The Future of The West Australian Bar – 45 Years on “The functional

Transcription

Issue 5
December 2007
Contents
page 2
The New District Court of Western Australia
2
Human Rights Laws for Western Australia
4
The future of the West Australian Bar - 45 Years on
5
Coping with the pressures of litigation
10
Interview with Ian Viner QC
12
Bar Readers Course 2007
16
Bar and Bench Dinner
17
Judicial Appointments
18-20
Judicial Retirements
20-22
Case Notes
23
Book Reviews
Retirement or Deployment - Malcolm Lee QC
27, 28, 29
31
The Future of The
West Australian
Bar – 45 Years on
“The functional
model of the English
Bar has stood the
test of time over
centuries and for
good reason.”
page 2
The New
District
Court of
Western
Australia
Building
“Every effort
is being made
to facilitate the
use of the latest
technology in
court, by the
judges and staff, by the court administration and by the legal profession when
working in courtrooms and associated areas.”
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Bar Council
Craig Colvin SC President
Grant Donaldson SC Vice President:
Ron Birmingham QC
Michael Berry
Felicity Davis
John Hockley
Joe McGrath
Dominic Mulligan
Peter Quinlan
Judy Seif
Joshua Thomson
"VEJ4IBTCFFOEFTJHOFEUPFOIBODFZPVSESJWJOHFYQFSJFODF
Editorial Committee
"EEUPUIJTBSBDFXJOOJOHMJUSF7'4*ÚFOHJOFBOEJUTFWFSZUIJOHZPVFYQFDUGSPNB
Peter MacMillan - Editor
Greg McIntyre SC
Felicity Davis
Peter Johnston
John Hockley
Linda Black
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5PSFBXBLFOZPVSQBTTJPOGPSESJWJOHo7JTJU"VEJ$FOUSF1FSUI)BSCPSOF4USFFU0TCPSOF1BSL
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Please send all contributions for the next WA Bar Association Review to the Editor, Dr Peter MacMillan by 30 April 2008.
The Western Australian Bar Association (Inc)
Level 23, Allendale Square 77 St George’s Terrace PERTH WA 6000
GPO Box C122 PERTH WA 6832
Telephone: +61 8 9220 0532 Facsimile: +61 8 9325 2041 Website: www.wabar.asn.au
0WFSTFBTNPEFMTIPXO
Issue 5, December 2007
W e s t e r n
A u s t r a l i a n
B a r
A s s o c i a t i o n
R e v i e w
W e s t e r n
A u s t r a l i a n
B a r
R e v i e w
President’s Welcome
From the President
In 2008, the WA Bar Association (Inc) will
celebrate its 25th anniversary. Of course, the
independent bar in Western Australia was
established by Sir Francis Burt some years
before that time. However, I expect that
the occasion will be appropriately marked
during the course of next year. Significant
anniversaries provide a time to look back
and to plan for the future. I hope in the
forthcoming year that Bar Council will
be able to review its strategic goals for the
next 5 years and communicate its plans to
members.
The association has developed from humble
beginnings to an organisation with a
significant role within a fused profession. It
works in the interests of members, but most
often in advancing the public interest in the
fair and proper administration of justice. It
seeks to support, promote and encourage
the independence of practicing solely as
barrister. It facilitates valuable dialogue
between bench and bar. By joining the
association, members provide the support
that is necessary for this to continue.
The association was pleased to be able to
appoint Debbie Cole as a full-time Executive
Officer and Education Coordinator earlier
this year. Debbie has commenced her new
role with enthusiasm and brings great
experience as well as excellent administrative
and personal skills.
With the prospect of mandatory legal
education for all practitioners to commence
in 2008, members can expect the bar to be
providing training tailored to practice as an
independent barrister. This will enable the
association to build upon the enthusiastic
and dedicated work over many years of
Chris Shanahan SC in establishing the Bar
Readers Course. I thank Chris on behalf of
members for all his work as a member of Bar
Council since 1999.
I also wish to thank Ken Martin QC for his
many years of service on Bar Council since
1995 culminating in his term as President.
Ken has made a substantial contribution to
the work of the bar especially in relation to
consolidating arrangements for advocacy
training and in developing the profile of the
association within the ABA.
I look forward to serving the association over
the next year. I am interested in receiving
suggestions or comments from members
concerning the matters that should be the
strategic focus of the association in the
future ([email protected]).
Editorial
many examples, elsewhere, of show piece
Court buildings. Whatever the reason, the
pendulum appears, in Western Australia,
appropriately, to have swung to some extent
in favour of adequately resourcing the Court
system.
The New District Court building is due to
open for business in May 2008. It will be a
welcome change for those who sit, appear
or work in the Court.
Peter MacMillan Editor
An explanation for the inadequate resourcing
of our Courts is that it is not a political
priority. Priorities may change, as may the
affluence of our society. There are certainly
W e s t e r n
A u s t r a l i a n
The first appointments of senior counsel
under the new committee system were
made recently. Congratulations are extended
to Jeremy Allanson SC, Gail Archer
SC, Theo Lampropoulos SC, Peter Van
Hattem SC, and Rob Mitchell SC. Whilst
Western Australia operates a de facto fused
profession, its counterparts in Victoria and
New South Wales do not. Victoria has
the highest number of senior counsel (by
membership of the Bar Association) in
B a r
Australia, followed by New South Wales.
Although the number of senior counsel
per capita of population differs in the two
States, it is in the range of 1 for every 15,000
to 20,000 head of population. The ratio for
Queensland is 1 for every (approximately)
48,000 head of population.
As Ken Martin QC points out in his article
in this issue on the Western Australian
Bar Association, “If the local Bar cannot
meet the demands of its local consumers in
Western Australia then high level work that
should be performed by it will go elsewhere”.
In this regard it is noteworthy that the ratio
of senior counsel (by membership of the Bar
Association) to head of population in this
State is 1 to (approximately) 85,000 of head
of population; approximately four to five
times higher than its equivalent in Victoria
and New South Wales and nearly double
that for Queensland.
R e v i e w
1 - Issue 5, December 2007
The New District Court of Western Australia
Building
Judge Philip Eaton
The District Court of Western Australia
was established as a court of record with
criminal and civil jurisdiction in 1969. The
judges, staff and central registry of the Court
moved to the Central Law Courts building
when it opened in April 1982. During the
1990’s it became clear that the growth in the
work of the Court and the Court itself was
such that it would require a new building
dedicated to it.
In 2004 an announcement was made by
the State government that the preferred
tenderer for the construction of a building
to house the District Court of Western
Australia was the Western Liberty Group.
That group was led by ABN Amro with
Multiplex as the builder. The project was to
be a public private partnership between the
State Government and the group.
Construction began in July 2005 at the site
which formerly housed a City of Perth car
park and The Black Swan Café. The project
is due to be completed in May 2008. There
is a present expectation that the Court will
begin sitting in the new building in the week
commencing 5 May 2008.
The design and construction of a modern
court building accommodating trial by
jury involves considerable complexity
compared with that of a building for general
commercial use. It must accommodate
separate systems for the movement of the
public, jurors, persons in custody, the judicial
officers of the court and their staff and those
involved in the administration of justice
in both civil and criminal jurisdictions,
whether as litigants, members of the legal
professional, the media and others.
The project comprises the main building
with a frontage on Hay Street which contains
32 judge’s chambers, 24 courtrooms, court
administration, the court registry and
public foyer, facilities for handling persons
in custody and, of course, car parking.
That building, in its entirety, comprises 15
levels. A smaller building with a frontage
along Irwin Street will contain the Victim
Support Service and Child Witness Service
and staff, Community Justice Services
staff, practitioners’ robing facilities and
day work spaces and office space for both
Commonwealth and State prosecutors.
Between the two major structures will be
an atrium with raised walkways connecting
the two structures, security facilities leading
to escalators to the public areas of the court
levels and space for the general public and
court users to relax and have coffee. Shane
Pickett, a well known and very accomplished
Western Australian Aboriginal artist has
been commissioned to paint a substantial
work which will hang on the wall behind the
“Construction began
in July 2005 at the
site which formerly
housed a City of
Perth car park and
The Black Swan
Café. The project is
due to be completed
in May 2008”
main enquiry counter and which will, it is
hoped, have a striking presence appreciable
immediately upon entry from the revolving
doors at the main Hay Street entrance.
The main building will house the court
registry, a ceremonial jury court, the State’s
W e s t e r n
A u s t r a l i a n
B a r
first permanent high security jury court,
eighteen jury courts for general use and
four civil courts. It will also accommodate
the District Court Registrars and will have
four large civil pre-trial/mediation rooms
and eighteen civil conference meeting
rooms. Jury facilities, including a large
jury hall, jury lounge and administrative
support areas are also incorporated into
the design. The building generally and
all court rooms, whether civil or criminal,
have been designed to facilitate access for
the disabled.
At a cost of about $195,000,000 the project,
upon completion, will house the District
Court of Western Australia. It will be,
in terms of safety, security, technology,
convenience and efficiency, at the forefront
of design and innovation. Unlike the
Central Law Courts with its dark and
poorly lit corridors and its harsh textures
and finishes the new development has been
designed, where possible, to bring light into
the building and to give those visiting and
working within a feeling of light, space
and air. For example, the main public areas
on each of the main courtroom floors will
have vistas across the Swan coastal plain to
the Darling scarp. There is, in the Central
Law Courts, no major courtroom or jury
room with natural light. The architects of
the new development have attempted, very
R e v i e w
successfully, to remedy those failings.
Every effort is being made to facilitate
the use of the latest technology in court,
by the judges and staff, by the court
administration and by the legal profession
when working in courtrooms and associated
areas. Where possible, wireless technology
will be employed. All courtrooms will, of
course, be equipped with the latest in digital
flat screen technology to facilitate not only
the giving of evidence by remote closed
circuit link but also document imaging, the
playing of pre recorded evidence and the
dissemination of electronic information.
Given that the new District Court of
Western Australia building will provide the
most up to date facilities for management of
juries and management of persons in custody
it is anticipated that a substantial number
of trials which might otherwise have been
conducted in the Supreme Court building
will now be conducted in the new building.
Visiting judges’ chambers and staff facilities
are available for that purpose.
The District Court judges, staff and registry
will move from the existing Central Law
Courts building in early May of next year.
That will be preceded by an exhaustive
process of testing and monitoring the
new building and its facilities to ensure,
hopefully, a smooth transition. There has
been a programme of refurbishment of the
Central Law Courts proceeding in tandem
with the construction of the new building.
That has been undertaken by the Western
Liberty Group with John Holland Pty Ltd
as the builder. The May Holman Centre,
W e s t e r n
A u s t r a l i a n
“...the main public
areas on each of the
main courtroom
floors will have vistas
across the Swan
coastal plain to the
Darling scarp.”
adjacent to the Central Law Courts has
been sold to a private owner. The District
Court will continue to have the use of the
courts in that building until such time as the
new building is occupied and operational.
Those courts and associated facilities will
then be made available for use by the
Magistrates Court during the refurbishment
of the Central Law Courts building. The
Central Law Courts will, in due course,
house both the Magistrates’ Courts and the
Coroner’s Court. The District Court and
the Magistrates’ Courts will be connected
by conduits beneath Hay Street already
constructed. The management of persons
in custody in the new development will
service not only the needs of the District
Court of Western Australia but also the
Magistrates’ Courts.
The site of the new development has an
historical legal connection. It was formerly
occupied by St George’s Hall originally
built as a theatre by the legal partners of
B a r
Stone & Burt, solicitors, on land adjacent
to their offices. The hall was opened on
the evening of 14 December 1879 with
a gala performance of an Irish play “The
Colleen Baun”. It was frequently used for
public entertainments for about 20 years.
The building was eventually taken over by
government to house the WA Government
Lithographer until about 1920 when it
became the offices of the Child Welfare
Department. That Department continued
to occupy the building until the early
1960’s. Subsequently, the hall itself was
demolished leaving what remains today,
being the imposing facade with Greek
columns and pediment. There was, in the
1960’s, a recommendation that the facade be
re erected in a more commanding position.
That recommendation did not find favour.
The facade remains in situ because of its
heritage value and will stand on the Hay
Street frontage of the new development.
It does not have a function so far as the
District Court of Western Australia is
concerned but it does have, of course,
significant heritage value. A photograph
or artistic representation of the building, as
it previously existed, will be mounted in an
appropriate place within the main foyer of
the new District Court building along with
some detail as to the history of the site.
The District Court of Western Australia is,
according to the most recent productivity
figures produced by the Australian
Government, the most efficient court in
Australia in terms of its clearance rates.
That has been achieved notwithstanding a
substantial increase, in past decades, in the
workflow to the Court and a struggle to deal
with what has been, for several years now, a
troublesome backlog. It is anticipated that,
in the environment of and with the facilities
available in the new court complex and with
additions to the complement of the Court,
it will continue to set high standards both
in terms of productivity and in terms of the
quality of justice provided.
R e v i e w
Jim McGinty MLA – Attorney General
Human Rights Laws For WA
Australia is the only common law country in
the world with no bill of rights. The United
Kingdom, Hong Kong, South Africa,
Europe, USA – the list goes on – all have
some form of a bill of rights.
been able to educate people about human
rights and encourage debate.
Australia does not have a history of protecting
and enshrining human rights. 107 year ago,
when Australia became a Federation, the
colonies wanted to discriminate against
indigenous and non-Anglo-Saxon people.
The Constitution when it was first written
included clear breaches of human rights by
making indigenous people non-citizens.
One of the first pieces of legislation passed
by the Australian Parliament, the White
Australia Policy, clearly offended human
rights.
The WA Draft Human Rights Bill is largely
based on the ACT and Victorian statutes.
The protected rights are civil and political
which includes rights surrounding legal
proceedings and process particularly in a
criminal context.
Today, however, there is a growing concern
about the ‘little person’ against Government
– Davis vs. Goliath – as people now
recognise the need to give ordinary people
the ability to take on Government.
Ideally, all States and Territories and the
Commonwealth will introduce human
rights legislation. However at a service
delivery level such as health and education,
human rights legislation is significant
primarily for the States and Territories.
High profile cases and issues such as boat
people, detention centres, terrorism and
recently the case of Dr Haneef all come
under the Commonwealth umbrella.
Although there are a small number of people
at an international level, it is the every day
issues that affect every day people that
concern the States.
The ACT and Victoria have enacted human
rights legislation. WA is now heading
in a similar direction. Other States and
Territories will no doubt follow.
It is hoped that from this legislation, a
culture of human rights will be established
in Western Australia.
Fred Chaney AO was appointed as Chair of
the Consultation Committee for a Proposed
WA Human Rights Act. The other
members of the committee are the Most
Reverend Peter Carnley, Ms Lisa Baker
and Ms Colleen Hayward. All are eminent
community members who have been tasked
to consult with the public about whether
WA should adopt a Human Rights Act.
As part of the process of obtaining views
of the community, the committee has also
The consultation process has now been
completed. The final report will be delivered
to Government in November 2007.
The Bill is aimed at Government
– departments and agencies – not to
individual members of the community or
private sector bodies.
“This is the first step
in building a human
rights culture in
Western Australia.
If the committee
recommends
legislation it will be
for the Government
to consider its
response.”
Parliamentary sovereignty is retained in
this model. The WA Human Rights
Bill is not based on the US model. For
any new bills before Parliament, they
must be accompanied by a ‘statement of
compatibility’ which states whether the
bill is compatible with human rights. This
must be laid before the House before the bill
receives its second reading. If a statement
is made that the bill is not compatible with
human rights, it must set out the nature
and extent of the incompatibility and why
the bill should nevertheless be considered
by the Parliament.
In the United Kingdom, following the
introduction of its Human Rights Act in
1998, there have been approximately 17
occasions where the courts have pointed
to problems in legislation in terms of
compatibility with human rights - and, as
a result, on each occasion the Parliament
W e s t e r n
A u s t r a l i a n
B a r
Jim McGinty MLA
has responded positively by appropriately
amending the legislation.
The Courts have a role to play in the
interpretation of written laws. Under the
proposed Bill unclear written laws will be
interpreted compatibly with human rights.
However, a law that limits a human right
in WA is not incompatible with the human
right if the limitation is reasonable and
demonstrably justifiable.
A ‘declaration of incompatibility’ is defined
as a declaration that the written law cannot
be interpreted in a way that is compatible
with human rights in so far as it is possible
to do so consistently with the purpose
or object underlying the written law. A
declaration of incompatibility may only
arise when there is an action in the Supreme
Court. A declaration of incompatibility
does not affect the validity or operation or
enforcement of the written law and it does
not create any enforceable right or any cause
of action.
Remedy for breaches of human rights can
be sought in any court or tribunal. It will
be unlawful for a government agency to act
in a way that is incompatible with a human
right; or, in making a decision, to fail to give
proper consideration to a relevant human
right. As in Victoria, a person could bring
another cause of action, they can include
a breach of human rights as an additional
ground of unlawfulness. A person will
not be entitled to damages or any other
pecuniary remedy in respect of any injury or
loss suffered as a result of breach of human
rights legislation.
This is the first step in building a human
rights culture in Western Australia. If
the committee recommends legislation it
will be for the Government to consider its
response.
R e v i e w
Ken Martin QC (Immediate Past President)
West Australian Bar Association
The Future of The West
Australian Bar – 45 Years on
In October 1963, F TP Burt QC, and
Messrs JL Wickham, G Clarkson and T
Walsh (as they then were), founded the
West Australian Bar Association.
Unlike the position in NSW and
Queensland, where there had always been
a strict separation between barristers and
solicitors, that had not, until 1963, been the
experience or culture of the organisation of
the legal profession within the Swan River
Colony and the State of WA. Instead, local
considerations of small population, small
rural economy and vast distances, had seen
Western Australia’s legal profession develop
as an amalgam. That is not to say that prior
to 1963 that there had not been outstanding
advocates practising in Western Australia.
