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12 March, 2010  
Goings On ...

Scalia puts one over on Kirbs … Past papers and the NSW bar exams … Smellograph mucks-up Tania Evers’ apology … Prof Allan’s misguided anti-charter rants … Bar frosty on Ball appointment

imageMichael Kirby was all charm and conciliation when he debated Justice Antonin Scalia during the American bar’s offshore cavort in Sydney last month.

Kirbs heaped praise on the pudgy punk from the US Supremes – his talent for dissent, his history as a teacher, blah blah.

For his part Nino went softly-softly on Kirby’s pet topic, the legalisation of gay marriage. He told the gathering at the Banco Court:

“Lawyers deal with the law. What do they know about whether there should be a right to same sex marriage?”

That was a bit of a fudge on the part of the right wing’s judicial fixer. As a judge he has a crystal clear assessment of same sex marriage.

Seven years ago in angry dissent in the sodomy case of Lawrence v Texas Scalia criticised the court for aligning itself with the “homosexual agenda”.

“Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as borders in their home.

They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.”

Scalia counted himself as among those “many Americans”.

Kirby lost an opportunity to clobber the ghastly grease ball.

* * *

Results from the most recent NSW bar exams are out next week and anxiety is high over the outcome for contestants in the practice and procedure test.

Much head scratching accompanied these two questions:

“10. Discuss the procedures that relate to notices to admit and their consequences in the Supreme Court.

11. Outline the procedural requirements of notices to admit facts and documents under the UCPR.”


A goodly number will not have to worry about what the hell the P & P examiners were on about because they had already seen 15 out of the 16 questions as a result of practising on past papers.

The bar ‘n’ grill no longer provides old exam papers but they can be discretely obtained from earlier candidates who thoughtfully saved their copies.

Typically there is a 50 percent failure rate for this exam and anecdotally the passes and fails can be divided between those who have managed to acquire past papers and those who haven’t.

The view among many candidates is that the exam is a proxy for life at the bar.

Does the candidate have sufficient contacts to succeed?

* * *

The Daily Smellograph’s apology to Sydney barrister Tania Evers was given a good splash in the bar association news and awareness bulletin:

“As these matters were made public, the association is of the view that the terms of The Daily Telegraph’s apology should also be published.”

It was one of those grovels that referred only obliquely to the nub of the complaint.

“Tania Evers – correction and apology

On 16 April 2008 The Daily Telegraph published an article about the conduct of Tania Evers as defence counsel in a criminal trial. There was also an editorial on the same issue. Various criticisms were made of Ms Evers.

The Daily Telegraph acknowledges that criticisms made of Ms Evers were unjustified and that some of the facts asserted were incorrect. In particular, The Daily Telegraph accepts that Ms Evers was not warned by the trial judge about her conduct, and accepts that there was nothing wrong with her conduct. The Daily Telegraph withdraws all criticism made of Ms Evers and unreservedly apologises to her.”

The apology was part of the settlement of a defamation action Evers brought against The Smello and had been the result of a day-long mediation conducted by Sir Laurence Street.

What was not mentioned was that the grovel first appeared a week before, on February 10.

The Gazette of Law & Journalism points out that the Tele stuffed it up (again) and in breach of the agreement the paper failed to mention Evers’ name in the headline.

It took another week before the correct version of the grovel and retraction appeared in the tissue.

Oddly enough, The Sydney Morning Herald also apologised in May 2008 for a Paul Sheehan rant, which alleged that a marathon cross-examination by Evers of the alleged victim in a rape case had caused the trial to be aborted because Judge David Freeman said it had “run off the rails”.

Despite apologising and withdrawing the allegation that the judge had said these things the story is still there on the newspaper’s web site.

* * *

Prof James Allan has been banging the drum against Bills of Rights for yonks.

He’s at the University of Queensland, via Canada and New Zealand, and he gets a regular run in the flagship of the anti-rights movement, The Australian.

Prof Allan is seen as something of an intellectual beacon to the rag-tag bunch who oppose a charter. Former Premier Bob Carr parrots him relentlessly at his tiresome gigs on the circuit.

Trouble is Prof Allan leads his disciples astray with some frightful clangers.

There was one the other day in The Australian, under the headline Rights Bill is still a threat.

Apparently it’s still a threat because Father Frank Brennan was to speak to the Labor caucus in Canberra about his consultation report.

Prof Allan made the claim that Canadians, who for 28 years have had one of the strongest bill of rights, have to endure “noticeably more restrictions on speech than we [Australians] do”. This included the restriction inherent in defamation law.

“In fact, last year Canada’s Supreme Court referred specifically to our High Court’s views in changing their defamation law.

The case was called Torstar. It hardly showed Australia being isolated on issues of free speech.”

Indeed the Supreme Court of Canada did refer in the Torstar decision to the High Court’s decision in Lange and other “free speech” cases.

However, the reference was not quite the way the professor pitched it.

The Supremes in Canada thought that Australia’s formulation of constitutional free speech on governmental and political matters was too limited and wimpy.

Using the Charter of Rights and Responsibilities as the basis, the Torstar case formulated a new, much wider libel defence of “responsible communication on matters of public interest”.

It went far beyond the wildest dreams of any free speecher in Australia.

This is what the Canadian court said:

“Public interest is not confined to publications on government and political matters, as it is in Australia and New Zealand. Nor is it necessary that the plaintiff be a ‘public figure’, as in the American jurisprudence since Sullivan.

Both qualification cast the public interest too narrowly. The public has a genuine stake in knowing about many matters, ranging from science and the arts to the environment, religion and morality.

The democratic interest in such wide-ranging public debate must be reflected in the jurisprudence.”

In order words, the Supreme Court of Canada specifically rejected the Australian High Court’s formulation as being too narrow.

Hardly the basis for suggesting that the Canadians were just catching up with the enlightened free speech jurisprudence of Australia.

In another of the professor’s furphies he drew on a case from the Quebec Superior Court to bolster his argument against charters of rights.

It concerned a decision that found a father’s punishment of his daughter was too harsh by not allowing her to go to an end of year school camp.

Allan billed this as an example of what the “unelected judiciary can do with a bill of rights”.

In fact, as Nicola McGarrity from the University of New South Wales pointed out, the decision had nothing to do with Canada’s Charter of Rights and Responsibilities.

It was concerned with Quebec’s Civil Code concept of “joint parental authority”.

Maybe we could borrow one of Prof Allan’s own delightful phrases: “He’s full of crap.”

* * *

Didn’t you just love the NSW bar’s thin-lipped little missive on the elevation to the Supremes of Allens Arthur Robs’ starlet, Michael Ball?

“Attorney General John Hatzistergos today announced the appointment of solicitor Michael Ball to the bench of the Supreme Court of NSW. Mr Ball has been a partner at law firm Allens Arthur Robinson since 1987. He has given advice on mediation and litigation in professional negligence, contract law, trade practices disputes and corporations law.”

Clearly they’re delirious at bar HQ about Justice Ball.

On the other hand the Law Society flung its arms around the famed litigator and costs expert.

It “applauded” the appointment.

“I congratulate Michael Ball on his appointment and believe he will make a fine judge,” said LawSoc prez Mary Macken.

I also liked this bit in their announcement:

“While juggling his important Law Society commitments, Michael Ball has also been a partner of Allens, where he worked for the past 22 years.”

Originally, Justice Ball came from Adelaide.


Reader Comments

Posted by: Anonymous
Date: March 15, 2010, 5:54 pm

Great read - thanks.