Stephen Walmsley SC, former judge and author of The Trials of Justice Murphy is on Justinian's couch ... A vexed chaper in the High Court's history ... The man from Yass rakes through the historical ashes ... The Paul Flannery connection ... Issues with refrigeration 

Stephen Walmsley was born in 1946. He attended Yass Primary Schoool and later Canberra Grammar. His LLB came from the ANU in 1968 and he did articles at Allen Allen & Hemsley. For a time he was a solicitor at the mighty law shop. 

He returned to Canberra in 1971 and joined Macphillamy Cummins & Gibson, followed by nearly 20 years at the Canberra and Sydney bars. He took silk in 1997 and four years later was appointed to the NSW District Court. 

He has been an acting judge of the NSW and ACT Supreme Courts. 

He retired in 2013. Apart from The Trials of Justice Murphy he is the joint author of Professional Liability in Australia (Thomson Reuters, 2016, 3rd. ed). 

Walmsley: Lionel liked to help people

Describe yourself in three words.

Irritable, stern, lucky.

What are you currently reading? 

"All that Man Is" by David Szalay.

What's your favourite film?

Richard Linklater's "Boyhood". 

Who has been the most influential person in your life? 

My mother, who insisted on an education, most of which was had at the public schools in Yass.

When were you happiest? 

Getting "The Trials of Justice Murphy" published.

What is your favourite piece of music? 

Bob Dylan's "Knocking on Heaven's Door". 

Why did you write The Trials of Justice Murphy? 

The late Paul Flannery QC was my father-in-law. His involvement as a witness in the first trial created my interest. No such book had been written.

Do you think Lionel "did it" and if so why did he do it?  

I'd prefer readers decide for themselves whether he did it, but I will say that he liked to help people.

What is in your refrigerator? 

Lamb chops from Yass.

What makes you frightened? 

Politicians who listen to shock jocks.

Who would you most like to be with in a lift that has broken down? 

Obama. 

In your research about the Murphy trials what did you discover that was new to you? 

Much, but of great interest to me was that Malcolm Turnbull had once been such a lefty, going in hard for Murphy when writing for The Bulletin, receiving great praise for his work from Bill Hayden and the late Jim Cairns.  

What is the work of which you are most proud? 

"The Trials of Justice Murphy."

Do you miss being a judge?

Yes, which is why I still do some work as an acting judge.

What was the most interesting case you tried? 

As a barrister, a trade practices case about a man who claimed he had discovered the landing site of Noah's Ark. As a judge, a three months long disciplinary case about a doctor who made Basil Fawlty look well-mannered and competent.

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

Lamb chops from Yass, mashed potatoes, bombe Alaska, shiraz.

If you were a foodstuff, what would you be?

A Granny Smith apple. 

Who do you most admire professionally?

The members of the High Court.

What is your favourite book?

Rohinton Mistry's "A Fine Balance". 

What would you change about Australia?

Abolish state governments.

What would your epitaph say?

He died with a full refrigerator.

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

I wonder what's in my refrigerator. 

[See also speech by David Marr at the launch of The Trials of Justice Murphy.]

Holiday reading ... 2016 in many respects was a dispiriting year ... The cruel machinery of the criminal law caught up with a few notorious suspects ... Clumsy politics from the Commonwealth attorney general ... Even worse from the NSW government ... Sir John Kerr's tax dodge ... Synchronicity at the Federal Court ... Tasmanian fermentations ... Future for Brandis? ... Death at Runaway Bay 

Reviewers and archivists have fulfilled their annual duty by reminding us of the biggest moments of 2016 in politics, economics, the media and social mores. It’s this columnist’s solemn duty to reprise the highs and lows, big and small, of that other branch of government – lawyers and the law.

And what a year it was: great trials; the courts struggling to keep up; and citizens caught in the cruel machinery of criminal justice. Indeed, no sooner had the cell door slammed behind Eddie Obeid snr, than he wanted to be out of Silverwater and home for Christmas. It’s all been a terrible mistake and Eddie was been a victim of a miscarriage of justice.

His lawyer told the court of criminal appeal that the former politician needs bail because it would be a “tragedy” if he was subsequently acquitted after spending Christmas doing porridge. Plus, he’s ill and his crimes had no victims (unless you count the revenue of NSW as a victim). 

No Christmas cheer for Eddie. He will have to wait until March before the court hears his appeal against conviction and sentence. Still, it was an inspirational moment for every convict in the system who thought they too should be home for Christmas.

There was also another outing for prison greens on CCTV as inside trader Oliver Curtis made a lunge for Christmas freedom, contending that inside information was not really inside at all. It was barely even information. The judges were unmoved. The jury got it right. No plum pud for Ollie with Roxy.

The sentencing proceedings for Harriet Wran, daughter of former NSW premier, Nifty Neville Wran, were an altogether happier experience. On July 26, Justice Ian Harrison sentenced her to one year for harbouring, maintaining and assisting an associate, Michael Lee, after the death of a drug dealer Daniel McNulty. For robbery in company she got four years, commencing August 13, 2014 and expiring on August 12, 2018, with a non-parole period of two years, expiring on August 12, 2016. 

Since Harriet had been in prison for nearly two years she only had another 16 days in pokey for the robbery in company and accessory after the fact to murder.

It was interesting that the judge discounted the sentence because of “egregious articles” in the Daily Telegraph, including such gems as: “Nev’s daughter seeks get-out-of-jail deal in drug murder case” and “How I Ended Up in Hell” plus “Sex, drug binge after murder”.

Because of this “media discount” is it possible to imagine that prison sentences could be increased following flattering media publicity about an offender, i.e. a media penalty?

There were murmurings in Phillip Street as to whether an Indigenous offender or a disadvantaged citizen from the western suburbs, who faced similar circumstances, would have received as compassionate a sentence.

And who can forget the life sentence for murder handed down to two former coppers, Roger Rogerson, 75, and Glen McNamara, 57? They were after Jamie Gao’s 2.78kg of ice and one of the numerous lines of defence was that Gao shot himself in the chest, twice.

*   *   *

Generally 2016 was significant for the defenestration of a number of important institutions, including ICAC in NSW and the office of the Commonwealth Solicitor General.

First Law Officer, attorney general George Brandis, put Second Law Officer Justin Gleeson on a leash with a special legal services direction that required the written approval of FLO before any minister, department or agency could seek an opinion from SLO.

Among other things it seems FLO was upset that Gleeson had taken an independent view on Western Australia’s legislation seeking to reorder the carve-up of assets from Alan Bond’s failed Bell Group – a scheme which the taxation commissioner asked Gleeson to challenge in the high court.

A Senate committee has under investigation the nature of any cosy agreement between the WA Liberals and the commonwealth to run dead on legal issues arising from the Bell Act. Brandis denies knowledge of any agreement.

A majority of the same committee last year also found Brandis had misled parliament when he claimed to have consulted Gleeson about the legal services direction. At one stage the attorney suggested the SG had been in agreement with the new directive - in other words, mysteriously, the solicitor general wanted to be put on a lead.

Now we have a new solicitor general, Dr Stephen Donaghue, from the Victorian bar. Donaghue pitched up at the bar pretty much direct from his PhD, which was on the law of commissions of inquiry and royal commissions - and just in time to spend the first couple of years assisting the Cole Commission on the building and construction industry. 

His wife, Professor Carolyn Evans is the dean of law at Melbourne University, with her academic focus on the intersection of law and religion. Donaghue’s bar work almost exclusively has been for the commonwealth, state governments and agencies. He says he has appeared in over 40 high court cases, constitutional and non-constitutional.

*   *   *

Meantime, the NSW government put ICAC, the independent corruption fighter, on a short lead just after it made adverse findings about the fundraising activities of a brace of Liberal Party politicians.

Commissioner Megan Latham resigned as the Liberals and its upper house cronies passed amendments, replacing the commissioner with a three person outfit and putting a stop to public hearings, unless the chief commissioner and one other agrees that an enquiry should be open.

Effectively, it’s a way of exposing corruption in private. Three cheers from the usual carpet-baggers and log-rollers.

*   *   *

Kerr: Uncle Charlie

Historian Jenny Hocking in her book (The Dismissal Dossier) about the sacking of the Whitlam government by governor general Sir John Kerr reveals that Kerr went to extraordinary lengths to avoid tax on income from his memoirs, Matters for Judgement. Apparently, his tax free income as GG was not enough.

Law firm Allen Allen & Hemsley used an “Uncle Charlie Scheme” for Kerr – it involved a trust in the UK, a company in the Netherlands, a second company in the UK, and necessitated Kerr to fly to Hong Kong using the pseudonym “Mr Frederick King” to sign the paperwork.

Hocking describes the arrangement as “a triumph of legal chicanery over personal, and vice-regal, propriety”.

*   *   *

A certain amount of synchronicity crept into a memo issued to staff at the Federal Court of Australia. It was written by Darrin Moy, the court’s director of people, culture and communications. Previously he was general manager people and culture at Sydney Ferries.

In a bulletin to court staff about the enterprise bargaining position, he warned that the financial position is tight. There will need to be “productivity initiatives” and permanent improvements in “output”.

Moy explained what was happening with productivity and technology out there in the wide world:

Productivity can be seen across the economy. Years ago a top-of-the range laptop cost about $5000 and by today’s standards it would be an absolute brick. Current laptops run rings around what was possible years ago and now cost about $2000. Airfares are a similar story. Fifteen years ago, a flight from Sydney to Melbourne cost around $400. Then, you stood in a queue to check in, brought a magazine for entertainment and knew you’d be out of contact for the entire flight. Now, the average airfare is about $160.

Funny. It was precisely what Alan Joyce told readers of the Qantas Magazine that very month. You can see this remarkable example of synchronicity here.

*   *   *

The latest fermentation from former Tasmanian solicitor general Leigh Sealy’s Hobart brewery made a public appearance. It’s labelled “Nettle’s Best” in honour of High Court judge, Geoffrey Nettle.

The stout, described as being “for mature gentlemen”, was brewed as part of the festivities to mark the wedding of Victorian supreme court judge, Peter Vickery.

The “hard” water traditionally used in stout production, had to be tanked in from bores in Canberra. Nettle’s Best is described as slightly pungent on the palate with a penetrating nutty and dry after-taste and an aroma of old slippers.

*   *   *

On December12 , attorney general George Brandis was asked at Senate estimates about his future. Here is the exchange, from which various conclusions can be drawn.

Senator Murray Watt (ALP Qld): “So you don’t rule out taking on a diplomatic or judicial appointment?”

Senator Brandis: “I’m not at liberty to answer your question, senator.”

*   *   *

Meanwhile, the charade that is the section 18C “debate” proceeds, driven by people who have never before in the long history of the topic expressed the slightest interest in free speech.

That is evident because they have a slender grasp on what constitutes freedom of speech, confining it to the right to hurl unpleasant and hurtful remarks at racial or ethnic minorities.

A joint parliamentary committee with unhelpful terms of reference is charged with examining “freedom of speech in Australia”.

*   *   *

Death notice of the year goes to Dr Thomas Oettle, who died on October 2.

Oettle was known to many lawyers because he was former director of the NSW division of forensic medicine and as such he was the pathologist in-charge at the Sydney Morgue. His notice in The Sydney Morning Herald read:

“Late of Castra Place Double Bay, ran away to Runaway Bay, Gold Coast. Occasional father to Ingaret, Jess, Howard, Ruth and Tom; and possibly Catherine, Caroline and Debbie (we think!).” 

From @JustinianNews for Guardian Australia 

The rule of law is a fine thing and we should be grateful to have it when so many demagogues are on the loose ... Highs and lows of the judicial year ... Remembering Lionel Murphy, Tim Carmody and others ... Awe inspiring dirty linen ... Wig chaos in Victoria ... "Butt" squeezer Clarence Thomas at it again  

JUDGES are the unsung heroes of our governance. They slave to prepare reasons designed to keep citizens from each others throats, to keep the peace, and to be bullet proof against the slings and arrows of other judges higher-up the food chain. Somehow, justice and the rule of law ticks-over, even if unevenly. 

Inevitably the judicial finery does mask an amount of dirty linen, but nothing on the scale of last year's Tim Carmody affair in Queensland. Actually, the affair was reprised in a book of the same name sub-titled, "Australia's greatest judicial crisis". 

It later emerged that the former chief justice of Queensland was entitled to recover the legal costs of getting his lawyers to vet the book, plus his bills for the Right to Information case over what in Brisbane legal circles is known as the "fat fuck" tape.  

A spokesperson for the Queensland attorney general said:

"In general terms the Judicial Officers Indemnity Guideline provides for the state to cover judicial officers' legal costs incurred in civil proceedings, investigations or inquiries arising from the performance of their public duties." 

There was also the publication, in time for the Christmas sales, of former judge Stephan Walmsley's learned book, The Trials of Justice Murphy. The work was launched by journalist David Marr, who told a gobsmacked gathering that the former High Court judge was a "crook": 

"Stephen, congratulations. In the thirty years since these unhappy trials, we've made up our minds about Lionel. He was a crook. And the great truth your book points to in the most subtle way is that juries acquit, but history doesn't."  

However, it is to overseas that we should look for some really awe-inspiring dirty linen. 

Former Arkansas district court judge Joseph Boeckmann was indicted on federal fraud and bribery charges for allegedly granting lighter sentences to young male defendants in traffic and small criminal cases.  

According to the indictment, the judge dropped charges against nine defendants, whose ages range from 16 and 22, if they sent him nude photographs of themselves.  

It's alleged Boeckmann told defendants they could perform "community service". They were asked to call his personal phone number and arrange the terms. 

Texas country judge Joel Baker, who investigators say sent hundreds of sexually-charged Facebook messages to a woman, smartly resigned before any adverse findings were made against him.  

In Nigeria seven judges alleged to be involved in a bribery scandal were arrested. They included members of the Supreme Court, Federal High Court and Court of Appeal.  

It's claimed they gave favourable rulings in exchange for cash, corruptly secured government appointments, and assigned "lucrative" cases to other judges on the take. 

A raid on the "palatial home" of one of arrested judges revealed a fleet of fifteen exotic and expensive cars, including a Rolls Royce - but fortunately no whiff of sexual impropriety. 

*   *   *

In Victoria, comparatively trifling matters, such as barristers' wigs, excited attention. Chief Justice Marilyn Warren had issued an edict saying that judges should not wear wigs in civil cases. Apparently, this meant that barristers should similarly be unwigged. 

In court Justice Kevin Bell birched members of the bar who didn't get the message: 

"You are not showing, and neither are your colleagues, showing the respect that I expect of the Chief Justice from you and I want to record my profound disappointment that one, two, three, four, five members of this bar table have wigs on, though I applaud the strength of character of your junior who does not." 

