The publication of this 87th edition of Hearsay sees 2021 drawing to a close and, with an ounce of luck, a glimpse of light at the end of the Covid tunnel.
This year has seen a continuation of a level of disruption to the personal and professional lives of the barristers throughout Queensland as a result of the Covid-19 pandemic, notwithstanding efforts by health workers and administrators, government, the Bar Association, and the law courts, to minimise such disruption. While uncertainties remain, 2022 beckons as a more promising year.
This edition contains reviews of quite a range of books (to tempt the idle reader over the summer break), along with a number of interesting articles and case notes on diverse topics (including two reflections on the decision of the High Court in Love v Commonwealth of Australia). My thanks to the sub-editors on the editorial committee for Hearsay, particularly Amy Low, for assisting in the preparation of this edition.
Once again, members of the Bar Association of Queensland are invited to contribute to future editions of Hearsay. For now, I wish all readers the best for Christmas and the new year.
Welcome to the 86th Edition of Hearsay.
It is probably far from an understatement to observe that the World has literally changed since the last addition of Hearsay came out in March 2020. While that edition was going to print, a tiny insurgent was making its way around the World (from some source, not yet definitively identified) to spark the Covid Crisis. Within the space of just a few weeks we all become accustomed to concepts like social distancing, daily infection reports, daily death reports, working remotely, lockdowns, zoom meetings, second waves and singing Happy Birthday while we wash our hands. Tragically, in addition to impacts on our social and economic interaction, Covid-19 has had a devastating impact on the health of many, both here and around the Globe. Sadly, there is no real prospect of effective and permanent relief from the Covid Crisis anytime soon.
Covid-19 has had a dramatic impact upon the practice of Barristers in Queensland. While some have been able to continue litigation under the stringencies of Covid Plans, others (particularly those practicing criminal law) have suffered real disruptions to their practices. The Courts have all worked hard, with the co-operation of solicitors and barristers, to try to continue to make their services available to practitioners and the public, as far as possible.
The Covid Crisis has also affected the usual professional and social events of the Calendar Year. While the Inaugural Bench and Bar Cricket Match snuck in just before the Corona Virus arrived (see the report in this Edition), the 13th Tri-State Football Tournament and Sports Law Conference was, unfortunately, cancelled. I am sure that we are all pleased to see that the 74th Bar Practice Course, postponed from March 2020, has just been completed, with the usual high standard of teaching and practical experience.
The book reviewers have been busy, providing reviews on legal texts and other general books, whose topics range from gun control laws to the relationship between the City of Brisbane and the river that bears its name. Articles range from an examination of the Singapore Mediation Agreement signed late last year to a discussion of causation in negligence. Sports lovers may be interested in the article about a disciplinary proceeding in Queensland Cricket in March 2019 that raises questions about the extent to which tactics during a match can breach the laws of the game. This Edition also includes an article reflecting on the lengthy legal career of former Chief Judge Kerry O’Brien, who retired as Chief Judge and Judge of the District Court in August 2020. There is also an article noting the long and distinguished career at the Bar of our own John Griffin QC.
It is hoped that readers will enjoy this Edition of Hearsay. My thanks to the Editorial Committee, particularly David Purcell (for his work as sub-editor on this Edition), contributors, and the staff of the Bar Association, particularly Tarnia Simpson, for helping to bring this Edition together.
The Editor was fortunate enough to speak with his Honour Judge Kerry O’Brien on the occasion of his Honour’s retirement as Chief Judge of the District Court of Queensland and Judge of that Court. The following article reflects on his Honour’s lengthy career in the Law.
Midnight on 16 August 2020 saw something of an end of an era for the judicial system in Queensland, with the retirement of the last of the judges appointed in the 1980s, his Honour Judge Kerry O’Brien, Chief Judge of the District Court of Queensland.
On 13 August 2020 the District Court of Queensland held a Valedictory Ceremony[1], both to farewell his Honour and to reflect upon his Honour’s contribution to the law in this State during more than thirty years as a judge of the District Court of Queensland. At the time of his retirement the Chief Judge was the longest serving judicial officer in Queensland, having been appointed on 20 October 1989 as a Judge of the District Court in Townsville.
His Honour had a largely regional upbringing, following his birth at Dalby on 17 August 1950. His Honour’s father was from Roma and his mother was from Dalby. His Honour’s father was one of nine children who grew up on a farm north of Roma.
His Honour’s father was a public servant in the postal service: an occupation that involved much movement of the family around the State, culminating in his father’s position as Postmaster of both the Fortitude Valley Post Office and then the Brisbane GPO. His Honour’s experiences in regional Queensland were a precursor of things to come as a barrister and then a Judge.
His Honour attended Senior School initially at Downlands College, in Toowoomba, moving to Marist Brothers Ashgrove for the final Years 11 and 12. At a time prior to the introduction of free tertiary education, his Honour was the first of his family to obtain a scholarship to attend university. In 1967 his Honour was granted a State Legal Scholarship to attend the University of Queensland. It is understood that the Legal Scholarship granted to his Honour was the only such scholarship (for law) ever granted and, in this regard, it might be suggested that his Honour broke the mould.