There had. But these ‘local legends’
practised within the environment of legal
partnership, operating in Perth, Geraldton
or Kalgoorlie. Such local advocates were
not infrequently in receipt of “briefs” from
other Western Australian firms which were
accepted and returned at the conclusion of
the briefed assignment.
A gradual evolution of an independent bar
in Western Australia since 1963, mirrors the
situation in Victoria – where it was not really
until the start of the 20th Century that the
phenomenon of an independent bar took
root and then grew rapidly. It is probably
the case that a strong tradition of amalgam
advocacy in Western Australia, has taken
longer to subside than in Victoria. But in
my view, the emergence of a separate bar
in Western Australia was always inevitable,
for two key reasons. First, specialisation is
inevitable as society grows more complex
and the intensity of modern commerce
develops. Once Western Australia began
to experience dramatic economic growth
in the 1960s and shrugged off its tag as
the rurally grounded Cinderella State,
strong project based growth was going to
carry with it the allied phenomenon of
commercial disputation. As commercial
disputes increased and became more
significant in monetary terms, a need for
more specialist advisers and specialist
advocates intensified.
Second and more importantly, the separation
of function as between the barrister and the
W e s t e r n
A u s t r a l i a n
solicitor roles is a wholly logical and natural
dichotomy under the Westminster justice
system. The functional model of the English
Bar has stood the test of time over centuries
and for good reason. It allows the much in
demand top-flight legal specialist to devote
an appropriate level of quality preparation
time to the complexities of litigation,
without all the distractions and intrusions
of a daily solicitor’s practice. As would be
expected this was eloquently explained by
Sir Francis Burt in an interview with Brief
“The Foundations of the Independent Bar
– Interview with Sir Francis Burt and Terry
Walsh QC” August 1992 (pages 11-19)
quoted in, May it Please your Honour – a
History of the Supreme Court of Western
Australia from 1861 to 2005, by Bolton &
Byrne (2005):
“… it enabled you to give all your
time and attention to the more
interesting problems without being
harassed by customers wanting to
know how they stood with their
problems … I’d be in Court all day
in those days, I’d get back, half past
four I suppose, and there would be
a great line of people waiting to see
me. As soon they came in to tell
you what their problems were the
telephone started to ring. It just
struck me as an impossible way to
practice law. … The only way you
could do the better work in town
with some degree of objectivity was
to do it as a barrister, out of contact,
inter alia with your lay client.”
Ken Martin QC
potential interruption nowadays, the
distraction factor is magnified tenfold,
if account is taken of the immediacy of
modern communication as a result of
faxes, mobile telephones, e-mails, pagers
and of course, the ubiquitous Blackberry.
Consumer expectations are also wholly
intolerant of workload. Every client deep
down thinks that their problem is the only
task that matters to their advisers. E-mail as
a phenomenon, is grounded on the heretical
assumption that no one has anything to
do all day except sit staring at a computer
screen, waiting for the privilege of receiving
an e-mail from the sender.
Recognition as to a natural order of
separation of legal functions, is not to
imply that the role of barrister is in any way
superior to that of the role of a solicitor.
Both roles are indispensably essential. But
the responsibilities are different. Again,
the point was captured perfectly by Burt,
explaining why the WA Bar was founded
upon the basis (abandoned in 2004 as a
pernicious vice upon commerce – courtesy
of the ACCC) that its members would also
be members of The Law Society of Western
Australia. He said:
Burt’s observations are even more apposite
in late 2007. In terms of intrusion and
The functional
Bar has stood the
test of time over
centuries and for
good reason.
B a r
R e v i e w
“We weren’t going to survive if we
pretended that we were superior
to the solicitors and were trying to
start something in opposition to the
amalgam who were doing Bar work.
… But that wasn’t the primary
reason. … I think the profession is
one profession. And that’s why at
the beginning when we were very
vulnerable to it really, we always
encouraged Eastern States Silks.
… We used to like it, and always
thought it gave us a great deal of
confidence how inefficient many of
them were. … One of my criticisms
of the Bars in the East is that they
don’t understand the problems of
the solicitors.”
But at the end of 2007 where does the
future lie for the WA Bar? Almost 45 years
subsequent to the founding of the West
Australian Bar Association it finds itself with
171 local members and with 16 interstate
members. There are approximately 7 sets of
barristers’ chambers across the Perth CBD.
From a perspective of promoting some
planning for its future, I have chosen to
take up the invitation of the Editor to navel
gaze – by reference to a modern strategic
planning tool – the SWOT analysis,
namely to consider Strengths, Weaknesses,
Opportunities and Threats for the WA Bar.
Without apology, I have applied a highly
subjective analysis, based upon personal
experience after almost 30 years in legal
practice in WA and 16 years at the WA
Bar. I expect that there must be different
perspectives and viewpoints, and I do hope
that there may be an opportunity during
2008 for them to be expressed and evaluated.
I have only endeavoured to mention a few
key points under each heading – which I
have addressed in truncated form. I would
welcome a robust debate in due course.
which the work is to be performed. Being
accountable only to oneself does not mean
(in the experience of most) any net reduction
in the hours of work performed. However,
there is a personal flexibility associated
with when and how the work is completed
– which adds an immeasurable component
of enjoyment to the process. If a barrister
takes on too much work, they have no one
to blame except themselves and there is no
point grumbling to oneself.
With control comes
personal contentment.
At the Bar, the sole
trader has a greater
ability to decide how
much and what kind
of work to accept and
the hours within
which the work is to
be performed.
A] STRENGTHS
I identify the following elements as falling
under this heading.
(1) Quality.
The biggest strength of the Bar is its
People. From inception, the Bar has
attracted the best and the brightest West
Australian lawyers. There are a number
of reasons for this, including a sanity
benefit referred to by Sir Francis Burt,
of essentially being able to function as a
sole trader without the intrusion of direct
client responsibilities. Almost everyone
who has made the transition to the Bar
from a legal partnership will attest to the
pure, uncluttered enjoyment of practising
solely on one’s own account – without
the accompanying attendance to client
idiosyncrasies, daily administrative burdens
of partners’ meetings, responsibility for the
wellbeing of numerous employees and all
the modern business baggage that goes with
all that responsibility. I mention two other
attractions that will always be a lure to the
best people – Control and Challenge.
With control comes personal contentment.
At the Bar, the sole trader has a greater
ability to decide how much and what kind
of work to accept and the hours within
The challenge to function at the highest
professional level also needs to be factored
into the equation. For someone who wants
to perform at the highest levels possible,
there is no greater challenge than providing
an opinion or some strategic advice, which
may in due course need to be defended on
your feet before the highest courts in the
land. Unlike the insulated adviser who
may never be called into court to defend
their advice or what they have deemed
arguable, the practising barrister knows that
in due course, he or she may be required
to stand up before some severely sceptical
judges and defend that advice. This injects
a component of intellectual honesty and
pragmatic reality into the barrister’s product.
The best and the brightest will always
find the lure of performing at elite level
– irresistible.
(2) Empathy with the consumer
(solicitors)
In Western Australia most barristers have
spent some time practising within the
amalgam as partner/solicitor advocates.
Because of this experience, they come to the
Bar with a realistic insight into the pragmatic
difficulties encountered within a solicitor’s
W e s t e r n
A u s t r a l i a n
B a r
day-to-day practice, such as collecting
fees from impossible clients and the sheer
logistics of assembling materials, witnesses
and getting them to a court and the timing
pressures which flow from all that. Recall
what Sir Francis Burt described above for
other Bars, where a young law graduate
could sign the Bar Roll immediately after a
short practice course and never set foot in
their whole life within a solicitor’s office.
Most barristers at the West Australian Bar
have experienced firsthand the niceties of
operating within a solicitor’s practice and
so, have a deeper understanding of what
is required to work with and to assist the
instructing solicitor.
Most in the past have also themselves
been consumers of independent barrister’s
services – whilst operating within the WA
amalgam and therefore will as solicitors
have seen good service or lesser standards
of service from the Bar. Walking in the
other profession’s shoes for a period is
an invaluable grounding for a second
professional life at the Bar.
(3) Geographic isolation
The West Australian Bar has always enjoyed
to a degree, the Australian continent’s
geographic protection afforded by the
Nullarbor Plain. No doubt, as modern
air travel becomes faster, easier and as
the Australian legal profession becomes
increasingly more mobile, the insulation
benefits of Perth being the world ’s
most isolated city will diminish further.
Nevertheless there is nothing like local
knowledge and local insight. The benefit
of constantly appearing before a local
judiciary and familiarity with local rules
of court, procedures, practice directions
and the much feared (by outsiders!) local
‘Sandgroper’ customs is tangible. There
is also some disinclination to outsiders in
travelling too far away from a comfortable
home and living out of a suit case for too
long – which factors continue to provide
Perth based professionals with a home
ground advantage. Whilst too much should
not be made of this factor, it nevertheless
must be weighed in any equation in terms
of favouring a local Bar, for as long as it
provides good service to its core consumer
base.
(4) Aspiration to Silk and
judicial appointment
There are certain institutional factors which
tend to orient local solicitor advocates
towards a longer term future practice,
as members of the Bar. Such factors
R e v i e w
include the desire to be more widely
briefed and thereby to satisfy one of the
key requirements for becoming a Senior
Counsel (“SC”) in Western Australia.
There is no doubt that it is far easier to
satisfy this requirement practising as an
independent barrister – although that is
not to say that the task is impossible. The
Bar, by reason of the customary barristerial
traits of independence and stand alone
individuality associated with the job, will
always be a natural recruiting ground for
sound appointments to the judiciary. The
Bar should not, cannot and does not claim
a monopoly in this regard. But there are
obviously close ties between the local Bar
and the local Bench. An analysis of the
backgrounds of the local judiciary indicates
that prior professional life experience as
a senior barrister is a very strong plus in
terms of acquiring the essential underlying
qualifications required in order to perform
the demanding functions of judicial office
to an acceptable standard.
B] WEAKNESSES
There are four to which I draw attention.
(1) The financial position of the
WABA
The WABA has the balance sheet of a small
country town tennis club. From an income
perspective it is almost totally reliant upon
the annual subscriptions which it levies to its
members. Yet the WABA is annually now
becoming an increasingly busier organisation
with national involvement in the Law
Council of Australia as a constituent body
in its own right since 2005 and as a member
of the National Association of Australian
Barristers (the Australian Bar Association).
To date, the WA Bar Association has never
had more than one full-time employee. Yet
its views are now sought in a multitude of
areas, on a multitude of topics. It receives
many requests for pro bono assistance
from its website. It is increasingly asked
to comment on important and topical
local legislation and issues affecting the
administration of justice. It is taking on,
as it must, an increasingly demanding
and professional role in the continuing
legal education of its young members. A
comparison with the balance sheets of the
much longer established eastern seaboard
Bars reveals their immeasurably greater
resources, allowing the engagement of policy
officers, legal research officers, media liaison
officers etc. The comparison is a humbling
experience. In contrast, the WABA has had
to operate on a ‘shoe string’ from inception.
W e s t e r n
A u s t r a l i a n
It relies very heavily upon its annually elected
Bar Councillors to shoulder an increasing
burden of daily responsibility across all these
areas, on a completely voluntary basis. To
meet its obligations and to operate with the
required level of future professionalism, it
is imperative, in my view, that over time
the capital base of the WABA be greatly
strengthened, so that the asset side of the
WABA balance sheet moves more into line
with that of the eastern seaboard Bars with
which it now seeks to stand shoulder-toshoulder. I have some ideas on this but so
do others and the Bar should get together
as an organisation in 2008 and plan how to
meet these objectives.
(2) Space
Rental space is currently at an expensive
premium across the Perth CBD. Rents are
rising sharply.
The traditional barrister’s model was
someone who operated in a low rent,
somewhat down at heel (Rumpolian)
environment thereby working off a low cost
base – in order to present a certain economic
attraction in terms of engaging the services
of a barrister. At the present time, most of
the chambers around the Perth CBD are
at close to reaching capacity – although
there are the usual seasonal fluctuations
and vacancies arising, particularly as
In the short to
medium term some
new chambers,
operating off a
relatively low cost
base will need to be
established, if the
Bar is to continue to
grow.
appointments to the Bench occur.
Nevertheless it is imperative that there
be sufficient long term, low cost space
options in good sets of chambers available,
in order to continue to grow and to attract
young, talented legal practitioners to
the WA Bar, on a rental basis that is not
unduly intimidating, measured against the
challenge of operating as a sole practitioner.
B a r
The largest set of chambers in Perth, Francis
Burt Chambers – operates across five floors
of the Allendale Square Building on St
George’s Terrace. Scope for the physical
expansion of those chambers too much
further is limited. In the short to medium
term some new chambers, operating off
a relatively low cost base will need to be
established, if the Bar is to continue to
grow.
(3) A numerically small Bar
The West Australian Bar is still relatively
small – viewed against the size of the
eastern seaboard Bars. Accordingly, its
capacity to cover all areas of legal specialty
is sometimes stretched too thinly. This
particularly occurs in the wake of multiple
judicial appointments, which in Western
Australia seems to happen at a younger age
than in comparison to what occurs on the
eastern seaboard. As a result, the WA Bar,
like the WA legal profession is youthful,
and prone to being at times thin on the
ground in terms of seniority and experience,
particularly for demanding commercial
cases and in high level crime.
If the local Bar cannot meet the demands
of its local consumers in Western Australia
then high level work that should be
performed by it will go elsewhere.
(4) Gender balance
Gender imbalance in terms of numbers
of women practising at the Bar remains a
concern. In some mitigation, this is not just
a West Australian Bar problem and there
have been a significant number of highly
talented women barristers appointed at a
relatively young point in their professional
careers to the judiciary (measured across
the Perth Magistracy and the District
and Supreme Courts) which needs to be
recognised as having impacted against a
better overall ratio – reflecting continuing
efforts to persuade talented female legal
practitioners that the Bar is a desirable
environment within which to practice. The
issue could occupy a planning day in its own
right. Notwithstanding strenuous efforts
that undoubtedly have been made in the past
decade to attract outstanding female legal
practitioners to the local Bar, these efforts
must be maintained and intensified, so that
the Bar as an institution, continues to enjoy
wide public confidence and does not carry
the unwelcome baggage of an undeserved
reputation as being a “boy’s club”
(5) “Perthcentric”
Unlike the situation on the eastern seaboard,
R e v i e w
the WABA’s membership is almost entirely
found practising in chambers within the
Perth CBD (with acknowledgement and due
recognition to Ian Morison’s chambers at
Bunbury). The failure by Western Australia
as a State to adequately de-centralise its
regional centres is a weakness of a generic
kind which of course cannot be attributed to
the Bar Association. In contrast, witness the
position in Queensland and in NSW, where
strong regional centres have developed
barristers’ chambers. In contrast, successive
West Australian Government’s efforts at
regional de-centralisation beyond Perth
have been less than successful. It will be
seen whether the impact of climate change
could bear upon this. It needs to be borne
in mind longer term, that the WABA must
represent the interests of West Australian
barristers, not just Perth based barristers. A
development of the Bar into WA’s regional
centres such as Geraldton, Broome, Albany,
Kalgoorlie and Esperance must happen in
the 21st Century.
C] OPPORTUNITIES
These should be mentioned:
(1) Continuing Professional
Education:
The future of the WA Bar overwhelmingly
lies here. Forty-five years ago the Bar began
as a small group of like-minded men, who
sought to establish in WA, the model of the
English Bar – imposing that model across a
tradition of amalgam advocacy which had
taken root over 130 years in the Colony/
State. Now that a local independent Bar
is securely established, the next step is to
capitalise upon the immense intellectual
talent that lies within its midst and convert
that to its long term future and security.
Coincidentally, a new State Legal Profession
Bill which is to come into effect in mid
2008, will lay down a mandatory regime of
continuing professional development for the
whole legal profession of Western Australia.
A unique and immediate opportunity
now presents for the WA Bar Association
to establish itself as a pre-eminent legal
educator, not only to its own members,
through a delivery of intellectual product,
but also as an education provider to the
wider legal profession of WA. A correlative
benefit of the WA Bar entrenching itself as
a leading educator of the legal profession
is that the process could also address
the financial vulnerability, mentioned as
weakness (1) above. A precious opportunity
also exists now to form strategic alliances
with other commercial legal education
providers that will see the delivery of these
more demand for barristers’ unique services
in overall commercial context.
A development of
the Bar into WA’s
regional centres
such as Geraldton,
Broome, Albany,
Kalgoorlie and
Esperance must
happen in the 21st
Century.
services met. The Bar must be careful to
attribute proper ‘value’ to its unique position
as potentially a pre-eminent legal education
provider for Western Australia.
(2) Intellectual influence across
the broader community:
With more on the ground human resources,
the West Australian Bar could set itself
a target of evolving toward a position of
local strategic influence, more akin say, to
that of the NSW Bar Association in that
State. This is obviously a longer term
goal. It would require the deployment of
resources to the field of legal research and
policy officers – rather than just working off
a traditional reliance upon the ad hoc West
Australian ‘small town’ model of seeing the
busiest people being leaned on to voluntarily
assist, with everyone else just sitting back
and watching. That outdated ‘small town’
model functioned well, where the demands
placed on volunteers were relatively modest,
bearing in mind that most of them, by reason
of their innate competence and diligence,
were themselves likely to be barristers in
high demand and discharging significantly
oppressive personal workloads. Asking even
more of them is not a long term answer in
the 21st Century. The Bar as an institution
needs to become more professional in
terms of organisational structure. More
modest and realistic expectations from
volunteers assisting a team of focussed core
professional staff – must be the objective of
the future.
