2021: Not Such a Good Year (Deaths)

People mainly governed by twits By February 2021 (when Australia’s vaccine roll-out commenced), half a million Americans had died from COVID.  That was already more than had died in the world wars and the Vietnam War combined.  In one week in September, more Floridians died from COVID than all the Australian deaths from COVID to that point.   By year’s end, more than 800,000 Americans (‘It’s going to disappear. One day, it’s like a miracle, it will disappear.‘) were officially dead of COVID (more died in 2021 than in 2020), along with 600,000 Brazilians (‘We’re all going to die one day, everyone here will die. There’s no point running away from it, running away from reality. You need to stop being a country of queers‘), almost half a million Indians (‘Mahabharata war was won in 18 days. The war that the whole country is now fighting will take 21‘) and about 300,000* Russians, and the same number of Mexicans (‘You know when I’m going to put on a mask? When there is no corruption. Then I’ll put on a mask and I’ll stop talking.’)

But it’s not clear that any more Australians died in 2021 than usual; certainly, there were 8,000 fewer deaths in Australia the year before than in 2019. This website suggests that there were 3,520 fewer deaths than usual in Australia for the period April 2020 to October 2021. The suicide rate by people in Australia was the lowest in 2020 since 2016, contrary to what some would have you believe, and I doubt that it was higher than usual in 2021.

*Of course the above are just the official statistics. Instead of reporting the official figures and from time to time observing that they are likely to be grossly inaccurate in some places, it would be better to report best estimates of true figures, from time to time explaining the methodology by which extrapolations were made from official figures.  The Economist, for example, estimated that in May 2021 the true number of COVID deaths in India was 2.3 million, compared to the official figures of 200,000. This website has estimates of excess deaths for many countries.  The excess deaths in Russia over a 20 month period were nearly 1.1 million, a far cry from the c. 300,000 official COVID deaths. The true number of COVID deaths in many of the poorest countries is more difficult to estimate because they don’t count deaths properly.

A great piece at Crikey compares Australia’s and Texas’s experiences, two similar polities in terms of their economies, health systems, population numbers (though not attitudes to public health) and population distribution, but with very different leaders.  Nearly a month ago, it was estimated that about 100,000 Texans had died from COVID (more than the official statistics).   A vigorous right wing anti-mask campaign, and the failure to this day of 45% of the state’s population to receive even a first dose of the widely available vaccines, correlates with 80,000 more Texans being dead from COVID at Christmas time than in Australia.  Or, to put it another way, had we made like Texas, the increased number of Australians who would have died by the end of the year from COVID may have exceeded the number of Australians who died in either of the two world wars.

I would also observe that there have been 4.5 million confirmed COVID cases in Texas.  If true cases are 33% higher than confirmed cases, as Crikey suggests in relation to deaths, then there would have been 6 million cases.  In November, the Washington Post reported that half of COVID sufferers — including those with no symptoms — may experience symptoms of long COVID for 6 months or more.  That’s potentially nearly 3 million people fatigued or brain fogged or suffering anxiety for 6 months, and the risk of long COVID as a result of breakthrough infections in the vaccinated is much lower than  in infections of the unvaccinated, with the severity of the condition increasing in correlation with the severity of the infection.  The more telling statistic might be in the disparity between the small incidence of long COVID in Australia’s 400,000 odd cases, compared to the millions of long COVID cases which might be largely hidden from view in Texas.  Researchers reckon there are 100 million people suffering long covid worldwide, with women, the obese, and those who were intubated at greatest risk.

Wars According to Wikipedia, the major wars by 2021 fatalities were Afghanistan (44,000 violent battle deaths between identified groups, to the nearest 1,000), Yemen (22,000), Ethiopia (19,000), the Mexican Drug War (8,000), Myanmar (10,000), the African struggle against Boko Haram (8,000), Syria (6,000), Islamist insurgency in North Africa (4,000), Somalia (3,000), and Iraq (2,000).  It is very sad that hundreds of thousands of people met truly ghastly violent deaths far from their loved ones, many no doubt agonisingly painful and without much or any medical assistance.

A man who knew a lot about war and who devoted his life to the UN since before its inception died aged 101: Brian Urquhart.  He was the architect and long overseer of its peacekeeping operations. British born, he remained in the US after his retirement.

Science The guy who saved many from hunger by hybridising effete inbred commercial rice strains with wild rice, Yuan Longping, died.  He shared my love of padi, as rice in the field is known in Indonesian / Malay (hence paddy fields).

Old Englishmen Philip Schleswig-Holstein-Sonderburg-Glücksburg died, after a couple of renamings, on the precipice of a ton. The Corfu-born Greek, Danish, German, Russian and British chap married his cousin, also a great-great-grandchild of Queen Victoria, becoming Prince Phillip, Duke of Edinburgh.  He quipped ‘It’s a pleasure to be in a country that isn’t ruled by its people’ on a visit to Paraguay’s dictatorship in 1963, and made many more jokes which were described as gaffes.  But he was at the wheelhouse with his wife through a period of unprecedented change in the 1,000 year old institution of the British monarchy, and was given a generally positive portrayal in Netflix’s The Crown, season four of which entertained many in 2021.  That show suggested that the Prince was enthusiastically instrumental in the creation of Royal Family, a 1969 documentary film about a year in the life of the Queen, an early form of reality tv.  It went to air in 1969 but the Queen later banned it. It was in 2021 that it was leaked to Youtube, where it may still be viewed.

But the Prince’s greatest contribution to his wife’s Australian subjects was entirely involuntary, and resulted from his last renaming when Tony Abbott made a captain’s call to recommend to the Queen that she rename her husband Sir Prince Phillip, Sir Duke of Edinburgh, as part of the Australia Day Honours in 2015.  Andrew Bolt, an acolyte of both the Queen and the Prime Minister, could not find words to describe the stupidity of the act.  A few weeks later, Abbott bit into and masticated upon a raw unpeeled onion while touring an onion farm, and a few weeks after that, Malcolm Turnbull deposed him as prime minister. Then, of course, he lost his seat to a woman lawyer who believed in the climate emergency, and he went to work for the government of his homeland, where he would have found the Tories (and Prince Charles) to be distinctly left-wing compared with his world view and the policies of his government.  They would not have understood the climate wars, for example, since Britain’s climate policy is largely bipartisan.

Then there was dear old Captain Sir Thomas Moore (wow, what a name), who did make a century. At 99 he decided to walk, aided by his walking frame, 100 lengths of his garden with the aim of raising £1,000 for the National Health Service during the COVID pandemic, and ended up raising £33 million.

Lord Vestey was the great grandson of Dame Nellie Melba, claimed to be the only trained butcher to sit in the House of Lords, was great mates with Prince Charles, and owned great swathes of Western Australia and the NT where he ran cattle.  He features in Paul Kelly and Kev Carmody’s song ‘From Little Things, Big Things Grow’ (‘British Lord Vestey and Vincent Lingiari/Were opposite men on opposite sides’).

And I cannot but mention the Oxford don whose thing was Byzantium, being what they call the second Roman Empire, heaquartered in Constantinople.  I must mention Cyril Mango mainly because I think he had one of the best names I’ve heard.  Rather wonderfully, he married Mabel and made her into Mrs Mabel Mango.

