It hasn't been all beer and skittles as the new High Commissioner to the UK takes his place on the marble stairway ... An early missive from our man at Australia House ... Correspondence from lofty sources finds it's way to Justinian's in-tray 

Dear Malcolm, 

A quick note to advise on arrangements pertaining to my settling-in as High Commissioner to the Court of St James's.  

I must say, it hasn't been easy. The Downers left Stoke Lodge in a dreadful state. I won't describe what I found under the bed in the master bedroom, but needless to say there were apple cores, a decaying half-consumed lamb chop (a gift from the Australian Lamb Board), various items of underwear, some in an unhygienic condition.  

As you would appreciate all of this should have been removed prior to my predecessor's departure. Of course, any expenses associated with removal of this detritus will have to be met by Finance. I'll be sending a bill to Cormann.  

Achtung Mathias! 

That's the least of it. A large valise with my suit and other formal accoutrements for presenting my credentials at Court and other meetings at the Foreign and Commonwealth Office has disappeared, mysteriously, I might add. 

I have requested staff to put all duties on hold while they hunt high and low for the missing portmanteau. As you often say, Malcolm, prioritisation is the key to success. 

Talking of staff, I'm sending you a snap of my inspirational gee-up to the troops upon my arrival at Australia House. As you can see from their rapt attention they are delighted to at last have a High Commissioner who has a grip on things. 

By all means stick it up on the wall in the Party room. 

I don't wish to seem immodest, but can I just add on a personal note that you made not only the only choice in appointing me to London, but a choice that will have lasting impact of Austral-British relations. 

The not so subtle remarks I'm hearing about Downer are enough to make my hair curl. More of that another time. 

Tim Wilson MP is coming to spend a few weeks during the winter parliamentary break and I'm sure the department won't be adverse to my putting his expenses on the slate. 

While on the topic of expenses, there's one thing in need of urgent attention - decent bookshelves for my rooms at the House and at the Lodge.

There's the last remaining stand of Norfolk oak trees that I have earmarked for the job. 

Please warn Cormann, so there are no nasty surprises for our Tight-Arsed Exchequer. 

My library is in need of a more commodious arrangement than was suitable for the Downers, most of whom could barely read. I say that advisedly. 

Anyway, it's an endless round of talks on trade, Brexit, meetings with the Cheese Export Board, a concert at the Albert Hall featuring the Coonabarabran Boys Choir, a lunch at Boodles with Pyne who is visiting. 

"Poodles at Boodles." I'll get a huge giggle telling him that.   

Enough about my petty travails,  Malcolm. Let me hear how thing are going in my absence. Not too well, according to a little dicky bird who has whispered in my shell-like. 

Cheers, as ever, 

The Honourable George Brandis QC 

Gayle v Fairfax ... Defamatorium ... Fair is foul and foul is fair ... Weighing the balance of a testing trial ... Analysis of judge's rulings 

Fair is foul and foul is fair

THE Fairfax newspapers claimed they did not get a fair trial in the Chris Gayle defamation case. 

Fairfax Media statement on Chris Gayle matter: pic.twitter.com/gPpoPEPsCA

— Fairfax Media (@FairfaxMedia) October 30, 2017

On Monday October 30, the sixth day of the trial, the jury rejected Fairfax's defences of truth and qualified privilege and found that the articles about the big bash cricketer Gayle exposing himself to a team masseuse were published maliciously. 

By accounts from those who followed the case it was a surprising verdict. 

Gayle had pleaded that publications by Fairfax Media, The Age Company and Federal Capital Press gave rise to imputations that: 

(a) He intentionally exposed his genitals to a woman in the West Indies team dressing room during a training session at the 2015 World Cup. 

(b) He indecently propositioned a woman in the West Indies team dressing room during a training session at the 2015 World Cup. 

(c) He indecently exposed himself to a woman in the West Indies team dressing room during a training session at the 2015 World Cup.

It took the jury of three women and one man less than two hours (including lunch) to find the defences failed for the ten articles published on various Fairfax platforms in January 2016 and had defamed the cricketer who was previously part of the West Indies team but now plays as a renegade. 

Leanne Russell was the West Indies team masseur and she told her story to Age journalist Chloe Saltau that Gayle had partially exposed himself to her by lowering his towel in the change room. 

Initially she came forward anonymously after Gayle's sleazy "don't blush baby" incident with Channel 10 sports reporter Mel McLaughlin, but for the trial decided she should speak publicly. 

Trial judge Lucy McCallum said she was "troubled" by Fairfax's post-verdict statement: 

"It seems to me to be a fairly clear criticism of the court published on the door step of the court immediately after the jury's verdict and I don't really know what to do about it. I think I should think about it and perhaps raise it with others." 

Matt Collins QC for the defendants said: 

"I really wish to say on the transcript the complaint is that there was an error made yesterday when the jury was not discharged. Of course a complaint that a judge has made an error is a criticism of a court, but only in the time honoured sense, and that is why we have appeal courts.

HH: "Yes, it is not why we have newspapers." 

At the time of going to press, the parties were still waiting for McCallum J to release her summing up to the jury. Meanwhile, Gayle has announced he wants to sell his story about the Fairfax defamation case and said bidding was now open, starting at $Aus420,000. 

I have a very interested successful story to tell!! It can be an exclusive 60mins interview or y’all just have to wait on my next book! It’s about what transpired in court and behind the scenes in Australia, how they went to bigger heads to get me ban...

— Chris Gayle (@henrygayle) November 9, 2017

And ... 

How they want to use me as a scapegoat over a interview-I’ll tell you what I do every day after court, believe me, when I break this down to y’all it will be like a movie! No holding back! Biding starts at US$ 300K for this interview! So much to say & I will!

— Chris Gayle (@henrygayle) November 9, 2017

But what of the claim by the defendants that they felt they had an unfair trial? In the course of any trial there will be decisions by the judge about which one side or the other will be unhappy. 

To access the overall balance of the trial requires ploughing through seven days of transcript amounting to 459 pages and assessing the rulings, interruptions and directions by the trial judge - whether they be crucial or minor and inconsequential, whether they be well-founded.  

For the defendants and their counsel Dr Matt Collins QC there were 51 statements, rulings and directions by the judge that could be classed as contentious or adverse and 12 that were positive or in their favour. 

For the plaintiff and his counsel Bruce McClintock, we counted 11 interventions by the judge that were negative and 18 that were positive. 

We'll outline some of them here to assist subscribers in their assessment of "fairness". 

Judge's decisions, rulings and interruptions adverse to the defendants 

Of the 51 instances were counted in the transcript these seem to be the most relevant: 

• The judge's decision not to allow into evidence Gayle's social media posts and videos on YouTube. 

• McCallum J upheld McClintock's objection to Collins on the way Gayle portrays himself publicly, saying: "This case is about the way in which he portrays himself privately in the change room, Dr Collins" (day one, page 59, line 50).  

If the the social media posts had been admitted this is what the jury would have seen - (scroll down).  

There was also some vibrant carnival activity on YouTube ... 

And the famous condom advertisement ... 

Among other things in Collins' cross-examination of Gayle, the judge: 

• Disallowed the line of questioning relating to how the team masseuse Leanne Russell was treated by the West Indies team (day one, page 66, line 30).  

• Refused a line of questioning in relation to Dwayne Smith's (Gayle's team mate and his chief witness) text to Ms Russell to organise a massage, saying it was a 'credit' question (day two, page 88, line 91). 

• Prevented the line of questioning in relation to Smith's "sexy" text message sent to Ms Russell because it was an illegitimate 'credit' point (day two, page 99, line 101).  

During cross-examination of Fairfax witnesses by McClintock, the judge: 

• Pressed Age sports journalist Chloe Saltau as though she could be counsel for the plaintiff. A comparable series of pressing questions to McClintock's witnesses could not be found (day two, page 162, line 14). 

• Prevented Collins from completing his objection in the following exchange (day three, page 201, line 10): 

HH: Dr Collins, it's been indicated another question is going to be put.

Collins: I didn't get to the objection.

HH: There's no need to continue with the objection once the objection is withdrawn, that means you've won and you get to sit down. 

Also: 

• In the absence of the jury, the judge refuted Collins suggestion that an attack had been made on Ms Russell in the following exchange: (day three, page 210, line 50)  

Collins: Your Honour, in respect of the justification defence, the credit is the central issue.  Who is to be believed out of the evidence given by Mr Gayle and Mr Smith on the one hand, and this witness on the other.  A ferocious attack is being made, has been made in open - - - 

HH: No attack's been made at all, she hasn't been cross-examined, her cross-examination hasn't commenced. 

Collins: The attack was open in this - and it's suggested that she - - -

HH: Dr Collins, please.

• During the examination of Ms Russell the judge stopped Collins from asking the team's masseuse about why she was horrified after the Mel McLaughlin interview. McCallum J said it was not relevant (day three, page 231, lines 5-15).   

• The judge was in disfavour of mass media publishers that run articles produced under time pressure as it compromises the content: (day four, page 333, line 26).   

"Maybe it is a reference to invisus [??] environment, maybe it is a reference to journalists being under pressure and having to get stories, I mean, it might cut the other way. They are probably all relevant considerations but the pressure of the deadline cuts both ways because it makes it even more important to be careful about content." 

• The judge criticised the evidence of the journalists on the basis the exposure allegation was not put squarely to Gayle or his manager because they assumed his guilt: (day four, page 337, line 20):  

"I must say, that was the difficulty I had with the evidence of some of the journalists because their response to that was, well, why do we need to tell him with specificity?" 

• The judge interrupted Dr Collins five or six times in a single exchange during his submissions about why "reasonableness" is a requirement of qualified privilege was a matter for the jury. This contrasted with McClintock's uninterrupted submissions on the same matter (day four, page 338).  

• The judge ultimately reversed her decision in an earlier case where she found that the jury should decide reasonableness (Daniels v State of NSW) and concluded that in Gayle reasonableness is a matter for the trial judge (day four, page 350, lines 15-30).  

• The judge persistently interrupted Collins during his explanation in relation to his application to discharge the jury (day five, pages 398-405).  

• There were further interruptions from the bench when Collins sought to rebut the judge's reasons for not discharging the jury. She said she is "not inviting further submissions [and is] not going to discharge the jury" (day six, page 430, line 40).  

Later, she said (day six, page 431, lines 0-5): 

"You don't get a second bite of the cherry to discharge the jury. I have considered your submission very closely. I'm not giving you a third go at that action."  

• Collins was told by the judge that he put his argument "in a way that was confusing to me, and to Mr McClintock" (day six, page 432, line 15). 

Judge's decisions and rulings positive to the defendants 

Collins: no second bite of the cherryWe counted 12 in all, but here are the most significant: 

• The judge stated, in favour of Fairfax's argument, that public interest "must be a live issue in this case" (day one, page nine, line 16). 

• The judge allowed Collins' line of questioning (and rejected McClintock's objection) about the contextual relationship between Leanne Russell and Gayle (day one, page 60, line 35).  

• The judge allowed in evidence of Gayle's management's denial during examination of Fairfax sports reporter in Sydney Chris Barrett, and said she would give directions about it (day three, page 195, line 15). 

• The judge allowed Collins to bring in 'background context' evidence when questioning Ms Russell in relation to how the massage with Dwayne Smith was organised (day three, page 213, line 30).  

• The judge upheld Collins' objection to McClintock's question about what Ms Russell thought readers would think when reading the article (day three, page 259, line seven).  

• The judge indicated support for Collins' argument that McClintock failed to amend some particulars. She said: "How could Dr Collins have pre-empted 11 points if you don't make the application to amend the particulars?" (day five, page 423, line 21). 

• The judge said that she did not think that the journalists knew that the allegations were false (day seven, page three, line 50).  

• The judge concluded that Fairfax's statement about not getting a fair trial did not relate to damages (day seven, page 10, line 45).  

Judge's decisions and rulings adverse to the plaintiff's side 

We counted 11 of them. Here are some: 

• McCallum J disagreed with McClintock's assertion, in relation to the s.30 defence, that "there are references throughout the defences to the word 'court deciding' which doesn't really seem apposite to the jury deciding" (day one, page eight, line 25).  

• When McClintock referred to the forensic IT expert as "my learned friend's expert", the judge said: "He's actually my expert, Mr McClintock, he's an expert appointed by the court but they might have found him, but I appointed him" (day one, page 78, line 50). 

• The judge interrupted McClintock when he began making a submission on the question of 'reasonableness', stating (day three, page 183, line 40):  

"Mr McClintock, I understood that submission. Please, I'm using it in shorthand, I understood your submission, the question is whether under the general law it was a question that was determined by the jury."   

• The judge pushed back on a number of McClintock's assertions in relation to whether 'reasonableness' is a matter for the judge or jury (day three, pages 185-186).  

• The judge said in relation to McClintock's question about Leanne Russell "calling a spade a spade": "Mr McClintock, I'm not sure that that's a very meaningful question." She then rejected his next question about whether Ms Russell is "a women prepared to use blunt language" (day three, page 260, line 40). 

• The judge prevented McClintock from showing a text message to Ms Russell, saying: "I think she's already accepted it, Mr McClintock" (day three, page 282, line 38).  

• The judge interrupted McClintock and corrected him on his reference to "balance of proof" rather than "burden of proof" (day four, page 369, line 35).  

Judge's decisions and rulings in favour of the plaintiff 

McClintock: exactly, exactly your HonourWe counted 18 in this category. Here they are: 

• In relation to the judge's earlier decision in Daniels, the judge stated that she would "rethink this carefully", because of arguments raised by McClintock (day one, page four, line 10).  

• The judge allowed McClintock to give an extensive view on the Mel McLaughlin interview as "a bit of background" - despite not putting any evidence forward in relation to it and despite him claiming it had no relevance (day one, page 25, line 50).  

