The War against Humanity

Good night, sweet think tanks

The life and death of Ayn Rand prompts as an aside the reflection that in the eyes of most people whom they call the ‘elites,’ our think tanks died years ago. Who are those ‘elites’? People who have real jobs and who know how to do them. People who do something – and leave it to the comfortably salaried bystanders to comment upon them (when they are not reading Ayn Rand in the closet.)

(Who, after all, would want to live and try to breathe in a think tank? You may never get out – and some don’t.)

They have backed so many dud horses, and bent the knee so dutifully to that rich lady with all the coal, that they can totter their way to intellectual and social extinction entirely untroubled by the curses to be laid on their heads by their children and grandchildren for the damage done to the planet by their sterile and amateur theorising on matters that they did not understand.

They are, very sadly, a reflection of the degradation of the word ‘conservative’ and our complete failure to live up to the leadership of Edmund Burke or Benjamin Disraeli.

Instead, these latter-day dreamers take up their lances and tilt at windmills. They might remind us of the remark of a real philosopher, not a self-taught amateur, the Scot called David Hume.

The knights–errant, who wandered about to clear the world of dragons and giants, never entertained the least doubt with regard to the existence of these monsters.

Neither did my absolute hero, Don Quixote – although he was by then as mad as a cut snake. Some do find odd ways to justify their existence.

So, Australians don’t need or trust intellectuals or ideologues. We’ve got a lot of things wrong here. This isn’t one of them.

The emptiness of parties

But there is something more than our distrust of intellectuals involved in the seeping irrelevance of the two major parties. If you take the trouble to look at the platform of the Liberal Party and the Labor Party, can you spot anything in one that would look out of place in the other? If you hear someone speaking of ‘Liberal values’, or, worse, ‘core Liberal values’, are they speaking of an attitude not shared by Labor? In the last federal election, was there any issue that derived from a policy that arose from a plank in the platform of either of the major parties?

For whatever reason, neither party in Australia is now keen to formulate a scheme or policy that appears novel. We are used to ‘small targets’. The reason for that can be seen in the electoral punishment meted out to anyone brave enough to rock the boat. And the reason for that is that we are timid because we fear change and are mortally dependent on government. We are in truth the victims of our own political immaturity.

That may in a way suit the national character, but there are consequences. One is that we are victims of the short-sightedness that bedevils corporate business, and we are hopeless in fields that call for long planning and investment – like defence, technical education, and care for the aged.

Another risk is intellectual dishonesty and then corruption. The two-party system developed in England through the eighteenth century. There were groups of people named ‘Tories’ and ‘Whigs’.  But the political machine was oiled by patronage. Sir Lewis Namier, the great English historian of his time, observed that ‘parties at all times rest on types and on connexions rather than on intellectual tenets’.

As it happens, Sir Ronald Syme said much the same about politics in the Roman Republic at about the time of its death:

In all ages, whatever the form and name of government, be it monarchy, republic, or democracy, an oligarchy lurks behind the façade. … The political life of the Roman Republic was stamped and swayed, not by parties and programs of a modern parliamentary character, not by the opposition between Senate and people… but by the strife for power, wealth and glory … Though concealed by craft or convention, the arcana imperii [secrets of power] of the nobilitas cannot evade detection. Three weapons the nobiles held and wielded, the family, money, and the political alliance (amicitia or factio, as it was variously labelled) … The Roman constitution was a screen and a sham … The ramifications of this oligarchy were pervasive, its most weighty decisions taken in secret, known or inferred by politicians of the time, but often evading historical record and baffling posterity … Persons not programmes came before the People for their judgment and approbation.

Of the politics at about the time the English opened their jail here, Sir Lewis Namier said:

There was a Whig and a Tory mentality; each was expressed in certain conceptions of State and Church, had its own ideology and idealism. And responded to certain sentimental appeals and traditional watchwords; the same types are with us even now … Moreover, the disturbing element of personal connexion is always present in politics; the game is played by groups, and human ties continually cross and confound the logic of social and political alinements.

That reads true for us here now – personal connexion means more in our politics than intellectual tenets. In truth, politics in England then ran on corruption, what historians call ‘the spoils system’. (We will see an alarming recent case of this kind of corruption in Australia in chapter 9.) Back in the eighteenth century, another English historian remarked that the ‘main presupposition of the art was this: that no leader of a coalition could ever hope to find, as Lord Chesterfield said, “enough pasture for the beast he had to feed”.’

The repeat of this history here and now in Australia is revolting. But the democracies of the West look to be living beyond their means. They must either cut services on offer or lift taxes or borrowing. Too many elected to govern are not up to it. As one said – ‘We all know the answer, but we all want to be re-elected.’

The queer conservatives

Some people approach government with respect for the past and with apprehension about trying to reform it. Others are more sceptical about what we have done before and they want to try to reform government. Macaulay surveyed the whole course of history from Magna Carta on and found: ‘under some name or other, two sets of men, those who were before their age, and those who were behind it, those who were the wisest among their contemporaries, and those who gloried in being no wiser than their great grand-fathers.’ Well, that left no doubt which team he played for, and his is described as the Whig view of history.

There are of course shades on each side, since no one outside of Candide is wholly optimistic – or pessimistic. One side might be labelled ‘conservative’ and the other ‘liberal’ – or that frightfully plastic term ‘progressive’. Words such as Left and Right are useless; Fascist and Socialist are merely fatuous.

It would be idle to seek to apply any of those sorts of labels to either of the traditionally major political parties in Australia now, since neither looks to stand for anything, and each looks to have no underlying rationale. Our Liberal Party and our Labor Party are full of inconsistencies, but since our present inquiry looks at failures in capitalism and democracy, I will focus on the Liberal Party, which from time to time claims to be the party of business. (Although that relationship has soured recently as the failure of the Liberal-led federal government to come to terms with reality has induced business to take the lead on issues like same-sex marriage and the environment after the government offered its version of an abdication – it could have reminded some of James II shooting through and tossing the royal seals into the Thames. Business people in a time of ESG do not smile upon those in power having a Neanderthal attitude to evidence and the conclusions to be drawn from it.)

(I put the National Party to one side – they look to have deserted the farmers for coal and Tammany Hall, and they regularly present us with candidates we would cross the road to avoid.)

A hundred years or so ago in England, the Conservative and Liberal Parties were thought to be very different. (Winston Chuchill breezed between the two of them, but he was on any view exceptional.) Our Liberal Party wants to be both ‘conservative’ and ‘liberal’.  That has led to tension –which is unresolved. That is not surprising. 

The Adversarial Trial

The decision

A judge once concluded a judgment saying ‘I hope that I haven’t said anything new’.  That kind of shyness is less in vogue now.  But it might lead you to ask the question.  Will deciding this case require me to say something new?  Unless you are on the High Court, the answer will almost certainly be no.  In that case you can dispose of the matter as crisply as you can, while doing as little damage as possible to the people involved or to the fabric of the law. 

But in the rare case where you may have to say something new, why should not those same considerations apply?  If you are going to add to the body of our law, then unless you are some kind of juristic superstar, which you almost certainly are not, the chances are that your efforts will leave us worse off.  Why should not you still seek to get rid of the matter saying as little as decently possible?  Did anything – anything – good at all come out of the gallons of ink spilled by nine judges arguing about whether Twiggy had told a fib?

So, I would suggest that the first thing is to keep the decision as short as the law and evidence permits. 

The next and related tip is to start as soon as possible doing them on the spot.  It will depend to some extent on jurisdiction, and on temperament.  The late Bill Crockett told me that he enjoyed the Practice Court – ‘it gives you a chance to chance your arm.’  He was on any view a pre-eminent judge – the most imposing judge I have appeared before – but you need to confront something like that sentiment, and the sooner you do so, the better – otherwise you may never get around to it.  And the most gripping disease that can cripple a judge is getting behind in reserved judgments.  We see it so often, and it is a very sad failure of character and the system.

On disciplinary tribunals, I think that the decision should be given on the spot, and face to face with the punter.  You should do it to their face, but you can reserve the right to add to and vary those reasons later.  You may want to do that on some tribunals because people may look to you for guidance on some issues. 

I never felt up to giving a decision on the spot in complex cases like charity cases, preferential securities cases, group pay-roll, or tax evasion cases – for one thing, I had no idea what the endgame might be, and it may not be a good idea to think out loud in those cases.  Nor did I think those cases were ones where I should chance my arm, since there were tricky issues of law or fact.  But where the issue was just one of credit or penalty, or whether a contract had been concluded by a certain date, there was no problem about doing it on the spot.  (It is not my area of practice, but I wonder why most appeals on sentence are not dealt with on the spot.  Do we really suppose that the science of punishment is that precise?)

