At first on advice, but then on instinct and experience, I have kept my head down on the war in Palestine.  If you don’t, you are liable to get your head shot off, by either side.  Louise Adler had a note in The Age on Saturday which was met with the usual response from the usual suspects.  One passage prompts two reflections.  ‘…. peace cannot be premised on the subjugation of a people.  Violence only returns.’

The first is obvious; the second is elemental and instinctive. 

Sparta, Athens, Rome and England learned the first.  So has every other aspiring emperor.  It is now the turn of Russia.  The most obvious example occurred after the most brutal war in history.  The attempt to subjugate the German people by the Treaty of Versailles led ineluctably to a war that was even more gruesome.  It was only left to Keynes to say why and for Hitler to say how.

Humanity has been reluctant to leave revenge to the law, much less to God.  The problem is canvassed in the Oresteia and Hamlet and so much more.  It is just a fact of life that violence begets violence.

Any community, of people or nations, depends on people showing tolerance and restraint.  Violence tests our subscription to that rule. 

As it seems to me, there is an unstated premise to so much of what is said on both sides in this current conflict.  That is that it is in order for me to treat you as being somehow different because you come from a different tribe or subscribe to a different faith.  That premise contradicts the Enlightenment view of civilisation which says that each of us has our own worth or dignity merely because we are human.  It also banishes tolerance and restraint.

I do not believe in original sin – or any religion – but if I did, the above would for me be its source.  Because of what my ancestors did, or what others did to my ancestors, I should be treated differently.  The same goes for you.  That state of mind inevitably breeds conflict.  And even it is based on an inarticulate premise – that I have the right to judge others and act toward them based on that judgment.

And I see no relief from any of this.  It look so be part of our doom as human beings.  One that does not afflict gorillas.

We saw that King John scuttled off to the Vatican to get Magna Carta annulled – and to pawn his whole realm.  That is an annihilation of sovereignty, rather than a mere incursion.  You can still detect something like a purr of recognition in an English audience to Shakespeare’s play when King John tells the papal legate ‘from the mouth of England’ that no ‘Italian priest’ shall collect revenue ‘in our dominions’.  He goes on to refer to our ‘great supremacy’ – a word we will come back to.

The issue blew up fatally under Henry II when Beckett sought to shield his priests from the ordinary law of the land.  Here was another challenge to the authority of the English crown – a dint in its story that would enrage Henry VIII – and would be unthinkable today.

If we then move forward to the sixteenth century, we are at the end of that phase of history called the Middle Ages.  The advisers consulted by the crown are now meeting in what we call a parliament.  Its growth is fragmented, and, as ever, unplanned, but it is beginning to resemble the parliament we know today.  By the reign of Elizabeth, it can cause real trouble to the crown.  The jostle for power has begun.

The time of feudalism is about spent.  Under that system, the standing of people in the community would be determined by a convoluted system of ranking of a kind that people would later see in the civil service of India or Prussia.   Too much of it was fixed from birth.  We are moving to what is called the modern phase of history, where your standing was determined by your efforts and what you could negotiate. 

In other words, we are seeing what Sir Henry Maine called the movement from ‘status to contract’.  That statement may be large – large enough to be one of those that I suspect made Maitland nervous – but it is a very useful prism when we come to look at what we like to call ‘progress’.  Indeed, one reason the common law judges were slow to give legal effect to an agreement between parties may have been that they thought they would be giving people the power to make their own law.  The French Code says in terms that ‘Contracts legally made have the force of law between those who have made them.’

There is another movement that we can observe.  Kant said that enlightenment was our emergence from our self-incurred immaturity.  ‘Immaturity is the inability to use one’s own understanding without the guidance of another’ – the problem, Kant said, was not a lack of understanding, but a lack of resolution and courage to use it without help from someone else.  That is a riveting insight – that bears directly on our professional conduct today and the failures of our courts. 

It also underlies what we know as the Protestant revolt or Reformation.  As nations matured, their peoples did not just seek to reduce the place of the supernatural, or magic, in their lives – they wanted to reduce the role of the middle man, the priest.  They were coming to the view that the church might be causing more trouble than it was worth.  In medieval Europe, there were three groups – those who fought, those who worked, and those who prayed.  Well, that does sound very medieval – and one group was ready to take a hit.

The protest of Luther was about faith and the church.  The English revolt had next to nothing to do with either.  Putting Harry’s errant carnality to one side, the issue was not merely political, but constitutional.  The Tudors emerged from the splintering of the nation that came with the Wars of the Roses.  The paramount duty of the crown was to secure the succession.  Because of a conflict of interests, the pope could not accommodate the English king.  So, the English broke away.

They did so not by royal proclamation, but by a series of acts of parliament.  By doing that, the crown tacitly acknowledged that ultimately sovereignty in England rested in the crown in parliament – or at least, that is what the parliament and its champions could argue. 

Here was a real accretion of power.  Among other things, the title of the crown, and the government of the church, all derived from the parliament.  The church became in substance a department of state.  The crown was at the head of both, and by and large the Anglican church has behaved itself since, and not caused trouble to the crown or the nation.

