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No April New South Wales Bar Association Powered By Docstoc
					No. 122 (April 2005)
                       Bar Brief
                            THE MONTHLY NEWSLETTER FROM THE NEW SOUTH WALES BAR ASSOCIATION
                                                                                                                         Servants of all
                                                                                                                            yet of none



                                                                                                                           ISSN No: 1443-6132




                                                                                                                     ➔
Fundraiser an outstanding
success                                                                                        contents
On Wednesday, 13 April 2005 a cocktail                                                             2 A message from the President




                                                                                                                     ➔
party to raise funds for the Indigenous
Barristers Trust (The Mum Shirl Fund) was                                                          2 CPD videos
held at Sydney’s Sky Phoenix restaurant.                                                           3 Bar Council business for
More than 150 guests attended, including
                                                                                                       February – March 2005
the patron of the trust, the Hon Sir Gerard
Brennan AC KBE, Attorney General Bob                                                               4 Law Week 15-21 May 2005




                                                                                                                     ➔
Debus, and the Hon Dr Andrew Refshauge
                                                                                                   5 2005 Justice Awards
MP, Deputy Premier and Minister for
Aboriginal Affairs. The highlight of the                                                           5 Life Membership for the Hon
evening was a heartfelt and insightful                                                                 Mary Gaudron
speech by Noel Pearson in which he
expressed the view that the original                                                               6 Speeches to note




                                                                                                                     ➔
decision in Mabo had been misunderstood                                                            6 Media briefing
by the community, and that the oppor-
tunity for attitudinal change towards native                                                       7 Crown prosecutors allocated
                                                                Noel Pearson.
title was lost. He also raised concerns that                                                           for pre-trial pleas
                                                        Photo: News Ltd Image Library.
the Native Title Act had been interpreted
by courts in a way that diminished                                                                8 Appointments




                                                                                                                     ➔
Indigenous land rights. Guests were also       Bar. After a protracted dispute with the
treated to the premiere of a promotional
                                                                                                  8 Bar Association photo ID
                                               Australian Taxation Office, the trust was
DVD about the Indigenous Barristers’           endorsed as a deductible gift recipient in      9-12 Joint Conference of the
Trust, which will soon be available on the     mid-2004. This allowed the Indigenous                   Australian and Irish Bars –
Bar Association’s web site.                    Barristers Working Party, chaired by Chris              Dublin
The trust was established in 2001, during      Ronalds SC, to begin fundraising in
the presidency of Ruth McColl SC, to help      earnest. In December last year, the               13 Wine of the Month
Indigenous lawyers overcome serious            2004 senior counsel together donated
financial impediments to practising at the     $40,000.

                                      ❖ ❖ ❖ ❖


Streamlining civil procedures across
jurisdictions
The Civil Procedure Bill 2005 was              other Acts and instruments that deal with       courts in which the majority of civil
introduced into the NSW Legislative            particular aspects of civil procedure.          proceedings are heard). The Bill contains
Assembly on 6 April 2005, with the             Different regimes exist for different courts    provisions with respect to commencing and
minister’s second reading speech delivered     and different subject-matters, the              carrying on proceedings generally (Part 3),
on that day. A copy of the Bill may be         differences frequently being merely an          mediation and arbitration (Parts 4 and 5),
obtained from the parliamentary web site       accident of history. Such differences make it   case management and interlocutory matters
at www.parliament.nsw.gov.au                   difficult for litigants to take advantage of    (Part 6), judgments and orders (Part 7),
                                               modern computer technology in relation to       enforcement of judgments and orders (Part
The introduction to the explanatory note
                                               the creation, filing and service of court       8) and transfers of proceedings between
relating to the Bill, as introduced into
                                               process, and make it difficult for courts to    courts (Part 9). It also contains provisions
parliament, is summarised below.
                                               take advantage of such technology in            relating to administrative matters (Part 2
Overview of the Bill                           relation to case management.                    and Schedules 1, 2 and 3), repeals,
                                               The object of this Bill is to consolidate as    amendments and savings and transitional
Civil procedure is currently governed by a                                                     provisions (Schedules 4, 5 and 6). Finally, it
number of Acts and instruments, including      much as possible of the law relating to civil
                                               procedure, particularly insofar as it affects   sets out uniform civil procedure rules to
not only the Acts by which various courts
are established (and the rules of practice     proceedings in the Supreme Court, the
and procedure made under them) but also        District Court and the Local Court (the                               Continued on page 2


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Make                                                                  1                                        Bar Brief – Edition No. 122
                                                                                                                                       105
A message from the President
In a speech delivered recently by Chief                                                              trial. The rule further limits the role in
Justice Gleeson at a conference on the Gold                                                          which a barrister may comment to the
Coast he drew attention to the problems                                                              provision of information which is anodyne
associated with advocates speaking directly                                                          and uncoloured. However, a realistic
to the media about cases in which they are                                                           examination of the rule demonstrates that
retained to appear for a party. The chief                                                            compliance with it appears simple in theory
justice was critical of a shift from the                                                             but will prove difficult in practice.
approach taken in the past where interviews                                                          Moreover, the material which the rule
or comments were never given or made by                                                              permits a barrister to divulge can easily be
barristers about current or threatened                                                               supplied in compliance with the regime for
proceedings to the position today where                                                              which rule 59(a) provides. The temptation
both of these things occur from time to                                                              for an advocate to provide coloured or
time. In my opinion, this change should                                                              subjective comments, or to infuse the
never have occurred and the former                                                                   information provided with his or her own
approach should be resurrected.                                                                      opinions, is often great and circumstances
The task of an advocate is difficult and                                                             which give rise to it should be avoided.
complex. Fearless and independent                                                                    Barristers’ Rule 59 does not prevent a
representation of a particular party is the                                                          barrister answering unsolicited questions
hallmark of the job. The interests brought                                                           from journalists in proceedings which could
forward for adjudication in civil proceedings                    Ian Harrison SC                     never possibly be heard by a jury. However,
and criminal trials are definitively the                                                             journalists will comment upon cases with
                                                 President of the New South Wales Bar Association.
province of the trial judge or jury. There is                                                        the benefit of information provided to them
no permissible room in this process for a                                                            under rule 59(a), if that occurs, and with
third line of influence which incorporates       New South Wales Barristers’ Rule 59(b) is           the benefit of their own observation of
the public dissemination of the views of         very clear. That rule permits a barrister,          proceedings in court. Barristers are not the
participating advocates. The principle is        with the consent of the instructing solicitor       item of news and should take all steps to
most obvious in its application to cases tried   or the client, to answer unsolicited                avoid becoming it. Just as barristers must
before juries but is not limited to such         questions from journalists concerning               never subject themselves to the possibility
cases.                                           proceedings in which there is no possibility        that they may become a witness in a case in
                                                 of a jury ever hearing the case or any re-          which they are retained, so also should they
                                                                                                     avoid any involvement in the
                                        ❖ ❖ ❖ ❖                                                      encouragement of a collateral agenda
                                                                                                     beyond the courtroom.

