As I remarked to colleagues, I was told I was introduced to Dixon as a child.  I recall both my meetings with Lord Denning.  But Tom Hughes was the most towering presence I have known.  And he was so graceful to me as his junior counsel or instructing solicitor.

His kind is no more.

It is all very sad.

I set out below two extracts from my memoire, Confessions of a Barrister.

*

In the ‘90’s, some of us would get to look back on some aspects of what were always called the ‘excesses’ of the ‘80’s with something like fondness.  Corporate litigation, especially takeovers’ litigation, since then in substance abolished, was very good for Melbourne’s private schools.  That litigation saw a lot of fees to lawyers pay for their kids’ education, and the boards or committees of St Cath’s and Melbourne Grammar should have been duly grateful – even if some of their members or their friends got sued as part of the melee.  The biggest takeover spawned the biggest takeover litigation and it became the biggest show in town. 

The battle for BHP, one of the biggest if not the biggest companies in Australia, led to litigation that was more financially consequential and emotionally fraught than any I have been in.  Hinch attracted huge publicity, but it was like a quiet stroll along a country lane compared to the battle for BHP.  It was as if the whole Melbourne Establishment saw itself as being on trial, and it responded like a tiger snake that a bush walker had accidentally stumbled on.

Robert Holmes a Court was intent on taking over BHP.  He was from W A, and not an establishment figure.  He was not trusted here – he was loathed.  Neither fact affected him.  He had the sharpest mind and coldest heart of any businessmen that I have acted for.  BHP was attacking him in court, and with some success.  The judge was Ken Marks, and he did not appear to have much time for the pursuer.  Arthur Robinson instructed Steve Charles and Ray Finkelstein.  Blakes were acting for Holmes a Court, through my friend Geoff Hone, who I think had instructed Alan Goldberg.  Holmes a Court got sick of being on the defensive.  He wanted to go on to the attack, and he instructed different lawyers to do just that.

Shortly before Easter 1986, Robert Heathcote, a mate at Arnold Bloch Leibler, and probably Melbourne’s leading commercial litigation solicitor, rang me.  He asked me if I could drop everything and devote Easter to preparing to attack BHP.  I agreed, and went down to Discurio to buy some Thelonious Monk and Charlie Mingus, so that the Easter would not go entirely unmarked.  I think that the rest of the team was not yet settled, but the great Tom Hughes of Sydney was a certain starter. 

Tom was from Sydney and was unquestionably Australia’s leading silk.  (He had been Attorney – General for the Commonwealth in the ‘60’s.)  I had not appeared with or against Tom, but I was in awe of his reputation.  In that teachers’ libel action that I mentioned, Bill Gillard had just fought a case against Tom, and Bill could not stop talking about it!  He could not get over the power of Tom’s gaze.  (I think that this was about the time Tom had appeared for a footballer who was affronted that the press had carried a photo of him which highlighted his penis and made him look stupid.  The journalist told Tom he or she had not thought much about that part of the image, which led Tom to ask: ‘What did you think it might be – a duck?’)  The days after Easter promised to choc-full of action.

I put in over seventy hours over Easter, and Diana [secretary] and I came up with detailed advice and a draft statement of claim against the BHP directors.  I will not go into detail, but if a shareholder complains that the directors have failed the company, the proper plaintiff should be the company, and you have to steer around this.  As I recall, our case was that the directors were more worried about their jobs than the value of the shares.  The first writ issued.  It would take a big book to describe a short war, but I will mention aspects that reveal something of the lawyers.

We were with the client at the other end of Collins Street – Tom Hughes, Ron Merkel, Robert Heathcote and I – when a young lawyer with his shining schoolboy face chose to call to serve a couple of writs.  They were flowing around like confetti.  Protocol dictated that you ask the solicitors whether they will accept service.  I am not sure why that did not happen here, but when this man’s arrival was announced, Holmes a Court said quietly to his staff: ‘Lock him up.’  He took the view that this man was trespassing and that he could effect a citizen’s arrest.  Well, after some strained time, Tom advised Robert to get Robert Heathcote to accept service.  Tom said this kind of thing might not look too good.  Copies were made of the writ and we leafed through them under this glorious show of aboriginal art. 

Holmes a Court went first.  ‘You go to the movies.  There is a good director.  Anthony Hopkins and Helen Mirren.  Then you start the movie and it’s a flop.  Here you have the Queen, the Chief Justice.  Even God gets a go.  Then you look inside and it is a flop.’  He really was that cool.  I realised later how he nearly drove Geoff Hone mad.  You had no way of predicting him, and precious little chance of restraining him.

Ron Merkel and I were sent to ask Ken Marks to step aside because of adverse remarks that he had made about our man.  Under the modern practice, judges in control of lists have tended to get down into the arena much more often than would have been considered proper in the time of Tom Smith.  Ken Marks was a very voluble man on the bench.  You were not left wondering for long what might be in his mind.  I think he may have called our bloke ‘a paper shuffler’. 

Anyway, Merkel made the application, and the reception was as frosty as what we were getting at the bar table.  We were feeling like barbarians at the gates of Rome.  Then the judge said, with some heat on this occasion: ‘How do you know what happened, Mr Merkel?  You were not even there.’  Muffled cheers from the home team.  To his eternal credit, Merkel looked Ken straight in the eye and said: ‘We are in as good a position to know what went on as the Full Court will be.’