We tend to forget now that from its creation, the English Court of Appeal tried to get through most of its load on the spot.  Oliver Wendell Holmes loved this idea – he would doubtless have been up for it.  Our High Court used to do it occasionally. 

I referred earlier to the rule that if you called for a document, you could be compelled to tender it.  The authority is Walker v Walker.  That was a matrimonial case – presumably of a very wealthy couple since this maintenance case started before Magistrate.  The Court gave its judgment on the spot.  Latham, CJ and Dixon, J offered brief observations.  Here is the judgment of Justice Starke:

I agree that the appeal should be dismissed, but I do not agree that the letter which has been referred to was admissible in evidence of the husband’s means. It is, of course, an old rule that if a party calls for a document in the course of the trial, he is bound to put it in if so required, but it does not follow that every statement in such a document, hearsay and otherwise, is evidence.  It is for the court to consider the matter in each case, and in this particular case all that happened was that the letter was put in to confirm the wife’s statement that her knowledge of her husband’s means was based on hearsay and nothing else.  I should not have thought that the letter could in these circumstances be used affirmatively, or that it had any probative value whatever.  However, I think there was other evidence which was given of the husband’s position in life and positions that he had occupied which were sufficient to support the decision of the magistrate.

The parties like judges who are short and to the point.  Instead, we are lost on a sea of cut-and-paste agglutination of the style so deplored by good judges. 

On the length and depth, or scholarship, of the judgments, I think that the problem has got worse over the last generation or so with footnotes.  They should have no place in the courts.  The taxpayers fund the judiciary to resolve disputes, not to compile and compound juristic theories and theses. 

The actual litigants are much more aware of this distinction than judges think.  They just want to be put out of their misery and not to be used as a source of ammunition for the next bunch of guinea pigs – the problem is that empire building does not just hold up the litigants who are the parties in the exercise, but it helps to make it worse for the next lot.  And who wants to be put down by a footnote?

May I take it to be common ground that we have too much law already?  If so, how confident is any would-be law-maker that their next new law will leave us net better off?  So, to the wunderkind or appeal court who wants to unload the next few hundred-page bible, I put the Latin question: cui bono?  Just who is the audience?  Certainly not those who paid for it in flesh and cash – the parties.

Two of the tablets of our law of negligence were given by two masters of the law, Justice Cardozo in Macpherson v Buick Co. and Lord Atkin in Donoghue v Stevenson.  Elsewhere I said this: 

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 movie Casablanca takes ninety-four minutes.  Any director who makes a film longer than that is at risk of being seen to flirt with Destiny.  So is any judge who takes longer than Justice Cardozo or Lord Atkin.  As in devoting a few hundred footnoted pages to a libel action.

Finally, if you are going to reserve, get it done quickly.  Don’t let it or others turn into a cancer.  If the case has run for more than a day, you can have the introduction and summary of the evidence and argument made up as you go.  The instincts developed over twenty-five years fighting cases will lead you to review the evidence and the law, and then make findings on the evidence and draw the conclusions of law – and so you come to decide the issues.  It is about a five-phase process. 

It has been a very long tradition in Anglo-American courts to expose the reasoning in this structured manner.  Nowadays we use that ghastly word ‘transparency’.  This is not the way they do it in Europe.  They think we are odd.  Major law firms and sensible silks now tend to follow the advice that Sir Ernest Gowers (in The Complete Plain Words) gave to the English Civil Service: ‘Begin by answering his question.’  I doubt whether that mode will take on here, because the judiciary is not the civil service, or the retailer of advice to paying customers, but you could well remember how Sir Ernest summarised his rules: ‘Be short, be simple, be human.’  And judges should be encouraged to give a summary of any reserved judgment.

All this has to be done when the case is fresh in your mind – especially if issues of credit are involved.  It is not fair to the parties to allow a lapse of time to flirt with your powers of recall and analysis.  Such a course is unjust.

I have always tried to give a decision on the day of hearing or the next.  I don’t think I ever sat on one for longer than a week.  If anyone wants to say that I confronted less pressure of work than they do, I will be interested to hear from them.  We are talking about professional duty and discipline.  For myself, I cannot understand how any judge at first instance could in good conscience sit on one for more than a month.  You are then likely to cause real pain to real people, and you are not doing the right thing by the rest of us either.  If a practice of real expedition were adopted, and it had the effect of reducing attempts to match War and Peace, very few in the profession would dress themselves in mourning.

The problem with delay in giving reserved judgments has now reached epidemic proportions, and not just in superior courts.  It infects lower courts, too – including courts of ‘summary’ procedures.  This can be very wounding for the parties, and as time goes by, the presumption of a fair trial just evaporates. 

In England, it is said that three months should be the limit for reserved judgments.  We have judges sitting on judgments for more than twelve months.  This is appalling.  The position in the English courts is clear.

…. the ‘3-month’ general rule should be adhered to even in long and complex cases.  Justice delayed is justice denied.  The parties to civil, and particularly commercial, litigation are entitled to receive their judgments within a reasonably short period of time. That period should not be longer than three months. As has been repeatedly said, any other approach will lead to a loss of public and business confidence in our justice system.

We might question why Sir Geoffrey Vos MR singled out commercial litigation.  That involves money and face.  What about delays in judgment that ruin people’s lives – as was the case of the family who had to wait two years for a judgment in the tax case I referred to earlier?  As the poet said, ‘the private wound is deepest.’

Our judges have no excuse for not dealing with this issue until the cancer has become life threatening.  In order to start to regain public confidence, they may have to start the way other addicts do with a public acknowledgment – ‘We have a problem, and we have to fix it.’

13

Appeals

About thirty years ago, I was at an ABA Conference in New York.  I attended a very affable breakfast for appellate counsel.  Late in the session, I asked if there was an agenda.  ‘Not really, Counsellor.  There is only so much you can say about appellate advocacy, and it has all been said before.  We just fix the agenda for the next meeting.’  That sounded most agreeable to me. 

It was there that I heard for the first time the U S description of appeals’ judges – they hide out in the hills while the real action is going on, and when it is over, they come down and shoot the wounded.  That observation has an American ring to it – a ring of the West.  It also has a ring of truth.

My own view is that the pain is far less if those doing the shooting are drawn from those who might be shot – and it was a mistake to have a separate Court of Appeal.  The ordinary punter gets nervous with splits in the higher reaches of government.  There is no point in adding to the hierarchy for the sake of it.  It is inevitable that a separate Court of Appeal will develop a sort of aloofness that will lead to estrangement from those still in the trenches.  The more rungs there are on a ladder, the more rickety it becomes, and the easier it is for some to look down on others, and for those others to feel passed over or looked down on.  The principal differences between trial judges and intermediate appeals judges lie in their apparent self-esteem and capacity to make law; the two are related.

The position looks very bad in Victoria with County Court judges all the time being spoken down to by faceless judges who have little part to play with the bar or the profession at large.  This is very unhealthy because the Court of Appeal and the County Court appear to operate on different juristic levels.  There is a kind of intellectual apartheid.  It is worse than the public service in Canberra.

Then comes the coup de grace.  Some of those appeal judges have never fought a criminal case, never fought a case before a jury, and have never directed a jury.  And yet those whose bread and butter has been to appear in front of or to direct juries have to be lectured by some who have never done it.  In the Heydon Royal Commission, the whole nation could see the problems that arise when you ask someone to do the work of a trial judge and they have had no training for that purpose.

There is another cause of disaffection.  Our appeal judges have not got their act together in stating their view of the law in crisp simple terms that can be applied by your everyday trial judge.  There are too many judgments with too much said.  We have abandoned the wisdom of our ancestors that held that dissent on high is unhealthy, and on the High Court in particular, we have had to put up with prima donnas whose conception of their own egos has not allowed them to be just one of the team, but requires them to flaunt their own wares – to the benefit of no one except those idle people who have the time to read that kind of stuff.

But you should not be troubled by appeals.  I say that although my sense is that County Court judges are delivering a lot more reserved judgments than they used to because appeals are a lot more prevalent than before.  I have never understood why judges get so scratchy about appeals.  Unless you have said that 1+1=3 or that Donoghue v Stevenson is a leading case on the tort of homicide, the fact that another lawyer comes to a different view to yours appears to me to be an utterly inconsequential result of the fact that litigation is a lottery.  On more than one occasion in tax cases, I have told the punter that a win from me might be their worst result along a winding and rough road.  I also often told counsel that many parts of the law are beyond my comprehension.

