THE BAR ASSOCIATION OF QUEENSLAND
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Issue 99: March 2025
About Us

November 2021

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:

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

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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.

Donations can be made at any time at LawRight’s Donation Page.

Supreme Court Library

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:

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 2018—go 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)—tickets available from Friday 28 September via Brisbane Open House

· Visit sclqld.org.au/bne-open-house for details

Bullying Guidelines

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.

· Workplace Bullying Policy – Members

· Workplace Bullying Policy – BAQ Worker

· Model Bullying Best Practice Guideline

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

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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. 

QUEEN’S BIRTHDAY HONOURS 2015

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 :

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:

 http://old.hearsay.lancedev.net/index.php?option=com_content&task=view&id=927&

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 Applegarth chronicled 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:

http://old.hearsay.lancedev.net/index.php?option=com_content&task=view&id=904&

FRANK CONNOLLY

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.

http://mobile.nytimes.com/2014/07/14/opinion/how-race-skews-prosecutions.html?partner=rss&emc=rss&smid=tw-nytopinion&_r=0&referrer=

http://www.nytimes.com/2014/08/23/opinion/giving-email-a-holiday.html?ref=todayspaper&_r=0

http://www.nytimes.com/2014/07/06/opinion/sunday/the-secret-of-effective-motivation.html

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:

Sausages and the Judicial Process

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:

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:

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

This Edition

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

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

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

Be safe over the Easter break. Happy reading!  

Adrian Duffy QC

Editor

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

  1. Oxford University Press Copyright Sir Anthony Kenny 2010
  2. 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 

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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.

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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

O n 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

editor_intro.jpg

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.

Open Book and Scales.jpgAgain 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

 

 

 

I am pleased to welcome you to this 99th edition of Hearsay, and hope that, whenever or wherever you read this, you have made it safely through or recovered from ex-tropical cyclone Alfred. My thoughts are particularly with our members on the Gold Coast and their families, where the cyclonic weather was at its worst. We understand that the lists at the Southport Courthouse are starting to proceed again and we hope that our members are able to resume their normal practices in what is one of the busiest regional courts at the best of times.

This edition comes after another successful, sold-out Annual Conference, held on 28 February 2025 and 1 March 2025. My thanks to all those who presented, attended, and organised the conference. My particular thanks to the new chairs of the Annual Conference Committee, Dominic O’Sullivan KC and Christian Jennings KC, and the staff of the Association who assisted in preparing for the conference and ensured its smooth running. Photos from the conference will be published in our next edition.

This edition’s Feature Article is a compendium of contributions on cross-examination from many silk who have spent countless hours on their feet. Their commentary on the art of cross-examination in ‘Words from the Past’ shows that it holds true today.

You will also find an excerpt from an interview with Daniel Kalderimis KC of the New Zealand Bar, who speaks about how ‘lawyer brain’ impacted his mental health, taking a tunnel-visioned approach to his own life. Daniel’s article serves as a reminder to take stock of our own health and wellbeing.

And on the subject of health and wellbeing, now is the time to book your flu vaccination at the Bar Association’s offices. Appointments remain available from 25 March to 4 April 2025. You didn’t just survive a not-cyclone to then spend a couple of weeks languishing at home with the flu.

My thanks to the Editors, Richard Douglas KC and John Meredith, and their deputy editors, for preparing this issue, and look forward to however Richard and John raise the bat in the next, century edition.

I hope you enjoy reading this edition of Hearsay.

Cate Heyworth-Smith KCPresident

Welcome to the March Quarterly Issue Of Hearsay.

Hearsay welcomes John Meredith – formerly Deputy Editor – as Co-Editor of Hearsay.

In this Issue, the lead article – ‘Cross-Examination – Planning, Purpose and When to Stop!’ – is exceptional. It has been compiled by a team of senior criminal barristers who have provided their insights on the art of cross-examination. Organising the production of this article is no mean feat; our thanks go to Elizabeth Kelso of counsel and Andrew Hoare KC for so doing. The result is a resource that will be useful to all members, whether practising in the criminal or civil spaces.

This Issue’s featured artwork is a projection upon what the reader will readily recognise as the William Jolly Bridge, by night. Such artwork was created in 2020 as part of the Museum of Brisbane retrospective exhibition titled ‘New Woman’, an exhibition celebrating the work of ‘Ground-Breaking Female Artists’ of Brisbane origin. The featured artist – Brisbane raised Emma Coulter – is now based in Melbourne. A catalogue of her work is included. 

Hearsay’s interviewee in ‘10 Minutes With …’ is Amanda O’Brien, the recently appointed Principal Registrar of the Supreme, District and Land Courts. Solicitor Ms O’Brien provides insight into the challenging issues entailed in managing the administration of, and modernising, state courts in Queensland.

Obituaries are included for the Honourable Alan Demack AO and James (Jim) Crowley RFD KC. Alan and Jim contributed enormously to the bar and judiciary. The obituary for Alan is written by the Honourable Duncan McMeekin KC, while that for Jim is written by his son, barrister Joseph (Joe) Crowley.

Tony Morris KC – in a thought provoking article – considers the question ‘What is an Executive Order?’.  So much is a current issue having regard to the raft of such orders made by President Donald Trump upon him recently returning to Presidential office. Barrister Dr Stephen Lee writes an interesting paper on the first Chief Justice of the United States of America, John Jay.

The ‘Regional Bar’ section item is titled ‘Barristers in Military Service’, by barrister Dr Dominic Katter, concerning counsel who have served in the military – as active service personnel and as lawyers – in Australia and overseas. Dominic interviews Association members Major General (and barrister) David Thomae AM and Air Commodore (and District Court judge) Michael Burnett AM. Each discusses their military backgrounds, coupled with the history of other members who serve – and have served – in military roles.

The ‘Words from the Past’ section includes an excellent 2020 paper ‘How to Lose a Case’ by the late Edmund King QC of the UK bar (penned shortly prior to his premature death), together with a 2016 paper by Queensland barrister Simon Couper KC on ‘Cross-Examination Basics’. Each is a ‘must read’ classic.

The ‘Reviews and the Arts’ section comprises extensive reviews of recent books – in the legal space and wider spaces – together with reviews of art and other disciplines. Thanks to Stephen Keim SC for his continuing editorial (and written) work in this section.

The ‘Advocacy’ section comprises consideration of a number of recent decisions on substantive law. The ‘Inter Alia’ section comprises a raft of disparate items, including ‘Mintie and Friends’ – this Issue having a Mexican slant to it – and the usual ‘Language’ titbits.

We thank the raft of contributors to this Issue of Hearsay. We invite contributions to future quarterly Issues.

Thanks also to our diligent editorial team of Philip O’Higgins KC, Carolyn Conway and Seraphina Noble. We also welcome Philip as deputy editor. As usual, thanks also to Dianne Lyndon of the BAQ for her industry and expertise in helping produce Hearsay.

Richard Douglas KCJohn MeredithEditors

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)

Hearsay is pleased to provide this article on cross-examination. Whilst drafted with the conduct of criminal trials in mind, the salient principles essayed are equally apt to the conduct of civil trials. This article was assembled with contributions from the following members of the Queensland bar (in alphabetical order):

The time and input of such Counsel is greatly appreciated. We anticipate that it will provide a valuable resource to all barristers, irrespective of their level of experience.

For ease of reference the links to the earlier articles in Hearsay in this criminal law series are provided below, as is the mentioned video from Irving Younger – “Ten Commandments of Cross-examination” referred to by Ryan KC.

Cross-examination is a skill. It is a skill that requires time, patience, and a dedication to learning. There are several ways to develop your skills, such as reading transcripts or speaking with more experienced colleagues and asking for their advice. One of the best ways to develop your skills in the art of cross examination is to watch those who are great at it. Watching how a great cross examiner walks a witness down a path, not necessarily a path they want to go down, shutting each gate along the way. The witness ends up with only one path they can take, that the cross examiner has deliberately left open, securing the answer they wanted. Or, if the witness does not take that path then they look evasive or just plain wrong.

Mark McCarthy KC told us “Perhaps the best thing I can say is that reading about tips and techniques is essential, and must be done, but so is watching others cross-examine and thinking critically about what they do. And even more important is trying it out for yourself. Compare what you have read to what you see others do, then think about whether the things you have seen worked, or didn’t, and why.  Was it execution, did it fit the witness, or the case? And then try it out for yourself. Do it in courses, in chambers, in silent mental preparation, and even by talking out loud to yourself (preferably while alone, or somewhere people will think you’re a busker and throw money). And in due course, when it suits you, use it in court. Learning how others cross-examine is fundamental. Applying that knowledge and developing what works for you is mastery”. 

In that regard, Tim Ryan KC says you cannot go past American advocate Irving Younger and his ‘Ten commandments of cross-examination.’ “When I did the BAQ bar course they played Irving Younger’s video outlining his ten commandments of cross-examination and they remain the best guideposts to mould constructive cross-examination, whether you are just starting out or a seasoned advocate. The ideas Irving Younger has are communicated very effectively and should be revisited throughout your career. The best one is the admonition ‘what do you do when things are doing good, you stop. What do you do when things are going not so good, you stop’. The other person that people are less familiar with is American trial lawyer, Gerry Spence. Gerry Spence has never lost a criminal case and has written several books on advocacy, and in particular cross-examination. He continues to teach today, and his literature is well worth reading”.  

Cross examination has several purposes:

  1. Establishing important facts helpful to your case that are not already in evidence.
  2. Confirming important helpful facts already in evidence.
  3. Bolstering the credibility of prosecution witnesses or defence witnesses who are helpful to your case.
  4. Impairing the credibility or reliability of witnesses who are not helpful to your case.

Those purposes are not mutually exclusive. It is possible, for example, to damage the credibility of a witness adverse to your case while still using that witness to establish facts helpful to your case. As defence counsel, securing evidence from a prosecution witness that helps your client can be particularly powerful for your case.

The key to an effective cross examination is to know exactly what you want to get out of the witness. Planning is important. During cross examination you want to control the narrative and elicit the information you require to incorporate into your closing address. A cross examiner should do everything that is necessary to advance the case theory and nothing that is not. 

Craig Eberhardt KC shared this advice as to how he prepares for cross examination “[When] I start preparing cross examination of a witness, I assemble all of the statements, transcripts and exhibits relating to the witness’ testimony. Having all of the witness’ versions handy makes cross-referencing the material easier.  I start by reading the witness’ versions (in the order in which they were given) and I make a numbered list of possible topics for cross examination references to the source material. As I read the material, I look for helpful evidence that I may get the witness to confirm. 

I am also looking for inconsistent statements and/or inconsistencies between the witness’ evidence and the evidence of other witnesses and differences between the witness’ evidence and the objective evidence like photographs and video evidence. Once I have a list of all possible topics for cross examination for all of the witnesses I work out which topics I intend to cross examine upon. This step is the most difficult.  Not all of the points you can make in cross examination will pull in the same direction.  Work out the points you need to make and cull the rest.”

Your approach to a witness will depend upon what you want to achieve. Your approach may also depend on the impression you have gleaned of that witness’s personality during their evidence in chief and what impression you want the jury to leave with.

When you are reviewing the brief and you are presented with a witness who is damaging to your case you need to carefully plan your cross-examination. Think carefully about what you can establish through the witness that is helpful to your case? What parts of the witness’ evidence should be challenged? How might you damage the witness’ credibility or reliability?

The care required is best explained by April Freeman KC “It is critical in cross examination that every question you ask has a purpose and you know what that purpose is. If it doesn’t advance your case theory, then don’t ask it. This means that you have to have a clear idea of what your case theory is when you start preparing your cross examination. It also means that it is easy to then identify which witnesses you may not even need to cross examine, the topics and questions you may need to avoid and it also means you are prepared to readily answer any objections to your question – because you know what the purpose of it is and why it is relevant to the case. It is also important to remember that the question itself is not evidence, but rather the answer given, so if you are expecting a witness to adopt or agree with your proposition and it is important to your case, you need to think carefully about how you are going to frame or word the question, so that when the witness adopts it, you have the concession you need for your closing submissions at the end. For these types of questions, I often will write them out word for word so that I get it right when I am on my feet in court.  A clumsily worded question which the witness then adopts may not in fact end up supporting your case when looked at in a transcript later on.

It also important to remember that you are not going to be great at cross examining witnesses straight away – it is a skill which requires practice, time and experience. So don’t beat yourself up if things did not go the way you had imagined or hoped. We all have bad days in court. The important thing is to recognise where you went wrong and how you might be able to improve things for next time. Advocacy is a continual learning process.”

If a witness is helpful to your case, there is no point in damaging their credibility. A better approach would be to simply lead the witness carefully to establish or reinforce the helpful facts you want.

The order of your questioning will be important in achieving your purpose. You should have a case theory, consistent with your instructions or in proving the elements of the offence. Consider how you can use the order of your cross-examination topics to develop that case theory. Remember, the most important people in the room are your jury. You want them to follow your narrative so they can apply it in your favour, and you do not want them to feel you are being deliberately confusing or unfair to the witness. 

Having said that, Saul Holt KC offers this advice when preparing your questions. “It took me ten years to learn that writing out my questions in cross examination was totally counterproductive. It created a straight jacket from which I couldn’t escape when – as often happens – the witness struck a different tone to that you were expecting, or came into a proposition much more readily than you thought they would, or fought back on something surprising. Instead, my notes are of the key facts, propositions and prior statements of the witness that are relevant to particular topic I’m exploring. Letting go of the crutch of written out questions was terrifying but freeing.  The other thing I wish I’d been told was to never, never never (never) start with the ultimate proposition you want to put to the witness. That always comes last (if you need to do it at all) after you have built and built and built all of the steps to make the proposition impossible to deny. Putting something to a witness and then fighting them about it for 10 minutes is never as effective.”

