal profession within the British Commonwealth - and in some cases beyond - has worn robes according to its various ranks. It is interesting to note that, some years ago, when a vote was taken about the possible abolition of judicial vesture in this state, the result was in the vicinity of 90 per cent in favour of retention. A very high figure, given the various moments in Australian life when the call to abandon things of seeming cultural irrelevance to Australia is shouted.
With regard to this judicial vesture, there is an important aspect of tradition which deserves never to be discarded, and it is the aspect which speaks to us of history. We cannot. move successfully into any kind of future without knowing and discerning what. has gone before us. We are not. bound by hist.orical strictures and dictat.es, but we are helped to know the ways t.o look forward by ways of the past.. Robes of office speak to us of the past, certainly, but as symbols of continuity - of where we have come from and where we might well t.ake ourselves. This applies equally t.o vest.ure in the realms of academe, of mayoral government or the Church.
These symbols do not shackle us to antiquity. They are traditional point.s of anchor in a changing world. They provide a steady rhythm within the ebb and flow of the professional way of life. These symbols help to define t.he role of each, readily. In the case of these robes, they provide not only a ready indicator of who's who, but a great. leveller in the ranks: no matter what the social background or other perceptions of a member of the profession might be, once the robe of office is donned, he or she is the equal of any other. In this respect, the retention of traditional symbols would accord strongly with a perceived Australian way of life where everyone would be seen generically as equal.
In her article in The Age on Saturday last, entitled "Australia Day: defining the symbols and meaning of nationhood", Judith Brett from La Trobe University writes,
"The ANA was fiercely opposed to regalia, which it associated with decadent Old-World traditions. The feudal trappings of an oppressive class-ridden society had no place in a democratic country like Australia The recent announcer:nent by the Premier of New South Wales, Mr. Carr, that its Governor will operate part-time from a suburban house shows just how persistent this rejection of pomp is among many Australians. We still seem rather at a loss to know how to supply 28
our own pomp and ceremony Perhaps too much pomp and ce remony is un-Australian'?" " Australian national symbols developed alongside imperial symbols, and only in the past couple of decades have they been called on to carry the full weight of our civic feeling. This they are doing rather awkwardly and with only limited success "
She goes on to say,
"To outside observers, the loose attachment of Australians to their symbols of State and their comparative lack of historical weight can seem evidence of weak national sentiment among Australians."
While Ms. Brett goes on to clarify this last statement with some positive reflection on the acceptable absence of vulgar, emotional displays of patriotism within Australia, she does see fit to mention this apparent perception of weak national sentiment.
Robes of office speak to us of the past, certainly, but as symbols of continuity - of where we have come from and where we might well take ourselves.
Whether we agree with Ms. Brett's assessment or not, her words do prompt us to ponder the traditions of our past. There are moves afoot. at present to do away with much of what has helped to shape Australia's nationhood from the time of its European settlement. There seems to have been, over that time, a rather lightweight approach to Australian history. Even in the 1950s and '60s, Australian History was a relatively new school subject in its own right. Even newer is the current school subject "Australian Studies". Given that Australia seems to have taken a long time to sort out. and acknowledge an historical tradition, to dispose of it without due care would seem folly.
While I am supportive fully of the entitlement of any worthy cit.izens from overseas to make a home here, and would encourage their welcome, there is a danger that, with all the historical traditions from overseas being celebrated in Australia and owned as our multicultural heritage, Australia will lose any understanding of its own historical tradition and will continue to search for identity well into the next century.
St. Paul, in his second l etter to the Thessalonians, says, "So then, brothers and sisters, stand firm and hold fast to the traditions that you were taught by us ", as we heard in the second lesson this morning. Not for one minute is Paul suggesting blind adherence for the sake of persevering at all costs. Rather, he is advocating holding fast to the essence of the traditions taught - that Christ died, was buried, rose again, appeared to his disciples, and ascended to reign in glory. In the Christian tradition, this is unfailing and is the essential to which we hold fast as the undergirding of our faith. This is the unchanging tradition of Christianity. But what our understanding of this tradition of b e li ef does allow is the changing nature of the way we express that faith.
Within the Anglican Church, the traditional Prayer Book is that established by Thomas Cranmer and settled as the liturgical standard in 1662. This Prayer Book was the worshipping norm world-wide unt il the second half of this century when the various provinces of the Anglican Communion began to develop their own prayer books oriented specifically to their cultural and community needs. This began in Australia in 1978, and revised and published again in 1995.
There is no sense in whi ch these Australian prayer books wipe out the 1662 Book oj Common Prayer. In fact, their use is e ncouraged alongside the original. Because the Book of 1662 has been so well und erstood and so well experienced, its tradition has enabled growth and change within that understanding and not in spite of it. Th e existentialist writer, Albert Camus has said, "You cannot create experience. You must undergo it". Only through the experience of the tradition can we focus on where we might grow and co ntinue to learn. The only time things begin to stagnate is when tradition is honoured and held fast to for its own sake rather than for the ways it can free us into new areas of personal, national, and spiritual growth.
In that regard, the Church would argue quite properly that the one constant in all of life's variety is the spiritual life: that which guides us, compels us, and en liv ens us to follow the ways of God and to dwell on the things of God. Screening on Channel 2 at the moment is a wonderful series titled In Search oj Holy England, written and narrated by Rabbi Lion el Blue of Oxford. In an outstanding episode called "Living with the Saints" Rabbi Blue speaks at length of the time he spent with the writings of the Venerable Bede of Jarrow
and Cuthbert of Lindisfarne. Blue says that Bede helped him to understand that, as he searched for the glory of English history, the true glory lay in the point where holiness enter ed the lives of the people as a nation rather than assuming that it lay in the conquests of the enem y. For Rabbi Blue, this sort of awareness caused him to
reflect on that tradition of faith which has built nations. The constancy of that tradition took an unusual turn in Lionel Blue's case: as a result of studying the age-old Christian tradition of Bede and Cuthbert, Blue felt call ed to undertak e rabbinical studies within his own faith.
To define that quality of holin ess which
he had found in Bede's tradition, Blue described his reflection on the meaning of charity: how is charity different for the religious person compared with th e secular humanist? He sees the differ e nce in what Cuthbert of Lindisfarne called the giving up of something rather than simply the giving. Holiness is the letting go of something for which inevitably there is a greater, personal return . Here is a major point in this man's life where hundreds of years of a tradition has helped his growth and expansion into a state of untold spiritual rich es
Th e great English writer and priest, Michael Bordeaux, describes th e power of this holiness in a scene from East e r ce remonies in Russia during the Church's perse c ution He writes,
"Someo ne at the back of the Church lit a c andl e , a single point of light not able to pierce the darkn ess. But then there was another a nd a noth er, for each of the worshippers ca rri ed a candle. Swiftly, the flame was passed from one to another. In less than a minute, the Church was ablaze with light - no, not th e imp e rsonal glare of electricity - it was a thous a nd individual flames united in a single faith
"Eac h ca ndle lit up the face behind it. That face bore the deep lines of suffering Yet it was illuminated, and the suffering turned into joy beca use of the certain knowledg e that th e Lord had risen."
These people do not debate the resurr ec tion, they have experienced it in their lives. They have not preserved th e faith in hostil e surroundings; it has preserved th em
"Their joy is a glimpse through the curtain which divides us from heaven."
In giving up everything in suffering, they had gained more than this world could offer. This is the holiness of which Rabbi Blue speaks, and it is the result of holding fast to th e traditions which had been taught.
"Ask not the r easo n, from where it did spring,lFor you know very well, it's an old ancient thing." I think there is most definitely a need to ask the origin of something. It is only then that we are able to discern how those thing s which we have learned are able to guide and enable us to do things in the future rather than be served in thems e lv es for the sake of perpetuity. May we discern these things always from a holy point of view in true charity and grace.
The Lord be with you.
Verbatim
Pointing the Finger
County Court of Victoria
Coram: Judge Ross and jury
R v. Gibb
Langslow cross-examining an indemnified accomplice who is giving evidence to the effect that he had driven a getaway car following the alleged armed hold up. The witness had stated that he observed a bystander taking particular notice of the car he was driving, and, on becoming aware through the medium of police radio scanners that the car had been identified, stated that a decision was made to destroy the car. His main concern was that his association with the car could be established by finger printing.
Langslow: If that was your main concern there was no need to destroy the car?
Witness: Why?
Langslow: You could have obtained a cloth and wiped the steering wheel and other parts of the vehicle with which your hands came in contact. That would have removed the finger prints.
Witness: You should have been with us, you would have come in handy.
In-house or Out-house?
Magistrates' Court of Victoria at Melbourne
Police v. Elliott
15 December 1994
Coram: Mr. Hicks M.
Richter cross-examining the National Crimes Authority lawyer.
And seeing legal professional privilege is claimed, I take it that it seeks or receives or gives advice? ... Yes.
In relation to the terms of reference? Yes.
To the NCA? Yes.
And this advice, and I obviously can't canvass it, it is in August 1990, and it follows upon the fact that the NCA was already invoking the coercive powers in relation to the FX matters back in July of 1990, right? Yes.
The advice that was being sought, was that sought from an in-house or out-house lawyer? The advice that was sought, was that
32
sought from an NCA lawyer or counsel briefed to give it? ... I briefed counsel.
Going Straight
Magistrates' Court of Victoria at Williamstown
Coram: Doherty M. 14 December 1995
Purvis for Plaintiff
McDermott for Defendant
Purvis (to Plaintiff who merged right): Which indicator did you have on?
Plaintiff: Left Purvis: Why?
Plaintiff: To show other cars that I was going straight ahead.
Following the Balls
Perth Magistrates' Court
A.s. C. v. Bond
6 December 1995
Burnside Q.C. cross-examining a Mr. Spalvins.
Mr. Spalvins, your office is at 123 Greenhill Road, Unley? Was
Was, I'm sorry. In your office on your desk did you have a plaque that had a short statement of philosophical principle on it? ... I probably had a number of plaques.
Yes. You are smiling. You know the one I'm talking about, don't you? I'm sure you do, too.
You did have a plaque on your desk with a little philosophical statement on it? Yes.
What does the statement say? ... Probably something - "When you have got them by the balls, their minds and hearts will follow."
You have that plaque on your desk as a statement of your approach to life and business, do you? ... No, not necessarily. It was just to amuse visitors.
