LAST WORD

autodidact, n a self-taught person

I attended an online funeral in the second week of September for Peter Kelly a colleague of mine with whom I worked forty years ago in the national office of the Federated  Ironworkers Association ( FIA). Kelly was the FIA’s Public Affairs Officer. Kelly as the complete autodidact having been born in humble circumstances in 1930 in Launceston, brought up in the Depression and whose father served overseas in World War II. With little formal education Kelly worked in the printing industry and became a proofreader He developed a great love of books mainly politics, history and biography. He became a well-known journalist writing for both The Bulletin and Maxwell Newton’s The Observer. Though originally a member of the ALP and an anti-communist, he let his membership lapse, he did not support the formation of the Democratic Labor Party believing that staying in the party and fighting the left was a better long term strategy.

Like a lot of journalists he chose the press officer path and worked for Sir William McMahon both when he was Minister for Labour and National Service under Menzies and later when McMahon continued in Parliament as a backbencher after he lost the 1972 election as the serving Prime Minister to Gough Whitlam. Kelly gave great insight into McMahon for Patrick Mullins’ biography Tiberius with a Telephone.

Commencing with the FIA he re-vitalised the union newspaper Labor News, with his contacts on both sides of politics and within the media he helped give the union national prominence. FIA National Conferences and meetings were well covered by the media at various times with key note addresses by Bill Hayden, Bob Hawke and John Howard. Kelly had a passing resemblance to Hayden. Kelly once mistaken by a journalist at Sydney Airport for Hayden gave a short interview on ALP policy. In later life Kelly continued his interest in politics, as a friend of Paddy McGuinness, he organised Quadrant dinners. He caused a furore in 2008 when he wrote in The Australian about what poet Les Murray and academic  Geoffrey Fairbairn had told him of each having seen historian Manning Clark proudly wearing an Order of Lenin at a private dinner party. He accused Clark of being a Soviet agent of influence. At the very least Clark may have been wearing the far more benign Lenin Jubilee Medal.

The current COVID pandemic and measures put in place to contain it have precedents to what was done to contain the Spanish Flu at the conclusion of World War I. The website of the Sydney Museums has a fascinating insight of the parallels from that time to now.[1]Australia’s isolation before air travel could defend the country for so long. Inevitably the virus landed in Sydney by late January 1919. Within a short time  places of public gathering such as theatres, picture shows, libraries, schools and churches were closed. Mask wearing in public became compulsory. At the Hyde Park Barracks courtrooms the Chief Industrial Magistrate dealt with cases of those who had lost wages due to business closures, the Industrial Arbitration Court heard from employers seeking to vary pay awards. Apparently no Jobkeeper or Jobseeker payments.

——————————————————————————-

This edition has another article from Richard Burbidge,QC on of cross-examination, himself a great practitioner of the art so important to unravelling the competing stories in litigation. Vigorous cross-examinations has been the subject of celebrated plays and movies either based on real or fictitious events. This is so for the simple spectacle of the battle of wits of counsel and witness can be the stuff of high drama. Shakepeare’s Merchant of Venice dealt with a suit involving a commercial debt concerning a claimed ‘pound of flesh’.  Answering to a question Shylock the creditor said “I am not bound to please thee with my answers” in Act IV scene I ,one of the most dramatic scenes of the play.

The Winslow Boy by Terence Rattigan dealt with the alleged theft by a thirteen year old naval cadet of a five shilling postal order. Prior to taking on the case (contrary to our cab rank rule) the ambitious barrister Sir Robert Morton,KC  brutally cross-exams the hapless cadet Ronnie Winslow in the family’s drawing room after which he declares Ronnie innocent and decides to take on the case.

