On 19 March 2018, Graeme Crow QC and Soraya Ryan QC were sworn in as Judges of the Supreme Court of Queensland. Justice Crow was also appointed as Central Judge based in Rockhampton. A copy of the speech given on behalf of the Bar by Vice President Treston QC may be accessed here.

Gregory Egan was appointed as a Judge of the Federal Circuit Court of Australia, effective from 7 February 2018.

On 8 March 2018, the Attorney General announced the appointments of:

• Judge John Coker, formerly of the Federal Circuit Court, as a Judge of the District Court of Queensland, based in Townsville; and
• Michael Williamson QC as a Judge of the District Court of Queensland, based in Brisbane 

Most recently, the Attorney General announced the appointment of Mr Nathan Jarro as a Judge of the District Court of Queensland effective from 26 March 2018. His Honour is the first indigenous Judge appointed in Queensland.

Retirements

A valedictory ceremony was held on 9 March 2018 at the Rockhampton Supreme Court to mark the retirement of the Central Judge, the Honourable Duncan McMeekin. A copy of the speech delivered on behalf of the Bar by President Thompson QC may be accessed here.

A Valedictory Ceremony to honour and farewell his Honour Judge Brian Harrison of the District Court of Queensland, was held on Friday 16 March 2018 at the Cairns Courthouse.

Vale The Honourable John Muir QC

Members of the profession and the judiciary alike were saddened by the news that the Honourable John Muir QC passed away on 10 February 2018.

John Muir was called to the Bar in 1976 and appointed Silk in November 1986.  He was appointed to the Supreme Court of Queensland on 7 April 1997 and then to the Queensland Court of Appeal in 2007.  He retired from the Court of Appeal on 15 December 2014.  During his time as a Judge of the Supreme Court, he was also a member of the Land Appeal Court from 1997 to 2000 and Chairman of the Queensland Law Reform Commission from 1998 to 2001.

He was a long serving Committee Member of the Bar Practice Course and was actively involved with the Bar Association presenting at many conferences, CPD sessions and the Bar Practice Course. He was a great supporter of the Bar and a mentor to many.

After a courageous battle with illness, John passed away peacefully aged 73 years. His funeral was held on Friday 16 February 2018 at the Cathedral of St Stephen.

He was a credit to the profession and the judiciary of this State. He will be sorely missed.

QCAT Sessional Members – Invitation to Express Interest

The Queensland Civil and Administrative Tribunal is seeking expressions of interest are sought from legally qualified professionals for appointment as QCAT Ordinary members on a sessional basis. More information is available on the QCAT website. The closing date is 27 April 2018.

Queensland Judgments Website

On 2 March 2018, the President, Sandy Thompson QC, announced the launch of the new Queensland Judgments website, hosted by the Incorporated Council of Law Reporting for the State of Queensland and the Supreme Court Library of Queensland.

As the President said, the website is the product of a number of years of work by members of the Bar associated with the ICLRQ and the SCLQ, and contains a complete set of the Queensland Reports, published in both its original format (PDF) and in a searchable online format.

The website, presently in beta version, also contains:

• a complete set of recent unreported Supreme Court judgments (from 2002), which is being gradually expanded as the Library’s full print collection of unreported Supreme Court judgments is digitised.
• an appeal database, which provides current and historical data about appeals from judgments in the collection.
• a new UCPR service, which seeks to identify the leading judgments on civil procedure in Queensland. 

Readers can visit the Queensland Judgments Website and register to obtain full access.

This Edition

In this issue we have some outstanding papers originally delivered at the recent Bar Conference, including papers by the Chief Justice of Western Australia, Justice Dowsett of the Federal Court and Professor Michael Legg.

There is also an excellent paper by Stephen Lee containing a detailed analysis of awards of interest in equity, as well as a number of entertaining and informative book reviews and other items, which I trust readers will find interesting.

In the Speeches and Legal Articles of Interest section, readers are given links to the Queensland Flood litigation live streaming and access to court documents. While being tried in Sydney, the case is occupying a number of members of the Queensland Bar (including the President) and, of course, is of vital interest to Queenslanders generally.

Be safe over the Easter break. Happy reading!  