Justice Bell added that he also felt "disrespected". 

A later judicial missive clarified the situation that a judge without a wig means that counsel must be wigless. 

Contrasting such clarity, the wig protocol of Victorian County Court judges requires advocates to at all times carry a handy ready-reckoner. 

*   *   *

In Canada a committee of the Judicial Council recommended that federal judge Robin Camp be removed from the bench. During a rape trial the judge asked the victim:

"Why couldn't you just keep your knees together? ... Why didn't you just sink your bottom down into the basin so he couldn't penetrate you?"  

Sensitively, he added that young women, "want to have sex, particularly if they're drunk ... some sex and pain go together". To show he had a real grasp of the issues during the trial he referred to the victim as "the accused". 

He told the disciplinary committee that his knowledge of Canadian criminal law had been "non-existent". 

*   *   *

Sadly, fresh allegations arose against US Supreme Court judge Clarence Thomas. During his senate confirmation hearings in 1991 Anita Hill alleged that Thomas sexually harassed her while working as his assistant at the Department of Education and the Equal Employment Opportunity Commission. 

Last year Moira Smith, 41, posted on Facebook that Thomas had repeatedly squeezed her "butt" and pulled her towards him at a dinner party when she was 24. She is now general counsel for Enstar Natural Gas Co in Alaska.  

Thomas said the allegation is, "preposterous ... it never happened". 

*   *   *

Back home, Adelaide barrister Claire O'Connor SC complained of octopus type behaviour from a male colleague. She posted on Facebook her concerns about the old guard's control of the South Australian profession, lack of gender equality and that she had been the "victim of serious infringements, once by someone who now sits on our District Court". 

The Advertiser picked up the story which didn't impress the local legal satraps who said: 

"We are concerned by the possible negative suggestions which a reader might draw from the post about individuals and key institutions within the administration of justice." 

*   *   *

Fortunately, the New South Wales parliament passed the Courts Legislation Amendment (Disrespectful Behaviour) Bill, which dealt with disrespectful behaviour towards judges, not disrespectful behaviour by judges. 

It provides for up to 14-days porridge for anyone who does something unpleasant, like not standing when a judge enters or leave court. 

Parliament swung into action after Milad bin Ahmad-Shah al-Ahmadzai, charged with car theft and attempted murder, refused to stand for Judge Gregory Farmer, claiming he's not subject to any higher order other than Islam.  

Members of parliament weighed in with the usual fertile contributions. Craig Kelly, Liberal MHR for Hughes, said:  

"Failure to stand is not only contempt of the court, it's showing contempt for our constitution, contempt for our democracy and contempt for the rule of law."  

Justice Michael Adams on the NSW Supreme Court was tickled with a feather by the appeal judges after they thought he interrupted counsel too frequently during a trial involving a dispute between mortgage lending company and two of its former managers.  

Some of the judge's interventions were "openly sarcastic or dismissive, or at least displaying scepticism and incredulity".

The overall impression was that Adams had "descended into the arena and adopted the mantle of advocate", which meant the proceeding had been, in effect, an inquisitorial hearing and procedurally unfair. Go back, start again. 

*   *   *

As if rising sea waters were not concern enough in Tuvalu, the locals were out on the street protesting a decision of their chief justice, who is also the Australian barrister Charles Sweeney QC. 

Sweeney CJ found that former prime minister Apisai Ielemia was ineligible to sit an a member of parliament because he was in breach of constitutional requirements. This enraged the politician's supporters who took to the streets demanding the CJ "go home". 

Will we see Rod Culleton's supporters out with placards and petitions if Justices Kiefel, Bell, Gageler, Keane and Nettle remove him from the senate? 

Screwball High Court judge in England threatens barristers over silk appointments following critical letter in The Times ... Court of Appeal says judge's conduct is "shocking ... disgraceful ... deplorable" ... Pannick stations 

Smith: bullying judge with a mustache

JUSTICE Peter Smith is a well known High Court judge in the UK.  

He was the one who put a secret message into his judgment in the The Da Vinci Code copyright case. He also had to step aside from hearing a case about price fixing for air cargo in which British Airways was a party. He had repeatedly bullied counsel for the airline over the quite separate issue of the temporary loss of his luggage on a flight from Florence to London.  

See: Emerald Supplies v British Airways 

His behaviour in the British Airways case prompted Lord Pannick QC, from London's Blackstone Chambers, to write an article in The Times, which gave Smith a good spray. It's worth reading, so here it is:  

"On July 22, 2015, Mr Justice Peter Smith stood down from hearing a complex commercial case in which British Airways is a defendant. The airline asked the judge to recuse himself after a dispute about what happened to the judicial luggage on a trip home from Florence. How we laughed. But the case raises serious issues about judicial conduct that need urgent consideration by the Lord Chief Justice ...  

The judge sent a number of emails to the chairman of BA complaining about the incident. He said there was 'plainly a deliberate decision to leave a whole flight's luggage behind'. He suggested that lucrative commercial freight may have been loaded 'at the expense of passengers who could go to hell at the expense of profits'. BA applied to the judge to recuse himself because the case against the airline that he was hearing raises allegations similar to those he was making, and conclusions similar to those he was asserting, in the correspondence.  

The transcript of the recusal application is extraordinary. Jon Turner, QC, for the airline, began by politely stating his client's concern. The judge intervened: 'Right, Mr Turner, here is a question for you. What happened to the luggage?' Mr Turner responded that his clients would deal with such a personal complaint in the ordinary course of business and not in these proceedings. The judge was not satisfied: 'In that case, do you want me to order your chief executive to appear before me today?'  

Mr Turner patiently replied (his submissions were a model of courtesy and focus in very difficult circumstances) that if the judge would permit him to develop his argument he would contend 'that that would be an inappropriate mixture of a personal dispute ...' The judge interrupted: 'What is inappropriate is the continued failure of your clients to explain a simple question, namely what happened to the luggage?' After a lot more of this, the judge reluctantly agreed to stand down from the case. He said that there were no grounds for BA's application but its 'attitude' left him with no alternative.  

There are a number of troubling features about this unhappy episode. First, the transcript repeatedly confirms what the judge refused to acknowledge: that his personal irritation (perhaps justified) was affecting his judicial responsibilities and made it impossible for him fairly to hear the BA proceedings. The judge said in his judgment that he wanted answers from BA simply because if there were an innocent explanation for the delayed luggage, then he could put the incident to one side and hear the case. But BA's concern was the strong allegations and concluded views expressed by the judge on personal issues similar to those raised in the litigation. In any event, if BA had offered an explanation for his treatment, was the judge to rule on its adequacy?  

Second, there is the inexcusably bullying manner and threats: 'What has happened to the luggage? ... I will rise until 12.45 and you can find out ... Do I have to order you to do it, then? ... I shouldn’t make any preparations for lunch because you are going to be sitting through.'  

Third, there are the judge's arrogant comments concerning the decision of the Court of Appeal in 2007 to remove him from an earlier case in which he had been unable to recognise that his personal interests made it inappropriate for him to sit in judgment. Mr Turner, QC, referred to the case for the legal principles. Mr Justice Peter Smith responded that he had 'no regret' about his decision, but 'plenty of regrets about the way in which the Court of Appeal went about their decision', but he was 'no longer surprised by what happens in the Court of Appeal'. That was a case where Sir Anthony Clarke, MR,  described Mr Justice Peter Smith's conduct of the proceedings as 'somewhat extraordinary' and 'intemperate'. Sir Igor Judge added that Mr Justice Peter Smith's conduct of the hearing demonstrated that he 'had become too personally involved in the decision he was being asked to make to guarantee the necessary judicial objectivity'. Mr Justice Peter Smith was not listening.  

On hearing about this latest episode, no one at the bar or on the bench would have said, 'What, Mr Justice Peter Smith? Surely not?' Litigants are entitled to a better service than this. The reputation of our legal system is damaged by such behaviour. The Lord Chief Justice should consider whether action to address Mr Justice Peter Smith's injudicious conduct has, like his luggage, been delayed for too long."  

Pannick: letter caused Smith to blackball Blackstone Chambers. Pic © Michael Waller-Bridge

Three months later the judge wrote to one of the two joint heads of Blackstone Chambers, Antony Peto QC:  

"I refer to our conversation a couple of weeks ago. I am disappointed not to have heard from you. 

The quite outrageous article of Pannick caused me a lot of grief and a lot of trouble. I will be taking that up with the requisite authorities in due course. 

You said that you would get back to me and you have not. This has meant even more trouble for me because his article has been used as the basis for several lay people to make complaints about me. Fortunately he has never appeared in front of me so his opinion is not worth the paper it is printed on. It has caused me great difficulties in challenging it but fortunately again I have letters of support from no less than 24 silks, 4 High Court Judges and 1 Court of Appeal Judge all of whom appeared in front of me and do not share his views of my abilities and the way I perform in court. Some of the letters have been extremely critical of Pannick's article. Others have commented adversely in terms I would not wish to print.  

The article has been extremely damaging to Blackstone Chambers within the Chancery Division.  

I am extremely disappointed about it because I have strongly supported your chambers over the years especially in silk applications. Your own application was supported by me and was strongly supported by me to overcome doubts expressed to me by brother judges concerning you. I have supported other people. It is obvious that Blackstone takes but does not give.  

I will no longer support your chambers please make that clear to members of your chambers. I do not wish to be associated with chambers that have people like Pannick in it."  

The significance was that two members of Blackstone Chambers, Ian Mill QC and Shaheed Fatima QC were before Justice Peter Smith in a wonderful case in which Janan Harb, the former wife of the Saudi King, sued the king's son, HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz.  

Both Mill and Fatima appeared from the prince at the trial. 

Mrs Harb in her youth was a great beauty, born in Palestine to Christian parents. In 1967 she moved to Jeddah where she met the future king. They were married in 1968 after she converted to Islam, but two years later she left Saudi Arabia and moved to the USA. She remarried twice, but was never divorced from Fahd. 

Janan Harb: chasing spare change from Saudi royals

Mrs Harb had struck hard times, subsequently being declared bankrupt, and was chasing £12 million and the transfer of two properties in Chelsea from the Saudi royals, which she claimed the prince had promised in return for her withdrawing steamy allegations about her marriage to King Fahd.  

She claimed the agreement was made at the Dorchester Hotel on June 19 and 20, 2003 and that the prince entered the agreement in a personal capacity, "in order to satisfy the promises and assurances given by King Fahd to Mrs Harb to provide for her financially for the rest of her life".  

Justice Peter Smith accepted Mrs Harb's evidence and found that a binding contract had been made.  

One of the grounds of the Prince Abdul Aziz's appeal was that because of the fallout from the British Airway's case, which resulted in The Times' article by Lord Pannick from Blackstone and the threatening letter by Smith to the co-head of the chambers,  and the appearance of two barristers from Blackstone for the losing side, Smith's conduct in the Harb case amounted to "apparent bias".  

The Court of Appeal (Master of the Rolls, Lord Dyson; Moore-Bick and McFarlane LLJ) rejected the bias ground, but in the process made some devastating remarks about Smith.  

In a letter to Mrs Harb's solicitors on February 12, 2016, Smith accepted he should not have written the letter to Peto QC. The Court of Appeal said:  

"It is difficult to believe that any judge still less a High Court judge, could have done so. It was a shocking and, we regret to say. disgraceful letter to write.  

It shows a deeply worrying and fundamental lack of understanding of the proper role of a judge.  

What makes it worse it that it comes on the heels of the BA baggage affair. In out view, the comments of Lord Pannick, far from being 'outrageous' as the judge said in the letter, were justified.  

We greatly regret having to criticise a judge in these strong terms, but out duty requires us to do so.  

But it does not follow from the fact that he acted in this deplorable way that the allegation of apparent bias must succeed."  

Having already found for the prince on other grounds the Court of Appeal didn't have to make a finding on  apparent bias, but was nonetheless keen to do so. 

Harb and future king, in happier times

The appeal judges said that Smith should have found there was no contract and that he was wrong on the argument about whether or not the prince was an agent for the king.  

"This was not an easy case to try, given that the principal witness on one side [Prince Abdul Aziz] declined to attend for cross-examination and the principle witness on the other [Mrs Harb] gave evidence that was far from satisfactory and inconsistent with many of the important documents in the case.  

We are not able to go so far as to hold the judge's findings of fact were contrary to the evidence, but we do consider that he failed to examine the evidence and the arguments with the care that the parties were entitled to expect and which a proper resolution of the issues demanded.  

We regret to say that in our view the deficiencies in the judgement are so serious that it cannot be allowed to stand and that the matter must be remitted to the High Court for re-trial."  

See: Harb v Prince Abdul Aziz

Mary Walker v NSW Bar Association ... NSW bar silk selection - where Franz Kafka meets Harold Pinter ... Debriefing conversations ... Protocol perils ... Popularity contests ... Bar council's struggle to get to grips with policy decisions  

JUSTICE Anthony Besanko's judgment in Mary Walker's case against the NSW Bar n' Grill on silk selection for barrister-mediators lays bare the bar's Kafkaesque decision making processes and the Pinteresque background chats between bar big-wigs and those cast into the salon des refusés (see below for full extracts). 

The judgment was attended by a media release from a PR firm acting on behalf of Jeffrey Phillips SC, who was acting on behalf of Mary Walker.  It was headed: "Senior & Junior Counsel, Clients - Be Concerned."  

We are told that Walker, who is a member of the bar council, is currently "considering her options".  

Reasons for rejection cannot be satisfactorily explored because the silk selection committee's work is mystic and confidential. Candidates are not permitted to know if the committee even properly understood the protocol, nor are they able to contest adverse remarks made about them.  

Walker: considering her optionsWalker does a massive amount of mediation work at the Supreme Court level and has been putting her hand up for silk for several years. She sought declarations and an order that the bar had breached the Corporations Act by conducting its affairs in a manner that is oppressive, unfairly prejudicial or unfairly discriminatory against a member.  

Besanko found that the issue of whether the senior counsel protocol applied to a barrister wholly or substantially engaged in mediations was not justiciable.  

The relevant silk selection protocols in 2014 and 2015 said that appointments as SC:   

"... should be restricted to practising advocates with acknowledgement of the importance of the work performed by way of giving advice as well as appearing in or sitting on courts and other tribunals and conducting or appearing in alternative dispute resolution, including arbitrations and mediations." 

This is followed by a whole pile of "essential criteria" which includes 6(g)(vi): "experience and practice in alternative dispute resolution, including arbitration and mediations." 