His Honour graduated from the University of Queensland in 1973 with Bachelor of Commerce and Bachelor of Laws.
A consequence of the State Legal Scholarship was the obligation his Honour acquired under a bonded period of employment with the State, during which his Honour undertook legal work in the Crown Law Office. In late 1973 his Honour was admitted to practise as a Barrister in Queensland, subsequently obtaining a Commission to Prosecute in the Crown Law Office in 1975.
His Honour’s practice as a Barrister involved appearances in a wide range of Courts and Tribunals throughout the State, including the Land Court, the Land Appeal Court, the Industrial Court, the District Court, the Supreme Court (both in Trial and Appellate Jurisdiction) and the High Court of Australia.
His Honour’s affinity with regional parts of the State was reflected in his Honour’s appointment in the early 1980s as the Central Crown Prosecutor in Rockhampton and then again, in 1988, in his appointment as Deputy Director of Public Prosecutions, with responsibility for areas of the State north of Maryborough. After only a year in that position his Honour was then appointed to the District Court of Queensland, in the same year that saw the appointment of former Judges Botting, Daly, McLauchlan QC and Noud.
The jurisdiction of the District Court of Queensland was dramatically enlarged in 1989. That enlargement of jurisdiction saw the larger part of the criminal jurisdiction of the Supreme Court of Queensland also conferred upon the District Court. The enlargement of the Court’s civil jurisdiction included an increase in the monetary jurisdiction of the District Court to $250,000 (a very large sum of money at the time) and the acquisition by the Court of an equitable jurisdiction. It is in the context of this significant increase in criminal and civil jurisdiction, conferred upon the District Court 30 years after its establishment in 1959, that his Honour was appointed to the Bench and carried out his judicial functions for almost 31 years.
During his Honour’s time on the District Court Bench his Honour held a commission in the Childrens Court, including as President following the Presidency of that Court by former Judge John Robertson. His Honour also sat on the Health Practitioners Tribunal (at a time when such matters were presided over by District Court Judges), including taking over the administration of that Tribunal from former Judge Eric Pratt.
In 2008 his Honour was appointed Judge Administrator of the District Court of Queensland and on 20 October 2014 his Honour was appointed Chief Judge of the District Court of Queensland, following the tenure of former Chief Judge Patsy Wolfe.
His Honour’s role as Chief Judge has consumed a great deal of his Honour’s time, which has necessarily reduced the time available for his Honour to preside over court proceedings, in either criminal or civil jurisdiction. Nonetheless, his Honour has continued to sit in court, managing lists and conducting trials, including sittings throughout the State on Circuit. It is fair to say that a great number of practitioners, past and present, have had the pleasant experience of appearing before his Honour in various locations around Queensland.
His Honour has expressed the view that his real joy as a Judge has been the time spent in the application of the law, rather than the time necessarily occupied by his Honour’s functions as an administrator of the Court. In this regard, his Honour has taken particular delight in continuing to preside over proceedings in regional parts of Queensland, even after his appointment as Chief Judge (for instance, recently, during the COVID crisis, in both Rockhampton and Townsville).
His Honour has indicated that he feels considerable satisfaction and pride in the continuation of the District Court of Queensland as a productive and efficient court, which embraces the various changes introduced by the modern practice of the law (including technological changes), while maintaining a spirit of comradery within the court.
His Honour has reflected that the Court is a much “younger” Court than the Court he joined in 1989, although it is notable that his Honour’s appointment to the Bench came when his Honour was just 39 years old. His Honour has observed that the ongoing rejuvenation of the Court is always a positive development, as has been the appointment of many female judges to the Bench, particularly over the last two decades.
His Honour has acknowledged that the changes in the modern practice of the law (from the Library Index searches and fax machines of the 1970s and 1980s to the internet judgements database searches and emails of the current times) will need further improvements in the facilities available to the Court, with upgrade of technological facilities being an obvious aspect of this necessary further improvement. His Honour has observed that the COVID Crisis has presented a substantial challenge to the continuing function of the Court, but has also proudly acknowledged that the District Court (as with other State courts) has been able to manage its practices to ensure that it could continue its important role in dispensing justice, so far as health and safety considerations would physically permit.
It was, no doubt, with some satisfaction that his Honour’s last Circuit on the Bench, in July 2020 (amidst the COVID crises) involved a final Sittings in Townsville. The Townsville Bulletin of 5 July 2020 included an article to mark his Honour’s retirement, reporting the following comments by his Honour:
“Townsville is a place I’ve had a long and strong connection with”.
“It’s very special. We lived in Townsville for about 10 years, a large portion of that as a judge, and Townsville is a place which will hold a special place for myself and my wife. Our children were born here.”
“We’ve got lifelong friends here and, of course, my association with the legal profession and the courts is a strong one. It does mean a lot to be able to come back.”
In typical understated fashion, his Honour’s advice to practitioners, including new practitioners, recognised the obligations and commitments of lawyers as members of an “ancient and honourable profession”. The report in the Townsville Bulletin on 5 July 2020 recorded the following advice from his Honour:
“I say to young lawyers, work hard, be thorough in what you do, get involved with your societies, never lose sight of the principles of the profession that you represent.”
