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2 February, 2009  
Goings on ...

Law Council executive rejig … Estcourt’s defo triumph … Gorgeous judicial flourish from English appeal judge … Simmo’s war on paper … AG heads for the bar

imageSometime in March the wrong might be righted.

The festering grievance is that the NSW Law Society does not have anyone on the executive of the Law Council of Australia – even though it contributes the largest chunk of the LCA’s $6.5 million annual revenue.

The grand pooh-bah’s of the Law Soc are fuming.

Joe Catanzariti, the prez of the NSW Law Society, was expected to be anointed into the LCA’s inner sanctum in December. But there was a massive miscalculation in the plotting and planning and the best laid scheme didn’t hatch.

Joe is merely a non-executive director of the LCA while the executive is in the grip of two Victorian solicitors (John Corcoran and Catherine Gale), a Sunshine Coast solicitor (Glenn Ferguson) and two barristers – one from WA (Ken Martin) and the other from SA (Alex Ward).

But where is the representative of the great money machine that keeps the federal law lobby afloat?

At the end of last year people were running around Phillip Street with their thumbs up their bottoms saying the Sydney solicitors should withdraw from the Canberra body.

Nerves have calmed and now motions are proposed for deliberation at March’s LCA board meeting to expand the executive by one or two – so giving Catanzariti a safe birth within the holy of holies.

Hugh Macken the immediate past president of the NSW LawSoc would slip comfortably into Catz’s still warm LCA director’s chair.

The deal’s done and dusted. Honour and been restored. Thank God money still talks.

* * *

Laurence Maher’s elegant imputation carried the day for Tasmanian silk Stephen Estcourt in his defamation stoush with The Mercurial.

Estcourt, a former prez of the Oz bar association, trousered $110,000 in a settlement over an article that said he refused to cooperate with a police investigation into allegations of government jobs for favours.

Estcourt’s lawyers’ slipped up somewhere because they got less than he did. The loot was ponied up – $65,000 for the plaintiff and $45,000 for costs.

And Laurence’s killer imputation?

“Unlike a range of senior Tasmanian political and legal figures and other persons who had co-operated with the Tasmania Police by being (or agreeing to be) interviewed by the Tasmania Police, which was conducting an investigation in relation to new allegations of corruption involving persons in the higher echelons of Tasmania’s political and legal circles, the plaintiff, who was at the centre of that police probe, had declined to be interviewed by the police conducting the investigation, thereby concealing relevant information from and obstructing that investigation.”

The settlement dwarfs any defamation verdict coming out of the Van Diemen’s Land Supreme Court.

The other lawyer case was ages ago where a solicitor called Howes got a jury verdict of $1,500 against “Clock Face” Gunson over a fracas during a dinner at the Tasmanian Club.

Interestingly, in Howes v Gunson, drunkenness as a defence in defamation was an issue.

* * *

Talking of elegant legal language can I take you to a January 27 judgment from the English Court of Appeal in Greenland Bank Ltd (in liq) v American Express Bank Ltd?

Judicial writing doesn’t come much better than Lord Justice Ward’s opening thrust:

“In praise of forensic schizophrenia.

This is the kind of litigation that could feed the public’s worst perception of lawyers and the law. Jonathan Swift, author of Gulliver’s Travels, once described lawyers as:

‘a society of men … bred up from their youth in the art of proving, by words multiplied for the purpose, that white is black, and black is white … ’

And then he added maliciously:

‘According as they are paid.’

That calumny against the profession could perhaps be voiced in this case by a cynical observer of this litigation. Here Westmont Power (Bangladesh) Ltd (‘Westmont’) brought an action against American Express Bank Limited (‘Amex’) in Bangladesh for a declaration, in effect, that a guarantee given by Amex had not expired. Amex resisted vigorously and claimed the return of the guarantee from the beneficiary. Amex lost.

Now, in a complete volte-face, Amex have successfully contended before Evans-Lombe J in a claim brought against it here by Greenland Bank Ltd (in liquidation) (‘Greenland’) that they could have been wrong in that defence and that there is a real prospect that the Bangladesh court did decide the matter correctly against it. That is Amex’s defence here notwithstanding the fact that back in Dhaka Amex still stoutly maintain their appeal against that decision on grounds that it is riddled with error.