This, of course, is much easier when you have a cooperative witness because you can get straight to the point.

You had been drinking heavily? – YesYou were a hundred metres away from the fight?- YesYou were not wearing your glasses?- No I wasn’t.It was dark?- YesThe lighting was very poor?-  YesFor all of those reasons you did not have a good view of the fight?- CorrectAnd for that reason it is possible that you did not see everything that happened at the start of the fight?- Correct

With a difficult witness you have to take a different and more disciplined approach, particularly if you think the witness may try to work out where you are going and change their evidence to head you off. With this type of witness you need to tread cautiously and carefully, establishing all of the subordinate facts and circumstances before tackling the contentious parts of the witness’ evidence or putting a proposition that you know the witness wants to disagree with. You should be careful to maintain control of your witness. This is much easier in cross examination than evidence in chief, because your questions should generally be leading, propositional and only contain one such proposition per question. Limit the use of “tag ons” like “I put it to you that”, or “I suggest that” or “that’s true isn’t it”. “Tag ons” limit your flow and your control. Try getting rid of them and feel the difference it makes.

Angus Edwards KC offers this advice “Most trials come down to a handful of witnesses, sometimes less than that. Cross-examination of the remainder should usually be conducted with a scalpel, get what you need and get out. Of the witnesses that really matter, for my part it’s the same, get what you need and get out, but that means something different for those important witnesses. Sometimes what you need is to expose problems with credibility or reliability and that might not be neat and straightforward. For those witnesses, have a plan but don’t follow a script, and if you have a script listen to the answers and be prepared to go off script. Be prepared to follow a witness where they go. Some of the most devastating cross-examinations come in the most unexpected of ways, so be plastic and mould your cross-examination to the moment rather than to a preconception. That gets easier with experience. When you are starting out though, the things you really want to cross-examine about are the things you want to talk about in your closing address. Cross-examination of key witnesses is, in many ways, just the first time you give that address, only you give it in questions rather than a soliloquy. Your questions should contain all of the things you want to say in your address.”

When your case is that a witness is lying you need to discredit him/her early in your cross examination to erode any favourable impression he/she has made on the jury. You may wish to draw out biases, prior criminal convictions, has colluded with other witnesses, a motive to lie and significant prior inconsistent statements are all good places to start.

If you have objective evidence that demonstrates the witness is mistaken or being dishonest then use that to your advantage. Lock the witness into their current version before taxing them with their earlier inconsistent version or showing them CCTV footage that shows something different to their account.

Andrew Hoare KC said:

“Do not blindly follow a myopic path when cross-examining. You need to be suitably empathic to not just what is being said but the way it is being said. Often you approach a witness with pre-conceptions of their personality due to the content of their evidence. You must be prepared to alter your tone of questions when it is apparent those pre-conceptions are misplaced. Some witnesses will naturally evoke sympathy in the minds of the jury but that does not mean you cannot draw from those witnesses’ appropriate concessions.   Every cross-examiner has a different style, and I don’t suggest that there is any single correct approach. I try to be courteous as far as I can be, even in the face of discourtesy. Be acutely aware of the mood of the courtroom and in particular the jury. In that context, do not raise your voice at a witness unless the witness has not answered a clear question asked in a clear way and also, critically, you feel the jury have lost their patience with that witness. Approaching your cross-examination in that way makes you an ally of the jury and not their opponent. That will advance your client’s case.”

A message to prosecutors. Cross-examination is incredibly unlikely to elicit a confession to the crime you are prosecuting. You may not have a proof of evidence from the accused, but you will know what their evidence is likely to be from the cross examination of the prosecution witnesses, particularly the complainant. Prepare, and consider what is your purpose, for example are you looking to establish opportunity, lies, inconsistencies or motive. Always assume you may need to cross examine an accused and know what you need to cross-examine on to ensure that any propositions you wish to make in closing submissions are covered.

Before you embark on cross-examination you need to understand the rules of evidence. For example, learn how to properly cross examine on a prior inconsistent statement. Your questions can be pressing or persistent, but they should be relevant to an issue or to credibility and not prohibited by law. You should familiarise yourself with sections 15 to 21 of the Evidence Act 1977 (Qld). Make sure you comply with your obligations under Browne v Dunn (1893) 6 R 67.  But, where possible, integrate what you need to put to a witness as part of the general flow of cross examination, rather than adding it on at the end.

If you are getting a hard time about the relevance of your cross-examination, Jeff Hunter KC says this is an example of where the law is your friend. Look to Wakeley & Bartling (1990) 93 ALR 79, 86, where Mason CJ, Brennan, Deane, Toohey and McHugh JJ said:

The limits of cross-examination are not susceptible of precise definition, for a connection between a fact elicited by cross-examination and a fact in issue may appear, if at all, only after other pieces of evidence are forthcoming. Nor is there any general test of relevance which a trial judge is able to apply in deciding, at the start of a cross-examination, whether a particular question should be allowed. Some of the most effective cross-examinations have begun by securing a witness’ assent to a proposition of seeming irrelevance. Although it is important in the interests of the administration of justice that cross- examination be contained within reasonable limits, a judge should allow counsel some leeway in cross- examination in order that counsel may perform the duty, where counsel’s instructions warrant it, of testing the evidence given by an opposing witness. Lord Hanworth MR, in words which commanded the approval of the House of Lords in Mechanical and General Inventions Co and Lehwess v Austin and Austin Motor Co Ltd [1935] AC 346 at 359 , said:

Cross-examination is a powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his story. It is entrusted to the hands of counsel in the confidence that it will be used with discretion; and with due regard to the assistance to be rendered by it to the court, not forgetting at the same time the burden that is imposed upon the witness.

What do you do once you have achieved your purpose in cross examination? Sit down. When you are questioning a witness, and everything is going your way, sometimes as an advocate it can be hard to stop and be quiet. But there is nothing more dangerous to your case than going that one question too far. If you have all the answers you need, you have done your job. Stop. Often the most powerful cross examination is no cross examination at all. If you have everything you need from a witness’ evidence in chief, the only thing you risk doing is making it worse.

For those who are starting out, David Jones KC offers this guidance “If you are new to advocacy, know that there is no singular correct approach to cross- examination. Each advocate will develop a style that will suit their personality. That style will then mould to their environment, their opponent, the witness or even their solicitor’s client. In my experience, the days of barristers only having the one ‘gear’ whereby they shout and intimidate the witness has come or is coming to an end. Our Judges appear to be less tolerant of this approach, and more importantly, our jurors appear, except for the infrequent ‘deserving’ witness, to be unimpressed when such a course is taken. My first point of call is to settle the case theory and have an advanced draft of your closing address before you start preparing for cross-examination. This, in my opinion, is a must. Putting aside opportunistic targets, having both will provide you with a clear path to cross-examination. My next point is brevity.”

You will get better at cross examination with experience, but experience and skill are no substitute for careful preparation and planning. Good preparation will help reduce your nerves, allow you to maintain control of your witness and will give the impression to everyone that you are prepared, organised and that you know your case back to front. Ultimately that is your goal, so the jury can trust what you are telling them in your closing address, supported by the evidence you require.  

After every cross examination force yourself to go through the painful process of reading the transcript and working out what worked and what didn’t.   

And importantly, take every opportunity to go watch some great cross examiners in court!

The Acceptance and Initial Management of Criminal Briefs – Issue 93 September 2023Objections in Criminal Trials – Issue 94 December 2023Opening Addresses in Criminal Trials – Issue 95 March 2024Evidence in Chief in Criminal Trials – Issue 96 June 2024Maintaining your Selfcare During Trial – Issue 97 September 2024

Although we highly recommend that you do view it, for those members who presently do not have time to watch it – in summary Irving Younger’s 10 commandments on cross examination are:

  1. Be brief
  2. Use plain words
  3. Use only leading questions
  4. Be prepared
  5. Listen to the witnesses’ answers
  6. Do not quarrel with the witness
  7. Avoid repetition
  8. Disallow witness explanation
  9. Limit questioning
  10. Save the ultimate point of your cross for your closing argument

Ms Amanda O’Brien, Principal Registrar – Supreme, District and Land Courts Service, obtained a Bachelor of Arts (Justice Administration) from Griffith University in 1996, and a Bachelor of Laws from the Queensland University of Technology in 2002.  She was admitted to practice as a solicitor on 28 January 2003.

Ms O’Brien’s career in legal administration commenced in 1989 with her appointment as Deputy Registrar and Deputy Sheriff of the District and Magistrates Court registries at Southport and Beenleigh.  Since that time she has served in a raft of roles, including:

Ms O’Brien chatted with editor, Richard Douglas KC.

Douglas

Thank you for speaking with Hearsay.

O’Brien

It’s an honour, but I’m conscious I follow some very eminent interviewees.

Douglas

Congratulations on your recent appointment to your role. You succeeded the highly regarded and long serving Julie Steel PSM on her retirement. Did she serve as a role model for you?

O’Brien

Thank you. When I started in the Southport Courthouse over 35 years ago, I’d never have imagined becoming the Principal Registrar. Julie was a brave and innovative leader and is a hard act to follow. Even though she has left the workplace, we remain great friends. We worked together for many years, so no doubt some aspects of my leadership style will reflect Julie’s, but I can see the influence of several past leaders and mentors. My Dad is probably my greatest role model. He recently passed away and as I sit here, I reflect on what a great humanitarian he was. He taught me to work hard, be fair, be compassionate and strive for the greater good.

Douglas

Are there different issues to be addressed across the three courts you administer?

O’Brien

Many issues are similar across any court but yes, each Court has nuances that need to be considered, both day to day and in the long term. I’m fortunate to have very supportive Heads of Jurisdiction and a very talented team around me.

Douglas

Are challenges spawned for court administration by dint of Queensland’s decentralised character?

O’Brien

Most definitely. My core role is to deliver high quality Supreme, District and Land Courts’ registry services across the State. What works well in QEII in Brisbane may not necessarily work as well in Cairns or Roma. There’s a great challenge in ensuring the same level of service is delivered, regardless of location, and every change to registry process is always approached from ‘how would this work in a regional location’. But over the last several years, we’ve worked hard to develop ways to meet these challenges. For example, with our jury services, we have a dedicated team in Brisbane that supports our regional colleagues. Each regional location maintains their own discretion, but Brisbane is there to assist. It promotes consistency and supports our regional colleagues, some in small and remote registries. This type of model is made easier as we roll out more contemporary case management systems.

Douglas

You were at “ground zero” during court restrictions caused by the Covid epidemic. Did that experience ultimately enhance efficient and effective registry practice?

O’Brien

As your members would be aware, running courts each day is a major logistical exercise with many, many critical parts and people. When it all stops, it does make you look at existing processes. We needed to quickly deconstruct and redesign processes we’d been following for years. Technology certainly generates a lot of innovation. It’s an excuse to think outside of the box. We worked with the Judges to develop a COVID safe jury trial and the registry implemented very simple innovations, such as the ‘drop box’ way of filing documents. We also developed an electronic way of filing Applications for Probate. It was a little clunky, but the uptake was amazing. Learnings from these days are still being applied and again, our Heads of Jurisdiction are always part of these discussions. I am very grateful to registry staff who each remained so committed through that difficult time. They came to the registry each day to perform the work they knew was so important to the people of Queensland. It was the great unknown for all of us, but looking back, I can say I am proud that our services kept being delivered, despite the challenges we faced.

Douglas

What are the principal issues on the agenda in transformative change in registry operation and performance?

O’Brien

I think for my tenure as Principal Registrar, the main area of transformation is going from paper to digital. The transition has well and truly started, but there’s still a lot of work to do. It’s not as simple as an IT person building a system. There is so much work in ensuring the registry is ready – that’s our processes, our staff’s capability, meeting the needs of courts users, both the profession and self-represented people, and ensuring ‘digitisation’ doesn’t inadvertently leave some members of our community unable to access our services.

Douglas

I note that electronic filing has been introduced in the conduct of succession causes. What timeframe is envisaged for electronic filing in other litigious spaces?

O’Brien

Between now and mid-2026, we will be developing an electronic civil case management system. Early systems, such as the Wills and Estates System, allow us to validate and refine our business process. Going from an entirely paper based way of doing business to electronic, is a fundamental change to how we operate and interact with our judiciary and court users.

Douglas

You lead close to 300 full-time equivalent staff. Do you encounter difficulty in retaining staff to deploy in service provision?

O’Brien

We’re probably not alone in the ongoing challenge to retain staff. When I first started in courts, it was a job for life, but the world has changed. We know that people are now more inclined to have multiple careers due to a variety of factors including the desire to explore different industries and to improve work-life balance. It’s the reality of our modern workforce. A few years ago, we developed a model of professionalism which is premised on the fact that, by working in courts, you develop a wealth of knowledge or expertise in registry operations. It was stating the obvious, but often we need that stated to better appreciate the importance of the work we do. I see registry staff demonstrate their commitment to professionalism each day. They know their work is important in delivering justice services to the people of Queensland.

Douglas

You are a long qualified solicitor, as are a number of your registry staff. Which registry service roles are assisted or informed by legal qualification and experience, and why is that so?

O’Brien

Certainly, in the Principal Registrar role, having a legal qualification is a huge assistance to me, as is my court experience. The registry landscape was always highly regulated, but over the last several years, the services delivered by registry have evolved and require additional skills and experience. One of the more recent evolutions in service delivery was the introduction of Resolution Registrars. Currently there is one in Supreme Court civil and one in Supreme Court criminal. Both roles involve regular dealings with parties, legal representatives, and judiciary. I think to be effective, the services must be delivered by someone with the relevant professional background. This gives the role the standing and gravitas to work with the parties and achieve results. There are many legally qualified registry staff who continue to make registry and courts administration their career. It’s hoped that most of these very talented individuals will stay with us and be the leaders of the future.