At the time of his Honour’s appointment to the District Court in October 1989 the Honourable Sir Justice George Kneipp made the following observations about his Honour and expressed the following expectations for his Honour’s career as a judicial officer:
“It has always been a pleasure to see you. You have conducted your duties as Counsel for the Crown with great competence, with objectivity, and you possess an equable temperament which enables you to go about your duties in a spirit of co-operation, both with the Bench and the Bar. All these things show me, if I may say so, that you have the qualities which will fit you well to be a good Judge.”
On the same occasion, noting that his Honour’s practice of the law prior to that point had predominantly involved the criminal jurisdiction, his Honour made the following observations and expressed the following hopes for his Honour’s own future on the Bench:
“As a number of you have said, my background is essentially in the area of the criminal law. The District Court jurisdiction is shortly to be significantly expanded, but I am sure you would also know that I am but the most recent of a number of Crown Prosecutors who have been honoured by elevation to the District Court Bench. His Honour Judge McCormack and his Honour Judge Finn were for many years District Court Judges resident in this city. In more recent times, of course, my brother Trafford-Walker was for a number of years a Crown Prosecutor here. In the south, over a number of years, there have been several such appointments: his Honour Judge R.F.Carter; his Honour Judge McNamara; his Honour Judge Gibney; his Honour Judge Miller, and I am comforted in the thought that if I am able to bring to my duties even a modest measure of the judicial standards maintained by those Judges then I consider I will be a good servant of Justice.”
Those who have appeared before his Honour, or have otherwise dealt with his Honour, either personally or professionally, would undoubtedly agree with the remarks of Sir George Kneipp in October 1989. They would undoubtedly express the view that his Honour’s competence and objectivity in the conduct of his Honour’s functions as both a Judge and as the Chief Judge, accompanied by his Honour’s “equitable temperament”, have enabled his Honour to carry out his duties in all capacities with considerable distinction. It is notable that his Honour’s comments in preparation for this article emphasised the importance of the co-operation his Honour has received from both barristers and solicitors, from other judges, from administrators of the courts and from court staff, to the performance of his Honour’s duties as both a Judge and as Chief Judge.
Most would agree with Sir George Kneipp that his Honour has gone about his duties “in a spirit of cooperation” and that his Honour has well satisfied his Honour’s own test as a “a good servant of Justice”, achieving the “modest measure of judicial standards” that had already been demonstrated by those previous judges appointed from the ranks of Crown Prosecutors (to whom his Honour referred on the occasion of his appointment).
A mark of his Honour’s approach to life as a Judge and as a Chief Judge is the speech given by his Honour at his Honour’s Valedictory Ceremony on 13 August 2020. His Honour was effusive in his acknowledgement of, and thanks for, the work and assistance of others, but notably sparing in his recognition of his own abilities and contribution to the Law. Fortunately, the Solicitor-General, the President of the Bar Association of Queensland and the President of the Queensland Law Society were all able to make good this oversight, and to publicly acknowledge both his Honour’s capabilities as a lawyer and an administrator, and his Honour’s significant contribution to the Law in Queensland for more than four decades.
His Honour, together with his wife Donna have four children. All who spoke at the Valedictory Ceremony, including his Honour, recognised the great support that Donna has provided to his Honour throughout all facets of his Honour’s legal career. His Honour has proudly observed that all four children have established their own careers, of one sort or another, and that only one of those children, his son, has followed him into the Law.
His Honour has indicated that he has no particular current plans for the future, particularly since intentions to undertake global travel have been put on hold by the COVID Crisis. It is hoped that those plans will not be delayed too long. However, in the meantime, his Honour has strong, broad ranging interests in sport and art and his Honour will, one hopes, now be free to devote greater time to the enjoyment of activities with family and friends, after more than forty-six years in the Law.
[1] The remarks of the BAQ President at the Valedictory Ceremony are reproduced in this edition of Hearsay.
Welcome to the 85th Edition of Hearsay!
This Edition marks a transformation of Hearsay from its previous electronic platform to a more “user-friendly”, workable, transportable and searchable electronic platform. As part of the that technological innovation, the launch of this Edition is accompanied by the shift of most of the previous editions of Hearsay (from the 15th Edition to the 84th Edition) onto the new electronic platform.
This Edition contains informative articles in relation to Insolvency Law and Succession Law.
The case reports in this Edition consider two recent cases from the Supreme Court of Queensland and the High Court of Australia, respectively, concerning the use of extrinsic evidence and the implication of terms in commercial contracts and the ability of lawyers (including barristers) to recover costs when appearing as litigants in person.
On a lighter note, this Edition also contains reports on the 10th Tri-State Football Tournament and the 2019 Bench and Bar Golf Day.
My thanks go to the other members of the Editorial Committee, especially to Amy Low (Sub-Editor for this Edition), and to the staff of the Bar Association, for all their hard work in compiling this Edition and in putting Hearsay onto the new electronic platform.
Andrew Skoien
