Date post: | 08-Aug-2018 |
Category: |
Documents |
Upload: | luke-mcmahon |
View: | 214 times |
Download: | 0 times |
of 10
8/22/2019 Bar Dinner Speech
1/10
29
News and Views
MR Shand, honored gests, dis-tingished gests, renzied tre
believers, millionaire shareholdersin Slater & Gordon and, o corse, my el-
low nderdogs.
The good news is that I am not goingto ollow the mltiarios advices I have
been given in relation to this speech. I amnot going to read the ll text o my bar-
mitzvah speech, althogh nothing mch
has changed. I am not going to give yo
a highly emotional lectre pon a topicclose to my heart, namely the rle inFossvHarbottle, especially now that Graemeuren has explained what it is.
Finally I am not going to say a wordabot the rise and rise o Jstice Tony
Pagone hereinater reerred to asPhoenix J. except to say welcome
to the new job; or is it the old job? oris it the new Tony? or is he as I haveoten sspected a covert Italianate
Doppelganger? I dont know, bt what I doknow is, concerning the next appointment
to the Spreme Cort, the smart moneyson ... Start Morris.
Rather I have decided to take my leadtonight rom the beginning o a speech
given by one o or honored gests,Jstice John Middleton, pon the occa-
sion o his thirtieth wedding anniversary.
Middleton J. held a lavish dinner to cel-ebrate this event and he commenced his
speech this way: Yo all know my wonder-l wie (he pased or a minte or two to
remember her name) and contined btnow its time to talk abot me.
So now it is time to talk abot me (nothim). unortnately or time is limited.
Bt to do jstice to this important topic
I have chosen to talk tonight abot threemarvellos lawyers, no longer with s,
whose path I was lcky enogh to cross.The rst is Neil McPhee QC, whom I met
in the ollowing trobled circmstances.In the 1970s my mother, the amos
jornalist, wrote a colmn in the
Australian Jewish News, in which shebelted the living daylights ot o anybodywhose views she disagreed with, otenmembers o the amily and o corse
jdges who gave light sentences. I seesome o yo here tonight.
On this occasion into her ocs cameone Frank Knopelmacher. Knopelmacher
was an academic, an intellectal, whoseviews were slightly right o those o
Andrew Bolt, i that is possible.He was Czech, who spoke with a heavy
accent ot o the side o his moth. He
amosly said on ABC television: The
BarDinnerSpeech
Jeremy Rskin QC
Jeremy Ruskin QC.
8/22/2019 Bar Dinner Speech
2/10
0
Justice Elizabeth Curtain, David Curtain QC, David Beach S.C., David Martin,Michael Fleming, Justice Tony Cavanagh, Justice David Byrne and JusticeRichard Tracey.
President, Australian Bar AssociationStephen Estcourt QC.
Chairman of the Bar, Michael ShandQC.
said Yes, bt shes yor client. He saidBt she was yor mother beore she was
my client; I said bt I had no choice andthat went on or a while.
In the end marshalling nsal corage
I said to McPhee: Look, Mr McPhee, Imonly an articled clerk and I know nothing
abot this deamation st bt I am ada-mant that my mother shold not apologise
nder any circmstances. Is that clear?A sly look came over his ace a look
that I got sed to many times in the yearsthat ollowed and he said, Bring her
in.My mother strode in and beore any
introdction she said, under no circm-
stances am I going to apologise. McPheesaid I qite agree with yo. I woldnt
apologise mysel. Bt the problem is this:yor son insists that yo do and hes an
expert in this area. Yo mst be veryprod o him. Twenty-ve years later my
mother is still rios she ever apologised
to Frank Knopelmacher and blames me,bt we are beginning to work it throgh
with an expensive therapist.McPhee was a brilliant lawyer with
a labyrinthine mind. In another lie he
advised Machiavelli. Here is an example ohis tricky behavior.
In 1992 the Herald Sun pblishedan editorial abot the then Police
Commissioner, Mr Kel Glare, which heregarded as deamatory and a writ was
In a carefully understated
opening Sher told the jury:
This is the most serious
libel anyone could ever
publish about any person
anywhere in the world.
only good commnist is a dead comm-
nist!For some reason he annoyed my
mother, and in her colmn she gave him acople o rockets, variosly describing him
as Astralias most appalling sel-hater.This was said to be deamatory and a
letter o demand arrived at my mothershome, when I was doing my articles at
Galbally & OBryan.It was necessary thereore to seethe amos deamation expert, Mr Neil
McPhee QC. My mother was kept otsideand in I walked. I met a small man with a
large rown and a gr voice. He said Ithink a little impolitely I have read all
this crap yor mother wrote. Tell her toapologise.
