Author: Steven Runciman

Publisher: Cambridge University Press

Reviewer: Stephen Keim

In 2016, for various reasons, D and I found ourselves, with four other people, spending eight days in a house in Calatabiano in eastern Sicily. For various other reasons, I have since felt an obligation to gain some knowledge of the history and literature of that much invaded island.

One of my more knowledgeable friends on that part of the world referred me to this famous 1958 text by this even more famous historian. Steven Runciman was born in 1903. His parents were Liberal MPs and the first married couple to sit in the British Parliament. Runciman’s mastery of texts published in many different languages was foreshadowed by his ability to read both Latin and ancient Greek when he was five years old. He is most famous for his A History of the Crusades published in three volumes across 1951-1954. Runciman is said to be single-handedly responsible for the modern public understanding of the Crusades as something other than a glorious, holy and selfless set of campaigns to free the Holy Lands from the tyranny of the godless people who occupied it. He was a contemporary and school mate of George Orwell at Eton.

Importantly, A History of the Crusades is said to have been so influential, not so much for Runciman’s extraordinary learning in the subject matter, but for the beautiful and stylish manner in which he tells the story which emerges from that learning. That ability to write beautifully is present, also, in The Vespers.

The Sicilian Vespers is an event, not a prayer. On Easter Monday, 30 March 1282, an incident occurred outside the Church of the Holy Spirit on the outskirts of Palermo (now, the capital of Sicily) where worshippers were engaged in Easter celebrations and waiting for the sunset prayers known as the Vespers, to commence. Sicily, at the time, suffered under the oppressive government of a largely absentee King Charles, a brother of the French King, Louis, and a scion of the House of Anjou. Some French soldiers had mingled with the celebrating local worshippers.

The oral tradition remembers the name of the French sergeant, Drouet, who sought to impose himself on a local married woman before her angry husband drew a knife and killed him. Sergeant Drouet’s colleagues sought to intervene and were surrounded by a group of armed Sicilian men who imposed the same fate upon them as had been received by their friend, the sergeant.

The incident triggered a planned uprising and, as the bells for Vespers rang, messengers ran through the city calling on the men of the city to rise up. Every French person encountered was attacked and, over ensuing weeks, over 3,000 French people, across the island, died. The uprising spread and Sicily was liberated, at least for the moment.

That is the short story but Runciman’s narrative places the Sicilian rebellion in the context of medieval European history. Sicily had become a Norman kingdom from about 1091. Although this was achieved by conquest, the Norman kings ran a successful, multi-cultural society and, for a century, Sicily experienced a golden age. On the death of William the Good in 1189, although a period of turbulence ensued, Sicily, through marriage and the lack of a direct male heir, passed to the German house of Hohenstaufen which had produced a number of Holy Roman emperors. The real story of the Vespers starts with the death, on 13 February 1250, of Frederick II, son of Sicilian born native, Queen Constance, son of Henry of the house of Hohenstaufen, King of Sicily but, also, Emperor, King of Germany and of Jerusalem, and hated enemy of the papacy.

It was an illegitimate son of Frederick II, Manfred, who came out on top of the pile of uncertainty that was left by the Emperor’s death. He was crowned King of Sicily (which included most of southern Italy as well as the island) on 10 August 1258. The antipathy of the popes to the Hohenstaufen line had not diminished. It was a French churchman who, as Pope Urban IV, had offered to Charles of Anjou, brother of the King of France, the right to become the King of Sicily. In late June, 1263, Charles accepted the offer. He assembled an army; marched them to Italy; and, on Friday, 26 February 1266, at Benevento, destroyed the army of Manfred who died in the battle.

It was Charles’ administration, run by mainly Provence and mainland Italian officials, against whom the Vespers rebellion took place. The rebellion succeeded in freeing the whole island. With help from the King and Queen of Aragon (the Queen, another Constance, was a daughter of Manfred), Charles’ attempts to regain Sicily were successfully resisted. The loss of Sicily led to trouble, elsewhere, for Charles and he lost battles all over his dominions, both at sea and on land. His health deteriorated and, on 7 January 1285, nearly three years after the Vespers uprising, he died at Foggia.

The Sicilian experience, post the uprising, took many twists and turns and the major players, heads of state and popes, made deals which did not have the interests of the Sicilian people at heart. The islanders’ fierce sense of independence led them to refuse to be governed by anyone other persons who were connected to the island and who were approved by them. First, under the said Queen Constance, born in Sicily and married to the King of Aragon, and then under her son, James, and her other son, Frederick, they managed to retain their independence.

This period of independence lasted for over a hundred years until 1409 when, by succession, Sicily became joined to Aragon and, subsequently, to Spain.

The Sicilian Vespers is fascinating just considered as a Sicilian story. The fundamental point that Runciman makes, however, is that, when the Papacy decided to intervene by inviting a French noble to rule much of Italy, it undermined the era of Christian universalism and its own ability to provide leadership to Christians. At the same time, it helped to usher in the fragmenting influence of nationalism. The success of the Vespers uprising helped show the bankruptcy of that papal strategy.

However one wants to envisage the Sicilian Vespers events, Runciman’s narrative and analysis comes embedded within the beautiful style of writing for which he is famous. The Sicilian Vespers, despite the detailed nature of the events which are traversed, is a pleasure to read.

Albeit, in retrospect, Palermo, Cefalu, Messina, Catania and, even, Calatabiano, itself, take on new meaning for me. Albeit, in small steps, I am coming to some understanding of the rich past that Sicily carries with it and offers to any visitor.

Stephen Keim

A story of honour, religion and the perfect cassata

Author: Brian Johnston

Publisher: Allen & Unwin

Reviewer: Stephen Keim

Just over 5 years ago, in the dying days of 2011, D and I, accompanied by various family members undertook our first overseas trip. Our son, S, was marrying B, a native of Ciudad de Mexico. The wedding was to be in the old Spanish colonial city of Queretaro. We broke our practice of not leaving our native shores for this good reason and, as well as attending the wedding, spent five weeks visiting different parts of Mexico.

The experience of not knowing anything about the country I was visiting changed my reading habits. When I came back, I felt strong a strong desire to learn about Mexico’s history and literature and, bit by bit, I came to learn a little about these things.

Nearly five years later, a confluence of events overcame another of our practices and D and I set out for five weeks in and around London. A little over a week of that time was spent exploring Sicily , a place that has important heritage significance for three of our grandchildren and, hence, for us.

Thus, I feel a similar obligation to direct some of my reading time to an attempt to gain some understanding of Sicily’s complexity.

The guidance of friends led me to classical texts such as Books 6 and 7 of Thucydides’ History of the Peloponnesian War , enlightening me to the fact that a large part of that ongoing conflict between Athens and Sparta took place on the island of Sicily which was, at that time, a significant part of Magna Graecia .

The same friends led me to Steven Runciman ’s famous 1957 history of a 13th century war: The Sicilian Vespers and to Peter Robb ’s 1996 classic, Midnight in Sicily . I had made the necessary trips to Folio Books (to order and to collect the books) and my 2016/2017 holiday reading plans appeared to be settled.

Then, in a small gap in that period of housecleaning, weed removal, present wrapping and cooking that fill the days before Christmas Day, D and I stopped for breakfast at Simply Duo in Nundah. On the way back to the car, I did what I never do, namely, browse at the second hand books at the Lifeline store next to the café. Amongst the abandoned best seller thrillers, I saw Sicilian Summer, yet another book on Sicily. How could I go past it? I felt guilty only paying $2. And to assuage my guilt, Sicilian Summer was the first book I read once the bustling social interaction of Christmas Day was over.

Mr. Johnston was born in Nigeria of Irish parents. He is now a very much established travel writer having published several books and regularly contributing travel stories to mainstream media and publishing two travel blogs. He broke into travel writing by abandoning his day job as an editor and copy writer for international environmental NGOs in Geneva, Switzerland, and heading out to Chengdu in Sichuan province in the People’s Republic of China where he taught English as a foreign language at University Sichuan. Three years in Sichuan Province produced a 1996 memoir called Boxing with Shadows. Mr. Johnston’s career as a travel writer was up and running. He has been based in Sydney for at least the past decade.

Sicilian Summer hit the presses in 2005. Mr. Johnstone’s forty year old female friend, Tina Calascione, is going back to her home village to preside at the confirmation of her godchild, Claudia, whom she hardly knows. Both friends seem able to negotiate a degree of flexibility with their employers. Sicilian Summer does not provide absolute precision on dates but the stay in Sicily allows plenty of time to explore the island as well of plenty of idle days to enjoy cooking, eating and sightseeing in the home village of Montalto. From balmy picnic days at the beginning of the stay to blazing heat; the discomfort of the hot Sirocco wind; to the tomato bottling days of late summer/early autumn, Sicilian Summer seems to traverse at least the full three months of a calendar summer.

We do not know for sure the location of Tina’s home village. Montalto is a made-up name to protect the citizens of the village about whom Mr. Johnston records many frank observations and about whom he records many equally frank comments on their personality, life and family relationships . Hints from the text suggest, however, that the village is located in eastern Sicily, probably, a little east of Messina, and facing the northern shore of the island from a slightly elevated position.

Tina’s family are returnees, a status met frequently in Sicilian villages. Although born in Montalto, she spent a number of her formative years in New York where her father ran a pizza restaurant and her mother a number of successful driving schools. While was been in other places, including her present abode of Sydney, her parents heard the sound of their own homesickness and returned to Montalto. She is not close to her parents and her sister, her only sibling, is also estranged. Coming home to do her duty as godparent is a rare and unlikely event. Spending time in the same house as her parents is an unfamiliar pastime. And playing a role in the Catholic ritual of confirmation is something to which Tina is only half reconciled.

Mr. Johnston uses the dynamics of the Calascione family as a framework for Sicilian Summer. The family dynamics are themselves portrayed within the broader social dynamics of village life and the impacts of the friendships and obligations that affect everyone. Sicilian Summer continually returns to the progress of the confirmation saga. Claudia is sulky. Tina’s mother is anxious. The local priest, Padre Perrino, is a real martinet and seems intent on frustrating the progress of the event. And Tina’s father’s frustration and anger at the latest events borders on violence. Progress is glacial which allows Mr. Johnstone and Tina to escape to all regions of Sicily to serve the greater purposes of Sicilian Summer.