Lawyers F. Lee Bailey, one of O.J. Simpon’s lawyers, died, struck-off.  He asked the policeman he accused of planting the bloodied glove whether he had used the word ‘nigger’ in the last decade. The response was inconsistent with the recordings Bailey produced. Simpson was acquitted of murder and Fuhrman was convicted of perjury. A self-promoter, he got between trials in a Lear jet and appeared in a Smirnoff ad.

John Rizzo was the C.I.A. lawyer who shamefully sanctioned the torture technique known as waterboarding and led the leader of the free world, incredibly, to torture people held without judicial authority and without trial in black sites around the world because the program was too hot for the Defence Department to house. He died a month before the 20th anniversary of 9/11, which spawned many a documentary, including this not bad Netflix number which dealt with Rizzo’s role well.

(One of the 20 blindfolded, shackled, orange jumpsuited, kneeling caged humans in a famous image from day 1 of Gitmo died in Port Sudan.  On one version of events, Ibrahim Idris‘s torture by George W. Bush’s agents fried his mind.  He spent 11 years in Guantanamo Bay without ever being charged or tried, and was allowed to go home to his mother in Sudan only because he was so impaired by morbid obesity and schizophrenia that it could not credibly be claimed that he was a threat to anyone so as to justify his ongoing degradation in Guantanamo Bay.)

Sarah Waddington successfully argued Roe v Wade 410 U.S. 113 (1973) in the Supreme Court, twice, for her client Norma McCorvey, aka Jane Roe, who became a lesbian and a Christian.  Fresh out of law school, unable to get hired by law firms because she was a woman, Waddington was 27.  According to McCorvey’s deathbed confession, she sold out to the anti-abortion lobby and pretended to have been become an anti-abortionist, for money.  But the anti-abortionists claim her conversion was genuine and she  was just trying to improve her legacy with her false ‘confession’.

Colin Lovitt QC was perhaps best known for successfully defending Greg Domaszewicz in his trial for the Moe murder of baby Jaidyn Leskie.  I did Andrew Palmer’s subject Proof as part of my LLM and we charted the inferences we claimed flowed from the prosecution’s brief of evidence in that trial. Here is Mr Lovitt’s contribution to Foley’s List oral history project.  Other characters who passed in 2021 include Michael Ruddle, Dan Christie, and Tom Bruce.

Master Bruce, né Peter Bruchsteiner, was a Milanese of Hungarian ancestry whose parents died in Auschwitz.  He arrived in Melbourne to live with relatives without a word of English.  In 1973 he was appointed Taxing Master and in his third of a century in the job, conducted thousands of taxations a year, back when the primary business of what is now the Costs Court was actually hearing taxations.  Ormiston J described him as ‘one of the most experienced taxing officers in the common law world’.  He retired in 2006, the third longest serving judicial officer at the time, was a patron of the arts, and had a long association with the government of the University of Melbourne. 2021 was my first year as a member of the Victorian Bar News Committee, and it was my privilege to commission Justice McMillan’s obituary, which may be found at p. 88 of the 50th anniversary edition of Bar News.  One of its founders, Peter Heerey, a distinguished Federal Court judge, also died in 2021.

Dick Stanley QC was the doyen of Melbourne personal injury barristers. Frank Walsh and Frank Saccardo were County Court judges.  Chester Porter QC was a legend of the Sydney Bar.  I read his he Conviction of the Innocent; How the Law Let Us Down early in my career as a barrister. Another Sydneysider, Hal Wooten sounds like a good sort.

Jamaicans Bunny Wailer, the reggae frontman of The Wailers, died. The first black British policewoman (1968) was Sislin Allen.  She was Jamaican, and therefore Carribean like a lot of the established black people of London, recruited from the educated middle classes for migration from within the Commonwealth to restore the post-war economy, known as the Windrush generation after the name of the first ship which arrived in 1948.

The first black Secretary of State and the first black Chairman of the Joint Chiefs of Staff was Colin Powell who succumbed to COVID.  He too was Jamaican by ancestry, the son of immigrants, and grew up in the Bronx. He was a soldier by occupation, injured in Vietnam. In his autobiography, he said of his experiences in Vietnam that ‘Many of my generation of Vietnam-era officers vowed that when our turn came to call the shots, we would not quietly acquiesce in halfhearted warfare for half-baked reasons that the American people could not understand.’  Having served three Republican administrations, often moderating the extreme hardline neocon positions of Dick Cheney and Donald Rumsfeld (see below), Powell endorsed Barack Obama’s and then Joe Biden’s presidential campaigns and was an outspoken voice of reason in the Trump era, privately describing him in writing as a national disgrace, an international pariah, and a racist, and publicly describing him as a liar.  When he retired, he was the most popular public figure in America which explains why he reportedly received a US$6 million advance for his well-received memoirs.  The Powell doctrine seems to have survived real-world testing a lot better than the Rumsfeld doctrine, which, like the Federal Government’s climate change policy, relied heavily on technologies which were more hyped than tested, and emphasised the minimum possible numbers of ‘nimble’ boots on the ground.

But it was Powell who put the case to the United Nations‘s General Assembly for the invasion of Iraq in 2003, a 75 minute speech in which he asserted as fact that Saddam had chemical, biological and perhaps even nuclear weapons.  He told Larry King he regretted having made the speech.  He had guided George W. Bush towards focusing on Afghanistan in the immediate aftermath of 9/11, and then given stern warnings about the risks of invading Iraq, warning that an invasion would destablise the Middle East and leave America with a massive reconstruction burden, but did as he was told by the President when making the speech.

Australians Andrew Peacock, once of Kooyong, died at home in Texas.  John Elliott, too, of Elders IXL fame (it owned Carlton United Breweries which made Carlton Draught), a federal president of the Liberal Party and of the Carlton Football Club, a man who claimed to have run out of money by losing litigation on which he spent $11 million.  He aspired to be prime minister.

Fellow Carlton fan, Sir James Gobbo died. A Roman Catholic of Italian extraction, like Tom Bruce, he spoke not a word of English when he arrived from Italy aged 7, despite having been born in Carlton. Brother of Nicola’s late father, he was given a state funeral.  Sir James said his proudest achievement was his family. They did not maintain a dignified silence about Nicola.  A judge of the Supreme Court of Victoria from 1978 to 1994, he was Governor from 1997-2000 and later Commissioner for Italy for the Victorian Government (who knew there was such a job?).

Bert Newton, Brian Henderson, Ernie Sigley and Peter Cundall all left Australian screens in 2021.  Mr Cundall was born to a very poor family in Manchester and left school aged 12.  His gardening talkback spot on radio was one of the first of its kind in the world.  He continued broadcasting into his 90s.  He was a committed campaigner against the destruction of Tasmanian wilderness.

Michael Gudinski of Toorak died and was buried at the St Kilda cemetry, having brought Frank Sinatra, Madonna, Bruce Springsteen, and the Rolling Stones to Australia, and promoted and championed Kylie Minoque whom he signed as a teen, Split Enz, Jimmy Barnes, Archie Roach and Paul Kelly. What was reported as a heart attack looked more like death by mixed drug use to the coroner.  He founded the largest independent Australian music and entertainment outfit and left assets worth $46 million.  Unlike Phil Spector who also died in 2021, in prison, he managed to avoid murdering anyone.