Adrian Duffy QC

Editor

Use your Legal Experience to Assist the Philippines with ABV

Australian Business Volunteers (ABV) offers you an opportunity to assist international development using your legal expertise. Working in-country with the Filipino government you will improve staff capacity to negotiate Public-Private Partnership contracts in highway and road construction within the Philippines-Australia Partnership for Economic Governance Reforms (PEGR).

ABV is seeking a skilled legal advisor with a good knowledge of Public-Private Partnerships (PPPs) and experience with infrastructure tenders and contracts. Using your thorough legal knowledge you will assist Filipino government departments with their Reform Agenda activities which aim to improve technical skills and business processes in the planning, preparation, procurement and regulation of PPP road projects. A complete legal, policy and regulatory overview will be necessary.

Due to a lack of knowledge and experience, the Philippines Bureau of Transport has had a problematic history with PPPs formed to improve transport infrastructure. The contracts of past projects have been poorly structured, consequently placing a disproportionably larger share of the financial risks with the government party. In addition, progress of the works was often slow and some projects remain uncompleted. Therefore PEGR and the Government of the Philippines have sought ABV’s assistance to provide suitable professional experience for this assignment.

ABV is an AusAID funded development agency which helps to alleviate poverty in the Asia-Pacific region and create sustainable development. ABV does this by offering countries the work skills and experience of mature Australians who are experts in their various fields. These volunteers offer their time to train, advise and mentor clients who request ABV’s help.

ABV volunteers work with local people on a range of contrasting assignments, all of which aim to transfer skills and boost the capacity of small businesses or struggling organisations. Volunteers come from all across Australia and are sent to countries such at Thailand, Vietnam, Laos, Vanuatu, the Solomon Islands and Papua New Guinea.

If you would like to assist the vital infrastructure development of the Philippines, improve the legal capacity of government departments and enjoy an amazing cross-cultural experience abroad you are encouraged to apply. Please note that only applicants with the necessary skills and experience will be considered.

For more information about the assignment please contact Lina Silva (Assignment Manager) at lina.silva@abv.org.au
For more information on ABV see www.abv.org.au

 

 

By JM Bennett

The Federation Press

John Bennett, in conjunction with the Heritage Committee of the Supreme Court of New South Wales, has produced an intriguing insight into the early history of the judiciary in New South Wales and its interaction with the Executive in that State.

The book begins with the swearing in of Stuart Alexander Donaldson as the first Premier of New South Wales in June, 1856.  This action freed the fledgling colony from the supervision and intrusion of the Colonial Office and allowed New South Wales to operate with a bi-cameral legislature.

Rather bizarrely, an invitation was issued to the four Justices of the Supreme Court to join the Legislative Council.  Stephen CJ even agreed to be the first President of the Council.  In what was not the last example of northern sensibility proving to be ahead of its time, Mr Justice Milford, who then sat primarily on circuit in Brisbane (and later became the first Resident Judge at Moreton Bay), declined the invitation.

Bennett, faithfully, details the history which followed for this group of legislator-judges, and the political debate which their presence on the Council ignited.  To citizens accustomed to near perfection in the operation of the doctrine of separation of powers, it is fascinating to recount its flawed beginnings in this country.

The Judges were variously referred to as “Bunyip Law Lords” and met a great deal of criticism from the press of the day.  Indeed, it is a remarkable testament to the character of these men that, while empowered to act in ways whereby they may have been able to silence their critics, it was generally accepted that they executed their duties faithfully and without the slightest suggestion of misconduct.

The book moves on to detail a later clash between the Executive and the Judiciary.  It was the 1880s and the Government of Henry Parkes had determined to stop the further inflow of Chinese immigrants into the colony.

In a series of cases frightfully reminiscent of the recent immigration debate in this country, Bennett informs the reader of the outcome of the clash and the personalities and principles which ultimately held the day.

The book is only short (some 50 pages) but is a worthwhile read for anyone interested in some of the lesser known judicial history in this country.  Given recent events regarding immigration, it is also a timely reminder of the need to learn from this history, rather than to repeat it.

