Welcome to the December Quarterly Issue of Hearsay.

In this issue, the lead article – ‘Sam and Ralph’ – The Role and Practice of Counsel in the System of Justice – is written by the Honourable Justice John Bond, of the Queensland Court of Appeal.  His Honour – from a long career as a barrister, then a judge – identifies the integral aspects of practice as counsel before the courts, including the high importance of courteous professionalism.  His Honour examines the matter – amusingly, but instructively – by analogy to the conduct of two well loved Warner Bros ‘Looney Tunes’ characters.

10 Minutes with … sees Hearsay in conversation with the Honourable Ian Callinan AC, one of Australia’s foremost advocates and judges of the late twentieth and early twenty-first century.  He gives useful insights into the need for successful barristers to strive for excellence, but also harbour interests outside the law.

John McKenna KC waxes lyrical about the skillset of counsel in Advocacy in Mediation, while Gareth Beacham KC – in an article Elephant or Mule: The Menagerie of the Law Relating to Economic Loss – writes concerning the recent Mallonland decision of the High  Court in relation to tortious liability for pure economic loss.

The Honourable Chief Justice Helen Bowskill writes a fascinating piece concerning counsel’s use of artificial intelligence: Navigating the AI Abyss: Ethical Challenges in the Age of GENAI.

An article by Dominic O’Sullivan KC celebrates Danny Gore KC’s 50 years at the Queensland Bar. Duncan McMeekin writes a fascinating – and in part amusing – obituary of the recently deceased Grant Britton KC – former District Court Judge – while the Honourable Justice John Logan RFD writes an obituary of John Gierke, barrister, who for many years was the Director of the Queensland Office of the Office of the Australian Government Solicitor (formerly Deputy Commonwealth Crown Solicitor, Queensland).

Included also is a plethora of photographs, and speeches, from the 2024 Annual Bar Dinner.

I write a piece on Barrister Cyber Risk, for members to address in the course of their practice.

The Regional Bar section celebrates – with photographs – the 150th Anniversary of the establishment of the Supreme Court at Bowen, in North Queensland.

The Reviews and the Arts section – edited by Stephen Keim S.C. – contains a review of the recently produced play by Mr Callinan AC – ‘Gold and Silver’ – along with a range of reviews of books and songs (including two by the fabulous Lady Gaga).

A raft of other learned articles and case reviews on topics which will be of interest to practising barristers, judges and other lawyers may be found in this issue in the regular Advocacy, Professional Conduct and Practice and Words from the Past sections, along with the usual bits of other general interest in the Inter Alia section.

I thank the Hearsay editorial team – volunteer barristers and Dianne Lyndon – for their dedication in identifying and bringing to print material for the reading pleasure of barristers, judges, solicitors and the general public.  I thank also our many contributors;  without you we would not exist.

I wish all a merry and safe Christmas, and a propitious New Year.

Enjoy!

Richard Douglas KCEditor

I do request your contributions to the deputy editor, editorial team or me (T: 3218 0620; M: 0417 788 713; E: douglas@callinanchambers.com). The deputy editor is John Meredith (T: 3218 0650; M: 0403 278 585; E: jmeredith@callinanchambers.com).  The sub-editor is Stephen Kiem SC (T: 3229 0381; M: 0433 846 518; E: s.keim@higginschambers.com.au) who looks after the book and podcast reviews.

The remaining editorial team are Philip O’Higgins KC (T: 3232 2122; M: 0417 997 725;  E: philip.ohiggins@carbolic.com.au);  Carolyn Conway (T: 3229 2631; M: 0407 757 780;  E: conwaycj@jeddart.com);   Seraphina Noble (T: 3210 6537; M: 0447 224 754;  E: snoble@qldbar.asn.au)

The Issue:

Any barrister who does not appreciate their stored data is subject to a cyber risk ought not be in practice.  Steps need be taken to protect such data from illicit access thereto, not just to avoid being sued for damages, but to avoid likely regulatory prosecution by a raft of regulators.

If I now have your attention, I commend every barrister reading to attend carefully the matters I canvass below.  Perhaps you already have such matters in hand; if so read another article in this issue of Hearsay.

Cyber attacks against commercial and government institutions and individuals are a daily reality.  The principal object of the attacks – if successful – is extortion, by ransomware (ie data access prevention) or threat of public exposure of copied data.  The attacks occur at the behest of what are described in the cybersecurity industry as “threat actors”.

Suffice it to say the legal industry is not immune from cyber attacks.  Much publicity was attracted this year by dint of the 2023 attack made in Australia upon solicitors HWL Ebsworth.

While I have not been able to gain access to statistics for Australia in relation to cyber attacks in the legal industry, data from the United Kingdom is available, and is disturbing.

In April 2022, IT systems operated by the UK Bar Council, and Bar Standards Board, were taken offline following a successful cyber attack.

The UK Law Society Gazette of 9 December 2023 reported that 65% of UK law firms had been the victim of an attempted cyber attack.

In the same Gazette of 27 August 2024, it was written that:

The number of successful cyber attacks against UK law firms rose by 77% in the past year to 954, up from 538 the year before … Chartered accountants Lubbock Fine said that the wave is driven by criminals seeing law firms as prime targets for ransomware attacks or blackmail (my emphasis).

Despite such history, the response of not just lawyers, but all commercial organisations in Australia has been relatively relaxed apropos of cyber risk.  In the Herbert Smith Freehills 2024 “Cyber Risk Survey” of commercial organisations, the following was recorded:

Today, almost 80% of respondents to our cyber risk survey believe the cyber risk to their organisation is increased compared with last year. However, our data shows that many are still not taking crucial preparatory work – perhaps one of the most jarring findings from our survey was that 58% of respondents said it would use an actual cyber attack to motivate their organisation to meaningfully improve their data risk management…

[M]essages [however] are coming through: protect the network you have, not the network you think you have, select a standard and measure yourself against it, invest in early detection tools and basic cyber hygiene…and have a good incident response plan.

For lawyers in Queensland, there are three regulatory bodies which can prosecute them for failure to adequately protect the electronic data they hold against cyber attack:  the Queensland Legal Services Commission (QLSC), the Office of the Australian Information Commission (OAIC) and the Australian Securities and Investments Commission (ASIC).

There is much publicity now concerning regulatory prosecutions in this space.  It is instructive to note what the regulators are saying in their published utterances, at least in the case of the OAIC and the ASIC (albeit there is no reason why the QLSC would take a different approach):

1. OAIC:
   • “The OAIC has underway several investigations into organisations in relation to data breaches, including Singtel Optus Pty Limited, Latitude group of companies and HWL Ebsworth Lawyers” (OAIC Corporate Plan 2024-25)
   • “The OAIC’s civil penalty proceedings against Medibank Private Limited and Australian Clinical Labs Limited will continue in the Federal Court in 2024–25. This enforcement action is an example of how the OAIC is prioritising regulatory action where there is a high risk of harm to the community. It sends a strong message to the regulated community that keeping personal information secure and meeting the requirements of the [notifiable data breach] scheme must be priorities.” (OAIC Corporate Plan 2024-25)
2. ASIC:
   • “It is a foreseeable risk that your company will face a cyber attack… [A]s a director you have to make it your business to be across questions of cyber resilience and make cyber security a priority” (ASIC Chair, Joe Longo, speech at AICD Australian Governance Summit, March 2024)
   • “ASIC chairman Joe Longo has previously warned that the watchdog would bring charges against directors who fail to adequately prepare for hacks, and ASIC commissioner Simone Constant confirmed the process was under way” (Australian Financial Review, 17 September 2024)
   • “When we’re thinking about these investigations and the regulator’s concerns, we are not talking about the response to a hack or a cyber event … That’s a very small part of the story” (ASIC Commissioner Simone Constant, speech at the Australian Financial Review Cyber Summit, September 2024)

Glossary of Terminology:

Below I set out a hypothetical – but real – incident timeline, including my commentary in relation thereto.  I have assembled the same with the assistance of Alex Halim of Cyber Safe Business, an expert CISO (see below), who deals with these matters on a day to day basis.