Why dont yo tell her I said. No,
I said, yo tell her, said McPhee. No,yo tell her, I said and this went on or
a while.Then he said, Shes yor mother. I
8/22/2019 Bar Dinner Speech
3/10
1
issed. Sher QC acted or Glare. In a care-
lly nderstated opening Sher told thejry: This is the most serios libel anyone
cold ever pblish abot any person any-where in the world.
McPhee told the jry: Its jst a littlebit o air comment thats all. And it
is air comment that stops the tanks ototalitarianism rom thndering down
William Street.In a carelly crated non-leading qes-tion, Sher asked Glare: How distraght
were yo when yo read this completelydisgracel article? Glare gasped, looked
at his eet, looked at the jry, looked atthe jdge, stood to attention, clenched his
teeth and said: Sorry, yor Honor, ... jstexpressing ... emotion.
McPhee asked or witness, the writer
o the editorial, Piers Ackerman: How didyo eel when Mr Sher told the jry that
yo were a malicios jornalist? A largepolka dot handkerchie was prodced and
a torrent o tears crashed into the polkadot.
I thoght wed reached the tie-breaker.
On the morning o the third day the trial
Jdge, Jstice Frank Vincent, who is oneo or honored gests, gave a lectre to
the readers beore cort time. In 45 min-tes as yo wold expect his Honor
taght the readers the whole o the crimi-nal law, liberally interspersed with helpl
atobiography. Then the Jdge said this:Ive got this libel trial. Two o Astralias
greatest barristers are appearing in it. Yo
can come with me to cort and watch howthey operate. Bt one thing I can promise
yo: there will be no personal bickering orpersonal attacks o any kind.
It was ve-to-one that morning. Thecase was looking bad. McPhee sddenly
started to rstle his papers in a lod way.He then placed or arch lever olders,
one pon the other, with sch geometric
incongrence that, i I may se a cople o
words rom a jrisdiction in which I prac-tice, it was reasonable oreseeable that
they wold all to the foor, proximate toSher, which they did.
Sher swng arond, and glared atMcPhee. His ace was like thnder. He
looked like a wild man rom an EmilyBronte novel. I was sitting between these
two, and I elt like the lawyer in the StevenSpielberg movie Jrassic Park II who,sitting on the toilet, is approached on each
side by a tyrannosars and torn apart. Iwondered: was Sher going to kill McPhee
in the 11th Spreme Cort? Worse wasI going to perish in some act o serial
stranglation? Even worse, was I going tosrvive and have to do the case mysel?
Had I read the brie? I think we all know
the answer to that qestion.Consmed with these selfess refec-
tions, a miracle happened: the Jdge saidit was lnch time. Sher thndered throgh
Ruskin makes a point.
John Richards S.C., Kim Galpin and Michael Ruddle.
8/22/2019 Bar Dinner Speech
4/10
2
Justice Ken Hayne, Justice Michelle Gordon and Justice Bill Gummow.
The throng.
ter o act, ... I didnt do anything. Yesyo did, said the Jdge. I didnt see it
bt in yor case there is a presmption ogilt. Yove been doing it all yor lie.
Well, it was not a good day or thedeenders o the orth estate. The
deence o air comment seemed to havedissolved into the ether, or witness hadbeen mrdered by Sher and or Senior
Consel rebked by the Jdge. So it wasa pensive McPhee who walked back with
me at the end o the day. Ater a littlewhile he said: The Jdge is a bit odd isnt
he? I said: Theyre all odd. He said: No,bt I mean what do yo think abot this
presmption o gilt that cant be right
can it? I said: Bt, Neil, its only in yorcase. He smirked and then said: I gess
theres a air bit in it.Bt, yo know, the readers and yong
barristers remembered the wise wordso Vincent J abot role models, and the
next day in the Magistrates Corts, romNorthcote to Kaniva, the biros were click-
ing: They were doing it.As my good riend Mae West wold
have said o McPhee, When he was goodhe was very very good, bt when he wasbad he was better......
