Passing bull 191 – The people and the crowd



When people come together to vote for parliament or to serve on a jury – rather similar exercises – we feel good about each other.  But if we see them come together as a lynch mob, we are revolted.  We are revolted because people following the herd instinct are behaving more like animals than human beings.  Most of us are very worried about the crowds behind the gillets jaunes in France.  People have there taken to the streets not just to protest against government but to try to bend the government to do its will.  That is a plain denial of parliamentary democracy.  That kind of government can only work if the overwhelming majority of people accept the decision of a majority.  But ever since 1789, the French have claimed the right to take to the streets to stop government taking a course they do not like.  The result is that France has not been able to push through unpopular reforms in the same way that Germany and England did.  And the result of this triumph of the people is that the people are a lot worse off.  That in turn leads to the gillets jaunes and to the President’s not being able to implement the reforms for which he was elected.  And so the cycle goes on – until one morning the French get up and see a scowling Madame LePen brandishing a stock whip on her new tricoleur dais.  She will have achieved the final vindication of the crowd – the acquisition of real power by real force.

The Bagehot column in The Economist this week is headed ‘The roar of the crowd.’  It begins: ‘The great achievement of parliamentary democracy is to take politics off the streets.’  Well, the English achieved that – but not the French.  The article goes on to refer to street protests being invoked to express ‘the will of the people.’  That bullshit phrase is or should be as alien to the English as it is to us.  It is dangerous nonsense advanced by people over the water like Rousseau – one of most poisonous men who ever lived – Robespierre, Stalin, Mussolini, Franco, and Hitler.

The article also refers to social media –the worst misnomer ever – as ‘virtual crowds online.’  It quotes an 1895 book The Crowd; A Study of the Popular Mind as saying of crowds that they show ‘impulsiveness, irritability, incapacity to reason, the absence of judgment of the critical spirit, the exaggeration of sentiments’ and says that the crowd debases the ordinary person – ‘isolated he may be a cultivated individual; in a crowd, he is a barbarian.’  That is because he has handed over the keys to his own humanity.  All this is just as spot-on for social media as it is to those whom Farage whipped up against Muslims, or those for whom Trump did the same, or those who marched last night in favour of Brexit and did so to a ghastly drum-beat that made them look so much like the English fascists from the 1930’s.

For our system to work, people have to show at least some restraint and toleration.  At least two forces are in my view at work in Australia working against us and in favour of the herd instinct of the crowd.  One is social media.  The other is the Murdoch press.  The first is obvious.  As to the second, a New Zealand observer said there were two reasons for the immoderate restraint and toleration of their government to a crisis of hate – the leadership and empathy of the leader of their government, and the absence of the Murdoch press.  In Australia, Sky News after dark regularly parades Pauline Hanson while Bolt and others defends her and while in The Australian columnists attack Muslims as jihadis in something like a frenzy.  And it was just a matter of time before they spitefully turned on the New Zealand Prime Minister and the ‘Muslimist Aljazeera’ – and of course those middle class pinkos at Fairfax and the ABC.

The people behind social media and the Murdoch press are wont to preach about freedom of speech.  The sad truth is that they go to the gutter for the same reason – for profit.

Two more points.  The current disaster in England started when they went and tested ‘the will of the people’ and got an equivocal answer – yes, leave, but on what terms? – with a majority too slim to permit a simple solution to a difficult problem to be found and implemented.  Now we have the awful and degrading spectacle of parliament behaving worse than the crowd.  And people who got where they are on a vote from the people are with a straight face saying that it would be wrong to ask the people again now that everyone knows what lies were told and who has been the worst behaved.  Indeed, their Prime Minister says a second vote would be a ‘betrayal of democracy.’  Some say an election would be better – when both major parties are hopelessly splintered and there is no reason at all to think that a reconfigured group of those responsible for the present mess might do better.

The real betrayal of democracy has taken place in America.  Trump appealed to the crowd to reject the ‘elites’ – people who know what they are doing.  Neither he nor almost everyone in his government has any idea about governing.  But his betrayal is more elemental.  A President is elected, as Lincoln said ‘of the people, by the people, for the people.’  Trump could not care less about the people.  He is only interested in that ghastly minority that is called his ‘base.’  And since he thinks his base wants him to abandon affordable health care, he will try to kill it.  And to hell with the people.

It’s not just that the policies of people like Farage, Hanson and Trump are revolting – it’s the people they get to work with them that are also revolting.

It looks like the hour of the crowd is with us again and it may never have looked worse.


But Trump bends history to his will.  May simply bends under the will of others.

The Weekend Australian, 30-31 March, 2019.  Mr G Sheridan

It is an interesting view of the strong man.  Amazingly, the editorial was even sillier.

Passing Bull 293 – Anonymous letters

ASIC has behaved badly enough to get me to send it the letter set out below.  ASIC is the body charged with seeing that companies act responsibly in doing business – although if you put it as starkly as that to someone in authority there, you might induce a serious nervous breakdown.  You would certainly be exposed to a nervous walking back from accepting any such responsibility. 

About forty years ago, I chaired the council of a government school.  We had to formulate a mission statement.  Harmless tripe.  I suggested that the first object of the school was to teach children reading, writing and arithmetic.  Bonzer.  The staff loved it.  Until they spoke to the union.  Kerboom!  Some bastard might measure that!  (And catch us.) 

When I suggested that the staff might be responsible for seeing a policy of uniforms adopted, the message came back from Union HQ that I might be shot for treason – quietly, behind the shelter shed.  I am ashamed to say that I gave up.  But I do notice that the kids are now in uniform.  Presumably the anguish of parents on the verge of a nervous breakdown prevailed over neuroses of the union.

We the people must rise up against receiving from government threats in anonymous letters.  Like the ‘Telstra Team’.  (What colours are the jerseys of that team?)  When a bank bounced a cheque, I got a robotic note from the ‘Dishonour Team.’  Think about that.  We expect this crude rudeness from protected monopolies like banks and Telstra.  But from people in government who are there to serve us because we pay their wages and they work for us?

The trouble is that over the past two generations, both political parties, state and federal, have presided over the annihilation of an independent civil service.  We have jettisoned the Westminster model of government.  And we are paying a dreadful price.  We have to deal with robots and anonymous agents who refuse to accept responsibility.  They will not even show their faces.  And this just adds to the decline of courtesy and the fall of tolerance and restraint in our public life – and our general moral decay and loss of enjoyment in life.

This petty nastiness descended into downright madness about five years ago.  I was waiting on a cheque from the tax office (ATO) for franking credits for my super fund.  One arrived – for about the amount, $13,000 – but it was sent to me in error.  I rang the ATO.  Can you tell me where I should send it?  Yes.  In writing.  Hang on – not sure about that.  Well, I won’t send it.  Well then, we will come after you.  (They were the words.)  Well, presumably when you do, you will tell me where to send the cheque. 

This was from the ATO – who police the auditing of a superfund, and who do not want a written paper trail.  What kind of mindless, soulless fear engenders this nonsense?  Some months later, I got an apology from a nice lady at the ATO.  But only over the phone.  Not in writing.  ‘Sorry’ is not in vogue with her political masters.

If an agent of government wishes to impose an obligation on me to pay money to the government, the least I can require is that it does so over the signature of a real person with authority to accept responsibility for the lawfulness of the demand.

That is one step we can take.  We can require them to say who they are.

Another step is to involve our MPs.  God only knows how sad most people are about the performance of the major parties and the political leaders in this country now, but most of our MPs are decent people who try to do the right thing. 

Some people are scarred for life after dealing with Centrelink.  I am one of them.  My Gov and Vic Roads are equally infamous.  It is just bedlam at Fines Victoria.  These outfits have a hellish heartlessness about them.   People go into them and are never seen again – sane.  A few years ago, I applied to Centrelink for a Commonwealth Health Card.  There is one issue.  Did my income exceed $X?  After three visits to Castlemaine and three to Bendigo, all up about twenty hours of insulting inanity, I told my federal MP that I was not complaining – yet.  A card turned up in the mail 48 hours later.  No letter – just the card. 

For about sixteen years presiding over a state tax tribunal, I may be said to have held the keys to the State Exchequer – how is some Muslim migrant, distant aboriginal, or fading widow expected to cope with these anonymous robots and clones?  The obvious answer is that they are not, and that the Leviathan will crush enough blood and money out of them to maintain a steady cash flow to the Exchequer. 

That is not the way our governments should work.  That is the Russian or the Chinese model.

At some point we must ask – how did we manage to sell ourselves so short – and give away our heritage?  I know something of the history of that heritage.  It goes back one millennium, but it can be lost in one generation.  Just look at the attack on the Capitol in Washington earlier this year and the idiocy of those MPs being seen with mindless cowards and thugs in Melbourne the other day.  Over 900 years, our constitutional history has so often boiled down just to this: how and when can government ask us for money?

Victorians of the world unite.  You have nothing to lose but your chains!

Letter to ASIC

Margaret Boothman,

Senior Manager Registry Services,


Locked Bag 5000

Gippsland Mail Centre, 3841.

Dear Madam

Phaedo ACN 120 213 229; Account 22 120213229

I have your letter of 10 November. 

In my letter of 20 October – see below – I advised of a change of address and I said that ASIC should be ashamed of itself for demanding money by menaces.

In your letter, you now say I need fill in a form for my change of address and you appear to contend that the penalties are still owing.  At least you do not say the contrary.

The fee was not for any form of service.  It is a fee – or tax.  On my small super fund which will I hope keep me off a pension.  Although I have paid more than enough in tax over fifty years.

Although your signature appears under the letter, it must surely have come from a robot.

What is the Commonwealth of Australia saying to a taxpayer who pays your wages?

Are you saying that although I have notified you of my change of address, that I must now jump the counter and do your filing for you?  That I should volunteer my time as a civil servant?

Are you saying that a delay of two months and five days in paying a fee of $55 warrants the imposition of a penalty of more than five times that amount?  During a time of national pandemic and emergency when no-one could rely on the post?

Do you agree that if a business that ASIC watches over sought to act in that predatory fashion, it would be the job of ASIC to run the mongrels out of town – Pronto, Tonto?

Yours truly,

Geoffrey Gibson,

Prior letter


Phaedo ACN 120 213 229; Account 22 120213229

A robot has sent my super fund a bill for S399 – a fee of $55 plus penalties.  I have paid the $55.  You should be ashamed of yourselves for letting a robot demand money with menaces.

I would be glad if a human being could acknowledge the change of address to that below.

Yours truly


Extracts from Volume II of My Top Shelf


Peter Quartermaine

Gryphon Books Pty Ltd; 1983; bound in white boards with slip case added later; illustrated in colour with many paintings tipped in.

Jeffrey Smart has something in common with Louis Armstrong.  He has his very own style and it is instantly recognisable.  Not many artists achieve that distinction.  But Smart is different to Nolan, Boyd, and Williams.  They taught us how to see and come to terms with the bush.  Smart taught us how to see and come to terms with the city.  In something of a manifesto, he said in 1968:

I find myself moved by man in his new violent environment.  I want to paint this explicitly and beautifully.

Some styles become outmoded for the artist’s message.  (If he has a message.)  But how would Bonnard paint a Hilton Hotel bathroom?  How wrong a jet plane or a modern motor car looks painted impressionistically!

A man is logical on horse-back: but in a satellite, surreal.  Only very recently have artists again started to comment on their real surroundings……

Security?  The bomb?  How much more insecure Fra Angelico must have felt riding to Orvieto with the threat of outlaws, robbers, and the plague.

Smart was born into a comfortable part of Adelaide in 1921.  He was obsessed with drawing as a child and the technique that he acquired would always be central to his painting.  While serving in a number of jobs, including the part of Phidias on The Argonauts on the ABC, he acquired a full education in art, most noticeably from an Adelaide lady called Dorrit Black.

She began with the geometric method for establishing the Golden Mean….This was a positive eye opener, and she linked it with compositions by Poussin, Tintoretto, Veronese, da Vinci and so on.  And it all related so clearly to Braque, Léger, and above all to Cézanne.

We see immediately how important this teaching was to the structures in Smart’s mature paintings.  He was very taken with the light and sense of place in Piero della Francesca, but Cézanne would remain his champion. 