Sicilian Summer is purportedly a cooking travel book. This is seen in the witty reference in the sub-title to the perfect cassata. As Mr. Johnston and his companion travel to different towns and cities, they enjoy varieties of food which constitute different regional specialties. The sightseeing in which they engage tends to reflect the deeds and influences of one or other civilisation or empire that has ruled all or part of Sicily during its long history of invasions and colonisation. Remarkably, many of these influences are reflected in the dishes that are being enjoyed. Mr. Johnston has cleverly organised his travel so that he can describe the sites that they are visiting and chronicle important parts of Sicily’s history while, at the same time, chronicling the history of food and cooking, not only in Sicily, but through Sicily’s contribution, the history of western cuisine and foodstuffs. His thesis is summed up as: “Sicily is an island of fabulous foods, and you can read its dishes the way a gypsy reads tea leaves and discover its troubled past of conquerors and curious civilisations”.

And, so, having walked, at apparent great danger to their lives at night on the upper slopes of the Aeolian island volcano, Stromboli, the adventurers spend time with Tanino, some kind of cousin to Tina, at his home on the neighbouring island of Vulcano. After having discussed the shortcomings of Plato’s lack of appreciation for good food, Tanino and Brian wander down to the rocks and eat fresh sea urchins with bread dipped in olive oil poured into a convenient rock crevice. This allows Mr. Johnston to discuss the early occupants of northern Sicily, the Lipari, via a discussion in the writings of fourth century BC Greek Sicilian, Archestratus , of the excellent quality of shrimp and lobster obtainable in the Aeolian Islands.

Another trip is to the capital, Palermo, located away in the north-western corner of Sicily. Mr. Johnston discusses, as part of a theme to be oft-repeated in his observations of towns and cities right across Sicily, the ramshackle, decaying and neglected face of Palermo. Palermo was the capital of the Arab invaders of the ninth century but also of the Norman invaders of the eleventh century. A visit to the Palatine Chapel, the private chapel of the Norman kings of Sicily and to the cathedral built by William II (the Good) at Monreale, in the hills outside Palermo, allows a discussion of the extent to which the Normans managed to retain the best of Arab culture and influence and skilled personnel under their rule and to use the talents of some of those Arab craftsmen in their architectural successes. This leads to two delicious meals of pasta in two different locations in Palermo which, in turn, segue to a debunking of the theory that Marco Polo brought the idea of pasta back from China when he finally returned from his great journey.

Rather, it seems, pasta emerged in Sicily during Arab rule and thrived as part of the continuing Arab influences that the Norman kings managed to preserve. The Arabs also brought sugar cane and oranges and lemons to Sicily and thence to the west along with many other foods we now regard as staples.

Thus, Sicilian Summer proceeds. Visit, sights, food, history and influences are woven together. Agrigento, Enna, Noto and Syracuse are a few of the localities visited. Along with the Arabs and the Normans, the Greeks, the French, the Spanish, the Byzantines and the convents and priories of Christianity are given a place in the history of Sicily and the history of food. Not everything visits neatly into the itinerary. Late in the book, when townships in the south-east are the focus of discussion and sightseeing, Sicilian Summer discusses Sicily’s great contribution to the history of ice-cream. We then find out that, back in the early Sirocco days, in Palermo, Tina had been insisting on at least a daily gelato to ameliorate the stifling heat that that breeze brings to everyone in its path. No matter, we can hardly expect life to reflect with perfect neatness the careful structure of a travel book.

And, all the way, the complications affecting the planned confirmation reveal the complexities of modern Sicilian culture, society and personality. We find that even sophisticated returnees are tied to expectations of daily intervention by Saints and Virgins and members of the Holy Trinity. The consolation of religion seems to be often necessary because, in Sicily as elsewhere, life has a will of its own and displays a pattern of failing to live up to the hopes and expectations of those who are doomed to live it.

But life also has its own consolations outside the superstitions of religion. And, in Sicily, at least, according to Sicilian Summer, that often involves food and conviviality.

For me, Sicilian Summer was an unheralded addition to my summer reading. It provided, with liveliness and engagement, a level of understanding of the complexities of Sicilian life and history that I had not achieved in my own short stay.

Stephen Keim

By Richard Douglas QC

Those engaged in vocations affording specialised services would covet being characterised as a “professional”. The primary reason for that, no doubt, would be the cachet attracted by such mantle. In addition, perhaps cynically, such descriptor may serve to amplify the fee for service.

The attraction of that descriptor is also important for a number of legal reasons. Four come readily to mind.

First, the Competition and Consumer Act 2010 (Cth), albeit without defining “professional”, utilises the term in two respects:

• in s 4 concerning general interpretation of terms, and s 95A concerning interpretation pertaining to price surveillance, the definition of “services” includes those:

… provided, granted or conferred under … a contract for or in relation to … the performance of work (including work of a professional nature), whether with or without the supply of goods …

• in s 6, in extension of the application of the Act to persons who are not corporations, with some exceptions, it is provided:

… a reference in those provisions to a thing done by a corporation in trade or commerce included a reference to a thing done in the course of professional activities of a professional person.

Second, the Civil Liability Act 2003 (Qld) – while in s 20 defining “a professional” unhelpfully as meaning “a person practising a profession” – goes on in s 22 1 to provide, with some exceptions:

A professional does not breach a duty arising from the provision of a professional service if it is established that the professional acted in a way that (at the time the service was provided) was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice.

This provision entails enactment of a qualified version of the standard of care prescribed in the seminal decision of Bolam v Friern Barnet Hospital Management Committee. 2

Third, the Civil Liability Act, in making provision for proportionate liability in Part 2 of Chapter 2 thereof, provides in s 28(3)(b) for an exception to application in the instance of “a claim … by a consumer”. Section 29 defines “consumer”, inter alia, as meaning:

… an individual whose claim is based on rights relating to goods or services, or both, in circumstances where the particular goods or services … relate to advice given by a professional to the individual for the individual’s use, other than for a business carried on by the individual whether solely or as a member of a business partnership.

Fourth, in the sphere of insurance, the subject matter of “professional services” arises for construction, whether in the context of a policy insuring or exclusion clause. 3

So much begs the question; just who is a “professional”?

“Professional” — the authorities

Close to a century ago, in Bradfield v Federal Commissioner of Taxation,4 Isaacs J observed that the term “is not one which is rigid or static in its signification; it is undoubtedly progressive with the general progress of the community”.

Modern mores have taken the status of a “professional” beyond the learned professions, namely medical practitioners, lawyers, architects, engineers. More recently, such status, quite properly, has been accorded dentists, accountants, valuers, naval architects, patent attorneys, pharmacists, surveyors, geologists, veterinarians, agricultural (and other) scientists, investment advisors, stockbrokers, psychologists, physiotherapists, speech therapists and occupational therapists.

In the sphere of health, the Health Practitioner National Law,5 in s 5 thereof, affords a wide definition of “Health Profession”:

health profession means the following professions, and includes a recognised specialty in any of the following professions—

(a) Aboriginal and Torres Strait Islander health practice;

(b) Chinese medicine;

(c) chiropractic;

(d) dental (including the profession of a dentist, dental therapist, dental hygienist, dental prosthetist and oral health therapist);

(e) medical;

(f) medical radiation practice;

(g) nursing and midwifery;

(h) occupational therapy;

(i) optometry;

(j) osteopathy;

(k) pharmacy;

(l) physiotherapy;

(m) podiatry;

(n) psychology.

This statutory prescription ought, at least, inform the “professional” character of such vocations.

In Durant v Greiner, 6 a politician was found to be a professional for the purpose of the Fair Trading Act 1987 (NSW). That finding, with respect, is surprising given that the only qualification is lawful election to office.

In Prestia v Aknar,7 Santow J8 considered a raft of authorities from the United Kingdom and Australia in the context of what constitutes a “professional activity” in state legislation bereft of any definition thereof:9

One might essay a working definition of these terms. This would embrace intellectual activity, or manual activity controlled by the intellectual skill of the operator, whereby services are offered to the public, usually though not inevitably for reward and requiring professional standards of competence, training and ethics, typically reinforced by some form of official accreditation accompanied by evidence of qualification.

The term “professional activity” refers at least to particular activity which a member of a profession would characteristically carry out in that capacity and which is in fact so carried out by that member as such a professional. It may be that it thus excludes someone who carries out that characteristic activity pretending to be a professional but which is not. However, I do not have to decide that question. An example of the later would be an unqualified person who sought to carry out, for example, medical procedures. Of course if excluded from being a professional activity, the activity may still be business activity, depending on the facts.

Santow J observed that taxation consultants, brokers, teachers and mediators may be professionals, depending on how they organised and conducted themselves. By parity of reasoning, one would have thought tertiary teaching staff would also garner the “professional” mantle.

Plainly self-employment is not a prerequisite of professional status. With the exception of barristers, the modern professional often is a private or public sector employee.

Extended meaning

Most “blue collar” specialist vocations – eg, builders, electricians, plumbers, mechanics, ship pilots and marine masters – in addition to “white collar” specialist vocations – eg teachers, nurses (and midwives), insurance brokers, optometrists, chiropractors, osteopaths and podiatrists – are hallmarked by an extensive course of study in a tertiary institution or technical college, coupled with compulsory statutory registration founded upon the ubiquitous “fit and proper person” touchstone to garner and maintain registered status. The latter often mandates ongoing technical re-education.

It is submitted that each such “tradesperson”, for some or all purposes, ought enjoy the general law mantle of “professional”. As the authors of Charlesworth and Percy observe,10 the standard of care owed by a “learned” tradesperson has long been virtually synonymous with that of each of the said “learned” professions.

Necessarily there are limits.

Spooner-Hart Prosthetics v Jones11  is an example of an unsuccessful attempt to characterise a defendant as a professional advisor in circumstances where the apt character was no more than a “specialised technician”. That case turned on the precise content of the duty owed by that defendant where there were known necessary dealings with government authority for funding of the specialised service in question.

The same could be said of other quasi-specialised services, despite those in their ranks claiming their services to be, broadly speaking, “professional” in character.