An introductory glossary to such timeline, provided by Alex, is this:

Threat Actors

Threat actors are people or groups who intentionally cause harm to computer systems, networks, or data. They can be hackers, cybercriminals, or even organizations that launch cyberattacks to steal information, disrupt services, or damage systems.

For example, if someone tries to break into your company’s network to steal customer data, that person is a threat actor. They are called “actors” because they are actively doing something harmful. Their actions could range from spreading viruses to holding data for ransom or spying on sensitive information.

In short, threat actors are the bad guys in the cybersecurity world!

Advanced Monitoring for Microsoft 365

Advanced Monitoring for Microsoft 365 refers to tools and services that provide deeper insights and tracking of your Microsoft 365 environment’s health, security, and performance. It helps IT admins keep an eye on things like:

• User activities: Who is logging in, from where, and what actions they are taking.
• Security threats: Alerts for suspicious activities, unauthorized access, or data breaches.
• Service performance: Monitoring the uptime and performance of services like Outlook, Teams, or SharePoint.
• Compliance tracking: Ensures that your organization meets regulatory requirements by monitoring data usage and access.

In short, it’s a way to ensure everything runs smoothly and securely by getting detailed reports and alerts about your Microsoft 365 system.

Multifactor Authentication (MFA)

Multifactor Authentication (MFA) is an extra layer of security that requires users to verify their identity in two or more ways before they can access an account or system. Instead of just entering a password, MFA asks for additional proof, such as:

• Something you know: Like a password or PIN.
• Something you have: Such as a smartphone, security token, or an app that generates a code.
• Something you are: Biometrics, like fingerprint or facial recognition.
• The goal of MFA is to make it harder for attackers to gain access, even if they have your password. For example, after entering your password, you might also need to enter a code sent to your phone or scan your fingerprint to complete the login.

Secure Email Gateway (SEG)

Secure Email Gateway (SEG) is a tool that helps protect an organisation’s email system from threats like spam, phishing attacks, viruses, and malware. It acts as a filter, scanning all incoming and outgoing emails to identify and block harmful or suspicious messages before they reach the user’s inbox.

Some key functions of a Secure Email Gateway include:

• Spam filtering: Identifies and blocks unwanted or suspicious emails.
• Virus/malware scanning: Detects and removes emails with harmful attachments or links.
• Phishing protection: Prevents email-based attacks where attackers try to trick users into sharing sensitive information.
• Data loss prevention (DLP): Ensures sensitive data like personal or financial information isn’t accidentally sent outside the organization.

Essentially, an SEG serves as a security checkpoint for your email, preventing harmful or unauthorized content from entering or leaving your system.

Endpoint protection

Endpoint protection is a type of security solution designed to protect individual devices, known as “endpoints,” such as computers, smartphones, tablets, and servers, from cyber threats. These devices are common entry points for attackers trying to infiltrate a network, so endpoint protection works to safeguard them.

Key features of endpoint protection include:

• Antivirus and malware protection: Scans and blocks harmful software from infecting the device.
• Firewall: Monitors and controls incoming and outgoing network traffic.
• Intrusion detection: Identifies suspicious activity or potential attacks on the device.
• Data encryption: Protects sensitive data on the device in case it’s stolen or compromised.
• Endpoint detection and response (EDR): Offers advanced monitoring to detect and respond to more sophisticated threats in real-time.

Overall, endpoint protection ensures that devices connected to a network remain secure, minimizing the risk of data breaches or malicious attacks from hackers.

Cybersecurity assessment

Cybersecurity assessment is a process used to evaluate an organisation’s security posture, identify vulnerabilities, and determine how well its systems and data are protected from cyber threats. It involves analyzing the effectiveness of existing security measures, identifying gaps, and making recommendations to improve overall security.

Key elements of a cybersecurity assessment include:

1. Risk identification: Analyzing potential threats (e.g., malware, phishing, hacking) that could affect the organization.
2. Vulnerability scanning: Checking systems, networks, and applications for weaknesses that could be exploited.
3. Security controls evaluation: Reviewing current security measures (firewalls, encryption, access controls) to see how well they prevent attacks.
4. Compliance review: Ensuring that the organization meets regulatory requirements (e.g., GDPR, HIPAA) for data security.
5. Incident response readiness: Assessing how prepared the organization is to detect, respond to, and recover from cyberattacks.

The goal is to provide a clear understanding of where an organization is vulnerable and what steps can be taken to strengthen its cybersecurity defences.

Chief Information Security Officer (CISO)

Chief Information Security Officer (CISO) is a senior executive responsible for overseeing and managing an organization’s information security program. Their primary goal is to protect the company’s sensitive data, systems, and networks from cyber threats.

The CISO ensures that security policies and practices align with business goals while staying compliant with regulations. They identify potential risks, develop strategies to mitigate them, and lead teams to respond to cybersecurity incidents.

In essence, the CISO is the key figure ensuring a company stays safe in the digital world, combining leadership, strategy, and technical expertise.

Hypothetical Timeline:

My hypothetical – but nonetheless real – incident timeline can be viewed here.

Counsel’s Data Most at Risk:

In my view there are three categories of documents which present the greatest risk of exposure to regulatory prosecution were they to be hacked:

1. advices to solicitors;
2. electronic briefs, the content of which can include privileged solicitors’ advices to the client, privileged witness statements and the document disclosure of all parties to a piece of litigation;
3. email traffic between counsel and solicitors, and between counsel on the same side.

If a briefcase containing paper copies of the above documents is left by counsel in a bar, and stolen, and falls into the wrong hands, the concern would be great.

If a computer or laptop in counsel’s chambers overnight is not shut down or placed in “sleep” mode, and data is accessed and copied by cleaners who sell the data, the concern would be great.

Why should cyber risk be any different?

Barristers’ Conduct Rules 2011:

While there is no specific rule in these statutory regulatory rules which addresses cyber risk security, a number of the generic provisions certainly do:

Rule 10

These Rules are not intended to be a complete or detailed code of conduct for barristers. Other standards for, requirements of and sanctions on the conduct of barristers are to be found in the inherent disciplinary jurisdiction of the Supreme Court, the Legal Profession Act 2007 and the general law (including the law relating to contempt of court).

…

Rule 12

A barrister must not engage in conduct which is:

…

(c)        Likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute.