Like many Australian artists back then, he really got going in trips to Europe.  He studied with Léger for a while in Paris, and his early work shows some influence of de Chirico.  Smart said of him: ‘There is an element of the naïve in him, his perspective distorted without a care in the world while Cézanne agonized over the same thing.’  Smart would later say that his later paintings are better than his earlier ones partly because until he was forty-one he was working at other things to earn a living.  Someone said that post-modernism was like playing tennis with the net down.  That could never be said about Jeffrey Smart.  He had a life-long commitment to the high technique derived from the masters over the ages.

Peter Quartemaine says:

When a painting is ‘right’ it has for Smart a stillness, that quality he so admires in artists as diverse as Balthus, Poussin, Mondrian, Braque and Ben Nicholson.  He himself turns to T S Eliot for the best expression of what this stillness means in the work of art, a passage from Burnt Norton which he feels hints at the greater accessibility of the visual arts as vehicles of meditation compared with music or literature.  ‘At least, we do abolish time.’

…….Only by the form, the pattern

Can words or music reach

The stillness, as a Chinese jar still

Moves perpetually in its stillness.

Smart recalls in this connection reading a critical account of a Cézanne landscape as ‘nature in arrested movement’, where the critic assumed that the stillness came from the peacefulness of the original scene.  He insists that in Cézanne, as with Eliot’s Chinese jar or a perfect composition such as Guernica, the stillness comes from ‘the perfection of the design alone.’…..Eliot’s mature work, especially Four Quartets which has influenced the artist profoundly, is an expression of hard-won faith in the world and in the value of artistic endeavour.

Smart would later recall that Dorrit Black spoke of ‘making a picture’ rather than ‘painting a picture.’  Léger suited his preoccupation with geometric shapes.  ‘I paint buildings a lot because they are rigid shapes…they go straight into the picture plane – they make a space, a box, where you want it.’  He said that Piero della Francesca and Cézanne had taught him how to compose.  He was engrossed by The Flagellation and the Gilles of Watteau (which is referred to in his painting Dampier III).  He surrounded himself with reminders.  One said that ‘an artist must himself be moved if he is to move others.’

Germaine Greer said:

Many observers, hypnotised perhaps by the occasional human figures isolated in a man-made environment in Jeffrey Smart’s work, have been struck by its mystery and ambiguity…..There are few artists who can provide the shock of recognition and they are all great. 

The rest, as someone said, belongs to the madness that is art.

Passing Bull 291 The Press

Does this quote from Balzac’s Lost Illusions bring anyone to mind in the Australian media?

Journalism, so far from being in the hands of a priesthood, came to be first a party weapon, and then a commercial speculation, carried on without conscience or scruple, like other commercial speculations. Every newspaper, as Blondet says, is a shop to which people come for opinions of the right shade. If there were a paper for hunchbacks, it would set forth plainly, morning and evening, in its columns, the beauty, the utility, and necessity of deformity. A newspaper is not supposed to enlighten its readers, but to supply them with congenial opinions. Give any newspaper time enough, and it will be base, hypocritical, shameless, and treacherous; the periodical press will be the death of ideas, systems, and individuals; nay, it will flourish upon their decay. It will take the credit of all creations of the brain; the harm that it does is done anonymously. We, for instance—I, Claude Vignon; you, Blondet; you, Lousteau; and you, Finot—we are all Platos, Aristides, and Catos, Plutarch’s men, in short; we are all immaculate; we may wash our hands of all iniquity. Napoleon’s sublime aphorism, suggested by his study of the Convention, ‘No one individual is responsible for a crime committed collectively,’ sums up the whole significance of a phenomenon, moral or immoral, whichever you please. However shamefully a newspaper may behave, the disgrace attaches to no one person.

Passing Bull 292 Hypocrisy of the Prime Minister

The hypocrisy of Scott Morrison defies belief.  (Have you met anyone who believes that he is fit for the job of Prime Minister?)  He wants to abolish the ABC, in conformity with the requirements of Rupert Murdoch, and he wants a government inquiry into it.  He resists proper inquiry into the manifest corruption of which his whole government smells. 

I was the risk manager of a large law firm for fifteen years, but you do not need that experience to see just how risky this man is.  He not intelligent.  He is not aware of how unintelligent he is.  And he gets that blindness from God.  He is therefore as safe as Guy Fawkes. 

My heart therefore goes out to a 75year old lady from Richmond, Lynette Payne.  Her letter to The Age today concludes ‘There will be riots in the streets if the ABC is privatised/abolished, and I will be one of the rioters.’  Atta girl, Lyn – and I will be there with you, shoulder to shoulder.  There is also a letter from Glenda McNaught of East Melbourne.  If she is the person I think she is, she knows all about preppy dopes with ideas above their station.  She catalogues the grosser failings of Mr Morrison – and then mentions the one thing he got right.  He appointed Ita Buttrose the chair of the ABC.  Hit them right where it hurts most, Ita.

Passing Bull 290 – Religious freedom

A lot of nonsense is spoken about ‘religious freedom.’  What is it that people want to be legally free to do that they are prevented from doing by the law now?  Well, some want to be free to discriminate against people of a different sexuality by firing them.  They want to do that at religious schools and they say that having to subscribe to our discrimination laws inhibits them in the practice of their religion.


It is worth recalling what Kant said.

….the so-called religious struggles, which have so often shaken the world and spattered it with blood, have never been anything but squabbles over ecclesiastical faiths.  And the oppressed have never really complained for being hindered from adhering to their religion (for no external power can do this), but for not being allowed to practise their ecclesiastical faith in public.

(‘Ecclesiastical’ there means, I think, ‘organised body of subscribers to a faith’.)  Of course, no power on earth can stop me from praying to God.  But they may want to have something to say about how I seek to practise that religion in public – by, for example, lacerating their bodies in public, or conspiring to kill their monarch because he or she practises a form of religion that is pure heresy, or campaigning against lowering carbon emissions because it is contrary to the book of Genesis.

From then on, it is pure politics.  How much slack is the majority prepared to cut from their general laws for some believers?  I would be dead against our parliament doing that to allow private schools, which are not there to trade at a loss, to discriminate against gay people.  I say that because it is not fair to them, and because for a government to endorse this kind of exclusion is very unhealthy.  What happens when they line up Catholics, Muslims or Jews?

In about the 60’s, it was fashionable in circles that might properly be called liberal, to say that the law should stop at the bedroom door.  It is ironic that these latterday libertarians want to reverse all that.

And I certainly agree that if these schools want to be excluded from this part of the general law, they should also be excluded from the general law of charities and tax – and pay the full tariff.

And I would not be happy with anyone wanting to send a child to such a constipated outfit.

Western Civilisation – Again

A federal minister, who keeps bad company, wants us to teach history after the Japanese model – drop the dirty bits and set up a halo.  This is not surprising since this is the modus operandi of the minister’s chosen media for contemporary politics – at least as politics are practised, if that is the word, by those of the minister’s persuasion.  A mild comment on the difficulty in that case was met by a storm of dogma that was sadly identifiable.  I had thought that the argument, if that is the term, had gone the way of the flat earth – or the position of our coal mining brethren on the environment.

I set out below some remarks about civilisation and the rule of law from a book I wrote some years ago now.

Even Oxbridge has given up on calling ancient Greece and Rome ‘civilised’.  Each was based on empire and slavery.  Each treated women as doormats and each buggered their boys.  Each arrogantly regarded outsiders as barbarians.  Each practised primitive religions not yet informed of the sanctity of life or the dignity of humanity.  They could not be part of the Judaeo-Christian tradition because they both had flowered, and one had died, before Christ was born, and if they had heard of the Jews, they regarded them with contempt.  The most you could say of Athens and Rome is that they might be seen as stepping stones on the way to civilisation.  Like neolithic man.  Or the apes.

The discussion is even sillier in the context of our democracy.  We subscribe to what is called the ‘Westminster system’ – or we did before we started to dismantle it in my lifetime.  That, as the name suggests, is British.  Our constitution derives from that of Britain. 

It in turn derives from the common law and its history.  And the critical point of departure for the common law is its explicit rejection of Roman law. 

Our whole political mindset is alarmingly Anglo-Saxon.  If you want to go beyond England for the source of our laws, you go not to Athens or Rome, but to Germany.  Indeed, as a great American historian of our laws remarked, they are more German than those of Germany. 

And, by a quirk of history, our constitutional laws are more Protestant than those of Germany.  Neither England nor Australia can have a Catholic head of state; and only someone quite unbalanced would refer to a Muslim or Jew in that position.  This is a source of amusement to those who wish to change that disposition for us – and who meet bitter opposition from among those who are excluded.

Finally, may I come back to civilisation?  As indicated below, I do not think you can describe a nation as civilised if it tolerates slavery.  Almost all of the positive action to contain that evil, the very denial of civilisation, came from Britain – and from the Quakers and the Church of England.  This was their triumph, and one for which all mankind can be grateful. 

The Church of Rome was not up for that fight – for reasons its more vocal supporters may care to ponder.


The Oxford English Dictionary defines ‘civilize’ as ‘to make civil; to bring out of a state of barbarism, to instruct in the arts of life; to enlighten and refine’.  People who extol ancient Greece and Rome as ‘civilised’ obviously use the word in this final sense.  They see ‘enlightenment’ and ‘refinement’ as being enough to outweigh the barbarity of slavery or their many-godded naturalistic religions.  They see civilisation even though neither Greece nor Rome had then been blessed with the respect for the dignity of each human life that is at the foundation of the Judaeo-Christian tradition and which is elemental to our concept of ‘civilisation’.  Unlike Hamlet, the ancients had notheard the beautiful notion ‘that there is a special providence in the fall of a sparrow.’

In his wonderful TV series and book, Civilisation, Kenneth Clark asked what civilisation is.  He said: ‘I don’t know.  I can’t define it in abstract terms – yet.’  He then compared a tribal African mask to a sculpture of the 4th century B C, the Apollo of the Belvedere.  He said ‘I don’t think that there is any doubt that the Apollo embodies a higher state of civilisation from the mask.’  He supported that claim in this way.

There was plenty of superstition and cruelty in the Graeco-Roman world.  But, all the same, the contrast between these images means something.  It means that at certain epochs man has felt conscious of something about himself – body and spirit – which was outside the day-to-day struggle for existence and the night-to-night struggle with fear; and he has felt the need to develop these quantities of thought and feeling so that they might approach as nearly as possible to an ideal of perfection – reason, justice, physical beauty, all of them in equilibrium.  He has managed to satisfy this need in various ways – through myths, through dance and song, through systems of philosophy and through the order that he has imposed on the physical world.  The children of the imagination are also the expressions of an ideal.

It is curious that Clark made no reference to ‘the arts’, ‘enlightenment’ or the ‘refinement’ of the OED – they are most emphatically what his series and book were all about.  We find there very few references to myths, music, dance, or philosophy.  Instead, we now hear of a quest for ‘an ideal of perfection’ which will apparently do enough to balance ‘the superstition and cruelty in the Graeco-Roman world.’

There are at least three issues with the notions identified in the OED or by Kenneth ClarkFirst, most people could not give a hoot about and do not appreciate the kinds of enlightenment or refinement referred to; indeed, most people in a pub would have trouble in following just what Clark was saying. 

Then the relative terms are in any event very plastic.  Views may differ on what is art, what is refined, or what is enlightened, or what might be seen as an attempt to reach the ideal of perfection.  What if a member of the tribe represented by the African mask did not think much of the Apollo of the Belvedere?  By what criteria might a product of the Western Establishment say that the black man was wrong?  What might we say about the adverse reaction of a slave from the sweat of whose brow the Apollo was wrought?  I might say that if I were choosing art for my home or place of work, I would much prefer the African mask to the Apollo of the Belvedere; but, then, I like aboriginal art, which would have been foreign to Clark, and pop art, which would have appalled him.  The fact that the Apollo is a ludicrously idealised and stylised portrait of a vain pagan god that Napoleon looted from the Vatican does not add to its charms.

And, finally, it is not much good having a refined ear for Mozart’s Requiem if you can be murdered in your bed, or your having a Ph D for analysing the downward smile of the Mona Lisa of Da Vinci if you can be cast into prison forever on the mere say so of a prince or a bishop – or if you just cannot get enough food or water to live.

In my view, most people in the West now have a different view of what the word ‘civilised’ should mean.  They would, I believe, go along with something like the following.  In my view a nation or people cannot call itself civilised unless each of the following five criteria is met. 

