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20 August, 2009  
Goings On ...

A strange figure in black disturbs the recital hall … A silk’s poetic tribute to trees … Big law shops have their hands out for money … Canberra to be infused with fresh magistrates … Advocates immunity and the far off finality principle … Unlawful courtroom constructions

imageThe “running ovation” is an honoured institution at Musica Viva concerts in the Sydney Recital Hall.

It allows ovators to show their connoisseurship while positioning themselves to be among the first to exit the hall.

So nobody paid much heed the other night when an old fossil lurched to his feet while the applause for the cellist Steven Isserlis was still rolling round the roof.

Then the worst happened. Mr Isserlis decided to play an encore after this ancient patron had taken barely half a dozen slow paces.

The exit was impossibly distant, so the black draped figure simply stood there swaying, gaping blankly at the audience, while gripping the edge of the stage with one hand.

Once the applause resumed after a serving of Schumann, so did the hulk.

Some people thought he looked decidedly odd with his trousers tucked into his socks.

Maybe he was a cyclist anxious to reach his machine in a hurry – but then he was carrying an inconvenient walking stick.

All eyes were now on the creature’s slow moving bulk.

The cellist acknowledged defeat by giving, as he took his last bow, a gallant wave to the figure now shuffling through the doors to the foyer.

Yes, another night on the tiles for Roddy Pitt Meagher.

* * *

I can’t wait to snuggle down with the Earl of Pembroke SC’s alluring volume Trees of History & Romance – Essays from a Mount Wilson Garden.

The flyer promises “fascinating insights into trees drawn from history, literature, poetry, mythology, botany and folklaw”.

imageThe essays embrace tress and conifers from the Earl’s (12 Wentworth/Selborne) cool climate Mount Wilson property and “provide rich sources for his literary abilities”.

If you buy through the Australian Garden History Society it’s a snip at $25, plus $6 postage and handling.

The Earl (pic) also has an estate in Woollahra, where the output of his green paws is also magnificently on display.

* * *

Rumours abound that Mallesons has had a dickens of a time trying to extract around $10 million in fees from Chinalco following its abortive tussle with Rio Tinto.

* * *

Pending its special leave hearing Ingot Capital has forked out a bundle to the successful defendants/respondents in the big stoush over the collapse of New Cap Reinsurance Holdings.

See Justinian’s earlier story

On a without prejudice basis Ingot has paid Phillips Fox $5 million and PriceWaterhouse Coopers another $5 million.

Robert McDougall J and the NSW Court of Appeal both substantially downed Ingot in its claim to have been dudded over a $40 million investment in New Cap’s convertible notes issue.

Phillips Fox was deeply involved because partners, particularly Bill Peck, were either directors of New Cap, on its due-dill committee or legal advisors.

The Ingot appellants’ costs are between $47 and $53 million.

The Phillips Fox people were biting their nails because their insurance cover had been carefully placed with HIH.

* * *

imageCanberra lawyers are beside themselves with anticipation over who will be called to fill holes on the Maggies’ Court.

Three positions are up for grabs, two magistrates and the chief magistrate’s gig – as lively Ron Cahill (pic), the present CM, retires at the end of the year.

Hundreds of applications have been received by the Attorney General Simon Corbell.

An indication of the racy rate at which the wheels of justice spin in the ACT can be gleaned from a just-to-hand Discrimination Tribunal judgment in Paterson v Clarke.

The judgment and orders were delivered on August 3. That’s August 3 this year.

The hearings took place over three days: February 9, 1999, April 20, 2000 and March 23, 2001.

That’s a lightening 10-years or so ago.

Suellen Paterson complained that Peter Clarke sexually harassed her while she worked as a casual waitress at the Homestead Bistro, part of the Tuggeranong Rugby Union and Amateur Sports Club.

President of the tribunal, Rapid Ron Cahill, in delivering judgment, said the delay in finalising the case “was due to the parties not taking steps to pursue with [sic] the matter”.

Clarke moved to far-flung New South Wales and contact could not be made with him, so things just went a bit mouldy.

