In reading the words of my predecessor, I am reminded that 2020 brought with it unimaginable challenges, many of which we are continuing to work through today. However rather than dwell on the negative, I would like take this opportunity to acknowledge and celebrate the achievements within the profession over the past 12 months.
I would like to congratulate members of the profession for their continued resilience in challenging and uncertain times, and for the support shown to fellow colleagues. I would also like to express my sincere thanks to the Bar Council for their contributions this past year.
Acknowledgment must also go to the Association for the delivery of 40 CPD events including three in-person conferences, none of which would have been possible without the tireless efforts of the respective committees in bringing these programs together.
Bar Practice Course 75 was successfully delivered earlier this year for 37 pupils and 139 volunteer members of the Judiciary and the Bar. Course 76, with 36 participants was also very recently delivered. Each course was delivered using both virtual and in-person technology. The Association was able to achieve a seamless transition between those delivery methods thanks to the hard work of the BPC Committee, Association staff and volunteers.
We also welcomed Daniel Connop from Griffith University who was the successful applicant from the 2021 Indigenous Law Student Program. Over a three week period, Daniel attended the Federal Court of Australia, guided by the Honourable Justice Collier, the Supreme Court of Queensland, by the Honourable Justice Bowskill and a final week in barrister’s chambers with Lincoln Crowley QC.
The Association has proudly supported a range of organisations and external events who promote diversity and inclusion to current and future members of the profession:
Queensland Intervarsity Law Competition 2020
Asian Australian Lawyers Association’s National Cultural Diversity Summit 2020
Lawright Inc
Austlii Foundation Ltd
University of Queensland scholarship
Pride in Law
Women Barristers Drinks
FNQ Law Association Inc
I would also like to thank the Bar Care Committee for their work on a series of Wellbeing Conversations. These candid conversations shine a light on barristers’ health and wellbeing through the sharing of stories and strategies for staying well.
Lastly, I would like to express my thanks to the entire profession for making my first twelve months in the role of President both rewarding and productive.
Tom Sullivan QC
Welcome to the December 2017 edition of Hearsay .
Judicial Appointments
There has been a number of appointments since the last edition:
The Hon Justice Ann Lyons was appointed as Senior Judge Administrator on 24 August 2017.
On 29 September 2017, Mr Peter Davis QC was appointed as a Justice of the Supreme Court of Queensland effective from 16 October 2017.
On 29 September 2017, it was also announced that Ms Tracy Fantin was appointed as a Judge of the District Court of Queensland, also effective from 16 October 2017.
A Welcome Ceremony for Bernard Porter QC (appointed 28 August 2017) and Jennifer Rosengren (appointed 11 September 2017) as Judges of the District Court of Queensland, was held on Friday 13 October 2017.
The Hon Justice Daubney was appointed President of the Queensland Civil and Administrative Tribunal on 16 October 2017.
Professor Sarah Derrington was appointed President of the Australian Law Reform Commission (ALRC) for a five year term and also appointed a Justice of the Federal Court of Australia, from which she is seconded during her tenure as President of the ALRC.
New Queen’s Counsel
After a slight delay due the State election, it was announced that the following barristers had been appointed Queen’s Counsel for 2017:
Justin Andrew Greggery
Melanie Heather Hindman
Michael Robert Hodge
Benjamin Job
John William Peden
Darlene Ann Skennar
Michael Anthony Williamson
Bar Council Elections 2017
As a result of the Bar Council election, the following were elected:
President: Gavin Alexander (Sandy) Thompson QC
Vice President: Rebecca Mary Treston QC
Council:
Glen Peter Cash QC
Nicholas Andreatidis
Thomas Joseph Bradley QC
Florence Jing-Wen Chen
David Edward Francis Chesterman
Liam Matthew Dollar
Catherine Claire Heyworth-Smith QC
Michael Robert Hodge QC
Keith Sylvester Howe
Viviana Patricia Keegan
Douglas Robert Murtagh Murphy QC
Bernard Reilly
Christopher James Ryall
Andrew Neil Schonell Skoien
Kate Ellen Slack
Thomas Philip Sullivan QC
Congratulations to all those recently appointed and elected.
Vale
Sadly, Mr Peter Darwin who was called to the Bar on 19 August 1975, passed away on 13 September 2017, aged 68 years.
This Edition
In this edition, we are lucky to have an excellent paper by Justice Peter Applegarth, marking 150 years since the birth of Lord Atkin, at Tank Street, in the heart of the legal precinct. As his Honour’s paper amply demonstrates, Lord Atkin rose from humble beginnings to the height of the legal system, showing yet again that anything is possible.
Also included in this edition are some excellent papers and book reviews, which I trust readers will find interesting and informative.
From all at Hearsay I would like to wish all readers a happy and safe holiday period and best wishes for the coming year. I would also like to record my thanks and appreciation to Assistant Editor Jennifer Hewson, Book Review Editor Stephen Keim SC, Greg and his staff at Getset Media and Brett and his staff at Cyberstyle, Kelsey Rissman and the staff at the Association, as well as all the contributors throughout the year, and, of course our loyal readers.
Adrian Duffy QC
Editor
JUDICIAL APPOINTMENTS
As announced in the previous edition of Hearsay, on 4 February 2015, Justice Anthe Philippides was sworn in as a Justice of Appeal and Martin Burns QC was sworn in as a Judge of the Supreme Court in the Trial Division.
As also mentioned in the previous edition, Justice Philippides needs no introduction. Among a long list of achievements, her Honour was also recently named as Queensland Patron of the Hellenic Australian Lawyers Association. The speech by Chief Justice French at the launch of the Association in Queensland is included in this edition.
Justice Burns joins a distinguished list of alumni of the firm of M G Lyons & Co who have been elevated to the Bench, which includes the late Justice Neil Buckley, former Senior Judge Administrator of the Family Court, Justices Colleen Moore, Peter Murphy and Michael Kent of the Family Court, Judge David Reid of the District Court and Chief Magistrate Ray Rinaudo.
The speech by Chief Justice Carmody on the occasion of the swearing in may be accessed here.
Prior to Christmas, the Attorney-General and Minister for the Arts, Senator the Hon George Brandis QC, announced the appointment of the Honourable Justice James Edelman to the Federal Court of Australia to be based in Brisbane. It is understood the Swearing-in ceremony will be in April 2015.
On 19 March 2015 it was announced that John Bond QC had been appointed as a Judge of the Supreme Court of Queensland. His Honour was called to the Bar in 1987 after having served as Associate to the Hon Justice Sir Gerard Brennan at the High Court. He took silk in 1999. He served as a part time member of the Law Reform Commission for 9 years. He had an extensive commercial practice and was particularly prominent in construction law.
Congratulations to their Honours.
RETIREMENT OF BELL J
A ceremonial sitting of the Family Court of Australia to mark the retirement of The Honourable Justice Bell was held on Friday, 20 February 2015.
Justice Bell was the only remaining member of the Australian judiciary to hold a life appointment. His Honour was the longest serving judge of any superior court in Australia and retired on the 39th anniversary of his appointment.
AUSTRALIA DAY HONOURS – THE HONOURABLE JUSTICE ROSLYN GAY ATKINSON AO
It was announced as part of the Australia Day Honours list that Justice Atkinson had been appointed to the Order of Australia in the General Division for distinguished service to the judiciary and to law reform in Queensland through contributions to the legal profession and to promoting awareness of issues of injustice and inequality in Australia and internationally.
Congratulations go to her Honour from all in the profession on this very important honour.
VALE BILL CARTER, 1930-2015
The Honourable William Joseph Carter QC, former Judge of the Supreme Court, sadly passed away on 28 January 2015.
Bill Carter was admitted to the Bar on 16 December 1959 and practised in Townsville and Brisbane. He was appointed a judge of the District Court of Queensland on 4 February 1980. On 12 May 1983, he was appointed a judge of the Supreme Court of Queensland, from which he resigned on 31 May 1990. During his retirement years, he conducted a series of Commissions of Inquiry. A Requiem Mass was held on Wednesday, 4 February 2015, at St Columba’s Catholic Church, at Wilston, followed by interment at Nudgee Cemetery.
CHANGES TO CPD RULES
The Bar Council has resolved to bring CPD accreditation into line with other Australian Bars and the Bar of England and Wales and, accordingly, members will self accredit CPD activities, effective immediately. Notes on the procedure may be found in paragraphs 1 to 4 in the attached “Changes to CPD Requirements”.
To assist members, BAQ will continue to give details of available CPD points and mandatory strands for all CPD activities.
In the new CPD year commencing 1 April 2015, further accord with the CPD schemes of the other Australian Bars will be implemented. The categories in the new Rules are referred ted to in paragraph 5 of the attached document, and further updates on guidelines and policies of the new Rules will be circulated before the commencement of the new CPD year.
BAR CONFERENCE
The annual Bar Conference for 2015 was recently completed — and a very successful and stimulating conference it was yet again. Congratulations to the conference committee and all concerned.
Some of the papers delivered at the conference are published in this edition. Hopefully more will follow.
I hope there is something useful or interesting for all readers.
Adrian Duffy
Editor
Judicial Appointments
A Valedictory Ceremony to honour and farewell the Honourable Justice John Dowsett AM of the Federal Court of Australia, was held on Thursday 26 April 2018. A copy of the President’s speech on that occasion may be accessed here .
The following day, his Honour took up appointment as President of the National Native Title Tribunal.
Congratulations also to the following whose appointments were announced since the last edition:
His Honour Judge Michael Williamson QC and his Honour Judge Nathan Jarro to the District Court of Queensland. A copy of the President’s speech on the occasion of the welcoming ceremony on 12 April 2018 may be accessed here .
His Honour Judge John Coker to the District Court of Queensland.
Mr Glen Cash QC, member of Bar Council, as a Judge of the District Court of Queensland, based at Maroochydore.
His Honour Judge Steve Middleton as a Judge of the Federal Circuit Court of Australia, Townsville.
Ms Viviana Keegan and Ms Philippa Beckinsale as Magistrates. A copy of the speech by the Honorary Treasurer, Mr Bradley QC, at the welcome ceremony held on 20 June 2018 may be accessed here
Mrs Tracyann Mossop as a Magistrate based in the Ipswich region before transferring to Dalby.
Mr Terence Browne as a Magistrate in Cairns before being appointed to Townsville.
Queen’s Birthday Honours
Congratulations to the following members of the judiciary who were recognised in the Queen’s Birthday Honours List.
The Honourable Justice Alfred Martin Daubney AM, for significant service to the law, and to the judiciary, to education, and to the community.
His Honour Judge Stuart Gordon Durward AM, for significant service to the law, and to the judiciary, to the provision of legal services to the Australian Defence Force, to education, and to the community.
His Honour Judge Michael John Shanahan AM, for significant service to the judiciary and to the legal profession as a judge and as an advocate and mentor for juvenile and Indigenous justice issues.
Judge Josephine Willis AM of the Federal Circuit Court of Australia, for significant service to the judiciary, and to the law, to Indigenous access to justice initiatives, and to cultural diversity.
Other Appointments
Mr Kenneth Fleming QC was appointed as the first Independent Commissioner Against Corruption (ICAC) in the Northern Territory.
Retirements
a Valedictory Ceremony to honour and farewell His Honour Judge John Robertson of the District Court of Queensland, will be held on Thursday 17 May 2018
a Valedictory Ceremony to honour and farewell Magistrate Bernadette Callaghan of the Magistrates Court of Queensland, will be held on Friday 22 June 2018.
Vale
The Honourable Kevan John Townsley passed away, at the age of 88 years.
Judge Townsley was first admitted as a Barrister-at-Law on 13 April 1955.
In his distinguished career, he was a former Crown Prosecutor, former Magistrate in Hong Kong and a former Judge of the High Court of Fiji.
Graham Charles Rhead who was called to the Bar on 7 November 1977, passed away on Tuesday 19 June 2018. He was 70 years of age.
Kevin Barry Harcourt Egan RFD who was called to the Bar on 6 June 1983, passed away on Sunday 17 June 2018. He was 71 years of age. Mr Egan was a former DPP of Papua New Guinea before his admission to the Hong Kong Bar in 1980, where he continued to practise until his death.
Leo Joseph Murray CB QC passed away on Thursday 21 June 2018. He was 91 years of age. Mr Murray was called to the Bar on 21 December 1951, and practised until 1989. He was a former Crown Prosecutor and Parliamentary Counsel. He appeared at the trial, and the subsequent appeals up to the High Court for the first criminal prosecution in Australia to convict on circumstantial evidence alone: Plomp v R (1963) 110 CLR 234. The High Court upheld Plomp’s conviction. He was appointed Queen’s Counsel for the State of Queensland on 11 November 1980 and was awarded as a Companion of the Order of the Bath, on 21 June 1986.
Bernard Joseph Catt who was called to the Bar on 22 September 2006 also sadly passed away, aged 46 years.
Paul Marshall Mason, who was called to the Bar on 11 November 1999, passed away on Wednesday 22 August 2018. He was 65 years of age. Mr Mason was a former Commissioner for Children in Tasmania and a well-regarded Family Law Barrister in Brisbane
Queensland Legal Walk and Donation to Lawright
On Tuesday 15 May 2018 hundreds of lawyers, judges and supporters participated in the 2018 Queensland Legal Walk, which recognises the role of the profession in undertaking pro bono work and, most importantly, raises funding for LawRight.
The Honourable Yvette D’Ath MP, Attorney-General and Minister for Justice and the Honourable Walter Sofronoff, President of the Court of Appeal, joined participants on a chilly early morning walk from the Queen Elizabeth II Courts of Law complex, to Parliament House, over the Goodwill Bridge, along the Clem Jones Promenade and back across the Kurilpa Bridge.
A number of members participated in the Legal Walk by walking in the Bar Association team, in their chamber’s teams, or made a donation to LawRight in support of the walk.
Of particular note, North Quarter Lane Chambers raised over $9,000 for LawRight. The Bar Association of Queensland team raised approximately $5,000. In total, the walk has raised almost $100,000 for LawRight.
LawRight (formerly the Queensland Public Interest Law Clearing House “QPILCH”) is an independent, not-for-profit, community-based legal organisation coordinating the provision of pro bono legal services for individuals and community groups in Queensland.
LawRight is a partnership of law firms, barristers, the Community Legal Centres Queensland, the Queensland Law Society, the Queensland Bar Association, Legal Aid Queensland, university law schools, accountancy firms and government and corporate legal units. Its Patron is The Honourable Catherine Holmes, Chief Justice of Queensland.
LawRight operates a civil law referral service and direct legal services for particular disadvantaged client groups, and undertakes law reform, policy work and legal education.
Recently the President announced that the Association had concluded an agreement with the Supreme Court Library Queensland (SCLQ) for SCLQ to become the BAQ member library. The President reminded members that the library is a great resource and recommended the Library facilities and services to all members.
BAQ members are able to access a range of free library services online, in person, and by subscription, including:
legal research – up to 30 minutes of free research assistance a day
document request service (copies of judgments and other documents not available online) – up to 10 free documents a day
resource support and guidance – learn how to get the most out of the library’s databases, collections and subscriptions
New barristers (called to the private bar less than 3 years ago) will also have access to the Virtual Legal Library (VLL). VLL provides free online access to over 100 key legal resources in the areas of civil, criminal and family law from leading publishers including LexisNexis, Thomson Reuters and CCH. Available publications include core commentary services, law reports, textbooks and journals.
Brisbane Open House 2018âgo behind-the-scenes of the QEII Courts of Law
Supreme Court Library Queensland and Queensland Courts have partnered to participate in Brisbane Open House, an annual festival that provides Brisbane residents and visitors with the rare opportunity to discover the hidden wealth of architecture, engineering and history in buildings and places around the city.
We are excited to open the doors of the Queen Elizabeth II Courts of Law to the public on 13 October for free behind-the-scenes tours of the Brisbane Supreme and District Courts, and the Supreme Court Library.
Brisbane Open House 2018: Free public tours of the QEII Courts of Law
Saturday 13 October, 10am to 3pm
· Free guided tours running every half hour
· Bookings essential (strictly no walk-ins)âtickets available from Friday 28 September via Brisbane Open House
The Bar Council has approved Workplace Bullying Guidelines. These Guidelines focus on bullying towards BAQ staff members and service providers and bullying between barristers and other members of the legal profession.
These Guidelines may also be accessed on BAQ’s website under the Rules & Guidelines tab.
This Edition
As usual, there are many excellent papers and other interesting items for your reading enjoyment.
Happy reading!
Adrian Duffy QC
Editor
RESIGNATION OF THE CHIEF JUSTICE
It was announced on 1 July 2015 that the Chief Justice of Queensland, the Honourable Tim Carmody, had resigned his office as Chief Justice, while remaining a judge of the Supreme Court.
The President of the Association, Shane Doyle QC, wrote to members that the Association respected his Honour’s decision as one taken in the interests of restoring the dignity of the Court and public confidence in the administration of justice. The President continued that his Honour would have the support of the Bar in the discharge of his role as a judge of the Supreme Court and in particular as a judicial member of Queensland Civil and Administrative Tribunal.
At the time of publication, an appointment of the next Chief Justice was yet to be announced.
JUDICIAL APPOINTMENTS
A ceremonial sitting of the Full Court of the Federal Court of Australia was held on Monday, 20 April 2015 to welcome the Honourable Justice James Edelman as a Judge of the Federal Court in Brisbane.
Mr Anthony Moynihan QC, who held the position of Director of Public Prosecutions for Queensland since June 2008, has been appointed as a Judge of the District Court of Queensland.
Congratulations and best wishes to their Honours.
RETIREMENT
A valedictory ceremony to mark the retirement from the District Court of his Honour Judge Hugh Botting was held on Friday, 26 June 2015.
The speech delivered by Hughes QC on the occasion of his Honour’s retirement is included in this edition.
A valedictory ceremony was also held on 26 March 2015 to mark the retirement from the Supreme Court of the Honourable Justice Alan Wilson. The speech delivered by Diehm QC, Vice President of the Bar, may be accessed here.
VALE BOB WENSLEY
Robert Neilson Wensley QC, BE (Chem) (Hons), MEngSc, LLB (Hons), Hon. LLD (Qld) passed away on 19 May 2015, aged 70 years.
Bob Wensley was called to the Bar on 16 December 1976 and was appointed silk on 2 December 1993.
During his career as a barrister he was a Member of the Criminal Justice Commission Misconduct Tribunal from 1990 to 1993 and in 1998 was an Acting Judge of the District Court of Queensland.
A Memorial Service to acknowledge his life and achievements and his contribution in so many areas (most notably the law and the University of Queensland and, within it, the Kings College community), was held at Kings College, on Tuesday 9 June 2015. Further details of Bob’s extraordinary contributions may be found here on the UQ website.
The following Queen’s Birthday Honours were announced on 8 June 2015:
The Honourable Justice Patrick Anthony Keane — Companion of the Order of Australia (AC) – For eminent service to the law and to the judiciary, through contributions to improved legal and public administration, as an advocate for increased access to justice, to ethical standards, and to a range of professional organisations.
Justice Keane is, of course, a Life Member of the Association.
Mr Graeme John Neate — Member of the Order of Australia (AM)
For significant service to the law as a leading contributor to Indigenous land rights and to legal education.
Industrial Commissioner Neate is a Member of the Queensland Industrial Relations Commission.
BAR AND BENCH GOLF DAY
Members are reminded that due to the unfortunate wet weather causing cancellation of the Bench & Bar Golf Day on Sunday, 3 May 2015, the event has been rescheduled for Sunday, 2 August 2015.
As previously arranged, the event will be held at the Brisbane Golf Club, 70 Tennyson Memorial Avenue, Yeerongpilly.
OPENING OF THE LAW YEAR
The Church Service for the Opening of the Law Year is to be held at the Greek Orthodox Church of St George, 33 Edmonstone Street, South Brisbane on Monday 3 August 2015. The procession gathers at 9:15 and commences at 9:25am. Robes and decorations should be worn.
US SUPREME COURT AUDIO FILES
There has been much discussion in recent times among the profession and the Judiciary about electronic recording and publishing of court proceedings.
The Supreme Court of the United States has been making audio recordings of oral argument before the Court since 1955. Copies are kept in the National Archives.
Recordings made since 2010 are available online and are uploaded weekly in various formats. A pdf of the transcript of argument is also available online.
READERS’ FEEDBACK
Hearsay welcomes feedback from readers about the publication and particularly, how it might be improved to better meet the needs or desires of readers. Please feel free to contact me at awduffy@qldbar.asn.au .
I trust there is something useful or interesting in this edition for all readers.
Adrian Duffy
Editor
It is with great pleasure that the Bar Association brings to you this edition of Hearsay. We hope you enjoy the variety of content in this edition.
The time since the last edition of Hearsay has seen changes in editorial responsibility for publication. Thanks must go to Adrian Duffy QC who, as Editor for many years, has worked tirelessly to produce many editions of Hearsay. On behalf of the Bar Association, I would like to thank Adrian along with his dedicated assistant, Jennifer Hewson for the enormous effort they have put in over the years to get Hearsay onto member’s desks. Their efforts have been much appreciated. Thanks must also go to those who have agreed to assume all responsibility for future publications – Andrew Skoien as the Editor with Holly Blattman, Kasey McAuliffe-Lake, David Purcell and Amy Low as Sub-Editors on the Editorial Committee for Hearsay.
The Annual Bar Dinner was held on Friday 26 July 2019. It was a most successful evening. Be sure to look through the photographs of the event, and in particular, to read the toasts which were made to four members of the Bar who were honoured at the Dinner. On that occasion I said:
“This evening, in addition to the usual toasts however, we also mark a most special occasion.
Tonight, we celebrate the achievements of four of our members who have reached a remarkable milestone. Each of them, 50 or more years of practice as a barrister. … They are Marshall Cooke RFD QC, John Gallagher QC, Lister Harrison QC and Ian Hanger AM QC. All except John Gallagher have been able to join us tonight. John is traveling overseas for his grand daughter’s wedding. I have spoken to him and his wife Susan, and I know he is most disappointed not to be here this evening.
I take nothing away from those of our profession who have attained judicial office when I say it is something quite remarkable to have maintained practice at the Bar for such a length of time. This is a demanding profession. It requires intellectual rigor, discipline and courage. It is not for the faint-hearted. And it comes at considerable personal sacrifice. Marshall, John, Lister and Ian have displayed their skills and their commitment to the law, each for more than 50 years. And so, it is fitting, and important, that we honour them tonight.
It is, I think, no coincidence, that the occasion upon which we celebrate the achievements of these remarkable barristers, is the occasion we have a record number of people at the Bar Dinner. It is a testament to them, and the high regard in which they are held. …
In a tradition reminiscent of the days in which we invited the most junior members of the Bar to make the toast to the Judiciary, we will have four of our newest barristers, readers in their first year of practice, to read the presentations to our four very senior silks. These new members, who were chosen entirely at random, are ones for whom practice is counted in days or maybe weeks rather than years. They are Justin Byrne, Sophie Gibson, Rachel Taylor and San-Joe Tan.”
The tribute to Marshall Cooke RFD QC, John Gallagher QC, Lister Harrison QC and Ian Hanger AM QC made the Bar Dinner for 2019 a very special event.
CPD continues to be a significant focus of the Bar Association with 19 seminars and four conferences having taken place in 2019, and a further 10 seminars and one conference scheduled before the end of the year. In October, members are encouraged to attend the Tristan Jepson Memorial Foundation — Minds Count Lecture which highlights the importance of mental health in the legal profession. Other seminars include insights into conducting workplace investigations and the Current Legal Issues Seminar which examines International Law and the prospect for reform of Investor-State Dispute Settlement.
Bar Council has been busy this year. The first fully electronic processing of practicing certificates proceeded which has allowed Bar Association staff to operate with improved efficiencies.
The staff have also been pushing towards the finalisation of a new format for Hearsay which will, in future, make the editions easier to produce so that, hopefully, they can be produced with more regularity. Any member who has anything to contribute to Hearsay at any time should feel free to contact the Editor, Andrew Skoien, or me, with their suggestions. Hearsay appreciates content of anything ranging from case notes, articles and analysis of new legislation through to the wrap up of Association social functions. Additionally, members can earn CPD points by their contributions to Hearsay.
The various sub-committees of the Bar Association have had a busy year. To name but a few submissions and reports :
1 February 2019 — Criminal Law Committee – submission to the Attorney-General re Criminal Justice Report released by the Royal Commission into Institutional Responses to Child Sexual Abuse;
5 February 2019 — Criminal Law Committee — submission to the Attorney-General re Criminal Code and Penalties and Sentences Amendment Bill 2019;
11 February 2019 — public hearing of the Senate Legal and Constitutional Affairs Committee re Inquiry into the Australian Citizenship Legislation Amendment (Strengthening the Commitments for Australian Citizenship and Other Measures) Bill 2018 (Cth);
11 March 2019 — Criminal Law Committee — submission to Legal Affairs and Community Safety Committee re Criminal Code and Other Legislation Amendment Bill 2019 and Criminal Code and Other Legislation (Mason Jett Lee) Amendment Bill 2019;
14 March 2019— General Litigation Committee — submission to Insurance Commission Queensland Treasury re Motor Accident Insurance (Claim Farming) Amendment Bill 2019;
15 March 2019 — Criminal Law Committee — submission to Economics and Governance Committee re Police Service Administration (Discipline Reform) and Other Legislation Amendment Bill 2019;
20 March 2019 — Criminal Law Committee — submission to the Queensland Sentencing Advisory Council re intensive community correction orders;
30 April 2019 — Administrative Law Committee — submission to the Attorney-General re Section 100 of the Coroners Act 2003;
3 May 2019 —submission to the Review of the Births, Deaths and Marriages Registration Act 2003;
18 May 2019 – Building and Construction Law Committee — submission to the Department of Housing and Public Works re Subcontractor non-payment in the Queensland Building Industry;
18 June 2019 — Judicial Retirement Subcommittee — examination of the advantages and disadvantages of increasing the judicial retirement age;
19 June 2019 — Criminal Law Committee — submission to the Queensland Sentencing Advisory Council re review of community based sentencing orders, imprisonment and parole options;
15 July 2019 — General Litigation Committee — submission to the Economics and Governance Committee re Motor Accident Insurance and Other Legislation Amendment Bill 2019; and
22 July 2019 —public hearing of the Economics and Governance Committee re Motor Accident Insurance and Other Legislation Amendment Bill 2019; and
Important work was also carried out by a sub-committee in relation to judicial conduct. Both barristers and judges have an obligation to conduct themselves respectfully and properly in the conduct of hearings. The Conduct Policy, which is being developed in close association with the State’s judicial officers, is something that the Bar Association hopes will contribute meaningfully to the highest standards of conduct on both sides of the Bar table.