We were making an application to a court of law based on evidence, and the rules of court.  In the course of his reply, Steve Charles referred to The Age that morning.  It was not in evidence.  Before we could get our objection out, the judge said: ‘I was wondering when someone was going to raise that.’  Merkel might be the most unfazeable advocate I have seen, but he said to me that morning that there was something very bad about the atmosphere in that court.  Once again, the system was showing faults under stress.  That kind of exchange would have been unthinkable in front of someone like Tom Smith.  We have to be careful that a loss of formality does not become something worse.

Holmes a Court was asked by the press what he thought of his opposite number, the CEO of BHP, one of our defendants.  He said that Loton was ‘basically honest.’  What happens when you step outside the ‘basic’ bit?  Tom Hughes took Holmes a Court to dinner at the Melbourne Club.  The Yiddish word is chutzpah.

Holmes a Court told us to sue BHP for misleading conduct.  It was not without its problems, but it was worth a go.  We applied for an injunction and it came on before Reggie Smithers, a judge of whom I was very fond.  (Peter Rashleigh and I had won a case before him – for a landlord!)  Tom wrote out in longhand a note of his argument.  He said to me that ‘I think I will tell his Honour that the big Australian had become a victim of its own stubborn pride.’  He said he would get me to read the affidavits, but I said that the judge would want to hear from him.  (As would the press!) 

So, there I was at last, watching the great man in action.  He is beyond question the most imposing advocate I have ever seen.  It was a real privilege to be there.  Sadly, over lunchtime, Cliff [Pannam] persuaded them to stop the flow of blood and give us an undertaking.  I think that BHP won at the trial, but this was little more than a feint by the cavalry.

I mentioned that Tom Hughes made a long hand note of his argument.  Daryl Dawson had taught me to do the same.  It is a way of testing your own intellectual honesty – you look to see the breaks or weak points in the reasoning.  You cannot just hide behind a cloud.  Michael Black had the same view.  Peter Buchanan insisted on writing out his pleadings.  Computers have a lot to answer for.  I pass this on as a tip, and a good one.

Finally, I mention an incident that happened, I think, after I had gone back to Blakes.  There were lawyers milling around someone’s chambers including Alan Goldberg, Frank Callaway, and sometimes Geoff Nettle (still a junior).  Robert Heathcote came in in some slight agitation.  One of our (Holmes a Court’s) brokers had received in error the details of what may have been referred to as John Elliott’s battle plan for his defence of BHP.  It was something that Holmes a Court would dearly like to see, but could he make use of confidential material sent by mistake? 

We wondered and pondered.  Frank Callaway delivered a lecture on Lord Cairns’ Act.  It was brilliant and irrelevant.  Then Tom came in – Senior Counsel.  ‘Simple.  Send it straight back.  Or man’s credit would not survive.’  ‘Thanks, Tom.  Will you tell Robert?’  ‘No one need tell Robert anything.  We cannot advise the broker.  Send him off to a competent silk.  If his advice cuts across mine, ask him to get in touch.’  There you have the authority and wisdom of experience.  It was an immense thrill to have worked with Tom Hughes.

The matter settled.  I, and I suspect Geoff Hone thought that the deal was illegal, but the parties were exhausted, and a blind eye may have been turned on those lying back and thinking of Australia.  Neil Young spent days documenting the deal.  The consequences of his intervention would come back to haunt John Elliott and me, but by then I had moved on.

*

Although this memoir is about the law, I have so far avoided citing authority.  Perhaps I may be forgiven one citation so near to the end.  It is from a priceless little monograph by Professor Harry Frankfurt of Princeton University On Bullshit.  The professor said: ‘Bullshit is unavoidable wherever circumstances require someone to talk without knowing what he is talking about.’   Since I have referred to politicians, I may add that Professor Frankfurt cites a remark that is the credo of politicians: ‘Never tell a lie when you can bullshit your way through.’  And since it may be objected that I have taken objection to things done in all sincerity, I may say that Professor Frankfurt also says at the very end of this little book, ‘Our natures are, indeed, elusively insubstantial – notoriously less stable and less inherent than the natures of other things.  And insofar as this is the case, sincerity itself is bullshit.’

But enough of my grouching.  Lists are at best inconclusive pub games, but here goes.  My worst mistake?  Entering the court of the Rocket [Crockett] arse-first.  My most corroding moment?  Being pulled up by Ginger [Southwell] and my client’s being denied justice.  My most gratifying moment?  Repelling the dark raider at the gates of the co-op [Pivot].  My proudest moment?  Being invited to a living wake by a dying man whom I had dealt with adversely [UFU].   Toughest fighter?  Alan Cornell (with apologies to Jack Hedigan).  Luckiest lawyer?  Lucky Jim [Saunders, English law clerk at Blakes] (he being promoted to our professional rank for this purpose).  Best lawyer?  Allen Stewart and Brian Shaw.  (This is the only joint award – if you think that politics might be involved, you are dead right.  I have not straddled this profession for forty years without learning some self-defence.)  Best judge?  Tom Smith.  Best equity lawyer?  Jim Merralls.  Best commercial counsel?  Alan Archibald or Geoff Nettle.  Best advocate before a jury?  Jeff Sher.  Most imposing lawyer?  Tom Hughes.  Lawyer I would go to if my life or my house were on the line?  Neil McPhee. Best judgment? Brown v School Board of Education (the school bus case in the U S).