There was an Act of Supremacy.  It followed an act that had a recital of complacent self-satisfaction that Jefferson would later mimic – ‘Where, by diverse sundry old authentic histories and chronicles, it is manifestly declared and expressed that this realm of England is an empire….’  It’s like Magna Carta.  ‘Nothing much going on here, Officer – just a spot of cleaning up some odds and ends with those clerical wallahs.’

Here, then, was a declaration of independence.  Fine – but what did it have to do with the law? 

Well, the English had to defend it against a Spanish invasion.  The soldiers of the Vatican would certainly have burnt Elizabeth at the stake as a heretic; would-be assassins had already been offered Paradise.  After that speech at Tilbury from their queen, England was about to flower as a nation.

In the next century, the English would finally come to terms with their king.  But now they had dealt with God and his church.  After they had fixed things with their king, they could turn their full attention to the aristocracy. 

In 1789, the French blew up all three at once, and they have still not recovered from the explosion.  The Russian experience hardly bears mention – and we are about to face another problem with them as a result.  People of the cloth have wrought misery on their flocks in places like Greece, Italy, Spain and Russia.  The Americans erected solid barriers under their constitution, and they are now being torn apart by illiterate devotees of a faith perverted by mammon, and people who prefer fiction to fact.

The Anglican vicar, then, comes down to us now as quite a relief.

If you were born in Australia in 1945, as I was, you were likely to have put in front of you, when you could read, books about the war.  When mum’s parents joined the Herald-Sun Book Club, it was full of titles like The Dambusters, Boldness Be My Friend, and Two Eggs on My Plate.  Perhaps the best known was The Cruel Sea – especially after the launch of the film with a cast led by Jack Hawkins. 

The author was a natural and most graceful writer.  During the war, he had served in and commanded the kind of ships dealt with in the book – the smaller naval vessels that accompanied convoys on the Western Approaches by attacking German U-boats with depth-charges.  The Germans could by attacking Britain’s supply lines have forced it to sur for peace.  Gradually, the British navy got on top, but, like Waterloo, it was a damned close-run thing.  Monsarrat’s knowledge of all this comes through on every page, but he is just as much at home in discussing the private lives of the sailors.  The result is a wonderful and moving classic of the genre.

The novel covers the whole duration of the war.  It centres on two ships, a corvette, HMS Compass Rose, and a frigate, HMS Saltash, and two officers, Ericson and Lockhart.  We go through the commissioning of both ships and the training of their crews before they go into action.  Ericson is the senior officer and a professional seaman.  Lockhart is a journalist and Ferraby, the other sub-lieutenant, is a bank clerk. 

Their characters are very different – and so is their performance.  At the start, they have to put up with a dreadful first lieutenant, who is Australian, and it is a mercy when they lose him.  (To return to Oz and, as we later hear, bullshit about his experiences.)  Lockhart becomes Number One on each ship, and is in many ways the central character.  He and Ericson are very close, while still observing the discipline of rank.  They are joined by Morell, who is a barrister, married to a very attractive actress.  Ericson is the very model of the captain of a warship in wartime.  He is fully supported by his wife – but not by her mother.  He has a son at risk in the merchant navy.  When Saltash comes in, we meet new officers.

All the time, we are learning of the traditions and customs of the Royal Navy.  That is an institution that has been vital to the nation and its people since well before Trafalgar.  (We learn that Lockhart idolises Nelson and can quote him at will – something he must have picked up before he signed up.)  So we learn all this as they go – and we go.  It is utterly engrossing, because the writer is so obviously at home with his theme and his craft.  The whole book is imbued with a sense of dedication to all those who served, especially those who did not make it back.

There are scenes that stay in our minds – in my case for about sixty years.  After a very hard convoy, Compass Rose returns to Liverpool which is still smoking after nights of heavy bombing.  Two ratings in uniform turn the corner to see if the house of the sister of one of them is still standing.  On a later run, Ericson has to decide whether he should run over his own countrymen in order to pursue a U-boat.  No man or woman should ever be put in that position – but you could say that about almost anything that happens in this dreadful war which calls to mind life and death in the trenches at the Somme.

 Some men crack, and some wives play up – the two may be related.  Lockhart falls madly in love with the belle of the Wrens, and she reciprocates it – presumably to the sadness of many sailors  There is a Don Quixote sequence of the grotesque horrors of the war, and the sequence dealing with life and death after Compass Rose is torpedoed contains writing that is as strong as that left to us by the great Russian novelists.

The cast of characters is delicious.  When the officers are introduced in the ward-room of Saltash, one causes a pause when he (Holt) announces that he went to Eton.  The Australian – ‘Guns’ – who is, thank heaven, nothing like the first one, decides to take the Etonian on and asks him if he was taught about Australia.  ‘Well, yes.  Convicts and rabbits.’  Holt has the hots for the Wren whom Lockhart will fall for.  Things may be a little different below decks.  Stoker Evans has been putting it about to excess.  It all catches up with him when his ship is torpedoed.