Writing The great University of Melbourne historian Stuart McIntyre died. Christopher Little was 6’4″ and had huge feathery eyebrows.  J.K. Rowling sent him the first three chapters of her first manuscript because she thought his name sounded like a character in a children’s book.  He threw it in the bin, but his secretary had a read, intrigued by its distinctive binding, and insisted he take a look.  He agreed to be her agent, and found a publisher, negotiating canny deals which had something to do with Ms Rowling becoming the first author in history to make a billion dollars from selling their books, one of only five self-made female billionaires, and nearly the 1,000th richest person in the world.  Little’s in-house lawyer started up his own literary agency and Ms Rowling sacked Little and went with his lawyer.

Eric Carle, whose The Very Hungry Caterpillar I could quite recently recite from memory wrote 69 other books illustrated with collages of cut out tissue paper, which together sold 170 million copies in several dozen languages.  The caterpillar turned 50 in 2019.  His love of colour was a reaction to the dullness of life in Germany during the second world war, where he grew up.

Janet Malcolm was a great American writer on the staff of The New Yorker. A Czech-born Jew, her family emigrated to New York just before the second world war. The daughter of a lawyer and a psychiatrist, she wrote two books about litigation, and was herself the subject of a libel trial which dragged on for 10 years.  Iphigemia in Forest Hills is a rare example of highbrow true crime, the anatomy of a murder trial.  The Journalist and the Murderer was the critical study of a journalist’s relationship with his subject, Dr McDonald, who murdered his family and is studied in most undergraduate journalism degrees.

Apparently, Joan Didion was another great journalist and memoirist of New York, who wrote for Vogue and had great parties. There’s a Netflix documentary about her.

Deborah Rhode was a great American legal scholar about whom I was, embarrassingly, ignorant until her death, given that she was America’s most cited legal ethics scholar.  Two obituaries here and here. I promptly purchased In the Interests of Justice; Reforming the Legal Profession which I should have read more of instead of watching Netflix, etc.

(Room 2806, about the fall from grace of Dominique Strauss-Kahn, President of the World Bank and aspirant for the French presidency when he allegedly brutally raped a chamber maid was very good, Bridgerton was fun, it was incredible to know that The Serpent was based on true events, Sophie, A Murder in West Cork was a good true crime show, and Maid was flawed but oddly compelling,  On platforms which don’t conveniently keep a list of what one watched, so far as I can recall, Mare of Easttown and White Lotus were both good.

Most incredible of all were two documentaries which often turn up in lists of the greatest documentaries of all time, Joshua Oppenheimer’s The Look of Silence and The Act of Killingabout the slaughter in Indonesia, Bali included, of half a million to  a million ordinary non-fascists described as ‘communists’, a period in which women described as communists were raped and a million jailed without authority.  The documentaries show how the paramilitary gangs who carried out the killings as the military’s factotums remain an integral part of Indonesian society, and how the thugs who personally murdered thousands of their countrymen, often by garotting them with a piece of wire, waltz around the very towns where the atrocities were committed with complete and utter impunity. You can watch them on Docplay.  Then there was En Therapie, and Le Bureau both French shows on SBS, both excellent.)

Eddie Jaku, the Holocaust survivor who published The Happiest Man on Earth at 100 died within the year. So did 97 year old Lotte Weiss, one of the first Jewish prisoners in Auschwitz who wrote My Two Lives. Both died in NSW.

Geoff Crowther, who was publishing travel guides before Lonely Planet and later wrote many of the first editions of Lonely Planet’s famous guides.  I remember his pictures at the front of the Lonely Planet guides I took on my first big solo trip.

Australian Wendy Brennan (sub nom Emma Darcy) wrote and sold 70 million Mills & Boon romances. She read and analysed 100 of them she bought from a second hand bookshop before she wrote her first.  At the other end of the female writing spectrum, the poet, essayist and memoirist Kate Jennings passed. Zambian-born African adventure writer Wilbur Smith died, selling twice as many books as Ms Darcy.

Film and television David Gulpilil Ridjimiraril Dalaithngu of Yolgnu country in north-eastern Arnhem Land was much mourned as David Dalaithngu for three days after his death and thereafter by his professional name, David Gulpilil.  I doubt any Australian actor has had more movies made about him: including Walkabout to Hollywood, One Red Blood, Another CountryCharlie’s Country, and My Name Is Gulpilil.

The Englishman who made the 7 Up, etc. documentaries (the last was 63 Up), (along with Gorillas in the Mist and a James Bond film), Michael Apted, died in LA.  Helen McCrory, who played the matriarch Polly so well in Peaky Blinders, died at 52. Mikis Theodorakis wrote the score for Zorba the Greek.

The US talk show host Larry King was a victim of COVID. He interviewed maybe 50,000 people.  Here he is with Joe Biden; with Donald and Melania as newlyweds; and with the present Dalai Lama the rather silly questions in which suggest that his claim never to prepare much for interviews may not have been a shtick.

Jean-Claude Carriere died.  He wrote the screenplay for Luis Buñuel’s surrealist The Discreet Charm of the Bourgeoisie, and Belle de Jour, another Buñuel movie about a married prostitute (Catherine Deneuve).

Speaking of which, Larry Flynt, the American publisher of the blue collar porno Hustler and blue movie maker also passed, probably not into the afterlife, as he was an atheist.  He is the subject of The People Against Larry Flynt, and a libel case against him went to the Supreme Court (Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988)) and established that the First Amendment extends to all self-evidently satirical speech about public figures, even that calculated to inflict ridicule and emotional distress (e.g. the Campari ad he published featuring a televangelist boasting of having had drunken sex with his mother in an outhouse).

Music Alemayehu Eshete was a star of Ethiopian jazz of the kind popularised in the west by the Ethiopiques label. His act of transgression — making a record — when tolerated by the State, sparked a renaissance of indigenous jazz, a wild fusion.

Stephen Sondheim wrote Broadway musicals like Into the Woods, and wrote the lyrics for West Side Story for which Leonard Bernstein wrote the tunes. He died just before the premiere of the just-released Steven Spielberg film version. Sweeney Todd is the story of a barber obsessed with murdering a judge who had wrongfully convicted him and who made pies out of his customers after slitting their throats with a straight razor.

The great white jazz pianist Chick Corea died.  He won the most Grammys of any jazz musician, and had a diverse and prolific career as a composer and jazz performer, playing with Stan Getz, Sarah Vaughan, and on some of Miles Davis’s weirder stuff, like ‘Bitches’ Brew’, as well as ‘In a Silent Way’.  Testament to his versality is this video of him and Keith Jarrett playing Mozart’s double piano concerto, very straight.  Compare ‘The Mozart Sessions‘, with Bobby McFerrin.  Like Mozart, he improvised cadenzas.

Another great white jazz musician to pass was Charlie Watts, best known for his side gig drumming the Rolling Stones. He eschewed the rock and roll lifestyle of his fellow band members for a dapper, eccentric, comparatively quiet one (a 2 year bender being an aberration). He sketched each hotel room he stayed in,  and had a collection of luxury vehicles. Never having learnt to drive, he just switched them on and listened to their engines thrum.