CPD videos                                                                                           I remain convinced that barristers should
                                                                                                     not speak to the media in two situations.
                                                                                                     First, in circumstances where it involves a
The following are the latest CPD seminars to be added to the Bar Library’s video
collection. Members may borrow videos by contacting the library on ph: (02) 9233 4025                case in which they appear. Secondly, in any
or e-mail: library@nswbar.asn.au                                                                     other circumstances one can think of.

Overview of the new Uniform Civil Procedure Bill and Rules, Attorney General’s                                     ❖ ❖ ❖ ❖
Department of NSW, 8 March 2005, VID/230
The Civil Liability Act and recognised psychiatric illness, Dr Kipling Walker, 16 March
2005, VID/231
Parentage testing in the District Court of New South Wales, Margaret Bateman, 15 March
2005, VID/232                                                                                                       ❖ ❖ ❖ ❖
The role of counsel assisting in commissions of inquiry, the Hon Justice Peter Hall, 23
March 2005, VID/233
The earthly rewards of philanthropy (why establishing your own foundation is such a
positively good idea!), Dr John Keogh, 22 March 2005, VID/234

                                        ❖ ❖ ❖ ❖                                                        divine secretarial solutions

Streamlining civil procedures across                                                                       Digital Transcription
                                                                                                              Typing Service
jurisdictions
Continued from page 1                                                                                  SPECIFICALLY FOR BARRISTERS
replace the core provisions of the               include the provisions with respect to                         Competitive Rates
Supreme Court Rules 1970, the District           neutral evaluation that accompany the                        Martin Place Chambers
Court Rules 1973 and the Local Courts            mediation provisions of the latter two
(Civil Claims) Rules 1988 (Schedule 7).          Acts. Part 5 replicates the provisions of                 Be surprised & delighted!
Part 4 replicates the provisions with            the Arbitration (Civil Actions) Act
                                                 1983, together with the provisions of the            Please call - Andy Hampson (Ms)
respect to mediation that currently exist in
                                                 Supreme Court Act 1970, the District                 T (02) 8227 9606 M 0407 648 500
the Supreme Court Act 1970, the District
Court Act 1973 and the Local Courts              Court Act 1973 and the Local Courts                     E andy@overflowangel.com.au
(Civil Claims) Act 1970, but does not            (Civil Claims) Act 1970 that invoke                     W www.overflowangel.com.au
                                                 that Act.


Make www.nswbar.asn.au your home page                                    2                                          Bar Brief – Edition No. 122
Bar Council business for February –
March 2005
Statutory definition of ‘act of                  Office on Tuesday 15 February to discuss       director was asked to pass on the Bar
                                                 the Bar Association’s submission to the New    Council’s feedback to the director,
bankruptcy’                                      South Wales Government’s review of legal       Reporting Services Branch, Attorney
The Bar Council noted that the statutory         and administrative costs in dust diseases      General’s Department.
definition of ‘act of bankruptcy’ in s3 of the   compensation claims.
Legal Profession Act 1987 focuses upon                                                          Draft submission on the Legislative
                                                 The president advised that consideration
presentation of a creditor’s petition, not                                                      Council Standing Committee Inquiry
                                                 was being given to the introduction of an
service of it. It is only service which brings                                                  into Personal Injuries Compensation
                                                 expert adjudication system. This system
the existence of a petition to the notice of a   would involve barristers acting as             Legislation
respondent.                                      adjudicators.                                  The Bar Council discussed at length the
Clause 134 of the Legal Profession                                                              proposed submission to the inquiry into
Regulation 2002 requires a barrister to          Institute of Arbitrators and                   personal injuries compensation
                                                                                                legislation. A number of minor
give notice within seven days of the             Mediators conference
commission of an act of bankruptcy. Clause                                                      amendments were proposed.
137(1) deems failure to give notice, without     The president advised that he attended a
                                                                                                The council noted that the focus of the
reasonable cause, to be professional             conference of the Institute of Arbitrators
                                                                                                submission was on the interests of
misconduct.                                      and Mediators on 23 February 2005. The
                                                                                                persons who are injured and access to
                                                 members of the Institute had expressed
Unless notification is given to the Bar                                                         justice.
                                                 their appreciation to the president for him
Council within seven days of presentation of     having personally attended the conference.     Bar Council resolved to forward a revised
a petition, a barrister will inevitably be in                                                   version of the submission to the
breach of the barrister’s reporting              Counsel’s fees in workers                      Legislative Council Standing Committee.
requirements, even though the barrister
                                                 compensation matters                           The council expressed its appreciation to
does not know of the existence of the
                                                                                                the Personal Injuries Litigation
notifiable event.                                The council noted that the scale of fees for
                                                                                                Committee and Slattery QC for their
                                                 workers compensation matters had not been
The council asked to have the definition of                                                     working in drafting this submission. The
                                                 increased for more than a decade. The
‘act of bankruptcy’ in the Act amended to                                                       council also expressed its appreciation to
                                                 scale still applies to compensation matters
focus upon service of a creditor’s petition,                                                    the Bar Association’s projects officer, Ms
                                                 relating to coal miners. The president
rather than presentation. This would bring                                                      Kim Kemp, for her work in assisting with
                                                 undertook to again write to the special
it into line with the Bankruptcy Act 1966                                                       the preparation of this submission.
                                                 minister of state asking that the scale be
(Cth) – an act of bankruptcy is committed
                                                 revised, at least to take account of CPI
when a party fails to comply with the
                                                 increases since it was last revised. The
requirements of a bankruptcy notice which
has been served on that party.
                                                 executive director advised that numerous
                                                 written representations had been made in
                                                                                                     BarCare
New South Wales Government’s                     recent years to ministers and agencies on       BarCare is designed to guide barristers
                                                 this issue, and meetings held.                  through emotional and stress related
review of legal and                              Unfortunately, these representations had        problems including family or marital
administrative costs in dust                     been unsuccessful.                              problems, drug or alcohol dependency and
                                                                                                 practice pressures.
diseases compensation claims
                                                 Provision of court transcripts by               The Bar Association will cover costs
The president advised that he and the
                                                 e-mail                                          associated with the initial consultation with
senior vice president had met with the                                                           the BarCare counsellor.
director general of the New South Wales          Th Bar Council noted that the new system        For further information contact the BarCare
Attorney General’s Department, and the           of providing transcripts by e-mail was          information line (02) 9230 0433 or visit the
deputy director general of the Cabinet           proving very successful. The executive          Association’s website www.nswbar.asn.au