  • It has a moral code that respects the person and the dignity and the right to property of each person in the group. 
  • It has a mature and stable form of democratic government that is willing and reasonably able enforce that respect and those rights, and to preserve its own democratic structure.  (I have opted for democracy because it seems to be the fairest mode of government and to be the best able to deliver the other objectives.)
  • It observes the rule of law – as described below – and it seeks to protect the legal rights of its members. 
  • Its working is not clogged or threatened by corruption. 
  • It seeks to allow its members to be able to subsist and, after providing for their subsistence, to have sufficient leisure to pursue happiness or improvement in such ways as they may choose, provided that they do not harm others. 

Put differently, a group of people may be said to be ‘civilised’ to the extent that its members are ‘civil’ to others.

You will have seen that my definition makes no reference to refinement or enlightenment or to ‘the arts’ or the ‘ideal’.  This is because I view government much like I view education.  The object of education is to teach people reading, writing, and arithmetic – any grace, taste, or faith they may get from that source will be a bonus.  I see government as there to protect us from each other and from itself – any refinement or enlightenment is, for the most part, a matter for us and not government. 

On the other hand, I can imagine people wanting to refer to religion in their criteria – historically, at least, the first of my criteria is based on religion – and also to some kind of social equality and a refuge or safety net for those who do not do so well, but I am conscious of the difficulty in getting agreement at these edges.  The requirement of ‘legal equality’ does, however, come in under the rule of law, below.

If a definition like that set out above were to be applied, then no state could have been regarded as civilised until about the beginning of the twentieth century, and then only in the West.  I do not think that such a suggestion would seem odd to men and women in the street today in London, Paris, Berlin, or New York.   I think that public opinion in the West has moved on since the Holocaust and Hiroshima, and that we attach more weight to the protection of human rights and dignity, and from our own annihilation, than some impossibly enlightened and refined works of art whose real secrets are not revealed to the unwashed.

In any event, you can make up your own mind on when in your view any nation ought or ought not to be able to call itself ‘civilised.’  No historian can play God.  But you may wish to bear in mind the different meanings of civilisation, or the weights to be given to its parts, and you might ask this question – did either ancient Athens or ancient Rome satisfy any of the five criteria set out above?  How many do you think that either satisfies now?

‘Rule of law’

The first element identified by the English jurist A V Dicey for the rule of law was the absolute supremacy of regular law over arbitrary power. This was the supremacy of law over people.  Aristotle had, after all, said that ‘the rule of law is preferable to that of any individual.’  Any king or dictator or Roman emperor who was above the law therefore did not preside over a state that was subject to the rule of law.

The second aspect of Dicey was equality before the law, or the equal subjection of all classes to the ordinary laws of the land.  Slavery and imperial subjection are equally out of the question.

The third part is characteristic of the common law, the general law in large part based on precedents in the courts.  We see the constitution as the result of the ordinary law of the land.  The constitution is not the source, but the consequence, of the rights of individuals.  The constitution is itself part of the common law.  The Europeans tend to see it the other way around – they see private rights deriving from public institutions.  Dicey said, ‘Our constitution, in short, is a judge-made constitution, and it bears on its face all the features, good and bad, of judge made law’

Dealing with greedy lawyers who are crooks


This is a story of events of the kind that a great Dutch historian, writing of medieval Europe, described as ‘vehement pathos’ and ‘proud and cruel publicity’.

Banksia was a company involved in accepting money invested in it in return for the security of debentures and then lending that money out to borrowers in return for the security of mortgages.  It collapsed in October 2012 – nine years ago.  It owed $663M to its debenture holders, many of whom were elderly people in rural Victoria.  The mortgagors owed Banksia $527M.  There was therefore plenty of room for salvage – provided the mortgages in fact gave security. 

Entrepreneurial lawyers went to Kyabram in rural Victoria to start an action for the investors.  So began oceans of litigious controversy that still rage – although two key lawyers driving the original claim confessed in August 2020 to fraud and lost their tickets to practise law. 

When you get sued by old people in the bush who have been taken for a ride, you find yourself kicking into a stiff breeze – which becomes a gale when bent lawyers surface. (As a rough guide, try acting for a bank seeking to evict a widow before Christmas.)  But there is no point in the victims’ beating their culprits to pulp if there is nothing in the till at the other end.

Those who think that lawyers are not concerned with the merits, or that judges have no emotion, do not know what they are talking about.  And parts of the press are full of them. 


After more than fifty years in practice, I can state my views on practising law shortly. 

We have made a mess of the law – a really bad mess.  On the substantive law, government is equally to blame.  The statutes just get longer and murkier.  And laws passed outside parliament are more prone to express what some Germans call the ‘will’ of the ‘State’ – as in the responses to the pandemic. 

But on procedural issues – what happens in courts and tribunals – the mess is nearly all down to us.  We used to complain that government did not provide enough judges.  But those days are past.  We must first get our own act together.  We are the ones who are responsible for the way people get to resolve their disputes – either between themselves or with their government. 

It is therefore no mere fiction to say that lawyers are officers of the courts or tribunals.  We have duties over and above those we have to our clients.  That can of course give rise to tension – but it is for the most part manageable.

In the result, our job is clear.  It is to put our clients into the revolving door of what Sir Owen Dixon called ‘the judgment hall’ at one end and get them out at the other end as soon as we decently can, and with as little mud on their face and as small a hole in their pocket as possible.

And that obligation sits most squarely on the judges for what happens in their courts and on those presiding over tribunals.  It was the judges who made the common law after hearing the arguments of counsel.  It is the judges who are responsible for providing a fair trial for those who are before them.  And a fair trial is in my view one that seeks to achieve the objective that I have set out above.

As it happens, that objective is firmly reflected in a famous clause of our first statute – which is still part of the law of Victoria.  In clause 40 of Magna Carta, the Crown gave an undertaking in the royal plural: ‘To none will we sell, to none will we deny or delay right and justice.’  What could be simpler?


Now, in considering the ban on selling justice, we need to recall that for the most part lawyers are paid for the part they play.  At the time of Magna Carta, people were divided into three classes – those who fought, those who prayed, and those who worked – but someone had to put food on the table for the first two.  (And it was a great achievement for the lawyers whose profession began to emerge then that they destroyed the monopoly of intellect previously claimed by the clergy.)

There will inevitably be some tension is squaring the need of lawyers to be paid with the professional obligations imposed on them as set out above.  It is the same for doctors – and in other professions.  It is just a fact of life, and I know of no ground for suggesting that we get more rotten apples from lawyers than from, say, doctors, police, or others in government. 

And lawyers know that if they misbehave and get caught, they will be dealt with very sternly, because they hold positions of trust, and breaches of trust attract much harder penalties than breaches of contract or mere carelessness.


In the thirty or so years during which I presided over civil tribunals, I sought to keep before me the objectives I have set out above.  In doing so, I tried to learn from the astounding record of Lord Mansfield. 

I know of no finer trial judge.  Lord Mansfield was Lord Chief Justice for 32 years.  His Lordship regularly cleared his whole list.  He did so by the unflinching control he kept over his cases.  Mansfield saw that delays in the law are not for the most part caused by litigants, but by their lawyers, and by clients who do not have a reasonable case.  His job was to keep those delays to a minimum. 

Mansfield well knew why lawyers engage in delay.  One of his biographers says ‘One of the duties of the court is to protect the litigants from their own legal advisers.’  (If it matters, that biographer was a Master in Chancery – and presumably not therefore some ‘activist’ or ‘radical’ or some other undesirable who gives the shivers to the Murdoch press.)  We cannot now believe the number of cases Mansfield disposed of each year.  Mansfield told Boswell that he decided about seven hundred causes a year, and the vast researches of Professor Oldham of Georgetown University are consistent with that figure. 

Above all, Mansfield understood that the ‘symptom of judicial anaemia was the congestion of litigation’ and that ‘the law was to be justified to the litigant.’


The decision in Banksiawas an exercise in protecting litigants from their own legal advisers.  How does it measure up in that endeavour against the issues I have referred to above?

As indicated, the case involved an award of very large legal fees and commission to those involved in funding and fighting a large claim that concluded in a settlement of $64 million – legal fees of about $5 million and commission of about $14 million.

Such a case would have been impossible when I started more than fifty years ago.  There are obviously problems of conflicts of interest in allowing lawyers to have a slice of the action.  Those problems get more serious when a trading company is involved in funding the action.  There is a head on collision between the paramount drive for profit in capitalism and the refined doctrines of equity about the high obligations of good faith imposed on those who hold positions of trust.  Things were even worse here because lawyers held a stake in the funder – about which they dissembled. 


But all these niceties went clean out the window when the evidence revealed that the lawyers were seeking to obtain financial gain by deception.  That’s called theft. 

To allow these issues to be aired fully, the court had appointed lawyers to make the case against those claiming the millions.  The office has the quaint name of Contradictor, and it resembles the role of counsel assisting in a royal commission.

Most of this is utterly foreign to me.  You may as well be talking about standards of conduct in the Kasbah in Tangiers or Morocco.  But two things come to mind.  First, we at the Bar have always been used to contingent fees – as a matter of fact.  If you are acting for a worker injured at work, you do not get paid unless you get it from the employer by settlement or verdict.  There the facts of life, and common decency, trump high doctrine. 

And if you go to Harvard to learn about class actions, the first thing that the lecturer tells sceptical lawyers from other places is that many of the movements in human rights in the US have come from this kind of process.  (That has not happened here because although the English Bill of Rights is still part of our law, we have not entrenched it so that it can be sued on – for which relief, much thanks.)


The Banksia hearing on costs and commission took place over 35 sitting days in and between July 2020 and March 2021.  There were three plaintiffs, including the Contradictor, and seven defendants.  There were eight law firms – and not small ones – involved, and at one time or other eighteen members of the Bar were in court.  So, for about 35 sitting days, more than twenty lawyers were hard at it.  The hearing was I gather streamed live and avidly followed by a lot of underemployed lawyers.  It was, I am told, high theatre – although I doubt whether the affected elderly around Rochester and Tongala would have been glued to their screens.

At one time or other, eight silks appeared.  My clerk tells me the range of fees for silks in such a case is currently between about $10,000 and $20,000 a day, and about $3000 to $5000 for junior counsel.  So, let’s put two counsel down for, say, $20,000 a day between them for each party.  (The press says Brett Walker charges $25,000 a day.  My understanding is that he is not alone, and that that figure may be light.  Institutions like BHP and the Vatican can afford those fees, plus rich people like Clive Palmer – who is very quick on the draw – but it is all just Fantasyland to the rest of us.) 

I am told that firms like those involved in this case would be likely to bill about $15,000 per day of the hearing plus a healthy hit outside that.  So each of the ten parties to this case, or at least those most actively involved, might be looking at a figure for costs of about $35,000 a day.  That is probably a lot more than the average investor tipped in – if there are many still living.  That would give a figure well north of $250,000 a day for the hearing across the parties.  Plus the costs of running the court. 

I could be way out on those figures, but there will have to be a full accounting of how trust funds were disbursed.  And we will then all see.  You do not have to be au fait with Story on Equity Jurisprudence to know that the obligation to account inheres in any relation of trust and confidence.  The judgment records that ‘as at 31 December 2020, the Contradictor and the SPR (Banksia receivers) had incurred approximately $7 million and $3 million in costs, respectively.’ 

Mercifully, I have only been involved in a couple of those extravaganzas, which quickly develop a life of their own, but as you go into the court room, you can feel a kind of hum of contentment as the meters tick happily on.


The recovery proceedings were commenced on Christmas Eve 2012.  Banksia was wound up in June 2014.  The recovery proceedings were settled, but the Court of Appeal sent the settlement back to a single judge in November 2018 to consider the claim for costs and commission.  The Court appointed the Contradictor.  It later added defendants. 

An interim judgment on those issues was given in October 2021.  The judgment runs to 696 pages.  It more resembles the report of a royal commission than the judgment of a court on an issue of costs and a claim for commission.  There are issues outstanding, and I have not referred to a welter of other cases arising from the collapse of Banksia.


When Hamlet considered whether he should toss the towel in permanently, one of the things that got him down was ‘the law’s delay.’  But there was also the ‘oppressor’s wrong, the proud man’s contumely….the insolence of office.’  Well, his Honour had plenty of all that before him. 

But he also had before him a frightful consummation of our two biggest failings in this profession – cost and delay; greed and not so much sloth as timidity, and failure of nerve. 

In commenting on what I regard as an unholy mess and a disaster for those old people in the country, I wish to make it clear that I am not criticising the judge.  On the contrary, in my view, his conduct of the case was a model of its kind under the present system.  (And I might also say that I impute no lack of care to those performing the difficult part of the Contradictor.) 

It is the system that I find wanting.  And for that, we are all responsible.

