Since assuming editorial control of Hearsay in early 2022, the current editorial team have been remiss in not reporting on sporting activity undertaken by the Bar. So much changes in this Issue. Caite Brewer, of Callinan Chambers, was the manager of the BAQ team, in a 16 team competition (the other 15 teams being solicitors) in the recent inaugural Bar v Solicitors Netball Carnival. Her team of Bar women and men achieved third place – as good as a win so far as Hearsay is concerned, and properly explained by the Bar contingent being so busy in their practices that they had insufficient time to undertake more intensive training.

Members are encouraged to make further contributions to Hearsay on “sport and recreation” activities undertaken by BAQ members, in what we hope will be a permanent section of Hearsay.

Inaugural Barristers v Solicitor Netball Competition

November 2022 saw the first ever Bar v Solicitors netball comp.  

It started as a small dream of perhaps 1 or 2 teams. The response was overwhelming, with 16 teams registering before it was full and many teams had to be turned away, disappointed.  

Unfortunately, only one of those teams was a Bar team, but it was a strong one! With Caite Brewer and Holly Blatman KC out injured, we recruited young Bellah Brewer – our honorary barrister – so we had someone who could actually shoot! 

Our submission that, being the only Bar Team, we should go straight to the grand final for true representation was rejected, so we were required to play all the rounds. 

We came second in our Pool B and advanced through to the quarter finals, then the semis, but unfortunately then going down to Littles Lawyers, so we didn’t reach the grand final.

Littles, in turn, were beaten by the ODCPL (Child Protection) in the grand final to take line honours.

Jane Menzies was the Bar’s player of the night.

Many thanks to the Queensland Law Society for organising the logistics of the night, which was a wonderful success.

The Bar’s “Netty” team next plays in a periodic competition. New players, and spectators, of all genders – are always welcome.

Please contact Caite Brewer of Callinan Chambers/Hemmant’s List [07 3218 0648 / 0466 908 863] if you are interested in playing, or coming along to cheer.

The inaugural netball match against the UQ students was held on Sunday 5 March. The Bar started with an advantage because, well, we were playing against students and it was a 10am start on a Sunday. That advantage proved to be fatal for the students, with the Bar taking honours 26-12.

At quarter time the Bar led 7-2 and the students never really looked like getting back, even though in the last quarter the scores were even.  

Hard to pick player of the match between outstanding performances by Jane Menzies (as always in GK), Bellah Brewer (ring-in, shhh!) in GS and Carolyn McKeon who is a lightning pocket rocket in Centre.   Special mention to “that really funny guy” aka Skoieney and Douggie Freeburn, both of whom excelled in only their second ever game of netty. 

Traves KC’s daughter Lottie excelled for the students, and we have our eye on her for a future member of our team.

All in all a great morning, we welcomed some new players since the solicitors match last year and the Bar team is shaping up to be world dominators!  

Another tournament v students and solicitors is being organised for the second half of this year.

Anyone interested in playing in future matches please contact Caite Brewer of Callinan Chambers/Hemmant’s List [07 3218 0648 / 0466 908 863]

Coach/Manager: Caite Brewer Back row: Bellah Brewer, Andrew Skoien, Kate Slack, Georgia Kiss, Josh Fenton, Doug Freeburn, Tom Jackson, Jane Menzies. Front row: Georgia Athanasellis, Gil Shepherd, Carolyn McKeon, Kate Juhasz.

Since 1992 the ‘Bullfry’ column has been published in the NSW Association’s Bar News. This sardonic but amusing commentary by the fictional (and now ageing) Sydney junior barrister, Jack Bullfry, has descended – often in parody –  to a raft of issues of life at the bar. It is authored former practising barrister Lee Aitken, now in semi-retirement after a long period of legal teaching, including at the University of Queensland. Later this year there will be published a 30 year illustrated collection of Bullfry. Hearsay – with the permission of the NSW Association and Mr Aitken-publishes below  a 2020 iteration of Bullfry concerning court dress. Such topic rears its head with increasing frequency. As members are aware, in Queensland wigs and gowns are not worn in the Applications or duty Courts (all jurisdictions), (the expanding) Commercial Courts, Industrial Court and all commissions and tribunals (state and federal), and wigs are not worn in the High Court, Court of Appeal, Federal Court, Family Court (both divisions) and Magistrates Court. Bullfry, amid amusing treatment, makes some perceptive comments. To contrast modern mores, we preface such article with an extract from an article published in 1974, authored by former High Court justice the Hon Sir Victor Windeyer, ‘Of Robes and Gowns and other Things’ (1974) 48 Australian Law Journal 394 at 403:

Robes and gowns have for centuries been the distinctive dress of lawyers–not only in courts of common law, but also in varying patterns in countries of the civil law. They are an accompaniment of a heritage of customs and culture that is part of the civilisation of Europe. The adoption of any new form of fancy dress is not easily justified. But the abandonment of a traditional costume is a very different matter, and the onus lies heavily upon those, who suggest this, to justify their proposal.