Agatha Christie’s murder trial play Witness for the Prosecution was turned into movie with its forceful cross-examination of the accused’s wife Christine Vole played by Marlene Dietrich by Charles Laughton as Sir Wilfrid Robart,QC was breathtaking . One volley of questions by Sir Wilfrid had the desired effect of any cross-examiner to have the witness completely  lose focus and to lash out emotionally . The answers from Mrs Vole “ Damn you! Damn you ! “ to senior counsel would have merited his expensive retention for the accused.

However, a real life drama which has one of the most celebrated cross-examinations in history was that of Oscar Wilde by Edward Carson. Wilde and Carson were both born in 1854 and knew other at Trinity College, Dublin. The cross-examination itself reads like one of Wilde’s plays, with much parry and thrust . Wilde made a  silly mistake at the outset. In evidence-in-chief he said he was thirty nine years of age. A humdrum matter one would have thought . Carson who knew Wilde well asked, “ You said you were thirty nine but you are over forty ?” The credit of Wilde immediately thereafter was caste in doubt. Wilde ever the humourist and playwright gave at times flippant and indignant answers. Answers more suited to the theatre not the witness box. In a courtroom  the cross-examiner generally has the upper hand and would be delighted with a witness who acts as if the proceedings are nothing more than a drawing room charade.  No doubt Wilde’s counsel would have advised him to provide short responsive answers and to treat the proceedings solemnly. However, that would have been banal and boring, two adjectives which could never be applied to Wilde. He treated the trial as theatre, suffered mightily in the short term but in the sweep of history plied additional lustre to his fame and talent.

Jeffrey Phillips,SC

State Chambers,

Sydney

Combating the scourge of sexual harassment, discrimination and bullying in the workplaces of the legal profession, should not be done at the expense of abandoning fundamental principles of natural justice, argues Jeff Phillips.

In December last year, the New South Wales (NSW) Bar Association announced two “initiatives” to address sexual harassment, discrimination and workplace bullying at the NSW Bar:

(1)  “SPOT”, an online reporting tool to enable reports to be confidentially and anonymously recorded and/or reported.

(2)  Appointment of an independent Sexual Harassment Officer, to provide a dedicated, confidential support function to anyone who has experienced or witnessed sexual harassment, discrimination or workplace bullying.

Without question, poor behaviour of this kind in any workplace must be deprecated in the strongest terms and must be stopped.

However, are the means by which the Bar Association and, similarly, the regulatory body controlling lawyers in New South Wales, the Office of the Legal Services Commissioner (OLSC),[1] going about stopping this scourge justified and consistent with fairness?

BENCH AND BOOK,

Courts, Cases, Verdicts, Diaries, Letters Memories by Nicholas Hasluck, first published by Arcadia 2021.ISBN 978-1-922669-12-4

To produce this interesting book Nicholas Hasluck draws upon his diaries in the first two years he spent as a Supreme Court judge in Western Australia: 2000-2001. As well as being a barrister prior to his appointment to the bench he was a well known writer, novelist and poet. During the period covered by the book he continued to serve on the Literature Board and the Australia Council as well as continuing his work in the evenings writing a novel. Hence the duality of his life found within the title Bench and Book. On account of both the legal and literary worlds’ commitment to entertaining each other a more accurate title for book, based upon the diary’s entries would be Bench, Book and Table. The numbers of parties, restaurants, eateries and bars he lists could comprise a formidable index of where to eat and entertain in Perth, Sydney and Canberra.

Hasluck provides a valuable account as what it means to be a busy judge, well worth a read for those considering that calling. By December of 2000 he writes that ‘I have never worked so hard in my entire life.’Not just the writing of judgments but directions to juries, sentencing remarks and verbal rulings along the way. He writes of many late nights getting ready for court the next day, ever conscious and fearful of acerbic and critical remarks by judges on appeal scrutinising his decisions for error.

Hasluck is not without a critical eye himself. While sipping champagne at the marina in Matilda Bay he describes an acquaintance as having ‘..the self-contained quality of an efficient kelpie, rounding up strays, moving things along, making no concessions ….aggrieved that he and ( his wife) have not been invited to join other writers on the trip to Rottnest Island .’

