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5 June, 2008  
Goings on ...

Gageler bites Lord Eldon on the bum … Bar rules problem made to vanish … Defamation fallout – Mercedes Corby and Judy Davis … Caught by the catchwords … Where’s Tubby’s horse flu report?

imageSomething has gone wrong, surely?

Stephen Gageler’s appointment as Commonwealth Solicitor General must have come as an dreadful shock to Brizzy’s Lord Eldon, aka A.J.H. Morris QC.

According to a 2006 report by our man on the spot, Sir Terence O’Rort, Eldon’s opinion on a Crime and Misconduct Commission investigation into his client, former health minister Gordon Nuttall, was particularly dismissive of the work of two silks who advised the commission, Stephen Gageler and John Logan.

Eldon seemed to have swallowed a Thesaurus when it came to giving his views about the finding that the Nut might have breached some law by telling pork pies to a parliamentary committee:

“The CMC’s report is a disgrace – an absolute, positive, stark, unequivocal, clear, unqualified, categorical, decided, unmistakable, unconditional and unmitigated disgrace.”

Eldon found it “remarkable” that the commission accepted the advice of Logan and Gageler, in preference to that of Hugh Fraser and Bob Gotterson, who provided an opinion to the Speaker of the Legislative Assembly. He wrote:

“Comparisons are odious and I certainly do not wish to belittle the professional standing of Mr Logan SC. But statistics speak for themselves. Mr Logan is currently number 86 on the Bar Associations list of seniority, compared with 44 in the case of Mr Fraser and 28 in the case of Mr Gotterson …

“One indication of a senior barristers professional standing is the rapidity with which he or she was allowed to ‘take silk’ after commencing practice at the junior bar.”

He noted that Fraser and Gotterson were “elevated” to the senior bar after 13 years practice as juniors but it took Logan 19 years to make the inner sanctum.

In a footnote Eldon modestly mentions:

“For comparative purposes, the present writer’s position on the list of seniority is just below Mr Fraser’s at number 45. Again for comparative purposes, the present writer has (like Mr Fraser) been a QC for 13 years (since 1992). Again for comparative purposes, the present writer ‘took silk’ after nine years as a junior barrister.”

And what of Gageler? Eldon gives him the bum’s rush:

“As to Mr Gageler SC, I have to confess that I had not heard of him prior to this, although my subsequent enquiries suggest that he is held in high regard in Sydney, where he has his chambers. It seems that he has never been admitted in Queensland or at any rate does not hold a practising certificate in this state. He appears to have been a senior counsel in NSW since 2000.”

And what has happened to this cast of players since that magnificent opinion saw the light of day?

Logan is now a Federal Court judge, Fraser has gone to the Queensland Court of Appeal and Gageler becomes Commonwealth Solicitor General.

Morris remains a fixture as one of Her Maj’s counsel learned in the law.

* * *

Wow. That was a fast finish to the NSW bar rules crisis.

How come the angst and unrest folded so quickly?

Answer: the proposed amendments and new rule were scrapped.

In their stead comes a new rule that takes effect on July 1.

It is shorn of the bothersome requirement that counsel must not to ask questions that are “belittling, insulting or otherwise inappropriate”.

Also, cross-examiners need not avoid questions based on a witness’s “stereotype” (e.g., sex, race, ethnicity, disability, etc).

Instead, questions that are supposedly forbidden are those intended to “mislead or confuse” and those intended to be “unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive”.

Everything that the Bar ‘n’ Grill can’t prove was intended is fine. In other words, no change.

* * *

imageI don’t know what’s worse. The sight of a grinning Stuart (Keys) Littlemore on the front pages of the tissues after the Corby victory, or the old snarly Littlemore we all know and love.

Bring back Mr Grumpy Pants, I say. That grinning edifice is just too much at breakfast as was the gloating sweep into court after the verdict.

The Corby case was a monumental battle of the scrubbers, with Keys being more effective at demolishing Channel Seven’s star witness, Jodie Power, than Tom Hughes was at lancing Mercedes Corby’s version of purity and splendour.

Power was portrayed as a drug addled nutter who lied for money. The jury must have swallowed it, but not everyone who followed the case was entirely convinced she was lying.