(3) Growth:
The Bar has a unique opportunity to expand
in the next decades. The State and economy
continues to grow rapidly. There seems
to be no sign of economic downturn on
the horizon. More commerce, deals and
projects, means more disputation and so,
W e s t e r n
A u s t r a l i a n
B a r
With more formalised education programs
for new barristers (such as through the
now four year old Bar Readers’ Course
and through ABA sponsored national
advocacy residential training programs such
as was witnessed in Perth in January 2007
and which will be conducted in Sydney
January 2008 and Adelaide July 2008),
potential exists for talented, younger legal
practitioners to make a move to the Bar
– earlier than they might otherwise have
done a generation ago. Then, the typical
arrival model would have seen a period in
an amalgam solicitor’s practice, followed
by amalgam partnership, followed by
departure to the Bar at or around age 3540. But a need for our local Bar to grow
and an enhanced capacity to educate and
mentor its young ‘readers’ means that
that old stereotype will not necessarily be
appropriate for the future.
A caveat here is that talented young lawyers
attracted to a life at the Bar, willing to
make a ‘courageous’ early move, need to
be nurtured for a time as they develop self
sustaining practices. As a loose competitive
association of single minded sole traders,
it is easy for barristers to be all consumed
with the hourly demands of their own
daily practices and so, not to take in a
wider view of the needs of others across
chambers generally. Infrastructure needs to
be established to make sure that this broader
oversight is in place.
(4) Mediation and dispute
resolution:
The nature of civil litigation is changing.
An adversarial process driven intensively
by a wide array of human input, makes full
flown trials in the civil area, very costly,
time consuming and a less attractive dispute
resolution to business, than in days gone
by. At the end of the day the base service
being rendered by a justice system is about
civilised dispute resolution. The Bar needs
to ensure that it holds or acquires modern
pre-eminent dispute resolution skills
within its ranks to be deployed towards the
contemporary needs of parties in dispute.
There are opportunities here for barristers,
uniquely independent and free thinking
in spirit, to perform the dispute resolution
function.
(5) Interstate and international
practice:
When the new West Australian and South
Australian Legal Profession Acts are finally
R e v i e w
proclaimed during 2008, there should be a
uniform national Australian legal practice
regime across the Australian States and
Territories. Over time rules of court, processes
and evidentiary thresholds will become
even more uniform. Notwithstanding the
natural geographic barrier of the Nullarbor
Plain, which I referred to as a strength,
West Australian barristers as a group are
inherently robust, mobile and adaptable.
There are international opportunities
throughout South East Asia in places such
as Hong Kong where the services of capable,
independent barristers could be usefully
deployed. To date, particularly in the field of
international arbitration, a mobile English
Bar has dominated provision of these
services in the Asia Pacific region. But in
the longer term the geographic proximity of
Australia and particularly Western Australia
to South East Asia in terms of a provision
of arbitration services, is capable of being
developed.
D] THREATS
I identify the following.
(1) Maintaining high standards
Solicitors only brief the Bar, if there is a
perception that the exercise amounts to
value adding. It is imperative therefore
that the Bar be viewed as containing the
leading legal practitioners at the cutting
edge in their fields of expertise. Because of
the historically small numerical numbers at
the West Australian Bar the relatively rapid
growth of the judiciary in the last 20 years,
has seen many outstanding members of the
Bar take up judicial office at the pinnacle
of their legal careers as barristers. It is
important that the growth and replacement
of the local judiciary does not denude the
strength of the local Bar in terms of seniority
and its widespread expertise. It is obviously
in the wider public interest that the best
qualified candidates be appointed judges.
But as the judiciary grows, there is some
potential for that to denude the Bar of its
intellectual “riches” too quickly, and thereby
temporarily lower the reputation of the Bar
for excellence. This must be addressed by an
earlier recruitment of younger barristers to
our Bar than was the case a generation ago.
(2) Interstate counsel
If the Bar does not provide the first class
service to meet the needs of the local
potential consumers of their services to
an acceptable level of performance, then
local consumers (solicitors) will be driven
to look elsewhere. Although it adds extra
cost to the exercise, a sufficiently significant
commercial dispute will warrant deployment
W e s t e r n
A u s t r a l i a n
of fly in, fly out counsel to perform work to
the acceptable standard. As Sir Francis
Burt mentioned in the article to which I
referred, the West Australian Bar has always
welcomed interstate competition and has
been keen to measure itself professionally
against national standards rather than try to
keep outsiders away. That will continue to
be the case. But West Australian barristers
must strive to be competitive, in comparison
to counsel from elsewhere. And not just
competitive in terms of the economics of
their engagement, but forensically and
intellectually competitive.
(3) Perceptions
In early 21st Century Australian society,
perception tends to be reality. This is a
matter of regret, but any provider of services
traders, in fierce competition against each
other, the Bar presents as a truly unique
economic phenomenon. Any aspirant
barrister who expects that the Bar will
operate like a big law firm with overseeing
responsible partners delegating down to
willing hordes of closely monitored junior
solicitors, is in for a rude shock. The Bar
was never meant to operate in such fashion
and never will. That is one of its great
strengths. The Bar is a collection of widely
diverse, single minded individuals, unified
essentially by a common regard for the
importance of the rule of law. But a great
strength can also have its downsides. If
senior influential members of the Bar are
so preoccupied that they are inhibited from
having an eye for the bigger picture, then
the institution they operate within, will be
diminished.
But West Australian
barristers must strive
to be competitive, in
comparison to counsel
from elsewhere.
It is imperative that all members of the
Association contribute as much as they
can to the activities of the Bar and accept
some personal responsibility to provide
leadership and nurturing of new members.
The members of the Bar need to support
their hardworking Council, attend its
functions and strive to preserve the unique
and invaluable links which exist between it
and the judiciary.
needs to listen closely to what the market is
saying about their product.
Importantly for the next 5-10 years, the
members of the WA Bar as a whole,
need to wholeheartedly support the Bar’s
forthcoming education initiatives in
continuing professional development.
There is currently a need like never before
to support these new CPD efforts to the
hilt, through attendance, participation
and goodwill to ensure that they are a
resounding success. Apathy, disinterest
or cynicism have a potential to derail the
WA Bar becoming an even more successful
institution in Western Australia in the next
45 years. Members need to recognise and
embrace the supreme privilege which is
accorded to them as members of the Bar,
still best expressed in the words of Sir Owen
Dixon in 1952 in the following terms:
To the extent that junior legal practitioners
are dissuaded from a career at the Bar
based upon a false perception that it is a
“boy’s club”, or is repressively conservative
(which it isn’t, but is sometimes accused
of being), or that it provides no adequate
support structures for new arrivals in
terms of mentoring or support, then these
perceptions need to be confronted and
addressed.
The freedom and liberated pleasure of
practice at the Bar needs to be constantly
voiced, as a counter-balance to some
negativit y which may exist, albeit
emanating from a stance of ignorance or
misunderstanding. In other words, the
Bar needs to have a marketing strategy to
counter ill formed or negative perceptions
which have a tendency to detract from it
capturing in future, the brightest and best
legal talent of the next legal generation. The
Bar’s place, attractions and message needs
to penetrate early into the law schools in
a more visible way, to ensure some more
accurate and balanced facts counter-balance
any negativity.
(4) Apathy, disinterest and
overwork
As a collection of busy, individualistic sole
B a r
R e v i e w
“I would like to say that from long
experience on the Bench and a not
much shorter experience at the
Bar there is no more important
contribution to the doing of justice
than the elucidation of the facts and
the ascertainment of what a case is
really about, which is done before it
comes to counsel’s hands. Counsel,
who brings his learning, ability,
character and firmness of mind to
the conduct of causes and maintains
the very very high tradition of
honour and independence of English
advocacy, in my opinion makes a
great contribution to justice than the
judge himself.”
The Hon Justice Miller
Coping with the pressures of litigation or Coping
with the pressures of being an ‘in court barrister’
has been done. Nothing is worse than
keeping the instructing solicitor in the dark.
Barristers are expected to be professional,
and professionalism requires the effort of
producing in writing on-going assessments
of the strengths/weaknesses of the case, the
requirements for the instructing solicitor,
and predictions of the outcome.
The following is the text of an address
given by Justice Miller at a Western
Australian Bar Association Seminar
in September/October 1996.
General
These random observations about the
pressures that constant court work bring
to bear on the barrister are written from
an experience of thirty years in almost all
jurisdictions, but predominantly in the
criminal court. Being a barrister makes for
a tough life. There is no room for error,
no room for being sick, and absolutely no
excuse for failing to prepare a case.
Before embarking upon any major case
there are some “Does and Don’ts” which are
universally applicable.
•
Be physically and mentally fit.
•
Avoid distractions like … w e e k e n d s a w a y b e f o r e t h e
commencement of a trial,
… S u n d a y p a r t i e s b e f o r e t h e
commencement of a trial,
… and (in particular) overseas trips
which terminate on the eve of a
trial.
Before a big case the issues will be (or at least
should be) constantly in the barrister’s mind
... forever surfacing as the days count down
to the beginning of the trial. Invariably big
trials being on a Monday and this means
that throughout the course of the preceding
weekend the barrister’s mind will turn to
the case, the issues in the case, the tactics
of the case, the cross-examinations of the
witnesses, and the basis upon which the case
will be summed up at the end.
A good way to combine relaxation with an
ever-present concentration on the case is
to go walking on the Sunday before a big
Monday trial. You will be amazed how the
mind can concentrate on the case ahead as
you cover the kilometres.
Some jurisdictions call for the highest level
of mental concentration. An appearance
before the High Court of Australia on either
a special leave application, or a hearing itself,
is something I liken to a league footballer
preparing for the Grand Final. It requires
total focus, constant mental rehearsal of
the approach to be taken, and (above all) a
building of self confidence before the fateful
morning arrives.
This is not to say it is easy. It is not. It is very
Demands Of The Client
Justice Geoffrey Miller
hard. But that is the job we have selected
for our life’s work, and the pressures which
come with it have to be coped with.
What Are The Pressures
Receipt Of The Papers
The bigger the trial, the bigger will be
the brief. The sheer task of reading and
assimilating the facts contained within the
brief and identifying the issues of law which
will arise, can be a daunting task when six
lever arch files are delivered in a cardboard
box. Here again, there are some important
“Does and Don’ts”:
•
Insist upon the instructing solicitor
providing a precis of the issues in the
trial, and the points of law which are
likely to arise.
•
As you read the brief, keep a pad
next to the file and make a running
notation of the key issues as you
see them as and when they arise ...
much as you would have done in
Law School days in taking a note of
what a lecturer is saying.
• At the conclusion of reading the brief, dictate immediately
a Memorandum of Advice on the
issues, the shortcomings of your
case, work that is still required to be
done, and tentative conclusions on
the outcome.
•
Furnish the instructing solicitor with
a preliminary Memorandum of
Advice so that the solicitor can see what
W e s t e r n
A u s t r a l i a n
B a r
One of the great advantages of being a
barrister is that you can be shielded from
the lay client. Not only can you be, but you
should be. The “Does and Don’ts” in this area
are as follows:
•
Minimise conferences with the
client.
•
NEVER fall for proofing the client...
that is the job of the solicitor and
the barrister should never fall for a
request to perform that task.
•
Avoid at all costs trying to placate
the family of the client... this is a job
for the instructing solicitor and/or
a clerk, and not for the barrister ...
your eyes have to be kept firmly on
the task ahead and should not be
distracted with this task.
•
In cases where the client is an
accused in prison awaiting trial
minimise conferences at prison
... these conferences are held in
unsuitable accommodation, in a
negative environment, and are
usually interspersed with anecdotal
advice from other prison inmates
which the barrister does not require.
It is the solicitor’s job to see the client
in prison, get the proof of evidence
and arrange the key conference with
the barrister prior to trial.
The Preparation Phase
Needless to say it is preparation that often
wins or loses cases. Some cases are so
hopeless that no amount of preparation will
ever win them. But even then, preparation
is essential. No counsel should ever embark
upon a major case without having prepared
in advance either an outline or skeleton of
cross-examination, or even a detailed crossexamination of the key witnesses.
The “Does and Don’t’s” here are:
•
Above all allow TIME before trial
within which to prepare … to many
barristers begin their preparation
for a Monday trial on the Sunday
beforehand.
R e v i e w
•
•
•
•
Do not be afraid to reject a brief
which will have the effect of bringing
you back to back with the next
brief.
Barristers are generally far too greedy
to reject briefs. The result is that they
compact cases one after the other,
and have too little time to prepare
for each succeeding case.
TIME is required to –
… search out the issues
…agree facts where they can be
agreed
… identify issues which may need
to be determined at a Directions
Hearing.
Preparation of proposed crossexaminations is best done by dictating
the questions you think you will be
putting to a particular witness ... in
that way you can prepare a format
for cross-examination which will
have some substance and direction.
Invariably it will need to be changed
in running, but the typed script on
the bar table will give confidence to
the cross-examiner as he sits through
examination-in-chief and waits for
his turn.
Trial
I have already made the point that backto-back trials should be avoided. Space
from one trial to the next is essential for
the barrister if he is to perform at his top.
Too many barristers do endless case after
case, and their performances tire as they
do so. In this respect they are no different
from sportsmen coming towards the end of
a season. Unfortunately, the law knows no
seasons and there is no off-season respite.
For this reason constant SPACE between
trials is essential. Prior to turning up at
court, there are some essential logistics to
consider:
•
The brief needs to be properly
housed in the appropriate folders.
•
A trolley will be needed in any trial
that is likely to go more than a couple
of days
•
Spare folders will be needed for
transcript as it is produced.
•
The bar table needs to be set up
properly before your appearance on
the first day.
•
Arrangements need to be made for
things like morning tea and lunch.
“Does and Don’t’s” in relation to trials
include:
•
Avoid lunchtime conferences with
the client … the luncheon break is
a time to relax, take in some food
which will raise the blood sugar level,
W e s t e r n
A u s t r a l i a n
•
•
and give strength for the afternoon
session.
Avoid after day trial conferences
unless they are absolutely vital ... too
often the client wants a conference
at the end of a day in court just for
the sake of it. Ask yourself: What can
the client contribute? The answer
generally is: Nothing.
At the end of each day, do a small
amount of on-going preparation ...
this may be in the form of further
cross-examination questions, or
(ideally) preparing for the ultimate
address which is to be given in the
trial.
Short Trials
Short trials (by which I mean two or three
day trials) require the attitude of a “sprinter”.
Here you have to be ready to cross-examine
a succession of witnesses in the course of
a day, and perhaps deliver an address to a
jury the following day. All the more reason
why intensive preparation has to be done
prior to the trial. There is simply no time
for preparation during the trial.
Short trials are all about impact and
performance. The barrister has to be on
top of the case, ready to change direction
at a moment’s notice, and he must not be
distracted. This is where the role of the
instructing solicitor becomes particularly
important. Being shielded from the client
is essential to enable the barrister to focus
on the task ahead.
Long Trials
In a long trial there is no need for the
barrister to make an explosive impact on
the first day. Rather, a slow working into
the case is required. Long cases require
concentration, but they also demand
relaxation. There is no point in having an
adrenalin rush every day of a ten week trial.
You will simply be worn out. “Dead spots” in
long trials should be utilised by the barrister
to prepare for what is to come.
In particular, when things are going quietly
and you are not being called upon, it is
important to start preparing for the address
which you will have to give at the conclusion
of the case. Nothing is worse in a three
month trial than trying to pull together
the threads of the case in the last few days.
It is something that has to be worked on,
massaged, and perfected week by week as
the trial runs along.
If you are in a trial where there are six
accused, and there are large slabs of evidence
which are of no concern to your client, there
is no reason why an application should
not be made to the trial judge for leave to
come and go from the trial as and when it
is appropriate to your own case. Judges will
B a r
But West Australian
barristers must strive
to be competitive, in
comparison to counsel
from elsewhere.
have no hesitation in granting that leave.
Opportunities like this need to be grabbed
with both hands, because they afford
the time to prepare for the all important
address to the jury which will come at the
termination of proceedings.
Verdict
I have some strict “Does and Don’ts” about
verdict days in criminal trials:
•
If you win, do not … jump about and make a big
noise;
… go around telling everybody what
a great job you did;
… give doorstop interviews to
the media outside the court; …
commiserate with your opposing
counsel.
•
Instead, feel professionally satisfied
and quit the venue at the earliest
possible opportunity.
•
If you lose ... do not fall for the trap of reflex
comment “we will appeal”;
… but hide your disappointment by
collecting your papers and quietly
leaving the venue;
… leave your instructing solicitor
to handle family and friends of the
accused;
... tell the accused you will be in
contact with him when you have
had an opportunity of considering
whether or not there are any grounds
for appeal.
When the case is over take a break. Any
trial, but particularly criminal trials, can
be physically and mentally exhausting. You
often feel good the day after the trial because
it is over. But it is important to take time out
to re-group for the next occasion when you
are in court. Do not fall for the idea that you
are indispensable. Above all, do not panic
when there is a gap in your diary. Barristers
must keep flexible … flexibility will give you
the opportunity to accept that all important
brief which is around the corner … whereas
a full diary of back-to-back trials will lock
you in for a year or more and cause a lot of
heartache in having to reject something you
really wanted to do.
R e v i e w
Interview with Ian Viner QC
Felicity Davis
The Hon. Ian Viner, AO QC will
soon be retiring following a long
and distinguished career in both
the law and politics.
Mr Viner was born on 21 January 1933
and grew up in Bunbury, Western
Australia. He graduated with an
LLB (Hons) from the University of
Western Australia in 1958. He was
admitted to practice in WA in 1960,
after completing articles with the
firm Muir Williams, later becoming
a partner of that firm. In 1964 he
joined the then newly established
Western Australian Bar.