• McClintock was not pulled up or corrected when he gave his version of the definition of 'malice'. He claimed that there is "nothing hard in it [malice] ... it means that she [the journalist Chloe Saltau] published for an improper purpose, that is, for a purpose that we nominate is to harm my client". However, the definition of malice is not quite as simple as that - it requires the improper motive to be the dominant motive, not just a contributing motivating factor (day one, page 27, line 45).  

• The judge allowed Gayle to talk about his charity work and for McClintock to ask a number of questions about his philanthropy (day one, page 32, lines 30-50).  

• The judge articulated McClintock's argument for him when discussing the Mel McLaughlin interview. She completed McClintock's statement in the following exchange (day one, page 53, line 45): 

McClintock: Not quite like that, your Honour, but your Honour will bear in mind that there is no similarity with what it said to have happened with Ms McLaughlin - - - 

HH:  Public flirting versus private exposure of genitals.

McClintock: Exactly. Exactly. Your Honour, I've said all I wish to say.  

• In discussing whether 'reasonableness' was a matter for judge or jury, McClintock asked: "Is it possible to obtain the judgment that your Honour gave on Friday night?" (day one, page 76, line 45).  

• The judge affirmed McClintock's objection to Collins' question of cricketer Dwayne Smith in relation to the text message sent to Leanne Russell to organise a massage. McCallum J and Collins extensively debated this point and the judge concluded by saying, "Mr McClintock, do you agree with my analysis?" - to which McClintock said: "Yes, Your Honour" (day two, page 91, line 40).  

• The judge repeatedly allowed McClintock to cut off Fairfax journalist Chloe Saltau during her answers to his questions (day two, page 144, line 35; page 145, line 12; page 146, line 50; page 155, line five). 

When Collins objected to McClintock consistently cutting off Fairfax journalist Ms Saltau, McCallum J stated (day two, page 155, line 15): 

"I think Mr McClintock is entitled to press because he's dealing now with a question of capacity which I think wasn't included within the last answer, not that she's being non-responsive but it's just a different angle. Yes Mr McClintock?"   

• The judge did not intervene when McClintock was probing Leanne Russell on her eating disorder, despite there being no clear relevance (day three, page 236, lines 25-50).  

• McCallum finished McClintock's sentence for him when cross-examining Ms Russell (day three, page 246, line 40):  

McClintock: I'm not criticising you for this, but it wasn't true, was it, you weren't looking - - -

HH: That you were looking for a towel.

McClintock: You weren't looking for a towel?

A:  No, correct.

• On a few occasions, the judge pressed Ms Russell on a number of questions in furtherance of what McClintock was asking the witness (day three, page 268, line 15; page 273, line 20; page 281, lines 5-20). 

• The judge rejected Collin's objection to McClintock's question and how it was put to Ms Russell (day three, page 275, line 12). 

• McClintock requested from the judge that Collins outline the basis of his submission that 'reasonableness' is a matter for the jury - even though the burden lies with the plaintiff to make the submission. McCallum erred with McClintock and encouraged Collins to make a submission because it "would be helpful for everyone" (day four, page 301, line 50).  

• The judge appeared to articulate and reinforce McClintock's arguments on McClintock's behalf in rebutting arguments put forward by Collins. For example, McCallum J stated (day five, page 411, line five): 

"Mr McClintock's submission is that it doesn't have to be put at all, because he's entitled to draw an inference from the fact that the question was asked by you."  

• The judge articulated McClintock's argument for him in stating why the jury should not be discharged: 

"But two things might have unwittingly contributed to that impression in your [McClintock's] mind. They certainly did in mine. One is that, when that evidence was led from Ms Russell, Dr Collins asked did she hear anything." 

McCallum: It was a red herringIt seems McClintock did not make this argument or articulate this reasoning. McCallum J did (day six, pages 436, line 15).  

• The judge assisted McClintock to articulate his argument in the following passage (day six, pages 436-437): 

McClintock: Two things were clear in my intent of that address, and the evidence. One was that, the laughing must have come from Ms Russell in some way because of the secrecy. The second thing, because, and it's sensible - I would only be repeating what your Honour said. The way my learned friend was dealing with the Clark [West Indies physio] issue was to say he had nothing to say. 

HH: It was a red herring.  

McClintock: A red herring, in effect, and he could not contribute. 

HH: Except as evidence of the first complaint.  

McClintock: Exactly. Exactly. Exactly.  

HH: If he went into the change room and heard the laughter, and her evidence says she came out and stood outside the change room for a few minutes - - -

McClintock: Yes. 

HH: - - - then went to speak to Mr Clark, then went up to the stand. 

McClintock: Yes. Yes. Exactly. 

HH: If she heard the laughter after a few minutes, you couldn't give a temporal connection of the exposure of the penis. 

McClintock: Exactly, your Honour. 

• McCallum outlined a number of reasons why she thinks there to have been 'malice' on the part of the defendants: 

"Well, I am talking about all of those sort of matters and failure to find Mr Smith; failure to wait for a formal response from Mr Gayle or give him an opportunity to make one with more knowledge of what the allegation was; failure to wait for the email from Sir Ritchie [Richardson, team manager]; failure to obtain any confirmation from Sir Ritchie and so on. But I think I would take some persuading, Mr McClintock, that there was knowledge of falsity." 

(day seven, page four, line 10). 

The scorecard: 

• Negative for Dr Collins and Fairfax: 51 

• Positive for Dr Collins and Fairfax: 12 

• Negative for Bruce McClintock and the plaintiff: 11

• Positive for Bruce McClintock and the plaintiff: 18 

Of course, in the end, the jury made the decision.  

Transcripts: 

Monday Day 1 Oct 23

Tuesday Day 2 Oct 24

Wednesday Day 3 Oct 25  

Thursday Day 4 Oct 26  

Friday Day 5 Oct 27  

Monday Day 6 Oct 30 

Tuesday Day 7 Oct 31 (damages argument) 

See also: Gazette of Law & Journalism reports of the trial

Street the Stockman ... The shirt of flies ... Platypus Junction ... Street the charmer ... Friend of the press ... A legacy in law and love ... The sea and the bush 

Laurence Street and first wife Susan: wedding 1952 St Marks, Darling Point

Laurence Street as chief justice of NSW, gave his blessing to Justinian. 

When this organ first started in 1979 (can you believe it) the response from the Law Society and the Bar Association in Sydney was frosty, even hostile. 

Ian Maughan was the executive officer of the Law Society, a Sydney Greenstreet lookalike, and he sent a memo to members on blue paper urging them on no account should they speak to reporters from Justinian. 

Free speech wasn't much on the agenda in those times. 

The Bushie: Golden Valley

By some oversight the editor received an invitation to a big Law Society knees-up at the Wentworth Hotel, only to be met on arrival by some pompous conveyancer and member of the LS council suggesting it was not appropriate for Justinian to be at the dinner. 

Lorenzo the Magnificent, looking like Rudolph Valentino, was standing nearby, heard what was going on, and leapt in to say that it was entirely appropriate for the affairs of the profession to be reported upon and the editor should enter. 

Bravo Lorenzo. 

He liked journalists and was open to their phone calls, enjoying nothing better than to shoot the breeze about politics and affairs. 

It's unimaginable that any of today's crop of judges would be so engaging. He was ready made for the stint he did as chairman of John Fairfax Holdings.  

He also had a wicked sense of humour. After the state funeral on Thursday (July 5), over chicken sandwiches and champagne at the State Library, one eminent retired judge told Justinian that some time back he was at a dinner, seated between John Marsden, the famous gay solicitor, and a well known femme fatale at the bar, whose name we dare not mention. 

Sir Laurence, who was at the end of the table, passed down a note to the eminent one. "If you feel a hand on your leg, you won't know which way to look." 

HH Sandy Street: a tribute

His son Sandy Street, (aka His Hon Judge Alexander Street of the Federal Circuit Court) paid tribute at the Opera House service. He talked about his father's less well known side as a bushman: 

"I would take you on a brief merry dance as to Laurence - the father and Bushy, and the adventures we had with him, in his worn 'baggy pirate gear' in a beautiful piece of sunburnt country, called Golden valley on the Wollondilly River. 

On a sweating chestnut Stallion, in a hand-greased American Western saddle, and homemade reins, rode a stockman with no shirt, except the sheet of flies, out into an untouched paddock, named the Far Run, to the rhythmic chain-saw competition of cicadas, where the wedge-tailed eagles had their eyries perched on Wombat Lookout, accompanied by his offspring, riding behind for a secret picnic spot, named Platypus Junction. 

On the way, the Bushy rescued, off the top strand of a barb wire fence, a little sugar glider, nurtured it back to health, with segmented woodworms, and returned it to its home. 

That stallion, Doctor, was lunged and broken from a colt by that Bushy. The stallion would come when called by that Bushy, who then would then ride him around the paddocks, mustering cattle, often without any reins or saddle, and on occasions holding onto Doctor's mane, swimming into the Hill Paddock Dam to escape the heat. 

The Bushy tried to fatten weeners and sell them as forward stores in good seasons. We lost nearly all the beloved horses in a bushfire in 1979. Like most Bushies he battled fires, floods and droughts and would tell us around a campfire about stars in the Milky Way, and night sky navigation. 

The Bushy taught his offspring bushcraft, bush songs or at least that is what I thought his repetition of Flanders and Swan constituted, a love of nature in all her untameable diversity, as well as the hardships, joys and beauty, in the rainbow of country life."

See: Sandy Street's tribute in full 

Laurence Street came from an era that is now largely unrecognisable in today's Australia. There's much else that can be written about this smart, accomplished, complex and dashing man, but for now we'll leave it there. 

Greg Tolhurst is the Executive Director of the NSW Bar Association and he's on Justinian's Couch ... An indoors-outdoors sort of person ... Huge pile of books beside his bed ... Lots of music ... Running the bar association at a time of considerable distruption ... Bin Chicken SC and Bullfry practising without tickets ... Dinner table banter ... Dessert and drumming ... No hot sun but more vitamin D  

Tolhurst: coming out from underground Greg Tolhurst was educated at Fort Street High School and became a lawyer by sitting the LPAB Diploma in law exams. 

He also holds an LLM (Sydney) and a PhD (UNSW). His legal career began as the tipstaff to Justice Jerrold Cripps. 

He was then a solicitor at the Commonwealth Bank of Australia and a consultant at Herbert Smith Freehills. 

Tolhurst spent 17 years at Sydney Law School as Professor of Commercial Law holding various positions within the faculty including roles as associate dean and acting dean. 

In his time he has written a few books and published a few articles. He took on the position of Executive Director of the NSW Bar Association in October 2017. 

He is also a venturer scout leader and so well known within the Bunnings BBQ fraternity. 

Justinian is fortunate that he spared a moment on our couch ... 

Describe yourself in three words.

Not Bald Yet.

What are you currently reading? 

Doerr, "Measure What Matters"; Rossmanith, "Small Wrongs"; Muller, "The Tyranny of Metrics"; Stern, "Galaxy Love"; Unnahar, "Yesterday I was the Moon"; Strangio, Hart & Walter, "Settling the Office"; Tombs, "The English and Their History" (it is taking forever); Shapiro, "Legality"; Eisenberg, "The Nature of the Common Law" (it's embarrassing that I did not read this years ago); Braund, "The Greatest Movies You will Never See"; Pearl, "The Book of Why"; Giovannoni, "The Fireflies of Autumn"; Barnes (ed) "The Independent Bar" ... Shall I go on?

What's your favourite film? 

Today, it is between "Laura"; "It Happened One Night" and "Out of the Past".

What is your favourite piece of music?

It is too close to call but it is between, Miles Davis, "A Tribute to Jack Johnson"; Buddy Rich and Mel Torme, "Together Again for the First Time"; Art Blakey, "A Night in Tunisia"; anything by Art Tatum; Eric Carmen and the Raspberries, "Raspberries Best"; Rachmaninoff's Piano Concerto No 2; Joe Jackson, "Steppin' Out". Ask me again in another minute and it would all have changed.

Who has been the most influential person in your life, and why? 

My Mum and Dad. Mum is very much "get on with it" and Dad was "why the rush, take a break". 

When were you happiest?

I know I should say when my four children were born and they were four very happy days, but the day I changed my last nappy was also a very happy moment.

Why did you think it was a good idea to leave the cosy confines of academia to become executive director of the NSW Bar? 

Academia is not a cosy confine. It was time for a change and a new challenge. 

Has it worked out as you anticipated? 

Yes, I love it. It's busy and the work is varied and interesting, and there is an occasional touch of politics.

Where do you see the Bar Association in five years time? 

In terms of the Bar Association office, I will be honest and say that I would like the staff to be out of the "car park", I already have a vitamin D deficiency. Beyond that the question is too big to answer here except to say the Bar Association through the Bar Council and its committees will continue to support and represent its members while demonstrating leadership in a dynamic legal services environment.  

What are the biggest challenges you face as executive director? 

Legal services are experiencing a period of disruption. Each of us at the Bar Association and on the Bar Council and its committees face the challenge of playing our part to work through these changes. 

May I add that I am also concerned about two people, who go by the names of Bin Chicken SC and Bullfry, are holding themselves out as barristers when they do not have PCs. The latter has been around for some time and the previous executive director turned a blind eye to it. I would be grateful if any readers can give me the addresses for these people. 

Who was your most memorable student? 

There are five that I find hard to split. One wrote an essay in first year that I have kept in my lecture notes to this day. Some may or may not be at the bar! Only one has enrolled to do a PhD, clearly I need to do more to inspire the other four.

How do you unwind? 

