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10 July, 2009  
Goings On ...

Malcolm Turnbull’s brilliant myth-making credentials … More old letters from the Leader of the Opp … One Federal Court judge chips another about failure of duty … Frosty Hughes and the anti-conscription demos … Sydney’s Union Club loses top-tier reciprocity and lawyers want to bail … The heat in FNQ

imageWhat is it with Malcolm and the press gallery? Lots of the hacks have fallen for the trap of peddling an over-gilded bio of the Libs’ saviour.

“Brilliant barrister” seems to be a favourite moniker trotted out with the monotony of tom-toms to describe the Leader of the Opposition.

For instance, see Peter Hatcher in The Sydney Morning Herald. Again, there was “brilliant” + “barrister” in this piece by Annabel Crabb and “brilliant mind” here in New Matilda.

The parliamentary press gallery, in particular, swallows the myth without doing the digging.

Turnbull as a “brilliant barrister” is a magnificent fiction engineered, no doubt, by Modest Malc himself.

He was admitted to the bar in December 1980 and by the end of 1983 he was no longer on the roll. He read for most of 1981 with John Sackar and the late Peter Hely on 6 Selborne.

imageHardly enough time to be develop the skills to be “brilliant” because he was also busy contesting Liberal Party preselection for Wentworth.

Around mid-1982 he went to work in-house for Kerry Packer as his fixer and head-kicker.

In all he would have spent little more than eight months as a fully fledged practising barrister. This did not stop him declaring in his self-absorbing book The Spycatcher Trial, “My practice at the bar prospered”.

While working for Packer in Park Street he was frequently heard scoffing at the bar and at barristers, “they know nothing … what a useless bunch … all hopeless”.

In 1985 he took out a solicitor’s ticket when he set up shop as Turnbull McWilliam. It was as a solicitor that he acted for Peter Wright in the Spycatcher case.

He was certainly successful and hard working in that trial, but brilliant?

* * *

imageSpycatcher was not a hopeless case by any stretch of the imagination, but Turnbull parlayed it into a magnificent victory snatched from the jaws of certain defeat.

The British government was trying to stop the publication by Heinemann Australia of a book by former MI5 officer Peter Wright (seen here).

The Brits argument was that Wright had an obligation of silence.

The publishers had two strong points in their favour. Much of the contents of the book had already been published elsewhere and so the confidentiality argument was pretty thin. Also, the book disclosed criminal activity on the part of MI5, which would make it much harder to secure a permanent injunction.

The other key factor in the publishers favour was the judge – Phillip (Percy) Powell.

Perc found that the old spymaster did owe a duty of confidentiality to the British government, but only for those things that were confidential and damaging – which in this case amounted to next to nothing.

Michael Kirby and Michael McHugh rejected the Brit’s appeal, with Sir Lorenzo Street in the minority.

It was the same bench that previously had rejected the British application for leave to appeal an earlier judgment of Perc’s over discovery of documents.

When it went to the High Court the decision was hardly a surprise – unless of course the court overturned Anthony Mason in the Commonwealth v Fairfax (defence papers) case.

The appeal was rejected unanimously.

Of the 11 judges that examined the issues, only one went against Turnbull.

He had plenty of law and facts on his side, so what’s with the hype about “brilliance”?

Or is it an instance of Turnbullshit?

Malcolm himself said: “The Costigan affair taught me a lot about law and propaganda.”

* * *

imageOne more thing about Malcy and then I’ll stay completely stumm about him for the next 10 minutes.

Among the missives he wrote to the cat and his former girlfriend, Fiona Watson, when he was trying to woo her back, was a curious one that among other things said:

“I cut the wood for Dicko today. Tomorrow morning I’m going to Alice Springs for two days with Michael Kirby. He’s having public hearings there on the stone age law reference.”

Stone age law?

This sounds politically indigestible, not to mention incorrect. Probably where the Liberals are today on indigenous affairs.

Could he possibly have been referring to the ALRC reference on the recognition of Aboriginal customary laws?

* * *

Gee whiz. I wonder if things are going to be frosty at Federal Court chrissy drinks this year, presuming that judges from Sydney and Melbourne ever clink glasses together.

Justice Alan Goldberg has handed down another judgment in the long-winded representative action against Multiplex for allegedly hiding from the ASX and shareholders massive cost overruns on the Wembley Stadium project, which had the effect of reducing the forecast profits for 2005 and 2006.

At issue was an attempt by the applicants to get hold of documents and information in ASIC’s possession, apparently coming from a juicy mole from within Multiplex.

imageIn an ex parte hearing before Goldberg in camera (September 11, 2007) Dr Geoffrey Flick SC appeared for ASIC, now His Honour Justice Flick of the Federal Court. (See judgment of November 2, 2007.)

ASIC was clinging to the information, claiming public interest immunity.

Flick told Goldberg (seen here, right) that he would not give the basis for ASIC’s claim that the documents and transcripts of interviews were privileged from production.

They were just secret, as was the source, and that was that.

Doc Flick: What we are saying, and I keep putting this as Delphically as I can, is to say, what the documents for which we wish to claim the privilege discloses, is the means, the mechanism, the procedure, whatever you wish to call it, the means whereby information came into our possession.

That was all Goldie was allowed to know.

What Flick did not tell the court was that two years earlier the ABC’s Four Corners had outed the source of ASIC’s information. He was Multiplex’s accounting group general manager.

There were also 11 press reports commenting on the Four Corners’ program, all mentioning a senior Multiplex manager having blown the whistle on the Wembley Stadium fiasco.

Goldberg was unimpressed. He said ASIC had an “obligation” to disclose the relevance of the Four Corners broadcast and accompanying coverage.