Today a prejudice is sought to be justified by expediency apparently newly discovered. It is said that forensic garments overawe and terrify witnesses and lead to injustice. This, unproved as a generalisation, meets an opposing opinion; men, it is said, are more likely to speak the truth when they are sworn to do so, and required to answer in circumstances that are grave and stern, and may be for them awesome, than in conditions of easy informality and unconstraint.

Whatever view be taken on rational grounds, much current criticism of the dress of lawyers and of the ritual of court proceedings is bred of bias, vulgarly fashionable, against any official costume except, it seems, for such persons as policemen, postmen and railwaymen. Informality and familiarity are taken to be attributes of faith in democracy. Elegance of dress, speech or manners is thought to go ill with egality. However, if prejudices be put aside, it is well to remember that the legal profession, including the judges, has since its early days controlled its own affairs, made its own rules for, and exercised its own discipline over, its members. The observance of old forms and customs is not simply a conservative adherence to usage. It is more; for it is a manifestation of the continuity of the law of the land. The present is visibly linked with the past, as a firm base from which the development and reform of the law can proceed in response to new social needs. For, said Coke: “Assuredly out of the old fields must spring and grow the new corn.”

A hundred and more years ago Lord Wolseley, then Lieutenant-General Sir Garnet Wolseley, wrote a delightfully wise little book, The Soldier’s Pocket Book. In it he said: “No man who knew soldiers or their peculiar way of thinking, or who was acquainted with the many little trifles that go to make up esprit de corps, and that form as it were a link between it and discipline, would ever deprive a soldier of any peculiarity that he prided himself on, without having some overpowering reasons for doing so.”

The writer, having known both soldiers and lawyers, would apply that to lawyers too.

Circa Fifty years later, Bullfry wrote:

Bullfry asks a sartorial question

The King-Emperor, George V, once had occasion to reprove an ageing Earl of Birkenhead. The latter had arrived in a hurry for a Cabinet meeting wearing a soft, slouch, hat and “grey, rather bucolic suit”, “yet he had once been famous for his dandyism”.1 The “sinister deviations” in Birkenhead’s Bohemian attire “clashed with the rigid conventionality” of his monarch. He should have been in the morning dress (and silk top hat) which was then de rigueur.2 He wrote with his customary brio to the King’s Private Secretary, “… in days far more formal than ours it was never the custom to appraise the adequacy or dignity of Lord Chancellors in terms of head-gear” – the King observed: “I consider this a very rude letter”!

Bullfry, sad to relate, had noticed a similar indifference creeping into his own costumery – even to the stage, like the Duke of Monmouth, of sometimes, on the weekend, not condescending to the artifice of toilette. In days past, Bullfry had rejoiced in donning his bespoke Bar jacket – lately, one button hanging by a forlorn thread, it barely fitted him. What now of the tailor-made striped Bar shirts, the “Tom Hughes” morning suit trousers, the starched collars and their studs? All gone, as a sartorial lassitude enveloped him. At a certain stage, a circumspect view of the wardrobe revealed enough suits to last a lifetime (or at least the end of a professional career) – save, of course, the understated subfusc for funerals. And in this, he was not alone.

Bullfry had had a frightening sartorial experience in Phillip Street – looming up out of the autumnal mist of an early morn, a retired, distinguished, jurist had crossed Bullfry’s path – he was indifferently dressed in a battered, greying, overcoat, but that was not the worst of it – oh no! to Bullfry’s horror, his balding pate was surmounted by a beanie! The late David Hunt J had always affected a Homburg; even now, a retired Peter Graham QC would courteously doff his hat to an acquaintance on Macquarie Street – that was surely the style that was appropriate for holders of high judicial office; and surely the Strand Arcade could still supply an appropriate headpiece?)