Just to amuse visitors, right. Did you choose it for yourself or did someone give it to you as a gift? ... Actually, I can't recall it but I think somebody probably gave it to me as a gift.
Someone who knew you well? I can't recall.
No further questions, Your Worship.
Kicking against the Pricks
Magistrates' Court of Victoria at Melbourne
18 January 1996
Police v. Hiddle
Coram: Mr. McLean M.
Sean Grant for Hiddle (who is charged with careless driving) cross-examining prosecution witness.
Grant: Do you know the person seated in the middle of the court?
Witness: Yes.
Grant: He told you about the evidence of the others before you came in didn't he?
Witness: No.
Grant: He spoke to you before you came into court?
Witness: Yes.
Grant: What did he say to you?
Witness: He said you are a real prick.
Affirmative Answers
Supreme Court of Western Australia
31 October 1995
Coram: Scott J.
Strategic Minerals Corporation NL v. Hendry Rae & Court
Martin Q.C. with J. Bartlett for Strategic McCusker Q.C. with R.E. Birmingham for Hendry Rae & Court
Martin Q.C. cross-examining expert witness about contents of reports examined by him.
Martin Q.C.: In posing the tests in that way, you got five affirmative answers and 16 negative answers.
Witness: That's right.
Martin Q.C.: I've taken you to 11 reports in which there is reference to some form or other of technical review and you agree that there are those 11 reports I have just taken you through. That's a much wider field than the five that got your affirmative answer isn't it?
Witness: Sorry, your question is that 11 is greater than five?
Martin Q.C.: You have made a good point. I will withdraw the question.
Witness: I'm only an accountant.
His Honour: The matter falls within your area of expertise . Witness: Yes Your Honour.
Assessing Handballs
Court of Appeal Supreme Court of Victoria
Collie v. Deputy Commissioner oj Taxation
2 February 1996
Coram: Winneke P. and Phillips J.A. Searle for the Appellant Nettle Q.C. and Lenczner for Respondent
Searle: The purported assessments are not assessments. If I could give Your Honours an analogy. Assume the Commissioner of Taxation had to make an assessment of the number of handballs that Polly Farmer had in the 1963 Grand Final, and he had twenty handballs, yet the Commissioner assessed him to two thousand. That would not be an assessment. Winneke P: To those of us who were there and played against him, it seemed like he had a thousand.
Short and Sharp
GIO Workers' Compensation (NSW) Limited v. GIO General Limited (unreported, 29 August 1995, NSW CA) the New South Wales Court of Appeal dealt with an appeal from a decision of a County Court Judge ordering an employer, to pay $221,750 to a worker's widow in respect of
the death of the worker. The trial judge found that the deceased worker received injuries alleged in the application and died on 7 August 1993 as a result thereof, and that the widow was wholly dependent upon him for support at the time of his death. The Court of Appeal held that, as a matter of law, the trial judge had reached the correct result.
In the course of giving judgment Sheller J.A. referred to an exchange between Mr. Wardell, counsel for the defendants, and the trial judge, which occurred in the course of submissions by Mr. Wardell when the trial judge asked what was the difference between the rate payable if the injury resulting in death happened in 1983 and the rate payable if it happened in 1993?
Mr. Wardell: Well, in financial terms the difference is significant . I think the entitlement in relation to New act injuries is something in the vicinity of $221,000, and the entitlement as indexed in relation to Old Act injuries is $80,300.
His Honour: How much.
Mr. Wardell: $80,300.
His Honour: Mr. Wardell, I am going to give this lady the lot. You can get the Court of Appeal to take it away from her. If you think that on this last circuit of mine in a case such as this that I intend to do anything otherwise you can go jump in the lake, and that can be recorded in the transcript.
Mr. Wardell: Thank you, your Honour. Your Honour having made that observation it is probably unnecessary to put the remainder of the submissions I wanted to make.
His Honour: I think so.
Mr. Wardell: But would your Honour note that I am not putting specific matters to your Honour in view of the view your Honour has expressed.
His Honour: No, I will sit here and listen to as much as you want to put in submission, Mr. WardelL I am just telling you what the result is going to be.
Mr. Wardell: I am grateful to your Honour for that but the Court of Appeal, not uncommonly, requires people to have raised things in the court below, so if I could put the point-
His Honour: Yes, well you keep going by all means.
Mr. Wardell: Thank you, your Honour. My submission in summary, if I could put it this way, is firstly that although death benefits arise as at the date of death that does not determine the date of injury. The date of injury is to be determined by references to section 4 and section 15 and 16.
Section 15 and 16 provide that the date of death, or the date of deemed injury shall be the time of the worker's death or incapacity. There is some ambiguity about whether or not that involves two deemed dates of injury or one. In our submission, if incapacity precedes death there is only one deemed date - of injury. In this case there was incapacity at the time the worker went off for medical treatment in 1983 and that is the deemed date of injury. I think in the circumstances I have put the argument we would have expanded upon in more detail, and I will finish my submission.
His Honour: Thank you. Mr. Wardell. You can frame up the findings for me if you like."
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Eleven ppointed
THE Governor in Council appointed 11 new Queen's Counsel, the appointments to take effect from 5 December 1995. The Attorney-General advised that in respect of the appointments it is recommended that John Bruce Bingeman have precedence next after David Grace Q.C. and that the other per-
sons named in the Schedule should be granted precedence in relation to John Bingeman and to each other in the order in which their names are set out thereunder.
Left to right:
Geoffrey Raymond Flatman
Arthur William Adams
Paul Anthony Coghlan
Dyson Francis Hare-Lacy
Con Heliotis
Peter Norman Vickery
Phillip Alistair Dunn
Simon Richard Molesworth
Simon Paul Whelan
John Bruce Bingeman (absent)
Kim William Spencer Hargrave (absent)
Full Name: John Bruce Bingeman
Date of Admi ss ion: March 1965
Date of Signing Bar Roll : Ma rc h 1965
Readers: Alan Middleton, Christine Biank sby ,
Areas of Practice:
Reason for Applying: Reaction on Appointm ent:
Full Nam e:
Date of Admission:
Date of Signing Bar Roll: Readers:
Mi chae l Roche, Rober t Squirrell
Common Law, Personal Injury, Acci d e nt Comp ensat ion, Media and Insurance Law
Always aspired to this app ointm ent
Serious pleasur e
Dyson Francis Hore-Lacy
3 April 1967
13 April 1967
David Myers, Pat Kearney, Jam es Isles , Frank Saccard o , Neville Bird, Tony T rood, Rob Larkin s, Ma rk Hird, Jane
Dixo n , Suzan Cox, Sean Cash, Mary Agresta, Temi Artemi, Peter Kilduff, Harry Wilcox, Moira Jenkins
Full Name:
Date of Admission :
Date of Signing Bar Roll:
Read ers:
Areas of Practice:
Reas on for Applying: Re act ion on App oin tme nt :
Simon Paul Whelan
3 April 1978
19 November 1981
A. Ryan, A. Rubinstein, J. Davis, J Horan
Commercial Escape the paperwork
Absolutely delighted
Full Name: Simon Richard Molesworth AM Da t e of Admission: 3 April 1978
Date of Signing Bar Roll: 17 May 1984
Read ers:
Areas of Practice:
Areas of Practice:
Reason for Applying: Reaction on Appointment:
Full Name:
Date of Admission:
Date of Signing Bar Roll : Readers:
Areas of Practice:
Re ason for Applying: Reaction on Appointment:
Full Nam e :
Date of Admission:
Dat.e of Signin g Bar Roll : Readers:
Criminal Law m a inly
Habit
Pleasantly surprised
Con Heliotis
1 April 1968
4 April 1968
Mi chae l Clark e , Steven Graham, Kiki Politis, Robert Dyer, Ron Curtain, Gary Glover, Mark Tomaso n, Dominic Co nidi
Criminal
"At last!"
Philip Alistair Dunn
1 March 1968
13 February 196 9
W.M. Toohey, N Crafti, S. Gill espieJ o nes, J.A. Nich o lson, L.C. Rob son, G. Rutman, J. Puis , H. Cottee, J Salemi, C.J. McSteen (part), O.P. Hold e n son (part), A.T. Sh elley, S.P. Pic a, W.L. Boddison, G.T. Cannon, S. Minah an, R. Connick
Reason for Applying: Reaction on Appoin tmen t:
Environmental, Planning, Mining, Local Gov ernment, Heritage & La nd Compensation & Valuation Law Career advancement
Pleasure - particularly at ach ieving such a mil esto n e in time for my 88year-old parents to witnes s it a nd my c hildren to understand it
Full Name: Kim William Spencer Hargrave
Dat e of Admission: 1 May 1978
Dat e of Signing Bar Roll: 9 Octob e r 1980
Read ers: Dr. Karin Emerto n, Kevin Lyons Ar eas of Practice: Com mer c ia l Law
Reason for Applying: Tired of preparing larg e cases for other people to run
Rea ct ion on Appointm ent:
Full Na m e:
Date of Admission:
Date of Signing Bar Roll: Read ers:
Areas of Practice:
Reas on for Applying: Rea ction on Appointm ent:
Delight, pride and appreh e n sion
Geoffrey Raymond Flatman 2 March 1970
6 December 1971
R.H. Friedm an, AH. Elliott, C.M.J. Osborne, S. Thomas, N. Poynde r, M Gamble, C. Quin, A Kwong Criminal Law Habit
Catharsis
Areas of Practice:
Reason for Applying: Reaction on Appoint.ment:
Criminal Law
The time was right
Pleased that I am not Mr. Junior
Full Nam e: Peter Norman Vickery
Date of Admis sio n: 1 August 1973
Date of Signing Bar Roll : 21 March 1978
Readers: Warren Friend, Andr ew Watson, T erry
Areas of Pr ac tice:
Reason for Applying: Reaction on Appointment:
Johansson, Andr ew Laird, Ken Howden
Commercial, Administrative Law, Mediation
Ready for a n ew c hall e nge
Delighted. Flatt ered by the warmth of well wishes.
Full Name : Arthur W. Adams
Dat e of Admission: 1965
Date of Signing Bar Roll : 1965
Read ers: Timothy Doherty, Bill Lall anchi ni, Reg
Areas of Practice:
Reason for Applying: Reaction on Appointment: Egan, Kerry Clancy, Grant Fras e r Common Law Not answered
Not answered
The Children's Christmas Party
IT was eight days before Christmas in Me lbourne's Botanic Gardens. The sun shone strongly. There were ducks and black swans on the pond and c hildr en feeding them. Parents hov e r ed in the background.