Gary Coveney

Jacob’s Law of Trusts in Australia, 7th Edition

By JD Heydon and MJ Lemming

LexisNexis Butterworths

“A trust is an institution developed by equity and cognisable by a court of equity.  A trust is not a juristic person with a legal personality distinct from that of the trustee and beneficiary, not is it merely descriptive of an equitable right or obligation.  Instead, it is a relation between trustee and beneficiary in respect of certain property…” ¹

Thus begins the seventh edition of this important and authoritative work on the law of trusts. The seventh edition sees two new authors of the text, the Hon Justice J D Heydon AC, and M J Leeming, member of the New South Wales Bar and Challis Lecturer in Equity at the University of Sydney.  This is the first edition of the work since the second edition in 1967 with which the Hon R P Meagher QC has had no association, and the first since 1971 (the third edition) with which the Hon Justice W M C Gummow AC has had no association.  The learned authors nevertheless adopt the style of previous authors.

The opening words of the text are reflective of the work as a whole.  The text is notable for the precise, clear and direct language which is used.  Explanations of various issues, many of which are by their very nature complex, are clear and, where possible, concise.  Chapter lengths follow the adage in being as short as possible but as long as necessary.  Of the text’s 29 chapters only five are 50 pages or more in length.  Of the remaining chapters, the average page length is approximately 16 pages, with some chapters running to only three pages.  The style and structure of the book makes it very accessible, and is something to be emulated by authors and editors of other legal texts.

As the publishers note, the seventh edition of Jacobs’ Law of Trusts in Australia responds to developments in all Australian jurisdictions in the 10 year period since the sixth edition was published.  In that regard, particular attention has been given to the areas of charitable, resulting and constructive trusts; the duties and liabilities of trustees; and tracing trust property.

The authors have eschewed dividing the text into divisions, as occurred with previous editions.  The title and content of chapters, however, broadly follows that used in the sixth edition.  While no longer formally divided into divisions, chapters 1 to 4 deal with the nature and classification of trusts, the distinction between trusts and other legal institutions, and the capacity to create trusts.  Chapters 5 to 9 deal with express trusts, whilst chapters 10 and 11 deal with charitable trusts and purpose trusts respectively.  Chapter 12 sets out the law with respect to resulting trusts and chapter 13, constructive trusts.

Chapters 14 to 22 articulate the law with respect to the capacities, duties, powers and rights of trustees.  Chapter 23 deals with the rights of beneficiaries, whilst chapters 24 to 27 deal with trust property.

Chapters 28 and 29 are new and useful additions to the book.  Chapter 28 deals with trusts in the conflict of laws.  It examines and analyses the provisions of the Trusts (Hague Convention) Act 1991 (Commonwealth) and the associated Hague Convention².  The authors also comment upon matters not dealt with by the Convention.  Chapter 29 is a very useful summary of the trust aspects of superannuation.

Ten years have elapsed since the last edition of Jacobs’ Law of Trusts in Australia was published.  The wait has been worthwhile.  The seventh edition of Jacobs’ Law of Trusts in Australia is a masterful exposition of the law in this area.

Cameron Dick

Endnotes

1. Heydon, J. D. and Leeming, M. J., Jacobs’ Law of Trusts in Australia (Seventh Edition), LexisNexis Butterworths, Chatswood, New South Wales, 2006 at page 1, which references Registrar of the Accident Compensation Tribunal v Federal Commissioner of Taxation (1993) CLR 145 at 175.
2. The Convention on the law applicable to trusts and on their recognition, done at The Hague on 1 July 1985.  the full text of the Convention, including a PDF version, may be found at http://www.hcch.net/index_en.php?act=conventions.text&cid=59.

    This month’s article will talk about some basic concepts of advocacy. In the future I’ll review some strategies for specific tasks such as cross-examination.

The first thing I want to discuss is primacy. People remember what they hear first, people believe what they hear first.  Did you read the Tale of Two Cities in school? If so you probably recall the first sentence: “It was the best of times, it was the worst of times.”  I will also bet you can’t recall any other sentence from the book. You remember what you hear first.  This is called primacy.  Authors, particularly good authors, understand primacy and put a great deal of effort into their opening sentences. They want you to read their story; you want the judge and jury to remember yours.

This is particularly important in jury trials, but is also true of trials before a judge alone. So put your best and most important point first. We often, as journalists call it, “bury the lead”, and put our best point deep in a jungle of rhetoric. Think about your opening sentence in any address or submission – if it does anything but make your best point and lead compellingly into your story, revise it until it does. 