I realise I am so yong as I look down
pon yo all rom this comortable spotwhere one o yo is going to be lcky
enogh to be next year look or ared spot nder yor plate that I did
not know my next person o interest,
Cairns Villeneve-Smith as a barrister. Heamosly deended an Aboriginal called
Start and was ostracised by the Adelaidecommnity and came to Melborne. He
the cort door leaving some o the hinges
in tears; McPhee santered o as i he was
going to the ooty.At 2.15 Sher contined to eviscerate
Ackerman. Body parts hit the foor. ThenI heard it. Three little noises. Sher swng
arond again. This time, placing his hand
in the traditional Wyatt Earp pose, withthe index nger as the barrel, he pointedstraight at the head o the Jdge and said:
Hes doing it! What? said the Jdgewith a look o panic. I said hes doing it!
said Sher. Thats what I thoght yo said,
said the Jdge. Mr Sher, who is doing thisthing? Sher said: McPhee! McPhee! Mr
McPhee! He is the one whos doing it!Okay, okay, Mr Sher, can yo tell what he
is doing? Sher replied: Biro! Biro! Hesclicking his biro. Indeed its worse, mch
worse. He is clicking a series o biros, heis clicking them seriatim, he is clicking
them deliberately, and he is clicking themlodly. This is part o a vast pre-plannedorensic tactic!
Stop! said the Jdge. And then, likethe great jdges, adopting what I call the
placebo tone, the Jdge said: Members othe jry, a matter o law has arisen, and as
yo know that is my nction. Or ptting itdierently, the lions have got ot o their
cage and are trying to eat the trainer. Imgoing to try and pt them back in bt in
the meantime why dont yo pop into yor
jry room and I will see i I can sort it ot.And then in what I regard as the greatest
jdicial nderstatement o the twentiethcentry, which deserves its own place
in the Ginness Book o Records next tothose gys with long ngernails, Vincent
J said, I ear, Mr Sher ... yo may havebecome emotional.
The Jdge then said, Stand p, Mr
McPhee. The little Scot stood p andlooked at his eet, rather in the style o
a seven-year-old caght in scriptre classwith a shanghai. In the pocket o his Bar
jacket were eight biros. I am sorry to sayve were set in the immediate pre-click
position. What have yo got to say? said
the Jdge. McPhee said: Well, ... as a mat-
The Judge then said,
Stand up, Mr McPhee.
The little Scot stood up
and looked at his feet,
rather in the style of a
seven-year-old caught
in scripture class with a
shanghai.
8/22/2019 Bar Dinner Speech
5/10
gave a terric speech at a Bar Dinner
many years ago when he told the story ohis marvellos ather Villeneve-Smith KC
who amosly went to jail or telling theJdge he was nothing bt a postring sel-
aggrandizer. Lckily we dont have jdges
like that in Victoria ... please dont point.
Villeneve-Smith was a wonderl com-mon lawyer who amosly pole-valted hisriends into immortality by writing a long
epic poem abot a case on circit, whichcan be read in the Bar Chamber. I yo ask
Georey Nettle, Jstice o Appeal, he willtell yo it contains 112 dactylic hexam-
eters, which is helpl.The Villain (as we called him) knew
how to play the barristers on a break. Here
is how he dealt with one victim.And so I nish my smmary o the
address o Consel or the plainti, MrTobin. I I may say so it was most helpl
and relevant. I now come to the addresso Consel or the deendant, Mr Rskin.
Here its a bit diclt to know where tostart. I dont want to do him an injstice
(hes abot to do the greatest injstice
since the slave trade), bt i I nderstoodhim at all (he didnt) he pt to yo the ol-
lowing astonishing proposition (eyebrowsmoving rapidly): becase that plainti is a
hairdresser she cannot have a sore neck.Do yo remember him saying that? He
then erociosly appealed to yor com-mon sense. Well yo will know what yor
common sense is on the one hand and Mr
Rskins version o it on the other, andyo will ask yorsel whether one bore
any remote relationship to the other. Thisis o corse a matter or yo (more rapid
eyebrow movement). Then Mr Rskinsaid to yo many times: She cant have it
both ways, she cant be a hairdresser andhave a sore neck. She cant have it both
ways, she cant have it both ways. Well....this is jst a comment o mine. She can
...! and she has...! And she did! The plain-
ti got record damages, bt as McPheesed to say Yove always got to be in
the big cases even i theyre sel-gener-
ated.And so I was lcky to be the consel ochoice in the next case or the TAC again
beore the same Jdge. It was a dicltcase involving Ms Harris who was involved
in a bad car accident and 15 mintes later
had a miscarriage. I know what yorethinking coincidence. Bt the Jdge
or some reason had troble nderstand-ing this.
My opponent was the magnicentHoward Fox QC, a barrister who spoke
Swahili and sed big words in English. Heconstantly interrpted my cross-examina-
tion, accsing it o containing inelctableshibboleths. Qite right, said the Jdge,
i we knew what they were bt I willallow the objection anyway.