He ceased practising as a barrister
when he became the Member
fo r Sti r l ing in th e H o u se o f
Representatives from 1972 to 1983.
He was the first Aboriginal Affairs
Minister in the Fraser Government
and continued successively in a
number of Ministerial and Cabinet
portfolios until 1983. He introduced
the 1976 Northern Territory Land
Rights Act and the Aboriginal
Community Councils Act.
In 1983 Mr Viner returned to his
practice as a barrister. He was
appointed Queens Counsel in 1984
and an Officer in the General
Division of the Order of Australia on
14 June 1999. He was a part-time
member of the National Native
Title Tribunal in 1995 to 1996. He
was Deputy-Chair, Council for
Aboriginal Reconciliation 19951997. He is a Past President of the
Western Australian Bar Association
(2001 – 2004) and Past President
of the Australian Bar Association
(2005-2006).
He is married to Ngaire and they
have 7 children – 3 sons and 4
daughters – and 16 grandchildren
Felicity Davis recently interviewed
Mr Viner.
Have you actually officially
retired from the Bar?
No, not yet. As I say to people, I am in semiretirement and some people are unkind
enough to have a bit of chuckle because
they have seen me around the 23rd floor
fairly often. I am presently sitting on a
door tenancy with Francis Burt Chambers
and that continues until the end of January
2008. I am in ‘run off ’ mode.
What are you doing with the
spare time that you must have
now?
Well it’s a mixture. I think inevitably when
you go into retirement or semi retirement
you go travelling although I have been doing
a fair amount of that for the last few years.
Ngaire and I went off to Europe in June and
July for about 5 weeks and I have more time
to spend on my own affairs, to be at home,
to visit people and just recently we’ve been
over to Queensland for a family wedding
– that kind of thing.
Have you got any interest in
doing projects, getting involved
on any committees or anything
similar in the law, or will you
cut all ties after retirement?
Oh no, not cut all ties, in fact I am still a
member of the Legal Contribution Trust
for which I’ve been a trustee for about 15
years. I am happy to continue contact with
the profession and I intend to keep my
practice certificate and be a member of the
Bar Association.
I know you have a particular
interest in the history of the
Bar. Are you planning to write
a history?
Well that’s an area in which I would like
to make a contribution. When I was
president of the Bar Association we did a
quite a number of oral histories including
some for those who have since passed away,
like Sir Francis Burt. I think a history of
the Bar would be a tremendous venture for
the Association. It would be a fascinating
project, because it would reflect the social,
political and legal history of Western
Australia from the time when the Bar
W e s t e r n
A u s t r a l i a n
B a r
Ian Viner QC
was established in the early 1960’s. It
would be a picture of the development
of Western Australia from personalities
like Peter Durack and Darryl Williams,
Commonwealth Attorneys General, and Sir
Francis Burt and others on the judiciary.
How long after you started
practice did you join the Bar?
I was fortunate to be articled to Red Burt
and then I became a partner in what was
then Joseph Muir Williams and within a
couple of years of that Burt went to the
Bar and he was very soon followed by John
Wickham. So coming through the common
law litigation scene in Muir Williams it was
a natural inclination of mine, and I went to
the Bar soon after.i
How did you decide to study
and practice law?
Ah well that’s interesting, because I started
working life as a banker at the ripe old age
of 15 down in my home town of Bunbury. I
then did national service training in the Air
Force for 6 months. After returning to work
as a bank officer it really set me thinking
about what I wanted to do.
I had been working for the bank in York and
there was a solicitor in town, Rolly Iddison
(later a magistrate) who I got to know. I
had a talk to him when I came out of the
Air Force and went back to the bank, and
he said he would be prepared to take me as
an articled clerk and that I could do it by 5
years articles. So I left the bank and started
off with Rolly but then for a number of
reasons decided that 5 years articles wasn’t
the way to go. So I sat down and got my
leaving by correspondence – I did a 2 year
course in about 5 months. Thankfully I
R e v i e w
passed my 5 subjects to scrape through, went
down and saw Frank Beasley the Dean of
the Law School and was accepted. So on
about my 21st birthday I jumped on the
train and came down to Perth to become a
full-time student.
How many people were in your
year at law school?
In the first year there would have been about
20 I think, no more than about 20 and in
the final year we finished up with about 10.
So it was a pretty small group.
How long was the course for?
It was a four year course and then 2 year
articles. That was the way it was done in
those days.
How did you manage to get
articles with Red Burt?
I really didn’t know anybody in the legal
profession except Roley Iddison but my
wife’s uncle, who was an eye specialist,
happened to give evidence for Red in a
worker’s compensation case. So he had a
word to Red and, thankfully, Red accepted
me.
What was he like to work for?
Oh very good, very good. A very good trainer.
Always gave you complete confidence and
he showed confidence in you, even to the
point where I can remember him coming in
one day and saying ‘well I’m off on a couple
of weeks holiday, Ian, you’ll look after all the
files won’t you?’, which I had to do. He was
a great one for sitting down at the end of
the day over a beer talking about either the
day’s case or cases that he had coming up,
so that you learnt from not only your own
practical experience but by being exposed
to Burt talking about the law, talking about
issues.
Your practised as a barrister for
a number of years and then
decided to go into politics?
Well, I was always interested in politics. I
was a member of the University Liberal
Club. I stayed with the Liberal Party when
I finished Uni and I was fortunate to work
with people like Ian Medcalf who became
State Attorney-General, Peter Durack, who
became Commonwealth Attorney General
and the late Ray Nowland, who was always
trying to win the seat of West Perth. So I
cut my teeth in politics with people like that
and then the opportunity came up with a
W e s t e r n
A u s t r a l i a n
set of vacancies. I can remember talking to
Red Burt about it and he said ‘well go for
it Ian’. I nominated for a Senate vacancy
but didn’t get endorsement. Reg Withers
actually got the endorsement that time.
Later the seat of Stirling became vacant for
endorsement and I nominated for that. I
lost the first election in 1969 and then won
the second in 1972 and became a Minister
under Malcolm Fraser in 1975.
I represented the Stirling electorate until
the March 1983 election when I lost my
seat when the Fraser Government lost the
election.
“As I say to people,
I am in semiretirement and some
people are unkind
enough to have a bit
of chuckle because they
have seen me around
the 23rd floor fairly
often.”
And what were your portfolios?
I had all sorts of portfolios. Aboriginal
Affairs, Employment and Youth Affairs,
assisting the Treasurer, assisting the Prime
Minister, the Leader of the House of
Representatives, Industrial Relations,
representing the Attorney General and
then I finished with the portfolio of
Defence Support (which was all the
defence production facilities of Australia),
assisting the Minister of Defence and on
the Australian Defence Council.
What was the most interesting
of those portfolios?
Well the most interesting has to be
undoubtedly Aboriginal Affairs. It was very
much a life changing personal experience to
be exposed to that section of the community
and all the issues that they had both
personally, socially and culturally. I think
I saw more of Australia than almost any
other person in terms of travelling around.
Land Rights was the big political issue
affecting Aboriginal people and Torres
Strait Islanders at that time, so I introduced
B a r
and put through Parliament the Northern
Territory Land Rights Bill. I was very
fortunate that I had the whole hearted
support of both Prime Minister Malcolm
Fraser and Deputy Prime Minister Doug
Anthony and some very valued colleagues,
like Fred Chaney, who assisted me getting
it through.
What was your greatest
achievement do you think, as a
politician - was it getting that
Bill passed?
Well I hesitate to talk about greatest
achievements but the Northern Territory
Land Rights Act probably was, because
it was so important to Aboriginal people
and also because the Act has lasted the
test of time and is still in force, although
Governments of both political persuasions
since have taken steps to water it down.
Now back to the Bar… did
you go back immediately after
you lost your seat in the 1983
election?
Yes, well, fairly soon after I lost the seat.
Interestingly because Stirling in my time,
except for the 1975 and 1977 elections, was
a marginal seat (and still is), I always said to
myself that thankfully I’ve got the Bar to go
back to. Whilst in Parliament my approach
was that I didn’t want to be a lawyer in
Parliament, I wanted to be a politician in
Parliament using my legal background
and training to advantage. But making
the decision to come back to the Bar was a
fairly easy one.
What changes have you
observed in the Bar over the
last 20 odd years?
Well, I think the depth of the Bar in terms
of the people who are here, and the breadth
of skills and professional experience of the
Bar – those are the two big things which
are reflected in the numbers now at the
Bar. When I went into Parliament there
were only probably about 15 barristers
at the independent Bar. So there’s been
tremendous growth in the Bar since I began,
went into Parliament and came back.
What were the most satisfying
cases that you’ve worked on?
Well I’ve pretty well always been a plaintiff ’s
lawyer. I had a few defendant’s matters but
primarily I was a plaintiff ’s lawyer. Muir
Williams had a large plaintiff ’s common
R e v i e w
law practice, that carried over into when I
went to the Bar and when I returned. There
is tremendous satisfaction in achieving a
good outcome, whether after a trial or by
compromise, for people who have been very
very seriously injured.
Can you name a highlight?
One was actually my second appearance in
the High Court when I was a member of
the Air Force Legal Reserve. I was called
in to advise someone who was charged
with an offence on the RAAF Base Pearce.
He was charged under State law and the
question arose as to whether State law or
Commonwealth law ran on RAAF Base
Pearce. So anyway, I was only a pretty young
lawyer at the time and pretty young at the
Bar, so I took that strange animal called a
demurrer down in the Supreme Court. The
case involved a constitutional point, so it
went up to the High Court. I went across to
Sydney and I can remember lining up on the
first day with Sir Garfield Barwick presiding
and I had all the Solicitors General from
around Australia all lined up against me,
led by Ron Wilson. I thought to myself,
well they want to affirm the jurisdiction
of the State so they should go first, so
cheekily, when I was called upon by Sir
Garfield Barwick, I made that submission.
He said ‘I regret Mr Viner to say that you
have to begin, would you proceed please.’ I
was on my feet for a day and half and then
all the Solicitors General followed and I
finished up winning.ii So that was an early
experience and a very satisfying one.
In terms of trials here I am not sure that I
could pull one out of the hat and say that
was the most satisfying one, simply because
you win some and you lose some. There
was of course, Gracetown.iii That has a
combination as one of the most satisfying
but the most disappointing of cases I have
done.
That was probably the longest
too, was it?
Just about the longest, I think so. That
went for about 8 weeks. I felt that those
people needed to be represented and needed
to be able to go to court in what I thought
was a just cause. They lost. We’ll all have
views about whether it was the right or the
wrong decision. Interestingly the case came
towards the end of my professional career. It
was a matter of giving back something and
doing something for people.
Now I’m going to ask you about
personalities at the Bar. Are
there any that stand out for
you?
Well, of course, Red Burt, not simply
because he was my principal and mentor
but because I sat with him in the Supreme
Court and in the High Court, saw him
at work and then experienced him, as I
say, at the end of the day whether at Muir
Williams or at the Bar, having a beer and
talking about the law. Other personalities…
interestingly, there are early ones like the late
Ken Hatfield who was ‘Mr MVIT’. He was
the number one lawyer for the motor vehicle
third party insurer. I came up against him
a number of times and in my first trial on
a motor vehicle accident he beat me. Phil
Sharp on the plaintiff ’s side was in those
days the doyen of personal injury lawyers
who came to the Bar early. Leo Wood was
the doyen of the Criminal Bar at the time.
He was a great guy, Leo. We were such a
small profession in those days and a small
Bar, that those kind of people dominated,
whereas today with a much larger profession
and many more people at the Bar, I don’t
think I’m being unkind to say that people
haven’t in more recent years dominated so
much as those early figures did.
“We couldn’t allow
ourselves in WA
to be isolated or
remote from what’s
happening on
the other side of
Australia”
I don’t think I preferred one or the other
because I’ve always been very satisfied with
both.
A very political answer. I’m
going to press you on this!
I was going to add that there is nothing like
the experience of being a politician and in
particular being a Minister and a member
of Cabinet. Really nothing can equal it in
my view. That’s not simply the aphrodisiac
of power but it’s the participation in the
A u s t r a l i a n
What tips would you give a
young barrister?
Get into any court you can at any time.
Don’t try to get into the Supreme Court
too early. I grew up ‘knocking about’ all
the courts. The court of Petty Sessions
and Local Court as it was then known, the
Magistrates Court, doing a bit of crime,
doing a bit of family law, doing a bit of
common law, industrial law, equity and so
on. I found that you could try yourself out,
learn what your own capacities are and if
you are self educating you will learn where
you’ve made your mistakes. So that has
always been my primary advice.
The next tip I would give would be to
keep your ears open to what more senior
barristers are talking about in terms of how
cases have gone, issues that arise so that
you are hearing from them how they’ve
been coping with the good and the bad of
being in court.
Did you prefer your life as
a politician or your life as a
barrister?
W e s t e r n
parliamentary system and your capacity
to influence the course of or the direction
of society. The Northern Territory Land
Rights Act is an example of this. And being
there as a parliamentarian you are making
decisions that you are conscious are going
to influence so many lives. In contrast in
litigation it’s one-on-one, plaintiff against
defendant. Yes, you make law with different
cases which influence legal history, yes you
provide satisfying outcomes for people as I
mentioned and the law is a very challenging
intellectual exercise and very satisfying, but
politics and particularly being a member of
government is a unique experience.
B a r
Finally, I would advise a young barrister to
always be prepared to seek advice. I have
been at the Bar as a silk and as president
of the Bar Association and I always had an
open door policy. So for junior barristers
they should not be afraid to go and knock
on a silk’s door or a senior junior’s door
practising in a particular field and ask for
advice.
As president of the Bar
Association you introduced a
number of initiatives including
education at the Bar and the
Bar Readers’ Course. What
are your views on continuing
education for barristers?
Well I think it is imperative. The Bar has
to be prepared to do what other professions
R e v i e w
have been doing in terms of continuing
education. I think the old days and
attitudes of ‘well, you’ll learn on your feet’
are all very well because part of what I was
saying earlier, knocking about the courts
is learning on your feet, but these days I
think the profession and the community
expect something more than that. The
Bar Readers’ Course was also established
at a time when it was obvious that there
was going to be, at some time in the future,
compulsory continuing education. The
other thing that drove me was seeing
the benefit of Bar Readers’ Courses in
Victoria, NSW and Queensland. The legal
profession, including the Bar, was becoming
much more national and it was time for WA
to become part of that national context and
develop its own Bar Readers’ Course. So it
was from those different perspectives that I
thought we should have one and thankfully
the Bar Council agreed and I think it has
been a tremendous success.
What other issues do you see
for the Bar in this State?
Well the other initiative that I introduced
was to become a member of the Law Council
of Australia. I thought that we should do
that from two perspectives. First, all Bars
should be represented on Law Council and
secondly because of the national outlook.
We couldn’t allow ourselves in WA to be
isolated or remote from what’s happening
on the other side of Australia.
I would also like to see the Bar encourage
young people to join. It has always been
contentious as to how soon people should
come to the Bar, but I think if somebody is
enthusiastic and wants to be a barrister and
has got that motivation, well, let them come
to the Bar. And if they are good learners
they will do well.
Women at the Bar is another aspect. It
has been very pleasing to see individual
sets of chambers going out of their way to
encourage women lawyers to look at the Bar
as a profession. I think the Bar Association
and individual sets of chambers should
provide ways to encourage women to come
to the Bar.
Finally, something that I’ve talked about,
is to encourage indigenous lawyers to look
at the Bar. When I was here on the 23rd
floor I had an arrangement with George
Turnbull at Legal Aid for some of his
indigenous articled clerks to come over and
spend several weeks with me. We ought
to encourage indigenous law students to
“Finally, I would
advise a young
barrister to always
be prepared to seek
advice.”
look at the Bar as a profession. So that is
something that I would like to do, as well
as look at the history of the Bar.
Thank you, we wish you all the best for your
retirement.
i.
The first 10 entries on the Bar Roll are as
follows.
1. Francis Theodore Page BURT
2. Terence Alan WALSH
3. John Leonard Clifton WICKHAM
4. Gresley Drummond CLARKSON
5. Philip Lionel SHARP
6. Robert Ian VINER
7. Henry Albert WALLWORK
8. Phillip Rennell ADAMS
9. Peter Drew DURACK
10.John Leslie TOOHEY
ii. R v Phillips (1971) 125 CLR 93
iii Litigation arising from the collapse of a cliff at
Huzza’s Beach near Gracetown on 27 September
1996. See McFarlane & Ors v The State of Western
Australia [2004] WADC 245.
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W e s t e r n
A u s t r a l i a n
B a r
R e v i e w
Felicity Davis
Bar Readers Course 2007
It was my pleasure to be involved in the
organization of the WA Bar Association’s
Bar Readers’ Course and to oversee the
Course this year. This is the fourth year
that the Bar Readers Course has been
offered to those joining the independent
Bar in this State. The first course was in
2004 after the Association, in late 2002,
resolved to create a formal educational
structure for entry to the Association. The
Bar Readers’ Course is designed to ensure
that our barristers meet the recommended
Australian Bar Association standards,
reflecting international best practice.
In the past 3 years there have been 4 modules
to the Bar Readers’ Course – Advocacy,
Evidence, Ethics and Jurisdiction &
Procedure. The ABA introduced this year
its inaugural Advocacy Training Course,
held in Perth in January, which some of our
new barristers attended.
WABA offered the remaining 3 modules to
its new barristers this year. 18 bar readers
participated in the 3 modules of Evidence,
Ethics and Jurisdiction & Procedure. Each
module involved 6 seminars of 2 hours
duration from 5.30 pm to 7.30 pm on a
weekday.