Rule 108

A barrister must not disclose (except as compelled by law)*…confidential information obtained by the barrister in the course of the practice concerning any person to whom the barrister owes some duty or obligation to keep the information confidential unless or until:

…

(b) The person has consented to the barrister disclosing…the information generally or on specific terms; or

(c) The barrister discloses the information in a confidential setting for the sole purpose of obtaining advice in connection with the barrister’s legal or ethical obligations.

Rule 109

A barrister must not disclose (except as compelled by law)*…confidential information under Rule 108(b) in any way other than as permitted by the specific terms of the person’s consent.

* My note – absolute obligation.

Legal Profession Act 2007 (Qld):

Relevantly, this Act provides:

418 Meaning of unsatisfactory professional conduct

Unsatisfactory professional conduct includes conduct of an Australian legal practitioner happening in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

419 Meaning of professional misconduct

(1)   Professional misconduct includes—

(a)   unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence; and

(b)   conduct of an Australian legal practitioner, whether happening in connection with the practice of law or happening otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

(2)   For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate.

Prosecution of barristers for such misconduct, of course, is not confined to contraventions of the above Barristers’ Conduct Rules.

Legal Regulator Guidance:

In what circumstances is the QLSC likely to prosecute for inadequate cybersecurity put in situ by a barrister?

Legal regulator guidance is emerging.  A helpful publication was issued by the Victorian Legal Services Board and Commissioner, namely “Minimum Cybersecurity Expectation”, published in August 2024.  It identifies conduct which in the opinion of that regulator, falls to be characterised as professional misconduct or unprofessional conduct.

Such publication – in my opinion – repays reading, and may be found here.

The salient practical “expectations” I discern from such document – directly or by way of extrapolation – are these:

1. Engage a competent and credential IT administrator, if not CISO.
2. Have a chambers’ cybersecurity compliance manual issued with strict requirement for study by and compliance by all barristers, staff members and external staff or consultants – (concerning strict phishing avoidance, home office use, external typing use, accountant use).
3. Have in place multi-factor identification, updated security software and access controls.
4. Delete – in a timely way – redundant sensitive data in directories (eg electronic briefs after advice furnished or interlocutory hearing conducted, even if it necessary to be re-briefed for further tasks).
5. Use strong passwords.
6. Have strong security and antivirus software.
7. Avoid use of unknown devices and accessories (eg USB sticks or scavenged hard drives).
8. Train staff in cybersecurity, to maximise cyber hygiene.
9. Distribute to chambers’ barristers and staff – and require they study – a cyber incident response plan.
10. Keep a record of any cyber incidents even if apparently minor.
11. Report data breaches to the OAIC in accordance with the Privacy Act 1988 (Cth).
12. Require the chambers’ IT administrator or CISO give a quarterly report on cybersecurity.

What to Do at a Technical Level?:

I am indebted to Alex Halim for assisting me with the technical suggestions below.

By way of immediate action, Alex recommends:

1. Ensure a strong password:
   • At least 12-16 characters long.
   • Mix uppercase and lowercase letters, symbols and numbers
   • Avoid re-using passwords across different accounts.
   • Create pass-phrase password which is strong but memorable e.g. “Tropical$Radio%Talk50”.
2. Enable multi-factor authentication [if not already so enabled].

By way of general protection measures, Alex recommends:

1. Start the journey with cybersecurity assessment. This process will allow chambers (or you, if practicing alone) to understand your business-critical systems and vulnerabilities to close the gap.
2. Engage a qualified and capable cybersecurity strategist (CISO) to help your chambers to develop cybersecurity mitigation risk strategy that align with your business goals and regulatory requirements.
3. Align the chambers’ and your procedure and policy to support cybersecurity culture.

By way of specific protection measures, Alex recommends:

1. Apply tools or technologies that enable protecting MS 365:
   • To circumvent potential unauthorized login.
   • To monitor and alert suspicious data exfiltration activities for all assets in MS 365.
   • With capability for immediate mitigation.
   • With extensive reporting capability.
2. Apply an endpoint protection and response (EDR) solution that has:
   • Capabilities of behavioral analysis, machine learning, and threat hunting for advanced threats.
   • Coverage of advanced threats such as zero-day attacks, fileless malware, Advance Persistent Threats, ransomware, etc.
   • Support incident response, forensic capabilities, and integrate with threat intelligence feeds for up-to-date information on new threats.
3. Apply application control policy to endpoint that has access to business-critical assets:
   • Application Whitelist database.
   • Change request to update the application whitelist database.
4. Apply advanced firewall (Internet Gateway) that has the features:
   • Advance Internet traffic monitoring.
   • Integration to monitoring system for detection and response.
5. Apply secure remote access technology that has the features:
   • Machine learning behavioral analysis.
   • Support in transit encryption.
   • Support incident response, forensic capabilities, and integrate with monitoring system for detection and response.
6. Apply cybersecurity hygiene culture, consisting of continuous cybersecurity awareness program that is accountable and reportable.
7. Have an incident response plan.
8. Have a mitigation risk strategy.

Conclusion

Counsel ought be under no misapprehension that protection of their practice – coupled with protection from regulatory prosecution – necessitates proactive and comprehensive action against cyber risk.

No system of protection is infallible, but having an up to date multi-layered cybersecurity system will minimise the prospect of practice disruption, the risk of regulatory prosecution and – perhaps – a suit or suits for damages by affected persons.

In Cheung v Commissioner of Taxation [2024] FCA 1370 (29 November 2024), Logan J adjudicated an appeal by a tax payer from an assessment decision of the AAT (as the ART then was). A critical issue was whether the sums totalling approximately $33m, paid to the taxpayer by a relative in Vanuatu constituted income or a capital gift.  Allowing the appeal, his Honour found such money was of the latter character.  A portion of his Honour’s reasons which the writer found instructive – referable to modern family life – was the following:

[A] point made for the Commissioner was that the income tax legislation is agnostic in terms of what is or is not income under ordinary concepts. In relation to the meaning of “income” this is, unquestionably, true. That meaning does not vary according to cultural or family values. But whether, on particular facts, a sum received or paid by direction is income may fall for determination against taxable facts which reveal that the character of the payment in the hands of the recipient is a gift, because the occasion for its payment is wholly explained by a cultural or family norm, not an income producing activity….There is nothing unique to this case about such a phenomenon. For example, if by good fortune they can, many parents give money to children for a home deposit, grandparents give money for treats or extra clothes for grandchildren, sometimes for school fees. All this occurs as a matter of routine according to available financial resources and by reason of natural love and affection. Sometimes such payments may be a one-off, sometimes they may be made in varying amounts for years. Periodicity of receipt is an imperfect touchstone for whether a payment is income in the hands of a recipient. The ITAA 1997 does not bring to tax every receipt of money from a third party.

The relevant portions of the reasons of Logan J were as follows:

A Matriarch

1    In 1974, at Port Vila in what was then officially known as the New Hebrides Condominium, and since Independence in 1980 as the Republic of Vanuatu, Mrs Graziella Leong (née Cheung) and her then husband, Mr George Leong, established a modest supermarket business. They named that business “Au Bon Marche” (ABM). That business name is obviously in the French language but, as Mrs Leong related in her oral evidence, it has an idiomatic, not literal, meaning. Idiomatically, it means, “It’s not expensive” or “It’s cheap”.