However Hasluck reserves his most trenchant and justified criticism for two judges, former High Court judge Sir Ronald Wilson and Supreme Court of Western Australia and later New South Wales Court of Appeal judge and ICAC Commissioner David Ipp.

His distain for Wilson related to his chairmanship of a report into the ‘stolen generations’ which stated that previous government policies, especially in the assimilation era, amounted to genocide. This finding of ‘genocide’ appeared to be contrary to the evidence and an attempt at grasping a pithy headline. It was also an indirect attack upon Hasluck’s father Paul who in his period as Minister for Territories had within his portfolio Aboriginal Affairs. He points out that Wilson for many years was a Senior Crown Prosecutor in Western Australia but failed to prosecute anyone for the crimes he contends were taking place in his home state. He also points out that  Wilson was a former Moderator of the Uniting Church, and a member of the governing Board of Sister Kate’s hostel for part-Aboriginal children and as such was a collaborator in the policies and practices he condemned .

He recounts David Ipps’ bullying persona on the bench  described thus, “ Ipp turns to me,as counsel for the respondent, and begins bombarding me with this and that, suggesting, by various poutings and wincings and ponderous leanings forward in the course of hurling another brick-bat,that I am either a fool or a charlatan, probably the latter, as the Judge below seems to have been duped into handing down a verdict in my client’s favour.’Even when Hasluck joined the  Western Australian Supreme Court Ipp continued to treat him badly. Somehow Ipp managed a transfer to the NSW court system and generally imposed his ill-temper and pomposity on the Sydney Bar.

Hasluck devotes a chapter (if not his life) to Law and Literature. He correctly asserts that lawyers are assisted by insights into the human condition by the great works of literature. Years ago, I recall reading one of the books written by Lord Denning who advised young barristers to read widely, beyond the law reports and text books, better to understand the language and human nature.

One is struck in these diaries by the extensive range of characters with whom Hasluck rubs shoulders, breaks bread and sips wine. The book could do with a far more extensive index than the rudimentary one it has.

One memorable encounter is with Barry Jones,   parliamentarian and polymath. “Barry refers in passing to the  Graham Freudenberg  summation that Kim Beazley is probably the first Labor leader since Ben Chifley not to have some major personality defect.”

More delights like this are to be found in this wonderful book.

Jeffrey Phillips, SC

Sydney 

LAST WORD

calculus; n [orig. Latin meaning a small stone used in reckoning with an abacus] a particular method or system of calculation or reasoning.

What do a woman hit by a cricket ball in 1947 while standing outside a cricket ground in Manchester[1], damage by fire to two ships in 1951 in Mort Bay Sydney Harbour[2] and a water skiing accident in Tuggerah Lakes[3] in 1967 have to do with the COVID-19 pandemic?

These three cases, two from the Privy Council and one from the High Court of Australia, examine what does a reasonable person do in response to risk.  Each of these cases reveals an attempt to identify a fair response and how the common law has developed.

In Bolton v Stone, Lord Porter said:

 “The hitting of a ball out of the grounds is an incident in the game and indeed one which the batsman wished to bring about, but in order that the act may be negligent there must be not only a reasonable possibility of it happening, but also injury being caused.  … It is not enough that the event should be such as can reasonably be foreseen; the further result that injury is likely to follow must also be such as a reasonable man would contemplate, before he can be convicted of actionable negligence.  Nor is the remote possibility of injury occurring enough; there must be a sufficient probability to lead a reasonable man to anticipate it.  The existence of some risk is an ordinary incident of life, even when all due care has been, as it must be, taken.”[4]

The evidence in the trial below was that only six cricket balls had been hit out of the ground onto the adjacent road in twenty-eight years. However, the road was not greatly frequented and no previous accident had occurred.[5]  The cricket club was not found to be negligent.

