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16 June, 2005  
Meet Mr Sumptuous

Jonathan Sumption, the 2 million man, comes to town … More privilege “slippage” from Channel Seven’s enemies … Boorishness at the Victorian Grill … Plenty of illness to report … Gough’s weird tips at L’Aqua dinner … Fine work by lawyers recognised by HM … Spigs reshapes the Supreme Court in his image

imageThe name Jonathan Sumption QC is being squeezed out through clenched teeth around Sydney’s Street of Shame.

He has been hired by Channel Seven and “Little” Kerry to head its enormous trade practices case against the rest of the moguls that gets underway in earnest before Ronnie Sackville on July 18.

Sumption will shift his life from London’s Brick Court to Sydney for about a year. He takes up the baton from Allan Myers, the big billing Melbourne silk who is ill with cancer.

Freehills, which is handing the Channel Seven case, felt it needed a top-flight fellow with brilliance, expertise and stamina.

When the team looked around for a local who possessed all those qualities there were precious few names on the table, let alone any who were available.

It’s interesting that the ranks of the most brilliant commercial silks are regarded by some as being rather thin.

What seemed to clinch it for Sumptuous Sumption was the big Carter Holt, market definition and trade practices case he did in the Privy Council against the Commerce Commission of New Zealand.

So he’s regarded as intimate with the territory. Also, he has just about the biggest hair at the London Bar n’ Grill.

He acted for the Blair government in the rather ratty Hutton inquiry. We found a report in The Guardian of his cross-examination of Andrew Gilligan, the journalist whose report on the BBC fired off the drama of the sexed-up intelligence dossier on the need to invade Iraq. Simon Hoggart wrote:

“Mr Sumption, one of our most majestic QCs, was the Iain Duncan-Smith (former leader of the Conservative Party) of the legal world.

He has the right ideas. He could put a sentence together. He knew what he was talking about. He is plainly a decent man. Except that, like IDA, he couldn’t land a fist on his opponent…

No 10 might think of saving a bit of money next time, and getting Carole Caplin to do the job instead.”

Carole Caplin was Cherie Blair’s “lifestyle guru” and presumably the saving money bit comes from the fact that the Sumptuous one pulls in 2 million a year ($A4.6 million).

Another document thrown up by Google was his submission to the government on the future of Queen’s Council.

Not unsurprisingly Sumption thinks the appointment of QCs is a wonderful thing. He explained:

“My main reason is that the rank of QC is an essential pillar of the public service ethic of the bar and the wider profession of advocacy

In practice the result has been to produce a strong public service ethic among barristers, which should not be underestimated simply because it is not quantifiable and is subject to periodic lapses”

[Enough, enough. Ed.]


Speaking of the Channel Seven case, Little Kerry’s side had a nice little winner the other day after Federal Court new boy Peter Graham gave a costs judgment in the applicants’ favour.

It seems that the 16th and the 22nd respondents, Optus Vision and Singtel Optus respectively, had been up to the usual stunt of claiming privilege on everything that moved, or 410 documents to be precise.

Antagonistic & Heartless is acting for the Optus outfits. Bit by bit claims of privilege were dropped with respect to 231 documents and Channel Seven decided not to seek orders to inspect the remainder. However, it wanted its costs.

Graham J reminded everyone of the judgment Tamberlin gave at the end of February when he thought the claim of privilege on a whole stack of News Ltd documents by Allens and the in-house Johnnies was “excessive”.

Just because Paul Fletcher, an executive at Optus, had plastered “legally privileged” on emails to his bosses, Chris Anderson and Max Suich, didn’t mean they were necessarily privileged at all.

The applicants filed a notice of motion to try and stop further “slippage” by Optus. Graham thought that was quite reasonable and gave Seven its costs.

Gold medal goose

What can one say about the dispiriting kafuffle into which the utterly fabulous Felicity Hampel was swept at the Victorian bar’s annual roast and toast dinner for new silks and bench appointees?

imageThe Australian Fun Review reported that drama arose because new nylon James Elliott came up with a bit of a locker room story about how Felicity was once seem emerging from the chambers of her husband, Gorgeous George Hampel, complaining that he had been working her very hard.