Nine years after Banksia collapsed, the litigation is still going on, and in the pursuit of crooked lawyers, the lawyers have been paid millions of dollars that dwarf the costs sought to be stolen by the crooks.  It is not hard to imagine the tone of the seniors’ conversation at the Kyabram RSL.  More like Jack Cade than Hamlet.  (Jack Cade was a heavy booted populist before his time.  The first plank in his policy was that suggested by Dick the Butcher, to ‘kill all the lawyers’.)


There is no doubt that the two main blots on our name – delay and expense – are joined together.  The longer the case goes, the more money the lawyers make out of it.  The punters want to get out of it as quickly as they can.  The lawyers are professionally obliged to help them do just that – quite apart from what any act of parliament might say.  But the lawyers have a real financial interest in doing just the opposite. 

There you have a definitive conflict of duty and interest in those who hold positions of trust – the lawyers.  And the law says such office holders must avoid getting into such a position.

The rot started to set in about when I started in the law.  The brief to a barrister had to be marked with a ‘brief fee’.  You charged for one conference, but otherwise that fee took you through the first day of trial.  After that you could mark a ‘refresher’ of two thirds of that fee for each succeeding given period.  Except for the most down at heel, counsel had no incentive to prolong the case; au contraire. 

Then time charging began to come in.  When Daryl Dawson took silk, I moved to the chambers of Bill Ormiston.  I cleared his desk in the long vacation.  One brief was for the Deputy Commissioner of Taxation on an issue of credit.  When Bill got back, he said the Commonwealth was lousy on brief fees, but they paid for preparation.  It may not surprise us if it was the Commonwealth that breached the dam.  They always seem to have lots of money to play with.  But they forget that it is ours, not theirs.


Not only have we as a profession failed to contain the demon of time charging, we have made it much worse by the way we manage disputes when they go to court.  Starting in about the mid-eighties, the judges started to control each phase of managing the case before it got to trial.  It happened in commercial lists in the Supreme Court and across the field in the Federal Court.  They ordered people to take steps.  That costs money, as it does to attend court to argue about procedure.  Then they ordered books of documents to be prepared.  This became the bane of young solicitors and drove many of them from this part of the law.  Not enough barristers, and therefore judges, have seen at first hand the maelstrom that is unleashed in a law office when these come to be prepared.  It is very demeaning.

And then came the worst and most insulting step of the lot.  The witnesses were ordered to give their evidence in chief in writing – with the help of their lawyers.  This was a disaster in every way.  It extended and demeaned the process and left the punter wondering what it was all about.  These problems have been catalogued many times.

And all this intervention by the judges did little to dispel the always latent threat of a sense of grandeur among them – and it moved them closer to the inquisitorial model.  They began to drift from common law and the settling presence of the jury.  You could almost sense a fall-off in the restraint of judges back in my new days. 

The threat from the Federal Court did not help with this.  Nor did the creation of a permanent Court of Appeal.  Divisions lead to tensions, and they worry the punters – and they encourage the lawyers.

(Whatever else the Federal Court was set up for, it was not to hear libel actions.  Historically, they were tried before juries – for good reason.  Not in this court.  The results are out of this world.  After an inquiry into the theatre, we now have one into the theatre of war.  Its longevity will challenge that of Banksia.  Instead of monosyllabic responses from the jury, we will get a re-write of War and Peace.   And the costs of these feeding frenzies are breathtaking.  The Commonwealth Attorney-General gets a mere $300,000 or so a year.  So his libel action was far beyond his means – and then he got into trouble for the way he sought to fund it.  Litigation funding is indeed fraught.  Do we lawyers not see people losing whatever faith they may have had in the justice system?)


And while we were making it so hard and expensive for the punters to get to trial, we were steadfastly refusing to set time limits within the trial – for the purpose of managing the hearing and making it as short as decently possible. 

The Greeks did so at the time of the trial of Socrates.  Our High Court does it.  The two most elevated courts in the world do it.  But, in the work place where the punters get to take the heat, we refuse to do it.  Why not?   Is there any improvement on inertia and timidity – and plain want of care?

And that’s before you get to the marathon hurdle race that we make our judges endure when charging a jury.  You would give an American judge very bad nightmares if you showed them one of our off the shelf charges to a jury.  Or what an appeals court does to a deviant trial judge.

So, that is one problem that Banksia shows us – the conflict of duty and interest that we see in lawyers involved in litigation.


Next, there is a real sense in which the Court is exposed to conflict.  It has at least two relevant duties.  One is to provide a fair trial.  In the language of a statute I will come to, I would think that that duty is ‘overarching’ or ‘paramount’.  The other duty of the Court is to see that the lawyers who are its officers are behaving as they should. 

The investors have at most a limited interest in the latter.  They just want to get as much of their money back out of this disaster as they can.  If the disciplinary role of the Court hinders it in looking after the investors, then the investors are against it. 

Banksia collapsed in October 2012.  Recovery proceedings started that year.  They involved allegations of fault against those managing the business of the company.  The settlement of those claims led to this litigation.  That involves allegations of dishonesty against their own lawyers – who became the next targets for the investors.  But nine years after the collapse of Banksia, the litigation is still going – and eating up the fund that was meant for them. 

The principal malefactors were the lawyers.  The two counsel confessed in August 2020.  As I see it, this trial then ran for more than twenty sitting days.  The expenditure of that time and money may have been both necessary and desirable in the interests of justice for the people of Victoria as a whole. 

But was that the case for the investors?  The final days of these aging Australians in the bush, who would not have in their number many with a sophisticated acquaintance with business or the law, have been blighted.  It is not easy to think of litigants who have been hard done by as much as these – those still living.  And we lawyers are to blame – whichever way you look at it.

As you might imagine, lawyers have been agog about this case.  But many seem to have been more worried about the effect on themselves than the investors who have been the victims – twice.  It is trite but true that the most important person in the court is the loser.  The malefactors will get their deserts.  The real losers in all this litigation are the investors. 

But that is not how we treat them in our judgments.  We do not write those for the parties.  The prospect of an investor reading nearly 700 pages is next to nil.  There is not much reference to the pain and suffering of the real losers.


May I now say something more about the policing or disciplinary function? 

There are many references to the Civil Procedure Act 2010.  I have only ever looked at that as a litigant, and I wondered what on earth it all meant.  It looked like motherhood in the grand style.  Were not people under these obligations before the act was passed?  What do the terms ‘overarching’ and ‘paramount’ mean?  They are terms of Roman law and the codes.  They are not the way of the common law.  Attempts at the entrenchment of very large ideas are very dangerous – as our High Court found for the first ninety years of its existence with the words ‘absolutely free.’  And you risk the sort of problem you get with company and tax laws – you clog the system up with so much detailed regulation that you are in danger of forgetting or not applying what Sir Owen Dixon called basal principles. 

This act looks to me to be the kind of law that is longer on aspiration than consequence, and that was written by people who have not spent much time in the trenches.  The casual entrenchment, in s. 26, of the process of discovery, that wanton child of the Court of Chancery, is in my view a disaster.  Discovery is one of the main processes that has sent our litigation clean off the rails and put costs through the roof, and the wording of the section could be Christmas for any bush lawyer.  In a process that is related to trial by battle, it is novel to have a procedure that depends on your placing trust in your adversary.

But the statute does give the parties and the judges a kind of weapon.  Judges frequently invoke it against slow or slippery litigants – in ways I think that would have elevated at least one eye-brow of Lord Mansfield.  But you do not often see a court applying the act to itself. 


Well, the effects of ss. 7, 8 and 9 of the act are that the Court must act so as to is ‘to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.’  The Court must do that, and in doing so, it must  have regard to the ‘just determination of the case; the public interest in the early settlement of disputes by agreement between parties; the efficient conduct of the business of the court; the efficient use of judicial and administrative resources; minimising any delay between the commencement of a case and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary: and the timely determination of the case’.  And in doing all that, they have to act in a manner that ‘is proportionate to the complexity or importance of the issues in dispute; and the amount in dispute’. 

People in business and those experienced lawyers that act for them, including me, would say that the last is by far the most important issue.  Plenty of sensible people I know in business refuse as a matter of policy to go near a court unless the alternative is Hiroshima.  And I do very little to try to shift them.  It closely resembles my attitude to surgery – you only submit if the alternative does not bear thinking about.

Now, that part of the act is a bit of a mouthful.  But the act is like that.  The question then becomes: have the courts involved in this litigation since it started in 2012 discharged the statutory duty that they owe to the people of Victoria?

Those holding up the bar at Hurley’s on the main drag in Kyabram would laugh mordantly at anyone silly enough to put the question.  But the mood could get very ugly if some smooth talking suit from the Big Smoke – not another one of those! – sought to maintain the contrary.  They know too well the grief that this shocking rolling disaster has brought to ordinary decent people near to them.

The judgment commenced by citing some remarks about the reliability of counsel made by an English baron who held the office of Master of the Rolls in 1837.  Those remarks do sound alarmingly Victorian now.  Right at the end of the judgment, after a painstaking analysis of ultra-complex issues beyond the comprehension of most lawyers, let alone those people retiring in northern Victoria, his Honour said:

From my ‘ringside’ perspective, I saw no reason to be concerned about the efficacy or regulation of group proceedings or litigation funding as pathways for access to justice, or about the capacity of the legal system to properly self-regulate.

This judgment also records the restorative capacity of the civil justice system to protect fundamental values, to protect its integrity through the commitment of the judiciary and the profession to preserve, maintain and nourish the common law’s absolute commitment to the proper administration of justice. Ultimately, despite the best efforts of the Contraveners, the spoils were never divided.

Elsewhere, His Honour said:

The civil justice system protected the litigants, but not without some damage in the public eye to its integrity. It is infinitely more difficult to regain the community’s trust than it is to condemn, in the strongest possible terms, the appalling conduct I have documented.

Perhaps most worryingly for the community, is the finding of the Court that but for this process, the crimes would have gone undetected:

Had any of the Contraveners properly discharged the overarching obligations they contravened, the dishonest and fraudulent scheme uncovered by the Contradictor would never have been devised, and the need for such a wide ranging and expensive enquiry would have been avoided. I am satisfied that, but for this remitter, the contravening conduct would never have been uncovered.

That finding might also be of interest to the Fraud and Extortion Squad.  (I understand that a police superintendent gets paid about $173,000 a year – which is at a very different rate to those engaged in this part of the Banksia process.)    If it costs more to detect an attempted theft than the amount sought to be stolen, our peril is mortal.  And ironically, it was the felt need to revert to the adversarial model, by the appointment of a Contradictor, which sent the price hike into overdrive.


We are, as I follow it, in large part talking about how trust moneys have been applied.  All litigation is a form legal gambling.  That’s not something you ordinarily do with moneys held on trust. 

There is obviously an exemption here, but we need to understand how the underlying principles governing the treatment of the investment of trust assets have been observed in this case.  We after all talking about litigation funded to look into the unlawful behaviour of those funding and acting in the main recovery action.  This is the clean-up of a dreadful mess inflicted on decent people by dreadful lawyers.  It would be idle to suggest that the lawyers involved in the clean-up must be models of that fine old term – prudence.

Some of the language in the judgment suggests that the aura of a crusade hung over parts of this case.  If contained by ordinary notions of restraint appropriate to our profession, that is fine – provided it helps to advance the relief sought by the investors.  Jailing malefactors will not of itself get them any of their money back.  Indeed, it may leave them worse off by leading insurers to deny indemnity and leave any money claim worthless.  It may be like having your new Benz crashed into by some clown who then tells the police that he was drunk.


Lawyers do not ordinarily advise people to chance their arm in the judgment hall after suffering some wrong unless they have a reasonable assurance that their prospects of winding up better than they are warrant their embarking on that course. 

The investors got such an assurance before they started the main action.  Who gave it when they prosecuted the action after the settlement?   Who was responsible for monitoring that advice for the benefit of the investors during the long months of the hearing this time round – and by reference to what legal criteria?  If the pursuit ceased to be worth it, who should have said what to whom – and when?  What evidence was there about the worth of the defendants? 

The judgment refers to Professional Indemnity insurance, but it does not cover crime; any cover for negligence may be unlikely to extend to these claims – even for costs; and big hitting lawyers, especially those from big firms, usually insulate their assets.  Even if a fidelity fund were answerable, that would involve the tab being picked up by people who were not at fault and otherwise responsible for the loss.  In some of the myriad decisions, you will find references to the potential liability of others standing behind the defendants.  This is one of those fringes of this nightmare that gets very murky.