By contrast with (say) ten years ago few of the fathers (and consistently with past practice none of the mothers) wore beards. Such beards as there we r e see m ed to be almost entirely confined to those parents (or grandparents) of mature years.
The sun shone, the children played and climbed trees. Then Santa (clisguised as Simon Wilson) arrived.
Children clustered around him shrilling and scrambling for the lollies which he distributed with the casual largesse of a large Edwardian gentleman casting pennies for urchins to gather.
Then came the present giving. Santa r ead out the name on each parcel a nd commented in the gentlest manner on the qualities of particular schools or the habits of a barrister parent or, sometimes, asked perplexing questions which wise children might have read as revealing an educational or sectarian bias
A kissJor Santa.
Time passed and Santa's present bags gradually emptied. Children ran off to play. The anticipatory smiles on the faces of those left grew tighter and changed to looks of anxiety that "r might miss out".
Santa sought kisses from many of the little girls but none (we noted) from the little boys. Some little girls proffered their cheeks and some their lips. On one or two occasions Santa's advances were totally rejected. We have no doubt that it is a common experience for him.
Eventually the last present was given A cheek pm.£j(J'I'ed. out and the last little girl heaved a sigh of contentment. Santa departed with his little fans running after him. Attention turned more fully to picnic lunches.
As we have said in these pages before, the Children's Christmas Party is one of the few really communal activities of the Bar. Most of us posture less at this function than we do at others. For a few hours we live in a secure and innocent environment. There are no pressures; and the smile on a small face is more important than tomorrow's brief.
Recommends a school.
Lunch: CII Cafe Bar
SOMETIMES you don't want to eat too much. Sometimes you don't want to drink too much. But most times the thought of a sandwich in Chambers is too much. That's when the mind turns to a bit of quick Italian. A bowl of pasta, a piece of pizza and the odd glass of wine. A slice of cafe society to lighten up a busy day
For many years there has been a shortage of Italian restaurants near Owen Dixon Chambers Nick's Spaghetti Bar has been around for a while. Boccocino used to serve large and homely fare in King Street but alas is now one of those nightclubs.
This is one in an occasional series looking at some of the Italian restaurants within walking distance of 205 William Street, as now there seems to be a number springing up in the area. One of the best is cn Bar & Cafe. cn is situated in Little Lonsdale Street. Some would say in an obscure spot; but not really. It sits down from the Metropolitan Hotel going towards the dreaded King Street. There are many lanes leading to it from Lonsdale Street, across from Owen Dixon Chambers West. It's in a very old property that used to house a somewhat antiquated milk/sandwich bar. The two storey renovation has opened it with exposed walls black furniture and the obligatory butchers paper. Smart but not over the top.
The proprietor is Milad Khoury a very experienced and professional restaurateur. He used to run Lazars when it was going through one of its better periods You will always get a friendly welcome even when the place is buzzing - which it is most lunch times.
A wood fire pizza has been installed. Wood fired pizzas are all the rage. They are popping up everywhere. Which is not a bad thing. Here they range from the gourmet to the traditional. The gourmet ranges from the cn Supreme, which is marinated eggplant, roasted capsicum, Spanish onions, artichoke and goat cheese to tandoori chicken and a smoked salmon deluxe. The traditionals are as expected and include Capricciosa, Tropical and Margherita. Pizzas are of small and medium size and range from $6.50 to $10.50 in price. My favourite choice is the calzone rustico. A turned over pizza filled with melting riccota cheese, spinach, mushroom ham and covered with an excellent tomato sauce. The medium size makes a lunch on its own.
There is also an excellent range of pasta. The choices are the usual spaghetti, penna, tagliatelle, fettucini and gnocchi. Sauces include marinara and boscaiola, which is chicken pieces with mushroom in a Napoli and cream sauce. There is also cannelloni and vegetarian lasagna . Prices range from $8.00 to $10.50 for the marinara. There is a special pasta of the day which on the day I visited was spaghetti vongole.
The proprietor does not want his restaurant to be just known for its pizzas and pastas. The specials board will contain a soup, such as chicken, vegetable and tomato. I have savoured the baby schnapper with lemon butter sauce which is an excellent fish, and excellent cakes, such as the rather exotically called Murray mud cake.
Then there is the wine. A
ranging from ham, cheese and tomato at $3.50 to prosciutto, artichoke, sun-dried tomato, peso and bocconcini at $5 .50. There is also a wide selection of cakes and deserts. Many members of the Bar frequent the bar at breakfast time
Although the place is extremely busy at lunch and breakfast, as with most restaurants in this area, the proprietor has a desire to fill his space up at other times
At the moment he believes there is no market for dinner. However he does have a large function room which is used at night
lack of space Before the crowd arrives has meant a limit on the wines available. However, the wines offered are excellent value. The house white, which is a Yeringa chardonnay is $3 a glass and $14.50 a bottle However the red is a bit of value. One can have one and a half litres of an Italian red called Franeesi for $2l.50, which would suit two barristers on a quick lunch. This red is a bargain at $2 50 a glass Long Gully from the Yarra Valley ranging from $16.50 for the riesling to $23.50 for the chardonnay and the red. It is available by the glass.
ACII Bar Cafe
Overall cn Cafe Bar provides service and a range of food which should appeal to those not looking for an expensive lunch but one that has touches of quality.
Paul Elliott
470 Little Lonsdale Street, Melbourne Telephone: 9760 7122
Breakfast and lunch five days a week. Drinks and light food available most afternoons.
breakfast menu is served from 7.00 a.m. to 11.30 a.m. and from 2.00 p.m. until closing. The breakfast menu ranges from croissants, toast to eggs benedict. Two eggs with side servings of mushroom, ham or bacon costs $4.50 If you are feeling sweetish there is pancake with maple syrup also at $4.50. As an alternative a wide range of focaccia is served by appointment. It is the afternoons that could be filled up with convivial barristers and others. Light food and drinks are to be served. In particular there are plans for late afternoon to night drinks and food on Fridays. There is no doubt that there is a lack of places to have a quiet drink after work in this area
Functions and dinner by appointment.
Melbourne's Holiday Myths
MELBURNIANS have many myths when it comes to holidays. They are a conservative bunch. The truth is that real Melburnians are not good travellers. They don't like to venture far. They like familiar places filled with familiar faces. Portsea (which mostly means Sorrento), the Mornington Peninsula, Lorne, Anglesea, Barwon Heads, are the seaside meccas. The very adventurous may stray to the Gold Coast or God forbid Noosa! But not much else.
Stories have been invented about the other places. Particularly the weather!! England/Europe in January - or any time for that matter - too cold!! Freezing!' Snow, black ice. Can't possibly get around. Summer is the same. So grey, raining and overcast! Not like Victoria!? As for Port Douglas, too hot!! It is in the tropics of all places. Too humid, rains too much. You never go to Cairns because it hasn't got a beach and the rest of North Queensland is full of stingers anyway. Bali is the same and is unhygienic to boot. The West does have good weather, but so what?
Underlying all these myths is the myth of the Victorian Summer. The Victorian summer is like Dickens' white Christmas -a cherished dream, the stuff of fantasy. Like it never snows for Christmas in London, the sun never shines for more than two consecutive days in Melbourne in summer. When did the idyllic summer occur? Those lazy hazy days of summer filled with soda and pretzels and beer? People huddle amidst the ti-tree saying the weather will improve.
It never does and it never will.
But what happens when Melburnians come back to work at the end of January? It usually gets hot, very, very hot. February and March always seem to be twice as hot as December/January. Our summer holiday period is wrong. We should take a few days off at Christmas, and have school and work holidays beginning in February. That way there might be some hot weather to enjoy. Although on second thoughts, it would be too hot to go on the beach, and there would be lots of thunderstorms
Then there is Tasmania. I went to Tasmania for my holiday and out came the myths about the good old Apple Isle The
plan was to hire a car and drive around the whole island. "What", they said, "You're spending two weeks doing that! Impossible. The distances are so short, there is nothing there. You can drive from Hobart to Launceston in an hour and a half." Having ticked those places off, there's not much else. Also the weather! Golly gosh, it rains, there are clouds on the mountains, never venture anywhere without rain wear, umbrellas, and boots because it is likely to snow at any minute. Always tell people where you are going because of blizzards.
The truth is I drove over 2000 kilometres, up and around some of the most long and winding (and very beautiful) mountain roads. Particularly from Cradle Mountain to the west coast and then to Hobart. Also the weather was much like Victoria. Which meant that it was overcast but warmish . Enough for the children to paddle on the beaches (which are excel-
lent) and enough for the clouds to clear to the beauty of Cradle Mountain, the Gordon River and the Freycinet Peninsula.
But I must say that I didn't go on the car ferry. We Melburnians all know that the crossing is too rough, you might get sea sick and the boat could even sink.
So what about next year? Fiji - nothing to do there. Italy - you are liable to get robbed by gypsies. France - rude bombers . England - too expensive. Ireland - has its troubles. Hong Kong - too crowded and a bit on the nose. Singapore - has gone too expensive and you could get life imprisonment for long hair. Eastern Europe - you've got to be joking. Holland flat and dull. China - crowded, unclean and strange food. India - guaranteed dysentery. Thailand - noisy and not particularly savoury
Well how much are beach houses at Tootgarook?
Paul Elliott
Nicholas Elliott at Cradle Mountain
Mouthpiece
Beating Your Head Against a Brick Wall - The Legal Aid Cormnission Experience
IT is an oft exp ressed view that the best part of banging your head against a brick wall is the panoply of feelings experien ce d when you stop. If you subscribe to that view you obviously have n e ver had a legal aid brief or, if you have had one, you were never concerned about receiving payment for it! For if you had you would probably still be experiencing the never ending nightmare involved in recovering your 80% of little more than nothing.