These provisions emerged from the 2010 Roger Gyles report on the silk protocol which led the bar council to decide:   

"... that the selection protocol be amended to clarify that the selection committee shall take into account experience and practice in mediation."  

Keith Mason, a former prez of the CA and a silk selector, also did a paper for the bar in October 2010. He said the selection committee was divided on what the protocol means when it came to barristers whose work predominantly consisted of doing mediations.  

Even though they might fit the description of "practising advocates" a majority of the committee said that mediator candidates still needed to show that they had "skill ... to a high degree ... in the presentation and testing of litigants' cases".  

Mason concluded:  

"The committee invites the bar council to clarify the protocol if it has been misinterpreted."  

In March 2011 the bar council resolved:  

"... that the protocol should be amended to make it clear that there is no reason why a barrister who practises as a 'pure mediator', that is, who sits as a mediator or in related ADR proceedings, should not be appointed senior counsel."  

Bar prez Bernie Coles also wrote in the Winter 2011 edition of Bar News that the protocol has been amended so that "pure mediators" can be silked. 

There was confusion when in 2011 the ABA's "national" uniform barristers' rules excluded acting as a referee, arbitrator or mediator from the description of "barristers' work". The NSW bar had adopted the ABA rules, sending Sydney mediators hopping mad.  

Mary Walker prepared a paper and the bar council resolved again to consider amending its rules to include mediators in the description of "barristers' work".  

There was a large amount of stuffing around for about 18 months until July 2013, when the NSW bar council decided to really get a grip on things and resolved to amend the uniform rules to include mediators and arbitrators in its warm embrace.  

Needham: feeling badBy May 2014 the council again pondered whether any amendments should be made to the 2013 protocol. Prez Philip Boulton said there was no need for further change since it was clear that "practising advocate" included mediators.  

But it wasn't clear to the SC selection committee. In 2014 Walker's application for silk was rejected - it was not even considered because the committee said that as a mediator she did not come within the protocol.  

At a rejection de-brief with president Jane Needham on October 2, 2014, Walker was told that, "the protocol needs to be fixed up to be clear about mediation. I feel very bad that this has happened ... You cannot disclose this, as what has happened in the committee is confidential."  

There followed more meetings and deliberators. The bar council's senior prefects on the executive committee had a big think about and in October 2014 came up with a memo that threw the previous understandings about the protocol and mediators into disarray.  

The executive said there were all sorts of other things to consider in deciding whether a "pure mediator" could be silked. In the end it thought that mediation/ADR was not a "specialist jurisdiction".  

More redrafting was called for and a guru from interstate was to be commissioned to find the right words so that barristers who practised substantially or wholly as mediators, with the necessary dollops of learning, skill, integrity, honesty, independence, diligence and experience, etc. could qualify for silk.  

Four months later that resolution was rescinded and instead they were going to seek senior counsel's advice on the position of mediators under the Legal Profession Act, the Bar Association Constitution, the Barristers' Rules and the Senior Counsel Selection Protocol.  

By now the bar council was in turmoil with over half of them wanting to toss out the protocol and restore the royal plumage of QC. There was open warfare between the conservative QC restorationists and the old guard (president Jane Needham, and the two vices, Noel Hutley and Arthur Moses).  

The monarchists met separately in what some described as an attempted coup, coming up with a heap of resolutions, which were dumped on an urgent council meeting as a fait accompli.  

See: Barbarians inside the gate 

Hutley: where's Noel?Bret Walker was called in and advised that these resolutions were invalid. The matter went back to the bar council and, at a meeting on May 14, 2015, two draft versions of the senior counsel protocol were considered.  

One was similar to the 2014 protocol while the other made substantial changes which made it clearer that those whose practices involved conducting mediations could be appointed as SCs. 

The 2014 protocol was adopted and it more or less seems to be the one still in place. 

In 2015 Mary Walker again applied for silk, having mediated in over 90 Supreme Court matters in the previous 18 months. This time her application was considered, but rejected on the merits. 

On October 7 that year she had an extraordinary meeting to discuss her unsuccessful application with Prez Needham and Michael Fordham SC, a member of the silk selection committee. She was told she needed to do more advocacy and that among the comments about her were that she "pestered people" and she had "difficulty influencing in large matters".  

When it came to the grunt part of the reasoning, Besanko said that the protocol was little more than a bar policy document. It did not give rise to legal rights and the interpretation of the protocol by the committee did not pose a threat to Walker's livelihood or reputation. He said:   

"No doubt disappointment, even great disappointment, attends the rejection of an application. Even so, it is not any economic interest or potential economic interest which is sufficient to justify to court's intervention ..."  

On the Corporations Law front, Walker submitted that the bar council's conduct was "oppressive, unfairly prejudicial or unfairly discriminatory". A protocol that included people who practice wholly or substantially as mediators and arbitrators was the express intention of the bar council, yet the protocol had been not been amended. 

Contentiously, HH thought it was up to the selection committee to interpret the SC protocol in any appropriate way and that bar council was not bound to give directions to the committee.   

"I am unable to see how the association or the bar council were bound by previous resolutions, let alone statements by its presidents, to approve a senior counsel protocol in a particular form such that a failure to do so was conduct within s.232 of the Corporations Act."  

Application dismissed. 

Rejection de-briefs

Mary Walker met president Jane Needham SC following the committee's failure to consider her application. This is Walker's unchallenged version of the conversation on October 3, 2014:   

JN:  What we are going to say to you is confidential. 

JN:  You will be unhappy about this. Your application was not considered. The Senior Counsel Selection Committee determined your application was not within the Protocol.   

JN:  The Protocol needs to be fixed up to be clear about mediation. I feel very bad that this has happened. 

JN:  You cannot disclose this, as what happened in the Committee is confidential. 

Noel Hutley SC was then sitting to my right. Noel Hutley SC expressed his regret. Jane Needham SC then said words to the following effect: 

JN:  I can understand if you are angry and I would not hold it against you if you were. 

JN:  Thank you for the approach you have taken and how you have conducted yourself. Thank you.  

The applicant had a second meeting with Jane Needham on October 8, 2014. Her unchallenged evidence as to the discussion which took place was as follows: 

JN:  Thank you for coming.  

JN:  We had an Executive meeting [of the Association] last night. We will deal with the issue regarding mediation practice by fixing the Protocol to make it clear that mediation is part of the Protocol.  

Mary Walker: This has been a running sore for 6-7 years and I do not have faith in the re-drafting. The Bar Rules also need to be amended to include mediation. This has been attempted on many occasions by the Bar Council. I have had this on the table for the Bar Council to remedy since 2011 and that should have been done.  Also in respect to this year's selection process a direction to the Senior Counsel Committee was required from the Bar Council as it was the Bar Council’s Protocol." 

JN:  The Protocol needs to be re-drafted. We need to obtain an outside draftsman. There is silk in Victoria, who we have heard has experience with this. The Protocol will be sent to him. This will be put to the Bar Council and a brief will be prepared. 

JN:  Drafting by committee is not often productive.  

MW:  Any re-drafting cannot include a discussion of whether acting as a mediator was part of the Protocol.  Street SC moved a motion to amend the wording of the Protocol in about April 2014 to make it clear that mediation was included and Boulten SC [the then President of the Association] stated that no amendment was required as it was included in the Senior Counsel Protocol. I have stated a number of times that this issue needs to be dealt with by this Bar Council [the 2014 Bar Council] as it is the responsibility of this Bar Council and has been reviewed by this Bar Council. 

MW:  The representation that my application was considered and failed needs to be rectified. The fact is that my application was not considered. This needs to be done. 

JN:  I have received a letter from the silks of 9 Wentworth Chambers.  I will now refer them to you. 

MW:  They have written to you as President of the Bar Association. That is a matter between you and them.  You will need to respond to them. 

Jane Needham SC repeated the need to re-draft the Protocol and Walker said words to the effect: 

MW:  I note what you say the Executive is going to do, but I reserve my personal position as I need time to think about it.  I don’t need long, but I need time overnight to consider this. 

Fordham: "I can't answer ..."There was a meeting the following year, on October 7, 2015, after the selection committee considered Walker's application, but rejected it. The meeting took place between Mary Walker, Jane Neeham and Michael Fordham SC:   

MW:  Where is Noel? 

JN:  He will not be present as he and I removed ourselves from the Selection Committee during consideration of your application. 

MF:  I am here because I was one of the Committee members. I know you, I regard you as a friend, Jane asked me to come to this meeting and I agreed to come. Your application was determined on merits. 

MW:  Jane, was a determination made as to what 'practising advocate' meant in the Protocol?” 

JN:  I cannot answer that. 

MW:  Michael, can you tell me if there was such a determination made?  

MF:  I cannot answer that. We had deferred any consideration of the meaning of 'practising advocate' until after your application was determined on the merits. Your application was not enough.  

MW:  What does that mean? 

MF:  You had no problem with 'integrity, honesty and diligence', but you failed to have sufficient support. 

MW:  What does that mean? 

MF:  I cannot answer that.  

MW:  Can you say anything further about that? 

MF:  You did not have sufficient support from the Bench and Bar.  The determination was skewed to the Bar. 

MW:  What does that mean? It's surprising. I have had a great deal of support in the past. 

MF:  I cannot answer that as it would breach confidentiality.  

MW:  This had been explained in the past at debriefing sessions. Does this mean that most of the responses were from the Bar and not from the Bench or were there negative comments or ...  

Jane Needham SC interjected by saying words to the following effect: 

JN:  Were there more responses from the Bar than the Bench? 

MF:  Responses from barristers were greater in number than those from the Bench, there was some support, but not sufficient. The criteria in the application were not sufficient.  

I had a copy of the 2015 Protocol with me. I handed it over to Michael Fordham SC.  He pointed to paragraph 6(g) of the 2015 Protocol and we had a further discussion in words to the following effect: 

MF:  Your application was not sufficient to meet 6(g).  

[See 6(g) here in 2016 protocol - same as 2015 protocol.]   

MW:  Are the criteria in 6(g) dealt with separately or together?  

MF:  They were dealt with separately. They were dealt with in totality and in individual parts. 

Michael Fordham SC then pointed to paragraph 6(g)(vi) of the 2015 Protocol and we had a further conversation in words to the following effect: 

MF:  You nailed it. 

MW:  Was there a focus on the last 18 months. 

MF:  Yes, that is what we had to do. 

MW:  Did you take into account all of the information in the application and the advocacy experience I had in the past?  

MF:  We did not discard anything. However, the focus was on the last 18 months. 

MW:  Were the modifications or exclusions in the Protocol and in the Senior Counsel Application and Guide in respect to ADR considered?  

As Michael Fordham SC did not respond, so I said words to the following effect to Jane Needham SC: 

MW:  Jane, can you answer this? You know that these modifications had occurred over the years in the Protocol.  

Jane Needham SC nodded in response. I then read the last sentence of paragraph 12 of the 2015 Protocol as an example as follows: 

MW: 'The details required in (a) to (f) may be modified in alternative dispute resolution matters or otherwise as confidentiality requires ...'  

I then said words to the following effect: 

MW:  There were other modifications in the Protocol, and the Application and Guide.  

Michael Fordham SC did not respond immediately and then said words to the following effect: 

MF:  ADR is seen along with everything else. All practices are focused. There are nuances of individual practices - they are all different. Every practice is a nuanced practice.  

I repeated my question about the modifications or exclusions in the Protocol and in the Senior Counsel Application and Guide in respect to alternative dispute resolution. Our discussion continued as follows:  

MF:  I can't answer whether ADR modifications were considered.  

MF:  There were 3 things I wanted to say in this meeting: first, there was no issue with integrity, honesty and diligence (without that you cannot go any further); second, support was not sufficient; and, third, your practice did not get there.  

MF:  Going forward, the criteria sets out [Mr Fordham SC referred to paragraph 6(g) of the 2015 Protocol] what you need to do.  

MW:  Can I please have more guidance?  

MF:  Appeal cases and more cases. Appeal cases are important.  

MW:  Do these need to be in the last 18 months or before.  

MF:  The last 18 months is an important aspect. I encourage you to run a few more cases and more appeals.  

MW:  Is this to be in the 18 months before the application? 

MF:  Yes.  

MF:  There needed to be a significant proportion of advocacy.  

MW:  Was the Committee made aware that I had commenced proceedings against the Bar Association?  

JN:  I cannot answer that. 

MF:  I cannot answer that. 

MW:  Can you give me some examples of feedback as to my capacity as a mediator?  

MF:  I do not want to divulge confidences.  

MW:  The comments need not be attributed to specific individuals. As this is a de-briefing session I would appreciate some feedback that I can assess and use to enhance my mediation practice.  

MF:  I will think about it and will respond later.  

MW:  I do not need distilled information, but the comments as they were stated would be useful.  

MF:  I can give you two comments: one was that you pester people. But that is part of the job of a mediator.  There is a mediator who just sits in a room and has lost a large part of their practice because of that. The other comment was that you may have difficulty influencing in large matters.   

MW:  I have mediated over 90 Supreme Court matters in the last 18 months. Is this a matter of those who made the comments not understanding the mediation process and an educative issue?  

MF:  We have to take them [their comments] into account. 

See: Walker v New South Wales Bar Association    

Choice cuts from Ian Hancock's biography of Tom Hughes, A Cab on the Rank ... A painful move from 11 Selborne ... Skyrocketing fees ... Great cases ... Lionel Murphy - "not an easy client" ... Diary observations of judges, barristers and bar etiquette 

Hughes and his biographer (Federation Press)

IAN Hancock's tour de force biography of Sydney bar lion T.E.F. Hughes QC takes us through the subject's comfortable beginnings, the war, the law, politics, and back to the law in a life replete with garlands and laurels.  

Hancock, an editorial fellow of the Australian Dictionary of Biography and historian at the ANU, who has made a career carving the lives of Liberal politicians in print, had access to Hughes' personal diaries and, just as importantly, his fee books.  

Hughes is one of those grandee heroes that the dormitory hothouse of the bar occasionally produces. That is not to say his life was always easy. For many years he yearned for the happiness his parents had found, but had eluded him.   

In the 1970s, with his marriage to Joanna Hughes failing, he pursued numerous glamorous women, including  Kate Weigall, PR impresario Deeta Colvin and actress Kate Fitzpatrick. 

Hughes proposed marriage to Fitzpatrick and she in turn described him as "sweet". She seemed far more smitten by Murray Gleeson, saying he was the sexiest man she had ever met.  

Michael McHugh told a bar function in 2013: "Poor Kate, she must have led a sheltered life."   

But Kate Weigall was a huge presence in Hughes' life. Relatively soon after they met she was named as a co-respondent in the divorce from Joanna.  