Listening to the banter of my children at the dinner table and doing things that require a lot of concentration so I do not think about work, such as hiking and camping. More recently I have been talked into doing some canyoning which keeps you focused. Last year one of my sons and I went to Tanzania to walk up Kilimanjaro, and during that I didn't think of work once. 

What is in your refrigerator? 

Not much, my four teenage boys just cleaned it out, they are like locusts. Glad you did not ask what is in the freezer.

What is your favourite website?

Leonid and Friends, Chicagovich 

What words or phrases do you overuse? 

"...now Arthur ..." 

What is your greatest weakness?

Dessert. (Ok you did ask what was in the freezer).

Why did you want to be a lawyer? 

I didn't (see next Bar News for more details).

What other occupation would you have liked to pursue? 

Drummer in a rock 'n' roll band.

If you were on death row, what would be your request for your last meal? 

Whatever is cooked on the next mystery box episode of MasterChef; you have to keep some mystery alive.

If you were a foodstuff, what would you be? 

Vacuum sealed. 

What human quality do you most distrust?

My favourite line in popular music is "you're so vain you probably think this song is about you ..." Does that give you a hint?

What would you change about Australia?

Adopt the Uluru Statement from the Heart.

Who, or what, do you consider overrated?

Lying on a beach in the hot sun, sit ups and super foods.

What would your epitaph say?

"I will say this one last time ..."

What comes to mind when you shut your eyes and think of the word "law"? 

Marking; the old Sydney law school lecture theatres on cold winter nights; The Hon Jerrold Cripps QC's coffee intake before court. 

Wine man Gabriel Wendler visits the extraordinary Thomas Hardy Wine Library in Adelaide and d'Arenberg's Cube at McLaren Vale ... One of the great wine book collections in the world, while The Cube makes a big impact on the Southern Vales 

THERE are twenty recognised wine making regions in South Australia of which the most prominent are the Barossa, Clare and Eden Valleys, Adelaide Hills, Southern Vales, Langhorne Creek and the Coonawarra.

This is reason enough to visit the Festival State as a wine tourist.

A wine tourist's South Australian itinerary should include two readily accessible unique wine phenomena of powerful curiosity, namely: the astonishing Thomas Hardy Wine Library on the first level of the South Australian State Library, North Terrace, Adelaide, and the d'Arenberg Cube at McLaren Vale in the Southern Vales region.

The rich history of South Australian viticulture includes the significant contribution made by the Hardy family.

Tom Hardy, a native of Devon, England, arrived in South Australia in 1850 and established his first vineyard four years later at Bankside Farm on the River Torrens.

By 1875 Hardy was producing around 103,000 gallons of wine. One year later he established himself in McLaren Vale following the purchase of the Tintara vineyards from one of Australia's pioneer winemakers and early wine writers, Dr A.C. Kelly.

The company, Thomas Hardy & Sons Ltd, was then incorporated and wine cellars  constructed in 1893 on the edge of the City of Adelaide at Mile End.

In 1895 Hardy's was the largest wine producer in South Australia. Tom died in 1912 and the  business was passed down through generations of the family. In time there came the addition of further vineyards in the Barossa Valley, Riverland and Coonawarra. In 2003 BRL Hardy was bought by the beer, wine and spirits mega-corporation, Constellation Brands.

The Thomas Hardy Wine Library holds one of the largest collections of wine reference books in the world, made possible by regular financial grants from the Hardy company, commencing in 1968. New publications on all aspects of wine, winemaking, wine appreciation and viticulture are regularly added to the collection.    

The library currently holds about 2,000 titles comprising rare books on wine and viticulture, some going back to the eleventh century, dictionaries on wine, books by famous and obscure wine experts, specialised books on particular grape varieties, books concerning all the winemaking areas of the world and their wine estates, famous and not so famous producers, technical journals and records about wine and winemaking, books about wine in French, German and Italian.

Whenever I am in Adelaide I visit the collection and marvel at the cornucopia of wine literature. Where else can one access such disparate titles as:

Alcohol and Old Age - The Black Horse Of The Apocalypse; Wine, Alcohol and Civilisation; Dialogues on Drink; Chinese Wine; The Wine Grower in South Africa; Wine Trade Exhibition Drinking Vessels; Wines of Eastern North America; Nose – a detective story about wine; Inns, Ales and Drinking Customs of Old England, Amarone - the making of an Italian wine phenomenon - only a fraction of the titles in the prodigious Thomas Hardy Wine Library.

Access to the TH collection at the State Library is free and easy during business hours.

The idea of the Cube occurred to d'Arenberg's ebullient chief winemaker Chester Osborn in 2003, apparently inspired by Chester's fascination with the complexities and mathematics of the process of wine making. 

The Cube: Rubic in Wonderland

The Cube cost $15 million to build and was ceremoniously declared open to the public in December 2017. It consists of five levels of concrete, harlequin chequered glass and steel in a vineyard setting. It insinuates Erno Rubik's Cube together with Jeff Koons and Alice in Wonderland. As a trophy building it is despised by some and admired by many.

A $10 admission fee enables entry to the Cube and subsidises the free wine tasting on its fourth floor with panoramic views of the Vales and the Fleurieu coast. It contains a restaurant, art gallery of modernist paintings and more. There are eccentric life size wax figures of both Chester and his father d'Arry.         

There was no Cube when I lived in the Southern Vales in the 1970s. I often purchased wine from d"Arenberg in those days and, as I recall, there was a tin shed attached to the winery where wine could be chosen and the money left in an honesty box. No flash tasting area using Riedel glasses then. 

D'Arenberg Osborn, "d'Arry" took over as wine maker in 1957. He is now almost 92 years of age. I have fond memories of the Gold Medal Burgundy and the Cabernet-Shiraz. Both wines had distinctive white labels traversed by a thick red stripe - which remains the d'Arenberg motif on many of its wine products such as The Coppermine Road, and the excellent Dead Arm Shiraz.

In the late 1960s and early 70s the Burgundy was a multi medal winner. The  Cabernet-Shiraz of 1964 was described by Len Evans in a Bulletin wine article "as reminiscent of the plush of a nineteenth -century Paris brothel". 

Wendler with wax figures

Forty years ago there were 25 recognised wine making regions in Australia, today there are 72 - precipitating robust competition for the wine tourist dollar.

However one wants to define the Cube and its impact on the Southern Vales it surely is a successful and clever marketing vehicle attracting wine tourists not only to d'Arenberg but also to the many other excellent wineries in the Vales. 

Long may it do so. 

Gabriel Wendler is a Sydney barrister and Justinian's wine correspondent

Peter Lyons in The Dart reviews Les Hinton's The Bootle Boy ... Journalism, ruthless Rupert, hacking, politics & human frailty ... From Liverpool, to Adelaide, to New York, to London ... Globe trotting insider who clung to the boss 

Les Hinton: the hack from Merseyside went all the way with Rupert

IN Les Hinton's compelling autobiography, The Bootle Boy, he writes about a colleague at The Sun called Keith Deves, a journalist who was used to reporting serious stories.

Deves had been a war correspondent at Reuters, knew Kim Philby before he was exposed and had been shot in the leg in Beirut.

He was sent to a house in London to interview a Miss Whiplash. As he was leaving, she told him she had forgotten something. She opened a cupboard door "to reveal a naked and agitated old man, gagged and bound.

"Now calm down, judge," she said, "I'm only showing this nice man from The Sun newspaper around."

Deves was perturbed. "Was it really necessary to tell the poor old judge that I was a reporter from The Sun?" he asked.  

"Don't worry," said Miss Whiplash. "It's all part of his torture."

Leslie Frank Hinton, 74, was born in Bootle, "a very poor suburb, jammed hard against the docks of Liverpool and shattered by war."  His childhood was spent with the unsmiling and tough women of Merseyside. Their husbands were coming back traumatised from the front. He writes of alcoholics and wife-beaters; the religiously polished doorsteps and his Sunday baths in the small zinc tub. 

His Dad was in the army and the family travelled to many places. He ended up in Adelaide working for The News where a former prisoner of the Japanese, Rohan Rivett gave him a job.

One day, the owner of the paper, described by Hinton as a plump-cheeked man with a cigarette, handed him 10 shillings and said, "Can you buy me a ham sandwich please?"

It was the first time he had been spoken to by Rupert Murdoch. For 15 years, he says, we discussed nothing more elevated.

Hinton rose to become one of the most powerful men in the media world. He became CEO of News America Publishing, Fox Television and Dow Jones as well as Executive Chairman of News International.

He worked for Murdoch till 2011 when he stood down over the phone hacking scandal. He says he was ignorant of what went on but felt it proper to resign. He was cleared, too late, of a cover-up at News International and misleading the Parliament's Privileges Committee.

The relationship with Murdoch is at the heart of the book. The Dirty Digger comes across as utterly ruthless. We knew that already but what is surprising is Hinton doesn't shrink from criticising Murdoch. 

He is required to fire a lot of people for his boss. He also gives us a guide as to when Rupert does not like someone. He says that although Rupert's sackings are brutal, the fired ones always get an over-generous payout. But, he writes, "I consoled over drinks more than one tearful editor."

Murdoch could be "savage with senior people who displeased him". 

He assesses Murdoch's driven nature, distrust of politicians and honours and the feeling that as an Australian he is underestimated.

As you would expect from a 60s newspaperman, Hinton tells a good story. I don't want to be a spoiler, but you learn new things about Princess Diana, Bill Clinton and Gordon Brown; his next-door neighbour in Los Angeles whose wife was murdered when he was there (a chap called O.J. Simpson); Tony Blair, Walter Cronkite and Israel's "cold-eyed" Prime Minister Benjamin Netanyahu. Even Johnny Rotten gets a guernsey.

There are good stories about Australian hacks and the drinking culture of Fleet Street, which today seems crazy.

The book also has some fascinating insights about the death of print journalism. Hinton is self-deprecating (he admits he couldn't read a balance sheet when he took over one of Rupe's businesses). He is never boastful, but you get the impression that he still cannot believe his luck.  

I shall break my rule and relate one more story 

Ages ago Hinton was enjoying a job in America when he was asked by Ian Rae (formerly editor of TV week in Australia) to be editor of a tabloid called The Star. He refused. He didn't want to be "sitting on [my] arse all day worrying about UFO invasions and who's screwing who on Dallas". 

Not long afterwards, Murdoch came to lunch. Incredibly, he hadn't dined with the boss before.

"We were at the restaurant door on our way out when I felt Rupert's arm around my shoulder. 

'Les,' he said. "I just want to thank you for helping out at The Star. I'm very grateful and I know you'll do a fine job.'

'You've got it wrong, Rupert. No way am I doing that job. I keep telling them, but no-one will listen to me.'

"Well, they're not exactly the words I used. What I said was, 'Oh, you're welcome, Mr. Murdoch, you're very welcome'. 

Maybe a panel of psychologists could explain why I folded so quickly, but I guess being weak-kneed isn't a clinical condition."

If you are interested in journalism, politics, power, celebrities, human nature and simply funny stories, get this book. If it has a weakness, there is no index, but then perhaps they didn't have enough paper.

You finish wondering why Les Hinton stayed with Rupert Murdoch for so long. Possibly, like the old judge, it was part of his punishment.

Clive Evatt leader of the defamation bar - RIP ... Passionate about plaintiffs, yet gave significant leg-ups to defendants ... Charming, wily and unrelenting ... The Evatt business model ... Dubious clients and desperate cases ... A big life beyond the law ... Thoughts from colleagues and opponents 

Clive Andreas Evatt died last Friday (August 3) aged 87. He was probably the most talked about defamation barrister in a generation, but his spirited life extended beyond the law into opera, art and architecture. 

He gave the turf away 35 years ago because he hit a losing streak: 

“You wouldn’t go out to the races and lose money, I had a good winning streak because I was in with a team of smart punters … and I put all my money into art.”

He was a genuine renaissance man but his most profound influence was undoubtedly at the Sydney bar where his spree of plaintiff actions created a heap of work for defamation lawyers. 

For many clients who rubbed up in the media without much of a reputation to protect, he sought damages and, for himself, fees. He once told the editor of the Gazette that he only acts for people who are “deserving”. 

“I acted for Darcy Dugan, a few allegedly corrupt police, I’ve acted for Mr Obeid … I’ve acted for notorious madams in Kings Cross. I’ve acted for Abe Saffron. 

I would add that I prefer more up-market clients and I do have some a bit better than that.” 

He claimed that he was driven to seek revenge collectively against the media because of its attacks made on his relatives, particularly the Labor leader Dr H.V. Evatt. 

In 2012 he told the Gazette of Law & Journalism that he “loves the media”:  

“I really support the print media, the newspapers. The television media – I seldom look at it because it’s too intrusive. But I’ve got nothing against the media at all – except that they gave my uncle and my father a very rough time …” 

In particular, he disliked the Packer Telegraph and its editor-in-chief David McNicoll: 

“I thought if I ever got the chance to hit back at these people, I’d take it. So if I can cost them a million in costs or something, that’s one thing for my father or Dr Evatt.”

There was also his love of the punt, the chase and the ever-hopeful scent of victory.

He would have countless cases on a roll at the same time and keep them rolling. 

He explained his strategy to various libel lawyers in Sydney. If he kicked off five new actions a year he pocketed $100,000 up front. Settlements were more about his costs than damages and they would go on top of the $100,000. Any verdicts really lifted his earnings. On any reasonable estimation, he was pulling in $500,000 a year from defamation alone. 

He put it this way to GLJ: 

“The majority of my work is that a client pays some fees up front, as much as he can afford, but the rest of it is just on spec.” 

For a time he was keen to file cases in Queensland because he wanted to get away from Justice David Hunt and he thought the judges there gave him a good reception. 