I have been talking of the sensitivities of judges.  Far more important are the interests of the parties.  There was an old Latin maxim to the effect that it is in the public interest that there be an end to litigation.  Most litigation is hurtful.  Appeals are forms of litigation that extend the hurt.  Some appeal courts compound it by ordering a retrial.  That happens when some judges say that one or others got it wrong, and the parties have to suffer the consequences. 

My own view is that we have far too many appeals, and that if the bloke next door found out how many criminal trials had to be repeated, to the unspeakable misery of those involved, he would be outraged – and I do mean outraged. 

Even in my jurisdiction, there were bad accidents.  Some brothers named Christian on the land in Gippsland had to turn up before me on a dispute with the revenue authority about stamp duty on a partition of their farming property.  That was a subject on which I was anything but confident.  These farming brothers had not, like Twiggy, sought to bring government down on them, but they were taken by government, for its own purposes, to a single judge of the Supreme Court, from there to the Full Court, and from there to the High Court.  The stamp duty in question was under $9000.  I think that special leave was refused – otherwise I might just have been the first of five layers of appeal – as happened, I think, to two other cases of mine. 

You might say that that is Dickensian or Pythonesque.  In truth, it is a mix of madness and cruelty that can ruin lives.  Our appeals procedures badly need reform.

The Pursuit of Happiness

The philosophy of slow cooking

Slow cooking has a lot going for it.  The end results are normally good, without looking flash, and there is generally some room for error.  We are talking of what is called comfort food – what you get a craving for after a week or so abroad.  You can prepare it in advance, which takes the strain out of presentation, and you can save portions for the future.  This is important for those who just cook for themselves and for their version of the Wolf (my last dog).  Above all, the times involved are such as to preclude your making a fool of yourself by turning up the opera and getting on the sauce so that you are past it before the meal is ready.  That is a consummation devoutly to be avoided. 

Here then are a few meals that the Wolf and I enjoyed.

Aficionados of cooking writing will see a heavy influence of Elizabeth David in the absence of detail.  That way, I get to blame you if you bugger it up.  (Elizabeth David made it to the first volume of A Curated Library.  Dante had to wait until the end.) 

OXTAIL

Trim oxtail and boil for a few minutes, and dry.  Brown thoroughly in olive oil and butter in casserole pot.  (Sometimes I add some Kaiserfleisch for effect, and for the juices, and to cause a frisson in the heart surgeon and the rabbi.)  If you are a real hot shot, you can flambé the meat in cognac.  Thoroughly dust the meat in flour – you can do this by tossing it and the flour in a plastic bag – and put to one side.  Lightly brown in oil and butter sliced leeks or onion, celery, and carrot, and add chopped garlic, bay leaves, parsley, rosemary and thyme, and a pinch of nutmeg.  Return the oxtail and mix.  Add a tin of peeled tomatoes and some tomato paste.  Add some goodish red – say Koonunga Hill Shiraz – to deglaze.  Cover with stock and mushrooms.  Season.  Some add a spoon of brown sugar.  (My old man used to add a spoon of Vegemite, the shy old patriot!  You could put in a dab of Bonox – just a dab.)   Cover the pot, and cook on very low diffused heat for four hours or so.  (You can use the crock-pot, but allow at least four hours on high, and say two on low.)  Keep overnight.  Reheat and cook for about another hour.  You know it is cooked when the meat falls off the bone, and the meniscus has a pleasing tobacco colour on a white dish.  The leavings make a fine ragout for pasta or a pie.

VEAL SHANKS

Take large, full veal shanks, and dust with flour and salt.  Brown in olive oil in roasting pan, and remove.  Cover the pan with finely chopped fennel, leek and garlic.  Add loose cloves of garlic, with parsley, rosemary and thyme, a squeeze of lemon, and season.  Cover generously with white wine (say a pinot gris).  Return shanks to the pan and cook in low (160 degree) oven (preheated) for about four hours, checking for liquidity from time to time.  This meal cannot be stored.

BEEF STEW

Cut chuck steak in bite size pieces.  Fry in batches in sizzling olive oil in casserole pot.  Remove and rinse pot and on lower flame, softly fry two thinly sliced onions until soft and golden.  Salt onions while frying.  Add one clove of garlic sliced.  Add cup of red wine and reduce.  Add tin diced tomatoes and cup of chicken stock.  Add two bay leaves and rosemary.  Salt the beef and return.  Cook on about 170 degrees covered for about 100 minutes.  Reduce liquid on stove top if necessary.  Serve with mashed potatoes or in a pie.

LAMB SHOULDER

Ask the butcher to dice lamb shoulder into chunks.  Brown lamb in casserole base with olive oil and butter, and set aside.  Cook onion and garlic for a few minutes until coloured.  Add chopped carrot, sliced leeks with more butter, and bay leaves, rosemary, and thyme.   Then add peeled and sliced waxy potatoes (less than HB pencil width), and a cup or two of pearl barley.  Add lamb and mix.  Cover with vegetable or chicken stock.  Bring to boil.  Preheat oven to about 170 (fan forced), and cook under lid for about two hours.  The potato should have broken down.  Serve with flat-leaved parsley.

CASSOULET

This dish can be a mess, and you may want to try some dummy runs before going public.  Some quantities will be offered (after renderings of Larousse, Elizabeth David, and Mireille Johnston).  In essence, you separately cook four different kinds of meat, and beans, and then stew them all in three layers.

Soak about 700 gm. of haricot beans overnight, and drain. 

Apply salt and thyme to three duck legs; roast for about one hour at 180, and reserve fat. 

Brown about half a Lyonnais sausage, and a Polish sausage, with about 300 gm Kaiserfleisch, and two pork spare ribs, and remove, and reserve fats. 

Sauté about half a kilo of diced lamb. 

Add one sliced onion, leek, garlic, and two storks of celery (very finely chopped), one tin of tomatoes with white wine and vegetable stock and simmer for about an hour.

Cover beans with water, bring to a boil, and remove froth.  Add a similar quantity onion, leek, celery, and tomatoes, with Kaiserfleisch and spare ribs.  Cook for about one and a half hours, adding sausage for last 15 minutes.

Drain off meats and beans, reserving juices, and cut all meats into serving sized pieces.

Line the bottom and the lower part of the sides of the casserole pot with bacon with rind on.  You assemble the stew as follows: half the bean mix; then the chopped meats; and then the rest of the beans.  Season and sprinkle each phase with rosemary and thyme, and pour over reserved juices, removing some tomato, onion and celery for appearances.  Cover with breadcrumbs, and pour over reserved fats.

Bake at about 200 (less for fan forced) for an hour and a half, with top off for the last twenty minutes.  The French say that you should break into the crust about six times to see that it is not drying out.

Keep overnight, reheat, and serve directly from the pot.

It is not as hard as all that may sound, but you would not want this recipe to fall out of your pocket while you were seeing the heart surgeon. 

On my last two visits to Paris, I found it very hard to find a cassoulet on the Left Bank – I doubt whether your chances would improve on the Right Bank.  Perhaps I was there in the wrong season.

LAMB SHANKS

Dust shanks in seasoned flour.  Brown in olive oil, and remove.  Brown leeks, carrot, chopped zucchini and garlic in different oil.  Add white wine, chicken stock, passata and herbs and bay leaves.  Cook in covered casserole in oven for two hours.  Further reduce sauce if necessary.  Add cooked peas for colour just before serving with mashed potato and flat leaf parsley.

CORNED BEEF

Smear the top of the cut with ginger – say ginger paste and powder, with some garlic – having seasoned the beef.  Cook for eight hours on low in crockpot in ginger beer, with bay leaves, peppercorns, and cloves.  Serve with white parsley sauce, potatoes mashed with cream, and German sauerkraut cooked in Riesling.  (You can adapt this process to beef ribs, slow cooked in beer, and served on the sauerkraut with mashed potato on the side.)

MINESTRONE

Lightly fry thinly sliced onions in olive oil.  Then add over a low gas, in order, and at intervals of time allowed for preparation, finely chopped garlic, carrots, celery, potato, French beans, zucchini and cabbage.  Add diced tomatoes, herbs, and a small glass of red and let bubble for a while.  Pour in stock, and add cannellini and kidney beans, and crust of Parmesan.  Cook for about three hours on low simmer.  Next day, reheat and cook a little longer.  Remove Parmesan.  Add precooked small pasta just before serving.  Serve with Parmesan and parsley, and lightly toasted sourdough with olive oil.  (Just to confound purists, I like to add some Kaiserfleisch through the initial frying, and a ham bone for the cooking.  You might also try some bone marrow in the bottom of the pot.)