                                                                ❖ ❖ ❖ ❖




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Make                                                                  3                                         Bar Brief – Edition No. 122
                                                                                                                                        105
Law Week 15-21 May
2005
                                       Book launch
                                       Dowling’s select cases 1828 to 1844:
                                       Decisions of the Supreme Court of
                                       New South Wales
                                       Australia embodies one of the great
                                       modern historical contradictions. How did
                                       a society which began as a jail and
                                       dumping ground for British criminals,
                                       transform itself into a modern,
                                       sophisticated, free-society fundamentally
                                       based upon the rule of law? And exactly
                                       what role did lawyers and the courts play
                                       in assisting this transformation? The
                                       answers to some of these questions may
                                       be found in this book.
                                        Members of the public and the legal
                                        profession who have an interest in the
                                        early legal history of the colony of New
                                        South Wales are invited to attend the
official launch of this book the Hon J J Spigelman AC, Chief Justice of New South
Wales. Abbey’s bookshop will have a mobile sales unit on hand to sell copies.
Date:     Thursday, 19 May 2005 at 6.00pm (speeches begin at 6.30)
Venue: New South Wales Bar Association Common Room, Lower Ground Floor, Selborne Chambers,
       174 Phillip Street, Sydney.
       Contact: Chris Winslow, ph: (02) 9229 1732
       e-mail:    cwinslow@nswbar.asn.au
Bookings are not required, but non-members must sign in upon entering the Bar Association Common Room.




  The Bar Association
   Speakers Program
                              presents

         EZY trials for ‘guilty people’:
          But not when I’m accused
   A Law Week lecture by Chester Porter QC
Chester Porter QC will dispel some common misconceptions about
the role of barristers and solicitors in our criminal justice system. He
will outline their responsibilities to the court as well as their client.
He will remind the public that ‘technicalities’ in trials, so often
criticised by the media, are vital for the protection of our liberty, and
that every person accused of a serious crime has the right to the best
possible legal representation. He will urge everyone to think: ‘What if I was the accused?’.
Date:     Wednesday, 18 May 2005 at 6.00pm
Venue:    Dixson Room, Mitchell Library, State Library, Macquarie Street Sydney.
Contact: Chris Winslow (02) 9229 1732
E-mail:     cwinslow@nswbar.asn.au




Make www.nswbar.asn.au your home page                                 4                        Bar Brief – Edition No. 122
2005 Justice Awards
Now in their seventh year, the Justice Awards recognise the
contributions individuals have made to improving access to justice
in New South Wales, particularly for socially and economically
                                                                            NO WIN / NO FEE
disadvantaged people.


                                                                             ECONOMIC
The 2005 Justice Awards will be held on the evening of Thursday 6
October in the Strangers Dining Room at Parliament House. The
Hon Sir Anthony Mason AC KBE will deliver the 2005 Law and
Justice Address.


                                                                                LOSS
Nominations are now open for the following awards:
• Justice Medal
• Aboriginal Justice Award
• Combined Community Legal Centres Group Award
• Law and Justice Volunteer Award
  (sponsored by the Bar Association)
• Pro Bono Partnership Award
                                                                              REPORTS
The closing date for nominations is Friday 5 August 2005.
For further information about the nomination process or to book            We are a specialised company with highly
tickets for the 2005 Justice Awards, visit the Law and Justice             qualified accounting and other professional
Foundation web site at www.lawfoundation.net.au/justice_awards
                                                                           consultants with significant litigation experience
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Life membership for                                                        x Consultants with over 30 years experience
                                                                           x Rapid reporting service
the Hon Mary Gaudron                                                       x No Win / No Fee – subject to our
At its meeting on 24 February 2005 the Bar Council resolved that             acceptance of your instructions
the Hon Mary Gaudron, formerly a justice of the High Court of
Australia, be appointed a life member of the Bar Association for her
exceptional service to the profession of the law. A life membership        Let us assist you today
certificate will be presented to the Hon Mary Gaudron at a function
to be arranged.                                                            Economic Loss Reports & Forensic
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  Antique Partners Desk                                                    x Insurance Claim reports
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   clerk at Maurice Byers Chambers on 8233 0350                                  Family / Commercial