James Levine, sacked from the Met for alleged sexual indiscretions with young male singers, died after a storied career with the New York opera house, and after it settled his case against them arising from his dismissal for US$3.5 million, rather casting doubt on the strength of its case against him.  The court case revealed that his fee per performance was US$27,000.  ‘Live from the Met’ programs made him one of the most recognised classical musicians of his times. He had long associations as conductor with the Munich Philharmonic, the Berlin Philharmonic, the Vienna Philharmonic and the Chicago Symphony Orchestra, and also played the piano well.

Bernard Heitink was a Dutch conductor who played the violin and who led the orchestra of my favourite of those few concert halls I have been to, Amsterdam’s Concertgebouw.  He was famously modest and unassuming.  He recorded the complete symphonies of a dozen composers, sometimes twice.

Architecture The Pompidou Centre blew me away when I went to Paris, even though it is in my recollection essentially a library full of French books, in which I dutifully spent some time reading but not really understanding a French biography of Francis Poulenc since there did not seem to be much else to do (though the internet tells me it also houses a large modern art gallery).  It seemed as exciting to my youthful mind as the Opera House, with its intestines pinned to its exterior, though two buildings could hardly be more different, and I doubt I would have the same response to it now I’m twice the age I then was.  One of its architects, a noted collaborator with the other (the Italian Renzo Piano), passed away.  Richard Rogers also designed London’s Millennium Dome, and Lloyds of London’s headquarters, and the strangest courts I’ve ever seen, in Bordeaux. He was actually a Florentine with an English sounding name because his father was an Anglophile, and he made his home there.

Government F.W. De Klerk shared a Nobel Peace Prize with Nelson Mandela, whom he released from jail, and presided over an orderly transition of power from whites to blacks in a manner as unexpected as Mikhail Gorbachev’s dismantling of the Soviet Union.  He continued on for a couple of years as Mandela’s deputy, but that did not work out too well.

Desmond Tutu was the Archbishop who campaigned for sanctions against the Apartheid regime, preached non-violence, presided over the first great restorative justice project in the Truth and Reconciliation Commission, and caustically criticised white governments and then ANC governments alike.  He too had a Peace Prize. He was an early and powerful voice against homophobia and criticised some of Israel’s policies towards the Palestinians.

(The 2021 Peace Prize went to Maria Ressa and Dmitry Muratov, journalists in the Philippines and Russia respectively, bravely fighting for freedom of speech.  The prominence they gained from the Prize may explain why they did not die in 2021.  These guys are real freedom warriors, whose actions make the ersatz rabble who conducted violent campaigns in the streets of Melbourne in 2021 look absurd.  The prize for literature went to Abdulrazak Gurnah, who fled Zanzibar for London before it combined with Tanganyika to form Tanzania, where he is virtually unknown.)

Kenneth Kaunda was landlocked Zambia’s founding president, a post he relinquished only after 27 years.  He pressed hard for the release of Mandela and was instrumental in anticolonial initiatives in southern Africa.  It was to Lusaka that Mandela flew to meet with exiled ANC leaders, shortly after his arrest.

Chad, which also had a Truth Commission, was in the news, unusually. On the way to Timbuktoo one time, I met this other-worldly German couple who erected their tent on their hotel bed and slept inisde it, and told me they were heading over to Chad, via Gao, a town I’ve wanted to go to ever since, ‘to study indigenous techniques of mango preservation’.  They must have really wanted to find out in person how to dry mangoes the Chadian way, because it has long been one of the least friendly places to visit.

Hissène Habré was a textbook evil dictator who took power in a US-sponsored coup and was propped up by Israel, France and the US to keep Libya at bay.  He was sentenced in Senegal to life imprisonment by the Extraordinary African Chambers set up by the African Union, for crimes against humanity between 1982 and 1990 which included murdering 40,000 of his people, Mediaeval style torture of 200,000, and enslaving women to act as slaves for his soldiers, including 13 year old girls who were constantly gang-raped.  He was ordered to pay US$150 million in compensation to 8,000 victims, but that did not happen.  He himself was an enthusiastic rapist of his soldiers’ slaves and defended the case against him on the basis that one of the slaves was actually a nymphomaniac prostitute and another a crazy whore. One of his lawyers made the following cryptic and swaggering remarks to the media: ‘There has been too much posturing in this case.  But as the great Vladimir Ilyitch Ulyanov Lenin once said, “Only the truth is revolutionary.”‘ There is an incredible long read account of the prosecution here, and a film about it (‘The Dictator Hunter’), which I look forward to reading and watching, and a book (see pic). Rot in Hell, old boy.

Idriss Déby, one of his generals, seized power from Habré in a coup.  He too died in 2021 as he was about to win his sixth election to become one of the world’s longest serving leaders when he was killed on the battlefield, commanding the troops of one of northern Africa’s best armies.  He squandered the oil and uranium wealth of the people of Chad who remain some of the world’s poorest, with a life expectancy of 54, especially on the armed forces.  But his close relationship with France, and his willingness to battle Islamic terrorism in the Sahel endeared him to the international community.

Another long-term north African President to pass in 2021 was Abdelaziz Bouteflika who ruled Algeria for 20 years until he was forced from power in 2019 by peaceful popular uprising.  He probably should not have gone for that fifth term. He was rarely seen after a stroke in 2013 but nevertheless improbably purported to win the 2014 election, and might have counted himself lucky to have got away with it and got out while he could.  He was only briefly married, and had no children. Algeria, like Chad, was another security state I would not want to have been on the wrong side of.

Benigno Acquino’s assassination unleashed a wave of people power that unseated the dictator Fedinand Marcos.  His wife Cory became President, and their son Benigno in turn following her death.  This Benigno died in 2021, also the year in which his nightmarish successor, Rodrigo  Duterte, announced his retirement from politics. The International Criminal Court is investigating Duterte’s involvement in his assassination campaign against drug dealers.  He stood up to China over the South China Sea and stared down the powerful Catholics in his country to pass a law which allowed the poor easy access to contraception.

Michael Somare, Papua New Guinea’s “Father of the Nation” and Joseph Watawi, leader of the Bougainville freedom fighters, both died.

Villains and rogues not yet mentioned Roger Kibbe, a serial killer, was murdered by his cellmate. Bernie Madoff went from prison to (presumably) Hell in 2021. He created the most successful Ponzi scheme ever.  The United States sought restitution of US$150 billion.  He was sentenced to 150 years’ imprisonment.  He was actually a genuine Wall Street fixture who exploited the trust he had and went bad, very bad, ruining many lives, and prompting a couple of his clients to kill themselves. One day he confessed to his son that his money management business was one big lie.  His son promptly reported him to the authorities, and the rest is history.  Pupetta Maresca was a powerful Neapolitan mafiosa.