THE PIE

Take diced gravy beef and osso bucco in equal portions, with at least three pieces of marrow bone.  Sprinkle with onion salt and garlic salt, and pepper.  Soak in Guinness overnight.  Thoroughly brown the meats, and then dust with flour well.  Transfer to crockpot with three or four sections of marrow bone.  Cover with stout and beef stock.  Add crushed garlic, a tub or so of tomato paste or passata, a dash of Worcester sauce, and, if you wish, two or three sliced mushrooms of the dissolving kind.  Stir well.  Cook for 8 hours on low in crock-pot, checking liquidity from time to time (without removing lid).  You can reduce liquids by taking the lid off at the end.  Remove bones after ensuring marrow has gone into the mix.  Transfer to pie dishes.  Cover with pastry or mashed potato, and cook until the cover is ready.  If using frozen puff pastry, lightly smear the pastry with spreadable butter, and put on a high level of oven on 230 degrees fan forced for 10 or 15 minutes, down to 210 for final 10 minutes.  This should give the pastry the right colour.  (Those settings should also be right for frozen potato chips.)  If serving with pastry, I sometimes prefer to decant the contents, with the pastry on one side, and asparagus spears on the other.  Otherwise, you might serve with chips and spinach.  If topping with mash, I prefer to leave the pie as it is, and have, say, some Brussels sprouts and bacon on the side.  The preparation is best spread over three days.  There you have a meal fit for Billy and the boys on Grand Final eve (except that they will have to put on hold any resulting friskiness).

Careful readers may have picked up two things.  There is an element of blokiness about this food.  That is because I am a bloke, and I make no apology for that.  Secondly, there is no philosophy.  That is because, to adapt a remark by the great American jurist, Oliver Wendell Holmes, the life of slow cooking has not been logic, it has been experience.

Bon appétit, mes braves.

Art and décor

The style of London clubs may be exportable.  It has certainly affected the way I live now here in Yarraville. 

When I went back to the Bar, I had a five-year annuity from Blakes (my firm) to help with the transition.  They were sensibly generous.  I could afford to set up chambers as I wished.  In my first manifestation, I had been consumed by the need to build what for me would be the best library possible – especially on legal history, which was and is a large part of my intellectual life.  I spent a fortune on law reports – all made next to useless by computers.  I was determined to abandon the old-style partner’s desk and bookshelves.  I bought a wooden roll-top little desk to go against one wall.  It went with two dining chairs in bright lined fabric, one for me, and one for a client.  There were three wing chairs in floral fabric and one low armchair in a fine fabric with the badge of Florence.  There was a sofa in mahogany leather, two lamps, two coffee tables and a small bookshelf with a CD player.  The walls were festooned with seriously good aboriginal paintings, framed photographs and contemporary and pop art.  It was a very comfortable place to work and talk in. 

A lot of that is now at home.  I call the décor of the main rooms ‘1948 Paris Dambusters.’  There are the winged chairs in floral fabric, and the Florentine armchair; a small oak drop-side table with two dining chairs with ridiculously expensive fabric with Chinese motifs (of a set of four); a sofa in striped fabric; a wooden cabinet with hand-painted doors to hide the small TV; about five little lamps each with its own style and memories; a large stylish white Ikea bookshelf with the best books described in the four books I have written about above; two coffee tables; a Chinese style cocktail cabinet, and two smaller wooden cabinets, both with painted figures; one standing sculpture; various ornaments from all over the world; a display of the operas and jazz musicians I live on; seriously loud and colourful paintings of aboriginal and pop art – the latter may well be my favourite; a Marantz player with two English speakers in white on the Ikea shelf; and works on paper by Blackman, Boyd, Nolan, Perceval, Smart, Storrier and Williams –with a small framed original cartoon of Keats; and a mask from India and one from Venice. 

The idea is to surround and secure myself with what I live for.  It works.  A living room is, after all, an important part of your life – especially as you wind down.  You can be cocooned with writers, artists, musicians and minds you admire.  And the trend now in a small apartment in Yarraville is to light up the flat with aboriginal and pop art and replace works on paper with paintings of my landscapes and photographs – and a couple of my drawings. 

I think I may say that I have curated the collection of our Australian art for Yarraville, just as I had curated the art collection of an international law firm in a landmark building in Collins Street.  I did the former with help from two of Melbourne’s leading art dealers because I knew some selections would attract a reaction, and I wanted some cover. 

The works now at home, and the books about their creators, are as essential to the home as the library and music.  Two books that have come out recently – Nolan’s Africa and The Fred Williams Diaries – have changed the way I see each of those artists, and I am fortunate to have books about many other artists in my collection.  In the result, I will be able to leave to my grandchildren work signed by each of the following and a book written about the work of each: Blackman, Boyd, Coburn, Drendel, Emily, MacFarlane, Nolan, Perceval, Smart, Storrier, Thompson, Whitely and Williams.  (There is even one on the Japanese artist Yuta Okuda.)  Leafing through one or other of those is now routine when I  sit down at evening with a glass of red and the music of the moment.

Too few us realise just how well served we are by our artists in Australia.  I commonly leaf through an art book while listening to music.  How does Sonny Rollins go down with Nolan?  Fred Williams or Ann Thompson with Janacek?  Emily or Freddie Timms with a Beethoven quartet?  People like Emily, Boyd, Nolan, Smart and Storrier changed the way I see Australia and the world.  Our first Nations painters changed the way I see art.  These immensely gifted people give us a lyrical reflection of the human condition.  That is what I understand art to be about.  And you can turn it all on as you like it.

A wine cellar

At a wine-tasting course in Richmond (in Melbourne), the tutor asked us to taste wines and then take the mask off the bottle, and pass it round so that we idiots could compare notes.  One night we got a rare highlight.  ‘Did you say that this was a distinctive Hunter Valley Semillon?’  ‘Yes.  It is something they do so very well up there.’  ‘That’s curious.’  ‘Why do you say that?’  ‘Because the wine-maker thought it was a chardonnay.’  That left us idiots to grin at each other.  Another tutor sported what looked to be an expensively rouged nose.  ‘What would you choose to eat with this wine?’  ‘Why do you have to eat anything with it?’  ‘Madam – a woman after my own heart.’  I

We did some tastings at Oxford – for a fee that could not be characterised as inconsequential.  Two undergraduate types gave a spiel and made the awful mistake of making assumptions about the experience of the group.  My class included a gorgeous (female) psychiatrist from Paris, a London partner in a leading international accounting firm, and a Californian wine maker.  When we expressed a lack of enthusiasm for their samples, one of them told me I was looking for ‘new world’ wines.  ‘I could not give a bloody hoot where it comes from, Mate, as long as I can feel its strength on my palate.’  Or grumpy words to that effect.  I suspect that that response was regarded as very new world too.

Roger Scruton was an English philosopher who enjoyed fox hunting and wine.  He was conservative – more than that, he was a sane and articulate conservative who could speak in terms that the rest of us can follow.  That makes him a rarity among philosophers, if not conservatives.  (When Australians who regard themselves as conservatives – often falsely in my view – invoke Scruton, they conveniently forget that he was firmly committed to conserving the planet.  He wrote a book about how to be a green conservative.)

Scruton wrote a book about wine.  It begins as follows.

This book is not a guide to drinking wine, but a guide to thinking it.  It is a tribute to pleasure, by a devotee of happiness, and a defence of virtue by an escapee from vice.  Its argument is addressed to theists and atheists, to Christians, Jews, Hindus and Muslims, to every thinking person to whom the joy of meditation has not extinguished the pleasures of embodiment.  I have harsh words to say about the health fanatics, about the mad mullahs, who prefer taking offence to seeing another’s viewpoint.  But my purpose is to defend the opinion once attributed to Plato that ‘nothing more excellent or valuable than wine was ever granted by the gods to man’, and I am confident that all those who are offended by this innocent endeavour thereby give proof of their irrelevance.

Scruton quotes Jefferson as saying ‘wine is the only antidote to whiskey.’  He is an old-fashioned purist: ‘To assign points to a claret is like assigning points to symphonies – as though Beethoven’s 7^th, Tchaikovsky’s 6^th, Mozart’s 39^th and Bruckner’s 8^th all hovered between 90 and 95’.  Robert Parker did us no favour with this system – it reminds me of judging divers – but Australian critics have loyally gone along with it.