It’s hilarious, I know, because boof-headed members of the grill started to guffaw and snicker. Felicity was visibly upset and both Hampels later remonstrated with grill chairman Uncle Ross Ray.

By and large attendees at the do thought Elliott’s speech was pretty pedestrian. He and Uncle Ross later apologised to Judge Felicity Hampel in no uncertain terms.

Subsequently, less than amused members of the grill set to writing letters of protest to their chairman about the awful lapse of charm, taste and wit.

Emissaries were sent to hose down the trouble. Elliott even thought the protest petition was defamatory of him.

In view of the tone of the speech, I wondered if by any chance this fellow is related to the famous “Pig’s Arse” Elliott? I’m told not. He’s the offshoot of gold medal track champion, Herb.

Health notes

Illness, misery and death abound.

Former Chief Justice of the High Court, Sir Gerry Brennan, has broken his hip and Justice (M) Kirby went back into hospital for more surgery further tinkering was required after the first heart op a couple of weeks ago.

Predictably there was much gushing from Allens’ people after the death of the firm’s former head prefect, Huge Jamieson. But those close to Huge report that the old art patron was not entirely mesmerised by the way his “chums” at the law shop had treated him. He had something of a nervous breakdown in his retirement and died having lost a large part of his fortune in unfortunate schemes that had become fashionable among the partnership.

Roddy Meagher has had two toes amputated.

Gough’s tips

Can we ever forgive the ancient wizard for being the patron saint of the demented M. Latham?

Despite this lapse, E.G. Whitlam appeared like a snowy white lion at the 30th anniversary knees-up for the Australian Law Reform Commission at Cockle Bay Wharf’s L’Aqua restaurant and made an alarming prediction: that Philip Ruddock would appoint a well credentialed woman to fill the next High Court vacancy.

We don’t know the strength of that piece of divine inspiration, but there’s always hope.

Further, he said that by the time the next federal Labor government happens Noel Pearson would be ready to be the first and most splendid black appointment to the High Court.

He thought that Noel then would be the same age as Clarence Thomas when he was appointed to the US Supreme Court.

imageClarence Thomas, if you please (seen here).

Warming to his subject, the ancient statesman seemed unhappy with the arrangement whereby good people were constitutionally required to shuffle from the High Court at 70. By contrast the US Supreme Court has two justices in their eighties (Rehnquist and Stevens) and four in their seventies or at least their seventieth year (O’Connor, Scalia, Kennedy and Ginsberg).

The former PM made a further admission that, contrary to the instructions of his party’s hacks, he had voted for Liberal Senator Marise Payne as well as Labor stalwart Senator John Faulkner at the last election.

Gough was seen leaving the frolics escorted on the arm of a beaming David Bennett QC, John Howard’s solicitor general.

Honours, medals and garlands

How magnificent it is to see a healthy clutch of lawyers being heaped with honours and laurels by way of celebration of the Queen’s birthday.

Recognition for worthiness well overdue, I say.

Chief Justice Marilyn (Earl) Warren was the only one in the AC class, with Justices Goldberg (Vic), Jones (Qld), Kellam (Vic), Mathews (NSW) and Tadgell (Vic) installed in the AO division.

Freshly minted AMs went to: Dr John Bennett (the legal historian); Tom Bruce (contributions to cost assessment); John Ellis (family law); Danny Gilbert (indigenous social justice); Professor Gold (maritime law); Judge Gordon Lewis (professional accountability, etc); Catherine Lyons (former public defender); Kevin McCann (former Allens’ chairman and for services to mining law); Howard Olney (judiciary); Rodney Purvis (judiciary); and Jillian Segal (former deputy chair of ASIC).

Medals went to Joan Dwyer from Victoria for services to the community and the law and Tom Goudkamp in NSW, president of the Lawyers Alliance (plaintiff lawyers’ club).

A Conspicuous Service Cross is to be pinned on the chest of Colonel Dunn who has the splendid title of Director of Military “Justice”.

Finally, Eamon Patrick Moran QC scooped up a Victorian Public Service gong for outstanding legislative drafting.

Hip, hip, hooray.

Supreme Court turnover

imageChief Justice Spigelman in NSW has quietly remade the common law division of the Supreme Court in his image.