Almost inevitably the process begins with a sustained period of panic. It may be that 4 30 pm "special" of which there can be quite a variety. It may be a complex criminal contest that a colleague or your in structor has belatedly decided isn 't worth all the heartburn for the net legal aid returns - probably little more than a scale Magistrates Court Chambers brief. This group would include the "cli ent will bring the brief with him" - meaning that if you are really lucky you will have been sent to the correct court, the client will turn up just about the time the beak issues the warrant, the client may grace you with a crump led barely read ab le copy of half of his informations and the client may not have omitted to remember more than half of his priors. A legal aid reference number! You've gotta be kidding! You expect everything served up on a silver platter don't you"
Don't try getting an adjournment so that you have a modicum of an opportunity to get your client's house in or der so that they hav e a better chance of receiving an outcome within reason No it isn't the Prosecutor who will give you opposition. It is the Legal Aid Commission - "no you are not briefed to get an adjournment!", or if somehow you spin one past the bat you discover that you may get 67% of 80% of little more than nothing.
You decide it is your opportunity to do a bit of pro bono, you successfully get an adjo urnment, you spend two hours in conference seeking a reasonable facsimile of the client's view of the alleged e vents, you spend about twice that time trying to pin down the informant to obtain herihis recita l oUhe "facts", you chase up your favoured youth worker/drug rehabilitation person/Salvation Army Officer for the plea
40
and away you go. Som e times you get ajust return for your efforts, at least in respe ct of the court outcome Unfortunately, while you have been beavering away for your client they have been spending their time out on bail kno cking off a few more "soft targets". As well, or alternativ ely, the client or their family or friends or the lot hoe into you for not having had the 15 counts of burglary dismiss ed as trifling.
You repress the knowledge that your fee averages out to a little under $7 per hour.
It is too lat e to le t your clerk know you are free the next day. So next day you have the pleasur e of having little more to do than entering the matter in your fee book. Human nature being what it is you repres s the knowledge that your fee averages out to a little und e r $7 per hour for the tim e spent on the matter.
Eventually your fee book returns with a request from accounts for the LAG reference number. You are now off on the roller coaster ride into h ell :
• Your instructor is never in when you call.
• Your instructor is of the never-returnthe-call school.
• Your instructor's sole emp l oyee appears to be in fo r just und er half the occasions you ring, appears to have a limited facility with any known spoken language, gives a reasonably passable imitation of a person unable to co me to grips with the relativ ely simple concept of asking the boss to get you the r efe rence and in any case thinks it is better that you speak to the boss.
• Your ins tructor when ultimately pinned down promises to ring back later that day and never rings back.
• If and when you are ultimately graced with a reference number it is incorrect but you will not find out for a long long time (see below).
• The file must be with your pal because no one else can find it.
• If and when you are graced with a legal aid reference number it turns out to be incorrect but you may not discover that until you have aged a great d e al (see bel ow).
There are all sorts of other varieti es of the foregoing - the brief that promises you quick payment but at a r educed fee . Either the client is supposed to give you a cheque/cash to put through accounts or the solicitor holds funds in his trust account for your fees. Why would you expect any of that to be correct? After all, none other of your instruction s bore even a passable likeness to reality. Either the client tells you at court that he has app li ed for legal aid, the solly tells you when you ring in later in the day that "I made a mistake, it is aid on a lump sum basis. Will you split it 50-50 with me? Turns out the shared lump sum is 67% of the ridiculously low fee you had been induc ed int o originally agreeing to. The funds "in my trust account" become a legal aid matt er.
See above for t he process of getting reference numb er - "do not pass Go, do not co ll ect "
These 4.30 spec ials are not confined to the Criminal Bar. The Family Law Bar has it s own variants as do thos e at t h e Bar whose practice takes them to various tribunals, referee s, arbitrators and the lik e.
I have digressed. I was to tell you about the massive headaches arising out of actually seeking payment . Compared to that, the stage between receipt of brief and obtaining what purports to be a legal a id reference number , is productive of a mere gentle throb in the left temporal area.
But first of all a caveat: the powers that be at the Commission are insistent that what follows is atypical, an exaggerat ion, unique, unrepresentative. They would have it that the vast majority of barristers are happy in the service of a legal aid brief. You much believe them, after all they are from the Government - sort of.
(A commo n variant of this category of brief turns out to be of th e "illusory legal aid" sort , i.e. one day well into the future the sort of day when you are not reached for the third time that week and for the fourth occasion in that day's brief - you are gently informed that it had nev e r been
approved for a legal aid grant and by then your instructor has been made bankrupt, retired or obtained a ridiculously inadequate Part X arrangement.)
Then again you may get one of those briefs which start life with a call from a pal at the Legal Aid Commission, require a visit to remand and finish up with fight on three times more charges than you had been originally briefed to attend to and all of them just the type of offence that brings out the worst in the worst in the magistrate you end up drawing. You do get a backsheet on this occasion. It is faxed. It has as a reference your pal's name. The client's name is incorrectly spelt. You may not get any copies of the information, you certainly will get no written instructions but you could get some miscellaneous documents of no earthly use. When you get to Court you discover that your client's best references have been sent to your instructor at the Commission - naturally enough they cannot be found.
On this occasion you calculate that you will recover slightly over $14 per hour. Just after you make that discovery you are visited by one of your more garrulous "friends" who just happens to let slip the news that they have just sent off their latest paperwork masterpiece which took them the best part of three days hard yakka but for which they felt they couldn't possibly claim for any more than ten hours nor any more than $175 per hour. "By the way, that firm always pays up within 14 days."
After you again go through the stage of getting a request from accounts for the legal aid reference number you discover:
• Your pal is never in - at Pentridge/ courtla conference/a staff training exercise or on an RDO/annual leave/ parenting leave/a course.
• Your pal seems to have difficulty in returning your calls.
You may somehow acquire a contact at the Commission or even get through to someone who seemingly is in the right area. They promise to get the files out and ring you back. They don't ring you back, within the time span promised or at all. Many telephone calls later and then you go through the Sir Humphrey Appleby stages of:
"Can't find the file"
"We have never received any fee slips" [neither the original or the many copies subsequently sent to them].
"No, we never got your letters" [especially galling when you responded at length to their purpofted response to one of yours].
"The Solicitor never reported back" [don't
worry! Your instructor will adamantly declaim innocence on that charge]. "Aid wasn't granted for that appearance." "Approval was never given for any aid to that client."
"The reference number is inaccurate." "We have no record of that client."
About half a year has passed and you have got nowhere. You try progressing up the long ladder at the Commission. You go through the same process. You may get the employee who suggests fairly unsubtly that they have more important things to do than attend to your accounts. You may get the one who meets your complaints about non responses with the clever retort that "haven't you ever failed to return a telephone call". If you do, you may venture the observation that it is not conducive to the continuation of your practice to totally avoid responding to calls, letters, etc. for the sorts of periods or with the frequency that appears to be the norm at the Commission. You will inevitably hear the one about "doing the best we can". You might have it suggested to you that you are being totally unreasonable adding to your list of years old debts a few that are only months old.
Some small measure of success may be achieved. They may pay some of the smaller more recent accounts but at about half of 80% of the fee marked, allegedly without approval, by the solly
Onwards we must progress. You've got the legal aid number, the bills goes in and nothing happens. Another bill goes in, in another matter, and again nothing happens. Around about one of the times you are searching for the first spare dollar to go towards one of the demands of the Taxation Commissioner you call for a print out of debtors from your clerk. To your amazement a small fortune (by your standards at least) has accumulated under the heading of "Legal Aid Commission" and many have been outstanding for in excess of six months, some a year or two or three.
You write a letter to the Commission. You hear nothing back. It is never acknowledged.
You write another letter to the Commission. You refer to the earlier letter. Again nothing heard and no acknowledgement.
You may repeat the above a couple of times with identical non-results.
Many more months pass and the odd small brief is part paid from time to time. Never anything to get excited about.
You ask your clerk to look into it. You have to put up with the mandatory lecture on the frustrations and irritations experienced on their part. Their strike rate of
responses and success rates of receipt of payments is not significantly better than yours or so they say.
But your clerk is wrong - oh well sometimes - and you may get a very huffy letter from the Commission asking for an explanation of one sort or another. You are required under one threat or another to respond some days before their letter finds its way to you. You quickly respond in great detail, to all of their requisitions even though most of them have a tenuous relevance to your bill at best!
Again no response and no acknowledgement.
At this stage your dealings with the Commission are somewhat strident. Your threats to sue fall on deaf ears.
Your threats to sue fall on deaf ears.
At this point some years ago I chose to write what I verily believed (and believe) was an accurate account of my experiences. I was summoned to the presence of a legal aid heavy. "This sort of inaccurate article doesn't help." "Your so called experiences are by no means representative ." "Most barristers are happy with the dealings with us." "Do you know how much we pay barristers in anyone week?" [Were it not a rhetorical question one might retort that one knows how much is not paid to one]. "Does this sort of thing do you any good?" You feel better. "But did it get your bills paid any faster?" You would like to suggest that it couldn't possibly slow things up You don't for reasons of discretion "It won't help you in the future." [You are left pondering as to whether it was a veiled threat of some kind. It probably wasn't. You are just a bit too sensitive, aren't you?] "Next time, come to me won't you?"
Well there have been next times and each has followed an identical pattern I now suffer from rather intense bouts of dej'avu.
I decided to subscribe to the view that if you stop banging your head against a brick wall the headache will go away. I stopped banging my head against the 179 Queen Street brickwall. And guess what happened? The shooting pains went away. A rather numbing pain remained which became more intense each time I received
correspondence from my creditors or chose to look at my book debts. No more accounts were paid. I returned to banging my head in the rather vain hope that if I kept trying I might achieve some small measure of success from time to time.
And then -there was the case of the two Counsel briefed for a Full Court appeal. After many intense hours of negotiation fees were struck and all of the work required was undertaken leading to an order with costs for their client. To its eternal credit legal aid decided to aid the other party in contesting the bill of costs and
chose not to actively defend the fees previously agreed to by them. Needless to say the Taxing Master reduced the fees of counsel on a party-party basis by a quite dramatic amount and the Commission decided only to pay on the reduced amount. Counsel were required to issue proceedings to seek payment on the original agreed amounts and were forced to a pretrial at which they were accused of being, of all things, greedy. Justice to a degree was eventually done and the Commission ultimately came to the party albeit with the utmost of illgrace.
Well might you ask why I do any Legal aid work if this is my perception of its outcome. Unfortunately, I cannot escape the ingrained view (for which my Clerk may be partially responsible) that if the choice is between sitting in Chambers and doing nothing or having a brief that might eventually prove partially productive the latter must inevitably prevail.
And so the brick wall continues to be banged. It doesn't seem to hurt as much any more. I am beginning to feel better again. I must keep doing it. I must ...