Boko Haram leader Abubakar Shekau, the knucklehead who kidnapped 300 schoolgirls in 2014, died on the orders of ISIS who figured he was giving violent Islamic insurgency a bad name, which he definitely was.  He blew himself up rather than accepting an offer of surrender. The leader of the Islamic State in the Greater Sahara, Adnan Abu Walid al-Sahrawi, was killed by French forces which have been conducting their own War on Terror in the harsh territory of the Sahel since 2013 which seems to me to be a very useful yet under-reported service to the world. The founder of Peru’s Maoist Shining Path rebel group, Abimael Guzman, died in jail.  It must be observed that 1980 was late in history for a Maoist organisation led by a philosophy professor to declare war on the state and kill 30,000 of his own people.

Rush Limbaugh was a vile shock jock whose weaponisation of out and out lies and virulent, taunting invective was aped to great effect by Donald Trump.  The latter had the former receive the Presidential Medal of Freedom at his last State of the Union address.  Limbaugh was the father of much that went wrong with the media.  Had the fags he smoked got him earlier, it is plausible that there would not have been an attempted coup in the supposed temple of democracy in 2021.

Donald Rumsfeld was twice Secretary of Defence.  The youngest, he was appointed by Gerald Ford, a fellow who became Vice President when scandal overcame the incumbent, and then a few months later President in the same circumstances, replacing Richard Nixon, and so did not really have a platform.  The oldest, he was appointed by George W. Bush, a reformed alcoholic and born again Christian whose platforms were ‘My Dad is George HW Bush’ and ‘Saddam tried to assassinate HW and that ain’t gonna go unpunished,’ who hung out a lot with diamond geezers like Rush Limbaugh and Billy Graham.

Rumsfeld was Vice-President Dick Cheney’s selection for Secretary of Defence.  If the film Vice (which I reckon I watched in 2021) is accurate , Cheney was the most powerful Vice-President of all time, having said he would accept Bush Jnr’s invitation to be his Presidential running mate on condition that he would be in charge of foreign policy and defence, and a lot more besides, and Cheney and Rumsfeld effectively ran the administration, with George W a kind of folksy mascot. Cheney had been George HW Bush’s Secretary of Defence during the 1991 Gulf War, when a US-led coalition came to the defence of Kuwait which Saddam Hussein had very stupidly invaded, and then invaded Iraq, slaughtering its soldiers as they retreated by bombing them from the air, before withdrawing, short of Baghdad. Many attempts were made to assassinate Saddam during that brief war.  George W believed that Saddam had sent a kill squad to Kuwait to assassinate George HW in 1993 on his triumphal visit, and a Kuwaiti court did so find.  The US rained some cruise missiles on Iraq in retaliation.  Then in 1996, the CIA tried to pull off a coup against Saddam. It didn’t work.

So, when on 11 September 2001, Secretary of Defence Rumsfeld was watching the twin towers burn on tv in the Pentagon and a third plane crashed into the building he was sitting in, he and the President were not dispassionate about this attack by 15 middle eastern types (15 Saudi Arabians and 4 others whose number included no Iraqis and no Afghans technically, but you get the drift) commanded by a prominent Saudi.  Osama bin Laden had been hanging out in Afghanistan which tolerated Al Qaeda, admittedly.  Rumsfeld immediately started talking about cleaning up Iraq in the retaliation, and two years after the attacks, per a Washington Post survey, 69% of Americans incorrectly believed Saddam Hussein was personally involved and 82% incorrectly believed Saddam provided assistance to bin Laden.  So Australia and the US and others invaded Iraq at Rumsfeld’s urging.

The legacy of the decisions made by Bush, Cheney and Rumsfeld became apparent in 2021 not only because obituarists fell to consider it, but also because the 20th anniversary of 9/11 prompted many re-analyses; the Taliban won the war Rumsfeld commenced; and the temporary depravity of Australia’s military in the post-9/11 wars was raked over in the ABC’s defence of Victoria Cross winner Ben Roberts-Smith’s defamation case.

The wars in Iraq and Afghanistan morphed into the War on Terror which an American University has estimated cost US$8 trillion in relatively direct costs incurred and to be incurred, as well as massive interest costs on the money borrowed to pay for them, and massive indirect costs.  Nearly a million people died as a result of direct war violence.  Thirty-eight million people were displaced.  And the spectacular failure of the whole enterprise, and its costs, contributed to dissatisfaction with government business as usual which allowed Donald Trump to claim the Presidency on a platform of withdrawing troops and stepping down as the world’s policeman.

Geoffrey Edelsten died, having pioneered the 24 hour super-clinic, and saved the Sydney Swans, introducing dancing girls into AFL in the process, echoes of whom may be found today at Big Bash cricket.  He was deregistered as a doctor and applied for re-registration unsuccessfully, having obtained a doctor of philosophy (and a law degree) and gone back to calling himself Dr Edelsten.  He hired hitman Christopher Dale Flannery to assault a former patient, and went to jail.  He saved the Sydney Swans and married buxom blondes, in one case 47 years his junior. There was no one the tabloids like to deride more. He was a most unusual fellow, and once attended the Melbourne Cup dressed in a yellow suit, a yellow shirt and a yellow tie, a crime of which he was never convicted.

Truth tellers Mohib Ullah was a prominent spokesperson for the Rohingya, assassinated in the refugee camps of Cox’s Bazaar in Bangladesh, poor man. Ole Anthony was a Norwegian born atheist who suddenly became a rather odd ascetic hunter of corrupt televangelists, but was accused of turning his group of co-crusaders into a cult. Ches Baragwanath was a very good Auditor General.  Steve Bracks reckons part of the reason he beat Jeff Kennett was his promise to restore the powers of that office which Kennett had sought to ‘outsource’.  Crown was much in the news in 2021.  Baragwanath  was ticking it and the government off in 1996.

The legal system has failed to absorb research into the frailty of human memory

The English High Court’s Justice Leggatt (now a judge of the Court of Appeal) was called upon to decide a claim for £14 million in which the plaintiff relied on a contract said to have been entered into at the Horse & Groom public house in Great Portland Street in London.  (Freshfields’ case note is here). In Blue v Ashley [2017] EWHC 1928.  His Honour reiterated earlier comments he had made to the effect that:

‘While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people’s memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate.’

The modern approach, his Honour essentially said, is to get all the authentic documents and study them carefully and then allow memory only to fill in the gaps.  This is what his Honour said:

Continue reading “The legal system has failed to absorb research into the frailty of human memory”

Appeals from VCAT on the basis of inadequate reasons

A failure to give reasons is an error of law.[1] Seriously inadequate reasons are corrosive of public confidence in the administration of justice and ought not to be tolerated by an appeal court, since justice must not only be done but be seen to be done. This is the first public policy informing the requirement for reasons by courts and court-like tribunals. As the Supreme Court has observed:

‘To have a strong body of evidence put aside without explanation is likely to give rise to a feeling of injustice in the mind of the most reasonable litigant.’[2]

That is especially so in relation to factual determinations where a right of appeal lies only on a question of law. Even more especially so in a quasi-criminal[3] prosecution with serious consequences for the practitioner in which a disciplinary prosecutor carries the burden of proof as described in Briginshaw v Briginshaw. Continue reading “Appeals from VCAT on the basis of inadequate reasons”

2016: not such a good year (part 2: deaths)

The Hon. Alan Goldberg AO, QC, portrait by Jacqueline Mitelman

Lots of unfamous people died horrible deaths last year: see part 1, and more to come. But more than the average number of famous pulses seemed to flatline in 2016. The grim reaper took a few big scalps prematurely: Max Walker at 68, David Bowie at 69, Prince at 47, the Beastie Boys’ John Berry at 52, and George Michael at 53. You could say that Brangelina karked it too.