Writing on X Gaetz said: “I had excellent meetings with senators yesterday. I appreciate their thoughtful feedback — and the incredible support of so many. While the momentum was strong, it is clear that my confirmation was unfairly becoming a distraction to the critical work of the Trump/Vance transition.

‘There is no time to waste on a needlessly protracted Washington scuffle, thus I’ll be withdrawing my name from consideration to serve as attorney-general. Trump’s DOJ must be in place and ready on day one. I remain fully committed to see that Donald J. Trump is the most successful president in history. I will forever be honoured that president Trump nominated me to lead the Department of Justice and I’m certain he will save America.’

What follows is a submission to the Banking Ombudsman.  If a bank, could be diagnosed as insane, Bendigo would win the prize.

Bendigo Bank and Gibson

Submission of former customer

I refer to and adopt my previous submissions.  I recount them here in response to a suggestion made in the conciliation conference.

The dispute turns on an entry in the bank’s accounts on 22 December 2023 .  It shows  a transaction on Mastercard for nearly $5000 to an outfit called World Remit.   I had never dealt with that outfit -if it exists. 

After about five months delay, the bank told me it would require me to pay that amount.  I later learned that the bank relied on an industry code that I had never heard of, but which the bank says was part of my contract.

‘Bendigo Bank does not have a legal right to take action on these dispute claims.  We are bound by Mastercard Scheme regulations as Mastercard is the provisioner of the cards.  As detailed in your decline letter, we do not have recovery rights via the Scheme process due to the nature of how the transactions were processed.’

Later

‘The bank did not debit your Mastercard account. Your credit card ending in x6178 was a Bendigo Bank Mastercard.  Your card details and one-time passcode were utilised to make a payment to Worldremit. The transaction appears to be the result of your interaction with a company called IT support. Bendigo Bank have no recovery rights for the transaction and therefore we cannot reimburse you for this value.  Bendigo Bank cannot recover the funds as the transaction was performed via Mastercard Identity Check, a one-time password (OTP) was sent via SMS to your mobile number that ends with #583, the OTP was entered into the payment process to authorise the transaction. If a transaction is performed via this method Bendigo Bank is unable to raise a chargeback claim via Mastercard.’

Later:

‘That is correct the Bank has no recovery rights for this transaction as we are bound by Mastercard schemes.  I cannot assist you any further as previously stated so please escalate to AFCA if you wish to take this further’.

The bank offers to go half and half.  The dispute is therefore around $2500.  That is a symptom of madness in at least one party.

Nearly twelve months on, I still do not understand what is the case for the bank.

But what I do know now is that the bank refuses to cover me because its New York overlord refuses to cover the bank. 

Banks are not allowed to behave that way. 

The bank says that a deal they have struck with Mastercard, which the bank never told me of, prevents the bank from acting in my interests as a customer of the bank.

That is plainly unlawful, and that should be the end of this petty dispute.

What is the question?

The bank says the question is whether I can recover my loss from it.  That is wrong.  I have not sustained any loss.  There is merely a disputed entry in the bank’s books of account.  The bank paid out the crooks.  The question is whether it can recover its loss from me. 

I have made it clear that if it wants to do that, it will have to do so by an order of a court.  The bank simply refuses to say what it will allege for that purpose.  Just as it refuses to say whether it has taken legal advice.  The clear inference is that it has not.  This is at best insulting.  It is also very worrying.  Everything about this bank suggests it believes its word is law.

The bank is on the wrong tram

From the beginning, the bank has proceeded on the footing that the only relevant law is contained in the ASIC code (the ePayments Code).  For reasons I have given, I dispute that I am bound by it.  (I had never heard of it before.)  You will see immediately that this reliance comes at least in part from the fact the bank is asking the wrong question. 

But it is deeply troubling because it creates at least the impression that the bank operates outside the law.  (Someone who does that is called an ‘outlaw’.)  Part of that law, labelled ‘fiduciary’, is that the bank must show to me loyalty and good faith , and avoid conduct where its interests conflict with its obligations to me.  The bank has consistently failed to act accordingly.

A term of the contract?

Courts have long been wary of purported self-executing ordinances, especially where the party seeking to rely on one is a massive conglomerate that has infinitely more bargaining power.  Until the bank said it had resolved our ‘dispute’ – which I was unaware of – I had not heard of the ePayments Code. 

Neither would most Australians.  Even fewer would have read them and even fewer again would have understood them.  And hardly any person in the land would in any real way have agreed to be bound by them.  For a court to hold that as a matter of law, I had agreed to be bound by the terms of the Code would, I suggest, involve reverting to the role of ‘fiction’ in the ancient meaning of that term. 

The relevant law is stated in Cheshire and Fifoot, Law of Contract (12^th Aus. Ed.) par 3.21 and Carter and Harland, Contract Law in Aus. (4^th Ed) 616-617.  For present purposes, it is enough to refer to Olley v Marlborough Court [1949] 1 KB 532 and Causer v Brown [1952] VLR 1.  (The second text cites the English case as authority for the proposition that where a guest signs in at reception at a hotel, a notice in the room did not state a term of the contract because it was not brought to the guest’s attention before the contract was formed.)