But he could guess what could happen now.  The wives would combine against the other women, and rout them; they would then combine again, this time against him, in the dock for seduction, in prison for debt, in jail for bigamy: he could imagine no future that was not black and complicated, and no way out of it, of any sort….It seemed to him, in a moment of insight, that he had had a good run – too good a run to continue indefinitely – and that the moment had come for him to pay for it.  If he did not pay for it now – in the darkness, in the cold oily water in private – then he would have to meet a much harsher reckoning when he got home.

That is how this writer links what happens at sea in the war to what goes on at home.  It is wonderful writing – as much like a play or opera as a novel.

Here is how the author sums up near the end.

….no quiet end could obscure the triumph and pride inherent in this victory, with its huge cost – 30,000 seamen killed, 3000 ships sent to the bottom in this one ocean – and its huge toll of 780 U-boats sunk, to even the balance.

It would live in history, because of its length and unremitting ferocity: it would live in men’s minds for what it did to themselves and to their friends, and to the ships they often loved.  Above all, it would live in naval tradition and become a legend, because of its crucial service to an island at war, its price in sailors’ lives, and its golden prize – the uncut life-line to the sustaining outer world.

In truth, this book shows how England (Great Britain, I should say)  won the war – through the grim determination of its fighters and the true grit of its people at home.  This memorial is for me as good a read as any book in this two hundred book collection.

Following the events described in previous posts, I sent the letter below to the Victorian Attorney-General with a copy to the Supreme Court.  Curiously, the day after, VMIA through its lawyers offered to indemnify me in accordance with the policy.

Dear Attorney-General,

VMIA and VCAT

I am writing to you by email in order to bring to the attention of the first Law Officer of this state issues relating to the administration of justice in this state.

They relate to the events referred to in the note that follows under this letter below.  That material has been posted on my website, and it is included in the attached book The War Against Humanity which I will shortly submit for publication.

I have set out my complaints about the breakdown – that is what it is – of two government agencies.  ‘One dying government agency colludes with another to maim the system.’

That is bad enough.  Two things make it worse.

First, for a good part of thirty years in my service to Her Majesty, I devoted a lot of time and energy on two tribunals – including about eighteen on the AAT or VCAT presiding over the Taxation Division – doing all that was necessary to avoid the abyss into which VCAT has now fallen.  I cannot recall a case where a matter referred to me was not dealt with in under six weeks.  (And that was also the case with a major and sensitive public inquiry into gaming.)  Now after six months, I am still waiting for VCAT to say if and when something might happen, and for VMIA or its panel law firm to say it is ready to discuss the dispute.  I am not even clear what the dispute is.

Secondly, for the reasons given, these failings affect the Supreme Court.  The legislature makes a law that makes a member of the judiciary the person responsible for the management of the Tribunal.  That is to say, parliament passes an act that makes the judiciary responsible for an organ of the executive.  Then the executive – the government – makes it impossible for the Tribunal to operate as it should by denying it the funds and resources it needs in order to operate responsibly.  The first was a mistake.  The second is a calamity.

It is obvious that these issues go to the heart of the administration of justice in this state.  Very many Victorians are suffering badly from a persistent failure of governments of both sides to honour the first precept of Magna Carta.  They have denied justice by delaying it.

Because the issue involves the Supreme Court, I will send their Honours a copy of this letter.

May I ask for the considered response of my government to my grievances? 

I would be glad to discuss them face to face.

Yours truly

Geoffrey Gibson,

6/46 Fehon St,

Yarraville, 3013

O427156583

5 September, 2024

Addendum to letter

Two failed government entities

VCAT is a Victorian tribunal that reviews administrative decisions  of Victorian government agencies.  I presided over its Taxation Division for 18 years.  VMIA is a government insurance body.  Its decisions are subject to review by VCAT.  I set out blow a post I put out about my dealings  with them.

A failure of government, not just governance

This bleak tale is about the death of government.

I am 78, in indifferent health – lung cancer in remission, and incurable emphysema.  If it matters, I am a retired lawyer on a part pension who presided over statutory tribunals on a sessional basis for thirty of my fifty years in the law – and got sacked from both.

Recently, I made my final move, to Yarraville, to be close to my daughter and a base hospital.  Then I discovered an issue in rising damp in my swish recently built apartments, and that the whole block was riddled with the problem – to the extent that the government insurer, VMIA, just cannot keep up.

The builder is broke and should be behind bars.  The rectification will cost more than $90,000 – eight times what I paid for my first house. 

I lodged a claim with the government insurer.  Or I thought I did.  The VMIA robots had other ideas.

Dear Geoffrey Gibson

This email is to inform you that your claim 00043068 is currently in the status of DRAFT and has not been submitted. The Draft 00043068 will be automatically closed if you do not submit it within five days of this email….

That missive landed on 25 December.  Happy Christmas, Citizen Geoffrey. 

Then VMIA rejected my claim on grounds that my lawyers say are unsustainable, for reasons given in VCAT precedents. 

I issued proceedings there very reluctantly, because delay is a byword – not just months, but years.  They are even more financially crippled than VMIA, whose name is now notorious among the many thousands of victims of shysters.