Weigall went to the bar in 1976 and at that stage Tom was chairman of 11 Selborne. In the following year he moved for her appointment to the next vacancy on the floor.  

This was approved by the board, consisting of Hughes, Doug Staff, Dick Conti, Simon Sheller, Vince Bruce and Jenny Blackman. Subsequently, when Hughes was absent from Sydney, members of the floor met and voted against her admission.   

There was much intrigue with another board meeting called to pass a resolution "as a mere formality" to accept Weigall's application. 

Frank McAlary told Hughes "this will be painful". Twenty members of the floor objected to Weigall's membership and wanted a rescission motion. Hughes though this "would be a distinct breach of contract and quite dishonourable".  

Dancing Frank McAlary: warned Hughes

McAlary said he was not interested in the legal position and at a subsequent meeting of the board he arrived in Hughes' chambers with a petition containing 18 signatories and two names typed, but not signed.   

Paragraph one read:  

"We take the view that it is contrary to the best interests of the Floor to allocate the next available room to anyone in advance, thereby denying the Floor the opportunity to select the best available applicant when the occasion arises."  

Nonetheless, the board voted two votes to one to admit Weigall to membership (Sheller and Hughes - for; Bruce - against; Blackman abstaining).  

Within a week Hughes decided to leave 11 Selborne and in a letter to Conti said:   

"Katie is close to broken: but I think that her inner strength will just pull her through and keep her at the Bar. There is, of course, no way of her staying on the floor and she is looking in other directions.  

It goes without saying that I am appalled and disgusted by the cruelty and injustice of it all ... I was naïve enough once to think that escape from politics would bring me back to a gentlemanly environment."  

Six of the petition signatories urged him to stay and said they regretted any misunderstanding. It was to no avail and Hughes moved to 16 Wardell in Martin Place. Hancock says that the floor was aware that Hughes, as chairman, "was not enamoured of participatory democracy" and later he accepted he bore responsibility for the "schism" at 11 Selborne.  

 A one man money machine  

Jolly John Gorton: questioned fee arrangement with Hughes

Hughes regularly had doubts about whether he could get enough work, but by 1977 he was busy and commanding fees of up to $1,500 a day. He also developed his distinctive court room manner, holding himself ramrod erect, standing side-on and staring at a fixed point towards the back of the courtroom as he peppered witnesses with questions. Another peculiarity was to stand with one arm outstretched, his hand raised, glaring at his fingernails. 

At a dinner to mark Hughes' and Chester Porter's 50th anniversary of admission to the bar, Ian (Hormones) Harrison said that the technique of staring towards the rear of the courtroom "has unintended consequences ... members of the public gallery often break down and answer his questions".  

In the defamation case brought in 1971 by former prime minister John Gorton against the ABC and the journalist Max Walsh, Hughes' costs were $2,150. Russell Fox in the ACT Supreme Court only awarded Gorton damages of $7,500, with the defendants to pay half his costs.  

Gorton was asked by his solicitors to confirm that Hughes had charged full fees or whether there might be a private arrangement regarding costs. In fact, Hughes was charging Gorton $250 a day compared to his usual rate of $500.  

Gorton was concerned and wrote:   

"Is it illegal, or unethical, or something, for us to pay you half the cost of your full fees, recover the other half from the defendants, and make some arrangement about distribution of the amount recovered?"  

The answer to that question was not found in the book.  

By 1977, when too many were wanting to hire this particular cab on the rank, Hughes quoted $3,000 on brief and $2,000 a day in court, which generally put them off. His usual rate was $1,000 a day and $3,200 for conferences and opinions. In 1977 he grossed just over $290,000 in fees.  

In August 1979 for the Leon Punch v Fairfax defamation case he received $18,700. On one day in that same month he entered an amount of $1,200 into his fee book and noted: "I need it all, because ... the bite of inflation into my earnings is unpleasantly noticeable."  

In 1979 Hughes went to the Privy Council, acting in a case for Fiji's Suva City Council. He was successful and received a fee of $40,000, as well as $200 a day living expenses.   

K.H. Gifford QC of the VicBar appeared in the Privy Council for the appellants, and Hughes had a very dim view of him:  

"Gifford is incredibly gauche: he is rude; he interrupts; he asks rhetorical questions; he gesticulates; he is thoroughly frightful and he sets my teeth on edge ..."  

While in England he went to Oxford with future son-in-law Malcolm Turnbull to a debate at the Union in support of the question: "That the private lives of public figures should be solely their own concern."

Clement Freud spoke against the motion and clashed with Turnbull. Hughes noted in his dairy, Malcolm "will have to learn the art of taking it on the chin".  

Aitken: lunch with Hughes

While in London, Hughes bought silver spoons and forks in New Bond Street, a new suit in Jermyn Street and lunched with Jonathan Aitken, later jailed for perjury in a defamation case he brought against The Guardian and Granada TV.    

All in all, 1979 was another bountiful year - Hughes received nearly $320,000 in fees, worth close to $1.5 million in 2014 money, and that did not take into account retainers from Packer, Fairfax and others.  

The following year his fee book recorded the highest amount he charged for a refresher - $2,700, and for most of the year he asked $1,600 a day in court, which edged up to between $1,800-$2,000 a day.  

Still, he was concerned about getting work. At one point he noted he did not have a case in court following the Easter break, "which always fills me with neurotic thoughts about what is happening to my practice".  

In the same week he entered $6,950 as payments for seven conferences and two opinions.  

For 1980, his fees were just shy of $400,000.  

Acting for former chief stipendiary magistrate Murray Farquhar in his criminal trial, Hughes negotiated $1,600 a day with $12,000 in hand.  

For Elizabeth Evatt's defamation case against Fairfax he collected a fee of $16,000. In 1984 he could charge $2,500 a day and two years later it was $3,000-$3,250, plus $5,000 for preparation and advice.  

By the end of 1986 he was regularly charging $3,000-$3,500 a day and 10 years later he could ask for $6,000. In 1996, when he turned 73, his fee books recorded total charges of $1,582,015 and he was never out of work.

In the the early 80s, his retainer from Packer was $50,000 a year.  

In the 1987 case he took for Robert Holmes à Court's Oil Basin Ltd in a royalty dispute with BHP, he was paid over $200,000 in fees and expenses between February and August that year. In 1988-89, acting for Last Resort Laurie Connell and Rothwells in the "success fee" case against Fairfax, and Young Warwick of the same name, he collected nearly $300,000, after total legal costs of $3.2 million.

By 2009, acting for Gina Rinehart in her action against Rose Porteous, Hughes was on $7,500 a day, rising to $8,500 and overall he collected $312,750 for the case, which ultimately was settled.  

Channel Seven had him on a retainer of $50,000, dating back to 2007 and Tom Hughes Jnr on $25,000, but that ended after the network lost the Mercedes Corby case in 2008.  

The briefs started to dry up after he turned 85. In February 2010 his diary recorded, "a very bleak start to the year".   

Enough about filthy money - Hancock has other delights in store.   

Lionel Murphy

Murphy: dumped Hughes, twice

Hughes acted for Lionel Murphy before senate committees investigating the "my little mate" affair, in the High Court on a constitutional issue and before the Court of Appeal where he succeeded in getting a new trial for the High Court judge after he was found guilty of perverting the course of justice.  

When Murphy was appointed to the High Court in 1975, filling the vacancy created by the death of Douglas Menzies, the Victorian bar was apoplectic and debated this motion: "it is essential that positions on [the High Court] should be offered only to persons who are pre-eminent within the legal profession and whose fitness for office is not a matter of public controversy."   

The motion was defeated 188 votes to 64. Garfield Barwick also disliked the appointment, telling Gough Whitlam that Murphy was "neither competent nor suitable". However, the chief justice contacted Hughes, who was then president of the NSW bar, and said that any protest action would be inappropriate.  

Hughes accepted this and made a warm speech of welcome at Murphy's swearing-in, quoting Dangerfield's The Strange Death of Liberal England: "It could not be said of Your Honour that, like Asquith's Liberals, you advanced upon reform with noisy mouths and mouse-like feet."  

VicBar chairman Richard McGarvie read Hughes' speech to his council.  

By 1984 Murphy was in trouble following publication of The Age tapes, where it was alleged that the High Court judge had been recorded talking to his friend Sydney solicitor Morgan Ryan, who faced charges of forgery and conspiracy.  

Clarrie Briese, the NSW chief stipendiary magistrate, came out and said that on two occasions in January 1982 Murphy had tried to influence him into intervening with the magistrate in the Ryan committal. This culminated in the famous question that Briese said Murphy asked him: "And now what about my little mate?"  

Hughes had been a contemporary of Murphy's at law school and had appeared against him in the Charlie Oliver v Alan Reid defamation case - but he was "not an easy client".   

Before the senate committee Hughes attempted to demolish Briese's evidence as well as submitting that parliament didn't have the power or jurisdiction to determine whether a federal judge was guilty of misbehaviour. "Proved" misbehaviour, he said, "lay within the ambit of the judicial power of the Commonwealth and nowhere else".  

The senate committee tabled its report on August 24, 1984, with findings split along party lines. Another senate committee was appointed with Theo Simos QC assisting on points of law. This committee was allowed to examine and cross-examine witnesses, and it had new evidence from Judge Flannery of the District Court, who said Murphy had referred him to a recent High Court ruling on conspiracy two days before he was to preside over the Ryan trial.  

Hughes grilled Briese, and Janet Hawley in The Age reported that he, "poured on withering righteous indignation with long sweeping stares around the room, as Mr Briese looked uncomfortable or downright annoyed ..."  

Murphy declined to appear before the second senate committee, and privately Hughes thought that was a mistake - he should have used the opportunity to confront and quash Briese's allegations. Three members of the committee reported that on the balance of probabilities Murphy had tried to influence the committal proceedings against Morgan Ryan.  

DPP Ian Temby announced that Murphy would be charged with two counts on attempting to pervert the course of justice.  

On February 8, 1985 Hughes and his wife Chrissie attended a dinner thrown by Sydney socialites Snow and Georgie Swift. Gough and Margaret Whitlam were also there, and Hughes' diary reads:  

"Everyone was sparkling, the conversation rolled at breakneck speed. The food and wine were perfect. Pink Bollinger before dinner. Gough agreed with me that Murphy is a graceless person."  

Murphy had decided to use Alec Shand for his trial. On July 5, 1985 a District Court jury found the judge guilty on one count, relating to Briese's allegations.  

There was an unsuccessful High Court challenge on whether legislation vesting federal jurisdiction in state courts was valid and here Hughes was back in the case for Murphy, but led by Maurice Byers. There were 21 reserved questions of law for the Court of Appeal and 19 grounds of appeal against conviction. 

It was submitted that Murphy never used the word "mate" and that if he had asked the question in French it would be legitimate to show that the High Court judge didn't speak French. Street CJ asked Hughes to put the question in French, which he did: "Eh bien, Clarrie, et maintenant comment va mon petit copain."  

The Court of Appeal (Street, Hope, Glass, Samuels and Priestley) ordered a retrial, and again Murphy dumped Hughes, hiring Ian Barker. The judge was acquitted April 29, 1986. More allegations surfaced and a parliamentary committee of three retired judges was appointed to inquire further into 14 matters, but the investigation was abandoned after Murphy died of inoperable cancer.   

Hughes wrote to Murphy's widow, Ingrid:  

"For all of you the unjust ordeal of the past three years has been a journey through the darker extremities of human experience. Yet you and Lionel bore it with consummate dignity, a quality equalled only by the courage and endurance which marked all of you during a period of stress which no one should have undergone.  

I shall always have fond memories of Lionel. Although we spent the major part of our respective careers on opposite sides of one fence or another, there was never any rancour, indeed there was nothing but essential comradeship between us.  

I counted it as a very considerable honour to be asked to appear as his counsel at several stages of his trial by ordeal."  

A different someone from the "graceless person". 

Scratchings in the diary  

Barwick: advised not to sue David Marr

Some of Hughes' diary observations about judges, other barristers and the bar are interesting. 

The architect John Andrews and his company brought defamation proceedings against Fairfax and other newspapers for claiming a building he designed in Canberra leaked "like a sieve".  

It went to the Court of Appeal, which ordered a new trial to assess Andrews' personal damages which at $300,000 it thought excessive.  

Hughes observations of the appeal judges, Frank Hutley and Harold Glass, went like this:   

"Hutley cannot stop talking [and] Glass joins him in cross-interruptions. [They] try to ape the High Court by resorting to the Socratic dialogue; unfortunately they are an intellectually inferior breed of judicial monkey."  

Elizabeth Evatt, the chief judge of the Family Court, sued Fairfax over a Sun-Herald article, that accused her of controlling the destruction of fathers' and children' lives "with the same cold-blooded efficiency that Ilsa Kuhn and her like used in disposing of Jews in Auschwitz and Belsen".  

Hughes appeared for Evatt and the Melbourne QC Neil McPhee for Fairfax. Hughes had been on a retainer with Fairfax, but because McPhee was briefed in his stead he told the company's solicitor, Graham Bates at Stephen Jaques & Stephen, that he felt he was free to take work against Fairfax. When told of this, Bates replied, "Oh God." 

The diary records that McPhee's cross-examination of the chief judge was "rugged and full of sneers". Evatt broke down in tears while McPhee was trying to extract an admission that her hurt was "contrived".   

Hughes wrote that McPhee's manner of conducting the case was, "completely attuned to the taste of the wild men of Jones Street [Fairfax's headquarters]. I could never conduct a defence to this kind of case in the same way."  

McPhee's final address, which lasted just over two-and-a-quarter hours, "was not lacking in misrepresentation, particularly inasmuch as he stated that I had sought to protect the plaintiff from hard cross-examination on the grounds that she is the chief judge of the Family Court".  

Garfield Barwick also sought Hughes' advice about David Marr's biography of the chief justice. Barwick didn't want people accepting Marr's version that he had "instigated Kerr's action" against the Whitlam government. He feared that this claim, "even though made by a person perhaps of little worth", would get wide circulation.  

Hughes said he would represent Barwick without fee, but advised against legal action. Hughes believed that Barwick had "erred in principle" in advising Kerr in November 1975. He though the advice was "legally unimpeachable", but added:  

"No judge in whom the judicial power of the Commonwealth is vested should participate in any way in the exercise of executive power."  

He noted that it was fortunate there was no legal challenge to Kerr's withdrawal of Whitlam's commission, as Barwick (and Mason and probably Murphy) would have had to disqualify themselves.  

Finally, Hughes and Bob Ellicott, in 1991, circulated a letter to all members of the bar deploring the emergence of "tickets" for the coming bar election.  