Life And Death In The Biggest City Firm In The Biggest City
ASSOCIATES ·at Cravath, [Swaine and Moore ] considered for partnerships in groups based on their year of graduation from law school . . . During the period of frenzied discovery in 1974, the group of senior [Telex v.] IBM team associates were entering the last crucial year or two before the fateful decision, and competition among them reached a fever pitch When Sahid scored another triumph by billing 24 hours in a single day, Rolfe - in a move that became the subject of legend in the firm - flew to California, worked on the plane and, by virtue of the change in time zones, managed to bill 27 hours in one day.
Though Cravath had long been considered a "white shoe" firm, consisting mostly of lawyers who were white, Protestant, and from socially prominent families, that description tended to be more applicable to its clients than the firm itself.
On the occasion of the funeral of David Louis Schwartz, the real estate partner of Cravath, a large block of seats at the front of the sanctuary [of Central Synagogue, on Lexington Avenue] remained empty, enclosed by velvet ropes. Then, as the organ swelled and the faint hush of whispered greetings among the mourners subsided, a procession entered from the rear. Uniformly clad in dark suits, ties, and white shirts, sixty" partners of Cravath, Swaine
and Moore, all honorar pallbearers, marched slowly down the central aisle for their fallen comrade in a solemn procession known as the Cravath walk, two-by-two, in precisely the order their names appeared on the firm's letterhead -a tradition at the funeral of every Cravath partner. As they filled the front of the synagogue, their en bane presence announced, as it had on so many occasions in the past, "A partner has died; the firm lives".
The partner chosen for the eulogy was Max R. Shulman, known as Bud. Shulman began by describing his first assignment from Schwartz. "When I walked into his office, he immediately grabbed me and rather breathlessly said he had something critically important that had to be done that very afternoon," he said. "Of course, he forgot to tell me what it was or who the clients were or what the claims might be. He just bundled me up, said 'Come on', and off we went to a meeting in some office building somewhere in Manhattan, where he introduced me - with great solemnity - to a room filled with slightly nervous, slight sweaty people as the Cravath litigation partner whom he had to call in, because a lawsuit was simply going to have to be filed.
"Not knowing what lawsuit, or what side I was supposed to be on, or even
whether we were the sue-or or the sue-ee, I sat there looking slightly dangerous and muttering things I had read about in law school, like "lis pendens" and 'rule against perpetuities' and 'preliminary injunction', and other appropriately aggressive catchwords.
"At the end of the meeting, everyone stood up, shook hands, and we left.
"'Terrific job,' David said to me. 'You were brilliant. We got }ust what we needed. I don't know how you did it.' Neither, of course, did 1. I didn't know how I did it - or even what it was.
"That was my introduction to real estate litigation. 'This isn't bad,' I said to myself. 'You go to a meeting that you know nothing about with some people you've never met. You yell at them - hopefully not at your own clients. You threaten to sue again, hopefully not your own clients. And in the end everyone shakes hands and does the deal'."
Gilson and Mnookin, "Sharing among the Human Capitalists: an economic inquiry into the Corporate Law Firm and how Partners split profits", 37 Stanford L Rev 313 at 342. Margolick, "Wall Street's True Blue Chip", National Law Journal (January 14, 1980), p.l.
Stewart, The Partners (1983), p.70.
Stewart, "Death of a Partner", 69 (18) New Yorker 54 at 55 (June 21, 1993).
A Bit About Words
Meanings Received And Meanings Intended
THE use of language to communicat e ideas is the defining characte ristic of the human species. It is so much a part of our mental landscap e that we rarely realis e how extraordinary language is.
The human race has achieved many remarkable things - we hav e discovered most of the basic principles which make the physical universe what it is . Euclid's geometry, Newton's mechani cs, Einstein's relativity and Planck's quantum mechanics are all discov eries which cast light on the inner workings of the physical world which, in their own realms, are triumphs of human intell ect.
The capacity for language stands apart from these. Ther e is no language inherent in the physical universe. Language is not a principle waiting to be discov ered. Rather, language is mankind's own invention (Samuel Johns on once said: " words are the daughters of earth, but things are the sons of heaven")
How language evolved is a matter of speculation. It is tempting to think that the same neural architecture which permits or enco urages lang uage may also be associated with other forms of communication such as music and art. It is a striking fact that all human societies about which anything is known have this in common, that they have developed language, music and various of the visual arts.
At their foundation, each of these activities has a common core: the desire to communicate. Painting, sculpture, music and words are different modes of communication. It is interesting that the other se nses - touch a nd sm ell - have not developed int o significant mod es of co mmunication. Even though the sense of smell is governed by a much more ancient part of the brain than languag e, and must once have be en very important to humans, it has not dev eloped the sophisticated and subtle communicative powers of speech and vision. (Those who are interested to pursue this line of speculation would enjoy Perfume by Patrick Susskind - a book which convincingly portrays a person for whom the sense of smell was more developed and more powerful than sp eech.)
Given an impulse to communicate, and given vocal organs capable of a range of
sounds, it remains profoundly mysterious that language has evolved in a way which permits subtl e and abstract ideas to be communicated with great accuracy. It is one thing to postulate the development of verbal signs which denote such things as danger, pleasure, dinosaur or tree It is much more diffi cul t to explain the intellectual process which enables humans to conce ive, underst an d and use verbal tags for such abstract notions as love, philosophy, probabitity, mortgage, heaven and metaphor.
It remains profoundly mysterious that language has evolved in a way which permits subtle and
abstract ideas to be communicated with great accuracy_
The puzzle becomes even more teasing when you tak e into account the suggestion that language and experie nc e a re deeply inter-related, and in complex ways. Aldous Huxley and others have postulated, convincingly I think, that exp erience generates language ; but languag e moderates experience. So, the Inuit have 16 different words for snow and can distinguish 16 different sorts of snow at a glance, because their experience makes the distinctions us eful. We, who have only one word for snow (skiers have several mor e) have some difficulty in perceiving the differences between various types of snow, because we do not have the linguistic tags to mark the distinctions.
Edward de Bono did some int eresting expe rimental work in this area. He showed a group of students various simple diagrams, which they had to describe unambiguously in words. The diagrams were all capable of being r esolved into 1beam shapes. The I-beam quickly became the fundamental unit of description.
De Bono then produced a diagram which, although similar in appearance to the others, was not wholly comprised of 1beam shapes: it had some T shapes and
some L shapes in it. The students, who had become adept at desc ribing the diagrams in words were incapable of compl etely describing this new set of diagrams Their experience in the tests had taught them the language of the I-beam, but that same lan guage prevented them from perceiving other similar, but different, configurations.
As a matter of common experi ence , it is difficult to form and manipulate an idea for which we have no verbal tag. Most professional jargon and private code are an attempt (conscious or not) to assign verbal tags to ideas or experiences which have a shared relevance within the limited group.
Huxley speculates that langu age is a record of past expe rience which limits future perception (see Adonis and The Alphabet). His theory is supported by those who have studied Einstein Einstein did not speak until he was five years old. He was thought to be a backward child, which turned out to be unduly pessimistic. However, it has been suggested that his late development of language enabled him to develop more highly than mo s t his ability to think abstractly rather than verbally. That fact has been put forward as an exp lanation of his ability to conceive his theory of relativity, which has no connection with ordinary experience.
Whether that is true or not, it is important to recognis e the link between experience, language and perception. While it is easy to see how verbal tags such as noise or me or water can be developed and shared with little risk of misunderstanding, it is not self-evident that useful tags for abstract ideas will be universally effective in communicating unambiguous ideas. Take two very different examples. If you and I agr ee that a letterbox is r ed, can either of us be sure that the int ernal physiological experi ence which we both identify as red is the same expe rience? All we can be s ure of is that we agree to call the same external phenomenon by the same name . It may be that my internal experience of red matches your internal experi enc e of middle C play ed on a piano Timothy Le ary's experiments with LSD demonstrated, if nothing else, that the link between external stimulus and in ternal experience is, to say the least, variable.
If we cannot be confident that red means the same for you and me, how is it possible that we can agree on the meaning of words whose intended signification involves one or more layers of metaphor? Suppose you asked a group of people to explain the meaning of: bourgeois, democracy, interest, industry, culture, communism What level of agreement would you expect if the people asked to explain the words were: a Russian worker,
an English conservative politician, an Eskimo, a biologist and a factory owner. It is almost certain that each would have an understanding of each word coloured substantially by their own experience and circumstances. The differences between their respective understanding of the words are likely to be substantial.
Oliver Wendell Holmes once said, "A word is not a crystal, transparent and unchanging. It is the skin of a living thought,
Melbourne's Antique Secret
The Search For Truth At The Centre Of Art And Antique Furniture In The Centre Of Melbourne
As does every international city, Melbourne has its secrets. Who would think, just next door to the R.A.C.v. Club, hidden away on the first floor of 105 Queen Street is this elegant gallery which specialises in Australian Fine Art and Georgian and Regency furnature.
Accurate identification of antiques and art can be a long and tedious task - sometimes rewarding and at other times disappointing. Persistence in the search for truth is probably the most important factor in success. A typical example can be gauged from the following.
An 18th century Chippendale Period mahogany games table was purchased near Melbourne. It was of good proportions with a beautiful sweep to the curve of the serpentine front.
After a detailed examination the table was dated c.1750-60. The felt-baize was damaged and it was necessary to remove it for replacement. The restorer discovered when the felt was removed that there was a legible, though faint, writing in pencil on the top of the carcass.
This reads:
My own work
Thomas Chippendale, St. Martin's Lane 1752
Also there was a sketch of two chairsone with a typical Chippendale back and the other less defined with emphasis on the claw and ball foot.
The immediate reaction was to query the authenticity of the writing but it was of 44
sufficient interest to warrant research and investigation - with the following questions undertaken to find an acceptable solution.
1. Is the writing by Chippendale himself or by some other person?
2. The felt-baize - is it the original felt when the table was made?
3. Use of the lead pencil in writing - was pencil in use in the mid-eighteenth century?
4. The writing - is the writing style similar to that of Chippendale?
5. The date 1752 and the address stated as St. Martin's Lane - why would the writer date the piece as 1752?
6. The chair - the drawing of a chair under the writing on the table - is this significant?
It is to be made clear that no claim is made at this stage that this table is the work of Chippendale - as the research for truth is the most important factor in success.