Thus, for example, specialised equipment operators – eg crane drivers, long distance haulage drivers, heavy equipment operators – while undoubtedly highly skilled, requiring significant experience and assuming considerable responsibility for safety of person and property, are unlikely to attract the requisite characterisation. Similarly, the mantle is unlikely to extend to military, police or other public or private security personnel.

Further, in the sphere of insurance, a narrower approach is generally considered apt, apropos of the usual policy language of “professional services”. Subject to policy definition, that language is ordinarily confined to the mainstream modern professions, bereft of the abovementioned extended meaning.12 Recently, in Chubb v Robinson,13 the Full Court of the Federal Court was not satisfied that the moving party had proved that, in or about 2011, building project management was a “profession”, or that provision of project management services constituted the rendering of “professional services” within an exclusion in a D & O policy.

The faux professional

There are instances of a person purporting to practise as a professional, or expressing professional opinion, while in truth bereft of qualification or experience, or registration where required. The applicable principles appear to dictate that such a person will be found to owe a duty of care to the standard of care of the adopted profession.

In Pickering v McArthur 14 the defendant, a massage therapist, advised the plaintiff, his trusting client, to leave his wife. The plaintiff suffered psychiatric injury in consequence. Approving the first instance judge’s view that the application to strike out the claim ought be refused, Keane JA15 wrote:

[13] In my opinion, if it be the fact that the respondent (plaintiff) was persuaded by the applicant’s (defendant’s) claims of competence in the field of relationship counselling to act in reliance upon his advice, and such reliance was reasonable, then, if that advice was given without the reasonable care that might be expected of a person holding themselves out as qualified to give that advice, the respondent may have a good claim for damages for negligence if he suffered psychiatric harm as a result of acting upon the applicant’s advice.

[14] The respondent’s case may be said to involve a claim to remarkable gullibility and susceptibility on his part. It may also be said that the respondent’s allegations of assumption of responsibility and reliance tend to strain credulity. But, of course, the law of negligence protects the gullible as well as those who are astute to conserve their own interest. And these are arguments about whether the respondent’s allegations are true as a matter of fact.

In Timbs v Shoalhaven City Council,16 a large tree on the deceased’s land blew over on to his residence, and in turn onto the deceased who was sleeping. He was killed. The tree was the subject of an earlier tree preservation order, such that it could only be removed or cut with the consent of the defendant council. The deceased applied to the council to remove the tree. A council officer conducted a perfunctory examination of the tree and declared it safe. The deceased was advised that if he made any attempt to remove or prune the tree a fine would be imposed. In truth, the tree was unhealthy and, in consequence, unstable. The fatal incident then ensued.

It was held on appeal, apropos of a dependency claim by the deceased’s widow, that actionable negligence was proved, notwithstanding that there was no obligation in the council to declare the tree safe, and even though the examination of the tree actually conducted reasonably did not reveal it to be unsafe. The New South Wales Court of Appeal wrote (at [55]):

When the Council officer took it upon himself to express a positive view as to the safety of the tree, he was representing a capacity to do so based upon his expertise and experience. In those circumstances, the requisite standard of care required of him was higher than that of a layman. The inspector was not warranting the safety of the tree, but it was reasonable in the circumstances to expect of him that he would have made more than a cursory visual inspection. Like a general practitioner he professed a sufficient level of expertise to require him to make a reasonably informed diagnosis or to admit the need for referral to a specialist (arborist) before pronouncing and repeating his firm and positive opinion as to the safety of the tree.

If, in truth, a person purporting to act as a professional, either as a matter of routine or on a single occasion, bears the same standard of care as a true professional in that field, the cautious dictum Santow J expressed in the second paragraph of the above extract from Prestia v Aknar may be erroneous. That is, the argument would go, with the burdens ought come any benefits, including immunities afforded at common law or by statute. That issue remains moot.

Conclusion

The concept of who is a “professional” in modern commerce is fluid. Undoubtedly, the courts will address the issue with some caution. In the absence of statutory definition, much depends upon the fabric of the legislation or commercial instrument (eg insurance policy) under consideration.

As in other areas of the law, an incremental approach is likely to be adopted in construing who is to be ordained with such vocational mantle.

R J Douglas QC

Footnote

[1] Analogues of this provision, with some variation, are to be found in each Australian state, but not the territories.

[2] Bolam v Friern Barnet Hospital Management Committee [1957] 2 All ER 118; [1957] 1 WLR 582; see also Bolitho v City and Hackney Health Authority [1998] AC 232.

[3] Chubb Insurance Company of Australia Ltd v Robinson (2016) 239 FCR 300, where the case law is reviewed and exemplified in operation.

[4] Bradfield v Federal Commissioner of Taxation (1924) 34 CLR 1 at 7.

[5] in Queensland, adopted in the Health Practitioner Regulation National Law Act 2009 (Qld).

[6] Durant v Greiner (1990) 21 NSWLR 119 .

[7] Prestia v Aknar (1996) 40 NSWLR 165 ; see also Shahid v Australasian College of Dermatologists (2008) 168 FCR 46 at [192].

[8] Subsequently Santow JA of the New South Wales Court of Appeal.

[9] Prestia v Aknar op cit at 186.

[10] “Charlesworth and Percy on Negligence”, 12th Ed, Sweet & Maxwell, London, 2010 at [9-02].

[11] Spooner-Hart Prosthetics v Jones [2005] NSWCA 2.

[12] Chubb Insurance Company of Australia Ltd v Robinson (2016) 239 FCR 300 at [162]-[166].

[13] Ibid at [162].

[14] Pickering v McArthur [2005] QCA 294.

[15] Now Keane J of the High Court of Australia.

[16] Timbs v Shoalhaven City Council [2004] NSWCA 81; High Court special leave refused 4 March 2005; see also Capital Weed Control Pty Ltd v Australian Capital Territory [2014] ACTCA 8.

FINANCIAL ASSURANCE

The payment of a FA is a requirement either under the EP Act or as a condition of an environmental authority (EA). The DEHP is required to decide the amount and form of FA under s295 of the EP Act. Such decision must be made having regard to the prescribed guideline being the Guideline: Financial Assurance under the Environmental Protection Act 1994 (4 March 2016) (the Guideline).

DECISION HIGHLIGHTS

• It is not sufficient for the Department, or the Court, to merely consider the prescribed guideline in a cursory way. Rather the words “must have regard to” contained in section 295(3) of the EP Act, represent mandatory language which requires consideration that must involve an active, intellectual process.
• The Guideline: Rehabilitation requirements for mining resource activities (EM1122) is irrelevant to the assessment of the amount of financial assurance.
• The financial standing of the proponent is irrelevant to the assessment of the amount of financial assurance.
• The application of a contingency amount is contrary to the EP Act because the use of the expression total likely costs and expenses (found in section 295(4) of the EP Act) is diametrically opposed to the inclusion of a such amount, being an amount for unknown costs, and falls outside the scope and purpose of requiring FA to be given for an EA.
• The Precautionary Principle does not apply to the assessment of the amount of financial assurance pursuant to section 295 of the EP Act.
• The Guideline permits the parties to enter into agreements regarding the retention of infrastructure. The effect of this, is that the corresponding infrastructure can be removed from the assessment of the amount of financial assurance.
• In appeals such as these, each party will bear the onus of proving what they assert with respect to the rehabilitation plan and resulting FA calculations.

What you need to know …

• The Guideline: Rehabilitation requirements for mining resource activities does not apply to the assessment of FA
• Financial standing of an EA holder is irrelevant to the assessment of FA
• The application of a contingency amount is contrary to the provisions of the EP Act for the assessment of FA
• The precautionary principle does not apply to the assessment of FA
• The Guideline permits parties to enter into agreements regarding retention of infrastructure and in such circumstances, the corresponding amount does not need to be included in the FA

For more information please contact me at kmcintyre@qldbar.asn.au

By Declan Kissane

Earlier this month the New South Wales Court of Appeal delivered its decision in the much awaited Sanderson as Liquidator of Sakr Nominees Pty Ltd (in liquidation) v Sakr [1] appeal relating to the operation of section 473(10) of the Corporations Act 2001 (the Act). That section relates to the matters a Court should consider when determining a liquidator’s remuneration for the purposes of section 473(3) of the Act.

Summary of the Key Points

The liquidator’s appeal was successful and the Court ordered that the determination of the liquidator’s remuneration be remitted for rehearing.

The key points from the appeal are as follows.

• The statute does not mandate a separate approach for smaller liquidations.
• There is no general rule that in the ordinary course of determining remuneration in smaller liquidations, the calculation of fees on an ad valorem basis is to be preferred.
• While section 473(10)(h) of the Act provides as a relevant factor the value and nature of any property dealt with or likely to be dealt with, it is just one of the factors to be considered.
• It remains the responsibility of the Court to fix reasonable remuneration on the evidence before it, taking into account each of the matters referred to in section 473(10) of the Act.

Background

The liquidator of Sakr Nominees Pty Ltd (in liq) was appealing the decision of Justice Brereton which had controversially fixed the liquidator’s fees in the amount of $20,000. His Honour’s determination was based on an ad valorem rate rather than allowing remuneration based on the liquidator’s firm’s standard hourly rates.

The Court of Appeal was constituted by five members including Bathurst CJ who provided the only substantial reasons for the decision with the other members agreeing with the Chief Justice’s decision and reasons.

The appeal was important because there had been recent divergence in authority between first instance decisions before the NSW Supreme Court and decisions in before the Federal Court. Much of the controversy regarding the operation of section 473(10) came from earlier decisions of Justice Brereton. [2]

Section 473(10) of the Act prescribes that:

“ In exercising its powers under subsection (3), (5) or (6), the Court must have regard to whether the remuneration is reasonable, taking into account any or all of the following matters ….”.

The section then lists 11 specific matters for the Court to consider as well as the catch all “any other relevant matter”. [3]

The Primary Judge’s errors

The Court Appeal found that the primary judge erred by:

• not giving any consideration to the value of the additional work completed by the liquidator when fixing the remuneration at $20,000;
• not taking the evidence presented by the liquidator into account or considering any of the factors in section 473(10) of the Act relevant to the assessment of remuneration; and
• focusing solely on the question on proportionality;
• failing to give consideration to the work actually done and whether the amount charged for it was proportionate to the difficulty and complexity of the tasks to be performed.