The Code Napoléon provides (in Art.1134) as follows:

Contracts legally made have the force of law between those who have made them.  They cannot be revoked but by their mutual consent, or for the causes which the law authorises.  They must be well and faithfully fulfilled.

The common law is to the same effect.  But finding a legally binding contract requires a finding of fact – that in fact, the parties have agreed.  Fiction is not enough.  And that finding of fact should not be made lightly if as a result people are found to have put their house on the line. 

I may here say that so far, the bank has not produced any evidence of a communication from it to me that has the effect of binding me to the terms of a document I had never heard of.

Now, this point can be argued.  But the bank just refuses to deal with it.  Yet it is assumed to have been determined in its favour in everything it says – ad nauseam.  The emperor has not noticed it may not be wearing any clothes.

And this issue – whether the Code formed part of my contract with the bank – is a very different to the issue of the failure of the bank to inform me, as its customer, of the Mastercard agreement, and the effect of that agreement on the bank’s capacity properly to act for me as its customer.

Estoppel

I was invited to restate my position.  I did so.  Because it is fundamental, I will repeat it.  Estoppel by representation operates to prevent a party from departing from a representation of existing fact if the other party has acted on reliance upon it, and it would be unfair to that party to allow the other to resile from it.  (If authority is needed, I may refer to Cheshire and Fifoot, above, par 2.1 ff.)  You cannot have your cake and eat it.

It is common ground that when the criminals got to me, the bank’s website indicated that I had incurred a liability to the bank in respect of a transaction involving ‘World Remit’.  Acting on the faith of that representation, I conducted myself in the manner I did.  The bank now wishes to contend that no liability arose until I acted as I did in reliance on the bank’s representation.  Among other things, that would not be fair and the law would not allow it.  That result accords with common sense and accepted notions of fairness.  And it is fatal to the bank.

Misleading conduct and breach of duty

Another way to put that is to say that in publishing the suggestion that I had incurred a liability to the bank in respect of a transaction involving ‘World Remit, which the present contention of the bank must now refute, the bank acted unlawfully by engaging in misleading and deceptive conduct, and was negligent, and in breach of its duty properly to account to me. 

The primary obligation of a bank is to account to its customer in good faith.  In the well-known case of Lord Chedworth v Edwards (1802) 32 ER 268, 269, Lord Eldon said that ‘it is one of the first duties of an agent certainly to keep a clear account and to communicate the contents of it.’  The bank is not doing so here – or in the instance where it kept collecting insurance premiums for years on a property of mine that had been sold and for which the bank had held the Certificate of Title.  (It unilaterally offered to repay a fraction of what was owed.)  Here the bank must set out each phase of its dealings with the entity named in its accounts.  It refuses to do so.  It then gives various statements of its position.  It has failed ‘to keep a clear account and to communicate the contents of it.’

Once again, I suggest that if the bank refuses to deal with these allegations, all of which have been squarely raised before, the bank should be taken to have admitted them.  The bank may be unable or unwilling to submit to the law – presumably, without claiming to be above it – but that cannot be the case with the Authority.

I hear the mantra that the Authority seeks a result that is ‘fair’.  It must do so according to law, bearing in mind the sage observation that he who sits under a palm tree knows not where the nut may fall.

Breach of fiduciary duty

There is now a substantial argument about breach of fiduciary duty – apart from that referred to above on the nondisclosure of the contract between the bank and Mastercard.

The bank says it records material for one purpose and then uses it for another – in its interests and against the party to whom it owes obligations of loyalty, good faith, confidentiality, and secrecy. 

The bank took five months to respond to me.  Then it said it was against me when it had not warned me that it was labouring away for months for that purpose.  Then it said it could not accommodate me because it had obligations to a third party multinational that precluded it from doing so.  Can you imagine a clearer case of breach of duty by a fiduciary by the entry into obligations that conflict with its obligations to the customer?

Then it handed over to the Authority a recording of what I have said to it, although I had received the usual warning about ‘quality and training purposes’, and I was not asked if I would waive my right to secrecy.  Instead, the bank has ignored my request that it hand over every document it holds that would be discoverable.  The bank has ignored that, and the Authority is silent.

The bank now has to face the allegation that it cannot be trusted to deal with its customers in good faith.

An unrepresented litigant

We are in the ludicrous position where the customer is legally represented but the bank is not.  That is rude to me and my representative.  To put it at its lowest, it is not helpful for the Authority.

Unconscionability

On all those grounds, the bank has acted unconscionably within the terms of the relevant law and its position is legally untenable. 

As we have seen, this dispute is about less than $5000.  The bank has offered to split the difference.  No sane person goes to law over such a sum.  The studied obduracy of the bank shows it has no understanding of the role of a bank, and a sadly wrong notion of untouchability.

Retribution

Finally, reference was made to the possibility of my suffering a credit downgrade, if the Authority was against me, and I continue to refuse to hand over my money to the bank.  There is no way to put talcum powder on the rear of that bull, but if the bank prefers the cartel to a court, the response will be immediate and apt.

The Authority

As I have remarked before,if the Authority takes the view that it would be fair to require a 79-year-old pensioner to pay nearly $5000 to a bank because that bank cannot get it from its American partner (the fabulously wealthy Mastercard), then that is a conclusion that the customers of the bank should hear about – sooner rather than later. 