Douglas

Are there any registry service attributes adopted interstate, or overseas, which are worthy of consideration for introduction in Queensland?

O’Brien

Over the years, we’ve visited the courts of other Australian jurisdictions to share learnings and identify opportunities. Most if not all jurisdictions have embraced electronic management of court documents and fortunately, we’re on that journey. Digitisation remains the key to unlocking so many benefits for our court users, staff and judiciary. Certainly for the next few years, the transition to digitisation will remain my focus.

Douglas

The Queen Elizabeth II Law Courts Complex in Brisbane is only 13 years old, but other principal registries in regional Queensland were built 30 to 40 years ago. Do their “as built” attributes present any challenges to future registry performance or transformation?

O’Brien

Many of these buildings are simply beautiful, rich in history and built in a style of a bygone era. But there is no doubt that many regional courthouses present challenges with delivering contemporary court services. The obvious challenge is installing technology. You can’t just lift up a floor panel to lay cabling for technology and you can’t just knock a wall down to make a courtroom larger. We are fortunate that over the years our very clever Courts IT and Department of Justice infrastructure teams have developed and delivered some impressive outcomes which have contributed to delivering contemporary practices in areas including supporting remote appearances and taking evidence of vulnerable witness.

Douglas

How do you envisage the Supreme, District and Land Court registries operating in 2050?

O’Brien

So much has happened over the last 25 years, both in courts and generally. I’d fully expect that paper will go the way of the cassette tape or Beta video. I’d see our systems and processes being far more integrated and our staff having entirely different capabilities. But I don’t see advances in technology removing the importance of having registry staff as a critical part of the business. Every matter coming before the court impacts people. We will always need dedicated, impartial, trauma informed registry professionals delivering services to court users.

Douglas

How can the practising profession – in particular barristers – better assist the registries in discharging their role?

O’Brien

I’m pleased to say that our registry staff consistently receive strong support from your members. We all operate in a fast-paced and sometimes hectic environment. As we transition to digital processes, we kindly ask for your members’ patience and collaboration as we adapt to these new ways of working. This journey requires some understanding as we navigate the challenges that come with such significant changes. However, based on my many years of experience, I can confidently say that your members have always been supportive of the registry. The partnership we share is truly unique and I’m sure our good relationships will continue.

Douglas

What are your recreational interests outside your busy work schedule?

O’Brien

My family and friends are my world outside of work and I love to feed them. Some find it stressful, but I really enjoy the ritual of preparation. Mirepoix* is my meditation. I am also quite good at growing orchids but I am not sure whether that is luck or talent.

Douglas

Thank you for speaking with Hearsay.

O’Brien

It’s been a pleasure. Thank you.

*According to Wikipedia: mirepoix (/mɪərˈpwɑː/ meer-PWAH, French: [miʁ.pwa] ) is a mixture of diced vegetables cooked with fat (usually butter) for a long time on low heat without coloring or browning. The ingredients are not sautéed or otherwise hard-cooked, because the intention is to sweeten rather than caramelize them. Mirepoix is a long-standing part of French cuisine and is the flavor base for a wide variety of dishes, including stocks, soups, stews, and sauces.

In “Good Barristers; Bad Days”, PA Keane AC KC, in an address to Queensland Bar Practice Course, 28 May 2015, at 7, said:

One of the most misleading clichés which you will hear about advocacy is the phrase “Keep it simple, stupid.” The reason for having barristers at all is that it is not simple. The task is not to keep it simple; but to make it simple. And that is hard.

Michael McHugh QC, himself one of the legends of the Australian Bar, has observed that the secret of Sir Garfield Barwick’s success as Australia’s pre-eminent advocate lay in his ability to simplify what was complex and to illustrate an abstract proposition with a concrete example. This is the quintessential skill of oral argument.

The skills of refinement, simplification and synthesis that we value most highly in our advocates have been developed over the course of a millennium in oral argument in court or in mooting in the Inns of Court, rather than in the marshalling of citations from academic treatises. That is no less true today than it was in the time of Edward I.

But the exercise of these skills is harder for barristers today than ever before because our confident and rights-conscious fellow citizens who will be your clients, and the commercially savvy solicitors who will be briefing you, will often bring moral and economic pressure to bear on you to pursue every possible point regardless of your view of its merits or lack thereof. It is part of your job, perhaps the hardest part, to counsel your clients and your solicitors against what will appear to the court to be a wasteful self-indulgence. You will need to be brave. You might lose the support of some solicitors as a result, but you will, in the long run, be, and be seen to be, a better barrister for it. The courts will be better for it too. And you will impress the judges and others.

(emphasis added)

12 McHugh, “The Rise (and Fall?) of the Barrister Class” in Gleeson and Higgins (eds), Rediscovering Rhetoric: Law, Language and the Practice of Persuasion, (2008) 165 at 189.

Emma Coulter is a visual artist, living and working in greater Melbourne. Born in Northern Ireland, Emma grew up in Brisbane, Queensland (mostly), until she relocated to Melbourne in her late twenties.

Practising as a visual artist for over twenty years, Emma also has a background working in interior architecture. One of the key projects she led was the design for a 14000m2 office fit out for Allens Law firm, at 101 Collins Street in central Melbourne.

Having studied straight from school, both a Bachelor of Visual Arts, and a Bachelor of Built Environment at QUT, Emma worked for many years in both fields, before making the leap of faith in 2014 to quit her serious day job, and undertake a Masters at the Victorian College of the Arts in Melbourne. It was during this time that her painting practice, and deep knowledge in architecture and space collided to create a new ongoing series of site-specific works, named, ‘spatial deconstructions’. Painted in situ, these works took the elements of each space as a canvas for a painting. It was during this time that she started to refine her colour palette, creating a series of colours, that could be taken across painting, installation and sculpture.

spatial deconstruction #23 (resilience), 2021 to 2023 – CITY SQUARE, Melbourne, Australia

Since then, Emma has created over 30 site-specific installations, including 10 major public art commissions. Significant public art projects include, Yarrila Place, Coffs Harbour, (2023); Shepparton Art Museum, (2023); City Square, Melbourne (2021); Footscray Community Arts Centre, Melbourne (2021), QUT Art Museum, Brisbane (2021) and William Jolly Bridge (2020).

In 2019, Emma was invited to make a site-specific work at the Museum of Brisbane, for a retrospective exhibition, titled, ‘NEW WOMAN’, a centenary exhibition celebrating the work of ‘ground-breaking female artists’, of a Brisbane origin. Through the process of being included with a major commission in this exhibition, (her work filled an entire room in the museum, which at the time was the largest work she had ever made), she was then invited to create the work for the William Jolly Bridge by the curatorial team at the Brisbane City Council.

spatial deconstruction #21 (portals), 2019 to 2020 – Commissioned for ‘New Woman’ at Museum of Brisbane, Brisbane, Australia.

multichromatic synaesthesia, on the William Jolly Bridge, celebrates the movement of the city, and the river, whilst deconstructing the unique form of this civic heritage structure, during night fall, and the shared non-hierarchical public space of the William Jolly Bridge. Utilising a study for a painting, and her serial colour palette, and the tools of light projection, the bridge was transformed into an ephemeral site-specific light intervention.

For around ten years, from 2010 to 2020, the Brisbane City Council ran an initiative to highlight the historical and iconic structure of the William Jolly Bridge, by transforming it into a large-scale temporary public artwork celebrating artists and cultural events around the city.

The William Jolly Bridge projection was one of Emma’s first (paid for) public art commissions. Through the transformation of the bridge, as a canvas for Emma’s work, at this great scale, she was able to break into the public art realm to be shortlisted for more commissions. The breakthrough work demonstrated the potential for Emma’s work to transform public spaces into multichromatic interventions, celebrating, colour, light and space.

In 2020, Emma was shortlisted and won the commission to transform a building occupying a whole city block in central Melbourne, whilst the construction for the new Metro tunnel stations were under way. The following year she was also awarded a competition to create a new work on Footscray Community Art Centre’s façade, as part of the Footscray Art Prize. Other additions to the urban environment, include an enormous multi sided artwork on a construction site in South Melbourne, a public mural in Malvern East, a streetscape intervention on Richmond Town Hall’s facade, a public facing window intervention at QUT Art Museum, as well as a spatial deconstruction work in Burnett Lane, Brisbane CBD.

In 2023, Emma completed her first integrated, site-specific, light and sculpture commission, ‘let them feel the light’, at Yarrila Place, Coffs Harbour’s new civic and cultural centre, in NSW. Being shortlisted through national callout, Emma was awarded the commission through her winning concept design proposal. Emma worked on the development of this project for over two years.

Existing at the heart of the building, the work traverses the light filled atrium space, dispersing colour and illumination, in acknowledgement of the meaning of Yarrila, whilst also drawing inspiration from Coffs Harbour’s geographic coastal location. Through her voice as an artist these ideas intersect with concepts of memory, time and feeling to culminate into a unique site-specific work. It is her most significant public art work to date.

let them feel the light, Emma Coulter, 2023 – Yarrila Place, Coffs Harbour Cultural Centre, Gumbaynggirr country, New South Wales

When she is not working on big public art projects, you can find Emma in her studio working on smaller scale paintings and sculptures. Alongside her larger scale public works, she regularly exhibits work in both solo exhibitions and invited group shows. Her work is held in the permanent collections of Artbank, the City of Melbourne, QUT Art Museum, the Australia and New Zealand Banking Group, St John of God Healthcare, and private collections here and overseas.

Emma’s works have also been exhibited internationally, in both Germany and New York.

Emma is currently working on her next solo exhibition, SUPERIMPOSITION, which will run from 3 – 24 May, at James Makin Gallery in Melbourne.

If you are interested in finding out more about Emma Coulter, you can view her website at www.emmacoulter.com.au or contact her gallery at info@jamesmakingallery.com

Following the inauguration of Donald J. Trump for his second term as President of the United States (“POTUS”), we have heard a great deal about “Executive Orders” issued from the White House. One is left with the impression that Mr Trump spent his first week in office doing little more than signing a veritable avalanche of these instruments. But what is an “Executive Order”? Is it a law? Does it have any legal effect? Is it open to challenge?

The answer to these questions is more complex than might at first sight appear, simply because there are different types of Executive Orders, exercising (or purporting to exercise) different (supposed) powers, those powers having different (putative) sources.

An Executive Order has been defined as “a signed, written, and published directive from the President of the United States that manages operations of the federal government”.[1] It is the most formal of the three types of instruments commonly issued with presidential authority, the others being “Proclamations” (generally containing decisions or decrees with respect to holidays, commemorations, federal observances, and trade), and “Administrative Orders” (which may take the form of memoranda, notices, or correspondence, requiring that the addressee act, or refrain from acting, in a specified way).[2] All such instruments are published in the Federal Register – the equivalent of what is known as the Government Gazette in other parts of the Anglosphere – and both Executive Orders and Proclamations (but not Administrative Orders) are numbered consecutively.[3]

The nearest equivalent to an Executive Order, in most Commonwealth countries which have retained the basic features of the Westminster system of government, is an Order in Council – that is, an order issued in the King’s name, by the monarch or his viceregal representative, on the advice of the executive government.

Is an Executive Order a Law?

This question continues to be vigorously debated in the US, although the debate is apt to generate more heat than light. One camp vociferously maintains that Executive Orders cannot be considered laws because, in accordance with the constitutional division of powers, only the legislative branch (i.e., Congress), not the executive branch (i.e., the presidency), can make laws. The other camp insists, with equal passion, that if something looks like a law, tastes like a law and smells like a law, it is a law. In truth, this debate is semantic rather than substantive.

On the one hand, some Executive Orders plainly are laws, albeit in the nature of subordinate (i.e., delegated or secondary) legislation. In Commonwealth jurisdictions, subordinate legislative instruments promulgated by the executive government are usually called “regulations”, but in the US this term is generally reserved for regulations issued by a department or agency of the government. If an Act of Congress empowers POTUS to issue directives “with the force of law”, this generally takes the form of an Executive Order.

There are even some Executive Orders which have the effect of laws, although issued without congressional authority. The starkest examples occur when POTUS is exercising his authority, under section 1 in Article II of the US Constitution, as:

Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States

Hence, in Hamdi v. Rumsfeld,[4] the US Supreme Court (“SCOTUS”) held that the detention of (so-called) “enemy combatants”, captured in Afghanistan, “for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the ‘necessary and appropriate force’” which POTUS, as commander-in-chief, is empowered to authorise.

Perhaps the most famous example of an Executive Order issued by a US President in the exercise of his powers as “Commander in Chief of the Army and Navy of the United States” was the (so-called) “Emancipation Proclamation” issued by President Abraham Lincoln during the American Civil War on 1 January 1863 (although styled and commonly referred to as a “proclamation”, it was actually an Executive Order). This had two operative effects: first, to provide that, when slaves escaped – either by fleeing to Union lines or through the advance of Federal troops – they became “then, thenceforward, and forever free”; and secondly, to allow such slaves to “be received into the armed service of the United States”. It also required the executive branch, including the Army and Navy, to “recognize and maintain the freedom of said persons”.