In addition, eight professional conduct reports have been finalised in 2019 to date by the Professional Conduct Committee.
Although applications for Silk for 2019 are now upon us, this edition of Hearsay contains the most entertaining speech given by Damien Atkinson OAM QC at the Silks Dinner in December 2018. Please enjoy it.
On 21 September 2019, the Queensland Bar will compete against the New South Wales and Victorian Bars in an Annual Football (soccer) Championship. The matches are to be held at the grounds of the Brisbane City Football Club at 38 Newbery Street, Newmarket from about 12:45pm. Members of the Association who wish to participate in one or more of the football games, or merely to attend, spectate and support the members of the Queensland Bar, are most welcome. Players can register their interest by contacting Andrew Skoien.
Planning is well underway for the Annual Bar Conference for 2020. The 2020 Conference will be a very significant event in the Bar’s calendar next year. It is to be held in conjunction with the Australian Bar Association, and so it is expected to attract members of the profession, academics and judicial officers who are local, interstate and international. The Conference will commence with Welcome Drinks on Thursday 5 March 2020 at the W Hotel, and will then proceed over Friday 6 and Saturday 7 March. A fabulous conference dinner will be held on Friday 6 March. The Conference will provide the perfect opportunity to re-connect with friends and colleagues as well as offer the opportunity to collect all your CPD points for the year. Please mark your diaries for this important conference.
I conclude by thanking members for the support which they have extended to the Bar Council this year. Members of Bar Council give generously of their time for the betterment of the profession. Much of what they do impacts not just on their workday, but upon their personal time away from chambers. Their contribution to the ongoing CPD programs, the development of policy and the health and wellbeing of members of the Bar is something of which the Association is most proud.
Rebecca Treston QC
President
Welcome to the latest edition of Hearsay. Much has happened since the last edition and we have an interesting array of pieces for your reading pleasure.
Vale
Since the last edition, we have seen the passing of the Honourable James Patrick O’Hara Barry, a former Justice of the Family Court of Australia.
Justice Barry retired from the Family Court of Australia on 27 June 2011 after 27½ years of service. He was the first judge appointed to the Townsville registry of the Court and served there from 1983 until 2000 when he transferred to Brisbane. In 1988 his Honour was also appointed a Presidential Member of the Commonwealth Administrative Appeals Tribunal.
We also saw the passing after a short illness of one of our members, Guy Burridge who was called to the Bar on 8 November 1999.
Valedictory Ceremony for The Honourable Paul de Jersey AC, Chief Justice of Queensland
Members are reminded that the Valedictory Ceremony in honour of the retiring Chief Justice, the Honourable Paul de Jersey AC, will be held on Friday 27 June 2014. The ceremony will be held at 9.15am in the Banco Court, Level 3 Queen Elizabeth II Courts of Law, 415 George Street, Brisbane.
Queen’s Birthday Honours
Congratulations go to her Honour Chief Judge Patricia Mary Wolfe who was made Officer of the Order of Australia (AO) in the Queens’ Birthday Honours List. The citation read:
For distinguished service to the judiciary, to the law through legal education reform, and as a mentor and role model for women.
Her Honour was admitted as a barrister in 1978. She served as Deputy Commissioner in the Commission of Inquiry that became known as the Fitzgerald Inquiry. Her Honour was appointed to the District Court in 1995 and became Chief Judge in 1999.
New Chief Justice
The Honourable Judge Tim Carmody QC, the Chief Magistrate, has been appointed as the next Chief Justice of the Supreme Court of Queensland to succeed the Hon Paul de Jersey AC, on 8 July 2014.
Judge Carmody was admitted to the Bar in 1982 and took Silk in 1999. From 1987 to 1989, he was Counsel Assisting the Fitzgerald Inquiry into police corruption. From 1996 to 1997 he was Counsel Assisting the Inquiry into the Criminal Justice Commission and from 1998 to 2002 he was the Queensland Crime Commissioner. In 2003 he was appointed a judge of the Family Court of Australia, a position he held until 2008. Prior to his appointment as a District Court Judge and Chief Magistrate in September 2013 he served as Chairman of the Queensland Child Protection Commission of Inquiry.
Congratulations and best wishes go to his Honour for the challenge ahead.
Resignation of Davis QC
On a sad note for the bar, Davis QC recently tendered his resignation as President of the Bar.
Davis QC was called to the bar in 1990, having first practised as a solicitor since 1984. He took silk in 2005. He has been a member of the Bar Council since 2007 and has served as Chair of the Criminal Law Committee and Professional Conduct Committee and as Vice President prior to becoming President.
Members will no doubt join in expressing gratitude to him for his sterling service.
New Bar Office Holders
Doyle QC succeeds Davis QC as President of the Bar. Doyle QC has practiced as a barrister since 1987 and took silk in 1995. He had previously practised as a solicitor for some years. He has been a member of the Bar Council from 2002 to 2008 and from 2011 to date, and of course recently served as Vice President. He has been Chair of the Commercial Law Committee since 1996.
Diehm QC has become the new Vice President of the Bar. He was called to the Bar in 1991 and took silk in 2008.
Hunter QC has taken up the vacant position as member of Council. Hunter QC was called to the Bar in 1987 and took silk in 2008.
Congratulations and best wishes to each of them for the challenges ahead.
Happy reading.
Adrian Duffy
Welcome to the August 2016 edition of Hearsay.
APPOINTMENTS
Her Honour Judge Fleur Kingham was appointed as the President of the Land Court of Queensland effective from 8 August 2016.
The Honourable Margaret White AO, former Justice of the Supreme Court of Queensland, has been appointed along with Mr Mick Gooda, who up to 1 August 2016 was the Aboriginal and Torres Strait Islander Social Justice Commissioner, to head the Commission of Inquiry into the Child Protection and Youth Detention Systems of the Northern Territory.
MACKAY CHURCH SERVICE
I recently had the pleasure, along with Heyworth-Smith QC, of attending the Church Service for the Opening of the Law Year in Mackay. The procession was led by Justice McMeekin and Judge Butler, each of whom was sitting in Mackay, and included other judicial officers, and members of the Bar. The service was well attended by members of the solicitors’ branch and members of the public.
The service was held at Holy Trinity Anglican Church, which has an interesting history. The church was built on the site in 1870-71, but it collapsed in 1878. The second church building was destroyed by cyclone in 1918. The church organ was removed and restored and the installed in the All Hallows Chapel in Brisbane, where it remains.
I am happy to report that the Mackay Bar is small but active. Readers are encouraged to make contact when visiting Mackay.
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.
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
Welcome to the current edition of Hearsay.
CEDRIC HAMPSON QC
In this issue we commemorate the sad passing of one of the icons of the Bar, Cedric Edward Keid Hampson AO RFD QC.
As President Doyle QC wrote:
“He was in every sense a leader of the Bar and of this Association as well as a leader in the wider community.”
Justice Applegarth recently wrote of Cedric:
“For lawyers of my generation Cedric was, and will be remembered as, a revered tribal elder.”
We include in this issue the Eulogy delivered by Mark le Grand, who kindly agreed that it be published. We also include the excellent interview piece, in two parts, by our former Editor, Martin Burns QC, which appeared in a previous edition of Hearsay. They are very much worth re-publishing.
Ian Diehm authored a short piece published in Hearsay titled The Admiring Junior. It may be accessed at:
As the then admiring junior, Pat Keane, once said:
“You know, going to Court with Cedric is like going to Court with your father, because you know he will make it all right!“
In an article entitled The Magdalen College Connection, also previously published in Hearsay, Justice Applegarthchronicled the connection fostered by Hampson QC between the Queensland Bar and the Oxford college that he and other memers of the Bar attended to read the BCL. It may be accessed at:
Francis (Frank) Glynn Connolly, another stalwart of the Bar, passed away recently aged 98. Mark McGinness kindly agreed that the obituary prepared by him and first published in the Courier Mail, be published in this edition.
VALE
We also sadly note the death of members, Joel Mark Barnett, Julian David Wagner and Bill O’Connor.
FAMILY LAW OPT-IN EMAILS
The Bar’s Family Law Standing Committee operates an opt-in email list, through which it sends copies of communications from the Family Law Act courts, the Law Council and other such entities with respect to policy and/or practical issues which may impact upon family law Counsel.
Any members who wish to join the list are invited to email Jacoba Brasch at: jbrasch@qldbar.asn.au
SUPREME COURT LIBRARY YEARBOOK
Members of the Bar will no doubt have noticed that the Library has recently been around offering copies of the latest edition of the Supreme Court Library Yearbook. The yearbook is sponsored by the Association and the Queensland Law Society. The Editor, John McKenna QC and his team have again excelled themselves with an extraordinarily high quality publication. We recommend that you get your hands on a copy!
JUDICIAL APPOINTMENTS
Supreme Court
Since our last edition, Justice Peter Flanaghan was appointed a Justice of the Supreme Court on 27 June 2014. A welcome ceremony was held, together with that for Chief Justice Carmody, on 1 August 2014. Congratulations to his Honour.
Magistracy
Deputy Chief Magistrate Ray Rinaudo, was appointed as Chief Magistrate and sworn in as a District Court Judge. His Honour is a former President of the Queensland Law Society.
Magistrate Leanne O’Shea was also appointed Deputy Chief Magistrate.
Congratulations to both.
INTERESTING ARTICLES
Thanks to Diehm QC for drawing attention to the following interesting pieces from the New York Times.
There are in this edition many other interesting articles and reviews to enjoy along with some more sombre notes. Whilst the sad passing of some of the great men of the Bar gives us pause, it is also an occasion to take inspiration from their achievements and stellar careers. Whilst most of us will never scale the lofty heights of Hampson or Connolly, their lives and careers hopefully allow us, in our own ways, to strive to better ourselves.
Adrian Duffy
Welcome to the latest edition of Hearsay.
With the year now in full swing, we have been able to bring readers an interesting variety of papers, book reviews and other items of interest. There are also a number of very important events coming up that will be of interest to readers, details of which are included in this edition. I commend them to you.
Appointment of Solicitor-General
Peter Dunning QC was appointed Solicitor-General on Thursday, 10 April 2014.
Mr Dunning was called to the Bar in 1992 and took silk in 2005.
He has extensive experience in a broad range of commercial matters including appellate matters, constitutional and public law and Royal Commissions and inquiries.
As an aside, Mr Dunning’s appointment comes almost 250 years after that of his namesake, John Dunning, the 1st Baron Ashburton, appointed solicitor general in England in 1768, who was notable for, among other things, having defended the radical John Wilkes against charges of seditious and obscene libel.
Contributions
Many thanks to those that have contributed papers and other items for inclusion. As I mentioned in the last edition, contributions are welcome and I am happy to discuss proposed contributions at any time.
In the next edition we plan to include a review of the upcoming Federal Budget and how it will affect the profession, as well as some useful tips for the inevitable end of financial year rush.
Happy reading.
Adrian Duffy
Welcome to the last edition of Hearsay for 2013. This edition features a number of excellent articles, book reviews and other items that will hopefully be of interest.
Since the last edition we have seen the sad passing of one of the luminaries of the law, the late the Hon Bruce McPherson CBE QC. Included in this edition is a fitting memorial kindly written by Justice Keane. Justice Dowsett also kindly agreed to a copy of the eulogy delivered by him being included.
We have also seen the untimely passing of the Hon Neil Buckley, formerly of the Family Court. A tribute by Justice Kent of the Family Court is included in this edition.
Readers will be particularly interested in the excellent review by Roger Derrington QC of John McKenna QC’s outstanding book Supreme Court of Queensland: A Concise History.
Also included is an interesting and thought provoking speech by Lord Pannick QC delivered to the Bar Council of England and Wales Annual Conference held recently.
There are many other fine articles and book reviews for readers’ holiday enjoyment.
Congratulations to all the new judicial appointments and the new silks. Peter Davis QC takes the Presidency of the Association, and together with Vice President Shane Doyle QC and new Bar Council come to the task at a challenging time. Congratulations and good luck go to them for the year ahead.
Thanks also to Roger Traves QC whose term as President has concluded and who can now take a well deserved break from those challenges.
As well as challenges, there are many exciting things taking place in the coming year. The Bar Practice Course has now taken up residence at the Inns of Court. The Bar Conference in March 2014 promises to be an interesting and informative event. Members are encouraged to read the first hand accounts by Sue Brown QC and Jeremy Sweeney on the advocacy courses and to consider taking those courses.
This is the first edition for the new editorial team. Thanks to Geoff Diehm QC and his team, and in particular Jennifer Hewson, to the previous editor Martin Burns QC for his kind advice and ready offers of assistance and to Greg Hale and the publication team for their efforts and help in the transition. We have been lucky to be the beneficiaries of the work done by my predecessors in making Hearsay the fine publication it is today. All errors and shortcomings are, however, entirely those of your current editor.
Best wishes to all members and readers for a safe and happy and possibly even relaxing festive season. Hearsay will be back in the new Court Year.
Adrian Duffy
Welcome to the April edition of Hearsay published, in respect of the tradition, in May, albeit at the very beginning.
In last month’s edition we featured an article by Nikki Lloyd on branding of the Bar as a profession, as distinct from the branding of individual barristers. The article sparked some interest from readers, with a variety of feedback received. We hope that the thoughts provoked continue to stir a revision of how we see ourselves as a profession and how we manage our role and in turn our image with the public.
The reason for being concerned about such things is not self interest. Our profession has played and continues to play a very important role in the administration of justice. It is at risk of being undermined, to the detriment of the administration of justice, if we do not understand its value and take steps to protect its value in the minds of the community as a whole.
Whilst an aspect of the management of our brand is about the communication of its attributes, ultimately our brand can only reflect its inherent underlying value.
Essential to the brand of the Bar then is the quality of the professionals working within it. If the women and men of the Bar are not ably qualified and skilled and do not demonstrate that skill on a day to day basis then our brand, and ultimately our role in the administration of justice, will be tarnished.
Integral then to consideration of the Bar as a profession is a consideration of the standards that we insist upon for admission to the profession, as well as for sustaining the right to be a member of the profession thereafter.
Many years ago there were probably natural filters by virtue of the socio-economic constraints upon entry into a profession such as the Bar that provided some quality control. The advent of the modern economy and more equitable entry into higher education and the professions meant that those old controls were no longer effective to sustain quality.
The introduction of the Bar Practice Course was no doubt a useful devise in those circumstances for improving training of those intending to enter the profession. However, a lack of objective assessment criteria within it may have meant that it was less effective as a filter with respect to the advancement of those into our profession than may otherwise have been the case.
The recent introduction of an entry exam prior to admission to the Bar Practice Course is designed no doubt to provide a more objective measure of competence for the sake of resources devoted to the conduct of the Bar Practice Course, but ultimately with respect to ensuring a higher quality in terms of entrants to the profession.
It remains though the case, we here at Hearsay suspect, that the minimum requirements for commencing practice as a barrister without constraint are substantially less than those which apply to many other professions, including within the practice of law. For medical practitioners, by way of example, the requirements for admission into the necessary specialist disciplines (we should consider advocacy as a specialist discipline within our profession) are far more substantial in terms of time and rigour than what is imposed for our profession.
It is timely to consider then whether admission to the Bar with a full right of private practice should carry a higher onus in terms of practical experience in the law, formal evaluation or time in internship, or some combination of the above.
The hypothesis is that exacting standards for admission into the profession will lead to higher quality of the service provided, which in turn should protect the existence of the profession in what we would otherwise claim to be an indispensible role in the administration of justice.
We do however have to be conscious that the design of the requirements for entry are equitable from the point of view of socio-economic considerations. We will deny our profession and in turn the public some of the best, no doubt, if the barriers discriminate on any grounds other than ability.
In our last editorial concerning branding, and in the discussion of branding within it, we made reference to the brand of Senior Counsel versus Queen’s Counsel. In the version as originally published reference was made to the diminishment of the brand by the change in title. We wish to point out that it was not intended by the editorial to convey that there were not problems at the time that were genuinely and rightly perceived to justify the change which was approved, by the clear majority vote of the members of the Association. The concern at the time was of the risk of the politicisation of the appointment of Queen’s Counsel because of the dependence upon the politicians within the Executive Council in granting letters patent. Those concerns were genuinely held. The politicisation of the process would undoubtedly have destroyed the brand more so than what has turned out to be the case with respect to the change in title. Nevertheless, the problems with branding remain real. In an article in the Courier Mail on the weekend past a solicitor from Minter Ellison was referred to as “Minter Ellison SC”. There are many stories that can be shared by our members of this increasing progress towards identification of solicitors as Senior Counsel. We do not “own” the title.
The ideal solution then in that regard is for an environment in which the political interference is avoided, but the distinct brand of Queen’s Counsel is preserved.
Finally, on a lighter note, we commend to you the decision of a Canadian court, hyperlinked herein, involving a self represented litigant. It has something in it for everyone, including in the must read footnotes. Judicial readers will appreciate the cathartic nature of the judgment, but also the reference to modern judicial opinion about the absence of need to dissect absurd arguments presented by litigants, usually self represented but perhaps not always. Others will simply enjoy the humorous observations of a perverse defence case, but also a weak prosecution case, by the presiding judge.
Geoffrey Diehm SC
Editor
Welcome to the Mid-Winter edition of Hearsay. At that time of the year when the nights are longest, we hope the electronic glow from the screen that conveys the words and images of our publication to your eyes and into your minds may also help to keep you warm, if you stay in front of it long enough.
Consistent with that sentiment this edition of Hearsay has a particular focus upon certain aspects of the business of courts and tribunals and those who work within them.
We are privileged to be able to publish the speech of his Honour Justice Keane from the recent Bar Association Dinner, in his honour, which, aside from the entertaining components, contained references to aspects of practice for barristers that are worthy of reflection upon.
We have a most interesting article by John Meredith, with web links, on some recent initiatives in the United Kingdom about online portals which enable the watching of videos and live court proceedings over the internet. Other e-developments relating to the profession in the UK are highlighted.
We have a series of papers presented on issues surrounding the provision of reasons in courts and tribunals.
The paper from Peter Dunning QC on the role of counsel in commissions and inquiries, recently presented as a CPD paper, is included, as is a most informative article by Dr Gerard Carney, being a legal and historical overview of the history of the land borders for the Australian states.
Many readers will find interesting an introduction to the International Association of Prosecutors from its Vice President, our own Sal Vasta.
Happy reading
Geoffrey Diehm QC
Editor
Welcome to the September 2013 edition of Hearsay.
This is the last Hearsay for the current editorial team. We are pleased to say that we are able to go out with a bang with some high quality articles for the benefit of our readership.
In this edition you will find a highly instructive paper on advocacy by Justice Henry as well as an interesting piece on Etiquette in the Court Room and Beyond for barristers by Dean Morzone QC.
On substantive law there is a paper by Professor Michael Bryan on remedial constructive trusts, an article by John Arthur on preliminary contracts and a paper on judicial review of migration decisions by Nicholas Poynder.
Messrs Arthur and Poynder are barristers from Victoria on the Gordon & Jackson List and we welcome their contributions.
Dimitrios Eliades weighs in with one of his regular contributions this time in the Use of Trademarks in Advertising Key Words. A paper presented by Sandy Thompson QC at a seminar sponsored by the AICD on Director’s Liability for Insolvent Trading will be found useful by any practitioner in the field.
Dean Morzone QC emulates Gary Ablett’s dual Brownlow medals by contributing a second piece to this edition of Hearsay, this one on Contemporary Trends Toward Written Evidence.
There is an interesting article on a commercial law litigation workshop involving members of the Bar Association and the Judiciary held recently in Port Moresby.
There is the usual miscellany of book reviews, case summaries and events.
As the tears splash back off the keyboard while preparing this final editorial from this editorial team, we wish to not only thank the contributors to this edition but to all of those who have written articles during our tenure, or who have otherwise graciously permitted the reproduction of papers published elsewhere. Your goodwill and industry are critical to the success of the publication. We thank Roger Traves QC and Richard Douglas QC for their support during our tenure. We thank especially Jennifer Hewson for her efforts in ensuring the publication of each edition over the past three or so years.
Our successor as Editor is yet to be determined but to whoever it is, we pledge our unrelenting support for at least a few weeks, until our desire to enhance the perception of our legacy, at the price of your failure, overwhelms us as our primary motivation.
Thank you to all of our readers and we hope and trust that you will continue to enjoy the publication into the future.
Geoffrey Diehm QC
Editor
Welcome to the March 2014 edition of Hearsay.
We certainly live in changing times, if not interesting times!
Notably, we have since the last edition received the news that Chief Justice de Jersey is to retire from the Court to become the 26th Governor of Queensland. His Honour will become the third former Chief Justice of Queensland to be appointed to that position.
We have also witnessed the retirement of the former Governor-General, Dame Quentin Bryce AD CVO, a former Governor of Queensland, who was, it may perhaps be less well known, in 1965 admitted as a barrister in Queensland.
We have also seen the resignation as Solicitor-General of Walter Sofronoff QC, a former President of the Association.
More about each of those developments in later editions.
Australia Day Honours
It was announced in the Australia Day Honours List that the Honourable Justice Robert William Gotterson of the Court of Appeal had been admitted to the Order of Australia as an Officer in the General Division (AO).
Justice Gotterson was called to the Bar in 1976 and took silk in 1988. His Honour served as President of the Bar Association of Queensland from 1997 to 1999, having served on the Council and as Vice President from 1991. He was President of the Australian Bar Association from 1998 to 1999 and President of the Law Council of Australia from 2003 to 2004. His Honour has served in many other positions serving the profession and the administration of justice.
His Honour was appointed to the Court of Appeal in 2012.
The citation read:
For distinguished service to the judiciary and to the law, to legal education, administration and professional standards through a range of senior roles, and to the community of Queensland.
Congratulations to Justice Gotterson on that well deserved honour.
Judicial Appointment
Congratulations, also to Mr Aaron Simpson, a member of the Association, who since the last edition was appointed a Magistrate.
Call For Contributions
Hearsay is the Bar’s publication. It enjoys a wide readership among barristers, members of the judiciary, solicitors, academics and other interested parties and presents a valuable source of information as well as an important opportunity for members of the Bar, and of course other readers, to have papers and articles published.
We endeavour to include a broad range of papers and articles of interest to readers, including journal articles, case notes, practice notes and other items of interest.
Contributions of papers are encouraged. There is no set word limit, but I am happy to discuss such matters with potential contributors at any time.
As always, this edition features a number of excellent articles, book reviews and other items. I hope it proves useful and enjoyable reading.
Adrian Duffy
Welcome to the October 2014 edition of Hearsay.
Retirement of Her Honour Chief Judge Patricia Wolfe AO
This edition marks the retirement of Chief Judge Patricia Wolfe AO.
Chief Judge Wolfe was first called to the Bar in 1978 and practised at the Bar from 1983 to 1995 when she was appointed as a Judge of the District Court. Her Honour was appointed Chief Judge in 1999.
Before that, her Honour had served with distinction as Deputy Commissioner of the inquiry that became known as the Fitzgerald Inquiry. Her Honour had many other appointments and achievements, many comprehensively documented in a chapter by Helen Gregory in A Woman’s Place, 100 Years of Queensland Women Lawyers, produced by the Supreme Court Library. These included an editorial role in Bar News, a predecessor publication of Hearsay, a role for which her journalistic background no doubt uniquely equipped her to perform.
A Valedictory Ceremony to honour and farewell her Honour was held on Friday, 17 October 2014.
New Chief Judge
The Governor in Council on 16 October 2014 approved the appointment of Judge Kerry O’Brien as the new Chief Judge of the District Court.
Further details of his Honour’s appointment will appear in the next edition.
ICLR Reduces Cost of Queensland Reports
Readers’ attention is drawn to the announcement, in this edition, by the Incorporated Council of Law Reporting outlining the substantial price reductions on offer for subscriptions and purchase of hard copy sets of the Queensland Reports.
Federal Court
Included in this issue are case notes of recent decisions of the Federal Court. This is planned as a regular item for future editions. Hearsay is grateful to Justice Rangiah and the Judges of the Federal Court for this initiative and to Joanna Fear, of the Federal Court Library, Brisbane, for preparation of the notes.
Chief Justice James Allsop AO will deliver a presentation to the profession outlining new developments in the Federal Court, including the national Court framework and how the Court will manage its workload in Queensland and nationally.
The presentation will be made on Thursday 20 November 2014 at 5.30 p.m. at Court Room 1, Level 7, Commonwealth Law Courts.