This was part of a sad, modern, trend, thought Bullfry. Once upon a time, to dress to appear in Court required considerable time and effort.3 In making the effort, as is the case with putting on any special uniform, the wearer was reminded of the important tasks and obligations about to be undertaken. There was no question of slipping into a “Onesie” which artfully combined Bar jacket, gown, and morning suit trousers. Each article of apparel required detailed attention. Edmund Spenser4 as long ago as 1598 had made the point elegantly:

“Men’s apparel is commonly made according to their conditions, and their conditions are oftentimes governed by their garments, for a person that is gowned is, by his gown, put in mind of gravitie, and also restrained from lightness by the very unaptness of his weed …”.

Bullfry thought back to his time as a young solicitor. He had tried to raise the subject of the fees being charged by a leading Silk (now long deceased) as the latter stood in his boxers, just prior to putting on his morning suit trousers. The silk in deshabille was unabashed: “There is nothing I like discussing more than my fees”, he said with a broad smile, “whatever the time, or situation”.

Matters, so it might be contended by a purist, had only started to go wrong with the modern Bar when the jabot made its first appearance (which perhaps not coincidentally was when the law firms themselves began to permit a “casual Friday”). In older times, a shirt-neck with studs required a starch-collar, kept in its own box, around which starched bands were then tightly tied. It could often take 20 minutes to get ready for Court, which made things fraught when an urgent interlocutory application was in the offing. (This rule was subject to its own exceptions – on one occasion, just before Christmas, Bullfry had had to appear urgently before the Duty Judge with only a tired gown to conceal his summer attire, and thongs, beneath it).

Then, things changed. The old order was shaken and replaced. The jabot made its inelegant appearance.

Writing 60 years ago John Parris did note the problems the old dress style caused: “What is productive of a great deal of discomfort is that Victorian abomination, the wing collar. I was often tempted to appear in a stock [jabot] such as were worn by barristers before the starched collar was invented.”5

Why exactly is the jabot in favour? One vendor (with emphasis supplied) notes that a “quality cotton jabot is a quick, easy and convenient alternative to the traditional shirt and collar combination.” That is the very point! It is a little like court process now requiring everything to be “quick, cheap and just” despite the contradictions inherent in severally pursuing each of those goals at the same time.

It is the very fact that no time at all is required to prepare for Court by throwing a yellowing jabot (bearing here and there the reliquiae of several post-Court caffe lattes, and red wines) which undermines, psychologically, the perceived importance of appearing at all. The vendor of the jabot goes on to observe (surely with tongue in cheek) that “cleaning a jabot can be difficult …”! You can say that again.

And that raised a more general sartorial question. It is difficult to think of a good reason, in the height of an Australian summer, to wear anything at all but a well-tailored, light weight, lounge suit. The notion of wig, Bar jacket, and gown, when the ambient temperature in 35 degrees Centigrade, and the humidity hovers at 90%, was out of date at least two decades ago.

As to wigs, they were surely way past their time. Bullfry had two at his disposal. His favourite had belonged to the judge (now long deceased) to whom he had been an Associate in the Seventies. It had cost a small fortune to be restored to its former glory – it must have been worn by its original owner at least seventy years ago – but that is the thing with horse hair – properly pomaded, it can outlast several owners.

And did the exaggerated “costume” really help the public’s perception of the Bar as an up-to-date institution? It was said that in a criminal, or fraught family matter, the wig provided a certain anonymity to its wearer, as well as underscoring the importance, and dignity, of the process at hand. But that argument was severely undercut by the obvious point that magistrates dealt with serious crime all the time and did not need any such protection.

It was a sad fact that most laymen had no real idea what a barrister did, or when or why one should be deployed. The rigmarole of wig and gown were out of tune with modern times as well as being damnably uncomfortable to wear for more than half the year. Courts had slowly been recognising this as those forums in which full regalia was required quietly reduced in number. No more in the High or Federal Court – and what would happen when the latter tribunal started to exercise a mooted criminal jurisdiction? That would be a test of principle!

No, although he hated to admit it, the time for a “uniform” of wig and gown was past – the wearers of it despaired of it and the public gawped at it in the street. Was now, perhaps, the time to dispense with it altogether?

1 RFV Heuston, Lives of the Lord Chancellors (Oxford 1964) p 392.2 See Birkenhead, The Life of FE Smith (1959) p 394.3 For a full history of how wigs and gowns became the custom in court see Isabella Clark, “On the origin of forensic frippery: the evolution of common law legal attire” [2006] NZLawStuJ 11.4 Edmund Spenser, “View of the present state of Ireland: the dialogue between Eudoxus and Ireneus”.5 John Parris, Under my wig (1961) p 37.