He was also the proprietor of Leuralla, the magnificent deco house in Leura in the Blue Mountains. It was built in 1903 by his mother’s father, E.P (Harry) Andreas, a businessman and big-game fisherman. It was destroyed in a bushfire in 1909 and rebuilt in 1912. 

Clive installed a train and toy museum there, which provided him with tax benefits. He delighted in dressing-up as a train conductor and greeting visitors at the front gate.  

When it came to his own reputation he could be vigorously protective. Journalist Lynton Besser’s sister is an artist who lives in the Blue Mountains. She wrote a letter to the Blue Mountains Gazette complaining about all the Nazi toys at the Leuralla Museum and suggested he should put up a sign warning people about this before they came in. 

The toys comprised a full military parade in front of Hitler with little Nazi flags. Besser’s sister received a steaming, threatening letter from the barrister. 

The general consensus about Clive the person was that he was possessed of enormous amounts of charm, wiles and stamina. 

Some of those who worked with him or against him have kindly volunteered their thoughts. 

Justice Peter Applegarth, Supreme Court of Queensland

In 1994, I was Clive’s junior in Murphy v Sun Newspapers, a jury trial in Brisbane. After legal argument on the first morning, Justice Shepherdson  gave an ex tempore ruling, during which he repeatedly said “Mr Evatt of Queen’s Counsel submitted …” The ruling went in Clive’s favour, after which he sprang to his feet and said, “I have to correct your Honour”.

Tom Shepherdson was not a judge whom barristers tried to correct, and you could have heard a pin drop.

Clive continued:

“My name is Clive Evatt. Mr father’s name was Clive Evatt. He was a Queen’s Counsel. Unfortunately, the title is not hereditary.” 

This “Young Clive” charm offensive worked a treat on the judge. After a good day in court, the case was happily settled that evening.

Sandy Dawson SC

“What have I done now? … Tell me all your troubles”. These were Clive’s two standard greetings whenever I rang him to talk about one of the many cases we did against each other. 

No matter what the topic for discussion, he would always make you laugh. I remember one call in particular when I was questioning the merits of the case he had brought. He said, in that distinctive high-pitched and croaky voice, “Now look. Don’t get too shirty with me young man. I’ve thought up a lot of cases to keep you busy. So don’t complain too much.”

Clive was a formidable and dangerous opponent in a defamation case, particularly in front of a jury. He combined wit, charm, humour and clever legal arguments to win cases for many a plaintiff, even those who seemed entirely unworthy. 

A number of his opponents, distracted by his age and the apparently disorganised sea of paper on the Bar table, underestimated him. But just as those who were investigated by Peter Falk’s character Columbo learned to their peril, this was a grave mistake.

As was falling victim to his distraction techniques. He built false confidence in the uninitiated opponent by telling them that his own case was hopeless and that they had the jury eating out of their hands.

Or he just got under your skin. He infuriated one opponent by constantly leaving his cane under that part of the Bar table where the lectern sat, so that every time the opposing counsel stood up to address the court he stumbled on the cane and lost his balance.

In a fit of rage induced by having fallen for this yet again, the discombobulated silk kicked the cane angrily away muttering expletives, much to the horror of the judge. Clive feigned innocence, breaking his wry smile only to say “Eh? What’s happening?” 

In the last trial I did against him at the end of 2017, Clive was as wily and humorous as ever. He called a witness, a woman in her early 80s who had hobbled across the courtroom to the witness box.

When she told the court her age, Clive remarked: “That’s not old. You’re just a spring chicken!” 

It is strange, and sad, to think that the era – and that is what it was – has come to an end. But when I think of Clive, it will always be with respect, great affection and a smile.

Tom Blackburn SC

No courtroom opponent was as convivial and polite to his opponents as Clive. 

In decades of combat I never had a sharp word from him. He was not as consistently polite about his clients. Occasionally he would cheerfully bag out a client, once or twice in the client’s hearing. 

When that happened, or when he jovially remarked on how lousy his case was, you knew he thought he was on a winner. When he was quieter, you knew he was worried. 

In fact, Clive didn’t worry much. He played the odds. And he was a master of that invaluable skill of appearing engaged in a case, but unconcerned about winning it. 

Clive completely eliminated the hard sell in his interaction with the jury. He knew that juries often respond well to that approach; they feel they aren’t being pressured or hoodwinked. 

He got verdicts for a number of highly unpromising plaintiffs, though not even Clive’s wiliness was enough to get Stephen Dank or Captain Dragan over the line. 

On the other hand, he won the Gacic litigation after 11 years in the courts. All over a restaurant review. 

His cross-examinations were always short and concentrated on one or two points, and even when they were not effective, he was rarely bested. But one such occasion occurred in Stephen Dank’s case, where a medical expert had taken a very dim view of one of the plaintiff’s sports supplements. 

Playing to the jury, Clive said with good-humoured incredulity: “Almost as bad as cyanide. Is that what you’re saying?” “Yes”, said the doctor. 

In the course of a case, he could be a truly infuriating opponent; but whether that observation reflects on him or me is for others to judge. He continued to appear in very tough physical circumstances, and his cheerfulness and courage were admirable. 

During our last case together, in January last year, he turned to me and said, “This might be the last time I see you”. 

It was not the usual jokey banter; he meant it. So we had a convivial dinner. It was like drawing a line under years of combat, and parting as friends. 

Judge Judith Gibson, District Court of NSW

Although Clive Evatt has been described as appearing “invariably for the plaintiff” in defamation proceedings, his most significant contributions to defamation law have actually occurred in cases where he appeared for the defendant.

In Ballina Shire Council v Ringland (1994) 33 NSWLR 680, Clive successfully argued that, conformably with the principles set out in Derbyshire County Council v Times Newspapers Ltd [1993] AC 534, a local council was not entitled at common law to maintain a claim for damages for defamation. 

Despite the insidious advance of human rights creeping into UK decisions as a result of art 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the NSW Court of Appeal (by majority) applied those principles and dismissed the council’s claim. Kirby P even went on to note that, although Australia is not a party to the European Convention, art 19 of the International Covenant on Civil and Political Rights, to which Australia is a party, is “in similar terms” (at 688), a high point in freedom of speech law which arguably has not been equalled since. 

As always, Clive had other arguments to put before the court which, although unsuccessful at the time, deserve revisiting today. 

His submission that a claim for injurious falsehood was similarly impermissible found favour with Kirby P, but not with the majority. There is even a very faint hint of the doctrine of proportionality in Kirby P’s warning that the utility of injurious falsehood proceedings to recover meeting costs of $800 should be the subject of “serious consideration”. 

In the course of his judgment, Kirby P discussed Clive’s other great invention for defendants, namely the cross-claim for abuse of process, which was the subject of the landmark decision of Hanrahan v Ainsworth (1985) 1 NSWLR 370.

Clive had similarly original approaches to trivial claims. Although he was popularly supposed to be willing to bring proceedings over any claim, no matter how hopeless, he is one of the very few barristers able to persuade a jury to find for the defendant on the defence of unlikelihood of harm, namely in the Ainsworth v Burden trial (see the appeal at [2006] NSWCA 199). 

Another ingenious submission in the Ainsworth v Burden trial was his preliminary (unsuccessful) application for a perpetual stay, Ainsworth v James [2005] NSWSC 338, on the basis that the defamation proceedings commenced against the defendant 12 years earlier now represented a serious challenge to his health. 

James J dismissed the application, stating that such claims were possible in criminal but not in civil matters. Bizarrely, Mr Burden’s application for a stay was published as Ainsworth v James – a Freudian slip?

Clive extended his interest in the defence of unlikelihood of harm to include the doctrine of proportionality in Adams v Bristow [2012] NSWCA 166. Although Clive was unsuccessful, it is interesting to compare the principles he unsuccessfully attempted to explain at first instance and on appeal with those set out by McCallum J in Kostov v Nationwide News Pty Ltd [2018] NSWSC 858. Once again, Clive was ahead of his time.

Even in death, Clive will continue to be of assistance to defendants. While he was alive, opponents to defamation law reform were able to point to his active defamation practice as being (together with jury trials) the main reason for the large number and complexity of defamation proceedings. With Clive gone, his naysayers will have to confront the real causes (such as online publication) for these problems. 

Richard Coleman, for many years Fairfax Media’s night lawyer 

Clive was the publisher’s constant irritant.

Even so, he could be disarming, as on the day outside the Defamation List when he said to me: “Some of my clients are on the shady side of doubtful.”

It’s understandable that any such clients sought him out – Clive was a kindred spirit.

Defamation is the game in which every player wins a prize and Clive won more than most.

His business model was said to be $20K upfront to take the punter through to the jury’s verdict. Any offer of amends, as he told ABC Radio once, went into the bin. Clive wanted a trial, or the threat of a trial, the publisher’s worst nightmare.

Negotiations were difficult. His opening gambit would be, “I’ve told him it’s a storm in a teacup but he won’t listen”. 

With difficulty, you might get him down from gross to merely outrageous.

His real preference, though, was to let it run through to trial. If he pulled the winning ticket there, as he sometimes did, then it was the business model’s best outcome: a payout for the punter and a gouge for his costs.

Clive was devious but never dull. My lasting memory of him is the day he unexpectedly turned up at the Return of Subpoenas. 

The deputy registrar was belting through the list at bewildering speed with the regular legal clerks and very junior solicitors handing up documents or objecting to production, claiming privilege or waiving confidentiality when Clive suddenly appeared bent over the table and all traffic came to a shuddering halt. 

The deputy registrar looked up irritated and said, “Yes, what do you want Mr Evatt?” Pause. Then Clive said: “Well, what are the options?”

Graham Hryce, solicitor 

Clive was the most inventive libel lawyer ever. 

He was a supreme strategist and ran his cases with extraordinary vigour and audacity. He won cases that no one else could have won. 

Clive invented new legal principles when necessary – most notoriously the concept of “business defamation” – and convinced judges to accept them even though they were patently wrong. 

Business defamation bit the dust in Chesterton v 2UE when the High Court said it was nonsense. 

He was also a very effective jury advocate. Underneath the humour and bluster there was a first-class mind. Opponents underestimated him to their cost. On a personal level, he was a man of enormous charm and possessed a wicked sense of humour. His views of other barristers were succinct and pointed. Of one he said, “If he were a woman he would be perpetually pregnant”. 

Clive could also laugh at himself. Some of his most amusing stories were about the proceedings in which he was struck off. 

He said his father Clive Evatt QC swore an affidavit that was before the court in the proceedings brought by the Bar Association. Clive jnr said his father’s affidavit was complete claptrap. 

Evatt QC was asked by counsel for the bar association, whether he was Clive Evatt QC? “Yes”. The father of the defendant? “Yes”. And you have prepared an affidavit? “Yes” And it’s a true and fair statement? “Well, it’s very kind of you to say so.”  

Clive was simply unique. He is irreplaceable. 

Published with kind permission of the Gazette of Law & Journalism 

The Chaser's Julian Morrow gets serious on Justinian's Couch ... An escapee from the law who came into our lives as a comedian and satirist ... The joys of employment law could not hold him ... Now the master of ceremonies at Continuing Professional Development Under the Influence 

Julian Morrow was educated at St Aloysius' College in Sydney, and the University of Sydney. He is the son of Melvyn Morrow, a playwright and English teacher who has written for musicals including Shout! The Legend of the Wild One, and Dusty - The Original Pop Diva.

Morrow worked as an industrial relations lawyer for Blake Dawson Waldron. He is married to the former Sydney Morning Herald columnist and former opinion page editor Lisa Pryor. They have two children.

Morrow is a republican and claims to be a lapsed Catholic. He is also a cricketer and plays in an amateur team "The Mighty Ducks" with Chris Taylor and Charles Firth. 

Julian Morrow has made a career of public nuisance in various forms, co-founding the satirical media empire The Chaser and joke company Giant Dwarf, as well as making TV shows including The Election Chaser, CNNNN, The Chaser's War on Everything, The Hamster Wheel and The Checkout. His work has been nominated, unsuccessfully, for many awards, and prosecuted successfully in many courts.

At the 50th Annual AWGIE Awards, the Fred Parsons Award for Outstanding Contribution to Australian Comedy was awarded to Julian Morrow by the event's MC, Julian Morrow.

And here he is on Justinian's Couch ... 

Morrow: under the influence

Describe yourself in three words.

Public nuisance practitioner.

What are you currently reading? 

Waiting For Elijah by investigative journalist Kate Wild, whose multiple Walkley Award-winning career is only faintly blemished by several stints working with The Chaser's TV shows. 

What's your favourite film? 

I used to say Shadowlands but the film that came to mind just now is Chris Morris' terrorism satire Four Lions.  

What is your favourite piece of music?

Asleep by The Smiths.

Who has been the most influential person in your life, and why? 

Finding this question difficult to answer makes me realise how very fortunate I've been. In my work life, as a lawyer and then in the media: Professor Ron McCallum and Andrew Denton. Each has been hugely influential as an inspiration, a guide and a colleague. For in the larger picture: the love and support of my parents, Mel and Ro Morrow, and my wife Lisa Pryor. They are and have been hugely formative gifts. 

When were you happiest?

Some time before I read this question. 

Why did you think it was a good idea to leave the happy confines of legal practice and do satirical things? 

After doing very little in the way of creative activities at university, I decided to pursue any opportunities that might come my way. The Chaser was the first thing that did, so I got involved as a co-founder just as I was starting to work full-time as an employment lawyer. Even though I was passionate about employment law and enjoyed working in the area, The Chaser failed, relentlessly, to die and I went with it. I didn't know if it was a good idea, but it was too unlikely a series of chances not to take.  

Has it worked out as you anticipated? 

Moving from stable employment as a lawyer to project-by-project work in the media was a big, daunting change. I had the benefit of low to zero expectations going in to The Chaser and television, so it's worked out much better than that.