This immediately released from bondage an estimated 3.5 million of the estimated 4.0 million African-American slaves. Although not immediately effective in all parts of the Union, it became an important step towards ending slavery, and presaged the adoption of the Thirteenth Amendment, which made slavery and involuntary servitude unconstitutional “except as a punishment for a crime”. Perhaps surprisingly, the Emancipation Proclamation never became the subject of a judicial challenge, although entirely incompatible with SCOTUS’s infamous decision in Dred Scott v. Sandford;[5] a decision which the future chief justice, Charles Evans Hughes, called the Court’s “greatest self-inflicted wound”,[6] and which has been described as standing “first in any list of the worst Supreme Court decisions”.[7]

However, there are also a great many Executive Orders – perhaps the majority of them – which do no more than exercise, or give effect to, existing laws. These may be laws existing within the Constitution, created by Acts of Congress or subordinate legislation authorised by Acts of Congress, or the Common Law. Again, the starkest examples occur when POTUS exercises his power to give directions to officers of the civil service, or to remove them from office. As Chief Justice Taft – himself a former US President – said in Myers v. United States (speaking for the whole of SCOTUS):[8]

The vesting of the executive power in the President was essentially a grant of the power to execute the laws. But the President, alone and unaided, could not execute the laws. He must execute them by the assistance of subordinates. This view has since been repeatedly affirmed by this Court. …

As he is charged specifically to take care that they be faithfully executed, the reasonable implication, even in the absence of express words, was that, as part of his executive power, he should select those who were to act for him under his direction in the execution of the laws. The further implication must be, in the absence of any express limitation respecting removals, that, as his selection of administrative officers is essential to the execution of the laws by him, so must be his power of removing those for whom he cannot continue to be responsible. It was urged that the natural meaning of the term “executive power” granted the President included the appointment and removal of executive subordinates. If such appointments and removals were not an exercise of the executive power, what were they? They certainly were not the exercise of legislative or judicial power in government as usually understood.

… In the British system, the Crown, which was the executive, had the power of appointment and removal of executive officers, and it was natural, therefore, for those who framed our Constitution to regard the words “executive power” as including both. Unlike the power of conquest of the British Crown, considered and rejected as a precedent for us …, the association of removal with appointment of executive officers is not incompatible with our republican form of Government.

Do Executive Orders have Legal Effect?

Whether an Executive Order is or is not a law is a rather barren question. The critical issue – at least in any jurisdiction with a written constitution, where the exercise of legislative or executive power is vulnerable to challenge before an independent judiciary – is whether the Executive Order has legal effect: that is, whether it will be upheld, and (where necessary) enforced, by the courts.

Typically, this calls for three enquiries: first, whether the power to make such a directive is vested in the person or body who made it; secondly, whether the directive infringes any legal constraint on that power; and thirdly, whether the manner in which the power was exercised contravenes any mandatory procedures.

I. Sources of Power

In order to answer the first enquiry – whether POTUS has the power to make such a directive – it is necessary to identify a positive source of that power. Generally speaking there are only two possible sources recognised under US law: “The President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself” (per Black J., delivering the opinion of the Court, in Youngstown Sheet & Tube Co. v. Sawyer)[9]. Very occasionally, there may be a third possible source – a rule or regulation (however described) issued by a department or agency of the government – but this, in turn, depends on the existence of a congressionally delegated power to make subordinate legislation, and a valid exercise of that power.

However, whilst the power must in all cases be traced back to a constitutional or legislative source, the grant of power need not be express, and in most instance it is not. As we have already seen, the power may be implicit in the position of POTUS as “Commander in Chief”; as the person in whom the Constitution vests “Executive power”; and as the person upon whom the Constitution places responsibility to “take care that the Laws be faithfully executed”.

Historically, SCOTUS has taken an expansive approach regarding the implied executive powers of POTUS. In Myers v. United States,[10] the Court reached the (perhaps surprising) conclusion that, while the President’s power to appoint senior officials is qualified by a requirement for “the Advice and Consent of the Senate”, the power to dismiss such officials is not subject to any such restriction.

Likewise, in Seila Law LLC v. Consumer Financial Protection Bureau,[11] Roberts CJ (delivering the opinion of the Court) said:

Under our Constitution, the “executive Power” – all of it – is “vested in a President,” who must “take Care that the Laws be faithfully executed.” … Because no single person could fulfill that responsibility alone, the Framers expected that the President would rely on subordinate officers for assistance. Ten years ago, in Free Enterprise Fund v. Public Company Accounting Oversight Bd.,[12] we reiterated that, “as a general matter,” the Constitution gives the President “the authority to remove those who assist him in carrying out his duties,”… . “Without such power, the President could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else.”

The President’s power to remove – and thus supervise – those who wield executive power on his behalf follows from the text of Article II, was settled by the First Congress, and was confirmed in the landmark decision Myers v. United States … .

We therefore hold that the structure of the CFPB violates the separation of powers. We go on to hold that the CFPB Director’s removal protection is severable from the other statutory provisions bearing on the CFPB’s authority. The agency may therefore continue to operate, but its Director, in light of our decision, must be removable by the President at will.

The same conclusions arguably apply to POTUS’s powers in relation to treaties with foreign nations, as the Constitution requires the approval of a two-thirds majority in the Senate for POTUS to make a treaty, but is silent as to the process for withdrawing. In Goldwater v. Carter,[13] SCOTUS declined to adjudicate on the validity of President Carter’s withdrawal from a treaty with the Republic of China (i.e., Taiwan) despite the absence of Senate approval.

II. Restrictions on Power

As to the second enquiry – whether an Executive Order infringes any legal constraint – the most significant constraints are those contained in the Constitution itself, and especially the (so-called) Bill of Rights, an expression which strictly refers only to Amendments One to Ten, but is loosely applied to include some later amendments which also operate to protect individual rights and liberties.

An example is the Fourteenth Amendment, clause 1 of which relevantly provides:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

This first sentence establishes what has become known as “birthright citizenship”. It has always been accepted that this does not, indeed cannot, apply to everyone whose nascence happens to take place on US soil: for instance, children of foreign diplomats stationed in the US, children of prisoners of war interned in the US, or children of enemy combatants occupying US territory. But the full implications of the qualifying words, “and subject to the jurisdiction thereof”, have never been explored.

President Trump’s Executive Order 14160, entitled Protecting the Meaning and Value of American Citizenship and signed on 20 January 2025, seeks to exploit this ‘loophole’ in two specific circumstances: where a person born more than 30 days after promulgation of the Executive Order is not the natural child of a father who is a US citizen or a lawful permanent resident, and the mother was present in the US at the time of birth either:

In each instance, the intention of the Executive Order is to place such children outside the purview of Amendment XIV, clause 1.

This provocation has been taken up by the attorneys-general of (at last count)[14] some 24 states, as well as the American Civil Liberties Union, the Asian Law Caucus, and various other immigrant and asylum-seeker rights groups.[15] On 23 January, Judge John C. Coughenour of the United States District Court for the Western District of [the State of] Washington granted an injunction temporarily restraining enforcement of the Executive Order, describing it as “blatantly unconstitutional”.

Executive Orders may also be challenged for infringing Acts of Congress. But, in this context, a subtle yet fundamental distinction must be drawn. If the power exercised by POTUS is a power granted by Act of Congress, then the power can only be lawfully exercised according to relevant statute. If, however, the power is one granted to POTUS directly by the Constitution – including POTUS’s implicit powers as “Commander in Chief”, as repository of “Executive power”, or based on POTUS’s responsibility to “take care that the Laws be faithfully executed” – Congress is unable to cut down those powers or detract from their untrammelled exercise.

For instance, President Trump’s Executive Order 14168, entitled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government” and signed on 20 January 2025, has been challenged by a transgendered prison inmate, not only as violating the “due process clause” (Fifth and Fourteenth Amendments), discriminating against transgender individuals on the basis of sex and gender identity (Fifth Amendment), and contravening the protection against “cruel and unusual punishments” (Eighth Amendment), but also as being inconsistent with the Rehabilitation Act of 1973 and the Administrative Procedures Act of 1946.[16] To the extent that the Executive Order constitutes an exercise of POTUS’s inherent constitutional powers, it is doubtful whether the challenge for inconsistency with the Rehabilitation Act or the Administrative Procedures Act is sustainable, although the challenge may have greater force to the extent that it concerns the exercise of a statutory power to relocate inmates or change the circumstances of their incarceration.

III. Proper Exercise of Power

As in other Common Law jurisdictions, the US has an extensive jurisprudence regarding the proper exercise of administrative decision-making powers. Viable grounds for challenge are not unlike those which exist elsewhere: for instance, failure to apply a mandatory process for exercise of the power, exercise of the power in bad faith or for an improper purpose, failure to take into account relevant considerations, taking into account irrelevant considerations, exercising the power according to a preconceived policy or without considering the merits of the case at hand, exercising the power otherwise than in accordance with natural justice, or exercising the power irrationally (that is, so unreasonably that no reasonable decision-maker could have reached the same conclusion).[17]

However, this jurisprudence is limited – almost exclusively – to administrative decisions made by governmental departments or agencies, and not to Executive Orders and other decisions made at a presidential level. There are, broadly, two reasons for this.

First, the Constitution’s vesting of powers in POTUS is largely unfettered. With a few very specific exceptions – such as the need to obtain Senate “Advice and Consent” for high-level appointments, and two-thirds Senate approval for entering into treaties – there are no mandated Constitutional procedures for the exercise of POTUS’s powers. As the nation’s elected chief executive, POTUS is answerable only to the electorate – not to the judicial branch of government – for his good faith (or lack thereof), the propriety of his purposes, the relevance of his considerations, the application of his policies, and ultimately the reasonableness (even rationality) of his decisions as chief executive.

Secondly, as discussed above, when it comes to the exercise of POTUS’s express and implied administrative powers, Congress is unable to cut them down or detract from their untrammelled exercise.

If Congress has conferred on POTUS a specific power – for example, the power:

– then any statutory constraints on the exercise of that power must be respected. If (to take a purely hypothetical instance) the power to designate a “Foreign Terrorist Organization” could only be exercised by POTUS on the recommendation of the State Department, then such an Executive Order would be a nullity if no such recommendation had been received.

Beyond this, however, there are only very limited circumstances in which an Executive Order can be challenged for inconsistency with an Act of Congress, unless the Executive Order goes so far as to authorise (or require) conduct which would be per se illegal.

Finally – but perhaps most importantly – one power which POTUS clearly lacks is the power to expend public funds without the authority of Congressional appropriation. In most situations, this is (at most) a negative restraint. Generally speaking, an appropriation makes available to POTUS funds which he may expend for a particular purpose. It does not follow that POTUS must incur such expenditure, provided that the funds are not applied for any other purpose. Indeed, it is an open question whether legislation which purports to require (rather than merely permit) the expenditure of funds by the executive would be struck-down as infringing the separation between legislative and executive powers.

Are President Trump’s Executive Orders Vulnerable to Challenge?

A. Birthright Citizenship and Gender Diversity

As mentioned above, at least two of President Trumps Executive Orders of 20 January 2025 – Executive Order 14160 (entitled Protecting the Meaning and Value of American Citizenship) and Executive Order 14168 (entitled Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government) – have already been challenged. Both are the subject of temporary judicial restraints, although this may simply reflect the ease with which it is possible, in the US, to find federal district judges who are partisan to one side of politics or the other. Neither case is likely to end anywhere short of SCOTUS.

B. Use of the Military against Illegal Immigrants

It has been suggested that the Proclamation of 20 January 2025 entitled Declaring a National Emergency at the Southern Border of the United States – relied upon to justify the engagement of military troops and resources in the detention and deportation of illegal immigrants – contravenes any number of Acts of Congress, from the Posse Comitatus Act of 1878 to the Endangered Species Act of 1973, and also lacks the support of Congressional appropriation for the necessary expenditure.[23] Attempts to characterise the influx of illegal immigrants as an “invasion” have also been criticised as a transparently cynical attempt to recategorise a problem of domestic law enforcement as a threat to national security, so as to invoke the powers of POTUS as “Commander in Chief”.[24] This may well call into question the extent to which Congress has the power to regulate the exercise of POTUS’s executive authority, whether acting under constitutional or congressional authority or a combination of both.

C. Withdrawal from Treaties

President Trump’s decisions to withdraw the US from the World Health Organization[25] and the Paris Climate Accords[26] may again raise the question, unresolved in Goldwater v. Carter,[27] whether two-thirds Senate approval is required to withdraw from (rather than enter into) international treaties. But it appears that, at least in this instance, the Trump Administration may be in the clear.

The Paris Climate Accords contain provisions enabling State parties to give notice of their accession or admission, and also notice of withdrawal,[28] with the result that a State party may withdraw merely by giving notice.[29] The Constitution of the World Health Organization contains no express provision regarding withdrawal, but, by the same token, contains no provision requiring that a State party which has acceded or been admitted is obliged to remain a member.[30] It would seem to follow that, in each instance, withdrawal is an issue falling entirely within the remit of POTUS pursuant to the Constitution’s vesting of “Executive power”.

In any event, despite the Constitution’s unambiguous requirement for two-thirds Senate approval when POTUS “makes Treaties”(Article II, section 2), it was found – virtually from the time of federation – that this requirement is utterly impracticable, as being entirely inconsistent with the way that treaties always had been (and have continued to be) made. Especially at a time before technology facilitated instant international communications, and when transoceanic travel by sailing ship took weeks, it would have been impossible for POTUS to “makes Treaties” if two-thirds Senate approval was required before a treaty was signed.

Accordingly, the practice has grown up for representatives of the executive branch (sometimes POTUS himself, but more often the Secretary of State or an Ambassador) to sign treaties, and then to seek Senate approval afterwards. Most famously, President Woodrow Wilson – a Democrat – signed both the Treaty of Versailles and the Covenant of the League of Nations at the Paris Peace Conference of 1919-20, but was unable to secure approval from the Republican-controlled Senate, let alone the requisite two-thirds majority approval. It is now widely understood that (at least for the purposes of domestic law[31]) a treaty signed by an appropriate representative of the US, but not ratified by the Senate, merely reflects the present intentions of the current US administration, and is not binding on the United States as a polity.[32]

D. Department of Government Efficiency (DOGE)

Executive Order 14158, of 20 January 2025, entitled Establishing and Implementing the President’s “Department of Government Efficiency”, has been challenged as contravening the Federal Advisory Committee Act of 1972.[33] This statute requires that “any committee, board, commission, council, conference, panel, task force, or other similar group” which gives “advice or recommendations” to POTUS must comprise a balance of opinions, conduct public meetings, and be open to public scrutiny.