May I refer to some remarks I made about Clausewitz On War (in a book yet to be published)? 

Who could disagree with the following?

‘No one starts a war – or rather no one in his senses ought to do so – without first being clear in his mind what he intends to achieve by that war and how he intends to conduct it’.

That simple common sense was forgotten – outrageously – in Vietnam and Iraq and it now looks to have been forgotten by all parties in Syria.  It is also a question that needs to be raised and answered – with ruthless persistence and honesty – by anyone contemplating that form of judicial duel that we know as litigation.  As the Commentary to the Folio edition remarks, the ‘war in Vietnam had every possible kind and degree of incoherence both of objective and of method.’  Exactly the same could be said of Iraq, Afghanistan, and Syria – and far, far too much litigation.  What on earth did they have in mind?  And I expect that similar questions may be put for many examples of surgical intervention – even if you don’t see war as a gross form of surgery.  If I may be forgiven the platitude, surgery, like war, involves invasion.

The question is then – in the events that have happened, are the investors better off for what we have done for them since the intervention of the Court of Appeal than they were before that?  Perhaps the question should be – where should they be now if we had acted decently from the time that they first sought our help?

In looking at that question, we must ask whether we, and in particular the judges, have sought to follow the teaching of Lord Mansfield that I referred to above. 

One of the duties of the court is to protect the litigants from their own legal advisers.

Remember that this decision is just one of many involving Banksia.  Huge sums of costs have been run up in Victoria and New South Wales, in appeals, including one to the High Court, and one party flagged a possible proceeding against an insurer direct. 

I suppose that someone could tell how much has gone from the fund on lawyers so far.  What the investors will be asking is: Do you think what we ever get back might equal what the lawyers have taken out?  Or might the court be told that the parties have finally reached the ghastly milestone of Bleak House – the till is empty? 

People asked similar questions about the cost of the Melbourne Response of the Catholic Church to claims against it for abuse by priests.  (Curiously, Corrs acted for the Church there and for the Contradictor in the present case, a happenstance for which the partners must be duly grateful.)

It is clear from the terms of the judgment that the Court was troubled by the need imposed by statute to watch the proportion of costs to the amount in dispute.  We lawyers get squeamish about costs – usually for good reason. 

I have had to look at them in four different capacities – solicitor, barrister, client, and tribunal member.  (In the Taxation Division, we decided not to follow the common law rule that costs usually follow the event.  We left that issue at large where taxpayers were questioning the conduct of the Crown, and where government had its own interests in getting a ruling – if necessary by going as far as the High Court.) 

It is hard to see how a court can monitor the proportion of costs to the amount in dispute without knowing what those costs are – and that may lead to a level of intervention far greater than what we thought was either necessary or desirable in the past.  And some mild blushing at the bar table.

But the Court here was actively involved in how the process was structured.  The parties had settled.  The court approved the settlement.  There was an appeal.  That meant that a Contradictor had to be appointed.  Then the court added defendants.  The sky-rocketing of costs followed directly from court interventions. 

One of the issues that troubled the Court of Appeal was the capacity of the litigation funder to lead to conflicts of interest in any settlement.  This was a major consideration in their holding that the trial judge should have appointed a Contradictor.

The burden on the court should not be increased by terms of settlement that inhibit parties from assisting the court. Here, the judge’s refusal to appoint a contradictor, which was motivated by a desire to avoid costs, failed to adequately come to grips with the potential for conflict and the need to ameliorate the burden on the court in assessing the appropriateness of the claimed commission and costs.

The felt need ‘to ameliorate the burden on the court’ may look more than a little wan now to the investors in the country wondering where all the money and time have gone.

In chapter 39 of Bleak House, Dickens laid out his horrible indictment of Chancery then.

The one great principle of the English law is to make business for itself. There is no other principle distinctly, certainly, and consistently maintained through all its narrow turnings. Viewed by this light it becomes a coherent scheme and not the monstrous maze the laity are apt to think it. Let them but once clearly perceive that its grand principle is to make business for itself at their expense, and surely they will cease to grumble.

Then in chapter 65 comes the unthinkable.

“Mr. Kenge,” said Allan, appearing enlightened all in a moment. “Excuse me, our time presses. Do I understand that the whole estate is found to have been absorbed in costs?”

It does not bear thinking about that in the next millennium, we might be seeing the rebirth of Dickens’ Court of Chancery.


So, they are some of the troubling questions coming out of what Churchill may have called a ‘colossal’ professional ‘disaster’ – and, above all, a ghastly human tragedy. 

Before I conclude, may I say something further here about some of the fees I have quoted?  This has always been a sensitive area for those at the top of my profession at any one time.  Responsible lawyers at the peak of the profession and at the top of the market have to justify getting paid what the free market will bear in return for their achieved excellence – against the possibility that the public will merely see them as Gordon Gecko revived. 

The incomes of top silks and leading partners in the big firms now approach those of senior bank executives.  And they are as a breed right on the public nose, fairly or otherwise, because they are seen as appropriating great swathes of public money for no other reason than that they can – and they then get the nod from those in that timid incestuous breed that has claimed the boardrooms.

I was heavily involved in the battle for BHP in 1986 on both sides of the profession.  It may have been the biggest litigation in Australia since the Bank Nationalisation Case.  People with better memories than mine say the fees for top silks then ranged from about $2200 to $3000 a day.  I doubt that inflation would bring those fees to $25 to $30,000 a day now.

There is not I think anything new in this problem – that really comes down to PR – which lawyers are not supposed to be there for.

We need to recall that we subscribe to the notion of free markets.  We have resisted fixing fees for lawyers.  In 1985, I was retained by the Victorian government to draw a bill for an act of parliament to set up a regime to fix legal fees.  (I had once settled a maintenance case in the Magistrates’ Court with John Cain, the Premier.)  The law firms killed that off – they said we would lose business to Sydney!  There are scales of fees in the lower courts but not for big cases.  That means that the winner rarely gets back the lot of their costs.  The shortfall in big cases could wipe most people out.  Even when they win, they lose.

Experienced lawyers whose judgment I respect say that the highest chargers at the Bar are worth the money.  That really should not come as any surprise.  It is not just that the market is a good index of value.  The really top people get to the point more quickly and with more assurance than others. 

We might recall the libel action where Whistler sued Ruskin for libel for saying something like Whistler had tossed a pot of paint in the face of the public.  In cross examination, Whistler was asked how long it would take him to dash off one of those paintings.  ‘I might do one in an evening.’ ‘And for the work of an evening, you charge fifty guineas.’ ‘No – not for one evening, but for the experience of a lifetime.’  Picasso made a similar remark – I have a print of a drawing of a bum that consists of four lines – and there is no answer to it.

There will remain the image problem and the danger that people might think that the wealthy are better off in court because they can afford the best lawyers.  That would not be right – I hope – and it would be very unfortunate. 

There is, I think, another consequence.  Up to about twenty years ago, the bench was the destination for the best at the Bar.  The pension was the big draw card.  In part because of improved facilities for superannuation for the self-employed, and in part because of the sodality and plain hard work of life at the bench, that is no longer the case.  There has been a dramatic shift in the centre of juristic gravity from the bench back to the Bar.  If that is a problem, and I am not sure if it is, I have no idea what to do about it – or the problem of the perceived advantage of the rich.


But I do have very clear views on what to do about the delay in the law that troubled Hamlet.  I have expressed them – too often – before, and I will not repeat them here. 

Perhaps I may be permitted some reflections here on des temps perdus.  In 1970, I spent four months filling in for my dad as associate to Mr Justice T W Smith.  It was a great privilege that has shaped my thinking on all aspects of the law.  Smith was acknowledged to be the leading judge of his generation.  You could not have had a judgment like that in Banksia back then.  His Honour wrote his decisions at night – or standing up at a desk with a nib pen and an inkwell.  (When I had to read the typescript out loud when proofing, I was embarrassed at not knowing the names on the nominate reports; his Honour, an equity lawyer, knew them all – and their correct pronunciation.)  Of all his judgments, that which is most still in use is probably the report of a charge to the jury on acting in concert.  It covers about two pages.   The Table of Contents in Banksia covers more than six pages.  (I can recall a time when Sir Garfield Barwick was criticised for dictating his judgments – and sounding more like an advocate than a judge.)

The modern law of restitution, or unjust enrichment, started with the decision of Lord Mansfield in Moses v Macferlan.  His Lordship’s trial note book covers four pages.  (There was of course no transcript.  The English at all levels went without transcript for a very long time.  In my thirty years hearing cases, I do not think I had transcript before I gave a decision – except for a public inquiry in 1971 where I chaired a committee of a public body.)  From memory, the report of the decision in that case runs to about four pages. 

The modern law of negligence and that of product liability was set out in a judgment of Justice Cardozo in the US and an opinion of Lord Atkin in the UK.

One footnote may be permitted to these judgments.  That of Cardozo J is about ten pages in the reports; that of Atkin is about twenty one pages.  Atkin in his judgment refers to the ‘illuminating judgment’ of Cardozo, and apologises for his own ‘long judgment’.  Heaven only knows what either of these great judges would have thought of the effusive fulminations of the doom-thunderers of nowadays.

The footnoted essayists of those Ph D theses standing for judgments now might wish to contemplate the dilemma.  If they are not saying anything new, they may be wasting their and our time.  If they are saying something new, they will almost certainly leave us all worse off – unless they are up there with Cardozo and Atkin – which will certainly not be the case.

May I, however, offer one suggestion prompted by our new found respect for the intervention of parliament?  The judges could, without further ado, invoke the fine language and the high purpose of the Civil Procedure Act by immediately confronting a cause of delay in litigation that has defied Magna Carta and bedevilled the people for centuries – judges reserving judgments too often and for too long.  Justice delayed is justice denied.  

The court could publish a running list of reserved judgments and put in place a process to deter judges from having any more than one judgment outstanding at any time and for reserving any judgment for longer than two weeks. 

This legislation, which I had thought was crass window dressing, was passed with quite express purposes – to reform and modernise procedure, and to provide for the efficient, timely, and cost-effective resolution of the real issues in dispute.  If the judges get serious and seek to advance those purposes themselves, they could send a signal, as the politicians are wont to say, to both punters and lawyers that the traffic in either exhortation or reform is not one way. 

Then we might all give thanks to that noble English judge who concluded a judgment with the words: ‘I hope I have not said anything original.’  (Even if he did borrow the term from a knighted alpinist from Eton and Cambridge in a lecture given in 1903.)

OK – this is a cliché, and I know what George Orwell said about them, but with the best will in the world, I can’t resist this one.  It’s about time the judges took some of their own medicine.  They’re sure ready enough to hand it out to the rest of us. 


In the paper Jesting Pilate that I referred to above, Sir Owen Dixon quoted Hamlet, without ascription, in talking about men of action and lawyers.  It is worth setting out what that great lawyer said at some length.

Unlike men responsible for immediate action, we have all the advantages which dialectical discussion can give; by the ordinary legal process relevant facts and circumstances can be made to appear, and we have time, if not leisure, in which to reach our decisions and prepare our reasons.  If truth is an attribute which can be ascribed to a purely legal conclusion, it should be within our reach.

These are very different conditions from those in which the man of action is often placed.  For the strength of such a man lies in his anterior equipment of knowledge and in experienced and wise but courageous intuitive judgment.  The native hue of resolution cannot be sicklied o’er with the pale caste of thought.  Enterprises of great pith and moment must not, with this regard, their currents turn awry and lose the name of action.

Sir Owen was not suggesting that the man of action has no place in the law.  Action is what need now, together with ‘experienced and wise but courageous intuitive judgment’. 

The reference to courage is not an accident.  Clausewitz said a lot that applies to us.

War is the realm of danger; therefore courage is the soldier’s first requirement.  Courage is of two kinds: courage in the face of personal danger, and courage to accept responsibility, either before the tribunal of some outside power or before the court of one’s own conscience… …The role of determination is to limit the agonies of doubt and the perils of hesitation when the motives for inaction are inadequate…Determination proceeds from a special type of mind, a strong mind rather than a brilliant one….Presence of mind is nothing but an increased capacity of dealing with the unexpected ….A strong character is one that will not be unbalanced by the most powerful emotions.  Strength of character does not consist solely in having powerful feelings, but in maintaining one’s balance in spite of them.

We as a profession, bar and bench, have not given enough attention to the role of character, courage and determination in what we do – it is the ‘courage to accept responsibility’ that lies at the heart of any true profession. 