Where do you see Continuing Professional Development Under the Influence (CPDUI) in five years time? 

Honestly I don't know where my new project CPDUI will be in five years time. I'd like it to become a business that is both intellectually interesting and commercially sustaining, because I place a high value on independence. I'd like CPDUI to be well-known and and well-liked as part of the CPD landscape for lawyers, and perhaps other professions, in Sydney and perhaps other cities, as a live event and perhaps in other media. But yeah, there are a whole lot of "perhaps" in there ...    

Will the Chaser team ever return to telly as The Chaser? 

Just like a politician about to embark on an ill-conceived leadership challenge that causes immense and entirely avoidable damage, I wouldn't rule anything in or out. And there's enough ex-lawyer in me still to say it depends what you mean by "the Chaser team". Some of the guys have been working together again of late on commercial radio under The Chaser banner: they're really enjoying it so that may lead to other projects. But for me and for now, the projects that most interest me are CPDUI, Giant Dwarf theatre and things more in the vein of The Checkout. 

Why did Aunty can The Checkout? 

They'd say "budget cuts". I'd say, "because of misguided and inept ABC management, which is increasingly populated by executives with a track record of commitment to public broadcasting values which amount to little more than the title on their most recent business card and empty platitudes deployed as a smokescreen for poor judgment".    

What has been your most satisfying satirical moment? 

High on my list is an "Open Mic" stunt I did, calling for an entirely random and unexplained "minute’s silence" in a supermarket. I think you'd get different answers from others in The Chaser, but for me the most satisfying moment, predictably, is the stunt that went horribly right, the APEC Motorcade, because I think it made a fairly serious point in an very silly way.       

How do you unwind? 

Unwinding is not something at which I'm naturally gifted. But these days I do exercise most days with a poorly designed routine in a home gym while streaming video or listening to podcasts (mostly on the RN end of the spectrum). I've also developed a bit of a listening habit on the 10% Happier app: I like its sceptical low fuss approach, despite achieving results that are more modest than the name suggests. My kids are still quite young and are excellent, distracting fun, but describing that as "unwinding" may be a loving overstatement.   

What is in your refrigerator? 

Consumerist treats and the evidence of other family members' superior creativity and time management.  

What is your favourite website?

Probably The New York Review of Books online. It’s such a sophisticated cheat sheet. 

What words or phrases do you overuse? 

Almost all of them. Working on The Chaser and, especially, The Checkout has given me a strong sense of the virtue of simple, clear, purposeful language ... without increasing my ability to produce it.  

What is your greatest weakness?

Procrastination.

Why did you want to be a lawyer? 

I started studying law for mundane reasons but only really started wanting to be a lawyer when I had the great good fortune to be taught employment and industrial law by Professor Ron McCallum. Ron combines immense legal knowledge and prowess with an infectious passion for fairness in the workplace. He was an inspirational employment law teacher and gave me a great sense of vocation (as well as teeing up every job I ever had in the field) ... even though my legal vocation turned out to be quite distractable. 

If you were on death row, what would be your request for your last meal? 

Pasta a la Nembutal. 

If you were a foodstuff, what would you be?

Hard to digest. 

What human quality do you most distrust?

Ego.

What would you change about Australia?

Notwithstanding the recent boom in manufacturing of Prime Ministers, Australia has become a fairly successful and multicultural liberal democracy, especially by the world's declining standards. This has been achieved without the benefit of founding documents that inspire or even really articulate that greatness. I would like Australian liberal democracy to be better constituted. 

Who, or what, do you consider overrated?

Opera. 

What would your epitaph say?

Best Before:              .

What comes to mind when you shut your eyes and think of the word "law"? 

The words "justice" and "fairness" hovering in the background, quite a way separated from the word "law". 

The next instalment of CPDUI is on September 12: Who's the boss? The Gig Economy & Employment Law 

Former USyd law dean champions Indigenous law degree in Canada ... Juris indigenarum doctor ... Building trust over time ... Australian law schools yet to embrace the opportunity ... Asking tough questions about Indigenous legal orders ... Corporate support ... Nick Bonyhady talks with Jeremy Webber  

Killcare: where Canadian Indigenous law degree was hatched

Killcare Beach on the Central Coast of NSW is a long way from the University of Victoria in British Columbia. 

In 2004, John Borrows and Jeremy Webber from the UVic Law School were at Killcare when Borrows raised the idea of a joint degree in indigenous and Canadian law.

Now 14 years after conception, 25 students a year will study units like Canadian common law in intense comparison with a particular Canadian indigenous tradition. Webber told Justinian: 

"My colleague Val Napoleon is teaching property law. She's teaching it in comparison with Gitksan law, a people just inland from the coast of Northern British Columbia. Another colleague, David Milward is Cree from Saskatchewan, he's teaching criminal law, dealing with the way in which disruptive and antisocial conduct is dealt with in Cree law."

The students, who will spend one year longer at UVic than their counterparts in the pure common law stream, will emerge both with a juris doctor and a juris indigenarum doctor.

It will be taught in English, but incorporate a unit on the language and law of the Coast Salish peoples - giving students an understanding of how the two inform each other.

It is fundamentally different to the approach taken by Australian universities, including the University of Sydney where Webber was dean from 1998 to 2002. 

At an undergraduate level, Sydney University has one unit explicitly focussed on indigenous people and the law. That unit focusses primarily on how indigenous people interact with whitefella law - not on indigenous legal orders.

Webber explains that in Canada too, law schools have typically provided the "merest introduction to the fact that there are indigenous legal traditions". 

Webber: tools to interpret and develop indigenous law For Indigenous students Webber says that in many ways, it has been "an education in displacement" because students don't gain any skills in navigating their own legal traditions. 

This has consequences. He says:

"Certainly non-indigenous law doesn't have much currency in indigenous contexts ... or at least it's very much seen as being imposed externally. And frankly it doesn't do good work as law in many contexts."

Though there are important and notable exceptions, he says that when indigenous groups go to Canadian lawyers for help with governance documents ... 

"... frankly what they get from us is not all that different from a model that has been developed in a non-indigenous context, striking out the name of regional municipality and writing in the name of the indigenous community." 

The same is often true here.

But the purpose of the new degree is not to uncritically reify indigenous legal traditions.

Webber emphasises that a background of trust has allowed scholars and students at UVic to ask tough questions of Indigenous legal orders, including questions of gender relations and sexual orientation.

It is important that such questions be asked because the university sees the degree as equipping students with tools to interpret and further develop indigenous law.

"They're ... traditions that live in people attempting to interpret them, attempting to apply them, attempting to figure out how to have a child welfare system that works in communities."

The trust that has allowed the University of Victoria to launch this degree has been long earned.

For over 20 years, about a third of UVic first year law students have spent several days in indigenous communities.

Webber says it's often their "first experience speaking to an indigenous person, let alone living in a community". 

The law school also has a significant indigenous research unit, a large indigenous alumni base and student body - about nine percent of the current general law cohort.

It will hire more indigenous academics to teach the program and pay indigenous community educators for the time they spend with UVic students when they travel to communities as part of their studies for the new degree.

Two of Webber's respected Indigenous colleagues in the law faculty, Borrows and Van Napoleon, were central to the conception and development of the curriculum. Webber says: "It would have been utterly unattainable without them." 

Australian law schools are a long way from launching a program such as this, but the Canadian experience shows the value of building a good faith relationship over time. 

Contrary to what one might expect here, Webber says the project did not become politicised. 

"It was quite common that the people who worked in industry with the indigenous people themselves saw the value of this." 

He adds:

"As the question of support ... climbed up the ladder, I sometimes wondered whether scepticism also seemed to build." 

Webber suspects that the project's "transformative aspiration was worrying to some actors who when it came right down to it were quite comfortable ... with the relationship" as it stood.

Nonetheless, the program ultimately achieved a broad base of support. It is being funded through large private donations from an array of foundations - some tied to major companies - and deep public support from the province of British Columbia.

For large scale funding of indigenous education to be a fairly uncontroversial public good is itself a major step. 

The Gazette of Law & Journalism interviews Fairfax's editorial counsel Larina Alick ... The failure of the law to protect public interest journalism ... The uncontested rote of suppression orders ... Rebel Wilson and the assault on damages caps ... Getting the big stories over the line ... Cultural divide between judges and the newsroom

Larina Mullins: sitting on the right hand side of reporters

GLJ: Larina tell us a bit about your background first. How did you start off in this business?

LA: I started off with a combined Arts Law degree at the University of Queensland – I’m a Queenslander at heart – I majored in media studies in the Arts degree because I was always interested in the media, film, television and issues around that and I needed something to keep me sane while doing five years of Law. So I did film studies and journalism and these great topics that just fascinated me. But I couldn’t imagine them having anything to do with a real job. Then I worked in litigation for a few years.

GLJ: With a firm in Brisbane?

LA: Actually I came to Sydney initially and then went to London where I landed a job at the BBC in their litigation department which was pure media law and fascinating work, right in the middle of White City surrounded by their film studios and BBC World Service and things like that, which was amazing. From there I worked in two Boutique media law firms in the West End before coming back to Australia and landed the job at News Corp – I think I was there almost four years before starting at Fairfax in November last year.

GLJ: You were with Michael Cameron and his team at News Corp. So was that all the papers in News Corp …?

LA: At News Corp we didn’t do any legal advice for The Herald Sun or The Australian, they are really both based in Melbourne. We covered the rest of the country. And it’s much the same at Fairfax.

GLJ: How many papers do you do pre-publication work for at Fairfax?

LA: The number of mastheads is over 100 which is not as bad as it sounds. The vast majority of work I do is for The Sydney Morning Herald and The Australian Financial Review but I am also available for all the other papers and websites.

GLJ: Regional places?

LA: For Fairfax, other than The Age where the excellent team at Minter Ellison to do their legal work. So for the rest of the country from Perth to Brisbane, to Launceston and everywhere in between, I am covering the field.

GLJ: You are not looking at every article that they put on the front page?

LA: No. That wouldn’t be possible. They send me the things that they are worried about and part of my job is making sure that they know what to be worried about. So I am travelling the country providing training and having these sort of roundtable meeting with everybody, to hear what their concerns are and also to make sure they are aware of what the issues can be that are coming up especially with other papers. 

No paper likes to admit to anyone that they have made mistakes – it’s kind of my job to make sure we have that awareness across the business and where mistakes have been made, how they could have been avoided so that we can learn and get better, otherwise these things just happen and are forgotten. 

Where’s the evidence?

GLJ: How do you find journalists generally react to your advice or if you chop something out or you change their copy?

LA: They are generally very positive about it and they accept my advice without question which sometimes is a bad thing. I would prefer they tell me if there’s some background that I just don’t know. It can be very difficult when you’re looking at a story for the first time and you can only judge it by the words on the page whereas the journalist will have been working on this on-going saga for six months. They know the background, they know the detail, they know the evidence that they have should we need it to prove something’s true. 

So I try and go back to them before I change something and ask questions if I can, but a lot of the time if I do suggest a change they are very grateful for the help because they understand that my role is to help them, not to hinder them.

GLJ: Fairfax is concentrated quite a bit, particularly The Sydney Morning Heraldand The Age, on investigations – big and exclusive, dig, dig, dig, type stories. Do they present special in-depth problems for the lawyer?

LA: I think it’s the same problems but the way we approach it is different. So they’ll come to us when they are first pitching the story and we are involved from day one, and it’s a much more rewarding experience actually when you have those big long investigative pieces and you get to work with the journalist and you understand all of the evidence that we have, the witnesses when they come forward, the confidential witnesses – sources that won’t – the documents we have, the documents we might be able to get – under subpoena if we need them – those are the kind of issues we are looking at, really to look at a truth defence down the road.

GLJ: So you’re always looking at litigation ahead when you’re advising on a story?

LA: Yes, exactly. And that can be a very different approach to the journalists because they’re just trying to get us the information and try and find the story and try and understand the motivations of these people. I have a different approach, and I am trying to work with them on that.

GLJ: You’re thinking of evidence?

LA: I’m thinking about evidence almost always because we don’t have a great qualified privilege defence under Australian defamation law. The journalists are always talking about the public interest and I keep telling them it’s worthless to me because we just don’t have a defence for that.

GLJ: So you’re looking at truth?

LA: Almost always. 

Newspaper cultures 

GLJ: What are the noticeable differences between the work you were doing at News Corp and now at Fairfax?

LA:  There is definitely a different culture at Fairfax, which I quite like. I have to admit I didn’t enjoy legaling some of the opinion pieces at News Corp and that won’t be a surprise to anyone who knows me. I could name some names, but I probably shouldn’t. It was more challenging legaling those opinion pieces and walking away feeling good about yourself than it does at Fairfax. 

I find the people at Fairfax very professional – not that the journalists at News Corp weren’t – but they do have a level of responsibility that I find really inspiring. They are consummate professionals – day in and day out. And I work with two women mainly, Gail Hambly and Lisa Davies, the editor of The Sydney Morning Herald and they are impressive business people and very impressive professionals and I have enormous respect for the two of them. 

Also Michael Stutchbury and Paul Bailey at the Financial Review who have an impressive knowledge across their industries that I am in awe of. 

Wrong advice 

GLJ: Have you ever let something through that you shouldn’t have?

LA: Yes I have and I think any media lawyer who says they haven’t is lying. We are humans and we make mistakes and I know I have. The one that immediately comes to mind was that there was a story about a sexual offence in Queensland and a story came to me for legaling. I made sure that the victim was not identified, but the accused’s name was there in the story. And I legaled it and I cleared it. In Queensland, you cannot identify the accused until they are committed for sentence or trial. 

GLJ: So they’ve got to be committed.

LA: Yes, so they need to be committed for sentence – they plead guilty and they go for sentencing – or they have to be committed for trial. 