Lord Neuberger on the Art of Making Sausages
“Laws are like sausages — it is best not to see them being made”. So wrote Lord Neuberger, President of the UK Supreme Court, in recently addressing the Annual Conference of the Supreme Court of New South Wales on the judicial making process. Lord Neuberger’s excellent talk is able to be accessed here:
I trust readers will find some informative and entertaining pieces.
Adrian Duffy
Editor
We go to publication at a time when society faces yet another great challenge — the scourge of terrorism.
Groups and individuals with aims that are not always clear, sought to be achieved by means antithetical to values and freedoms that we mostly take for granted, threaten our safety and that of our neighbours in the world. It is often said that they threaten our very way of life.
We look to our national and world leaders to do something about this. Leadership, though, is not merely a descriptor of a group of people. It is a responsibility – the responsibility of responsible people. This is not the first time in the history of humankind that such problems have been faced. It is always, of course, difficult to judge the scale of the threat in comparison to similar threats faced in the past.
The threat is naturally and inevitably met with calls for action and the types of action that may be taken and are urged upon our leaders varies greatly, but includes calls for increased legislative strictures and greater powers of intervention by authorities charged with our protection.
One of the hallmarks of a civilised society is the way in which it will uphold the rule of law when faced with adversity. It is when faced with adversity that the greatest challenge arises; as Kipling would have it, to keep our heads when all around us are losing theirs.
Members of the Bar are not only uniquely placed to defend the rule of law. They have a responsibility to do so.
The seminal importance of upholding the rule of law is something that all members of the Bar ought keep firmly in mind as our nation and others search for solutions.
APPOINTMENT OF CHIEF JUSTICE
The Honourable Catherine Holmes was sworn in as Chief Justice of Queensland on 11 September 2015. Justice Holmes was appointed a judge of the Supreme Court of Queensland in the Trial Division on 16 March 2000 and appointed a judge of the Court of Appeal on 26 May 2006.
Her Honour’s speech on her swearing is as Chief Justice may be found here.
JUDICIAL APPOINTMENTS
On 24 November 2015, Justice Philip McMurdo was appointed as a Judge of Appeal, having been a Judge of the Trial Division of the Supreme Court since 27 February 2003. His Honour had served as one of the Commercial List Judges for many years, a role now taken up by Justice John Bond.
Former barrister, Steven Middleton was appointed as a judge of the Federal Circuit Court of Australia and will serve in the Newcastle registry with effect from 9 November 2015.
CHAIR OF CCC
Alan MacSporran QC was appointed to Chair the Crime and Corruption Commission with effect from 1 September 2015.
RETIREMENT
Robyn Martin, the former Chief Executive of the Association, retired from that position in August 2015. Then President, Doyle QC wrote that she left the Association with his sincere thanks and appreciation for the considerable work she had done for the Association and its members.
VALE
Neil Ferguson McLauchlan QC, former member, former Master of the Supreme Court of Queensland (1988-89) and Judge of the District Court of Queensland (1989—2007), passed away on 24 August 2015.
Former member and Master of the Supreme Court, Henry Arthur Weld passed away on 18 September 2015, at the age of 80 years.
Neil Joseph (“Kelly”) Macgroarty died recently, aged 81. Kelly Macgroarty was first admitted on 17 March 1964 and practised until 2011, a long and distinguished career at the Bar.
The Honourable Tom Farquhar Shepherdson QC passed away on 27 October, at the age of 85 years. In his distinguished career, he served as a Judge of the Supreme Court of Queensland from 1982 to 2000. He was called to the Bar in 1966 and appointed Silk in November 1980.
BAR COUNCIL ELECTIONS
On a less somber note, the results of the recent Bar Council elections were:
President: Christopher Laurence Hughes QC
Vice President: Susan Elizabeth Brown QC
Council: Michael Pascal Amerena
Anthony Michael Arnold
Jacoba Brasch QC
Glen Peter Cash QC (Employed Member)
Florence Jing-Wen Chen
David Edward Francis Chesterman
Liam Matthew Dollar
Daniel Matthew Favell
Justin Andrew Greggery
Stephen Joseph Keim S.C.
Douglas Robert Murtagh Murphy QC
Mark Oliver Plunkett
Andrew Harold Sinclair
Thomas Philip Sullivan QC
Rebecca Mary Treston QC
NEW SILKS
The following counsel were recently appointed Queens Counsel:
Robert James Anderson QC
Ronald Shaw Ashton QC
Gareth David Beacham QC
Madeline Mary Brennan QC
Glen Peter Cash QC
Adrian William Duffy QC
Rowan Peter Sandford Jackson QC
Michael Andrew Jonsson QC
Dennis Raymond Lynch QC
David William Marks QC
Congratulations to all appointees, judicial and otherwise. The holiday season, for some at least, looms, as does a New Year full of new challenges. Best wishes to all from Hearsay!
Hopefully there will be something in this edition to amuse or assist along the way.
Adrian Duffy
Editor
AUSTRALIA DAY HONOURS
Congratulations to the following members who were the recipients of honours in the Australia Day List:
Ralph Devlin QC — Member of the Order of Australia (AM) — for significant service to surf lifesaving, particularly as an administrator, and to the law
Dr Michael White QC — Medal of the Order of Australia (OAM) — for service to maritime law, and to naval history
VALE
Dr Kenneth St Clair Levy RFD passed away on 20 January 2016, at the age of 66 years. He was called to the Bar in 1986. Dr Levy had most recently served as Crime and Corruption Commission Acting Chairman.
The President of the Industrial Relations Court of Queensland, the Honourable David Ross Hall, passed away on 24 February 2016. He was called to the Bar in 1973. In a distinguished career, David Hall served as a Deputy President of the Australian Industrial Relations Commission, Chief Industrial Commissioner of the Queensland Industrial Relations Commission, and from 1999 to 2013, President of the Industrial Relations Court of Queensland.
Warren Ronald Read, who was called to the Bar on 29 April 2002, passed away on 8 May 2016.
APPOINTMENTS
Judge Anne Demack has been appointed as a Federal Circuit Court judge based in Rockhampton.
Ms Catherine Carew QC, was appointed as a judge of the Family Court of Australia, commencing on 7 March 2016.
Mr Craig Chowdery was appointed a Judge of the District Court of Queensland, being sworn in on 19 May 2016.
Mr David Kent QC was sworn in as a Judge of the District Court of Queensland on Thursday, 10 March 2016.
Mr Andrew Hackett, Ms Louisa Pink and Ms Kay Philipson were sworn in as Magistrates on 3 May 2016.
Mr James Blanch, Mr David Shepherd and Ms Belinda Merrin, were also sworn is as Magistrates on 25 May 2016.
THIS EDITION
Included in this edition are some excellent papers from the very successful Bar Conference, as well as a number of other interesting items.
I trust readers will find them interesting and informative.
Adrian Duffy QC
Editor
Welcome to the March 2018 edition of Hearsay.
Judicial Appointments
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.
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
Welcome to the first edition of Hearsay for 2013. Particular highlights in this edition are a written copy of the paper delivered by Justice Douglas for the 2012 WA Lee Equity Lecture on trusts and their equivalents in civil law systems and, in particular, with emphasis upon the introduction of the fiducie into the French Civil Code, and the obituary by Justice Applegarth for Professor Ronald Dworkin, a truly remarkable man.
A number of papers delivered in a variety of different forums over recent months are elsewhere included, including the ten year review of the Civil Liability Act by Richard Douglas S.C., some articles on forensic technology issues from KordaMentha, the paper presented by Judge Neil MacLean, the Chief Coroner of New Zealand, at the 2012 Asia Pacific Coroners’ Society Annual Conference on the New Zealand coronial system, and some interesting pieces by James O’Neill and Nitra Kidson.
With all of this information as well as our regular features from the Law Report, book reviews and case notes, and some personalia, there is much reading which is both entertaining and highly educational.
Speaking of such qualities, special mention is made of the Bar Association State Conference on the 9th and 10th of March 2013. The program can be viewed here. It is an exceptional line up and those who have not yet registered ought take the opportunity to do so, if they can.
We are, as always, most grateful to our contributors.
Happy reading.
Geoffrey Diehm S.C.
Editor
Welcome to the March 2013 edition of Hearsay. This edition carries an article by branding specialist, Nicki Lloyd, of Lloyd Grey Design, about branding of the profession of barristers on the whole.
At our recent State Conference a paper was presented by Belinda Cohen, on what might be described as marketing for barristers individually.
Nicki Lloyd’s article is distinctly different however. Its focus is on the branding of the profession rather than the individuals within it.
As Ms Lloyd explains, a brand provides an emotional connection with its target audience. The audience for the bar as a profession are litigants (on each side of the case), solicitors and judges. Little as we may think of it in such a way, there is an emotional connection, for good or for bad, between each of them and the Bar. The Bar has a brand, whether we appreciate it or not.
Brands of course have to be nourished and maintained. They can also be developed or enhanced. Historically, in this country at least, these propositions have been, we here at Hearsay suspect, largely unappreciated, if not ignored.
Our President has recently written to the members of the Bar Association of Queensland advising of issues confronting the Bar and its place in our market and certain initiatives intended to advance the profession (http://www.qldbar.asn.au/index.php?option=com_docman&task=doc_download&gid=232). Reading Ms Lloyd’s article may give some insight into some aspects of that strategic thinking that may be further developed.
The reality is that the Bar in this state (and probably in this country) has never really considered having a branding strategy, let alone put in place the resources to develop or manage the strategy. We here at Hearsay think that it is time we give it serious consideration.
In our view Ms Lloyd’s introduction to the concept of the branding of our profession is critical reading for those with an interest in the maintenance and advancement of the profession into the future. Pursuit of the ideas referred to in it by way of development and implementation of a strategy would be for the benefit of current members of the Bar and, as importantly, for the generations to come. We urge you to read it, and read it more than once, and reflect on the ideas within it.
Otherwise, in this month’s edition of Hearsay we have perhaps the finest collection of papers that we have been able to present in one edition in a long time. Gathered largely from the Australian Lawyers’ Alliance Conference recently held as well as our own State Conference, they canvas a wide range of fields and will deliver great value to the reader.
The quality of them and of the contributors is such that we are reluctant to single out any individual papers, but in the end we must commend especially to our readers the paper that was the keynote address at the State Conference by Lady Justice Rafferty DBE and the paper by Chief Justice Keane, as his Honour then was, from the ALA Conference entitled “Advocacy: The View from the Bench”. We are sure that the pre-eminence of those authors alone will compel you to read the pieces and you will be glad that you did.
We also have the usual miscellany including a number of book reviews, for which we take the occasion to especially thank Stephen Keim SC and his team for their regular contributions.
Happy Easter.
Geoffrey Diehm SC
Editor
Welcome to the June 2012 edition. This month we celebrate the art of advocacy.
The Editor can recall in his earliest time of practice of hearing the story of a solicitor who questioned one of the then leaders of the Queensland Bar, Ian Callinan QC, as to the area of the law that he specialised in. The cited response was “Advocacy”. It is a proposition that should be remembered by all of us at the Bar.
For this issue a call was made for papers, whether previously published or not, from our readers. I am delighted that we had an overwhelming response not just in terms of quantity but most significantly in terms of quality, including in particular from Justice Fraser and Justice Forrest.
The readers should greatly appreciate as well the papers from the recent CPD seminar on “How to be a Good Junior” and in particular the work done in editing a transcript of the panel session from that CPD.
As a result of all of this the readers have the benefit of education on the art of advocacy from the likes of Gore QC, Gibson QC, Morrison QC, Douglas S.C., Dollar, O’Brien, Duffy, Morgan, Copley S.C., as well as the papers by Forrest J and Fraser JA.
The article by James E. Smith provides an interesting and different dimension on advocacy training.
The entertaining and educational content does not end there however. This issue is bursting with other features on the latest cases, other relevant news and events and book reviews.
It is estimated that there is just enough information in this edition to fill the entire time of a flight from Brisbane to London, for those heading to a conference over the next few days. For those who are not, you have nothing else to do.
Happy new financial year.
Geoffrey Diehm S.C.
Editor
Welcome to the October edition of Hearsay.It has been a few months since the last edition of Hearsay was published.We apologise to our loyal readers, contributors and advertisers for the delay.Unfortunately an intended theme for this next issue was being pursued, but was unable to be brought to fruition in the end, requiring new efforts to source material for publication.
Out of crisis comes opportunity.We are very pleased with the range of content in this edition.The article on continuous disclosure for companies by Diana Lohrisch, the paper by Dr Susan Priest on the dispute between Australia’s first Chief Justice and the Attorney General of the time, at the turn of the last century, the paper by Anne Wardell on the Personal Property Securities Act 2009 and the paper on pure economic loss by Lord Walker of Gesingthorpe will add usefully to readers’ knowledge.
The article by American Attorney Karen Levy on the design of and use of court spaces in the United States to enhance their place as centres of our community is insightful reading particularly in the context of the opening of the new Supreme Court building.
Apart then from the miscellany of book reviews, news, CPD events and judgment summary notes, we make particular mention of the impassioned obituaries for past members of our bar, Paul Loewenthal and Mohan Dhaliwal.
There is also a follow up to the recently published pieces on the wearing of wigs, this time from the experience and perspective of Malaysia.
Happy Reading.
Geoffrey Diehm S.C.
Editor
Welcome to the August edition of Hearsay. Having regard to the recent retirement of Justice Cullinane and the swearing-in of Justice North it is patently appropriate for this latest edition of Hearsay to have as its focus the Townsville Bar. Inside this edition you will find several articles authored by leading members of the Townsville Bar on a range of interesting topics of substantive law, practice and legal history. We also have the benefit of some of the speeches marking the very significant events of Justice Cullinane’s retirement and the commencement of Justice North’s judicial career. This weighty edition also features material from the sesquicentenary of the Supreme Court celebrations as well as a useful article by Dimitrios Eliades on remedies in intellectual property infringement cases and an interesting array of book reviews. Happy reading.
Geoffrey Diehm S.C.
Editor
Welcome to the final edition of Hearsay for 2011.
The feature of this December edition is mediation. Mediation has been described for some years now as one of the forms of, if not the dominant form of, alternate dispute resolution.
It might be said, having regard to the very large number of cases that are resolved in mediations (and one might include as well the colloquially known “informal settlement conferences”), compared to the very small number of civil disputes that are finally determined by way of judgment after trial, that in civil litigation it may be more apt to describe trials as alternate dispute resolution.
That irony aside, there is no doubt that in civil litigation of all sorts in the 21st Century mediations are a very common process for lawyers.
For barristers in particular it is important to recognise that mediations are a forum for advocates in all of the traditions of the Bar. It is vitally important for the administration of justice, when mediations are to play such a prominent role in it, that parties’ cases are well presented, that the outcome (which the parties themselves have greater capacity to influence) are guided by sound advice, and that the mediations themselves are conducted with the same candour and respectability that court cases are to be conducted in.
To these ends it is hoped that you will find the special contributions from authors of articles concerning mediation contained herein useful in your growing understanding of the mediation process. The articles are varied in content, covering fields such as the history of mediation, common reasons for mediations failing, confidentiality and ethical constraints arising there from, challenges for mediators, tips for preparing and conducting mediations and admissibility of evidence derivative of mediations.
We are very grateful to the learned and experienced contributors who have provided this material for inclusion in this edition.
In this edition we also have the Six Month Report from the Association’s past President, Richard Douglas S.C. You will also find the book reviews and a range of other references of interest, we hope.
As 2011 draws to an end Hearsay thanks all of those who have made contributions to it during the year and have otherwise provided support.
We wish also to acknowledge Richard Douglas S.C. on his retirement from office. All of those who offer their services to the Association and in particular to the Bar Council are owed a great debt from the members. No more is this so than with respect to the position of President which is an increasingly demanding role but one which Richard has performed admirably. The achievements in his term as President are as well known as they are many and varied. It is appropriate to recognise not only those achievements but the great personal and professional sacrifice that no doubt was made to see their accomplishment.
We also congratulate Roger Traves S.C. on his ascendance to the throne. We should all join in wishing him well but furthermore in offering our support over his term.
For those having a break we look forward to your fresh eyes reading this august publication in 2012. Compliments of the season to all.
Geoffrey Diehm S.C.
Editor
Welcome to the October edition of Hearsay. This month we have a focus on the Cairns Bar, to recognise the significant events occurring in that fine city since the time of our last edition. First, there was the retirement of Justice Jones after a long and distinguished career, firstly as a member of the Bar in this State and secondly as the first Far Northern Judge of the Supreme Court.
We also acknowledge in this edition the swearing-in of the second Far Northern Judge of the Supreme Court of Queensland, Justice Henry, in September. His Honour’s appointment was warmly welcomed in the North as well as throughout the rest of the State.
You the reader will find selected speeches and photographs from each of these important occasions in this edition. They are accompanied by some evidence of the depth and breadth of the Bar in Cairns by some worthy contributions from its members. We thank them for those efforts.
You will also find a very detailed and informative article by our President on the topic of dangerous recreational activity (something we suspect him to be most familiar with) and in particular the legislative provisions relevant to it. A range of other contributions on intellectual property, book reviews and recent decisions are littered throughout our pages. We are sure you will find it worthwhile reading.
We have also reproduced some speeches from the Bar Dinner together with photographic accounts of the evening. There is too a report together with incriminating photographic evidence of the Interstate Bar’s Soccer Competition (the Editor refuses to succumb to the international conspiracy which aims to insist on everyone describing this very dull sport as football — perhaps the Civil Liability Act 2003 could be amended to provide for pointless recreational activity).
Happy reading.
Geoffrey Diehm S.C.
Editor
Welcome to the first edition of Hearsay for 2012. In this edition we feature a number of articles and miscellaneous sources of information concerning technology for barristers. We hope you find them informative and, indeed, useful.
Aside from the technology article from Dimitrios Eliades, a regular contributor to Hearsay, we have an article on failure to arraign in summary proceedings and an interesting paper prepared and presented by that happy little vegemite Richard Douglas S.C. and Kathryn McMillan S.C.
You will also find a raft of book reviews, web links, case notes and other information critically relevant to your practice. We are pleased to be able to reproduce Justice Murphy’s eulogy delivered at the funeral of Federal Magistrate Keith Slack.
In this edition we include, thanks to Peter Roney S.C., a link to the American Bar Association website at which you will find more interesting articles than you could read in a lifetime as a barrister.
Finally, we have included policy statements, relevant to barristers particularly, from each of the LNP and the ALP in advance of the forthcoming state election.
Happy reading.
Geoffrey Diehm S.C.
Editor
Welcome to the (belated) April edition of Hearsay for 2012.
This edition has as its theme “Ethics”.
Within the edition you will find a range of articles on a variety of ethical issues relevant to barristers.
Some of the papers were presented at the Queensland Bar Association Conference in March, such as the article on conflict between the duty to the client and duty to the Court from Justice Kenneth Martin of the Supreme Court of Western Australia, the implications of the 2011 Barristers’ Rule by John Bond S.C. They warrant the immortality that this august publication can bring them. There is also a CPD paper on ethics in criminal trials by Peter Davis S.C.
We are grateful as well for the riposte to the paper of John Bond S.C. by Tony Morris Q.C. (on the ethical duty to promote efficiency), the defence of the cab rank rule by Dan O’Gorman S.C. and the provocative article on “to wig or not to wig” by James O’Neill.
The substance of this particular edition is rounded out courtesy of the permission to reproduce papers previously presented by Justice Douglas on the problems of self-representation in the Courts and by Justice Fraser on the “intimate collaboration” between barristers and judges in the administration of justice.
We have also provided links to some Youtube clips to allow you to view some ethical papers presented in Victoria for members of Greens List for your viewing pleasure (and education).
We also trust that you will find the case summary notes and book reviews of interest.
Geoffrey Diehm S.C.
Editor
This month’s Hearsay has Levels 16 and 17 of Quay Central as the featured chambers. The group comprises some of the most talented members of our Bar and we here at Hearsay are grateful to have their leading contributions by articles within this month’s edition.
Contributions of articles about substantive law and practice are sought for Hearsay, from the editor’s point of view, for two reasons. Firstly, it provides for the members of the Bar Association and the other readers of Hearsay, including many judges and solicitors, practical updates on relevant matters of law pertaining to our day to day work which help us maintain high standards.
Secondly, hopefully, for the contributors, it provides an opportunity for them to demonstrate how clever they are. In turn, we all come to appreciate the value of their intellectual prowess and can aspire to emulate them by penning our own articles for future editions of Hearsay.
As a matter of editorial policy then we aim to provide editions of Hearsay that gather this intellectual prowess in clusters. So we will have editions where the contributions substantially come from a set of chambers, including sets of chambers in particular in regional areas, as well as editions where the clusters may represent the most junior members of the Bar, women at the Bar and in turn, silks.
It is intended that each of the next few issues of Hearsay will contain articles respectively from each of these groups. In the meantime it is hoped that you enjoy and benefit from the contributions made by Levels 16 and 17 Quay Central in this issue.
Geoffrey Diehm S.C.
Editor
In his work “A New History of Western Philosophy”1 Sir Anthony Kenny makes reference to the practice of the Sophists in Ancient Greece. The Sophists were tutors for hire who would travel about the land offering their services to the young noblemen in society who needed training in any one of a number of disciplines including, relevantly for us, advocacy. One of the Sophists was Protagoras and one of his pupils of Euathlus. Protagoras’ enemies are said to have revelled in telling the story of the time Protagoras sued Euathlus for non-payment of his fees. As Kenny describes:
“Euathlus had refused to pay up, saying he had not yet won a single case. ‘Well’ said Protagoras, ‘if I win this case, you must pay up because the verdict was given for me; if you win it, you must still pay up, because then you will have won a case.”2
These days, by virtue of our rules and customs, we barristers usually treat our pupils more kindly. This publication aims to assist by being a source of information on topics of substantive and procedural law for readers and a platform for contributors to demonstrate their knowledge. Hence readers and subscribers alike may avoid the fate of Euathlus of being out of results and out of pocket.
In this edition we have articles authored by barristers who have recently commenced practice. We have been able to reproduce papers from the recent Bar Conference presented by Chief Justice Warren of the Supreme Court of Victoria and Judge Rackemann of the District Court of Queensland, with their Honours’ kind permission. Richard Douglas S.C. has put together an article capturing in written form the helpful information orally presented at the Conference on the topic of fees. Readers will also find articles of interest on intellectual property by Dimitrios Eliades and a thought provoking paper on future early dispute resolution by John de Meyrick.
We at Hearsay are pleased to note this as the first edition to be distributed electronically to the Solicitors’ branch of the profession at large. We are indebted to the Queensland Law Society for its co-operation and hope its members find the publication of interest.
Geoffrey Diehm S.C.
Editor
Footnotes
Oxford University Press Copyright Sir Anthony Kenny 2010
Page 30
Welcome to Hearsay’s first edition for 2011.
Our first Featured Chambers for the year is Level 19 East of the Inns of Court. The end of 2010 was no doubt a great time of celebration for their chambers, with the appointment of Justice Forest, as His Honour is now known, as Senior Counsel and shortly thereafter as a Justice of the Family Court of Australia.
This first edition of the year evidently reflects the extra leisure time that members enjoyed over the summer break having regard to the number of book reviews that were submitted for publication. Hopefully you will find the endeavours of these good folk (otherwise short of holiday ideas) of assistance to you in selecting your readings for the forthcoming year.
We have been able to extend our reach to external sources of content you may find of interest by adding legal news from Sky’s web service in addition to the Law Report from Radio National first published in the last edition.
Once again we thank our contributors.
Happy reading.
Geoffrey Diehm S.C.
Editor
This month’s edition of Hearsay renews the practice of “Featured Chambers” in the publication. Aptly, given the renewal of this segment, the chambers featured is that of a new group, being 35 West Chambers in Santos Place.
Given the ever increasing circulation of Hearsay amongst barristers in Queensland but amongst the judiciary and others in the legal profession, the Featured Chambers segment is a valuable opportunity for chamber groups to raise their profile, not just by displaying their aesthetic features, but also by their mastery of relevant intellectual and professional matters through contributions by way of written articles. It is an opportunity that should be embraced enthusiastically by all chamber groups who may contact the editor to volunteer at any time (please).
This month’s edition also features a new addition in the form of a link to podcasts from the Radio National program, The Law Report. In future editions of Hearsay we hope to develop this feature further by sourcing and linking quality internet resources for the reference of our readers. We are very much indebted to Radio National for its agreement to our incorporating this feature. Within the segment readers will find links to past programs on a range of topics including the defence of provocation and the federal government’s offshore asylum-seeker processing scheme.
This edition also features the Six Monthly Report from the President, Richard Douglas S.C.
Those of us here at the Hearsay desk wish all our readers a Merry Christmas, a Happy New Year and we look forward to encountering you again in 2011.
Geoffrey Diehm S.C.
Editor
Welcome to the November 2010 edition of Hearsay, which we are pleased to have managed to publish in the last week of October. You should find within its pages a variety of interesting content. There are several interesting articles on a variety of issues relevant to different areas of practice. Legal history is also featured heavily, and graphically, with photographs and brief commentary of Mesopotamian legal artefacts (with thanks to Andrew Lyons for this remarkable contribution) as well as a video recording of the paper presented by Professor Horst Lücke recently at the Supreme Court Library.
Speaking of the Supreme Court Library, we are particularly grateful to Aladin Rahemtula for his facilitating the recording and publication of Professor Lücke’s presentation. The Supreme Court Library quite evidently has a rich array of resources of use and interest to barristers and may, by many of us, be underappreciated for its diversity and depth of collections. We here at Hearsay are looking forward to developing a mutually beneficial relationship with the library and in particular to bringing to the attention of the Bar the full gamut of the resources available through it.