In Overseas Tankship (UK) Ltd v The Miller Steamship Company Pty Ltd & Anor(Wagon Mound No.2)r[6], Lord Reid, delivering the judgment of the Board of the Judicial Committee[7], reached a different result to that found for the unlucky Miss Stone as she walked by the cricket ground in Manchester. The facts in Wagon Mound No 2 concerned a fire on two ships on Mort Bay in Sydney Harbour after the discharge of oil into the harbour by another ship.  His Lordship stated thus:

“If a real risk is one which would occur to the mind of a reasonable man in the position of the defendant’s servant and which he would not brush aside as far-fetched, and if the criterion is to be what that reasonable man would have done in the circumstances, then surely he would not neglect such a risk if action to eliminate it presented no difficulty, involved no disadvantage, and required no expense.”

The severely injured water skier on Tuggerah Lakes who strayed into shallow water despite an ambiguous sign stating  ‘Deep Water’ (but where?), led Justice Mason in Wyong Shire Council v Shirt, with the majority, to formulate what has been referred to since,  as the Shirt calculus:

 ”In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff.  If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk.  The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.”[8]

 Justice Mason went on to say importantly:

 “It is sufficient for me to say that the jury’s conclusion that there was a foreseeable risk of injury was not unreasonable and that there was a conclusion which was open on the evidence.  In saying this I am mindful that the foreseeability of the risk in the instant case is a question on which minds may well differ, as indeed they have done.  It is not a question which a judge is necessarily better equipped to answer than a layman.”[9]

This now leads to the connection between the development of these legal principles and the response to the current COVID-19 pandemic.  Clearly there is a foreseeable risk of infection across the world and various countries and states have taken different measures in response to the risk.  The Economics Editor of The Australian, Adam Creighton, writing on 5 October 2020, strongly opposes the actions of the ‘lockdown zealots’. He points to those countries which have taken different measures to those taken across Europe, many US States and of course in the state of Victoria. Creighton questions the lockdown decision as necessary to divert disaster, the effect of which has been to “crush commerce by fiat and suspend civil liberties indefinitely”. Without reference to it he in effect relies upon the Shirt calculus in asking whether such actions were necessary in response to a condition which for those who catch has a survival rate for people under seventy years of 99.9% (that is if they get the virus).

Creighton is particularly critical of the actions of the State of Victoria. He questions whether the severe economic lockdown in that State, including curfews, arrests for Facebook posts, not straying more than a 5km radius from one’s residence and mandatory enforcement of face masks, are reasonable responses to such risk. One also wonders whether the draconian measures implemented and enforced by the Victorian government were in response to its failure of the hotel quarantine program which appears to be the fons et origo of that State’s pandemic crisis.

——————————————————————————————————–

No doubt the pandemic and responses to it will spurn much litigation probably on a ‘class action’ basis. Claims in negligence will perhaps start with the Ruby Princess fiasco and develop more significantly to target the Victorian hotel quarantine failure. In the latter potential litigation, particulars of negligence could include, failure to use experienced security guards, failure to train security guards and failure to supervise them, et cetera. Economic claims for loss of revenue by businesses because the lockdown measures went too far are far more problematic. More problematic still are claims involving so-called ‘industrial manslaughter’

——————————————————————————————————-

A couple of years ago in Workplace Review [10], I reviewed journalist, Alex Mitchell’s, book “Come the Revolution”.  Mitchell had worked as a journalist both in the UK and in Australia at various times working for Rupert Murdoch.  Mitchell must be Australia’s most active and well-known Trotskyist.

