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Barry Lane
26 November, 2003  
The Warren Court - It's Marilyn not Earl

Yarraside’s Warren Court. Despite all of Attorney General Hulls’ huffin’ and puffin’ he didn’t need to cast a wide net. The ideal Chief Justice was right under his nose. Those with elephantine memories also will recall a slight hiccup in young Marilyn Warren’s admission to legal practice

imageAfter all of Attorney General Rob (“Fuckin”) Hulls’ huffin and puffin about widening the available pool of talent from which he could draw to find the world’s most perfect Chief Justice, he didn’t need any of his vaunted legislative amendments to anoint Justice Marilyn Warren.

She fitted neatly into the pre-existing legislative requirement of eight years servitude as a practitioner. The hastily cobbled Constitution (Supreme Court) Act widened the field to include Uncle Tom Cobley and all.

As it turned out such a large pasture was completely unnecessary. Marilyn Warren did not put up her hand for the job when Fuckin published his silly advertisements calling for expressions of interest in the position.

All of which makes one surmise that Justice Warren was by no means Fuckin’s first choice. He was looking at a Federal Court judge of the female persuasion from out of town. He backed off when he understood just how livid and flustered members of the Bar, Rotisserie & Lounge would be if a foreigner was foisted on them.

Not that there’s anything wrong with Justice Marilyn. Everyone says she’s a splendid appointment.

She spent a large slab of her career in the Attorney General’s Department, variously at the Public Trustee, Controller of Stamps, senior legal policy advisor to the AG of the day, the Victorian public servant dealing with SCAG, Assistant Chief Parliamentary Counsel, and Deputy Secretary.

She went to the Rotisserie & Lounge in 1985, took silk in 1997 and went to the trial division of the Supreme Court the following year.

She was the Warren in Re Warren, a 1975 case before the Victorian Full Court concerning her admission to practice.

The Board of Examiners had certified its approval to young Marilyn’s articles of clerkship on April 4, 1974. The court admitted her to practice on April 3, 1975.

However, a closer inspection of the affidavit verifying her articles to John Kenneth Cook, the solicitor to the Public Trustee, revealed that one of the crucial rules of the Council of Legal Education had been overlooked.

The rules required that only “permanent” members of the public service could serve articles. At the commencement of her articles Marilyn had been a “temporary” member of the public service.

Oh dear. Was she properly admitted?

The Full Court with Young CJ in the saddle called it a “bona fide error”. The reasoning was that since an order admitting a candidate for admission is made ex parte, the court has an inherent power to revoke an admission.

But, in this case as there was no concealment the circumstances did not justify the revocation of Marilyn’s admission. To do so would be too harsh.

What a relief.

D.L. Hadersberger appeared for the Board of Examiners and L. Ostrowski for Warren.

Yesterday (November 25) the Rotisserie Council put out a nice statement of welcome saying she was:

” an outstanding judge of the court for five years since her appointment in October 1998 The Bar is delighted that this distinguished Victorian judge is now the 11th Chief Justice, and looks forward with great confidence and hope for the future in the era of the Victorian Warren Court.”

Fuckin’s statement typically was laden with great clunks of hyperbole:

He called her a “trailblazing female lawyer” and “the standout from a strong national field of candidates for Victoria’s most senior judicial position”.

She the first woman to serve as an articled clerk in the Victorian public service and now “she has become the first female Chief Justice of Victoria and the first female Chief Justice of any Australian jurisdiction.” The AG also declared:

” first and foremost, Justice Warren is without doubt the best lawyer for the job.”

The women lawyers’ movement was tickled pink. Jennifer Batrouney said:

“Justice Warren commands the respect of the entire legal profession and will bring a unique perspective to the administration of justice in Victoria.”

The CJ in waiting herself made some uplifting declarations about what women bring to the law when she spoke at a big nosh-up at Parliament House in May this year. Women lawyers, she said:

“Can identify an issue quickly focus on it and persuade rather than dictate Women provide perspective Women have finely honed organisational skills Women are adaptive and flexible”

The Commercial Bar Association, or Commobar, was also happy and told everyone that Marilyn is most suited to the position. It went on:

“The Chief Justice has been appointed at a time when the commercial bar and the commercial community of this State seeks (sic) leadership from the Supreme Court of Victoria in giving all commercial cases a guaranteed early fixed date for the hearing of trials and the ever important timely delivery of judgments in respect of those trials.”

imageWarren J’s most recent significant judgment was in the Popovic defamation case. The Herald-Sun appealed against Bernie Bongiorno’s findings and verdict in favour of Magistrate Jelena Popovic who was upset by one of Andrew Bolt’s rants in the paper.

Her Honour basically agreed with the rather unexceptional reasoning of Gillard AJA, but added some thoughts of her own. She said that the Lange principle of an implied constitutional right of free speech concerning political or governmental affairs did not extend to discussion about the judiciary.

Her reasoning was that the judiciary, while an arm of government, was special because it was separate and did not act politically. She was sure that the Lange doctrine, “although expansive and wide ranging, is confined strictly to matters of government and politics”.

Further, public confidence in the judicial process was of itself a basis for exempting the judiciary from any constitutional free speech protection.

Not much joy for the reptiles in that style of thinking.

On the day Warren J’s appointment was announced The Age carried a speculative front page story tipping that an outsider would be appointed to the job.

The paper mentioned every possible candidate, with the exception of Justice Marilyn. There was Justice Beazley from NSW, Justices Branson, Kiefel, Weinberg, Goldberg, Finkelstein and Little Ronnie Sackville from the Federal Court, Sally Brown from the Family Court, Justice Eames from the Supreme Court and Crennan, Maxwell, Kaye, Young and Burnside from the Victorian Rotisserie & Lounge.

Quaintly the story stayed on The Age web site even after the announcement came that Warren J was to be Warren CJ

Of course, there’s always hope in the breasts of barristers because a replacement trial judge will have to be found now that Warren is moving up.

And what news of old John Harber-Bridge Phillips who retired back on October 16?

The Sir Zelman Cowen Centre at Victoria University put out a flyer announcing that the former CJ will be playing “Ned Kelly, his mother, the singing ghost of Dan Kelly and others” in the dramatic presentation of An Irish Tragedy.

It’s on Thursday, December 4 and you can get in for $20.

From Barry Lane