Our failure to find that courage is, I fear, at the heart of our failure overall in our profession.  It is a failure of nerve.


Finally, in 2008, I got a shock to read the blurbs that the publisher had extracted from my book, The Making of a Lawyer, What they didn’t teach you in Law School.  They read as follows.

Litigation is a legalised form of gambling that most people cannot afford.

It is notorious that the greatest professional hazard for lawyers, apart from greed and arrogance, is bullshit.

As a profession we have to do something about the level of fear that is constricting our professional lives and usefulness.  We are increasingly looking like the timid inmates of an anal hierarchy that has turned in on itself.

And since then, it has been downhill all the way – and it’s about time that we said that the carnival is over.


Dutch historian: J Huizinga, The Waning of the Middle Ages, Folio, 1998, 1, 7.

Collapse of Banksia: all references to the evidence come from the judgment of John Dixon, J in Bolitho v Banksia (2021) VSC 666 (11 October, 2021).

Judgment hall: Owen Dixon, Jesting Pilate, Law Book Co., 1965, 10.

Magna Carta: Imperial Acts Application Act, 1958, s. 3.

Mansfield: E Heward, Lord Mansfield, Universal Law Pub., 1998, 47-48.

Oldham figures: James Oldham,The Mansfield Manuscripts, U N C P, 1992, 122.

Judicial anaemia and justifying the law: C H S Fifoot, Lord Mansfield, Oxford, 1936, 52, 231.

Theft: Crimes Act, 1958, ss 72 ff.

Bill of Rights in our law: Imperial Acts Application Act, above.

Costs in judgment: par. 1774.

Travails of Hamlet: Hamlet, 3.1.71-73.

Jack Cade: Henry VI, Part II, 4.2.75.

Ringside perspective: pars.2139-2140.

Damage in the public eye: par. 2123.

Proceedings necessary to uncover fraud: par. 2051.

Clausewitz quote: On War, Folio Society, 2001, 587(Book 8, Chapter, 2).

Costs in Taxation Division: Damon v Commissioner of Land Tax (1985) I VAR 130.  In that case, after a two day hearing, I directed the taxpayer to pay the costs of counsel for the Commissioner – $650 on the appropriate County Court scale for brief, conference and one refresher – ‘the cross-examination of an 83-year old widow on behalf of the revenue is likely to be at once delicate and dangerous.’

Proportionality of costs to loss: This was canvassed at great length at the hearing.  It is very involved.  For example, at pars. 2043 to 2045, we get:

Proportionality and avoidance of duplication is also evident from the estimated quantum of costs incurred by the SPR to date, which is approximately half of the costs incurred by the Contradictor. I have observed that throughout the remitter, the SPR has selected from his legal team only those who are appropriate to deal with the issues then before the court.

That being said, I find it deeply regrettable that more than $10 million in legal costs has been necessarily expended from debenture holders’ funds for the Contradictor and the SPR. When I was first allocated the remitter my expectation of the work that might be involved was substantially less than that. The substantial costs incurred is a consequence, all too commonly observed in civil litigation, of parties having to respond to the attitude and approach adopted by the losing party…. A real sense remains that the Contraveners might have already dissipated their assets in the cost of their defence, to the detriment of debenture holders.

See the remarks of Claudius in Hamlet below.

Court of Appeal on Contradictor: Botsman v Bolitho (No.1) (2018) 57 VR 68, par. 336.  At pars. 339-346, the Court looked at the potential liability of others standing behind the defendants.

Previously expressed views: The Cancer in Litigation (1997) 103 Victorian Bar News, 26; 104 Victorian Bar News 24; 105 Victorian Bar News 23; Once were Lawyers (1999) 73 Australian Law Journal 52; Fusion or Fission? (2000) 20Australian Bar Review 70; Unfair Trials (2001) 75 Law Institute Journal 72; Horses for Courses: Warlords as Peacemakers: Are Trial Lawyers Bad for ADR? (2002) 68Arbitration 1 (London); Judicial Overservicing: Bringing Home the Bacon (2002) Victorian Bar News 46; Bush Lawyers (2004) 128 Victorian Bar News, Autumn 26; Positive or Negative? The Attitude of Lawyers (2004) ADR Bulletin, Vol 6 No.10, 198; Is Mediation getting on the nose?  Are the judges killing mediation?(2005) ADR Bulletin, Vol.7, No.6, 106; Surviving the Law, Victorian Bar News,2006; Talking with Liars and Bullies, 140 Victorian Bar News, Autumn 2007, 41: Does the Bar Matter? Victorian Bar News, 2008; and The Law of Evidence and the Mess We Are In, (2021) 169 Victorian Bar News 50-53.

Acting in concert:  R v Lowery and King (No. 2) (1970) VR 560.

Moses v Macferlan: (1760) 2 Burr. 1005; the trial notes may be seen in Oldham, above, 170-174.

Cases on negligence: Macpherson v Buick Manufacturing (1916) 217 NY 582; Donoghue v Stevenson (1932) A C 562.

One footnote: my The Common Law, Scholarly Publishing, 2012, 66.

Saying something original: Lord Steyn in Mannai Ltd v Eagle Star Assurance Co Ltd [1997] 2 WLR 945 at 966.

Dixon on Hamlet: Jesting Pilate, above, 10.  A student I am mentoring kindly drew my attention to some remarks of Claudius in Hamlet:

In the corrupted currents of this world
Offence’s gilded hand may shove by justice,
And oft ’tis seen the wicked prize itself
Buys out the law….(3.3.57-60).

The Making of a Lawyer – What they didn’t teach you at Law School: Hardie Grant, 2008.

Some people of influence

(A random list of people who have influenced me.  It is neither complete nor exclusive – so don’t ask me why I put Robbie Flower and Billy Slater in – and left out Jane Austen and Dante.

This clipped memoire reminds me of how fortunate I have been to be born when and where I was and to find tables laid out for me with so much treasure.)


Simply the greatest.  Confronted the contempt for black people, but had to join the Nation of Islam to avoid the Mob.  A strident commentary on the ugly flaws in the American psyche and a reminder of the dignity that should come with our humanity.


Serious moral courage and blinding insights.  The ‘banality of evil’ is up there with ‘darkness visible’ and ‘Satan felt how awful goodness is.’


Effortless dissection of the emptiness of the bourgeoisie.  He wrote as easily as we breathe.  Rodin was dead right.


The crucial role of character in sport – and elsewhere.  A child-hood hero who stuck.  An essential part of my fabric from boyhood on.  And of the city of Melbourne.


Ascended at the Palais and half of St Kilda heard the gasp.


A titanic Prometheus who gave thunder back to the gods.


A true all-rounder.  Best captain since Waugh.  Captained Australia in the best series ever and was a real part in the famous tied test (the end of which I heard live.)  Later made commentary an art form.


A voice from God that was too much for him to bear.


An Alsatian Jew who fought in uniform in the First World War and was executed by the Germans as a member of the Resistance in the Second.  A truly great historian, he reminds me of Maitland and Namier – his digging gives him the right to be heard.  His Feudal Society is a masterpiece that fills a massive hole in my understanding of history.


Matchless courage.  ‘This heritage, for which we are grateful, puts us under obligation.’  The essence of communion.


The voice that brought me to Shakespeare.


Pure alchemy that will long out-live her tragic end.  As commanding a figure as Ali.  An affirmation of being human.


Blazing insights of a ravaged mind; not history, but tone poems beyond words.  Read The French Revolution eight times, and counting.  Sustained magic.


Our first novel – a masterpiece about a sainted madman and his rough mate.  The soul of Spain.  Faulkner saidhe read it once a year.  The dialogues are high theatre.


Made history by force of character – and saved the world.  Cried easily and he still has that effect on me.


A biblical account of our disconsolate past.  Trashed and abused by people who should have known better.  Read the six volumes and the short version twice.


As tough as old boots with a sting like a Taipan who batted for England and who became the champion of the common law – England’s great gift to the world.


People in the business of persuasion should study and savour The Origin of Species.  Darwin writes clearly and simply – and without pretence.  He is candid and patient.  He is courteous throughout.  He shows no vanity, mockery, scorn, or contempt.  He shows his respect for and thanks to other professionals.  And he knew the atheists were more dogmatic than the believers.


One of the few drivers of real change in art in the 20th century – and he kept going – against the white tide.


A hugely powerful mind in a man who changed the way we write law – and who remembered my name.  By chance or design, we did not often see the dark side.


The grandson of an Italian Jew who made his queen the Empress of India.  Style and grace matter – not least in a Tory.  Nothing like it since.


Our greatest jurist – by far.  A model for aspiration who helped to destroy the cringe.  Some of his stuff on the constitution  would have made Kant sit up.


No small ego, but the Russian genius for high drama.  The Brothers Karamazov is as strong a novel as I have read.  The scene with the Inquisitor makes me hold my breath – breathtaking power and courage.


Outrageous insights that reduced the universe to issues of faith – with a very sane view of the world – and of God.  (Not so good to his wife.)

El Greco

So ahead of his time.  Blinding novelty despite his subscription to the Vatican.  Heralds our emancipation from magic.


Fitzgerald and Hemingway wrote prettily, but what did they have to say?  Faulkner also had problems with skirt and the bottle, but his novels come with a breathtaking wallop.  For raw power, Absalom! Absalom ! is for me matched only by Dostoyevsky. 


Baryshnikov on the wing in a number two jersey.  The pride of Melbourne.  Helped with the misery of the curse.  Pure bliss for Victoria when he had good players around him for a change.


Redeemed the nation in about one minute.  Turned up for the funeral of a mate of mine just because he had done some work for her people.  Quite a lady.




Raw courage and devotion – with and without Nigger.  Harris said he would be in Walhalla – above the salt.


A Boston Brahmin who stopped three bullets in the Civil War.  As strong a mind as any here.  The Common Law is my bible.


He was the subject of my first weekender at Cambridge.  It opened my eyes.  Ibsen was a difficult man who set out to put a torpedo under the middle class ark.  The Dolls’ House was explosive.  Hedda Gabler is as gripping as Hamlet. 


A saintly man whose life and teaching have been so badly let down.  Signed his death warrant by taking to the money people.  Not a rock on which an Establishment might be built.


Yes, Ulysses is up there with Don Quixote and War and Peace, but Portrait of an Artist is not so in your face, and The Dead contains what in my view is the most beautiful writing in English prose.


A mind so fine it nearly undid him, but he showed that mankind has an innate dignity without God – the absolute champion of what we call the Enlightenment.  Fundamental to my view of the world.  Fills the boots of God.


As tough a political warrior as you could find, who put it all on the line for our First Nations when there was nothing in it for him or his party.  Good grief – areal leader.  Then came the pygmies.


A gorgeous young songster slain so young by brutal snobbery.  Innocence defined and smashed.  ‘Here lies one whose name is writ on water.’


A genius who called out his own government as part of the cause of the next war and then helped that nation pay for the war and repay difficult Americans.  In him ‘patriot’ is not a dirty word.


Not the first to break four minutes, but a world beater in that wonderful time when we believed, and then knew, that we could be the world’s best.  And a word you don’t hear much now – a gentleman.


The hero in action, Lawrence of Arabia had a massive influence on me when young – especially after the film.  This tortured soul still intrigues me with his gorgeous writing and blistering insights.  One of a kind, duped into betraying a people; the final flicker of Empire.


Our best tennis player and a great Australian champion.


The object of Australian cricket is to beat England.  With prejudice.  Thommo may have been more terrifying, but Lillee got the wickets.  Watching him before a big MCG crowd is what living in Melbourne is all about.  As when he trapped Knott in front effectively to win the Centenary Test.


Sits on the right hand of God.  No one else gets close.


Wrote like Mozart.


A graceful scholar of the old school with a world view wide enough to underlie all my understanding of the history of the law.  The movement from status to contract is as fundamental as our being loosed from the grip of the supernatural.


As luminous a lawyer and historian as I know.  The father of legal and constitutional history.  The best teller of the biggest story in the world.  A source of inspiration to the mind.


The greatest trial judge.  The god of expedition – Magna Carta made flesh.


Moby Dick is hard going, but Billy Budd is a flawless redemption story that I read or listen to so often – with the movie and the Britten opera.  Another study of pure evil.  (Claggart is mesmerising in both the movie (Robert Ryan) and the opera.)


So far above the rest it is embarrassing.  Raised on the wrong side, she knows how lucky we all are.  The only person in public life to follow the Sermon on the Mount – and she got ridiculed for it.  And she stared them all down.