However, the loser in this case is likely to be the 1972 Act, rather than the 2025 Executive Order, as the former infringes upon “long-recognized presidential powers” reserved to POTUS under the Constitution, and “violates separation of powers by limiting the terms on which the President can acquire information from nongovernmental advisory committees”.[34]

E. “Schedule F”

Executive Order 14171, of 20 January 2025, entitled Restoring Accountability to Policy-Influencing Positions Within the United States Federal Workforce, seeks to reinstate a particular job classification for federal civil servants in permanent policy-related positions. This classification was first implemented under the 2017-2021 Trump administration, when it was known as “Schedule F”, and was abrogated under the 2021-2025 Biden administration. As reinstated, substantially the same classification is now designated as “Schedule Policy/Career”.

Since the Civil Service Reform Act of 1978, US law has exempted from most civil service protections any federal employee “whose position has been determined to be of a confidential, policy-determining, policy-making or policy-advocating character”. However, until the first Trump administration, this has been practically a ‘dead letter’, as no civil service positions had been “determined” to be of the relevant character.

The intent of Schedule F was (ostensibly) to increase flexibility in the hiring and firing of policy advisers, and thereby improve performance management and accountability, as such employees:

It remains the case that such employees enjoy statutory protection on the grounds of whistleblower status or partisan (political) affiliation, or as a complainant in respect of discrimination or harassment. However, the 2025 iteration – whilst stating that appointees “are not required to personally or politically support the current President or the policies of the current administration” – also adds failure faithfully to implement administration policies as a ground for dismissal.

The 2025 Executive Order has been challenged in the Federal District Court for the District of Columbia by the National Treasury Employees Union, principally on the ground that it is inconsistent with the legislation which it purports to invoke. In separate proceedings in the Federal District Court for the District of Columbia, it is challenged by the American Federation of Government Employees and the American Federation of State, County, and Municipal Employees on the ground that it was issued without complying with the “notice-and-comment” requirements of the Administrative Procedures Act of 1946. A third challenge, brought by Public Employees for Environmental Responsibility in the Federal District Court for the District of Maryland, seeks to argue both grounds.

F. Transgendered Military Personnel

Executive Order 14183 of 27 January 2025, entitled Prioritizing Military Excellence and Readiness, purported to reinforce military standards related to physical and mental fitness, unit cohesion, and mission effectiveness. Its provisions:

This has been challenged by a group of active duty transgender service members and prospective or current enlistees,[35] who argue that the explicit exclusion of this class of individuals from military service violates equal protection under the Fifth and Fourteenth Amendments’ “due process” clauses, in that the policy is arbitrary and lacks a legitimate government interest.

Disclaimer

Insofar as this article identifies a number of Executive Orders which have recently been promulgated, and some which have been the subject of judicial challenge, it is conceivable (although, one hopes, unlikely) that some readers may imagine that they discern indications of either the writer’s approval or his disapprobation of particular measures. Nothing could be further from the writer’s intention.

Rather, the writer seeks to emulate Sir Owen Dixon’s memorable observation, in respect of the High Court of Australia, that:[36]

Federalism means a demarcation of powers and this casts upon the court a responsibility of deciding whether legislation is within the boundaries of allotted powers. Unfortunately that responsibility is very widely misunderstood[;] misunderstood, largely by the popular use and misuse of terms which are not applicable, and it is not sufficiently recognised that the court’s sole function is to interpret a constitutional description of power or restraint upon power and say whether a given measure falls on one side of a line consequently drawn or on the other, and that it has nothing to do with the merits or demerits of the measure.

Such a function has led us all I think to believe that close adherence to legal reasoning is the only way to maintain the confidence of all parties in Federal conflicts. It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else. There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism.

Disappointingly, it is unlikely that a Dixonian “strict and complete legalism” – without regard to perceptions of “the merits or demerits of the measure” – will be the defining features of any decision by SCOTUS regarding President Trump’s Executive Orders.

[1] “What is an Executive Order?”, Insights on Law and Society, vol. 17, no. 1, American Bar Association, Fall 2016.

[2] ibid.

[3] ibid.

[4] 542 U. S. 507 (2004); see also Boumediene v. Bush, 553 U.S. 723 (2008)

[5] 60 U.S. 393 (1857)

[6] Bernard Schwartz, A Book of Legal Lists: The Best and Worst in American Law, Oxford University Press (1997) at p. 70

[7] ibid., loc.cit.

[8] 272 U.S. 52 (1926)

[9] 343 U.S. 579 (1952)

[10] 272 U.S. 52 (1926)

[11] 591 U.S. 197 (2020)

[12] 561 U. S. 477 (2010)

[13] 444 U.S. 996 (1979)

[14] For present purposes, “last count” may be understood as having occurred on 30 January 2025, when this article was initially prepared. Doubtless the number of judicial challenges will have increased significantly by the time of publication.

[15] A current list of such challenges may be found at: https://www.justsecurity.org/107087/tracker-legal-challenges-trump-administration-actions

[16] Moe v. Trump, in the Federal District Court for the District of Massachusetts

[17] what was traditionally termed “Wednesbury unreasonableness” in Anglo-Australian jurisprudence, by reference to the landmark decision in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation, [1948] 1 KB 223

[18] see Executive Order 14156 of 20 January 2025 (entitled “Declaring a National Energy Emergency”)

[19] see Executive Order 14157 of 20 January 2025 (entitled “Designating Cartels And Other Organizations As Foreign Terrorist Organizations And Specially Designated Global Terrorists”); Executive Order 14175 of 22 January 2025 (entitled “Designation Of Ansar Allah as a Foreign Terrorist Organization”)

[20] see Executive Order 14166 of 20 January 2025 (entitled “Application of Protecting Americans from Foreign Adversary Controlled Applications Act to TikTok”)

[21] see Executive Order 14176 of 23 January 2025 (entitled “Declassification of Records Concerning the Assassinations of President John F. Kennedy, Senator Robert F. Kennedy, and the Reverend Dr. Martin Luther King, Jr.”)

[22] see Proclamation of 20 January 2025 entitled “Declaring a National Emergency at the Southern Border of the United States”

[23] see Mark Nevitt, What Just Happened: Unpacking Exec Order on National Emergency at the Southern Border (21 January 2025), published by “Just Security”, based at the Reiss Center on Law and Security at New York University School of Law, available at: https://www.justsecurity.org/106593/national-emergency-southern-border-order/

[24] ibid.

[25] see Executive Order 14155 of 20 January 2025 (entitled “Withdrawing the United States from the World Health Organization”)

[26] see Executive Order 14162 of 20 January 2025 (entitled “Putting America First In International Environmental Agreements”)

[27] 444 U.S. 996 (1979)

[28] available at http://unfccc.int/resource/docs/2015/cop21/eng/l09r01.pdf

[29] Hence, the US acceded to the Paris Climate Accords with effect from 4 November 2016; on 4 August 2017, the first Trump administration gave notice of intention to withdraw; official notice of withdrawal was given on the earliest permissible date, 4 November 2019 (i.e., three years after the US first acceded); this withdrawal took effect 12 months later, on 4 November 2020; the Biden administration then applied for re-admission on 20 January 2021, and was readmitted 30 days later.

[30] available at https://apps.who.int/gb/bd/pdf/bd47/en/constitution-en.pdf

[31] The situation may be different under international law. According to the Vienna Convention on the Law of Treaties (Done at Vienna on 23 May 1969), a nation is bound by a treaty executed on its behalf by a Head of State, a Head of Government, or a Minister for Foreign Affairs, by the head of a diplomatic mission (for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited), or by a representative accredited by a State to an international conference or to an international organization or one of its organs (for the purpose of adopting the text of a treaty in that conference, organization or organ).

It follows that treaties executed on behalf of the United States may bind the polity in international law, although not binding under US domestic law. Although this may seem remarkable, it is not: for example, in Australia, the provisions of an international treaty or convention only become binding under domestic law if they are given force under an Act of Parliament, so there are many more treaties which bind Australia as a polity than there are treaties which have become part of domestic law.

[32] see Abigail L. Sia, Withdrawing from Congressional-Executive Agreements with the Advice and Consent of Congress, 89 Fordham Law Review 797 (2020)

[33] At least three challenges have been filed, each in the Federal District Court for the District of Columbia, by a variety of advocacy groups. The lead plaintiffs are, in one case, Public Citizen, Inc.; in a second case, Joshua Erlich and Jerald Lentini; and, in the third, American Public Health Association.

[34] Jay S. Bybee, Advising the President: Separation of Powers and the Federal Advisory Committee Act, 104 Yale Law Journal 51 (1994)

[35] Talbott v. Trump, Federal District Court for the District of Columbia

[36] Sir Owen Dixon, “Address upon taking the oath of office in Sydney as Chief Justice of the High Court of Australia on 21st April, 1952” in Woinarski J (ed.), Jesting Pilate and Other Papers and Addresses, Melbourne (1965), p.247; (1952) 85 C.L.R. xi at xiii-xiv

Introduction

John Jay is regarded as one of the Founding Fathers of the United States of America. There, he is well known as Statesman and first Chief Justice of the United States. In Australia, we know relatively little about him, compared to other American Statesmen and judges. John Jay did leave an enduring judicial legacy, including for Australian law. It is worth exploring that legacy in these pages.

Background

John Jay was born in Manhattan, New York City on 12 December 1745.[1] He was of French Huguenot and Dutch heritage. The son of a wealthy merchant, he grew up on the family farm in Rye, New York. He went to a grammar school at New Rochelle, where his  studies included French. From 1760 to 1764, he went to King’s (now Columbia) College and there received a classical education.  

Jay’s childhood home in Rye, New York

He determined on a career in law. To this end, he began by studying Grotius. Two weeks after graduating from College, he was apprenticed to barrister Benjamin Kissen.

In 1768 he was admitted to the New York Bar, and formed a partnership with Robert R Livingston Jr.[2] He built up a substantial and successful practice and became known for his brilliant oratory.[3]

In 1774, he was elected one of the New York delegates to the First Continental Congress in Philadelphia. In 1775 he was also a New York delegate to the Second Continental Congress, which body adopted the Articles of Confederation in 1777. He did not sign the Declaration of Independence of 4 July 1776 because he had also been appointed delegate of the New York Provincial Assembly in April of that year, which refused to allow him leave of absence to travel to Philadelphia. But he proposed the resolution at the New York Provincial Assembly that the Declaration of Independence be adopted by New York State.

John Jay played a pivotal role in drafting the New York Constitution, which was adopted by the New York Provincial Assembly in 1777.  He was immediately appointed Chief Justice of the Supreme Court of Judicature of New York established under the said New York Constitution, which was intended to continue, or replace, the Colonial Supreme Court which had been in existence since 1691. However, within British lines Judge Ludlow also continued to sit as judge of that latter body.

Minimal records have survived of his work as state Chief Justice.[4] Jay CJ’s work on that Court was interrupted when the New York legislature resolved that he be appointed to make representations to the Continental Congress on the settlement of a dispute between New York and the region which was to become Vermont. Shortly thereafter, he was appointed President of the Congress.

John Jay resigned as Chief Justice on 10 August 1779, thereby making himself available to serve in that and other capacities.

In 1779, he was appointed Minister to Spain, where he lobbied for diplomatic recognition and monetary support for the war. He occupied this role until 1782, when he was appointed Commissioner to treat with Great Britain to negotiate for peace. He spent several years in France and amongst other things played an integral role in the multi-party negotiations which led to the Treaty of Paris (1783), which officially ended the Revolutionary War. The treaty was well received at home.[5]

John Jay returned to New York City in 1784, and was appointed Secretary for Foreign Affairs.

John Jay was not a delegate to the Constitutional Convention which met in May 1787 in Philadelphia, because some voted against him on account of his known federalist views. But the drafters of the United States Constitution had before them John Jay’s New York Constitution. And he was a leading member of the New York Convention which ratified the United States Constitution in July 1788.

Further, between October 1787 and June 1788 a series of essays were written by Alexander Hamilton, James Madison and John Jay and published in New York newspapers, anonymously, under the pseudonym “Publius”. They advocated the federalist case. The essays were also collected and published in two volumes as the “Federalist”. There were eighty-five essays in all. Most were authored by Alexander Hamilton and James Madison. Mr Jay wrote five. He might have played a larger role in that regard but for an injury – a stone had been thrown at his head at a riot which Mr Jay was trying to quell.

It has been said that “The essays became, for supporters, a Federalist bible” and “Perhaps no other single document best speaks in detail to the intention of the framers behind many of the concepts underlying the federal constitution”.[6] 

As soon as he recovered from his injury, John Jay also published, anonymously, an “Address to the People of New York”, distributed in pamphlet form,[7] which advocated the Federalist case.

On 26 September 1789, President Washington appointed John Jay first Chief Justice of the United States, and he was confirmed, without objection, by the Senate.

In that role, he and Associate Justices also sat on federal Circuit Courts. The obligation of “riding circuit” was time consuming and burdensome. In those days travel was by horse drawn carriage, and Justices were required, since 1792, to rotate between Circuits, including Circuits that did not include their home States.[8] 

His judicial duties were interrupted by being called to serve as special envoy to Great Britain in 1794. He negotiated a treaty (commonly referred to since as the “Jay Treaty”) to settle issues remaining since the Treaty of Paris. The Treaty was ratified by the Senate in 1795. Despite that, it was not generally received well and, it is said, “very possibly” cost him the Presidency.[9]

The Jay Treaty

Mr Jay resigned as Chief Justice of the United States in 1795. He had been elected Governor of the State of New York. He was re-elected as Governor three years later. During his tenure, he played a pivotal role in the passage of an Emancipation Act in 1799 which law “set in motion the gradual ending of slavery within the state over a period of years”.[10] He did not stand in 1801 for a further term, and he retired from public life.