GLJ: Only then can you name the accused?

LA: Only then can you name them and it’s a very weird quirk about Queensland law, but that’s a statutory restriction. It’s a criminal offence under the legislation that we committed for about an hour. Because this was an online story and I cleared it and it went online. How many people saw it I don’t know and thankfully in the end that accused pleaded guilty so it doesn’t keep me up at night, but that mistake was made.

GLJ: Did someone ring you up and say…?

LA: No. I spotted it actually. Something in the back of my mind reminded me to have a look at it again later …

GLJ: These things can haunt you and it keeps nagging away. I think it’s the same with being a journalist. Invariably there’s a little thought nagging that you should go and double check something.

LA: Yes. But what does keep me up at night is how easy it is for a publisher to commit a criminal offence just by including a name or a detail or some reference to another case. It takes so little to have such serious ramifications. 

Fighting suppression  

GLJ: At News Corp I know you were doing a lot of going to court and standing up and challenging suppression or no publication orders. Do you still do that in your new role?

LA: I can occasionally do that but the vast majority of my work now is the pre-publication advice. And I knew that I had my eyes open that would be the case. It does feel like a compromise because I loved the advocacy side of that job. I think like any solicitor working in litigation you dabble with the idea of going to the bar one day, but that’s not where I am professionally or personally right now. This is the perfect role for me and what I can do.

GLJ: Victoria has just done a report on the Open Courts Act and suppression orders and now the attorney general has announced he is going to introduce some amendments to give effect to the recommendations. Do the recommendations look positive to you?

LA: I was surprised they are so positive. I thought it would be a lot weaker than the report has actually ended up being. I think the report is positive, whether those things are implemented I don’t know.

GLJ: Was there a cooling off period first in that all suppression orders were interim orders, which could be challenged? 

LA: Yes, any order will only be temporary until the media have a chance to oppose it. The difficulty is the media doesn’t have the resources to oppose every order. We’ve already seen more than 100 suppression orders come out of Victoria this year …

GLJ: Are they leading the tally?

LA: Yes, they are about three times the number of suppression orders in NSW.

GLJ: I wonder that is that. Is it a cultural thing?

LA: I think it is that the judges are used to making those orders so they don’t hesitate when they perhaps should. The defence lawyers and prosecutors are used to making these orders and it’s become a matter of practice.

GLJ: The other thing that seems to be a factor is that they’re easy to get because the judges never seem to give reasons for them, they just say ‘oh, s.8 of the Act and therefore have a suppression order’. If there was a requirement to give reasons it would be more powerful.

LA:  If only human laziness will save us – maybe that is what will make the difference – if they have to do more work to make the order. Suddenly the orders wouldn’t be so attractive. But the difficulty is …

GLJ: But there were never this many orders under the common law regime before the legislation came into being. 

LA: I think this is why, it gives the judges and the prosecutors and the defence lawyers a piece of legislation that says this order can be made. It then becomes this self-fulfilling prophesy that the orders will be made, no matter how many safeguards and requirements and hurdles you put into the legislation. There it is, let’s use it. And they have, hundreds of times a year.

GLJ: So is that the most vexing issue you face as a media lawyer? 

Threat to the damages cap 

LA: No defamation law is by far our biggest issue.

GLJ: And there have been some big cases with Fairfax as the defendant – some important cases. What areas of defamation law do you think need to be re-thought?

LA: The Rebel Wilson appeal will be very important.

GLJ: Damages?

LA: On the damages cap and everyone sees the multi-million dollar payout as the issue, that’s a special damages question that goes really to the evidence that supported that part of the claim. 

What is more concerning for every commercial publisher is the idea that if there is aggravation of damage that the statutory cap is waived, it doesn’t apply. What that does, and what that particular judge said was that publishing for the purpose of making a profit is an aggravating factor. That puts every commercial publisher in the firing line for an unlimited amount of damages and damages are historically …

So when there are aggravated damages the cap on general damages is disappears. So what has sometimes been used as setting a scale ..

GLJ: Is that the first time that has been applied?

LA: I think there was one previous low-level Victorian judgment that did it and so the judge in the Wilson decision was effectively following the other judge’s decision. But that goes against every other case that has applied the cap and referred to the cap since 2006 when it came into practice. And I think it’s in the Pedavoli case there was a reference to the cap and how that influenced the amount of damage that was awarded to Ms Pedavoli. That’s a standard practice in all of these cases, that the cap is referred to except – sometimes it’s for setting a scale, other times it’s rejected for doing that. But in general it’s still a relevant factor and the reason it was brought in was to try and give some kind of rationality to damages awards – to ensure we didn’t go down the American model where someone gets $120m  because a video was shown of them.

GLJ: Yes, there was meant to be some connection or junction for general damages for personal injury. Apart from the aggravated damages and the removal of the cap what other parts of defamation are of concern – you mentioned the public interest and qualified privilege defence … 

Unprotected public interest journalism  

LA: The qualified privilege defence is a real issue for news media because we are always running stories that we consider are in the public interest and not just interesting to the public, to use the old cliche. These are important stories that either involve public health or politics or companies that influence us in our day-to-day budgets – how it affects household budgets – these are big stories and big issues that these journalists are trying to cover. And I hate having to say to them, how do we prove it’s true because their answer back to me is, ‘Well I’ve got confidential sources, I believe it, I’ve got two sources who told me this, I know it’s right’.

GLJ: But the sources won’t give evidence so you can’t …

LA: Exactly. So what the qualified privilege defence should do is to say even if the story is wrong, if the journalist did their job reasonably in the public interest, the law will defend them. That’s how it should work, that’s how the Reynolds defence worked, but that’s not how the statutory QP defence here works. 

Here we’ve got like 20 different hurdles we’ve got to get over and routinely the news media fails and the judge can’t see why the entire Australian public has a right to be told this information that turned out to be wrong. That’s difficult for people who don’t work in the media to understand why we should have that kind of protection, but it’s important.

GLJ: It works in the UK, generally, it’s a much stronger defence there and the threshold to bring the action is higher.

LA: Their serious harm test in the UK is something every Australian media defence lawyer wants to be brought in here because it seems to have dramatically decreased the amount of libel actions in London. There may be other factors going on and I know the serious harm test is being tested itself over there now with the recent decision, I think it was around September last year.

GLJ: What was that case?

LA: I’m trying to remember the name of it but it was literally while I was there for the MLRC conference in London this decision came out. It basically said, like if the imputation is a serious one then the serious harm test will be met. So basically if they can construct an imputation that sounds really bad from the matter complained of, then that’s enough to meet the serious harm test.

GLJ: Serious harm?

LA: Yes, we’ll presume serious harm … It just flies in the face of how we’ve understood serious harm would work. How that affects the number of libel cases going forward I don’t know yet, but we still cling to that idea that we should have a serious harm test here. The triviality defence doesn’t go far enough to give us that kind of protection but we’ve seen frankly ridiculous claims about …

GLJ: The case has to get to court before a triviality test can be applied. 

LA: That’s right and it has to have no likelihood of any harm in the triviality test. Not serious harm, but any harm. So if they can show that one neighbour thought less of them and crossed the street to avoid them there we are. There’s harm.

GLJ: You work in print, online and with social media publications. Are there different sorts of requirements or different kinds of thinking for each of the platforms on which you are publishing? 

LA: Yes. When it comes to writing the story we don’t consider the differences very much. Usually, it’s the same content going out to the different media. But we are always aware of the fact that there is a one year limitation period for print, but an unlimited limitation period for online. 

So when we get complaints four, five or six years after the first publication about an online story, as a lawyer what you have to think about is whether there a compromise that can be reached that would avoid litigation and that usually means takedown. 

The problem for any newspaper of record is that when we start removing our stories from our online archive it deletes history. And so it’s something I’m keenly aware of, and certainly the editorial teams are always aware of, they will not rush to take material down, even though it means we could be sued over something we wrote five years ago and also our chances of finding the evidence we had five years ago is practically nil. 

How do you prove a story is true? Often the journalist doesn’t work for us anymore. It’s really difficult in those sorts of situations.

GLJ: It’s like the Chel case where the journalist had moved on somewhere else.

LA: Exactly. It happens all the time. 

Judicial animosity 

GLJ: Do you think there is some sort of cultural animosity between judges and juries on the one side and the media on the other? Is there a sense that the media needs to be kept in its place – it’s far too arrogant or whatever and courts are there to protect the public from the media.

LA: Yes. There had definitely been quotes exactly like that. There was a High Court decision where a judge was saying that the media shouldn’t get the protection to hide its confidential sources because it might just keep them more responsible. They should be aware of their responsibilities and effectively it was a big stick with which to threaten the media if they didn’t do their jobs responsibly. And that was from the 80s. 

That is the same line of reasoning we see in judgments time and time again. There is this idea that journalists should spend months on a story and there should be a team of 20 editors checking these things and double checking them and that they should have lawyers going through every single word and checking every document prior to publication, and if we don’t do all these things we are being irresponsible. 

There is a complete failure of understanding how a newsroom works and how journalism should be allowed to work. And these are responsible people who are not making up stories in darkened rooms. They work hard on their sources, they’ve cultivated their sources for years, they have great instincts on when to believe people and when not to, they are keenly aware of people who are biased and people who have an axe to grind. They are keenly aware of those kinds of issues. And that comes from years of trying to understand people and I have to believe that they are the best judge of whether these stories are true and whether we should run them. And I try and respect that as much as I can in my role to help them get those stories out. There has to be a way that those stories can be told to the public without us getting sued. 

Pixels 

GLJ: Another thing that baffles me is sometimes you see pixilations on a face in one story but in another publication or on television you don’t see the pixilation. So when do you decide to pixilate?

LA: It’s completely random. I wish there was some reason to it but there is just not. So much of that is about editorial decisions, not legal ones. Children’s faces will often be pixilated just out of respect for the privacy of children generally, regardless of the legal issues there. And of course, there are the Press Council’s standards that give them guidance on how to deal with those kinds of issues. 

But when it comes to a person accused of a crime often we’ll have the police telling us identity is not an issue so we can run the photo without pixilation. Maybe the other newspaper didn’t get that same memo. And they think perhaps there is an eyewitness who needs to know what that person looks like – remember what that person looks like and not pick it up from the media, you know like the Ivan Milat case where Who Weekly ran a picture on the front page, which was disastrous for them. 

GLJ: Yes Justice Hunt really climbed into them.

LA: Yes exactly. I think they got a $120,000 fine for that and the whole issue got pulped.

Those are the issues around pixilation, so we worry about children, children’s privacy generally. We tend not to be remotely concerned about adults’ privacy. Whether there is an identity issue in a criminal case – if there is a suppression order on someone’s identity – and usually there is very little guidance in the order about whether it’s just the name, or whether it’s also images of them, if they say the identity is suppressed we tend to take the broadest possible reading of that. And so we will start blurring faces, tattoos, even distinctive haircuts … 

The Trump effect 

GLJ: You sound like a great defender of a free and open press, which is important for our democracy. I would hate to think to think what life would be like without an open press, or a press controlled by the government,  even though some of it is pretty rancid. 

LA: About five years ago, we were in danger of losing all of our print publications and certainly at Fairfax that was a real threat for us. And bizarrely, part of the affect of the Trump presidency is people have more respect for the mainstream media now than they ever have. We are seeing an uptake in subscriptions and support from the public that we have never seen before, and part of that is because people realise that journalists do an important job and are a check on power and if they are not there no-one else is going to pick up that job. Online bloggers are not going  to fill that void.

GLJ: The online world is too atomised. It simply doesn’t have the aggregated power of print.

LA: Exactly. And to have decent investigative journalism takes time and money and you need to trust where you’re reading it from and with so much fake news that’s flying around nowadays you have to know can you trust the information you are being told and I think that’s where mainstream media is important and can still provide that public service that we need.

GLJ: Many thanks for your time Larina Mullins. 

Update from Australia House ... HE George Brandis sends Christmas greetings from The Strand ... Marvellous party ... 100th birthday for Australia House ... Bronze bust to be commissioned of HE ... London Diary ... And more 

HERE I am stealing a moment from of my frantic schedule to bring you up to speed with my duties and responsibilities as the Commonwealth of Australia's High Commissioner to the Court of St James's. 

Needless to say, the mammoth centenary celebrations for Australia House have consumed a portion of my vast energies. There has been the usual sniping about the expenditure to mark the occasion, but in every respect I can say, hand on heart, that the money has been spent, well and truly. 

HRH Prince Charles, the Prince of Wales, did the honours with a marvellous speech about his great-great-great-grandfather Ethelred The Unready, who opened the building in 1264. 

Liberal Party donor Anthony Pratt from the well-regarded cardboard family was among the honoured guests and he had commissioned a wonderful portrait of Prince Charles with a walking stick, donating it to mark the Prince's 87th birthday. 

There was a small suggestion that Anthony is inclined to commission a bronze bust of yours truly to stand in my official office to be admired by my successors as Lord High Commissioner. 

I have asked that either Rodin or Constantin Brâncusi be commissioned for the work and if they are not available then maybe Jeff Koons, one of my favourites, at least for his topiary. 

His Excellency the Governor of Queensland, Paul de Jersey, AC QC, was on hand to suggest a sub-tropical libation for the evening, with silver tureens filled to the brim with Pineapple Pol, his favour party punch. His recipe is here for those inclined: 

5 tins Golden Circle Pineapple Juice as required (large). 
15 egg whites, beaten into a fluff.
Half of bottle of Angosture Bitters.
A can of Ortiz anchovies, with oil.
5 bottles of Kahlúa.
2 bottles of Fanta (large).
5 bottles of cherry brandy (in honour of HRH).
Stir, never shake, serve in a wine glass with maraschino cherries.  