We then came to the hard part o the
case casation. Clothing mysel in mysensitive new-age voice, which was a kind
o a hybrid o that Jdge whose pictre Isaw in the paper a cople o weeks ago,
that dreadlock rapper Jstice MichaelKirby, and Ertha Kitt I swooned, or
crooned: Ms Harris, did yo notice a seatbelt mark on yor tmmy? I know what
yore thinking: only a common lawyer
cold crat sch a magnicent qestion.Trapped like a rabbit in the lights, Ms.
Harris looked at the Jdge and said: Idont know what to say. The Jdge said:
Dont worry. I do and I will. In themeantime jst be yorsel. Oh, thank
yo! she said and then trned to me andbellowed What the bloody hell wold yo
know, yo little trd! which was tre,thogh not entirely responsive as the
Jdge was kind enogh to say in his rea-
sons or jdgment. Amazingly we lost thecase. Bt discontent, we strode across the
road to the Cort o Appeal. Now theres a
top spot. It is an ethereal haven o wisdomand jstice, and so tranqil its like goingto a yoga class.
On this occasion the Chairman o theCort was the indomitable Mr Jstice
Ormiston. And so the appeal went like
lightning.Anyway ... towards the end o the
orth day, when we had discssed everysingle case that had ever been decided in
Soth Arica pon this elsive topic ocasation, rolicked throgh the ecclesi-
astical reports and had a lsome look atthe Berne Convention on copyright jst
in case, the Jdge said to me in a voiceas I recall it, tinged with calm: Mr Rskin
where are we!!? I said, I imagine werestill on page two o the appeal book. He
said: How on earth did that happen? I
said: I cant imagine, yor Honor. Hesaid: Well its yor alt! Why do yo
always complicate things? This is a simplecase. Look, the Jdge saw the plainti, the
Jdge liked the plainti. I read the tran-script and I liked the plainti. We all liked
the plainti ... yo lose all redcedto a concise 90-page jdgment with 150
ootnotes.
Did I jst hear Jstice Tony Cavanoghsay: Whats wrong with that? Cold
someone make sre he has an earlynight?.....
From the monstros injstices o Jdge
Villeneve-Smith and the Cort o Appeal,to a orensic rock star, Frank Galbally.
For those o yo who didnt know FrankGalbally (whom we called Mr Frank),
he was the pre-eminent practitioner o
the Criminal Law in the 1950s, 1960s and1970s. He was a tall, ne-looking man
with a velvet voice. He qoted rom the
Bible. He sre knew how to massage thosevowels.I was lcky enogh to work in his oce
or six years or so with sch amos peo-ple as Tony Howard, now Jdge Howard,
one o or honored gests, who in those
days rather regarded himsel as the think-ing womans Che Gevera metrosexal,
o corse, knowing Tony. The paradox oFrank Galbally was this. I yo were gilty
yo went to Frank Galbally who got yoo and then yo werent gilty.
I sed to nick o and watch his naladdresses in mrder trials. They typically
Simon Wilson QC and Paul Elliott QC.
8/22/2019 Bar Dinner Speech
6/10
4
began like this: Placing his hands in the
nal benediction position, he wold say:They took his broken body rom the
cross, and laid its bleeding orm pon hismothers lap. And i yo wish to see this
pitil scene orever portrayed in marble, I
invite yo to view the magnicent Pietaby Michelangelo himsel, in Vatican City,
in the contry o Italy.Ths the jry were given a thmbnail
sketch o religion and ne arts bt moreimportantly wold nderstand that Mr
Franks client (the killer) was at least asworthy as Christ i not a whole lot better.
And that is how yo get a 90 per centacqittal rate in over three hndred mr-
der trials.
As a yong articled clerk or solici-tor, yo wold ollow Mr Frank to the
Melborne Magistrates Cort. Peoplewold swoon and gasp as the great man
walked in to register his appearance.
Registrars at the central desk wold standin line to serve him. The conversation
wold typically go like this: Good morn-ing, David; Andrew, Mr Frank. Yes,
o corse, Andrew. What have yo gottoday, Mr Frank? Well now ... who have
yo got, Andrew? We have MagistrateSmith. No, I dont think so. What abot
Mr Jones? No, that will not do at all.What abot the Jstices? The Jstices othe Peace were three men (in those days)
who tried smmary oences. They cold
be a tad right wing. I any o s mortalstold them abot the standard o proo, the
eyes might glaze over, bt when Mr Franksaid, Now, yo mst be completely satis-
ed and beyond all reasonable dobt!, it
was like an entirely new concept.
And Mr Frank wold say: Andrew, wehave aProudman vDayman case.