2    Already by Independence, ABM had grown into the largest supermarket chain in Vanuatu. Half a century after its establishment, ABM comprises six retail supermarket outlets in Port Vila, a food wholesale facility and four fuel stations. The wholesale arm of ABM services numerous small retail businesses in Vanuatu. ABM is a profitable business.

3    Mrs Leong has been actively engaged in the conduct of the ABM business over all this time. I use the adverb “actively” deliberately. I had the benefit of observing her during a lengthy cross-examination on her affidavit evidence in chief. She gave her oral evidence in her first language, French, via an interpreter by video link from Vanuatu. Her fluency in French is a legacy of the pre-Independence, joint administration, by the United Kingdom and France, of the New Hebrides. Another legacy exemplified in the evidence were bi-lingual (English and French) official documents relating to ABM.

4    Mrs Leong was a most impressive witness. I accept her evidence without reservation. She is now elderly (born in Port Vila in 1942). However, an evident degree of physical frailty on her part was in no way indicative of any mental decline. She was, to my observation, polite, courteous, engaged, modest in relation to her considerable business achievements, possessed of a good sense of humour and, above all, possessed of a masterly knowledge of ABM and her family. I am well-satisfied her evidence was honest. I am likewise well-satisfied on the whole of the evidence that Mrs Leong has long been, and remains, a respected, matriarchal figure in relation both to her descendants and the wider Cheung (including Leong) family. From each of these familial perspectives, hers is and has long been the decisive presence in ABM, irrespective of any outward form. She was firm and resolute in her evidence that, until a recent corporatisation of the business in about July 2017, she, and only she, was the owner of ABM. Even after corporatisation, Mrs Leong retained ownership of all of the shares in the corporate owner until 31 December 2021. At that time, and because of her advanced age, Mrs Leong transferred her shares into two trusts. This was undertaken for estate planning purposes for the future generation of the wider Cheung/Leong family. The trusts are controlled by Mrs Leong’s eldest son, Mr Andrew Leong (“Andrew”). For family reasons detailed below, it is inherently likely that, as the eldest son, Andrew’s succession to this role of formal control is not coincidental. Further, Andrew offers, on the evidence, a paradigm example of a dutiful son.

The applicant

5    It might seem odd to have commenced with these observations about Mrs Leong, because she is not the applicant in this taxation appeal. The applicant is a younger brother of hers, Mr Lin Jum Cheung, also known as Rene Ah Pow. Without in any way intending to be disrespectful, it is convenient hereafter to refer to Mr Lin Jum Cheung as “Rene”. Adopting that practice also assists in distinguishing him from other members of the Cheung family, notably including his and Mrs Leong’s oldest sibling, the late Mr John Chueng (“John”) whose business and family activities are also relevant to the determination of the taxation appeal.

6    Understanding the background to the establishment and ongoing operation of ABM and the dynamics of familial relationships between Mrs Leong and Rene, her descendants and the wider Cheung/Leong family lies at the heart of Rene’s endeavour to prove that the Australian income tax assessments he has encountered are excessive. My opening observations about Mrs Leong are reactive to that endeavour.

7    To describe Rene as a younger brother is but a relative description. That is because he turned 80 this year, having been born in Port Vila in 1944.

Assessments and Objection Decision

8    The respondent Commissioner of Taxation (Commissioner) has made assessments or, as the case may be, amended assessments of income tax on what he has assessed to be Rene’s taxable income for the 2005 to 2015 income years (inclusive) (the relevant period). The principal foundation for these assessments lies in a view formed by the Commissioner about the character of 99 deposits over the relevant period, mostly from bank accounts in Vanuatu associated with the ABM business, into Rene’s (or his and his wife’s) Australian bank account. The Commissioner considers these deposits to constitute income under ordinary concepts.

9    Other foundations for the assessments are to be found in interest income in the total amount of $1,953,631 received by Rene over the relevant period and in deposits by ABM to entities associated with Rene over the relevant period in the total amount of $2,524,095.

10    Rene accepts that the interest income formed part of his assessable income.

11    The other deposits, also said to be income under ordinary concepts of Rene, were:

(a)    a deposit of $1,624,155 made directly by ABM to the Simmertown Unit Trust (Simmertown UT) in the 2015 income year, said to have been at Rene’s direction; and

(b)    a deposit of $899,940 made directly by ABM to Qikid Pty Ltd (Qikid) in the 2015 income year, said to have been at Rene’s direction.

(collectively, the 3P Deposits)

12    Rene objected to these several assessments. That objection was successful in part. The conclusion reached by the Commissioner in his objection decision of 10 September 2021 may be summarised in the following table:

YearInterest ($)Deposits ($)Taxable Income ($)200517739,900739,9172006461879,477879,93820072,3995,164,5695,166,96820086,4152,363,8402,370,2552009608,8621,739,5472,348,4092010572,81910,883,59911,456,4182011338,9924,929,9225,268,9142012165,1781,492,3751,657,5532013123,864949,9071,073,7712014107,684299,970407,654201526,9393,356,4743,383,413Total1,953,63032,799,58034,753,210

Note:    There is a $2 discrepancy between the total of the deposits in the above table and the amount in dispute ($32,799,582). I will refer to the higher amount in these reasons.

13    Rene has appealed to this Court against that objection decision pursuant to the right conferred by s 14ZZ(1)(a)(ii) of the Taxation Administration Act 1953 (Cth) (TAA).

14    Rene’s statutory appeal was instituted within the time prescribed in the TAA. Given this, it is desirable to offer a brief explanation as to why some three years have passed until the determination of that appeal.

…

Onus and standard of proof

17    As with any taxation appeal, the onus of proving the assessments excessive and what they should have been lies on Rene as the applicant: s 14ZZO(b), TAA. That does not mean proof to demonstration, only proof on the balance of probabilities: s 140(1), Evidence Act 1995 (Cth).

18    Further, as Brennan J (as his Honour then was) observed in Federal Commissioner of Taxation v Dalco (1990) 168 CLR 614 (Dalco), at 624, “The manner in which a taxpayer can discharge that burden varies with the circumstances. If the Commissioner and a taxpayer agree to confine an appeal to a specific point of law or fact on which the amount of the assessment depends, it will suffice for the taxpayer to show that he is entitled to succeed on that point.”

19    This is one of those taxation appeals where there has been an agreement between the Commissioner and a taxpayer (Rene) to confine it to particular points of law and fact. The agreement was made after the objection decision and as a result of further discussions between the parties.

20    Thus, at one stage, certain payments in the total amount of $1,162,023 to suppliers of the ABM business were included in Rene’s assessable income. By express concession, accepted by Rene, the Commissioner now agrees that the amount of these payments to suppliers does not form part of Rene’s assessable income during the relevant period. These had hitherto been added to deposits by ABM directly into Rene’s (or his and his wife’s) bank account to yield a total of $31,437,510. The parties agree that the total of these supplier payments should be deducted from this amount. To the sum so derived (said by the Commissioner to be income under ordinary concepts) should be added, in terms of what is agreed to be in dispute, the total amount of the 3P Deposits, said by the Commissioner to have been paid at Rene’s direction and likewise said to be his income according to ordinary concepts. Rene’s position is that none of these payments constituted income under ordinary concepts.