He declined an offer to nominate him for a second term as Chief Justice of the United States. John Marshall was nominated in his stead.[11]

Mr Jay died peacefully at Bedford, New York, on 17 May 1829, at the age of 83.

Jurist

In assessing the impact of Jay CJ as a jurist, it is not to be forgotten that his time as Chief Justice of the United States, like his time as New York Chief Justice, was interrupted by being called to serve in other ways including those mentioned above. That is not to say that his judicial output was insubstantial numerically – it was not.[12]  It is not intended in this paper, nor is it feasible, to conduct a wide-ranging survey of the decisions of Jay CJ, whether sitting in the state or federal Supreme Courts or on circuit. But there are nevertheless some opinions of his which should be singled out as having had a particular impact in Australia.

…some opinions of his [Jay CJ] which should be singled out as having had a particular impact in Australia.

War Pensions

In 1792, the United States Congress enacted the Invalid Pensions Act which provided for pensions for war veterans who were placed on an approved pension list.[13] The Act conferred a jurisdiction on the Circuit Courts to decide if applicants should be placed on that list, which decision was reviewable by the Secretary of War and Congress. 

On about 5 April 1792,[14] the Circuit Court for the District of New York, consisting of Jay CJ, Cushing J and Duane District Judge, unanimously agreed:[15]

“That by the constitution of the United States, the government thereof is divided into three distinct and independent branches, and that it is the duty of each to abstain from, and to oppose, encroachments on either. That neither the legislative nor the executive branches, can constitutionally assign to the judicial any duties, but such as are properly judicial, and to be performed in a judicial manner. That the duties assigned to the circuit, by this act, are not of that description, and that the act itself does not appear to contemplate them as such; inasmuch as it subjects the decisions of these courts, made pursuant to those duties, first to the consideration of and suspension of the secretary of war, and then to the revision of the legislature; whereas, by the constitution, neither the secretary of war, nor any other executive officer, nor even the legislature, are authorized to sit as a court of errors on the judicial acts or opinions of this court…”

They went on to consider whether they could act in persona designata.

Their Honours asked the Clerk of the Court to write to the President enclosing a copy of their observations, requesting that it be passed on to Congress. Subsequently, Jay CJ and Cushing J held the Circuit Courts for the Districts of Connecticut, Rhode Island and Vermont, together with the District Judges, and gave a similar opinion.

Thereafter, in April and June of 1792, Justices Wilson, Blair and Iredell et al made similar representations to the President, acting in the name of the Circuit Courts for the Districts of Pennsylvania and North Carolina, respectively.[16] Different views were expressed on whether the members of the Court could act in persona designata.

In August 1792, in Hayburn’s case, a motion came on before the Supreme Court of the United States for mandamus directed to the Circuit Court for the District of Pennsylvania compelling it to proceed in a certain petition for an invalid pension for William Hayburn. After hearing argument on the merits, the Court, Jay CJ presiding, adjourned the Court until the next term (February 1793). In the meantime, in February 1793 before the Court reconvened, Congress repealed and replaced the provisions considered unconstitutional, and otherwise provided for the relief of the pensioners.[17] No doubt the Court had given Congress that opportunity. The case was then dismissed as being purely academic.

But there had been cases where judges as commissioners had certified pending claims by applicants to be placed on the pension list under the 1792 Act. There was no decided Supreme Court decision that bound all Circuits. The 1793 Act indeed provided in s 3 that:

“But it shall be the duty of the Secretary of War, in conjunction with the Attorney General, to take such measures as may be necessary to obtain an adjudication of the Supreme Court of the United States, on the validity of any such rights claimed under the Act aforesaid, by the determination of certain persons styling themselves commissioners.” 

In February 1794, the Supreme Court heard Ex Parte Chandler.[18] There, a veteran had been approved for a pension by the Eastern Circuit, but his name was not included in the pension list.  John Chandler applied to the Supreme Court by writ of mandamus to compel the Secretary of War to place his name on the list. The Supreme Court, including Jay CJ, denied the writ by oral decision. There is no record of the reasons. It has been surmised, with some force, that the Court considered that the 1792 Act was unconstitutional and that the approval by the Eastern Circuit of Mr Chandler’s application was accordingly null and void.[19]

Also in February 1794, the Supreme Court, Jay CJ presiding, held that the United States could have restitution of a pension paid under the 1792 Act in an action for moneys had and received.[20]

Marshall CJ discussed the aforesaid events in Marbury v Madison, 5 US 137 (1803). The impact of that case in America and Australia needs no elaboration. In the course of upholding the principle of judicial review,[21] Marshall CJ observed at pp171-2:[22]

“This opinion seems not now, for the first time, to be taken up in this country.

It must be well recollected that in 1792, an act passed, directing the secretary at war to place on the pension list such disabled officers and soldiers as should be reported to him, by the circuit courts, which act, so far as the duty was imposed on the courts, was deemed unconstitutional; but some of the judges, thinking that the law might be executed by them in the character of commissioners, proceeded to act and to report in that character.

The law being deemed unconstitutional at the circuits, was repealed, and a different system established; but the question whether those persons, who had been reported by the judges, as commissioners, were entitled, in consequence of that report, to be placed on the pension list, was a legal question, properly determinable in the courts, although the act of placing such persons on the list was to be performed by the head of a department.

That this question might be properly settled, congress passed an act in February, 1793, making it the duty of the secretary of war, in conjunction with the attorney general, to take such measures, as might be necessary to obtain an adjudication of the supreme court of the United States on the validity of any such rights, claimed under the act aforesaid.

After the passage of this act, a mandamus was moved for, to be directed to the secretary at war, commanding him to place on the pension list, a person stating himself to be on the report of the judges.

There is, therefore, much reason to believe, that this mode of trying the legal right of the complainant, was deemed by the head of a department, and by the highest law officer of the United States, the most proper which could be selected for the purpose.

When the subject was brought before the court the decision was, not that mandamus would not lie to the head of a department, directing him to perform an act, enjoined by law, in the performance of which an individual had a vested interest; but that a mandamus ought not to issue in that case – the decision necessarily to be made if the report of the commissioners did not confer on the applicant a legal right.

The judgment in that case, is understood to have decided the merits of all claims of that description; and the persons on the report of the commissioners found it necessary to pursue the mode prescribed by the law subsequent to that which had been deemed unconstitutional, in order to place themselves on the pension list.

The doctrine, therefore, now advanced, is by no means a novel one.”

It should also be mentioned that the remonstrances of Jay CJ and the other Justices were referred to with approval by Dixon J in the important separation of powers case of Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at p90.

The Treaty of Paris, by Benjamin West (1783) (Jay stands farthest to the left). The British delegation refused to pose for the painting, leaving it unfinished.

Chisholm

In 1793, a case came before the United States Supreme Court concerning whether an individual citizen of one State had a right to sue another State in that Court: Chisholm v Georgia, 2 US 419 (1793).

One Robert Farquhar had supplied cloth to the Continental Army in Georgia in 1777, for a price agreed with the authorised agent of the State of Georgia. Chisholm, Farquhar’s executor, sued Georgia invoking the original jurisdiction of the United States Supreme Court but the State of Georgia denied liability, maintaining that Georgia had sovereign immunity from suit.[23] Georgia refused to appear in the Supreme Court other than to demur to the jurisdiction.

By a 4:1 majority, the Court held that the State of Georgia was amenable to suit. The majority comprised Jay CJ, Blair, Wilson and Cushing JJ. Iredell J dissented. Each judge published a separate opinion. Opinions were given in reverse order of seniority, as was the custom at the time.

Article III § 2 of the United States Constitution provided relevantly that:

“The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; – to all cases affecting ambassadors, other public ministers and consols; – to all cases of admiralty and maritime jurisdiction; – to controversies to which the United States shall be a party; – to controversies between two or more States; between a State and citizens of another State; – between citizens of different States; – between citizens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign States, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consols, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction …” (emphasis added)

The reference to “State” first in the sequence before “citizens of another State” supported the view that the Constitution was only referring to cases where the State was plaintiff. This was consistent with the sovereign immunity argument in that the State would thereby consent to the jurisdiction of the Court. This view was consistent inter alia with statements made by Alexander Hamilton in Federalist Paper No. 81.

In rejecting that view, a common rebuttal in the opinions of the majority judges, was that the natural and plain reading of the wording included cases where the State was a defendant, relying on the fact that a State must necessarily be a defendant in the case of a controversy between two States. Jay CJ appealed to ordinary rules of construction, saying for example at p476 that “This extension of power is remedial, because it is to settle controversies. It is therefore, to be construed liberally”; and at p477, “Words are to be understood in their ordinary and common acceptation, and the word party being in common usage, applicable to both Plaintiff and Defendant, we cannot limit it to one of them in the present case”. It would have been easy for the framers to have said otherwise, if that had been their intention. Wilson J[24] remarked, citing Bracton, that it would be superfluous to provide a remedy without a right.

Jay CJ  and Wilson J also pointed to other provisions in the Constitution where the exercise of federal legislative and executive power bound the States.

Jay CJ further appealed to the reasons inherent in a federation why the natural meaning should prevail, at p476:

“… in cases where some citizens of one State have demands against all the citizens of another State, the cause of liberty and the rights of men forbid, that the latter should be the sole Judges of the justice due to the [former]…”

He said similarly at p 474:

“Prior to the date of the Constitution, the people had not had any national tribunal to which they could resort for justice; the distribution of justice was then confined to State judicatories, in whose institution and organization the people of the other States had no participation, and over whom they had not the least control. There was then no general Court of appellate jurisdiction, by whom the errors of State Courts, affecting either the nation at large or the citizens of any other State, could be revised and corrected. Each State was obliged to acquiesce in the measure of justice which another State might yield to her, or to her citizens; and that even in cases where State considerations were not always favorable to the most exact measure. There was danger that from this source animosities would in time result; and as the transition from animosities to hostilities was in the history of independent States, a common tribunal for the termination of controversies became desirable, from motives both of justice and of policy.

Prior also to that period, the United States had, by taking a place among the nations of the earth, become amenable to the laws of nations; and it was their interest as well as their duty to provide, that those laws should be respected and obeyed; in their national character and capacity, the United States were responsible to foreign nations for the conduct of  each State, relative to the law of nations, and the performance of treaties; and there the inexpediency of referring all such questions to State Courts, and particularly to the Courts of delinquent States became apparent. While all the States were bound to protect each, and the citizens of each, it was highly proper and reasonable, that they should be in a capacity, not only to cause justice to be done to each, and the citizens of each; but also to cause justice to be done by each, and the citizens of each; and that, not by violence and force, but in a stable, sedate and regular course of judicial procedure.”

Jay CJ also challenged the notion that the State of Georgia was a “sovereign State” for all purposes. He said:

“Prior to the revolution … All the people of the country were then, subjects of the King of Great Britain, and owed allegiance to him … They were in strict sense fellow subjects, and in a variety of respects one people. When the Revolution commenced, the patriots did not assert that only the same affinity and social connection subsisted between the people, of the colonies, which subsisted between the people of Gaul, Britain and Spain, while Roman provinces, viz. only that affinity and social connection which result from the mere circumstance of being governed by the same Prince; different ideas prevailed, and gave occasion to the Congress of 1774 and 1775. The Revolution, or rather the Declaration of Independence, found the people already united for general purposes, and at the same time providing for their more domestic concerns by State conventions, and other temporary arrangements. From the crown of Great Britain, the sovereignty of their country passed to the people of it … thirteen sovereignties were considered as emerged from the principles of the Revolution, combined with local convenience and considerations; the people nevertheless continued to consider themselves, in a national point of view, as one people …”

Although he (like Wilson J) advanced a notion of popular sovereignty, the underlying point was that the people were, first and foremost, Americans. 

Jay CJ also denied that suability was incompatible with sovereignty, and appealed to general principles of justice and equality, for example:

“The only remnant of objection therefore that remains is, that the State is not bound to appear and answer as a Defendant at the suit of an individual: but why it is unreasonable that she should be so bound is hard to conjecture. That rule is said to be a bad one, which does not work both ways…”

And that:

“[The decision of the Court] provides for doing justice without respect of persons, and by securing individual citizens, as well as States, in their respective rights, performs the promise which every  free Government makes to every free citizen, of equal justice and protection…”

Portrait of John Jay by Gilbert Stuart, 1794

The Court held that default judgment should be entered against the State of Georgia. But the  judgment was not enforced.[25] Georgia passed legislation making it an offence to enforce the judgment, or bring similar claims against the State, punishable by death. This stalemate might be thought to reinforce the point made by Jay CJ about the need for an independent national tribunal with power to quell controversies between States, or between a State and a citizen of another State.

Ultimately, the Eleventh Amendment was passed, ratified in 1795. It provided that:

“The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State.”

The United States Supreme Court has since rejected the reasoning in Chisholm, by a 5:4 majority, subject to a vigorous dissent.[26]

But much of the reasoning in Chisholm remains apposite to our own federation.

During the nineteenth century, Chisholm entered the Australian legal lexicon.

Chancellor Kent discussed Chisholm in the first volume of his renowned Commentaries on American Law published in 1826.[27]

Chisholm was referred to by Sir Isaac Isaacs at the Melbourne Convention in 1898.[28]

In their celebrated 1901 work, Quick and Garran referred to Chisolm in their discussion of s 75(iv) of the Australian Constitution.[29]

Sections 75 and 76 of the Australian Constitution provide:

“75. Original jurisdiction of High Court

In all matters:

  1. arising under any treaty;
  2. affecting consuls or other representatives of other countries;
  3.  in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party;
  4. between States, or between residents of different States, or between a State and a resident of another State;
  5. in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;

the High Court shall have original jurisdiction. (emphasis added)

76. Additional original jurisdiction

The Parliament may make laws conferring original jurisdiction on the High Court in any matter:

  1. arising under this Constitution, or involving its interpretation;
  2. arising under any laws made by the Parliament;
  3. of Admiralty and maritime jurisdiction;
  4. relating to the same subject-matter claimed under the laws of different States.”