Our sister organ the Gazette of Law & Journalism reported that of the 31 imputations pleaded for three Today Tonight stories and a Seven news bulletin, the jury found 29 conveyed and defamatory.

During the trial Justice Carolyn Simpson ruled that Seven could not plead truth to five of the imputations: that Mercedes Corby was guilty of the crime of smuggling marijuana into Bali; that she was guilty of the crime of cultivating marijuana; that she was knowingly involved in Schapelle Corbys importation of marijuana into Bali; that she was a threat to life and safety of Jodie Power; and that she denied Schapelle Corbys Indonesian lawyers a chance of proving her innocence.

It didn’t make much difference to the end result. The jury found Seven had justified only one imputation – that Corby was guilty of the crime of possession of marijuana.

On Friday May 30, Seven dropped its second line of defence, contextual truth.

Settlement was agreed, although some of the figures bandied about were a bit hairy. The Australian said, “the network had been facing a potential damages payout close to $2 million”.

Presumably that was based on the notion that the $267,000 cap on general damages should be multiplied by the number of times the defamatory broadcasts were repeated. In this instance up to seven times.

Fortunately, this particular version of s.35 of the uniform Defamation Act didn’t get a judicial airing.

And we’re still waiting on Justice Peter McClellan’s damages verdict in the Judy Davis case against The Smellograph. A decent figure would help put a bit of zip into the languishing jurisdiction.

* * *

imageJust as Littlemore was all over the media looking highly delighted with himself, there on the cover of The Australian Financial Review Magazine was T.E.F. trying his hardest to look defrosted.

It was a nice profile of the old stager. One of my favourite lines was:

“Asked if there are areas where the legal profession should be reformed, Hughes responds, after a long pause: ‘I haven’t applied my mind to questions of law reform for a long time. Did you have any in mind’?”

* * *

Didn’t you just love the carefully crafted catchwords on Peter Heery’s decision in Granada Tavern v Smith [2008] FCA 646?

Granada Tavern v Smith [2008] FCA 646 (15 May 2008)

Last Updated: 15 May 2008


Granada Tavern v Smith [2008] FCA 646

INDUSTRIAL LAW – appeal from Federal Magistrates Court – whether error in finding employer applied duress to employee in connection with an Australian Workplace Agreement

EVIDENCE – proper application of Briginshaw principle – isn’t there something in the Evidence Act about this?

PRACTICE AND PROCEDURE – adequate reasons for judgment

When you read the judgment, it’s possible the catchwords were meant as written. It’s just that the infelicitous expression excited attention and a belief that Heerey had slipped up.

* * *

I hear that John Colvin, longstanding Freehills partner and head of the Sydney office, is bailing.

He’s off to be CEO of the Australian Institute of Company Directors, an outfit that seems a little at sea when it comes to treating its own directors decently.

Ralph Evans, the distinguished former CEO of the outfit, was rissoled unceremoniously after falling out with the chairman, John Story, ex-Corrs in Briz.

Bearing in mind the manner in which Story and the board dealt with Evans it’s now very difficult to treat seriously any worthy pronouncements by the AICD on corporate behaviour and governance.

* * *

imageAfter the better part of eight months delving into the equine flu outbreak Tubby Callinan delivered his report to the government on April 24.

Still it has not been released to an anxious horse community.

Little Johnnie Howard gave the investigation to the Tub at the beginning of September, not long after the distinguished jurist was rendered constitutionally incapable of continuing to serve on the High.

It is not expected the current government will be doling out post-judicial gigs to the Capital C Conservative.

* * *

It’s worrying when the fuschia-haired merde merchant, Rupert Murdoch, starts delivering predictions.

His latest is that Barack Obama will win in a landslide against the Republicans John McBush.

Let’s hope he does, but this is the same old coot that predicted if Saddam Hussein was deposed the price of oil would fall to $20 a barrel. Here’s what Rupe said:

“The greatest thing to come out of this for the world economy … would be $20 a barrel for oil. That’s bigger than any tax cut in any country.”

Now the ABC is to subject us to the antique mogul’s rancid and well worn views as this year’s Boyer lecturer.

The wizened vampire already has a vast empire of stooges and suckholes to propagate his grubby world vision. Why should the ABC be enlisted to his cause?


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