Nor have I overlooked the fact that in its relentless campaign over effectively $2,500, the bank relies on the contribution of ASIC, an organ of the federal government created to protect us from crooks.  The bank evidently regards the Code as a bomb shelter from which it need not emerge.

The conduct of the bank

As and when Australians ever get to look at the Code, after they get over their surprise, they may think that it puts the bank in a position where it is a judge in its own cause.  Just as this bank did when it was found collecting insurance premiums on a house which, to the knowledge of the bank, I had sold – just as some corporations collected life insurance premiums – almost literally over dead bodies.

And that is just how the bank is acting in this case.  ‘We have the protection of the Code and we pay homage to Mastercard.  So, don’t bother us with the law.  Our team are not here to deal with the law.  Their concern is industry practice.’

The Authority must repudiate that bank-skewed world view.

By employing people to confront customers of the bank in this way, the bank violates its obligations to me and other customers to act towards us diligently, loyally, and in good faith.  Worse, it violates obligations it owes to its staff.

Here is a complete denial of business decency.  ‘Professional conduct’ dies on our lips.  Miss Longmuir of the CBC looked after my parents and me for thirty years.  She would think she had landed on Mars. 

In short, this petty fiasco shows the decline and fall of banking in Australia.

Finally, Mastercard

We work to connect and power an inclusive digital economy that benefits everyone, everywhere by making transactions safe, simple, smart and accessible. Using secure data and networks, partnerships and passion, our innovations and solutions help individuals, financial institutions, governments and businesses realize their greatest potential. Our decency quotient, or DQ, drives our culture and everything we do inside and outside of our company.

Oh, Mastercard, Mastercard, where be your DQ now?

It is a very male world.  Women are there to be seen and not heard.  It would be absurd to suggest that any woman should be able to exercise any real power outside the bedroom or kitchen.  (And she may not be safe or alone in one of those.)

The basis of the arrangement follows the feudal pattern, which in turn followed the protection rackets run by Athens and Rome.  ‘I am your man.  I serve you.  You protect me.’  Homage (honour or respect shown to someone publicly) and allegiance (loyalty or commitment to a superior person or cause) – then protection (keeping someone safe from harm). 

There were, at least in theory, mutual obligations, but it is obvious that the whole structure rests on a basis of inequality – something that the French mistakenly thought they had abolished after 1789, until Napoleon set them right with a whiff of grapeshot.

The hierarchy is both unwritten and complicated.  It has evolved over time.  We might fairly describe that evolution as ‘tribal,’ because it comes from and is identified with people who identify as part of a group that is like a sect, clan, or tribe.  Indeed, in our miserable argot, they practise a kind of ‘identity politics’.

At the top of the pyramid sits, or stands, the leader.  (The Italian word is duce; the German is fűhrer.)  It is the custom that he gets there by force or deception, or both.  (It may be said that this system has one thing in common with the common law that underlies our whole constitutional fabric – it all comes from custom, which becomes convention in a governmental or constitutional context.)

The inarticulate premise is that power goes to the strong.  Vae victis.  (In Kenya it is called ‘my turn at the table’.)  Violence and termination are, after all, the final arbiters.

These people are above, or at least outside, the State and its laws.  In fact, it is their rejection by, or of, the State that is their raison d’être.  They want more than the State can offer, and the resulting conflict is therefore both deadly and inevitable.  They are the alternative State.

Not in any order, they are concerned with respect, standing, loyalty – personal loyalty – all subject to the instinct of revenge. 

One problem with the vendetta is that it perpetuates itself.

But the overriding goal of each association, and its leader, is to get and maintain power.  Power brings respect.  Each depends on personal loyalty.  And any act of disloyalty is likely to be met with immediate revenge – that may be as terminal as it is brutal.

Servitude brings groveling and sycophants.  That induces more egoism in the leader, and leads to the corruption that inevitably comes with power. 

The world view in the clan is very different to that outside.  Deception is everywhere, because truth holds no value.  Indeed, the very word ‘value’ is problematic.

In the outside world, this kind of group aspiration – such as in a political party or football club – turns on trust.  But that is not so in these outsiders.  Hardly anybody trusts any one else.  The body is held together by greed and fear.  Indeed, the time to get really nervous is when someone above you expresses gratitude, or even affection.  Sincerity is wholly alien.  (A football coach, Tony Shaw says, knows that he is on the skids when the committee says it has ‘full faith and confidence’ in him.)

If you do some good in their eyes, you may on a good day get some prize.  That is in the discretion of the hierarchy and ultimately the leader.  But woe betide you if you get it wrong.

And don’t even mention due process

The boss may talk of God, but his ego is too big to allow that kind of competition.  God is just a useful tool to help shepherd and shear the flock.  All the big hitters from Caesar to Napoleon and Putin knew that.  You just form a meaningless alliance with God’s representative on earth.  (One thing is certain – God won’t make the women restless.)

Most of the members or followers are nuts or crooks, but they have rejected the world that has rejected them.

So, although this body may look so powerful, it has fragility built into it.  But it can survive in one way or another if the State is not strong enough to contain it. 