Ethics:
Chris Shanahan SC, Paul Mendelow and
Michael Berry
Evidence:
Ken Martin QC, John Hockley and Peter
Doherty
WABA thanks the sponsors of the Course,
LexisNexis and the many judges, magistrates
and senior members of the Bar who gave
their time and shared their knowledge and
experience with our bar readers to present at
seminars. Their willingness and assistance
in presenting at module seminars was
invaluable to this year’s participants and to
the success of the course.
The closing of the Course and presentation
took place on 24 August 2007, with
certificates and prizes, sponsored by
LexisNexis, presented to the best performed
module participant in each module and
the Chief Justice’s prize for overall best
performed reader.
The bar readers who were adjudged the
best in each module and overall were:
Ethics:
Richard Douglas
Jurisdiction & Procedure:
John Vaughan
Evidence:
Jeremy Ludlow
Best Performed Reader in the 2007
Bar Readers’ Course:
Richard Douglas.
Congratulations to all bar readers who
successfully completed the Course.
Planning has already commenced for the
Bar Readers’ Course next year, which will
include a residential Advocacy Training
Course to be held jointly with the South
Australian Bar Association, at the Barossa
Valley between 15 and 19 July 2008.
There were 3 coordinators for each of the
modules who chaired and coordinated
the seminars over the 6 weeks they were
presented and thanks go to each of them:
Jurisdiction & Procedure:
The Honourable Wayne Martin,
Neil McKerracher QC, Richard Price and
Frances Veltman, Richard Douglas
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Felicity Davis
Bar and Bench Dinner 17 August 2007
Members of the Bench and the Bar attended
the annual WABA Bar and Bench Dinner,
held this year at the Old Swan Brewery on
17 August 2007.
A toast to the judiciary was proposed by
Jason MacLaurin. His Honour Judge Keen
of the District Court responded with a toast
to the Bar.
In Jason MacLaurin’s toast, he compared
the learned judges of the Bench to chefs
at a restaurant, with members of the Bar
their customers. Some chefs were more
demanding than others, leaving their
customers wondering about the service to
expect in each restaurant. Fortunately, the
idea of having one’s head served on a platter
appeared not to affect any Bar member’s
appetite for dinner.
His Honour Judge Phillip McCann
and John Staude
In keeping with long standing tradition,
his Honour Judge Keen regaled the dinner
with reminiscences of his career at the Bar
and some entertaining anecdotes of his early
judicial career.
The venue, food and wine and speeches
were excellent. It was a memorable evening,
as the accompanying photographs show.
Grahame Young, David Bruns
and Mark Holler
Her Honour Judge Anette Schoombee
and Johannes Schoombee
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Rebecca Lee and Ken Martin QC
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Craig Colvin SC
Appointment of Justice Andrew Beech
A welcome may be friendly or hostile. It
may be glad, kind and hearty or it may be
announced by a trumpet and followed by
a brace of bullets. Over the long history
of judicial appointments, a practice has
emerged whereby new judges first preside
at a ceremonial sitting of the court known
as a “welcome”. Representatives attend to
express the sentiments of the profession
concerning the appointment. On such
occasions, to say of a judicial appointment
that it should be particularly or even
universally welcomed by all is tantalisingly
opaque. It may be a call to acclamation or
a call to arms.
Justice Andrew Robert Beech was welcomed
as a Justice of the Supreme Court of Western
Australia on 25 June 2007. There were no
trumpets and no battlements. Rather, the
occasion was marked by sincere expressions
of a professional consensus that the welcome
should be fond and hearty. Out of respect
for his Honour’s preference for plain and
direct speaking, the use of unnecessary
adverb and hyperbole was eschewed. The
Attorney General captured the sentiment of
the profession in his earlier announcement
saying that his Honour was an outstanding
practitioner about whom “there is a strong
consensus that he has the necessary intellect,
experience, work ethic, personality and
temperament to make an excellent judicial
officer”.
At Francis Burt
Chambers his counsel
was often sought
by colleagues and
solicitors on ethical
issues.
Justice Beech joins the court with a breadth
of experience that matches the court’s
jurisdiction. After some early years in
commercial litigation with law firms
Northmore Hale Davey & Leake (19856) and Parker & Parker (1989-90), his
Honour became a Crown Prosecutor at
the WA Office of the Director of Public
Prosecutions (1992-4). He joined the
independent bar in 1994 with a practice
in commercial and general civil litigation,
public law (including constitutional law)
and criminal law. He was both an equity
and common lawyer, fused in one person.
In practice he brought together both good
conscience and sound knowledge of legal
principle. His opinions were sought after,
carefully considered and much respected.
At Francis Burt Chambers his counsel was
often sought by colleagues and solicitors
on ethical issues. For many at the bar, his
Honour’s appointment has meant the loss of
the availability of a discerning ear to test a
difficult case or a particular proposition. His
Honour’s own expression of a preference
for those parts of practice that require the
formulation of a judgment rather than an
argument make him temperamentally well
suited for the bench. Experience suggests
counsel can expect keen, incisive and direct
questioning from his Honour.
Many family members (including his
Honour’s wife Jane and their children,
parents Robyn and Michael, grandmother
and siblings) were in attendance at the
formal welcome reflecting his Honour’s
affection for family. Friends and colleagues
were also in attendance in significant
numbers. There was a relaxed atmosphere
of hospitable welcome. The ceremony in
number 1 court also saw the Beech grin
appropriately on display especially on the
faces of children Tom, Annabel, Joey and
Ella as well, of course, on the face of father
Michael. Indeed, through the auspices of
the Solicitor General, Robert Meadows
QC, Michael’s claim to responsibility for his
Honour’s talent as an outstanding opening
batsman managed to find voice during the
ceremony.
Justice Andrew Beech
contributing his time and skills in various
voluntary capacities both within and outside
the profession. He has acted on a pro bono
or limited fee basis, without personal fanfare
in many cases over the years of his practice
as a barrister. He has been a part-time
lecturer and visiting fellow at the University
of Western Australia Law School since
1989. He was a part time commissioner
in the Human Rights and Opportunity
Commission in 1999-2000. He was the
Editor of the Western Australia Reports
from 1997-2002. He served as a director
and then chairman on the board of the
Daughters of Charity for many years.
All at the bar wish his Honour every success
in his career on the bench.
In Australia, where sporting prowess is a
sufficient, but not necessary, qualification for
any high office, his Honour makes the grade.
He is a keen, active and skilled cricketer,
tennis and hockey player and is regularly
seen swimming at Cottesloe and Smith’s
Beaches. Weekends are filled with family
life, particularly as coach and spectator at
the sporting events of his children.
His Honour has been generous in
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Appointment of the Honourable Justice David
Newnes as a Judge of the Supreme Court of
Western Australia
On 25 June 2007 David Newnes was
appointed as a Judge of the Supreme Court
of Western Australia.
At the time of his appointment Justice
Newnes was a Master of the Supreme
Court.
Justice Newnes had been appointed as a
Master on 24 February 2003 and served
in that position until his appointment as a
Judge of the Court.
Justice Newnes was born on 27 February
1951. He completed his Bachelor of Arts,
Bachelor of Jurisprudence and Bachelor of
Laws degrees at the University of Western
Australia in 1977 and commenced legal
practice at the end of 1977 at Muir Williams
Nicholson where he was articled to the Hon.
Professor David Malcolm AC QC.
Justice Newnes worked in that firm until
June 1982 including under the supervision
of the Hon. Robert Anderson QC and the
current Solicitor General, Robert Meadows
QC.
In June 1982 Justice Newnes joined the firm
that is now known as Mallesons Stephen
Jacques and in 1985 he was made a partner
of that firm.
In January 1995 Justice Newnes joined
Blake Dawson Waldron as a partner and
was the head of the litigation group in Perth
until his appointment to the Supreme Court
as a Master in 2003.
Prior to his appointment to the bench Justice
Newnes had very extensive experience in
commercial litigation and had a large and
diverse practice in the Supreme and Federal
Courts. In his career Justice Newnes had
the conduct of many large commercial
disputes as well as complex professional
negligence matters, mining matters and
administrative law matters.
Justice Newnes has also had a great deal
of experience in the law of defamation
including cases involving television and
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radio broadcasters as well as newspapers.
One of the cases he was involved in,
Australian Ocean Line Pty Ltd v West
Australian Newspapers Ltd (1985) 58
ALR 549, is the case that prompted the
Commonwealth Parliament to amend the
Trade Practices Act to in effect preclude
such claims being brought under the Trade
Practices Act.
In his time as a Master of the Court
Justice Newnes bore much of the burden
of dealing with interlocutory disputes in
the Defamation List and he brought a great
wealth of knowledge and experience to the
management of those disputes and the pre
trial conduct of defamation proceedings
generally.
During his career Justice Newnes has been
a significant contributor to the profession.
He has been at various times convenor of the
Law Society committees for Constitutional
and Parliamentary Affairs, Administrative
Law and Media Law.
In 1998 Justice Newnes was appointed as a
consultant to the Law Reform Commission’s
Access to Justice Inquiry and in the course
of that role prepared for the consideration of
the Law Reform Commission a draft paper
on the case management in the Supreme
Court and a draft paper on the form of
originating process in the Supreme Court.
Justice Newnes, prior to his appointment
as a Master, was also extensively involved
in a review of the Supreme Court Rules.
Justice Newnes was a consultant to the
Rules Committee of the Supreme Court
in relation to the preparation of a proposal
for the reform of the Rules of the Supreme
Court.
Justice David Newnes
has efficiently carried a very substantial
caseload and the quality of his judgements
has increased the respect held for him by
his profession and his colleagues on the
Court”
Justice Newnes’ appointment as a Judge was
warmly welcomed by the profession. Those
who appeared before Justice Newnes when
he was a Master invariably experienced a
hearing in which they were politely dealt
with, their submissions were carefully
listened to, the opposing arguments were
fairly considered and the matter was dealt
with with dispatch.
The Western Australian Bar Association
congratulates Justice Newnes on his
appointment as a Judge of the Supreme
Court and wishes him well in this next part
of his career.
On the occasion of his appointment as a
Judge the Attorney-General said of Justice
Newnes that “Since his appointment as
a Master of the Supreme Court in 2003
he has demonstrated a great capacity
and enthusiasm for judicial work. He
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Craig Colvin SC
Appointment of the Justice Geoffrey Miller to
the Court of Appeal
On 7 June 2007 the Hon. Justice Geoffrey
Miller was appointed a Judge of the Court
of Appeal. The appointment was warmly
welcomed by the legal profession. His
Honour had previously acted as a Judge of
Appeal and has been a Judge of the Supreme
Court since 3 August 1998.
His Honour is renowned for his sharp
intellect and ability to cut to the chase.
His extensive and practical experience of
the criminal law is of particular value to
the Court of Appeal given that criminal
appeals represent a substantial proportion
of the work of the Court. Though due
recognition should be accorded to the
fact that His Honour has been described
as a “true generalist” who, as an advocate,
tackled and excelled in a diversity of cases
in all jurisdictions.
His Honour was educated at Perth Modern
School, a school that has produced so many
high achieving West Australians. A brilliant
scholar and sportsman, he graduated with
first class honours in law from the University
of Western Australia in 1963.
His Honour was admitted in 1965 and
practised for many years as a sole practitioner
before joining the Bar in 1980. He was
appointed Queen’s Counsel the same year.
As if not having achieved enough in that
year he also served as President of the Law
Society from 1980 to 1981.
Widely admired as a leader of the Bar, at
the time of his appointment to the Supreme
Court it was noted that His Honour’s
professional stature brought great credibility
to the Bar and served as an example to all
practitioners. He was recognised as having
contributed to the collegiate spirit of the Bar
by his readiness to give advice to younger
members.
A great contributor to the profession and
the community, besides serving the Law
Society His Honour was an office bearer
of the Bar Association, served on the
Legal Practice Board and was a founding
member of the Legal Aid Commission.
His Honour continues to have an interest
in the professional development of those
at that bar, as evidenced by the fact that he
has taken the trouble to contribute to this
journal.
As a Supreme Court Judge His Honour
for several years had responsibility for
the management of the Supreme Court
criminal list. His ability to focus the parties
Justice Geoffrey Miller
on the real issues and urge them to achieve
greater efficiency without compromising
the interests of justice was significant in
ensuring the proper management of those
cases.
The Bar Association congratulates His
Honour on his well deserved appointment
to the Court of Appeal.
Retirement of Justice Nicholson
The following is an extract from the
address by Ken Martin QC on behalf of
the Association at the special sitting
of the Federal Court in Perth, 3 August
2007, to farewell Justice Nicholson.
Your Honour has been a conscientious
and able judge for over two decades, not
to mention a tireless contributor to legal
affairs in Australia and internationally at
many levels which have been mentioned.
The West Australian Bar Association is
particularly appreciative of your many
contributions towards its activities including
its continuing legal education program and
its readers course.
Your accomplishments since Law School
at the University of Western Australia have
been nothing less than prolific. Mention
has already been made of your time in the
amalgam as Senior Partner of Freehill,
Hollingdale & Page; your appointment as
a Deputy President of the Administrative
Appeals Tribunal. You were one of the first
draft picks by the then new Chief Justice,
David Malcolm, when he took charge of
the Supreme Court as Chief Justice in
May 1988. You served as a member of the
Supreme Court with great distinction until
you were enticed back into the federal arena
at the beginning of 1995.
Over your whole professional life you
have made very significant contributions
extending well and truly beyond the
borders of Western Australia to national
and international frontiers. As has been
mentioned, you were the inaugural Secretary
General of the Law Council of Australia, a
role that confirmed and paved the way no
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A u s t r a l i a n
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R e v i e w
doubt for the federal appointments which
followed in 1986 and 1995.
In the international sphere, you have
made long term, and indeed, as has been
mentioned, legendary contributions to the
work of LAWASIA, and it was as Secretary
of the LAWASIA judicial section that you
and Chief Justice David Malcolm undertook
the first draft together of the “Statement of
Principles of Independence of the Judiciary”
in the Asia Pacific region, which eventually
became the celebrated Beijing “Statement
of Chief Justices” in 1995.
Your Honour has achieved international
recognition, and the head of the Swiss
Institute of Comparative Law has specifically
asked that their regards, or the regards of
that Institute be conveyed to you, and that
you be noted as a greatly appreciated visitor
to the Swiss Institute, observing that your
commitment to the advancement of justice
across the globe, and the interests of law
analysed from comparative perspectives
was invaluable.
The directorate and staff of the Swiss
Institute have expressly asked that their
good wishes be conveyed to you at this
time, and that your future visits are eagerly
awaited. You have been a prolific author of
articles, particularly within the Australasian
Institute of Judicial Administration, where
you continue to serve as a counsellor. A
global article search on a law database
throws up as many article strikes as one
achieves by googling Harry Potter. You’ve
contributed articles across a diverse range
of fields, including topics such as selfrepresented litigants, Western Australia’s
early colonial laws, issues of port security
and in 1998 even, a paper prepared while
you were a visiting fellow at Corpus Christi
College in Cambridge entitled The Impact
of the ECC Treaty on UK Courts and
Judges.
The learned Attorney General for Western
Australia has referred to the incident where
you were saved from the engineers at an
early stage at law school, and having stolen
my one humorous story, I’m driven to resort
to my emergency story. Now, your Honour,
as a judge, portrayed on frequent occasions
in these very four walls two very significant
traits. Firstly, you were a keen observer of
human behaviour, and secondly, you are
very well informed about what was going
on about just about everything.
Now, these are traits which are essential,
of course, to discharge of judicial office,
but they were traits in terms of insight
and information that you displayed at an
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A u s t r a l i a n
extremely early age, indeed, going back to
law school. Indeed, in your speech in 2003
at the 75th anniversary of the founding of
the University of Western Australia law
school, you related a story concerning your
insights about the then first dean of the
law school, the late Frank Beazley, back in
1956, demonstrating all your insight and
accumulation of information. You said this
of the activities of the Dean during your last
years at law school:
There’s little doubt
then that your energetic
contributions to the law,
particularly through
the Institute of Judicial
Administration will
continue to be gratefully
received
“Not only the students found the library
attractive, in 1956 the Dean, then widowed,
fell in love with the assistant librarian. At the
time, several fourth year students had their
eye firmly fixed on her, but they beat a hasty
retreat. The Dean was married, but not long
after this, his bride continued with a planned
overseas holiday. As the year wore on, the
Dean became testier and testier. Suddenly he
announced that exams were to be brought
forward by a week. This deprived most students
of a vital week of swat time. The Blackstone
Society was convened, motions of concern were
passed, and delegations waited upon the Dean,
to no avail.
B a r
It was discovered that the reason for the
curtailment of the vital swat time was that
the Dean’s new wife was returning on an
ocean liner, and he wished to have the exams
out of the way before turning his attention to
other matters. Calling in aid all his expertise in
constitutional law, he arranged with customs
for special permission to board the vessel at
Gage Roads by climbing aboard with a customs
officer. Alas, the night before the vessel arrived,
the Dean bent over the bath to pick up some
soap and fractured two ribs. Bound thereafter
in plaster, he was therefore unable to carry out
his intentions and the wronged student body
felt thoroughly requited.”
Your Honour, the Australian Bar Association
and the West Australian Bar Association
are very glad that you were able to survive
law school and a close encounter with the
barbaric engineers and that you could go
and grace the Administrative Appeals
Tribunal, the Supreme Court and the
Federal Courts for over two decades.
You’ve made, also as has been mentioned,
significant contributions to the wider
Australian community as chancellor of
Edith Cowan University between 1997 and
2004, and as chair of the Malcolm Sergeant
Cancer Foundation for Children Western
Australian Division as it then was. It’s of
course only section 72 of the constitution
that sees your Honour retiring from the
court a day shy of mandatory retiring age.