21    In this way, the parties have confined the issue in the case as to whether Rene can prove that a total over the relevant period of $32,799,582 should not have been included in his assessable income, because it was not income under ordinary concepts. He must therefore prove that none of the direct deposits and neither of the two payments said to have been made at his direction were his income under ordinary concepts.

22    Another express agreement between the parties stems from a concession made by Rene. That is that, during the relevant period, he had no allowable deductions.

23    In effect therefore, the issue has been confined to whether Rene can prove that the sums so identified were not his income under ordinary concepts. If he does this, it is accepted that he will have proved the assessments to be excessive and what they should have been.

24    In these circumstances, it is not necessary to consider the plethora of cases in which meaning has sought to be given to what is, in relation to taxation appeals, presently s 14ZZO(b), TAA.

25    It is, however, apt to observe that the confining of issues in taxation appeals (and taxation reviews for that matter) is a desirable practice. It is always for the Commissioner in the responsible administration of taxation legislation to make a considered value judgement as to whether it is apt to agree to confine issues. Absent such agreement, and as Brennan J also stated in Dalco, at 624, with reference to observations made by Mason J (as his Honour then was) in Gauci v Federal Commissioner of Taxation (1975) 135 CLR 81, at 89 (in what has come to be regarded as a definitive exposition), the Commissioner is entitled to rely on any deficiency of proof by a taxpayer in proving, by reference to the grounds of objection, that an assessment is excessive.

26    No onus is cast on the Commissioner to prove that an assessment is not excessive. However, putting a taxpayer to proof on issues of fact and law which are truly not controversial is antithetical to the “traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects” to which Griffith CJ referred in Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333, at 342. That standard is not confined to taxation appeals but is pervasive in public administration. The vast resources at the command of the Executive can become an instrument of oppression if that standard is not observed. A recollection of our history in the terrible civil war and related regicide and period of military dictatorship in the mid-17th century, grounded in tyrannical behaviour by the then King, should underpin an understanding of why it is so important to observe this standard. Observing this standard in public administration had long become, even by 1912 when Griffith CJ made those comments, a prudent and proven means of preventing tendencies to repeat such awful events. Lapses in observance of the standard are also wasteful of limited judicial resources. In relation to the latter, this standard applicable to the Crown and its emanations has been augmented by a general obligation cast on parties to conduct litigation in accordance with an overarching purpose of civil practice and procedure specified in s 37M of the Federal Court of Australia Act 1976 (Cth). That requires parties to conduct litigation in a way which facilitates the just resolution of disputes not just according to law but also as quickly, inexpensively and efficiently as possible.

Summary of conclusions

27    There are some key factual conclusions in this taxation appeal from which flow particular applications of the income tax legislation.

28    During the relevant period, as it always had been, the ABM business was carried on in Vanuatu, never in Australia. Related to that, the income of that business was derived in Vanuatu, never in Australia. The source of that income was in Vanuatu, not in Australia. Moreover, flowing from my acceptance of Mrs Leong’s evidence, as well as that of Rene and other family members, upon which I elaborate below, that income was derived, during the relevant period, by Mrs Leong, as the then sole owner of the ABM business.

29    Also during the relevant period, Rene was a resident of Australia. As an Australian resident, Rene’s assessable income included the “ordinary income” he derived “directly or indirectly from all sources, whether in or out of Australia, during the income year”: s 6-5(2), Income Tax Assessment Act 1997 (Cth) (ITAA 1997). “Ordinary income” is income according to ordinary concepts: s 6-5(1), ITAA 1997.

30    From s 6-5(2) of the ITAA 1997 and his residency in Australia, it follows that the fact that the source of payments to Rene was in Vanuatu does not mean that those payments cannot form part of his assessable income. Given my conclusion that it was Mrs Leong alone who owned the ABM business during the relevant period, it follows that Rene did not derive income from an ownership interest in that business.

31    My further conclusion is that none of the payments were a reward to Rene, either formally or informally, for services rendered to that business. In themselves, these conclusions do not mean that any of the payments did not constitute income under ordinary concepts. However, my further conclusion is that none of the payments were otherwise income under ordinary concepts. Thus, the assessments concerned have, to that extent, been proved to be excessive. As, by agreement, the issues in the taxation appeal have been confined in the way already described, it follows that Rene’s appeal must be allowed.

…

Income under ordinary concepts?

76    Long ago now, in Scott v Commissioner of Taxation (1935) 35 SR (NSW) 215 (Scott), at 219, Jordan CJ stated:

The word ‘income’ is not a term of art and what forms of receipts are comprehended within it, and what principles are to be applied to ascertain how much of those receipts ought to be treated as income, must be determined in accordance with the ordinary concepts and usages of mankind, except in so far as the statute states or indicates an intention that receipts which are not income in ordinary parlance are to be treated as income, or that special rules are to [be applied].

77    Much more recently, and having cited this passage from Scott, Gaudron, Gummow, Kirby and Hayne JJ observed in their joint judgment in Federal Commissioner of Taxation v Montgomery (1999) 198 CLR 639 (Montgomery), at [64]:

Because the distinction between income and capital has so often been considered by the courts, attempts to classify a particular receipt often proceed by seeking to draw analogies with decided cases. That approach is often helpful, but resort to analogy should not be permitted to obscure the essential nature of the inquiry which is to determine whether “in ordinary parlance” the receipt in question is to be treated as income. As Jordan CJ made plain, the references to “ordinary parlance” and to the “ordinary concepts and usages of mankind” are no mere matters of ritual incantation; they identify the essential nature of the inquiry.

[footnote reference omitted]

78    Having made this observation, their Honours opined, at [65], that the “core” of the meaning of “income” as used in the former s 25(1) of the Income Tax Assessment Act 1936 (Cth) was to be found in a statement by Pitney J of the United States Supreme Court in an opinion in Eisner v Macomber (1920) 252 US 189 (Eisner v Macomber), at 206 – 207, a case concerning the meaning of the word “income” in the Sixteenth Amendment to the United States Constitution (which confers on Congress a power to tax incomes):

The fundamental relation of ‘capital’ to ‘income’ has been much discussed by economists, the former being likened to the tree or the land, the latter to the fruit or the crop; the former depicted as a reservoir supplied from springs, the latter as the outlet stream, to be measured by its flow during a period of time. For the present purpose we require only a clear definition of the term ‘income,’ as used in common speech, in order to determine its meaning in the amendment and, having formed also a correct judgment as to the nature of a stock dividend, we shall find it easy to decide the matter at issue.

After examining dictionaries in common use (Bouv. L. D.; Standard Dict.; Webster’s Internat. Dict.; Century Dict.), we find little to add to the succinct definition adopted in two cases arising under the Corporation Tax Act 1909, ‘Income may be defined as the gain derived from capital, from labor, or from both combined,’ provided it be understood to include profit gained through a sale or conversion of capital assets, to which it was applied in the Doyle Case.