Last year and so far this year there have been five retirements from the common law division (O’Keefe, Sperling, Levine, Dunford and Greg James) and six appointments to the division (Hislop, Hoeben, Johnson, Hall, Latham, and Rothman). Another common law appointment is to be made on August 18, making seven newies since March last year.

There’s also been a bit of turnover on the Court of Appeal. Roddy Meagher departed on March 16, 2004, to be replaced by John Bryson, then Sheller left and Basten sworn in – both on May 2.

And there’s been one new equity judge within the last 18 months, Richard White.

This unprecedented rate of departures and arrivals has given Spigs a significant opportunity to put his thumbprint on the shape of the court for years to come, particularly in the common law zone.

Megan Latham

Spigs fought hard for Megan Latham to come across from the Dizzo in the face of political resistance. She would have been on the Supreme Court earlier had not the government attacked some of her sentencing decisions.

The issue was handled in the customary edifying manner in the parliamentary forum:

Andrew Tink: My question is to the Premier. Given that three years ago he attacked District Court Judge Megan Latham over the manifestly inadequate non-parole sentences of four years and three years given to two violent pack rapists, will he now discontinue his appointment of her to the Supreme Court?

Bob Carr: What a disgraceful attack! Not content with attacking the police commissioner, not content with attacking senior public servants at every opportunity, members opposite now start attacking judges. It ought to shame every female member of the Coalition. Under the Coalition Government the appointment of women to judicial posts was so rare as to be a public holiday event. In the entire period of the Coalition Government one female was appointed to the Supreme Court and three to the District Court.

Mr Speaker: Order! The honourable member for Willoughby will come to order.

Bob Carr: I am proud to say that this government has increased the proportion of female judicial appointments from 12 per cent under the previous Government to 30 per cent under Labor …

John Brogden: Who cares? We want good judges.

Bob Carr: ... including the appointment of 11 female judges to the District Court. And the Leader of the Opposition says, “Who cares?” Let that be reported in Hansard…

There is no doubt that Judge Latham is a person of the highest legal training and academic record. Her personal integrity has never been questioned.

Andrew Tink: Point of order: The words I used in the question are the words from the Premier, taken from of Hansard. You attacked Judge Latham, I did not.

Mr Speaker: Order! There is no point of order. The honourable member for Epping will resume his seat.

Bob Carr: Calm down, Andrew! Deep breathing, Andrew! Otherwise nurse will be here again with her trolley and her big needle, and you will be calmed by another means. Judge Latham is a person of the highest integrity. Are Opposition members positing the position that no judge who has ever had a decision overturned on appeal can be appointed …

John Brogden: No, criticised by you.

Bob Carr: ... or whose decision has been criticised, can ever be appointed to a higher judicial post? In other words, they are putting forward the proposition that no judge who has had a decision overturned on appeal or who has been criticised by the government of the day can be elevated to a higher court… I look at her record. She is a former Crown advocate, a Crown prosecutor, and an executive officer of the New South Wales Child Sexual Assault Task Force. She has served on the District Court bench since 1998 and has carried a heavy load with, as I understand, relatively few appeals against her decisions. The most recent appeal of which I am aware was an appeal against what was alleged to have been an unduly harsh sentence on Wollongong identity Neville Hilton.

Her appointment from the District Court to the Supreme Court was undertaken in full consultation with the Chief Justice and with the relevant professional bodies The honourable member for Epping, hostile to women being appointed to the bench, is now seeking to throw her on the scrap heap on the basis of one controversial decision in the enormously difficult area of the criminal justice. It indicates why the Coalition has made no progress whatsoever in getting more women in prominent positions in the law.

Carl Scully: Point of order: Following the use by the Leader of the Opposition yesterday of sexist language, today he has used words which are an affront to all women in this Parliament. Reflecting on who cares if a woman gets promoted to the bench is unparliamentary and should be withdrawn by him.

Mr Speaker: Order! All members should use language that uplifts the standards of the House.

Sir Terence says

My Queensland field agent, Sir Terence O’Rort, predicts that Brisbane silk Robert Bain is to be appointed to the Federal Court to replace the late Richard Cooper.

Stand by for the announcement from Fabulous Phil Ruddock.