Nevertheless, you do so full of intellect,
energy and unbridled enthusiasm for
the law as ever. There’s little doubt then
that your energetic contributions to the
law, particularly through the Institute of
Judicial Administration will continue to be
gratefully received.
R e v i e w
John Prior
Retirement of Judge Greaves
The following is an extract from the address
by John Prior at a special sitting of the
Liquor Licensing Court to farewell Judge
Greaves and to mark the abolition of the
Court.
The court’ s function and your Honour’ s
role will cease today due to the amendments
of the Liquor Licensing Act of 1588
which abolishes this court and establishes
the Liquor Commission. Along with this
significant amendment there will also be
other substantial amendments to the law of
liquor licensing in this state and indirectly
hospitality and tourism practices.
In fact, on Monday morning I plan to
get up early in the morning to see if the
lights are switched on in Dullsville. The
operation of the Liquor Licensing Court
under the Liquor Licensing Act 1938 which
commenced on 1 February 1989 has largely
shadowed your Honour’s judicial career
which started in December 1988.
Prior to your Honour’s appointment your
Honour had been responsible with a small
group of other well known barristers in
Perth in establishing Wickham Chambers
in 1968. That was the first alternative set
of chambers to the single large chambers
then existing in Perth. Your Honour’s legacy
to this state will be 18 and a half years of
decisions touching on all aspects of the
Liquor Licensing Act 1988.
As a sample of the body of your Honour’s
work I refer to the decisions using the
traditional citation method in this
jurisdiction of referring to the actual
licensed premises. Re Black Betty’s; re Subi
Cleanskins; re, Ettamogah Pub; re The Left
Bank Bar and Cafe.; re The Clink; re This
Flying Scotsman; re Hudsons Gallery.; re
The Whale and Ale; re The Nippon Inn;
re Zeldas Nightclub; re The Duckstein
Brewery; re The Stickey Wicket; re Club
151; re The Mustang Bar; re The Good, Bad
and The Ugly; re The Crab and Anchor; re
The Lone star Saloon; re The Printers Pie;
re Ye Olde Serpentine Inn; re Elephant
and Wheelbarrow; re Babylon Hotel; re
Peter’s By the Sea; re The Lamb and Flag;
re Howard Chambers; re Clickertys; re
Cocos; re Big Bombers Liquors; Liquorland
Midland, Ellenbrook, Currambine, Craigie,
Woodvale, Wangara, Woolworths Subiaco,
Claremont, Rockingham and the list goes
on.
As a role model for
natural justice and
procedural fairness.,
I would submit that
the commission could
do none better than
follow the example
your Honour has set
over the last 18 and
a half years in this
court.
I personally have been fortunate to appear
before your Honour originally as an
instructing solicitor and later as a counsel
in many cases during your Honour’s term
of judicial service. This started with the
various Steve’s Nedlands Park Hotel cases in
1988 and finished with, your Honour’s last
contested case last month being the Taipan
Room, Northbridge where I appeared as
counsel for the applicant,
Speaking on behalf of the counsel from
the two associations, who I represent
today, I can say your Honour has always
been courteous and patient with counsel,
open to all submissions and prompt with
handing down your decisions. Those are
qualities which are to be greatly admired
in a specialist court of this nature which
dealt daily with issues concerning people’s
livelihood, local amenity, health and
sometimes people’s sanity.
In this respect, I refer to your Honour’s
predecessor Judge Sharkey as he then
was, in re McHenry reported, at 4 SR
(WA) 31 referring to one Mrs Sheen who
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then resided at number 40, The Avenue,
Nedlands. In her own house Mrs Sheen
complained of disturbance because her
bedroom and lounge were at the front of
the property. She complained of noise from
after 10 o’clock which became worse and
then from to 10.00 to l am.
She attributed the noise to people going and
coming from the hotel. The noise consists
of people in the beer garden, ie crowd
noise and also the music which is played.
In addition, Mrs Sheen complained of the
following: (a,) yahooing; (b) booing; (c)
baaing; (d) barking; (e) women screaming
in apparent distress; (f ) filthy and abusive
language; (g) public urinating; (h) public
defecating and fornicating; (i) unlawful
and intrusive parking; (j) the breaking of
glass; (k) car horns soundings, car doors
slamming, car stereos blaring, people
doing wheelies et cetera; (l) fighting and
aggression; (m) vomiting.
No, this was not a summation of the
observations of witnesses seeing a group
of AFL footballers leaving training, this
was the type of evidence your Honour
regularly heard in this jurisdiction. Whilst
I mention that celebrated or notorious
licensed premises, the Nedlands Park Hotel,
although counsel tries hard to remain aloof
from the cause one is advocating, I think I
should now formally thank your Honour
for being part of the best beer I have ever
tasted following the handing down of your
Honour’s reserve decision on 17 March
1989 granting a hotel licence to the then
closed Nedlands Park Hotel.
At the end of today the Licensing Court
will no longer exist and your Honour’s
service to the community as a judicial officer
will have ended. As I have mentioned,
all these contentious issues of liquor will
then revert to an administrative tribunal,
the West Australian Liquor Commission.
As a role model for natural justice and
procedural fairness., I would submit that
the commission could do none better than
follow the example your Honour has set over
the last 18 and a half years in this court.
R e v i e w
Richard McCormack
Case Notes:
Reverse Engineering and the overlap of Copyright and Designs - Swarbrick Case
by Richard McCormack1
The recent decision of the High Court of
Australia in Burge & Ors v Swarbrick,2
concerning a claim of copyright protection
as made by the designer over the JS 9000
racing yacht, dealt with some of the more
difficult issues in relation to the perennially
troublesome line to be drawn in respect
of the copyright and design overlap. The
overlap exists in relation to protection of
copyright under the Copyright Act 1968
(Cth),3 in an artistic work,4 which work also
meets the requirements for being a design,
within the meaning of the Designs Act 1906
(Cth) or its successors, the Designs Act 2003
(Cth).5
The overlap can be seen through the
operation of the legislative regime, as
contained in sections 74-77 of the Copyright
Act, which provides for an exception to the
loss of copyright protection, where:
(a) the relevant artistic work the
subject of copyright has been
reproduced by way of industrial
application;6 but
(b) the corresponding design is not
registered under the Designs Act,
in which case the copyright in the
artistic work remains enforceable
because it is a work of artistic
craftsmanship.
The Swarbrick case squarely raised the proper
test for a work of artistic craftsmanship. This
issue has not previously been the subject of
consideration by the High Court.
Compounding the issue of copyright
protection in relation to mass produced
articles is that the extension of protection to
purely functional articles, was considerably
assisted when the new system under the
Copyright Amendment Act 1989 (Cth) came
into operation.7
Notwithstanding this legislative change, the
possibility of obtaining dual protection for
a work, which is both an artistic work for
copyright purposes, and a design within the
meaning of the Designs Act, remains.8
The prospect of being able to reverseengineer any given article which has been
industrially applied, such as the subject
matter in the Swarbrick case, namely the
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JS 9000 racing yacht, without infringing
copyright in the underlying artistic work, has
far reaching commercial implications.
Background Facts
In Swarbrick, the respondent, 9 a naval
architect, designed and, through his private
company, Swarbrick Yachts International
Pty Ltd, manufactured the yacht, the JS
9000. The initial JS 9000 yacht to be built,
sold and sailed, was named the Bateau
Rouge.10 In excess of fifty JS 9000 yachts
were built and sold throughout the world.
Mr Swarbrick, as owner of copyright in
the plans and drawings of the JS 9000,
claimed copyright protection was available
in the physical aspects of the yacht in 3dimensional form, including the hull and
deck mouldings, notwithstanding:
(a) mass production and sales of the
yacht; and
(b) the fact that although he was
aware that he could have applied
to register the design under
the Designs Act and obtained a
statutory monopoly, he did not do
so.
Copyright infringement proceedings were
commenced out of the Federal Court. An
Anton Piller order was obtained, the terms
of which restrained the primary respondent,
Boldgold Investments Pty Ltd.11 which
had acquired a hull and deck moulding to
manufacture a JS 9000 yacht for itself, for
purposes of mass production and sale, from
reproducing or authorising the reproduction
of:
(a) the Plug;12 and
(b) the hull and deck mouldings of the
JS 9000.
Boldgold contended from the outset at the
trial, as well as through the appeal to the Full
Federal Court,13 that as:
(a) the Plug and the hull and deck
mouldings were corresponding
designs within the meaning of
section 74 of the Copyright Act;
and
(b) no designs were registered by Mr
Swarbrick under the Designs Act,
B a r
there was no copyright infringement, as
a consequence of the statutory loss of
copyright protections of the operation
of section 77 of the Copyright Act. Mr
Swarbrick contended that the copyright
remained enforceable because of the JS
9000, as well as the hull and deck moulding,
were each works of artistic craftsmanship.
Reverse Engineering
Put shortly, Boldgold intended to, and
had proceeded a considerable way along
the pathway of reverse engineering the JS
9000, by a process known as flop moulding.
In this way, access was not required to the
underlying copyright works in the form of
the plans and drawings for the JS 9000, as
its features were able to be reproduced in
3-dimensional form by a flop moulding
from a genuine hull and deck moulding of
the JS 9000.
At first instance, Carr J found infringement
of copyright, on the basis that there was no
loss of copyright protection by reason of the
JS 9000 being a work of artistic craftsmanship.
Boldgold appealed.
Although the Full Federal Court upheld
the appeal on the limited basis that no
copyright protection existed in the JS 9000,
as a complete yacht, but otherwise the Court
dismissed the appeal against the findings
of Carr J in relation to infringement of
copyright in the Plug and the JS 9000 hull
and deck mouldings.14
A grant of special leave to appeal was
obtained, with a principal ground of appeal
being the proper test as to what constituted
a work of artistic craftsmanship.
work of artistic craftsmanship
The background to the High Court’s
unanimous allowing of the appeal, thereby
overturning the decision of the Full Federal
Court, and the decision at first instance,
reversing all relevant orders, turned on the
proper meaning and construction of the
phrase work of artistic craftsmanship.
The High Court held that the phrase is a
composite one which needs to be construed
as a whole,15 and, in particular, that the
approach of Lord Simon of Glaisdale in
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the Hensher case was accepted as being
appropriate to be adopted in Australia.
The High Court, relevantly, concluded by
reference to the test enunciated by Lord
Simon in Hensher,16 and in so doing made
clear that the concepts of craftsmanship
and aesthetic appeal are not to be dealt
with separately, rather the approach must
be consistent with the phrase work of
artistic craftsmanship being construed as a
composite one, and as a whole.17
As every case will involve matters of fact
and degree, the approach of the High Court
should be regarded as guiding consideration
of the evidence considered:
(a) as a whole; and
(b) objectively, including having
regard to matters of visual and
aesthetic appeal, but careful to
ensure that these aspects are
regarded as no more than one of
a range of considerations in the
design of an article.
The High Court’s guidance as to the correct
approach in relation to construction of
the phrase a work of artistic craftsmanship
is particularly significant, given the five
speeches in Hensher, each differed materially
one from the other, such that it is very
difficult indeed, if not practically impossible,
to distill therefrom what can be regarded
as the ratio decidendi concerning the
construction issue.18
Evidence - Intention
In determining that Mr Swarbrick’s evidence
as to his intention in creating the design of
the JS 9000 as a “work of particular beauty
and timeless elegance”, considered in design
terms, was admissible for the purposes of the
Court testing whether the Plug was a “work
of artistic craftsmanship”. However, the test
to be applied is ultimately objective.19
The Court, relevantly, stated in relation
to Mr Swarbrick’s evidence as to his
“aspirations and intentions” when designing
and constructing the Plug of the JS 9000,
as follows:20
“His evidence was admissible. But
the operation of the statute does not
turn upon the presence or absence
of evidence of that nature from
the author of the work in question.
The matter, like many other issues
calling for care and discrimination,
is one for objective determination
by the Court, assisted by admissible
evidence and not unduly weighed
down by the supposed terrors for
judicial assessment of matters
involving aesthetics.”
The tension which always exists between
the aesthetic appeal of an article depicted
in an artistic work, and then made the
subject of an article in 3-dimensional
form which corresponds in design to the
original artistic work, is but one factor
to be taken into account. Whether the
aesthetic appeal is ultimately concluded as
being dominant, as a matter of application
of copyright protections, or subordinated
to functional and commercial aspects of
design, is answered by applying the test of
objective assessment to the evidence before
the Court.
At first instance, little weight was given to
a substantial body of promotional material
and business plan, as well as the evidence
of a well known yacht designer, Warwick
Hood, who designed the America’s Cup
challenger, Gretel, in the 1970s. Before the
High Court, this evidence was a significant
factor in the appeal being allowed.
The High Court, relevantly, concluded21
in relation to the range of considerations
applied by Mr Swarbrick in the design of
the Plug of the JS 9000, as follows:
“Matters of visual and aesthetic
appeal necessarily were subordinated
to achievement of the purely
functional aspects required for
a successfully marketed “sports
boat” and thus for the commercial
objective in view.”
Text - a work of artistic
craftsmanship
In dealing with what approach should
be taken in testing whether a particular
artistic work was or was not a work of artistic
craftsmanship, the High Court also made
clear that it was not appropriate for the
Court to:
attempt any exhaustive and fully
predictive identification of what can
and cannot amount to “a work of
artistic craftsmanship” within the
meaning of the Copyright Act as it stood
after the 1989 Act.22
The High Court went on to assist in the
application of the proper test by stating:23
“However, determining whether
a work is “a work of artistic
craftsmanship”, does not turn on
W e s t e r n
A u s t r a l i a n
B a r
assessing the beauty or aesthetic
appeal of work or on assessing any
harmony between visual appeal and
its utility. The determination turns
on assessing the extent to which the
particular work’s artistic expression,
in its form, is unconstrained by
functional consideration. To decide
the appeal it is sufficient to indicate
the following.
The more substantial the
requirements in a design brief to
satisfy utilitarian considerations of
the kind indicated with the design
of the JS 9000, the less the scope
for that encouragement of real or
substantial artistic effort. It is that
encouragement which underpins the
favourable treatment of the 1989
Act of certain artistic works which
are applied as industrial designs
but without design registration.
Questions of fact and degree
inevitable arise.”
In view of the emphasis in the High Court’s
decision which elevated for purposes of
Australian law, the approach, if not test,
enunciated by Lord Simon in Hensher,24
the guidance given as to whether the work
in question, considered as a matter of aim
and impact,25 was a relevant indicator as to
whether the work in question was that of
an artist-craftsman.
In Hensher, Lord Simon gave an example as
to the works of a cobbler or dental mechanic,
and also a wheelwright as not being works
of artistic craftsmanship,26 whereas at the
other extreme of the spectrum of work
emanating from an artist-craftsman, would
clearly be the maker of hand-painted tiles,
which would be regarded as works of artistic
craftsmanship.
Lord Simon, relevantly, went on and stated
as follows, and because of the emphasis
given to this aspect by the High Court,
and its general insight into the spectrum
of work which may qualify as a work of
artistic craftsmanship or not, considered
as a question of fact and degree, is worth
noting:27
“In between lie a host of crafts some of
whose practitioners can claim artistic
craftsmanship, some not - or whose
practitioners sometimes exercise
artistic craftsmanship, sometimes
not. In the former class, for example,
are glaziers. The ordinary glazier is a
R e v i e w
craftsman, but he could not properly
claim that his craftsmanship is
artistic in the common acceptation.
But the maker of stained glass
windows could properly make such
a claim; and, indeed, the revival of
stained glass work was one of the
high achievements of the Arts and
Crafts movement. In the latter class
is the blacksmith - a craftsman in all
his business, and exercising artistic
craftsmanship perhaps in making
wrought-iron gates, but certainly
not in shoeing a horse or repairing a
ploughshare. In these intermediate
- or rather, straddling - classes come,
too, the woodworkers, ranging from
carpenters to cabinet-makers: some
of their work would be generally
accepted as artistic craftsmanship,
most not. Similarly, printers,
bookbinders, cutlers, needleworkers,
weavers - and many others. In this
straddling class also fall, in my
judgment, the makers of furniture.
Some of their products would be, I
think, almost universally accepted as
“works of artistic craftsmanship”; but
it would be a misuse of language to
describe the bulk of their products
as such.”
Manifestations of the Same
Object
It is important to distinguish between
works in the form of, relevantly, the hull and
deck mouldings, which were no more than
manifestations of the Plug. That is to say,
they were reproductions in a material form
of the Plug within the meaning of section
31
of the Copyright Act.
The Trial Judge and the Full Federal Court
each were found by the High Court to
have erred in failing to distinguish the
legal classification of each of these works,
by considering these to be separate works,
in the sense of qualifying for copyright
protection, rather than the correct approach,
which was to regard the hull and deck
mouldings as not being capable of being
supported independently as works of artistic
craftsmanship.
Accordingly, because of there being no design
registration taken out by Mr Swarbrick
over the JS 9000, considered by reference
to its features of shape or configuration, but
not the method or principle of construction,
Boldgold was entitled to copy and, by
necessary implication, reverse engineer the
W e s t e r n
A u s t r a l i a n
JS 9000.