Riding two horses at the same time is always difficult enough: riding them when they are charging in opposite directions is an altogether remarkable feat, so let me begin by praising the skills of counsel for Amex, Mr David Wolfson, who with customary courtesy, cogency, and not a little charm, managed to stay in the saddle notwithstanding some hostile fire from at least this incredulous member of the court.

He escapes all Swift’s opprobrium. How did he manage it?”

* * *

And how did we miss Justice Carolyn Simpson’s reprimand, issued in the NSW Supremo last last year, to litigants who have gone crazy with the photocopying machine?

Simmo’s judgment in SDW v Church of Jesus Christ Latter-Day Saints is a beauty.

The plaintiff had been sexually assaulted by her step-father who was some sort of senior wizard of the church. He was packed off to a “church court” and ultimately excommunicated for his sins.

The plaintiff said the church owed her a duty of care and she needed an extension of time to bring proceedings against the Latter-Day Saints.

Simpson declined the extension of time and dismissed the second further amended summons.

In the process she took a swipe at the “vast amount of documentary material” placed before the court, principally by the church.

Initially she was told that this would amount to seven lever-arch folders with in excess of 3,000 pages.

The judge protested at this attempt to drown her in paper, and the material was pared down to one lever-arch folder.

Even so, much of it was of marginal, if any, relevance. Simmo added:

“To my observation, it has become too common a practice for legal practitioners to produce to the court copies of every document that has come into existence associated with the facts the subject matter of the litigation. It denotes, at best, the exercise of no clinical legal judgment and the abdication of the responsibility that lies upon legal practitioners to apply thought and judgment in the selection of the material to be presented to the court.

A common example is the photocopying and presentation of hospital files, from which every page is reproduced, and copied multiple times – documents such as histology reports, x-ray reports, nursing notes, and quite irrelevant charts and print outs of complex investigations.

This case is no different. The costs to the parties are astronomical. The practice casts immense burdens on the legal representatives of the opposing party, who are obliged to read all of the material, further increasing the costs.

The practice must cease.”

And to do her bit in the fight against the avalanche of paper she excluded from the order for costs in favour of the Latter-Day Saints those costs associated with the preparation of the seven lever-arch folders of bumph, plus the costs of preparing a nutty argument that liability on the part of the church would be inconsistent with the Australian Constitution

A memo was circulated throughout the court bringing to the attention of judges her hon’s remarks about excessive photocopying and the piling of garbage upon garbage, all leading to greater and greater costs.

Load cheers for Simmo from the other judges were heard coming from the Queens Square Lubyanka.

P.T. Taylor SC, instructed by Moyay & Agnew appeared for the church and E.G. Romaniuk, instructed by Farrell Lusher appeared for the plaintiff.

* * *

Robert McClelland spent 14 years as a solicitor and partner at Turner Freeman before going into federal parliament in 1996 and then becoming Attorney General in 2007.

Being a humble solicitor didn’t seem to be an impediment to being first law officer and guiding quite successfully the affairs of his department.

But, the NSW Bar & Grill had other ideas. To lead the profession he should, must be a barrister.

The bar insists that it is not appropriate to have a solicitor as first law officer.

And Robert swallowed this rhubarb because he’s turned up on the NSW bar roll with nary a teary farewell to his old chums in the solicitors’ branch of the caper.


Reader Comments

Posted by: Anonymous
Date: February 2, 2009, 3:11 am

Weird. Wasn't Ruddock a solicitor attorney-general? If so, he wasn't the first (see, eg, O'Sullivan) and, as it is a matter of convention rather than statute law (the federal Law Officers Act deals only with the S-G), this must undermine the Bar n Grill's argument. It's funny McLelland felt rattled. His new colleague Bob Debus had no qualms about his apparent solicitor background when he was NSW A-G. Let's hope McLelland is similarly unmoved by other state / territory A-G precedents, Peter Collins and Shane Stone, by refraining from appointing himself a Cth QC Obviously the A-G has to be a lawyer (which seems to be why Higgins had a go in 1904 even though his party was not in government). However, only in a jurisdiction where the A-G is necessarily performing functions of the Australian S-G (leading counsel and legal advisor to the government), might one demand a barrister in the hot seat. So, in Oz, compelling reasons for a barrister AG are hard to find....
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