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Make                                                                   5                                Bar Brief – Edition No. 122
                                                                                                                                105
Speeches to note                                                                                                     your course even faster
‘The state of the judicature’, by the Hon Murray Gleeson
                                                                                                                     through intensive mode or
AM, Chief Justice of Australia, 19th Biennial Conference of                                                          undertaking units over
LawAsia, Gold Coast Convention & Exhibition Centre, 24                                                               Summer. You may be able to
March 2005. A copy of the speech may be obtained from the
High Court web site at www.hcourt.gov.au or from the Bar                           advance                           use previous study as credit
                                                                                                                     towards your Masters.
Library.
                                                                                   your law                          Real-world learning
‘Independence of the legal profession: global and regional
challenges’, by the Hon Justice Michael Kirby AC CMG,                                career                          Gain the most up-to-date
                                                                                                                     knowledge from our lecturers
Presidents of Law Associations in Asia Conference (POLA),                                                            and benefit from the broad
Gold Coast Convention & Exhibition Centre, 20 March 2005.                        If you want to enhance your         practical experience of
A copy of the speech may be obtained from the High Court                         job opportunities or change         visiting practitioners.
web site at www.hcourt.gov.au or from the Bar Library.                           career direction, a QUT
                                                                                                                     Financial assistance is
                                                                                 postgraduate law course can
‘The state of the profession’, by John North, President of                                                           available through the FEE-
                                                                                 help you achieve your goal.
the Law Council of Australia, 19th Biennial Conference of                                                            HELP scheme - visit
LawAsia, Gold Coast Convention & Exhibition Centre, 24                           Real flexibility                    www.studentservices.qut.com
                                                                                 Select from a wide range of         for details.
March 2005. A copy of the speech may be obtained from the
Law Council’s web site at www.lawcouncil.asn.au or from                          relevant, real-world courses        More information
the Bar Library.                                                                 from Graduate Certificate to        Applications for mid-year
                                                                                 Masters. You can choose to          entry close 3 June. Phone
‘National security: Proportionality, restraint &                                 study on-campus or                  (07) 3864 2305, email
commonsense’, by the Hon Justice Michael Kirby AC CMG,                           externally on a full-time or        lawpg_enquiries@qut.edu.au
Australian Law Reform Commission, National Security Law                          part-time basis, and finish         or visit www.law.qut.edu.au
Conference, Federal Court of Australia Conference Room,
Sydney, 12 March 2005. A copy of the speech may be
obtained from the High Court web site at www.hcourt.gov.au
or from the Bar Library.
‘The principle of legality and the clear statement of
principle’, Opening address by the Hon JJ Spigelman AC,
                                                                                                                 Queensland University of Technology
Chief Justice of New South Wales, New South Wales Bar
Association’s ‘Working with statutes’ conference, Sydney, 18
                                                                              LAW-05-291
                                                                                              ment
                                                                              CRICOS no. 00213J
                                                                                                           GPO Box 2434 Brisbane QLD 4001 qut.com

March 2005. A copy of the speech may be obtained from the
Supreme Court’s web site at www.lawlink.nsw.gov.au/sc or
from the Bar Library.                                                                                      ❖ ❖ ❖ ❖
Speech notes of the Hon Bob Debus MP, Attorney General,
Conference Dinner, New South Wales Bar Association’s
‘Working with statutes’ conference. Speech delivered at Fort
                                                                           Media briefing
Denison, Sydney Harbour, Saturday 19 March 2005. A copy                    ‘Suing your legal representatives’, The Law Report, Radio
of the speech notes is held in the Bar Library.                            National, 22 March 2005, Ian Harrison SC, interview regarding
                                                                           advocates immunity.
‘Sorting the wheat from the chaff: Indictable criminal case
                                                                           ‘Radio National Weekend Breakfast’, Radio National, 26 March
processing reforms – an overview of upcoming changes to
                                                                           2005, Ian Harrison SC, interview regarding comments by the Hon
practice and procedure for indictable matters’, by John
                                                                           Murray Gleeson AC, Chief Justice of Australia, about the difficulty
Feneley, Assistant Director General, Policy & Crime
                                                                           of attracting members of the profession to a career on the Bench.
Prevention, 5 April 2005. A copy of the speech may be
obtained from the Bar Library.                                             ‘Statewide mornings’, ABC 702 Sydney, 6 April 2005, Ian Harrison
                                                                           SC, interview regarding reduced sentences for guilty pleas.

                              ❖ ❖ ❖ ❖                                      ‘No trickery’, letter to the editor, Sydney Morning Herald, by Ian
                                                                           Harrison SC, Thursday, 7 April 2005.


                                            The New South Wales Bar Association announces:
                                            The 2005 Bar Association Media Awards for excellence in journalism related to law and justice.
                                            There are two categories: Print Media and Electronic Media. Each award is worth $2,500.
                                            The awards will be given to media professionals who are judged to have given readers /
                                            viewers / listeners the best understanding of important legal principles, the legal profession
                                            or the operation of a particular facet of the justice system in New South Wales.
   For further information, contact:
                                            The awards apply to work published, broadcast or televised between 1 May 2004 to 30 April 2005.
   The Public Affairs Officer,
   New South Wales Bar Association,         Journalists may enter themselves or be nominated by a member of the judging panel or by a
   174 Phillip Street, Sydney, NSW 2000,    third party.
   Australia
                                            An entry / nomination form is available from the Bar Association web site at www.nswbar.asn.au
   Ph: +61 2 9229 1732
                                            under 'Media resources'.
   Fax: +61 2 9221 1149 or
   email: mediaenquiries@nswbar.asn.au      The closing date for entries is 5.00pm on Tuesday, 3 May 2005.