Nearly past his prime when I saw him, but he could win matches on his own with bat or ball.  A bronzed Anzac that fed a doubtful Australian myth – the likeable larrikin.  Laughed at pressure – that was having a Messerschmitt up your arse.


The Goons with the Demons were the highlights of my boyhood.  Can more light enter a mind that is cracked than one that is whole?  The irrefutable logic of Bluebottle and Eccles.  Raw genius.  Lost innocence.


The first champion of the Rights of Man cheated the executioner and was blind when he wrote the greatest poem ever.


As ineffable as Shakespeare – and as unbelievable.  The best evidence yet of the existence of God.


Revolutionised history by going deep to the best evidence and writing beautifully.  Offside with the Establishment – his widow says because he was Jewish, but probably because he was so good.  Diagnosed what we have lost – ‘restraint, coupled with the tolerance it implies, and plain human kindness.’  I am in awe of this man and his raw intellectual horse power.


A true Australian champion of the world.  And possibly the last decent one we have produced in tennis.


The most imposing presence on any sporting arena – including Ali (who hung on too long).


There is something about the way this guy breathes his lines and shows the whites of his extended eyes that gets to me – and holds my attention – from Scarface on  (with the incomparable Michelle Pfeiffer).  Not bluffed by Shakespeare either.  De Niro is up there with him.  (They were paired in Heat and The Irishman.)


Painted the most arresting painting I have seen – Mozart in jockey’s silks at Santa Felicita over the bridge in Florence.


Fought hard cases before cow punching juries in Nebraska, and published a paper attacking the decline he saw in court control before becoming the sage of Harvard.  Invested the common law with an almost spiritual urge, but kept his feet on the prairie.  The Spirit of the Common Law is second only to Holmes.  Another juristic godfather.


On many Wednesdays in the 60’s, the conversation of four love sick law students in a Zephyr on the way to University turned on what Emma Peel wore the night before in The Avengers.  Sex with style – both so far above us.  Years later, I saw her in Medea in the West End.  Lethal ugly sister in Lear. 


Long legs and dimples.  Drop dead gorgeous.  Incandescent as Juliet.  Those tall arabesques.  I wrote a fan letter about which her husband was at best cool.


The face of God.  Towers above all the rest.  Burton spoke of his ‘towering compassion.’  A very learned person said that when he read Shakespeare, he actually shaded his eyes. 


A strapper from Queensland, number 1 for the Melbourne Storm, Queensland and Australia, may be the most exciting sportsman I have seen – with the possible exception of Thommo.  Shouting for a champion with the whole crowd at your back was a precious novelty for Demons supporters.


A fine artist who did for our view of the city what Fred Williams did for the bush.  Another cringe killer.


The Rolls Royce of judges.  Underlies so much of my understanding of the law – a proper subject of reverence.


A genius and a saint who was excommunicated.  Fundamental to my understanding of the threat posed to humanity by those claiming to have God.  As is Kant.


Lit up Covent Garden – a twelve minute ovation for the Mad Scene – and every other opera house, but was coolly received back here.  The New York Times said her voice was ‘flawless’.  Our Joan was a great Australian.


Although I read Bradley on Shakespeare at school and later, and still admire him, I am sceptical of the value of critics.  Not so with Tony Tanner.  He mixes close reading with slashing insight, measured respect, and cordial sense and courtesy.  A real pleasure to read someone up to the job.


Bedevilledby the Establishment and the boys, she wiped the floor with the lot of them.  Like Keating, she was prepared to say what she stood for.  (I learned a long time ago not to express these views at Oxbridge – the best result is defenestration.)


As compact a golf swing as I have seen.  Unassuming winner of British Opens during our salad days in the fifties.  The money then was not corrupting – we were shocked when the Davis Cup went professional.  And Melbourne has some of the best golf courses in the world.


An unpleasant Russian genius who created two of the title deeds of western civilisation.  Capable of shocking power.


One of the very few not corrupted by power.  A model education for his office.  Second only to Lincoln.  Dropped the bomb and fired MacArthur – and did not lose any sleep.


So far ahead of his time – shock treatment for suburbia.  (There’s one in the old Tait that prefigures Boyd and Nolan.)


So Italian but so universal.  A true lifelong companion.


A model of a Captain – and an Australian who made me proud of my colours.  The twin could play too.


The word ‘genius’ has been abused, but this guy had it.  Citizen Kane does little for me, but Falstaff is great and The Third Man is the most artistic movie ever made. You could stop the film almost anywhere and frame the still.  Magic.


Blistering insights from a man with some poison in his soul who became our leading intellectual champion.


A man of immense grace and charm – another tragedy for us – brought down by people who kept their hate going for generations. Ended one party rule and king hit the cringe.   Meeting Gough was up there with meeting Denning and Barassi.


A great painter who finally showed us our great land as it is.


The label ‘R M Williams’ holds an assured place in my life and that of my country.  And we export it to the world and are bringing its production back home.  De rigeur for chaps in the City, old boy.


Our mirror of the people next door, our version of Alan Bennett, and in a more permanent form than Barry Humphries.  His arrival coincided with our Renaissance in the 70’s.  The Coming of Stork and Don’s Party gave me two of the best nights at the theatre and the movies in my life.  And they have stayed with me.  The author got our zeitgeist.


A lightning-strike mind from a family given to suicide, he amazed his colleagues and had nothing to say for the rest of us.  He stands for the death of philosophy.  ‘Whereof one cannot speak, thereof one must be silent.’  ‘During the war, the trains carried a sign: ‘Is this journey really necessary?’’  


Extracts from Volume II of My Top Shelf


Maya Plisetskaya

Yale University Press, 2001.

It happened on April 30, 1937.  At dawn, a few hours before May 1, early in the morning.  Around five, the stairs creaked beneath the leaden weight of sudden steps.  They had come to arrest Father.  These predawn arrests have been described often in literature, shown in films and on stage.  But believe me, living through one is very frightening.  Strangers.  Roughness.  The search.  The whole house upside down.  My mother, unkempt, pregnant with a big belly, weeping and clutching.  My little brother screaming, rudely awakened.  My father, white as snow, dressing with trembling hands.  He was embarrassed.  The neighbours’ faces were remote.  And I – eleven years old, skinny, scared, not understanding what was going on, my childish head filled with arabesques and attitudes.

The father would be shot.  His crime?  Being a friend of a friend of Trotsky.Then the mother was taken way.  She was given eight years.  Her crime?  For not denouncing, her husband she was an ‘enemy of the people.’  She was sent by cattle car to the gulag in Kazakhstan.  There she lived in a chicken coup.  After eighteen months, her daughter was allowed to visit her mother.  In the meantime the eleven year old had had to deal with stooges.

Much later, I realised that the repulsive short-haired women (who stank so terribly that we had to open all the windows after their visits) who interrogated me so closely and suspiciously about mother and Mita [an aunt] were from the orphanage, where they were planning to send me, the hopeless orphan, daughter of an enemy of the people…..Just think how many deceits were perpetrated then in our miserable, god-forsaken, blood-covered Russia.

After three weeks, the daughter had to return to Moscow.  And do what?  Put on a concert for the NKVD, the people who had shot her father and taken away her mother.  This was in a nation that had bad form for using young ballerinas as ‘kept women.’

This was all part of the Terror, the Great Purge of Stalin.  The regime may be the cruellest the world has known.  The daughter would survive to be a dancer of a beauty that few have seen surpassed.  Truly, Providence works in ways that are hard to fathom.  And to make it harder for Maya later, she was of Lithuanian Jewish descent.

The author starts by saying: ‘I wrote this book myself.’  I believe her.  It is a remarkable testament to a remarkable woman.  She trained with the Bolshoi and soon became a star.  But her strength and intelligence made her suspect.  Three KGB men tracked her in a car – permanently.  They had their own nonsense.

We recommend that you not go.  But you decide on your own.  But I wouldn’t go.  In any case, we’ve already let them know that you’re not free.  But decide for yourself.

You see immediately that she was fiercely bright and had a wicked sense of humour.  Naturally, the wives in the Party could not stand her.

The Party wives were angry, envious, enraged.  Everything they did was bovine and rhinolike.  After every reception, I sensed the number of my enemies – male, and most important, female – increase.

If you have been to Soviet Russia you will understand her revulsion at the hotels, meals, and aircraft.  Plisetskaya was too feisty to be allowed to dance at Covent Garden.  She put on a special Swan Lake in Moscow in 1956 as a form of protest.  The theatre was overflowing.  She saw a KGB hood (Serov) in the audience.

I looked at the colourless, bedbug face of a eunuch, thinning pale hair neatly parted.  A flash – a horrible association.  He looked so much like Stalin’s Commissar of Death Yezhov….Is it the executioners’ profession or nature that makes them resemble one another?  I have never had a greater success in Swan Lake in my life…..From the very beginning…the theatre burst out in ecstatic welcoming applause….It was time to do the glissade, my legs were going to stiffen.  But I couldn’t hear the music for the thunder.  And I wanted to let the authorities have it.  Let Serov and his wifie burst their gall bladders.  Bastards!….Just what the authorities had feared.  A demonstration!

This is how one observer saw it.

We can feel the steely contempt and defiance taking hold of her dancing.  When the curtain came down on the first act, the crowd exploded.  KGB toughs muffled the audience’s applauding hands and dragged people out of the theatre kicking, screaming, and scratching. By the end of the evening the government thugs had retreated, unable (or unwilling) to contain the public enthusiasm.  Plisetskaya had won.

She found that she had a taste for style.  ‘I sensed intuitively that fashion was an art form.’  If you have been to GUM, you will know that you will not find fashion there.  But she teamed with Pierre Cardin who adored her.  ‘Pierre created ten costumes for Karenina.  Each more beautiful than the others.  Real masterpieces.  They should be on display in museums….The colour range of the costumes is divinely radiant.’  Pierre Cardin said that he travelled to Moscow more than thirty times just to see her dance.

She fell in love with the composer Rodion Schedrin.  At their first meeting, she asked Schedrin if he could transcribe the musical theme of Charlie Chaplin’s film Limelight just by listening to a record.  (That is the tune I request from bar pianists around the world.)  They were a strikingly good looking couple.  But until they were married, they could not share the same hotel room.  When they got to sleep together, they could hear the KGB start the car engine every now and then to try to get warm.  The marriage, when it came, was rock solid.

When Ingrid Bergman met her, Bergman had tears in her eyes after seeing her Swan Lake.  ‘You told about love without a single word.  You have divine arms.  I lost all sense of time….Would you like to play Anna Karenina?  Could you tell her drama without words?’  When the author first met Jacqueline Kennedy she got ‘You’re just like Anna Karenina.’

She hailed a cab in Paris.  It was a long ride in traffic.  She was sorting her money.  ‘And suddenly in pure Russian, with prerevolutionary pronunciation (I could almost hear the old orthography) ‘I won’t take your money Miss Plisetskaya.  This ride is in lieu of a bouquet.’  That was a fine gesture, but not as costly as that of an Australian chiropractor who flew at his own expense from Melbourne to the other end of the world to attend to one of her many injuries.

One critic wrote of her debut in the U S:

She burst like a flame on the American scene in 1959.  Instantly she became a darling to the public and a miracle to the critics. She was compared to Maria Callas, Theda Bara and Greta Garbo.

After one performance at the Met, she got a thirty minute standing ovation.  Nureyev saw her debut in Don Quixote and said ‘I sobbed from happiness.  You set the stage on fire.’  Sol Hurok said that she was the only ballerina after Pavlova to give him a ‘shock of electricity’ when she came on stage. 

Jack and Jacqueline Kennedy came on stage after she first performed before them.  She and Bobby became close.  ‘With me Robert Kennedy was romantic, elevated, noble, and completely pure.  No seduction, no passes.’  Bobby died the day after he was shot.  She was scheduled to do the pas de deux from Sleeping Beauty at the new Met.  She was distraught.  ‘My heart was breaking.  I had to do something.  Scream!….let my pain out somehow.’  The house announced she would dance The Dying Swan as a tribute to the memory of Bobby.