Undaunted the tribunal rushed to conclude the case ordering the vanished respondent to pay $1,000 to Paterson as compo – a fleeting 13-years after the groping and dirty jokes took place.

* * *

What to make of the dog-eared condition of the advocates immunity after NSW Appeals had another chew on it last month in Symonds v Vass.

This was the case in which luminaries such as Dowd J and Patten AJ tinkered.

Dunhill Madden Butler (now deceased) was sued by the property developers Gerald and Monica Symonds for alleging stuffing-up their action against valuer Frank Egan.

See Justinian’s report

Patten awarded damages of $140,000 for breach of contract and negligence, plus $180,000 interest.

This related to stuff that Patten said was not intimately connected with the conduct of the case, so the immunity didn’t apply to those bits.

If the quelling of disputes and finality is the guiding principle behind the advocates immunity then this case comes as an exciting challenge.

There’s now considerable entanglement as to where the immunity starts and ends.

On appeal a new trial was ordered because the findings had been comprehensively Pattenated.

The appellants said that the immunity does not apply where the lawyers had denied them a opportunity or a chance to recover damages.

The Ippster thought that the Symonds’ appeal failed by reason of the immunity.

Beazley and Giles were not so sure.

They said that the finality principle has not always been given full effect in the case law.

The question whether the immunity applies cannot be determined without proper findings of negligence.

This was not done in this case. Patten’s findings as to breaches of duty were inadequate.

The parties were unable to see the extent to which their arguments were understood and accepted, let alone understanding the basis of the judge’s decision.

It’s about time the High Court geared-up for another final word on the finality issue.

* * *

imageThe monumental refurbishment of the Supreme and Federal Courts in Queens Square has the neighbours in Macquarie Street upset.

Noise, overhead cranes, illegally parked trucks and dust all have taken their toll on the occupants of the Beanbah Building and in particular the Beanbah Cafe, right next door to the Lubianka-style court complex.

Potts Point solicitor Jeremy Rhodes owns the Beanbah Cafe strata property and is also secretary of Beanbah Owners Corporation.

He claims that there have been a couple of modifications to the original development consent for the courts’ make-over.

The original DA for the work was approved by City of Sydney Council in September 2007. A construction certificate was granted in October 2007.

The city council says that modification of a development consent requires a revised construction certificate.

Up till now the court had not got a fresh CC.

Because of the modifications the original certificate is obsolete and, according to Rhodes, this means that all work carried out without the appropriate ticket is unlawful.

Further, a construction certificate has no retrospective effect if it is issued after the start of the modified works.

Phillips Fox is acting for Law Courts Ltd. It fears there may be litigation and says that it has advised the courts against providing any documentation sought by Rhodes.

Law Courts Ltd told me that all the fuss is about court no. 1 in the Federal Court, for which design modifications were sought.

“A new CC was not obtained for the no.1 court room due to the staged development of the works.”

LCL says it will submit new documents for approval by the principal certifying authority this week.

There is still the problem of retrospectivity.

Rhodes says that the modifications to the original approval are far more extensive that simply a single court room.

Indeed, Premier Nathan Rees last month unveiled additional revamps.

This includes gleaming courtrooms in the sky on the upper levels of the building with walls of glass overlooking the harbour.

Designer Steve Pearse said his brief was for something with “gravitas” while at the same time “welcoming”.

Large new windows will allow light to flood in from behind the judges.

Maybe even enough light to read the fine print about construction certificates.

* * *

While touring the British Isles reporter Alex Mitchell’s eye was caught by this fetching classified advertisement in the weekly Cornish paper The West Briton.

for expresso bar
opening soon in Truro
Contact Steve at Fodders Restaurant.

imageIt reminds me of Dorothy Parker’s (pic) quip when she went to the airport to collect an actress friend who had flown-in from London.

The elegant dame hobbled off the plane with her leg in plaster.

“Oh, how terrible,” said D. Parker. “Did you do it sliding down a barrister?”