Make www.nswbar.asn.au your home page                                  6                                                  Bar Brief – Edition No. 122
Crown prosecutors allocated for
pre-trial pleas
By N R Cowdery AM QC, Director of Public Prosecutions
Recently there has been some debate within the profession as to           Wagga Wagga      Level 3, 43-45 Johnston Street
the reasons underlying the trend for late pleas of guilty in both                          Wagga Wagga 2650
the District and Supreme courts. One reason which has been                                 (PO Box 124 Wagga Wagga 2650)
advanced in some quarters is that trials are not allocated to a                            Phone: 6925 8400
crown prosecutor in sufficient time for there to be any                                    Fax: 6921 1086
meaningful negotiations before the trial.
                                                                          Bathurst         Level 2, State Government Office Block
Without wishing to debate the merits of this proposition, I should                         140 William Street
like to bring to the attention of your members the fact that in the                        Bathurst 2795
Sydney head office and in each of the ten regional offices there is                        PO Box 701 Bathurst 2795)
at least one dedicated crown prosecutor whose role is to:                                  Phone: 6332 2555
• settle bills of indictment following committal proceedings;                              Fax: 6332 6800
• negotiate pleas of guilty; and                                          Dubbo            130 Brisbane Street
                                                                                           Dubbo 2830
• consider applications for ‘no further proceedings.’
                                                                                           (PO Box 811 Dubbo 2830)
These experienced crown prosecutors are available to deal with                             DX 4019 Dubbo
such issues immediately after committal and in the period                                  Phone: 6881 3300
between arraignment and trial.                                                             Fax: 6882 9401
Representations in relation to regionally-based matters should be         Lismore          Level 3 Credit Union Centre
referred in the first instance to the Managing Lawyer, Office of                           101 Molesworth Street
the Director of Public Prosecutions, at the following addresses:                           Lismore 2480
Parramatta       Level 3, 146 Marsden Street                                               (PO Box 558 Lismore 2480)
                 Parramatta 2150                                                            DX 7707 Lismore
                 (PO Box 3696, Parramatta 2124)                                             Phone: 6627 2222
                 DX 8210 Parramatta                                                         Fax: 6627 2233
                 Phone: 9891 9800                                         Newcastle         Level 1, 51-55 Bolton Street
                 Fax: 9891 9866                                                             Newcastle 2300
Penrith          Level 3 ‘Danallam House’                                                   (PO Box 779 Newcastle 2300)
                 311 High Street                                                            DX 7867 Newcastle
                 Penrith 2750                                                               Phone: 4929 4399
                 (PO Box 781 Penrith Post Business Centre 2750)                             Fax: 4926 2119
                 DX 8022 Penrith                                          Gosford           Level 2, 107-109 Mann Street
                 Phone: 4721 6100                                                           Gosford 2250
                 Fax: 4721 4149                                                             (PO Box 1987 Gosford 2250)
Campbelltown     Level 3 ‘Centrecourt Building’                                             DX 7221 Gosford
                 101 Queen Street                                                           Phone: 4328 7150
                 Campbelltown 2560                                                          Fax: 4323 1471
                 (PO Box 1095 Campbelltown 2560)                          Representations in relation to Sydney-based matters should be
                 DX 5125 Campbelltown                                     referred to the Trial Preparation Unit Lawyer, Office of the
                 Phone: 4629 2811                                         Director of Public Prosecutions, Level 8, 265 Castlereagh Street,
                 Fax: 4629 2800                                           Sydney (Phone: 9285 2537, Fax: 9261 1485).

                                                                ❖ ❖ ❖ ❖




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Make                                                                  7                                          Bar Brief – Edition No. 122
                                                                                                                                         105
                                                                         Appointments
                                                                         Federal Court of Australia
         ‘Can judges make                                                Richard Francis Edmonds SC has been appointed as a judge of
                                                                         the Federal Court of Australia, effective 5 May 2005.

            mistakes?’                                                   Peter Ross Graham QC has been appointed as a judge of the
                                                                         Federal Court of Australia, effective 24 May 2005.

             A FREE PUBLIC LECTURE                                       Family Court of Australia
       By Professor Sir Neil MacCormick                                  Garry Watts has been appointed as a judge of the Family Court
                                                                         of Australia, effective 14 April 2005
 The Faculty of Law at the University of New South Wales and
 Freehills are pleased to invite you to a free public lecture by         Supreme Court of New South Wales
 Professor Sir Neil MacCormick QC FRSE FBA LLD DLitt. Sir
 Neil will be introduced by the Hon. Justice James Spigelman             Peter Hall QC has been appointed as a judge of the Supreme
 AC, Chief Justice of the Supreme Court of New South Wales.              Court of New South Wales, effective 8 March 2005.
 Date: Tuesday 26 April 2005                                             Her Honour Judge Megan Latham has been appointed as a
 Time: 6.30pm (guests are requested to be seated by 6.20pm)              judge of the Supreme Court of New South Wales, effective 12
 Venue: Banco Court, Supreme Court, Queen’s Square, Sydney               April 2005.
 Registration: The public lecture is free, however participants          John Basten QC has been appointed as a judge of the Supreme
 must register to attend.                                                Court of New South Wales and as a judge of appeal, effective 2
 Register online at www.law.unsw.edu.au or telephone Kathleen            May 2005.
 Mastrogiacomo on 02 9385 2227. Please register by Friday 22
 April.                                                                  Stephen Rothman SC has been appointed as a judge of the
                                                                         Supreme Court of New South Wales, effective 3 May 2005.
 Sir Neil is Regius Professor of Public Law and the Law of
 Nature and of Nations at Edinburgh University. He served a              The following persons have been reappointed to act as judges
 term as a Scottish member of the European Parliament from               and judges of appeal of the Supreme Court of New South Wales
 1999 until 2004, in which capacity he took part in the                  for the periods shown:
 Convention on the Future of Europe that drafted the ‘Treaty
 Establishing a Constitution for Europe’, whose ratification is          The Honourable Acting Justice Brownie - 3 May 2005 to 2 May
 presently being debated. Currently he holds a Leverhume                 2006.
 Personal Research Chair for a project on ‘Law, state and                The Honourable Acting Justice Mathews - 16 April 2005 to 15
 practical reason’.
                                                                         April 2006.
 He is one of the world’s leading legal theorists, a distinguished
 academic lawyer and a prominent political actor and public              The Honourable Acting Justice Miles AO - 28 April 2005 to 27
 intellectual. Central among his interests, and the subject of           April 2006.
 several of his works, is legal reasoning. Author of many books
 and articles on legal and political theory, he has a new book,          District Court of New South Wales
 Rhetoric and the rule of law: A theory of legal reasoning, to be
                                                                         Angela Karpin has been appointed as an acting judge of the
 published by OUP in August 2005. His most recent published
 work is Questioning sovereignty: Law, state and nation in the           District Court of New South Wales effective 3 March 2005 - 30
 European Commonwealth. In 2001 he was knighted for                      June 2005.
 ‘services to scholarship in law’.                                       Brian Donovan QC has been appointed as a judge of the
 Sir Neil MacCormick is in Australia as the Freehills visiting           District Court of New South Wales, effective 11 April 2005.
 professor in the Faculty of Law at the University of New South
 Wales.                                                                  New South Wales Local Court
                                                                         Graham Blewett AM was appointed as a magistrate, effective 4
                                                                         April
                           ❖ ❖ ❖ ❖                                       Cecil Brahe has been reappointed as an acting magistrate,
                                                                         mining warden and part-time member and chairperson of the
                                                                         Victims Compensation Tribunal effective 23 March 2005 - 22

Bar Association                                                          March 2006.