There is an interesting range of articles on matters of law from several reader/contributors. Tony Williams’ story of confronting the confronting should help you ensure a long career at the bar.
I do wish to make special mention and give special thanks to Martin Burns SC and his personal assistant Emma Macfarlane for their very substantial contribution, to the benefit of the Queensland Bar, during Martin’s time as editor of Hearsay. The Profession owes much to them for that commitment. We wish them well in semi-retirement.
I publicly welcome the other members of the editorial committee of Hearsay and look forward to their contributions to the publication in the future.
I also wish to acknowledge and thank my personal assistant, Jennifer Hewson, for her diligence, initiative and hard work in successfully securing, on time, this first edition under my editorship.
Geoffrey Diehm SC
Editor
As this is my last edition of Hearsay as Editor, I want to express my appreciation to all those who have assisted the publication over the past five years.
From the moment Hearsay was first mooted to replace Bar News as the official journal of record for the Association right up to the present day, it has received tremendous support from members and non-members alike. Without that support, Hearsay would never have been launched, let alone allowed to thrive to the extent that it has.
In this regard, I make particular mention of the Honourable Paul de Jersey AC, Chief Justice of Queensland, who provided a great deal of guidance in the early stages and encouragement ever since. I mention too each President of the Association during the period of my editorship – the Hon Justice Martin Daubney, the Hon Justice Hugh Fraser, Michael Stewart SC and Richard Douglas SC. Each was totally committed to the success of the journal.
I am also indebted to the Chief Executive Officer of the Association, Dan O’Connor, along with the staff of the Association, the Department of Justice and Attorney-General and the Supreme Court Library for their ongoing assistance and support.
Special mention is also to be made of Gregory Hale, our designer, and Brett Young, our website developer – each of whom nursed each edition down to the wire. Thank you.
Last but by no means least, special thanks are due to my secretary, Emma Macfarlane. Throughout each of the 44 issues published to date, Emma not only performed the lion’s share of the production work, her boundless enthusiasm and commitment to the project ensured that Hearsay overcame each of the obstacles that were from time to time encountered. Today, Hearsay is well-established with a readership of over 6,000. Emma, that in no small way is attributable to you, so thank you.
To the incoming Editor, Geoff Diehm SC and each of the members of the recently formed Editorial Committee, I wish you every success. I am sure that the publication will reach its full potential in your hands.
Martin Burns SC Editor
As this is the last edition of Hearsay for 2008, it is appropriate to reflect on what has been another busy year for the Association and its members.
More so than ever before the collegiate nature of our branch of the profession was in evidence – at our many functions and events including the annual Bar Conference on the Gold Coast, at the continuously well-attended CPDs and in our day to day professional dealings with each other.
On all such occasions, a resolute desire to serve our clients with the highest professional and ethical standards that can be achieved and to preserve and maintain the administration of justice is manifest. It is that common dedication which underscores all that we do and unites us as a professional body.
I would like to express my gratitude to all those who have recently answered the call to serve the Bar by standing for election to the Bar Council. My sincere thanks are due to all who did so, regardless of the result. For those who were elected, I extend my congratulations and wish you well during the forthcoming term.
In closing, please accept my best wishes for the Christmas Season and my thanks for your support of the Association this year.
Michael Stewart S.C.
To the Editor
I read with great interest the very informative article by Applegarth S.C. (as The Honourable Justice Applegarth then was) titled “Hell Without Harbour Views” in Hearsay Issue 26 (May 2008). That article importantly referred to the outstanding service of David McLure on operational deployment as a reserve Army Legal Officer in Afghanistan. Further to that fine article and as an epilogue to it, I understand that recently two members of this Bar Association, John Devereux and Russell Pearce, who in their capacity as reserve lawyers deployed operationally into the Middle East, have received the “Bronze Star” for that service. The Bronze Star Medal is a United States Armed Forces individual military decoration which may be awarded for bravery, acts of merit or meritorious service. John Devereux is a Professor of law at the T. C. Beirne School of Law at The University of Queensland and Russell Pearce is the CMC’s Director of Misconduct Investigations. In their military guises, John is a Wing Commander in the RAAF Reserve and Russell a Lieutenant Colonel in the Australian Army Legal Corps. It goes without saying that this is a very notable and significant achievement on their part for which they should be sincerely congratulated.
Dominic Katter
On 19 May 2008 the Bar Council resolved:
“that an Extraordinary General Meeting of the Association be called to consider and if thought fit, to pass the following motion:
‘that clause 10.2 of the Constitution of the Bar Association of Queensland be modified so as to read:
‘10.2 The Council shall consist of 17 persons namely the President, the Vice President, fourteen (14) Practising Members and one (1) Employed Member. The President, Vice-President and fourteen (14) Practising Members shall be elected by and from Practising Members. The fourteen (14) Practising Members shall include not fewer then:
(a) two (2) women members;
(b) one (1) member of not more than three years’ standing at the Bar at the date of the declaration of the election;
(c) two (2) members, each of whom is of not less than three years standing but not more than ten years’ standing at the Bar at the date of the declaration of the election;
(d) two (2) members practising north of the northern boundary of the Sunshine Coast Regional Council local government area;
(e) one (1) member practising from one of the Gold Coast City Council local government area, the Sunshine Coast Regional Council local government area or the Toowoomba Regional Council local government area.’
Each of (a), (b), (c), (d) and (e) is a class for the purposes of rule 11.17. A Practising Member who falls within more than one class shall be taken into account for the purpose of satisfying the requirements relating to each such class.”
The resolution, if supported by 75% or more of the votes cast at the EGM would effect two changes:
(a) firstly, it would remove the requirement that silks fill two of the 14 positions left after taking out the positions occupied by the President, the Vice-President and the Employed Member; and
(b) secondly, a new reserve category would be created which would result in at least one member of Council being a barrister practising from a non-metropolitan location in South East Queensland.
The proposal to make these changes is based on the philosophy that voting for Council should be as unrestricted as possible and that this goal would be best achieved by adopting the principle that positions on the Council should only be reserved for members of a sub-group if it had all of the following features:
(a) its members are so few that they cannot secure representation on the Council;
(b) its members are of special significance to the Bar; and
(c) the operation of the Council would be enhanced by having a member of the sub-group participate in the Council’s work.
The first change is to remove the requirement that 2 places be reserved for silks. It is arguable that silks as a sub-group do qualify but they are supposed to be the leaders of the Bar and experience shows that ordinarily they command sufficient votes to win election to the Council. They have made up the majority of Councils (ie with numbers greater than the two reserved seats) which suggests that as a group they enjoy an advantage at election time. This advantage makes the reservation of positions unjustifiable. The reservation is also inconsistent with them being leaders. A disadvantage of the change is that it raises the possibility that there may be a Council which includes no senior counsel. This is most unlikely and would only occur in circumstances where the silks were not true leaders.
As things stand the members practising from non-metropolitan locations in South East Queensland who would be affected by the second modification would be those practising on the Gold Coast, on the Sunshine Coast and at Toowoomba. The numbers of barristers practising from the Gold Coast and the Sunshine Coast are growing rapidly as is the amount of litigation being conducted in the courts which sit in these two areas. The information available to the Council was that, despite the fact that both centres are within easy driving distance of Brisbane, members tended to spend most of their time in their own districts with the consequence that there was a risk that they lost connection in a significant way with the main body of us who practise in Brisbane. These areas will obviously increase in significance as their populations grow and these factors and the reality that Council has never included a member from either of these areas suggest that this group meets all of the three criteria referred to above. Toowoomba was added to the area because its numbers fluctuate and there is the potential there for growth.
Consideration was also given to increasing the number of seats on the Council which would be unaffected by any reserve position by removing those positions reserved for members between three and ten years seniority. Their numbers represent approximately 30% of the membership of the Association.
Despite this, recent voting records of votes cast at BAQ annual general meetings suggest that, without the reserved seats no or next to no members from this group would gain positions on Council. The following table is based on the Association’s records and excludes reference to employed members and members of less than four years seniority. Line (a) represents the number of silks on the respective Councils. Line( b) represents members who are ten years and over in seniority and who would have been elected regardless of qualifying for a reserved position. Line (c) are those with ten years seniority and greater who were elected only because they qualified for a reserved position. Line (d) are those between four and ten years who would have been elected regardless of qualifying for a reserved position. Line (e) are those between four and ten years seniority who were elected only because they qualified for a reserved position. “(r)” denotes that the relevant reserved position was for a regional member.
2003
2004
2005
2006
2007
(a)
9
8
8
9
10
(b)
3
3
4
3
4rr
(c)
0
2rr
2rr
2rr
0
(d)
1
0
1
0
2
(e)
1
2
1
2
0
This experience shows that, but for positions being reserved for the three to ten year group, it would have no representation on Council some 40% of the time and a further 40% of the time would only have one member. In these circumstances, in a practical sense the group can be said to satisfy the first qualification. While this is surprising given the group comprises 30% of the membership of the Association, this probably can be accounted for by the fact that our members in this phase of their careers are working hard at establishing themselves in their practices and are relatively unknown, not only to the wider membership, but also to other members in the same category so that they are at a disadvantage when election time comes.
Otherwise this group satisfies the other criteria.
As soon as a date has been set for the EGM, members will be notified.
Michael Stewart SC
President
As this is the last issue of Hearsay for 2007, I start by wishing you all an enjoyable and festive Christmas and New Year.
It is timely to record that the collegiate spirit of the Bar is alive and well. It is evident in the enthusiastic attendance of so many at our recent CPDs, at our functions in the Common Room, at the Bar and Bench Golf Day and elsewhere, in the Courts’ end of year functions, and also in our day to day professional dealings with each other.
I also take this opportunity of thanking those who have recently answered the call to serve the profession by standing for election to Council. My sincere thanks are due to all who did so, regardless of the result.
Congratulations are due also to all of those who were elected. Perhaps some would say that commiserations are more appropriate, given the voluntary workload this involves, but in truth it is an honour to be elected to the Council of an Association with such a significant history, such high ideals and such a real commitment to the profession and the community. That so many were willing to volunteer to shoulder the heavy burden of the Association’s work is very pleasing.
Ian Perkins
Ian Perkins —affectionately known as “Perko” – was tragically killed in a traffic accident on Wednesday 14 November this year. On 22 November 2007, a very large number of our members joined Ian’s family and numerous other mourners at his funeral. Our hearts go out to Ian’s family and his friends. Dan O’Connor’s moving obituary is published in this edition.
Annual Conference
I strongly urge all members to consider attending our annual conference on 15 to 17 February 2008 at the Sheraton Mirage on the Gold Coast. It is not just that you can earn all necessary CPD points by doing so: the conference brochure (published in Hearsay) demonstrates that it promises to be a valuable and very enjoyable event.
Silk
As members are aware, it is the Chief Justice of the Supreme Court who decides whether any senior counsel are to be appointed in Queensland, and, if so, who. Those decisions are made by the Chief Justice only after a very extensive, and intensive, consultation process. Full details of this process are set out in the Appointment and Consultation Protocol and the Criteria for Appointment of Senior Counsel, both of which documents are published on the Association website at http://www.qldbar.asn.au/. They are also summarised in previous editions.
Whether or not any changes to that process should be made is, of course, also a matter for the Chief Justice, and the Council is in the process of considering whether it should suggest any such changes.
In the November edition of Hearsay, I published the Council’s provisional draft amended Criteria and Protocol documents and I summarised the reasons why the Council did not support any attempt to re-introduce the “two counsel rule” abolished by a special general meeting of members some 16 years ago.
One of those reasons concerns the practical necessity for an amendment of the Barristers Rule 2007 for any such change, which was confirmed in a joint opinion obtained by the Council. I have since been authorised by the Council to publish that opinion. It is reproduced in this edition.
Submissions about the draft amended criteria and protocol for silk
The purpose of publishing those documents in the November edition of Hearsay was to focus discussion upon the merits and drafting of particular amendments.
The Council has decided to extend the time for submissions about these documents. Those who wish to comment are asked to make a submission to the office of the Association by no later than 31 January 2008.
Hugh Fraser QC
President
New Judges
The appointment of new judges has continued unabated. On 5th October, Justice Logan was sworn in as a Justice of the Federal Court, and I had the privilege of representing the Association at that ceremony. A copy of my remarks is included in this edition.
As I then recorded, the Association’s thanks are due to Justice Logan for the very substantial contributions he made to our profession and the affairs of the Association, including as Chairman of our Public Law Committee, as Deputy Chairman of our Continuing Professional Development Committee, as a participant in the CPD program and at the Bar Practice Course, and as a director of Barristers Services Pty Ltd.
Justice Murphy was sworn in as a Justice of the Family Court on 11th October. Michael Stewart SC represented the Association on that occasion, and his speech will appear in the November edition. Similarly, my remarks on the occasion of the swearing-in of Justice McMeekin yesterday as a Judge of the Supreme Court of Queensland will be published then.
Silk
In view of the public interest in the appointment of senior counsel, it might be useful for me to say a few words about the process.
It is the Chief Justice of the Supreme Court who decides whether any senior counsel are to be appointed in Queensland, and, if so, who, but those decisions are made by the Chief Justice only after a very extensive, and intensive, consultation process. Full details of this process are set out in the Appointment and Consultation Protocol and the Criteria for Appointment of Senior Counsel, both of which documents are published on the Association website at http://www.qldbar.asn.au/.
Members of the Bar (and some others) are consulted at an early stage in the process, in the course of the preparation of a list of candidates who the Senior Counsel Consultation Group (the “SCCG”) suggests are suitable for consideration by the Chief Justice. The SCCG itself consists of barristers – the Association’s President and Vice-President (as ex officio members), and three Senior Counsel nominated by the President and approved by the Council, not more than one of whom may be a member of the Council.
This year the members of the SCCG (in addition to myself and the Vice-President) were Robert Mulholland QC, John Griffin QC (who replaced Jean Dalton SC when she became unavailable after her initial appointment) and Peter Ambrose SC.
If my memory is accurate, there were 42 applications this year. The form of the application (also published on the Association website) is very detailed, including provision for extensive details of the applicant’s experience and qualifications for appointment as senior counsel.
The SCCG sought comment about the relevant qualities of each of the applicants from some 600 or so people in the categories described in the Protocol: most, but not all, of those people are practising barristers. A very substantial number of those asked for comments responded to that request. A significant proportion of the responses were in a detailed written form, using or adapting a form of questionnaire sent out by the SCCG.
In evaluating information obtained through consultation, the members of the SCCG took into account only information relevant to the stated criteria for appointment and only that information which was within the personal knowledge of the person consulted.
Where necessary, members of the SCCG also spoke to persons consulted about their responses to obtain more detail, to clear up any ambiguities, and to ensure that comments were based on the consulted person’s personal knowledge.
The members of the SCCG analysed the applications by each of the 42 applicants and the responses received during the consultation process. The group met and discussed the applications and the responses, before finalising their list of candidates.
As required by the Protocol, the role of the SCCG concluded at the beginning of October, when I provided the Chief Justice with the list provided by the SCCG.
As this short summary indicates, the process was demanding and time consuming for the members of the SCCG. So far as the President and Vice-President are concerned, participation in this process is simply one of the requirements of those offices, but the other members simply volunteered when asked. They did so without hesitation, despite appreciating the burden involved.
On behalf of the Association I express my sincere thanks to the members of the SCCG for their willing and conscientious discharge of this professional obligation.
Costs Disclosure and Costs Agreements
It is obvious that barristers generally are keen to comply with the costs disclosure requirements of the Legal Profession Act 2007, as is reflected in the enthusiastic attendances at the CPDs on this topic held in Brisbane and, more recently, in Rockhampton and Townsville.
The Association is currently planning to hold a further CPD on this important matter before the end of the year in Brisbane, and hopefully also in Cairns if mutually convenient dates can be found.
In the meantime, members are reminded of our ethical obligations to comply with the costs disclosure regime currently in force under this legislation, and of the practical value of entering into costs agreements. The papers from the earlier CPD are on the Association’s website.
Volunteers
One of the hallmarks of a profession is that its members volunteer their own time to advance the profession’s aims for the good of the community. Active participation in the Association’s affairs is also one of the most obvious ways of maintaining the Bar’s ideals and its collegiate spirit.
It will be apparent from what I have already said that we are in the fortunate position that our members, including our senior silks, do readily volunteer for the necessary and difficult roles required by our profession.
On the other hand, over the last few months, the Bar has lost to the Bench some of our most substantial contributors to the Bar’s professional affairs. Although we can confidently expect that these new judges will continue to contribute as far as is consistent with their judicial responsibilities, their departures necessarily make room for new participants. It is very encouraging to report that some have already recognised this and contacted me to volunteer their services in particular area, and I have no doubt that this trend will continue.
Hugh Fraser
The appointment of new judges has continued unabated. On 5th October, Justice Logan was sworn in as a Justice of the Federal Court, and I had the privilege of representing the Association at that ceremony. A copy of my remarks is included in this edition.
As I then recorded, the Association’s thanks are due to Justice Logan for the very substantial contributions he made to our profession and the affairs of the Association, including as Chairman of our Public Law Committee, as Deputy Chairman of our Continuing Professional Development Committee, as a participant in the CPD program and at the Bar Practice Course, and as a director of Barristers Services Pty Ltd.
Justice Murphy was sworn in as a Justice of the Family Court on 11th October. Michael Stewart SC represented the Association on that occasion, and his speech will appear in the November edition. Similarly, my remarks on the occasion of the swearing-in of Justice McMeekin yesterday as a Judge of the Supreme Court of Queensland will be published then.
Silk
In view of the public interest in the appointment of senior counsel, it might be useful for me to say a few words about the process.
It is the Chief Justice of the Supreme Court who decides whether any senior counsel are to be appointed in Queensland, and, if so, who, but those decisions are made by the Chief Justice only after a very extensive, and intensive, consultation process. Full details of this process are set out in the Appointment and Consultation Protocol and the Criteria for Appointment of Senior Counsel, both of which documents are published on the Association website at http://www.qldbar.asn.au/.
Members of the Bar (and some others) are consulted at an early stage in the process, in the course of the preparation of a list of candidates who the Senior Counsel Consultation Group (the “SCCG”) suggests are suitable for consideration by the Chief Justice. The SCCG itself consists of barristers – the Association’s President and Vice-President (as ex officio members), and three Senior Counsel nominated by the President and approved by the Council, not more than one of whom may be a member of the Council.
This year the members of the SCCG (in addition to myself and the Vice-President) were Robert Mulholland QC, John Griffin QC (who replaced Jean Dalton SC when she became unavailable after her initial appointment) and Peter Ambrose SC.
If my memory is accurate, there were 42 applications this year. The form of the application (also published on the Association website) is very detailed, including provision for extensive details of the applicant’s experience and qualifications for appointment as senior counsel.
The SCCG sought comment about the relevant qualities of each of the applicants from some 600 or so people in the categories described in the Protocol: most, but not all, of those people are practising barristers. A very substantial number of those asked for comments responded to that request. A significant proportion of the responses were in a detailed written form, using or adapting a form of questionnaire sent out by the SCCG.
In evaluating information obtained through consultation, the members of the SCCG took into account only information relevant to the stated criteria for appointment and only that information which was within the personal knowledge of the person consulted.
Where necessary, members of the SCCG also spoke to persons consulted about their responses to obtain more detail, to clear up any ambiguities, and to ensure that comments were based on the consulted person’s personal knowledge.
The members of the SCCG analysed the applications by each of the 42 applicants and the responses received during the consultation process. The group met and discussed the applications and the responses, before finalising their list of candidates.
As required by the Protocol, the role of the SCCG concluded at the beginning of October, when I provided the Chief Justice with the list provided by the SCCG.
As this short summary indicates, the process was demanding and time consuming for the members of the SCCG. So far as the President and Vice-President are concerned, participation in this process is simply one of the requirements of those offices, but the other members simply volunteered when asked. They did so without hesitation, despite appreciating the burden involved.
On behalf of the Association I express my sincere thanks to the members of the SCCG for their willing and conscientious discharge of this professional obligation.
Costs Disclosure and Costs Agreements
It is obvious that barristers generally are keen to comply with the costs disclosure requirements of the Legal Profession Act 2007, as is reflected in the enthusiastic attendances at the CPDs on this topic held in Brisbane and, more recently, in Rockhampton and Townsville.
The Association is currently planning to hold a further CPD on this important matter before the end of the year in Brisbane, and hopefully also in Cairns if mutually convenient dates can be found.
In the meantime, members are reminded of our ethical obligations to comply with the costs disclosure regime currently in force under this legislation, and of the practical value of entering into costs agreements. The papers from the earlier CPD are on the Association’s website.
Volunteers
One of the hallmarks of a profession is that its members volunteer their own time to advance the profession’s aims for the good of the community. Active participation in the Association’s affairs is also one of the most obvious ways of maintaining the Bar’s ideals and its collegiate spirit.
It will be apparent from what I have already said that we are in the fortunate position that our members, including our senior silks, do readily volunteer for the necessary and difficult roles required by our profession.
On the other hand, over the last few months, the Bar has lost to the Bench some of our most substantial contributors to the Bar’s professional affairs. Although we can confidently expect that these new judges will continue to contribute as far as is consistent with their judicial responsibilities, their departures necessarily make room for new participants. It is very encouraging to report that some have already recognised this and contacted me to volunteer their services in particular area, and I have no doubt that this trend will continue.
Hugh Fraser
This weekend brings the annual Bar Conference which is to be held at the Sheraton Mirage Resort on the Gold Coast. Latest intelligence suggests that more than 300 barristers and other professional participants have registered for the conference with the expectation that there may be significantly more before Friday evening arrives. This will make the conference the most heavily attended event of its type that the Association has staged. No doubt this is largely attributable to the engaging and relevant program that has been proposed and the depth of talent that this has attracted.
One example of this is the session commencing at 9.00am on Sunday morning. The Hon Justice Byrne RFD will chair a forum on the issue of judicial appointments. This is an issue close to us. All of us have a vital interest in the high standing the Courts now enjoy. Most judges are women or men taken from our ranks and producing people who will uphold the high standards of the Bench is an important objective of an independent Bar. The method by which they are appointed is also an essential ingredient in the recipe and it is hard to imagine a panel more influential participants than those whom we will hear on Sunday.
There is still time to register for the conference and for those of you who can make time, I urge you to join us on the Gold Coast.
Those at the conference will be fortunate to have an opportunity to meet with Phil Greenwood SC of the Sydney Bar. He has made invaluable contributions as the coordinator of the Australian Bar Association’s Residential Trial Advocacy Course, which has been a resounding success in the two years it has been running. The next course will be held in Sydney from 19 to 23 January next year. To download a copy of the flyer providing more details, CLICK HERE. An interesting article by Marcus Priest was published in the Financial Review last year. He attended the course earlier that year and his article on the demanding but stimulating experiences makes interesting reading. To download a copy of the article, CLICK HERE.
The Silks Bows before the High Court in Canberra on 29 January and the dinner that evening were happy occasions for the freshly woven Brad Farr SC, Michael Kent SC, Declan Kelly SC and their families.
In late 2005, the Bar Council resolved that a review be undertaken of the Bar Practice Course (BPC) and to make recommendations for its future. This was undertaken by Professor Chris Roper AM who has an international reputation in this area. The Course has been offered since 1983 and was the subject of a formal review in 1989 undertaken by the BPC Chairman H G Fryberg QC (as he then was). The Bar Council formed the view that the Course should undergo a comprehensive review in light of the introduction of the Legal Profession Act which made the Course a post-admission, pre-practising certificate qualification. The Association’s aim in undertaking the review was to ensure that the Course was relevant to current practice and underpinned by a strong advocacy focus. In addition, the BPC will become part of a continuum encompassing pupillage and CPD. It is pleasing that the first BPC in the new format commenced in January at the QUT. We are most grateful to the implementation committee, ably chaired by the Hon Mr Justice Muir, for their efforts in achieving a first class course which will provide those coming to the Bar with a solid foundation for the commencement of their practice.
Finally a reminder that the end of the CPD year falls on 31 March. Please remember to submit your schedule 5 to the Bar office as soon as possible.
Michael Stewart SC
President
On 18 February, 2008 the Bar Council, together with Council of the Law Society hosted a Dinner for The Hon. Paul de Jersey AC and Mrs Kaye de Jersey to mark the 10th anniversary of his Honour’s appointment as Chief Justice of Queensland. The occasion was a significant one as it gave the Association an opportunity to thank the Chief Justice for his on-going support and encouragement of the Association and, in particular, the importance of an independent referral bar. In active involvement in all aspects of the life of the Bar, in particular, his on-going and important role in the process for the selection of senior counsel, his regular attendance at both professional and recreational events organised by the Bar.
At the last Council meeting, it was resolved that a meeting would be convened of members of less than 5 years standing who practiced in the criminal jurisdiction or had a desire to practice in that jurisdiction. The meeting was held in the Common Room on Thursday 28 February. The aim of the meeting was to address, in part, the decline in the volume of work traditionally undertaken by the junior bar in the Magistrates Court including committals, summary trials and pleas of guilty. In addition, the Council was keen to discuss the funding of the criminal justice system and, in particular, the adequacy of legal aid funding for counsel undertaking legal aid work. I chaired the meeting with the assistance of Davis S.C. and Amerena. The meeting covered a wide range of issues of concern to the junior bar and gave the Council a greater insight into some of the key issues to be addressed. The Association was pleased to be able to facilitate the attendance at the meeting of Tony Collins, a regional member of the Bar Council and someone who has a great deal of experience in the criminal jurisdiction. Tony’s attendance brought to the meeting the experience of the regional Bars and gave him the opportunity to be able to report back to our regional members some of the key areas of concern and matters which required address. It is proposed that a further meeting will be convened of the wider criminal bar in the near future to give members the opportunity to raise issues of concern and to encourage debate on these important issues.