Noel Scott Fine Art and Adam Galleries are long established dealers (c.1953) in both fine Australian art and Regency and Georgian furniture and invite the reader to visit us in our "quiet haven of content" located in the centre of the C.B.D. of Melbourne.
Noel Scott Fine Art Adam Galleries (03) 9642 8677 (03) 9642 8966 1st floor, 105 Queen Street, Melbourne 3000 (cm Queen and Little Collins Streets)
and changes its meaning and significance according to the time in which, and the circumstances in which, it is used". Those of us who use language as our principal tool of trade would do well to bear that in mind. The communication of an idea is not complete, and not useful, unless the meaning received corresponds with the meaning intended.
Julian Burnside
Fine Art
Antique Furniture
1st FLOOR
lOS QUEEN STREET, MELBOURNE (em Queen and Little Collins Streets)
Council Luncheon For The Hiroshima Bar Association
Essoign Club, Monday, 18 March 1996
MEMBERS of the Bar produced their best bows on Monday, 18 March, to entertain a 14-person delegation [rom the Hiroshima Bar Associat ion.
Armed with a brief which includ ed a short descriptio n of the Japan ese Legal Syst.em, a guide t.o good mann ers ("shaking hands is O.K. but kissing is out!") and a handy list. of in dispens able Japanese greeting s, Bar Co un c il members a nd the Chairmen of the Criminal and Family Bar Associations entertained the Japanese lawyers to lun ch at the Ess oign Club.
To the popping of fl ash bulbs, Middleton we lcomed the d elegation to Melbourne in an extremely warm and diplom at ic speec h. Meanwhile, hi s t.rusty assistant., having immersed h erse lf in dict. ionar ies for t.he morning, did h e r best to translate t h e Cha irman's words into Japa-
nese. These warm and diplomatic expressi ons can be very tri cky to tra n slat e. She h opes, for example, that the Chairman expressed the wish that the lun ch would be
the start of a long and me a ningful relationship between t he two Bar Ass oc iations, and not that it would be the start of a short and in timate affair , but you never kn ow.
The Vice-President of the Hiro s him a Bar Association, Mr. Yasunobu Ono, reciprocated with an e legant speech thank ing u s for our hospitality and expressing some frank and eloquent anti- Frenchnuclear-testing sentimen ts. E nti r e ly und erstandab le - the oldest member of the d e legat ion, Mr. Rokuji Shiinoki, was no d oubt a sma ll ch il d when the A Bomb was dropped on Hiroshima. Middl eton was given a very generous present of books on the Japanese Legal System and on Hiroshima and we all went to lunch
Clearly, the Bar Council memb e rs h ad done their homework. Keenan excelled hims elf in the cor rect use of Jap anese greetings - Konnitchi wa was the first
Ono San signs the visitors' book.
thing he said on entering the room, and Sayonara was the last thing he said on leaving it, having formed a very special relationship with Sasaki San, with whom he had discovered a foolproof method of conversing with someone whos e English you can't understand ( Keenan's English not Sasaki's). They wrote everything down and thus was international comity preserved
Macaw complained that the Japanese word for "Cheers" wasn't in the brief but soon got the hang of saying Kampai and took great pleasure in saying it as often as possible. Fortunately for diplomatic relations, Bongiorno was sitting near Mr. Kiyoshi Hata who spoke very good English, so that there was no misunderstanding when Bongiorno declared that he would testify to it. (Apparently he was talking about the quality of Australian reds). Guest exc it ed interest amongst the delegates by his height and his close resemblance to Sean Connery - it must be the beard - as did Chief Justice Black when he exec uted a perfect bow, beautifully judged and of exactly the right depth.
Young did the right thing and lent his robes for a dress-up-in-wig- and -gown photo call in his chambers after the lunch. On entering Young's palatial chambers on
Vice Presid ent Ono and our radiant Chairman. the 14th floor, the expression Wah! Sugoi net was heard. This either means "Humungous, Man!" or "If this isn't the biggest lawyer's room in the Southern Hemisphere I'll eat my kimono!"
The Essoign Club Caterers Par Excellence put on a fine lunch of fresh autumnal
seafood and "dericious" wines. We have been graciously invited back to Hiroshima where the oysters and the sake are particularly nice. How do you say "Let's Gol"? Ikimashol
Elisab eth Wentworth
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Subjects are available on a continuing education basis (assessment being optional), in addition to the masters program and specialist graduate diplomas.
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Further information:
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Tel: (03) 9344 6190, Fax: (03) 9347 9129
THE UNIVERSITY OF MELBOURNE
Chancellor's Six Wins Essoign Club Prize
Bar v. Law Institute - First XI
THE positives to come out of the Bar v. Law Institute cricket mat c h play e d on 18 Dec e mber 1995 at the Old Xaverians Oval were that no bowler was called for throwing; no report was made about ball tampering; the umpires made no cont.roversial LBW decisions; there wer e no brib ery scandals and no fast bowler broke down with a back related injury.
The negatives were another loss to th e Law Institute, and the weather - cold, damp and windy conditions prevailing.
Batting first, the solicitors accumulated 5 for 147 off 35 overs (reduced due to rain) .
Rowan Skinner , playing in his first game for the Bar, bowled impressively taking 1 for 11 off 7 overs with 3 maidens. He was we ll supported by Geoff Chancellor who took 2 wickets.
Ross Macaw showed form with the gloves reminiscent of his halcyon days with University, while John Jordan's catching in the deep was a highlight of the Bar's fielding which remained good throughout the innings.
When the square leg umpire gave th e replay sign to call for assistance with an appeal for a close stumping, the third umpir e ran out into Swan Street and observed that the nearest traffic lights were red.
The Bar began the run chase hopefully, but was soon 6 for 29, 4 batsmen being clean bowled. Unkind obs e rvers claimed that the moment of the match was the Bar skipper's first ball duck. Geoff Chancellor and Rowan Skinner rescued us from oblivion making 24 and 20 respectively Chancellor won the Essoign Club prize for hitting a six, almost into the railway yards but he nearly had to share it with Skinner whos e attempt into the wind was close. Drawing on his experience, Gordon Ritter moved into double figures and drew the red ink. How ever, th e Bar was all out for 95 and was soundly beaten on the day.
First eleven - less one
Score Was Double Last Year's
Bar Second XI v. LIV, Monday 18 December 1996.
IN Pirates oj Penzance the MajorGeneral would ad lib about" strategies battergies " before laun ching into his fam ous patt er song.
Th e mood, the hum our, if not the era, might be appropr iate to describe several sporting eve nt s recently.
PROLOGUE
The Bar selectors attempted to writ e a different script to come up with new formulas to reverse the trend in the Bar's traditional record of cricke t matches against the LIV.
So an address was mad e to the Read er's Course to seek recruits. Thanks to Barb Walsh, this gained warm support from the Readers - and a priz e recruit in Rowan Skinner (ex University of Melbourn e quick).
Furth er there was a prize of a bottl e of champagne - courtesy of the Essoign Club for the most spectacular six hit in each match.
The net benefits of these are matt ers, however, for the first XI.
ACT 1
The seconds, for their part, began well by winning the toss. A punt was taken that the LIV would flound er in the field on a very wet afternoon So the LIV batted first on a plumb track and promptly belted the cover off the ball for 7/206 cc off 35 overs. There were 3 retired at 40 in that score. Jeff McArthur an d Tony Southall with 2/27 and 2/39 respectively, each off 6, briefly held back the flow but all trundlers were expensiv e.
Two sons of Denis Gibson played as substitutes. J ere my field ed until Andr ew Donald arrived late from court, while Ben played the whole day, taking two neat
catches and making a run out from cover look easy.
The casual observer also saw a fine player, now veteran fieldsman, mov e slowly (when requested) from fine leg to third man. He was not seen leaning on t he fence.
INTERVAL
The ple asant lunch was shared with th e first XI players and umpir es and catered for by Phillips Fox catering department. It was most enjoyable. (Attempts could have been made to ensure our opponents dined to excess .)
ACT 2
After lunch, in eerie light, horizont al rain and bail-removing wind, the Bar's "young" side forged slowly out of (or into) the gloom. Thus the Bar was variously 0/34 and 2/48. At one stage when play was temporarily abandoned becaus e of rain, the players were momentarily left (batsmen included) forlornly on the field while the rather older - and professional - umpires scooted for cover. A second delay did little for concentration of the batsmen, nor the stat e of the wicket.
We then saw the flashing bat of Ross Middleton with 30 including four 4s, one
of which was a glorious, ground-cutting, sco rching straight drive between the bowler's right hand and the bowl er's side of th e stumps. Then followed a courageous and stylish kno ck from Cavanough 32 including five 4s.
With an interesting overhead smash by EWG (score on application), the Bar folded, ingloriously, for 119. Throughout the innings, oddly, the ball h ad kept hitting the stumps. The score was double last year's score however.
EPILOGUE
Match es in the future will continue to be greeted with anticipation. The competition would be keener and far more satisfying, perhaps, with an age
limit placed on the selection (by the LIV) of its various XIs. This would be done solely and sensibly (of course) to redress the imbalance of numbers of cricketers at the Bar , compared to those among solicitors. Thus, a second XI of 35 plus might be s ensible. The other side might consist of younger, if not much young e r, players.
That would put the onus b ac k on "employers" and fewer be made available against the Bar .
Yet again th e opportunity to train for one or two evenings might be indulged in. It may not be enough to project - by bowling - full tosses and half pitchers or give slow straight balls, especially to batsmen usually in form at the other end, nor to stand flat-footed and rigid to attention like statues in the field (with no Richie Benaud to exhort them), nor to indulge, when at the crease, in a scientific examination of the weeds in a wicket.
Perhaps the Bar could offer cricket scholarships to the CIS in Adelaide or the VIS in Melbourne
Rowan Skinner is to be thanked for playing. He is th e first player of district or subdistrict ranks (or their equivalent) at the Bar in 15 years to come fo rward. If there are oth e rs (and it is strongly suspe c ted that th e re are), they are unknown, but must be "out e d".
There can b e no substitute for training, fitness and ability, notwithstanding that the verve is always present.
POSTSCRIPT
The benefits of playing both matches on adjoining grounds at Melbourne Park is irrefutable.
The proofs lie in the easy collection and r e turn of cricket gear, closeness to the city, recruiting of spare play e rs quickly (fees to be paid to the second XI captain later of course), ease of catering at one venue, lunching together and parking "off road". The Old Scotch and Old Xavier ovals are superb in their own right, in any event.