Scruton has trouble with our selling wine by reference to grape variety rather than place.  He says that the Wirra Wirra, in McLaren Vale, is one of ‘the oldest and most beautiful wineries in Australia and that its Grenache and Shiraz is a wine that tastes of Australia – so strong that it resembles a fortified wine, combining the guilty excesses of port with the playfulness of the Australian outback.’  ‘Playful’ is not a term I would use for the outback.  It is a gorgeous killer.  But I am very familiar with the reaction of Europeans to the strength of Australian wines.

We are blessed here with wines of all varieties.  Wine is, for better or worse, a part of my life.  And now I have survived to an age where it no longer matters so much that the science of modern medicine has taken a lot of the fun out of lying.

The War against Humanity

QANTAS

The last time I tried to get somewhere with Qantas on its Frequent Flyer program [about 2000], I had to retain my travel agent to act for me, not to enforce what we saw were my rights, but to get a modicum of sense and courtesy out of our national airline. I managed to negotiate a return trip to India. Part of the price was that I had to return [from Mumbai] by Singapore, Brisbane and Sydney. I would have happily paid the full fare to avoid the milk run. It was discomforting to fight off the crew seeking to get to the Exit seats, or to compare the service provided by ‘our own airline’ with the charm and courtesy – no, more, the dignity – shown on the Indian airlines in India.

That is as it was written in 2004, or thereabouts. What kind of business goes so far out of its way to antagonise its best supporters and drive them away?

It was about twenty years – a generation, say – before I got the courage to fly Qantas again. I could not bear the thought of the frightened rudeness of a distraught flak-catcher on the other end of the phone.

Since that was written, the House of Joyce has collapsed, due in large part to the pursuit of it by Rear Window in Australian Financial Review. I have never met Mr Joyce, but his image calls to mind remarks by a distinguished English historian about two of the leading figures in the French Revolution. The Reverend J M Thompson said that the hero of two worlds, Lafayette, was too priggish to work with a man of no moral reputation like Mirabeau, and ‘too conceited to abandon that glorious isolation in which, as Mirabeau told him, he lived “entirely surrounded by himself”.’

National Australia Bank

The following letters show why I left a bank that I and my mum and dad had banked with from time immemorial.

23 March 2012

Mr Cameron Clyne
Chief Executive Officer
National Australia Bank
Reply Paid 2870
MELBOURNE, VIC.  8060

Dear Mr Clyne

SALES TEAM D

You don’t know me. Neither do any of your employees. Since you have been my banker for 60 years, I think that that is very sad. Don’t you think that is very sad, Mr Clyne?

When I bought my present house, I was subjected to treatment by some of your operatives that in part caused me to write the attached paper on ‘The Decline of Courtesy and the Fall of Dignity’. You will see that your bank has the misfortune there to be compared to Telstra and Qantas. That is not good company to be in, Mr Clyne. The part that really got me was the threat – that is exactly what it was – to pull the pin – that was the phrase – on a bank cheque. Your staff could give a customer a heart attack threatening to do that to them on the day that they are settling on a house purchase. A bank threatening to renege on its own paper? It is hard to imagine a better example of how banks have lost their way – how once respectable business houses have now become unrespectable counting houses .

Being minded to move home, I thought I should confirm my leeway with your bank before making an offer. I drew Sales Team D in the lottery. I said I was happy to go to your Kyneton Branch and talk face to face, but, no, Sales Team D told me they were on top of my case.

Your staff can fill you in on the sad results, Mr Clyne. I had to prove my identity – at least twice. Sad after 60 years, is it not? The property I am looking at is worth under half of a city property that I can offer for security. The increase to the existing facility is modest. For any bank that knew me as its customer, and wanted to look after me, the proposed transaction would hardly raise a query. Not so with Sales Team D, Mr Clyne. I was required to produce tax returns, and then told I would have to surrender one credit card and submit to a reduction on the remainder. I began to feel for the people of Greece. Now, Sales Team D wants to go beyond the tax returns, and I now have two accountants wondering just what has got into Sales Team D.

How would you or your fellow directors like it if they were treated like this by someone they have been doing business with for ten minutes, let alone 60 years? In the course of more than 40 years’ legal practice, I have held various statutory appointments, including running the Taxation Division of the AAT, later VCAT for 18 years. Some people – including Her Majesty the Queen in right of the State of Victoria – therefore felt able to take me at my word. But not Sales Team D. Do you know why, Mr Clyne? My bank does not know who I am.

Perhaps they are worried about my recent expenditure on credit cards. Let me assure you, Mr Clyne, so was I. Very worried and very annoyed. I bought a CLK Mercedes about six months ago at a very good price. I just needed to extend a borrowing facility by six thousand to get the $26,000. I got handballed around four operatives, having to prove my identity along the way. I got referred to various teams. Most asked my occupation. (Sales Team D the other day asked if I was still a member of a firm I left about ten years ago and which ceased to exist the other day.) I was told my case was difficult because the facility was secured. Then I was asked to produce tax returns to support a request to extend a secured facility by six thousand dollars. That is when I gave up – and used the credit card to buy the Mercedes.

I do not blame any of the few employees you have left. They are trained – programmed – to be automated and not to think. They also know that the market, which can never be wrong, values their contribution to the bank at about one hundredth of yours.

Do you know what I think, Mr Clyne? George Orwell was wrong. It is not big government that is tearing up the fabric of our community by Big Brother – it is Big Money, and Big Corporations. I think that you and your fellow directors should be ashamed of yourselves.

If it matters, I hold shares in the bank, and I am not a happy shareholder either.

Yours sincerely

Geoffrey Gibson

*

3 April 2012

Mr Cameron Clyne
Chief Executive Officer
National Australia Bank
Reply Paid 2870
MELBOURNE, VIC, 8060.

Dear Mr Clyne,

SALES TEAM D

Well, they did it for you. Sales Team D – may we just call them STD for short? – stopped me from buying the new home that I wanted. It was not perfect – it was just ideal. Ideal for me, Mr Clyne. But, then, what is a mere home to someone like me to a great Australian banker?

How did STD manage to pull it off, you may ask, Mr Clyne? Quite simply really. They did not know me, and they did not know what they were doing. This all became sadly but inevitably apparent when a roaming STD cell-commandant opened his phone talk with me after my first letter to you with the gambit that my problem was that I had overstated my income. Really, Mr Clyne, your attack-dogs and flak-catchers would want to be on the highest level of dental insurance if they want to go around behaving like that. No wonder you forbid them to meet your customers in the flesh.

But I suppose that the Ads and FCs of STD kept you safe from my letter. You would prefer to stay like Achilles gleaming among his Myrmidons, except that you would not stay sulking in your tent – no, you would be glowing over all that lucre.

You and the people at STD are a real threat to business in this country, Mr Clyne. You should be helping the flow of capital. The big Australian banks are doing just the reverse.

And you should really stop those ads that tell the most dreadful lies. Lies like your people are free to make decisions, or that the big banks like competition. Nothing could be further from the truth, Mr Clyne. The people at STD know that they are forbidden to think, much less make decisions, and STD shut up shop completely, and have been in a surly sulk ever since I told them I was talking to another bank. (Although they did ring the other bank to inquire – without my consent – about what I was doing.) The major Australian banks are just a collusive cartel operating sheltered workshops that rely on the people of Australia to bail them out whenever they balls it up – and then they pass on their guilt and paranoia to those same people by refusing to lift a finger for their customers when they need a bank.

Those people do not hold your staff responsible for the shocking fall in the standards of our banks, Mr Clyne. They hold you and your like responsible. You do after all get paid about one hundred times as much as the folk of STD.

If you and your board step outside your cocoon of moolah, minders, and sycophants, you will not find one Australian – not one – that has a kind word for any of you. What all those people should do to the big banks is to take their business elsewhere. That is what I will do. You never know, Mr Clyne, I may meet a real person in the flesh, one who might know what they are doing, and who will even know who I am.

Yours sincerely,

Geoffrey Gibson

*

In accordance with procedures laid down, I got no response to either letter. Sold my shares in the bank. I concluded a post containing these letters with the following:

How did we let this happen? How did we come under the heel of people whom we would cross the street to avoid?

ASIC

The performance of the corporate regulator may be apparent from the correspondence below. Although an actual person, a real human being, surfaced, I have not included her name in this transcription. The regulator which polices business sought, through a robot, to penalise me by a fine of above $300 for being late with a $55 filing fee.

