Bar Dinner Speech

8/22/2019 Bar Dinner Speech

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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.


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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


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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.


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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.


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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.


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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.


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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


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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-


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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]


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.

Bar Dinner Speech

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Transcript of Bar Dinner Speech