So I said that we should meet to discuss settlement, and set out my legal advice.  Six months later, I still await a response – from a government agency that I fund that is supposed to be a ‘model litigant’.  I am getting the usual runaround from lawyers.  There are many claims on VMIA on this bombsite, but it appoints lawyers randomly – one hand does not know what the other does.  Now, my local MP, after strenuous endeavour, says that the Minister cannot intervene.

That being so, I may have to take out a reverse mortgage, and possibly bequeath a Bleak House law suit to my daughter.

So much for thirty years’ service to my government.

I have three complaints.  Government has failed to enforce its building regulations, or adequately to fund and staff VMIA.  Above all, it has let VCAT become a waste-land.  These failures have nothing to do with party politics.

The VCAT collapse is dreadful.  Denying justice is the ultimate failure.  There is a simple enough remedy.  Appoint a dozen or so barristers of ten years standing on a sessional basis with instructions to resolve all disputes within six weeks of filing.  It takes some effort and experience, but I managed it for thirty years – and with very tricky cases.  (My little case could take a morning – if someone says what the point is.)

The whole point of the profession is to get people through the wounding roundabout as soon as practicable.  Justice delayed is justice denied.

It gets worse.  VCAT is not a judicial body.  This tribunal is part of the executive – and it has therefore been shredded like most of our civil service.  Its members lack the constitutional protection that judges have.

But it has a Supreme Court judge as its President.  And its statute says that the President and Vice Presidents are ‘to direct the business of the Tribunal’ and ‘are responsible for the management of the administrative affairs of the Tribunal.’  

A judge is therefore running part of the civil service.  So much for the separation of powers.  The irony is that after killing off responsible government under the Westminster System, government has chosen to make a judge responsible for directing civil servants.

Judges may be driven to act, or precluded from acting, by ‘government policy.’  That is anathema.  I should know.  When permanent members, whose job was threatened, usurped my role as head the Taxation Division, after its first eighteen years, the then President, to the horror of Treasury, said that ‘government policy’ stopped him from intervening.  No judge should ever be put in that position.  The whole process was fraught.  Good advisers stopped me from suing – but it still smoulders, woundingly.

VCAT is a festering failure.  The scandal now is public.  A superior justice is obliged to preside over a sustained denial of justice.

I set out these misgivings in a book, The Making of a Lawyer, 2008.  I said that judges who have to play a part in politics will do it badly and will debase their currency.  The result?  Rien.

We Victorians are paying a dreadful price for the attrition of the civil service by both parties over two generations.  VMIA and VCAT just stand mute like Easter Island statues.  One dying government agency colludes with another to maim the system.  The government of the State of Victoria looks to be broken – juristically,  financially, and morally.

Welcome to the Kingdom of Nothingness.

In March, I put out a note on Macbeth.  In listening to it again the other night, I jotted the following four notes in my Commonplace Book.

Its structure reminds me of Tosca or La Bohème.  It crests in a way that the text cannot recover.  At about 3.4.  (I see I had made a similar remark before.)

Banquo and Brutus have something in common.  They are too decent to succeed in the politics of blood.

The fascination lies in the comparative graphs of the psychopathy of Macbeth and his wife.  Her dissolution may be more ‘tragic’ – a fraught term – than the Richard III-like descent of Macbeth.  In the argot of our time, she could talk the talk, but not walk the walk.  Macbeth will go down like Don Giovanni.

As in other tragedies of this playwright, the poetry is so riveting that it is more like an opera than a straight play in the theatre.

In light of the behaviour of Bendigo Bank about scamming, I decided to switch to the Commonwealth Bank – in which I also hold shares.  (You may recall that I had previously written off NAB.)  This led to further, and in some sense, worse unhappiness.  

 I had been a customer of the Commonwealth Bank through the CDIA account of my self-managed superfund for more than 10 years.  Commsec, which is owned by the bank, operates the shareholdings, and the CDIA account handles the cash. The Commonwealth Bank therefore knows all there is to know about my super – including the pension I receive from it.  It was about to begin to receive  my C’th pension.

When I first went to the Williamstown branch, I took my home Certificate of Title.  There is no mortgage .  I was told they did not need to see my title.  I then and there opened two personal accounts that showed up on my screen with the CDIA account.

I expected  two credit cards.  I got two debit cards.  One bounced publicly at the Yarraville restaurant I patronise – no need to blush there, as I was dealing with literate adults.

So, I then spent another hour at Williamstown completing forms with staff and explaining the above.  We settled on a limit of $5000.  The accounts held by the bank showed it held shares for my fund worth forty times that amount – which is less than what I receive each month by my two pensions.

Could the bank seriously say it needed  more documentation to allow credit of $5000?

You bet – just wait for the robots to swing into action.  They wanted more documents about the fund they had held from its inception. This of course came in a DO NOT REPLY email – or by referral to my inbox at Netbank – so aping MyGov.  In illiterate gibberish. 

So, back to Willy for another session of an hour or so – trying to explain this madness.  I took in the fund’s most recent tax return.  Later that day I rang the bank in response to another DO NOT REPLY  – and I got referred to my Inbox.

Please upload the following to document to support your credit card application: 1. most latest Self Manage Super Fund Member Statement (please note the document provided was too old)

And so it goes.  Senseless gibberish.  Next will come another DNR suggesting I call them – and endure the endless delay and deceitful palaver – to find out the demands of ‘Cards Verification’ – whose word is command.  Why not just say what is required – and in a way that the customer can respond to? 