In Australia, the trend of judicial opinion is to affirm jurisdiction under relevant clauses of ss 75 and 76 exercised against States without their consent: see eg South Australia v Victoria (1911) 12 CLR 667;[30] The Commonwealth v New South Wales (1923) 32 CLR 200;[31] New South Wales v Bardolph (1934) 52 CLR 455, 459; The Commonwealth v Mewett (1997) 191 CLR 471 (Gummow and Kirby JJ, Brennan CJ agreeing); British American Tobacco Australia Ltd v WA (2003) 217 CLR 30.

Chisholm v Georgia was not mentioned explicitly in the judgments in those cases. But they were mostly cases where a State was sued by the Commonwealth or another State, or arising under s 76(i). So those cases did not require a decision under the limb of s 75(iv) that refers to matters between a State and a resident of another State. In Bardolph, which did arise under that limb of s 75(iv), it appears that sovereign immunity was not in contention and the Court just needed to be satisfied about its own jurisdiction.

Section 78 of the Constitution also should be noted. It provides:

“The Parliament may make laws conferring rights to proceed against the Commonwealth or a State in respect of matters within the limits of the judicial power.”

That power has since been exercised.[32] During the Melbourne Convention in 1898, Sir Isaac Isaacs argued that the mere conferral of jurisdiction in the Constitution was enough to curtail sovereign immunity.[33]  This view did not, admittedly, command universal assent, and Mr O’Connor moved an amendment which led to the insertion of what is now s 78. But it is difficult to assert that the insertion of s 78 was indicative of unanimity amongst the delegates that legislation was needed to curtail sovereign immunity. Indeed, the prevailing view in the High Court is now that s 78 was not necessary in cases falling within s 75 (as opposed to ss 76 and 77): The Commonwealth v New South Wales (1923) 32 CLR 200, 207, 214-5; British American Tobacco Australia Ltd v WA (2003) 217 CLR 30 [15]-[16], [18] (per Gleeson CJ), [59]-[60] (per McHugh, Gummow & Hayne JJ; see also The Commonwealth v Mewett (1997) 191 CLR 471, 551 (per Gummow and Kirby JJ, with whom Brennan CJ agreed at 491, but see Dawson J at 496-7).

The United States Supreme Court has since rejected the reasoning in Chisholm, by a 5:4 majority, subject to a vigorous dissent.

Importantly, for present purposes, Isaacs J was a member of the High Court in The Commonwealth v New South Wales, decided in 1923. There, the question was whether Commonwealth could bring action against the State of New South Wales in tort in the High Court under s 75(iii), without the consent of the State. Knox CJ, Isaacs, Higgins, Rich and Starke JJ held that the Commonwealth could. Chisholm was cited to the Court in the course of argument.[34]

In joint reasons, Isaacs, Rich and Starke JJ said at pp 208-209 of 32 CLR 200:

“It may be convenient to refer first to the assertion (which is at the root of the defendant’s contention) that an Australian State is a ‘sovereign State’. Learned counsel placed the matter on the same plane as a foreign independent State, the ‘representative’ of which is included in sub-sec. II. of sec. 75. As to such a representative it was said the consent of the foreign State was necessary, and so of an Australian State. There are two fallacies involved in this. The first is that there is any analogy whatever between the position of the ‘representative’ of a foreign State and that of one of the States of Australia … what possible analogy is there between such a case – where person and property are judicially deemed to be outside the territory and beyond the territorial jurisdiction of the local Courts – and the case of an Australian State, an integral and necessary part of the territory of the Commonwealth in relation to this Court? New South Wales is not a foreign country. The people of New South Wales are not, as are, for instance, the people of France, a distinct and separate people from the people of Australia. The Commonwealth includes the people of New South Wales as they are united with their fellow Australians as one people for the higher purposes of common citizenship, as created by the Constitution. When the Commonwealth is present in Court as a party, the people of New South Wales cannot be absent. It is only where the limits of the wider citizenship end that the separateness of the people of a State as a political organism can exist…

The second fallacy in the defendant’s argument is in the use of the expression ‘sovereign State’ in relation to a State of Australia. Before the great struggle of the American Union for existence, costing uncounted lives and treasure, that expression was not uncommon in the United States. And that, despite the warning given by Story J. in his work on the Constitution. He says:- ‘In the first place, antecedent to the Declaration of Independence none of the Colonies were, or pretended to be, sovereign States, in the sense in which the term sovereign is sometimes applied to States. The term sovereign or sovereignty is used in different senses, which often leads to a confusion of ideas, and sometimes to very mischievous and unfounded conclusions.’ (par. 207). The conclusion to which we were invited to come in interpreting the Constitution upon the assumption that New South Wales is a ‘sovereign State’ would be both mischievous and unfounded. The term ‘sovereign State’ as applied to constituent States is not strictly correct even in America since the severance from Great Britain (see Story, par. 208). Still further from the truth is it in Australia…”

Story at those paragraphs refers to the Chisholm case in footnotes.[35]

Isaacs, Rich and Starke JJ went on (at pp210-1 and 213) to rely on the plain and literal reading of s 75.

Their Honours further referred at p214 to the principle of “equal and undiscriminating responsibility to obey the law or make reparation”, and noted at p215:

“As to all cases of controversies in which there might be the element of conflicting interests politically considered, an opportunity was definitely created of invoking the jurisdiction of a tribunal independent of any State …”.

By such reasoning, their Honours followed a similar path to Chisholm.

Their Honours cited Farnell v Bowman (1887) 12 App Cas 643. There, the Privy Council held that the New South Wales Claims against the Colonial Government Act of 1876 (39 Vict. No 38) curtailed sovereign immunity from suit, according to its plain meaning.[36] Farnell has since been described as “epochal” and “cataclysmic”.[37] But it was not the first case to conclude that sovereign immunity from suit had been curtailed. Chisholm v Georgia had decided as much nearly a century earlier.

Conclusion

John Jay’s contribution as a Statesman to the establishment of the United States was monumental. His contribution, particularly as a jurist, has not received the attention it deserves in Australia, which is perhaps not surprising because his time on the Bench was interrupted by other governmental duties. But in his judicial duties his work has had a significant impact including in Australia. His views on the separation of powers have been cited by Dixon J, and relied on in the oft cited case of Marbury v Madison. Indeed, the Hayburn and Chandler litigation set the scene for Marbury v Madison concerning judicial review of executive and legislative action. Further, in the writer’s view, Chisholm, including Jay CJ’s reasoning, shone a light on the path which would later be followed by the High Court of Australia.  

[1] The factual background herein draws heavily on George Pellow, Making of Modern Law (Boston: Houghton, Mifflin & Co 1898).

[2] Whom Jay would later run against, and defeat, in the race for Governor of New York in 1798: Mark Dillon, The First Chief Justice: John Jay and the Struggle of a New Nation, pp39-240 (SUNY 2022).

[3] For further reading on his pupillage and his substantial trial experience, see eg Dillon, supra n 2, pp6-18.

[4] An account of his work as Chief Justice is given at Dillon, supra n 2, pp34-5.

[5] Dillon, supra n 2 at p43.

[6] Dillon, supra n 2 pp47, 48.

[7] Making of Modern Law, supra, pp229-230.

[8] Circuit Courts at that time had original as well as appellate jurisdiction (from District Courts).

[9] Dillon, supra n 2, pp52-3, 58-5; Making of Modern Law, supra, p283.

[10] Dillon, supra n 2, p241.

[11] Dillon, supra n 2, p243.

[12] For further reading on his judicial activity, see Dillon, supra n 2, pp34-5, 52-3, 61-5, 71-195, 215-224.

[13] 1 Statutes at Large p243.

[14] The note to Hayburn’s Case, 2 US 408, 410 (1792) must be mistaken when it says the opinion was on 5 April 1791, as that would have been before the Act was enacted.

[15] Note to Hayburn’s Case, 2 US 408, 410-411 (1792).

[16] Ibid.

[17] 1 Statutes at Large, p324.

[18] The case is unreported. For further reading, see Dillon, supra n 2, pp91-111 esp at pp109, 111.

[19] Dillon, supra n 2, pp109, 111. But contra, David Miller, “Some Early Cases in the Supreme Court of the United States”, 8:2 Virginia Law Review pp108-120 (1921).

[20] United States v Todd, 13 How, 52, note.

[21] The Court held that William Marbury was entitled in principle to a writ of mandamus against the Secretary of  State compelling the latter to deliver up a commission, but that the Supreme Court could not issue that writ in its original jurisdiction as the Constitution only conferred appellate jurisdiction on the Supreme Court in the present kind of case. The Act of Congress which purported to confer such original jurisdiction on the Supreme Court was to that extent unconstitutional and invalid.

[22] Chandler’s case was cited in argument at p149.

[23] Chisholm had previously sued, unsuccessfully, in the Southern Circuit Court, in Georgia. The  Court was comprised of Iredell J and Pendleton District Court Judge.

[24] A member of the Constitutional Convention which framed the Constitution.

[25] Georgia later changed its mind and paid the judgment in 1847: see Dillon, supra n 2, p130.

[26] See Alden v Maine, 527 US 706 (1999).

[27] James Kent, Commentaries on American Law, vol. 1, Lecture XIV, p278 (1826).

[28] Convention Debates (Melbourne 1898) p1675.

[29] Quick and Garran, The Annotated Constitution of the Australian Commonwealth, §324, p 774 (1901, reprinted by Legal Books 1976).

[30] The Court comprised Griffth CJ, Barton, O’Connor, Isaacs and Higgins.

[31] The Court comprised Knox CJ, Isaacs, Higgins, Rich and Starke JJ.

[32] See Judiciary Act 1903 (Cth), s 64, if not also s 58.

[33] Convention Debates (Melbourne 1898) p1675.

[34] (1923) 32 CLR 300, 201.

[35] Story, Commentaries on the Constitution of the United States, Book II, §§207, 208, 4th ed (Boston: Little Brown & Co 1873). See also at §178. And see §216 of the first edition (1833). 

[36] Affirming Bowman v Farnell (1886) 7 NSWLR 1 (Faucett and Windeyer J, Martin CJ dissenting).

[37] Downs v Williams (1971) 126 CLR 61, 80 (per Windeyer J). 

In an interesting and informative CPD provided by Her Honour Judge Loury KC on 3 December 2024 at the Bar Association of Queensland and by webcast, her Honour considered the relevant legislative provisions and common law principles relating to the admissibility of documents. In an era of the proliferation of electronic devices and Apps this presentation helpfully works through how such evidence can be successfully sourced and tendered. The permutations of such evidence now is staggering as compared to only a couple of decades previously, hence the heightened importance in the identification and application of the relevant rules.  

Admissibility of Common Forms of Documentary Evidence – PowerPoint

Admissibility of Common Forms of Documentary Evidence – Recording

The following is the eulogy delivered by the Honourable Duncan McMeekin KC on 14 February at the funeral of the Honourable Alan Demack AO – former judge of the Supreme Court of Queensland, and a judge of the Family Court of Australia – who died on Tuesday 28 January 2025 aged 90 years.

We have gathered here today to honour a legal titan. Most of the congregation know well of Alan Demack’s achievements – his 28 years as a judge and 22 years as Central Judge resident here in Rockhampton, his appointment as an Officer of the Order of Australia and his honorary doctorate in law by the Central Queensland University – but I hope you agree that this occasion requires my brief review of his legal life. When asked to give this eulogy, Anne Demack said to me that on so many dozens of times before Demack J it was McMeekin for the plaintiff and Britton for the defendant and today, in a sense, is my last brief appearing for the plaintiff. 

The only advice Alan Demack gave to me when I became a judge was to develop this facility, namely, to be able to look barristers squarely in the eyes and not accept a single word they said. I assumed he was talking to Britton.

So, to a degree, this will reflect my personal recollections, and hopefully I will be partial to Alan George Demack AO.

Alan was called to the Bar in 1957. He had attended Kings College at the University of Queensland from 1953, winning the College’s John Doe prize for Law in 1955 and 1957. He was associate to Sir Roslyn Philp the then Senior Puisne Judge, the second ranking judicial figure in the State, and a renowned jurist, in the year before his admission. Unsurprisingly Alan had written that Sir Roslyn Philp had a significant effect on him.

… there were 13 students in Alan’s class at the Law School in 1953.

To give you some idea of those times there were 13 students in Alan’s class at the Law School in 1953. When I started at the UQ in 1972 there were hundreds. When Stan Jones, who is known to all the lawyers present, became an articled clerk in 1963-4 in his early twenties in a busy litigious firm Stan knew every barrister in Brisbane. Maybe that’s not so surprising, but he told me that every barrister knew him, a mere articled clerk, and by name. It was a very small profession and no doubt Alan’s talents were recognised early in his career. His interests and practice included criminal law, taxation and land law. While his time at the Bar was short he was busy. He found time to serve as Secretary of the Bar Association, as reporter for the Queensland State Reports, and edited the Queensland Justice of the Peace Reports. And he produced two texts as editor – in 1968 the 2nd edition of the Lehane’s District Court Practise and in 1971 he edited the third edition of Allen’s Police Offences of Queensland.