I dont know i Proudman andDayman works as well as it did in the1970s bt the way Mr Frank sed it, it
was athority or the proposition that iyo had an honest and reasonable belie
in anything at all, yo wold get o. Andit is a tre story that when Mr Winton
Hayes knocked o a Rolls Royce and
replaced the registration nmber withWH-007 ... yo gessed it, he had an
honest and reasonable belie that he wasJames Bond; and he resed to answer
any qestions rom the prosection,inclding his name, on gronds o national
secrity.Winton is still driving today, prob-
ably chaering Tony Mokbel arond
Brighton so he can report in to his avor-ite Jdge, the great E.W. Gillard J.
Mr Franks greatest case was the Kropemrder trial in 1978. Bill Krope had killed
his ather in sel-deence, with 27 bl-lets, as yo wold. This trial was vintage
Mr Frank. First it was a domestic killing.Second Bill Kropes mother was charged
with conspiracy to mrder ater she had
gone on television saying that the killingwas a good idea I sspect with the
blessing o Mr Frank. And most impor-tantly o all, Bills sister was the reigning
Miss Astralia, Gloria Krope.I mean, how many o yo have been
able to look the trial Jdge in the eye andsay, We now call Miss Astralia! And into
the witness box strode the gorgeos Gloriain riding boots, straight o the cover o
Vogue, to receive Mr Franks contrivedleyabsent-minded qestion Is yor llname Miss Astralia?
Mr Frank delivered his nal address at
abot 11.0 on a Thrsday morning, timedto coincide with the sn coming throghthe windows o the 12th cort, so as to give
the illsion o a halo above Mr Franks wig.This conrmed to the jry that which they
already knew, namely that they were in the
presence o a spernatral advocate.Mr Franks nal address commenced
this way (again placing his hands in thenal benediction position): 2000 years
ago Aristotle said We cannot love those weear!, ... And i yo nd my client Bill Krope
gilty o mrder, then pack yor bags andget ot o Astralia!
The paradox of Frank
Galbally was this. If you
were guilty you went to
Frank Galbally who got you
off and then you werent
guilty.
Pre-dinner drinks in the museum.
8/22/2019 Bar Dinner Speech
7/10
5
Some o the jry members began to
cry and I wondered whether it was thesheer power o the address or the ear o
deportation.I was there when both o the Kropes
were acqitted. I saw tears in Mr Franks
eyes perhaps he was not spernatral
ater all. The enthsiastic yong articledclerk Terry Forrest, now the amos TerryForrest QC, raced p to him and said:
Congratlations, Mr Frank! Thank yoTony! said Mr Frank. Terry, Mr Frank.
O corse, Terry. Now listen carelly,Terry. Bill Krope, his mother, Gloria, John
Walker QC (who acted or Mrs Krope) andI are going to walk down Lonsdale Street
to St Francis Chrch to pray and to thank
God or what He ... and I have achieved... and Terry ... or Christ sake tell the
press!!Mr Frank cold trn error into trimph
sch as when he appeared beore SallyBrown, now Jstice Brown, one o or
honored gests in her previos incarna-tion as the Chie Magistrate. In the corse
o his emotional plea, it was pointed ot
to Mr Frank that he had addressed HerWorship on no less than 19 occasions
by the appellation Sir!, when as HerWorship pointed ot, she was in act and
withot dobt, one o those other people,called a woman. Mr Frank grasped the sen-
sitive gender isse in both hands, lookedHer Worship rmly in the eye and said
proondly: In this matter, Yor Worship
is completely correct! There ollowed anavalanche o apologies o sch variation,
intensity and dration that Sally soonrealised that i she wished to leave the
bilding alive and by midnight, it wold benecessary to give Mr Franks ghastly and
entirely ndeserving brglar a bond. Andso the greatest advocate in the Western
World let the Melborne MagistratesCort trimphant as sal......
As I look back on my own bewilderingcareer, estooned as it has been with
orensic catastrophe o the type that Mr
Shand was kind enogh to remind yo oin his introdction I think oten o thesebrilliant lawyers, Neil McPhee, Cairns
Villeneve-Smith and Frank Galbally. Tothe extent that I have scceeded in this
great racket in which all o s here tonight
variosly engage, it is becase they haveinspired me and made me lagh. To the
extent that I have ailed, airness demandsthat I blame them entirely.
As the Talmud says: Their memory isa blessing.
Thank yo all or listening. Good night,good lck and dont click yor biros!