In December, 2007 Legal Aid Queensland issued a discussion paper titled “Criminal Law Legal Aid Fees”. An electronic copy of the discussion paper can be found on BarWeb. [To download a copy of the paper, CLICK HERE.] The Association has established a small working group to prepare a response to the discussion paper. It is worth noting that the Association has consistently made representations on the adequacy of legal aid and a 19% increase in criminal law fees took effect from 1 July 2007. The increase in fees is regarded by Legal Aid Queensland as an interim measure pending the outcome of the review of the “pricing structure for criminal defence matters…” The next scheduled legal aid fee increase is due on 1 July, 2008. I would like to particularly express the Bar Council’s thanks to Long S.C. for his on-going work in this area.
The Queensland Bar has long been a leader in the provision of alternate dispute resolution. With the desire to maintain that leadership role and in line with recent developments in ADR, in particular, the National Alternate Dispute Resolution Advisory Council (NADRAC) requirements for the accreditation of mediators, the Association undertook a review in early 2007 of the existing arrangements for the accreditation of mediators. As a consequence of that review, the Council took steps to clarify and enhance the requirements for the accreditation and re-accreditation of mediators. Accordingly, on 1 July, 2007 the Association adopted a new set of rules for the accreditation and re-accreditation of mediators. Part of the process was the requirement for biennial re-accreditation as a necessary part of maintaining high professional standards in respect to mediation services provided by barristers at the Queensland Bar. The Council is currently considering the on-going National developments for the accreditation of mediators. As a first step, the Bar Council has taken the necessary steps to become a Registered Mediator Accrediting Body (RMAB) and has asked the Bar’s ADR Committee to report on the necessary arrangements which need to be put in place to ensure that the Queensland Bar complies with the new regime and that our members are in a position to compete equally with our professional colleagues both in Queensland and elsewhere. Further specific information will be distributed to members once the final arrangements for accreditation have been put in place.
Michael Stewart S.C.
President
To The Editor
Hearsay
Dear Editor,
Because I am not yet computer literate, it takes me longer to catch up with current affairs and the worthy articles in Hearsay. I wish in particular to refer to a worthy article in Issue 22 of November 2007 by Peter Franco.
In short, the article compares Bradman to leading sportsmen in various other fields and shows that he is streets ahead of any of them as a champion performer.
Perhaps I should have used the word “sportsperson” which comes to me with difficulty. However, it is necessary, because I refer to Heather Mackay, formerly Blundell, the great squash player (I almost said famous yet few would know about her) who in more than 10 years of tournament squash was undefeated at the World Championships. The Championships are played over 5 sets. Regularly Mackay won in 3 and on one occasion, and I speak from memory only, she won 9-0 9-1 9-0 against her opponent in the finals. If Mr Franco has time it would be wonderful to compare her record with those of the other leading performers and with the Don.
Yet another famous sportsman was Walter Lindrum he was a billiards/snooker player par excellence. The stories of him are legend but I have not sought to look into his record in depth. I am told there are wonderful facilities online (which means in the ether, apparently) where one can obtain full details of prominent people. Perhaps Franco would be kind enough to consult those facilities and produce a similar analysis for Walter Lindrum.
Clearly those three are freaks. No amount of practice or training will bring a cricketer to the level of Bradman. Heather Mackay and Walter Lindrum are in the same category, but it is a pity that they are not better known. I have particular sympathy for the former. At the time she was in full flight, I had great admiration for her and marvelled at her prowess. Recently I heard her interviewed as a very mature woman. She had all the grace, modesty and dignity of a great lady. She is tops.
Signed,
Crowley (the older)
Thank you to all who supported the first online edition of Hearsay.
As discussed in more detail in the article published elsewhere in this edition concerning the launch of Hearsay, the online version has been well received and I hope that members will continue to provide active support for it in the form of contributions for publication and posts on the Forum.
Frequent visits to the Forum during the currency of each online edition should ensure that the publication grows in worth during the month of its publication. As I have said previously, that is the real purpose of the Forum; to facilitate healthy debate among members for our mutual benefit.
So far as contributions for publication are concerned, in future editions of Hearsay a new approach will be taken. Although contributions from any member will always be welcomed, the responsibility for providing the bulk of the contributions for each edition shall be assigned to a featured set of chambers.
There will be a short note about the featured chambers, listing past and present members, areas of practice and other points of interest, and the current members of that group will contribute articles for publication in that edition of Hearsay.
It is hoped that, through this innovation, the future life and worth of the publication will be assured.
I am especially grateful to Michael Liddy for advancing the idea and agreeing to co-ordinate it as the featured chambers sub-editor.
Martin Burns
1 May 2007
Welcome to the first online edition of Hearsay.
The President of the Association, Martin Daubney SC, has already written in this edition’s ‘From the President’ of the resolutions made by the Council of the Association earlier this year to make Hearsay the official journal of record for the Association, as well of the migration of the publication to the Web.
While that means, of course, that a hard copy journal will no longer be published, as the President observed, the move to a website provides much greater scope for live interaction between all members than anything that has gone before. A new edition will be published each month throughout the year and, although it will therefore be published less frequently than the PDF bulletin, it may be expected to be double the size in terms of content, as this edition attests.
In addition – and unlike its predecessor – once published, each edition will remain on the Web until the next edition is published; thus obviating the need to print off or otherwise save a copy of each issue. Individual articles may be printed as before – albeit more easily and quickly – but, now, they may also be emailed at the click of a button.
Among the many new features, the one that I hope will gain most acceptance is the Forum. If that hope is realised, it will ensure that the publication grows in worth during the month of its publication through the posting of comments about published articles as well as any other topics of interest. That is the real purpose of the Forum; to facilitate healthy debate amongst us for our mutual benefit.
Although the website will be open to the public, only registered members will be permitted to post in the Forum, but I urge each of you to register – a simple procedure – and thereby make full use of the facility.
Again as the President explained, the website is fully searchable by word, author or topic. Indeed, the search page will also extend, should you choose, to a full Google search. To date, only one of the previous 15 editions of Hearsay has been uploaded in searchable form – the balance may be located in the Archive in their PDF form – but, over the coming months, all previous editions will come online.
So far as the inclusion of content is concerned, you will find a similar philosophy to that which was adopted last year – in addition to news of current professional affairs, articles of real practical benefit to the most number of members are preferred. I hope though that you will find a little more balance this year with a number of lighter articles as well as a couple of innovations. Two bear mentioning.
First, in additon to summary notes and links to decisons of the Queensland Court of Appeal, the same approach has been adopted so far as decisions of the High Court of Australia are concerned.
Secondly, we have incorporated a Common Room where news and views from the regional Bars as well as segments of the Bar may be found. In this edition, reports are included from the Gold Coast, from the South-Western Darling Downs and from the ‘junior, junior’ Bar. The Common Room provides a real opportunity for us to become closer than our geography (or seniority) would otherwise dictate. I hope that, in time, we will see contributions in each edition from all regions as well as from other segments of the Bar so that we may all better understand the challenges that face the Bar as a whole and, in the process, be better able to offer each other support or assistance.
Otherwise, I encourage all members to contribute to Hearsay. Although it has been said before, it bears repeating that it is only through your support that the publication will endure.
Before closing, it would be remiss of me not to make special mention of Sir George Street and his kindness in agreeing to provide responses to this edition’s Prism. For our older members, Sir George needs no introduction but, for the younger members, a separate article is published in this edition to provide some background information about one of this State’s most eminent, but enigmatic, former jurists.
Lastly, I would like to extend my sincere thanks to the President and the Council of the Association for their unqualified support of Hearsay and to web developer Brett Young, designer Greg Hale and my secretary, Emma Macfarlane, for their unstinting dedication to the, at times, daunting task of moving Hearsay online. We got there in the end!
Martin Burns
Welcome to this 100th edition of Hearsay
I am pleased to celebrate this milestone by recognising the editors of Hearsay, both past and present.
Editors often go without fanfare. Credit goes to the author for the concept, the artistry, newly-woven idiom and the effective use of language and form. But the editor fashions the outcome and renders the result, polishing the facets of the diamond.
The significance of the editor is well illustrated by the relationship between American author, the iconic Raymond Carver, and his long-time editor, Gordon Lish.
It is easy to tell when you are reading a Raymond Carver short story. In some ways it resembles good legal writing: concise, eschewing unnecessary description, every word serving a purpose and put as simply as possible. Less so is his approach to characters, starkly real people who mean what they say but don’t always say what they mean, and his endings: abrupt and unexpected, sometimes mid-sentence.
In stories where traditional narrative has been cut down to the marrow, which exist in the real world and deal with themes like broken marriages, struggle and alcoholism, so much plays out in the silences left by Carver. In The Bath, a mother answers the phone, the caller asking after her hospitalised son, and the story ends, leaving the reader left to decide the son’s fate. They aren’t necessarily happy stories.
Following Carver’s death from lung cancer in 1988 and the publication by his widow of his manuscripts and Lish’s editorial notes, questions have arisen about the true source of Carver’s renowned minimalistic style.
Carver had described Lish’s editing as “surgical amputation”. This was never clearer than in What We Talk About When We Talk About Love, one of Carver’s most famous works. In 2007, Carver’s unedited manuscript was published under its original title: Beginners.
The short story features two couples talking around a bottle of gin. Lish renamed the published version, excised almost half of the 10,000 words, and created a different ending. The broad strokes of the story were the same but that did not stop Carver asking his publisher to halt production after he first received Lish’s edits.
In ‘What We Talk About’, Mel, a surgeon, tells the story of an elderly couple he treated after a car accident who recovered in full body casts, looking “just like in the movies. Little eye-holes and nose-holes and mouth-holes”. Despite their survival and recovery, the husband fell into a deep depression because his cast prevented him from moving his head to look at his wife, who is lying next to him in her own cast – so great is his love for his wife.
In the published version, Mel’s story takes up three paragraphs. In Beginners, it runs over multiple pages, the couple are in separate rooms, and the husband has use of his neck twice a day. In Lish’s version, the old couple’s love is so great that the gin drinkers ought to be ashamed that they think they know what they’re talking about when they talk about love. In Carver’s version, compared to the old couple they’re only beginners, who can improve with time. While Beginners is more hopeful, it’s difficult to compare the two versions and not conclude that Lish’s edits make for the better story.
It was the last time Lish edited Carver’s work.
We have all had our work given the Lish treatment, and we have probably all been Lish, perhaps even at the same time. We have seen hours of work undone with the swipe of a pen, lamented abandoning a point which seemed promising in its infancy but proved useless in its exploration, or cut down our work to its most elemental principle. We also have to overcome barriers Carver and Lish didn’t: that what we write must be true and must have an ending which makes sense. Without the colleagues who spotlight as our editors we would be trapped in full-body casts made of our own should-have-been cut drafts, with only hole-punched pages through which to peer out.
My thanks to the current Editors of Hearsay, Richard Douglas KC and John Meredith, each of whom is as accomplished as Carver and as helpful as Lish, for their work in compiling this 100th edition of Hearsay.
The many editors of Hearsay have built this superb publication willingly, voluntarily and enthusiastically, creating an enduring record of the strength of the current Bar.
I encourage you to read all of the articles in this edition, the editorial contribution in particular. My thanks to all the authors who have contributed to this landmark issue of Hearsay.
Please enjoy reading Hearsay.
Gordon Lish sub nom Cate Heyworth-Smith KC*
*Credit to Mr Joseph Murphy, Lawyer, Legal Department, Bar Association of Queensland and our resident Raymond Carver.
Welcome to the June Quarterly Issue of Hearsay
Being issue 100 – published 19 years after Hearsay was first published in 2006 – this is a notable occasion for both Hearsay and the Bar Association of Queensland.
This milestone reflects, principally, the effort of Hearsay’s many contributors over the years, be they BAQ barrister members, the judiciary, solicitors or our sponsors.
Thanks go also to the Association’s Dianne Lyndon, (Chief Executive) Kelsey Rissman and Kasey Rowland – and their predecessors – for their diligence and assistance to successive editors in the production of Hearsay over such 100 issues. Hearsay’s deputy editor Philip O’Higgins KC, sub-editor Stephen Keim S.C. (who has been in that role since Hearsay’s inception) and other editorial team members Carolyn Conway and Seraphina Noble join us in expressing such gratitude.
Hearsay 100, we believe, meets the occasion.
The article ‘The Communist Party Case, the Role of the Advocate and the Rule of Law’ by the Honorable Justice Glenn Martin AM SJA is worthy of its lead billing. As with his Honour’s earlier article on ‘The Art of Written Submissions’ (Issue 88, June 2022, which now has enjoyed over 14,000 views), it is anticipated that this article will receive broad interest – it is a pertinent discussion of professional obligation by reference to a seminal decision of the High Court of Australia.
Hearsay is proud to showcase Australian – in particular Queensland – art. This issue’s featured artwork is titled ‘Summer, Frenchman’s Beach’ and was painted by Brisbane Artist Ralph Wilson in 2019. Ralph’s art is exhibited at Philip Bacon Galleries and the subject is timely given the fast-approaching June holidays. If any further inspiration is needed to get away, hopefully this will assist. A profile of Ralph Wilson is included.
Hearsay’s interviewee this issue in ’10 Minutes with …’is the highly regarded Honorable Hugh Fraser KC, now retired and enjoying his extra-curricular activities post Court of Appeal. He canvasses his time at the bar and on the bench.
The ‘Thought for this Issue’ is Sir Owen Dixon’s observation – if not adjuration – that ‘counsel brings their learning, ability, character and firmness of mind to the conduct of causes’. So much ought spawn reflection by every barrister.
The sub-articles include ‘Ethics as Advocacy’ by Phillip O’Higgins KC, who explains cogently how ethical practice in advocacy can be a powerful weapon in Counsel’s armoury in successful pursuit of their client’s litigious interests.
Matthew Hickey OAM KC pays tribute to the memory of the Honourable Peter Hilton of the Family Court of Australia, and invites the profession to support a charitable endeavour set up in his memory. Please do support this worthwhile cause.
The ‘Regional Bar’ section item is afforded by the highly regarded regional silk Justin Greggery KC, concerning having chambers regionally and in Brisbane. Food for thought here!
The usual eclectic mix of informative and entertaining articles and case notes on Professional Conduct and Practice, Advocacy, Reviews and the Arts and Inter Alia (including Mintie celebrating Issue 100) are included.
Enjoy, and happy 100 to Hearsay!
We do request your contributions to the editors, deputy editor or editorial team:
Editor – Richard Douglas KC (T: 3218 0620; M: 0417 788 713; E: douglas@callinanchambers.com). Editor – John Meredith (T: 3218 0650; M: 0403 278 585; E: jmeredith@callinanchambers.com). Deputy Editor – Philip O’Higgins KC (T: 3232 2122; M: 0417 997 725; E: philip.ohiggins@carbolic.com.au); Sub-Editor – Stephen Kiem SC (T: 3229 0381; M: 0433 846 518; E: s.keim@higginschambers.com.au) book and podcast reviews. Editorial Team – Carolyn Conway (T: 3229 2631; M: 0407 757 780; E: conwaycj@jeddart.com) and Seraphina Noble (T: 3210 6537; M: 0447 224 754; E: snoble@qldbar.asn.au)
Semipalatinsk is a large area in the north east of Kazakhstan which, in 1949, was known as the Kazakh SSR, one of the constituent republics of the USSR. On 29 August of that year it was where the Soviet Union exploded its first atomic device[i]. The reaction here and elsewhere was one of surprise and of heightened concern about the USSR’s military capacity and intention. General apprehension about the Cold War and the presence of communist spies increased when, a month later, Mao Zedong proclaimed the creation of the Peoples Republic of China.
Against this backdrop of international tension and the dawn of the nuclear age Australia was grappling with its own internal challenges. Shortly before those two events, Australia had been in the grip of one of its most serious strikes. The coal mines were closed and a Labor government had stepped in and used the army to clear strikers. It was a time when, not only Australia, but also many other western nations perceived a direct and substantial threat from communists and their sympathisers.
For contemporary readers, these events may seem distant. That era was defined by leaders such as Clement Attlee, the Prime Minister of the United Kingdom; Harry Truman, the President of the United States; and Robert Menzies, who assumed office as Australia’s Prime Minister for the second time in December 1949. Though these events occurred 70-75 years ago, they offer valuable historical lessons about the balance between security and civil liberties.
Marx House, the headquarters of the Australian Communist Party Central Committee on George Street, Sydney, circa 1950. (Three Lions/Hulton Archive/Getty Images)
When Mr Menzies came into office, one of his new government’s highest priorities was the destruction of Australian communism. This was to be achieved through the Communist Party Dissolution Act 1950. The Act outlawed and dissolved the Communist Party of Australia and provided for the confiscation of its assets. Organisations affiliated with or controlled by the CPA could be declared unlawful, and individuals who were or had after 10 May 1948 been members of the CPA could be declared to be so and thus debarred from employment in the Commonwealth Public Service or from holding office in a trade union. A person who was the subject of such a declaration had the onus of proving that he or she was not liable to the making of that declaration.
Mr Menzies
This was part of the “war on communism”. It was a conflict about which the participants felt so strongly that they were prepared to cut away at longstanding provisions essential to the healthy survival of the rule of law. Of course we now understand that the Communist Party of Australia, while aligned with the Soviet Union, posed a threat that was not as overwhelming as many then believed. However, it is crucial to understand the prevailing climate of fear and suspicion that shaped the political landscape at the time. That is the precious gift of hindsight. This process was well captured in the words of William Brennan, former Justice of the United States Supreme Court, who said in 1987:
“There is considerably less to be proud about, and a good deal to be embarrassed about, when one reflects on the shabby treatment civil liberties have received in the United States during times of war and perceived threats to national security… After each perceived security crisis ended, the United States has remorsefully realised that the abrogation of civil liberties was unnecessary. But it has proven unable to prevent itself from repeating the error when the next crisis came along.”[ii]
That statement can be neatly contrasted with what was said by Mr Menzies in the House of Representatives after the High Court had ruled that his government’s Communist Party Dissolution Act was unconstitutional. He told the House:
“We cannot deal with such a conspiracy urgently and effectively if we are first bound to establish by strict technical means what an association or an individual is actually doing. Wars against enemies … cannot be waged by a series of normal judicial processes.”[iii]
The decision of the High Court[iv] invalidating the Communist Party Dissolution Act has been described as “undoubtedly one of the High Court’s most important decisions”[v]. Had the Act been upheld and then enforced without scrupulous oversight, then its effect on the rule of law could have been devastating. Former member of the High Court, Michael Kirby, has suggested that apartheid South Africa provided a model of what Australia might have become had the legislation been upheld.[vi]
The High Court of Australia Back Row: Fullagar, Webb, Williams, and Kitto JJ Front Row: Dixon J, Latham CJ, McTiernan J
The ultimate foundation for the decision was the rule of law. It was an example of the constitutional principle that a parliament cannot recite itself into power and, at a more particular level, that only the judicial power is permitted to bridge the gap between making a classification and placing a person within it.[vii]
The Court did not establish a blanket prohibition against reversing the burden of proof, as courts still retain authority to determine whether constitutional facts exist in such cases. Furthermore, the Court acknowledged that while the Commonwealth could not enact such legislation, State governments probably could.
So, who were the principal counsel in the Communist Party case?
Frederick (Fred) Paterson, a Rhodes Scholar, was counsel for the Communist Party. He was the only representative of the Australian Communist Party to be elected to an Australian parliament. He was the member for the State seat of Bowen from 1944-1950.
Garfield Barwick KC, was leading counsel for the Commonwealth, who later became the Commonwealth Attorney-General, Minister for External Affairs and Australia’s longest serving Chief Justice, led three silks and six juniors at the hearing.
H V (Bert) Evatt KC was counsel for the Waterside Workers Federation and would become the Leader of the Opposition in the Commonwealth Parliament three months after the High Court delivered its decision.
F W Paterson, Counsel for the Communist Party
G E Barwick KC, Leading counsel for the Commonwealth
H V Evatt KC, for the Waterside Workers Federation
This case illustrates the proposition that in a settled western democracy, the role of the advocate in the protection and maintenance of the rule of law is essential. While the courts, and depending upon their public persona, some judges, can fleetingly become the objects of veneration for their role in upholding that principle, none of this could occur without advocates willing to develop a case and present it to the court. As Sir Gerard Brennan observed:[viii]
“… the courts are the long-stop. The law which rules is the law according to the rulings of the courts, but it is applied in the offices and chambers of the legal profession. It is applied in drafting and advising; in consultations more than in litigation. But, because the courts are the long-stop and because the rulings of the courts determine the way in which the law operates, judicial decision-making is critical to the maintenance of the rule of law. So it is in litigation that the practising legal profession works at the cutting edge of the rule of law.”
In a settled democracy, where the practice of law can result in a comfortable living, it is sometimes too easy to become more concerned about the prompt payment of fees than the integrity of the institution which allows the fee to be charged. While the courts do resolve the issues and while members of the judiciary do decide the cases which allow the rule of law to be maintained, they do not reach out into the community to bring the cases before them. Without the profession acting for those whose rights have been affected and without its members recognising that sometimes there are aspects of legislation which are inconsistent with the rule of law, then damage can be done.
It is obvious that our society is subject to numerous threats: by terrorists, by organised crime and by the galaxies of unlawful activities which revolve around the sale and consumption of illicit drugs. Evolving criminal methodologies and terrorist tactics demand innovative approaches and a resolute determination to deal with them.
It remains a necessary part of an advocate’s role when engaged in litigation to identify elements of legislation that, despite worthy intentions, may diminish the rule of law. This obligation can be complex. Whether in jurisdictions with human rights legislation or without, advocates serve the rule of law by applying validly enacted laws and interpreting them appropriately. The common law has always sought a balance between individual freedoms and community protections. If legislatures restrict fundamental freedoms or diminish common law values, advocates must be prepared to present arguments challenging these actions.
As Sir Gerard Brennan concluded:
“Sometimes that may be an anxious duty, sometimes difficult to perform. But that has long been the experience of a robust and proud profession.”[ix]
[i] In 2007, the capital of this area, Semipalatinsk City, changed its name to Semey because its existing name had negative associations due to the extensive atomic testing which had taken place.
[ii] ‘The quest to develop a jurisprudence of civil liberties in times of security crises’ (1988) 18(11) Israel Yearbook on Human Rights 1.
[iii] 212 Parliamentary Debates, House of Representatives, 13 March 1951, 366.
[iv]Australian Communist Party v The Commonwealth (1951) 83 CLR 1 (Dixon, McTiernan, Williams, Webb, Fullagar and Kitto JJ agreeing; Latham CJ in dissent).
[v] George Winterton, ‘The Significance of the Communist Party Case’(1992) 18 Melbourne University Law Review 630.
[vi] ‘H V Evatt, The Anti Communist Referendum and Liberty in Australia’ (1991) 7 Australian Bar Review 93, 100-101.
[vii] Geoffrey Sawer, ‘Defence Power of the Commonwealth in Time of Peace’ (1953) 6 Res Judicatae 214, 219.
[viii] ‘The Role of the Legal Profession in the Rule of Law’ in Francis Neate (ed), Rule of Law: Perspectives from Around the Globe (LexisNexis, 2009).
The Honourable Hugh Fraser KC studied at the University of Queensland where he gained a Bachelor of Laws in 1979. He served as Associate to Supreme Court Judge, the Honourable James (Jim) Dunn KC. He was admitted to the Bar in 1979 and practised from 1981.
Mr Fraser enjoyed a busy career as counsel, engaged in a wide range of litigation and associated advisory work, with a focus on complex commercial disputes. He was appointed Queen’s Counsel in 1992. His brother Donald Fraser KC took silk the same year.
Mr Fraser gave extensive service to the Bar Association of Queensland. He served as a council member (2005-2006), Vice-President (2006-2007) and President (2007-2008). He was a Director of the Law Council of Australia (2007-2008) and Honorary Treasurer of the Australian Bar Association (2007-2008).
There followed on 25 January 2008 his appointment as a Judge of the Queensland Court of Appeal. He served in that role with distinction for more than 14 years, retiring on 16 July 2022. While a member of the Court, he was acting Chief Justice in the first half of 2022. After retirement, he served as an Acting Judge of the Court of Appeal in the first half of 2024.
From 2009 to 2017, Mr Fraser served as Chair of the Supreme Court Library Committee. He is a Fellow of the Australian Academy of Law.
Mr Fraser spoke to editor, Richard Douglas KC:
Douglas
Thank you for agreeing to speak to Hearsay for the 100th Issue.
Fraser
Thanks for asking me.
Douglas
Academically you performed well at High School, with aptitude for any vocation. How did you come to pursue a legal career?
Fraser
At the end of grade 12 I considered a career in engineering, but I discovered that the subject “Technical Drawing” was a prerequisite. I could barely draw a straight line with a ruler, so I went with my second choice. I also may have been influenced by the fact that two siblings had already started their legal education.
Douglas
You commenced practice when you were aged 23 years. Do you harbour any regrets about not choosing to commence a bar career a little later, as new admittees now tend to do?
Fraser
When I met one of my earliest clients at court, she told me I was too young to be a barrister. In hindsight she was right.
Douglas
Your brother, Donald Fraser KC, was a well loved member of the Bar. Did you ever appear against each other?