In his website, also called Come the Revolution Mitchell has recently written about the attempted assassination of Labor leader Arthur Calwell during the height of the 1966 Federal election campaign.  A disturbed young teenager, Peter Kocan, shot Calwell as he was sitting in the front seat of a Commonwealth car after a campaign meeting held at, of all places, the Mosman Town Hall. Kocan was chased down the street by some Labor supporters, caught and handed over to the Police. Bob Gould, another famous Australian Trotskyist, was originally attributed to having chased Kocan down the street and wrestling him to the ground. However, Mitchell notes that Gould says the credit for that manoeuvre was former judge of the NSW Industrial Relations Commission and Court, Wayne Haylen, who ran after and actually tackled Kocan. Mitchell writes that Haylen, the son of a left wing Federal MP Les Haylen, had been on the Industrial Relations Commission bench for about 12 years.  He recalls the young Haylen burnt his National Service Registration Card at a rally in Belmore Park in 1966.  My memory of Haylen as a barrister and judge was of a person of great intelligence and mischief.   His sense of mischief was made manifest one day when he was appearing in a case, before Justice Michael Moore in the then Australian Industrial Relations Commission, which involved a demarcation dispute in the telecommunications industry.  During a rather long, meandering cross-examination by opposing counsel after lunch on a Friday, Haylen to show his ennui ostentatiously at the Bar table read a racing guide called ‘Punters Pal’ much to the chagrin of the presiding judge. Mitchell notes that in retirement Haylen continues his contribution to the racing industry.

——————————————————————————————————–

Still dealing with the New South Wales Industrial Relations Commission and its now abolished Industrial Court, it is with great sadness I note the passing of two great lawyers who adorned that Bench, both of whom died within a few days of each other in July of this year.  First, that of Russell Peterson QC (1944-2020) and secondly, that of Brian Hill QC (1928-2020).

Peterson was called to the Bar in 1974 and was appointed Queen’s Counsel in 1986.  He was a judge of the Industrial Court and Presidential Member of the Commission from May 1992 to August 2004.  Prior to his appointment he had been a Deputy President of the Australian Industrial Relations Commission.  Over the years I had a number of cases against Peterson and also in some in which he led me.

I vividly recall one case before Justice Frank Liddy in Grafton. On the day of hearing I missed the only morning flight to Grafton from Sydney. Being acutely aware of Liddy’s martinet-like reputation I knew somehow I had to get to Grafton that day. Undeterred, I managed to catch a plane to Armidale with the intention of driving across to Grafton by hire car. A half an hour after take-off the captain announced that Armidale was fogged in and the plane had been diverted south-west to Tamworth, much further away from Grafton, not an easy drive by car. Upon landing in Tamworth, operating both with fear and ingenuity I knocked on a hangar door and found a pilot with a light plane whom I hired to fly me to Grafton.  He flew me to Grafton, only to find that Grafton Airport was also now fogged in. As we circled hoping for a break in the low cloud the pilot said “I know there’s a little strip south of Grafton.”  Shortly thereafter we dove towards this strip only to see a cow grazing next to it. After a few flyovers a lady coming running out of a nearby house and shooed the cow away. A taxi duly delivered me to court house at 10:15am where I met a hitherto unknown and very nervous instructing solicitor. The case before Liddy against Peterson for the respondent duly started at 10:30am.  The whole first day was spent with criticism and thunderbolts hurled at me from the Bench. No offers to settle from the respondent. My case finished early the following morning perhaps observing the reaction by Bench to it and me in tatters. The Grafton solicitor thought he had made a huge mistake briefing this unknown, hapless counsel whose every words seem only further to enrage the judge.

Peterson rose to present his case and then his Honour, a World War Two veteran turned with rapid fire his judicial Bren gun at Peterson. Perhaps there was method to Liddy’s behaviour as the case was settled in favour of the applicant for good value and costs before lunch.

Brian Hill came to the Bench after a long distinguished career at the Bar commencing in in 1956 (18 months after I was born). He was appointed Queen’s Counsel in 1974. Hill was appointed to the Industrial Relations Commission and Industrial Court on 1 August 1988 and served until his retirement in August 1998.  Both Hill and Peterson, were a joy and delight for counsel to appear in their courts.

Like Haylen, Hill had a mischievous sense of humour. In a case involving the infamous Secretary of the New South Wales Branch of the Federated Storemen and Packers’ Union, Frank Belan his Honour’s wit was on show.