Whoever would have imagined such a thing! 

In his heyday, Tom Hughes QC had a flourishing defamation practice ... Big publishers and broadcasters ... Celebrities and sportsmen ... Trips to the Privy Council ... All attended by Hughes' trademark flourishes, piercing glares and withering cross-examination ... Ian Hancock in his biography of the great brief delves into Hughes' personal diary for some up close comments on cases, clients, judges and other barristers ... Defamatorium 

Hughes: "high, wide and handsome"

Gorton v ABC; Punch v Fairfax, Lloyd v David Syme, Austin v Daily Mirror, Seidler v Fairfax, Makim v Nationwide News, Carson v Fairfax, Ettingshausen, Rivkin, Mercedes Corby ... what a great sprawling life Tom Hughes QC had at the defamation bar. 

In Ian Hancock's biography of Hughes, A Cab on the Rank, it is the defamation cases that take up the bulk of the barrister's courtroom history. 

In the process Hancock gives us revealing extracts from Hughes' personal diary and his fee book - insightful asides on judges, barristers and clients, such as:  

"I do not enjoy working for Fairfax [emphasis in the original]. What a difference between the close rapport I have with Packer, when I am working for him, and the distanced relationship with the Fairfax people - they are, as I described them in my Punch address last week, a stiff-necked mob." 

The happy relationship with the Packer organisation ultimately soured when Hughes' retainer was not renewed. 

He wrote that while engaged by Fairfax in a case brought by Labor MP Tom Uren settlement became urgent when Uren entered the courtroom and the jury panel waved and smiled at him. At that point there was nowhere else for the defendant to go but cough-up. 

The Sydney Morning Herald in an editorial of April 3, 1975, just before the fall of Saigon, had accused Uren of being a racist and a traitor. 

Hughes acted for plenty of politicians and one of the most newsworthy after he left parliament was in 1973, taking up the cudgels for his friend and former prime minister, John Gorton, in an ACT case against the ABC and Max Walsh. 

Walsh was interviewed by Richard Carleton on TDT in relation to a developing crisis for the Gorton government, where he effectively accused the PM of dishonesty and falsehood. 

It was a big case. Murray Gleeson appeared with Hughes for the plaintiff, Jack Smyth QC for Walsh and J.T. Hyatt QC for the ABC. 

In a hearing that went for six days Hughes argued for compensatory and aggravated damages, but the outcome was a disappointment. Justice Russell Fox found only one of the imputations arose and there was "some slur" on the plaintiff's character. He awarded the former PM just $7,500 and half his costs. 

Hughes also took a case for the NSW premier, Sir Robin Askin, whom the union official Jack Mundey sued for defamation. Mundey claimed that Askin had described him as "vermin" at a Liberal Party rally and that the unionist favoured violence. There was this exchange in cross-examination:

Hughes: When you say you abhor violence with guns and pick handles ...

Mundey:  ... including cricket bats.

Hughes as a minister in the Gorton government had threatened anti-Vietnam war demonstrators outside his home in Bellevue Hill with a cricket bat. 

Jack Mundey when the BLF and the greenbans were in their prime

Mundey also told Hughes that Vietnam was a place "where you sent conscripts to die". 

The jury found for the defendant and Mundey's appeal was dismissed by Moffitt, Reynolds and Samuels. 

There was also the case in which Hughes acted for the NSW National Country Party leader Leon Punch who sued the SMH and AAP in 1979 over what these days seems like a complaint that politicians regularly endure. 

It was reported that dairy farmers who were excluded from the milk quota had called for Punch's resignation as leader of the party.

The story was a tip-off came from Opposition leader Neville Wran to reporter Gordon Hunter. There was to be a big meeting of dairy farmers at Bega at which it was expected that there would be a call for Punch to resign as party leader.

Hunter wrote the story in advance of the meeting and as a consequence of internal mishaps at the paper it was not "held" pending verification. Consequently, the published report was full of mistakes. 

The case commenced in the Federal Court in Canberra and Hughes opened "high, wide and handsome, which pleased the client and those with me". 

Alec Shand appeared for Fairfax before Justice Douglas McGregor, of whom Hughes wrote: 

"Really Doug is a nice well-intentioned but blinkered and inept lawyer. As a judge he is as disappointing as he was at the bar. But so well-intentioned."  

David Levine described a Hughes-Shand contest as, "gladiatorial advocacy at its best: you know, blood on the wall and one would be down and fight his way up, and the other would do down and fight his way back". 

In his closing address Hughes said Fairfax and AAP had adopted "the mask of the cynic ... the cynic with the sneering smile ... an ocker attitude that politicians were there to be knocked... it does not matter what you say about them". 

It had emerged during the case that there had been a motion at the Bega meeting, which was defeated, calling for Punch's resignation as leader of the National Country Party. 

Hughes also noted that Shand had cross-examined Punch "not very well". 

McGregor awarded Punch a total of $27,250 ($18,860 against Fairfax and $8,660 against AAP), accepting Hughes argument that politicians are entitled to equal treatment under defamation law. 

The Full Court dismissed an appeal, making the curious observation that it was defamatory to write that a political leader had lost the confidence of a significant number in his party who called for his resignation. 

Barwick: very chatty

One other interesting judicial aside recorded by Hughes in his diary was from a lunch at the Australian Club on August 24, 1979 where Chief Justice Garfield Barwick was "his usual ebullient self & very chatty" and declared that any statement concerning a person and injurious in the sense that it was likely to cause loss, should be actionable, even though it did not reflect on the person's reputation. 

Privy Council

There were two famous defamation cases that Hughes took to the Privy Council: Clive Lloyd v The Age and Reg Austin v The Daily Mirror. 

The Age, on January 21, 1982, published a piece by an English-born journalist David Thorne about Packer's World Series Cricket. It suggested that the West Indies cricket team, captained by Lloyd, had taken a dive in an earlier match in order to avoid playing Pakistan in the finals, which would have meant crowd numbers, TV ratings, gate revenues and sponsorship would all have been well down.

The better option was to spread the series out to a full five games to maximise the ratings and the revenue. 

Hughes who was on a $50,000 a year retainer with Packer's interests took the case for the plaintiff with Michael McHugh QC for the newspaper. 

At the trial Hughes was typically high-blown. The allegations were "filthy ... atrocious". It was a "disgraceful piece of journalism". Lloyd had been defamed "in a horrible and horribly serious fashion". It would be difficult "to imagine a more serious libel upon an international cricketer", etc. etc. 

McHugh said the article did not name Lloyd, did not defame him and was an honest opinion. The jury awarded damages of $100,000. An unnamed Victorian QC congratulated Hughes: "That will set the smartypants [sic] of Spencer Street back on their heels for a while." 

It went to the NSW Court of Appeal, with the majority (Glass and Samuels) finding that the trial judge Colin Begg fell into error when instructing the jury. The article was not defamatory, it was an expression of opinion relating to a matter of public interest and was based on material that was substantially true. The original verdict was set aside and costs awarded against Lloyd. 

However, there was no appeal to the Privy Council as of right because Allen Allen & Hemsley for the plaintiff had failed to make the necessary deposits as security for the cost of preparing appeal papers. 

Hughes wrote in his diary: 

"[It is] a paradigm case of solicitors who, getting too big for their boots, fail to do the work that makes big litigation go ... Everyone wants to be a chief & disdains the necessary work of the Indian." 

Hughes asked Bob Alexander QC of the English bar to petition the Privy Council for special leave to appeal. Alexander wrote to Hughes in July 1985 to say he had a good response from the board and that the new Law Lord, Huw Griffiths, who was sitting on the case, said privately that the Court of Appeal's decision was all wrong. 

"Please do not tell anyone this," added Alexander. 

Clive Lloyd with the West Indies cricket team. Not enough Indians at Allens

With a date set for the hearing in London Alexander invited Hughes to a buffet supper at Gray's Inn and a function at the House of Lords to mark the opening of the legal year. 

At this point Ian McPhee and Ruth McColl were for The Age. Hughes felt that the privy councillors were with him on imputations, but on comment "the going was a little sticky". Because of an interrogatory answer that the defendant did not intend to convey the imputations there was a general feeling that a new trial would be inappropriate. 

Hughes wrote: 

"When poor Neil McPhee got to the question of identification, they began to get quite short with him. Diplock said he as wasting time; and even the urbane Hugh Griffiths said the argument was an affront to common sense." 

On whether the author intended to convey the imputations Hughes said that McPhee had "really lost the place and lapsed into confusion". 

It was over quickly with a decision in Lloyd's favour. 

During the hearing Griffiths sent a note to Hughes saying how delightful it was to "listen to you". He suggested dinner at the Garrick Club after he returned from a trip to Cyprus. All very chummy. 

There was a celebration of three bottles of Moet et Chandon with Bob Alexander and his wife Marie and John Sackar (the junior). 

In Austin v Daily Mirror, sports journalist Ron Casey wrote that as a result of Reg Austin's conditioning of the Manly rugby league team it had "gone from being a great side to being a tarred band of former champions". Casey advised the club to sack this "fitness fanatic".

The jury rejected all the defences except qualified privilege and awarded damages of $60,000, subject to Justice Lusher's ruling on QP.

Lusher found that qualified privilege had been made out and that the article consisted mainly of comment based on facts that were substantially true, which seemed to contradict the jury which found that the facts as stated were substantially false. 

An appeal was dismissed with costs with a finding that publication of the defamatory matter was reasonable in the circumstances.  

Austin would not surrender and took the case to 9 Downing Street (home of the Privy Council), with Hughes for the appellant and Henric Nicholas for the newspaper. 

There was much discussion about whether an "interest" by readers should have regard to the nature and quality of the information. Hughes stressed there was a dividing line between giving information and making charges of misconduct. 

He noted in his diary that he had "most agreeable dinner "with Griffiths, who told him he was writing the judgment. It was probably the dinner that had been booked at the Garrick Club while the Lloyd case was underway. 

Huw Griffiths: Hughes' urbane friend on the Privy Council

The Privy Council restored the $60,000 to Austin, concluding that the journalism had been "slipshod", including misquotations, misrepresentations and untruths. This did not entitle the defence to "the shield of qualified privilege". 

Hughes noted:

"In one case the plaintiff was supported by the financial might of the Consolidated Press organisation. In the other Austin was a litigant with no financial backing, who decided as a matter of principle to fight the case out to the ultimate tribunal and his courage was properly rewarded." 

There was no regret on the part of newspaper proprietors when Australian appeals to the Privy Council were abolished. 

Busy cab with expensive flag-fall  

There were an enormous number of other defamation cases in which Hughes starred: 

Seidler v Fairfax: This concerned the Harry Seidler Retirement Park cartoon by Patrick Cook in The National Times. A jury found there was a defamatory imputation that Seidler lacked aesthetic sensibilities, but ordinary readers would have seen it as an expression of opinion. 

Patrick Cook's Harry Seidler Retirement Park

On appeal Hughes argued that to say the plaintiff "lacked aesthetic sensibilities" could not be a comment and, if it was, then the facts on which it was based were not sufficiently stated. Hope, Glass and Mahoney JJA unanimously rejected the appeal. 

Twenty-one years later Hughes told an audience at the Art Gallery of NSW that Patrick Cook has sworn in an interrogatory that he did not hold the opinion represented by the comment. However, at the trial he changed his mind and said he did hold that opinion. 

Derryn Hinch and Channel Seven: Hughes acted for a Western Australian dentist who sued over a defamatory broadcast by Hinch, securing a verdict of $100,000 and portraying the broadcaster, now senator, as arrogant and reckless. 

Jane Makim v Nationwide News: Hughes secured a verdict of $300,000 for the sister of the Duchess of York arising from a Sunday Telegraph article that claimed she had conducted an adulterous relationship with an Argentinian polo player. Hughes asked the jury:  

"Can you imagine anything more shocking than to say that falsely about a decent woman?" 

Carson v Fairfax: One of the great defamation battles of recent memory which had the effect of demonstrating that jury awards of damages were out of control. 

Nicholas Carson, a partner at Blake Dawson Waldron, who had married John Gorton's secretary, Ainsley Gotto, pleaded two imputations arising from articles by John Slee in The Sydney Morning Herald concerning the long-running Rajski case. Carson claimed that the articles imputed he had misconducted himself as a solicitor in acting for clients, including Allen Allen & Hemsley, whom Dr Rajski was suing. 

Hughes appeared with Guy Reynolds for Carson and Neil McPhee was for Fairfax. Hughes described one of the articles as "a piece of greasy insinuation" and Slee a "peddler of deliberate falsity". 

McPhee: "completely attuned to the taste of the wild men of Jones St"

The jury returned a verdict of $200,000 for the first article and $400,000 for the second, after just 47 minutes deliberation. It was the highest jury libel verdict in Australia. 

The Court of Appeal set it aside (Kirby and Priestley, Mahoney in the minority) with Kirby saying the damages "smacked of the punitive", comparing the quantum with what was available in personal injury cases. 

Carson appealed to the High Court, with David Jackson QC representing Fairfax, who said that Hughes had invited the jury to punish Fairfax. Hughes replied: 

"Even today, the namby-pamby school of advocacy ought not to be encouraged."

The High Court supported the Court of Appeal order for a retrial, which commenced on April 29, 1994 before Levine J and a jury of one man (a waiter) and three women (a librarian, a shop assistant and a courier driver). 

On this occasion Slee gave evidence where he managed to say in relation to one of the imputations, over a period of persistent questioning, that it was "close to the truth ... substantially true .. [and] false". 

Levine did not direct the jury against making excessive awards, and it brought in damages for Carson of $1.3 million.  

It was a clearly a "vulnerable verdict" and Carson later accepted settlement of $810,000, ($500,000 for damages and $310,000 in costs), plus an apology. 

Ettingshausen v ACP: The shadowy penis case. In April 1991 HQ magazine published a photo of Andrew Ettingshausen, the well known rugby league player, along with two team mates, in a shower, accompanying an article headlined Hunks. 

Justice Hunt said the shape between Ettingshausen's legs was "certainly capable of being interpreted as his penis". 

Ettingshausen had not given permission for the photo to be published and an apology did not settle the matter as it was published on a page advertising condoms. In the NSW Supreme Court Hughes and Reynolds represented the footballer and Ian Callinan the publisher. 

A visiting English judge Sir Michael Davies, said that Ettingshausen was "an ideal plaintiff" - an outstanding sportsman, married with a child, university educated, articulate and with "no skeletons in the cupboard". 

On February 10, 1993, after Hunt J had warned against awarding "staggering sums" because they did not survive on appeal, the jury came in with verdict of $350,000. Interest brought the amount to $363,416.66. 