MR Chairman, distingished gests,
ladies and gentlemen.On behal o the honored and
esteemed gests I thank yo or yorinvitation to the 2007 Bar Dinner. I am
delighted to be here tonight and be intro-dced by the song What a Wonderl
World. And so it is.The ormat o Bar Dinners has changed
over the years clminating in the razzma-
tazz o tonights event with photographsand msic, bt one thing has remained
constant that is the tendency o speak-ers to talk abot themselves. I have been
allocated approximately 10 mintes tospeak. I was given ree rein as to what I
shold talk abot so in my allocated timeI am going to speak to yo abot mysel.
Ten mintes is hardly enogh time, bt
I will do my best, and give edited high-lights. I am qite pront abot the con-
tent o my speech. unlike Rskin, I willnot pretend to talk abot Frank Galbally,
Neil McPhee and others, bt in reality tell
yo all abot the important part I playedin their lives.
I thoght some o yo might be inter-
ested in what it is like to be a jdge in thewonderl world o the Federal Cort
o Astralia, i only ot o criosity. For
those o yo who do not keep a diarisednote o sch things, I was appointed on
1 Jly 2006. This coincided with thebeginning o a concern in all corts with
occpational health and saety isses andthe management o stress. We all have di-
erent ways o dealing with these isses.In dealing with stress, it is important to
ascertain or onesel the case o stress,so to the extent possible, one can avoidsitations which give rise to nnecessary
eelings o anxiety.My good riend Jstice Finkelstein has
dealt with stress by being instrmentalin the pilot o the Fast Track List which
has been introdced into the VictorianRegistry o the Federal Cort. I liked the
earlier name, the Rocket Docket, and
the reerence to me as one helping otwith the list as Johnny Rocket. I shold
point ot that this List has not been intro-dced to help practitioners or litigants.
Its sole prpose is to instittionalise by a
cort direction the already existing prac-tice o Jstice Finkelstein not to accord
natral jstice, to decide the case himselwithot recorse to the sbmissions o
consel, and to otherwise qickly disposeo the proceedings. The introdction o
the Fast Track List has accomplishedmch or Jstice Finkelsteins anxiety
levels now that his approach has been
ormally condoned by the Federal Cortitsel by way o a practice direction.
Personally, I nd the intrsion o anylitigation into my lie to be the root o all
stress. I try in all legitimate ways to avoidit. Going to cort otherwise interrpts a
perect day. I try to ocs pon trees ogreen, red roses too, skies o ble, and
clods o white. It is diclt to do this
in the cortroom althogh the design othe Federal Cort allows me to gaze (in
thoght) to the skies o ble and clodso white. As a jdge, going to cort not
only means having to hear the case, which
in itsel involves listening, mastering theisses, controlling the trial process, btone then needs to either decide on the
spot or reserve ones jdgment. We aretold by Jstice Heydon in a speech pre-
sented in Darwin in Agst 2006 that i
possible it is desirable to deliver jdg-ments ex tempore. This adds the extra
brden o having to know somethingabot the case beore yor associate
writes the jdgment.Then there is the stress o accont-
ability. This arises whether one actallyhears a case or not. Michael Wheelahan
S.C. has taken it pon himsel to keep ascore o the nmber o jdgments handeddown by those three jdges appointed to
the Federal Cort in the middle o lastyear, namely Jstices Jessp, Tracey and
Middleton. It is like the stats in ootball.The basis o the accontability is that
each jdgment placed pon the internetwhether it be as a single jdge or as a
member o the Fll Cort is given one
point, and i yo are appealed sccess-lly that point is dedcted. I the High
Cort o Astralia positively goes ot oits way to be critical o yor jdgment,
News and Views
BarDinnerSpeech
Jstice John Middleton
8/22/2019 Bar Dinner Speech
8/10
6
an extra point is dedcted. I the High
Cort o Astralia goes rther, and ina nanimos jdgment, says that yor
conclsions were arrived at withot
notice to the parties, were nspportedby athority and few in the ace o
seriosly considered dicta ttered by amajority o this Cort as the High Cort
stated inFarah Constructions Pty Ltd &Ors vSay-Dee Pty Ltd, handed down on24 May 2007 setting aside orders o theCort o Appeal o New Soth Wales, then
all accmlated points are dedcted andyo start rom scratch.On the pls side, a mere concrrence
in a jdgment o another member o theFll Cort is given a point. Whilst one
may make jokes abot the habitallyconcrring jdge, even the shortest o
concrrences has its potential dicl-ties. Ths when Lord Jstice Stirling
expressed his concrrence with a jdg-
ment o the Master o Rolls and said and Ido not think I can selly add anything,
the third member o the Cort LordJstice Cozens-Hardy might have been
a little bit more tactl than to say sim-
ply I agree. When Lord Jstice Mortonhaving expressed his entire agreement
with a jdgment o the Masters o the
Rolls added I I delivered a jdgment,I shold only be repeating in less elici-
tos langage what has already been saidby Lord Greene MR, jdicial cortesy
plainly indicates that the two wordedjdgment o Lord Jstice Tcker I agree
was intended to ollow the jdgmento Master o the Rolls Lord Greene and
not Lord Jstice Morton. I only mentionthese examples to indicate that even in aconcrring jdgment, apart rom ptting
aside the rigoros intellectal endeavorin determining whether or not one
shold concr, care mst be taken in theexpression o the concrring jdgment
itsel.The length, qality and extent o intel-
lectal endeavor in my jdgments has not
infenced the score. I do not place allmy jdgments on the Internet, as some
others do, in an endeavor to improvethe stats. Jdgments not placed on the
Justice John Middleton.