Supporters of a diversity of venues, should, to use current language used to support another old sport (near th e Albert Ground) "... get real ... ".
Observ e d by Shatin whilst flower collecting.
Stunning Performance By Bar Tennis Team
IN one of its best performances for many a long year, the Bar managed to avoid defeat by the Solicitors in the annual tennis match played at Kooyong "Lake" last December 19. In the face of persistent rain that grew heavier as the day progr essed , the match was declared a wash out without a ball being struck in anger. And so, dear friends, for the first time in many years the Bar did not lose the contest for the J.X. O'Driscoll Perp etual Trophy. Ind eed, the Solicitors' custody of this cup has been so little threatened in recent times that there is a deeply held suspicion among some members of the Bar that the cup probably could not be located in the unlikely event that they were required to disgorge same.
Accordingly, dear read ers, it is not possible to further regale you with the stirring exploits on Kooyong's hall owed turf of such stars as Teague, Smith, McInerney, Williams and Hayes JJ, and ot her such doughty warriors as Collis, Hicks, Kova cs , Casey, O'Brien, Flatman, et al.
As can be seen on this page, a few stalwarts braved the weather in an attempt to salvage some value from the day, but even they were finally driven to sh elter as the flood levels rose.
However, do not be disheartened, stay tuned for further exciting episode s and in particular, any previously unrevealed talents who would be read y, willing and able to lend their assista nce to the Bar's cause this coming December (yes Chr istmas is
Legal Services Industry under one umbrella:
Drat that blasted fly! P. Kovaks , C. Thomson, A. Johns, C. Searle and J. Massmay gaze anxiously at the leaden skies.
not that far away), please contact Tom Danos or Chris Thomson. Also , if there is interest in perhaps organising a match against Solicitors in a country district,
maybe on a long weekend, please contact the above.
Chris Thomson
More players gazing anxiously by at leaden skies, wondering why they are feeling so damp.
Two solicitors gape in wonder at the mastery of an unplayable bar service.
The changing rooms.
Judge Williams ready to put another one away.
Jayce Massmay (secretary to P. Searle) shows how easy it is to play blindfolded.
Photos Taken Prior to Luncheon
ON the 19 December last year the J.B. Box Trophy was played at the Royal Tennis Courts in Richmond.
The trophy was kindly donated by Judge Kellam and is named after one of Australia's original royal tennis players and County Court judge, J.B. Box. His photograph appears as the first of the Bar Chairmen in the gallery between Owen Dixon West and East.
It was the second year of the competition and unfortunately the Bar was not successful losing to the solicitors 11 games
to 4, notwithstanding the sterling efforts of John Lewishon, Judge Kellam, Mark Derham and Howard Mason. The team was represented by Judge Kellam, Fiona Storey, John Lewishon, S.E.K. Hulme, John Kaufman, Mark Derham, James Guest and Howard Mason.
After the match we had the traditional lunch accompanied by the odd glass of red. I might add the photos were taken prior to luncheon.
John Kaufman
Law Institute Regains Herring Trophy
THE Bench and Bar contested the Sir Edmund Herring Trophy against the Law Institute of Victoria at Yarra Yarra Golf Club on 18 December 1995. A large field enjoyed lunch and the beautiful ·surroundings of the Yarra Yarra Golf Course. Except for some renovations taking place on the second green, the course was in perfect order.
For the first time in many years, the Law Institute soundly defeated the Bench & Bar team and regained the Sir Edmund Herring Trophy. The Trophy (a silver tray) was donated many years ago by the late Sir Edmund Herring. Fortunately, the captain of the Bench & Bar team, Rice, had remembered this time to bring the trophy with him On a previous occasion it was left sitting in the trophy cabinet in the Bar Council Room, but on that occasion the Bench & Bar team won so that it did not have to be handed over.
This omission was not quite as bad as what occurred after the fire at the old Law Institute premises at 471 Little Bourke Street. Well known solicitor Mr H. G. Lander had donated the Lander Trophy for Peter Bain (LIV) a picture oj concentration. competition between various country and city solicitors groups. After the fire an insurance claim was made for various items lost in the fire, including the Lander Trophy. When Mr Lander was asked where the original trophy had come from he had to sheepishly admit that he had not got around to buying one before the fire, so the Law Institute could not legitimately claim it on the insurance.
Among the Bench & Bar team the leading scorers were Bernstein & Shepherd with +8. Margetts and Lucas came in with
Lining it up.
Stay out oj that bloody tree?
a good score of +7 and their Honours Keon-Cohen and Jones scored a respectable +5 David Bennett Q.C. and Mr Justice Southwell returned +2. The overall winners were Nowicki and Kiernan f rom the Law Institute with +9.
Unfortunately a number of members of the Bench & Bar team returned negative scores and, for their own protection, they shall remain nameless. The Bench & Bar
shall attempt to regain the Trophy in December 1996. The nameless ones may be required to undergo a series of coaching
What does the weatherman hav e to say? Is it going to rain today?
clinics to encure the Trophy can be returned to its rightful position.
Gavan Rice
Barristers' Fun Run Hoodoo Broken
MARCUS Clarke, Mark Purvis and Anthony Schlicht had all won the prestigious title of Victoria's fastest lawyer during the 15 years or so that the Law Institute had conducted the Legal Fun Run. All of the aforenamed are present members of the Victorian Bar, but at the times of their various wins, were practising as solicitors. Since no barrister had been able to win the event, it could be inferred that joining the Bar resulted in a decline in speed, and perhaps physical prowess generally, for lawyers who engaged in running.
It was on 4 December 1995 around two laps of the Tan that this myth was finally laid to rest. It was a case of quality rather than quantity, however, as only two barristers faced the starter, although Howells' and Meldrum's lists made commendable contributions with various staff members running or walking the event. Mark Purvis and Scott Wotherspoon mingled with 172 other runners and 73 walkers in cool conditions as McDonald J. fired the starter's gun.
After a small group tussled over the first lap, Mark broke away during the second lap and ran clear to win in the time of 25 min. 19 sec. Scott was not far behind,
finishing 6th in 27:16. Unfortunately, three runners were required to complete a team, and if one more able-bodied barrister had been available, the Hartog Berkeley bronzed athletic shoe for the winning team would surely have returned to the Bar after a long absence, but it was not to be. It is perhaps a concern that the Bar was outnumbered so comprehensively by other members of the legal profession at the event. There were networking opportunities aplenty at the barbecue afterwards at the University of Melbourne rowing shed by the Yarra. But at least a barrister has finally won the race to be Victoria's swiftest legal eagle.
RESULTS
Run (7.6 km)
1st Mark Purvis 25.19
6th Scott Wotherspoon 27.16
37th Glenn Meldrum 3l.22
86th Matthew Parnell 35.45
108th Debra Armstrong 38.25
109th Bruce Robinson 38.28
Walk (3.8 km)
52nd Ric Howells 35.54
53rd Mark Greenshields 35.57
54th Kade Howells 36.00
A winner's smile.
Caveats Against Dealings in Australia and New Zealand
by Shannon Lindsay
The Federation Press, 1995 pp.(i)-(xxii), 1-330
THE preface to this book threatens "an encyclopaedic analysis of all the reported Australian and New Zealand cases dealing directly or indirectly with caveats". The index and indeed the book itself reveals an extremely wellordered and thorough exposition of this frequently relevant subject matter.
The book deals with both the theoretical and practical aspects surrounding the topic of caveats. All Australian jurisdictions are dealt with and there is significant amount of case law canvassed. The initial general chapters describe the nature and effect of a caveat and then provide an extensive analysis of caveatable interests . The recent controversy in relation to this topic has been discussed extensively by the author with the decision in Classic Heights Pty Ltd v. Black Hole Enterprises Pty Ltd being analysed with reference to the more recent cases (which have not followed that decision). It is perhaps unfortunate that the book has been published prior to an authoritative appellate decision on the subsistence caveatable interests, which would appear to be imminent.
Chapter 3 provides a discussion of caveatable interests in specific situations. Every imaginable circumstance in which the question of caveats arises has been dealt with by reference to the leading and relevant authorities in each jurisdiction. I was impressed by the fact that the references to cases was by the authorised report citation in all cases where such reports are available. Commonly in publications put out by the larger legal publishers they will refer to their own published reports rather than authorised reports -a most regrettable practice.
Lawyers involved in property law litigation will be impressed by this book in the way that it fully sets out court procedures in relation to the removal of caveats and compensation for unjustified lodgment of caveats. The relationshIp between caveats and priorities and the question of stamp duty are also dealt with in separate chapters. An appendix to the book includes relevant extracts from the legislation in each State which deal with the question of
caveats. This is particularly useful and enables an accurate comparison of the extensive authorities cited by the author from all Australian jurisdictions.
Shortly after being provided with this volume to produce a review for this esteemed journal I had occasion to "road test" its usefulness. My brief dealt with the question of a purchaser's lien over the deposit moneys paid under a contract which had been rescinded. Lindsay's work took me directly to the relevant issues and the relevant case law accurately and with a minimum of fuss. The book passed the "road test" with flying colours.
This is the sort of book which I hope will gain the same stature as Robinson's Transfer of Land Act and Voumard's The Sale of Land It provides the same simple, thorough treatment and practical usefulness. It is highly recommended and in my opinion a necessary book for all practitioners involved in property law.
S.R.
Horan
Insurance Legislation Manual (3rd edn)
by David St. Leger Kelly and Michael L. Ball Butterworths, 1995 pp. i-xvi, 1-221
THE Insurance Legislation Manual is an annotated work of the two major pieces of insurance legislation in Australia: the Insurance Contracts Act 1984 and the Insurance (Agents and Brokers) Act 1984. Also included in this publication are reproductions of the Insurance Contracts Regulations and the Insurance (Agents and Brokers) Regulations in their entirety.
This is the third edition of Kelly and Ball's book Its release comes in the wake of extensive amendments made by the Insurance Laws Amendment Act 1994 to both the Insurance Contracts Act 1984 and the Insurance (Agents and Brokers) Act 1984, as well as to the Insurance (Agents and Brokers) Regulations.
The authors' annotations are easy to follow and their clear commentary is hard to fault. Reference is made not only to reported cases but also to many unreported ones, with a few of the more important judgments being discussed at quite some length. There are also references to the various reports of the Australian Law Re-
form Commission, as well as to other legislation, in particular the Trade Practices Act 1974 and its State and Territory equivalents.