Ettingshausen: an ideal plaintiff

After a successful appeal by ACP Ettingshausen received a reduced amount of $100,000. It was noted that the maximum payment for a severed penis and severed testicles would be $45,000.  

There were plenty of other libel jousts, including Rene Rivkin v Fairfax and a bitterly fought series of appeals over the jury's rejection of the imputations; and Mercedes Corby v Channel Seven, a loss for the TV network, followed shortly after with Hughes losing his retainer with Seven.  

Interestingly, Hughes took the Ettingshausen case against Packer after the new CEO at Consolidated Press Holdings, Al (Chainsaw) Dunlap, did not renew the retainer he had held with the company since 1972. He wrote to Dunlap:

"I have lost count of the number of times I have been able to refuse briefs, on the basis of my retainer, to appear against the companies in the CPH group. If I cannot refuse in the future so be it."  

He took the same attitude in 1984 when Fairfax briefed McPhee in a case brought by the chief judge of the Family Court, Elizabeth Evatt. She sued over a Sun-Herald article published in July 1984, claiming the chief judge controlled the destruction of fathers' and children' lives, "with the same cold-blooded efficiency that Ilsa Kuhn and her like used in disposing of Jews in Auschwitz and Belsen". 

Hughes noted that McPhee's cross-examination of Evatt for nearly seven hours was "rugged and full of sneers". McPhee suggested the plaintiff had over-reacted to the article, at which point she wept. 

Hughes wrote that McPhee's manner of conducting the case was "completely attuned to the taste of the wild men of Jones St [Fairfax's headquarters]. I could never conduct a defence to this kind of case in the same way".  

He had earlier warned Graham Bates, Fairfax's solicitor at Stephen Jaques & Stephen, that if the company was going to brief others in preference to him, he would be free to act for clients against the newspaper publisher. 

When he learned that McPhee had the brief to defend the Evatt case, Hughes rang Bates and said: "It has happened." Bates replied: "Oh God." 

See also: The life, loves, triumps and disappointments of Tom Hughes 

Victorian silk Fiona McLeod now presides over the nation's briefs as head of the Australian Bar Association ... What is the ABA all about? ... And what does it's president stand for? ... Here she is with rare insights, on the couch 

Describe yourself in three words.

Inquisitive, intuitive, irrepressible.

What are you currently reading? 

There’s a pile! There's a "Lapham's Quarterly"; a gift - Malala Yousafzai's "I am Malala"; a daughter's English Lit reading - Peter Carey "Collected Stories" and Virginia Woolf "Mrs Dalloway"; and an old favourite - Tim Winton's "Dirt Stories". 

What's your favourite film?

Anything science fiction - "Blade Runner ... The Matrix". 

Who have been the most influential people in your life, and why? 

Mum and Dad. Both encouraged me to do what I loved and supported me unconditionally.

What is your favourite piece of music?

Rachmaninov Piano Concerto No 2; Pink Floyd "Wish You Were Here".

What is in your refrigerator? 

Green things for juice and salads, yoghurt, cheese, things in containers that might be alien life forms and something thawing for dinner. 

What is your favourite website?

ABC News. 

What do you recommend as a hangover cure?

Sleep, water, time. 

What is your greatest weakness?

An instinct for recklessness. 

Why did you want to be a lawyer? 

It wasn’t medicine. But, then I came around to the idea. 

What other occupation would you have liked to pursue? 

Medico ... journalist ... environmental activist ... spy ... apparatchik ... policy wonk. 

What is on your bedside table? 

Pile of books (see above). 

What are the important issues for the ABA?

Speaking with clarity and authority about equal access to justice and the rule of law, against injustice. Supporting the work, independence and integrity of the courts. Ensuring those coming before the courts are represented by able lawyers. Promoting equality and diversity in the profession. Contributing to the rule of law in the region and continuing to promote the interests of Australian barristers at home and overseas through mutual exchanges and co-operative regional initiatives. 

What did you find the most disagreeable aspect of being chair of the Victorian Bar Council? 

Interruptions to practice. 

If you were a foodstuff, what would you be?

A nectarine, or one of those alien life forms in my fridge. 

What human quality do you most distrust?

Bigotry.

What would you change about Australia?

Our fear of strangers. 

Whom or what do you consider overrated?

Shock jocks. 

What would your epitaph say?

"She went out with a bang." 

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

Safeguard ... Reason ... Justice. 

Someone called "Lord Chief Justice Thompson" said that Lord Harley could wear ribbons on his barrister's gown ... Except, there is no Lord Chief Justice Thompson and Lord Harley is not a barrister ... The transcript has emerged in the "Harry Potter" case ... Eccentricities galore  

Lord Harley of counsel

LAST year a Crown Court judge in Cardiff chastised a solicitor advocate for "looking like something out of Harry Potter". 

Judge David Wynn Morgan questioned why "Dr" Alan Blacker, aka "Lord Harley", was wearing ribbons and other decorations on his gown in court. 

At the time the issue caused a bit of excitement, on an otherwise slow news week. 

Blacker (or "Lord Harley") was accused of over-egging his CV, in which he described himself as "Dr. The Rt. Hon. The Lord Harley of Counsel KGCStJ DPhil". 

His bio comprised 20 pages of elaborate claims, many of which, according to The Independent, had a Walter Mitty quality.  

Anyway, the transcript of the proceedings in which Judge Morgan questioned Lord Harley's bona fides has emerged, and is doing the rounds. 

Morgan thought that Harley's dress was interfering with "the dignity of the proceedings". There's also an interesting exchange about solicitors' calling themselves "senior counsel" and their rights of audience. 

Here's the dotty transcript ...

The Harry Potter case

William Eicholtz's Lady of Justice is firmly ensconced on the wall of the Country Court building in Melbourne ... Arts writer Mark Holsworth speaks to the sculptor and finds out how he went about creating this bold expression of justice  

THE figure of Lady Justice, Justitia to the ancient Romans, or Themis to the ancient Greeks, is a symbol common to courthouses around the world. On the front of the County Court of Victoria in Melbourne is the Lady of Justice, created in 2002 by the sculptor William Eicholtz.

Recently in his studio, in Melbourne's suburb of Windsor, I talked with Eicholtz about the creation and meaning of his Lady of Justice. 

He showed me a folder of his preparatory material and documentation for the development of the work. There were photographs of other statues of justice, preparatory drawing and the initial maquette for the sculpture. The maquette consisted of bits of cardboard cut-outs and moulded paper that showed the parts of the figure and the robe.

Eicholtz's work was not what the architects, Daryl Jackson and Associates, had intended for the main entrance to the County Court. However, Judge Michael Strong, who was then in charge of the building project, was adamant that he did want the pixilated image proposed by the architects. The image was too difficult to read and Strong wanted a clearly identifiable image of Justice. 

Eicholtz's sculpture functions not only as a crest for the building, but a simplified line drawing of the work has become the logo for the court. 

Importantly, it serves as a symbol of what goes on inside the building. 

Eicholtz in his Windsor studioJustice Betty King of the Victorian Supreme Court refers to the sculpture when instructing juries on their role and duty in the system.

Ancient ideals are reflected in Eicholtz's allegorical figure - the blindfold of impartiality, the uneven scales weighing the cases, and the double edged sword of reason and justice. Eicholtz explained: 

"It was my job to find a credible, artistic and meaningful solution to the divergent vision of each of the major stakeholders." 

It was one of his earliest public commissions, coming only eight years after he had graduated in Fine Arts from Monash University. 

Eicholtz won the 2005 Helen Lempriere Outdoor Sculpture Award, the biggest art prize for sculpture in Australia. Most recently, his work Courage was installed in front of the Fitzroy Town Hall.

Sculptor Les Kossatz, who created Hard Slide, the falling sheep in the foyer of the National Gallery of Victoria, recommend Eicholtz for the County Court commission.

"Les Kossatz was a lecturer of mine, and he became a mentor and a great friend."

Kossatz's Hard Slide

The model for the figure of Justice was Hannah Russell, the then president of the Life Models Society. Without the details of the female form, leaving only her silhouette, any suggestion of age, religion or race was removed from the work. Only the sumptuous, dynamic curves and folds of her flowing robe and blindfold were reproduced directly from the model.

Eicholtz created a contemporary idea of the traditional bronze or stone figure, matching the glass and steel architecture of the court house. 

The figure in profile is a references to the bas-reliefs of Ancient Greece. It is a dynamic, progressive Justice stepping forward to interpret the law, her sword ready for action. This is not an enthroned Justice, with both feet planted solidly on the ground, her sword at rest.

Beside Lady of Justice is the state symbol of the Southern Cross.

There was a tight deadline to complete the commission, but fortunately Eicholtz was not cutting steel and moulding metal in his small studio. Scaled-up from his drawings Lady of Justice was manufactured and installed by J.K. Fasham, a firm of architectural and metal fabricators in Clayton South. 

J.K. Fasham has been fabricating and transporting sculptures for 40 years and has been responsible for many other public pieces, including Deborah Helpburn, Inge King and Anthony Pryor's The Legend at the MCG. 

Mark Holsworth is an arts writer whose book Melbourne's Sculptures will be published by Melbourne Books in early 2015

Former lawyer and tax consultant with KPMG, Dan Young rides the wave of the inner-city bicycle boom ... We've lured Dan off the saddle and onto Justinian's couch to learn about the the transition from law to the art of bicycle mechanics ... 

Escapee from the law: Dan YoungDANIEL YOUNG is an escaped lawyer. He gave up doing taxation law at KPMG in Sydney and started his own one-man business as a mobile bicycle mechanic. 

Wheely Convenient now has clients across the city - corporate accounts and individuals. The boom in professional types peddling to work from the inner suburbs has meant Dan changed gears at the right time. 

He's out from behind a desk and now has wind in his hair, grease on his hands and can fix a puncture in five minutes flat ... 

Describe yourself in three words. 

Fair. Indecorous. Interested.   

What are you currently reading? 

"Empire: How Britain Made The Modern World." 

What's your favourite film? 

Spaceballs. 

What is your favourite piece of music? 

Anything by alternative rock stalwarts, Everclear. 

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

My father for reassuring me early on that the most interesting people he knew hadn't figured out what they were supposed to be doing with their lives at almost any point.    

What is in your refrigerator? 

Whole egg mayonnaise and not a lot else. 

What is your favourite website? 

Mine! Wheely Convenient and Damn You Autocorrect, which is good for a laugh. 

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

A long cool drink of fresh air. 

What words or phrases do you overuse? 

"I don't know ... I'm not entirely sure." 

Was there an important opportunity that you didn't take ... and if so what was it? 

Quite a few and I'd rather not dwell ...

Why did you want to be a lawyer, and why tax law? 

Coming out of high school I knew I couldn't do numbers and couldn't do blood, but that I may as well aim high to give myself a maximum number of fall back positions. I'm not sure which number of fall back position I'm currently at - I didn't contemplate 'bicycle mechanic' at the time.     

Can you explain the transition from tax law at KPMG to Wheely Convenient Mobile Bicycle Mechanics?  

I was never really cut out for the technical realm of corporate tax law, but I thought I would roll the dice anyway. KPMG also crystallised my (immature) dislike for answering to superiors. Once I left I knew I had to start something off my own bat that didn't involve sitting at a desk and would promote something I wanted to see more of in society. It turned out to be bikes and cycling. 

Are there any parallels between practising law and repairing bicycles?  

Endeavouring to avoid being sued by a client or customer and agreeing at the outset what it is possible to deliver. 

Young: did something off his own bat

Do lawyers make better cyclists? 

They make better cyclist consumers probably as a direct result of not being the greatest performers on the bike. 

If you were a foodstuff, what would you be?

Asparagus. Tall and stringy but a positive option. 

What human quality do you most distrust? 

Peoples' penchant for power.  

What would you change about Australia? 

Negative gearing. 

Whom or what do you consider overrated? 

Craft beer. Beer was already great. 

What would your epitaph say? 

"He came, he ate, he left."

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

The halls of the University of Queensland's Faculty of Law and the look on the face of the judge in my first and last moot when I argued the "gist of the judgment" as authority for my submission. 

The former president of the NSW Court of Appeal is at it again ... Another sparking book on lawyers and the law ... Published in time for Christmas stockings ... Tall stories and true ... Keith Mason is venting on Justinian's couch 

Keith Mason: ran out of options

Keith Mason has been a solicitor, barrister, law reformer, solicitor-general, president of a court of appeal, law teacher and mediator. 

He has published on topics including judicial method, legal taxonomy, the law of restitution, and the interface of law, morality and religion. 

Currently he is a visiting professorial fellow at the University of New South Wales and the chancellor of the Anglican diocese of Armidale. 

His latest book is Old Law, New Law, a miscellany of legal history, anecdotes and cases - ranging from matrimony, food, drink, death, taxes, judicial insults, courageous barristers, how judges work and sex. 

Keith Mason has been lured onto Justinian's couch ... 

Describe yourself in three words.

Calm, reflective, verbose. 

What are you currently reading? 

Robert Caro's biography of Lyndon Johnson. 

What's your favourite film?

Sunday Bloody Sunday. 

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

The Rev Ronald Walker, Bret Walker's father. He was a second father to me. 

What is your favourite piece of music?

Mendelssohn's Italian Symphony. 

What is in your refrigerator? 

Food bought by my wife and daughter. 

What is your favourite website?

Qantas international bookings. 

What do you recommend as a hangover cure?

A ticking off from my wife. 

What is your greatest weakness?

Laziness about physical fitness.

What words or phrases do you overuse? 

[Silence.] 

Why did you want to be a lawyer? 

I ran out of other options.

What other occupation would you have liked to pursue? 

To have been a librarian. 

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

Freshly shelled prawns on a bread roll. 

From where do you draw inspiration and material for your miscellanies of history and law? 

Weekly walks with my friend Leslie Katz over many years and a love of modern legal history and biographies. 

What did you find the most disagreeable aspect of being a judge? 

Trying to make everyone happy when organising formal dinners for NSW Court of Appeal. 

If you were a foodstuff, what would you be? 

A cold sav blanc that encourages goodwill and good conversation.

What human quality do you most distrust? 

Authoritarian fundamentalism. 

What would you change about Australia? 

The undue influence of mining companies and shock jocks. 

Whom or what do you consider overrated? 

Patriotism, which blinds us to the equality of all before God.

What would your epitaph say? 

"A fortunate man in a lucky country." 

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

Far too costly.