Then there were the other cultural icons who shuffled off: Continue reading “2016: not such a good year (part 2: deaths)”

Proving a loss for insurance purposes; inadequacy of reasons as an appeal ground

In Kalloghlian v Chubb Insurance Company of Australia Ltd [2016] NSWSC 902 (the Court’s summary is here), a man said he purchased a Rolex in Syria in 2005.  He insured his things with Chubb against loss anywhere in the world.  The policy was described as ‘Deluxe’.  It specifically insured items  which the insured owned as well as things he possessed.  The insured said he lost the watch on Copacabana Beach in July 2014.  The police declined to take a report.  He had no receipt from its purchase.  He could not remember from which jeweller he had purchased it.  He had lost his passport for the period of the trip to Syria.  Chubb declined the claim.  The insured sued.  The Magistrate dismissed the suit.  The insured appealed. The Supreme Court ordered a new trial.

The decision is hardly ground breaking.  But it is simple.  And it is useful to be reminded about the following:

  1.  An insured may prove a loss by giving oral evidence of the loss.  A lack of documentary or other corroboration is not fatal.  It is just something to be assessed in considering whether the plaintiff has satisfied the Court it is more likely than not that he suffered the loss.
  2. That is so even where it is a condition of cover under the policy that the plaintiff provide various proofs of ownership and of loss.  That is because s. 54 of the Insurance Contracts Act 1984 excuses breaches by the insured of policy conditions where the breach cannot have caused the loss, except to the extent of any prejudice to the insurer.
  3. Even busy decision makers in over-worked jurisdictions have to identify controversies raised by the parties which are necessary to determine in order to find for one party or the other, and explain why they resolved those controversies the way they did.  A failure to do so will result in the decision being set aside.  Robert Sheldon QC’s blog keeps an eye on this area of law.  See here and here and here.  The Court’s summary of the obligation in New South Wales to give adequate reasons is set out in full below.
  4. Where the facts are ascertained sufficiently that there is only one correct decision, the appellate tribunal may substitute its decision.  Where, as here, however, it was necessary to take into account how witnesses presented, the appellate tribunal will remit the case to be re-heard, where necessary (as here) by a new decision maker.

The obligation to give proper reasons, especially where there are contests of oral evidence, is an important one and should be jealously guarded.

Continue reading “Proving a loss for insurance purposes; inadequacy of reasons as an appeal ground”

Solicitor’s correspondence with judge telling him how immature his conduct was doesn’t go down well in disciplinary tribunal

Update, 5 October 2016: this decision is under appeal.  See this post.

Original post: In Council of the Law Society of NSW v MAG [2016] NSWCATOD 40, a Sydney solicitor was disciplined for writing a private letter of complaint to a Federal Court judge the day after a decision was handed down, adversely to his client in favour of the Tax Man.  The next day he wrote to the trial judge a letter not copied to the other side which commenced:

‘As solicitor for the Applicant in this matter, I have serious concerns about your conduct and decision in this matter. These are:

1. The somewhat immature and inappropriate comments you made to me …’ Continue reading “Solicitor’s correspondence with judge telling him how immature his conduct was doesn’t go down well in disciplinary tribunal”

WA solicitor’s unilateral communication with judge’s associate was professional misconduct

It may be professional misconduct for a party’s lawyer to communicate with the judge’s associate (or, of course, the judge) without her opponent’s consent if the purpose of the communication is to influence the conduct or outcome of the case: Legal Profession Complaints Committee v NKC [2012] WASAT 77 at [147] et seqIn this solicitor’s case, the disciplinary tribunal said the unilateral communication amounted to ‘a substantial failure to reach the standard of competence and diligence that a member of the public is entitled to expect from a reasonably competent Australian legal practitioner’.

Victorian solicitors’ conduct rules say at r. 18.5

‘A practitioner must not, outside an ex parte application or a hearing of which the opponent has had proper notice, communicate in the opponent’s absence with the court concerning any matter of substance in connection with current proceedings unless:

1. the court has first communicated with the practitioner in such a way as to require the practitioner to respond to the court; or

2. the opponent has consented beforehand to the practitioner communicating with the court in a specific manner notified to the opponent by the practitioner.’

I know of at least one complaint to the Legal Services Commissioner against a Victorian barrister for filing supplementary submissions after the close of argument which was found made out but not prosecuted.  The appropriate response, in the event that this increasingly common wrong is perpetrated against your client is to write and request consent to a reply, and in default of an appropriately timely consent, apply for the relisting of the matter to complain in open court.

The rule was recently reiterated by the Full Federal Court in Comcare v John Holland Rail Pty Ltd (No 3) [2011] FCA 164, albeit from the perspective of what a judge should and should not do: Continue reading “WA solicitor’s unilateral communication with judge’s associate was professional misconduct”

Another reason not to unilaterally communicate with the Court

Unilateral communication with a judge’s associate is a dangerous practice.  Unless it relates purely to procedural matters (and who knows exactly what the limits of that are), any communication with the Court, especially with a judge’s associate should be copied to the other side, or the other side should immediately be informed of it.  In these days of email, what can be the harm in copying the other side in every case?  If you don’t want to do so, you probably should not be communicating with the court.  Apart from the fact that it is improper to communicate unilaterally with the Court, it might give rise to an apprehended bias-based application that the judge recuse her or himself.  In John Holland Rail Pty Ltd v Comcare [2011] FCAFC 34, such an application failed, but the unanimous Full Court pithily stated the law:

Continue reading “Another reason not to unilaterally communicate with the Court”

Lord Bingham and Afua Hirsch

The rather beautiful English blogger, Afua Hirsch, at once a barrister and a Guardian correspondent, has posted a beautifully written obituary to Lord Bingham, pictured.  It is definitely a blog post, rather than something more formal belonging to the print version of a newspaper, and it is a fine example of its form, like much to be found in The Guardian, all the way down to Zia Mahmood’s bridge column. I commend it to you. Apologies to The Guardian for the theft of David Levene’s photograph.

Lady litigant seeks costs order against trial judge

Herewith an extract from von Reisner v Commonwealth of Australia (No 2) [2009] FCAFC 172:

‘1 Ms von Reisner was successful before us in an appeal against an order made on 31 March 2009 that she not be able to commence any proceedings in this Court without prior leave of the Court: see (2009) 177 FCR 531.


20 Finally, Ms von Reisner has sought an order that the primary judge be ordered to pay the costs. Continue reading “Lady litigant seeks costs order against trial judge”

VCAT’s Judge Ross appointed to the Supreme Court

Judge Iain Ross, who was the head honcho of VCAT’s Legal Practice List, and the Tribunal’s Vice-President, has been appointed to the Supreme Court, presumably taking up the spot left behind by a good and honourable man and quiet champion of human rights, Justice David Harper, who has been appointed to the Court of Appeal.  People from the generation before me typically seem to confuse him with Judge Les Ross, also a County Court judge, who retired in 2005.  Justice Ross was appointed a Vice-President of the Australian Industrial Relations Commission at the age of 35 in 1994, and was there until he went off to Corrs briefly in early 2006.  His Honour has been a County Court judge since 2007, and remained so as VCAT’s Vice-President. He was in charge of alternative dispute resolution at VCAT, and once referred to mediation my client’s application for orders compelling the Legal Services Commissioner to provide further and better particulars of a professional misconduct charge.  Austlii records numerous careful and thorough decisions of his Honour in Legal Practice List matters, many of which I have blogged.