He rejected ASIC’s argument that because of the way things developed there was no opportunity for it to elaborate on the issue of the wider public knowledge about the informant.

“I am satisfied that in these circumstances ASIC owed a clear duty to the court to bring to the court’s attention the fact of the Four Corners broadcast in the ex parte hearing in camera at the start of that hearing, at the least …”

As a result of the non-disclosure by Flick the grounds for ASIC resisting the claim for production of the documents should be visited afresh.

* * *

Talking of things frosty, did you see the scads of pages in the latest NSW Bar News about Tom Hughes snr?

imageAt first I thought he must have died, what with tributes from Tony Mason, The Rodent and Smiler Gleeson.

But then I realised that Frosty had chalked up 60 years at the bar ‘n’ grill and this was a multi-page tribute.

Among the snaps was Attorney General Tom strutting around with his cricket bat, as Little Johnnie Howard put it, “in defence of his family home under siege from an anti-conscription, Vietnam war demonstration. Australians of many political persuasions identified with his gesture”.

It wasn’t mentioned that the demonstrators were acquitted. They were prosecuted for a breach of the then I(E)nclosed Lands Protection Act, later incorporated into the Summary Offences Act.

The case failed because, as my informant remembers it, the gates on Tom’s driveway were missing, so his estate wasn’t enclosed.

* * *

Word on The Rialto is that a job lot of Sydney lawyers is wanting to bail from Sydney’s Union Club and to sign-up with The Australian Club instead.

This follows the merger of the old Union Club with the more downmarket University and Schools Club.

As of July 1 the Melbourne Club cancelled its reciprocal arrangement with the Union, University and Schools Club as it’s now known.

Boodle’s in London (where Prince Chazza had his bucks night just prior to his disastrous marriage to Diana) has also cancelled it’s arrangements with the UUSC in Sydney, as has the other top-tier London club Brooks’s.

In his most recent newsletter to members the prez of the UUSC says that he’s written to the Melbourne Club requesting reconsideration of this shocking slight.

According to the drum from Melbourne there’s fat chance of that happening because some of the roughies from the UUSC have disported themselves in an unfortunate fashion while visiting the Melbourne Club.

There are now bitter divisions in the UUSC. The honour bar in the members lounge has been closed when it was discovered that some were abusing the system by not filling out their chits.

This behaviour has been attributed to the arriviste scrubbers from the University and Schools’ Club.

The old establishment in Bent Street has gone the way of Royal Sydney Golf, with real estate agents, marketeers and other quasi-professionals scrabbling their way up the greasy pole. Even reptiles of the press have been admitted.

Now there is potential for a mass exodus by the Union Club’s old guard over to The Australian Club, if it will have them.

* * *

Iran is in ferment, but this is weird.

Far North Queensland barrister Andrew Wrenn, in his full court clobber, appears in a video endorsing someone who claims to be His Imperial Majesty Qeumars, the Emperor of Persia.

Wrenn explains that the Emperor of Persia wants to invite the Emperor and Empress of Japan and other significant world monarchs and leaders to Australia to “create jobs and economic stimulus”.

He calls on the Australian government to host this event.

Perhaps the unbearable FNQ heat has something to do with it.


Reader Comments

Posted by: Anonymous
Date: July 10, 2009, 3:28 am

Hang on a minute. Give credit where it's due. At trial, the British Government were represented by Mallesons Stephen Jaques, who in turn engaged T Simos QC, W Caldwell QC, W Gummow QC (Gummow J). Turnbull was both solicitor and advocate for Mr Wright. He won. On appeal, the British Government again were represented by Mallesons and again engaged T Simos QC and W Caldwell QC, who this time were assisted by J Laws. Turnbull was on his own for Mr Wright, and again he won. It was the same line up again in the High Court. Again Turnbull won. On any measure, it was a very impressive performance. He achieved notoriety, and together with his past record with Packer, was an in-demand lawyer. Sure, he was no Barwick or Dixon, but he had a legal career that was both unusual and impressive. Maybe 'brilliant' is too strong a word, but seriously, whatever!
Posted by: Anonymous
Date: July 10, 2009, 3:30 am

No ... Hughes did it in the High Court for Heinemann Australia ... I'm pretty sure.
Posted by: Anonymous
Date: July 19, 2009, 3:20 am

Yes it was Turnbull alone in the HCA against Simos, Caldwell and Robinson. What I can't work out is why Heinemann wouldn't pay for a few silks themselves - surely a publisher isn't short of a quid? I agree with Anon 1 that it was a pretty impressive David and Goliath battle, however much MT hammed it up... It's worth remembering the late great Dr Mann famously loathed the Spycatcher decision by the HCA and also, it would seem, Turnbull's part in it. In an essay in the LQR reviewing Turnbull's book on the case, Dr Mann (himself a solicitor at Herbies) said: -"New South Wales is one of the Australian states in which solicitors have the right of audience in all courts... The reader of this book is unlikely to gain the impression that English justice would gain from such a development. Applying English standards he is driven to the conclusion that the employment of an experienced member of the Bar would probably have resulted in a trial of less than three weeks" -"from a legal point of view this book is of little interest and that, viewed as a political tract, it is so partial as to be valueless" -"The bulk [of the book] deals with the case before the judge of first instance, so that the author has the opportunity of analysing what he considers the facts of the case, which in the higher courts were held to be almost entirely irrelevant. It accordingly becomes possible to suggest that from beginning to end the author and, possibly, the judge failed to understand the plaintiff's simple case" -"the case was allowed to be fought on a false basis and does not do credit to those involved (though the solicitor, according to the blurb, did a "brilliant" job)" Goes to show the brilliant tag has been deployed by or in relation to MT for quite some time.