                                                                         Crown prosecutors
photo ID                                                                 Kara Shead has been appointed as a crown prosecutor,
                                                                         effective 21 April 2005.
The Bar Association has an updated photo ID card available to
members which may be used for
   • library lending and photocopying; and
   • access to prisons.
The photograph can also be posted on the Bar Association’s web
site as part of ‘Find a barrister’ (optional).
The validity of this card will be for one year at a cost of $15.00
(which covers administrative costs only).
Please contact the Bar Association’s reception on (02) 9232 4055
to arrange for a photo ID card.




Make www.nswbar.asn.au your home page                                8                                          Bar Brief – Edition No. 122
                                        -2,17 &21)(5(1&(
                                          2) 7+(
                               $8675$/,$1 $1' ,5,6+ %$56
                               '8%/,1  -81( ²  -8/< 



                                                  


 È     ˜—Ž›Ž—ŒŽ ™Ž—’— È

 ‘Ž       ’œ ™•ŽŠœŽ ˜ ŠŸ’œŽ ‘Š ‘Ž ˜—Ž›Ž—ŒŽ  ’•• ‹Ž ˜’Œ’Š••¢ ˜™Ž—Ž ‹¢ 
Ž› ¡ŒŽ••Ž—Œ¢
 ‘Ž ›Žœ’Ž— ˜ ›Ž•Š— Š›¢ Œ •ŽŽœŽ ˜— ‘Ž ŽŸŽ—’— ˜ Ž—ŽœŠ¢ ž—Ž ’—  Š›’Œ” œ
 
Š•• ž‹•’— Šœ•Ž

 Š›¢ Œ •ŽŽœŽ  Šœ ’—Šžž›ŠŽ Šœ ‘Ž Ž’‘‘ ›Žœ’Ž— ˜ ›Ž•Š— ˜—
    ‘ ˜ŸŽ–‹Ž›        ‘Ž ’œ Š ‹Š››’œŽ› Š— ˜›–Ž› ›˜Žœœ˜› ˜ Š 
 ‘Ž ›ŠžŠŽ ’— Š  ›˜– ‘Ž žŽŽ— œ —’ŸŽ›œ’¢ ˜ Ž•Šœ ’—
 Š—  Šœ ŒŠ••Ž ˜ ‘Ž ˜›‘Ž›— ›Ž•Š— Š› ’—          —     œ‘Ž  Šœ
 Š™™˜’—Ž Ž’ ›˜Žœœ˜› ˜ ›’–’—Š• Š  ›’–’—˜•˜¢ Š— Ž—˜•˜¢
 Š ›’—’¢ ˜••ŽŽ ž‹•’— Š— ’—         œ‘Ž ›Žž›—Ž ˜ ‘Ž› •–Š ŠŽ›
 žŽŽ— œ ˜ ‹ŽŒ˜–Ž ’›ŽŒ˜› ˜ ‘Ž —œ’žŽ ˜ ›˜Žœœ’˜—Š• ŽŠ•
 ž’Žœ —      œ‘Ž ‹ŽŒŠ–Ž ‘Ž ’›œ Ž–Š•Ž ›˜ ’ŒŽ ‘Š—ŒŽ••˜› ˜ ‘Ž
 žŽŽ— œ —’ŸŽ›œ’¢ ˜ Ž•Šœ



 È     ˜—Ž›Ž—ŒŽ ›˜›Š––Ž È

 ‘Ž ˜••˜ ’— Š›ŽŠœ  ’•• ‹Ž Œ˜ŸŽ›Ž

 i         ŽŠ–Š’˜— Š— ›ŽŽ ™ŽŽŒ‘

                 ‘Ž 
˜— žœ’ŒŽ Œ
ž‘       
’‘ ˜ž› ˜ žœ›Š•’Š
                 ‘Ž 
˜— ˜›¢ ›Š¢       ˜›—Ž¢ Ž—Ž›Š• ˜ ›Ž•Š—
                 ›˜Žœœ˜› ’••’Š– ’—Œ‘¢ Ž’žœ ›˜Žœœ˜› ˜ Š  ›’—’¢ ˜••ŽŽ

 i       ‘Ž ‘’Œœ ˜ Ž’Š’˜—

                 Š— 
Š—Ž›  •
                 Š–Žœ ˜——˜••¢  ›Ž•Š—

Make www.nswbar.asn.au your home page
Make                                            9                         Bar Brief – Edition No. 122
                                                                                                  105
      i         ŽŽ—Š—œ      ˜Œž–Ž—œ       Žœ›žŒ’˜—

                      ŠŒ” žœ‘        ’Œ


      i         Ÿ˜ŒŠŒ¢     ‘Ž ’Ž  ›˜– ‘Ž Ž—Œ‘

                      ‘Ž 
˜— Š–Ž 
ŽŠ‘Ž› 
Š••Ž 
’‘ ˜ž› ˜ žœ’ŒŽ —•Š—             Š•Žœ
                      ‘Ž 
˜— Š¢ ——Ž –’‘ ˜ž› ˜ Žœœ’˜— Œ˜•Š—
                      ‘Ž 
˜— › žœ’ŒŽ ŠŒŽ—’–Š— 
’‘ ˜ž› ˜ ›Ž•Š—

      i       Žœ›’Œ’˜—œ ˜— ŽŒ˜ŸŽ›¢ ‹¢ •Š’—’œ

                        ——Š 
Š£–Š—  —›   
                        ŠŸ’ ˜•Š—  ›Ž•Š—
                        ž¢ Š—œ’Ž•     ‘Š’›–Š— Š› ˜ —•Š—            Š•Žœ

      i       –™•’ŒŠ’˜—œ ˜ ‘Ž •Ž–Ž—’ Ž™˜›

                      žŽ ˜‘— ˜˜”Ž ˜ž› Ž žœ’ŒŽ Žœ ˜––ž—Šž·œ ž›˜™·Ž—Žœ
                      
ž‘ ˜‘Š—     ‘Š’›–Š— Š› ˜ ›Ž•Š—
                      ˜¢ Š›’—    ŽŠ— ŠŒž•¢ ˜ Ÿ˜ŒŠŽœ
                      Ž™‘Ž— 
˜Œ”–Š— ’ŒŽ ‘Š’›–Š— Š› ˜ —•Š— Š•Žœ