The Liquidator’s Argument

In support of the appeal the liquidator argued that once it was established that the work was necessary and was performed in a reasonable and timely fashion, the value of the work involved was an irrelevant consideration. [4]

The Court rejected this proposition out of hand saying that the primary judge was entitled to consider the value of the work as it was one of the factors in section 473(10) that must be taken into account. [5]

That being said, the Court accepted that the fact that the work was required and that there was no evidence that the rates charged or hours spent were excessive was a highly relevant factor. [6]

Further, the Court recognised that some of the liquidator’s other criticisms of the primary judge had greater force. In particular, that:

· The primary judge inappropriately focused solely on proportionality.

· In focusing solely on proportionality, the primary judge failed to give consideration to the work actually done and whether the amount charged for it was proportionate to the difficulty and complexity of the tasks to be performed.

Submissions on behalf of ASIC and ARITA

Significantly, the ASIC and ARITA were also represented at the hearing of the appeal and made separate submissions to the Court.

In summary the ASIC’s submission [7] was that in the ordinary course of determining remuneration in smaller liquidations, the calculation of fees on an ad valorem basis was to be preferred.

In argument the ASIC conceded that to suggest that ad valorem remuneration should always be preferred or adopted without modification or regard to the facts would fetter the discretion of the Court and is not supported by section 473(10) of the Act.

At the other extreme ARITA’S primary submission [8] was that the time based methodology is the best method of calculating reasonable remuneration in the format of section 473 (10) of the Act.

While ARITA accepted that it may be legitimate to use percentage based calculation as a cross check it submitted that time based methodology remained the best method of calculating reasonable remuneration pursuant to section 473(10).

To the extent that they should be propositions of general application, the Court rejected both the ASIC’s and ARITA’s respective submissions that ad valorem and time billing were the preferred methodology.

The Court emphasised that it is the responsibility of the Court to fix reasonable remuneration on the evidence before it, taking into account each of the matters referred to in section 473(10). [9]

Because the decision does not go so far as to anoint time charging as the correct basis for calculating remuneration, it is likely that some liquidators will be disappointed. However, having regard to the terms of section 473(10) such an outcome in the appeal was highly unlikely.

Any disappointed liquidators should be heartened the following two passages from the reasons of Bathurst CJ at paragraphs [57] and [58]:

“[57] I would add two matters. First, the mere fact that the work performed does not lead to augmentation of the funds available for distribution does not mean the liquidator is not entitled to be remunerated for it. The most obvious example is work done by a liquidator in complying with his or her statutory obligations. As Farrell J pointed out in Warner, Re GTL Tradeup Pty Ltd supra at [71] it is relevant to consider whether the work was necessary to be done. If it was, there is no reason the liquidator should not be remunerated for it.

[58] Second, there are commonly cases where work is undertaken in an unsuccessful attempt to recover assets whether at the request of creditors or otherwise. Provided it was reasonable to carry out the work and the amount charged for it was reasonable, there is no reason a liquidator should not recover remuneration for undertaking the work. …”

Conclusion

It’s fair to say that the New South Wales Court of Appeal’s decision represents a sensible and balanced approach that is entirely consistent with the statutory mechanism. In that regard the case is actually unremarkable.

Nonetheless it is still an important appeal because it provides a level of certainty to insolvency practitioners as to how the Court should approach their applications for remuneration once they have undertaken the important function of winding up insolvent companies.

[1] [2017] NSWCA 38.

[2] See for example Re AAA Financial Intelligence Ltd (in liquidation) (No.2) ACN 093 616 445 [2014] NSWSC 1270.

[3] Section 473(10)(a) to (l).

[4] Sanderson as Liquidator of Sakr Nominees Pty Ltd (in liquidation) v Sakr [2017] NSWCA 38 at paragraph [61].

[5] Ibid at paragraph [61].

[6] Ibid at paragraph [61].

[7] Ibid at paragraphs [31] to [38].

[8] Ibid particularly at paragraphs [39] and [48].

[9] Ibid at paragraph [65].

Sizing Up Your Opponent

It is important when dealing with an LIP to try to obtain some insight into their character and motivation.  This will affect how the advocate approaches his or her task.  This really only comes with experience of LIPs in particular and people in general.  However here are some categories to look out for.

Perhaps the most well-known category of LIP (though not the most common kind encountered) is the so-called ‘querulous’ litigant or ‘vexatious’ litigant.  The querulous litigant is one who is obsessed with a particular issue or grievance.

Some querulous litigants pursue an issue like a modern day Don Quixote, tilting at constitutional or legal windmills.  Challenges to the validity of paper money were for a long time the quest of a number of LIPs.  They will pay no attention to any judgment contrary to their set views, but otherwise can be pleasant to deal with.

More common is the querulous litigant driven by a personal grievance, real or imagined.  The writer’s experience is that such obsessive grievance often emerges from the failure of some grand financial scheme or the loss of face as a result of failed financial dealings.  The humiliation of the loss of the family farm can be such a catalyst.

The querulous litigant has been described by one psychiatrist in the following terms3:

At times, these chronic grumblers may become ‘querulant’ (morbid complainants). In general, they have a belief of a loss sustained, are indignant and aggrieved and their language is the language of the victim, as if the loss was personalised and directed towards them in some way. They have over-optimistic expectations for compensation, over-optimistic evaluation of the importance of the loss to themselves, and they are difficult to negotiate with and generally reject all but their own estimation of a just settlement. They are persistent, demanding, rude and frequently threatening (harm to self or others). There will be evidence of significant and increasing loss in life domains, driven by their own pursuit of claim. Over time, they begin to pursue claims against others involved in the management of claims, be it their own legal counsel, judges and other officials. While claiming a wish for compensation initially, any such offers never satisfy and their claims show an increasing need for personal vindication and, at times, revenge, rather than compensation or reparation.

Despite 150 years of psychiatric research into querulous paranoia, there is no consensus as to the underlying pathology. Theories range from an underlying organic disease process, similar to schizophrenia, through to psychogenic processes; that is, certain vulnerable characters are sensitised by certain life experiences and are then struck by a key event which triggers their complaining. Preceding the querulousness, they have often received some form of blow to their individual  sense  of  self-esteem  or  security.  This  was  often  in  the  nature  of  a  loss  of relationship, through separation or death, ill health or loss of employment.

The key event is usually a genuine grievance and seems to echo previous losses. The key event is often of a type to threaten the (male) status symbols of prestige, position, power, property and rights. Environmental factors influence their complaint.

This kind of LIP has to be treated with particular caution by the advocate, both outside Court and before the Court.

A further category of LIP the writer has observed is what might be called the misguided or misled LIP.   Litigants in this category comprise people who have obtained informal advice, usually from persons without legal qualifications, who assure them that they have a defence to a particular kind of claim (frequently tax claims or claims relating to mortgage securities and money lending).   These defences are usually based on some obscure and wrong point of law, though to the hopeful and untrained litigant they look impressive.

The internet age has made this situation more common.  In some cases, the LIP will  have  paid  for  the  advice,  which  often  takes  the  form  of  a  draft  court document.  People who fall for this kind of thing are usually more gullible than malicious.

Finally, and importantly, many LIPs are people who simply cannot afford legal representation or for whom the risk posed by the litigation does not justify the cost of legal representation.  An example of the latter is the appellant in Ross v Hallam [2011] QCA 92, who only belatedly realised (in the Court of Appeal) that defending himself was beyond him.

The categories I suggest are neither exhaustive, nor mutually exclusive.  However, in each case, it is helpful to try to get some insight into the background of your opponent and their motivation and character.   A name search can be helpful to find out if your opponent has form.  Also worth trying is a phrase search of some of the more unusual turns of phrase which might appear in a particularly odd looking court document.   This might turn up previous cases where usual contentions have been run before and dismissed.

A  discussion  before  Court  with  your  opponent  can  also  assist  in  trying  to understand the kind of opponent you confront.  Care must be taken in those discussions, however, as I will now discuss.

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Footnotes

1. The Herald and Weekly Times Ltd c McGregor (1928) 41 CLR 254
2. G. Lindsay SC, Review of Owen Dixon: A Biography (2003) 23 Aust. Bar Rev. 198
3. Dr G. Lester, The Vexatious Litigant (2005) 17 Judicial Officers’ Bulletin 17 at 18-19 cited by Douglas J in Access to Justice-Problems of Self-Representation Hearsay Issue 55

Many well-wishers, kind enough to express regret at my retirement seven and a half years prior to statutory senility, have asked why? The answer is multi-faceted. I was but 36 years old when appointed a judge. It was never my ambition to hold office for 34 years. My role as President over the past almost 19 years involves the demanding court workload of a judge of appeal and a significant administrative role which at times is onerous. I have wide community and cultural interests and a much loved large extended family. I have had to place many things I would dearly wanted to do on the back-burner. The position of President of the Court of Appeal demands and deserves nothing less than 100 per cent commitment. I wanted to leave at a time of my choosing when at least some would say, “Must you go?” I had long planned to retire after 25 years of judicial service but when that date approached, I did not consider it to be in the interests of the Court for me to leave. My decision to stay another 15 months was not all selflessness: it gave me the opportunity to participate in the Court of Appeal’s 25 year ceremonial sittings last month, attended by the Presidents of the Courts of Appeal of New South Wales, Victoria, Western Australia and New Zealand. I hope that my departure from the Court at this time will allow me to build a productive post-judicial life, and the Court of Appeal to benefit from new energy and ideas.

Ms Smyth, you and your predecessor Mr Potts may be pleased that my first contact with the law was through the solicitor’s branch of the profession to which my father, Joe Hoare, belonged. And I was inspired to study law by some bright young articled clerks at Brisbane solicitors, Thynne and Macartney, whilst working there in my summer holiday after finishing high school.

A few years later when volunteering as a law student with the fledgling Aboriginal Legal Service I realised I wanted to be a criminal law barrister. One episode of this volunteering is indelibly etched in my memory. Some fellow law students and I were instructing a barrister in a committal proceeding. The elderly female complainant gave evidence that an Aboriginal youth at her front door offered to sell manure for her garden. Meanwhile, others in his gang entered her house through the back door and stole her handbag. The police prosecutor asked whether she could identify the youth. She confidently stated: :She would remember that evil face anywhere”, as she pointed to my cherubic-faced student colleague of pure Irish descent, now revered legal academic, National Treasure and Jesuit priest, Father Frank Brennan. An unforgettable early lesson in the dangers of identification evidence!