Brief as it is, it indicates the characteristic and distinguishing attribute of income essential for a correct solution of the present controversy. The government, although basing its argument upon the definition as quoted, placed chief emphasis upon the word ‘gain,’ which was extended to include a variety of meanings; while the significance of the next three words was either overlooked or misconceived. ‘Derived-from-capital’; ‘the gain-derived-from capital,’ etc. Here we have the essential matter: not a gain accruing to capital, not a growth or increment of value in the investment; but a gain, a profit, something of exchangeable value, proceeding from the property, severed from the capital, however invested or employed, and coming in, being ‘derived’ – that is, received or drawn by the recipient (the taxpayer) for his separate use, benefit and disposal – that is income derived from property. Nothing else answers the description.

[Emphasis by Pitney J in Eisner v Macomber, internal case and footnote references omitted]

79    Later, in Federal Commissioner of Taxation v Stone (2005) 222 CLR 289 (Stone), at [8], a majority of the High Court (Gleeson CJ, Gummow, Hayne and Heydon JJ) concluded that the reference in s 6-5 of the ITAA 1997 to income under ordinary concepts was an “evident reference” to Sir Frederick Jordan’s statement in Scott. It is also clear from Stone that the statements quoted above from Montgomery in relation to the meaning of income remain authoritative for the purposes of s 6-5 of the ITAA 1997. Justice Pitney’s statement of principle in Eisner v Macomber, concerning the meaning of “income” as adopted in Montgomery, was later cited with approval in Federal Commissioner of Taxation v McNeil (2007) 229 CLR 656, at [21] (Gummow ACJ, Hayne, Heydon and Crennan JJ).

80    Sir Frederick Jordan’s statement in Scott and contemporary judgments of the High Court concerning the meaning of income have been the subject of a helpful and thought-provoking analysis by Associate Professor Mark Burton of Melbourne Law School in his article, ‘Interpreting the Australian income tax definition of ‘ordinary income’: ritual incantation or analysis, when examined through the lens of early twentieth century linguistic philosophy?’ (2018) 16(1) eJournal of Tax Research 2. In truth, however, and with respect, it is possible to over-analyse that statement.

81    In terms of ready comprehension and public administration, concept-based drafting has much to recommend it over highly prescriptive drafting. Sir Frederick Jordan’s statement in Scott, like Justice Pitney’s statement of principle in Eisner v Macomber, is nothing more or less than a well-intentioned judicial endeavour to assist in the understanding of an ordinary English word expressing a concept. To expect greater precision of explanation is to engender an exasperation similar to that pregnant in Justice Potter Stewart’s statement in Jacobellis v. Ohio, 378 U.S. 184 (1964) to describe his threshold test for what constituted obscenity, at 197:

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [“hard-core pornography”]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

82    That does not mean that what constitutes income under ordinary concepts is a matter of subjective whimsy. For it is quite clear that the subject is one for objective determination: Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 (Hayes), at 55 (Fullagar J). Nor, with respect, does it mean that the meaning of income under ordinary concepts is “buried in the cases”: cf, writing extrajudicially, The Hon R S French AC, ‘Law – Complexity and Moral Clarity’ (2013) 40(6) Brief 25. Rather, cases offer endeavours of the kind mentioned and examples of whether, on particular facts, a payment falls within or outside the meaning of an ordinary English word expressing a concept.

83    Whether an amount is income under ordinary concepts depends upon its quality in the hands of the recipient: Scott v Federal Commissioner of Taxation (1966) 117 CLR 514, at 526 (Windeyer J); Hayes, at 55 (Fullagar J); Federal Coke Co Pty Ltd v Federal Commissioner of Taxation (1977) 34 FLR 375, at 402 (Brennan J, as his Honour then was). The motive of the person making the payment is not necessarily irrelevant, but it is not determinative: Hayes, at 56 (Fullagar J).

84    The source of the payments to Rene was income derived in Vanuatu by Mrs Leong from the conduct of the ABM business. But “[i]t is … wrong to assume exact congruence between the character of a sum when received or paid by one taxpayer and its character when received or paid by another”: Montgomery, at [99] (Gaudron, Gummow, Kirby and Hayne JJ). Indeed, to describe Mrs Leong as a “taxpayer” requires clarification. On the evidence, there is a ‘value added tax’ in Vanuatu, which is paid by her business, but no income tax. Thus, the fact that the payments concerned came from income in Mrs Leong’s hands does not mean that they have that quality in Rene’s.

85    The Commissioner’s case that the payments were returns in respect of an ownership interest by Rene in the ABM business fails on the facts. So, too, does an alternative submission that they were payments in the nature of a return for services rendered. It was, I apprehended, also submitted that some of the payments were in the nature of rent in respect of sites in which, directly or indirectly, Rene had an interest. On the facts, none were. Neither were the payments in the nature of a pension in respect of past services to the ABM business. They were not income in Rene’s hands in any sense. They were just gifts of capital voluntarily made by a loving sister who has an acute sense of family loyalty and responsibility and who has enjoyed good fortune in business for Rene, a loved brother respected for his business judgement and like sense of family loyalty and responsibility, to invest as he saw fit and to draw upon personally if he saw fit.

86    More particularly, none of the payments was in the nature of an ex gratia payment to a former employee: cf Federal Commissioner of Taxation v Blake [1984] 2 Qd R 303. Nor was Rene a “remittance man” supported in a foreign land by a stipend from abroad, a forlorn example of whom is described by Judith Wright in her poem of that name. The sums sent are, objectively, inconsistent with such a conclusion on the evidence.

87    During submissions, a point made for the Commissioner was that the income tax legislation is agnostic in terms of what is or is not income under ordinary concepts. In relation to the meaning of “income” this is, unquestionably, true. That meaning does not vary according to cultural or family values. But whether, on particular facts, a sum received or paid by direction is income may fall for determination against taxable facts which reveal that the character of the payment in the hands of the recipient is a gift, because the occasion for its payment is wholly explained by a cultural or family norm, not an income producing activity.

88    There is nothing unique to this case about such a phenomenon. For example, if by good fortune they can, many parents give money to children for a home deposit, grandparents give money for treats or extra clothes for grandchildren, sometimes for school fees. All this occurs as a matter of routine according to available financial resources and by reason of natural love and affection. Sometimes such payments may be a one-off, sometimes they may be made in varying amounts for years. Periodicity of receipt is an imperfect touchstone for whether a payment is income in the hands of a recipient. The ITAA 1997 does not bring to tax every receipt of money from a third party.

89    My role is not to critique an objection decision but rather to determine, having regard to the evidence adduced and the onus of proof mentioned, whether assessments have been proved to be excessive and what the assessments should have been. However, the longstanding practice in taxation appeals is that the objection decision, related reasons and material before the Commissioner is transmitted to the Court upon the filing of a notice of appeal. Hindsight can of course lend a certainty to that which is conjectural in prospect. Even so, and while I do not doubt that the objection decision was made in good faith, to read the reasons in light of what even then, had been placed before the Commissioner by or on behalf of Rene is, with respect, to read an uncritical rehearsal of cases divorced from an understanding of a family reality and a related absence, save for interest, of an income tax liability. The importance in taxation administration of open-mindness and detachment from assessment in decision-making in respect of objections cannot be over-emphasised.

90    What follows is that Rene has discharged his onus of proving the assessments to be excessive. None of the payments constituted income under ordinary concepts. The objection decision must be set aside. In lieu thereof, the objection must be allowed and Rene falling for assessment in the relevant period on the footing that his assessable income during the relevant period constituted the amounts of interest derived by him. It consequentially follows that related penalties are excessive.