Pty Ltd v Puma Australia Pty Ltd
(1985) 4 IPR 120 (“Safe Sport
case”);
Works of Sculpture
The difficulty with distinguishing between
a work of artistic craftsmanship, within the
sense of section 77(1), and the reference
in paragraph (a) of the definition of artistic
work in section 10(1) of the Copyright Act,
which, relevantly, includes sculpture, has,
effectively, been resolved by amendments
to the Copyright Act, which occurred during
the course of the litigation, with effect from
17 June 2004, by the 2003 Act.
These amendments accommodated changes
made by the 2003 Designs Act, and also
with respect to the design-copyright
overlap.28
Lest it be thought that the High Court
was primarily concerned in the appeal
with matters of evidence, it is to be noted
that the primary issue to be decided in the
appeal, concerning the proper construction
and approach to definition of the phrase
artistic craftsmanship, remain a live issue and,
indeed, was the primary issue decided by the
High Court because Recommendation 172
of the Australian Law Reform Commission
in its Report No. 74, where it was sought
to provide for a definition of artistic
craftsmanship, was not implemented.29
(f ) complex multicoloured threedimensional fabric design, created
as a result of a program designed
for use on a computer iz ed
knitting machine, as considered
by Drummond J in Coogi Australia
Pty Ltd v Hysport International Pty
Ltd [1998] 86 FCR 154 (“Coogi
case”);
(g) sample garments: Muscat v Le
(2003) 204 ALR 335 (“Muscat
case”);
(h) a rabbit headed corkscrew, as
considered by Conti J of the
Federal Court in Sheldon &
Hammond Pty Ltd v Metrokane
Inc (2004) 61 IPR 1 (“Sheldon
case”); or
(i)
Thus, whether it be the matter of:
(a) coloured rods for teaching
mathematics, as considered by
Pape J in the Supreme Court
of Victoria in Cuisenaire v Reed
(1963) VR 719 (“Cuisenaire
case”);
the components of a bobcat scoop,
as considered by Greenwood J
in Norm Engineering v Digga
Australia (2007) 72 IPR 332
at [230], the critical issue to be
answered is whether the artistic
work under consideration is
properly to be regarded as a work
of artistic craftsmanship. If so, then
by application of s.77(1)(a) of the
Copyright Act, copyright protection
remains available notwithstanding
industrial application of the subject
artistic work has occurred.
Conclusion
(c) the wooden model of a frisbee,
which was the subject matter
of the decision of the New
Zealand Court of Appeal in
Lincoln Industries Ltd v Wham-O
Manufacturing Co (1984) 1 NZLR
641 (“Wham-O case”);
The decision of the High Court in Swarbrick
has dealt with the overlap of copyright and
design in a fundamental manner which
has resulted in the imprimatur of the law
being unequivocally given to copying, 30
and thereby reverse engineering of any
article which corresponds in design to a
design reflected in the underlying artistic
work, within the meaning of that phrase
under section 10(1) of the Copyright Act,
providing that, considered objectively, the
test articulated by Lord Simon in Hensher,
and adopted by the High Court, is duly
had regard to.
(d) a hood adapted for carrying a baby:
Merlet v Mothercare plc (1984) 2
IPR 456 (“Merlet case”);
1 B Juris LLB (Hons) Barrister, Member of
the Western Australian Bar Association
- Albert Wolff Chambers
(b) t h e U K H o u s e o f L o r d s
considering a mock-up/prototype
of a household chair, as occurred
in George Hensher Ltd v Restawhile
Upholstery (Lancs) Ltd (1976) AC
64 (“Hensher case”);
(e) a sporting helmet, as considered
by King J in the Supreme Court
of Victoria in Safe Sport Australia
B a r
2 [2007] HCA 17; (2007) 72 IPR 235
(Swarbrick)
3 Copyright Act
R e v i e w
4 S.10(10 for defiintion of artistic work, which,
relevantly, as defined as meaning:
(a) a … sculpture, drawing, engraving …
whether the work is of artistic quality or not;
(b) …; or
(c) a work of artistic craftsmanship whether or
not mentioned in paragraph (a) …
15 Ibid at [66], applying George Hensher Ltd v
Restawhile Upholstery (Lancs) Ltd (1976) AC
64 (Hensher)
Safe Sport Australia Pty Ltd v Puma Australia
Pty Ltd (1985) 4 IPR 120 at 126 per King J
(SCt Vic)
17 Swarbrick at [66]
8 The principal legislation is embodied in
sections 74-74A of the Copyright Act, as
amended, initially, by the
27 Ibid at 91-92
Kevlacat Pty Ltd v Trailcraft Marine Pty Ltd
(1987) 11 IPR 77 at 89 per French J (Fed C
of A)
7 1 October 1990
26 Ibid at 91
14 Burge & Ors v Swarbrick (2005) 68 IPR 114;
(2005) FCAFC 257
6 Although the notion of industrial application
is met when 50 or more articles are produced,
it is possible for the test to be met by a lesser
number of articles, as the test is inclusive and
not exclusive: see, for example:
25 Ibid at 95
28 Refer the Explanatory Memorandum to the
Bill which became the 2003 Designs Act, as
set out in Swarbrick (supra) at [95], and also
refer the Explanatory Memorandum for the
Designs (Consequential Amendments) Bill
2002 (Cth),House of Representatives, at
page 1, and also refer to the recommendations
170-181 by the Australian Law Reform
Commission in its Report No. 74, titled
Design
5 Designs Act
Royal Freshwater Bay Yacht Club, and
during the course of the trial at first instance,
was the subject of a view by Carr J: (2004)
61 IPR 543
Copyright Amendment (Re-Enactment) Act
1993, and subsequently by the Designs
(Consequential Amendments)
Act 2003 (Cth)
11 Boldgold
12 The Plug was a hand-crafted, full-scale model
of the hull and deck of the JS 9000 yacht, and
which was subsequently destroyed, as once
the yacht itself had reached the stage of
manufacture, was no longer required
13 Moore, North and Emmett JJ
16 supra at 94
18 Swarbrick (supra) at [56], and also refer
Sheldon and Hammond Pty Ltd v Metrokane
Inc (2004) 61 IPR 1
at 21-26 per Conti J (Fed C of A)
20 Ibid at [63]
21 Ibid at [73]
22 Ibid at [83]
23 Ibid at [83]
10 The Bateau Rouge is usually moored at the
24 supra at 94
W e s t e r n
A u s t r a l i a n
Works of artistic craftsmanship produced in
multiple quantities should continue to be
protected by copyright. “Artistic craftsmanship”
should be defined in the Copyright Act. The
Copyright Act should make clear that a work can
be both a work of “artistic craftsmanship” and
an artistic work under s 10(1)(a) and (b).
30 Subject, of course, to the resulting article
not being exploited in the course of trade in
a manner which would be precluded under
Part V of the Trade Practices Act 1974 (Cth),
or passing off - see generally the statement
by Brennan J (as he then was) in Parkdale
Custom Built Furniture Pty Ltd v Puxu Pty
Ltd (1981-1982) 149 CLR 191 at 221-222
19 Ibid at [63]-[65]
9 John Swarbrick
29 Ibid at [97], where Recommendation 172 is
set out, namely:
B a r
R e v i e w
Greg McIntyre SC
Book Review
International Law, Museums and the Return of
Cultural Objects
Ana Filipa Vrdoljak. Cambridge University Press Australia/ New Zealand 2006. 341 pages
This book is about the effects of colonialism
from the early 19th century to the present in
dispossessing colonised peoples of cultural
objects and the part which International
law has had to play in the restoration of the
rights of the dispossessed.
The publication is divided into three parts,
each comprising three chapters.
Part One commences in Chapter 1 with a
discussion of how the notion of minority
group rights developed in the 19th century.
Just as an individual is defined by possessions,
nations too were defining themselves as
having a unique cultural identity constituted
by undisputed possession of property. The
1815 Congress of Vienna first denounced
the removal of cultural objects by the
victor during belligerent occupation when
a restitution process was negotiated of
cultural objects pillaged from Rome by
Revolutionary and Napoleonic forces and
held in the Louvre, Bibliotheque Nationale
another French institutions. The author
discusses the controversy surrounding the
removal to Britain by Lord Elgin of the
Parthenon marbles, the debate between
nationalism and internationalism in seeking
to justify maintaining and exhibiting
museum collections and tortuous process
through the House of Commons of the
Ancient Monuments Protection Act.
Chapter 2 addresses the development of
European International Law, its application
to non-Europeans and the development of
rules for the acquisition of non-European
territories and their cultural objects, to be
displayed in museums.
Chapter 5 progresses to the 20th Century and
speaks of the impact of United Nations and,
in particular the 1954 Hague Convention
for the Protection of Cultural property in
the Event of Armed Conflict and again
addresses the impacts on Native American
cultures in the mid-20th Century.
Chapter 6 deals with the relationship
between genocide and the removal and
destruction of cultural objects of colonised
peoples and indigenous communities. It
sets out how the crime of genocide was
developed in the international community
and the integral part which deprivation of
cultural property played in the definition
of that crime. The author informs us that
Raphael Lemkin, who first defined the
crime of genocide, described the cultural
aspect of genocide as the deprivation
of ‘existing cultural and artistic values’
including the destruction of monuments
the removal of cultural objects and materials
from libraries, archives, museums and
galleries. The chapter also discusses the
development of the UN Declaration on
the Rights of Indigenous Peoples, the
Universal Declaration of Human Rights,
the International Convention on Civil
and Political Rights and the setting up
of the United Nations Economic, Social
and Cultural Organisation and their
impact upon the protection of the rights
of minorities and the development of the
rinciple of non-discrimination.
Chapter 7 begins with a quote from the
Director-General of UNESCO:
Chapter 3 traces the international debates
which led to the inclusion of guarantees of
minority rights into International Law in
the 19th Century, the restitution of cultural
objects as part of the post-First World War
peace treaties and the response of the British
Empire to claims of its colonised peoples to
return of cultural objects.
“The return of a work of art or
record to the country which created
it enables a people to recover part of
its memory and identity, and proves
that the long dialogue between
civilizations which shapes the history
of the world is still continuing in
an atmosphere of mutual respect
between nations.”
Chapter 4 discusses the role of the League
of Nations in relation to colonised peoples
and it impact on the return of cultural
objects and relations between the United
States and Native Americans in the 19th
and early 20th Century.
The chapter discusses the campaign of
former colonised peoples, relying on
their International Law right of self
determination to seek the restitution of
cultural objects. The important role of
the 1983 Vienna Convention in stating
W e s t e r n
A u s t r a l i a n
B a r
the necessary principles to be followed
is emphasised. The limitation arising
out of the ‘non-retroactivity’ principle
in the 1970 UNESCO Convention and
the working methods of the UNESCO
Intergovernmental Committee are discussed.
The chapter closes with a discussion of
Australian policy in relation to museums
and how it has portrayed Indigenous
Australians as part of the Australian
national identity.
Chapter 8 contains an extensive discussion
of the activities of the UN Working Group
on Indigenous Peoples (“WGIP”) and the
UNESCO Intergovernmental Committee
in the restitution process and the role of
the UNESCO Convention in regulating
importation and exportation of cultural
objects. It concludes with a discussion
of the renegotiation of relations between
Indigenous Australians and museums.
Chapter 9, which is about reconciliation
between States and Indigenous peoples,
contains further discussion of the work
of the WGIP and the Principles and
Guidelines developed by the WGIP ChairRapporteur on protection of Cultural and
Intellectual Property of Indigenous Peoples,
which augment the UN Declaration on
the Rights of Indigenous Peoples. The
chapter also discusses the International
Institute for the Unification of Private Law
(“UNDROIT”) Convention on Stolen
or Illegally Exported cultural Objects,
the Native American Graves Protection
and Repatriation Act and the voluntary
principles and guidelines adopted by
Australian museums in facing Indigenous
ownership of cultural heritage. The chapter
makes mention of the Australian native
title cases of Mabo and Yorta Yorta and
the Australian Human Rights and Equal
R e v i e w
Opportunity Stolen Generations report.
The 9th chapter begins with the following
poignant quotes:
“History teaches us that the way
to genocide is to take a culture and
destroy its credibility so it can no
longer reflect itself 1.
[T]he nation as a whole must remain
diminished unless and until there is
an acknowledgment of, and retreat
from, those past injustice 2.”
The author approaches the subject matter
with an intensity and thoroughness which
leaves one reassured that it is unlikely that
there will ever be a more detailed analysis
of the subject matter which it addresses.
One cannot fail to be impressed with the
extensive footnoting of the extraordinary
quantity of material to which the author has
resorted to trace the historical international
debates on this topic and the comprehensive
referencing to the relevant instruments of
International Law and to the laws of Britain,
the United States, Australia, Papua New
Guinea and various laws of European and
Middle Eastern nations. The book sets out
in considerable detail the consideration
of this issue in the fora and reports of the
United Nations.
For anyone with an interest in this particular
topic, or in how International Law is
developed generally, this book provides a
very interesting insight into that process
and the part which International Law has
played in protecting the cultural property of
colonised minorities.
1. R. Merritt, cited by Henrietta Fourmile-Marrie
in a Submission on behalf of the Aboriginal
and Torres Strait Islaneder Social Justice
Commissioner to a Standing Committee of the
Australian Parliament.
2 Deane and Gaudron JJ in Mabo v Queensland (No
2) (1992) 175 CLR 1 at 109.
Greg McIntyre SC
Book Review
Administrative Law in Australia
Ana Filipa Vrdoljak. Cambridge University Press
W B Lane & Simon Young. Lawbook Co. 2007. 498 pages
In a Foreword to this book Sir Anthony
Mason accurately describes it as presenting
“an integrated and comprehensive coverage
of Australian administrative law”, a
“systematic and detailed treatment of the
various aspects of administrative law” and
“a valuable addition to the literature on
Australian administrative law” which “will
be of considerable assistance to all those
researching and working in this field”.
The authors in their Preface provide
ample justification for this work when
they point to the “magnitude of change
affecting administrative law in recent times”
and the many fundamental principles of
administrative law which have been reshaped
over the last 30 years in balancing the
interests of government and the individual.
The first phase of change came with
Commonwealth legislation establishing
merits review by a statutory tribunal (the
AAT), the Ombudsman and Freedom of
Information. The second was in the form
of a judicial re-evaluation of fundamental
principles, particularly those relating to
natural justice and jurisdictional error,
arising out legislative attempts to curb
judicial review of administrative decisions
in the field of immigration law.
The introductory chapter of the book
describes the historical emergence of
Australian administrative law from its
English heritage and its integration into
a federation. It provides a very practical
check-list of the questions which need
to be considered in identifying which of
the various options for redress may be the
appropriate one, including the ultimate
issue of what outcome is sought. The
chapter concludes with a discussion of the
philosophical issues which circle around
in the maelstrom of administrative law,
from Dicey’s distrust of the rise of the
welfare state and his view that discretion
is the antithesis of law, to the juxtaposition
between administrative law and political
and economic theories and international
human rights law; and the impact of the
corporatisation of government.
Chapter 2 examines judicial review, as
affected by the principles of the rule
of law and the separation of powers.
It provides a detailed discussion of the
prerogative writs and equitable remedies.
The statutory review processes introduced
by the Administrative Decisions ( Judicial
Review) Act are thoroughly considered,
taking into account the latest interpretations
of the courts, particularly the High
Court. It addresses the issues of natural
justice, jurisdictional error, changes to the
Wednesbury unreasonableness test and
the impact of legislation on the test for
standing.
Chapter 3 focuses on merits review. It
deals with the federal statutory regime,
with particularly detailed reference to
the Administrative Appeals Tribunal and
provides a good deal of cross-referencing
to the State equivalents.
W e s t e r n
A u s t r a l i a n
B a r
Chapter 4 examines the essential concept
of the public’s right to free access to
information. It examines how FOI regimes
operate in the various Australian jurisdictions
and considers recent suggestions for reform
in this area.
Chapter 5 explores the history of the
Ombudsman and points out, among
other things, that Western Australia was
the first Australian jurisdiction to adopt
this institution. Again, there is a detailed
discussion of the federal Ombudsman’s
operations, with cross-referencing to
State and Territory equivalents, and the
phenomenon of the adoption of the
ombudsman concept by specific industries
is discussed.
The authors have amply fulfilled their aim
of providing an integrated and scholarly
examination of contemporary Australian
Administrative law. It is a text which I have
already found useful in day-to day practice
and I highly recommend it.
R e v i e w
Peter Johnston
Book Review
Sir Ronald Wilson: A Matter of Conscience
Antonio Buti, UWA Press, September 2007
Sir Ronald Wilson was a complex character
whose life should be assessed not just at a
few isolated points of time but across a wide
spectrum. His life spanned from the 1920’s
to the beginning of 21st century. He also has
to be appreciated on many different levels:
the personal, the professional, the judicial
and the communal. Finally, it is necessary to
see him from the local (Western Australian),
the national and international perspective.
To attempt a balanced appreciation in the
case of Ron Wilson is a daunting prospect.
Some newspaper and radio commentators
on Dr Buti’s biography have tended to
ignore Ron Wilson’s very rich and expansive
history. Rather their focus has been on a
narrow range of his activities as a prosecutor
in a number of high profile homicide cases
at a volatile period in WA’s history, the
1960’s. Unlike those who have concentrated
on only this small fragment of the Wilson
mosaic, UWA academic Dr Tony Buti has
produced a well-balanced treatment of a
man who, by any measure was, respectively,
a great Western Australian, Australian and
international figure.
Measured in the West Australian context,
Wilson’s story is of the amazing rise
from a deprived country background as
‘a Geraldton boy’ who lost both parents
at a young age. Having started work at
the lowest level in the public service as a
messenger at the Geraldton local court he
rose to the highest non-judicial legal office
in the State, that of Solicitor General. It is
like the company recruit who starts as a tally
clerk and ends up managing director.
It is tempting to guess at the psychological
basis of his character to explain later events,
That is, however, an elusive and unrewarding
project. Dr Buti properly does not attempt
to do so. However, it is reasonable to infer
that as one who had his share of set-backs,
starting in the Depression, through his War
service, and in the first years of establishing
his legal career, Ron Wilson must have had
enormous dedication, single-mindedness
and drive to succeed.