I am delighted to see retired Supreme Court Judge, Alan Demack, and his wife Dorothy, here today. As Chief Justice Holmes noted, he chaired the Bjelke-Petersen Commission of Inquiry into the Status of Women in Queensland. Chapter 4 of the Commission’s 1974 Report dealt with women in public life and noted under the heading “Judiciary”:

“There are no female judges in Queensland, and there is no immediate prospect of there being any. Persons appointed as judges must have acquired skill and understanding in Court procedures, as well as considerable knowledge of the law. This happens only through many years of practice in the Courts. … There are no women practising as barristers in Queensland. Therefore it will be many years before a Queensland woman is in the position to be considered for appointment to either the Supreme or the District Courts. The most positive contribution that can be made at this time is for the Crown Law Office to encourage women to enter its ranks…. Since the practising barristers employed by the Crown Law Office act as Crown Prosecutors, this may seem to be an unsuitable role for a woman. However, this kind of thinking cannot be heeded in 1974.

The Commission sees it as an essential long-term aim that there should be many women practising as barristers as well as solicitors and that women should become Judges in Queensland. …

Therefore the Commission recommends that the Crown Law Office encourage women to practice as barristers within its employment.” [Page 5]

Under the heading, Magistracy, the Report noted:

“The Commission understands that there are already women in Queensland who are working towards attaining the qualifications which will enable them to be appointed as Magistrates. The Commission applauds this step and recommends that the Public Service Board encourage women to qualify for appointment as Clerks of the Court and as Stipendiary Magistrates.” [Above]

Judge Demack walked the walk and, knowing I wanted to be a barrister, appointed me as his clerk in 1975. I have been privileged to work full-time in the law ever since.

There have been great changes to the substantive and procedural law over that time, changes which, I think, debunk the urban myth that the law and the judicial arm of government are out of touch. Over time, the law and the courts do change, responding appropriately to valid criticism and changing community values, expectations and attitudes.

In civil law these changes include the dramatic shift from court-based litigation to mediation and alternative dispute resolution. The comparatively few civil cases which do progress through the courts are tightly case-managed to minimise costs for both litigants and the taxpayer. Our 2017 challenges will include dealing with class actions.

Perhaps the greatest changes to the criminal law concern sexual offences. In 1975 a person could not be convicted on the uncorroborated testimony of a child witness. Complainants in alleged sexual offences gave their evidence before strangers in open court, in full view of the accused and, often with lengthy, aggressive cross-examination of marginal relevance, including about previous sexual experience. And all this, including the names of complainants, was liable to be reported in the media. It was only the courageous or the naive who pursued their complaints of sexual offences.

Nowadays the evidence of children is given by way of the child’s initial statement to police, and cross-examination is pre-recorded in closed court, with a support person in a room remote from the court, and with limits on the nature and style of cross-examination. Adult complainants also give their evidence in closed court, where appropriate with a support person and with the accused screened from their vision. And unlike in 1975, men can now be convicted of raping their wives.

Another positive change for the legal profession and the judiciary has been the increasing participation of women. Despite the 1974 Demack recommendations as to the Magistracy, no woman magistrate was appointed in Queensland until 1990. But since then women have steadily increased their representation at all levels of the judiciary in Queensland. I am proud and delighted that today both Queensland and Australia have woman Chief Justices who have been my colleagues and friends over the past four decades.

A second irksome urban myth is that judicial officers are light on sentence. In truth, the vast majority of sentences are uncontroversial. Those that are manifestly inadequate or excessive are corrected on appeal. The myth has been convincingly debunked by two respected academic studies with jurors, first in Tasmania and more recently in Victoria. These show that when members of the public have all the relevant information, most would impose a lesser or the same sentence as that actually imposed by the judge.

Last year during Law Week, whilst speaking with legal studies high school students at Caboolture, I was asked for my career highlight. This answer was easy, not multi-faceted. It was standing with my sister and brother judges of appeal, the Senior Judge Administrator and the judges of the Trial Division, between 2013 and 2015, in successfully resisting a calculated and sustained attack on the independence of the Supreme Court of Queensland by some members of the legislature and the print media. They were dark days for the judges and their support and registry staff. To those, from both sides of politics, who suggested judges should get back to work, I emphasise that we never stopped hearing and determining cases according to our judicial oaths and affirmations. The support from your professional associations, Mr Hughes, Ms McLeod and Ms Smyth, from individual leaders and members of the profession and from retired judges sustained us. But the real heroes of this battle were the people of Queensland. Exit polls conducted after the 2015 State Election made clear that ordinary Queenslanders cherish the independence of the judicial arm of government.

There are a great many things I will miss on my retirement from judicial life. First and foremost will be my loss of the privilege and responsibility of exercising judicial power and its ability to influence lives and develop jurisprudence. I will miss the daily contact with my fellow judicial officers, whether members of QCAT, the magistracy or the higher courts. All judicial officers are united in their daily, often grinding commitment to striving to do equal justice according to law to every litigant. The majority of matters before the Court of Appeal are from the District Court and the Trial Division of the Supreme Court. The people of Queensland are well-served by both these great institutions. Queensland has experienced considerable population growth since 1975 but the resources provided to its Courts have not grown commensurately. The Australian Bureau of Statistics’ annual publications show that Queensland courts are amongst the nation’s most productive yet the least costly to operate. This is due in large part to the industry and efficiency of its judicial officers. But it is also because the courts have long been under-resourced. Whilst appreciating the many demands on precious funds, it is time for Queensland Courts to receive comparable funding to courts in other states.

It has been wonderful to have spent the past five years of my working life in this spectacular award-winning building. I will miss this stunning courtroom with Sally Gabori’s evocative mural, the dignified light-filled Court of Appeal next door and my superb corner chambers’ suite.

But buildings and judicial officers are only part of what makes the judicial arm of government function. The joys of my judicial life include the brilliant associates who reinspire me each year with their enthusiasm for the law and life. I am delighted that 9 of mine are present this morning, with Magistrate Ho watching on videolink from Gladstone.

In Queensland, the court and registry support staff are employees of the Executive rather than the judiciary. I hope that, one day, consistent with the seminal concepts of the separation of powers and judicial independence, this will change, as it has recently in Victoria. But despite this imperfect model, Queensland Courts, on the whole, have been well-served by their staff. I particularly, note the assistance over the years of the Court Administrators and the talented appeals registrars with whom I have worked. I am delighted that so many of them are present today.

I will also miss my capable executive assistants with whom I have worked so closely. That no doubt challenging role has been filled by three people: Andrea Suthers who spent even more of her working life in the Court of Appeal than I, Vivienne Koroglu, and my current EA, the unforgettable and irrepressible Kelly Morseu!

And finally, my precious family, who have come out in numbers to support me today, as they have throughout the celebrations and tribulations of my career. I am joined by three of my five siblings, David, a retired solicitor and my sister-in-law Sharon, my sisters Diana and Rosalind, nieces Katie (a lawyer) and Sally (my flower girl), nephews Aram and Kieren (both lawyers), my nephew-in-law Cameron and my very patient great-nephew, Angus.

My dear children, Helen and James who have travelled from Sydney, together with Lachie, his wife Alexandra (a solicitor) and the original Alex McMurdo, have taken time out of their busy lives to be with their Mum at her swan song. Thank you for sharing your lives with me. I am so proud of each of you.

And last, but never least, Philip. I am afraid that marrying me was not your best career move! But it was mine! Thank you for your unconditional love, support and wise advice — most of which I have accepted — over the past 41 years.

It is enormously comforting to be leaving the Supreme Court of Queensland in such a pleasing state under the thoughtful and steady leadership of my dear friend and clever, hard-working colleague, Chief Justice Holmes. But this is not a time for complacency. There may be future attacks on the independence of the judiciary. If so, I urge my judicial colleagues, the professional associations and individual lawyers to again be courageous in undertaking their ethical responsibility to defend the independence of both the legal profession and the judicial arm of government. In 1975 when I commenced my full-time career in the law the Queensland Law Society had never had a woman President and there were no Queensland women barristers to participate in such a defence. Today, we have our second female Attorney-General, our fourth female President of the Law Council of Australia, our fifth woman President of the Queensland Law Society, and about 22 per cent of the Queensland Bar and about nine per cent of its silks are women.

With the adoption of the Law Council of Australia’s latest Equal Opportunity Briefing Policy by the Executive and an increasing number of Queensland solicitors, the proportion of women barristers, silks and judges will rise. It cheers me to know, as I hand on the baton, that Queensland will increasingly have the benefit of intelligent, courageous, compassionate, hard-working women, together with men of similar qualities defending the institutional democratic role of its independent legal profession and judiciary.

My gratitude, admiration and warmest wishes are with you all.

The given topic suggests that advocacy in arbitration differs from advocacy before a court. The assumption is justified but the differences are subtle. The principles of advocacy, its tactics and strategy, are basically the same in whatever forum the advocate appears. To understand what differences in approach there might be requires an exploration of how the arbitral process differs from litigation.

I take my topic to include all aspects of conducting a case, not just the practical techniques of examining witnesses and crafting submissions.

Most arbitrations in this State are conducted under the auspices of the (Qld) Commercial Arbitration Act 2013. Each State has an almost identical Act and there is, as well, a Commonwealth Act for international arbitrations. Put simply an arbitration is international if the parties to the arbitration agreement conduct their businesses in different countries, or if they do business in the same country but the agreed place of arbitration is in another country, or the place where a substantial part of the contract is to be performed is in another country; or if the parties have agreed that the subject matter of their agreement relates to more than one country. My experience suggests that the day to day conduct of an arbitration does not vary between domestic and international arbitrations.

This is not the time or place to undertake an analysis of the various Acts which would certainly be dreary for everyone. As I said, they are all very similar. All of them mandate a particular approach to arbitrations. Section 1AC of our Act declares that:

“(1) The paramount object of this Act is to facilitate the fair and final resolution of commercial disputes by impartial arbitral tribunals without unnecessary delay or expense.