Old Law, New Law in published by The Federation Press. RRP: $59.95

Wendler in London ... Cruising Gordon's Wine Bar, Penfolds Wine Lounge and a Russian oligarch's lavish venture, Hedonism Wines ... Unfortunately, the Stinking Bishop was missing 

Dr. Johnson's indefatigable biographer, the Scotch barrister James Boswell, complained to the great lexicographer that he felt a disconnection with Scotland and was, with some reservation, contemplating domicile in London.

"If I were to reside in London the exquisite zest with which I relished it in occasional visits might go off and I might grow tired of it."

Johnson famously replied:

"Why, Sir, you find no man at all intellectual who is willing to leave London. No, Sir, when a man is tired of London, he is tired of life; for there is in London all that life can afford."

I don't expect I will ever tire of visiting London - one of the world's most important and fascinating cities.

From my most recent trip there I have three disparate wine encounters to report. They comprise my regular visit to Gordon's Wine Bar, discovery of the Penfolds Wine Lounge and inspection of Hedonism Wines, the most extraordinary wine and spirit emporium in Europe.

Gordon's is the oldest wine bar in London. Since 1890 it has been selling wine, port, sherry and madeira in the same cellar located on the Thames Embankment.

Rudyard Kipling and G.K. Chesterton, the inventor of fictional detective Fr. Brown, episodically practised their literary business there.

Gordon's insinuates a Dickensian atmosphere offering an eclectic range of wines from Europe, the Americas, Australia, New Zealand, South Africa - even India and Lebanon.

Argentinean Malbec and Chilean Sauvignon Blanc appear to be the top sellers.

Australian wine on offer is by Yalumba and Peter Lehmann. I noticed a claret called "Boundary Line Shiraz " - a wine I had never heard of. Information on the label suggested it was bulk Australian red wine bottled in Germany!

Each day there is a delicious, although limited, selection of home cooked hot dishes served from a buffet. Gordon's cheese board comprises a wide variety from France, Italy, Spain and English regional artisan cheeses.

On my visit they had unfortunately sold out of "Stinking Bishop" a wonderfully pungent Perry washed soft rind cheese from Gloucestershire.

When in London a lunchtime visit to historic Gordon's is worth the effort. Take the Tube and get off at Embankment station, its 3mins walk from there.

Walking along The Strand on the way to purchase a new bar shirt and wing collar at Ede & Ravenscroft in Chancery Lane I happened upon a conspicuous Penfolds logo on the street windows of the ME Hotel.

I discovered Penfolds celebrated its 170th anniversary by entering into a joint venture with the Spanish Melia International Hotel chain to open a wine lounge in London dedicated to showcasing its range.

Penfolds ME London wine lounge

The wine list invites a selection of white and red Penfolds' wines including the 2009 Grange Hermitage at an astonishing £1,286 a bottle. 

Last year, by invitation, I sampled the 2009 Grange at Langton's launch of its sixth edition catalogue of the classification of Australian wines. The 2009 Grange is a high alcohol, high extract, mother of all fruit bombs.

It has potential to become one of the very great Granges but will require many years of cellaring to achieve balance. If you are intending to purchase a special celebration wine to be opened in 20 years or more, 2009 Grange is the wine for you.

My final wine encounter occurred in provocatively named Hedonism Wines, a bottle shop in fashionable Mayfair - an Aladdin's Cave of spirits, champagne and wines from  around the world established by former Russian oligarch Yevgeny Chichvarkin. 

Yevgeny Chichvarkin in his hedonistic cellar

The story goes that Chichvarkin, about to be arrested for phoney kidnapping offences, sensibly calculated that the rule of law in Russia was titular, or worse, precipitating his rapid departure from Moscow to London.

He was tried in absentia and acquitted. He does not anticipate ever returning to Russia. He sold his mobile phone empire for $400 million and then eventually moving into high end wine retailing.

Hedonism Wines is an ultra modern wine shop built on two levels at a cost of over £2 million.

Chichvarkin, a man of easy and unpretentious manner, is equally happy to sell a customer a bottle of wine for £20 or £20,000.

If you have a lazy £98,000 to spend you can leave the store with a rare bottle of Ch. d'Yquem from the renowned Comet vintage of 1811, regarded by some wine critics as the greatest desert wine ever made - although it is argued Imperial Tokay Essenzia of the same year is a more interesting desert wine.

Many famous back vintages of Bordeaux and Burgundy are available, such as 1945, 1947, 1949, 1959, 1961, 1978 and 1982.

I noticed a number of Samanazar (equivalent to 12 bottles) and Nebuchadnezzer (equivalent to 20  bottles) bottles of wine for sale and asked the store attendant whether there was much call for such monster sized bottles - colloquially referred to in Australia as "upmarket goons".

"Oh yes sir, they are very popular with the aristocracy during the shooting season. They drink half one day the other half the next." 

It's a wonder there were not more hunting accidents in the Old Dart.        

G.D. Wendler - barrister-in–the-field

Week @ The Knees ... A weekly round-up of events in the law, January 21 to January 28, 2017 ... Reform the justice system ... Whistle blown at Origin Energy ... Fred Nile a security risk ... Bail reform in Victoria ... East Timor drops spying case ... Brandis firms for London sk ... Bail reform in Victoria ... East Timor drops spying case ... Brandis firms for London 

IN response to the pedestrian killings in Melbourne's Bourke Street, The Age crime writer John Sylvester said that the system failed - someone who should have been in custody was not.  

"We have a system that is no longer fit for purpose," Silvester said. Cases are too long and unnecessarily complex and massive delays serve no purpose. 

"The legal system is far more of a closed shop than the most militant trade union." 

Every other business has changed the way it operates, but the justice system just drags on. He proposed appointing a British judge to review the way the system functions with a view to cutting down delays.   

*   *   *

A former lawyer at Origin Energy, Sally McDow, has filed a statement of claim in the Federal Court alleging that Grant King, the former CEO of the company and current head of the Business Council of Australia, covered-up serious regulatory and legislative breaches. 

The whistleblower claims that King altered reports to the board, deleting references to issues concerning material risks relating to hundreds of LNG wells.   

*   *   *

Nile: head on a platter at Mardi GrasThe Rev. Fred Nile, the aged NSW Christian Democratic MP and god-botherer, and his latest wife Silvana Nero, have been denied entry to the United States because they represented an unspecified security risk.  

Nile said he had been invited to attend the inauguration of President Trump. He suspects that someone in the Obama administration decided, "we're not going to help this guy". 

The MP has defended and supported the Assyrian Christian Militia on the basis that Christians are not terrorists.  The Americans later apologised and gave him a visa. 

*   *   *

Dimitrious Gargasoulas, 26, has been charged with five counts of murder after he drove a car at speed through an Melbourne city street filled with pedestrians.  

He did not appear in court. 

Last year he had been charged with reckless conduct endangering life. In relation to unrelated incidents from January 20 last year he faces charges of car theft, intentionally causing injury, and possessing the drug ice. 

He was on bail at the time of the alleged murders.  

Police confirmed they had been monitoring Gargasoulas' car for hours and there had been several opportunities to stop it, but had been instructed by more senior officers not to intercept the vehicle. 

The State Coroner Sara Hinchey will examine the manner in which the police conduct their pursuit and why it was called off.   

*   *   *

The Victorian government has asked Paul Coglan, a former DPP and Supreme Court judge, to give urgent advice about changes to the bail system. 

The premier Daniel Andrews said two or three additional magistrates would be required as part of a new after-hours bail court.  

*   *   * 

East Timor has withdrawn its spying case against Australia that had been filed in the Permanent Court of Arbitration in 2013. 

Timor Leste claimed that ASIS bugged the cabinet office in Dili during negotiations for a maritime boundary in the Timor Sea. 

The case has been withdrawn as a prelude to the renegotiation of the maritime boundary - to be finalised by September.  

*   *   *

Graeme Watson, vice president of the Fair Work Commission has resigned saying the FWC is "pro-union and anti-jobs". 

Business lobby groups and former PM Abbott seized on his resignation insisting that the Turnbull government overhaul the commission to address claims of bias. 

The Financial Review reports that three more senior members of the commission are considering resigning, adding to the eight members who have quit since 2014.  

*   *   *

The Fin Review also reports that ASIC is investigating Tennis Australia over claims of a conflict of interest. Board member Harold Mitchell is said to have influenced the sale of tennis broadcast rights to Seven West Media for $200 million.   

*   *   * 

Matthew Perrin, former head of the surf clothing and accessories group Billabong, was sentenced in the Queensland District Court to an eight year prison term. 

He had been convicted on nine fraud and forgery charges, involving forging his former wife's signature to secure loans from the Commonwealth Bank of over $13 million. 

He is to serve four years before being eligible for parole.   

*   *   *

Brandis: one journalist thinks he has "skills" The Saturday Paper carries further "exclusive" speculation that George Brandis will be off to London later this year as High Commissioner to the Court of St James. 

He is to be replaced by social services minister Christian Porter, a former Western Australian attorney general and treasurer. 

The federal Opposition claims that Porter was deeply involved in the scheme to have the WA government take legislative control of the assets of the Bell Group. 

This was later thwarted after former solicitor general Justin Gleeson successful moved the High Court to find that the Bell Act unconstitutional.  

Bizarrely, The Saturday Paper said:  

"In the wake of the Brexit vote for Britain to leave the European Union, the job [Australian High Commissioner to the UK] is being portrayed as taking on a different flavour and one well suited to Brandis's skills." 

Week @ the Knees for January 29 - February 5 ... Fairfax grovels to ex-Leighton boss ... Medich murder trial ... Girlfriend of Lindt gunman sentenced to 33 years ... Tales of Tim Worner ... Peter Thiel buys NZ citizenship ... Culleton prised from the senate ... Secret bid document for land titles registry ... Contempt charge for Brandis looms ... Kiefel sworn-in 

AS part of the settlement of defamation proceedings Fairfax newspapers published a fulsome apology to Wal King, the former CEO of Leighton Holdings. 

In 2013 The Age, Sydney Morning Herald and Financial Review reported on a wide ranging investigation by Nick McKenzie and Richard Baker in which King was implicated in serious corporate misconduct, including approving payment of a $42 million bribe in Iraq. 

"We now accept that any such allegations against Mr King are false," said the apology. 

King agreed: "I always knew that the facts would justify my claims that the allegations against me were false."  

On the day that the Financial Review published its prominent apology, and on the same page, it also reported that ASIC had charged former Leighton executive Russell Waugh with falsification of company documents.  

The corporate regulator had previously charged Leighton's former chief financial officer Peter Gregg with the same offence. 

It relates to investigations into a $15 million payment from Leighton to UAE based Asian Global Projects and Trading - part of an inquiry into alleged corruption within Leighton between 2009 and 2011.  

*   *   *

Gattellari: alleged to have arranged the hitThroughout the week the Ron Medich murder trial has been running hot in the NSW Supreme Court before Justice Geoff Bellow and a jury. 

Medich is accused of murdering Scottish wheeler-dealer and former business partner Michael McGurk. 

Crown prosecutor Gina O'Rourke SC opened the case by saying Medich and McGurk had fallen out after a number of business and property deals soured.  

It is alleged that former boxer "Lucky" Gattellari was asked by Medich to organise the "hit" on McGurk. 

Bellew told the jurors that there was a potential two year jail term if any one of them was caught conducting private online research. 

*   *   *

Amirah Droudis was sentenced to a minimum of 33 years in gaol for the stabbing murder of the ex-wife of Lindt siege gunman, Man Haron Monis.  

Justice Peter Johnson, in the NSW Supreme Court, accepted that Monis planned and orchestrated the murder, but was unwilling to carry it out himself. 

The judge described Monis and Droudis' relationship as "highly unusual". 

The offender met Monis at his spiritual healing and clairvoyant workshop. 

*   *   *

Standby for more on the Tim Worner ... Amber Harrison ... Seven West Media affair - along with associated allegations of credit card misuse and drug snorting. 

Harrision: tell all for tellyMs Harrison says the report from Allens that the Seven board used to clear ("Root-Rat") Warner was a "whitewash". She says the report was prepared at great speed. 

Harrison was interviewed on Friday (Jan. 27) before her statement arrived at the law firm. The board was given the report on Thursday night (Feb. 2) and the next day it sent a brief to shareholders.  

Worner's former lover is now talking to TV networks about the possibility of a tell-all. Seven lawyers have responded by threatening legal action if an interview goes ahead - citing, if you please, proceeds of crime. 

On the day the board received Allens' report, Seven director and Gilbert + Tobin partner, Sheila McGregor, resigned from the media group's board. 

On the other hand, Seven West Media director, Jeff Kennett, says he's "confident" the review established beyond doubt that Worner is in the clear. 

*   *   *

Peter Thiel, US technology billionaire, Trump supporter, libertarian, and Hulk Hogan litigation funder, was granted New Zealand citizenship in 2011, contrary to the usual criteria required by the land of the strangled vowel. 

Apparently, his entrepreneurial skills were deemed beneficial to the country, even though he has no intention of living there. 

New Zealand is now the preferred safe haven for the global mega-rich who are snapping up swathes of local real estate.   

*   *   *

Culleton: absent offenderThe Court of Disputed Returns has found that One Nation Senator Rod Culleton had been convicted in the Local Court at Armidale, in his absence, of the offence of larceny. The conviction attracted a penalty of imprisonment of one year, or longer, at the time of the 2016 federal election was held. 

As an "absent offender" he could not be sentenced to imprisonment at that time. On August 8, 2016, a warrant for the arrest of Culleton was executed, and the Local Court granted an annulment of his conviction under the Crimes (Appeal and Review) Act 2001. 

On October 25, 2016, the Local Court found Culleton guilty of the offence of larceny on his own plea but, pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act, dismissed the charge without proceeding to conviction. 

The High Court said section 44(ii) of the Constitution prohibited Culleton taking his place in the senate because he had been convicted of the relevant criminal offence at the time the election was held.  

*   *   *

Emeritus law professor Tony Blackshield writing in the Australian Public Law blog said that Culleton was "among the more attractive candidates for Pauline Hanson's One Nation - cheerfully free from any sign of cultural and ethnic prejudice, and given to enjoyably flamboyant flourishes of Australian vernacular". 

He initially insisted that any challenge to his senate position had "as much chance of running as a dinosaur fossil" since the truth always comes out in the end "like a dag in a bale of crutchings". 

*   *   *

Leaked NSW treasury documents spruiking the sale of the land titles registry reveal that it made $190 million in revenue and $130 million in profit in 2015-2016. 

The request for expressions of interest, co-authored by investment bank JP Morgan, says the winning bidder would gain "first mover advantage" in capturing title registries in other states. 

The document is forecasting a continuation of the property boom, with the addition of "approximately 1.8 million titles over the next 40 years" - on top of the existing 3.9 million registered titles in the state. 