Perhaps, the bank might even call the customer!  Just imagine buying a Toyota and getting a DNR from the dealer asking you to ring a crowded switch to ascertain the next mandate from Tokyo.  That deal would be off the table with the speed of light.  And you would be relieved to be relieved from dealing with such people.

I had so far spoken with about eight people at the bank.  None had the wherewithal or authority to complete a simple banking transaction – and a least some felt uneasy about that.  You can bet that the rich don’t get this brush-off.  There is this vice like determination to sustain a regime that does not allow dignity to operatives within – or respect or common decency for customers without.  It is a dreadful part of the war against humanity.

According to the press, the CEO of this bank gets paid north of $7M a year.  That is more than ten times what Australians pay the Chief Justice of the High Court.  And for that, the customers, if not the shareholders(including me in each), get a ship that is breaking up and sinking before our eyes.

It is as if the CBA is playing snakes and ladders with our psyche – or sanity.  Those who devise this cruel mode of contact must be bent on removing any humanity from the dealings between the bank and its customers.  Hence the grinding closure of branches and ATMs.  It did not take me long to conclude the CBA was more brutal than the Bendigo Bank.  And it shows on the premises of the branch.  The atmosphere is like that of Centrelink – a war zone – with the same message about not answering back in anger.  And do those who earn – if that’s the word – say forty times what those on the shop floor earn still have the gall to talk about a ‘social licence’?

This bleak tale is about the death of government.

I am 78, in indifferent health – lung cancer in remission, and incurable emphysema.  If it matters, I am a retired lawyer on a part pension who presided over statutory tribunals on a sessional basis for thirty of my fifty years in the law – and got sacked from both.

Recently, I made my final move, to Yarraville, to be close to my daughter and a base hospital.  Then I discovered an issue in rising damp in my swish recently built apartments, and that the whole block was riddled with the problem – to the extent that the government insurer, VMIA, just cannot keep up.

The builder is broke and should be behind bars.  The rectification will cost more than $90,000 – eight times what I paid for my first house. 

I lodged a claim with the government insurer.  Or I thought I did.  The VMIA robots had other ideas.

Dear Geoffrey Gibson

This email is to inform you that your claim 00043068 is currently in the status of DRAFT and has not been submitted. The Draft 00043068 will be automatically closed if you do not submit it within five days of this email….

That missive landed on 25 December.  Happy Christmas, Citizen Geoffrey. 

Then VMIA rejected my claim on grounds that my lawyers say are unsustainable, for reasons given in VCAT precedents. 

I issued proceedings there very reluctantly, because delay is a byword – not just months, but years.  They are even more financially crippled than VMIA, whose name is now notorious among the many thousands of victims of shysters.

So I said that we should meet to discuss settlement, and set out my legal advice.  Six months later, I still await a response – from a government agency that I fund that is supposed to be a ‘model litigant’.  I am getting the usual runaround from lawyers.  There are many claims on VMIA on this bombsite, but it appoints lawyers randomly – one hand does not know what the other does.  Now, my local MP, after strenuous endeavour, says that the Minister cannot intervene.

That being so, I may have to take out a reverse mortgage, and possibly bequeath a Bleak House law suit to my daughter.

So much for thirty years’ service to my government.

I have three complaints.  Government has failed to enforce its building regulations, or adequately to fund and staff VMIA.  Above all, it has let VCAT become a waste-land.  These failures have nothing to do with party politics.

The VCAT collapse is dreadful.  Denying justice is the ultimate failure.  There is a simple enough remedy.  Appoint a dozen or so barristers of ten years standing on a sessional basis with instructions to resolve all disputes within six weeks of filing.  It takes some effort and experience, but I managed it for thirty years – and with very tricky cases.  (My little case could take a morning – if someone says what the point is.)

The whole point of the profession is to get people through the wounding roundabout as soon as practicable.  Justice delayed is justice denied.

It gets worse.  VCAT is not a judicial body.  This tribunal is part of the executive – and it has therefore been shredded like most of our civil service.  Its members lack the constitutional protection that judges have.

But it has a Supreme Court judge as its President.  And its statute says that the President and Vice Presidents are ‘to direct the business of the Tribunal’ and ‘are responsible for the management of the administrative affairs of the Tribunal.’  

A judge is therefore running part of the civil service.  So much for the separation of powers.  The irony is that after killing off responsible government under the Westminster System, government has chosen to make a judge responsible for directing civil servants.

Judges may be driven to act, or precluded from acting, by ‘government policy.’  That is anathema.  I should know.  When permanent members, whose job was threatened, usurped my role as head the Taxation Division, after its first eighteen years, the then President, to the horror of Treasury, said that ‘government policy’ stopped him from intervening.  No judge should ever be put in that position.  The whole process was fraught.  Good advisers stopped me from suing – but it still smoulders, woundingly.

VCAT is a festering failure.  The scandal now is public.  A superior justice is obliged to preside over a sustained denial of justice.