Internet are not conted by Wheelahan.I am involved in many jdicial activities
otside the eld o jdgment writing. Nopoints are allocated in respect o sch
jdicial activities, no matter how time-
consming or important. I only mentionthese matters becase they explain the
act that, by now the more astte oyo wold have gessed, I am coming
third. In act, althogh Wheelehan hasntinvestigated this aspect, Jstice Gordon
only appointed in the last month or so, isprobably well ahead in the jdgment
cont.
Apart rom accontability, there isalso the stress associated with the pos-
sibility o criticism and the pointing oto a jdges shortcomings in the pblic
arena. It is best to avoid getting involvedin what the press may characterise as
landmark decisions. I the jornalist
agrees with a decision, he or she reersto yo politely as Jstice John Middleton;
i he or she doesnt agree with yo, itseither jst John Middleton or in one case
recently Middleton. Jdges, o corse,have never been keen to expose or
admit their shortcomings. Prior to theopening o the Royal Corts o Jstice
in England in 1882 by Qeen Victoria,Lord Chancellor Selborne called a meet-
ing o the jdges at which a drat o theaddress to the Qeen was considered.
It contained the phrase Yor Majestys
jdges are deeply sensible o their own
many shortcomings, whereat Master othe Rolls Jessel strongly objected sayingI am not conscios o many shortcom-
ings and i I were I shold not be t to siton the bench. Ater some wrangling as
to the terms o the address Lord JsticeBowen sggested a compromise: instead
o saying that we are deeply sensible o
or many shortcomings why not say thatwe are deeply sensible o the many short-
comings o each other?. So ar as pbliccriticism is concerned, perhaps I shold
be happy that the press have only had aew occasions to comment pon or criti-
cise my pblished jdgments. O corse,on the Wheelahan cont, there are so ew
o them. One recalls the incident o theBirmingham newspaper which contained
a criticism in the ollowing terms o
Jstice Darling who was holding the localassizes in England I anyone can imag-
ine Little Tich pholding his dignity pona point o honor in a pblic hose, he has
a very air conception o what Mr JsticeDarling looked like in rling the Press
against the printing o indecent evidence.His dimintive Lordship positively glowed
with jdicial sel-consciosness. No news-
8/22/2019 Bar Dinner Speech
9/10
7
paper can exist except pon its merits, a
condition rom which the Bench, happily
or Mr Jstice Darling, is exempt. Thereis not a jornalist in Birmingham who
has anything to learn rom the imprdentlittle man in horsehair, a microcosm o
conceit and empty headedness. One is
almost sorry that the Lord Chancellorhad not another relative to provide or onthe day that he selected a new jdge rom
among the larrikins o the law. One oJstice Darlings biographers states that
an eccentric let him mch money. That
misgided testator spoiled a sccesslbs condctor.
Other than avoiding litigation and writ-ing jdgments, and ths pblic criticism
by the press, my anxiety level is redcedby belonging to a gym and employing at
great expense a personal trainer. Bt Iam not sre it is working to avoid stress
altogether. The personal trainer is in aposition to hrt me both physically andpsychologically. The physical part being
the act that exercise hrts; the psycho-logical part is that no matter how mch
the client exercises he can never look asgood as the personal trainer, so there is
a sort o hopelessness bilt into the sys-tem. Lots o jobs allow one to hrt people
physically boxers, police, dentistscome to mind bt only personal train-
ers get to make people eel bad emotion-
ally too. I overheard one personal trainer,pointing to an exercise machine, saying to
his cstomer see the little pictre o thegy on the side o the machine, sit down
and do what he is doing ntil yo looklike him. Then I heard David Crtain QC
protest that the gy in the pictre was askinless gy with no genitalia, to which
the personal trainer smiled and said no
pain, no gain. (I was jst joking when Ireerred to Crtain).