The young Alan Demack was often junior to Sir Arnold Bennett QC and often before the High Court. No QC with any sense entrusts junior counsel to do too much in the case. As Peter Connolly QC said there were two types of junior counsel – those who asked after the case how the case went and those who didn’t. But on one occasion the trial judge interrupted Sir Arnold to say that while the facts were clear to him there was a difficult legal point, and his submissions would be helpful. To which Sir Arnold replied, to Demack’s considerable surprise, “I quite agree your Honour. My learned junior will give your Honour the benefit of our submissions upon the law.” Even so, Demack was entrusted with heavy cases, and on one occasion, alone and without a leader, as Rumpole would have it, appeared before the High Court on behalf of the Federal Commissioner of Taxation.

As I said his time at the Bar was relatively short – 14 years – when he was elevated to the District Courts of Queensland in 1972 at age 37. On the occasion of his swearing in Alan quipped that he had been counselled that: “…the three essentials of a good trial judge are that he be quick, courteous and wrong. I promise to be reasonably quick; I undertake to be unfailingly courteous; and I trust that 66 2/3rds per cent is the pass mark.” I think you all will agree he achieved and superseded the standard he set for himself 53 years ago.

Alan Demack’s long association with his Church and his involvement in lay preaching from his age of 22 made it evident to those around him that he had reflected deeply on life and the problems that confronted people in our society. This combined with his apparent ability to write clearly, and his obvious erudition, resulted in being entrusted in 1973 with chairing the Commission of Inquiry into the Status of Women in Queensland and in 1974-75 he chaired the Commission of Inquiry into the Nature and Extent of the Problems Confronting Youth in Queensland.

As well his time on the District Court was noteworthy at least for his appointment in 1975 for him the first female he appointed as his associate – or as they were then called the clerk – not so often then. The clerk was Margaret Hoare as she then was, demonstrating that Alan Demack was ahead of his times in encouraging a young woman into the profession and prescient in his choice as a future President of the Court of Appeal. Thirty years later, in 2005, Margaret by now Justice McMurdo, was to write of Alan that he was “the model of judicial conduct and courtesy” and that she was then “grateful for his quiet encouragement and wise advice”.

Given the reports following the inquiries he had chaired, and that Alan had produced, it was evident that his talents would be wasted in the District Court and that no-one could be better suited to the new Court that was to be established under the Family Law Act passed in 1975 and Alan was appointed the first Senior Judge of the Family Court in Queensland. He was entrusted by the Attorney of the day to set up and maintain that important Court with newly minted laws yet to be worked out and with newly appointed judges. There was then an enormous responsibility.

I first set eyes on the then Justice Demack in 1976. I was aged 21 and a student at the University of Queensland. I was in the first class to study the new Family Law Act of 1975 and our lecturer invited the newly appointed Senior Judge Alan Demack to address our class. My recollection is of an impeccably dressed man of solemn manner, with a rich voice but quietly spoken. He spoke that day, from my memory of nearly 50 years ago, of his wish that the Family Court that he and his colleagues were to bring into being to be one of informality and expedition. The wigs and robes were to be abandoned, the judges were to sit not at a bench high above the parties but at the same level as the litigants, and the affidavits were to be less full of legalese.  He has never spoken of his impressions of we the students, dressed in jeans, T-shirts and shoeless save rubber thongs, but I suspect he hoped we didn’t take informality to these lengths.

In February 1977 I had my first judicial experience with Justice Demack as I instructed John Muir, later to be a great appellate judge, on a custody case. And later that year, and not long admitted, I appeared as counsel before Justice Demack in the Family Court in Rockhampton. I met him then and was invited in for a cup of tea. At that stage there was no court room in Rockhampton and our cases were heard in the Marriage Guidance Council home in Fitzroy St. It was a custody case and I weas opposed by Stan Jones, as he then was. It was certainly informal with the judge seated at a desk a few feet away from the barristers, the witness on a chair a few feet to one side, the entire room the size of a smallish loungeroom. Alan Demack’s manner then was always quiet and courteous, his rulings definite and readily reached.  

In January 1978 the still young Demack, aged only 43, accepted an appointment to the Supreme Court of Queensland and to the important position, to each of us in any case, of Central Judge. I was present on the first day he presided in that capacity on 2nd February 1978 and the profession gathered to welcome.  I was the most junior lawyer present. Our new judge spoke of the relationship between the Bench and the legal profession:

“Unless there is a strong bond of mutual respect and realistic understanding between the Bench and the legal profession, the burdens on each become intolerable and the administration of justice becomes severely hampered.” 

He intended to do his part in fostering that bond and he did.

He commenced the practice of weekly lunches with barristers and monthly lunches with the solicitors’ branch. He organized dinners, at times annually, to celebrate some important event or other. He never missed the annual CQLA conference which for many years was at Keppel Island, and he often being the principal entertainment at the legal dinner whether by speech or song. Their practise was to quit the head table at the conclusion of the meal and go around the tables, usually Dorothy in one direction and he in the other and chat to the practitioners, particularly the younger ones and the out of towners, whom he ensured were made welcome.

There were the traditional cups of tea with the practitioners should there be a settlement of the trial. And each year as the law year ended the Demacks invited the barristers, the members of the judiciary and the Registrar and partners to enjoy a convivial lunch.

During the 1980s the workload in Rockhampton grew dramatically and the lists of cases awaiting hearing numbered in excess of 100. Despite that workload, in 1983 he chaired the Special Committee appointed by the Queensland Government to inquire into the laws relating to artificial insemination, in vitro fertilisation, and other related matters. Yet his application to his work never flagged. His lists were well managed and his judgments timely.

Of course, the Central Judge had extensive responsibilities to the wider area including Mackay, Bundaberg, Maryborough, and Longreach. Mackay, in particular, was a busy litigious hub. In a tribute in 2011 a former associate Alison Buchhorn, who some here will recall as Alison Nightingale, recalled of Mackay: “You could be sure of a full calendar for each two week visit and if any trials required adjournments causing the list to collapse, there was one solicitor in particular who was notorious for arranging civil trials at short notice so that every hour of the day was used wisely.” Alison didn’t name the solicitor she had in mind but his initials I am sure are Gene Cristopher Paterson.  And to be fair the solicitor on the other side had to co-operate and very often that opponent was John Taylor. The pair of them sit together here today, along with others who have travelled from Mackay to honour and respect the judge on whom they had for so long relied.

It would be remiss not to mention Alan Demack’s sense of humour that was always lurking. On one occasion he was asked to attend a view of the site of a car accident. We duly went to this relatively remote rural setting somewhere west of Raglan in three relatively up market motor vehicles. There were attending the two barristers, their two instructing solicitors, the judge and the court reporter – six of us all dressed in business suits. Demack drily looked at us all and remarked that our attendance, when noted by the locals, would cause rural land values to enjoy an exponential improvement as the locals wondered what was up.

“if you want to try a plea bargain, I’ll drop the flogging.”

On another view of a scene, this time of the site of a burglary, it became evident that my client, the miscreant, had made up a story of an accidental entry in the night, an account that could not be remotely true as it required improbability on improbability. Somewhat crestfallen as we re-entered the car back to the courthouse the judge said to me – “if you want to try a plea bargain, I’ll drop flogging”.

On one occasion at Keppel Island for the annual conference he somehow ended up taking our daughters, then in their early teens, out for a sail off the beach in a catamaran. I do not think he claimed to be a great sailor and the boat did appear to be heading rapidly towards the mainland at one point which seemed to be in the wrong direction – so much so that the girls later reported that they had panicked more than somewhat and used profane language, language that they had picked up no doubt from other sailors, and  usage the judge seemed not to be familiar with, which language I gathered was along the lines of “Holy, Jesus Christ”.  But when Demack returned he was full of smiles and commented that the children were beautifully behaved and even given to prayer.

Every barrister who practised regularly in in Rockhampton or Mackay and found themselves elevated to the bench of a Court would remark, when appointed, that they hoped to emulate Alan Demack’s demeanour and behaviour.  I know I did try. But one day one of our former colleagues, who had expressed such sentiments to Alan himself upon his elevation, managed to be later barred from a golf club for among other things shouting expletive laden remarks in the general vicinity of the female members while digging up the green with his putter. Alan, on hearing of this episode, remarked to me in passing that he was unsure of precisely what aspect of his demeanour or behaviour the judge was emulating.

It is worth remarking that from the relatively few barristers who were members of the Bar resident here or in Mackay or who were Central Crown Prosecutors, who numbered only five in 1977 when I joined the Bar, and who numbered never more than about 10, the list who were in time elevated to a Court are a testament to the high standards he had encouraged. They include Keith Dodds, Bob Hall, Peter White, Trevor Morgan, Kerry O’Brien, Marshall Irwin, Brian Harrison, Stan Jones, Grant Britton, and our present Central Judge, Justice Graeme Crow. Their affection and regard was well known among us, and to him. I have left Judge Anne Demack out of the list assuming her elevation due to more a reflection of familial influence, although her many years as Alan’s associate no doubt allowed her to study his technique at close hand. Her invariable reference to her father as “Pop J” when communicating to the barristers kept the light-hearted communications open.

Demack had a fine baritone voice that he has used to good effect on many an occasion — controlling a court room, leading the congregation in a hymn and on occasion entertaining the lawyers at a social gathering. The legal profession in Central Queensland has a strong Irish Catholic influence and they too enjoy their singing. Whilst he professes to know no Irish songs, a proposition that some lawyers have expressed difficulty in accepting, [the account is in fact that at a legal dinner and after a fine song from Demack J John Taylor from Mackay who had flown down to the dinner with colleagues and who had become very tired and emotional by this time of the dinner asked Justice Demack to sing an Irish song. Demack replied that he did not know any Irish songs. Taylor: “Sing us a fucking Irish song”. Demack: “I don’t know any of those either”] Alan Demack has written songs that remain favourites amongst a generation of lawyers throughout Central Queensland. His ode to ‘Tim the Termite’, first sung at a legal dinner struck a resonant chord with the profession. It was at a time when the old Supreme Court building, in use since 1888, had become sadly dilapidated and although to be pressed into use for another decade, was nearing the end of its time as a Courthouse, held together, it was said, by strings of termites. His sense of humour is manifest in the closing verse of that song:

“When the air conditioning’s on the blink, you have to fight for breath,If it ever rains on the roof again the noise could make you deaf,But justice is the outcome if the case is fairly fought,So we’ve termites holding hands to keep up Rocky’s Supreme Court.

On 19 May 2000 the tenth and longest serving Central Judge retired. Several dinners were held, one of which was at Elizabeth and my home at Gracemere in our garden under the stars with the Chief Justice, the President of the Court of Appeal, our newly elevated Central Judge Peter Dutney, and many of the senior solicitors and barristers from Mackay, Gladstone and of course Rockhampton were present.

A more formal dinner was held in his honour at the Rockhampton Club. As a sign of the affection and respect in which he and his wife Dorothy were held the profession gathered in numbers. As a parting gift the profession gave the Demacks the complete set of the works of Johann Sebastian Bach, the composer that he admired above all others. And for the last time “Tim the Termite” was sung – this time by the assembled profession to him.

Alan Demack told his son, Jim, that on his retirement he was to spend more time pursuing his interest in legal history, theology and music. As for the latter I heard from John Weary, Alan Demack’s long time bailiff and organist in this Church, who plays for us today, that there had been some pretty vigorous in-fighting on the suitable hymns to be on the roster each Sunday. And in a letter to apologise for missing our Judge’s cocktails in 2013 he wrote that he and Dorothy “will be sitting in the State Theatre Melbourne listening to the third opera in Wagner’s Ring Cycle, Siegfried.”

He may have retired but his legal work was not finished. Shortly after his retirement Demack became the inaugural holder of the Office of Integrity Commissioner, he produced a handbook for guidance on Public Officials, and at age 72 he was the Chair of a three-person committee appointed to oversee the redistribution review of Queensland’s 89 electoral boundaries.

Our last legal gathering for him was on the occasion of his 80th birthday when a dinner was held in the old courtroom where he had for so long presided. Every barrister and judicial officer resident here in Rockhampton and their partners were present. Justices Margaret and Philip McMurdo honoured him by their presence and Margaret offered a lovely tribute. My contribution was a toast by the profession to him and Dorothy in the form of a roast. It was along the lines that he had no loyalty at all as he had abandoned every court he had been a member of, quitting the District Court, quitting the Family Court, and abandoning the Supreme Court after only 22 years of service with plenty of years still left; his work as integrity commissioner hadn’t had much effect on our politicians; and his allegedly famous judicial courtesy had cracked not once nor twice but three times over 28 years, admittedly to the same practitioner twice. I received a letter from Alan a few days later thanking me for the speech. I still have the letter and I quote:

“It is surprising how the years drag us forward when there still seem to be so many things left undone ages ago. Still it is a delight to look back to see what has been done. It is even more pleasant to hear people talk about times past with evident respect and affection.”

Your presence here today reflects the respect and affection so many have for him.

“Justice Demack has exemplified in large measure all of the qualities considered as typifying the very best judges …”

At his valedictory the then Chief Justice Paul de Jersey said of Alan Demack and said, with respect, very accurately:

“Justice Demack has exemplified in large measure all of the qualities considered as typifying the very best judges: an irrevocable personal commitment fearlessly and independently to uphold the rule of law, unquestioned moral character and probity, high intellect and well informed legal learning, compassionate sensitivity to cultural gender and ethnic considerations, a lively interest in legal history and the roots of the common law, in court – calm rationality expressed with patient courtesy, and out of court – a capacity to interact beneficially with the local community, facilitating a better understanding of the judicial process, and while attracting the admiration of that community, effectively preserving the necessary authority of the Court and of his judicial office.

A great summary of a great and well lived life.

But I will leave the last word to Alan Demack. His philosophy he summarised for the graduating class of 1985 at the then Central Queensland Institute of Advanced Education:

“May you always pursue excellence guided by a thirst for knowledge, an unreasonable cheerfulness, a commitment to an ideal, and a willingness to share.”

 To so many of us, for decades of our lives, he was our judge, May he rest in peace.