In a recent post on LinkedIn Roel Staes, Senior Vice President Legal, general counsel Europe, FedEx Express, wrote:

In 1944, the CIA wrote a handbook on how to sabotage (enemy) organizations from the inside. A few interesting tips:

1. Insist on doing everything through “channels.” Never permit short-cuts to be taken in order to expedite decisions.
2. Make “speeches.” Talk as frequently as possible and at great length.
3. When possible, refer all matters to committees, for “further study and consideration.” Attempt to make the committees as large as possible—never less than five.
4. Bring up irrelevant issues as frequently as possible.
5. Haggle over precise wordings of communications, minutes, resolutions.
6. Refer back to matters decided upon at the last meeting and attempt to re-open the question of the advisability of that decision.
7. Demand written orders.
8. “Misunderstand” orders. Ask endless questions or engage in long correspondence about such orders. Quibble over them when you can.
9. Do everything possible to delay the delivery of orders. Even though parts of an order may be ready beforehand, don’t deliver it until it is completely ready.
10. In making work assignments, always sign out the unimportant jobs first.
11. Insist on perfect work in relatively unimportant products; send back for refinishing those which have the least flaw. Approve other defective parts whose flaws are not visible to the naked eye.
12. When training new workers, give incomplete or misleading instructions.
13. To lower morale and with it, production, be pleasant to inefficient workers; give them undeserved promotions. Discriminate against efficient workers; complain unjustly about their work.
14. Hold conferences when there is more critical work to be done.
15. Multiply paperwork in plausible ways.
16. Start duplicate files.
17. Multiply the procedures and clearances involved in issuing instructions, paychecks, and so on. See that three people have to approve everything where one would do.
18. Apply all regulations to the last letter.
19. Do your work poorly and blame it on bad tools, machinery, or equipment. Complain that these things are preventing you from doing your job right.
20. Never pass on your skill and experience to a new or less skilful worker.
21. Snarl up administration in every possible way. Fill out forms illegibly so that they will have to be done over; make mistakes or omit requested information in forms.
22. Give lengthy and incomprehensible explanations when questioned.
23. Act stupid.
24. Be as irritable and quarrelsome as possible without getting yourself into trouble.
25. Misunderstand all sorts of regulations concerning such matters as rationing, transportation, traffic regulations.

New Year’s resolution: Do the exact opposite.

In D v D [2022] EWFC 164, United Kingdom Family Court Judge – recorder John McKendrick QC – as part of his decision on custody and access of the children of the parties, as an appendix to his reasons – wrote to the children in simple terms explaining the process and why he had come to his decision:

RECORDER JOHN MCKENDRICK QCCENTRAL FAMILY COURTLONDON30 August 2022

Dear [A] and [B]

My name is John and I am a judge.  I met your Mum and Dad at court in London last week.  Your mum and dad have asked me to make decisions for you both about where you should live.

Your Mum asked me to decide that you should both come and live with her in Somerset and sec your Dad only every second weekend and at holidays. Mum wants you to go to schools in Somerset.

Your Dad asked me to decide that things should stay as they are. That you spend one week with

him and the other week with your Mum in London. Dad wants you to go to schools in London.

I think you met a lady called Shelley in July and you told her what you wanted. She told me you both liked the idea of living with your Mum in Somerset. Shelley spoke to me as well last week.

I hope you both understand that I have made the decision and not your Mum or your Dad. Judges sometimes have to make decisions when parents cannot agree.

I have decided you should both continue to live in London with one week in the care of your Dad and then one week in the care of your mum. This means you will both go to school in London from next week. I have decided you should have nice holidays in Somerset and I will speak with your Mum and Dad again to sort that out.

I have made this decision after considering who you both are, what you both need and things like your education, happiness and your welfare. I have decided you need each other – I think you are good brothers to each other. I also think you need to spend time with your Mum and with your Dad. They both need to play an important role in caring for you. I was worried your Dad might not have a full and proper role in your lives if you lived in Somerset. Looking at all these things in the round I felt that was the best decision for you both, although of course I considered what you both wanted.

I have also asked your Mum and Dad to behave a bit better.  I know you both find the arguing that happens between them difficult. Although it is a naughty word, [A], you are right to describe it to Shelley as “crap”.  I have told your parents to stop “the crap”.