I did not even know that his Honour had commenced hearing cases in his new role, but The Age‘s front page today records that he is hearing an appeal from VCAT in the case about the taxi driver who, long ago, stabbed his wife to death under the grip of a psychosis from which he has now recovered.  The case was XJF v Director of Public Transport [2008] VCAT 2303, a decision of Deputy-President Macnamara who seems to have moved into Justice Ross’s old spot as head honcho of the Legal Practice List.  I posted about the decision here.  Attorney-General Hulls’s press release says:

Continue reading “VCAT’s Judge Ross appointed to the Supreme Court”

Ombudsman carries out own-motion investigation of Legal Services Commissioner

A former client of mine, dissatisfied with the adverse outcome in a complaint he lodged making serious allegations against a senior member of the profession has tipped me off to an own motion investigation conducted into the Bureau de Spank by the Victorian Ombudsman.  The results, reproduced below, will not assist morale at the Bureau (compare his excoriation of the migration agents’ Bureau).  But solicitors can expect, I suppose, for the investigation process to become a bit more investigative than the gentlemanly exercise it has been as long as I can recall, and for more prosecutions to be brought.

In the hierarchy of regulators, I doubt that the Legal Services Commissioner is a particularly desirable post, but it should be.  Regulate the lawyers diligently, and the scope for all the others’ wrongdoing which the other regulators regulate is likely to be retarded.  It should also be desirable because it would be fun: the Commissioner doesn’t have to worry about the privilege against self-incrimination, and at least in complaints brought by former clients, can cruise past the usual irritant to pious investigators, legal professional privilege.  Imagine an investigation where you can gun for fines of $50,00o per offence, or the inherently spectacular thrill of seeing a lawyer fall from his perch with the wonderfully archaic fanfare of being struck from the rolls, but where you can essentially administer as many interrogatories as you like.  And imagine that default in answering the interrogatories is a crime the investigation of which is to be carried out by an investigator you personally get to choose in your capacity as head honcho of the Legal Service Board!  It should be enough to make an investigator pant with excitement.  Many a federal policewoman would probably give up her taser in exchange for these kinds of powers.

Continue reading “Ombudsman carries out own-motion investigation of Legal Services Commissioner”

Review of decisions to exclude lawyers from ASIC and NCA examinations

This is a note about a decision by a judge who is only a year older than me, Justice Nye Perram, a novel and somewhat unsettling circumstance: Collard v Australian Securities & Investments Commission (No. 3) [2008] FCA 1681. I looked him up because the judgment is so beautifully written, and found a welcome in Bar News (go to p. 97). The case is about lawyers’ rights to appear for clients to be examined by ASIC (and also, incidentally, by the National Crime Authority). It is also of interest to me because of its discussion of who bears the burden of proof when seeking review in administrative law of a bureaucratic act which statute stipulates may only be taken if it is reasonable (or necessary) to do so. Who bears the burden of establishing reason or unreasonableness? Continue reading “Review of decisions to exclude lawyers from ASIC and NCA examinations”

Calderbank offers

Calderbank offers — those marked ‘without prejudice except as to costs’ — are one of those subjects which recur so often that single judge decisions are constantly coming out, but one never knows exactly which ones to read. They all say much the same thing, with an equal degree of fuziness, and the illusion is that one may read the tea leaves to discern which way the wind is blowing. People are constantly typing ‘Calderbank offer’ into google and finding their way, for some reason, to my blog. So, for all those people, here is the latest and greatest discourse on the subject, a learned review in the nature of a tiny text by no less a luminary than a justice of the Supreme Court of NSW, Justice Beazley. It’s an extra-judicial bit of writing called, appealingly, ‘Calderbank offers’, available only on the website of the Supreme Court of NSW. Another authoritative and up-to-date source is the recently published second edition of Dal Pont’s also endearingly entitled Law of Costs.

On “cowardly”

Stephen Witham (pictured) moved into Michael Flaherty’s flat. The relationship quickly soured when Witham assaulted Flaherty’s girlfriend, and stood over people for drugs and money. So Flaherty got some mates together, hit Witham about with baseball bats, hogtied him with ropes and cable ties, wrapped him in a doona, popped him in the boot, and drove him down Mirboo North way for the purpose of executing him in a pine plantation. Before shooting him, he had a chat with Witham and asked him if he had any final requests. Witham asked for a beer, and they each had one from a six pack. Then Flaherty kicked Witham so as to roll him down a hill, and acceded to his request not to be shot in the face, shooting him dead, in the back of the head. Afterwards, he boasted about the killing. It might have gone undetected but for an anonymous tip off to the police. He showed no remorse in his police interview, pleaded guilty at the first opportunity, and was not known to have been violent in the past. According to Justice Kaye, he did later come to realise the enormity of his offending and was genuinely contrite. Continue reading “On “cowardly””

Magistrate: ‘You fucked up big time’

Update, 2 June 2008: When I was writing the original post, I badly wanted to link to this classic motion to dismiss a criminal charge against a kid who called his principal ‘a fucker, a fag, and a fucking fag’, but it seems it was one thing I did not take with me when I left my work computer behind.  Then two friends came to the rescue. A scan of the actual document may be found here.

Original post: A Victorian Magistrate told a convicted robber ‘You fucked up big time‘ before putting him away for almost four, with a minimum of two. He said he was unaware of the presence in the Court of the schoolgirls who dobbed him in to the Chief Magistrate. Today, ‘terrorist’ and ‘unAustralian’ carry more punch than the rather sweet ‘fuck‘. There is in truth only one word, the c-word, which does not fit in polite speech. And even that does not carry the same sting as the word a Swede whispered conspiratorially into my ear once, afraid even to say it out loud. That is also a four letter F word, and refers to the same bits and bobs as our c-word. I can’t bring myself to tell you what it is lest I breach some obscenity law in Sweden.

Never before, never again: Chief Justice of Norfolk Island gets a gig in the Victorian Court of Appeal

Ok, so it’s the man better known as Justice Mark Weinberg of the Federal Court of Victoria, but damn is the man a judge of many courts at once. If I read Deakin University’s staff profile properly, his Honour is concurrently a judge of:

  • the Federal Court;
  • the Supreme Court of Norfolk Island (he sentenced Janelle Patton’s murderer Glenn McNeil to a minimum of 18 years in jail last year);
  • the Supreme Court of Fiji;
  • the Supreme Court of the ACT; and
  • the Federal Police Disciplinary Tribunal.

I cannot think of another Federal Court judge who has crossed over to the Victorian Supreme Court or Court of Appeal. The traffic has been the other way (think Justices Kenny, Nicholson, and Jenkinson).