This in turn arguably fashioned him in his
early days as a rather conservative person
with strong convictions of the correctness
of his positions. With time, however, it
W e s t e r n
A u s t r a l i a n
is evident his perceptions changed with
experience. His vision became enlarged
and his attitudes more subtle. Some have
compared him in this regard with the
metamorphosis of Robert Kennedy who
also gradually became convinced of the
imperatives of justice and equality for all. It
is in the later chapters of the book that Tony
Buti is able to show the final, more complete
and assured Ron Wilson that merits
recognition as a great national figure.
Of course, intelligence, great gifts of
character, a strong Christian faith and
determination prompted him take the
opportunities that presented themselves
along the way. Undoubtedly one of the
most significant chances that he grasped
was the opportunity, upon returning from
war service as a fighter pilot in Britain, to
undertake a law degree at UWA under
a government repatriation scheme. This
he achieved with first class honours and
professionally he did not look back.
His ascent through the Crown Law
Department was rapid. He firstly came
to note as a determined prosecutor but
by 1960 was taking most of the major
civil and constitutional cases for the State
government. In that role, as Dr Buti records,
he was involved in the 1960’s in a series of
notable jousts with the leading counsel of
the time in the private profession, Francis
(‘Red’) Burt.1
Other notable cases include those of
Darryl Beamish and John Button. At the
time there was much controversy caused
about both convictions for willful murder
and manslaughter respectively. This arose
mainly because the serial killer, Eric Cooke,
who terrorized Perth at the time, also
confessed to both killings. Peter Brett of
Melbourne University, who had taught at
UWA in the 1950’s, was a prominent critic
of the proceedings.2 Eventually, nearly four
decades later, the WA Court of Appeal
reversed both convictions.3
It is somewhat difficult to judge these
matters in retrospect. They have to be
appreciated against the prevailing practices
of their time. Dr Buti has been scrupulous
in attempting to address the criticism that
Wilson was overzealous in pursuing both
B a r
convictions. In the balance, he has arguably
succeeded in making a fair assessment of
this contentious part of Wilson’s career.
With his appointment as Solicitor General
Wilson’s potent advocacy took on a national
dimension. He forged a reputation in
the High Court as one of the foremost
advocates for State rights. Whilst his
subsequent elevation to the High Court
itself was the culmination of his success
as an advocate, it is ironic that he later
regretted the move.
His jurisprudential contribution on the
High Court is, as Dr Buti shows, the subject
of debate. Outside criminal law, few of his
individual judgments now stand as enduring
landmarks. Interestingly, in the Sydney
launch of this book Sir Anthony Mason
referred to one example that has endured.
This was Wilson’s lead judgment in Western
Australia v Wilsmore.4
Rather like the plaintiff in the recent
High Court case of Roach v Electoral
Commissioner5 Peter Wilsmore protested
that his right to vote was constitutionally
protected. In the course of a judgment
that rejected that proposition, Sir Ronald
gave a thorough and informed exposition
of the Western Australian Constitution.
State constitutional matters tend to be the
neglected, poorer cousins in constitutional
litigation. But this was not so for Sir Ronald.
Arguably there is a case for continuing to
have at least one ex-State Solicitor General
or Chief Justice on the High Court to
provide this necessary insight in public
law cases.
R e v i e w
If not for his individual judgments, Wilson
is respected for the judicial company he kept
while on the High Court. In Constitutional
Law his standing derives from his association
with other prominent jurists, Gibbs CJ,
Aickin and Dawson JJ, as virtually the last
bastion of the States’ position in the federal
union. This led him to espouse a narrow
view of the Commonwealth’s external affairs
power.6 In Mabo v Queensland (No 1)7 the
contradictory strands of his concerns was
called into play. Faced with a clash of the
State’s right to order its own domestic affairs
and the claims of recognising native title
he elected, in the minority, for the former.
Fidelity to the Constitution required, as
he saw it, that result. His support for the
States as important players in the federal
arrangement is still relevant today. Decisions
like the Workchoice case8 last year have
virtually reduced the States to agents of the
Commonwealth Government. One may well
understand State Attorney Generals these
days praying: “Oh for another Wilson!”
Wilson’s national standing probably came
to its apogee with his term as President of
the Human Rights and Equal Opportunity
Commission in the 1990’s. Although he is
mainly remembered for his part in Bringing
Them Home, sometimes called the Stolen
Generations Report, it is easy to overlook
the enormous contribution he made to
advancing human rights in Australia
through his speeches, interviews and
papers. Yet he also found time to serve as a
member on the Western Australian Royal
Commission, chaired by Justice Geoffrey
Kennedy, into the affair that became known
as “WA Inc”. The Royal Commission’s
report not only was an important analysis
of failings in the political and commercial
aspects of the State Government. It also
provides a significant critique of the
weaknesses of the administrative and legal
framework within which governmental
operations were conducted.
Internationally, from the 1960’s on he
achieved enormous stature as a leading figure
in the Christian ecumenical movement. As
Buti also shows, he built a reputation as
an outstanding counsel before the Privy
Council.9
Beyond these essentially legal aspects of his
life, the book also covers many other facets.
These include his role as a man of faith,
individually, through his involvement in
the Presbyterian and Uniting Churches and
associated bodies, and in organizations like
the Australian Student Christian Movement
and the World Council of Churches. In legal
education, many older Perth practitioners,
including this writer, remember his role as
a teacher of criminal law and evidence in
the UWA Law School. In higher education
he played an important role in establishing
the State’s second law school at Murdoch
University. As Chancellor of that institution
he consolidated its position in difficult
times. In all these matters Dr Buti has
managed to portray just how broad and
deep Ron Wilson’s interests were. Nor does
he neglect the aspect of Ron Wilson as a
human being, family man and as friend,
mentor and advisor to many across the social
and international community, especially the
disadvantaged..
The biography also engages Wilson’s
personal philosophies and attitudes.
Foremost of these was his simplicity of
living (summed up in the maxim “Live
simply that others may simply live”), his
unpretentious, modest nature (“Call me
Ron”), his generosity of time and money
to those in need, and his not coveting the
symbols of the rich and powerful, such as
expensive cars and clothes. The book could
well have an alternative title, “Khaki shorts,
economy airfares and second hand cars.” To
understand these references one needs to
read the book.
While short of stature, Wilson stands
as a man of monumental achievements.
Trying to capture all these facets in a
single biography is itself a gigantic task.
Dr Tony Buti is to be congratulated for his
application and scholarship in writing this
outstanding biography.
1. One of these classic clashes, Tonkin v Brand [1962]
WAR 2, is recounted in Chapter 8 of the book
State Constitutional Landmarks, (edited by George
Winterton, Federation Press, 2006).
2. P Brett, The Beamish Case, University of Melbourne
Press, 1966.
3. Button v R (2002) 25 WAR 382; Beamish v R
[2005] WASCA 62.
4. (1982) 149 CLR 79.
5. [2007] HCA 43
6. Koowarta v Bjelke-Petersen (1982) 153 CLR 168;
Commonwealth v Tasmania (1983) 158 CLR 1.
7. (1988) 166 CLR 186.
8. New South Wales v The Commonwealth [2006]
HCA 52; (2006) 81 ALJR 34; 231 ALR 1.
9. See for example, Oteri v The Queen [1967] WLR
1272.
For all your printing requirements
–– Business Stationery
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19 Main Street, Osborne Park, WA 6017
Mobile: 0419 421 087 Facsimile: 9242 4738 Email: [email protected]
W e s t e r n
A u s t r a l i a n
B a r
R e v i e w
Malcolm Lee QC
“Retirement or Redeployment ?”
In April 2006 I retired from the Federal Court at the age of 65 after 18 years service.
Since then the first question put to me by
acquaintances meeting me thereafter has
been “Do you miss it ? “. It was, of course,
a corollary to the decision to retire that the
advantages and disadvantages of the decision
be considered. Therefore, to this point the
answer to the enquiry has been always no. I
have maintained some contact with the law,
however, by accepting appointment as the
Inaugural Judge in Residence at Murdoch
Law School where I maintain a visiting
role and advise Moot Court students on
advocacy skills.
But that is not to say that leaving the Federal
Court was a decision easily made. To the
contrary it was a privilege to hold the office
and retirement meant cutting ties with many
fine people.
I was fortunate that my appointment was
to the Federal Court where I was able to
observe at close quarters the skills of some
of the best judicial officers in the country.
Furthermore, the Court was always a very
harmonious institution which made it a
comfortable place in which to do a difficult
job. Appeals from the decisions of judges of
the Court are to a Full Court. The Court
has not established an appeal division of
appellate judges. All decisions on appeal
are made are made by peers of the judge
appealed from. That of course does not
mean that decisions on appeal are more
likely to be correct but they seem to be
more acceptable to judges whose decisions
are overturned.
In addition the national jurisdiction of
the court provides the opportunity to sit
anywhere in Australia and to be assisted
by submissions from the best counsel in
the country including of course, those who
practise in this State. The scope and diversity
of the court’s jurisdiction, which although
confined to that conferred by parliament,
brings before the court significant issues in
developing areas of law and a corresponding
intellectual challenge.
“Our property,
“Tarnagulla
Farm” is situated
in the beautiful
undulating
country that
surrounds
Balingup. It is
40 ha in area
and contains
remnants of
the jarrah and
marri forests
of the Darling
scarp. The soil
is typical for the
area- lateritic
loamy clay with
ironstone and
granite outcrops.”
W e s t e r n
A u s t r a l i a n
B a r
Malcolm Lee QC
So the decision to retire from the Court was
not without difficulty. However a number of
reasons made it clear that it was appropriate
to do so a few years before termination of
my period would otherwise take effect in
any event. Foremost amongst those was
the obligation, while still fit enough to do
so, to make a proper contribution to the
olive and flower growing enterprise that had
been undertaken principally by my wife Sue
with the intention that it keep us active and
interested in the ‘third age’ of our lives. I
have had a number of melanomas , one of
which was at level four, (an outcome of the
inappropriate combination of celtic skin
and years of cricket) and I had to be realistic
about the prospect of continuing to enjoy
good health in the years ahead.
Having applied myself to this venture I have
been struck by the amount of work Sue was
required to do in maintaining olives, flowers
and cattle while I was in the Court.
Our property, “Tarnagulla Farm” is situated
in the beautiful undulating country that
surrounds Balingup. It is 40 ha in area
and contains remnants of the jarrah and
marri forests of the Darling scarp. The soil
is typical for the area- lateritic loamy clay
with ironstone and granite outcrops. It
retains moisture well. The historical average
rainfall exceeds 900 mm but there would
be a noticeable decrease in that average if
one were to look at only the last 35 years.
Nonetheless we enjoy a good rainfall
although the winter rains are not as intense
as earlier years.
R e v i e w
We planted approximately 750 olive trees
between July 1996 and November 2000 and
they are now a reasonably mature grove. The
first trees planted were principally Kalamata.
The latter plantings were of the Tuscan oil
varieties – Pendolino, Frantoio, Leccino.
By current standards it is not a large grove
but it is more than enough for two people
to manage using their own labour for most
of the activities of grove maintenance. This
season Sue and I harvested almost ten
tonnes of olives which produced more than
1500 litres of top quality extra virgin olive
oil. It took us several weeks to complete
that harvest. Compared with traditional
harvest methods (beating olives with sticks
onto mats on the ground), our system would
appear very efficient. But there is no doubt
that to survive in the years ahead small
producers such as ourselves will have to be
able to reduce costs by having access to more
efficient harvesting and pressing systems.
That will include contract harvesters with
substantial tree shaking machinery and
investment in much larger regional olive
pressing factories. Tree shaking machinery
could harvest a grove such as ours in about
a day. However at this stage there is lack of
commercial olive processors able to meet
the demand for pressing that would result
from the daily production of olives in such
quantities. As with grapes the quality of the
end product depends on prompt pressing
after harvesting. Therefore, there will have
to be coordination between the supply of
harvesting and pressing facilities.
Recently this year’s oil
was awarded a silver
medal at the Perth
Royal Show
We har vest our olives with minimal
bruising using pneumatic rakes that shake
the branchlets and ‘drop’ the olives into
a mobile umbrella-shaped net clamped
around the tree. The net collects the
olives into small crates. Lightweight longlength hoses run from a compresser to the
pneumatic rakes reducing the need to shift
equipment from tree to tree. However
harvesting represents many hours of effort
for self employed producers. The harvested
olives are transferred to large crates and
transported to a commercial press. The
closest presses to our property involve either
a 50 and 90 minute trip. Each pressing
takes approximately 1.5 – 2 hours. The oil
produced is brought back and held in dark,
cool conditions for several months and the
sediment allowed to settle. The packaging
process of bottling and labelling then begins.
Olive oil is not a product improved by
maturation in the bottle and freshness is an
important element in the oil’s quality.
An important part of the husbandry of an
olive grove is an annual pruning programme.
An olive is by nature is a shrub and it
requires regular pruning to encourage it to
follow a tree form. Furthermore it is biennial
bearing by inclination and regular pruning
is required to encourage fruit production in
the “off ” years. In addition it is important
to reduce the density of the vegetation in
the centre of the trees to allow access of
sunlight and assist fruit propagation as
well as reducing the risk of disease and
of pest infestation such as scale that may
affect the health of the trees. It has been
our practice to obtain the assistance of a
pruning consultant. Pruning takes place not
long after harvesting and involves a further
several weeks work in pruning, collecting
and mulching the cuttings, and distributing
the mulch.
To maintain the health and vitality of
the trees we follow organic methods (we
are in the course of applying for organic
certification) distributing nutriments
and microbial supplements through the
irrigation system and by foliar sprays.
Between the rows of trees we established
cover crops of clover to fix nitrogen in
the soil accessible to the roots of the olive
trees.
Further time is spent by us in contributing
to the raising of public awareness of the
qualities and benefits of fresh Australian
olive oil by conducting olive oil tasting
and sampling sessions at, for example, the
Perth Royal Show. Then there is the task of
marketing the product and delivering orders
– a year round activity.
Fortunately all of the foregoing effort spent
in the olive grove has been worthwhile. The
trees thrive in the Balingup conditions. The
Kalamata are said to be second to none as
examples of that variety. Every year since the
production of our olive oil commenced in
2000, the oil has been awarded a gold, silver
or bronze medal in olive oil competitions,
including awards for Best Oil in Show at
the Perth Royal Show in 2002 and the York
Olive Oil Show in 2006.
W e s t e r n
A u s t r a l i a n
B a r
Recently this year’s oil was awarded a silver
medal at the Perth Royal Show.
In addition to the above, and to running
a small herd of cattle, we are also engaged
in producing wildflowers. We have a
plantation of approximately 1000 banksias
(baxterai and coccinea) and 100 waratahs
producing high quality blooms supplied to
wholesalers. Visitors to a recent Australian
trade exhibition in Beijing, China would
have seen some of Tarnagulla Farm banksia
coccinea (‘scarlet banksia’) amongst a display
of Australian wildflowers exported for the
purpose.
The combined blooming seasons of the three
varieties would span almost three months
during which time we are occupied in
picking, packing and delivering. Husbandry
of these plantations by irrigation and foliar
sprays of appropriate fertilisers is important
as is carrying out precise pruning to establish
adequate stem lengths and to ensure bloom
quality.
It can be seen that there is little unallocated
time in this retirement and certainly no
time available to meditate upon an earlier
occupation. Further information on our
property and our products can be obtained
by visiting our website.
www.tarnagullafarm.com
R e v i e w
spring 2ada.qxd
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Bar Council
Grant Donaldson SC Vice President:
Ron Birmingham QC
Michael Berry
Felicity Davis
John Hockley
Joe McGrath
Dominic Mulligan
Peter Quinlan
Judy Seif
Joshua Thomson
"VEJ4IBTCFFOEFTJHOFEUPFOIBODFZPVSESJWJOHFYQFSJFODF
Editorial Committee
"EEUPUIJTBSBDFXJOOJOHMJUSF7'4*ÚFOHJOFBOEJUTFWFSZUIJOHZPVFYQFDUGSPNB
Peter MacMillan - Editor
Greg McIntyre SC
Felicity Davis
Peter Johnston
John Hockley
Linda Black
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Please send all contributions for the next WA Bar Association Review to the Editor, Dr Peter MacMillan by 30 April 2008.
The Western Australian Bar Association (Inc)
Level 23, Allendale Square 77 St George’s Terrace PERTH WA 6000
GPO Box C122 PERTH WA 6832
Telephone: +61 8 9220 0532 Facsimile: +61 8 9325 2041 Website: www.wabar.asn.au
0WFSTFBTNPEFMTIPXO
W e s t e r n
A u s t r a l i a n
B a r
R e v i e w
W e s t e r n
A u s t r a l i a n
B a r
R e v i e w
Issue 5
December 2007
Contents
page 2
The New District Court of Western Australia
2
Human Rights Laws for Western Australia
4
The future of the West Australian Bar - 45 Years on
5
Coping with the pressures of litigation
10
Interview with Ian Viner QC
12
Bar Readers Course 2007
16
Bar and Bench Dinner
17
Judicial Appointments
18-20
Judicial Retirements
20-22
Case Notes
23
Book Reviews
Retirement or Deployment - Malcolm Lee QC
27, 28, 29
31
The Future of The
West Australian
Bar – 45 Years on
“The functional
Bar has stood the
test of time over
centuries and for
good reason.”
page 2
The New
District
Court of
Western
Australia
Building
“Every effort
is being made
to facilitate the
use of the latest
technology in
court, by the
judges and staff, by the court administration and by the legal profession when
working in courtrooms and associated areas.”

The Future of The West Australian Bar – 45 Years on “The functional

Transcription

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