I set out these misgivings in a book, The Making of a Lawyer, 2008.  I said that judges who have to play a part in politics will do it badly and will debase their currency.  The result?  Rien.

We Victorians are paying a dreadful price for the attrition of the civil service by both parties over two generations.  VMIA and VCAT just stand mute like Easter Island statues.  One dying government agency colludes with another to maim the system.  The government of the State of Victoria looks to be broken – juristically,  financially, and morally.

The following remarks responded to a comment that the allies of Ukraine were not doing enough  to reach peace with Russia.

1.  It is not a matter of punishing Putin, but of  protecting a nation from annihilation by Russia.
2. Ukraine needs assistance for that purpose, and we and other free nations have a moral obligation to give it.
3. Those supporting Ukraine – including Australia and me – will have an interest in any settlement offer.  We will be like a lawyer acting on legal aid.  If the client unreasonably refuses to settle, we withdraw the aid.  
4. We are no way near that now, and I have not seen articulated what might be described as a reasonable offer of settlement from Russia.  (If Australia got invaded, and the US said we should settle by giving up a slice of Queensland, we would see that as a breach of trust of Trumpian proportions.)
5. It is above my pay level to say if our strategic interests are suited by having Russia engaged in such a war, but I have seen it said by respectable people – like Timothy  Snyder.
6. The settlement issue looks moot until one reasonable opening appears.
7. If it does, then I think the position of the allies should be guided by two principles.  We should give the benefit of the doubt to the  people attacked.  And we should do all we can to deter other belligerent regimes.  (Russia, China and Iran are similar.   They mistreat their own people so that they can mistreat other peoples.  Serial pests.)
8. I pay little attention to the posturing of the aggressor.  It comes from someone who is not used to being checked.  He is cruel and evil and a coward, but not insane.  People who say they are not bluffing usually are. 
9. And it sounds childish to say to Ukraine you can only use our weapons at home against an invader. There is an old saying we probably got from England – if you don’ like the heat, don’t go near the bloody kitchen.
10. As it happens, there are many precedents  of the quagmire Russia finds itself in.  I wrote the note below ten years ago in a book about revolutions.  I agree with Pitt the Elder.

Guerilla Wars

On 4 July 1976 the colonists formally declared their independence with a document prepared by a number of lawyers and others, setting out in detail, although not with any objectivity, the grounds upon which the colonists were entitled to say that they were discharged from any further obligations to the English crown.

Although the Americans like to see themselves as having been the underdogs, they won the War of Independence, as they call it, and it is not hard to isolate some of the reasons why their position was eventually so much stronger than that of the English.  You can apply the following criteria to the American War of Independence – or to the Vietnam War, the Russian war in Afghanistan, the second Iraq war, or the present military operations in Afghanistan.  The phrases ‘home team’ and ‘away team’ are used for convenience and not to detract from the significance of the wars, or the valour shown and losses taken by those who actually fought them and are fighting the present one.

1. The away team is the biggest in the world, or as the case may be, the only empire in the world, or the second biggest.
2. The away team is a regular professional army while the home team consists of amateur irregulars.
3. The professional soldiers in the away team have no advantage over the amateurs in the other team because they have not been trained for this kind of war and people who fight for the cause are more reliable than those who do it for money.
4. People defending their own soil are far more motivated than those who cross the world to try to bring them into line.
5. The away team has massive resources and advantages in population and war matériel (such as the navy) and technology, but the home team has local knowledge. 
6. The home team can move more quickly, avoid pitched battles, and use guerilla tactics, which are sometimes referred to as terrorism, and which, as we saw, the British objected to as not being fair play.
7. The away team has problems with morale and supplies that just get worse as time goes on.
8. The away team finds that winning requires more than just winning battles – they may beat the army of the other side, but they will not beat the country, which has widespread support among its people (even if the people are otherwise split).
9. The away team has a hopeless dilemma – it has to hit hard to win, but every time it hits hard it loses more hearts and minds.
10. The home team finds it is easy to generate heroes and leaders; the away team finds it is easy to sack losers.
11. The home team out-breeds the others – the result is just a matter of time.
12. The war becomes one of exhaustion and attrition, which in turn exaggerates the above advantage of the home team.
13. Because of its felt superiority, its actual ignorance, and its sustained frustration, the away team resorts to atrocious behaviour that it would never be guilty of in a normal war, or against an enemy of its own kind.

In short, the American colonists felt that they were fighting on the moral high ground, a position that they have never surrendered. Appalling crimes were committed on both sides, especially in the civil war in the south between the Patriots and Loyalists. There were, Churchill said, ‘atrocities such as we have known in our day in Ireland.’ Professor Gordon S Wood said that the ‘war in the lower south became a series of bloody guerilla skirmishes with atrocities on both sides’ (like Vietnam). But for the intervention of the French, this civil war – guerilla war may have gone on for years and degenerated into what would happen in Latin America with ‘Caesarism, military rule, army mutinies and revolts, and every kind of cruelty’ (like the Roman Empire).