One special feature of this publication is that throughout the annotations there are a number of cross-references to a text book on insurance law, Principles of Insurance Law in Australia and New Zealand (Butterworths, 1991). It should not be surprising to discover that this text book also is written by the authors of Insurance Legislation Manual! Nevertheless, for those who have ready access to a copy of the 1991 work, this might be an adequate reason to prefer the Insurance Legislation Manual to the other annotated works which are on the market at present, including The Annotated Insurance Contracts Act by Peter Mann and Candace Lewis (The Law Book Company, 1994) and The Phillips Fox Annotated Australian Insurance Law Statutes by Geoff Masel and Michael Gill (Legal Books, 1993).
Anna Ziaris
Brooking on Building Contracts (3rd edn)
by D.J. Cremean Butterworths, 1995 pp. i-xxxiv, 1-284
THE first edition of Brooking on Building Contracts was published in 1974. Sir Ninian Stephen, then a Justice of the High Court of Australia wrote the Foreword to that edition and noted that:
"The profession must be grateful to Mr. Brooking who has undertaken this task in the difficult field of building and engineering contract law and has accomplished it with elegance ... "
By the time of the third edition, it is Mr. Justice Robert Brooking of the Court of Appeal, Supreme Court of Victoria who writes the Foreword. His Honour notes that:
"I am pleased that Dr. Cremean was kind enough to ask me to write a foreword of what began as my book but has now been made by him largely his own I congratulate Dr. Cremean on what he has done The original work, and the additions made in the second edition, have been preserved where appropriate, and a great deal has been added, so that on going through the book I found it at
once comfortingly familiar and agreeably new, Like a building that has been renovated and extended with skill and care."
The book is substantial in its coverage of the traditional areas of building law with chapters dealing with "contracts" (chapters 1-4), "variations" (chapter 10) and "defects" (chapter 11). There are also specific chapters on "tenders", "time for completion", "rise and fall clauses" and "sub-contracts" among others.
The chapter on negligence dealing specifically with builders and local government (Chapter 16) includes a concise discussion and analysis of the recent important High Court decision in Bryan v. Maloney (1994-5) 182 CLR 609. There is a further chapter dealing with the position and responsibilities of architects and engineers.
Chapter 18 entitled "building disputes" is a useful discussion of both traditional (litigation) and alternative dispute resolution mechanisms. Alternative dispute resolution includes arbitration which has been widely used in relation to building disputes, as well as alternatives such as mediation and conciliation. Arbitration is principally discussed with reference to the Victorian Commercial Arbitration Act 1984.
The work is easy to use having a comprehensive index that refers the reader to particular numbered section of the text. Each section in turn deals with a discrete issue or topic. At the end of each numbered sectiOH. are found footnotes which assist further research along a particular line of enquiry.
This is a work which will find Australiawide acceptance and which will usefully be found on the shelves of builders, arbitrators, local government employees, architects and engineers as well as lawyers.
P.W. Lithgow
Principles of European Community Law Commentary and Material
By Simon Bronitt, Fiona Burns and David Kinley
The Law Book Company, 1995 pp. v-lxi, 1-587
Consumer Protection Law (4th edn)
By John Goldring, Laurence Maher and Jill McKeogh
The Federation Press, 1993 pp. v-xxxviii, 1-458
Understanding Business Law
By Brendan Pentony, Stephen Graw, Jann Lennard and David Parker
Butterworths, 1995 pp.v-xxv, 1-547
THESE three titles are just a small sample of the numerous works which are published annually by Australia's leading legal publishers and which are specifically aimed at the student market. As is often the case, however, casebooks and other student-oriented publications can be of particular relevance and assistance to legal practitioners in their everyday practices.
The works I have selected have all been written by university lecturers who teach in the fields in which they have written. All three works are of very high standard in terms of legal content and style of writing and none of them can be faulted for their presentation.
The Law Book Company has in recent years published a number of impressive cash books. Its new offering, Principles of European Community Law, is no exception. What makes this particular publication special is that it is the first major Australian casebook which deals specifically with the European Union and the institutions and laws of the European Community.
I had a sneak preview of this work during a post-graduate course at Monash last autumn, when my lecturer Matt Harvey was fortunate enough to be provided with draft copies of the text. It was these drafts which formed the basic reading for each lecture in our course on European Integration. Furthermore, these drafts enabled we students to have a solid basis on which to understand the workings of the European Union and its laws and institutions from a non-European perspective.
Unfortunately, there are not many Australian universities which do offer legal courses on the European Union in general or on its legal and judicial systems. University of Melbourne, for instance, which offered over 70 post-graduate law subjects
in 1995, did not run any subject concerning the European Union, and I understand that it will not do so in 1996 either. This is a real pity because we now have a very fine Australian casebook to work from when studying an entity which is not only intellectually fascinating and of interest from a comparative law perspective, but which of its nature cannot be ignored. The European Union constitutes, after all, the biggest free trading bloc in the world. At present it comprises 15 nations, some of which are among the most powerful trading nations in the world. It therefore has undeniable relevance to Australia's government and businesses in its legal, economic and political context.
The lack of availability of university courses on the European Union does not, however, mean that Principles of European Community Law cannot be used by students studying other fields of the law. This casebook may still be very useful in relation to, for example, the University of Melbourne courses on Trade Marks and Unfair Competition, International Trade Law, Competition Law and Intellectual Property and International Environment Law, as well as European studies subjects in the department of Arts.
Unlike European Community law, business law is taught in many Australian universities and other educational institutions. There are also a large selection of texts to choose from so this new work, Understanding Business Law, must compete with the numerous other business law textbooks available to students and academics. This is a difficult task when many lecturers have already selected their favourite works as the basic textbook for their particular course. Professor Paul Latimer, for example, prescribes his own book as the basic text in Monash University's business law courses.
One feature of this book which should appeal to students who do business law by correspondence (which, for example, is offered by Deakin university) is that it is accompanied by a very useful tutorial disk. Furthermore, throughout this work there are numerous case examples which are sure to assist students in comprehending the often difficult principles of our laws.
Unlike Understanding Business Law and Principles of European Community Law, Consumer Protection Law is a wellestablished text which is used in many law schools. What is interesting in the case of this work is that shortly following the release of its fourth edition, Butterworths published a rival text, Trade Practices and Consumer Protection Cases and
Materials by Monash University's Mark Davison and John Duns. Since then Consumer Protection Law has lost its status as the unique Australian casebook in this field of the law, but at least consumer protection students can now benefit from having two comprehensive and well-written texts to choose from.
Anna Ziaras
Banking Law in Australia (2nd edn)
by Alan L. Tyree
Butterworths, 1995 pp.v-xxxiv, 1-469
Price: $79.00 (softcover)
Asubstantial number of new books have been released in the last two or three years concerning aspects of Australian banking law. Most of these publications have been specialist works or university texts, and as such
might not have appealed to practitioners. This is not the case, however, with Alan Tyree's book, the second edition of which was recently released by Butterworths.
This work is a good conventional text concerning the key principles which govern banking law in Australia. As such, it should prove to be useful to many lawyers in a variety of situations.
Banking Law in Australia (Second Edition) is divided into 12 sections. The first, which is concerned with the structure of Australian banking, examines modern banking regulation in its historical context. The particular focus is on the role of the Reserve Bank of Australia.
Section 2 looks at the relationship between bankers and their customers. Included in this part is a discussion of what is referred to as "special customers". These include unincorporated associations, partnerships and companies.
Current accounts and bankers' duties are the themes of the next two sections.
Sections 5, 6 and 7 are devoted to cheques, with an examination of contractual and non-contractual relationships.
Conference Update
9-13 April 1996: Dunedin. 1996 New Zealand Law Conference. Contact New Zealand Law Society. Tel. (04) 472 7837. Fax (04) 473 7909
14-16 April 1996: Hertfordshire University. Commonwealth Magistrates' and Judges' Association Seminar "Perceptions of Justice". Contact D.B. Annati. Tel. (02) 2898701. Fax (02) 289 8819.
22-26 April 1996: Adelaide. Sixth International Interdisciplinary Congress on Women. Contact Festival City Conventions. Tel. 1 6046647641. Fax. 1 604688 3105.
28 April-l May 1996: Rome. Australian Italian Lawyers' Association International Conference. Contact Belinda Loveridge. Professional Conference Management Pty. Ltd. Tel. (02) 9976 3245.
1-4 May 1996: Manila. Inter Pacific Bar Association Sixth Annual Meeting and Conference.
13-20 July 1996: Bali. Australian Lawyers' Conference. Contact Anne Maree Lanteri. Tel. (03) 9629 8333.
11-18 August 1996: Falls Creek, Victoria. Asia-Pacific Medico-Legal Conference. 18-21 August 1996: Australian Bar Association Conference. Contact Conference Secretariat. Tel. (07) 3236 2477.
4-8 September 1996: Madrid. International Association of Lawyers 40th Congress under the Presidency of His Majesty the King of Spain, Juan Carlos I. 4-8 September 1996: Sydney. Australian Professional Legal Education Council International Conference. Contact the organising committee, Aplec International Conference. Tel. (02) 965 7000.
20-22 September 1996: Wellington, New Zealand. Fifteenth AIJA Annual Conference. Contact AIJA Secretariat. Tel. (03) 9347 6600. Fax (03) 93472980.
30 October-l November 1996: Singapore Conferences on International Law. Contact The Conference Secretariat, 1-AIR DMC Pte. Ltd., Singapore. Fax. (65) 336 3613. Tel. (65) 3368855.
The legal implications of misappropriated cheques are also analysed.
Section 8 focuses on the GIRO and EFT payment systems, as well as the clearing and settlement system. Consumer banking, negotiable instruments and lending are the topics of sections 9, 10 and 11.
The final section involves a very brief examination of international banking in the context of Mareva injunctions and documentary letters of credit.
Included in this second edition of Alan Tyree's work is quite a detailed legal analysis of the new Code of Banking Practice and the Australian Banking Industry Ombudsman. There is also much reference to Australian case law and legislation, in particular the Bills oj Exchange Act 1909 (Cth) and the Cheques and Payment Orders Act 1986 (Cth).
It is a shame that this book is made to suffer somewhat from a rather superficial index, because otherwise Tyree's Banking Law in Australia is quite an impressive general text for practitioners.