The curtain rose slowly.  The audience stood up.  Quietly.  But I could hear them rise from where I was on the stage.  They all got up.  Icy stillness.  The harp’s four introductory arpeggios.  The solo cello began singing the melody.  I lost myself in the dance.  The spotlight pulled my hands, arms, and neck out of the darkness.  People were frozen still.  No one moved.  Stifled sobs joined the music.  From all sides.  Like streams of tears.  The dance was over.  The spotlight held my final, fatal pose for a long time.  And then faded…..There was no applause.  Just a sorrowful silence.  The people stood there wordlessly.  The curtain covered the darkness of the stage ever so slowly.  ‘Silence, you are the best of what I have heard,’ Boris Pasternak said.  And the most horrible, I thought that evening.

She had met Nureyev with Margot Fonteyn in London. 

We had gone to each other’s performances more than a few times, and we participated in the same concerts in Japan and Australia.  I was always impressed, no matter what we were doing, by her impeccable manners, and the perfection of her breeding.  I had never met a better brought up person, and not only in our rather vulgar ballet world – in our entire life.  How I envied her ability to get on with people.

We can leave technique to the experts, but mention two things:

The Frenchman [a partner] had strong and smart hands.  I like that expression for the hands of my partners: smart hands.  You can’t dance with dumb hands.  They’re bound to drop you, hold you too long, or rush you….For ballet folk, beer is better than any medicine.  It relaxes the muscles and gives them rest.

The book finishes in 1993.  Russia was in chaos and Maya and her husband were living in Munich – where she would leave us.  The order and cleanliness and sense of purpose must have dazzled them.  Why had she not defected like Nureyev and others?  One of her reasons was a fear that the KGB would arrange an accident and break her legs.  Mother Russia has produced its share of giants of art – and has been uniformly cruel to most of them.

The Financial Times said in 2005 (her eightieth birthday):

She was, and still is, a star, ballet’s monstre sacré, the final statement about theatrical glamour, a flaring, flaming beacon in a world of dimly twinkling talents, a beauty in the world of prettiness.

If as a father you have endured taking daughters to ballet classes on the weekends at the other end of town, sitting in a car for hours writing legal opinions while footy crowds drift noisily by, and sitting through endless concerts for children, your ardour for this art form might cool.  It did for me, but I have been fortunate to see Plisetskaya, Fonteyn, and Baryshnikov in the flesh.  Two of my top ten nights at the theatre were ballets – Anna Karenin in Budapest in about 1998 and The Hunchback of Notre Dame in Paris in about 1993.  The Karenin was done to music from Tchaikovsky’s fifth and sixth centuries.  It was a gem.  A favourite DVD is the Plisetskaya version to the music of Schedrin recorded in 1975.  Nothing could be more Russian – or more universal and timeless.  The production is near perfect and it conveys the artistry of this great prima ballerina assoluta. If this book were not here, I would have included one on Callas.  The comparison is often made, and it is fair.  Each had a commanding mystique or magic on the stage that could change the way you think about the world.  That is why this book is here

Passing Bull 289 – Lawyers and moral advice

A reader of The Age said some people had invested in Crown in good faith.  That led to the obvious response that the only ‘faith’ investors had was that suckers would keep giving their money away and that such faith was not ‘good.’ 

In the AFR yesterday, there was a column on whether lawyers should give moral advice.  According to the paper, the Royal Commission said ‘the lawyer should have some obligation, perhaps best characterised as a moral obligation, to see that their client obeys the law.…To give moral advice is not to impose it…If the lawyers who were involved in Crown Melbourne’s misconduct had adopted this attitude, much of what has happened, and most of the dishonourable conduct would not have occurred.’

The journalist sensibly queried that last leap of faith.  Some might think that the most natural consequence of the lawyers’ adopting the attitude referred to would have been that they would have been fired – for good reason.  They are not priests or policemen.  The days are long gone when a senior trusted adviser of long standing might say to the Chairman ‘Do you really want to sail this close to the wind – it could get ugly – and so might the press and the shareholders.’ 

One of the problems with saying that lawyers should engage in discussing moral issues with clients is that it tends to assume that there is a corpus of established doctrine on how people engaged in deriving profit from others in a capitalist world might best apply the Sermon on the Mount.  Or the sharia law on making money out of money.  Nothing could be further from the truth.

A lot people think that the whole business of Crown is immoral.  Some law firms will not act for such people – or, for example, tobacco companies.  (I have been a party to such discussions.)  But if lawyers choose to act, then they might spare their client their views on what is moral, honourable or proper.  They would be told to mind their own business – and then they may be asked whether they are personally acquainted with lawyers lately on their way to jail for theft.

One question commercial lawyers are often asked is – ‘Has the other party to this contract done enough to allow me to walk away.’  They do not look for an answer: ‘Yes – but you should not welsh on your word.’

There is one exception – which was not referred to in the paper – that may arise if under the law the proposed conduct may put in jeopardy a licence or directorship.  Those issues can be tricky, but at least they start and finish with the law.

Charles Dickens on the Mob in England’s Story

The thing to remember about the English story is that it is English.  We are not talking about the story of France, Egypt, China or Mexico.  It is like the story of a cricket club – except that the people having given power to a king, the story is how that power trickles back down to the people as in a pyramid of champagne glasses. 

The barons took back power off the king – and by some chance or miracle they did so expressly on behalf of all free men.  The landed gentry, especially the Puritan lawyers, fixed up the Stuarts, and left Parliament in power by giving it control of the money and the army.  Then it was the turn of business and the middle class until last century when voting became universal – and the cycle looked to be complete.

That picture of the devolution of power overlooks the fact that most people in England only came in touch with the power of government at the local level.  Since very few ever got to London, their lives were ruled by the local gentry, the squires or lords of the manor from feudal times who presided as justices of the peace – who dispensed their version royal justice. 

Here is the picture of one by Charles Dickens in the novel Barnaby Rudge.

….Now, this gentleman had various endearing appellations among his intimate friends.  By some he was called ‘a country gentleman of the true school,’ by some ‘a fine old country gentleman,’ by some ‘a sporting gentleman,’ by some ‘a thorough-bred Englishman,’ by some ‘a genuine John Bull;’ but they all agreed in one respect, and that was, that it was a pity there were not more like him, and that because there were not, the country was going to rack and ruin every day.  He was in the commission of the peace, and could write his name almost legibly; but his greatest qualifications were, that he was more severe with poachers, was a better shot, a harder rider, had better horses, kept better dogs, could eat more solid food, drink more strong wine, go to bed every night more drunk and get up every morning more sober, than any man in the county.  In knowledge of horseflesh he was almost equal to a farrier, in stable learning he surpassed his own head groom, and in gluttony not a pig on his estate was a match for him.  He had no seat in Parliament himself, but he was extremely patriotic, and usually drove his voters up to the poll with his own hands.  He was warmly attached to church and state, and never appointed to the living in his gift any but a three-bottle man and a first-rate fox-hunter.  He mistrusted the honesty of all poor people who could read and write, and had a secret jealousy of his own wife (a young lady whom he had married for what his friends called ‘the good old English reason,’ that her father’s property adjoined his own) for possessing those accomplishments in a greater degree than himself…..

Well, we can come back to the ruling class, but what about those they ruled – when their blood was up and they were rioting against their government? 

The English saw this in 1780 in what were known as the Gordon Riots.  The riots were led by Lord Gordon ostensibly against laws in favour of Catholics, but they were taken over by maddened deprived people who were out of control for nights and who burned down parts of London, including the house of Lord Mansfield.

….Through this vast throng, sprinkled doubtless here and there with honest zealots, but composed for the most part of the very scum and refuse of London, whose growth was fostered by bad criminal laws, bad prison regulations, and the worst conceivable police, such of the members of both Houses of Parliament as had not taken the precaution to be already at their posts, were compelled to fight and force their way….  The air was filled with execrations, hoots, and howlings.  The mob raged and roared, like a mad monster as it was, unceasingly, and each new outrage served to swell its fury.

You might then say that honours were about even.  We saw much of it recently on the television in the insurrection at the Capitol at Washington. 

But it is not hard to picture those referred to by Dickens as ‘honest zealots’ – like those who attended MAGA rallies in the U S.  They are not among life’s winners, but it is very bad taste to say that they are losers.  They nurse the injustice done to them.  They crave revenge.  They want identity and recognised status.  They look for a leader who can banish the anxiety that comes from uncertainty.  They are not conditioned to handle doubt.  But, curiously, they revel in conspiracy theories – perhaps because at heart they are themselves conspirators.  They want to belong and to surf the power of the people.  This time it’s their turn.  They are in that sense the elect, the chosen ones, although the ‘elites’ are their first target.  Implacable history is on their side.  Who can withstand the power of the people?  They will take part in any action that suits their need and the fracture of power lets those below rise up.  In any revolution, the dregs come quickly to the surface.  Just look at that grotesque Jean-Paul Marat – preferably in his bath.

Dickens of course saw all this, and like his friend Carlyle, he was revolted by it.  The hero of Barnaby Rudge was an idiot.  Lord Gordon was a political fool.  (Erskine got him off – he was found to have had no ‘treasonable intent.’)  The comparison with the Capitol insurrection gets closer.  Dickens originally planned to have the riot led by three escaped lunatics from Bedlam.

The mob fed on rumour well before the Internet.

But when vague rumours got abroad, that in this Protestant association a secret power was mustering against the government for undefined and mighty purposes, when the air was filled with whispers of a confederacy among the Popish powers to degrade and enslave England, establish an inquisition in London, and turn the pens of Smithfield market into stakes and cauldrons, when terrors and alarms which no man understood were perpetually broached, both in and out of Parliament, by one enthusiast who did not understand himself, and bygone bugbears which had lain quietly in their graves for centuries, were raised again to haunt the ignorant and credulous, when all this was done, as it were, in the dark …. ‘Let’s have revenges and injuries …’ Without the slightest preparation, saving that they carried clubs and wore the blue cockade, they sallied out into the streets, and, with no more settled design than that of doing as much mischief as they could, paraded them at random …… There was not the least disguise or concealment ­indeed, on this night, very little excitement or hurry …   Fifty resolute men might have turned them at any moment, a single company of soldiers could have scattered them like dust, but no man interposed, no authority restrained them, and, except by the terrified persons who fled from their approach, they were as little heeded as if they were pursuing their lawful occupations with the utmost sobriety and good conduct …. Indeed, the sense of having gone too far to be forgiven, held the timid together no less than the bold … some had been seen by their employers active in the tumult, others knew they must be suspected and that they would be discharged if they returned; others had been desperate from the beginning, and comforted themselves with the homely proverb, that, being hanged at all, they might as well be hanged for a sheep as a lamb. The least sanguine among them reasoned with himself that, at the worst, they were too many to be all punished, and that he had as good a chance of escape as any other man … The great mass never reasoned or thought at all, but were stimulated by their own headlong passions, by poverty, by ignorance, by the love of mischief, and the hope of plunder.

The next time we see the mob in a feral condition, they are feverishly compacted to watch the hangings of the rioters.

Well, Dickens saw the insurrection at the Capitol as clearly as those who saw the mob shout for Barabbas.  There is nothing new under the sun.

But let us go back to the part played not just by the squire but by those higher up, the aristocracy.  The caricature of Dickens is very entertaining.  Both Alan Bennett and Barry Humphries would have applauded.  But the English aristocracy survived while that of France did not.  All through the long history of England, the aristocracy was integral not just to governing the realm, but to the devolution of power within government. 

That was not so in France.  By 1789, the French nobility was useless and intolerably precious and not conditioned to negotiate any devolution of power.  Part of the reason was the prohibition of going into business (dérogation).  The English nobility lapped up making money in the City and later marrying rich American heiresses to keep the bloodlines and credit accounts fluid.  Carlyle said of the French nobility that ‘close viewed, their industry and function is that of dressing gracefully and eating sumptuously.’  Their flocks were not tended, ‘only regularly shorn.’

The English aristocracy also provided an escape valve at times when the devolution of power was stalled and a revolution was at hand – as with the Reform Bill in 1832 and the People’s Budget after 1909 – when revolution was avoided when the Crown threatened to create enough peers to see the popular will respected.

Where, then, did the sympathies of Dickens lie?  We don’t know – but he did say: ‘My faith in the people governing is on the whole infinitesimal; my faith in the people governed is, on the whole, illimitable.’

The last revolution the English had ended in 1689, when Dutch troops patrolled the streets of London.  The Gordon Riots in 1780 were the closest the English would get to further armed revolt.  There is, then, a lot to be said for that suggestion of Trevelyan that ‘if the French nobility had been capable of playing cricket with their peasants, their chateaux would never have been burnt.’  Cricket had to come into it somehow.  The whole shebang has been very English – except that when the barons turned up at Runnymede under arms, they were not carrying cricket bats.