And people are attracted to it because it offers them something they cannot get from the State, a body that they regard with contempt, in large part because they think it does not show them respect.  Jealousy is not a force for the good of the community – communion, even.  Not least when you stigmatize those better than you as elites.  Green eyed jealousy is made flesh.

Ultimately, the whole sordid shebang comes back to the egoism of its members.  Communal bodies built on that premise are like fortresses built on sand.

What am I speaking of – the Mafia of Mario Puzo and The Godfather trilogy, or a Trump Cabinet?  Or Putin and his oligarchs?

(Michael Corleone hugged his brother Alfredo before committing the primal sin.  Alfredo was shot in the head, from behind, while saying ‘Hail Mary!’  What better way to go out and join the fishes?)

My favorite actor is Al Pacino.  Perhaps he has the capacity of a dog to command trust, response, and affection.  He can express his meaning just with his facial configuration, especially the eyes and lips.  (The mouths and eyes of dogs are so expressive.)  And he has an innate sense of timing.  The great champions of any craft make it look so natural – so easy.

He started off on the stage, and he would keep on the stage throughout, but he made his fame on the screen.  He has just published his memoire Sonny Boy.  It is a remarkable document that is plainly intended as his personal and artistic last will and testament.  It is not overtly ghost written and does not indulge in name dropping for the sake of it.  (And let’s face it, that’s what a lot of us will buy it for.)  It has about it an aura of candor that compels my intellectual assent.  It is, if you like, a cri de coeur of a singular artist standing on the brink of eternity.

He was born of Italian parents in the Bronx.  His parents separated when he was young and he lived with grandparents.  His mother was attractive, but fragile, and she later killed herself.  He kept contact with his father, but he comes back to his mum on the final page.

Life was a struggle for the kid and his mates, but he got through.  When his three best mates died as heroin addicts, he was up to his neck in Shakespeare and Chekhov.  And he had a sense of vocation for the stage that would match that of a nurse or a novice.  It has driven him throughout his whole life. 

But with that background, success and fame would pose the usual tests for the rising star with the bottle, skirt, drugs, the press, wheelers and dealers, worse egotists, and downright crooks.  He eventually got on top of the grog and drugs, but his marriage – or ‘relationship’- record is at best par.  That is hardly surprising – he played against many of the most beautiful women in the game, and he ended up on close terms with Elizabeth Taylor.  (And, yes, he and Diane Keaton did shack up together for a while.)

The breakthrough came, as if from nowhere, with The Godfather.  Coppola put this unknown against the great Marlon Brando, who sat on the right hand of God in that pantheon, and it is one of the greatest films ever made.  (Along with II and III.  I have the quite heretical view that III is the best of them.  It winds up where it should – in an opera house in Sicily, and the Vatican.  It thunders home with the crushing velocity of Anna Karenin, Tchaikovsky’s Fifth, and Turner’s Rain, Train, and Speed.)

There followed Serpico, and so many other films.  And life in the theatre.  I will not name the films – I never saw him on stage – but we were blessed to see him with his friend ‘Bob’ De Niro in Godfather II, Heat, and The Irishman.  There were some duds, but many classic films – such as Scarface. 

My favorite may well be Scent of a Woman – for which he won an Oscar (from, I think, nine nominations).  It has two scenes in which Hollywood justifies its existence.  In one, he dances the tango at an upmarket hotel on Seventh Avenue that looks very familiar to me.  In another he drives a Ferrari full tilt on an avenue in central Manhattan. The problem was that he was playing a blind army officer intent on suicide.  Those scenes alone justify a night out at the movies.

Like many actors, he says he does not read the critics.  They certainly got to him about Richard III, which led him to make a film about playing the part – and to play Shylock on stage and on film.

Al Pacino is as much an artist as any painter, pianist or poet.  He has given freely of his art to millions.  And at one hell of a price at times. 

This extraordinary memoire sounds to me as frank as that of another artist from that part of the world – Joseph Heller.  As if by instinct, he goes back to his childhood and mum to close the book.  We are getting to that time of the year when I can say I cannot think of a better Christmas gift to take to the beach.

They took four days to shoot the tango scene.  No wonder these people hit the skids.

If someone bakes a cake for you, the question of why they baked it is different to the question of how they baked it.  They may have baked it because it was your birthday, or you paid them to bake it.  But you may or may not know the method or the ingredients they used in the baking.

Is there a similar difference in a footy match?  The Lions comfortably beat the Swans.  Is the question why did they win different to the question of how did they win?  Yes.  They won because they played much better footy on the day.  The reasons for that go back far and wide.  Why is different to how?

We do know that before the game, no one knew who would win, and very few were confident in their prediction.  The two sides looked so evenly matched.  It was as close to even money as you can get.  Yet on the day, it was ‘not even close’ – the phrase Mitch McConnell used to describe the result in the 2020 U S election.

The fallacy of history is to succumb to the delusion that because something did happen, it had to happen.  This is not so in live action.  At the start of a game, the players do not know how it will end.  Punters do not know how a race will end.  The players in Hamlet know what’s coming.  The players in the Wallabies v England Test had no idea of who would close out the test at the 84-minute mark, or how they would come to do it – in a spectacle that will live long in memory.

Yet we see this fallacy all the time in games.  A team gets up by a chancy point on the bell, and we get a raft of reasons why they won, blurred with descriptions of how they did it.