I hope you can both settle down with the new school term with week about with Mum and Dad in your London homes. I hope you will enjoy nice holidays in Somerset. I wish you both good luck.

Judge John

A recent article in The Law Society Gazette (UK) reported that the international law firm, Allen & Overy, is integrating Harvey, the artificial intelligence platform built on a version of Open AI models enhanced for legal work, into its global practice. The firm announced that Harvey will empower more than 3,500 of A&O’s lawyers across 43 offices operating in multiple languages with the ability to generate and access legal content ‘with unmatched efficiency, quality and intelligence’.

A link to The Law Society Gazette (UK) article, published on the 15th February 2023, can be viewed here.

On 16 February 2023 the Commonwealth Attorney General released the “Privacy Act Review Report”.  While a wide ranging document, two aspects of the proposals therein – in respect of which feedback is sought by 31 March 2023 – are the enactment of a direct right of action for breach of privacy and the creation of a statutory tort of privacy. Attached is an extract from the (lengthy) report consisting of the executive summary and portions thereof relating to those two aspects.

Such a victory is one which inflicts such a devastating toll on the victor that it is tantamount to defeat.  A synonym for “Pyrrhic” is “worthless” or “hollow”.

The phrase originates from Pyrrhus, a Greek king and statesman of the Hellenistic period.   Pyrrhus was born in 318BC and died in 272BC.  He was king of Epirus, and was one of the strongest, and most successful opponents of early Rome.  He is regarded as one of the greatest generals of antiquity.

The army of Pyrrhus defeated the Romans at the Battle of Heraclea in 280BC and at the Battle of Asculum in 279BC.  In the latter battle the Romans lost 6,000 men and Pyrrhus 3,500 including most of his officers.  There is attributed to Pyrrhus, following his victory at Asculum, the statement that has led to the use of the phrase “Pyrrhic victory” in modern idiom:  “If we are victorious in one more battle with the Romans, we shall be utterly ruined”.

An example of modern usage is this: 

“The defendant was successful in striking out the plaintiff’s statement of claim on various grounds, but so much was a Pyrrhic victory because the repleading of the case by the plaintiff well placed it to succeed in the litigation”.

In Greek mythology, the god Prometheus stole fire from heaven to give to the human race, originally consisting only of men. To punish humanity, the other gods created the first woman, the beautiful Pandora. As a gift,  the god Zeus gave her a box, which she was told never to open.  Ignoring this adjuration, she opened it, and out swarmed all the troubles of the world, never to be recaptured. Only Hope remained in the box.

Thus, an object – or, in modern mores, a proposal – that looks ordinary, but which may yield a raft of unpredictable and intractable problems if used or deployed, is a “Pandora’s box.

An example of its use in modern idiom is:

“Adoption of these fiscal policies by government might open a Pandora’s box of inflationary wage claims”.

While language is fluid, augmented by usage – as the last two entries exemplify – it is not always fashionable, or compelling.  In Speziali v Nortask Pty Ltd, in the trial of the proceeding on foot in the Supreme Court at Brisbane before Hindman J on 6 March 2023, the following exchange occurred between bench and bar in the opening of the plaintiff’s case:

MR WOODS: Your Honour will hear the plaintiff give evidence regarding his observations of the ground, the concrete at the base of the tower and the conditions  of the rungs of the ladder before he climbed up on the first occasion that morning. He will say that south of the structure, the soil was black, that it was very wet, sticky. He will describe it as puggy, p-u-g-g-y, and that was where the crane was positioned. And he – – –

HER HONOUR: Is that an actual word – – –

MR WOODS: Well, it’s a – – –

HER HONOUR: – – – that I should know the meaning of?

MR WOODS: It’s a word that the plaintiff professes is a word and I accept.

HER HONOUR: Do you know what it means?

MR WOODS: It is another way to describe the combination of a sticky, boggy – – –

HER HONOUR: Okay. Okay.

MR WOODS: Not different to – – –

HER HONOUR: That’s what it means, that’s – – –

MR WOODS: – – – the preparation of a banana bread before it, you know, enters the tray, perhaps, as a good example, given that I’ve taken up cooking.

HER HONOUR: Okay

As it transpires, research reveals that two online dictionaries – Collins Dictionary and Dictionary .com  – have it that the word “puggy” has New Zealand lexiconic origins, and means “sticky, claylike”. Perhaps the plaintiff in the above case is ahead of all of us.

And I wonder whether counsel brought his banana bread to the case morning teas during the trial.