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Deja Vu
9 March, 2010  

From Justinian’s hard copy archive … The NSW bar’s great struggles against John Basten and Wendy Bacon

Great missions of the bar

From Justinian, September 1981

The NSW Bar Association’s campaign to preserve its dignity and moral spotlessness continues with fascinating zeal.

In the Basten case, attempts at a settlement have been dashed.

Don Mackay from Sly & Russell, who has been acting for John Basten, tried to negotiate a compromise between the parties, but to no avail.

The bar will press on with its application to strike the academic off the jam roll on the grounds that he is allegedly guilty of professional misconduct in conducting a press conference in which he asserted that he was a barrister representing prison escapee Raymond Denning and announcing terms on which Denning would surrender.

He was not prepared to accept the bar council’s stipulations not to practice until May 1982 and that he submit himself to six months reading and recognise his behaviour amounted to conduct unbecoming.

Basten is a senior lecturer in law at the University of NSW. His expertise is in the fields of legal practice and ethics.

Along with Julian Disney from the NSW Law Reform Commission and two other academic lawyers, he authored the immensely valuable book Lawyers.

At a meeting of about 300 concerned citizens, about half of whom were practitioners, in Sydney on August 25, a resolution was passed calling on the bar council to:

* Rescind its resolution finding Mr Basten guilty of professional misconduct;

* Discontinue its processings in the Court of Appeal seeking to have Mr Basten struck off the roll of practitioners, and;

* Apologise to Mr Basten.

Sydney barrister David Kirby (brother of Mr Justice) proposed the first two motions and a university colleague of Basten’s, Stan Ross, moved for the apology.

Greg Woods QC, from the criminal law review division of the Attorney General’s Department, told the meeting, that the motions should be rejected because the proceedings against Basten would bring upon the bar all the odium it could handle.

David Buchanan, another member of the Sydney bar, brandished the widely remembered edition of The Bulletin, which featured a picture of T.E.F. Hughes QC on the cover and a lengthy profile of the great man, and asked the assembled gathering whether action would be taken against this form of barristerial self-promotion.

Michael Adams, a former Public Defender, said that the first two motions should be separated and that while the bar could be asked to rescind its resolution, it was not proper to ask that it discontinue its proceedings against Basten, because every litigant has a right to approach the courts.

Michael Eyers from Dawson Waldron gave a highly reasoned speech in which he pointed out that the bar’s action would only serve to increase divisions between part-time and full-time lawyers.

Marcus Einfeld QC delivered a profound message on the need to renounce extremes and to adopt a middle course. He maintained that non-barristers could not have informed views about these sorts of ethical questions.

Interestingly enough, the people who run the ethics course for students studying under the SAB/BAB regime have left no doubt as to the “right” way students are expected to think on this matter.

In a note circulated to external students by the lecturer Mr. M.G. Neal, there was a bitter attack on The Financial Review for publishing the correspondence that flowed between the registrar of the bar association and Basten.

The note also said that the intention both of the person supplying the letters and the newspaper in publishing them was to influence the result of the proceedings. Students were asked to reflect deeply on the contempt of court implications of this move.

Of course, the Basten case has not escaped being portrayed as a back-door attack on legal academics in general and on the NSW Law Reform Commission in particular, especially as Basten is a close associate of the bar’s great bogeyman, Commissioner Julian Disney.

Basten, along with Carolyn Simpson, has also been junior counsel for Wendy Bacon in her application for admission to the bar.

Senior counsel for both Basten and Bacon is DMJ Bennett QC, and CR Callaway QC is representing the bar association in both cases.

On the Bacon front, her application to the NSW Court of Appeal for admission, following her rejection by the Barristers’ Admission Board last December, is due to be heard on September 21.

Chester Porter QC is appearing for the prothonotory in the case, and the bar association has also been joined as a second defendant, although it has not declared, as yet, whether it will oppose her move.

Bacon is currently working as a researcher for Sixty Minutes.

The big question on everyone’s lips is if Basten was rash, was Bacon rasher?

She has filed a large number of character affidavits, and for its part the crown has filed the transcript of proceedings of a charge against Bacon of exhibiting an obscene publication, which was heard in February 1971, plus a copy of a surety form dated April 1979, which relates to Bacon standing bail for Steve Sellars, who was charged with conspiring to break into Katingal prison.

Bail was forfeited when the accused failed to appear, but he was nonetheless subsequently acquitted of the charge.

Justices Moffitt, Reynolds and Helsham will hear her application.

Chief Justice Street has ruled that no member of the court who attended and BAB meeting since 1979 when Bacon applied to be accepted as a student-at-law, would be eligible to hear her application to the Court of Appeal.

The matter of raising bail in the Sellers matter is also the nub of the action that the bar association is taking against Peter Livesey.

In contrast to Basten, Livesey was not afforded the luxury of any correspondence from the bar association, but was simply summonsed for alleged professional misconduct.

The allegation is that he helped in organising bail and on other occasions was not instructed by a solicitor.

The remaining matter of consuming interest for the NSW Bar is the application by Clive Evatt junior to reapply for readmission.

Michael McHugh, chairman of the bar ethics committee, is conducting what will be Evatt’s third application for readmission after being struck off by the High Court in 1968.

The application is being opposed by the bar association.

The Court of Appeal found that Evatt was part of a dishonest scheme whereby extortionate costs were charged to victims in simple accident cases.

The court concluded that Evatt’s fees “represented indirectly a share of the verdict”.

It added that in coming to its opinion:

“We are fortified by the view of the association expressed by its senior counsel that for a junior barrister habitually to charge the top of the scale for Queen’s Counsel, whether a leader is engaged or not, in a simple accident case, whether it be an assessment of damages only or whether liability is an issue, and particularly in cases which are settled before a hearing, is beyond any recognised standard and cannot be justified.”

The Court of Appeal suspended Evatt for two years and the bar association appealed to the High Court arguing against the leniency of the penalty.

The High Court set aside the suspension and ordered Evatt’s name removed from the jam roll.

*These days John Basten is a NSW appeal judge, Julian Disney is President of the Australian Press Council, David Kirby is a Supreme Court judge, so is Carolyn Simpson and Michael Adams (on leave to the UN). Greg Woods is a Dizzo judge, Marcus Einfeld is in jail, Wendy Bacon is a professor of journalism at UTS and Clive Evatt is at the Sydney bar.