Dear ASIC

[References]

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,

*

Dear Madam

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[BS1] [BS2] . 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,

I have your letter of 13 December.

You refer to a number of legal issues, such as waiver. I do not know which laws you may have in mind. The discussion by the High Court in the Voyager Case was very long. In any event, this correspondence has lost whatever utility it may have had. I see that you now address the company at its new address so that that issue is closed also.

Happy new year.

As best as I could see or now recall, the corporate walloper at that stage threw in the towel. But I was wrong.

ATO

No sane Australian does their own tax return – least of all those who are otherwise qualified to do so. Very few are able to follow any of it. To quote Cicero, it is all Greek to me. And I am profoundly grateful that I can pay people to stand between me and Centrelink. Centrelink is ready willing and able to blow my mind. It is therefore vital that we are able to have sensible and obliging people respond when we are beset by the robots of government or business.

Then the Australian Taxation Office chucked a boulder into that duckpond. Because of a change in my accountant’s set-up, I had to change my tax agent for my super fund (Phaedo – a dialogue about death). Commsec holds all my super. Its robots said that Phaedo had been deregistered, and that they would transfer all its assets to ASIC unless I fixed it. Well – there was the first job for the new agent. Just write a letter or, possibly, fill in a form.

Not on your nelly. My new agent advised me that I would have to take four steps – the first two steps were linking myself to the fund via myGovID on my iPhone. I would not have to nominate him until step four. How many Australians over forty could do that?

After forty minutes of hard swearing, I gave up. And I had not reached the stage of matching photos. So I called on my son-in-law, whose job entails doing this kind of thing on-line, and after about half an hour, I was linked to my fund by means I did not understand.

Then I had an accountant call on me to complete the process. It took us about an hour – and we were relieved. All up, I was engaged about five hours. 

On notifying a change of agent to my government.

Finally, I got to a pleasant lady at ASIC who saw to the reinstatement of Phaedo. The ‘fees’ totalled about $1400. ASIC still held my old address – in spite of the events above. The pleasant lady sent the letter to my present address, but the robots said I had to change the address on the right form. This was the robots’ revenge for my refusal to act as filing clerk. They always get you in the end. After reinstatement of Phaedo by ASIC, I found they still had my old address.

I told them of the change years ago, but I must do so on a form.

I spent half an hour online and did not get far. The computer said I could not spell my own name. Rashly, I called ASIC on the phone. Stupid boy! I was told not to be abusive. Then I was told they were too busy to take my call. Then I read that the paper form was no longer available. Then I instructed my accountant to take over – again.

Somehow – we were not sure – we got through it. I hope.

What is it that drives or allows people whose wages I pay to torment me like this? What does this do to the Australians called on to inflict this torment? How do people fare when they live in an alternative universe?

And then ASIC got me again the following year. They sent emails requiring me to pay the annual renewal fee for the corporate trustee. The emails were ‘DO NOT REPLY’ and I could not work the system – to pay the bill! What kind of creditor makes it difficult or impossible for the debtor to pay the debt? Off to the accountant before I got struck off again. He enabled me to pay the ASIC fee. $65. His very reasonable fee was $385. This is for a government agency that polices how we do business in Australia.

Basil Fawlty was what we call a rank amateur.

The Adversarial Trial

3

Humanity

What is the role of the advocate in this fretful drama?

The first thing is to be aware of those simple facts of forensic life from the top of your head to the tips of your toes.  The only way that you can get this is by experience – long and hard experience; say about fifteen years in the trenches for starters.  You do not get this stuff out of books.

Then you have to start schooling the punter in those facts of life.  Before you do that, you need to get to know the punter.  To do that, you have to work hard, without being seen to do so, to put them at their ease.  This is very important, and you cannot duck this job by some prissy notion of your own elevation. 

We are not just talking about courtesy.  We are talking about your getting into the best position to represent this punter who trusts you and pays you to do just that.  I used to give the following advice to novices.

This is not just a matter of courtesy to your client – you have to spend time with your clients to understand them in order to prepare them for the trial, or for giving evidence, or to make a decision to settle, or so that you can assess how they might go in the witness box, or see if they can merely endure the stress of the conflict or the court.  You need insight into the client and frequently that insight will commence with sympathy.  In anything like a long or hard case, it will be necessary to fortify the client.  If you are so regimented that you have trouble relating to people or getting them to relate to you, have a look at the way Michael Parkinson goes about it.  Sometimes it is important just to shut up.  Some lawyers find this suppression of ego very hard, but our whole forensic process – and I may say a large part of our mediation process before the lawyers hijacked it – is founded on the value that we attach to letting people have their say.

I cannot stress this enough.  We too often do not do enough to ease the cold fear that the power and mystery of the law induces in people – including a lot of lawyers.  Remember that you are a specialist, and that as such you are ‘a worker in a craft too intricate for easy understanding’ and that ‘any such specialist, any such master of a mystery, is suspect to the ignorant’. 

Dealing with this takes skill, and that skill, too, only comes with experience.  And experience suggests that often it is enough for the punter to have their say before someone who actually listens to them.  And if things later go off the rails, and the judge misbehaves, the client might think that you were the only one ever to give them a decent hearing.

Just think what goes through your mind when you go the dentist.  This could bloody well hurt.  It will certainly be bloody expensive.  I have no idea what they are doing – or how or why; I can’t even see it.  I am completely in their power – I can’t even answer back!  At least if I go the doctor, I am sick, and she will fix it.  This is at best a routine service, and there are millions of other things I should be doing.  I will probably be kept waiting, and the chances are that I will be exposed to damnation by the glittering teeth of those smiling fiends on daytime TV. 

And multiply that by, say, ten for the misgivings of a punter going to see a lawyer.

You need to get the client at ease in order to get the whole story and to get it straight.  Young advocates will go through phases in their career where you get a brief the night before the trial, and after about two hours of hard talking, you and the client finally realise what the case will really turn on – the lawyers have not previously taken the time and trouble to dig down as deeply as this before.  You may have to have an eye on the law to know where to look, but you should otherwise not bother about the law until you are confident that you have a full grasp of the evidence that is available. 

It is not just knowing your brief – it is developing it.  And the same priority goes in the way that evidence is presented, and in the submissions made to the court on the findings that might be made on that evidence.  Indeed, you can carry that attitude – on the prime value of evidence – right up to the top appellate courts.  Some flash Harries think it is enough to be a juristic hot shot.  They are dead wrong.  Justice Jackson, of the US Supreme Court, gave this advice for appellate advocates, but it applies generally:

The purpose of a hearing is that a court may learn what it does not know, and it knows least about the facts.  It may sound paradoxical, but most contentions of law are won or lost on the facts.

Then, and only then, can you go to try to find the law and seek to give legal advice to the client by seeking to apply your conclusions on the law to what you believe might be the findings of fact made by the court – always bearing in mind, especially if your client is starting the contest, that you may have little or no idea of the evidence available to the other side. 

Don’t be afraid to say that you do not know the answer, or that you may have to look up the law or consult a colleague – many people feel some kind of elevation if they are told that their case is special.  Then you have to try to put your conclusions without jargon or condescension and in plain terms that the client can follow.  Can you talk to the client so that the client follows you?  You should give your advice plainly but in terms that you can put into writing – it is remarkable how large advice can greatly shrink when it gets into print.  You should try to avoid odds or percentages – they might suggest a capacity for measurement that is simply not there.

If going to court is an option, so many questions arise.  The first is that which was contained in the trains during the war: ‘Is this journey really necessary?’  Will you still feel this way later?  Will your client still respect you in the morning – or next year?  What if we prepare a writ, and just put it in the drawer for a while?  Is the other side worth suing?  Can they just run over us?  There is a world of difference between a widow suing a bank, and a bank suing a widow.  Will the costs dwarf the damages – as happens now in so many cases especially in defamation?

The permutations are infinite, on risk and costs, but if the person complaining of the wrong still wants to go to law, they will have to endure many different kinds of hardship.  One of the first judgments the lawyer must make – and it is a judgment – is whether the wronged victim – the client – has what it takes – physically and emotionally as well as financially – to step into a ring that routinely mauls or maddens or bankrupts those who are not up to this kind of licensed lottery. 

It terrifies me to speak to barristers who should know better who tell me that they will meet their client when I do – at the mediation.  It is shocking to launch people on litigation – at either end – without seeing them and assessing whether they have what it takes to go the distance and have been properly warned – and not just given some rote and tame disclaimer by some other lawyer who might have other views or needs about fighting cases or keeping the meter running.  If the victim is jittery or looks to be intimidated by going to a lawyer’s office, what will they be like in court – being cross-examined by Jeff Sher in front of Bill Crockett – while the press waits hungrily outside? 