The estimated sale price of Land and Property Information is around $2 billion, and the government has flagged it will spend the proceeds on revamping and rebuilding large sporting stadiums.  

*   *   *

Shadow attorney general Mark Dreyfus has given notice that he intends to begin contempt proceedings against the attorney general if an FOI request relating to a portion of George Brandis' diary is not processed within 14 days. 

"Enough is enough," said Dreyfus, who made the original FOI request in May 2014. 

In December 2015 the AAT found "no practical refusal reason" existed to support the argument that processing the diary would be too burdensome. 

Brandis' appeal to the full Federal Court was unsuccessful. Five months later, in defiance of the court findings, nothing has happened. 

"This is beyond a joke," Dreyfus said. 

*   *   * 

Gleeson and Kiefel: wrong yearJustice Susan Kiefel was sworn-in as the 13th chief justice of the High Court. The swearing-in was conducted by Justice Virginia Bell, but the Financial Review illustrated its story in its print edition with a photo of Kiefel being inducted to the High Court by Murray Gleeson in 2007.  

The Sydney Morning Herald reported that when Kiefel was sworn in as a Queensland barrister in 1975 her actor brother Russell sent her a message saying: "Welcome to the acting profession." 

She thanked him, but said she would be writing her own lines. Russell died a few days before his sister's appointment as chief justice was announced. The new CJ told the ceremony in Canberra on January 30, that she was "heartened" by "expressions of goodwill and support". As an indication she is aware that there is populist resentment against judges who apply the law, the CJ added: 

"I am mindful, however, that it is possible that compliments could in the future be replaced by criticism, from other quarters. I shall therefore bask in them, but only briefly." 

Here's the video action. 

The former president of the NSW Court of Appeal is at it again ... Another sparking book on lawyers and the law ... Published in time for Christmas stockings ... Tall stories and true ... Keith Mason is venting on Justinian's couch 

Keith Mason: ran out of options

Keith Mason has been a solicitor, barrister, law reformer, solicitor-general, president of a court of appeal, law teacher and mediator. 

He has published on topics including judicial method, legal taxonomy, the law of restitution, and the interface of law, morality and religion. 

Currently he is a visiting professorial fellow at the University of New South Wales and the chancellor of the Anglican diocese of Armidale. 

His latest book is Old Law, New Law, a miscellany of legal history, anecdotes and cases - ranging from matrimony, food, drink, death, taxes, judicial insults, courageous barristers, how judges work and sex. 

Keith Mason has been lured onto Justinian's couch ... 

Describe yourself in three words.

Calm, reflective, verbose. 

What are you currently reading? 

Robert Caro's biography of Lyndon Johnson. 

What's your favourite film?

Sunday Bloody Sunday. 

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

The Rev Ronald Walker, Bret Walker's father. He was a second father to me. 

What is your favourite piece of music?

Mendelssohn's Italian Symphony. 

What is in your refrigerator? 

Food bought by my wife and daughter. 

What is your favourite website?

Qantas international bookings. 

What do you recommend as a hangover cure?

A ticking off from my wife. 

What is your greatest weakness?

Laziness about physical fitness.

What words or phrases do you overuse? 

[Silence.] 

Why did you want to be a lawyer? 

I ran out of other options.

What other occupation would you have liked to pursue? 

To have been a librarian. 

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

Freshly shelled prawns on a bread roll. 

From where do you draw inspiration and material for your miscellanies of history and law? 

Weekly walks with my friend Leslie Katz over many years and a love of modern legal history and biographies. 

What did you find the most disagreeable aspect of being a judge? 

Trying to make everyone happy when organising formal dinners for NSW Court of Appeal. 

If you were a foodstuff, what would you be? 

A cold sav blanc that encourages goodwill and good conversation.

What human quality do you most distrust? 

Authoritarian fundamentalism. 

What would you change about Australia? 

The undue influence of mining companies and shock jocks. 

Whom or what do you consider overrated? 

Patriotism, which blinds us to the equality of all before God.

What would your epitaph say? 

"A fortunate man in a lucky country." 

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

Far too costly.

Old Law, New Law in published by The Federation Press. RRP: $59.95

Wendler in London ... Cruising Gordon's Wine Bar, Penfolds Wine Lounge and a Russian oligarch's lavish venture, Hedonism Wines ... Unfortunately, the Stinking Bishop was missing 

Dr. Johnson's indefatigable biographer, the Scotch barrister James Boswell, complained to the great lexicographer that he felt a disconnection with Scotland and was, with some reservation, contemplating domicile in London.

"If I were to reside in London the exquisite zest with which I relished it in occasional visits might go off and I might grow tired of it."

Johnson famously replied:

"Why, Sir, you find no man at all intellectual who is willing to leave London. No, Sir, when a man is tired of London, he is tired of life; for there is in London all that life can afford."

I don't expect I will ever tire of visiting London - one of the world's most important and fascinating cities.

From my most recent trip there I have three disparate wine encounters to report. They comprise my regular visit to Gordon's Wine Bar, discovery of the Penfolds Wine Lounge and inspection of Hedonism Wines, the most extraordinary wine and spirit emporium in Europe.

Gordon's is the oldest wine bar in London. Since 1890 it has been selling wine, port, sherry and madeira in the same cellar located on the Thames Embankment.

Rudyard Kipling and G.K. Chesterton, the inventor of fictional detective Fr. Brown, episodically practised their literary business there.

Gordon's insinuates a Dickensian atmosphere offering an eclectic range of wines from Europe, the Americas, Australia, New Zealand, South Africa - even India and Lebanon.

Argentinean Malbec and Chilean Sauvignon Blanc appear to be the top sellers.

Australian wine on offer is by Yalumba and Peter Lehmann. I noticed a claret called "Boundary Line Shiraz " - a wine I had never heard of. Information on the label suggested it was bulk Australian red wine bottled in Germany!

Each day there is a delicious, although limited, selection of home cooked hot dishes served from a buffet. Gordon's cheese board comprises a wide variety from France, Italy, Spain and English regional artisan cheeses.

On my visit they had unfortunately sold out of "Stinking Bishop" a wonderfully pungent Perry washed soft rind cheese from Gloucestershire.

When in London a lunchtime visit to historic Gordon's is worth the effort. Take the Tube and get off at Embankment station, its 3mins walk from there.

Walking along The Strand on the way to purchase a new bar shirt and wing collar at Ede & Ravenscroft in Chancery Lane I happened upon a conspicuous Penfolds logo on the street windows of the ME Hotel.

I discovered Penfolds celebrated its 170th anniversary by entering into a joint venture with the Spanish Melia International Hotel chain to open a wine lounge in London dedicated to showcasing its range.

Penfolds ME London wine lounge

The wine list invites a selection of white and red Penfolds' wines including the 2009 Grange Hermitage at an astonishing £1,286 a bottle. 

Last year, by invitation, I sampled the 2009 Grange at Langton's launch of its sixth edition catalogue of the classification of Australian wines. The 2009 Grange is a high alcohol, high extract, mother of all fruit bombs.

It has potential to become one of the very great Granges but will require many years of cellaring to achieve balance. If you are intending to purchase a special celebration wine to be opened in 20 years or more, 2009 Grange is the wine for you.

My final wine encounter occurred in provocatively named Hedonism Wines, a bottle shop in fashionable Mayfair - an Aladdin's Cave of spirits, champagne and wines from  around the world established by former Russian oligarch Yevgeny Chichvarkin. 

Yevgeny Chichvarkin in his hedonistic cellar

The story goes that Chichvarkin, about to be arrested for phoney kidnapping offences, sensibly calculated that the rule of law in Russia was titular, or worse, precipitating his rapid departure from Moscow to London.

He was tried in absentia and acquitted. He does not anticipate ever returning to Russia. He sold his mobile phone empire for $400 million and then eventually moving into high end wine retailing.

Hedonism Wines is an ultra modern wine shop built on two levels at a cost of over £2 million.

Chichvarkin, a man of easy and unpretentious manner, is equally happy to sell a customer a bottle of wine for £20 or £20,000.

If you have a lazy £98,000 to spend you can leave the store with a rare bottle of Ch. d'Yquem from the renowned Comet vintage of 1811, regarded by some wine critics as the greatest desert wine ever made - although it is argued Imperial Tokay Essenzia of the same year is a more interesting desert wine.

Many famous back vintages of Bordeaux and Burgundy are available, such as 1945, 1947, 1949, 1959, 1961, 1978 and 1982.

I noticed a number of Samanazar (equivalent to 12 bottles) and Nebuchadnezzer (equivalent to 20  bottles) bottles of wine for sale and asked the store attendant whether there was much call for such monster sized bottles - colloquially referred to in Australia as "upmarket goons".

"Oh yes sir, they are very popular with the aristocracy during the shooting season. They drink half one day the other half the next." 

It's a wonder there were not more hunting accidents in the Old Dart.        

G.D. Wendler - barrister-in–the-field

Victorian silk Fiona McLeod now presides over the nation's briefs as head of the Australian Bar Association ... What is the ABA all about? ... And what does it's president stand for? ... Here she is with rare insights, on the couch 

Describe yourself in three words.

Inquisitive, intuitive, irrepressible.

What are you currently reading? 

There’s a pile! There's a "Lapham's Quarterly"; a gift - Malala Yousafzai's "I am Malala"; a daughter's English Lit reading - Peter Carey "Collected Stories" and Virginia Woolf "Mrs Dalloway"; and an old favourite - Tim Winton's "Dirt Stories". 

What's your favourite film?

Anything science fiction - "Blade Runner ... The Matrix". 

Who have been the most influential people in your life, and why? 

Mum and Dad. Both encouraged me to do what I loved and supported me unconditionally.

What is your favourite piece of music?

Rachmaninov Piano Concerto No 2; Pink Floyd "Wish You Were Here".

What is in your refrigerator? 

Green things for juice and salads, yoghurt, cheese, things in containers that might be alien life forms and something thawing for dinner. 

What is your favourite website?

ABC News. 

What do you recommend as a hangover cure?

Sleep, water, time. 

What is your greatest weakness?

An instinct for recklessness. 

Why did you want to be a lawyer? 

It wasn’t medicine. But, then I came around to the idea. 

What other occupation would you have liked to pursue? 

Medico ... journalist ... environmental activist ... spy ... apparatchik ... policy wonk. 

What is on your bedside table? 

Pile of books (see above). 

What are the important issues for the ABA?

Speaking with clarity and authority about equal access to justice and the rule of law, against injustice. Supporting the work, independence and integrity of the courts. Ensuring those coming before the courts are represented by able lawyers. Promoting equality and diversity in the profession. Contributing to the rule of law in the region and continuing to promote the interests of Australian barristers at home and overseas through mutual exchanges and co-operative regional initiatives. 

What did you find the most disagreeable aspect of being chair of the Victorian Bar Council? 

Interruptions to practice. 

If you were a foodstuff, what would you be?

A nectarine, or one of those alien life forms in my fridge. 

What human quality do you most distrust?

Bigotry.

What would you change about Australia?

Our fear of strangers. 

Whom or what do you consider overrated?

Shock jocks. 

What would your epitaph say?

"She went out with a bang." 

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

Safeguard ... Reason ... Justice. 

Someone called "Lord Chief Justice Thompson" said that Lord Harley could wear ribbons on his barrister's gown ... Except, there is no Lord Chief Justice Thompson and Lord Harley is not a barrister ... The transcript has emerged in the "Harry Potter" case ... Eccentricities galore  

Lord Harley of counsel

LAST year a Crown Court judge in Cardiff chastised a solicitor advocate for "looking like something out of Harry Potter". 

Judge David Wynn Morgan questioned why "Dr" Alan Blacker, aka "Lord Harley", was wearing ribbons and other decorations on his gown in court. 

At the time the issue caused a bit of excitement, on an otherwise slow news week. 

Blacker (or "Lord Harley") was accused of over-egging his CV, in which he described himself as "Dr. The Rt. Hon. The Lord Harley of Counsel KGCStJ DPhil". 

His bio comprised 20 pages of elaborate claims, many of which, according to The Independent, had a Walter Mitty quality.  

Anyway, the transcript of the proceedings in which Judge Morgan questioned Lord Harley's bona fides has emerged, and is doing the rounds. 

Morgan thought that Harley's dress was interfering with "the dignity of the proceedings". There's also an interesting exchange about solicitors' calling themselves "senior counsel" and their rights of audience. 

Here's the dotty transcript ...

The Harry Potter case

Richard McHugh is a Sydney silk from a distiguishged legal and political family. He did his masters at Yale and worked for a time at a Wall Street law shop ... He used to appear regularly in the defamation courts, but has shifted his focus to commercial law, most recently appearing for Ginia Rinehart in the big family trust stoush ... A keen photographer he has turned his attention to writing ... Charlie Anderson's General Theory of Lying, published by Penguin, is his first novel ... Here he is, on Justinian's couch 

McHugh: not enough room for all the regretsDescribe yourself in three words.  

Beyond my control.

What are you currently reading? 

Steve Toltz's "Quicksand" and (since 2012) David Foster Wallace's "Infinite Jest".

What's your favourite film?

Apocalypse Now.

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

My mother. I live in her shadow. Every day I struggle to get out from under it.

What is your favourite piece of music?

Blur - "Song 2" or Radiohead, "Electioneering".

What is in your refrigerator? 

Cream and full cream milk for making ice cream. Two rolls of Verichrome Pan 120 black and white film, expired in 2002.

What is your favourite website?

The Analogue Photography Users Group.

If you could change your past, what part of it would you change?

You don't have the space to accommodate my regrets.

What is your guiltiest pleasure?

Gossip Girl.

Why did you want to be a lawyer? 

That's the wrong question. I was born to be a lawyer.

What other occupation would you have liked to pursue? 

Member for Wentworth, or starting centre for the Los Angeles Lakers.  It would have been nice to combine them.

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

Chicken schnitzel.

What is Charlie Anderson's General Theory of Lying telling us? 

That the professional class is more entertaining than we are given credit for.

From where did you draw the inspiration for the novel? 

The basic package - a highly-educated ever-so-slightly-narcissistic professional couple devoted to their children - is everywhere I look. 

If you were a foodstuff, what would you be?

Dark chocolate. There's only so much you can take.

What human quality do you most distrust?

Vanity.

What would you change about Australia?

Its location. I would move it 12,000 kilometres closer to Rome.

Whom or what do you consider overrated?

Judicial case management.

What would your epitaph say?

"It might have gone better if he'd tried harder."

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

A tax invoice. 

Readers can order the book at Booktopia and Bookworld.