That soon had everyone dancing around and singing "God Save the Duchess of Cornwall, for she's a jolly good fellow".  

Naturally, such frolics are not the main game for the duties of a High Commissioner. I have been out and about promoting Australia and looking at new opportunities, particularly in the technology space, an area about which I have some intimacy ... as you can see here: 

Christmas beckons and I've invited Tim Wilson and his husband to join lonely old me at Stoke Lodge for some traditional plum pudding with sixpences. 

I hear on the vine that things are going well back in Canberra although several reports suggest that they are missing my firm but soft hand on the wheel. 

That's pretty well it for now. Cheerio.  

HE George Brandis QC and Bar

Australia House
The Strand
London
WC2B 4LA
UK

Opening hours 10.33am-11.49am (Tues, Wed and alternate Thurs). 

South Australian CJ Chris Kourakis makes a well argued case why new QCs should not be appointed ... It will weaken the independence of the legal profession, not enhanse it ... Judges oppose the bar's QC agitation ... Judges unlikely to facilitate any arrangement for monarchical post-nominals ... Kourakis' letter to the AG 

Kourakis QC Letter and attachments on Scribd 

South Australian CJ Chris Kourakis makes a well argued case why new QCs should not be appointed ... It will weaken the independence of the legal profession, not enhanse it ... Judges oppose the bar's QC agitation ... Judges unlikely to facilitate any arrangement for monarchical post-nominals ... Kourakis' letter to the AG 

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Tax deductions, gender discrimination and the US Constitution get a workout in On the Basis of Sex ... Ruth and Marty Ginsburg's great case, together ... Tenth Circuit bowled over by RBG's five minute final submission ... Breaching the legislative dam against equality ... Poor Player struts her stuff 

RBG: words matterLawyers as heroes - who would have thought? 

Well, Ruth Bader Ginsburg did, as far back as 1959 when she was one of only nine female students in her class at Harvard, then America's most prestigious and crustily male law school.

A new film, On the Basis of Sex, dramatises the luminous and brilliant early career of Ginsburg, one of the few remaining liberal voices on the current US Supreme Court, who at 85 is disinclined to step down while Trumpian insanity prevails in the White House.

Unsurprisingly, the film is directed by a woman, Mimi Leder, and is really one long feminist battle cry, albeit a skilfully acted and directed one (the usual Yankee hokeyness aside).

The screenplay, by Ruth Ginsburg's nephew Daniel Stiepleman, errs on the sentimental side, but to be fair, it's a sentimental tale of an extraordinary marriage based on (shock, horror), intellectual compatibility, mutual respect and love.

Even today's audiences might be stunned to find that right from the beginning, in cookie-cutter fifties America, Marty and Ruth ("Kiki") Ginsburg enjoyed a true partnership of equals. 

At home, he does most of the cooking (she's a danger in the kitchen) and shares childcare. He champions her intellectual smarts (she consistently tops her class) and together they prepare the case that will see the beginning of the end of gender discrimination laws in the US: Moritz v Commissioner of Internal Revenue. 

Interestingly, it's a tax case brought to Ruth Ginsburg's attention by Marty, a brilliant tax attorney in his own right, while she's working as a law professor at Rutgers University. 

Ruth ends up in academia, not by choice, but because no one (read male) will give her a job to practise law in New York, despite her academic credentials (she completed her law degree at Columbia University in typically stunning style).  

There's a terrific scene in which a young, feisty Ginsburg is interviewed by a middle-aged male partner in a less than top rank New York firm.

As she demonstrates her aptitude and passion for the practice of law, Atticus Finch style, he leers at her cleavage and finally tells her the firm is a "close knit" one and it couldn't possibly employ a woman because the partners' wives would "get jealous".

Hell hath no fury. And that's just this reviewer's reaction. The film is peppered with similar scenes of male entitlement drenched in disdain and in 2019 it guarantees the appropriate response - equal parts outrage and derision.

In fact, the main problem with On the Basis of Sex is that at times it sounds like one long feminist dissertation. More demonstration would have been better.

But I forget, this IS a film about the law, and as young Ruth says, "words matter".

There are plenty of them and the shape and content of the legal arguments, taken from court transcripts, are truly riveting, if that's your thing; it is your reviewer's.

Ruth, played rather well by Felicity Jones, has a way with words, as well as legal concepts. It's pure joy to let the fire of them engulf every legal scene she's in.

Her brilliance reaches its apotheosis in the US Court of Appeals, Tenth Circuit, where in 1972 she takes on the tax code which denies her client, a single man Charles Moritz, a deduction for the nursing care of his frail mother. The code, like countless other laws, strived to protect traditional marriage, where the husband went out to work and the wife stayed home and did the cleaning and darning.

Deductible care expenses could only be made by a woman, a widower, divorced person, or a husband whose wife is incapacitated or institutionalised. 

Ginsburg takes the dismissive reference made by the government's lawyer about "radical social change" as a launching pad to demolish 100 years of legal discrimination based on gender.

At five minutes 32 seconds, her rebuttal argument alone is worth the price of a ticket.  

Marty, played by the impossibly handsome Armie Hammer (last seen being impossibly handsome and homosexually entwined in Luca Guadagnino's film equivalent of a Norsca ad, Call Me By Your Name) is almost too good to be true. 

But he is true. In fact, all of it is. And that's a very good reason to see it.

On the Basis of Sex opens in selected cinemas February 7. 

Poor Player struts and frets upon the page, from time to time 

Yael Stone puts the cat among the pigeons ... Will Rush sue again? ... A confident and creditable performance ... The backstage role of Leon Zwier from Arnold Bloch Leibler ... Belittling women who have something to say ... Defamation, a mug's game 

Zwier with Norvill: sought to settle Rush v Telegraph

IT took Arnold Bloch Leibler partner Leon Zwier about six weeks to arrange the details of actor Yael Stone's Geoffrey Rush interview with The New York Times and the ABC's 7.30. 

He has been representing Stone pro bono and he also acted for Eryn Jean Norvill in unsuccessful settlement negotiations in the Rush v Daily Telegraph case. 

Would Rush sue again after Stone revealed her experiences with him while performing in Belvoir's 2010 production of The Dairy of a Madman?  

Zwier ensured that Stone has reinforcements with Dr Matt Collins QC giving advice and undertaking to appear in any defamation litigation that might follow the new allegations. He believed it was important that Stone come to terms with what happened and to tell her story openly, without fear of the consequences. 

In her interviews, Stone was strong, intelligent and clear. She would have been a compelling defence witness in the Telegraph hearings.

As it was, Justice Michael Wigney in the Federal Court excluded evidence for the defence from someone called "Witness X". In this sense, he preferred orderly case management over getting to the truth. 

A suppression order seals from the public the identity of Witness X and the nature and quality of his or her evidence. In light of these fresh public revelations it would make sense for that suppression order to be lifted. 

What Yael Stone has done is to show the contrived quality of defamation proceedings - the way issues become stilted and the evidence confined so that the court gets a mangled or partial version of the truth. 

Director Neil Armfield and actor Robyn Nevin gave particular evidence for Rush at the trial, restricting their observations to the 2015-2016 STC production of King Lear. They saw nothing "inappropriate" and denied the import of text messages, yet the theatre world was awash with stories about Rush's unwanted attentions directed towards young women. 

We have one narrowed down story for the court and an altogether different one for the theatre. 

A telling email from an STC manager, in whom actor Eryn Jean Norvill confided, told of the extent of Rush's reputation.  

Stone in her ABC interview said she had sympathy for Rush. The theatre world shaped his behaviour, allowed it, encouraged it and suddenly a lot of people stood up and said NO. 

It was a huge "gear shift" and unfortunately for Rush his foot was not on the clutch. 

Stone says Rush danced naked in front of her in the dressing room, "with his penis out", about 40-45 centimetres from her face; that he perved on her while she was in the shower; that he sent her escalating sexually provocative text messages; that he stroked her back at an awards night; and that he invited her to sleep with him. 

Yael Stone: said NO (pix NYT)

She was advised to try and manage the situation during her time performing as the Finnish maid to Rush's Poprishchin in Nikolai Gogol's Diary, but by the end of the season she had "never hated acting so much ... I couldn't wait for the show to be over".  

Rush denies the allegations, through his lawyers. He says Yael "has been upset on occasions by the spirited enthusiasm I generally bring to my work", but he never intended to distress her. 

According to Ms Stone, his intentions were directed to getting her into his bed. 

Following Monday night's TV interview, the Belvoir Theatre Co posted a note on its website: 

"In regard to the 7:30 Report interview on 17 December, we're upset that Yael has carried these years of anguish. Belvoir strives to have a safe and respectful workplace for artists, staff and audiences." 

The ABC asked the director Neil Armfield for a comment, but he didn't respond.  

The allegations by Eryn Jean Norvill, who performed with Rush in the STC's production of King Lear, were of a similar nature. The "inappropriate behaviour" included lewd gestures, unwanted physical contact, inappropriate comments, bulging of eyes and smacking of lips, provocative text messages, touching her breast and her back.  

Like Stone, Norvill felt intimidated and compromised "at the bottom of the rung" in a rehersal room "that was complicit". Norvill told the court:

"I felt threatened. Panicked. Yes, my panic levels shot up. I felt unsafe. And probably sad. I think Geoffrey's idea of friendship was different to mine." 

For Rush, Bruce McClintock and Sue Chrysanthou repeatedly insisted that Norvill was lying, although why she would do so was never adequately explained.  

Stone also said that Rush made her feel uncomfortable and compromised, yet as a 25-year-old in a working relationship with a much older star actor she did not know how to respond properly. 

Justice Wigney himself, appeared also to be caught in a time-warp. He was sceptical that Rush would enter the theatre bathroom to harass Norvill; he thought Rush would have to be a "contortionist" to touch her breast; that there was nothing provocative in describing Norvill as "scruptious" and "yummy"; and there was nothing "sinister" in Rush's text message that he was thinking of Norvill "more than is socially appropriate", accompanied by a winking, tongue-out emoji. 

He also thought that it was "bizarre" to claim that Rush would do anything for his sexual gratification that might undermine the emotional intensity of his performance.  

Rush sued The Daily Telegraph in an attempt to restore his reputation, yet he is unlikely to repeat the same reputation-restoring experience by taking on the ABC, The New York Times and Yael Stone for publishing these precise, confident and credible allegations. 

What emerges from Norvill and Stone is that Rush played the clownish sleaze, which was his cover for actually being a sleaze, and that no one did anything about it for years, until the objects of his unwanted attention stood-up. 

See: Justinian's three part series on the Rush v Nationwide News defamation trial: 

Oh, Geoffrey 

Oh, sweetheart 

Oh, Wigney 

Also: 

The New York Times: The cost of telling a #MeToo story in Australia

The ABC 7.30 interview with Yael Stone  

Richard Beasley SC is On The Couch ... Novelist and silk ... Until now he was ankle deep in the Murray Darling Basin Royal Commission, which reported on January 29 ... Last meal on death row ... Playing with a horse jigger ... Thoughts on water and life  

Beasley SC: one last bite

Richard Beasley was Senior Counsel Assisting the Murray Darling Basin Royal Commission throughout 2018. He has been a member of the NSW Bar since 1997, and through what many think was one of the world's longest typographical errors, he was appointed a "silk" in 2011.  

Richard is the author of five novels, the first being Hell Has Harbour Views (which was adapted for ABC Television in 2005). Hell, which was re-released in print in January, has been hailed as a "penetrating biography of our firm" by countless young lawyers around the globe.

It remains an uncredited resource for members of the Australian judiciary when giving speeches lamenting the scandalous expense of legal services, a matter that strangely failed to trouble many of them during the course of their careers pre-elevation to the bench. It, and Beasley's subsequent thrillers, are shortly to be made compulsory reading for any law graduate seeking a practicing certificate in any jurisdiction. 

Richard's other novels are The Ambulance Chaser, Me and Rory Macbeath, and his Peter Tanner thrillers, Cyanide Games and The Burden of Lies. He is currently working on his third Peter Tanner novel.

While his publisher insists the plot should not be given away, the novel commences with the mysterious disappearance of the entire executive teams of the National Irrigators Council, the NSW Irrigators Council, the Murray Darling Basin Authority, several bureaucrats from the Department of Water and Agriculture, and the entire Commonwealth Parliamentary team of the National Party.

Who has kidnapped them? Are they alive? If they're dead, have they gone straight to hell? If they've gone straight to hell, is it the worst part of hell? If it's the worst part of hell, is it hotter there than it's going to be in the Murray Darling Basin because of climate change? These are the big questions that this major work will explore.

Describe yourself in three words.

Angry. Pessimistic. Single.

What are you currently reading?

"Fifty Shades of Grey," by EL James. I'm trying to cheer myself up.

What is your favourite film? 

"Some Like it Hot." It's the first film that dealt with cross dressing, sexism, and the LNP's attitude to climate change.

Who has been the most influential person in your life?  

Che Guevara. He really knew how to ensure a just, quick and cheap trial for right-wingers, well before s.56 of the Civil Procedure Act.

What makes you frightened? 

Australia becoming a fair dinkum country, where if you have a go, you get a go.

Who do you most admire professionally?

Bret Walker SC.

What is your favourite piece of music?

"Strawberry Fields Forever."  

Why were you selected to be counsel assisting the MDBRC? 

1.I'm cheap. 2. I'm good company. 3.Irrigators don't scare me.

What is your favourite passage in the Royal Commission's final report? 

Grant Rigney, Ngarrindjeri Nation (owners of the Lower Murray), taken from the transcript of his evidence: 

"We want to reset these biodiversities and the ecologies in our country. We want to see our fish spawning as they once were, our animals coming back down to drink. Fresh quality water out of the Coorong, not this super saline stuff that we're living in today's environment. It's slowly dying. You can smell the impact of what's happening in the Coorong and people in the city don't get to see that. They live within their four walls and not seeing what degradation is happening to country. What happens to country happens to you. 