Pretty much the same inquiry must be made on behalf of the person sued.  You need to get to know them, and to be able to assess their capacity for endurance.  You would not be soothed if the first time you met your surgeon was just before the operation, and she asked her assistant on what side of your brain lay the tumour that she was about to remove.

There’s no need to go overboard on the warnings.  Don’t scare someone off doing what looks reasonably to be in their best interests.  To the extent that there is democracy in discussions between lawyer and client, it can afford to be a guided democracy – very guided.  There are ways of helping people reach a sensible result, just as you will find weapons to prevent them from blowing their own brains out.

The Pursuit of Happiness

Essentials in life

If we are busy in a profession or business, or in raising a family or running a farm, we will most probably just get it badly wrong if we allow that fact to dominate our lives to the exclusion of other things we might do, not just to enjoy life, but to justify our existence and have something to leave to those who come after us.  Some things in life have been fundamental to me.  I regard them as essential.  What might be classified as ‘diversions’ can be dealt with later.

People like me are so fortunate to have been born when and where we were.  People who happen to get on in a profession or business, and make something of their lives while making a living, are even more fortunate.  It does I think help if you have got your hands dirty or had your nose rubbed into it on the way up.  That way, you are better placed to recall just how supremely lucky and blessed you are – preferably every day.  We saw above the remark of Mommsen about people who labour just to pay the bills.

As ever, we don’t need to get bogged down in or misled by labels.  Like ‘leisure’.  Or ‘drama’.  Sometimes we revel in drama.  Other times it’s the last thing we need.  For ‘drama’, the Compact Oxford English Dictionary offers the ultra-prosaic ‘an exciting series of events.’  We might hope for drama in a World Cup Final.  In giving birth or burying a member of the family, it’s the last thing that we look for.  We might enjoy the drama – the excitement – of pulling something tricky off in our profession or business, but the theatre is not the only place where we go for drama outside of working hours. 

Put differently, we might experience ‘theatre’ in a different arena to a building in the West End or Broadway.  We might feel some sense of drama if not theatre in a sporting arena, a concert hall, an epic poem, a classic of historical writing, a lecture theatre, a law court, a restaurant, a surgery, or a mountain top at dawn or dusk – or the Iguazu Falls, the Grand Canyon or the Bungle Bungles – or a loved one – a dog, say – getting close.  We don’t need or want to be imprisoned behind the bars of categories made by other people which can look arbitrary, or petty, if not downright perverse. 

We especially don’t need to get put off by labels like ‘highbrow’ or ‘lowbrow.’  If you prefer dogs to cats, Elvis to Mozart, footy to opera, that’s fine.  Whether you are either a player or spectator, sport can offer high drama in a form of theatre.  One difference between football and cricket and Hamlet and La Traviata, is that the sport is played for real, no one knows how it might end, and it often involves, for better or worse, a more active form of communion from people in the community. 

It is fine leaving the opera house after a wonderful performance of Figaro.  It is altogether a different thing to leave the Melbourne Cricket Ground after Collingwood has beaten Melbourne in the footy, or Australia has beaten England in the Ashes.  We are speaking of different worlds that do not bear any comparison.  You might as well ask if Jonas Kaufman is as good as Pat Cummins, or if Ash Barty is as good as Anne-Sophie Mutter. 

For people who know neither God nor the traditional theatre, sport may be the only version of theatre in town.  And when it is put on as well as it is in the city of Melbourne, it defines the sense of community in that city.  You can just about taste it in the air on Boxing Day, the Australian Open, the Grand Prix, Grand Final Day, or Melbourne Cup Day.  It is hard to think of any other city that comes close.  And it is vital for any city to foster that sense of community and belonging across the city.  A city is just community writ large.

We might reflect further on the ‘drama’ involved in the arena and in the theatre.  Humanity has sought release or relief in each from before the beginning of written history.  Our fascination with the sporting arena goes back well beyond the ancients.  They went in for all sorts of games.  In introducing the subject of racing, Edward Gibbon invited his readers to go back to Homer – about, say, 800BCE.  ‘Read and feel the twenty-third book of the Iliad, a living picture of manners, passions, and the whole form and spirit of the chariot race.’  (The Greeks did take racing seriously.  Menelaus, who had form for sulking, told a competitor ‘You’re the most appalling driver in the world’.  Well, that is the prosaic Penguin translation.)

If we move forward about 1200 years to Constantinople under Justinian, there is one big change – the Greeks drove their own chariots; the Romans were spectators, while professionals drove for them.  It is rather like the distinction between gentlemen and players in English cricket – or the Mille Miglia in Italy (which sported lady drivers about a century ahead of its time.).  And the infamous tribal conflict between the ‘blues’ and the ‘greens’ in Byzantine Constantinople created civil strife that bordered on civil war.

Every law, either human or divine, was trampled underfoot; and as long as the party was successful, its deluded followers appeared careless of private distress or public calamity.  The licence, without the freedom, of democracy, was revived at Antioch and Constantinople, and the support of faction became necessary to every candidate for civil or ecclesiastical honours.

It all makes our Blues v Maroons or the UEFA Cup Final look very tame, indeed.

It is sad that some people on either side of the divide between theatre and sport look askance at the others.  Both involve people in the community coming together in pursuit of happiness and an element of ritual that each side finds pleasing.  It is at best idle and at worst presumptuous to purport to measure the talent or skill or courage involved in the several forms of endeavour.  Each has its own champions, myths and lore.  And each serves purposes far above what Marx sniffily called the ‘opium of the masses.’ 

It is hard to avoid the notion of snobbery when looking at how those going to hear Wagner turn their noses up at those going to the footy – which is also the case when rugby followers are candid in their views about rugby league.  For that matter, there is little other than snobbery involved in those who go to hear Cosi fan tutte looking down on those who prefer Phantom of the Opera.  Or even Puccini.  Or Taylor Swift.

So, I will start with a field where the snobbery is more muted.

Writing and history

After about a year or so at Law School, it looked to me that the law course was not all that demanding, and that I could seek to improve my education by reading legal biographies and legal history, while coming to grips with the great novelists of France and Russia – and continuing to learn in both history and philosophy.  The way for me to get into a new area – like fly fishing, or red wine, or Formula I – is to read about those who made it.  (I recently undertook a similar exercise in a fad for vintage watches.)

When I started at the Bar and read with Daryl Dawson (later a justice of the High Court), he was a subscriber to the Mary Martin Book Club.  (‘Reading’ at the Bar involves sitting in the chambers of a barrister for six months so that you can try to learn from someone on the spot – it bears some resemblance to a live-in apprenticeship.) 

Mary Martin was a good source of books based in Adelaide.  This would become part of a kind of disease, from which I still suffer, of becoming an insatiable book buyer.  I would go on to amass a huge law library in the faith that it might be a good basis of investment.  I had a collection that was marvelled at and which gave me great assurance and pleasure.  But the computers would end all that – and create endless hazards of minefields of precedents and inducements to very average lawyers to lay out their ambitions on the World Wide Web – just one of many ill effects of that revolution. 

About the first book I got from Mary Martin was one by Somerset Maugham, Ten Famous Novels and their Authors – big hitters like Tolstoy, Balzac, Dickens and Melville.  I was horrified to see that I had not read one of the ten novels. 

I used to collect the great classics to read on vacations.  I was usually working at least six and a half days a week and most nights, so the great novels and histories were laid up for vacation.  (I insisted on five weeks off in summer and two in winter – at a time when I could and did put all work out of my reach for the whole of the vacation.  Email was unheard of.)  I made it my business to read the great novels – the big ones – at least two or three times.  They all become old friends – like favourite movies or operas. 

But I also tried to stay in touch with our writers – I have a hard-back of each novel of Patrick White, and I have read most of them twice, and Riders in the Chariot three times. 

The great novels for me are like history, philosophy, and theatre – they are utterly indispensable.  I do not entirely jest when I say that I read history for entertainment, and the great novels to see what makes the world tick.  It saddens me greatly that so many go through life without sharing treasure that is way beyond measure and without which I would be so much worse off.

Books have filled my life – reading them, and for the last thirty years, writing them.  Six of my books have been published in print.  They all dealt with the law, or how to think and write about the law.  Those that are published on Amazon/Kindle are mainly about history, philosophy, and literature.  Their number is embarrassingly high – north of thirty.  (To those who have trouble breaking into permanent print in Australia, the publishing scene can look both timid and incestuous.) 