(emphasis added)

This song – written by Lady Gaga, Andrew Wyatt, Anthony Rossomando and Mark Ronson, and produced by Gaga with Benjamin Rice – falls to be heard three times in the 2018 film ‘A Star is Born’.

The song is performed by Bradley Cooper and Lady Gaga.  The most prominent part of the movie where it was performed  – pictured in the YouTube link below – is when Cooper’s character, Jackson Maine, invites Gaga’s character, Ally, to perform it on stage.  The scene was filmed at the Greek Theatre in Los Angeles.

The song was a critical success.  It topped the charts in more than 20 countries.  Its accolades include the Academy Award for ‘Best Original Song’.

The piece has been described as ‘slow-burning rock’.  The listener should anticipate, and then appreciate, Gaga raising the rock tempo about half way through ‘I am off the deep end, watch as I dive in, my feet won’t reach the ground…’.  The change is quite thrilling.

The lyrics are quite outstanding, including the recognition of addiction:  ‘In all the good times, I find myself longing for change, and in the bad times, I fear myself’.  Such lyrics fall for reflection in the context of the movie which focuses on each of ascent to, and descent, from stardom, with the vicissitudes thereof.

The film was also watchable, although the writer fondly remembers the 1976 version staring (the recently deceased) Kris Kristofferson, and Barbara Streisand.

The principal source of the above material is Wikipedia.

The link to the song is here.

The musical ‘Chicago’ has been performed on stage for many years but in 2002 it was made into a movie.  The principal actors were Catherine Zeta-Jones, Renee Zellweger and Richard Gere.  This particular song ‘We Both Reached for the Gun’ – the youtube visual and audio clip of which is below – is a catchy, and highly visual piece.  It is performed in the movie at a point where the heroine Roxie Hart (Zellweger) is engaging with media in an effort to exonerate herself from a charge of the shooting murder of her lover.  Her corrupt lawyer Billy Flynn (Gere) is manipulating this media endeavour, in effect putting words in her mouth; hence the depicted faux puppetry.

How much of the performance was sung by Gere and Zellweger is not clear, but I note, from research, that the principal vocalists are credited as Chrstine Baranski – the ‘older’ women depicted in the video at several points – Cleve Asbury, Shaun Amyot, Rick Negron and Taye Diggs.  The well-credentialled Baranski – who plays the role of journalist Mary Sunshine – later played a lead role in the movie version of the musical ‘Mamma Mia’.

Despite the movie being released in 2002 – to significant acclaim and award – remarkably 22 years later, in August 2024, the song found its way back into the TikTok Billboard Top 50.

Enjoy!

The principal source for the above is an article by Hugh McIntyre in Forbes business magazine of 21 August 2024.

The YouTube clip is here.

Stefani Joanne Angelina Germanotta – known professionally as ‘Lady Gaga’ – is an American singer, songwriter and actor.  She was born on 28 March 1996, so is now 38 years of age.

Her breakthrough as a first rank performer came with her 2008 debut studio album, ‘The Fame’, and its number one singles ‘Just Dance’ and ‘Poker Face’.  Her five succeeding albums all debuted on top of the US Billboard 200.

Her achievements include 13 Grammy Awards, 2 Golden Globe Awards and 18 MTV Video Music Awards.  In 2010 and 2019 Time magazine named her as one of the 100 most influential people in the world, and on top of their all time 100 Fashion Icons List.

The source for the above is Wikipedia – the free encyclopedia.

In late September 2024 Lady Gaga released her latest album ‘Harlequin’, a companion album to her film ‘Joker:  Folie a Deux’ in which she stars as the troubled harlequin Harleen Quinzel.  The film is due for release in February 2025.

The initial release from the album was ‘The Joker’.  The song has a long history, being the leading number from the 1964 musical ‘The Roar of the Greasepaint – The Smell of the Crowd’.  Lady Gaga’s version marks her return to pop music, and bears the hallmarks of a rock operatic arrangement, ‘complete with electric guitar and a punkish growl in her voice’.

The source for the above on the new album is the New York Times column ‘The Amplifier’.

The reader would do well to listen to the entire ‘Harlequin’ album – in addition to the ‘The Joker’ music clip below – and also patronise the forthcoming movie.  Lady Gaga – as she has proved with her songwriting, performance and, in more recent times acting – is an outstanding international talent.

The YouTube link to ‘The Joker’ is here.

Welcome to the September Quarterly Issue of Hearsay

In this issue, the lead article – “Jury Misconduct – What Exactly Are They Getting Up To?” – is penned by Jeffrey Hunter KC, leading criminal counsel and former chair of the Bar Association’s Criminal Law committee. Jeff identifies the occasional idiosyncratic – and often brazen – conduct of jury members, in particular in their illicit use of the internet, social media and AI to discharge their task. He examines the similiar experiences encountered in Australia, the UK and the US. He lauds, nonetheless, the fundamental importance of the jury in the administration of criminal justice.

In the piece “Goodnight and Good Luck! – A Tribute to Retiring Counsel”, Hearsay celebrates the careers of barristers who have recently retired, many after illustrious careers though not serving as judges. As a tribute to all bar retirees, exemplifying their collective contribution to the system of justice, individual valedictories are penned by bar colleagues in respect of Robert Bain KC, Mal Varitimos KC and Chris Newton respectively.

“Ten Minutes with …” sees Hearsay in conversation with the recently retired the Honourable Philip Morrison KC. Philip shares with readers his passage from a Gold Coast teenage surfer – but reader of Homer’s Iliad and Odyssey – to Court of Appeal stalwart and now retiree horse rider.

John McKenna KC and Paul O’Brien write concerning “Appearing in the High Court”, with a focus on the recent decision in Metal Manufactures Pty Ltd v Morton.

In the piece “Crypto (& other Bros) –Navigating Storms in the Scammers’ Paradise”, Andrew O’Brien writes of regulatory intervention in cases of alleged fraud involving use of cryptocurrency as the financial medium.

The Regional Bar section – contributed this issue by Philip Theobold, long of the Queensland Bar and now of the New South Wales and Tasmanian Bars, and Peter Woods of the Queensland Bar – waxes lyrical about Queensland barristers, in federal and state jurisdictions, appearing across the Tweed in Northern New South Wales. Philip reminisces of the early incursion of the Queensland barristers and Family Court judges after 1975, in dispensing family law services to our southern state neighbour. Peter includes a useful “how to” guide for those briefed in NSW in personal injury cases.

The Reviews and the Arts section – edited by Stephen Kiem SC – contains a substantial range of reviews of books, a legal practitioner theatre production and recently released songs (including Norah Jones, no less).

A raft of other learned articles and case reviews on topics which will be of close interest to practising barristers, judges and other lawyers may be found in this issue in the regular Advocacy, Professional Conduct and Practice and Words from the Past sections, along with the usual bits of bar sporting and other fun – including the antics of Hearsay’s resident pooch “Mintie”, and her mates – in the Inter Alia section.

I thank the Hearsay editorial team – volunteer barristers and Dianne Lyndon of the Bar Association – for their dedication in identifying, and bringing to print, material for the reading pleasure of barristers, judges, solicitors and the general public. I thank also our many contributors; without you we would not exist.