Fraser
We tried to avoid appearing against each other, but it happened twice. In the first of the two cases, I acted for the plaintiff, a young man who collided with a council bus when he was driving his father’s expensive car. My client did not fare well under Don’s cross-examination; at one point my client burst into tears. In the council’s case, Don called passenger after passenger to corroborate the bus driver’s evidence that my client simply drove into the side of the bus. None of Don’s witnesses cried when I cross-examined. They also seemed genuinely perplexed that there could be any dispute. By the end of the evidence, I felt like crying myself. Very generously, Don only rarely reminds me of that case. I won the only other case in which we appeared against each other but Don claims to have no memory of it.
Douglas
You were involved in many notable cases – as a junior and as silk – including Mabo v The State of Queensland (No 2) in the early 1990s. Can you share with us any observations or anecdotes, as counsel, in the conduct of the litigation?
Fraser
My education about our indigenous peoples was typical of students of my era. What little I was taught at school and in an introductory history subject at university was either horribly wrong or misleadingly simplistic at best. I was briefed to prepare a draft of the defendant’s written submissions and appear in the High Court as one of the Solicitor General’s (Geoff Davies’) juniors. Before I was briefed, I knew nothing about native title. I recall spending about four weeks studying cases and academic writing about native title. All but a few of those cases were from overseas jurisdictions, including India, the United States, African countries, Ireland and (most influentially in the result) Canada. This was a fascinating history lesson. I won’t comment on the result, but (to quote something Ian Hanger said in unrelated litigation) Mabo No 2 was a good case to lose.
Douglas
Are there any other cases that stand out for you from your time at the Bar, and why?
Fraser
I remember all the cases I won.
Douglas
You worked with many senior counsel. Did any, in particular, have a seminal or lasting influence on your advocacy?
Fraser
I was given my first lesson in cross-examination – a very good lesson – by Margaret Wilson in my first smash and bash case, in a Magistrates Court early in 1981. It’s impracticable to mention all of the many other barristers who I think influenced my advocacy, but I certainly learnt a great deal from Geoff Davies, DF Jackson, and Paul de Jersey.
Douglas
When briefed as your junior, you told me that you liked being briefed in cases in which there was some difficult legal or factual problem to solve. Is that your general disposition as a lawyer?
Fraser
I’ve always enjoyed solving puzzles. The difficulty of some factual problems makes them interesting. Others are difficult only because the evidence is extensive; some of those cases can be tedious and all-consuming. Some barristers enjoy those long cases. I was not one of them. That is why I stopped accepting briefs in building and engineering trials near the end of the 1980s.
Douglas
As a silk, what did you consider the role and attributes of a good junior?
Fraser
The silk is often more experienced and must lead in any event, but otherwise a good junior will have the same attributes as a good silk. At the top of a long list, I would emphasise wholehearted dedication to the task, an independent mind, and the capacity to meet deadlines.
Douglas
Your appointment to the Court of Appeal in 2008 was lauded by the profession. What, for you, was – or became – the attraction of sitting in the appellate jurisdiction?
Fraser
By then my practice had become largely appellate. Appeals seemed to suit me better than trials. Most importantly, I knew that I could happily work with each of the judges of appeal at that time.
Douglas
As a commercial lawyer, did you find criminal appeals initially challenging?
Fraser
Yes. I enjoyed the challenge of working in jurisdictions in which I had not practised much. The general nature of the hearing and the judicial method does not change according to the jurisdiction, but obviously it is necessary to get up to speed with the applicable law. There are also potential traps in some of the shorthand used in the criminal jurisdiction. To mention just one of many examples in one matter, I initially might have thought that counsels’ puzzling references to a “black direction” suggested a particularly unhappy turn of events at the trial. The fact that very helpful outlines of argument are nearly always lodged well before hearings in the Court of Appeal is a distinct advantage for a new judge of appeal.
Douglas
Did you find the writing of appellate judgments a contrast to advisory work as counsel?
Fraser
There are substantial similarities between a barrister’s advisory work and judgment writing. The differences are more acute for a trial judge than for a judge of appeal. The most obvious difference in both cases is that, whereas counsel expresses an opinion about the likelihood of a favourable decision, the judge must make the decision. That is a heavy responsibility. Another difference is that a judge’s duty to explain the result sometimes requires more analysis, such as an explanation of why the losing party’s reasonably arguable points were rejected.
Douglas
Did it sit in the front, back, or nowhere in your mind that an appellate decision which you had written, or were party to, may be overturned by the High Court?
Fraser
I was always aware of the prospect of High Court challenges. Being upheld is nicer than being overturned, no matter how often we tell ourselves that appeals (except from the High Court) are inherent in our hierarchy of courts. In some cases I correctly predicted that special leave would be granted. On the other hand, in a couple of cases the High Court overturned a decision I wrote when it had not occurred to me that the case might even attract special leave, much less a successful appeal. There were other cases where I thought that the High Court might take a different view, but special leave was refused or there was no application.
Douglas
Are there aspects of court advocacy in Queensland, which you observed over your time as a judge, which bear improvement?
Fraser
Most professional advocacy in the Court of Appeal was done well, but I would commend the ABA’s advanced appellate advocacy course for anyone who aspires to excellence in appellate advocacy. Otherwise, I will make only one point; be succinct.
Douglas
You observed in your retirement valedictory speech – as I interpreted your expressed sentiment – that you planned to go home and abide your wife Margie’s domestic instructions rather than embark upon a post-judicial legal career. Has that, largely, gone to plan?
Fraser
My memory of what I said, quoting Peter Dutney, was that I plan to go home and be a slug on the allotment. That has gone to plan.
Douglas
Do you miss any aspect – and if so what – of daily life as a practising lawyer, whether as barrister or judge?
Fraser
In each occupation much of the work was interesting and challenging. I miss the daily interactions with high achieving and ethical colleagues in the same occupation. But I do not miss the ridiculous hours.
Douglas
What are your recreational interests?
Fraser
My current occupation may best be described as part time babysitter and odd job man. My wife and I also travel quite a bit. We bought a small campervan, which we have so far used only for short camping trips, but we plan some larger adventures around the country. Otherwise, I dip into a smorgasbord of hobbies, including skiing, hiking, cycling, surfing, and surf fishing. Another joy of retirement is the day time nap.
Douglas
What are your views on the incursion of Artificial Intelligence into advocacy?
Fraser
I don’t know much about AI, but my impression is that if advocates carefully apply their own intelligence to the use and product of the artificial variety, AI should introduce some efficiencies without reducing the quality of advocacy. In the hands of some categories of advocates who are incapable of achieving the essential quality control of AI– most obviously, querulous self-representing litigants – it seems unlikely that the use of AI will offer any real benefit. Worse, it may increase the length of already unduly lengthy arguments in cases of that kind.
Douglas
Do you envisage the role of the Bar will change over time, and if so how?
Fraser
Do you have any easy questions?
Douglas
What is your core career advice to barristers very newly engaged in, or about to enter, practice as counsel?
Fraser
Carefully select your chambers and enjoy your work.
Douglas
Thanks for your contribution to the law, and for speaking with Hearsay.
Fraser
It is a pleasure.
A link to the transcript of the Valedictory Ceremony for Mr Fraser on 15 July 2022 is here.
When sworn in as Chief Justice of Australia on 21 April 1952, Sir Owen Dixon, OM, GCMG, PC – in reply to welcome of him from bench, bar and solicitors – said:
It is only too true that I came to the Bar a long time ago and I came to the Bench a long time ago. I have spent a little under 19 years at the Bar and I have spent a little over 23 years on the Bench …
The activities of the Bar are greater than those on the Bench and the responsibilities are no less. The Bar has traditionally been, over the centuries, one of the four original learned professions. It occupied that position in tradition because it formed part of the use and service of the Crown in the administration of justice. But because it was the duty of the barrister to stand between the subject and the Crown, and between the rich and the poor, the powerful and the weak, it is necessary that, while the Bar occupies an essential part in the administration of justice, the barrister should be completely independent and work entirely as an individual, drawing on his own resources of learning, ability and intelligence, and owing allegiance to none.
The work of solicitors in the administration of justice has the greatest possible importance, but their allegiance is perhaps more to their clients who have a more permanent or at all events a longer relation with them than the transitory relations between client and counsel when the full enthusiasms and force of the advocate are attached to the individual for a short space of time.
I would like to say from long experience on the Bench and a not much shorter experience at the Bar there is no more important contribution to the doing of justice than the elucidation of the facts and the ascertainment of what a case is really about, which is done before it comes to counsel’s hands. Counsel, who brings his learning, ability, character and firmness of mind to the conduct of causes and maintains the very high traditions of honour and independence of English advocacy, in my opinion makes a greater contribution to justice than the judge himself.
…
The courts and the legal profession stand as the necessary foundation of any community. Indeed it may be said that the courts and the system of law are both the foundation and the steel framework, but neither a foundation nor a steel framework is ever able to do more than support a structure with stability and at rest.
Lawyers are often criticised because their work is not constructive. It is not their business to contribute to the constructive activities of the community, but to keep the foundations and framework steady. Those who believe in a planned society should perceive that the rule of law administered by the courts offers a reconciliation of ordered liberty with planned control …
The full speech of Sir Owen Dixon may be found in the Preface Memoranda of (1952) 85 CLR pgs XI to XVI.
Ralph Wilson (b.1955, Brisbane) is a Brisbane based artist well recognised for his practice that focuses on depicting the coastal landscape and waters of South-East Queensland and Northern New South Wales. Wilson’s practice begins with careful observation, often from the water, watching the way weather, tide and light can alter the landscape at the edge of the sea. His intimate understanding of the water has been formed over years of daily sculls on the Brisbane River, countless hours spent on the waterways of Moreton Bay and regularly frequenting North Stradbroke Island.
In the studio Wilson’s paintings come to life aided by reference photos and drawings. Employing classical painting techniques with layered oil paint, he illustrates the beauty of the natural world in rich hues. Wilson’s astute depiction of water is matched by a panache for rendering vast and often dramatic skies.
Like many of his peers, Wilson originally studied architecture, studying at the University of Queensland in the early 1970s before interrupting his studies to follow the course of his natural inclination, painting. Informed by his interest in architecture and design, Wilson initially painted urban scenes and historical Australian buildings as well as still life, before later focussing on his coastal landscapes. In 1983 the artist received the Camberwell Rotary Travelling Scholarship, allowing him the opportunity to travel and work abroad. Wilson made his way to London, Paris, and finally New York, all the while visiting art museums and galleries along the way, deepening his knowledge and understanding of the history of painting. This experience was later augmented by further travels in the mid-1980s and 1990 to Italy where Wilson painted street scenes and Venetian gondolas on canals.
In an exhibiting career spanning over forty years Wilson has held regular solo exhibitions around Australia since the mid-1970s. Wilson’s work is represented in a range of collections including Artbank, Sydney; Museum of Brisbane, Brisbane; QUT Art Museum, Brisbane; Suncorp, Brisbane; and The Brisbane Club, Brisbane.
Translucent 2024, Oil on board, 76cm x 121cmMangroves at Dusk 2024, Oil on board, 90cm x 90cmStradbroke Shore Canaipa 2015, Oil on board, 60cm x 60cm
The issue
Professional obligations are a fundamental part of practice at the Bar. Ethics are – as observed by Sir Gerard Brennan – ‘the hallmark of a profession, imposing obligations more exacting than any imposed by law and incapable of adequate enforcement by legal process’[1]. However, as Sir Gerard also observed, ethics are ‘not so much learnt as lived’ and are ‘not what a barrister knows he or she should do: ethics are what the barrister does’[2].
Barristers are, of course, acutely aware of the ‘exceptional privileges’ and the ‘exceptional obligations’ involved in the ‘high task of endeavouring to make successful the service of the law to the community’[3]. Much has been written and said on the topic[4].
This short article is not a further exposition of each of the ethical obligations and duties that apply to barristers or of the barristers’ conduct rules[5]. Rather, it is an attempt to demonstrate that not only are barristers, as members of a profession, expected to abide by the relevant ethical rules, but also that doing so is good advocacy. And good advocacy serves the interests of the administration of justice and, of course, of the barrister’s client.
Counsel’s ethical duties
To frame the brief discussion that follows, it is useful to recount Mason CJ’s description of counsel’s paramount duty to the court in Giannarelli v Wraith[6]:
The performance by counsel of his paramount duty to the court will require him to act in a variety of ways to the possible disadvantage of his client. Counsel must not mislead the court, cast unjustifiable aspersions on any party or witness or withhold documents and authorities which detract from his client’s case. And, if he notes an irregularity in the conduct of a criminal trial, he must take the point so that it can be remedied, instead of keeping the point up his sleeve and using it as a ground for appeal.
It is not that a barrister’s duty to the court creates such a conflict with his duty to his client that the dividing line between the two is unclear. The duty to the court is paramount and must be performed, even if the client gives instructions to the contrary. Rather it is that a barrister’s duty to the court epitomizes the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client’s success, but also to the speedy and efficient administration of justice. In selecting and limiting the number of witnesses to be called, in deciding what questions will be asked in cross-examination, what topics will be covered in address and what points of law will be raised, counsel exercises an independent judgment so that the time of the court is not taken up unnecessarily, notwithstanding that the client may wish to chase every rabbit down its burrow. The administration of justice in our adversarial system depends in very large measure on the faithful exercise by barristers of this independent judgment in the conduct and management of the case. In such an adversarial system the mode of presentation of each party’s case rests with counsel. The judge is in no position to rule in advance on what witnesses will be called, what evidence should be led, what questions should be asked in cross-examination. Decisions on matters such as these, which necessarily influence the course of a trial and its duration, are made by counsel, not by the judge. This is why our system of justice as administered by the courts has proceeded on the footing that, in general, the litigant will be represented by a lawyer who, not being a mere agent for the litigant, exercises an independent judgment in the interests of the court.
Despite being in a relationship of confidence with a lay client, the first duty of the barrister is not to the client but to the court in which the barrister appears. The duty to the instructing solicitor or the lay client is secondary. Where the respective duties conflict, the duty to the court is paramount. That duty to the court imposes obligations on the barrister with which the barrister must comply even though to do so is contrary to the interests or wishes of the client. Thus, the barrister can do nothing that would obstruct the administration of justice by:
deceiving the court;
withholding information or documents that are required to be disclosed or produced under the rules concerned with discovery, interrogatories and subpoenas;
abusing the process of the court by preparing or arguing unmeritorious applications;
wasting the court’s time by prolix or irrelevant arguments;
coaching clients or their witnesses as to the evidence they should give;
using dishonest or unfair means or tactics to hinder an opponent in the conduct of his or her case.
Moreover, the advocate owes a duty to the court to inform it of legal authorities that “bear one way or the other upon matters under debate”. The duty applies “quite irrespective of whether or not the particular authority assists the party which is so aware of it”.
The obligation of candour, as described by Sir Owen Dixon, is not merely an obligation but ‘in advocacy it is a weapon’[9].
Candour includes identifying the relevant legal principles, including the authorities that are against the case which counsel seeks to advance, and the relevant facts. Doing so concisely and accurately is more likely to demonstrate to the judge that counsel (a) has confidence in the probative value of the evidence, (b) is willing to face the challenges that may be presented by the evidence or the law and (c) can, despite those difficulties, provide the judge with a pathway through the evidence or the law to the result that counsel is seeking for their client. In other words, a solution that the judge can adopt and, at the same time, one that counsel advocated. In this way, identifying and dealing with the strengths of an opponent’s case is persuasive advocacy. Doing so upfront is desirable and may be more successful[10].
“…identifying and dealing with the strengths of an opponent’s case is persuasive advocacy.”
In the context of a trial, properly identifying the factual findings sought at the end of the trial supported by accurate and complete references to the evidence may sound like a basic proposition of trial advocacy (and one that accords with the ethical rules) but doing it well will serve the client’s interests. It is unlikely to be particularly persuasive for a judge to be simply given large extracts of evidence or summaries without identification of the findings that are sought and the precise evidence that supports them. Counsel should avoid imprecise or ambit submissions especially when they are so extreme that if accepted an appeal would inevitably succeed[11].
“Counsel should avoid imprecise or ambit submissions especially when they are so extreme that if accepted an appeal would inevitably succeed.”
If the sought-after findings and evidence are presented properly and with care, the judge will be able to identify precisely the pathway to the desired result and will have confidence that the facts and legal principles – both favourable and unfavourable – have been identified and considered. Of course, the judge may not accept counsel’s submissions as to the law or the evidence and counsel ought not abdicate their essential role of attempting to persuade the judge, but at least the judge will have the confidence of knowing that counsel has not left out anything critical. Additionally, an appeal court, with some well-known exceptions, is not likely to be particularly receptive to an appeal ground that relies upon an argument that was not put, or a finding that was not sought, at trial.
Thus, candour on the part of counsel as to the legal principles and the relevant facts is not only required by the ethical rules but results in better advocacy and is more likely to be rewarded.
Justice Bond recently observed[12] that advocacy is likely to be more effective if the proposition or submission advanced by counsel is framed as part of a ‘solution’ rather than part of a ‘problem’ for the judge. That approach is, in my view, supported by counsel adhering to their ethical duties.
“…advocacy is likely to be more effective if the proposition or submission advanced by counsel is framed as part of a ‘solution’ rather than part of a ‘problem’ for the judge.”
For example, in the context of modern case management principles, a fight about the adequacy of a pleading can be presented as either pedantic quibbling over form[13] or a necessary part of ensuring procedural fairness for the parties and a proper delineation of the boundaries of the dispute (and the necessary findings that the judge will be asked to make)[14]. The former is a problem with which a judge may be reluctant to deal while the latter presents as a solution which is much more likely to result in a favourable outcome for the party seeking relief.
It may be an obvious matter to observe, but in my view, proper preparation and the persuasive framing of the case (such as the example above concerning the pleadings fight) and disclosure of the law (consistently with the duty to the court) increases the chances that counsel’s submissions will be, and will be seen by the judge as, part of the solution rather than as an impediment or problem.
Duty to the client and independence
Counsel’s duty to their client is to promote and protect fearlessly the client’s interest to the best of the barrister’s skill and diligence[15]. Counsel is not to act as a mere mouthpiece of the client and is to exercise appropriate forensic judgments. Justice Ipp has observed[16]:
Whilst lawyers, in fulfilling their duties to their clients, are allowed, even expected, to be committed to their cause and to act zealously; nevertheless as officers of the court they must be rigorously dispassionate. Even in the most hostile litigation, lawyers must be scrupulously fair and not take unfair advantage of obvious mistakes by the other side.
Counsel’s independence means that it is for counsel to exercise their forensic judgment to[17]:
confine or limit a hearing to what the barrister believes are the real issues in the case;
present the case as succinctly as robust advancement of the client’s interests permit;
inform the court of persuasive authority against the client’s case.
It is the duty of counsel to assist the judge by simplification and concentration and not to advance a multitude of ingenious arguments in the hope that out of ten bad points the judge will be capable of fashioning a winner. [It is not right to] make every point conceivable and inconceivable without judgment or discrimination.
Doing those things will give the judge confidence that counsel (a) has properly thought through the issues in the case, (b) has distilled the points to those that counsel considers have the best prospect of success, and (c) can be trusted to have identified the correct legal principles to be applied.
There can be little doubt that a judge would prefer to hear an argument about the real points in issue rather than a complete excursus on all points regardless of whether they are good points or ones that are only barely arguable. Brevity, in accordance with counsel’s duties, is good advocacy[19].
A lawyer is often in a difficult position when a client wishes to pursue what he may regard as a hopeless case. If the lawyer is of the view that the client’s case is certainly hopeless, he would be obliged to advise the client of that conclusion and urge that the case not be brought. A lawyer who proceeds with a case in such circumstances in order to make costs for himself would be guilty of a breach of his duty. …
But if the lawyer could not come to the certain opinion that the case is hopeless, and informs the client of the risk involved, and advises the client most strongly not to proceed, and the client still insists on going on (without having any ulterior motive), the lawyer would commit no breach in taking those instructions. As Sir Thomas Bingham MR said in Ridehalgh v Horsefield [[1994] Ch 205 at 233-234]:
A legal representative is not to be held to acted improperly, unreasonably or negligently, simply because he acts for a party who pursues a claim or defence which is plainly doomed to fail…Legal representatives will, of course, whether barristers or solicitors, advise the clients of the perceived weakness of their case and of the risk of failure. But clients are free to reject advice and insist that cases be litigated. [It is rarely if ever safe for a court to assume that a hopeless case is being litigated on the advice of the lawyers involved…[and that it is] one thing for a legal representative to present, on instructions, a case which he regards as bound to fail; it is quite another to lend his assistance to proceedings which are an abuse of process of the court.]
In Queensland, the Court of Appeal has suggested a different view. Justice Davies has said that it is counsel’s duty to exercise his or her own independent judgment including as to whether there is any point that can be argued and ‘if the case [either as to fact or law] is plainly unarguable it is improper to argue it’[21]. As Justice Fraser has noted extra-judicially[22], the issue is not without controversy. The Full Federal Court in Dyczynski v Gibson[23], after referring to the above statement by Justice Davies in Steindl Nominees, said[24]:
“…if the case [either as to fact or law] is plainly unarguable it is improper to argue it”
But, it is important to understand what is meant by that obligation. Where the merits of the client’s position depend upon the credibility of witnesses or an arguable point of law, it is not for the lawyer to judge the merits: Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300; [2005] NSWCA 153 at [92(c)] (McColl JA, with whom Hodgson and Ipp JJA agreed)[25]. For that reason, a client who is advised about problems with the merits of the case is free to reject that advice and insist that the case be litigated: Ridehalgh v Horsefield [1994] Ch 205 at 234; [1994] 3 All ER 848. The client can persist in asking the lawyer to perform the retainer by conducting the claim or defence. However, that right has its limits. It does not extend to allowing a client to instruct a lawyer to present an unarguable affirmative case or to provide instructions that constrain the exercise of the independent forensic judgment that all lawyers must bring to the conduct of a case.
“But, it is important to understand what is meant by that obligation. Where the merits of the client’s position depend upon the credibility of witnesses or an arguable point of law, it is not for the lawyer to judge the merits”
As Justice Fraser has rhetorically asked, if counsel is obliged[26] to seek to ensure that the case is confined to identified ‘issues which are genuinely in dispute’, how can an issue be ‘genuinely’ in dispute if counsel has formed the view that it is unarguable? As Justice Ipp has pointed out (emphasis added)[27]:
This does not mean that counsel must determine which points are likely to succeed and refrain from presenting or arguing any others (although that might be excellent advocacy); on the other hand, it does mean that counsel must determine which points are reasonably arguable, and must jettison the rest.
In exercising independent forensic judgment so as to confine issues, selecting and limiting the number of witnesses to be called and deciding what questions will be asked in cross-examination, topics will be covered in address and points of law will be raised[28], counsel is not only complying with their ethical duties but is maximising the chances that the case as presented will be accepted by the judge. As Justice Ipp said, doing so can be excellent advocacy.
On a more prosaic level, exercising that judgment to limit the documents that are put before the court – whether in trial bundles or in interlocutory application bundles, to appropriately limit the objections to evidence that require judicial resolution (including during oral evidence[29]) and to limit (or modify) the evidence[30] including for example, where the fact to which it is relevant is not seriously in dispute[31] – is also a means by which counsel not only complies with their ethical obligations but is also likely to improve the persuasiveness of their advocacy.
Justice Kenneth Martin observed that it is appropriately within the duties of counsel – and I would add, good advocacy – for a barrister to robustly ‘flex their muscles’ as ‘true quality controllers in relation to the issues, documents and evidence brought before the court’ while remaining appropriately cognisant of a litigant’s interests[32].
Conclusion
Judges are aiming to achieve a result which is just according to law. But it is not for the advocates to leave it to the judges to do so. As Justice Heydon has pointed out, justice depends on the interplay between bench and bar. Barristers are there as a ‘helper in the administration of justice’[33]. Complying with their duties to the court and the administration of justice – particularly where to do so coincides with persuasive presentation of the case – advances that purpose.