Taken from the transcript.

KENZIE, QC with KIMBER; Your Honour, we require Mr Belan for cross-examination.

HIS HONOUR; OK, where is Mr Belan, Mr Whitlam?

WHITLAM, QC; Mr Belan is not here today.

HIS HONOUR; Why is he not here?

HITLAM, QC; He is unwell and cannot come to court today.

HIS HONOUR; How is that?

WHITLAM, QC: Unfortunately, your Honour Mr Belan has been bitten by a spider.

HIS HONOUR; How’s the spider?

Jeffrey Phillips, SC

State Chambers.

LAST WORD

plague;(n)any contagious disease that spreads rapidly and kills people;an unusually large number of insects or animals infesting a place and causing damage;a curse.

Our crazy dreadful 21^st Century times are not unknown in human history. The Bible’s Book of Exodus is replete with plagues sent against the Egyptians, poisoning of the waters of the River Nile with blood; a plague of frogs; a plague of gnats; a plague of flies and the plague of boils to name a few as punishment sent from God. In the early 1600s plague closed the playhouses in England including Shakepeare’s Globe Theatre. Shakespeare was no doubt drawing on his experience with the plague to write in Romeo and Juliet the dying Mercutio’s damning curse,” A Plague on both your Houses”. The 17^th Century diarist Samuel Pepys assiduously recorded the terror of the Great Plague of London in which nearly a quarter of the population of the city succumbed and died. Daniel Defoe’s Journal of the Plague Year, part history part novel similarly recorded such events. Last century the French novelist Albert Camus’s La Peste (The Plague), a novel set in the French Algerian town of Oran deals with how cholera affected the town’s inhabitants.  The Colombian author Gabriel Garcia Marquez’s Love in a Time of Cholera ambiguously deals with the leitmotif of disease to examine passion.

Part of plague is quarantine and with separation from the normal interactions of life, the artistic temperament is given time for thought and creativity.

Law firms have had their people working online from home and made good use of the audio-visual apps. The frontline of litigation, the hearing of cases has been far more problematic. Many trials, particularly criminal ones involving a jury have been adjourned for months, similarly many Local Court criminal matters. These facts have had a disproportionately deleterious effect on the criminal bar. Civil trials have sought to be continued where possible using the various and secure audio-visual platforms. These attempts to carry on have met with mixed technical results. Cases involving short disputes on the facts but questions of law needing to be argued have generally worked well in the virtual court room. Cases involving serious contests of fact requiring the cross-examination of witnesses at places removed from the lawyers and the real court room have been less technically successful. My personal experience and anecdotal comments from others has been that when such trials have run they have had difficult and sporadic connections, at times someone dropping out, audio for some for some periods lost and general delays. The hearing of cases in the virtual courtroom have started with optimism only to collapse and to be adjourned, with hours or days lost, spent in disarray.

Courts have issued directions for the conduct of online hearings but such aspirational protocols are only as good as the platforms, each person’s wifi connection and the ability of everyone in the virtual courtroom using their devices and doing so efficiently. In general older practitioners are not as internet savvy as their younger counterparts. I first worked in a law firm in Sydney’s King Street called Duggan and Doyle. I suspect in hindsight that little had changed in legal practice for fifty years previous to my commencement at the firm in 1977. Barristers’ briefs bound in pink ribbon, the typists using carbon paper for copies of correspondence, law reports noted up manually and the first barrister I had instructed (Dick Dillon)  had been admitted to the Bar in 1939 just before he went to war as a naval officer. In a computer /internet sense I have been playing catch up for years against my younger colleagues. Unlike them I learned to have my memorable authorities/precedents of cases typed onto pink index cards kept in boxes in my desk drawer. Whilst at the Bar former Federal Court judge Peter Gray kept his notable authorities handwritten in an exercise book which he took with him to court.