(2) This Act aims to achieve its paramount object by—

(a) enabling parties to agree about how their commercial disputes are to be resolved (subject to subsection (3) and such safeguards as are necessary in the public interest); and

(b) providing arbitration procedures that enable commercial disputes to be resolved in a cost-effective manner, informally and quickly.

(3) This Act must be interpreted and the functions of an (arbitrator) must be excercised so that… the paramount object … is achieved.

….”

Note the mandatory “must” in sub-section 3. Arbitrators have a statutory obligation to resolve disputes economically, informally and quickly. Sub-section (2) introduces what has been called “proportionality”, allowing parties and the arbitrator to mould procedures in order to determine the case in a manner that is cost effective in relation to the amount in dispute, its complexity, and the capacity of the parties.

Section 19 of the Act provides that the parties can agree upon the procedures by which the arbitrator is to conduct the proceedings. This recognises “party autonomy”, the right of parties to conduct their cases as they wish. There is, however, a substantial limitation on the right. It is subject to “the provisions of th(e) act”, a reference to the paramount objective of economy and efficiency. The agreed procedure must meet the objective.

In the absence of agreement, the arbitrator “may … conduct the arbitration in such a manner as (he) considers appropriate”. This power is also subject to, and must be exercised to achieve, the paramount objective.

Importantly the power extends to determining the admissibility, relevance, materiality and weight of any evidence. This means that arbitrators are not bound by the legal rules of evidence. This has a consequence for advocacy which I will mention later.

Section 18 confers an unusual power on arbitrators. It requires them to give the parties a “reasonable” opportunity of presenting their cases. The requirement is not to allow a “full” opportunity to present a desired case. Arbitrators can interrupt and curtail the presentation of evidence or argument. I have never seen the power exercised. I assume it would occur only when a party was acting oppressively against an opponent or was disregarding its obligation to be concise and efficient. However the section does not confine the circumstances in which arbitrators can limit the number of witnesses or experts, or impose time constraints on their evidence.

You should note that S24B puts an obligation on parties to “do all things necessary for the .. expeditious conduct of … proceedings”.

Section 24 permits arbitral proceedings to be conducted on written materials without hearing oral evidence or oral argument, though if any party requests such a hearing, the arbitrator must accede to it. Obviously where proceedings are conducted entirely on written materials their importance is critical. It is the only chance of persuasion the advocate has.

Importantly s.5 provides that no court may intervene in arbitral proceedings “except where so provided by this Act”. The scope for judicial intervention is very limited: there is no appeal against findings of fact. Appeals on questions of law in an award can be heard by the Supreme Court only if both parties agree, and if the court grants leave. Section 34A(3) advises the court not to grant leave unless the decision of the arbitrators on a question of law is obviously wrong, and the error had an actual, substantial, effect on the rights of one or more of the parties. Apart from that, a court can only interfere if the arbitrator misbehaves, or was not properly appointed, or decides a dispute not referred to arbitration. So arbitrations are meant to be fast, informal and final. Your conduct of the case should reflect that philosophy. You cannot have at the back of your mind that errors can be tidied up on appeal. You only get one shot of having your arguments accepted.

I have mentioned the differences between litigation and arbitrations as mandated by the legislation to give you some idea of how arbitrations are required to proceed so you can adjust the techniques of advocacy accordingly. The combination of sections 1AC, 19 and 24B particularly, results in a substantial departure from the previous philosophy which underlay litigation, the right of parties to conduct the case as they see fit and at the pace that suits them. The Commercial Arbitration Act obliges arbitrators to get on with the job and to actively encourage parties to prepare and prosecute their cases, and to equally actively discourage delay. Arbitral proceedings are compressed and advocacy in them has to adapt to the compression.

Interestingly s.24A provides that the parties to an arbitration may appear in person or by a representative who need not be a legal practitioner. You may find yourself arguing against a layman, though one expert in a particular field.

Arbitrators have only the powers the parties can agree to give them. They do not have coercive powers. They cannot compel the attendance of witnesses or the production of documents. Parties can, however, apply to the Supreme Court for the issue of subpoenas for the production of documents to the arbitrators, or the attendance of witnesses. They must first obtain the permission of the arbitrator to make the application.

Arbitral proceedings are flexible and informal and the parties can choose their own rules. Normally the arbitration clause in a contract which has given rise to the dispute will identify a set of rules which will govern the proceedings. Commonly parties choose rules such as those published by the Resolution Institute (formally IAMA) or the rules of ACICA, the Australian Centre for International Commercial Arbitration. I was once in an arbitration which had no connection with shipping or the United Kingdom but the parties had agreed it should be conducted in accordance with the rules of the London Maritime Arbitrator’s Association. Arbitrations under the auspices of the International Chamber of Commerce (ICC) are quite common. If you are engaged in one, study its rules very carefully. They are proscriptive and elaborate, calling for steps in the proceedings other sets of rules don’t require, and each case is supervised from Hong Kong.

There is no point in going into the details of any particular set of rules. They deal with the same sorts of subject matter that you would expect rules of procedure to cover, and in a broadly similar fashion. The point is that as professional advocates you should make yourself familiar with the particular rules by which the arbitration you are briefed in is to be conducted. Whatever set of rules are applicable they will differ from the UCPR.

One topic the rules do not cover is discovery, or disclosure of documents. You might think discovery has no place in an address on advocacy, but advocacy is about presenting your case and for that you need material. Normally the parties, through their solicitors, agree upon some form of disclosure, and it is usually limited to categories of documents and/or communications between specified persons. The “direct relevance” test of the UCPR does not apply unless the parties agree it should. If documents are required from an opponent or third party and are not produced voluntarily, you will have to have recourse to subpoenas issued by the court. Given that two applications are necessary, first to obtain the arbitrator’s permission and then the court’s order for the issue of the subpoenas, you may have to act expeditiously to get the documents in time. If you are asked to advise on what discovery regime should be agreed to, obviously the aim is to ensure that the categories of documents are likely to produce what is needed.

I mentioned, as one of the attractions of arbitration, the fact that the parties get to choose the arbitrator. Obviously the disputes in which I have been involved have had at least one venerable lawyer as arbitrator, but I once sat with an accountant. In some disputes however, the arbitrators are engineers, architects, valuers, or even builders, sometimes as sole arbitrator and sometimes as one of a panel of three. In such cases a different approach is called for. There is no point in being overly legalistic. This is especially so if you attempt to bamboozle or overbear the arbitrator by a display of your legal knowledge. An intelligent layman will quickly see what is going on and resent it. You should show a lay arbitrator the same respect and courtesy you would show senior counsel or retired judge. If a point of law does have to be raised because the dispute turns upon the meaning of a contractual term, or because there is some proper reason for objecting to evidence, the point should be argued as simply as possible with as little reference to authorities as possible, the object being to clarify things to assist the arbitrator’s understanding of the issues.

Arbitral proceedings are informal both in the actual conduct of the hearing and in the relaxation of rules of procedure. This informality should not lead to any display of disrespect to the arbitrators or familiarity. There may be a temptation, especially if the arbitrator is a layman, to make him your friend, but the temptation should be sternly resisted. You will gain more respect from the arbitrator if you exhibit a proper degree of professional deference.

There is an unavoidable physical closeness between arbitrators and the parties and lawyers. Hearing rooms are small. The absence of court staff means that documents have to be handed to the arbitrator, usually by solicitor or junior counsel. There is no bailiff to open or adjourn proceedings; there is no standing up when the arbitrator enters. He or she will be sitting at a desk when parties and their lawyers straggle in, or the arbitrator will enter the room when everyone else is there. The examination of witnesses and addresses are conducted with the practitioners seated. Nevertheless it is important to preserve a psychological space between advocate and arbitrator. The deference, or psychological space, facilitates good decision making and, I think, most arbitrators would resent a friendship being imposed on them by a party. Such an approach might be seen as an improper attempt to influence the outcome and is likely to be counterproductive.

When I initially thought about preparing this address I intended to be analytical rather than particular, assuming that approach would appeal to an audience of professional advocates. However, early on when speaking about the topic to some junior counsel, I was asked questions which suggested that it might be appropriate to deal with some detail that might seem mundane. I was asked how the arbitrator should be addressed. The problem may appear acute if the arbitrator is a retired judge. Despite natural respect “your Honour” is to be avoided: it is wrong. That particular mode of address is reserved for serving members of the judiciary. Call the arbitrator by name, Mr, or Ms Smith, or Mr (or Ms) Arbitrator. Often there is a panel of three arbitrators (which is a called a Tribunal in the legislation) and if referring to the arbitrators collectively you would use such a phrase as “if the Tribunal pleases” or “does the Tribunal wish to have a view”, or whatever the case might be. If an individual arbitrator asks a question he or she should be answered by name.

A substantial difference between arbitration and litigation is that arbitrated disputes often arise in the context of an on-going commercial relationship which both parties wish to preserve. Litigation, by contrast, is usually an exercise in pathology where the parties are engaged in working out why the relationship died and allocating fault. Advocacy can take on a sharp edge in that context which will have no place in finding the answer to a dispute between parties who may wish to use each other’s services in the future, or are bound together in a contract of long duration. The conduct of such an arbitration must value civility over forensic point scoring in order to maintain rather than destroy the business relationship. I don’t mean to say that you should not present your case forcefully but I think you should do so in a manner that avoids personal attacks. On occasions even these may be necessary, for example when a witness may be lying on an important point.

Most disagreements which go to arbitration commence with a Notice of Dispute, or a Referral to arbitration and there is usually a response, which may be called by different names. These two documents summarise the rival contentions in the case. They are the first documents the arbitrator will see, so advocacy in promoting the parties’ cause should begin with the drafting of the Notice and the Response. I don’t suggest that you treat these documents as final submissions, but they are the first chance to articulate a client’s case persuasively, succinctly and clearly. You should take advantage of it.

The same is true where the rules under which the arbitration is conducted, or the parties agree, that there should be an exchange of pleadings by whatever named called. The elaborate and prescriptive provisions of the UCP Rules do not apply. Typically the rules of the arbitration organisations provide that a statement of claim should include:

· the identification of the parties

· a statement of the facts supporting the claim

· the points in issue

· the relief or remedy sought

· the legal grounds or arguments supporting the claim

The defence is required to respond with particularity to the contentions in the statement of claim.