Enjoy!

Richard Douglas KCEditor

I do request your contributions to the deputy editor, editorial team or me (T: 3218 0620; M: 0417 788 713; E: douglas@callinanchambers.com).

The deputy editor is John Meredith (T: 3218 0650; M: 0403 278 585; E: jmeredith@callinanchambers.com).  The sub-editor is Stephen Kiem SC (T: 3229 0381; M: 0433 846 518; E: s.keim@higginschambers.com.au) who edits the Reviews and the Arts section.

The other members of the editorial team are counsel Philip O’Higgins KC (T: 3232 2122; M: 0417 997 725;  E: philip.ohiggins@carbolic.com.au), Carolyn Conway (T: 3229 2631; M: 0407 757 780;  E: conwaycj@jeddart.com) and Seraphina Noble (T: 3210 6537; M: 0447 224 754;  E: snoble@qldbar.asn.au).

Editorial responsibility – including any decision taken whether or not to publish any item contributed or identified – lies with me.

Norah Jones – born 30 March 1979 – is an American singer-songwriter. Instrumentally, she is a pianist and plays acoustic and lead guitar. Billboard Magazine named her the top jazz artist of the first decade of this millennium. She launched her solo career in 2002 with the release of the album ‘Come Away With Me’. Such release earned Jones five Grammy Awards, including ‘Album of the Year’ and ‘Best New Artist’.

Jones released a raft of fine albums after 2002. Her most recent is ‘Visions’, released in 2024.

Born Geethli Norah Jones Shankar, Jones is the daughter of the noted Indian sitarist and composer Ravi Shankar. She has long enjoyed a particular affinity with the music of jazz and swing singer Billie Holiday. Her music and performance are redolent of same, but fashioned by contemporary influence and instrumentation.

‘Staring at the Wall’ – part of the ‘Visions’ album – is a collaboration by Jones with music producer and instrumentalist Leon Michels. It was co-written by Jones and Michels and features Jones on vocals, guitar and piano and Michels on bass, drums and tambourine.

I am a fan of Norah Jones, but for most people ‘Staring at the Wall’ will prove easy listening music. If you play it once, you will play it again! The piano and percussion, in particular, are euphonious. The lyrics also are an attractive reflection of life experience.

The YouTube link is here:

Jimmy Buffett – born James William Buffett on Christmas Day 1946 – died about a year ago on 1 September 2023, at age 76. He was an American singer-songwriter and was known for his “tropical rock sound”, which – according to Wikipedia – “portrayed a lifestyle described as ‘island escapism’ and promoted enjoying life and following passions”.

While a prolific songwriter – the writer’s favourite is “Margaritaville”, released in 1977 – he continued during his long life to release many songs. He was a fine musician, lyricist and singer.

In August 2013 Buffett released “Songs from Saint Somewhere”. The featured song “Oldest Surfer on the Beach” – in fact – was written by Mark Knopfler (of Dire Straits fame, and only 4 years younger than Buffett), and he plays guitar in the released version.

The song title will appeal to the large number of surfers at the Queensland Bar.

The YouTube version of the song – with a very attractive album cover – is to be found below.

There is a short list of collective nouns for barristers:

1. A “boast” of barristers.
2. A “wiggery” of barristers
3. A “bar” of barristers.
4. A “chamber” of barristers.

Each has a plain origin, alluding to the practices and trappings of counsel. The first two, undoubtedly, are redundant. The last two are part of modern idiom.

For barristers of the rank of silk, the collective noun is a “purse” of silks. This was derived, apparently,  from expensive women’s purses – in the late nineteen century – being manufactured from silk.

Barristers are known to gossip.  The germane collective noun is a “gaggle” (also a “dish”) of gossips.  This has its genesis in the Harley Manuscript of the early fifteenth century, the allusion being to cackling geese.

As to barristers involved in criminal prosecution, “An Exaltation of Larks;  the Ultimate Edition” by James Lipton (Penguin, 1993) identifies – at page 240 – the collective noun as a “presumption” of prosecutors.

There is a raft of collective nouns for lawyers:

1. An “eloquence” of lawyers.
2. An “argument” of lawyers.
3. A “disputation” of lawyers.
4. A “greed” of lawyers.
5. A “huddle” of lawyers.
6. A “quarrel” of lawyers.
7. An “escheat” of lawyers.

The first of these harbours the strongest historical foundation, albeit now – like the others – is redundant.  It has its genesis in the 1486 “The Book of St Albans”.  In “An Unkindness of Ravens – the Book of Collective Nouns” by Chloe Rhodes (Michael O’Mara Books Limited, 2014) a further explanation of such origin – referable, plainly, to lawyer advocates – is furnished:

By the fourteenth century the four Inns of Court – the Inner and Middle Temples, Lincoln’s Inn and Gray’s Inn – had been founded in London to provide formalised training for lawyers.  By the end of the fifteenth century pleaders had come to be called barristers and a structured system of education in the law was in place. Students would spend 7 years at the Inns of Court, studying, attending lectures and watching established pleaders at work, absorbing both the ethos of their profession and the discursive arguing style it is known for to this day.  With the success of their career depending entirely upon their ability to convince a judge of their point, eloquence was the most important attribute a lawyer could have.

Mediation is a modern sphere of practice for lawyers. The germane collective noun – harbouring plain origin – is a “compromise” or a “caucus” of mediators.

Ms Rhodes goes on to refer to the collective noun of a “sentence” of judges.  She attributes that – at pages 42-43 – to the the appointment of assize judges in the twelfth century, such judges perceived as being harsh in the sentences they delivered, ranging from a stint in the stocks to public execution.  The modern noun is a “bench” of judges.

The Book of St Albans is also identified by Ms Rhodes – at pages 23-24 – as the genesis of the collective noun for jurors:  a “damning”.  Such Book identifies same by the language “a dampnying of jourrouris”.  A “damning” verdict by a jury was one that found the person charged guilty of the crimes the subject of charge.  The word comes from the old French word “dampner”, in turn from the Latin “damnare”, meaning to injure or condemn.  Ms Rhodes writes:

… [I]n the God-fearing Middle Ages, it implied that your crimes made you worthy [only] of eternal damnation.

The modern noun is a ”panel” of jurors.

A group of court witnesses is a “legion”, “stare”, “stand”, “oath” or “blessing” of  witnesses.

There is but one collective noun for lawyers’ clients that the writer’s research can locate:  a “moan” of clients. The less said about that the better!

The collective noun for those in court custody, or criminally convicted, is a “pity” of prisoners. So much is derived from the book “The Hors, Shepe and the Ghoos”: Mr Lipton at page 83. In modern mores, it would be a “dock” or “cell” of prisoners.

Mr Lipton – at page 240 – identifies the collective noun for acquittals is a “deliverance” of acquittals. This was founded, he writes, in bygone UK criminal practice exchange between court clerk and prisoner, whereby in response to the prisoner formally declaring they wished to be tried “By God and country”, the clerk responded “God give you a good deliverance”.   

Finally, as to those involved in the service of legal process, Mr Lipton – at page 83 – identifies a “shadow” of  process servers.

In the premises, the writer ventures that the collective noun for legal practice collective nouns ought be a “judgment”.