The titanic struggle between the new virtual court room versus the old ways was recently played out in the Federal Court. In a case, called Capic v Ford Motor Company of Australia Limited[2020] FCA 486  dealing with a class action concerning allegedly faulty gear boxes, set down for six weeks with up fifty witnesses and many documents, the Respondent sought an adjournment of the trial to be conducted virtually, based on seven grounds. Among the grounds for the adjournment were technological limitations, physical separation of legal teams, cross-examination of lay witnesses and document management. Justice Nye Perram(The Jerry Seinfeld of the Federal Court)  rejected the application for an adjournment. At paragraph [13] he stated ;

“13.Secondly, senior counsel for the Respondent raised with me the real difficulty of the practitioners not all being together in one place for the trial. It is common for the people sitting behind counsel to convey useful and sometimes critical information to senior counsel via junior counsel and likewise junior counsel frequently are able to assist senior counsel on the storm-tossed seas. The ability to do this where everyone is in their own home is certainly degraded. However, in the hearing last month to which I have already referred senior and junior counsel who were isolated from each other communicated with one another and independently of me using WhatsApp. In the virtual hearings I have conducted I have communicated with my associates on an instant messaging platform which has worked well. There is the difficulty of document sharing over such a platform which I accept. Receiving whilst in full flight a WhatsApp message with a document attached is not the same experience as having one’s gown tugged and a piece of paper thrust into one’s hands. Again, whilst I think this is a poor situation in which to have to run a trial I do not think that it means the trial will be unfair or unjust.”

At paragraph [16] these gems came from his Honour,

“16. Fourthly, there are a number of issues said to be relevant to lay witnesses. In the case of witnesses who are remotely located in their homes (which I am assuming will be all of them) there are practical problems. For example, it will not be possible to see whether there is somebody in the (upstairs bed) room coaching the witness or suggesting answers out of earshot. My impression of that problem is that in this case it will not be acute. To begin with this is a class action about allegedly defective gear boxes, not a fraud trial. In addition, although some of the class members may have a motive to exaggerate how defective their vehicles are I doubt that in that process anyone will be able to help very much. Then there is the problem that the putative coacher will need to brave the health regulations and situate themselves in the same room off camera. Although there may be cases where a person desires to assist another person giving evidence so much that they are willing to risk life and limb to do so, I doubt that this is one of those cases.”

It will be interesting to see how this case runs over its allotted six weeks.

After the COVID 19 crisis ends one thing that will change will be the continued use of audio/visual conferencing on platforms like Zoom. Why troop across town, the state or the country for a meeting when you can link many participants online? I predict the nature of both solicitors’ offices and barristers’ chambers will change with more ‘hot desking’ and less traveling. Not good news for the CBD commercial leasing market and the travel industry. Also more directions hearings online and fewer held in court.

One of the many tragedies of the lockdown is the limitation in New South Wales of only ten persons allowed to attend a funeral. Two of my friends at the Bar have died during this time. Judge Robert Sorby of the District Court and John Henry Bryson of Second Floor Selborne Chambers. Bob Sorby had a fascinating varied career, first as a journalist, then working on Bob Hawke’s staff when he was Prime Minister, a solicitor at labour law firm, Geoffrey Edwards &Co, a barrister and ultimately a judge of the District Court. He told me that the highlight of his career was when he accompanied  Hawke when he visited President Ronald Reagan in the White House.

John Henry Bryson was journeyman barrister and ex-boxer. He had a natural affinity with his clients many of whom were battlers. Unfortunately,the Bar Association of New South Wales announced the death of the other John Bryson, John Purdy Bryson, QC a former judge of the Supreme Court. The two John Bryson’s have both been members of the Union, University and Schools Club. Two more different characters one could never meet. They were not close.

I look forward to the memorial services and wakes of both Sorby and Bryson when the lockdown ends.

Jeffrey Phillips,SC

State Chambers,

Sydney