It is common, though not universal, for the statement of claim to have attached to it copies of the contract from which the dispute has arisen and, as well, “all documents and other evidence relied upon by the claimant”. The same obligation is imposed on the responding side.

Evidence in chief by a party’s witnesses is invariably in written form. The statements and expert reports are delivered to the arbitrator when finalised, or when exchanged between parties, depending upon their agreement. The result is that the arbitrator knows a very great deal about the case well before the hearing starts. The conduct of the case should reflect that reality. There is no point in lengthy opening addresses or in explaining the case. The arbitrator will know what the lay witnesses say, what the expert’s opinions are, and they will have read the relevant documents. The presentation of the case, the advocate’s task, needs to be focused and direct. It is also relevant that the arbitrator will have been chosen by the parties for his known competence and/or experience so that you can address the issues confidently knowing the arbitrator understands the case and appreciates the competing arguments.

This observation holds good even when the arbitrator, or one of them, is a layman, engineer, accountant, or whatever. It is a mistake of advocacy to treat such people as inferior beings. Avoid being condescending. The advocate’s task is to persuade, not antagonise.

There are special problems which sometimes arise in international arbitrations where the arbitrators may come from different legal systems, from different cultural backgrounds and may not have English as their first language. These special problems can be ignored for present purposes. Perhaps they might become the subject of a separate address on another occasion.

I mentioned section 9(3) which gives an arbitrator the power to determine the admissibility, relevance and weight of any evidence. If you are going to object to the reception of evidence, you will need better arguments than one which says that the impugned evidence should not be received because Cross on Evidence says it is inadmissible or because its reception would contravene one of the many restrictions on receiving evidence. Especially if the arbitrator is a layman, you will need to demonstrate why it would be an affront to the orderly conduct of the arbitration for the arbitrator to have regard to it. Putting technicalities aside, the two basic objections to the reception of evidence is that it is hearsay i.e. the witness had no direct knowledge of the event testified to; or the evidence is an opinion, or a conclusion, and the person expressing it is not duly qualified as an expert, or the opinion is not truly the subject of relevant expertise.

As a general rule objections to evidence should be kept to a minimum and only made where the evidence objected to cannot be properly admitted and will be damaging. It is surely better to ignore harmless or irrelevant hearsay than take up valuable time arguing about its reception. The same is true of objectionable opinion evidence. Arbitrators are professional people. They will want to reach the right decision and for the right reasons, which includes acting only on proper evidence. It is easy to lose sight of the fact that the rules of evidence are designed to ensure that what is put before a court is likely to be reliable. If you can demonstrate to an arbitrator that the evidence you object to looks to be unreliable, for example because it is hearsay and cannot be challenged or because it is opinion and the proper groundwork for the expression of the opinion has not been established, the arbitrator is likely to uphold the objection.

Section 19(4) gives an arbitrator “The power to make orders …for the examination of a … witness on oath or affirmation”. That has a practical application. It means that witnesses are not necessarily sworn or affirmed when called to give evidence. The arbitrator decides whether he requires that form of binding the witness’s conscience. In my experience the parties will tell the arbitrator if they want the witnesses to testify on oath, or the arbitrator will ask if they want the witnesses sworn. My own preference is to proceed in that way. It is especially important in cases involving contested questions of fact. Even in an apostate age such as ours, the taking of an oath or affirmation brings to the attention of the witness the importance of the occasion, and the need to be both honest and accurate.

Arbitrations are often conducted according to an agreed timetable, which may be tight. A fixed period of time is allowed for the entire hearing and it is common for parties to agree to an equal division of time for adducing evidence, cross examining and addressing. There are so-called “stop clock” arbitrations in which the time is divided and regulated to a matter of hours. Where this is the case, or where there are more general time constraints, cross examination in particular has to be thoroughly planned and conducted so as to stick to the point, avoid distractions and irrelevancies, and conclude within the allotted time. Because your time with the witness is limited, the cross examiner must identify the critical point or points and determine how to develop them quickly. Discursiveness and rambling are obnoxious in any jurisdiction but are truly pernicious in arbitrations. Time is of the essence and a hardnosed focusing on the important is essential.

Counsel will, in most cases, be involved in the preparation of witness statements. The drafting of these is part of advocacy, just as adducing evidence in chief from a witness orally, is part of the advocate’s task of persuasion.

Of course I do not mean that the statement should become the lawyers’, or that a witness should be coaxed or coached. The evidence must be that of the witness but it can be presented in such a way as to be persuasive and incline the decision maker to accept it. Statements should contain facts not arguments. They should be concise, coherent and proceed by way of understandable narrative. They should comply with the rules of evidence because, although an arbitrator can overlook the rules, statements that contain evidence beyond the witnesses own knowledge, or express opinions not facts, will diminish their weight.

Written submissions have assumed greater importance in recent years and this is particularly true of arbitrations where, as I have said, time is compressed, arguments and issues are condensed and the arbitrator will have had given to him large amounts of documents which may not have been the subject of oral debate but would have been referenced in statements or pleadings. The written submission is the medium to draw all the threads together and present the party’s case in a clear and compelling manner. You are all familiar with the requirements for producing good written submissions and I will mention only the aspects that may have particular application for arbitration. The submissions must of course be tailored to the particular arbitrator or arbitrators as well, of course, to the subject matter of dispute. You may be dealing with arbitrators who, though competent in their field, may not be used to the discipline of fact finding, analysis or the writing of reasoned judgments. Your written submissions should be designed to help them along that path.

At a basic level the submissions should set out what relief or remedy the party contends for and why that result should be given. The submissions should formulate each proposition of fact which the arbitrators is asked to find by reference to the evidence which supports it. Where question of law have to be decided, the propositions contended for should be identified and the legal arguments clearly laid out.

In all cases, but especially with lay arbitrators, you should use clear, simple language, short sentences and numbered paragraphs. The subject matter of the submission should be logically structured and each part identified by appropriate headings. Where documents are relied on they should be clearly referenced and should be given to the arbitrator in an easily accessible format. Remember the arbitrator does not have an associate or secretary to help with handling or accessing documents. All cases generate paper, but strive for economy. A folder, as small as possible in the circumstances, containing all the critical documents, is a good start.

Sometimes submissions can include the findings of fact that the party contends for so that an arbitrator may incorporate them easily into the award. This can be a convenient way of structuring the submissions. The proposed findings of fact have to be argued for with reference to the evidence, any relevant law, documents, witness statements and oral testimony.

Conciseness is a virtue. Succinctness leads to easier comprehension, especially when the arbitrator is not an experienced lawyer. Too much detail, too many references to evidence, or to cases may be a distraction. Where there are copious references it is best to proceed by way of footnotes rather than incorporating them in the text. Only the essence of the evidence, or the propositions of law, should be in the body of the submissions.

Take the gospel’s advice: let your speech be plain: say “yes or no: anything more comes from the devil”. Avoid adjectives and adverbs, completely if possible. Do not use rhetorical flourishes or any kind of hyperbole. Do not overstate.

I recently came across some good advice for the drafters of submissions, which was new to me. It was that having prepared the first draft the advocate should put it away for a time then read it afresh as if he or she were the arbitrator. In that process prune anything that smacks of verbosity or repetition, and see to what extent expressions can be shortened and simplified.

In the same place where I found that advice I came across the statement that arbitrators generally will be annoyed or alienated by written submissions that:

· are prolix, including irrelevancies; or excessive quotations of fact or authority; or a failure to distil the essence of the argument;

· include too many points or issues resulting from a failure to cull weak points;

· are incoherent because they lack a logical theme or fail to organise material into an integrated whole;

· are inaccurate, containing misstatement of facts or issues;

· omit or misquote authorities, or quote them out of context;

· are mechanically defective because they lack an index; or have an inadequate chronology; or inaccurate references to authorities and transcripts; or because they contain typographical errors, poor grammar or spelling.

Remember that the calibre of the written submissions establishes the credibility, or lack thereof, of the advocate advancing them. If your written submissions are poor your oral argument in support or amplification of them is likely to be received doubtfully. Written submissions which are inaccurate or poorly argued or suffer from some of the defects I have identified, are likely to be put aside by the arbitrator who will pick up the opponent’s submissions if they have obeyed the rules of advocacy. You want your submissions to be the ones the arbitrator turns to for help in writing the award.

It is, of course, unethical to mislead any tribunal as to the law. The obligation not to do so, and to be absolutely precise and accurate when arguing any point of law is much stronger when the tribunal is not legally qualified, such as a lay arbitrator, and the chance of misunderstanding or confusion is greater than with a trained lawyer.

Can I finish with a brief reference to two unrelated concepts. One of the advantages of arbitration is its complete confidentiality. It is not uncommon for an arbitration agreement to provide that even the existence of a dispute between the parties is not to be revealed so that no-one unconnected with the dispute knows that a disagreement has arisen. Only the arbitrator and reporter, if transcription has been agreed, the parties, their legal representatives and their witnesses are allowed into the hearing room. There are ethical constraints on what barristers can reveal about their instructions but there is no constraint on talking of what happened in court, and a day’s excitement is often repeated over an after-work drink. Section 27E of the Act prohibits the disclosure of confidential information in relation to an arbitral proceeding, subject to some limited exceptions. Confidential information is defined in s.2 to mean any information that relates to the arbitral proceedings including, specifically, the pleadings, the evidence, the rulings and the award.

I mentioned the limited right of appeal against awards. There is an additional, though also limited, right to have the award corrected with respect to “any errors in computation, any clerical or typographical errors or any errors of similar nature”. The right does not apply so as to change substantial findings of fact, but errors of a kind which give the award an effect different to its stated intention can be corrected. A party who wants the correction to be made must request it within 30 days of receiving the award.

There is also a power to request the arbitrator “to give an interpretation of a specific point or part of the award”. I have no personal experience of such a proceeding. It would seem appropriate where there is some ambiguity or uncertainty in the reasons for the award, or the award, or some conflict between the reasons and the award itself. The arbitrator can be asked to remove the uncertainty.

Can I end as I began by suggesting that arbitrations are a valuable adjunct to dispute resolution and can afford a speedy and therefore economical decision making process. They offer flexible proceedings and competent Tribunals with an interest in efficiency and the delivery of result both legally and factually correct. As advocates I think you will find the arbitral experience satisfying, personally and for your clients.