But the terrorism on both sides ceased and the result was dictated by the sentiment expressed at the time by another former Prime Minister of England. The older Pitt, by this time the Earl of Chatham, one of the most experienced war time leaders England has ever had, knew what the home ground advantage meant: ‘My Lords, if I were an American, as I am an Englishman, while a foreign troop was landed in my country, I would never lay down my arms – never, never, never.’

If you asked who were the greatest minds the U K produced, the answer would include Isaac Newton, scientist, Adam Smith, economist, and David Hume, philosopher.  Shakespeare is in a different category.   What then did the great Scot think of the great English poet and playwright?

If Shakespeare be considered as a MAN, born in a rude age, and educated in the lowest manner, without any instruction, either from the world or from books, he may be regarded as a prodigy: If represented as a POET, capable of furnishing a proper entertainment to a refined or intelligent audience, we must abate much of this eulogy. In his compositions, we regret, that many irregularities, and even absurdities, should so frequently disfigure the animated and passionate scenes intermixed with them; and at the same time, we perhaps admire the more those beauties, on account of their being surrounded with such deformities. A striking peculiarity of sentiment, adapted to a singular character, he frequently hits, as it were by inspiration; but a reasonable propriety of thought he cannot, for any time, uphold. Nervous and picturesque expressions, as well as descriptions, abound in him; but it is in vain we look either for purity or simplicity of diction. His total ignorance of all theatrical art and conduct, however material a defect; yet, as it affects the spectator rather than the reader, we can more easily excuse, than that want of taste which often prevails in his productions, and which gives way, only by intervals, to the irradiations of genius. A great and fertile genius he certainly possessed, and one enriched equally with a tragic and comic vein; but, he ought to be cited as a proof, how dangerous it is to rely on these advantages alone for attaining an excellence in the finer arts.  And there may even remain a suspicion, that we over-rate, if possible, the greatness of his genius; in the same manner as bodies often appear more gigantic, on account of their being disproportioned and misshapen. He died in 1616, aged 53 years.

But wait. There is more.

Johnson possessed all the learning which was wanting to Shakespeare, and wanted all the genius of which the other was possessed. Both of them were equally deficient in taste and elegance, in harmony and correctness. A servile copyist of the ancients, Johnson translated into bad English the beautiful passages of the Greek and Roman authors, without accommodating them to the manners of his age and country. His merit has been totally eclipsed by that of Shakespeare, whose rude genius prevailed over the rude art of his cotemporary. The English theatre has ever since taken a strong tincture of Shakespeare’s spirit and character; and thence it has proceeded, that the nation has undergone, from all its neighbours, the reproach of barbarism, from which it’s valuable productions in some other parts of learning would otherwise have exempted it. Johnson had a pension of a hundred marks from the king, which Charles afterwards augmented to a hundred pounds. He died in 1637, aged 63.

(The only other reference to Shakespeare in the six volumes is in a footnote that says there is no reference to ‘civil liberty’ in the history plays from King John to Henry VIII.  Perhaps that’s because ‘civil liberty’  had not yet been invented and would have struck either king as hilarious.)

Hume was admired for his mind and well  regarded for his affable character – especially by les belles dames in Paris.  What poison  – unless it was  green eyed jealousy – caused  him to unload this bile?

We all have our flaws, but this is a blinder.

And it is also very sad.  Coming from the great philosopher who said that ‘reason is and ought only to be the slave of the passions.’

4 Forms of action (common law) and a release valve (equity)

Lawyers have a saying – hard cases make bad law.  If you stretch the law to fix an unhappy problem at the edge, you may make the law worse – if for no other reason than that you are adding to it – and making it more complicated and harder to find and apply.  But that is just how the common law developed – by applying a precedent to a similar case. 

And you do not have to be a lawyer to understand that cases arise that fairly call out for the law to be extended to deal with them – in the interests of justice overall.  So, for a long time the law hesitated before allowing someone other than the person who bought defective goods to sue them for damage suffered as a result of the negligence of the manufacturer.  But what happens when someone gets badly hurt when the wheels fall off a Buick?  Or when a lady is violently ill after partaking of a ginger beer bought for her by a friend – and the drink contained a decomposed snail?  Every law student quickly learns that the modern law of negligence began with the developments made by these two decisions.

The law has doctrines to prevent people resiling from their stated position where that would be unfair to the other side.  (They are called estoppel and waiver.)  Many Australian sailors died or were injured as a result of a naval collision – a national tragedy.  They sued the Commonwealth of Australia.  Someone sued out of time can waive the right to plead the Statute of Limitations.  The Commonwealth did so.  Then it sought to amend its defence to plead the Statute.  The case got to the High Court, and counsel for the Commonwealth knew they were in for a lacing.  Which they got.  The Commonwealth lost, but although they had no judge in their favor on the result, it looked as if it had a majority on each issue in its corner.  You could hardly say that the law was improved by this ‘hard case’.

Most cases turn within a simple moral frame.  You should not deliberately hurt another person.  You should avoid hurting another by your carelessness.  You should keep your promise.  If you are in a position of trust, you owe higher obligations of integrity. 

Most of the capital of the world ultimately depends on promises.  You would therefore think that a great mercantile nation like England would have settled its law of contract before all others.  It did not so until about the time of Napoleon.  Merchants were largely left to their own devices.  The main problems came from the preoccupation with the forms of action and the devices found by judges to escape them.