The Battle of Gettysburg was a ‘damn’d close run thing’ (to quote Wellington on Waterloo).  The Union prevailed, but it could have gone to the South, if one of the thousands of bullets fired on the second day had deviated by six inches to take out Colonel Joshua Chamberlin, the hero of Little Round Top.

History is made by people – and by chance.

What about elections, then?  Before the event, no one knows who will win.  After the count, everyone knows who did win.  (Putting to one side rogues and lunatics.)  People seeking to predict the outcome of an election are speculating.  Most commentators thought the last U S election was too close to call.  But the last ten years have shown just how speculative is this kind of crystal ball gazing.

But if we inquire after the event, how do we know why so many millions voted how they did?  We know how they voted – both personally and as a supporter of a party or candidate – but we don’t know and we will never know why they voted as they did.  We are back to speculation.

And many inside and outside the US simply cannot fathom how millions can wish to appoint to a position of trust a man proven – proven – to be utterly untrustworthy.

And yet day after day, the pundits trek to the oracle at Delphi to tell us why events unfolded as they did. 

That sort of speculation looks to me to be delusional.

In Ancient Greece there was a practice or rite of casting out someone like a beggar or cripple or criminal in the face of some natural threat or disaster.  There are traces of a far older tradition in Syria when a goat would be invoked in the purification rites for the king’s wedding – a she-goat was driven out into the waste with a silver bell on her neck.  More recently, but before the Greek custom developed, the Old Testament, Leviticus 16:8, said that ‘And Aaron shall cast lots over the two goats, one lot for the Lord and the other lot for Azazel.’  The goat of the Lord was sacrificed, and the high priest by confession transferred the sins of himself and the people to the goat that was permitted to escape in the wilderness – where its fate would depend on what sort of predators it may have to contend with. 

There was a form of atonement.  The goat that escaped became the ‘scapegoat.’  The traditions or rites might be said to prefigure the role of the Son of God being offered up to redeem mankind by atoning for its sins.  A scapegoat is one who is punished for the sins of others.  This ancient Middle Eastern rite has become a universal custom involving people rather than goats.

But the term has got much wider than that – a scapegoat now is not just one that has to answer for the sins of others; it has to answer for all the problems and failings of what might be called the host people.  So, in the most gruesome example, the Nazis held the Jews responsible for all the lesions on the German people, moral or economic.  The war had been lost only because of the failings of some generals and because Socialists and Communists had stabbed the nation in the back.  Once the German people got released from the hold of these forces of evil, it could realize its potential for the first time, and nothing could stand in its way.  The German character was not just innately good – it was superior; therefore, the reason for any failings had to be found elsewhere.  The notion of scapegoat was vital to the perversion of what passed for thought under Hitler.  It is the natural first base for a weak and insecure person who is a moral coward.  It is also the kind of sloppy thinking that attracts insecure people, edgy commentators and journalists, and weak governments.

Scapegoats played a far smaller role in the French Revolution.  Pitt’s gold – bribes from the British government led by Pitt – came to be a convenient source of all of the discontents of the people, and the aristocracy and church were loathed and attacked.  They had been principal pillars of the ancien regime that had failed and that was being rejected and replaced, and large parts of the aristocracy and of the church were opposed to those seeking to advance the objects of the Revolution.  The émigré royals and nobles were a real and not just imagined threat, or one conjured up for the purposes of propaganda.  The aristocracy was no more of a scapegoat than the clergy.

There were even reasons to fear the capacity of the inmates of prisons to harm the Revolution – the September Massacres in Paris were manic and brutal, but they were not fashioned just out of malice.  The driving force of the massacres was not from on high in the government, but in the mob in the form of the sections of the Commune of Paris.  Even the killers in their panic or blood-lust felt the need to employ some form of trial in a quest to find the real threat to the nation – not just to the Revolution, but to the sovereignty of the nation.  What we find it hard to follow is the relief felt and the welcome given to those who were spared or acquitted.  There were elements of formality and benevolence in the brutal carnage that led David Andress in The Terror to say:

Prompt justice was done, with sound practical considerations in hand.  That is the real horror.  It is easy to come to terms with the idea of irrational carnage carried out by sadistic mobs: such facts fit neatly into the concept of a radically different, almost subhuman crowd, safely distanced from the self-image of the observer.  Far less comfortable is the realization that bloody murder could be committed by upright citizens in the name of the country’s freedom.  If we quite fairly object that the victims of September were not, in fact, the active partisans of a fatal plot gainst Paris, we must also agree that believing them so was a mistake shared almost unanimously everywhere from the Legislative Assembly to street-corner tavern.

If on that occasion the blue-collar crowd, the sans-culottes, showed a need for some kind of procedural check on their enthusiasm, a big problem with what we would now call the political class is that they found it so hard to check that enthusiasm.  They had not had enough experience of what we call party politics and political in-fighting to allow them to tolerate differences in points of view.  You are either for us or against us; you have to decide; and you might lose your head if you decide the wrong way. 

They were not experienced or mature enough to be able to put up with doubt or uncertainty on what they saw as matters of principle that they also saw as having nation-forming consequences.  They were in a way the sad victims of the kind of political absolutism that they believed that they were escaping.  If Flaubert said that inside every revolutionary you will find a policeman, it may because what you first find is an intolerant zealot – a fanatic.  This is one reason that what we call faction fights were so lethal then.  People getting together to oppose those in government were, almost by definition, conspiring against the nation.  Division was bad in itself.