From the Editor 

Welcome to the April 2017 edition of Hearsay. This edition goes to press following some significant developments relevant to the Bar.

APPOINTMENTS AND RETIREMENTS

On 30 January 2017, Justice Susan Kiefel AC was sworn in as Chief Justice of the High Court of Australia.

Justice Edelman, formerly a Justice of the Federal Court of Australia based in Brisbane, was sworn in as a Justice of the High Court of Australia the same day.

The first sitting of the Court in Brisbane with Chief Justice Kiefel and Justice Edelman sitting was held on 10 March 2017. With Justice Keane, for the first time in its history, the High Court now has three of its Justices resident in Queensland.

Sue Brown QC, recently Vice President of the Bar Association of Queensland, was sworn in as a Justice of the Supreme Court of Queensland on Friday 10 February 2017.

Roger Derrington QC was sworn in as a Justice of the Federal Court of Australia, commencing on 29 March 2017.

A Valedictory Ceremony to mark the retirement of the Honourable Justice Margaret McMurdo AC was held on Friday 24 March 2017.

On 3 April 2017, Walter Sofronoff QC was sworn is as President of the Court of Appeal of Queensland replacing Justice McMurdo.

A Valedictory Ceremony to farewell his Honour Judge John Baulch S.C. from the District Court was held on Monday 20 February 2017

VALE

Former Distruct Court Judge Maxwell George Morley QC passed away on 27 February 2017 aged 80.

He was called to the Bar in 1963 and appointed Silk in December 1977.

He was appointed to the District Court on 29 February 1988 and retired on 4 October 1998.

The Honourable Martin Patrick Moynihan AO QC passed away on Sunday, 2 April 2017, at the age of 76 years.

In his distinguished career, he served as a Judge of the Supreme Court of Queensland (1984-2007) and as Senior Judge Administrator (1991-2007). He also served as Chairman of the Crime and Misconduct Commission, Queensland, (2010-2011).

BREXIT APPEAL

In Issue 77, I briefly discussed the decision of the High Court of England and Wales in R (Miller) v Secretary of State for Exiting the EU [2016] EWHC 2768 (Admin), in which it ruled that the UK Government could not use the prerogative powers of the Crown to give notice of withdrawal from the European Union consequent upon the so called Brexit referendum.

The decision was appealed to the Supreme Court. In what is believed to be a first, the entire court (Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption, Lord Reed, Lord Carnwath, Lord Hughes and Lord Hodge) heard the appeal.

The Supreme Court handed down its Judgment on 24 January 2017. By a majority of 8 to 3 it dismissed the Government’s appeal (Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption and Lord Hodge in the majority with Lord Reed, Lord Carnwath and Lord Hughes dissenting), holding that an Act of Parliament was required to authorise ministers to give Notice of the decision of the UK to withdraw from the European Union.

Copies of each of the parties’ written submissions may be accessed here.

BAR CONFERENCE

The Annual Conference of the Bar was held on Friday and Saturday 24 and 25 March 2017. Yet again, the conference was a great success, headlined by a captivating opening address by Justice Edelman.

Some of the papers from the conference are published in this edition and we hope to bring some more to you in the next edition.

CONTRIBUTIONS

Once again I wish to extend to members of the Bar, an invitation to submit items for consideration for publication in Hearsay. Hearsay has a proud heritage as the journal of the Queensland Bar. It is one way for members to not only contribute to the advancement and sharing of knowledge, but also to have the opportunity to have appropriate items published to a wide readership. This presents an important opportunity for newer members of the Bar in particular.

Of course, contributions are welcome not only from barristers, but from anyone who would like an article, case note, book review or another item of interest to readers to be considered for publication.

THIS EDITION

Included in this edition are some excellent papers and book reviews, which I trust readers will find interesting and informative.

Adrian Duffy QC

Editor

The Court is honoured by the presence of their Excellencies the Governor-General and Lady Cosgrove, of former Chief Justices the Honourable Sir Gerard Brennan and the Honourable Robert French and of the Right Honourable Dame Sian Elias, Chief Justice of New Zealand.  I am delighted that my former colleagues the Honourable William Gummow, the Honourable Michael Kirby, the Honourable Kenneth Hayne and the Honourable Susan Crennan are sitting with us today.

I am pleased to have been sworn in as Chief Justice by my dear colleague, Justice Virginia Bell.  This occasion is therefore historically significant on two counts.

The Court welcomes you, Mr Attorney, the Shadow Attorney-General, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Federal Court, the Chief Justices of State and Territory Supreme Courts and judges of those courts, the Acting Chief Justice of the Family Court and judges of other courts, retired judges, the Solicitors‑General of the Commonwealth and of the States and Territories, and the Presidents and members of Bar Associations and Law Societies and of the Law Council of Australia.

I am personally honoured by the attendance today of members of my family, especially my husband and my sister, and our friends.  Some have travelled a considerable distance to be here and I am deeply appreciative that they have done so.

There have been six Chief Justices of this Court since the time that I commenced my legal studies.  I have had something of a personal connection with three of them.

Sir Gerard Brennan was still in practice as a Silk at the Brisbane Bar when I began my legal studies.  He was kind enough to seek me out in order to loan me his treasured texts on Roman law and thereafter would enquire as to my progress.  It was of some pleasure to me that, many years later, Sir Gerard was a member of the Court when it sat, ceremonially, on the occasion when I announced my appointment as a Senior Counsel for Queensland.  A similar ceremony will take place in this Court tomorrow.

I came to know Sir Harry Gibbs through a solicitor, Gerald Patterson, who was a close friend of Sir Harry’s and one of my staunchest supporters when I first came to the Bar.  Whenever our paths crossed, Sir Harry was kind enough to express an interest in how I was getting on at the Bar.  His greatest act of kindness, though, was during one of my first appearances in this Court.  He reminded me of the next step in my argument when a question from Sir Garfield Barwick resulted in me suffering a temporary loss of memory.

I have enjoyed a friendship with the retiring Chief Justice, the Honourable Robert French, since shortly after I joined the Federal Court in 1994.  I believe that we may both have learned much from our time on that Court about the importance of civility and collegiality.  At a ceremony in this Court, in December last, fitting tributes were paid to the considerable public service that he has given as a judge and the contribution that he has made to the law.

It has been my privilege to serve with Chief Justice Gleeson and Chief Justice French since I joined this Court and a pleasure to work with my colleagues.

At the opening of the High Court in 1903 the first Chief Justice, Sir Samuel Griffith, said that “[w]e know that we shall be expected to solve difficult questions, to compose strife between states, and possibly between the states and the Commonwealth”.  Sir Samuel was right on each count.  There have also been important historical events affecting the Court, such as when the right to appeal to the Privy Council was finally abolished.  It was important because it enabled the High Court to assume its present position as the final arbiter of appeals in Australia and more confidently to develop the common law of Australia.

In the year preceding the opening of this Court, Australian women were given the right to vote at federal elections.  It was then that they truly became part of “the people” to whom our Constitution refers.  That year also saw the first woman graduate in law from an Australian university.  It would not be until 1987 that a woman, the Honourable Mary Gaudron, was appointed to this Court.

When I came to the Bar in 1975 there were very few women members of the profession.  This is not the occasion to consider why this was so.  The point presently to be made is that this has changed and so has the composition of this Court.  In more recent times the appointment of more women to this Court recognises that there are now women who have the necessary legal ability and experience, as well as the personal qualities, to be a Justice of this Court.  There seems no reason to think that that situation will not be maintained in the future.  It may well improve.

Sir Samuel Griffith also spoke of the “weighty and responsible duties” the new Justices had undertaken.  Chief Justices, like the other Justices, give a part of their lives to the service of this Court and thereby to the people of Australia.  That service is not given for the purpose of personal acknowledgment or the enhancement of reputation.  It is given to ensure that this Court is maintained as an institution in which the government, the legislature, the legal profession and the people of Australia can have confidence.

The presence of so many Chief Justices here today, from Australia and New Zealand, is a reminder of the co-operation which is effected through that national and trans-Tasman body, the Council of Chief Justices of Australia and New Zealand.  The presence of so many judges from different courts reminds us that, whilst the High Court stands at the apex of Australian courts, its position depends upon the existence of all Australian courts.  Its work relies upon the diligence and dedication of judges of courts at every level.  This Court will strive to assist these courts by providing decisions which are clear and which offer practical guidance.

It is sometimes said that Justices of this Court must write judgments with an eye to the past and also to the future.  We could also look around us, as did judges of the English tradition in the past.  Communication and translation technology allows us an even wider perspective.  We can observe how other courts reason in areas of common interest.  Identifying and comparing our different approaches can provide us with a deeper understanding of our own laws.

In the not too distant past the term “globalisation” may have been thought to be little more than a slogan, but it may now be considered to be a way of thinking about the world rather than ourselves in isolation.  This Court maintains dialogues with overseas courts, including courts in the Asia Pacific region.  Some are undertaken to share knowledge and find solutions to common problems.  Others are engaged in to foster a mutual understanding of the work of our respective courts, the constitutional framework within which our courts operate and the laws which we apply.

It is no less important that the people of Australia understand our court system.  It is to be hoped that the 37,000 school children, from over 750 schools around Australia, who visit the Court each year will be encouraged to learn more about this Court.  The High Court is conscious of its educative role.  It provides materials about the Court and the Constitution to schools, it makes written arguments in matters coming before the Court accessible and it provides audio-visual recordings of its hearings on its website.  It has recently made arrangements with the Constitution Education Fund Australia for the establishment of an Australian Constitution Centre at the Court, by which it is proposed to promote public understanding and an appreciation of the Australian Constitution, its history and contemporary relevance.

Since its inception this Court has provided the stability and certainty for which the framers of the Constitution hoped.  In accordance with the Constitution, this Court must sometimes declare that legislative or executive power has been exceeded.  The Court does so respectfully, conscious of its constitutional role and the role which the Constitution gives to the legislature and the government.

The Chief Justices who have preceded me have been persons of the highest integrity and ability.  I have been given a great responsibility.  With the co‑operation of my colleagues I trust that I shall discharge it well and justify the confidence that has been reposed in me.

On behalf of the Court I thank you all for your presence today.