The other main way to relieve stresson the occasions when it is navoidable is
to have lnch with some riends. My threeadlt children, althogh still at home,
do not respond to my coming home and
hgging them, as is the preerred wayo relieving stress ond by one member
at the Bar, namely Fiona McLeod S.C.(i one believes the press). Bt even in
lnch as a member o the bench one doesnot avoid all stress. I nd that I am not
as welcomed to the Flower Drm resta-rant as I once was and now actally need
to make a booking in advance. My wie(Jdith) and I now have a daily bdget
or entertainment and dining which Imst ensre I do not go beyond. My eye
now goes only to the portion o the wine
list which describes the local wine, and
certainly not the cellar list. Long gone are
the days when I actally was mentionedin the press as a avored patron o the
Flower Drm Restarant. A riend omine at the Bar, Tim Walker, obviosly
with too mch time on his hands and stillnot over his days as a jornalist, sent a
letter in September 1997 to Simon Mann,then the bsiness editor o The Agenewspaper, concerning an article in the
Epicre section abot my patronage othe Flower Drm. The letter was never
pblished becase o a restraining order,bt as nearly 10 years has elapsed since it
was written, I now eel more comortablein pblishing it mysel.
Dear Sir,
At page or o todays Epicre section o
yor newspaper, reerence is made to one
John Middleton QC as a legal lminary.
No exception cold be taken to the contextin which the name o Mr Middleton QC
appears, it being entirely appropriate that
he is reerred to amongst other persons
whose pblic identity is associated with
restarants, bt nlike those other per-
sons it shold be noted that the celebrity
stats o Mr Middleton QC is owed entirely
to his patronage o restarants and not
otherwise.
Moreover, I qestion the se o the
expression legal lminary. My edition o
the Shorter Oxford English Dictionary
gives three senses to the word lminary:
one, a natral light-giving body; two, an
articial light; three, a sorce o intellec-
tal, moral, or spirital light; a person o
light and leading. In the third extended
sense o the word, Chambers Concise
20th Century Dictionary species theconnotation o one who illstrates any
sbject or instrcts mankind.
Exclding or present prposes, as I think
we may, the proposition that Mr Middleton
emits either natral or articial light, one is
let to grapple with the notion that Mr Mid-
dleton is a person who has by some means
enlightened mankind. I will not waste yor
time by a reasoned retation o this latter
proposition, the absrdity o which needs
only to be stated to be realised.
Mr Middleton will no dobt seek to draw
some comort rom the orth sense o the
word given by the Macquarie Dictionary,viz, a amos person, celebrity.
Accepting this orth sense o the word
or the sake o argment, it may be seen
that we retrn ll circle to the reason why
Mr Middletons name was sed in the rst
place: i.e., a person amos or his lnch-
ing exploits at Melbornes more expensive
restarants. To conclde, I sggest any
tre reerence to Mr Middleton QC as a
lminary have sbstitted or the sper-
lative legal with lnching.
John Larkins furniture
individually craftedDesks, tables (conference, dining,
coffee, side and hall).Folder stands for briefs and other items
in timber for chambers and home.
Workshop:2 Alfred Street,
North Fitzroy 3068Phone/Fax: 9486 4341
Email: [email protected]
8/22/2019 Bar Dinner Speech
10/10
8
Well my time has expired. I thank
Jeremy Rskin or his great contribtiontonight. He is an excellent advocate and a
great contribtor to the Bar. We belong toa great instittion, and it is at times like
this that we can all celebrate together asmembers o the Bar. Even Ross Gillies QC
has come tonight, his rst appearance at
a Bar Dinner in 40 years. Rskin thinks hecame to hear him speak, when I know he
came to hear my reply.Some o yo may conclde by this 10
or so minte insight into my jdicial lie
that I am overcompensated. I I am over-
compensated, I am not overcompensatedenogh. I am still looking at ways to make
hosehold or other bdget ctbacks, inview o my crrent revene shortall.
Jdith and I are crrently looking at lay-ing o or dependants (i.e. or kids) in
a proessional, stress-ree manner. This
shold enable an increase in the dailybdget or personal entertainment and
living.This speech has had absoltely no
worthwhile content. Most o it has been
abricated and is completely ntre. I
hope, however, I have entertained. Atthe end o a long and hard oght case
beore Sir Edward Woodward involvingthe Toyota company, ater the completion
o all evidence and sbmissions, I stoodp and stated Oh, what a eeling!, and
jmped in the air. Tonight ater some 10
months on the Bench and avoiding stress,I leave yo with: Yes I think to mysel
What a wonderl world!.
The dinner scene.