Research shows that jurors choose sides early. Judges, and this may be news to some younger barristers, are people too.  But judges, whether they admit to it or not, are governed by the same emotions as ordinary folk.  Obviously, they try to suppress those feelings, but they are still there.  To prove that, think of the number of court decisions, including High Court decisions, that tortured established legal principles to reach a result favoring a party to whom the court felt empathy. As an example consider the decision of the High Court in Northern Sandblasting which briefly confused the law of non-delegable duty to favor a severely injured young girl against a corporate landlord when the party who was principally responsible for her injuries lacked the means to satisfy any judgment.  

You want to have the trier of fact barracking for you.  In America, we say rooting for you, but I understand that has another meaning here. Primacy gives you the opportunity to have the judge or jury subconsciously on your side from the start.  There is a human tendency to chose sides.  Ever watch a footy match, like the World Cup or an NRL game between two out-of-state sides, where you had no reason really to favor one side over another, and yet found yourself after a few minutes barracking for one side or the other?  That happens in court, so you want to be sure the judge or the jury is barracking for you.

A trial is communication. A trial, particularly a jury trial, is not an appeal to intellect.  We are after hearts, not minds. If we have their hearts, the minds will follow. We will need to provide an intellectually suitable excuse to justify the emotional result, but as we know that can sometimes be a bit of reach, so you have to help by telling your client’s story in way the touches the heart as well as the mind. This is not to advocate pure pleas for sympathy or blatant emotional appeals, but rather framing your case as justice to be done or an injustice to be set right.

A trial is not a lecture.  A lecture transfers information from the notes of the lecturer to the notes of the listener without passing through the brains of either.  Also there is the annoying fact that others will be talking – witnesses and opposing counsel.

A trial is not a conversation.  Sadly, the jury usually cannot ask questions or participate interactively, so we are never know for sure if our messages are getting through.  In trials before a judge alone, the judge may well ask questions, and this a vital moment.  If the judge asks you, or a witness, a question – rejoice. That question gives you a hint as to what he or she may be concerned about, or interested in.  By the way, we all have an instinct to duck questions that probe weaknesses in our case.  If you do that, particularly before a judge, you just confirm the weakness.  Better to respond candidly – “Yes that may appear to be a weak point, but it is overcome by these strengths…”  And go on from there.

A trial is theatre.  “How American”, I hear you mutter, but it’s true. A trial is a play – you are the author, director and stage manager and even one of the actors.  The witnesses are other actors whom you want to play their parts.  And as sometimes happens in the theatre, there are some on stage trying to undermine what the others are doing.

As in the theatre you are going to be telling a story, a story whose ending compels a verdict for your client.  Much of what this and the subsequent articles will be about is how to tell your story effectively while undermining that of the opposition.  It is combat theatre. A trial involves not just telling your story but selling your story.

To sell your story you have to be credible. Your credibility is the most important asset you have – don’t lose it.  As Charles Schultz’ Linus used to say, “Always be sincere, whether you mean it or not.” Kidding aside, you must know the facts and never promise more than you can deliver.  Never exaggerate or mislead. Apart from the ethical violations, if you lose credibility with a judge it is a true disaster. First, the judge will likely help you lose this case; second, he or she will be suspicious of you next time; and, third, the judge will tell all the other judges to keep an eye on you as you can’t be trusted.

Likewise, you want to be the one the jury trusts. If they come to learn that, if in your submission you promised something would be proved, then it would be – and that they could rely on you for accuracy and fairness – they will transfer that trust to your client. While good facts can beat good advocacy, generally if a case has progressed to trial it is because the facts are disputed and closely matched on each side, and trust can tip the balance.

The jury watches everything you do, so everything you do must make you look trustworthy and respectable. It is not only what you say but what you do, how you dress, how you interact with court staff, etc. All of that is communicating something to the judge or jury.

“But”, I hear you interject, “we all dress alike, we are all in wigs and gowns.” Apart from the fact that, as I understand it, barristers these days are often not required to robe, the fact is I have seen barristers display contempt for jurors with their dress.