Nor does it make much sense to look for the role of scapegoats in the Russian Revolution.  The convoluted theories of Marx would lead to serious differences of view upon implementation at the best of times.  They were predicated on classes being in a conflict that was terminal, and the theories had an apocalyptic and prophetic air that commanded an adherence that was most devout among those who did not understand the theories – which meant most Communists, let alone Russians.  To that you must had the cold egomania of Lenin, who hardly gave the theories a chance, and the manic paranoia of Stalin, who could not care less, and you see that it hardly helps us in our inquiries to ask if the kulaks may have been seen as scapegoats.  The thinking that determined who might be targeted by regimes led by Lenin or Stalin – or, for that matter, Mr Putin – may be something that just passes our understanding.

A scapegoat may afford a kind of out for a regime, but suspects are at least a potential threat to it, at least ‘suspects’ in the terms that we are about to see.  There is no reason why one person may not fulfil the criteria of more than one category.  An aristocrat may have passed through a journey in time from being an enemy, to a threat, to a suspect, to a scapegoat.  One of the infamies of Hitler was his treatment of the Jews as scapegoats. 

The two most famous operas of Mozart are about cruel, lecherous aristocrats.  The Marriage of Figaro and Don Giovanni came out just before the fall of the Bastille.  Each was therefore tricky.  But the aristocrats laughed their heads off, and then they literally lost them. 

The latter opera is my favourite.  The drama is high and sustained, and embodied in the music, while peppered with great songs.  In a note published in 2015, I said:

Don Giovanni, which was first produced in 1787, is altogether different.  The hero is a serial seducer and abuser of power, a totally amoral person, whose real evil is that he remains a source of fascination even to his victims.  He starts with an attempted rape and a cold-blooded murder, and he never looks back or shows any regret.  He does not repent and he literally goes to blazes before our eyes.  That end was stated in the first chord of the opera, which one learned critic called ‘the most magically evocative chord in the history of music…’.

When Tchaikovsky got his hands on the score of Don Giovanni, he said that he was in the presence of God.  Flaubert said that God had made three things – the sea, Hamlet, and Don Giovanni.  You would have to have balls or a lot of Brownie points to say something like that.  No wonder that poor old Salieri just went crackers.

The Gramophone magazine gave a very good review to a recent production.  I now have it on DVD.  It comes from the Royal Opera at Versailles.  Their title caught my eye.  The last royals at Versailles went out the hard way.  But having now seen and heard the show. I can say I enjoyed it as much as any show I have seen on the stage.

The orchestra and setting are baroque – which is as it should be for this work.  The cast is what may be called ‘ensemble’, but led unerringly by the lead (Robert Gleadow).  He packs a real engine room, and that leering laugh bounces right off the back wall.  The show, and the music, proceed at a tight clip, again as it should, and is worth seeing for the costumes and choreography alone.  It does lag a little in the second act, and the finale , the arrival of the stone guest, is not as crushing as I have seen, but the show as a whole is just stunning.  (The set comes with full sleeve notes and libretto.)

Above all, from go to woe – literally – it is a celebration of the roots of opera in Commedia d’ell arte.  This was the popular theatre that evolved in Europe in the 16^th century.  ‘Strolling players’ put on shows for the people involving stock characters , like Harlequin and Columbine, in masks , with plenty of ad lib.  (Some who are old may compare In Melbourne Tonight, or World of Sport.) 

A well-known theme was that of the oppressed servant – like Leporello, or Figaro.  The comedies of Shakespeare are shot through with references to this art form – and it was as much a form of art as the tragedies of Aeschylus.  And we get it here from the start with costumes, masques, and a prosthetic nose on the Commendatore.  That is the main reason that I found this show so engrossing.

In Figaro, the Countess is a tragic figure.  There is nothing like that here.  Donna Anna takes it all out on poor Don Ottavio (who gets two of the best hits of the show); Donna Elvira is accident prone; and Zerlina chances her arm in her caste role.  Between them, they show the misery of both chastity and celibacy.  (Mozart was a devout Catholic and a devoted Mason.)  Leporello is indispensable as the comic link.  Masetto is a kind of Figaro. 

Some ponder whether this opera is comic.  The answer is that you don’t put genius in boxes.  The greatness of the show is its vivacious mood shifts – like in Casablanca and The Third Man.

But we are left with the same question as we are with Falstaff and Richard III.  What on earth are we laughing at?  Anthony Quayle said Falstaff was ‘frankly vicious’.  Don Giovanni is candidly cruel, a force of evil on the stage that calls to mind the Satanic Rothbart from Swan Lake.  Putting Trump to one side, it is hard to imagine a more repellent villain.  Indeed, by the end, when Don Giovanni holds fast, he resembles Rasputin in this mighty production – and God knows he took some killing.

All this comes with the score of a genius, one that drove Tchaikovsky to God – and Tchaikovsky knew all about making great shows from old art forms.

The French have been up and down since 1789, but when they decide to do a big number, as they did with The Hunchback of Notre Dame at the Bastille opera some years back, they are all style.  For the avoidance of doubt, this is a rave review.  Miss it at your peril.