      i         Š— ‘’Œœ ‹Ž ˜–™Ž’’ŸŽ

                      Šž• Š••Š‘Ž›  ›Ž•Š—
                      Ž’• ˜ž—  ’Œ

      i       Ž’ŒŠ• ’’Š’˜—

                      ˜—Š‘ Œ ›Š——  ›Ž•Š—
                      ˜‹Ž› ’••’Š— Œ˜•Š—

      i         ’›ŽŒ˜›œ Š— ’žŒ’Š›¢     ž’Žœ

                      ‘Ž 
˜— žœ’ŒŽ 
Ž¢˜— 
’‘ ˜ž› ˜           žœ›Š•’Š

      i       
ž–Š— ’‘œ ’— Š— Ž ˜ ˜ž—Ž› Ž››˜›’œ–

                      Ž¡ Šœ›¢  ’Œ
                       ’•• ‘’™œŽ¢  ›Ž•Š—
                      ‘Ž 
˜— ’Œ‘ŠŽ• Œ ˜ Ž••            ’—’œŽ› ˜› žœ’ŒŽ ›Ž•Š—



Make www.nswbar.asn.au your home page               10                          Bar Brief – Edition No. 122
 È 
˜Ž•      ŒŒ˜––˜Š’˜—              ‘Š—Žœ È

 ‘Ž ‘Ž•‹˜ž›—Ž 
˜Ž• ‘Šœ ŽŒ’Ž ˜ Œ•˜œŽ Š •Š›Ž —ž–‹Ž› ˜ ’œ ›˜˜–œ Šœ ™Š› ˜ ‘Ž
 ›Ž—˜ŸŠ’˜—œ ’ ’œ Œž››Ž—•¢ ž—Ž›˜’— ‘’œ ŽŒ’œ’˜—  Šœ —˜ –ŠŽ ”—˜ — ˜ ‘Ž         ž—’•
                                                     ŠŽ› ™ž‹•’ŒŠ’˜— ˜ ‘Ž ›Ž’œ›Š’˜—
                                                     ‹›˜Œ‘ž›Ž       Ž ‘ŠŸŽ ˜‹Š’—Ž Š
                                                     ›Ž™•ŠŒŽ–Ž— ‘˜Ž• ˜ ‘’‘ œŠ—Š› ‘Ž
                                                     ˜ž› œŠ›     ŠŸŽ—™˜› 
˜Ž•        ‘’œ
                                                     Ž•ŽŠ— ›Š’’˜—Š• Ž•ž¡Ž ‘˜Ž• ’œ
                                                     •˜ŒŠŽ Š Ž››’˜— šžŠ›Ž ’— ‘Ž ‘ŽŠ› ˜
                                                       Ž˜›’Š—     ž‹•’— ‘Ž œ™ŽŒŠŒž•Š›
                                                     ŠŒŠŽ ˜ ‘Ž ‘˜Ž• ˜›’’—Š••¢ ‘Š ˜ Š
                                                     Œ‘ž›Œ‘ ŠŽœ ›˜–
                                                       •• ‹Ž›˜˜–œ Š›Ž Žšž’™™Ž  ’‘ ŒŠ‹•Ž
                                                     Ž•ŽŸ’œ’˜— ’›ŽŒ ’Š• Ž•Ž™‘˜—Ž ›Š’˜
 ›˜žœŽ› ™›Žœœ ‘Š’› ›¢Ž›     ‘› ›˜˜– œŽ›Ÿ’ŒŽ  ’›Ž  ’›Ž•Žœœ ‹›˜Š‹Š— ’—Ž›—Ž ŒŒŽœœ
 Œ˜–™žŽ› ŠŠ •’—Ž Š— ŽŠ Œ˜ŽŽ –Š”’— ŠŒ’•’’Žœ


 ˜˜– ›ŠŽ ™Ž› ›˜˜– ™Ž› —’‘ ’—Œ•ž’— ž•• ›’œ‘ ‹›ŽŠ”Šœ
   ˜ž‹•Ž  ’—        
 ’—•Ž              
 ›’™•Ž            ˜— ›ŽšžŽœ ˜—•¢

   ‘ŽŒ”’—                     ‘›œ
   ‘ŽŒ”˜ž                    ‘›œ




 È    — ›’œ‘ ’‘ Š”Š Š 
˜˜•Ž¢ È

   —˜‘Ž› œ˜Œ’Š• ŽŸŽ— ‘Šœ ‹ŽŽ— Š››Š—Ž       ˜ ‹Ž ‘Ž• Š ˜——’Ž ˜¡ œ ž‹     ‘Ž ŽŠ’•œ Š›Ž

 ‘ž›œŠ¢       ž—Ž

   ž‹•’— œ ‘’‘Žœ ™ž‹ œŽ ’— ‘Ž ž‹•’— ˜ž—Š’—œ Š™™›˜¡’–ŠŽ•¢       –’—žŽœ ›’ŸŽ œ˜ž‘ ˜
 ‘Ž Œ’¢  ˜—Ž›ž• Šž‘Ž—’Œ ŸŽ—žŽ ’••Ž  ’‘ Œž›’˜œ Š— Š—’šžŽœ  ’‘ Š Ž—ž’—Ž ›’œ‘ ŽŽ•
 ˜ ’ ¡ŒŽ••Ž— •˜ŒŠ• ˜˜ ‘Ž œ™ŽŒ’Š•¢ ’œ ›Žœ‘ œŽŠ˜˜ ‘Ž ŽŸŽ—’— ’—Œ•žŽœ ›’œ‘ Š—Œ’—
 Š ’ŸŽ›Š—ŒŽ ¢™Ž ’œ™•Š¢ Š— Š ‹Š••Š ›˜ž™ Š— ’—˜›–Š• ŽŸŽ—’—  ’‘ •’ŸŽ•¢ Ž—Ž›Š’—–Ž—
 ’— ž—žœžŠ• œž››˜ž—’—œ