Punishing as the existing appeal judges say their schedules are, do not be surprised if his Honour just adds the Court of Appeal to his portfolio of judging responsibilities. He presently holds positions at both Deakin and Monash Universities, and was previously the Dean of the University of Melbourne Law School. He has been the Chairman of the Leo Cussen Institute, a long-time member of the Australian Law Reform Commission, and the Commonwealth Director of Public Prosecutions. He wrote the Uniform Evidence Law (along with a couple of others). Continue reading “Never before, never again: Chief Justice of Norfolk Island gets a gig in the Victorian Court of Appeal”

An English legal ethics man in Miami

My impression is that the legal ethics dialogue is highly developed in the United States. The extent to which people practice what is preached over there is something I have heard word about but can’t guess at too accurately. Maybe its lawyers are more prone to extreme badness and so the discussion has more to feed on; they bribe judges over there, or try, or so it is alleged. And lawyers get access to their clients’ alleged victims’ laptops by having private investigators pose as researchers on internet use, and offering a new laptop in exchange for the old. And get away with it on the basis that they did not do the deed personally.

The extent to which the appearance of heightened discussion is merely a function of a huge population and a huge blogosphere is also something I find it difficult to guess at. Now there is an experiment which will help me work it out. An Englishman, John Flood, author of Random Academic Thoughts, is over in Miami, visiting a law school. And he’s blogging about it. So far, he’s impressed. While he’s in Florida, he could drop in on Jim Morrison’s birthplace, Melbourne, and let us all know how Melbourne, London, and Miami stack up against each other.

Justice Kevin Bell appointed VCAT’s President

I had heard the rumour a fair while ago from the most impeccable sources in VCAT and the Supreme Court that the Supreme Court’s Justice Bell was hot tip to take over from Judge Bowman as VCAT’s head. Now it’s confirmed. Frankly, though it would not be every lawyer’s cup of tea, it’s a great job, and a most important appointment. Continue reading “Justice Kevin Bell appointed VCAT’s President”

2007 a review: law and war

Happy new year, readers. 2007 was a big one for me, and it seems that lots of interesting things happened. So I made a list.

The Bar: My senior mentor, Peter Riordan SC, was elected Chairman of the Bar Council. Peter Hayes QC died, and the Ethics Committee took Peter Faris to task for commenting to excess on drugs in the profession. Mr Faris joined the Law Institute in lieu of the Bar. Former solicitor-advocate Andrew Fraser got out of jail and published his memoirs, Court in the Middle. Julian Burnside wrote an excellent book. Good people joined the Bar, including Tony Horan, formerly a partner of Phillips Fox, and Lisa Nichols, formerly a partner of Slater & Gordon Ltd, suggesting that it is a healthy institution. Mark Dreyfus QC was elected into Federal Parliament, Jeff Sher QC retired, and Peter Cawthorn, Dr Ian Freckleton, and Kerri Judd, all leaders of the professional negligence and/or discipline bar, took silk. Ross Ray QC assumed the helm at the Law Council of Australia.

The Bench: Justice Kiefel was appointed to the High Court from the Feds, the Howard Government’s 6th appointment after Justices Hayne, Callinan, Gleeson, Heydon and Crennan. She was the trial judge in Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, the case which is commonly understood to mean that you can always amend your pleadings at any time, contrary to her Honour’s view that sometimes, enough’s enough. Justice Callinan, the protagonist in Flower & Hart v White Industries (Qld) Pty Ltd (1999) 163 ALR 744, one of the key legal ethics cases of recent times, retired after nine and a half years. Lex Lasry was appointed to the Supreme Court. He was one of the blokes who campaigned against the execution of Van Nguyen, and was a legal observer at David Hicks’s show trial. Also appointed were Jack Forrest, Ross Robson, Paul Coghlan (ex-director of the Office of Public Prosecutions), and Tony Pagone (a tax lawyer with a keen interest in human rights who was reappointed after a tenure of 9 months in 2001 and 2002). The Court of Appeal had added to its bench Murray Kellam and Julie Dodds-Streeton. So 1 in 5 Supreme Court judges was appointed this year. Justice Gillard retired after ruling that Dr Abbie Lee was not defamed in the Herald-Sun‘s ‘Medibonk’ articles which called her a madam and a fraud. Justices of Appeal Callaway and Eames retired too.

Michelle Gordon, to whom the High Court’s Justice Hayne is married, was the only Melbourne appointment to the Federal Court. Former Federal Court judge Marcus Einfeld QC was committed to stand trial for perjury after pleading not guilty.

Blogs: Melbourne lawyers Peter Faris, Leagle Eagle, Dr Mirko Bagaric, and Nicky Greenberg all wrote interesting blogs, mostly not about the law. Jamie Wodetzki, also a Melbourne lawyer, published the excellent Breakfast Blog. Club Troppo‘s ‘Missing Link‘ rounded up the best posts from Australian blogs twice a week or so: well worth subscribing to.

Books: Monash’s Professor Adrian Evans and Melbourne’s Christine Parker put out a book Inside Lawyers’ Ethics. Walmsley, Abadee and Zipser did great with the second edition of Professional Liability in Australia. University of Woollongong’s Ainslee Lamb and John Littrich put out Lawyers in Australia. Jason Pizer published the 3rd edition of his Annotated VCAT Act. The 9th edition of Keith Fletcher’s The Law of Partnership in Australia hit the stores. Former actress, barrister and ABC Radio National ‘Law Report’ compere Susannah Lobez published Gangland Australia. Leigh Sales published a book about David Hicks, Detainee 002. J.K. Rowling‘s Harry Potter and the Deathly Hallows sold over 8 million copies in the first 24 hours of its release. Black Inc.’s The Monthly continued, unlike most in its genre, to publish, suggesting this might actually be the new quality news magazine which sticks around. Helps when your publisher, Morry Schwartz, is a property developer I suppose. (A bit off-topic, but Bali got Lawyers’ Lawyered this year, so: Black Inc. also published Under the Volcano; The Story of Bali. Former English property lawyer Jonathan Copeland published another good book about Bali — a rare thing — Secrets of Bali.)

Crime, and alleged crime: Christopher Hudson allegedly shot Norton Gledhill solicitor Brendan Keilar dead outside the Rialto where I had been working until a couple of weeks before. A martial arts enthusiast is suspected of killing Pumpkin’s mum, and cast Pumpkin adrift at Spencer St. Carl Williams said that in an ideal world, he wouldn’t have executed Jason Moran in front of his kids, and Justice Betty King responded to point out that in an ideal world he wouldn’t have executed him at all. In an ideal world wife Roberta probably wouldn’t have expressed disappointment that Carl would be behind glass, making spitting in his face problematic, and Jason probably wouldn’t have hired two hit men to gun Carl down at his daughter Dhakota’s christening, giving Carl the idea of the execution with kids in the first place. The Herald Sun must have been spewing about the 35 year fully catered luxury State holiday Justice King granted him despite his insolence. Tony Mokbel was found in Greece. Bad wig. Peter Dupas was convicted of another murder as a result of confessions made to Andrew Fraser. Paris Hilton went to jail, prompting this peculiar peaen from Dr Bagaric. Continue reading “2007 a review: law and war”