While I was at the Bar for the first stint, I developed a very respectable library on legal history and a big collection of legal biography.  For a long time now, my reading has been divided about half and half between literature, mainly the novel, and non-fiction, mainly history and biography. 

The three most famous novels are, I think, Don Quixote, War and Peace, and Ulysses.  I have read each of those at least three times.  I have read all the major novels of the big hitters like Stendhal, Jane Austen, Balzac, Hugo, Flaubert, Dickens, Turgenev, Dostoevsky, Tolstoy, Melville, Joyce, Orwel,l and Greene. 

What has had more effect on me – the novel or history?  I don’t know.  If pressed to answer, I would probably say that history is in the end more fundamental to my intellectual engine room.  After all, the law is in large part just an extended lesson in history, and for the most part we should be talking about something real. 

I respect all good writers, because I have an idea of what is involved, but I have a special kind of reverence for the great writers on history and jurisprudence.  In addition to their talent for writing, they have the mantle of scholarship, and high learning is something greatly to be admired and valued.  For example, I look on people like Maitland, Holmes, Namier, and Bloch with something like awe.  Tina Turner was dead wrong – we need all the heroes we can get.  And learning that is well acquired might even bring wisdom.  And that is a proper object of reverence. 

As we will see, I have now written four books, each about fifty great books or subjects – a total of two hundred such subjects spread over four books.  Each volume is either in leather (at least in part) or slipcased, and about half have been rebound by my bookbinder, Helen Williams.  It has been a long and expensive process, but the final product represents the crown jewels of the house.  If nothing else, the four master volumes would be ideal for a long-haul flight to London. 

The great historians exert a great pull over the whole of the collection.  In order of appearance, including the jurists, they are: Carlyle, Thucydides, Macaulay, Bloch, Gibbon, Maitland, Namier, Tacitus, Mommsen, Hughes, Geyl, Manning Clark, Clausewitz, Burkhardt, Thompson (J M), Bury, Strachey, Bullock, Dixon, Huizinga, Lefebvre, Tawney, Lawrence, Holmes, Galbraith, Pound, Blainey, Armstrong (Karen), Maine, Maurois, Berlin, Holmes, Pirenne, Plutarch, MacCulloch, Reed, Haffner, Johnson, Pater and McCullough.  None of those is there under false pretences.  Each warranted an essay on what that author means to me. 

Carlyle, Gibbon and Macaulay obviously stand out for the fame of their styles.  I keep going back to them – The French Revolution of Carlyle at least nine times.  For me, it’s like putting your feet up before the fire with a Verdi opera and a good bottle of red. 

If I had to name five other writers on history who have supplied me with essential intellectual furniture, they might be Bloch, Holmes, Maitland, Namier and Pound.  Each of them by force of intellect and industry has earned the right to make large statements that command respect.  I would also make special mention of some other European historians like Geyl, Huizinga, Lefebvre, Mommsen and Pirenne – representing Holland, France and Germany. 

The teaching of history at Cambridge and Oxford may be a little too restricted and specialised at times.  Lawyers are used to comparing cases and stories.  For example, you can make a lot more sense out of what is called the French Revolution if you are properly familiar with the experience in England, America and Russia.  And you learn so much more from history when the story is well told.

My fixation on Runnymede – where the barons got King John to acknowledge the Great Charter, Magna Carta, in 1215 – seems to get stronger with time.  Sometimes I cross the Campaspe River and I wonder – I experience some kind of fantasy – about whether somehow its waters may have flowed down from Runnymede.  They certainly have done so metaphorically for me. 

There are times when I look at that portrait of Lord Mansfield that is held in the Athenaeum in Boston when I wonder if anyone has ever better captured authority, or what the Romans called gravitas or auctoritas.  That’s the thing about our laws – they are what might be called works in progress going back to the time that the Angles and Saxons walked out of the forests of Germany and crossed the water to the land that would be called England after one of their tribes. 

For our native predecessors here in this big land, the history – the dreamtime – is sixty thousand or so years longer.  Either way, there is an element of mystery or alchemy.  And that is so very precious. 

And if you look up at the heavens, the mystery becomes incomprehensibly vaster.  As wee saw, Kant said two things filled him with wonder – the starry heavens above and the moral law within.  He of course made his own contribution to history and what we know as the Enlightenment.  Even after the French Revolution, which he saluted, history sat lightly on him.  Kant held that that we should all have our own dignity simply because of our humanity.  That, as I have said, is enough bedrock for me to support morality. 

Some lines from history keep coming back to me.  Sir Lewis Namier: ‘Restraint, coupled with the tolerance which it implies and with plain human kindness, is much more valuable in politics than ideas which are ahead of their time; but restraint was a quality in which the eighteenth-century Englishman was as deficient as most other nations are even now.’  What other historian has spoken to us of ‘plain human kindness’? 

F W Maitland comes down to me as a kind of saint.  ‘The only direct utility of legal history (I say nothing of its thrilling interest) lies in the lesson that each generation has an enormous power of shaping its own law.  I don’t think that the study of legal history should make men fatalists; I doubt it should make them conservatives.  I am sure it would free them from superstitions and teach them that they have free hands.’ 

Ranke was famous for another epigram.  Every age is ‘equally immediate to God.’  It is an insight into the eye of eternity – all ages are equal in the eye of God.  God is not subject to the constraints of time as we are.  The historian has to look at each period in its own terms. 

Another great German historian, Mommsen, was, like Shakespeare and Mozart, a master of the great throwaway lines.  About Gaius Gracchus: ‘On the very threshold of his despotism, he was confronted by the fatal dilemma, moral and political, that the same man had at one and the same time to hold his ground as a captain of robbers, and to lead the state as its first citizen – a dilemma to which Pericles, Caesar and Napoleon had to make dangerous sacrifices.’  That is word perfect. 

Burkhardt, the Swiss patrician, could be lethal about Italian arrogance in the Renaissance: ‘Amid all these preparations outwardly to win and secure fame, the curtain is now and then drawn aside, and we see with frightful evidence a boundless ambition and thirst after greatness, regardless of all means and consequences…In more than one remarkable and dreadful undertaking, the motive assigned by serious writers is the burning desire to achieve something great and memorable.  This motive is not a mere extreme case of ordinary vanity, but something demonic, involving a surrender of the will, the use of any means, however atrocious, and even an indifference to success itself.’  That for me is the shocking David of Michelangelo. 

Hippolyte Taine negated and reversed Michelet’s love of le peuple.  He called Danton ‘another second-rate lawyer’ and let another champion of the people have it with both barrels: ‘At the mere sight of Marat, filthy and slovenly, with his livid frog-like face, round, gleaming and fixed eyeballs, bold maniacal stare and steady monotonous rage, common sense rebels; people do not accept for their guide a homicidal bedlamite.’  The supreme charm of French historians is that you are never left wondering where they come from.  

What about this costume drama from Carlyle about the botched attempt of the royal family to flee Paris and the Revolution?  ‘But where is the Lady that stood aside in gypsy hat, and touched the wheel-spoke with her badine?  O Reader, that Lady…was the Queen of France!  Flurried by the rattle and rencounter, she took the right hand, not the left; neither she nor her Courier knows Paris…They are off, quite wrong, over the Pont Royal and River; roaming disconsolate in the Rue de Bac; far from the Glass-coachman, who still waits.’ 

So what?  I have read everything I can about these events, and Carlyle is the only one to mention this delay.  That delay might very well have been the reason that Louis XVI just failed to escape out of France to royal powers that would have given him the army to return and reclaim his throne.  The whole course of world history could have been so different had not a one-time German princess now French queen known much less about Paris street directions than I do.  Are we all just toys for God? 

But back to the law.  In The Game of the Law, Justice Cardozo said: ‘Skill is not won by chance.  Growth is not the sport of circumstance.  Skill comes by training; and training, persistent and unceasing, is transmuted into habit.  The reaction is adjusted ever to the action.  What goes out as effort comes back as character.  The alchemy never fails.’  As I said, I used to think that kind of stuff about ‘alchemy’ was moonshine, but I don’t now.  And perhaps my favourite quote from the long history of our law is the question of the Boston attorney for the U S Army to Senator McCarthy: ‘You’ve done enough.  Have you no sense of decency, sir, at long last?  Have you left no sense of decency?’  It is a line most lawyers would die for.  It never fails to lift my spirits

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