This is a true story. I was lurking in the back of the court room during a criminal trial I was watching. The lunch hour arrived and we all stood while the judge left the court room.  As soon as he was out of sight, and while the jurors were still in the box waiting to be lead out by court staff, the defence barrister, slumped into his chair, threw off his wig and started to put a foot on the bar table.

Lawyers should stand respectfully until the last juror is out of sight before relaxing for the break. Jurors will respect you if you show respect to them.

Speak plainly. No Latin shall pass your lips, nor any legal jargon, nor any tired law school phrases. Speak in court like you would at a barbecue (at least as you would before that fourth glass of wine). Also speak up and don’t mumble. I realize Australians speak more softly than Americans, and you certainly don’t have to shout, but you can’t persuade if you can’t be heard. Older jurors may be a little hard of hearing due to age and the younger ones have attended too many rock concerts.

Pomposity: Get over it. Barristers have what I’m sure is a totally unmerited reputation for being a bit pompous. If you are going to connect with a jury you have to get over yourself. If robed, you have the additional problem of overcoming the wig and robe to appear to be human.

Finally for this month, a few words on humour. Some people are naturally good at humour and instinctively know when and where it can be used. Sadly, many of us are not, but may not know it. Humour can be an excellent way to appear human and to defuse a tense moment, but it can also lead to disaster. The best rule is that if a joke is called for, make sure that you are the butt of it. Self-deprecating humour is the safest and best received.

Peter Axelrod

 

Bio – Peter Axelrod

Peter obtained his law degree from the University of California at Berkeley. He was admitted to practice law in California in 1973. Since then he has been admitted in New South Wales and Queensland. In America he was the managing partner of Reid, Axelrod, in San Rafael, California, having been employed at that firm since 1973 and a partner since 1978.  In Australia he is special counsel to CLS Lawyers in Brisbane, specializing in aviation and insurance litigation as well as international law.

He is a member of the Australian Insurance Law Association, Aviation Law Association of Australia and New Zealand, Lawyer-Pilots Bar Association, American Bar Association, American Board of Trial Advocates, and the Defense Research Institute. He is a member of the International Society of Air Safety Investigators and a graduate of the aircraft accident investigation course at the University of Southern California.

Peter is the co-author of the Aviation Torts chapter in CALIFORNIA TORTS, Matthew Bender, 1984, 1997. He has made presentations for the Australian Insurance Law Association, the Aviation Insurance Association, the Aerial Agricultural Association of Australia, the Administrative Appeals Tribunal, the Queensland Law Society, Queensland Transport and the College of Law in Sydney.

He was Adjunct Professor of Aviation Law at Embry-Riddle Aeronautical University from 1978 to 1986 and is now the proprietor of Professional Advancement & Continuing Education Seminars which provides continuing professional education courses on, among other things, aviation law, negotiation and trial advocacy. He has tried over 100 civil jury trials in the US and has taught advocacy for the last 10 years.

He is a licensed pilot with ratings for fixed-wing aircraft and helicopters and has been flying since 1972.

 

The “precautionary principle” is found in several important pieces of Queensland environmental legislation as well as in the laws of many other jurisdictions. For example, section 1.2.3(2) of the Integrated Planning Act 1997 (Qld) adopts the national approach by defining it as a principle “that lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment if there are threats of serious or irreversible environmental damage.” It has featured in some notable court decisions (such as Leatch v National Parks & Wildlife Service (1993) 81 LGERA 270 (NSWLEC) per Stein J). While it rarely seems decisive in government or court decisions it is an important principle of modern environmental and health laws.

Jacqueline Peel’s new book is a very well-written account of the precautionary principle and its application in international and Australian courts. A particular feature of her work is her ability to synthesise and explain complex scientific and legal issues.

The book is divided into three parts. Part 1 explores uncertainty in the decision-making environment and includes a succinct and very useful explanation of uncertainty in science. Part 2 considers the practical difficulties of anticipating threats of damage and uses examples from fisheries management and mobile phone towers. Part 3 considers how to implement precaution in decision-making frameworks and practice using examples of genetically modified organisms and environmental impact assessment.

Lawyers, judges, government officials and scientists who are required to apply the precautionary principle in practice will find this book a very useful reference.

Chris McGrath