The great legal historian F W Maitland published lectures under the heading The Forms of Action at Common Law.  It has I fear bedeviled students for more than a century.  Which is a pity, because the author states the history with the clarity he was so famous for.  The barest outline will do here.

We start with the notion that the law had to seek to put an end to the vendetta.  There was a very basic criminal process.  (At the start, the law did not distinguish between criminal and civil process.)  From that process, we got the Writ of Trespass.   Think of trespass as in the Lord’s Prayer or transgressio.   It could be to the person or land or perhaps cattle or chattels.  It was like our wrong or tort. 

But the victim had to allege that the trespass was committed vi et armis – by force of arms – et contra pacem regis – against the King’s peace.  This was fundamental – a private wrong had become a public crime, which it was the function of the king to put right – to preserve his peace – his first and paramount duty.  But the technical arguments flowing from those limitations would vex litigants up to the nineteenth century.

There never was a writ (form of action) for contract or negligence or trust.  Litigants had to finesse their way around writs of Account, Covenant or Debt.  For trusts, they had to go to a completely separate court and body of law.  Can you imagine the human cost?

Historians are not agreed about how new avenues of complaint were opened.  A statute allowed Chancery clerks to issue a writ where the complaint was in consimile casu – in a similar case – as an existing writ.  These were called ‘actions on the case’ – but when you think about it, that is how the common law had to develop. 

Plaintiffs began to allege that the defendant undertook to do something – assumpsit.  This opened the way to actions for failure to deliver on a bargain.  After they began to allege a prior debt –indebitatus assumpsit – the action of contract was on foot.  The doctrine of consideration – you have to earn the right to sue – emerged over the centuries.  It can be tricky, but it is not as mystical as the Roman causa.  Finally, after the wheels came off the Buick, and the lady threw up on the snail, the law of negligence had arrived.  It had taken about 800 years.  And if you think these actions had got tricky, those relating to land were even more dense – in large part because of the feudal inheritance.

A lot of this movement on the forensic carousel involved artifice – or fictions.  To get around technical issues, the judges allowed plaintiffs to make allegations that could not be traversed.  The wrong of conversion was for a long time called Trover (after the French trouver for ‘to find’.)  The plaintiff alleged that he ‘casually lost’ goods, that the defendant ‘found’ them, and was now refusing to hand them back.  And he would toss in a casual allegation of fraud – which is now verboten. 

You do not have to be a lawyer to see that building deceit into the system will lead to serious problems in the witness box.  And the ‘sporting theory’ of justice is not a theory at all.  When the punters believe that they are part of a game that the lawyers are playing with them, for profit – we have all lost.

But an even more fundamental split or division opened up.  Outsiders would call it schizophrenic.  The Greeks understood that you would have to be mad to think that you could make laws to meet every contingency.  But in the name of doctrinal purity, innocent people were getting badly hurt by the fraud of others or their own accidents; and the common law did not recognize trusts.  And people were being denied a remedy by a pitiless, technical common law. 

Such cases were downright unconscionable.  Could the king, as the fountain of justice, or his senior minister, the Chancellor, answer these calls of conscience and provide a remedy to those denied relief at common law?  Over time, the Chancellor developed a body of law in the Court of Chancery, a jurisprudence we know as Equity in an attempt to ease the pain left by the common law.

The Chancellor acted on the conscience of the defendant – in personam.  He developed the subpoena and the process called discovery – when parties were compelled to produce documents or answer questions on oath – where to do so might cost them their case, and their tenderness would cause discomfort between them and their lawyers. 

You will see immediately that they were much more inquisitorial than the common lawyers.  Evidence was led in writing – which has always led to serial lying.  And the equity judges were not brought back to earth by a jury.  Instead, they adumbrated refined theories on ethics and legal personality.  They became immured in worse delay and obfuscation than the system they were meant to relieve. 

There were ugly turf wars.  The equity crowd had trouble burying the notion that they looked like they felt morally and intellectually superior.  They became victims of their own unreal subtlety.  Lawyers generally know that they are in for it if the judge says that their argument is ‘subtle’, ‘nuanced’, or ‘ingenious.’ 

This has not been the case with the Whisperers – as some call them.  Too many of them in our time were up to their eye-balls in appallingly convoluted and artificial tax schemes that disgraced the profession until first the judges and then the legislators got their act together.  And I am not alone in thinking that their processes and leaning toward the inquisition have been the principal causes of the failings of our trial system.

By the time Dickens wrote novels like Bleak House, the appalling screams of the victims could no longer be ignored.  A Victorian parliament ordered the two systems to ‘fuse’ – but the notion of fusion is an invitation to the dance for some in the colonies, who might remind us of the observation of Sir Lewis Namier that the United States was a refrigerator for ideas that had passed their use-by date in the old country.

So what?  The common law is truly a thing of wonder.  But there are two ineluctable truths.  The most important person in the court is the loser.  And at least one side in these contests has to lose.  The common law was built on the blood and bones of the broke, the wounded, the mad, and the dead.  We lawyers might have a Remembrance Day in honor of the millions of our losers.