To me as a person, as a Ngarrindjeri, I am that tree, I am that rock, I am that plant. I cannot be separated from it. It is me and I am it. This is the difference in our societies; we don't see what others are seeing. Unfortunately, we have to live in this world where it's about capitalism, it's about economics. We are forced into that process. Yes, they are mechanisms that they tried to assimilate. We know the history, but we don't teach the history, we don't teach the truth in this country. We like to hide it. We like to keep it away. What we are trying to do is build our agency to build that truth. We have this process in Australia called reconciliation. What the hell is that? 

Me as a Ngarrindjeri, I don't need to reconcile with no person in this country. It's about non-Indigenous people reconciling with the First Peoples of this land. It's about telling the truth. Then we can actually have reconciliation as a people moving forward. We believe we have a pathway. If we have allocation of water we can reset the processes for our people. We can reset history for our people and this is what we're about, this is why we fight for it, because it's not just about Ngarrindjeri, it's about our community, and we know white fellas are never going to go away. How do we live in synergy with each other to have happiness? How do we live with our country and have happiness? We believe we have pathways to do that. We want to be recognised for our rights, our human rights, and we want to be recognised as Ngarrindjeri." 

Why does the word "Jesus" appear in the transcript? 

The Commissioner had interrupted me again. On this occasion, I had been allowed to ask the witness their name, but did not get to the part about their area of scientific expertise when he took over. I believe this may have been muttered under my breath about two and a half hours later. At least I haven't blamed the junior. 

What impact do you think the report will have? 

Can I get back to you after the March and May elections?

The politicians from Cockies Corner don't seem anxious to embrace the recommendations. How deeply are they in the pockets of the big irrigators? 

Apart from big irrigators, would anyone be foolish enough to make a large donation to them?

The NSW Premier Gladys Berejiklian said: "Of course I care about the fish, but can I be honest? I care more about people." Where do you stand on the fish versus people equation? 

The Premier is a much nicer person than I am. I prefer fish. Apart from Carp. Similarly, I much prefer the company of my dog to any human being. I've made this really clear on my Tinder profile.

If you were on death row what would you request for your last meal? 

Barnaby Joyce's testicles.

Do you have another book in the pipeline? 

I have a contract. Delivery to my publisher is due on 28 February. There is as much chance of that happening, as there is of the Murray Darling Basin Authority acting in accordance with the Commonwealth Water Act.

How do you manage the law-writing imbalance?  

I don't. See my answer to your first question.

You are also the Principal Member of the Racing Appeal Panel. Has that been an eye-opening experience? 

I took a 'jigger' (illegal electronic device) home once that was an exhibit. We had a lot of fun with it, but they should not be used on horses.

What would you change about Australia? 

The Prime Minister. Weekly. Until we get the right one.

What would your epitaph say? 

4,500 GL.

What comes to mind when you shut your eyes and think of the word "law"? 

Civilization. Just and proportionate punishment – which takes me to my last meal, and Barnaby Joyce's testicles.

Green Book, reviewed by Miss Lumière ... America in the 1960s ... The white working class tough guy on a tour of the South with a refined black musician ... What could go wrong? ... Food for thought ... "Motorist's guide for negroes" 

Driving Miss Daisy it ain't. 

And that's a blessed relief if, like this reviewer, you prefer your film fare with a little more substance and a lot more bite.

Green Book, "inspired by a true story", has plenty of political bite, as well as gigantic messy helpings of food – plates of Italian meatballs and clam linguine, handfuls of hotdogs and cheeseburgers and buckets of greasy Southern deep-fried chicken to chew on.

It's well known that one of the film's leads, Viggo Mortensen, who plays Bronx tough-guy Tony Vallelonga, rigorously stuffed his face for the role (no pun intended). 

It worked. He makes an all-too convincing working class Italian slob of Tony, also known as Tony Lip (for his "bullshitting", not his appetite).

On the road as a driver for one of America's first black pianist celebrities, the elegant and precious Dr Don Shirley, he continues stuffing himself, state by state.

And what a state the US was in, in 1962. 

The title Green Book refers to what was then the "negro motorist's guide" to places where blacks could "vacation without aggravation" i.e. the restaurants and motels that were "negro friendly".

Shirley, who was inveigled to abandon a classical music concert career due to lack of "acceptance" had deliberately opted to tour the Deep South with his modern jazz trio.  

As Tony asks in his thick-headed way "why?" The film answers that question, but it isn't the same answer that Shirley has given himself. 

That's both a strength and a weakness in the screenplay.

Co-written by Tony's son, the actor, writer and director Nick Vallelonga, the film rather too hastily promotes the idea that standing up for yourself in southern America was a sure-fire way to regain one's dignity as a black man.

James Baldwin (and your reviewer) beg to differ - it was more than likely a sure-fire way of getting lynched.

And the fact was, Shirley and Vallelonga were only released from a prison cell in Alabama - after an ugly altercation with the local constabulary - due to the intervention of the then US attorney general Robert Kennedy, a personal friend of Shirley's.

A case of the politics of reality overwhelming the unreality of film. 

But I digress. The film is also about two human beings finding their humanity.

Shirley's musical genius (and his courage) made him a pedant, an intellectual snob and a loner, qualities exquisitely conveyed by Mahershala Ali who was so luminous in Moonlighting.

While Green Book has all the usual road movie tropes - sweeping landscapes, an odd couple, pride and prejudice (both inside and outside the car), deception, danger and redemption - it also has insight and humour at both characters' expense.

It that sense it's an equal opportunity, politically incorrect film.

The screenplay doesn't baulk at portraying class differences or showing Tony and his Italian milieu as blatant racists who call black people "melanzane" and can't quite believe Shirley is Tony's "boss".

One of the most moving scenes involving the oddity of such as arrangement in sixties America occurs when Tony stops the gleaming sky-blue Cadillac provided by Shirley's record company for the tour alongside a field where poor black workers are toiling in the dust and heat. 

Tony steps out of the driver's seat and opens the back door for Shirley, meticulously attired in a suit. 

The workers lean on their hoes in a daze, mesmerised by this extraordinary vision (surely not the Vision Splendid) as Shirley himself seems to look through them to a future he's intent on creating. 

Nothing is said, and in a film full of both fine and ugly words, it's an eloquent moment.

There are several more similar moments in the course of two hours, as well a generous serving of cheese at the end.

Your reviewer won't spoil it all for you, but the final scenes involve yet more food, even for thought.

P.S. Needless to say, the music is brilliant.

Green Book is screening now. It has been nominated for five Oscars. 

James Baldwin doused in a layer of syrup ... US justice ... Where's Atticus Finch when you need him? ... Black lives, white injustice ... Love, politics and melodrama ... Miss Lumière reviews If Beale Street Could Talk 

If Beale Street Could Talk it might have asked why Douglas Sirk was directing a film based on a novel by James Baldwin. 

Perhaps the film's actual writer/director Barry Jenkins has watched too many movies from the so-called golden era of Hollywood to be able to fully realise Baldwin's visceral account of the way black Americans live and were/are treated.

He pays direct homage to Baldwin in the film's opening by quoting him onscreen: 

"Every black person born in America was born on Beale Street, whether in Jackson, Mississippi, or in Harlem, New York. Beale Street is our legacy." 

The trouble is Jenkins' Beale Street is saturated in heightened colour and soaked in soap. 

It's a real let down after Baldwin's skewering of prejudice in plain old black and white, shot through with merciless intelligence and humanity.

For most of this film Jenkins manages to turn the poetry of Baldwin's rage into mush.

He may have matured as a filmmaker technically since his beautiful, but painfully pretentious 2017 film Moonlight, but he goes soft at all the wrong moments, starting with the screenplay.  

In Jenkins' hands, Beale Street is a melodrama posing as a love story posing as a political critique.  

Inserting grainy black and white stills depicting white brutality towards "negroes" just doesn't cut it. 

And despite credible performances from the two charismatic young lovers - Kiki Layne as Tish and Stephan James as Fonny - it lacks, dare I say it, soul.

That should rightly be regarded as a cinematic crime for anyone taking on Baldwin and delivering him to the big screen.

Plot-wise, it's an old story - innocent young black man is wrongfully charged with the rape of a non-black woman and finds himself trapped in the jaws of the US justice system (thanks Harper Lee). 

In this case the victim is a Puerto Rican woman who picks Fonny out of a police line-up under, it emerges, some duress from a nasty local cop.  

There's no Atticus Finch in sight, although an Atticus would-be, a young Jewish lawyer from the Bronx makes a brief, thwarted bid for his moral mantle.

Tish is pregnant, both their families are struggling and the rape victim suddenly disappears. 

Facing the prospect of an endlessly delayed trial, Fonny, like so many young black men in the same situation, does a plea deal. 

The whole sad and sorry story is told by Tish in a knowing voice-over oddly at odds with the on-screen naivety of her character.

While their relationship is sensitively portrayed, particularly the lovemaking scenes, and beautifully acted, it somehow rings untrue.  

Perhaps it's the Sirk factor again. Most scenes have that syrupy quality of being on stage, rather than on screen.

To add to the overwrought visual mix, rich and creamy music by Nicholas Britell accompanies much of young lovers' interaction - the magnificent Nina Simone a notable exception.

Several of the supporting characters do manage to convince - Tish's father (Colman Domingo) and mother (Regina King) are terrific, but Fonny's "holy-roller" mother (Aunjanue Ellis) comes across as nothing more than a caricature. 

Which is bizarre for a film written and directed by a black man about black lives and white injustice. 

There is one scene in which captures the hope under the despair so common to Baldwin, in which Tish's mother counsels her riven daughter, rendering true Baldwin's fine words:

"Remember love is what brought you here. And if you trusted love this far, don't panic now. Trust it all the way."

It's a rare moment.

A comparison with Spike Lee's angry, inventive, hilarious and ultimately powerful recent film about US race relations BlacKkKlansman (also set in the sartorially bereft seventies and based on a book) reveals the intrinsic limp romanticism of Jenkins' script and direction. 

Perhaps it's telling that at the rich white man's party that is the Oscars, Jenkins' Moonlight won best picture in 2017.

It will be interesting to see if Lee's BlacKkKlansman will be allowed to do the same this year. 

Either way, If Beale Street Could Talk could have done with a lot more spike. 

Christmas Island reopening for business ... The lives of detainees laid bare ... Australian policy at its most primitive ... Miss Lumière reviews Gabrielle Brady's film Island of the Hungry Ghosts ... Trauma counselling curtailed by the dead hand of Canberra ... How we make them suffer ... From phosphate to fear 

After Prime Minister Scott Morrison's recent myth-making Christmas Island Medivac stunt, it's a relief to witness the reality, thanks to independent filmmaker Gabrielle Brady.

Her haunting portrait of the human cost of Australia's asylum seeker "policy", Island of the Hungry Ghosts, shot at a distance from the island's high-security offshore detention centre, is a breath of fresh air amid a sea of political expediency.

The film opens with an unknown man climbing a fence and running wildly though the jungle, his breath quickening into screams before exploding into one long howl of anguish. 

It serves as an apt metaphor for both our treatment of asylum seekers and your reviewer's response.

We learn later that this man, an escaped detainee, has plunged to his death from a cliff at the island's edge. 

No such fate awaits the infamous red crabs of Christmas Island, which are protected in their annual migration across the island's roads to the sea by a happy-go-lucky chain-smoking ranger.

The crabs, in their gruesome thousands, feature strongly in this disturbing film, which presents the island itself as a malevolent presence, home also to the restless "hungry ghosts" of Chinese labourers who toiled in the phosphate mines and who are buried in overgrown, unmarked graves.

We follow some of their descendants' efforts to honour them with offerings and prayers. 

Brady weaves these strands together via the compassionate lens of her close friend, Poh Lin Lee, whose work as a trauma counsellor for detainees becomes increasingly frustrated by an indifferent bureaucracy.  

Filming took place over four years and captured Lee's family life on the island and her response to the cruel and uncertain situation her patients find themselves in.

It's an intimate examination of the powerlessness of those who try to help the dehumanised.

These inhabitants are carefully nurtured on Christmas Island

We are reminded of recent laws that made it a criminal offence for doctors, teachers and counsellors to speak publicly about what they witness at Australia's detention centres.

Lee's counselling sessions with a number of detainees (brilliantly recreated with asylum seekers on the mainland) reveal why. 

They are raw and devastating. As one young man says:

"Hell isn't just fire ... it's seeing your family suffer, your friends suffer ... and not being able to do anything."

Another asylum seeker describes the utter feeling of hopelessness knowing that what happens next will only be worse than what has already happened.

Yet another speaks of sewing his lips together, and wanting to sew his eyes shut.

The detainees have become part of the island's "hungry ghosts", forever suspended in limbo.

If there can be poetry in persecution and eloquence in suffering, this is it. It had Miss Lumière squirming with shame.

Thankfully, Brady is no polemicist, preferring to let her camera (cinematography by Michael Latham), her sound (music by Aaron Cupples), and her subjects tell their stories. 

In one chilling scene, which Brady actually experienced on her first visit (as a tourist) to the island, we see Lee hacking her way through the jungle before coming to a hilltop clearing.

Spread out below is a great, grey collection of low-slung buildings, surrounded by barbed wire and massive lights - looking exactly like a concentration camp.

Island of the Hungry Ghosts is a passionate, important film, made with skill and empathy. 

It is beautifully composed and full of horror. Much like Australia's offshore detention policy. 

Exclusive to the Golden Age Cinema in Sydney and not to be missed.