[1] Quoted in Thomas and Manson, Professional Responsibility and Legal Ethics in Queensland, (3rd edition, Thomson Reuters, 2024) at [12.05]
[3]Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279, 298 (Kitto J)
[4] See, for example, the seminal article by Justice David Ipp, Lawyers’ Duties to the Court (1998) 114 LQR 63, Justice Heydon’s article Reciprocal duties of Bench and Bar (2007) 81 ALJ 23, Justice Kenneth Martin’s article Between the devil and the deep blue sea: Conflict between the duty to the client and duty to the court (2011) 35 Australian Bar Review 252 and Justice Hugh Fraser’s speech The Ethics of the Advocate delivered on 17 February 2012 at the Queensland Bar Practice Course Final Address
[9] Quoted by DJS Jackson KC in Evidence, Practice and Procedure: Persuasion, Hearsay Issue 28: June 2008 (from Jesting Pilate, Law Book Co, 1965, p253-354)
[11] Heydon, Reciprocal duties of Bench and Bar (2007) 81 ALJ 23 at 30
[12]‘Sam and Ralph’ – The Role and Practice of Counsel in the System of Justice, Hearsay Issue 98: December 2024 (speech given at the Closing Address to the Queensland Bar Practice Course, October 2024)
[13] See e.g. Pigozzo v Mineral Resources Limited [2022] FCA 1166 at [19]-[24] (Feutrill J)
[14]Forrest v ASIC (2012) 247 CLR 486 at [25] (French CJ, Gummow, Hayne and Kiefel JJ)
[18]Ashmore v Corporation of Lloyd’s [1992] 2 All ER 486 at 493; cited in Heydon, Reciprocal duties of Bench and Bar (2007) 81 ALJ 23 at 30
[19] DJS Jackson KC in Evidence, Practice and Procedure: Persuasion, Hearsay Issue 28: June 2008 recounting a speech by one of the English Law Lords, likely Lord Diplock, as told by two Supreme Court judges
[20] Ipp, Lawyers’ Duties to the Court (1998) 114 LQR 63 at 86 (citations omitted) (part of the quote in brackets added in]
[21]Steindl Nominees Pty Ltd v Laghaifar [2003] 2 Qd R 683 at [27] (Davies JA) (Williams JA agreed with Davies JA and Philippides J agreed with both Davies and Williams JJA)
[22]The Ethics of the Advocate – speech delivered on 17 February 2012 at the Queensland Bar Practice Course Final Address, [43]-[54]
[23] (2020) 280 FCR 583; [2020] FCAFC 120 (Murphy, Lee and Colvin JJ)
[25] See also the views of Lord Denning expressed in Tombling v Universal Bulb Co Ltd [1961] 2 TLR 289 at 297 quoted in Ipp, Lawyers’ Duties to the Court (1998) 114 LQR 63 at 98-99
[27] Ipp, Lawyers’ Duties to the Court (1998) 114 LQR 63 at 100
[28]Giannarelli v Wraith (1988) 165 CLR 543, 556-7 (Mason CJ)
[29] Heydon, Reciprocal duties of Bench and Bar (2007) 81 ALJ 23 at 27-28
[30]Rondel v Worsley [1969] 1 AC 191, 283 (Lord Upjohn)
[31] For example, by utilising s 129A of the Evidence Act 1977 (Qld)
[32] Kenneth Martin, Between the devil and the deep blue sea: Conflict between the duty to the client and duty to the court (2011) 35 Australian Bar Review 252 at 269; see also Heydon, Reciprocal duties of Bench and Bar (2007) 81 ALJ 23 at 28-29
[33]Beevis v Dawson [1957] 1 QB 195 at 201 (Singleton LJ with whom Parker LJ concurred), cited in Heydon, Reciprocal duties of Bench and Bar (2007) 81 ALJ 23 at 25
Written version of a presentation delivered at the Bar Association of Queensland Annual Conference at the W Hotel, Brisbane, on 1 March 2025 by the Honourable Justice Declan Kelly.
Good afternoon and thank you to the Bar Association for the invitation to speak.
The age of artificial intelligence and blockchain
Lord Hodge said in 2022 that “[t]he potential of digital assets, enhanced computing power and artificial intelligence to change our economy and society poses a challenge to all countries’ legal systems”.[2] The challenge identified by Lord Hodge encompasses a challenge to what we loosely call the Rule of Law.
The “Rule of Law” is sometimes used as a slogan or as a label. It is an expression often bandied around but not always clearly understood. In 2011, Lord Bingham published a book, “The Rule of Law”,[3] which identified the concept of the Rule of Law by reference to eight salient features.
This afternoon I wish to draw upon five of those features, which particularly resonate in the field of commercial law.[4]
Firstly, the law must be accessible, intelligible, clear and predictable.
Secondly, questions of legal rights and liability should ordinarily be resolved by the exercise of the law rather than by discretion.
Thirdly, the law should apply equally to all.
Fourthly, the State must provide a way of resolving disputes which the parties cannot themselves resolve.
Fifthly, adjudicative procedures provided by the State should be fair.
It is really the first, fourth and fifth criteria that are most relevant to my presentation.
The central premise of Lord Bingham’s work is that “all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made … and publicly administered in the courts”.[5]
An effective system of adjudication by the courts
In February 2022, during a speech given at Pembroke College, Oxford, the Lord Chief Justice, Lord Burnett of Maldon added one elucidation to Lord Bingham’s criteria, which was:
“The Rule of Law depends upon an independent judiciary with individual independence in their decision making and institutional independence … to ensure an effective system of adjudication and to ensure that the powerful … have no advantage in the courts”.[6]
One matter I want to particularly emphasise is that the Rule of Law contemplates an independent judiciary making decisions in an effective system of adjudication. I would like to suggest one further elucidation to Lord Bingham’s list. Just as the Rule of Law depends upon an independent judiciary, it also depends upon a thriving, independent bar. A thriving independent bar is one comprised of individuals with specialist skills who are renowned for their independence and ethics. To describe the bar as independent, specialist and ethical is a description which is reflective of the bar’s heritage. The barristers who practised during the 20th century and established the standing and reputation of the Queensland Bar, were resolutely independent. They were not marketers or networkers. Their ethics precluded them from engaging in such practices. They were briefed solely on the basis of reputations, established and earned through their professional conduct. The late DF Jackson AM KC often remarked that the bar is a “meritocracy”, an association of persons whose reputations are assessed on merit. Hopefully any young commercial lawyer who comes to the bar today, does so because of a wish to practice independently, ethically and to develop specialist skills.
“Just as the Rule of Law depends upon an independent judiciary, it also depends upon a thriving, independent bar. A thriving independent bar is one comprised of individuals with specialist skills who are renowned for their independence and ethics.”
Before I sit down today, I hope to shed some light on why, in the context of modern commercial litigation, an independent bar, meeting the description of a meritocracy, is likely to be more, not less, important to the maintenance of the Rule of Law in the future. We may proceed on the premise that an effective system of adjudication in the commercial law context is one that broadly mirrors the objects of r 5 of our Uniform Civil Procedure Rules.[7] A system involving the just and expeditious resolution of real issues and avoiding undue delay, expense and technicality. Effective adjudication involves expedition and an absence of undue delay. That of course extends, not just to the interlocutory steps, but to the trial and ultimately to getting the decision out; delivering the judgment.
The expeditious delivery of the judgment is the ultimate responsibility of the judge. I want to clearly acknowledge that reality. The responsibility of delivering a timely judgment is very significant and the burden of that responsibility tends to weigh heavily on judges. What I find is that you tend as a judge to approach judgment writing in the order in which you hear cases. Some cases which are well argued, are able to be decided quickly. Every now and then, you hear a case that has not been well prepared or argued and the judgment for that type of case inevitably takes much longer to write. It is at this point when there is a palpable effect on the administration of justice because the judge takes longer to write that judgment and the delay in writing that judgment affects the timing of the judge’s decision in other cases that have been heard, well argued and which are deserving of a timely decision. So, as barristers, you need to be aware that a badly prepared and run case can have consequences for the administration of justice beyond that case.
The timely delivery of court judgments is likely to assume particular importance in the modern age of technology and artificial intelligence. In the future, if the court process from filing to judgment takes too long, there is a real risk that commercial litigants will look beyond the courts to resolve their commercial disputes by alternative methods. The alternatives may not necessarily involve commercial arbitration or mediation but involve the use of artificial intelligence and involve parties being prepared to accept “near enough is good enough”, but timely, resolutions and outcomes. It will not necessarily be a good thing for the Rule of Law, or the bar, if prospective litigants come to prefer “near enough is good enough” outcomes dictated by applications of artificial intelligence.
We live in a streaming society in which people demand and expect instant results and answers. Our society is no longer prepared to wait for a cheque to clear or for a parcel to be delivered outside of 24 hours. Entire TV series are binged watched in a day. We might hazard to guess that some people in the room today, as I am speaking, might be watching on their phones a TV series or a horse race. Frankly, I don’t blame them. But the point is that, given our new norms of social behaviour, the future titans of commercial industry are unlikely to be prepared to wait very long for the delivery of a court decision in a commercial dispute.
The culture of instant gratification is emerging in a social environment in which, I think it is fair to say, there exists the constant spectre of diminishing respect for the institution of the courts. An indicium of that diminishing respect is the way in which some civil litigants treat court directions and orders. One thing that struck me when I became a judge is how common it is for commercial litigants to not comply with court directions without any explanation or forewarning to the court. That approach to civil litigation is hard to fathom when you think that, apart from the directions being a court order, the obtuse non-compliance occurs in the context of procedural rules which contain a specific rule, r 5(4), which provides that the court may impose appropriate sanctions if a party does not comply with a court order or direction. Listed companies rightly treat reporting obligations and takeover bids as required all-hands-on deck, 24/7 imperatives. It is not usual to encounter commercial litigants who treat the preparation of a commercial court proceeding with similar devotion. We should strive to return to a situation where if you are litigating on the Commercial List there is an unwavering expectation that the parties will give high priority to the preparation and conduct of the case.
In the context of the increasing challenges to achieve the expeditious resolution of the real issues at a minimum of expense, there are vitally important roles for the independent, ethical barrister to perform to assist or aid the judge’s endeavour to produce a timely judgment; that is, to actively assist in an outcome which reflects effective adjudication within the court system. Although our young people are often today confronted with messages of doom and gloom, I believe that in this period of immense uncertainty associated with the future use and development of technology and artificial intelligence, commercial barristers who are specialist, independent and ethical, have a bright future in which they are likely to continue to occupy a unique position in the profession, enjoying the particular trust and confidence of the court.
“…I believe that in this period of immense uncertainty associated with the future use and development of technology and artificial intelligence, commercial barristers who are specialist, independent and ethical, have a bright future in which they are likely to continue to occupy a unique position in the profession, enjoying the particular trust and confidence of the court.”
Lord Mansfield’s response to the Industrial Revolution
Some of my ancestors were Luddites, Irish convicts who were sent to Australia for reacting to the Industrial Revolution by physically destroying machines. By definition, a Luddite is “someone who is opposed to new technology or ways of working”. A Luddite has become a euphemistic expression to refer to “a small minded person who resists progress”. It is somewhat ironic that the Bar Association has asked me, a descendant of a Luddite, to come along this afternoon and place a positive spin on technological change. Further, in speaking to you today, I am very conscious of my Irish ancestry and of Yeats’ observation that the Irish have an abiding sense of tragedy which sustains them through temporary periods of joy. But I promise for the next few minutes to embrace the glass is half full approach and to convey a message which I believe is fundamentally optimistic.
One person who could never be described as a Luddite, is the father of English commercial law, Lord Mansfield.
Lord Mansfield had a very different kind of reaction to the great changes that lead to, and were caused by, the Industrial Revolution. Lord Mansfield is widely regarded as having shaped the English common law to enable it to serve and further the objects of the Industrial Revolution. The changes effected by Lord Mansfield involved reworking categories of the legal system to accommodate new economic conditions and new transactions. Most notably, what the English judges incorporated into the existing common law was commercial practice and by doing so they composed the commercial law. Lord Mansfield famously tried cases with a special jury comprised of experienced merchants from whom he developed a clear understanding of prevailing commercial practice. He used those juries to ascertain mercantile practices which could be, and were, brought into the common law. He dined with experienced merchants to ascertain their requirements for and expectations of a commercial court.
The development of the commercial law against the background of the Industrial Revolution occurred in a context where the major business players longed for and desired outcomes which we now equate with the Rule of Law. One matter which Lord Mansfield identified was that the business community at the time of the Industrial Revolution wished to conduct their affairs confidently by reference to settled principles. That is, and this is an important point, the industrialists at the time of the Industrial Revolution wanted to operate and conduct their business within the Rule of Law. They wanted efficient, certain justice from the courts.
As a result of his collaboration with the business community, Lord Mansfield was able to construct a certain and settled system of principles and rules upon which merchants, lawyers and judges could rely in administering the commercial law. In 1774 in Vallejo v Wheeler,[8] Lord Mansfield famously said:
“In all mercantile transactions the great object should be certainty: and therefore, it is of more consequence that a rule should be certain, than whether the rule is established one way or the other. Because speculators in trade then know what ground to go upon.”
Far beyond the 18th century, the great commercial judges have always recognised a need to ensure that the commercial law serves the needs of the commercial community. When his Honour ran the Commercial List in the Supreme Court of New South Wales in the 1980s, the Honourable Andrew Rogers AO KC would invite leaders of the Sydney business community to court to observe him hearing the applications in the Commercial List. That was apparently in an effort to engender confidence in the business community in the daily work of the commercial court.
As a profession, we need to be conscious of the expectations of the business community we are serving. In 1984 in an article called “Commercial Contracts and the Commercial Court”,[9] Lord Goff famously wrote “[Judges] are there to give effect to [the businessman’s] transactions, not to frustrate them: we are there to oil the wheels of commerce, not to put a spanner in the works, or even grit in the oil”.[10]
In 1895 in the United Kingdom, the commercial courts were established primarily in response to the business community’s call for a specialised system of tribunals for commercial cases. Merchants at the time were dismayed by unnecessary delays, technicalities, and the cost of litigation in the Queen’s Bench Division. The business community sought to be relieved from technical rules and procedure and demanded speed and adjudication. At this time, commercial tribunals already existed in civil law jurisdictions in Europe.
The economic value of the Rule of Law
Today the Commercial Court along with the Chancery Division, the Admiralty Court and Technology and Construction Court exist in a single building in London, the Rolls Building, which the English proudly boast is “the largest specialist centre for the resolution of financial, business and property litigation anywhere in the world”.[11]
London also has a Financial List which began operating in October 2015, which is a list of financial market matters which involve more than 50 million pounds or equivalent, require particular expertise of financial markets, and raise issues of general importance to the financial markets.[12]
The English are acutely aware of the value to the United Kingdom of the Rule of Law from a financial perspective. A number of judges in the United Kingdom have written recent papers emphasising the hidden financial value of the Rule of Law to the English economy. The articles refer to the English commercial law as “the gold standard” and as being a “hidden treasure of the economy”. Some statistics are worth noting in passing. In 2019, the total revenue to the United Kingdom from legal activities was 36.8 billion pounds, 365,000 people were employed across the United Kingdom in the legal profession, the English legal system secured 7% of global legal services fee revenue (that is 7% of $713 billion USD in revenue), and in Europe the United Kingdom accounted for one third of all Western European legal services fee revenue.[13] In a report prepared by TheCityUK, “Legal Excellence, Internationally Renowned UK Legal Services 2021”,[14] more than 2,100 members of the Bar of England and Wales are said to now receive instructions from abroad, earning more than $360 million pounds from those international instructions. The United Kingdom Bar Council figures show that the number of barristers who act for clients located abroad has more than doubled over the past decade.[15]
In 2021, 74% of the cases in the English Commercial Court were international in nature.[16] A report of that year prepared by Oxera on the economic value of English law expressed the conclusion that English law was an underappreciated national asset that underpinned significant economic activity in the United Kingdom.[17] The Rule of Law was noted to be an important reason why the United Kingdom was an attractive place to do international business. We can all remember that in the pre-Brexit era, Russian Oligarchs consistently chose the London commercial courts as their preferred forum in which to determine their business disputes. They were attracted by the adversarial system, the excellence of the advocacy, the application of settled principle and the prospect of an independent, timely, well reasoned decision.
There are some important themes that can be drawn from the English commentaries.
Firstly, the English fairly acknowledge that the unique position of English law in international commerce is in part the result of what may be described as the “first mover advantage” which is the result of the way in which the commercial law developed in England and especially in London.
Secondly, one legitimate way of measuring the strength of the Rule of Law in a community or jurisdiction is to consider the extent to which businesspeople wish to transact and conduct commercial litigation within your jurisdiction.
Thirdly, there is a genuine public interest in a thriving commercial law profession; the English judges rightly adopt the premise that the judges and the lawyers must perform their work in such a way as to attract commercial work to the jurisdiction.
Fourthly, we must be conscious that jurisdictions now unashamedly compete to attract commercial work; the English continually recognise the “threat” posed by the developing centres for commercial arbitration in Singapore and more recently in Malaysia.
The case for growth in commercial law in Queensland
After having spent far too long lauding the English, I now want to turn to the optimistic part of my presentation and focus on Australia but more particularly, our State of Queensland.
Why should we be confident that Queensland has a bright future as a centre of commerce and industry and as a place to effectively resolve commercial disputes consistent with the Rule of Law?
There is a lower risk of doing business in Australia than in the United States and the United Kingdom, and a significantly lower risk of doing business in Australia than in just about all of our Asian/Pacific neighbours, Singapore being a notable exception.[19]
Australia is the 12th biggest economy in the world and Queensland, on its own, has a gross domestic product comparable to Hong Kong and larger than New Zealand and some European nations.[21]
South East Queensland is the fastest growth region for tech jobs in Australia. The State’s AgTech market is projected to triple to $45.4 billion by 2026.[23] In 2021 to 2022, Queensland’s computer and technology services exports increased by 68% and our capital is now regarded as a rapidly growing tech sector.[24]
In 7 years’ time, we will be hosting the Olympics and Paralympic Games. We are on the cusp of becoming an Olympic city and our city will soon transform before our eyes. We can expect the next 7 years to be a period of not just infrastructure projects but intense commercial activity. International businesses, including consulting businesses, will establish offices in Brisbane in the years leading up to the Games. Through innovation and technology, the major professional sports are likely to become even more profitable than they currently are. We have seen in the last 12 to 18 months that the investment model for professional sports in the United States has changed rapidly with investment banks and technology companies, for the first-time becoming stakeholders in major sporting franchises. The business of sport is a growing global economic phenomenon. You can expect by the time of the Olympics, Queensland will be a world leader in the high-performance sports tech sector and that the value of that industry will be very significant.
Six industries have been identified as having the most potential to drive Queensland’s future economy:[26]
Renewable energy manufacturing and infrastructure development.
Critical minerals processing and manufacturing.
Battery industry development.
Green hydrogen production.
Resource recovery and recycling.
Bioeconomic, including sustainable aviation fuel.
I would add to this list. Space technology and Defence industries, including the opportunities presented by AUKUS. A company based on the Gold Coast and in Bowen, Gilmore Space, has recently confirmed that its first orbital rocket, Eris, is set for launch on March 15 of this year. That is, in two weeks’ time. This launch will be Australia’s first domestically designed and built rocket attempting to reach orbit. Gilmore Space has engineered not just the rocket technology but the Bowen Orbital Spaceport. The main investors in the company and the multimillion-dollar investment associated with the business and infrastructure include QIC and some major superannuation funds. Black Sky Aerospace is another local company that is designing and building rockets for use by the Australian Defence Force. In December 2022, that company successfully fired an Australian first training rocket for use by the Australian Defence Force.
I mention these two companies only to indicate that within our region there are major developing commercial undertakings involving cutting edge technology, which businesses are likely to significantly expand in the future rather than contract.
Finally, it is important to have some appreciation of the background of modern-day Queenslanders and the modern community the Queensland Bar serves. For the Rule of Law to thrive in Queensland, every member of our multi-cultural population must feel confident that they can be assured of a fair and impartial hearing and that their interests can be adequately and competently represented by our Bar. Prospective international litigants need to feel the same sense of assuredness in order to prefer or choose Queensland as a jurisdiction in which to litigate. We should not behave or conduct our work in a parochial or Queensland-centric way. We need to aspire to have a bar, the membership of which is truly reflective of our diverse multi-cultural society. That’s not a woke aspiration but a very pragmatic aspiration. A genuinely diverse and multicultural commercial bar is necessarily going to engender more confidence throughout our community and internationally.
“A genuinely diverse and multicultural commercial bar is necessarily going to engender more confidence throughout our community and internationally.”
Hopefully from that brief overview it is apparent that Queensland is likely to grow and change dramatically in the foreseeable future and one of the features of that growth will involve significant commercial and business activity in emerging technical industries. Having provided that brief overview of where we are at and who we are, I would now like to briefly look at the past and outline some features of historical commercial litigation in Queensland.
A brief history of commercial litigation in Queensland
Queensland had a Commercial Causes Act in 1910.
Figure 6
Figure 7
Figure 8
…
We should not pretend that concepts of expedition, minimum expenditure and flexibility are creations of the UPCR. At the turn of the 20th century, judges of the Supreme Court were empowered in respect of commercial disputes to give directions which in the judges’ opinion were expedient for the quick and inexpensive determination of the questions in the action. You will see the expression and the inquiry as to what was “really at issue between the parties”. This Act was passed at a time when the material fact model of pleading was strictly enforced. Today, we regularly encounter lengthy narrative style pleadings, sometimes occupying hundreds of paragraphs. Yet even though back in this time the courts were only dealing with concise, material fact model pleadings, the legislature still recognised that a judge should be able to dispense with the pleadings entirely. The judge in the Commercial Causes List could settle the issues for trial.
At the turn of the last century there was also a power within the Commercial Causes Act which concerned the situation where there was a commercial dispute as to the construction of a commercial document or the application of a document to any facts. In such a case any party to the dispute was empowered to apply to a judge in chambers for the determination of the questions involved in the dispute “notwithstanding that no commercial cause has been commenced”. That kind of application was returnable on two days’ notice and was required to be supported by an affidavit. In the context of such a dispute and application, where it became necessary for the determination of the dispute to decide question of fact, the judge was empowered to decide the question “forthwith”.
Those provisions reflect a consciousness of the need to decide commercial questions expeditiously and by reference to flexible procedures.
The Commercial Causes Act of 1910 was a very succinct and well drafted piece of legislation. The Commercial Causes jurisdiction fell into decline around the time of the Great Depression and took some time thereafter to revive.
The jurisdiction was revived under the stewardship of the Honourable Mr Justice Connolly. One notable piece of commercial litigation in the Connolly era is Gould v Vaggelas.[28] That litigation was described in the High Court as a “complex dispute involving many parties and many allegations”.[29]
By way of synopsis, a husband and wife had been induced by misrepresentation to purchase on behalf of a company yet to be formed and controlled by them, a tourist resort on terms which included the transfer to the vendors of valuable property and a mortgage back to the vendors to secure the balance of the price. The company was formed and the purchase was completed. After nearly two years of unprofitable trading the company defaulted. The vendors exercised their power of sale as mortgagees to recover the deficiency and sued the husband and wife as guarantors. Having suspected fraud, the husband and wife counterclaimed for damages for deceit. The company was wound up, the liquidator had no funds with which to take proceedings against the vendors in the Supreme Court. The husband and wife recovered damages on their counterclaim which were reduced by the Full Court on appeal. The appeal to the High Court was successful. The litigation involved important principles as to the measure of damages for deceit and whether the principals of a company yet to be formed who became its sole shareholders on formation and suffered a loss distinct from losses suffered by the company might sue independently to recover those damages.
On the first day of the trial, apparently without notice, the plaintiff made a concession which meant that there was nothing left of the claim and only the counterclaim remained in issue. There was no adjournment. Counsel for the counterclaiming defendant was immediately called upon to open and conduct the case for the defendant.
The trial was then conducted before the Honourable Mr Justice Connolly over 35 straight days. The addresses concluded on a Thursday. The judge delivered his judgment on the following Tuesday.
I have had the benefit of looking at a physical copy of the trial judgment. It is some 68 typed pages, the product of an old school manual typewriter. The language of the judgment exudes clarity and assuredness. The judgment explains the real issues, resolves the evidence and applies the law in clear and succinct language.
Some matters are worth noting.
First, where settled principle applied, the judgment stated the principle citing the leading Australian or English authority with the page number at which the distilled principle appears. The judgment contained limited extracts or quotes from case law and where such quotes appeared, they tended to be only where the principle was genuinely controversial.
Secondly, the litigation was not what we would today regard as a large documents case. Most of the documents which went into evidence were obtained from third party accountants and comprised handwritten notes. The trial occurred in an age when there were no emails and little use of faxes. A junior barrister in the litigation had been briefed to draw interrogatories directed towards the accountants’ handwritten notes. The answers to the interrogatories assumed some importance in the trial. Depending upon who you ask today, that is, who you ask among the then junior counsel briefed at the trial, the interrogatories were either “adequate”, “possibly well drawn” or “a work of art which proved decisive in the litigation”. What I draw from that particular aspect is that a professional task involving the unique skill set expected of a commercial barrister, in fact entrusted to and undertaken by a junior barrister working on his own, was important work in the conduct of a major piece of commercial litigation.
Thirdly, there were silks at the trial who were among the most eminent and well-respected barristers, not just in Queensland but in Australia. No one I have spoken to recalls there having been any written submissions at the trial. What I have been reminded of is that silks like the late Honourable Bill Pincus QC and the late Honourable DF Jackson AM KC were famous for having the courage to address the court on the basis that “the real issue in the case is this” or “the three important issues are these”. One thing I can safely say is that, having some understanding of the quality and character of the silks in that litigation, none of the submissions in the trial in Gould v Vaggelas would have been vetted by, or run past, instructing solicitors for feedback or contributions, let alone for confirmation or acceptance by the client. The case involved brilliant, fiercely independent barristers practising at a time when it was unethical to send out a business card. They were briefed because they were renowned for their special skills, ethics and independence.
We should look at Gould v Vaggelas today as reflecting the ultimate standards we all should aspire to achieve. An eminent Supreme Court judge and the very best Queensland counsel achieved an outcome where a 35-day trial of a complex commercial dispute produced a judgment within 3 days.
In Queensland a modern version of the Commercial List was established and initially managed by Justices Muir and Chesterman. Some of us will have experienced the benefit of conducting cases on that modern Commercial List. The success of that period of commercial litigation in Queensland speaks for itself. That period of renaissance for commercial litigation in this state will remain fresh in the memories of many here today. One notable feature of that time is that the Queensland commercial bar again happened to be dominated by commercial silks of the highest quality who were genuine leaders of the national profession.
That is an abbreviated overview of some parts of our commercial litigation heritage.
