Reflections on the law and other things by a lawyer in autumn
In the late 70’s and the first half of the 80’s, Neil McPhee and I fought a lot of cases for the VFL, as it then was, in seeking to uphold their rules, and for the press responding to prosecutions for contempt of court. We lost all of them – at least all those that were fought through to judgment. The law is against people’s freedom to trade for the supply of their labour being restrained by rules of those running the relevant market. It was obvious that the League’s zoning rules were in restraint of trade. The onus was on us to show that the restraint was ‘reasonable’. We never managed that – and so Mr Packer and others were able, for better or worse, to go into the market – and the rewards for the players went sky high. Those running cricket had been obdurate and mean, and no one should have been surprised by the explosion. The contempt cases involved another difficulty that I will come back to.
Over about the same period, Jim Kennan and I treated ourselves to a long lunch at the Society at the top end of Bourke Street about three or four times a year. Crayfish legs for $2.50. We would settle in until about 3pm, and then go to a bookshop or record shop, and end up for coffee and liqueur at the Windsor. The clientele looked to be the Catholic hierarchy, racing identities, and up-market call girls. I loved all of it. It would be fair to say that I probably drank more, although I don’t think we ever got disorderly. We walked into the Windsor one afternoon and Liv Ullman was at reception. I had just bought a volume of poems – I think Browning – and I said I would get Ms Ullman’s autograph. Jim was scandalised and hid behind an aspidistra. (That is literally true.) The actress was both charming and obliging and signed the book of poems. Jim was relieved and we went back to the Hill of Content for another go at a bookshop. Liv Ullman’s autobiography was on the shelves. Jim bought a copy and wrote in it. When I got home I saw what he had written. ‘To Christine. From a friend of a friend of the author. J H K.’ That was all style. Jim was always good for me, and I still miss him. Just as I still miss another Jim from the law, Jim Merralls. Each for me in his own and different way showed how we could try to do something good in our profession. And each knew just how well off we were to have that opportunity.
‘Majesty’ is such a fine word – majestic, even. Churchill concluded a speech to a spellbound U S Congress this way:
It is not given for us to peer into the mysteries of the future. Still, I avow my hope and faith, sure and inviolate, that in the days to come the British and American peoples will for their own safety and for the good of all walk together in majesty, in justice, and in peace.
Possibly only Churchill could have said that, and his American audience erupted. They had heard of his oratory – and they had one of their own at that time – and now they had shared it. He probably had in mind ‘the dignity or greatness of a sovereign’. We are talking of the kind of dignity in a sovereign that we find in the offences of lèse majestie or laesae majestatis – ‘insulting the sovereign’ – that you can still find in regimes in Thailand or Turkey and which was probably the basis of the judgment adverse to Jesus of Nazareth: the suggestion came – we know not from where – that the prisoner had claimed to be the King of the Jews – and that could be found to have queried the authority and power of Rome over that part of its empire that included what we now call Israel. Pilate did not refer to the response of the prisoner that ‘My kingdom is not of this world’, and we might doubt whether that proposition would have been a defence to ‘wounding majesty’ which is the meaning of the French and Latin phrase above. But that sense of majesty is precisely what I feel at that part of the second movement of the Eroica that I referred to before. It makes sense, therefore, that the other comparison that occurs to me is Churchill’s reference to ‘those broad sunlit uplands.’
You might I suppose want to talk of the majesty of the law, but I incline to the view that such an attitude might best be left to the history of the law or visits to its birthplace, England. I always dropped in on the Royal Courts of Justice on the Strand when I was in town. (They are not far from Australia House that we used to repair to in the distant past on Mondays to check the footy scores.) I don’t know whether it was just luck, but I always seemed to find myself listening to a barrister who looked very much at home and was as smooth as a baby’s bum. A substantial part of the Victorian Bar turned up to tune into a fabled libel action between Jeffrey Archer and Rupert Murdoch. Bob Alexander for the plaintiff was outright svelt. But we thought that the cross-examination of Archer – who looked awful – was anaemic. We thought that McPhee or Sher would have wiped the floor with him. And the judge was so loaded against Murdoch that it was downright embarrassing. So, we did not need to feed any chip on our shoulders. As it happens, I think that the verdict was later set aside when the duplicity of Archer became known.
Which reminds me that my first jury trial was a libel action. This was about 1974. Gavan Griffith had advised the owner of a caravan park to sue the ANZ bank for libel for bouncing a cheque. If a bank tells someone that its customer has insufficient funds to meet his obligations, that communication causes others to think less of the bank’s customer. That is a libel – or, if you prefer, defamation. The action was brought by the company that ran the carpark – it was run by a retired police officer, a doughty type who took offence at his bank’s rudeness. The bank pleaded all the defences to libel – except qualified privilege – which I thought would have been unanswerable. I spent the best part of a week learning about the law of libel. I paid real money for the main text, Gatley. I also had to find out about appearing before a jury, and to overcome nerves at stepping into the unknown. One thing did trouble me – the company was in substance defunct. How could it maintain the action? What could the damage be? Well, I was briefed to appear for the company by a reputable firm, and the bank was represented by my old firm and reputable counsel, who said nothing about the standing of my client. So we went on. I had cases on the law of libel coming out of my ears, so I was more than a little surprised to look up and see Judge ‘Slim’ Somervaille charging the County Court jury from the precedents part of a book about process in the County Court that was about half a century out of date. The jury did the right thing and came back with a verdict. For us. I think the damages were assessed at $500. That meant we got off the bottom row of costs. I think my fee for the two days hearing, conferences, and about a week’s preparation would have come to less than $200. It was all very gratifying. I started to ease into libel generally. My old firm acted for the ABC, and after a while I was specially retained by the national broadcaster, for whom I still have a soft spot. I got to know Bernie Teague for Murdoch and Tony Smith for The Age, so that I was involved in most libel actions in Victoria on one side or the other. Some of the press were very heavy handed and sought to beat up plaintiffs, especially politicians and celebrities, by arguing about very technical points of procedure – that I was learning all about. I tried to discourage most people from suing – unless I thought the case was clear. Then I could get a writ issued, and seek a speedy trial, and settle for, say, $20,000 and an apology. I found all this very rewarding. It is good to have one area in which you specialise, and are known for such, and in my view it is very unhealthy for lawyers only to act on only one side. That can lead to a very dangerous closing of the mind.
In addition to libel actions, I had to fight prosecutions for contempt. They are different. Your proprietor can write the cheque for damages for libel, but it cannot do your time for contempt. The Crown had only to show that what our clients had published had a tendency to interfere with the course of justice. That issue would be tried by a judge alone, and a lot of judges were worried that the press could abort criminal trials if they were not careful. The crime is prescribed by the common law, and there is no limit on the penalty. It is no understatement to say that we were kicking into the wind – sometimes a bloody gale. The upshot was that a well-known broadcaster, Derryn Hinch, was sentenced to six weeks in prison for telling the truth on a matter of public interest – that a priest awaiting trial had prior convictions. As the law then stood, there seemed to be no defence; that is still, I think the law, but it is very hard to imagine that the result would be the same today. Still, it gave me something to dine out on at legal conferences in all parts of the world. A large crowd turned up each day to show their hostility to Hinch. I could feel it drilling into my back at the bar table. I was glad I was with John Winneke. The judge, Peter Murphy, was having trouble concealing his appetite to send Hinch to the slammer. Then one day a woman came into court apparently to watch John Winneke in action. She had just briefed him to act for her. Her arrival caused quite a frisson. This lady had her own special kind of presence – it was Lindy Chamberlain.