 Š› Žœ‹ž›¢ 
˜Ž•
  ’—’œ‘ Žœ‹ž›¢ 
˜Ž•

   ˜œ ™Ž› ™Ž›œ˜—                         
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                                                                                                       105
   ŠœŽ ˜— Š –’—’–ž– ˜          ™ŠœœŽ—Ž›œ Š— ’—Œ•žœ’ŸŽ ˜

                    ŸŽ—’— ›Žž›— ›Š—œŽ› ‹¢ •ž¡ž›¢ Œ˜ŠŒ‘Žœ
                    ’——Ž›
                    —Ž›Š’—–Ž— Šœ ŽœŒ›’‹Ž Š‹˜ŸŽ




                                        Ž’œ›Š’˜— Š— —šž’›’Žœ

 Ž’œ›Š’˜— ˜›–œ ’—˜›–Š’˜— Š‹˜ž ˜ž›œ Š— ›ŽšžŽœœ ˜› ŠŒŒ˜––˜Š’˜— ŒŠ— ‹Ž ˜ —•˜ŠŽ
 Š     Šžœ‹Š› Šœ— Šž


   —šž’›’Žœ Š‹˜ž ›Ž’œ›Š’˜—                           —šž’›’Žœ Š‹˜ž ›ŠŸŽ• ŠŒŒ˜––˜Š’˜— ˜›
                                                        ˜ž›œ
   Š—  ˜——˜›                                           ž‘ Š›•˜—
         ˜—Ž›Ž—ŒŽ ŽŒ›ŽŠ›’Š                           ˜—ŸŽ—’˜— Ž›Ÿ’ŒŽœ Š—ŠŽ›
 ŽŸŽ•    ——œ ˜ ˜ž›                                           
       ˜›‘ žŠ¢                                       ŽŸŽ•      žŽŽ— ›ŽŽ
   ›’œ‹Š—Ž •                                           ›’œ‹Š—Ž žŽŽ—œ•Š—
 Ž•                                                    Ž•
  Š¡                                                     Š¡
 ‘˜—œŽŒ Šžœ‹Š› Šœ— Šž                                  ›ž‘ ŒŠ›•˜—  ŠŸ’Š— Œ˜– Šž




Make www.nswbar.asn.au your home page              12                             Bar Brief – Edition No. 122
                                                                                          Bar Brief is produced monthly for the
                                                                                          New South Wales Bar Association by:
                         LIQUOR BAR                                                       Weavers Design Group
                                                                                          Level 10, AWA Building
                                                                                          47 York Street, Sydney 2000
                                                                                          Tel: (02) 9299 4444
                                                                                          Fax: (02) 9299 7861


    Wine of                                                                               E-mail: design@weavers.com.au
                                                                                          Web: www.weavers.com.au
                                                                                          Advertising bookings and enquiries to
                                                                                          John Weaver.


   the Month                                                                              Editorial Contributions to:
                                                                                          Public Affairs Officer,
                                                                                          New South Wales Bar Association,
                                                                                          LG Floor, Selborne Chambers,
                                                                                          174 Phillip Street, Sydney 2000
                                                                                          DX 1204 Sydney


      Wignalls Albany                                                                     E-mail: mediainquiries@nswbar.asn.au
                                                                                          Fax: (02) 9221 1149
                                                                                          Contributions and advertising

   Sauvignon Blanc 2004                                                                   bookings and material for Bar Brief
                                                                                          must be received by the end of the
                                                                                          month prior to publication.
                                                                                                       ***********
   Wignalls is a small family-operated winery based in                                    Association e-mail Directory
   Albany on the south coast of Western Australia. They                                   Administration
                                                                                            administration@nswbar.asn.au
   specialise in low cropped, ultra premium straight varietal
                                                                                          Accounts Department
   wines.                                                                                   accounts@nswbar.asn.au
                                                                                          BarCare
   The nose is showing characters of gooseberries and                                       barcare@nswbar.asn.au
   tropical aromas with an underlying hint of herbacousness.                              Practising Certificates
                                                                                            certification@nswbar.asn.au
   The palate remains fresh, clean and ‘zingy’ to accompany                               Professional Development Department
   lighter dishes and seafood.                                                              professionaldevelopment@nswbar.asn.au
                                                                                          Executive Director

   Single bottle:     $16.50 per bottle                                                     executivedirector@nswbar.asn.au
                                                                                          Legal Assistance Scheme
                                                                                            legalassist@nswbar.asn.au

           Case price: $15 per bottle                                                     Library
                                                                                            library@nswbar.asn.au
                                                                                          Media Inquiries
           For any queries, or to place your order, contact                                 mediainquiries@nswbar.asn.au
                                                                                          Membership Inquiries
                   Tony Mitchell on ph: (02) 9229 1717.                                     certification@nswbar.asn.au
                                                                                          Professional Conduct Department
                                                                                            pcd@nswbar.asn.au
                                                                                          Sickness & Accidents Inquiries
                                  ❖ ❖ ❖ ❖                                                   sickacc@nswbar.asn.au


  Bar Council regional representatives
  Name                 Address                                      Phone/Fax                    E-mail
  Stuart Hill          Hargraves Chambers                           ph: (02) 4228 8977           harlaw@hotkey.net.au
                       Cnr of Church & Crown Streets                fax: (02) 4226 3947
                       Wollongong NSW 2500
  Rob O’Neill          Lachlan Macquarie Chambers                   ph: (02) 9635 1000           ro’neill@lacmac.com.au
                       16 George Street Parramatta NSW 2150         fax: (02) 9891 1989
  Bill Walsh           William Owen Chambers                        ph: (02) 6361 7959           woc@bigpond.net.au
                       121A Byng Street Orange NSW 2800             fax: (02) 6361 7921
  Geoff Radburn        Lismore Chambers                             ph: (02) 6621 2854           radburn@nor.com.au
                       32 Molesworth Street Lismore NSW 2480        fax: (02) 6621 3898
  Stewart Austin       Chambers                                     ph: (02) 4926 2844
                       30 Church Street Newcastle NSW 2300          fax: (02) 4926 2841          sca 371@ozemail.com.au


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