The disruption caused by artificial intelligence is an opportunity
I have spoken about the manner in which Lord Mansfield confronted and embraced the challenges posed by the Industrial Revolution to the Rule of Law in England. Today, in a sense we are confronting our own kind of industrial revelation being the revolution of technology and the emergence of big tech in international business and in the formulation of policy. History tells us that the industrialists who were the proponents of the Industrial Revolution embraced the Rule of Law, they wanted and desired just outcomes within the Rule of Law and facilitated effective change within the Rule of Law by working in consultation with the profession and the courts, led by Lord Mansfield. Today we can’t be quite as confident that the proponents of the modern-day industrial revolution have any particular longing or desire to promote or protect the Rule of Law. Elon Musk once told his biographer that “the only rules are the ones dictated by the laws of physics, everything else is a recommendation.” We live in a world where there is a very real danger that information and artificial intelligence can and may be distorted for profit, power and to influence policy. Big Tech’s massive investment in AI is not necessarily an investment reflective of any desire to perpetuate the Rule of Law. It is not necessarily an investment being undertaken in the public interest or for the public good.
In the midst of GLASNOST and in the lead up to the fall of the Berlin Wall, the German rock band Scorpions (which to that point in time had been loosely compared to Spinal Tap) released an album called “Crazy World”.
The number one song on that album was “Wind of Change”. The song, in musical style and lyrics, was unlike any song Scorpions had previously made. The lyrics predicted the collapse of communism and the birth of a new era for Eastern Europe. The song became an anthem across Europe celebrating the imminent collapse of the Soviet Union. In that time of great uncertainty, the lyrics spoke of “the future being in the air” and the “world closing in”. The final verse was “the wind of change blows straight into the face of time, like a storm wind that will ring the freedom bell”.
Conspiracy theorists contend that Wind of Change was in fact written and composed by the CIA. Hopefully, all information relating to whether the CIA did in fact write Wind of Change will one day be declassified. But I digress. What I readily accept as being the very marginal relevance of Scorpions to my talk today, is perhaps encapsulated by the album cover for the song which depicted a key seeking to unlock the future. Confronted with the very real challenges to commercial litigation posed by unprecedented technological change, as a profession, we can cower and fret or rather mobilise and actively look for solutions and improvements. The message for the bar during these times of disruption and change should be that with upheaval comes opportunity.
It is readily observed in the United Kingdom thatthe new ways of doing business involving the use of blockchain and artificial intelligence provide enormous opportunities for economies and legal systems that are prepared to position themselves at the forefront of the development and support of those new methods and assets.
Embracing the future involves reinforcing the bar’s great strengths
There are philosophical challenges we need to address at the outset which do not require any knowledge or understanding of the technology. They are problematic aspects about how we currently administer commercial litigation. In most commercial litigation, at some point, we confront the prospect of losing trial dates because of amendments to pleadings. Whenever we adjourn trials and vacate trial dates, at some level, we expose our system to ridicule and the potential to be thought of as a failed system. There is no surer way of degrading public confidence in the courts than by vacating trial dates. Our jurisprudence makes it difficult for a court presented with a genuine but late amendment application to refuse the amendment, even if it causes the adjournment of the trial. The common law has been wrestling with the consequential effects of amendments for centuries. Lord Justice Bowen said in 1887 in terms which he expressed “without fear of contradiction” that it was simply not possible for an honest litigant in the Royal Courts to be defeated by any mere technicality, slip or any mistaken step taken in litigation.[30]
Some of us have practised when JL Holdings[31] was the leading case on amendment and adjournment. We are now governed by the principles in Aon Risk:[32]
“But, as is explained in these reasons, to be regarded as a real issue, and for amendment therefore to be necessary, the relevant dispute or controversy must exist at the time of the application. Amendments raising entirely new issues fall to be considered under the general discretion given by r 502(1), read with the objectives of r 21.”
This passage needs to be given attention in practice. We need to be more cognisant of what are the real issues in commercial litigation, or as our 1910 Act said, “the questions which are really at issue between the parties”. The goal must be to identify those issues and questions as soon as possible once a proceeding starts. The careful and timely identification of the real issues provides some important protection against late amendments that might derail a trial and delay final decision making.
Our pleading rules do not always assist the timely identification of the real issues. We operate under rules where, as a matter of course, a defence is expected within 28 days and usually the defence is filled with a litany of non-admissions arising by reason of the 28 day time constraint or because there has not been disclosure. The non-admissions invariably survive to the time of trial. We should not approach commercial litigation as if it is something akin to building and construction litigation. There needs to be more preparedness in appropriate cases to insist upon either material fact style pleadings or simply to dispense with pleadings in favour of the identification of agreed real issues. If you are briefed for a plaintiff in a commercial dispute which is attended by urgency and needs quick resolution, it may be appropriate to have the proceeding start by way of application and listed for review by a Commercial List judge because that course might give the court the best opportunity in an appropriate case to dispense with pleadings and have the parties genuinely attempt to agree the real issues. We need to continually give more thought to flexible procedures. In an appropriate case, can there be just one expert appointed by the court? In any case, how important is disclosure and what kind of disclosure is actually required? At mediation, if settlement fails can important matters pertaining to the efficient conduct of the trial be reduced to an agreement?
One of the leading cases on the effects and significance of delay is Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. At 552 to 553, McHugh J said:
“… the right of the citizen to a speedy hearing of an action that had been commenced was acknowledged by Magna Carta itself. Thus for many centuries the law has recognised the need to commence actions promptly and to prosecute them promptly once commenced … Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them … The final rationale … is that the public interest requires that disputes be settled as quickly as possible.”
Delay has for a long time been recognised as detrimental to just outcomes. The focus of the jurisprudence has been on the effect on the quality of justice and on litigants in their efforts to get justice. That is, delay has been traditionally cast as a problem for litigants. In the future, delay may well become a problem for the profession, not litigants. Sophisticated businesspeople of tomorrow are unlikely to have much tolerance for delay and they are likely to be doing business in an environment where they can achieve sophisticated resolutions of disputes, not necessarily in the courts or through the use of human actors. Sophisticated businesspeople may be prepared to accept commercial outcomes dictated by algorithms rather than human wisdom. Confronted with these potentials, the commercial bar must focus upon its important in providing the best opportunity for the Rule of Law to thrive, that is, the best opportunity for businesspeople to continue to perceive going to court as an effective system for adjudication. What distinguishes the bar from other associations of people, or dare I say from machines, are its ethics, independence and specialist skills. Those distinguishing characteristics must endure and remain notorious to the community the bar serves.
“…the commercial bar must focus upon its importance in providing the best opportunity for the Rule of Law to thrive, that is, the best opportunity for businesspeople to continue to perceive going to court as an effective system for adjudication.”
You will hopefully have got the flavour that the new and emerging industries and businesses in Queensland are unlikely to have traditional ties to Sydney or Melbourne. In some respects, the Sydney and Melbourne commercial bars may always have had something of an advantage over the Brisbane commercial bar in that the head offices of banks, insurance companies and multinational companies have traditionally been seated in the southern capitals. That status quo will change in the sense, for example, crypto exchanges are not necessarily going to be based in Sydney. We already have one of the leading crypto exchanges operating out of Brisbane. Companies promoting emerging technology in agriculture, mining, space and sports tech are setting up business in Southeast Queensland. There is no obvious reason why commercial litigation involving those companies should not be litigation conducted in Queensland. The Bar should be competing for commercial arbitration work connected with Olympic and Paralympic projects. I know the Association has already been doing valuable work in connection with the place of arbitration for those kinds of disputes.
However, to serve the interests of emerging industries, our system needs to be able to provide specialist advocates that understand the new businesses and appreciate the type of remedies the new businesses require. There needs to be a recognition that we have to upskill at least in relation to knowledge. I have deliberately referenced remedies because, again to use the example of crypto currency, we have seen, particularly in the United States through the FDX collapse, how important flexible remedies are for liquidators tracing Crypto currency fraud. In the United Kingdom, task forces have formed headed by commercial judges supported by the Bar and Law Society. The work of the task forces has been to prepare and publish documents intended to promote market confidence in the ability of English law to govern smart contracts and blockchain transactions. It would seem that the law can quite readily deal with issues raised by Smart contracts but useful remedies in respect of crypto fraud and banking scams are another question. It is now generally accepted that crypto assets may be regarded as property. There is a suite of English decisions and a first instance decision of Justice Attiwill in the Supreme Court of Victoria in the matter of Re Blockchain Tech Pty Ltd dealing with crypto as property.[33]That is an important starting point however very difficult questions are continually emerging concerning the governing law over the asset and how to enforce remedies against actors located outside of the jurisdiction. The remedy and the efficacy of the remedy is what the UK taskforce has looked at with a view to sending a message to the international business community, in respect of crypto disputes, that the English courts and bar are open for business and ready to assist and solve your problems. The potential reach of the remedies can be seen in a 2024 decision of the English High Court in Tonstate Group Ltd v Wojakowski [2024] EWHC 975 (Ch) where a Bankers Trust disclosure order was made in London requiring a foreign trustee to provide information and documents in relation to assets held in a foreign trust and foreign bank accounts. The commercial bar should be vitally interested in further continuing education about these types of contemporary issues. The Court is obviously interested and prepared to work with the commercial bar to ensure that our rules and procedures and practice directions are contemporary and reflective of world best practice.
In terms of independence, it takes great courage for an advocate to identify and be confined by the real issues. There is no way to sugar coat that. It may be an unpopular course with the client or your solicitor, but it is a course that facilitates or assists efficient decision making. Today, it is possibly harder for a barrister to be genuinely independent in practice than it might have been say 50 years ago. Barristers now function in a world in which the receipt of briefs, at least in some cases, may be influenced by marketing and ratings, and the ratings to which I refer are not apparently referable to transparent data. Barristers for some time have regularly conferred at solicitors’ offices and are regularly asked to provide draft work to not just their solicitors but to their clients for review. Despite starting out with the very best of intentions to act independently, some barristers may get drawn into situations where their strategic decision making is heavily influenced by what I might call “outside noise”, which can be apt to deflect from the identification of the real issues in a case.
Some barristers, I hasten to say a minority, build a reputation as fearless advocates who are prepared to run “hard points”, but by a hard point they mean a faintly arguable point lacking in substance. It is one thing to identify such a hard point for the purpose of a strike out application, it is another thing entirely to persist with such a hard point after the benefit of all of the interlocutory steps and a trial. We should not lose sight of the fact that any client a barrister represents undertakes to the court to proceed expeditiously. Our procedural rules are designed to facilitate the just and expeditious resolution of the real issues. A barrister by the time of the trial should not conflate an “arguable issue that might survive a strike out application” as being necessarily a real issue for final decision by the court after a trial. The point I wish to emphasise is that it very much assists a trial judge in providing a timely decision if a barrister is prepared to commit to what the barrister perceives are the real issues that have to be finally decided.
“…it very much assists a trial judge in providing a timely decision if a barrister is prepared to commit to what the barrister perceives are the real issues that have to be finally decided.”
Bruce Oslington SC was a barrister I had the privilege of working with when I was a junior. Bruce was very much a barrister who in my experience only argued the real issues. Once after we finished the closing submissions of a trial, we were sitting at the bar table as the judge walked out leaving behind the lever arch folders on the bench. Bruce whispered to me: “You see, that’s why I will never be a judge. They always look kind of defeated at the end when they walk out and have to go away and write the judgment. Could you think of anything worse?” Sometimes, I find myself thinking about Bruce’s comment.
The worst kind of advocacy by a barrister occurs where the barrister hands up 40 or 50 pages and orally argues one point of substance and then says in a very smooth, measured way “otherwise we rely upon our written submissions”. When you then come to write the judgment, you deal with the real issue, the point of substance that was actually orally argued, and you start to see the light at the end of the tunnel in terms of getting the judgment delivered. At this point it might be a Thursday night in your judgment writing week. But then comes the sudden, grim realisation that there are still 4 or 5 other “issues”, none of any ultimate substance, that were floated in the writing, but not argued orally, and which you still have to decide in order to get the judgment out. At that point of realisation, you should all know that the judge, sitting in the quiet of chambers with a partially completed draft judgment on the desk, feels like Don Michael Corleone in The Godfather III; “just when I thought I was out, they pull me back in”.
As judges we receive education about how to write judgments. We are taught and encouraged to write judgments by reference to issues. As trial judges it is reinforced to us that we are not writing for prosperity; we are trial judges who are meant to be applying settled law. Much of the commercial common law is necessarily settled law; the whole point of the developed commercial law being that it can be applied with certainty. The same is true of much of our procedural law. It is important for commercial barristers to realise that the trial judge will write an issues based judgment. The submissions that assist the writing of that kind of judgment are concise, issues based submissions. What would most benefit me as a trial judge are submissions which: identify the issue, identify the findings of fact which are sought in respect of the issue, for each finding of fact, identify the parts of the evidence relied upon in support of the finding and identify the settled principles of law to be applied to the facts as found. As most principles are settled, state the principle and identify the leading authority. Try not to provide 5 authorities when you can provide one leading authority. Try not to cite large passages from cases, if it is unnecessary. That form of concise, issues-based submission, fundamentally involves writing for the benefit of the court. Only the very best barristers write trial submissions in that style. In my view, writing in that style should become the norm, not the exception. Barristers should become renowned for having the special skill of being able to write for the benefit of the court.
“What would most benefit me as a trial judge are submissions which: identify the issue, identify the findings of fact which are sought in respect of the issue, for each finding of fact, identify the parts of the evidence relied upon in support of the finding and identify the settled principles of law to be applied to the facts as found.”
I had the opportunity to sit alongside a Commercial Court judge in London in the Rolls Building in an application which spanned three days. The proceeding concerned a dispute arising out of the impact of international trade sanctions. An international shipping container company had been affected by Mareva style orders and the hearing was about whether the orders should be discharged. The barristers including the silks handed up relatively brief written submissions and there were no books of authorities. Rather each barrister had a current version of the English white book, as did the Judge, and they would simply cite legal principles by reference to a case or a page number and paragraph of the white book. It was a very efficient hearing, and the judge was able to deliver an ex tempore judgment.
Finally, as to ethics, there are two very brief points which I wish to make.
The first is that the Bar must lead to ensure that artificial intelligence to the extent it is used in litigation, is used ethically and so as to promote, not undermine, the Rule of Law. There should be no compromise on that. Large firms and consulting companies may have their own plans for the use of AI programs. The bar must set its own rules and guidelines for its use of AI to ensure that any use by a barrister is consistent with the special role and duties of a barrister. The relationship between the court and the bar is a unique and special relationship. It is a relationship which must be protected. Judges rightly place enormous trust and confidence in the bar. Occupying that special position, the bar must distinguish itself from any other professionals in relation to the use of AI. The court and the community must have confidence that the bar will only use AI for the purpose of furthering the objects of r 5 and the enhancement of the Rule of Law. There will be a need for ethical checks and balances in relation to the use of artificial intelligence. The bar should take the leading role in setting the parameters of ethical use of AI in commercial litigation.
Secondly, one of the imperatives to ensure that court proceedings in commercial matters remain attractive to clients is that they be conducted by reference to flexible, innovative procedures devoid of technicality. The administration of justice is plainly advanced by barristers being able to speak frankly and candidly with each other about how to best conduct a commercial case consistent with rule 5 and the practice directions. We need barristers to be renowned for their ethics, at the very least, so that there can be frank discussions between barristers out of court in relation to the efficient, innovative conduct of commercial cases. Our profession is adversarial and competitive. As barristers, you don’t have to like each other but you have to trust and respect each other. You have got to be able to pick up the phone to your opponent. That inherent abiding trust in each other must always be something that sets the Bar apart and it is going to become even more important in ensuring that court process is flexible and dynamic to meet the demands and expectations of our community.
No one can predict the future for robots and advocacy. What we do know is that in 2021 a robot addressed the Oxford Union Debating Society and engaged in a lengthy question and answer discussion. When I was researching this paper, I stumbled online upon a fascinating conversation between two robots. At least I think they were robots. I have also noticed that some of my more recent conversations with Siri in the car have become more engaging and animated. One day, the bots may well set up in competition with or as part of the commercial bar. A literal interpretation of some of the longstanding nicknames for some of the senior leaders of the bar, might suggest that the bots have already infiltrated the ranks. We can only imagine and speculate about that future world. Regrettably, the ubiquitous barrister ranking systems and lists will no doubt continue to exist in the future. Barristers may well have to be ranked against robots. However, whatever happens, I am confidently backing the human barristers to be renowned as more ethical, more fearless, more skilled in leading evidence, better cross examiners, more skilful in address and more emotionally intelligent and intuitive. Those enduring characteristics of the great barristers we have known and know, will help safeguard the Rule of Law and the future of commercial litigation in our courts.
“I am confidently backing the human barristers to be renowned as more ethical, more fearless, more skilled in leading evidence, better cross examiners, more skilful in address and more emotionally intelligent and intuitive. Those enduring characteristics of the great barristers we have known and know, will help safeguard the Rule of Law and the future of commercial litigation in our courts. “
Thanks for your time.
[1] Judge of the Supreme Court of Queensland: Trial Division. This is a written version of a presentation delivered at the Annual Conference of the Bar Association of Queensland in Brisbane on 1 March 2025.
[2] Lord Hodge, ‘The Rule of Law, the Courts and the British Economy’ (Speech, Guildhall Lecture, 4 October 2022) 14.
[3] Tom Bingham, The Rule of Law (Penguin Books, 2011).
[4] Lord Burnett, ‘The Hidden Value of the Rule of Law and English Law’ (Speech, Blackstone Lecture, 11 February 2022) 2.
[5] Tom Bingham, The Rule of Law (Penguin Books, 2011) 8.
[6] Lord Burnett, ‘The Hidden Value of the Rule of Law and English Law’ (Speech, Blackstone Lecture, 11 February 2022) 3.
[9] Lord Goff, ‘Commercial Contracts and the Commercial Court’ (1984) Lloyd’s Maritime and Commercial Law Quarterly 382.
[10] Lord Goff, ‘Commercial Contracts and the Commercial Court’ (1984) Lloyd’s Maritime and Commercial Law Quarterly 382, 391, cited with approval by Lord Steyn in Homburg Houtimport BV v Agrosin Private Ltd (The Starsin) [2004] 1 AC 715 at 749 [57].
[11] Judiciary UK, ‘About The Rolls Building’, Courts and Tribunals Judiciary (Web Page, n.d.) <https://www.judiciary.uk/about-the-rolls-building/>.
[12] Judiciary UK, ‘Financial List Guide’, Courts and Tribunals Judiciary (Web Page, n.d.) <https://www.judiciary.uk/courts-and-tribunals/business-and-property-courts/financial-list-guide/?>.
[13] Lord Burnett, ‘The Hidden Value of the Rule of Law and English Law’ (Speech, Blackstone Lecture, 11 February 2022) 3–4.
[14] TheCityUK, Legal excellence, Internationally Renowned UK Legal Services 2021 (Report, December 2021) 7.
[15] TheCityUK, Legal excellence, Internationally Renowned UK Legal Services 2021 (Report, December 2021) 7.
[17] Oxera, Economic Value of English Law (Report, October 2021) 35.
[18] Trade and Investment Queensland, Spotlight on Queensland: Why Queensland, Australia is the place to live, work, study, invest and grow (Report, 2023) 17.
[19] Trade and Investment Queensland, Spotlight on Queensland: Why Queensland, Australia is the place to live, work, study, invest and grow (Report, 2023) 17.
[20] Trade and Investment Queensland, Spotlight on Queensland: Why Queensland, Australia is the place to live, work, study, invest and grow (Report, 2023) 12.
[21] Trade and Investment Queensland, Spotlight on Queensland: Why Queensland, Australia is the place to live, work, study, invest and grow (Report, 2023) 12.
[22] Trade and Investment Queensland, Spotlight on Queensland: Why Queensland, Australia is the place to live, work, study, invest and grow (Report, 2023) 25.
[23] Trade and Investment Queensland, Spotlight on Queensland: Why Queensland, Australia is the place to live, work, study, invest and grow (Report, 2023) 25.
[24] Trade and Investment Queensland, Spotlight on Queensland: Why Queensland, Australia is the place to live, work, study, invest and grow (Report, 2023) 25.
[25] Trade and Investment Queensland, Spotlight on Queensland: Why Queensland, Australia is the place to live, work, study, invest and grow (Report, 2023) 25.
[26] Queensland State Development, Infrastructure and Planning, Queensland new-industry opportunities (Web Page, 13 December 2024) <https://www.statedevelopment.qld.gov.au/industry/queensland-new-industry-opportunities>.
[27] Trade and Investment Queensland, Spotlight on Queensland: Why Queensland, Australia is the place to live, work, study, invest and grow (Report, 2023) 27.
A much-loved professional friend of mine recently ended his illustrious career because of dementia. It made me realise that the illness (in its varied forms) is not something we in the legal profession talk about much.
But we should.
When retired Family Court judge Peter Hilton died from Alzheimer’s disease over a decade ago, his wife Robyn Hilton was left not only with grief, but also with questions. What exactly had happened to the sharp, brilliant mind of the man she loved? And what could be done—if anything—to prevent others from walking the same lonely road?
She found part of her answer at the Queensland Brain Institute (QBI), tucked away on the campus of the University of Queensland, where a quiet revolution in neuroscience is unfolding. “I had no idea that such a world-class research facility existed in our backyard,” Robyn told me. “It was only after Peter died that I learned of the Queensland Brain Institute and, more specifically, the Clem Jones Centre for Ageing Dementia Research. It changed my life.”
For the past decade, Robyn has channelled her grief into action by hosting an annual fundraiser for QBI, to whom she has made very significant and generous donations in Peter’s memory. This year’s QBI Lexus Alzheimer’s Sunset Soirée will take place on Saturday, 26 July from 4.00pm to 7.30pm at the Officers Mess, New Farm. There will be French champagne, wine and canapés, live jazz, and, most importantly, the chance to meet researchers who are pushing the boundaries of what we know about the human brain. Once again, I have the privilege of acting as MC for the annual fundraising event, as I have done since the first of these events more than 10 years ago.
Robyn extends a heartfelt invitation to all at the Bar to come along. Learn something. Be inspired. Help make a difference.
While dementia does not discriminate, the risk of developing it increases with age and, according to research, may be exacerbated by long-term stress and cognitive strain—an almost constant experience for barristers. In fact, dementia is the second leading cause of death in Australia and the leading cause of death among Australian women. An estimated 421,000 Australians are currently living with dementia, a number projected to double by 2054.
Peter Hilton, a member of the Queensland Bar before his elevation to the Family Court in 1991, experienced the onset of dementia in a way that was, according to Robyn, “slow, unpredictable, and emotionally devastating.” Peter had spoken candidly to her of the toll custody cases had taken on him—“the emotional turmoil,” he called it.
“The stress connection is my own observation,” Robyn says, “but I do think it’s real.”
A recent study by researchers at the Erasmus University Medical Centre, at Rotterdam in the Netherlands suggests that individuals with higher cognitive abilities may experience more rapid cognitive decline once dementia sets in. The research indicates that while a higher IQ may delay the onset of symptoms, it could also lead to a steeper decline once the disease progresses. This phenomenon is attributed to the concept of “cognitive reserve,” where the brain compensates for damage up to a point, after which the decline becomes more pronounced.[1]
This finding is particularly relevant for us in the legal profession, where high cognitive function is both a requirement and a hallmark of success. It underscores the importance of early detection and proactive engagement with brain health initiatives.
Luckily for us, the Queensland Brain Institute is one of the leading neuroscience research centres in the Southern Hemisphere, employing more than 400 researchers who work across disciplines to investigate brain cancer, schizophrenia, stroke, motor neurone disease, Parkinson’s, and—of course—dementia.
Within QBI, the Clem Jones Centre for Ageing Dementia Research (CJCADR) is at the forefront of efforts to understand and treat Alzheimer’s and other dementias. Around 90 researchers are dedicated to this cause. Among their most remarkable recent achievements is a non-invasive ultrasound technology that can safely and temporarily open the blood-brain barrier. In a 2023 phase one clinical trial, the technique was shown to be safe in humans—paving the way for future treatments that can deliver drugs more effectively to the brain and even help break down the infamous amyloid plaques associated with Alzheimer’s disease.
This is not science fiction. This is happening now—here, in Queensland.
Yet the funding challenges remain immense. “Government funding for science in this country is not sufficient,” Robyn notes. “Researchers spend up to 25% of their time writing complex grant applications. I’d rather they spent that time in the lab.”
It’s often said that dementia disproportionately affects the “more intelligent among us.” That’s a myth—but it’s a telling one. Dementia doesn’t discriminate, but the stigma surrounding it often silences conversations that are long overdue.
What do we do when we suspect a colleague is no longer at their cognitive best? Robyn admits there is no easy answer. “There is no roadmap to guide you,” she says. “Feeling your way in a fog is what came to mind when I was trying to navigate this fraught time.” Gentle conversations, quiet observations, support from trusted friends and colleagues—these are the tools we have. But perhaps the best tool of all is knowledge.
If we in the legal profession can support research, foster awareness, and build empathy, we honour not only the legacy of people like Peter Hilton, but also our own future.
As barristers, we spend our lives using our minds as instruments of persuasion and reason. So, this is my invitation to you: come to the Soirée. Enjoy the wine, food, jazz and conversation.
But more than that: consider making this cause your own. Support the scientists working to prevent, slow, and even reverse the most common neurological disease of our time.
Paper presented at the Bar Association of Queensland Annual Conference at the W Hotel, Brisbane, on 28 February 2025 by the Honourable Justice John Bond.
Again as the President explained, the website is fully searchable by word, author or topic. Indeed, the search page will also extend, should you choose, to a full Google search. To date, only one of the previous 15 editions of Hearsay has been uploaded in searchable form – the balance may be located in the Archive in their PDF form – but, over the coming months, all previous editions will come online.
